Medical Malpractice: Philippine Law and Jurisprudence

I. Introduction

I will apply dietetic measures for the benefit of the sick according to my ability and
judgment; I will keep them from harm and injustice
One of the most widely known Greek medical text upheld by most physicians is the oath
made by Hippocrates. The Hippocratic Oath is a code of discipline and ethical rule that doctors
have imposed upon themselves in the exercise of their profession. In the said oath, the doctors
swear by all the gods to treat the sick with the best of their ability, maintain the privacy of their
patients, and be accountable for any act or omission and among all others. This oath, up to the
modern times, guides and defines the ethical responsibility of physicians to their patients.
Indeed, no member of the medical profession would like to cause harm or injury,
however, certain acts of negligence or incompetence may lead to injury or even death during the
treatment of their clients. Admittedly also, there is no clear and direct law in the Philippines
regarding medical malpractice hence most of our legal sources or doctrines come from American
jurisprudence. In the light of trying to establish a comprehensive legal standard in medical
malpractice, the discussed jurisprudence and civil laws had already been applied in Philippine
cases of medical malpractice.
In observing Philippine jurisprudence, medical malpractice is defined and resorted to the
negligence of the physicians. In Flores V. Pineda, the Court explained the concept of medical
negligence and its elements. Medical negligence is a claim to redress a wrong committed by
medical professional, that has caused bodily harm or the death of a patient. 1 In American
jurisdiction, it provides that medical malpractice does not only arise in negligence. As explained
by Darwin Angeles in Dissecting Philippine Law and Jurisprudence on Medical Malpractice,
it may result either through lack of skill or neglect to apply it, if possessed, and it may be
willful, negligent, or ignorant.2 Hence, even if most of our jurisprudence in medical malpractice
seem to arise from negligence, it must not be construed limitedly to cases of medical negligence.
Our laws do not restrict medical malpractice to those negligent acts done by physicians but also
cover all acts either negligent or incompetent act, as long as such caused an injury to another.
The notion of medical malpractice constituting only negligent acts must therefore be eliminated.
Medical malpractice must be viewed both covering the negligent and incompetent or willful acts
of these medical practitioners, as long as injury resulted to such. What is material is the damage
or injury incurred by the patient that can be attributed to the act of the physician that may result
for relief or compensation.

1 G.R. No. 1589996, November 14, 2008, 571 SCRA 83- 91-92.

2 Darwin Angeles, Dissecting Philippine Law and Jurisprudence on Medical Malpractice, Philippine Law Journal
Vol. 85 (2011): 899, http://plj.upd.edu.ph/wp-content/uploads/2013/06/PLJ-volume-85-issue-4-layout8.pdf.
 II. Elements of Medical Malpractice
In the article of Angeles, he provided an in depth discussion on the elements of medical
malpractice namely: physician-patient relationship, duty of physician, breach of duty and injury,
and causation.
a. Physician-Patient Relationship
Accordingly, the physician-patient relationship commences when a patient
engages the services of a physician. Our jurisdiction has not settled the issue, whether such
relationship is founded in a contract, hence can be a source for recovery of damages in case of
breach. However, the Civil Code purports liability arising from quasi delict as provided for in
Article 2176:
Article 2176. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter.
Hence, an individual is not barred from recovery of damages, whether a contract exists or
not. The commission of the injury itself is the primary cause of breach worthy of compensation.
As Angles explained, the voluntary acceptance of the physician-patient relationship by the
affected parties create a prima facie presumption of a contractual relationship between them. 3
From the moment that the patient asks for the service of the physician and the physician does
accept such, the contractual relationship between them already exists. The physician assumes the
responsibility to apply, with the best of his ability, the training, care, and skill in the treatment of
the patient. The patient, on the other hand, shall compensate the latter for his services. Once the
physician commits a breach of the duty imposed by physician-patient relationship, action for
damages shall arise.
b. Duty of a Physician

The degree of care, skill, and diligence that must be exercised by a physician should be of
the same level with that of other reasonably competent doctor. This level of degree was
explained in Reyes V. Sister of Mercy Hospital, the standard contemplated is not what is
actually the average merit among all known practitioners from the best to the worst and from the
most to the least experienced, but the reasonable average merit among the ordinarily good
physicians.4 In the same case, the Supreme Court held that the standard of extraordinary
diligence applicable to common carriers also apply to the medical practice. Generally, deviation
from such standard shall commence a breach of a physicians duty.

3 Ibid., 901

4 Reyes, 396 Phil. 87, 104, October 3, 2000.

However, Angeles argued that there can be no fixed standard for all physicians. Various
circumstances such as qualification and training of physician, level of equipment, technology,
locality where he serves, and other contingencies must be taken into consideration. He contends
that a physician in a far flung barrio cannot be compared in terms of service rendered with that of
a physician in highly-urbanized city. However, this reason cannot be used to justify any injury
caused by the physician.
As Angeles explains, it can be said that as long as the medical practitioner exercises
that degree of care, skill, diligence that ordinarily characterizes the reasonable average merit
among the ordinarily good physician in the same general neighborhood and in the same general
line of practice the medical practitioner can be said to have fulfilled the duty of care and
diligence required by law.5
c. Breach of Duty and Injury
The breach of duty contemplated is the failure of the physician to observe the degree of
care, skill, and diligence of ordinarily good physician in the same general neighborhood and in
the same general line of practice. The result of such breach is an injury which can either
aggravate the condition of the patient or caused his death. The breach cannot only be
contemplated on an act of negligence but rather any lack of foresight or skill that may have
caused such injury.
Example of the following acts that constitute breach of duty are cited in the following
cases: in Professional Service, Inc. V. Agana, the act of leaving sponges or other foreign objects
in the wound after the incision has been closed; the misapplication of forceps during delivery
that caused profuse bleeding in Nogales V. Capitol Medical Center; a wound caused by the
negligent exposure of drop light during the course of delivery in Cantre V. Spouses Go; and in
Solidum V. People, the negligent act of an anesthesiologist during the surgical operation of a
patient with an imperforate anus.
In proving the relationship between the breach of duty and the injury caused to a patient
two principles may be applied, that is indispensability of expert testimony and the doctrine of res
ipsa loquitor. These two principles are used to prove that there is indeed an injury resulted from
the breach of contract which can arise to an actionable cause for damages.
Illustrating the two principles in Rosit V. Davao Doctors Hospital, the deliberate act of
Dr. Gestuvo in using a larger screw instead of the available smaller titanium screw for the
mandible injury of Nilo Rosit caused profuse pain and difficulty of his speaking. The Supreme
Court held that an expert testimony should allege the standard level of care, skill, and diligence.
Such that, it is the burden of the plaintiff to prove through an expert testimony that the accused
had failed to upheld such standard. However in the case of Rosit, the indispensability of expert
witness was relaxed since mere testimony of common knowledge is sufficient to prove the injury.

5 Darwin Angeles, Dissecting Philippine Law and Jurisprudence on Medical Malpractice, Philippine Law
Journal Vol. 85 (2011): 905, http://plj.upd.edu.ph/wp-content/uploads/2013/06/PLJ-volume-85-issue-4-layout8.pdf.
 In this matter where the injury itself can speak of a breach of duty, the indispensability of
expert testimony can be dispelled and the doctrine of res ipsa loquitor shall subsist. There are
four requisites of this doctrine, to wit: (1) the accident is of a kind which ordinarily does not
occur in the absence of someones negligence; (2) it is caused by an instrumentality within the
exclusive control of the defendant or defendants; and (3) the possibility of contributing conduct
which would make the plaintiff responsible is eliminated.
Applying the requisites in the case of Rosit, the complication of the mandible operation
was caused by the deliberate act of Dr. Gestuvo in choosing to use a larger screw when he knew
that a smaller screw appropriate for the operation was just available in the locality. Evidently, the
use of the larger screw that caused complications was under the exclusive control of Dr. Gestuvo,
as the operating physician. And during the operation, Rosit was unconscious, obviously he did
not contribute to the injury.
In the same case, the doctrine of informed consent was applied. a physician has a duty
to disclose what a reasonably prudent physician in a medical community whatever grave risk
of injury might be incurred from a proposed course of treatment, so that a patient, exercising
ordinary care for his own welfare, and faced with a choice of undergoing the proposed
treatment may intelligently exercise his judgement by reasonably balancing the probable risks
against the probable benefits.6
There are four essential requisites of doctrine of informed consent: (1) the physician had
a duty to disclose material risk; (2) he failed to disclose or inadequately disclosed those risks; (3)
as a direct and proximate result of the failure to disclose, the patient consented to treatment she
otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment.
Applying such in the case at hand, first, Dr. Gestuvo had the duty to disclose to Rosit the
risks of using the larger screws for the operation. An obligation that arises as the physician
undertaking the operation. Second, Dr. Gestuvo failed to disclose these risks to Rosit, deciding
for himself that Rosit could not afford to get the more expensive titanium screws. Third, had
Rosit been informed that there was a risk that the larger screws are not appropriate for the
operation and that an additional operation replacing the screws might be required to replace the
same, Rosit would have not agreed to the operation. Fourth, as a result of using larger screws,
Rosit experienced pain and could not heal properly because one of the screws hit his molar.
Thus, Dr. Gestuvo is guilty of negligence on the ground of withholding material information
which would be vital for Rosit to decide whether to push through in the operation.
d. Causation

To make a medical practitioner liable, it must be proven that the breach of duty is the
proximate cause of the injury. The proximate cause of the injury is the cause, which in the natural
and continuous sequence, unbroken by any efficient intervening cause, produces the injury and
without which the result would have not occurred. It must be proven with medical probability

6 G.R. No. 210445, December 7, 2015, 8.

and upon competent expert witnesses. Angeles further added that, if the medical practitioners
negligence is not the immediate cause of the injury, he may still be held liable if it is proven by a
preponderance of evidence that the act or omission complained of is the proximate cause of the
injury suffered by the plaintiff.7
III. Liable Parties

a. Physicians and Surgeons

The physician as the author of the negligent act is deemed to be liable for damages. Provided
that the four requisites for medical negligence are satisfied namely: duty, breach, injury, and
proximate cause. This is highly applicable in cases where only one doctor attends to a physician,
however, in cases of surgery where there are more than one physician attending to the needs of
the patient, liability must be appropriated properly. It is a general rule, that the physician shall
only be liable to the extent of his contribution to the injury. In determining the liability of
physicians and surgeons, two principles may be applied: captain-of-the-ship doctrine and
borrowed serveant doctrine.
In the captain-of-the-ship doctrine, the surgeon is likened to a ship captain wherein the latter
shall be held responsible for the safety not only of the crew but also the passengers. Hence, the
surgeon shall also be responsible for all the acts undertaken during the operation, whether or not
directly within his control.

Hence, in Ramos V. CA, Dr. Hosaka, the main surgeon in the cholecystectomy operation of
Erlinda Ramos, was held liable for the negligent act of Dr. Guiterrez, the anesthesiologist,
causing brain damage to Erlinda. As the Court held, the facts inferred that Dr. Hosaka did
exercise certain degree of supervision over the procedure performed by Dr. Guiterrez. The
following acts of both doctors signify that indeed a supervisory power is exercised by Dr. Hosaka
to Dr. Guiterrez: first, Dr. Hosaka was the one who recommended Dr. Guiterrez to Erlinda,
stating that the latter has the competence and skills; second, it was Dr. Hosaka who called for
another anesthesiologist to help resuscitate Erlinda; and both doctors worked as a team during
the operation, their acts cannot be made independent but rather dependent to each other. Indeed,
the captain-of-the-ship doctrine purports that Dr. Hosaka should have established the greatest
diligence and supervision over the procedure conducted by Dr. Guiterrez to have prevented the
injury.

The said doctrine is not only applicable to the supervision of the surgeon, as the captain of
the operation, to the acts of other physicians, but rather his supervision also in all instruments
under his control during the operation. Hence, in Cantre V. Go, Dr. Milagros Cantre was made
liable to the injury caused by the overexposure of the drop light during the delivery of Mrs. Nora

7 Darwin Angeles, Dissecting Philippine Law and Jurisprudence on Medical Malpractice, Philippine Law
Journal Vol. 85 (2011): 911, http://plj.upd.edu.ph/wp-content/uploads/2013/06/PLJ-volume-85-issue-4-layout8.pdf.
Go. The drop light caused a burn in the inner portion of the left hand of Nora, which led the latter
to undergo skin grafting.

On the other hand, the borrowed serveant doctrine or doctrine of respondeat superior states
that once the surgeon enters the operating room and takes charge of the proceedings, the acts
or omissions of operating personnel, and any negligence associated with such acts or omissions,
are imputable to the surgeon.8 In Nogales V. Capitol Medical Center, even if Dr. Oscar Estrada
is merely an attending physician in the hospital, the other assisting physicians and nurses become
his temporary servants. Hence, any omission or negligent acts done by them may be charged
against the surgeon. Hence, the misapplication of forceps during the baby delivery of Corazon
Nogales, must be the liability alone of Dr. Estrada as the attending physician.

b. Vicarious Liability of Hospitals

The essence of imposing liability to hospitals for the negligent act of their consulting or
visiting physician lies on the fact that these hospitals can only achieved purpose of profit and
service upon the acts of its agents. As explained by Joan Largo in Torts and Damages, the
wisdom lies in the fact that the corporate entities are capable of acting only through other
individuals, such as physicians. If these accredited physicians do their job well, the hospital
succeeds in its mission of offering quality medical services and thus profits financially.
Logically, where negligence mars the quality of its services, the hospital should not be allowed to
escape liability for the acts of its ostensible agents.9

1. Control Test
The hospitals can have vicarious liability for the negligent act of consulting physicians or
surgeons under their premises. That is they can be made liable to the actions of another, provided
that the employer-employee relationship between the hospital and physician be established. As
provided in Art. 2180:
The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible Employers shall be
liable for the damages caused by their employees acting within the scope of their assigned
tasks, even though the former are not engaged in any business or industry.
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.
Hence, in Ramos V. CA, it was held that the requisites of the control test must be satisfied to
fully establish an employer-employee relationship and make the hospital vicariously liable to
8 G.R. No. 142625, December 19, 2006.

9 Joan Largo, Laws and Jurisprudence on Torts and Damages (Manila: Rex Book
Store, 2014), 135.
 the acts of a consulting or visiting physician. To wit: (1) power to control; (2) power to hire;
(3) power to fire; and (4) with the exemption of payment of wages. De los Santos Medical
Center (DSMC) denied having supervisory power to Dr. Hosaka and Guiterrez, however,
they were not able to adduce that they observed the diligence of a good father to prevent the
injury. Hence, DSMC was made solidarily liable for the damages caused by the respondent
physicians.
2. Doctrine of Apparent Authority

The Doctrine of Apparent Authority is a means of employing liability to hospitals from

the negligent acts of their visiting or consulting physician by creating to make believe a
reasonable person that the physician is an agent of the hospital. That is, they made to appear that
such physicians are ostensible agents of the hospital.
The doctrine have three requisites namely: 1) the hospital, or its agent, acted in a manner
that would lead a reasonable person to conclude that the individual who was alleged to be
negligent was an employee or agent of the hospital; (2) where the acts of the agent create the
appearance of authority, the plaintiff must also prove that the hospital had knowledge of and
acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its
agent, consistent with ordinary care and prudence.10
In Nogales V. Capitol Medical Center, it provided two factors of the doctrine. The first
factor focuses on the manifestations of the hospital that would lead a reasonable person to
conclude that the negligent individual was an employee or agent of the hospital. In this instance,
there is no need for the hospital to make express representation that the physician is their
employee. The representation may be implied. This was shown when Capitol Medical Center
(CMC) clothed apparent authority to Dr. Estrada. CMC granted staff privileges and facilities to
Dr. Estrada. Such that, the personnel of CMC regularly update Dr. Estrada of Corazons
condition. CMC also made Rogelio, husband of the victim, sign consent forms printed with
CMC letter head. Lastly, the referral of Dr. Estrada to another physician in the said hospital made
an impression that indeed he is part of CMC.
The second factor imposes that acting in the reliance of apparent authority, the patient
relied to the agent, consistent with ordinary care and prudence. It was shown that from the
foregoing evidence, Spouses Nogales relied upon the perceived employment relationship with
CMC in accepting the services of Dr. Estrada. Hence, the Court held that CMC is vicariously
liable to the negligent act of Dr. Estrada.
c. The Doctrine of Corporate Negligence

The Doctrine of Corporate Negligence was introduced in Professional Services, Inc., V.

Agana, wherein Enrique Agana and Natividad Agana sued Dr. Ampil and Dr. Fuentes for the
negligent act of not removing from her body two gauze during his hysterectomy operation at the

10 Nogales, 511 SCRA 204, 223, December 19, 2006.

Medical City General Hospital under Professional Services Inc., (PSI). As Angeles explained,
this doctrine means the duty to exercise reasonable care to protect from harm all patients
admitted into its facility for medical treatment.11 Hence, in Professional Service Inc., additional
duties of hospital were stated as follows: (1) the use of reasonable care in the maintenance of
safe and adequate facilities and equipment; (2) the selection and retention of competent
physicians; (3) the overseeing or supervision of all persons who practice medicine within its
walls; and (4) the formulation, adoption and enforcement of adequate rules and policies that
ensure quality care for its patients.12
In the said case PSI has the duty to exercise reasonable care to protect from harm all patients
admitted into its facility for medical treatment. Unfortunately, PSI failed to perform such duty.
Despite the report of their nurses regarding missing gauzes, PSI did not conduct any
investigation regarding such. Hence, PSI was made solidarily liable with Dr. Ampil.
IV. Conclusion
The non-existence of Philippine law governing medical malpractice does not only impose
harm to the patients but also to the members of the medical profession. The present system
provides for three course of action for patients, criminal action, civil action for damages, and
suspension and revocation of license by the Professional Regulation Commission to convicted
hospitals. However, such actions more often than not result to delay or worse denial of justice.
Moreover, a medical practitioners name is tainted by years of proceeding in courts. Any
individual can impute negligence and malpractice to physicians without inhibitions or
limitations.
Hence, it is high time that a Philippine law regarding medical malpractice should be
passed so as to ensure a reasonable means and procedure for both medical practitioners and
patients to guaranty their rights. The pending bills of the 15th Congress regarding medical
malpractice are as follows: House Bill No. 100 and 1616 and Senate Bill 2669. The said bills
defined medical malpractice including those aspects that it may cover or dispense. The bills
guarantee safeguard for both protecting the rights of the patients regarding the injury done, and
that of the medical practitioners regarding groundless and false suit that may be filed against
them.
As such, it is an outcry that a legislation regarding medical malpractice should soon be
passed to provide a comprehensive legal standard in actions of medical negligence and
incompetence.

11 Darwin Angeles, Dissecting Philippine Law and Jurisprudence on Medical Malpractice, Philippine
Law Journal Vol. 85 (2011): 926, http://plj.upd.edu.ph/wp-content/uploads/2013/06/PLJ-volume-85-
issue-4-layout8.pdf.

12 Professional Services, Inc., 513 SCRA 478, January 31, 2007.