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DOCTRINE OF VICARIOUS LIABILITY

Our system of liability based on fault is part of an economic and social


-Doctrine of Imputed Negligence/Command Responsibility. philosophy of individualism. Quite naturally then an individual is generally
-Vicarious liability means the responsibility of a person, who is not held only for his own fault and not for the fault of another. Innocent A is not
negligent, for the wrongful conduct or negligence of another. usually liable for injuries caused by guilty B. It is a commonplace, however,
that he sometimes is. That is where there is a relationship between A and
Art. 2180, Civil Code of the Philippines B to which the law attaches the consequences of vicarious liability.
Obligations is demandable not only for ones own acts or omission
but also fort those persons whom one is responsible Such relationships are those between master and servant, and persons
.xxx the owners or managers of an establishment or enterprise engaged in a partnership or a joint enterprise. Where the servant, for
are likewise responsible for damages caused by their employees instance, acting within the scope of his employment negligently injured C,
in the service of the branches in which the latter are employed or the innocent master, A, is liable to C for that injury. This result. is usually
on the occassion of their functions described by identifying master and servant. Qui facit per alium facit per
Employers shall be liable for the damages caused by their se. This means that the servant's negligence is imputed to the master.'
employees and household helpers acting within the scope of their
assigned task, even though the former are not engaged in any The case put does not involve contributory negligence. C has been the
business or industry innocent victim of B's fault (else he would be barred of recovery by his own
The responsibility treated of this article shall cease when the negligence). But let us shift the case slightly. Suppose that C has
person herein mentioned prove that they observe all the diligence negligently run into and destroyed A's truck, and that A's driver, B, was
of a good father of a family to prevent injury. also negligent but A was in all respects free from fault. A now sues C for
the damage to his truck. By hypothesis he cannot be barred from recovery
Doctrine of respondeat superior Let the master answer. A legal by his own negligence, for there was none. And under general principles
doctrine which states that, in many circumstances, an employer is the innocent victim has the choice of suing either or both of two persons
responsible for the actions of employees performed within the course of whose wrongs contributed to his injury. The question here is whether A is
their employment. to be barred for the negligence of his employee, B. The law today says he
is. Here again the result is described by identifying master and servant and
DOCTRINE OF CONTRIBUTORY NEGLIGENCE imputing the latter's negligence to the innocent master. The same result is
reached where B is a partner or a joint entrepreneur of A, and B's
- Doctrine of Common Fault negligence occurs within the scope of such relationship. This result is
- It has been defined as conduct on the part of the plaintiff or injured generally called imputed contributory negligence.
party, contributing as a legal cause to the harm he has suffered,
which falls below the standard which he is required to conform to DOCTRINE OF OSTENSIBLE AGENT
his own protection.
- It is the act or omission amounting to want of care on the part of - In cases wherein the employees are at the same time are
the complaining party which, concurring with the defendants independent contractors of the hospital;
negligence, is the proximate cause of the injury. - Because of this peculiar situation, they are considered ostensible
agents and therefore, the hospital must be held liable for their
negligent acts. (pathologist, radiologist, anesthesiologist).
DOCTRINE OF IMPUTED CONTRIBUTORY NEGLIGENCE - is the
device where the plaintiff is denied recovery against the defendant when DOCTRINE OF APPARENT AUTHORITY [T]he doctrine [under which]
the negligence of another is imputed to the plaintiff because of the acts and contracts of the agent, as are within the apparent scope of the
existence of some relationship with the latter. As the doctrine assumes the authority conferred on him, although no actual authority to do such acts or
plaintiffs innocence of actual negligence, imputed negligence is best to make such contracts has been conferred, bind the principal. The
understood as transferred negligence. principals liability, however, is limited only to 3rd persons who have been
led reasonably to believe by the conduct of the principal that such actual The doctrine of res ipsa loquitur is simply a recognition of the postulate
authority exists, although none was given. In other words, apparent that, as a matter of common knowledge and experience, the very nature of
authority is determined only by the acts of the principal and not by the acts certain types of occurrences may justify an inference of negligence on the
of the agent. [Banate v. Phil. Countryside Rural Bank, Inc., GR 163825, part of the person who controls the instrumentality causing the injury in the
July 13, 2010].Also called the Holding out theory; or Doctrine of ostensible absence of some explanation by the defendant who is charged with
agency or Agency by estoppel. negligence.[15] It is grounded in the superior logic of ordinary human
experience and on the basis of such experience or common knowledge,
BORROWED SERVANT DOCTRINE negligence may be deduced from the mere occurrence of the accident
itself.[16] Hence, res ipsa loquitur is applied in conjunction with the doctrine
Ordinarily, resident physicians, nurses and other personnel of the of common knowledge.
hospital are employees or servants of the hospital;
In some instances, they are under the temporary supervision and However, much has been said that res ipsa loquitur is not a rule of
control of another other than their employer while performing their substantive law and, as such, does not create or constitute an independent
duties; or separate ground of liability.[17] Instead, it is considered as merely
By fiction of law, they are deemed borrowed from the hospital by evidentiary or in the nature of a procedural rule.[18] It is regarded as a
someone and for any wrongful act committed by them during the mode of proof, or a mere procedural convenience since it furnishes a
period, their temporary employer must be held liable for the substitute for, and relieves a plaintiff of, the burden of producing specific
discharge of their acts and duties; proof of negligence.[19] In other words, mere invocation and application of
In the determination whether one is a borrowed servant, it is the doctrine does not dispense with the requirement of proof of negligence.
necessary that he is not only subjected to the control of another It is simply a step in the process of such proof, permitting the plaintiff to
with regard to the work done and the manner of performing it but present along with the proof of the accident, enough of the attending
also that the work to be done is for the benefit of the temporary circumstances to invoke the doctrine, creating an inference or presumption
employer. of negligence, and to thereby place on the defendant the burden of going
forward with the proof.[20] Still, before resort to the doctrine may be
CAPTAIN-OF-THE-SHIP DOCTRINE allowed, the following requisites must be satisfactorily shown:

- This doctrine innunciates liability of the surgeon not only for the 1. The accident is of a kind which ordinarily does not occur in the absence
wrongful acts of those who are under his physical control but also of someones negligence;
those wherein he has extension of control.
2. It is caused by an instrumentality within the exclusive control of the
DOCTRINE OF RES IPSA LOQUITOR defendant or defendants; and

- The thing speaks for itself; nature of the wrongful act 3. The possibility of contributing conduct which would make the plaintiff
or injury is suggestive of negligence. responsible is eliminated.[21]
- General rule: expert testimony is necessary to prove that
a physician has done a negligent act or that has deviated In the above requisites, the fundamental element is the control of the
from the standard of medical practice. instrumentality which caused the damage.[22] Such element of control
The thing itself speaks. A doctrine of law that one is must be shown to be within the dominion of the defendant. In order to have
presumed to be negligent if he had exclusive control of the benefit of the rule, a plaintiff, in addition to proving injury or damage,
whatever caused the injury even though there is no specific must show a situation where it is applicable, and must establish that the
evidence of an act of negligence, and without negligence essential elements of the doctrine were present in a particular incident.[23]
the accident would not have happened.
Medical malpractice[24]cases do not escape the application of this
doctrine. Thus, res ipsa loquitur has been applied when the circumstances
attendant upon the harm are themselves of such a character as to justify loss of an eye while the patient plaintiff was under the influence of
an inference of negligence as the cause of that harm.[25] The application anesthetic, during or following an operation for appendicitis,[36] among
of res ipsa loquitur in medical negligence cases presents a question of law others.
since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given inference.[26] Nevertheless, despite the fact that the scope of res ipsa loquitur has been
measurably enlarged, it does not automatically apply to all cases of
Although generally, expert medical testimony is relied upon in malpractice medical negligence as to mechanically shift the burden of proof to the
suits to prove that a physician has done a negligent act or that he has defendant to show that he is not guilty of the ascribed negligence. Res ipsa
deviated from the standard medical procedure, when the doctrine of res loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule
ipsa loquitur is availed by the plaintiff, the need for expert medical to be cautiously applied, depending upon the circumstances of each case.
testimony is dispensed with because the injury itself provides the proof of It is generally restricted to situations in malpractice cases where a layman
negligence.[27] The reason is that the general rule on the necessity of is able to say, as a matter of common knowledge and observation, that the
expert testimony applies only to such matters clearly within the domain of consequences of professional care were not as such as would ordinarily
medical science, and not to matters that are within the common knowledge have followed if due care had been exercised.[37] A distinction must be
of mankind which may be testified to by anyone familiar with the facts.[28] made between the failure to secure results, and the occurrence of
Ordinarily, only physicians and surgeons of skill and experience are something more unusual and not ordinarily found if the service or treatment
competent to testify as to whether a patient has been treated or operated rendered followed the usual procedure of those skilled in that particular
upon with a reasonable degree of skill and care. However, testimony as to practice. It must be conceded that the doctrine of res ipsa loquitur can have
the statements and acts of physicians and surgeons, external no application in a suit against a physician or surgeon which involves the
appearances, and manifest conditions which are observable by any one merits of a diagnosis or of a scientific treatment.[38] The physician or
may be given by non-expert witnesses.[29] Hence, in cases where the res surgeon is not required at his peril to explain why any particular diagnosis
ipsa loquitur is applicable, the court is permitted to find a physician was not correct, or why any particular scientific treatment did not produce
negligent upon proper proof of injury to the patient, without the aid of expert the desired result.[39] Thus, res ipsa loquitur is not available in a
testimony, where the court from its fund of common knowledge can malpractice suit if the only showing is that the desired result of an operation
determine the proper standard of care.[30] Where common knowledge and or treatment was not accomplished.[40] The real question, therefore, is
experience teach that a resulting injury would not have occurred to the whether or not in the process of the operation any extraordinary incident
patient if due care had been exercised, an inference of negligence may be or unusual event outside of the routine performance occurred which is
drawn giving rise to an application of the doctrine of res ipsa loquitur beyond the regular scope of customary professional activity in such
without medical evidence, which is ordinarily required to show not only operations, which, if unexplained would themselves reasonably speak to
what occurred but how and why it occurred.[31] When the doctrine is the average man as the negligent cause or causes of the untoward
appropriate, all that the patient must do is prove a nexus between the consequence.[41] If there was such extraneous interventions, the doctrine
particular act or omission complained of and the injury sustained while of res ipsa loquitur may be utilized and the defendant is called upon to
under the custody and management of the defendant without need to explain the matter, by evidence of exculpation, if he could. (Ramos vs CA
produce expert medical testimony to establish the standard of care. Resort G.R. No. 124354. December 29, 1999)
to res ipsa loquitur is allowed because there is no other way, under usual
and ordinary conditions, by which the patient can obtain redress for injury Requisites of Res Ipsa Loquitor Doctrine:
suffered by him.
1.The accident must be of a kind which ordinarily does not occur in
Thus, courts of other jurisdictions have applied the doctrine in the following the absence of someones negligence;
situations: leaving of a foreign object in the body of the patient after an 1. It must be caused by an agency or instrumentality within the
operation,[32] injuries sustained on a healthy part of the body which was exclusive control of the defendant;
not under, or in the area, of treatment,[33] removal of the wrong part of the 2. It must not have been due to any voluntary action or contribution
body when another part was intended,[34] knocking out a tooth while a on the part of the plaintiff.
patients jaw was under anesthetic for the removal of his tonsils,[35] and
Some cases wherein the Doctrine of Res Ipsa Loquitor has been substitute for, and relieves a plaintiff of, the burden of producing specific
applied: proof of negligence.[19] In other words, mere invocation and application of
the doctrine does not dispense with the requirement of proof of negligence.
1. Objects left in the patients body at the time of caesarian It is simply a step in the process of such proof, permitting the plaintiff to
section; present along with the proof of the accident, enough of the attending
2. Injury to a healthy part of the body; circumstances to invoke the doctrine, creating an inference or presumption
3. Removal of a wrong part of the body when another part wad of negligence, and to thereby place on the defendant the burden of going
intended; forward with the proof.[20] Still, before resort to the doctrine may be
4. Infection resulting from unsterilized instruments; allowed, the following requisites must be satisfactorily shown:
5. Failure to take radiographs to diagnose a possible fracture;
1. The accident is of a kind which ordinarily does not occur in the absence
of someones negligence;
Instances where the Doctrine of Res Ipsa Loquitor does not apply:
2. It is caused by an instrumentality within the exclusive control of the
1. Where the Doctrine of Calculated Risk is applicable; defendant or defendants; and
When an accepted method of medical treatment involves hazards
which may produce injurious results regardless of the care 3. The possibility of contributing conduct which would make the plaintiff
exercised by the physician. responsible is eliminated.[21]
2. Bad Result Rule;
3. Honest Errors of judgment as to Appropriate Procedure; In the above requisites, the fundamental element is the control of the
4. Mistake in the Diagnosis. instrumentality which caused the damage.[22] Such element of control
must be shown to be within the dominion of the defendant. In order to have
- In most medical malpractice suits, there is a necessity for a the benefit of the rule, a plaintiff, in addition to proving injury or damage,
physician to give his expert medical opinion to prove whether acts must show a situation where it is applicable, and must establish that the
or omissions constitute medical negligence. This doctrine has been essential elements of the doctrine were present in a particular incident.[23]
regarded as rule of sympathy to counteract the conspiracy of
silence Medical malpractice[24]cases do not escape the application of this
doctrine. Thus, res ipsa loquitur has been applied when the circumstances
The doctrine of res ipsa loquitur is simply a recognition of the postulate attendant upon the harm are themselves of such a character as to justify
that, as a matter of common knowledge and experience, the very nature of an inference of negligence as the cause of that harm.[25] The application
certain types of occurrences may justify an inference of negligence on the of res ipsa loquitur in medical negligence cases presents a question of law
part of the person who controls the instrumentality causing the injury in the since it is a judicial function to determine whether a certain set of
absence of some explanation by the defendant who is charged with circumstances does, as a matter of law, permit a given inference.[26]
negligence.[15] It is grounded in the superior logic of ordinary human
experience and on the basis of such experience or common knowledge, Although generally, expert medical testimony is relied upon in malpractice
negligence may be deduced from the mere occurrence of the accident suits to prove that a physician has done a negligent act or that he has
itself.[16] Hence, res ipsa loquitur is applied in conjunction with the doctrine deviated from the standard medical procedure, when the doctrine of res
of common knowledge. ipsa loquitur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the proof of
However, much has been said that res ipsa loquitur is not a rule of negligence.[27] The reason is that the general rule on the necessity of
substantive law and, as such, does not create or constitute an independent expert testimony applies only to such matters clearly within the domain of
or separate ground of liability.[17] Instead, it is considered as merely medical science, and not to matters that are within the common knowledge
evidentiary or in the nature of a procedural rule.[18] It is regarded as a of mankind which may be testified to by anyone familiar with the facts.[28]
mode of proof, or a mere procedural convenience since it furnishes a Ordinarily, only physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been treated or operated rendered followed the usual procedure of those skilled in that particular
upon with a reasonable degree of skill and care. However, testimony as to practice. It must be conceded that the doctrine of res ipsa loquitur can have
the statements and acts of physicians and surgeons, external no application in a suit against a physician or surgeon which involves the
appearances, and manifest conditions which are observable by any one merits of a diagnosis or of a scientific treatment.[38] The physician or
may be given by non-expert witnesses.[29] Hence, in cases where the res surgeon is not required at his peril to explain why any particular diagnosis
ipsa loquitur is applicable, the court is permitted to find a physician was not correct, or why any particular scientific treatment did not produce
negligent upon proper proof of injury to the patient, without the aid of expert the desired result.[39] Thus, res ipsa loquitur is not available in a
testimony, where the court from its fund of common knowledge can malpractice suit if the only showing is that the desired result of an operation
determine the proper standard of care.[30] Where common knowledge and or treatment was not accomplished.[40] The real question, therefore, is
experience teach that a resulting injury would not have occurred to the whether or not in the process of the operation any extraordinary incident
patient if due care had been exercised, an inference of negligence may be or unusual event outside of the routine performance occurred which is
drawn giving rise to an application of the doctrine of res ipsa loquitur beyond the regular scope of customary professional activity in such
without medical evidence, which is ordinarily required to show not only operations, which, if unexplained would themselves reasonably speak to
what occurred but how and why it occurred.[31] When the doctrine is the average man as the negligent cause or causes of the untoward
appropriate, all that the patient must do is prove a nexus between the consequence.[41] If there was such extraneous interventions, the doctrine
particular act or omission complained of and the injury sustained while of res ipsa loquitur may be utilized and the defendant is called upon to
under the custody and management of the defendant without need to explain the matter, by evidence of exculpation, if he could.
produce expert medical testimony to establish the standard of care. Resort
to res ipsa loquitur is allowed because there is no other way, under usual DOCTRINE OF ASSUMPTION OF RISK
and ordinary conditions, by which the patient can obtain redress for injury
suffered by him. Predicated upon knowledge and informed consent, anyone who
voluntarily assumes the risk of injury from a known danger, if
Thus, courts of other jurisdictions have applied the doctrine in the following injured, is barred from recovery.
situations: leaving of a foreign object in the body of the patient after an violenti non fit injuria, which means that a person who assents
operation,[32] injuries sustained on a healthy part of the body which was and was injured is not regarded in law to be injured.
not under, or in the area, of treatment,[33] removal of the wrong part of the
body when another part was intended,[34] knocking out a tooth while a Doctrine of assumption of risk. The precept that denotes that a person
patients jaw was under anesthetic for the removal of his tonsils,[35] and who knows and comprehends the peril and voluntarily exposes himself or
loss of an eye while the patient plaintiff was under the influence of herself to it, although not negligent in doing so, is regarded as engaging in
anesthetic, during or following an operation for appendicitis,[36] among an assumption of the risk and is precluded from a recovery for an injury
others. ensuing therefrom. Also called Doctrine of volenti non fit injuria.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been
measurably enlarged, it does not automatically apply to all cases of DOCTRINE OF LAST CLEAR CHANCE
medical negligence as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed negligence. Res ipsa - A physician who has the last clear chance of avoiding damage or
loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule injury but negligently fails to do is liable.
to be cautiously applied, depending upon the circumstances of each case. - It implies thought, appreciation, mental direction and lapse of
It is generally restricted to situations in malpractice cases where a layman sufficient time to effectually act upon impulse to save the life or
is able to say, as a matter of common knowledge and observation, that the prevent injury to another.
consequences of professional care were not as such as would ordinarily
have followed if due care had been exercised.[37] A distinction must be Doctrine of last clear chance. Also known as the Doctrine of
made between the failure to secure results, and the occurrence of discovered peril or the Humanitarian doctrine. A doctrine in the law of
something more unusual and not ordinarily found if the service or treatment torts which states that the contributory negligence of the party injured will
not defeat the claim for damages if it is shown that the defendant might, by
the exercise of reasonable care and prudence, have avoided the
consequences of the negligence of the injured party. In such cases, the
person who had the last clear chance to avoid the mishap is considered in
law solely responsible for the consequences thereof. [Ong v. Metropolitan
Water District, 104 Phil. 405 (1958)]

DOCTRINE OF SUPERVENING NEGLIGENCE Also Doctrine of


discovered peril. The doctrine x x x to the effect that where both parties are
negligent, but the negligent act of one is appreciably later in time than that
of the other, or when it is impossible to determine whose fault or negligence
should be attributed to the incident, the one who had the last clear
opportunity to avoid the impending harm and failed to do so is chargeable
with the consequences thereof. [Picart v. Smith, 37 Phil. 809]. [A]n
antecedent negligence of a person does not preclude the recovery of
damages for supervening negligence of, or bar a defense against the
liability sought by, another if the latter, who had the last fair chance, could
have avoided the impending harm by the exercise of due diligence.
[Pantranco North Express, Inc. v. Baesa, 179 SCRA 384].

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.