Legal Medicine

LEGAL MEDICINE
• -branch of medicine that deals with the

application of medical knowledge to the purposes
of law and in the administration of justice
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MEDICAL
JURISPRUDENCE
• deals with the aspect of law and legal

concepts in relation with the practice of
medicine
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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.
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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.
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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.
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• “…….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.”
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SOURCES OF LAW
• Constitution
• Laws enacted by the legislative body
• Decrees, Orders, Proclamation, Letters, CA, BP, RA
• Administrative acts, orders, Rules and Regulation
• Local customs
• Generally accepted principles of International law
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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.
• The right to regulate the practice of medicine is
based on the police power of the state.
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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, control and regulation of the practice of medicine
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BOARD OF MEDICAL EDUCATION
• Composition:
• Chairman - Secretary of Education
• Members - Secretary of Health
• Director, Bureau of Private Schools
• Chairman, Board of Medicine
• Representative, PMA
• Council of Deans,APMC
• Dean, UP-College of Medicine
•
• Functions:
• 1. To determine and prescribe the requirements for admission into a recognized
college of Medicine;
• 2. To determine and prescribe requirements for the minimum physical facilities;
• 3. To determine and prescribe the minimum number and qualifications of teaching
personnel;
• 4. To determine and prescribe the minimum required curriculum;
• 5. To authorize the implementation of experimental curriculum;
• 6. To accept applications for admission to a medical school;
• 7. To select, determine and approve hospitals for training;
• 8. To promulgate, prescribe and enforce the necessary rules and regulations.
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PROFESSIONAL REGULATIONS COMMISSION
• Composition:
Commissioner
Two Associate Commissioner
• Exercise of Power and Functions of the Commission

-exercise general administrative, executive and policy-
making functions for the whole agency
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BOARD OF MEDICINE
• Composition:
• Six members appointed by the president from a
• list submitted by the Executive Council of the PMA.
•
• Qualifications:
• - Natural-born citizen;
• - Duly-registered physician;
• - 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;
• - Not a member of any faculty of any medical school (including any
pecuniary interest).
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Powers, Functions and Responsibilities:
• 1. To determine and prepare the contents of the licensure examinations;

• 2. To promulgate such rules and regulations for the proper conduct of the
examinations, correction and registration;
• 3. To administer oath;
• 4. To study the conditions affecting the practice of medicine;
• 5. To investigate violations, issue summons, subpoena and subpoena duces
tecum;
• 6. To conduct hearings or investigations of administrative cases filed before
them;
• 7. To promulgate decisions on such administrative cases subject to the review
of the Commission;
• 8. To issue certificate of registration;
• 9. To suspend, revoke or reissue certificate of registration for causes provided
by law or by the rules and regulations promulgated;
• 10.To promulgate, with the approval of PRC, rules and regulations in harmony
with the provisions of the Medical Act of 1959 and necessary for the proper
practice of medicine. Ow Meng 13
ADMISSION TO THE PRACTICE OF MEDICINE
Prerequisites:
• 1. Minimum age requirement
• - at least 21 years of age
• 2. Proper Educational Background
Requirements for Admission in the College of Medicine
Holder of a Bachelor’s degree;
Not convicted of any crime involving moral turpitude;
Certificate of Eligibility from the Board of Medical Education;
Good moral character .
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• 3. Examination Requirements
- must have passed the corresponding Board Examination
• Preliminary Examination
-At least 19 years of age;
- Of good moral character;
-Have completed the first two years of the medical course;
• 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).
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• 4. 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;
-Found guilty of immoral or dishonorable conduct after investigation
by the Board of Medicine;
-Declared to be of unsound mind.
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Scope of Examination:
• Preliminary - Anatomy and Histology
• Physiology
• Biochemistry
• Microbiology and Parasitology
• Final - Pharmacology and Therapeutics
• Pathology
• Medicine
• Obstetrics and Gynecology
• Pediatrics and Nutrition
• Surgery and Ophthalmology,
• Otorhinolaryngology
• Preventive Medicine and Public Health
• Legal Medicine, Ethics and Medical
• Jurisprudence
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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, that is, 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.
• It is diagnosing and applying and the usage of
medicine and drugs for curing, mitigating, or
relieving bodily disease or conditions.
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ACTS CONSTITUTING THE
PRACTICE OF MEDICINE (pursuant
to Sec.10, Art. III of the Medical
Act of 1959 as amended):
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• A) who shall for compensation, fee, reward in any form paid to him
directly or through another, or even without the same, physically
examine any person, and diagnose, treat, operate or prescribe any
remedy for human disease, injury, deformity, physical, mental,
psychical condition or any ailment, real or imaginary, regardless of
the nature of the remedy or treatment administered, prescribed or
recommended;
• B) who shall by means of signs, cards, advertisement, written or
printed matter, or through the radio, television or any other means
of communication, either offer or undertake by any means or
method to diagnose, treat, operate, or prescribe any remedy for
human disease, injury, deformity, physical, mental or psychical
condition;
• C) who shall falsely use the title of M.D. after his name, shall be
considered as engaged in the practice of medicine.
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• By DECISIONS OF COURTS are not considered
to constitute practice of medicine:
• a) One who takes bp reading;
• b) Application of medicated massage;
• c) Hospital;
• d) Nurse anesthesist
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Exemptions
• By PROVISIONS OF LAW are not considered to constitute practice of

medicine (Sec.11, Art. III, Medical Act of 1959 as amended):
• a) Any medical student duly enrolled in an approved medical college;
• b) dentist;
• c) physiotherapist;
• d) optometrist;
• 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;
• 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.
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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);
• -Acted in pursuance of his religious belief and with the
tenets of his church he professes, not deemed to be a
practice of medicine but part of his religious freedom.
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ILLEGAL PRACTICE OF MEDICINE
• Practice of medicine by any person not qualified and not

duly-admitted to perform medical acts in compliance with
law.
Penalties
• Pursuant to Sec.28, Art. IV, 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, or by both
such fine and imprisonment, in the discretion of the court.
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• 1. Those who have complied with the
prerequisites to the practice of medicine in
accordance with Sec. 8, Art. III, Medical Act of
1959 as amended;
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• 2. Those who can have limited practice without any
certificate of registration in accordance with Sec.12,
Art. III, Medical Act of 1959 as amended:
Exclusive consultation in specific and definite cases;

Attached to international bodies to perform certain definite work in
the Phils;
Commissioned medical officers stationed in the Phils in their own
territorial jurisdiction;
Exchange professors in special branches of medicine;
Medical students who have completed the first four years of
medical course, graduates of medicine and registered nurses who
may be given limited and special authorization by the DOH;
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• 3. “Balikbayan” Physicians pursuant to PD 541,
Allowing Former Filipino Professionals to Practice
Their Respective Professions in the Philippines
• Proviso:
• - Of good standing prior to their departure and in
their adopted country;
• - Have registered with PRC and paid their
professional fee;
• - Pay the corresponding income tax;
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• 4. Foreign physicians qualified to practice by
Reciprocity Rule or by endorsement;
• 5. Medical Students pursuant to Sec.11(a) and
Sec.12(d), Art.III, Medical Act of 1959 as
amended;
• 6. Limited practitioners of medicine
• - Those that are governed by specific licensure
laws
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Rationale why artificial persons
cannot practice medicine
• -Cannot be subjected to licensure examinations as

required by law;
• -Practice of medicine may be employed and
controlled by unqualified physicians;
• -Professional relationship between the patient and
the physician will be impaired;
• -Deprivation of free choice of physicians .
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PHYSICIAN
• “…..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, is legally licensed to
practice medicine by the responsible authorities and
is capable of undertaking the prevention, diagnosis,
and treatment of human illness by the exercising
independent judgment and without supervision.”
(WHO)
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• 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.”
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Purpose
• To prescribe the permanent framework of a

system of government, to assign to the several
departments their respective powers and
duties, and to establish certain first principles
on which the government is founded. (11Am.
Jur. 606)
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ESSENTIAL PARTS OF A CONSTITUTION
Constitution of Liberty
Constitution of Government
Constitution of Sovereignty
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• AMENDMENT isolated or piecemeal change in
the constitution while REVISION is the revamp
or the rewriting of the entire instrument
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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)
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Nature of the relationship
• Consensual - based on mutual consent both

parties
• Fiduciary - based on mutual trust and confidence
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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
•
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Forms of Physician-Patient Relationship
1. Expressed – explicitly stated orally or in writing
2.Implied – the existence can be inferred from the acts

of the contracting parties. Inferred by law as a matter
of reason and justice for their acts or conduct
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Some Instances where there is no Physician-Patient
Relationship by DECISIONS OF COURTS
• 1. Pre-employment PE for purposes of determining

whether an applicant is suitable for employment;
• 2. PE for eligibility for insurance;
• 3. Physician appointed by court to examine the accused;
• 4. In performing an autopsy;
• 5. Casual consultation in an unordinary place.
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• PSYCHOLOGICAL PATTERNS OF PHYSICIAN-PATIENT
RELATIONSHIP
• ACTIVITY-PASSIVITY RELATION
• No interaction between physician and patient
because the patient is unable to contribute activity. This
is characteristic in an emergency cases when the patient
is unconscious.
• GUIDANCE-COOPERATION RELATION
• Patient is conscious and suffering from pain, anxiety
and other distressing symptoms, he seeks help and
willing to cooperate. The physician is in a position of
trust.
• MUTUAL PARTICIPATION RELATION
• It is in the nature of a negotiated agreement
between equal parties.
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DUTIES and OBLIGATIONS Imposed on
the Physician in the Physician-Patient
Relationship
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• 1. He should posses the knowledge and skill of
which an average physician is concerned;
• General practitioner vs Specialist
• 2. He should use such knowledge and skill with
ordinary care and diligence;
– “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” - the diligence is determined on what is
applicable on a national standard basis
• 3. He is obliged to exercise the best judgment;
• 4. He has the duty to observe utmost good faith.
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N.B.
• - Physician-Patient relationship does not imply
guaranty or any promise that the treatment will
be successful
• - it does not imply any promise or guaranty that
the treatment will benefit the patient
• - it does not imply any promise or guaranty that
the treatment will produce certain result
• - it does not promise or guaranty that the
treatment will not harm the patient
• - it does not promise that the physician will not
commit errors in an honest way
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DUTIES and OBLIGATIONS Imposed on the
Patient in the Course of the Physician-Patient
Relationship
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• 1. He must give an honest medical history;
• 2. He must inform the physician of what
occurred in the course of the treatment;
• 3. He must cooperate and follow the
instructions, orders and suggestions of the
physician
• 4. He must state whether he understands the
contemplated course of action;
• He must exercise the prudence to be expected of
an ordinary patient under the same
circumstances.
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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.
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TERMINATION
• It is the time when the duties and obligations by
a physician to his patient ceases. The following
are some ways of termination of the
relationship:
– 1.Recovery of the patient or when the physician considers that his
medical services will no longer be beneficial to the patient;
– 2. Withdrawal of the physician provided: a) with consent of the patient,
and b) patient is given ample time and notice;
– 3. Discharge of the physician by the patient;
– 4. Death of either party;
– 5. Incapacity of the physician
– 6. Fulfillment of the obligations stipulated in the contract;
– 7. In emergency cases, when the physician of choice of the patient is
already available or when the condition of emergency ceases;
– 8. Expiration of the period as stipulated;
– 9. Mutual agreement for its termination.
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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. III, bill of rights, Philippine
Constitution 1987 Ow Meng 48
RIGHT TO CHOOSE PATIENTS
• - Any person who is given right to practice medicine is not obliged to

practice medicine.
• - Cannot be compelled to accept professional
employment.
•
• NB: The law does not give any qualification the right of the
physician to choose his patient, however, the Code of Medical Ethics
and RA 6615 provides otherwise in cases of emergency.
•
• Related provisions
• Art II, Sec.2 Code of Ethics
• “xxx…free to choose whom he will serve…xxx..always respond
to any request for his assistance in emergency….xxx”
•
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• Art. II, Sec.3 Code of Ethics
• “In cases of emergency, xxx ….a physician should administer at least
first aid treatment and then refer to a more qualified and competent
physician ……xxx”
• Sec.1 RA 6615
• “All government and private hospitals…xxx .are required to
render immediate emergency medical assistance…xxx.”
• Sec.24 No.12, Medical Act of 1959

• “”xxx…….Although the ethical rule obliges a physician to attend
to an emergency, his failure to respond to it may not make him liable
if in so doing, there is a risk to his life.
• 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
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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, religion, professional
ethics, medical society, law, contract
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RIGHT TO AVAIL OF HOSPITAL
SERVICES
• RIGHT TO DERTEMINE THE APPROPRIATE
MANAGEMENT PROCEDURE
• Doctrine of Superior Knowledge
• - 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.
•
• RIGHT OF WAY WHILE RESPONDING TO THE CALL OF
EMERGENCY
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RIGHT OF EXEMPTION FROM
EXECUTION OF INSTRUMENTS
AND LIBRARY
Rule 39, Sec.12, Rules of
Court
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• 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
• - 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.
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RIGHT TO COMPENSATION
• - Based on the physician-patient

contractual relationship;
• - Existence of friendship does not imply
gratuitous services.
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Art IV, Sec. 2, Code of Ethics
• “…should willingly render gratuitous service to a
colleague, to his wife and minor children or even
parents provided the latter are aged and being
supported by the colleague. He should however, be
furnished the necessary traveling
expenses…xxx…this provision shall not apply to
physicians who are no longer in the active
practice….xxx.”
Doctrine of Unjust Enrichment

- no one must enrich himself at the expense of others
- “service rendered service paid”
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Kinds of Medical Fees:
• 1. Simple Contractual Fee – specifically stating
the value of such medical service, either orally or
in writing
• 2. Retainer Fee – measured by the space of time
rendered by patient
• 3. 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, and the agent will
share in the medical fee.
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Art. III, Sec 5, Code of Ethics
“xxx….solicitation of patients, directly or
indirectly, through solicitors or agents, is
unethical.”
• 1. Straight Fee – for the amount tendered by the

patient to the physician, the latter shall be
responsible for the payment of hospital bill, lab
fees, medicines, and other incidental expenses;
• - this kind of fee is unethical because the
amount wagers with the unforceable
contingencies .
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Method of Collection of Payment for
Medical Services
• 1. Extra judicial – billing or referral to a bill

collection agency
• 2. Judicial methods
Facts to be Proven in Court
a) Physician employed is duly qualified and licensed;

b) The physician has rendered professional service to the patient;
c) The professional fee demanded is reasonable;
d) The person liable for the payment is the defendant.
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• The obligation to pay devolves on the patient
himself provided he is of legal age, of sound
mind and has the capacity to enter into a
contractual relation.
• If the patient dies or becomes legally
incapacitated to pay, medical fee shall be made
from the following persons in order:
1. spouse;
2. descendants, of the nearest degree;
3. ascendants, of the nearest degree;
4. brothers and sisters.
• NB.
• Implied promise to pay the physician by the benefactor
of the medical services rendered in emergency cases.
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Instances where the physician cannot
recover professional fees:
1. Agreement that the service is gratuitous;

2. In government charity hospitals, health centers and other
similar health units;
3. Rendered in private charitable institutions if expressly
gratuitous to the indigent patients;
4. Waiver on the part of the physician;
5. Breach of contract;
6. When the physician cannot charge the patient pursuant
to the Code of Ethics;
7. Those covered by Phil health;
8. Medical services rendered under a contract of
employment unless expressly provided otherwise.
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RIGHTS OF PATIENTS
• 1. Right to give consent to diagnostic and
treatment procedures
• 2. Right to religious belief
• 3. Right of privacy
• 4. Right to disclosure of information
• 5. Right to confidential information
• 6. Right to choose his physician
• 7. Right of treatment
• Right to refuse necessary treatments
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RIGHT TO GIVE CONSENT TO DIANOSTIC
PROCEDURES
• Obligations of the Physician to Inform the Patient:
• 1. Diagnosis
• 2. General nature of the contemplated procedure
• 1. Risk involved
• 2. Prospect of success
• 3. Potential danger if not applied
• 4. Alternative methods of treatment
•
• “….patient is the final arbiter of what must be done
with his body.”
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Bases of Consent
• 1. The physician-patient relationship is
fiduciary in nature.
• 2. Patient’s right to self-determination.
• 3. Contractual relationship.
Ow Meng 64
Purposes
• 1.To protect the patient from
unnecessary/unwarranted procedure applied
to him without knowledge
• 2. To protect the physician from any
consequences for failure to comply with legal
requirements
Ow Meng 65
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
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Requisites of a Valid Consent
• 1. Informed or enlightened consent
• 2. Voluntary
• 3. Subject matter must be legal
Ow Meng 67
Forms of consent
• 1. Expressed consent – written or oral
• 2. Implied consent may be deduced from the
conduct of the patient
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Scope of the Consent
• 1. General or Blanket consent

• 2. Limited or conditional consent
• 3. Non-liability or exculpatory clause
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 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. Nature of his condition;
• 2. Natured of proposed treatment or
procedure;
• 3. Possible alternative methods;
• 4. Risk involved;
• 5. Chances of success or failure
• Consent must be given freely or voluntarily
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• Persons Who Can Give consent
– 1. Patient ;
– 2. If patient is minor, consent must be obtained from the
parents;
– 3. In the absence of the parents, consent of the grandparents
must be obtained, paternal grandparents having preference;
– 4. In the absence of parents and grandparents, eldest brother or
sister, provided one is of age and not disqualified by law to give
consent;
– 5. Other person who may give consent having substitute
parental authority.
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 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.
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NB:
• - consent of minor is not valid if the procedure will
not benefit him
• - expressed refusal of a minor to surgery shall not
prevail over the existing emergency
• - Doctrine of parens patriae , the court may grant
consent for the minor.
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RIGHT TO RELIGIOUS BELIEF
• - Art. III , Sec. 5, Philippine Constitution
• “No law shall be made respecting an
establishment of religion or prohibiting the free
exercise therof. The free exercise and enjoyment of
religious profession and worship, without
discrimination or preference, shall forever be
allowed. No religious test shall be required for the
exercise of civil or political rights.”
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RIGHT OF PRIVACY
• RIGHT OF DISCLOSURE OF INFORMATION
•
• the physician-patient relationship being fiduciary in
nature, 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
Ow Meng 75
Art. 1339, Civil Code states that
“xxx……failure to disclose pacts, when
there is duty to reveal them, as when the
parties are bound by confidential elations,
constitutes fraud.”
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RIGHT OF CONFIDENTIAL INFORMATION
• Statutory Privileged Communication

• Pursuant to the Rules of Court, Rule 130, Sec. 24(c), a person
authorized to practice medicine, surgery or obstetrics cannot in a civil case,
without the consent of the patient, be examined as to any information
which he may have acquired in attending such patient in a professional
capacity, which information was necessary to enable him to act in that
capacity, and which would blacken the character of the patient.
• Ethical/Professional Confidential Information

Pursuant to Art. II,Sec.6, 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 or that may be communicated to him in his
professional relation with his patients, even after death. He should never
divulge this confidential information, or anything that may reflect upon the
moral character of the person involved, except when it is required in the
interest of justice, public health or public safety.
Ow Meng 77
• Some instances where confidentiality is not
applicable:
– 1. When such disclosure is necessary to serve the
best interest of justice;
– 2. When the disclosure will serve public health
and safety;
– 3. When the patient waives its confidentiality.
Ow Meng 78
RIGHT TO CHOOSE HIS PHYSICIANS
RIGHT TO TREATMENT
• - In emergency cases the patient has the right to treatment.
•
• Sec. 1, 1st par, RA 6615
• Provides that “xxx….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.”
•
• Art II, Sec.3 of the Code of Medical Ethics
• “In cases of emergency, wherein immediate action is necessary,
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.”
Ow Meng 79
RIGHT TO REFUSE TREATMENT
• - In the legal sense, every man of adult age and of sound mind has
the right to determine what must be done in his own body. A man is
the master of his own self and may expressly prohibit a life-saving
surgery or medical treatment.
• - Doctrine of parens patria, the State has the right to assume

guardianship when the child is neglected by the parents to have the
child treated, and parents have no right to base it on religious beliefs
or any other grounds.
• - When the law provides for treatment, the patient has no right to
refuse treatment
• - The social commitment of the physician is to sustain life and relieve

suffering. Where the performance of one’s duty conflicts with the
other, the choice of the patient, or his family or legal representative
if incompetent to act on his own behalf, should prevail. In the
absence of the patient’s choice or authorized proxy, the physician
must act in the best interest Ow
of Meng
the patient 80
LIABILITIES OF PHYSICIAN
• ADMINISTRATIVE
– Right to practice is temporarily withdrawn from the physician;
– 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;
– Penalty: reprimand, suspension, to revocation of license.
• CRIMINAL
– An act or omission which constitute a crime by the physician;
– Laws: Revised Penal Code and other special laws;
– Penalty: imprisonment and/or fine.
• 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;
– Laws. Civil Code of the Philippines and other related laws;
– Art. 100, RPC states that “ Every person criminally liable is civilly
liable.”Penalty: damagesOw Meng 81
ADMINISTRATIVE LIABILITIES
• Quantum of evidence needed: substantial
evidence, such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion
• Administrative Due Process:

– 1. Right to hearing;
– 2. Tribunal must consider the evidence presented;
– 3. Decision must have something to support itself;
– 4. Evidence must be substantial;
– 5. Decision must be based on the evidence adduced at the hearing, or
at least contained in the record and disclosed to the parties;
– 6. The Board or its judges must act on its or their independent
consideration of the facts and the law of the case, and not simply
accept the views of a subordinate in arriving at a decision. (Ang Tibay
vs. CIR)
Ow Meng 82
GROUNDS FOR ADMINISTRATIVE LIABILITIES
Sec.24, Art.III, Medical Act of 1959 as
amended
Ow Meng 83
 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 habit-forming
drug rendering him incompetent to practice medicine.
–
Ow Meng 84
 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.
Ow Meng 85
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.
Ow Meng 86
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)
Ow Meng 87
• Presumption of Innocence and Equipoise Rule
• Conviction of a physician, aside from

imprisonment and/or fine, his registration may be
cancelled or revoked if:
– a. The law imposes revocation of the license;
– b. The crime wherein the physician was found guilty involved
moral turpitude.
Ow Meng 88
Incidental to the practice of medicine:
• Imprudence and Negligence- Art.365, Revised Penal Code

• “Any person who, by reckless imprudence, shall commit any
act which, had it been intentional, would constitute a grave felony,
shall suffer the penalty of arresto mayor in its maximum period to
prision correctional in its medium period, if it would have
constituted a less grave felony, the penalty of arresto mayor in its
minimum periods shall be imposed; if it would have constituted a
light felony, the penalty of arresto menor shall be imposed…xxx.”
•
• Imprudence – deficiency of action or failing to take the necessary
precaution once they are foreseen.
•
Ow Meng 89
• Reckless imprudence – voluntary, without malice, 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, taking into consideration his
employment or occupation, degree of intelligence, physical
condition and other circumstances regarding persons, time and
place.
•
• 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.
•
• Negligence- indicates a deficiency of perception or when the
wrongful act maybe avoided by paying proper attention and
using due diligence in foreseeing them.
Ow Meng 90
CIVIL LIABILITIES
• A civil suit filed against physician and/or hospitals is

premised on recovery of damages for their wrongful
act or of employees.
Ow Meng 91
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, the negligence of the
doctor is not an issue, for if the doctor makes contract to
effect a cure and fails to do so, he is liable for breach of
contract even though he uses the highest possible
professional skill.
Ow Meng 92
• 2. Tort(Quasi-delict )
• - Legal wrongdoing independent of a contract
• - 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.
Ow Meng 93
• Art. 2176 of the Civil Code provides that
“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 quasi-delict…xxx.”
Ow Meng 94
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, skill and diligence, as to treatment in a manner contrary
to accepted standards of medicine resulting to injury to the patient.
• Elements:
• 1. The physician has a duty to the patient;
• 2. The physician failed to perform such duty to his
patient;
• 3. As a consequence of the failure, injury was sustained
by the patient;
• 4. The failure of the physician is the proximate cause of
the injury sustained by the patient.
• Criminal medical malpractice, the act or omission complained of must

be punishable by law at the time of commission or omission.
Ow Meng 95
• Proximate Cause – is that cause, which,
in natural continuous sequence,
unbroken by an efficient intervening
cause, produces the injury and without
which the result would not have
occurred.
•
– 1. There must be a direct physical connection between
the wrongful act of the physician and the injury
sustained by the patient.
– 2. 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.
– 3. The result must be the natural continuous and
probable consequences.
Ow Meng 96
• Doctrine of Efficient Intervening
Cause
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.
Ow Meng 97
LEGAL PRINCIPLES AND DOCTRINES APPLIED IN
MEDICAL MALPRACTICE CASES
• Doctrine of Vicarious Liability

–o Doctrine of Ostensible Agent
–o Borrowed Servant Doctrine
–o 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
Ow Meng 98
DOCTRINE OF VICARIOUS LIABILITY
• -Doctrine of Imputed Negligence/Command

Responsibility.
• -Vicarious liability means the responsibility of a
person, who is not negligent, for the wrongful
conduct or negligence of another.
Ow Meng 99
• Art. 2180, 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
• “….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, 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.”
Ow Meng 100
DOCTRINE OF OSTENSIBLE AGENT
• - In cases wherein the employees are at the same

time are independent contractors of the hospital;
• - 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).
Ow Meng 101
BORROWED SERVANT DOCTRINE
• Ordinarily, resident physicians, nurses and other personnel of

the hospital are employees or servants of the hospital;
• In some instances, they are under the temporary supervision
and control of another other than their employer while
performing their duties;
• By fiction of law, they are deemed borrowed from the
hospital by someone and for any wrongful act committed by
them during the period, their temporary employer must be
held liable for the discharge of their acts and duties;
• 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.
Ow Meng 102
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.
Ow Meng 103
REASONS FOR APPLICATION OF THE DOCTRINE OF
VICARIOUS LIABILITY
• 1. Deep pocket theory;

• 2. The employer has the power to select his
employee and to control his acts;
• 3. Since the employer benefits monetarily from
the employee, the employer has to bear the loss
when neither the employer nor the employee is
at fault;
• 4. To treat them as operating expense.
Ow Meng 104
DOCTRINE OF RES IPSA LOQUITOR
– - “The thing speaks for itself”; nature of the wrongful act or injury
is suggestive of negligence.
– - 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.
• Requisites of Res Ipsa Loquitor Doctrine:

• 1.The accident must be of a kind which ordinarily does not
occur in the absence of someone’s negligence;
• 1. It must be caused by an agency or instrumentality
within the exclusive control of the defendant;
• 2. It must not have been due to any voluntary action or
contribution on the part of the plaintiff.
Ow Meng 105
Some cases wherein the Doctrine of Res Ipsa
Loquitor has been applied:
• 1. Objects left in the patient’s body at the time
of caesarian section;
• 2. Injury to a healthy part of the body;
• 3. Removal of a wrong part of the body when
another part wad intended;
• 4. Infection resulting from unsterilized
instruments;
• 5. Failure to take radiographs to diagnose a
possible fracture;
Ow Meng 106
Instances where the Doctrine of Res Ipsa
Loquitor does not apply:
• 1. 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.
• 2. Bad Result Rule;
• 3. Honest Errors of judgment as to Appropriate Procedure;
• 4. Mistake in the Diagnosis.
•
• - In most medical malpractice suits, there is a necessity for a
physician to give his expert medical opinion to prove whether
acts or omissions constitute medical negligence. This doctrine
has been regarded as rule of sympathy to counteract the
‘conspiracy of silence’
Ow Meng 107
• According to one of the most distinguished jurist(Canada),
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.”
•
• “…………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.
Initiative would be stiffed and confidence shaken.”
•
Ow Meng 108
DOCTRINE OF CONTRIBUTORY NEGLIGENCE
• - Doctrine of Common Fault

• - It has been defined as conduct on the part of the
plaintiff or injured party, contributing as a legal cause
to the harm he has suffered, which falls below the
standard which he is required to conform to his own
protection.
• - It is the act or omission amounting to want of care
on the part of the complaining party which,
concurring with the defendant’s negligence, is the
proximate cause of the injury.
Ow Meng 109
Related Civil Code Provisions
• Art. 2179, Civil Code
• “ When the plaintiff’s 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 injury being the defendant’s lack of due
care, the plaintiff may recover damages, but the
court may mitigate the damages to be awarded.”
Ow Meng 110
Art.2214, Civil Code
• In quasi-delicts, the contributory negligence of
the plaintiff shall reduce the damages that he may
recover.”
Some Instances where there is contributory negligence:

• 1. Failure to give the physician an accurate history;
• 2. Failure to follow the treatment recommended by the
physician;
• 3. Leaving the hospital against the advice of the
physician;
• 4. Failure to seek further medical assistance if symptoms
persist.
Ow Meng 111
Doctrine of Superior Knowledge
• In the physician-patient relationship, 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.
• 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, heavily sedated or of advanced
age.
Ow Meng 112
DOCTRINE OF CONTINUING NEGLIGENCE
• If the physician, after a prolonged treatment

of a patient which normally produces
alleviation of the condition, fails to investigate
non-response, he may be held liable if in the
exercise of care and diligence he could have
discovered the cause of non-response.
Ow Meng 113
DOCTRINE OF ASSUMPTION OF RISK
• Predicated upon knowledge and informed

consent, anyone who voluntarily assumes
the risk of injury from a known danger, if
injured, is barred from recovery.
• “…violenti non fit injuria”, which means
that a person who assents and was injured
is not regarded in law to be injured.
Ow Meng 114
DOCTRINE OF LAST CLEAR CHANCE
• - A physician who has the last clear chance of
avoiding damage or injury but negligently fails
to do is liable.
• - It implies thought, appreciation, mental
direction and lapse of sufficient time to
effectually act upon impulse to save the life or
prevent injury to another.
Ow Meng 115
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.
Ow Meng 116
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.
Ow Meng 117
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.
Ow Meng 118
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.
Ow Meng 119
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.
Ow Meng 120
Abandonment of patients
• - 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.
Ow Meng 121
Elements:
• 1. There is a physician-patient relationship;
• 2. The relationship is terminated without mutual
consent of both parties;
• 3. Unilateral termination of the contractual
relationship by the physician;
• 4. Continuing need of the patient for further
medical treatment;
• 5. Abandonment must have been the cause of the
injury or death of the patient.
Ow Meng 122
Some instances of abandonment:
• 1. Refusal by a physician to treat a case after he has seen the
patient needing medical treatment but before treatment is
commenced;
• 2. Refusal to attend to a case for which he has already assumed
responsibility;
• 3. Failure to provide follow-up attention;
• 4. Failure to arrange for a substitute physician during the time
the physician is absent or unavailable;
• 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; 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.B.
Non-payment of bill cannotOwbe
Meng
a defense for abandonment.123
LIABILITIES IN THE ADMINISTRATION OF
DRUGS
Ow Meng 124
Five basic rights:
• 1. Right drug;
• 2. Right patient;
• 3. Right dose;
• 4. Right time; and
• 5. Right route.
Ow Meng 125
Negligence in the administration of a drug which causes
injury to the patient may be attributed to:
• 1. 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. Overdosage;
• 3. Failure to give warning of the side effects;
• 4. Administering medicine on the wrong route;
• 5. Administration of the wrong medicine;
• 6. Administration of a drug on the wrong person;
• 7. Infection following an injection;
• 8. Injury to the nerves
• 9. Failure to administer the drug.
Ow Meng 126
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, 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. A drug
manufacturer is liable if his product is contaminated by any
impurities which harm the user.
• If the drug has side effects, 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. Once the physician has been
forewarned, the manufacturer has no duty to insure that the
warning reaches the patient in normal circumstances.
Ow Meng 127
LIABILITIES OF HOSPITALS
• Sec.2(a), RA 4226, Hospital Licensure Act
• HOSPITAL means a place devoted primarily to the maintenance and
operation of facilities for the diagnosis, treatment, and care of individuals
suffering from illness, disease, injury or deformity, or in need of
obstetrical or other medical and nursing care.
The term ‘hospital’ shall also be construed as any institution, building or
place where there are installed beds, cribs, bassinets for twenty-four hour
use or longer by patients in the treatment of diseases, …..xxx.”
•
• Classification, according to Control and Financial Support:
• 1. Public/Government – operated and maintained either partially or
wholly by the national, provincial, municipal, or city government or other
political subdivision, or by any department, division, board or other
agency thereof. (Sec. 2(b) RA 4226)
• 2. Private – privately owned, especially established and operated with
funds raised and contributed through donations, or private capital or
other means.(Sec. 2(C), RA4226)
Ow Meng 128
For purposes of determining liability of
private hospitals:
• 1. Private charitable or eleemosynary –

established for the public benefit and not
conducted for the pecuniary gain of the
management.
• 2. Private pay – established for profit and gain.
Ow Meng 129
Rationale why hospital cannot practice
medicine:
• 1. The hospital cannot be subjected to government
licensure examinations to determine whether it is
qualified to practice medicine;
• 2. A non-medical will be allowed to control a
physician and through circumvention practice
medicine;
• Breach of the confidential relationship in a physician-
patient relationship.
Ow Meng 130
Primary Duties of a Hospital:
• 1. To furnish a safe and well-maintained building
and ground;
• 2. To furnish adequate and safe equipments;
• 3. To exercise reasonable care in the selection of the
hospital staff.
Ow Meng 131
Persons Coming Within the Premises of the
Hospital
• 1. Trespasser – one who enters the property of
another without being granted the privilege to do so.
It is only required of a hospital to refrain from taking
positive steps to harm a trespasser.
• 2. Licensee – one who is neither a customer, servant
or a trespasser. He has no contractual relation with
the hospital. He is permitted, expressly or impliedly to
be within the premises for his own interest and
convinience. His presence is merely tolerated.
• Invitee – one who is essential to the operation of a
hospital or for whom the hospital has a purpose.
Ow Meng 132
Liabilities of Hospitals for the Wrongful Acts of
their Agents
Ow Meng 133
1. Government or Public Hospitals
• - A State cannot be sued without its consent.
• - The immunity of the government from the official acts of its
officers, 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.”
• - 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 government
must not be sued because the government derives no profit
from its activity unlike a private enterprise.
• - Those established to perform government functions, it is
immune from being sued.
• - Those performing proprietary function when it is established
for profit. The government goes down to the level of any
private hospital.
Ow Meng 134
2. Private Charitable, Voluntary or eleemosynary for charity
• - A charity hospital is established and maintained

from the donations, contributions, philantrophic
acts and pays no dividends.
• - The determination whether a hospital was
established for charity is the articles of
incorporation and the constitution and by-laws of
the corporation.
Ow Meng 135
3. Private Hospital Operating for profit
• - May be held vicariously liable for the negligent acts

of its employees.
Ow Meng 136
• N.B.
•  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.
•  The charging of the fee is not controlling but the
purpose the fee will be use is the measure of charity.
•  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, if it is operated for no
profit.
•  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.
•  A hospital established for profit even though some bed
are devoted for charity is not deemed a charitable
institution.
Ow Meng 137
Doctrines Applied to Charitable Hospital
Immunity for the Acts of its Employees
Ow Meng 138
TRUST FUND DOCTRINE
• Charitable hospitals derived support from voluntary

contributions or donations for the reception, care and
treatment of charity patients. The contributions are held only
in trust by the governing body of the hospital. Diverting the
money for the payment of damage will be utilizing the money
not intended by the donor.
Ow Meng 139
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.
Ow Meng 140
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.
Ow Meng 141
INDEPENDENT CONTRACTOR THEORY
• A patient who enters a private charitable hospital

does not have a contract with the hospital but with
the attending physician.
Ow Meng 142
Rules applied in determining the vicarious
liability for the negligent acts of the resident
physicians, nurses and others employees.
Ow Meng 143
1. Principle of administrative/ministerial as
against professional/medical duties;
• 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. Any negligence of
such hospital employees, the “borrowed servant
doctrine” must be applied and the hospital may
not be held vicariously liable.
Ow Meng 144
2. Power of Control;
Ow Meng 145
3. Contract of Service;
• If the contract has been entered with hospital to

render professional services, the hospital may be
held liable provided the negligent act was committed
within the scope of employment. But if entered with
the patient for contract of services, the principle of
independent contractor theory is applied.
Ow Meng 146
4. Independent Contractor Theory;
Ow Meng 147
5. Sole Responsibility vs Shared
Responsibility.
Ow Meng 148
LIABILITIES OF HOSPITAL
• 1. 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, the established standard of
conduct to which the corporation should
conform.
• Recent decisions of the court has extended
hospital liability to patient for its failure to make
careful selection, review, and supervision of
independent physicians who are permitted to
practice in the hospital.
•
• 2. VICARIOUS Liabilities for the Acts of
Hospital Employees.
Ow Meng 149
Admission
• A person has no absolute right to be admitted in a

hospital or to avail of hospital services. The
relationship between the hospital and the patient is
contractual.
• A government has no absolute privilege of choice of
patients inasmuch as it is established and maintained
by public funds except for justifiable grounds.
Ow Meng 150
Attendance to emergency cases in hospitals
• Sec. 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.”
Ow Meng 151
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.
Ow Meng 152
Discharge of patients
• After evaluation of the patient’s condition,
considers that further hospitalization is no
longer indispensable, a physician may order
the discharge with or without condition.
Ow Meng 153
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. Related laws:
• Art. 268, Revised Penal Code
• 1987 Philippine Constitution, Sec. 1 and 6
•
• Refusal of the patient to leave the hospital
Ow Meng 154
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.
Ow Meng 155
Detention of patient for non-payment of bill
• A patient cannot be detained in a hospital for non-

payment of the hospital bill. The law provides a
remedy for them to pursue by filling the necessary
suit in court for the recovery of such fee or bill.
• A hospital any legally detain a patient against his
will when he is detained or convicted prisoner, or
when the patient is suffering from a very contagious
disease wherein his release is prejudicial to public
health, or when the patient is mentally ill, that his
release will endanger public safety.
Ow Meng 156
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 medical staff therein are not considered employees of the
hospital. Consequently liability for negligence in the
emergency room is shifted to the medical partnership.
• -Courts have held that even if contracts specify that physicians
will be considered independent contractors, the hospitals are
responsible for their action if they can exercise control over
them.
• -Patients are not bound by the secret limitations contained in
a private contract between the hospital and the physician.
Ow Meng 157
Two Aspects of Emergency Care
• 1. 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.
•
Ow Meng 158
Liability in the emergency room may arise
from the following:
• 1. Failure to admit;
• 2. Failure to examine and/or treat;
• 3. Negligence in the application of management
procedures.
Ow Meng 159
• An AMBULANCE is a motor vehicle specifically designed, equipped
and used for the transportation of the sick, injured or wounded
persons operated by trained
• personnel for ambulance service.
• The criminal liability of an ambulance driver is the same as that of an

ordinary driver. However, the civil liability arising therefrom the
hospital must be held liable.
• Hospital Pharmacy
• Sec. 42, RA 5921.

• A PHARMACY is a place or establishment where drugs, chemical
products, active principles of drug, pharmaceuticals, proprietary
medicine of pharmaceutical specialties, devices and poison are sold at
retail and where medical and dental veterinary prescriptions are
compounded and dispensed.
Ow Meng 160
Medical Records
• - It is compilation of the pertinent facts of the

patient’s life history, illness, and treatment.
• - It is a compilation of scientific data derived
from many sources, coordinated into a document
and made available for various uses to serve the
patient, the physician, the institution in which the
patient has been treated, the science of medicine
and society as a whole.
Ow Meng 161
Purpose of Maintenance of Medical Records
• 1. For convenience and necessity in consonance with the

purpose enumerated;
• 2. As required by statutes (Hospital Licensure Law)
• - The hospital may be held liable for injury resulting from
a breach of duty to maintain accurate records.
• - Destruction of records is an evidence of negligence.
• - 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
Ow Meng 162
Ownership of Medical Records
• The guardian and owner of the medical records is the

hospital. But ownership of the medical record is a
limited one and absolute and considered primarily
custodial.
Ow Meng 163
VIOLATION OF THE CONFIDENTIAL NATURE OF
RECORD
• Sec. 6, Art. II, 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, even after
their death. He should never divulge this
confidential information, or anything that may
reflect upon the moral character of the person
involved, except when it is required in the
interest of justice, public health or safety.
Ow Meng 164
• Sec. 17, Art. 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 10,000.00 to 50,000.00 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….xxx”
• An additional penalty of revocation of license to
practice his profession……xxx.”
Ow Meng 165
• Sec. 60, Art. VIII, 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, except
to determine how many time by himself or through his
parent, spouse guardian or relative within the fourth
degree of consanguinity or affinity, he voluntarily
submitted himself to confinement, treatment and
rehabilitation in any center…..xxx.”
Ow Meng 166
• Sec. 64. Art. 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 was charged for violation of Sec. 15 of this act shall
be covered under Sec 60 of this act. However, the records of a drug
dependent who was not rehabilitated, or who has escaped but did
not surrender himself within the prescribed period, shall be
forwarded to the court and their use shall be determined by the
court, taking into consideration public interest and the welfare of the
drug-dependent.
Ow Meng 167
• Sec. 21 (c), Rule 130, Rules of Court (Privilege
Communication)
• A person authorized to practice medicine, surgery,
obstetrics cannot in civil case, without the consent of the
patient, be examined as to any information, which he may
have acquired in attending such patient In a professional
capacity, which information was necessary to enable him to
act in that capacity, and which would blacken the character of
the patient.
Ow Meng 168
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.
Ow Meng 169
When May the Contents of the Record be
Disclosed
• 1. When requested by the patient or by someone who
could act in his behalf which must be made in writing;
• 2. When the law requires such disclosure;
• 3. Upon a lawful order of the court.
• N.B.
• The attending patient has no legal right to determine
who shall and who shall not see the record. At the most,
his approval or permission is only a matter of courtesy.
•
• Members of the resident staff, student and attending
medical staff may freely consult such records as pertain to
their work.
Ow Meng 170
• Sec. 37, Rule 130, Rules of Court – Entries in the Course of
Business
• Entries made at, or near the time of the transactions
to which they refer, by a person deceased, outside the
Philippines or unable to testify, who was in a position to
know the facts therein stated, may be received as prima
facie evidence, 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.
•
• Patient’s record is admissible in evidence even if the
person who made the entry is dead or not available, as
the records are entries in the course of business.
Ow Meng 171
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 a suit is filed against a physician for
a professional liability claims, the objective of the plaintiff is
to recover damages. If the physician is found negligent in the
performance of his professional services, he liable for the
payment of damages for all the direct, natural and logical
consequences of his act.
Ow Meng 172
• Every person who, contrary to law, willfully or
negligently causes damage to another shall
indemnify the latter for the same.
•
• Whoever, by act or omission causes damage
to another, there being fault or negligence, is
obliged to pay for the damages done.
Ow Meng 173
• Damages must be sufficiently proven by evidence. To
permit the Court to determine how much it must be. The
proof must show the nature, extent, cause and probable
duration of the injury.
• 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.
• 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.
Ow Meng 174
TYPES OF DAMAGES
• 1. Actual or Compensatory;
• 2. Moral;
• 3. Exemplary
• 4. Nominal;
• 5. Temperate;
• 6. Liquidated
Ow Meng 175
ACTUAL OR COMPENSATORY DAMAGES

• Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory
damages.
•
• Indemnification for damages shall comprehend not
only the value of the loss suffered, but also that of the
profits which the obligee failed to obtain.
Ow Meng 176
• Kinds:
• 1. ‘Dano emergente’ – the loss already suffered by the patient
• 2. Lucro cesante – failure to receive the benefit which would
have pertained to him.
Ow Meng 177
Compensatory Damages Applied to Medical
Malpractice
1. Death
• The amount of damages for the death caused
by a crime or quasi-delict shall be at least three
thousand pesos(75,000.00), even though there
may have been mitigating circumstances.
2. Physical Disability
3. Loss of Earning Capacity
4. Medical, Surgical, Hospital, and Related Expenses
5. Loss of Service or Support
6. Funeral Expenses Ow Meng 178
MORAL DAMAGES

• Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and
similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are
the proximate result of the defendant’s act or omission.
Ow Meng 179
• Moral damages may be recovered in the
following and analogous cases:
1. A criminal offense resulting in physical injuries;
2. Quasi-delict causing physical injuries.
• Physical Suffering
• Mental Anguish
• Fright and Moral Shock
• Besmirched Reputation and Social
Ow Meng 180
EXEMPLARY OR CORRECTIVE DAMAGES

• Exemplary or corrective damages are imposed, by way of
example or correction for the public good, in addition to the moral,
temperate, liquidated or compensatory damages.
•
• In criminal offense, exemplary damages as part of the civil
liability may be imposed when the crime was committed with one or
more aggravating circumstances. Such damages are separate and
distinct from fines and shall be paid to the offended party.
Ow Meng 181
• In quasi-delict, exemplary damages may be granted if
the defendant acted with gross negligence.
•
• In contracts and quasi-contracts, the court may award
exemplary damages if the defendant acted in a wanton,
fraudulent, reckless, oppressive and malevolent manner.
•
• Exemplary damages cannot be recovered as a matter
of right; the court will decide whether or not they should
be adjudicated.
Ow Meng 182
• Punitive or exemplary damages are monetary
compensation over and above actual or compensatory
damages awarded as punishment or deterrence, because
of the wanton, reckless, malicious or oppressive nature of
the wrong committed.
• 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, or that he acted with
recklessness, oppression, or with utter disregard to the
effects of his act, or that he is guilty of gross negligence in
the performance of his profession.
Ow Meng 183
NOMINAL DAMAGES

• Nominal damages are adjudicated in order
that a right of the plaintiff, which has been
violated or invaded by the defendant, may be
vindicated or recognized not for the purpose of
indemnifying the plaintiff for any loss suffered.
• It is a trifling sum awarded to the plaintiff in an
action where there is no substantial loss or injury
to be compensated.
• It is awarded to plaintiff as a vindication of a right
violated.
Ow Meng 184
LIQUIDATED DAMAGES

• Liquidated damages are those agreed upon by the
parties to a contract, to be paid in case of breach
thereof.
Ow Meng 185
TEMPERATE OR MODERATE DAMAGES

• Temperate or moderate damages, which are
more than nominal but less than compensatory
damages, may be recovered when the court finds
that some pecuniary loss has been suffered but its
amount cannot, from the nature of the case, be
proved with certainty.
Ow Meng 186
Obligation on the part of the plaintiff(patient) to
minimize damages.
• 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
Ow Meng 187
Doctrine of Avoidable Consequences
• Where one person has, through wrongful act, caused

personal injury to another, it is incumbent upon the latter to
use such means as are reasonable under the circumstances to
avoid or minimize the damages. The person wronged cannot
recover for any item of damage which could have been
avoided.
•
• The burden of proof that the injured could have
prevented or mitigated the damages rests on the defendant.
Ow Meng 188
ATTORNEY’S FEES
• Attorney’s fees and other related expenses in litigation, other than judicial
cost are not as rule recoverable except when the law specifically provides.
(Art.2208, Civil Code)
• 1. When exemplary damages are awarded;

• 2. When the defendant’s act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interest;
• 3. In criminal cases of malicious prosecution against the plaintiff;
• 4. In case of clearly unfounded civil action or proceeding against the plaintiff;
• 5. Where the defendant acted in gross and evident bad faith in refusing to
satisfy the plaintiff’s plainly valid, just and demandable claim;
• 6. In actions for legal support;
• 7. In actions for the recovery of wages of household helpers, laborers and
skilled workers;
• 8. In actions for indemnity under the workmen’s compensation and
employer’s liability laws;
• 9. In a separate civil action to recover civil liability;
• 10. When at least double judicial costs are awarded;
• 11. In any other case where the court deems it just and equitable that
attorney’s fees and expenses of litigation should be recovered.
Ow Meng 189
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.
Ow Meng 190
Related Provisions of the Code of Medical
Ethics
• A condition of emergency is usually an exception to the observance of

the standard ethical conducts.
• Art. II, Sec. 2

• “ A physician is free to choose whom he will serve. He may refuse
calls, other medical services for reasons satisfactory to his
professional conscience. He should, however, always respond to any
request for his assistance in an emergency…xxx.”
• Art. II, Sec. 3
• “In case of emergency, wherein immediate action is necessary, 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.”
Ow Meng 191
• Art. IV, Sec. 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.”

• “A physician called upon to attend to a patient of another
physician because of an emergency….xxx….should attend only to the
patient;\’s immediate needs….xxx.”

• Whenever in the absence of the family physician several
physicians have been simultaneously called in an emergency case
• …xxx..the first to arrive should be considered as physician in charge,
unless the patient or his family has special
• preference for some other one among those who are present…xxx.”
Ow Meng 192
• Art. IV, Sec.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.”
Ow Meng 193
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.
• 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, amending BP Blg. 702, 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.
Ow Meng 194
• Abandonment of persons in danger and abandonment of one’s
own victim
• The penalty of arresto mayor shall be imposed upon:
• 1. Anyone who shall fail to render assistance to any person whom he
shall find in an uninhabited place wounded or in danger or dying,
when he can render such assistance without detriment to himself,
unless such omission shall constitute a more serious offense.
• 2. Anyone who shall fail to help or render assistance to another
whom he has accidentaqlly wounded or injured…xxx.”
Ow Meng 195
Standard of Care in Emergencies
• - A physician cannot be held to the same

conduct as one who had an opportunity to reflect,
even though it later appears that he made a wrong
decision yet prudent at that time.
Ow Meng 196
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, and getting a consent is prejudicial to the patient, the
physician can legally proceed with his contemplated life-
saving procedure.
• - 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 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.
Ow Meng 197
Emergency Operation without Consent
• 1. The injured person must be unconscious or otherwise

unable to give a valid consent;
• 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 physician in the exercise of his best judgment that the
medical procedure is life-saving.
Ow Meng 198
Refusal to Give Consent During Emergency
• If the patient is conscious, or if unconscious or is not

in a capacity to give consent, but someone who
could act on his behalf is present, then consent must
first be obtained before the commencement of a
procedure.
Ow Meng 199
Extension of Operation in Cases of Emergency
• If during an operation, an accident occurs, or a condition maybe
discovered which requires immediate action, but which is not covered
by the consent, the surgeon is justified in extending the operation and
be absolved of liability.
• The surgeon is authorized to extend the operation to any
condition discovered when it will redound to the welfare of the
patient. In the absence of a clearly specific prohibition on the part of
the patient, the physician should be privileged to perform such
surgery within the operative field as is justified in the prevailing
medical opinion.
• N.B. 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. If no specified
amount agreed upon, the principle of quantum meruit shall be
applied.
Ow Meng 200
DELEGATION OF A PHYSICIAN’S
DUTIES
• Requisites for a Valid Delegation
• 1. When such duty can be delegated which will depend

on the circumstances of the case, nature of the duty to be
delegated, and the training and experience of the person
to whom such duty is to be delegated.;
• 2. The person to whom such duty is delegated must be
competent to perform such duty;
• 3. Proper instructions must be given to the person who
will perform the delegated duty;
• The patient consented expressly or impliedly such
delegation of duty.
Ow Meng 201
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.
Ow Meng 202
THE MEDICAL WITNESS AND THE COURT
• Court – an agency of the sovereign created directly or indirectly

under its authority, constituting one or more officers, established and
maintained for the purpose of hearing and determining issues of law
and facts regarding legal rights and alleged violations thereof, and of
applying the sanction of the law, authorized to exercise its power in
the due course of law at times and places previously determined by
lawful authority.
Ow Meng 203
Different Courts in the Philippines
• 1. Supreme Court
• 2. Court of Appeals
• 3. Regional Trial Court
• 4. Municipal or City Trial Court
• 5. Military Commissions
Art. III, Sec. 2, Code of Medical Ethics

• It is the duty of every physician, when called upon by the judicial
authorities, to assist in the administration of justice on matters which
are medico-legal in character.
Ow Meng 204
PHYSICIAN AS AN ORDINARY WITNESS
• Sec. 20, Rule 130, Rules of Court

• “xxx….all persons who, having organs of sense, can
perceive, and perceiving can make known their perception
to others maybe witness…xxx.”
• Requisites of an Ordinary Witness

• 1. The person must have the organ and power of
perception;
• 2. The perception gathered by his organs of sense can be
imparted to others; and
• He does not fall in any of the exception or disqualifications
provided by the Rules of Court.
Ow Meng 205
Disqualification by reason of:
• 1. Mental Incapacity or immaturity - Sec. 21, Rule 130,
Rules of Court
– a) Those whose mental condition, at the time of their production for
examination, is such that they are incapable of intelligently making
known their perception to others; 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.
• 2. Marriage - Sec. 22, Rule 130, Rules of Court

• During their marriage, neither the husband nor the
• wife may testify for or against the other without the
consent of the affected spouse, except in a civil case by
one against the other, or in any criminal case for a crime
committed by one against the other or the latter’s direct
ascendants or ascendants;
Ow Meng 206
• 3. Death or Insanity - Sec. 23, Rule 130, Rules of Court
• Parties or assignors of parties to a case, or persons in
• whose behalf a case is prosecuted, against an executor or
administrator or other representative of the deceased person, or
against a person of unsound mind, upon a claim or demand against
the estate of such deceased person or against such person of unsound
mind, cannot testify as to any matter of fact occurring before the
death of such deceased person or before such person become of
unsound mind;
• 4. Parental or filial Privilege - Sec. 25, Rule 130, Rules of Court

• No descendant can be compelled, in a criminal case,
• to testify against his parents and ascendants.
Ow Meng 207
• Disqualification by reason of Privileged Communication
• Sec. 24, Rule 130, Rules of Court – The following persons cannot
testify as to matters learned in confidence in the following cases:
• 1. The husband or the wife, during or after the marriage, 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, or for a crime committed by one
against the other or the latter’s direct descendants and ascendants;
• 2. The attorney cannot, without the consent of his client, be examined

as to any communication made by the client to him or his advice given
thereon in the course of, or with a view to professional employment; nor
can an attorney’s secretary, stenographer or clerk be examined, without
the consent of the client and his employer, concerning any fact the
knowledge of which has been acquired in such capacity;
Ow Meng 208
• 3. A person authorized to practice medicine, surgery
or obstetrics cannot in a civil case, without the consent of
the patient, be examined as to any information which he
may have acquired in attending such patient in a
professional capacity, which information was necessary to
enable him to act in that capacity, and which would
blacken the reputation of the patient;
• 4. A minister or a priest cannot, without the consent
of the person making the confession, 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;
• 5. A public officer cannot be examined during his term
of office or afterwards as to communications made to him
in official confidence, when the court finds that the public
interest would suffer by the disclosure.
Ow Meng 209
Privileged Communication
Between Physician and His Patient
• Sec. 6, Art. II, 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, even after their death. He should never divulge this
confidential information, or anything that may reflect upon the moral
character of the person involved, except when it is required in the
interest of justice, public health, and public safety.
• Sec. 24(c), Rule 130, Rules of Court

“A person authorized to practice medicine, surgery or obstetrics
cannot in a civil case, without the consent of the patient, be examined
as to any information which he may have acquired in attending such
patient in a professional capacity, which information was necessary to
enable him to act in that capacity, and which would blacken the
character of the patient.”
Ow Meng 210
Extent of the Privileged Communication
• 1. Interns;
• 2. 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.
• Nurses and attendants who were present and
assisting the physician when the communication was
made.
Ow Meng 211
When Communication Is Not A Privileged
Communication
• 1. When a person is examined at the instance of

the law, for the purpose of testifying to solely
qualify the physician to testify;
• 2. Information acquired by an autopsy on the
body of a person who was not, prior to his death,
a patient of the physician performing the autopsy.
• 3. Information obtained by a technician from a
patient is not privileged.
• 4. When the public interest so requires.
Ow Meng 212
Scope of the Privilege
• 1. Oral testimony by the physician in court;

• 2. Affidavits, certificates and reports made by the
physician as exhibit in court; and
• 3. Hospital records.
Ow Meng 213
Waiver of Privilege
• Patient may expressly or impliedly waive their

right to privilege communication.
Ow Meng 214
HEARSAY EVIDENCE
• An evidence not proceeding from personal knowledge of the witness,

but from mere repetition of what he had heard others say. 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. 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.
•
• Sec. 36, Rule 130, Rules of Court – Testimony generally confined to
the personal knowledge of the witness; hearsay excluded.
• “A witness can testify only to those facts which he knows of his
own knowledge; that is, which is derived from his own perception,
except as otherwise provided by these rules.
Ow Meng 215
“The declaration of a dying person, made under a
consciousness of an impending death, may be received in
a criminal case wherein his death, 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.”
Ow Meng 216
Dying declaration
• - One of the exceptions in hearsay evidence rule.

• - Is the statement made by a person who is at the
point of death, and is conscious of his impending death, in
reference to the manner in which he receives his injuries
of which he is dying, or the immediate cause of his death,
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; which
statements are admissible in evidence in a trial where the
killing of the declarant is the crime charged to the
defendant.
Ow Meng 217
Grounds for Admissibility of Dying Declaration
• 1. Necessity – death of the declarant makes it impossible to

obtain his testimony in court.
• 2. Trustworthiness – every motive of falsehood is silenced,
and the mind is induced by the most powerful consideration
to tell the truth.
Ow Meng 218
Requisites of Dying Declaration
• 1. That the declaration must concern the cause and

surrounding circumstances of the declarant’s death;
• 2. That at the time the declaration was made, the declarant
was under the consciousness of impending death;
• 3. That the declarant is a competent witness;
• 4. That the declaration is offered in a criminal case in which
the declarant is the victim.
Ow Meng 219
Probative Value of Standard Medical Books
in Court
• -Medical textbooks are not admissible in evidence on
account of the fact that they are hearsay.
• -The author of the books cannot be presented in court
and be subjected to cross-examination.
• N.B.
Medical witness may have the right to base his opinion
from standard textbooks.
In cross-examination, medical textbooks are admissible in
evidence to discredit a witness who has based his
testimony upon it.
Ow Meng 220
Learned Treatises
Sec. 46, Rule 130, Rules of Court

“A published treatise, periodical or pamphlet on a subject of
history, science or art is admissible as tending to prove the
truth of a matter stated therein if the court takes judicial
notice, or a witness expert in the subject testifies that the
writer of the statement in the treatise, periodical or pamphlet
is recognized in his profession or calling as expert in the
subject.”
Ow Meng 221
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.
Ow Meng 222
• To warrant the use of expert testimony, two elements
are required:
• 1.The subject of inference must be so distinctly related to some

science, profession, business or occupation as to be beyond the
knowledge of average layman; and
• 2.The witness must have such skill, knowledge or experience in that
field or calling as to make it appear that his
• 3.Opinion or reference will probably aid the trier of facts in his search
for the truth.
• An OPINION maybe defined as the belief, judgment,

inference, or sentiment formed by the mind with regard
to things, person or events perceived by a witness. An
opinion in the legal sense is something more than mere
speculation or conjecture.
Ow Meng 223
• General rule - The opinion of a witness is not
admissible, except as indicated by the Rules.
•
• 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.
•
Ow Meng 224
• 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.
Ow Meng 225
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.
Ow Meng 226
ATTENDANCE OF A MEDICAL WITNESS IN
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.”
•
Ow Meng 227
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.
Ow Meng 228
• Sec. 2, Art. III, Code of Medical Ethics
• “It is the duty of every physician, when called upon by the judicial
authorities, to assist in the administration of justice on matters which
are medico-legal in character.”
• Sec. 24, Art. III, Medical Act of 1959 as amended

• “xxx…..(12) Violation of any of the provisions of the Code of
Medical Ethics…shall be sufficient ground for reprimanding, or for
suspending or revoking a certificate of registration as physician…xxx.”
• Refusal of a public officer to give assistance in the administration of

justice is penalized by law

• “The penalties of arresto mayor…xxx, shall be imposed upon a
public officer who, upon demand from a competent authority, shall
fail to lend his cooperation towards the administration of justice or
other public service, if such failure shall result in serious damage to
the public interest, or to a third party.”
Ow Meng 229
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.
Ow Meng 230
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.”
Ow Meng 231
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: Ow Meng 232
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.
Ow Meng 233
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.”
Ow Meng 234
• 2. Art. 181, Revised Penal Code, 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….xxx…if the prosecution is for felony
punishable by an afflictive penalty,..xxx.”
Ow Meng 235
• 3. Art. 182, Revised Penal Code, 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 5,000 pesos …xxx.”
Ow Meng 236
• 4. Art. 183, Revised Penal Code, False testimony in
other cases and perjury in solemn affirmation:
“The penalty of arresto mayor …xxx, knowingly making

untruthful statements and not being included in the
provisions of the next preceding articles, shall testify
under oath, or make an affidavit, upon ant material before
a competent person authorized to administer an oath in
cases in which the law so requires.
• Any person, who in case of a solemn affirmation
made in lieu of an oath, shall commit any of the
falsehoods mentioned in this and the three preceding
articles of this section, shall suffer the respective penalties
provided therein.”
Ow Meng 237
Principle of “Falsus In Uno, Falsu In Omnibus”
• When a witness falsified the truth on one point, his testimony on other
points may be disregarded, unless corroborated by other unimpeached
evidences.
• Requisites:
• 1. That the witness deliberately or intentionally falsified the
truth;
• 2. That the other portions of the testimony to be discredited,
are not corroborated by circumstances or other unimpeached
evidence;
• 3. The false testimony must be on material point.
Ow Meng 238
• When it is not applicable
• 1.When there are sufficient corroborations in many

grounds of the testimony;
• 2.When the mistake was not in a very material point;
• 3.When the error did not arise from the apparent desire to
prevent the truth, but from innocent mistakes and the
desire of the witness to exculpate himself though not
completely.
Ow Meng 239
CONTEMPT
• 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. If
the subpoena was not issued by a court, the disobedience
thereto shall be punished in accordance with the applicable
law or Rule.”

• 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,
including disrespect toward the court, offensive personalities
toward others, refusal to be sworn or to answer as witness,
or to subscribe an affidavit or deposition when lawfully
required to do so, may be summarily adjudged in contempt
by such court…xxx.” Ow Meng 240
• Indirect contempt To Be Punished After Charged and Hearing –
“After a charge in writing has been filed, and an opportunity
given to the respondent to comment thereon within such
period…xxx…., a person guilty of any of the following acts may be
punished for indirect contempt:
– 1. Misbehavior of an officer of a court in the performance of his official duties or in
his official transactions;
– 2. Disobedience of or resistance to a lawful writ, process, order, or judgment of a
court….;
– 3. Any abuse of or any unlawful interference with the process or proceedings of a
court not constituting direct contempt…;
– 4. Any improper conduct tending directly or indirectly to impede, obstruct, or
degrade the administration of justice;
– 5. Assuming to be an attorney…..;
– 6. The rescue of a person or property in the custody of an officer by virtue of an
order.
• But nothing in this section shall be construed as to prevent the
court
• from issuing process to bring the respondent to the court, or
from holding him in custody Ow
pending
Meng such proceedings.” 241
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. He must answer the
question provided those set of facts has the following requisites:
• 1. 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. The hypothetical question is based upon facts which are in evidence
and assumed facts within the limit of evidence;
• 3. The hypothetical question must not be unfair or misleading.
•
• Where the expert is familiar with the facts by personal
• observation and so testifies, he may be asked directly for his opinion,
without stating the facts upon which it is based.
• When the expert is not familiar with the facts upon which it is
based, they must be stated to him hypothetically, and upon the
assumption of the facts so stated, he must base his opinion.
Ow Meng 242
Rationale on the Corroborative Probative
Value of Medical Expert Testimonies
• 1.The testimony however impartial, may unconsciously

favor one of the party litigants. The human mind is not
absolutely impossible;
• 2.The opinion of the medical expert is based on
experience and treatise or books which may be divergent
from the observation of others
Ow Meng 243
CODE OF MEDICAL ETHICS
• Art. I – General Principles

• - Primary objective of the practice of medicine is SERVICE to
mankind.
• - “friend of man”
•
• Art. II – Duties of Physicians to their Patients
• - To attend to his patients faithfully and conscientiously.
• - Free to choose whom to serve.
• - Immediate action in cases of emergency.
• - Proper consultation and referral.
• - He must exercise good faith and strict honesty in expressing his
opinion.
• - Sacred trust of information
• - Practice of medicine is not a business.
Ow Meng 244
• Art. III – Duties of Physicians to the Community
• - Cooperation with proper authorities, sanitation and health.
• - To assist in the administration of justice.
• - To protect the public from charlatans.
• - No solicitation and extravagant and false advertisements.
• Gratuitous services to the indigents.
Ow Meng 245
Art. IV – Duties of Physicians to their Colleagues
and to the Profession
• - Gratuitous services to a colleague.
• - Proper consultation and referral.
• - Uphold the honor and dignity of the profession.
• - Observe punctuality.
• - Observe utmost caution, tact and prudence as regards professional conduct
of another physician.
• -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.
• - He should be diligent, upright, sober, 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.
• - Should expose without fear or favor, before the proper medical or legal
tribunals corrupt and dishonest conduct of members of the profession.
• - Should aid in safeguarding against the admission of those who are unfit or
unqualified because of deficiency in moral character.
Ow Meng 246
Art. V – Duties of Physicians to Allied Professionals
– To cooperate with and safeguard the interest, reputation and

dignity of allied professional.
– Not to allow to be published any testimonial certifying the
efficacy, value and superiority and recommendation of drugs.
– Non-payment of commissions to any person who refers cases to
help him acquire patients.
• 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. 24, par. 12 of the Medical Act of 1959.
Ow Meng 247
RIGHT AGAINST SELF-INCRIMINATION
• Sec. 17. Art. III, Philippine Constitution states that,
• “No person shall be compelled to witness against himself.”
•
• The right is available not only in criminal prosecutions but also in all
other government proceedings, including civil actions and administrative
or legislative investigations. 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.
•
• In criminal actions, the accused may not be compelled to take the
witness stand, on the reasonable assumption that the purpose of the
interrogation will be to incriminate him.
•
• The same principle shall apply to the respondent in an
administrative proceeding where the respondent may be subjected to
sanctions of a penal character, such as cancellation of his license to
practice medicine.(Pascual vs. Board of Medical Examiners, 28 SCRA 345).
Ow Meng 248
Scope:
– The kernel of the right is not against all compulsion, but
testimonial compulsion only.
– It is simply against the legal process of extracting from the lips of
the accused an admission of his guilt.
– It does not apply where the evidence sought to be excluded is not
an incriminating statement but an OBJECT EVIDENCE(eg.
Fingerprinting, photographing, paraffin testing, PE).
– The prohibition extends to the compulsion for the production of
documents, 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.
– 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.
Ow Meng 249
NO ownership rights IS BEING CLAIMED in the text, files, images, video,
sounds, works of authorship, or other materials IN THIS POWERPOINT
PRESENTATION. This is for review purpose only.
Ow Meng 250

Legal Medicine

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Legal Medicine

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LEGAL MEDICINE

• -branch of medicine that deals with the

• deals with the aspect of law and legal

• Licensure and regulatory laws;

• Philippine courts is a court litigation where

• Exercise of Power and Functions of the Commission

• 1. To determine and prepare the contents of the licensure examinations;

• By PROVISIONS OF LAW are not considered to constitute practice of

• Practice of medicine by any person not qualified and not

Exclusive consultation in specific and definite cases;

• -Cannot be subjected to licensure examinations as

• To prescribe the permanent framework of a

• Contract - is the meeting of minds between two

• Consensual - based on mutual consent both

• Consent – manifested by the meeting of the offer and the

1. Expressed – explicitly stated orally or in writing

2.Implied – the existence can be inferred from the acts

• 1. Pre-employment PE for purposes of determining

– “locality rule” – the standard of care is measured by the degree of care

RIGHTS GENERALLY ENJOYED BY EVERY CITIZEN

• - Any person who is given right to practice medicine is not obliged to

• Sec.24 No.12, Medical Act of 1959

Philippine Medical Care Act of 1969(RA 6111 as

• - Based on the physician-patient

Doctrine of Unjust Enrichment

• 1. Straight Fee – for the amount tendered by the

• 1. Extra judicial – billing or referral to a bill

a) Physician employed is duly qualified and licensed;

1. Agreement that the service is gratuitous;

• 1. In cases of emergency, there is an “implied

• 1. General or Blanket consent

• Quantum of Information Necessary to Form the

• Consent must be given freely or voluntarily

• Statutory Privileged Communication

• Ethical/Professional Confidential Information

• - Doctrine of parens patria, the State has the right to assume

• - The social commitment of the physician is to sustain life and relieve

• Administrative Due Process:

• A criminal act is an outraged to the sovereignty of the

• Quantum of evidence is proof beyond reasonable doubt.

• Conviction of a physician, aside from

• Imprudence and Negligence- Art.365, Revised Penal Code

• A civil suit filed against physician and/or hospitals is

• Criminal medical malpractice, the act or omission complained of must

In the causal connection between the

• Doctrine of Vicarious Liability

• -Doctrine of Imputed Negligence/Command

• - In cases wherein the employees are at the same

• Ordinarily, resident physicians, nurses and other personnel of

• 1. Deep pocket theory;

• Requisites of Res Ipsa Loquitor Doctrine:

• - Doctrine of Common Fault

Some Instances where there is contributory negligence:

• If the physician, after a prolonged treatment

• Predicated upon knowledge and informed

• 1. Failure to take medical history;

• 1. Private charitable or eleemosynary –

• - A charity hospital is established and maintained

• - May be held vicariously liable for the negligent acts

•  A hospital which allow the patient to pay if ever they

• Charitable hospitals derived support from voluntary

• A patient who enters a private hospital, knowing fully well

• It renders medical service without remuneration. It is