In the Philippine setting.

•No such crime or offense

•Literally, simply means wrong practice
•Generic for breach of practice, breach of
profession, careless, culpable profession neglect,
dereliction of duty, improper professional action,
etc.
•Applies to all profession
Adverse Effects of Malpractice
 Time the doctor is compelled to spend in the preparation
of his defense and his attendance to court proceedings.
 Damage to profession reputation in the community.
 Loss of public confidence
 Disturbance to peace of mind in both doctor and his family
 Expense involved
Quantum of Evidence Required in Medical Practice
 Purpose of Testimony- to prove
 The standard of care customarily practices
 Probable cause of victim/patient’s injury
Legal Doctrines Related to Physicians and Hospital
Malpractice

Respondeat Superior
Let master the answer. Applies only when relation of master
and servant between defendant and wrongdoer. Doctrine is
inapplicable where injury occurs while servant is acting outside
legitimate scope of authority.
Doctrine of Assumption of Risk
Assumption of risk is a plaintiff who voluntarily assumes a
risk of harm arising from the negligence of reckless
conduct of the defendant cannot recover from such
harm.

Borrowed Employee
One who is dispatch by his employer to another becomes
the other’s employee for the purpose of worker’s
compensation law if the other employer exercise control
over him.
Borrowed Servant
His services must be loaned with his acquiescence or consent and he must
become wholly subject to control and direction of the second employer,
and free during the temporary period from the control of the original
emloyer.

Doctrine of Last Clear Chance

The negligence of the defendant where it appears that the defendant,
by exercising reasonable care and prudence, might have avoided
injurious consequences to the plaintiff not withstanding the plaintiff
negligence.
Emergency or Sudden Peril Doctrine
“Emergency” Doctrine is applicable only where the emerging situation is
sudden and unexpected, and is such as to deprive the actor of all
opportunity of deliberation.

Res Adjudicata/Res Judicata

The term designate a point or question or subject-matter which was in
controversy or dispute and has been authoritatively and finally settled by
the decision of a court; that issuable fact once legally determined in
conclusive as between parties in same action or subsequent proceeding.
Res Gestae
Things happened and therefore, to be admissible last exception to
hearsay rule, work spoken, thoughts expressed, and gestures made,
must all be so closely connected to occurrence or event in both time
and substance as to be a part of the happening.

Stare Decisis
Policy of the court to stand by precedent and not disturb settled
point.

Quasi-Delict
Sometimes known as Culpa-Aquiliana, may be defined as the fault or
negligence of a person, who, by his act omission, cause damage to
another, to whom he is not bound by any contractual relation.
TORTS
 The word “tort’’ is taken directly from the French and
is a derivation of the Latin word ‘torquere’ meaning ‘to
twist.’ In common law, tort is an unlawful violation of
private right, not created by contract, and which gives
rise to an action for damages. It is an act or omission
producing an injury to another, without any previous
existing lawful relation of which the said act or
omission may be said to be a natural outgrowth or
incident. (Robles vs. Castillo, 61 O.G. 1220, 5 C.A.R. [2s]
213).
 It is also defined as a “private or civil wrong or injury,
other than breach of contract,’’ for which the court will
provide a remedy in the form of an action for damages
 It is a violation of a duty imposed by general law or
otherwise upon all persons occupying the relation to
each other which is involved in a given transaction.
There must always be violation of some duty that must
arise by operation of law and not by mere agreement
of the parties.
STANDARD OF CARE.
 The action against the doctor is commonly referred to
as medical malpractice. This is a particular form of
negligence which consists in the failure of a physician
or surgeon to apply to his practice of medicine that
degree of care and skill which is ordinarily employed
by the profession generally under similar conditions,
and in like surrounding circumstances (Reyes v. Sisters
of Mercy Hospital, 341 SCRA 760, 769 [2000]).
 Whether or not a physician committed an inexcusable
lack of precaution in the treatment of his patient is to
be determined according to the standard of care
observed by other members of the profession in good
standing under similar circumstances bearing in mind
the advanced state of the profession at the time of
treatment or the present state of medical science (Dr.
Ninevetch Cruz v. Court of Appeals, 282 SCRA 188
[1997]).
 The doctor must use at least the same level of care that
any reasonably competent doctor would use to treat a
condition under the same circumstances. Indeed, the
standard contemplated is not what is actually the
average merit among all known practitioners from the
best to the worst and from the most to the least
experienced, but the reasonable average merit among
the ordinarily good physicians (Reyes v. Sisters of
Mercy Hospital, supra. at p. 777).
General Practitioners v. Specialists
 According to the leading authority on Medical
Jurisprudence, the “standard of care demanded from a
general practitioner is ordinary care and diligence in
the application of his knowledge and skill in his
practice of the profession. He ought to apply to his
patient what other general practitioners will apply
when confronted with similar situation.” (Pedro P.
Solis, Medical Jurisprudence, 1988 Ed., p. 225)
 On the other hand, “a specialist’s legal duty to the patient is
generally considered to be that of an average specialist, not
that of an average physician. A physician who holds himself
out as having special knowledge and skill in the treatment
of a particular organ or disease or injury is required to
bring to the discharge of his duty to a patient employing
him as such as a specialist, not merely that of an average
degree of skill possessed by general practitioners but that
special degree of skill and care which physicians, similarly
situated who devote special study and attention to the
treatment of such organ, disease or injury ordinarily
possess, regard being in the state of scientific knowledge at
the time.” (ibid., citing Bolk vs. Sshizer, 149 S.E. 2d 565
[1966])
CAPTAIN OF THE SHIP DOCTRINE
 The doctor cannot blame the assisting nurse for his
own omission. Thus, if a piece of gauze was left in the
abdominal cavity of the patient after an operation, the
surgeon cannot excuse himself from liability just
because a nurse was present. The only effect is that the
nurse may be held jointly and solidarily liable with
him if said nurse was also negligent. The surgeon is
liable because he has the duty to ascertain for himself
whether there was left any foreign body in the
abdominal cavity of his patient before he surtured it.
(Bernal, et al. vs. Alonzo, et al., supra).
NOT WARRANTORS
 Physicians are not warrantors of cures or insurers
against personal injuries or death of the patient. (Cruz
v. Court of Appeals, supra.; Chan Lugay vs. St. Luke’s
Medical Hospital, 10 CAR 2s 415, 431 [1960]).
Difficulties and uncertainties in the practice of
profession are such that no practitioner can guarantee
results. Error of judgment will not necessarily make the
physician liable.
PROOF
 Whether a physician or surgeon has exercised the requisite degree of
skill and care in the treatment of his patient is, in the generality of
cases, a matter of expert opinion. The deference of courts to the expert
opinion of qualified physicians stems from its realization that the latter
possess unusual technical skills which laymen in most instances are
incapable of intelligently evaluating. Expert testimony should be
offered to prove that the circumstances cited by the courts below are
constitutive of conduct falling below the standard of care employed by
other physicians in good standing when performing the same
operation. It must be remembered that when the qualifications of a
physician are admitted, there is an inevitable presumption that in
proper cases he takes the necessary precaution and employs the best of
his knowledge and skill in attending to his clients, unless the contrary
is sufficiently established. This presumption is rebuttable by expert
opinion. (Dr. Ninevetch Cruz vs. Court of Appeals, 282 SCRA 188 [1997])
LIABILITY OF HOSPITALS AND
CONSULTANTS
 The “captain of the ship” described above may be a
mere “consultant” in the hospital. The term
“consultant” is loosely used by hospitals to distinguish
their attending and visiting physicians from the
residents, who are also physicians. In most hospitals
abroad, the term visiting or attending physician, not
consultant, is used. (ibid., note 74). The hospital itself
is not liable under Article 2180 in the absence of
employer-employee relationship.
The doctor of the future will give no medicine but will
interest his patients in the care of the human frame, in
diet and in the cause and prevention of disease.

~Thomas Edison