2.6 Negligence & Malpractice

2.6 Atty. Malaya Capulong, MD, LIB Negligence Want of care required by the circumstances. Failure to observe that degree of care, precaution and vigilance which the circumstances justly demand resulting in injury to another person.  How do we determine if a person acted in a negligent manner?  The existence of negligence is determined by the behavior of the person in the situation.  What is the standard of care?  That which an ordinary prudent man would exercise under the same circumstances.

September 19, 2015

The cause/the wrongful act of the physician must be efficient and must not be too remote from the development of the injury.

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Medical Malpractice Any act or failure to act by a member of the medical profession that results to harm, injury, distress, prolonged physical or mental suffering or the termination of life to a patient while that patient is under the care of that medical professional Bad or unskillful practice of medicine which results in injury to the patient 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 in injury to the patient. Doctors Nurses Midwives Pharmacists Dentists Physical Therapists 4 Elements of Malpractice  Duty  Breach  Injury  Proximate Causation Duty Duty to:  Possess medical knowledge  Possess the necessary skills  Exercise care  Use sound medical judgment It is the responsibility of every doctor to practice medicine according to the ethical standards of his profession  Ordinary prudent man  Reasonably competent practitioner in the same class, acting in similar circumstances. Breach Failure to diagnose or misdiagnosis Failure to provide appropriate treatment Unreasonable delay in treatment Injury Failure to adhere to standard of case  Injury “But for” the physician’s conduct the patient would not have been injured. Proximate Causation That cause, which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. There must be a direct physical connection between the wrongful act of the physician and the injury sustained by the patient.

Transcribers: GONZAGAs, MONTEMAYOR

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The result must be the natural continuous and probable consequences.

LEGAL PRINCIPLES AND DOCTRINES APPLIED IN MEDICAL MALPRACTICE CASES Doctrine of Res Ipsa Loquitor  “The thing speaks for itself”  The fact of occurrence of injury raises the presumption of negligence. 1. The patient was injured in a manner that would not normally occur but for a breach of the applicable standard of care; 2. He was injured by an agency or instrumentality within the exclusive control of the defendant; 3. Other possible causes are sufficiently eliminated by the evidence such that the jury could reasonably conclude that the negligence was, more probably than not, that of the defendant

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Doctrine of Vicarious Liability Liability for the tort of another Secondary or indirect liability Art. 2180, Civil Code of the Philippines  Obligations are 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 xxx in which the latter are employed or on the occasion 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 xxx…  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.” Employer becomes liable for the acts of an employee. Employee must be acting within the scope of their responsibilities. Employer – Employee relationship must exist and proven. “Captain of the Ship” Doctrine Assumes that the doctor is in complete control of everything and everyone in the OR. Largely abandoned in other jurisdictions. “Borrowed Servant” Doctrine The physician “borrows” the nurses, med tech, residents etc. employed by the hospital to help him provide medical care to his patients. 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 borrowed from the hospital and for any wrongful act committed by them during the period, their temporary employer must be held liable.

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Negligence & Malpractice 

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When is an employee considered the “borrowed servant” of another?  The employee is subject to the control of another with regard to the work done and the manner of performing it  The work to be done by the employee is for the benefit of the temporary employer. Doctrine of Contributory Negligence Doctrine of Common Fault 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. 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.” 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. The absence of reasonable care on the part of the patient or his attendant that combines with the negligent action of the doctor resulting in the damage completed off directly and without which damage should not have occurred. 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” - a person who assents and was injured is not regarded in law to be injured.

Transcribers: GONZAGAs, MONTEMAYOR

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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.

Doctrine of Apparent Authority Or Ostensible Agent  Fixes liability when there is no EmployerEmployee relationship 1. The principal holds itself out to the public as a provider of medical services through advertising or by an express representation. 2. The patient “looked” to the hospital to provide competent medical care.  RAMOS vs. COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER, ET. AL (April 11, 2002)  No Employee-Employer relationship between Drs. Hosaka and Gutierrez and De Los Santos Medical Center  Drs. Hosaka and Gutierrez are solely liable for their own negligent acts  Is a Hospital Liable for Medical Malpractice? Yes.

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Doctrine of Apparent Authority Plaintiff was led to believe that the negligent person was an employee or agent of the hospital – Appearance of authority The hospital knew that the person was claiming to be an agent/employee of the hospital The person relied upon the conduct of the hospital Rogelio P. Nogales, et. al.vs. Capitol Medical Center, et. al. (December 19, 2006)  CMC granted hospital privileges to Dr. Estrada  On admission, consent forms were printed on CMC letterhead  The spouses Nogales were not informed that Dr. Estrada was an independent contractor  Mr. & Mrs. Nogales chose Dr. Estrada because of his affiliation/employment with CMC which they characterized as a reputable hospital PROFESSIONAL SERVICES, INC. vs. AGANA AGANA vs. JUAN FUENTES AMPIL vs. AGANA (JANUARY 31, 2007)  PSI’s (Medical City Hospital) liability is based on: o Doctrine of Apparent Authority o Doctrine of Corporate Negligence

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Negligence & Malpractice Doctrine of Apparent Authority: By accrediting Dr. Ampil & Dr. Fuentes and publicly advertising their qualifications the hospital created the impression that they were its agents. Doctrine of Corporate Negligence: The hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital.

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Doctrine of Corporate Negligence The duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. Hospitals now tend to organize a highly professional medical staff whose competence and performance need to be monitored by the hospitals commensurate with their inherent responsibility to provide quality medical care. Duty of a hospital 1. the use of reasonable care in the maintenance of safe and adequate facilities and equipment; 2. the selection and retention of competent physicians; 3. the overseeing or supervision of all persons who practice medicine within its walls; and

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Transcribers: GONZAGAs, MONTEMAYOR

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the formulation, adoption and enforcement of adequate rules and policies that ensure quality care for its patients Questionable Sponge Count  Scrub Nurse’s Duty  Hospital Liability -END-

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QUIZ with ANSWERS Failure to observe that degree of care, precaution and vigilance which the circumstances justly demand resulting in injury to another person. (Negligence) That which an ordinary prudent man would exercise under the same circumstances. (Standard of Care) 4 elements of malpractice (Duty, Breach, Injury, Proximate Causation) 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 in injury to the patient. (Malpractice) The duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician but also the hospital. (Doctrine of Corporate Negligence) Fixes liability when there is no Employer-Employee relationship (Doctrine of Apparent Authority) Physician who has the last clear chance of avoiding damage or injury but negligently fails to do is liable. (Doctrine of Last Clear Chance) Predicated upon knowledge and informed consent (Doctrine of Assumption of Risk) Doctrine of Common Fault (Doctrine of Contributory Negligence) They are under the temporary supervision and control of another other than their employer while performing their duties. (Borrowed Servant Doctrine) Assumes that the doctor is in complete control of everything and everyone in the OR. (Captain of the Ship Doctrine) Secondary or indirect liability (Doctrine of Vicarious Liability) The fact of occurrence of injury raises the presumption of negligence. (Doctrine of Res Ipsa Loquitor)

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