Hayden Kho (1)

25. Discuss. Several sex videos found their way in the internet showing a physician having sex with various female partners. Videos were apparently taken without the knowledge and consent of the women, some of whom were his patients. Immorality complaints were filed against the physician before the Professional Regulations Commission. Commission. (Read about the Hayden Hayden Kho case) The case involves Hayden Kho Jr a physician and Katrina Halili, a movie actress. It started with a consultation for liposuction and prospered into a relationship. News about a sex video of them circulated around December 2008; such video eventually surfaced the next year . Because of its circulation online, Katrina Halili filed a case before the Board of Medicine for immorality and dishonorable conduct of the physician. The board therein found Mr. Kho guilty even though such act was not related to medicine. The PRC then subsequently ruled that a high standard of morality is to be expected of any member of the medical profession and such conduct should remain with him publicly and privately. This act of taking videos of his sexual activities with Ms. Halili without her knowledge and consent constitutes an immoral act which is a ground for his license to be revoked. This case was then raised to the Court of Appeals. The court discussed such issues as relevant to the practice of medicine in relation to this case. It involved having a certain level of professionalism professionalism and honor so as to practice this profession. The court mainly discussed about the immorality of recording one's sexual intercourse without his pa rtner's consent regardless of the period it was made. Ms. Halili's main contention and cause of action was not for the release of the said video but is more anchored upon the dishonorable conduct that Mr. Kho exemplified. The case also talked about the violation of RA 9262 or otherwise known as the Anti-violence against women and their children act o f 2004. Even though the RTC dismissed the case for lack of evidence, the Court of Appeals 1

ruled otherwise by Mr. Kho's admission of h aving taped the video without the consent and knowledge of Ms. Halili . It is important to note that regarding his profession, his absolution from a criminal charge would not prevent his administrative punishment; punishment; the revocation of his license. Similar to the practice of legal profession, every practitioner of medicine must sustain a good moral character. This is a continuing requirement to its practice as embodied in the Code of Ethics. Section 24, Article III of RA 2382 (Medical Act of 1959) also provided for the grounds in which disciplinary measures could be held for physicians. One of which is for Immoral and dishonorable conduct. What constitutes constitutes immoral conduct is also defined by this court as "that conduct which is willful, flagrant, or shameless and which shows 2

a moral indifference to the opinion of the good and respectable members of the community."  It also stated that such conduct need not be connected to the practice of medicine and acts as a legislative catch-all ground for the inclusion of reprehensible acts of a physician. The State may revoke such license even if it only relates to his personal life. Because of this continuing requirement, a practitioner of medicine must always abide by the strict ethical and moral principles set in the Code. Indeed, it is well stated that a license to practice medicine is a privilege or franchise

1

 Kho v Halili, G.R. No. 121130, July 6, 2012  St. Louis University Laboratory High School Faculty and Staff vs. Dela Cruz, A.C. No. 6010, August 28, 2006. 2

granted by the government and is a right that is earned through years and such right is earned through the granting of a license. Such license can be suspended or revoked by the State who i nitially issues it.

3

To reiterate, the practice of medicine is a privilege granted by the State and such privilege must be exercised with due morality and honor with continuity. Such disregard of the needed conduct can be punishable with disqualification even if the immoral act not related to the practice of medicine.

26.

Discuss the Administrative liability of Physicians (Medical Act of 1959, Secs. 10  –  12, 24, 27  –  28, Code of Medical Ethics, E.O. No. 212, “Amending Presidential Decree No. 169” (July 10, 1987)). What are the grounds to hold a physician administratively liable?

 Administrative liability is best understood with reference to the administrative-regulatory 4

technique element of law, which may be defined as the regulation of wholesome activity . Thus, 5

administrative liability is separate and distinct from penal and civil liabilities . It is also commonly attributed to the fault or negligence committed by public officials in the performance of their duties. Being one tainted with high public interest, it is therefore the duty of the State to ensure that the medical profession, which affects the very lives of the people, is not infiltrated by incompetents to 6

whom patients may unwarily entrust their lives . Thus, Philippine Legislature ensured that the Philippine medical profession would be well regulated and supervised in its role in the promotion and advancement of public health. This is done through the enactment of Republic Act No. 2382, otherwise known as the ―Medical Act of 1959‖.

The Medical Act of 1959 adopts the ―supervision, control and regulation of the practice of 7

medicine in the Philippines‖ as one of its three (3) primary objectives . Thus, the Board of Medical Examiners (now the Board of Medicine under the Professional Regulation Commission) are given the following duties and functions, among others:

(1) To administer oath to physician who qualified in the examinations; (2) To study the conditions affecting the practice of medicine in all parts of the Philippines; (3) To exercise the powers conferred upon it by this article with the view of maintaining the ethical and professional standards of the medical profession; (4) To subpoena or subpoena ducestecum witnesses for all purposes required in the discharge of its duties; and 3

 Kho v Halili, G.R. No. 121130, July 6, 2012 Robert S. Summers, The Technique Element in Law , 59 Cal. L. Rev. 733 (1971). 5 Tecson vs. Sandiganbayan, 376 Phil. 191, 199 (199). 6 DECS vs. San Diego, 180 SCRA 533 (1989). 7 Sec. 1 (c), R. A. No. 2382. 4

(5) To promulgate, with the approval of the Commissioner of Civil Service such rules and regulations as it may deem necessary for the performance of its duties in harmony with the provisions of this Act and necessary for the 8

proper practice of medicine in the Philippines.

Further, the same Act prescribes the primary grounds by which administrative liability may be imposed upon an erring physician, thus:

―Section 24.Grounds for reprimand, suspension or revocation or registration certificate.  –  Any of the following shall be sufficient ground for reprimanding a physician, or for suspending or revoking a certificate of registration as physician:

1.

Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude;

2.

Immoral or dishonorable conduct;

3.

Insanity;

4.

Fraud in the acquisition of the certificate of registration;

5.

Gross negligence, ignorance or incompetence in the practice of his or her profession resulting in an injury to or death of the patient;

6.

Addiction to alcoholic beverages or to any habit-forming drug rendering him or her incompetent to practice his or her profession, or to any form of gambling;

7.

False or extravagant or unethical advertisements wherein other things than his name, profession, limitation of practice, clinic hours, office and home address, are mentioned;

8.

Performance of or aiding in any criminal abortion;

9.

Knowingly issuing any false medical certificate;

10. Issuing any statement or spreading any news or rumor which is derogatory to the character & reputation of another physician without justifiable motive; 11. Aiding or acting as a dummy of unqualified or unregistered person to practice medicine; 12. Violation of any provision of the Code of Ethics as approved by the Philippine Medical Association. Refusal of a physician to attend a patient in danger of death is not a sufficient ground for revocation for suspension of his registration certificate if there is a risk to the physician’s life. 8

Sec. 22, R.A. No. 2382

These grounds imposing administrative liability are notwithstanding the penal and civil sanctions which the court may award in favor of the aggrieved party. Moreover, Presidential Decree (P.D.) No. 169, as amended by Executive Order (E.O.) No. 212, requires the attending physician of any hospital, medical clinic, sanitarium or other medical establishments, or any other medical practitioner, who has treated any person for serious or less serious physical injuries as defined in  Articles 262, 263, 264 and 265 of the Revised Penal Code, to ―report the fact of such treatment promptly to the nearest government health authority‖, without any fee to be charged for the transmission of such report through government communication facilities, and providing further that ―records of the reports as kept by said health authorities shall, upon written request, be made 9

available to law enforcement agencies‖ . Thus, a violation of the same or of the rules and regulations issued by the Secretary of Health, in consultations with the Philippine Constabulary, would therefore subject the violator to be punished administratively with a fine that shall not be less than One Hundred Pesos (P100.00) nor more than Five Hundred Pesos (P500.00), and in addition, the license or permit of the attending physician shall be cancelled upon the third violation thereof or 10

of its implementing rules and regulations .

27.

Can a physician be made administratively liable for violating the Code of Medical Ethics? Why (if yes, what is your legal basis) or why not?

Yes, a physician may be held administratively liable for a violation of the Code of Ethics of the Philippine Medical Association. Thus, Section 24 of the Medical Act of 1959 states:

―Section 24.Grounds for reprimand, suspension or revocation or registration certificate.  –  Any of the following shall be sufficient ground for reprimanding a physician, or for suspending or revoking a certificate of registration as physician:

x xx

12. V i o l a t i o n o f a n y p r o v i s i o n o f t h e C o d e o f E th i c s a s approved

by

the

Philippine

Medical

. Association 

Refusal of a physician to attend a patient in danger of death is not a sufficient ground for revocation for suspension of his registration certificate if there is a risk to the physician’s life.‖

9

Sec. 1, E.O. No. 212. Sec. 4, Ibid.

10

28. Which of the grounds to hold a physician administratively liable also constitute criminal acts that may be punished under the RPC? Section Five. — Falsification of medical certificates, certificates of merit or services and the like.

Art. 174. False medical certificates, false certificates of merits or service, etc. — The penalties of arresto mayor in its maximum period to prisioncorreccional in its minimum period and a fine not to exceed P1,000 pesos shall be i mposed upon: 1. Any physician or surgeon who, in connection, with the practice of his profession, shall issue a false certificate; and 2. Any public officer who shall issue a false certificate of merit of service, good conduct or similar circumstances. The penalty of arresto mayor shall be imposed upon any private person who shall falsify a certificate falling within the classes mentioned in the two preceding subdivisions.

Art. 175. Using false certificates. — The penalty of arrestomenor shall be imposed upon any one who shall knowingly use any of the false certificates mentioned in the next preceding article

Section Two. — Infanticide and abortion. Art. 255. Infanticide. — The penalty provided for parricide in Article 246 and for murder in Article 248 sh all be imposed upon any person who shall kill any child less than three days of age. If the crime penalized in this article be committed by the mother of the child for the purpose of concealing her dishonor, she shall suffer the penalty of prisioncorreccional in its medium and maximum periods, and if said crime be committed for the same purpose by the maternal grandparents or either of them, the penalty shall be prision mayor. Art. 256. Intentional abortion. — Any person who shall intentionally cause an abortion shall suffer: 1. The penalty of reclusion temporal, if he shall use any violence upon the person of the pregnant woman. 2. The penalty of prision mayor if, without using violence, he shall act without the consent of the woman. 3. The penalty of prisioncorreccional in its medium and maximum periods, if the woman shall have consented. Art. 257. Unintentional abortion. — The penalty of p risioncorreccional in its minimum and medium period shall be imposed upon any person who shall cause an abortion b y violence, but unintentionally.

Art. 258. Abortion practiced by the woman herself of by her parents. — The penalty of prisioncorreccional in its medium and maximum periods shall be imposed upon a woman who shall practice abortion upon herself or shall consent that any other person should do so.  Any woman who shall commit this offense to conceal her dishonor, shall suffer the penalty of prisioncorreccional in its minimum and medium periods. If this crime be committed by the parents of the pregnant woman or either of them, and they act with the consent of said woman for the purpose of concealing her dishonor, the offenders shall suffer the penalty of prisioncorreccional in its medium and maximum periods. Art. 259. Abortion practiced by a physician or midwife and dispensing of abortives. — The penalties provided in Article 256 shall be imposed in its maximum period, respectively, upon any p hysician or midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist in causing the same.  Any pharmacist who, without the proper prescription from a physician, shall dispense any abortive shall suffer arresto mayor and a fine not exceeding 1,000 pesos.

29. Briefly outline the Code of Medical Ethics Code of Medical Ethics by Philippine Medical Association

General Principles: 

Section 1: The primary objective of medicine is service to mankind (non discrimination). Financial gains should be subordinate to the service



Section 2: On entering the profession, the physician must maintain obligations in order to the tradition of being a ―friend to mankind‖. He should follow the principles of the international code of moral ethics.



Section 3: Physician must fulfill his civic duties. Conform and cooperate to the laws in application of his medical knowledge for the promotion of common welfare.



Section 4: Physicians should work in harmony



Section 5: They should work to safeguard reputation of paramedical and other health professionals



Sections 6:Physicians should be upright, diligent, sober, modest and well versed in both the science and the art of the profession. (not e dited)



Section 7: The promotion and advancement of the health of the patients should be prioritized over the benefits of the physicians and the health products industries.

Article II: Duties and Responsibilities to their patients



Section 1: He should be competent, compassionate, independent and respectful of human dignity



Section 2: he is free to choose his patients



Section 3: he should administer first aid treatment when presented (in an emergency) provided that his safety is not compromised and refer the patient to a more competent health provider/facility when necessary (aka you shouldn’t decline emergency situations)



Section 4: [unedited] In serious/difficult cases, or when the circumstances of the patient or the family so demand or justify, the attending physician should seek the assistance of the ap propriate specialist. [edit: in cases the expertise of the physician cannot handle, he should seek assistance to the appropriate specialist]



Section 5: He should express good faith in presenting his diagnosis, prognosis (forecast), and treatment under his care. Patient also has a right to refuse medical care and if absence of medical intervention will worsen the patient’s condition, it is up to the patient or his family to make the decision. No information should be concealed or exaggerated. If the patient is a minor or mentally deficient, authorization may be given to parents, spouse, or immediate relatives (or party authorized by advance directive of the patient).



Section 6: information about the patient must be u ndisclosed by the physician even after patient’s death except when disclosure is required to promote justice, safety and public health.



Section 7: prof essional fee should be rendered in due consideration of what is appropriate for patient’s financial status and case.

Article III: Duties of Physicians to the Community 

Section 1: Physician should cooperate with health authorities. In a state of epidemic or public calamity, unless his safety is at stake, he must attend to victims and alert authorities for any alarming circumstance (example: communicable diseases that may put the community in danger)



Section 2: He should assist the government in administration of justice. He may be given fair remuneration for his expertise.



Section 3: he is encouraged to tell authorities of unlicensed medical practitioners or etc (that deem harmful to health and life). He shouldn’t condone or connive with any.



Section 4: He is not allowed to employ agents in the solicitation and recruitment of patients. In terms of promotion of his medical practice, he is only limited to: professional cards, classified ads, publications, internet, directories and signboards (shall not exceed 1x2 meters). Except internet: only name, specialty, office hours, or office address may appear. Credentials of his superiority (certificates, specific trainings) is not allowed to be published online and is allowed only in the confines of his clinic/residence. For internet: for the benefit of their patient, his qua lifications and capabilities as a doctor may be posted)



Section 5: if physician is involved in multimedia, he must be knowledgeable about matter under discussion. Only name and institution he is affiliated with may be posted. He can only give a general opinion and must refrain from making a specific diagnosis of individual cases as they appear on media. An article written by him should be evidence-based and disclose his connections with pharmaceutical or health companies. He should not commercially endorse any medical or health product.

Article IV: Duties of Physicians to other colleagues and to the profession 

Section 1: physician fee is waived to a colleague, his or her spouse, children, and parents who are financially dependent on him



Section 2: when necessary, physician should always seek consultation from available appropriate specialist



Section 3: primary and consultant physicians must observe referral system protocol. In making referral, physician should forward a clinical abstract and specify purpose of referral.



Section 4: With the consent of the patients, during his temporary absence, the substitute physician should treat the patient as his own (same quality and care). Patient should be returned to the care of primary physician asap.



Section 5: Whenever a physician makes a social or business call on a patient under the care of another, making comments pertaining to the case is unethical unless if an emergency arises. [unedited]



Section 6: When there is a difference of opinion among physicians regarding a case, it should be referred to PMA or specialty society concerned.



Section 7: Members of the editorial board of medical board should be qualified. Any pharmaceutical support should be disclosed and must be independent of any commercial influence.



Section 8: No commission for referral.



Section 9: report to PMA or Board of Medicine if he is in knowledge of corrupt practitioners in the profession



Section 10: medical education conferences must be organized by a medical society on its own or in cooperation with sponsoring entities



Section 11: Donations from commercial source may be accepted for the benefit of association



Section 12: They may accept subsidies from health and other activities to support their participation in CME activities



Section 13: Faculty/speaker/consultant of such activities is allowed to accept reimbursement (for transpo, lodging and meals)



Section 14: Scholarships are permissible as long as selection is done by organizers or academic institutions concerned



Section 15: Generic names shall be used during CME activities.



Section 16: if commercial products are part of the overall program, it should not influence planning or interfere with the activities.

Article V: Duties of Physicians to Allied Professionals 

Section 1: Physicians should never pay nor receive commission to or from any allied health worker for cases referred. [unedited]

Article VI: Relationship of physicians with the health product industry 

1: no material gain from product samples



2.: may participate in post marketing provided patients give their consent



3: only reasonable value gifts may be accepted by a physician from a health product company



4: physicians may request donations for a charitable purpose



5: Research activities shall be ethically defensible, socially responsible, and scientifically valid. Any remuneration should be reasonable and should not constitute an enticement. [unedited]



6: research trials conducted must be done in accordance to proper guidelines for the protection of human subjects

Article VII: Amendments 

1: The Board of Governors of the Association, upon recommendation of the Commission on Ethics may amend or repeal this code by a 2/3 vote of themembers of the Board.  Amendments shall be subsequently ratified by the General Assembly following the approval by the Board.[unedited]

30. There are advertisements showing doctors apparently endorsing commercial products. Discu ss in r e l a t io n t o t h e C o d e o f M e d i c a l E t h i c s .

Doctors are prohibited from commercially indorsing a commercial product as provided for Section 8 of the Code of Ethics of the Philippine Medical Association. Section 8 states that ―a physician shall not commercially 11

endorse any medical or health product.‖ Dr. Rey-Melchor Santos, former president of the Philippine Medical  Association, stated that an appearance of the doctor in an advertisement is tantamount to the endorsement of such 12

product. Violations thereof would be a sufficient ground for reprimanding a physician, or for suspending or revoking a certificate of registration as physician under number 12 o f Section 24 of Article III of the Medical Act of 1959.

13

Prior to the revision of the Code of Ethics of the Philippine Medical Association, there was an increasing 14

amount of doctors that were endorsing food supplements that do not have an approved therapeutic claims. This led to the decision by the Philippine Medical Association to modify its Code o f Ethics. People usually rely on the representations of a doctor concerning medical diagnosis, prescription and other medical products.Therefore, a consequence produced by an advertisement featuring a physician would be the misplaced confidence by the viewers over products which have no approved therapeutic claims. Consumers are led to believe that a certain product works due to the assurance or endorsement by the physician which is detrimental to

11

CODE OF ETHICS OF THE PHILIPPINE MEDICAL ASSOCIATION, art III, §5  GMA News Online, Doctors p rohibited from endorsing healthcare products, available at http://www.gmanetwork.com/news/story/117966/news/nation/doctors-prohibited-from-endorsing-healthcareproducts, (last accessed August 28, 2014) 13  The Medical Act of 1959, Republic Act No. 2382, (1959) 14  Ibid. 12

the consumer not only financially, but maybe physically as well.For example, in the past, cigarettes capitalized on public’s trust of physicians to promote and quash any doubts concerning the effects of cigarettes.

15

3 1 . P h a r m a c e u t i c a l c o m p a n y f u n d s a m e d i c a l r e s e ar c h c o n d u c t e d b y a p h y s i c i a n . Is t h i s a l l o w e d ?

This is allowed. There is no express prohibition in the Code of Ethics of the PMA that forbids a pharmaceutical company from funding a medical research conducted by a physician. Section 5, Article VI of the Code of Ethics of the Philippine Medical Association merely states, ―Research activities shall be ethical ly defensible, socially responsible, and scientifically valid. Any remuneration should be reasonable and should not constitute an 16

enticement.‖

17

The title of Article VI is the ―Relationship of Physicians with the Health Products Industry.‖  Logically, it

can be deduced that the funding for such research activities and the source of remuneration is the Health Products Industry.

15

HemOnc Today, Cigarettes were once ‘physician’ tested, approved , available at http://www.healio.com/hematology-oncology/news/print/hematology-oncology/%7B241d62a7-fe6e-4c5b9fed-a33cc6e4bd7c%7D/cigarettes-were-once-physician-tested-approved (last accessed August 28, 2014) 16 CODE OF ETHICS OF THE PHILIPPINE MEDICAL ASSOCIATION, art VI, §5 17 Ibid.