Legal Med

LEGAL/FORENSIC-MEDICINE- Atty.%Tony%D.%Rebosa,MD,BSCrim%% Trans%by:%Jod% %%%%%%%% • LEGAL-MEDICINE% o %application%of%medical%knowledge%to%the%purposes%of%law% and%in%the%administration%of%justice% • MEDICAL-JURISPRUDENCE%% o knowledge%of%law%in%relation%to%the%practice%of%medicine% % PRINCIPLE-OF-STARE-DECICIS• When%the%court%has%once%laid%down%a%principle%of%law%or%interpretation% as%applied%to%certain%state%of%facts,%it%will%adhere%to%and%apply%to%all% future%cases%where%the%facts%are%substantially%the%same%% % BASIC-PRINCIPLES-GOVERNING-APPLICATIONS-AND-EFFECTS-OF-LAWS1. Ignorance%of%the%law%excuses%no%one%from%compliance%therewith% 2. Laws%shall%have%no%retroactive%effect%unless%the%contrary%is%provided% 3. Rights%may%be%waived%unless%the%waiver%is%contrary%to%law%,%public% order,%morals%or%good%customs%or%prejudicial%to%a%third%person%with%a% right%recognized%by%law% 4. Customs%which%are%contrary%to%law,%public%order%and%public%policy%shall% not%be%countenanced.%A%custom%must%be%proved%as%a%fact%according%to% the%rules%of%evidence.%%% 5. Laws%are%repealed%only%by%subsequent%ones%and%their%violation%and% nonPobservance%shall%not%be%excused%by%disuse,%custom%or%practice%to% the%contrary% % EVIDENCE• means%sanctioned%by%the%Rules%of%Court%of%ascertaining%in%a%judicial% proceeding%the%truth%respecting%a%matter%of%fact% % TYPES-OF-MEDICAL-EVIDENCE1.%AUTOPTIC--or-REAL-EVIDENCE% • addresses%to%the%senses%of%the%court% 2.%TESTIMONIAL-EVIDENCE%% • ex.%MD%in%the%witness%stand% %%%%%%%%%a)%Ordinary%Witness% %%%%%%%%%b)%Expert%%Witness% 3.%EXPERIMENTAL-EVIDENCE% • if%allowed%by%the%court%to%confirm%or%corroborate% 4.%DOCUMENTARY-EVIDENCE% • writings/photographs% %%%%%%%%%a)%medical%certificates% %%%%%%%%%b)%medical%expert%opinion% %%%%%%%%%c)%deposition% 5.%PHYSICAL-EVIDENCE% • articles%and%materials%found%in%connection%with%the%investigation%and% which%aids%in%establishing%the%identity%of%the%perpetrator% % • CRIMINALISTICS% o ID,%collection,%preservation,%and%mode%of%presentation%of%% physical%evidence;%application%of%sciences%in%crime%detection% and%investigation% • CORPUS-DELICTI-EVIDENCE-% o objects/substances%which%maybe%a%part%of%the%body%of%the% crime% • ASSOCIATIVE-EVIDENCE%% o evidence%that%may%link%suspect%to%the%crime% • TRACING-EVIDENCE%% o evidence%that%may%assist%investigator%in%locating%the%suspect%% • SKETCHING%% o rough%drawing%of%the%scene%or%object% • Rough%% o made%at%the%crime%scene% • Finished-% o sketch%prepared%from%the%rough%sketch%for%court% presentation% %

KINDS-OF-EVIDENCE-NECESSARY-FOR-CONVICTION• DIRECT%% o that%which%proves%the%fact%in%dispute%without%the%aid%of%any% inference%or%presumption% • CIRCUMSTANTIAL%% o the%proof%of%facts%from%which%taken%either%singly%or% collectively,%the%existence%of%a%particular%fact%in%dispute%may% be%inferred%as%a%necessary%or%probable%consequence% % WEIGHT,-SUFFICIENCY-AND-APPRECIATION-OF-EVIDENCE• CIVIL-CASE%% o preponderance%of%evidence% • CRIMINAL-CASE% o proof/guilt%beyond%reasonable%doubt% • ADMINISTRATIVE-CASE% o %substantial%evidence% DECEPTION-DETECTION1. Devices-that-record-the-psychoP%physiological%responses% • Polygraph/lie%detector%machine%(25%%error)% • Word%Association%test% • Psychological%Stress%Evaluator% 2. Drugs-that-try-to-“inhibit-the-inhibitor”-• Truth%Serum%–%hyoscine%hydrobromide%% • Narcoanalysis%/%narcosynthesis%% • Intoxication% 3. Hypnotism%% • alteration%of%consciousness%and%concentration%in%which%the% subject%manifests%heightened%suggestibility%% 4. Observation5. Scientific-Interrogation6. Confession%% • expressed%acknowledgement%by%the%accused%in%a%criminal% case%of%the%truth%of%his%guilt%as%to%the%crime%charged%% % TYPES-OF-CRIMINAL-OFFENDERS1. Based-on-Behavioral-Attitude% • Active-Aggressive-Offender%% o impulsive,%aggressive%behavior% • Passive-Inadequate-Offender% o %inducement,%promise,%reward% 2. Based-on-the-State-of-Mind% • Rational-Offender%% o with%motive,%%intention,%prePevident%meditation% • Irrational-Offender%% o does%not%know%nature%and%quality%of%act% 3. Based-on-Proficiency% • Ordinary-% o lowest%form%of%criminal%%career,%limited%skill% • Professional%% o highly%skilled,%rarely%detected%%%ex.pickpockets,shoplifter% 4. Based-on-Psychological-Classification% • Emotional% o heat%of%passion,%anger,%revenge% • NonSEmotional%% o commit%crimes%for%financial%gain%and%are%usually%recidivist% % TECHNIQUES-OFINTERROGATION1. EMOTIONAL%APPEAL% 2. MUTT%AND%JEFF% 3. BLUFF%ON%SPLIT%PAIR%TECHNIQUE% 4. STERN%APPROACH% 5.% LENGHTY,%TIME%CONSUMING%NARRATION% % % % % % %

IDENTIFICATIONLAW-OF-MULTIPLICITY-OF-EVIDENCE-IN-IDENTIFICATION-• the%greater%the%number%of%points%of%similarities%and%dissimilarities% of%2%persons%compared,%the%greater%is%the%probability%for%the% conclusion%to%be%correct%% % CHARACTERISTICS-THAT-MAY-NOT-EASILY-BE-CHANGED• Mental%memory% • Speech% • Gait% • Mannerism% • Hands%and%feet% • Complexion% • Eye%changes% • Facies%% • Left/right%handedness% • Degree%of%nutrition% % GAIT%…%manner%of%walking% • ATAXIC%P%tabes%dorsalis% • CEREBELLAR%P%staggering%movement% • COW’S%P%swaying%movement,%knockPknee% • PARETIC%Pshort%steps,%foot%drag,% • SPASTIC%Pstiff% • FESTINATING%P%involuntary%movement% • FROG%P%hopping%gait,%infantile%% • WADDLING%P%duck% % FACIES/FACIAL-EXPRESSIONS• HIPPOCRATIC%P%pinched%nose% • MONGOLIAN%Palmond%eyes% • FACIES-LEONINE-P%lionPlike% • MYXEDEMIC%P%pale,%edematous%face% % FINGERPRINTINGConsidered%the%most%valuable%method%of%identification%and%is%universally% used%because:% 1. There%are%no%two%identical%fingerprints% 2. Fingerprints%are%not%changeable%% % • DACTYLOGRAPHY% o %is%the%art%and%study%%of%recording%fingerprints%as%a%means%of% identification% • DACTYLOSCOPY-% o %is%the%art%of%identification%by%comparison%of%fingerprints.%%It% is%the%study%and%utilization%of%fingerprint% • POROSCOPY%% o study%of%the%pores%found%on%the%% papillary%or%friction% ridges%of%the%skin%for%purposes%of%identification% % KINDS-OF-IMPRESSION• REAL-IMPRESSION%% o impression%of%the%finger%bulbs%with%the%printing%ink%on% the%surface%of%the%paper% • CHANCE-IMPRESSION%% o fingerprints%impressed%by%mere%chance%without%any% intention%to%produce%it.%It%may%be:% %%%%%%%%%%P%Visible% %%%%%%%%%%P%Plastic% %%%%%%%%%%P%Latent%%%%% % CAN-FINGERPRINTS-BE-EFFACED?% CAN-FINGERPRINTS-BE-FORGED?% % % % %

BIBLIOTICS%% o science%of%handwriting%analysis% • GRAPHOLOGY%% o study%of%handwriting%for%the%purpose%of%determining% the%writer’s%personality,%character%and%aptitude% • DISGUISED-WRITING%% o deliberate%attempt%on%the%part%of%the%writer%to%alter%his% writing%habit%by%endeavoring%to%invent%a%new%writing% style%or%imitating%the%writing%of%another%person% • SIGNATURE-FORGERY-EXAMINATION%% o the%most%common%activity%of%a%Question%Document% Examiner.%Such%documents%may%be%found%in%checks,% deeds%of%conveyances,%anonymous%letters,%suicide% notes,%receipts,%etc.%% % CLASSIFICATION-OF-SIGNATURE-FORGERY%%%P%traced% %%%P%simulated% %%%P%spurious% % IDENTIFICATION-OF-SKELETAL-REMAINS• SEX%P%pelvis,%skull,%femur,%sternum,%humerus% • MALE-PELVIS-%%%% LEGAL-IMPORTANCE-IN-THE-STUDY-OF-BLOOD1. For%disputed%parentage%(paternity/maternity)% 2. Circumstantial%or%corroborative%evidence%against%or%in%favor%of%the% perpetrator%of%the%crime% 3. Determination%of%the%cause%of%death% 4. Determination%of%the%direction%of%escape%of%the%victim%or%the% assailant% 5. Determination%of%the%approximate%time%the%crime%was%committed% 6. Determination%of%the%exact%place%of%the%commission%of%the%crime%% 7. Determination%of%the%presence%of%certain%diseases% % CHEMICAL-EXAMINATION1. Saline%extract%of%the%blood%stain%plus%will%give%a%brownish%tinge% due%to%the%formation%of%alkaline%hematin%% 2. Benzidene%test% 3. Guiacum%test% 4. Phenolphthalein%test% 5. Leukomalachite%Green%test%% % MICROCHEMICAL-TESTS1. Hemochromogen%Crystal%or%Takayama%test% 2. Teichman%Blood%Crystal%Test%%or%Hemin%Crystal%test% 3. Acetone%–Haemin%of%Wagenhaar%test% % BIOLOGIC-TEST1. PRECIPITIN-TEST% o determines%whether%blood/semen%is%of%human%origin%or% not% 2. BLOOD-GROUPING% •

ACADs TEAM

Lecture #

LEGAL MEDICINE Lectured by: Dr. A. Rebosa LEGAL MEDICINE Is a forensic medicine Branch of medicine that deals w/ the application of medical knowledge to the purpose of law & administration of justice The application of basic clinical, medical & paramedical sciences to elucidate legal matters Physician is called as an Expert witness TERMS INJURY: from the Latin injuria (In- not, jus- the law); is often used synonymously w/ wound but can have a wider use o (Medical) damage to tissues by heat, cold, chemicals, electricity, radiation, in addition to mechanical force o (Legal) a comprehensive term for any wrong or harm done by one individual to another individual’s body, rights, reputation &/or property WOUND: o (Medical) disruption of the continuity of the tissues produced by external mechanical force o (Legal) breach of the full thickness of the skin (or lining of lip); this excludes abrasions, bruises, internal injuries & fractures LESION: from the Latin laesio (a hurt). Originally meant injury, now more widely applied to include any area of injury, disease or local degeneration in a tissue causing a change in its function or structure TRAUMA - bodily harm w/ or w/o structural alterations resulting from interaction w/ physico-chemical agents, imparting energy to tissues o May cause morphologically apparent damage (wound) or produce physiological imbalance (eg reflex cardiac arrest by neural stimulation) & secondary effects (eg thrombosis, infection, obstruction of tubular organs) WOUND / INJURY CLASSIFICATION OF INJURIES CONTUSION / BRUISE / ECCHYMOSIS (PASA) Escape of blood from ruptured small vessels (vein, capillaries, arterioles) into the surrounding tissues The resulting discolouration is seen through the overlying intact skin Due to blunt force trauma Site, shape, size, severity of bruising are very variable E.g. bumping yourself against something, hitting yourself w/ a hammer ABRASION / SCRAPE / GRAZE (GASGAS) A portion of the body surface from which the skin or mucous membrane has been crushed or removed by rubbing A superficial injury, not involving the full thickness of the skin, confined to epidermis/dermis Due to: o Direct impact: imprint (may reflect pattern of causative surface) o Tangential impact: graze or scratch (may reflect direction of impact) Always occur at the site of impact Types of abrasions: o Linear o Multi-linear o Confluent (tapyas) E.g. rope burns, dragged by a car, & the like Transcribed & Edited by: P.G.Montaño & J.Wang

LM

LACERATION / TEAR (PUTOK) Full thickness tearing of skin or tissue due to stretching & crushing by blunt force Ragged irregular edge, associated bruising/abrasion, tissue bridges Provides little specific information about the causal object E.g. fist blows, pipes, etc. INCISION / CUT, SLICE OR SLASH (HIWA) Clean division of the full thickness of skin (or other tissue) by a sharp-edged instrument. Clean cut edges, no associated bruising/abrasion, no tissue bridges & can easily be approximated Incised wound is LONGER THAN IT IS DEEP due to swipe action Provides little specific information about the causal object E.g. knives, razors, blade, scalpel, broken glass, etc. PUNCTURE / PENETRATING (TUSOK) A small hole made w/ a sharp point IT’S DEPTH EXCEEDS ITS LENGTH on the body surface Shape & size of wound often indicate dimensions of weapon Caused by objects that penetrates into the tissues while leaving a small surface opening As a rule, small puncture wounds do not bleed freely Due to a sharp/thin, e.g. needle (NEEDLE PUNCTURE) or a blunt/long/rigid, e.g. wooden stake (PUNCTURE) STAB WOUND (SAKSAK) A variant of penetrating/punctured wound Caused by an object or instrument w/ a sharp point and edge to thrust with a sharp object or instrument Due to a sharp/flat instrument; e.g. knives, blades, scalpel, etc. HACKING WOUND / CHOP (TAGA) Is a variant of incision Have clean-cut edges but an abraded margin due to inversion & friction against the sides of the wide blade on insertion A large incised wound w/ or as w/ heavy irregular blows & that is usually repetitive E.g. bolo, axe, etc HEMATOMA / BLOOD CYST OR TUMOR (BUKOL) Rupture or injury of a blood vessel wall w/ esxtravasation of blood to an existing or newly formed space, usually caused by a blunt object or instrument An abnormal collection of blood where the blood is usually clotted or partially clotted, is usually situated w/in an organ or soft tissue spaces SPECIAL TYPES OF WOUNDS PATTERNED WOUND Due to impact with a hard, patterned object with ridges/grooves May demonstrate the obvious pattern of the causal surface (tyre, shoe tread, car bumper, clothing, gun muzzle) DEFENSE WOUNDS Due a pattern of injuries sustained by taking protective action against anticipated trauma (accidental or assault) Indicates that victim was conscious, not completely surprised by attack and at least partly mobile SELF-INFLICTED WOUNDS Gunshot wounds & incised or stabbed wounds with sharp or pointed object are preferred, blunt force injuries are rarely selfinflicted Page 1 of 4

ACADs TEAM Accessible target sites & is usually unilateral w/ handedness SUICIDAL WOUNDS Almost same w/ self-inflicted wounds More associated w/ multiple, shallow, tentative “hesitation” wounds that are closely grouped, parallel & in the same direction FIRE ARMS Gunshot wound - a penetrating injury from a bullet that was fired from a gun Firearm identification - used to determine whether the gun that is subject of investigation was the same gun used or fired Inflamed gunpowder separated the projectile from the shell (projectile 1st then flame, gas & carbon) CLASSIFICATION OF FIREARMS Short - revolver, pistol, etc Long - rifle (AK47, M16), machine gun, etc Shotgun - releases multiple of projectiles (pellets) MAJOR PARTS OF FIREARMS Barrel Handle Trigger Percussion cap Firing pin Muzzle PARTS OF AMMUNITION (BALA) Shell / cartridge - “basyo” Gun powder - inside the shell Primer - made up of lead, antimony or barium Projectile - “tingga” KINDS OF BALISTICS Internal / interior - from the time you pull the trigger External / exterior - from the time the bullet leaved the barrel of the gun o Terminal - effect/s of the bullet on an object when hit Medical - when a bullet hits a human body NOTE: o Only physicians is competent to testify in medical ballistics o Only ballisticians can testify on internal, external & terminal ballistics FIRING DISTNCE 24inches o Embed in skin, lesser or no products of combustion o tattoing/stippling/peptering Shotguns - nearer firing distance causes more concentrated projectiles, while father causes more spreading of projectiles

PRODUCTS OF COMBUSTION Smudging smoke or soot Singeing - curling of hairs Tattooing, peppering stippling

Transcribed & Edited by: P.G.Montaño & J.Wang

Lecture #

LM

Contusion/abrasion collar - would help determine the relative position between the assailant &/or the victim to the trajectory of the bullet o Prominent area indicates the direction of the bullet Point of Entry Smaller & oval in shape unless it is a close contact fire The edges are inverted Depending upon the distance; may be positive for the products of combustion & paraffin test Have contusion or abrasion collar

Point of Exit Usually bigger & irregular or stellate in shape Everted & tissues are protruding Always negative Absent

PARAFFIN TEST OBSOLETE (in most countries) Used to determine whether the subject has recently fired a gun or not by detecting powder particles or gunshot residues Not used to determine whether the subject is the killer or shooter The value of the test is only presumptive & not conclusive because of false positive & false negative results False Positive False Negative Subject recently fired a gun, Subject is a professional totally not related to the incident Removed by incessant brushing Subject is a smoker w/ water or vinegar Subject is a farmer who deals w/ Paraffin was done beyond 3 days fertilizers from the time of incident POINTS OF ENTRY AND EXIT There may not be a point of exist but there is always a point of entry If only point of entry seen outside, the gun might be fired inside the mouth, nose or ears Multiple point of exits, bullet/projectile might have fragmented Note: o If there was a chance to defend self = homicide o If there was a chance to defend self = treachery/murder DEATH Complete cessation of all cardio-pulmonary (heart-lung) activities &/or cessation of all brain activities 3 kinds of death: o Somatic death / Clinical death - dead for less than 3 hours - Dead, but cells are still alive o Molecular / Cellular death - dead for 3-6 hours - Death also of the cells o “Apparent death” or State of suspended animation - Temporary loss of consciousness - Temporary cessation of the vital functions of the body - It is to prevent important to determine the condition of suspended animation premature burial MUSCULAR CHANGES IN THE BODY FOLLLOWING DEATH Importance: to help determine the approximate Time of Death (ToD) Stages: 1. Primary Flaccidity - Aka. “post mortem irritability” - The muscles are relaxed & is capable of contracting when stimulated - ToD 24-36hrs FORENSIC ENTOMOLOGY Involves the insects that are eating up the body POST MORTEM LIVIDITY It occurs in the most extensive areas of the most dependent portions of the body after death Importance: to determine the position of the body when the portion died 2 kinds: o Hypostatic lividity - blood is still in fluid form o Diffusion lividity - blood has already coagulated or clotted POST MORTEM EXAMINATIONS Internal examination of the dead Importance: to determine the Cause of Death (CoD) Negative results: o Negative autopsy - after the autopsy CoD is still unknown o Negligent autopsy - CoD is still unknown because of so many errors committed during the autopsy May be official or non-official: Official Non-official / Non-medico Legal Medico Legal or mandatory Hospital based or elective autopsy autopsy Done on those who died of Done to those who died of unnatural causes or w/ natural/biologic causes suspected foul play Body is responsibility of the next Body is property of the state of kin NO NEED for consent of the next Consent from the next of kin is of kin NEEDED The next of kin will decide ALWAYSs a TOTAL autopsy whether a total or partial autopsy Only those authorized by law Done by the pathologist of the may perform this kind of autopsy hospital PERSONS ALLOWED BY LAW TO PERFORM OFFICILA AUTOPSY Medico legal of PNP Medico legal of NBI Municipal Health Officer who are considered ex-officio medical officer Those authorized by an ordinance or thru request from the chief of police, mayor or prosecutor VIRGINITY A condition of a female who has not experienced sexual intercourse & whose genital organs have not been altered by carnal connection & whose hymen is still intact VIRTUOUS FEMALE If her body is pure & if she has never had any sexual intercourse w/ another, through her mind & heart may be impure Transcribed & Edited by: P.G.Montaño & J.Wang

Lecture #

LM

KINDS OF VIRGINITY MORAL VIRGIN The state of not knowing the nature of sexual life & not having experienced sexual relation Applies mostly to children below age of puberty & whose sex organs & secondary sexual characteristics has not yet developed PHYSICAL VIRGIN Condition whereby a woman is conscious of the nature of sexual life but has not experienced sexual intercourse Distinctions between True & False physical virginity: a) True physical virginity - a condition wherein the hymen is intact w/ edges distinct & regular & the opening is small to barely admit the tip of the smallest finger of the examiner even if the thighs are separated b) False physical virginity - a condition wherein the hymen is unruptured but the orifice is wide & elastic to admit two or more fingers of the examiner w/ lesser degree of resistance - The hymen may be laxed & distensible & may have previous sexual relation; this situation where the physician may not be able to make a convincing conclusion that the subject is a virgin or not DEMI-VIRGIN The term refers to a condition where the woman permits any form of sexual liberties as long as they abstain from rupturing the hymen by sexual act The woman may be embraced, kissed, may allow her breast to be fondled, her private organ be held & other lascivious acts The woman may allow sexual intercourse but only “inter-femoral” or even “inter-labial” but not to the extent of rupturing the hymen Hymen is still intact “VIRGO INTACTA” Literally the term refers to a truly virgin woman; that there are structural changes in her organ to infer previous sexual intercourse & that she is a virtuous woman In as much as there are no conclusive evidence to prove the existence of such condition, liberal authorities extend the connotation of the term to include women who have had sexual acts or even habitually but had not given birth DEFLORATION Is the laceration or rupture of the hymen as a result of sexual intercourse All other lacerations of the hymen which are not caused by sexual act are not considered as defloration OTHER CAUSES OF HYMENAL LACERATIONS Passage of clotted blood during menstruation Ulceration due to disease like diphtheria Jumping or running Falling on hard sharp object (not a penis) Medical instrumentation Self-scratching or irritation Masturbation Insertion of foreign body/s Previous operation Horseback riding Aerobics &/or biking Trauma to the genitals

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ACADs TEAM DEGREE OF LACERATIONS INCOMPLETE LACERATION When rupture or laceration does not involve the whole width or height of the hymen o Superficial - the laceration does not go beyond one-half of the whole width of the hymen o Deep - the laceration involves more than one-half the width of the hymen but not reaching the base COMPLETE LACERATION When the hymenal laceration or rupture involves the whole width but not beyond the base of the hymen

Lecture #

LM

In adultery the penalty is the same for both the woman and man (Prison correctional medium & maximum) In concubinage the penalty for the man is lower by one degree (prison correctional minimum & medium) while the concubine is given a separate penalty which is "destierro" or distance prohibition; & no imprisonment --------------------------------------------------------------------------------------END *Raw files from H.R.Ogalino *Other sources form the Revised Penal Code & specific laws as specified

COMPOUND / COMPLICATED LACERATION When hymenal laceration or rupture involves the hymen & also the surrounding tissue beyond the base of the hymen May involve the perineum, vaginal canal, urethra &/or rectum Often associated w/ forceful or traumatic sexual act VIOLENCE AGAINST WOMEN AND CHILDREN R.A. 9262 - Anti-Violence Against Women and Their Children Act of 2004 o Physical violence o Sexual violence o Psychological violence o Economic abuse RAPE R.A.8353 - Anti-Rape Law of 1997 Defined as “inserting his penis into another person’s mouth, vagina or anal orifice , or any instrumentation or object into the genital or anal orifice of another person” Committed by a man who have carnal knowledge of a woman under any of the ff circumstances: o Through force, threat or intimidation o The offending party is deprived of reason or otherwise unconscious o By means of fraudulent machination or grave use of authority o The offending party is under 12y/o Some aggravating / qualifying circumstances o Victim is under 18y/o rd o The offender is relative by consanguinity or affinity w/in the 3 degree, guardian, authority or w/ higher moral standing o The victims is under the custody of police, military or any law enforcement authority rd o Rape is committed in the view of relatives w/in 3 degree of consanguinity Considered as a CRIMINAL offense against persons Punishable by Reclusion Perpetua Marital rape - non-consensual sex where the perpetrator is the victim’s spouse ADULTERY AND CONCUBINAGE Adultery means the carnal relation between a married woman & a man who is not her husband, the latter knowing her to be married, even if the constitutes marriage be subsequently declared void; where each sexual intercourse a crime of adultery (Art.333 of the Revised Penal Code) Concubinage is committed by any husband who shall keep a mistress in the conjugal dwelling, or, shall have sexual intercourse, under scandalous circumstances, w/ a woman who is not his wife, or shall cohabit w/ her in any other place (Art.334 of the Revised Penal Code) Transcribed & Edited by: P.G.Montaño & J.Wang

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ACADs TEAM

MEDICAL JURIS PRUDENCE Lectured by: Dr. ALBERT D. REBOSA, M.D., LL.B. 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 LEGAL MEDICINE Branch of medicine that deals with the application of medical knowledge to the purposes of law and in the administration of justice MEDICAL JURISPRUDENCE Deals with the aspect of law and legal concepts in relation with the practice of medicine Includes: o Licensure and regulatory laws; o Physician-patient-hospital relationship together with the other paramedical personnel, their rights, duties and obligations o Liabilities for non-compliance with the law 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

LM o Primarily concerned with the standardization and regulation of medical education PROFESSIONAL REGULATIONS COMMISSIONS o To have general supervision and regulation of all professions requiring examinations which includes the practice of medicine BOARD OF MEDICINE o Its primary duties are to give examinations for the registration of physicians and supervision, control and regulation of the practice of medicine BOARD OF MEDICAL EDUCATION o 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 o Functions: To determine and prescribe the requirements for admission into a recognized college of Medicine To determine and prescribe requirements for the minimum physical facilities To determine and prescribe the minimum number and qualifications of teaching personnel To determine and prescribe the minimum required curriculum To authorize the implementation of experimental curriculum To accept applications for admission to a medical school To select, determine and approve hospitals for training To promulgate, prescribe and enforce the necessary rules and regulations LICENSURE AND REGULATORY LAWS Composition: o Commissioner o Two Associate Commissioner Exercise of Power and Functions of the Commission: exercise general administrative, executive and policy-making functions for the whole agency

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 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. 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 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 LICENSURE AND REGULATORY LAWS ADMINISTRATIVE BODIES BOARD OF MEDICAL EDUCATION by: P.G.Montanio & J.Wang

BOARD OF MEDICINE Composition: o Six members appointed by the president from a list submitted by the Executive Council of the PMA Qualifications: o Natural-born citizen o Duly-registered physician o In the practice of medicine for at least 10 years o Of good moral character and of recognized standing in the medical profession as certified by PMA o Not a member of any faculty of any medical school (including any pecuniary interest) POWERS, FUNCTIONS AND RESPONSIBILITIES To determine and prepare the contents of the licensure examinations To promulgate rules and regulations for the proper conduct of the examinations, correction and registration To administer oath To study the conditions affecting the practice of medicine; To investigate violations, issue summons, subpoena and subpoena duces tecum To conduct hearings or investigations of administrative cases filed before them To promulgate decisions on such administrative cases subject to the review of the Commission To issue certificate of registration To suspend, revoke or reissue certificate of registration for causes provided by law or by the rules and regulations promulgated 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

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ACADs TEAM ADMISSION TO THE PRACTICE OF MEDICINE PREREQUISITES 1. Minimum age requirement: at least 21 years of age 2. Proper Educational Background o Requirements for Admission in the College of Medicine o Holder of a Bachelor’s degree; o Not convicted of any crime involving moral turpitude o Certificate of Eligibility from the Board of Medical Education o Good moral character 3. Examination Requirements: must have passed the corresponding Board Examination o Preliminary Examination At least 19 years of age Of good moral character have completed the first two years of the medical course o Final or Complete Examination o 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) 4. Holder of certificate of registration o 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 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 PRACTICE OF MEDICINE What is the “practice of medicine”? o 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 ACTS CONSTITUTING THE PRACTICE OF MEDICINE Pursuant to Sec.10, Art. III of the Medical Act of 1959 as amended: A) 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 NOT CONSIDERED TO CONSTITUTE A PRACTICE OF MEDICINE BY DESCISION OF COURT One who takes BP reading Application of medicated massage Hospital by: P.G.Montanio & J.Wang

LM Nurse anesthetists BY PROVISION OF LAW (SEC.11, ART.III; MEDICAL ACT OF 1959 AS AMENDED) Any medical student duly enrolled in an approved medical college dentist physiotherapist optometrist 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 Any person who administers or recommends any household remedy as per classification of existing Pharmacy Laws Prosthetist FAITH HEALING There is nothing in the Medical Act of 1959 exempting it from the definition of the acts which constitute practice of medicine 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 (freedom to believe and freedom to act in accordance with one’s belief) ILLEGAL PRACTICE OF MEDICINE (SEC.28, ART.IV; MEDICAL ACT OF 1959 AS AMENDED) Practice of medicine by any person not qualified and not duly-admitted to perform medical acts in compliance with law. PENALTIES Any person found guilty of “illegal practice” shall be punished by o A fine of not 10,000 pesos o Subsidiary imprisonment in case of insolvency or by imprisonment of not 5yrs o Or both such fine and imprisonment, in the discretion of the court QUALIFIED TO PRACTICE MEDICINE IN THE PHILIPPINES 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 Those who can have limited practice without any certificate of registration in accordance with Sec.12, Art. III, Medical Act of 1959 as amended: o Exclusive consultation in specific and definite cases o Attached to international bodies to perform certain definite work in the Philippines o Commissioned medical officers stationed in the Philippines in their own territorial jurisdiction o Exchange professors in special branches of medicine o Foreign 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 “Balikbayan” Physicians pursuant to PD 541, Allowing Former Filipino Professionals to Practice Their Respective Professions in the Philippines o Provisions: 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 Foreign physicians qualified to practice by Reciprocity Rule or by endorsement Medical Students pursuant to Sec.11 (a) and Sec.12 (d), Art.III, Medical Act of 1959 as amended Limited practitioners of medicine: Those that are governed by specific licensure laws RATIONALE WHY ARTIFICIAL PERSONE CANNOT PRACTICE MEDICINE Cannot be subjected to licensure examinations as required by law Practice of medicine may be employed and controlled by unqualified physicians Impairing professional relationship between the patient and the physician Deprivation of free choice of physicians

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ACADs TEAM 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.” –Justice Malholm PURPOSES (11Am. Jur. 606) To prescribe the permanent framework of a system of government To assign respective powers and duties to the several departments To establish certain first principles on which the government is founded ESSENTIAL PARTS Constitution of Liberty Constitution of Government Constitution of Sovereignty AMENDEMENTS Are isolated or piecemeal changes in the constitution while REVISION is the revamp or the rewriting of the entire instrument

LM DUTIES AND OBLIGATIONS OF PHYSICIANS IN A PHYSICIAN-PATIENT RELATIONSHIP He should possess the knowledge and skill of which an average physician is concerned; General practitioner vs Specialist He should use such knowledge and skill with ordinary care and diligence o “locality rule” – the standard of care is measured by the degree of care in the locality o “similar locality rule” – diligence is determined when the other physicians in the locality or similar locality could have acted the same way o “national standard of care” - the diligence is determined on what is applicable on a national standard basis He is obliged to exercise the best judgment He has the duty to observe utmost good faith PHYSICIAN-PATIENT REALTIONSHIP “DOES NOT” IMPLY GUARANTY OR PROMISE THAT: The treatment will be successful The treatment will benefit the patient The treatment will produce certain result The treatment will not harm the patient The physician will not commit errors in an honest way

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) Nature of the relationship: o Consensual - based on mutual consent both parties o Fiduciary - based on mutual trust and confidence REQUISITES OF A CONTRATUAL 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.1319, NCC) 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

DUTIES AND OBLIGATIONS OF PHYSICIANS IN THE COURSE OF A PHYSICIANPATIENT RELATIONSHIP He must give an honest medical history He must inform the physician of what occurred in the course of the treatment He must cooperate and follow the instructions, orders and suggestions of the physician 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 STAGES OF A PHYSICIAN-PATIENT RELATIONSHIP COMMENCEMENT It is the very time the physician is obliged to comply with the legal duties and obligations to his patient TERMINATION

FORMS OF PHYSICIAN-PATIENT RELATIONSHIP Expressed – explicitly stated orally or in writing Implied – the existence can be inferred from the acts of the contracting parties INSTANCES WHERE THERE IS “NO” PHYSICIAN-PATIENT RELATIONSHIP BY DECISION OF COURTS Pre-employment PE for purposes of determining whether an applicant is suitable for employment PE for eligibility for insurance Physician appointed by court to examine the accused In performing an autopsy Casual consultation in an unordinary place PSYCHOLOGICAL PATTERNS OF PHYSICIAN-PATIENT RELATIONSHIP

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 o Recovery of the patient or when the physician considers that his medical services will no longer be beneficial to the patient o Withdrawal of the physician provided: with consent of the patient, and patient is given ample time and notice o Discharge of the physician by the patient o Death of either party o Incapacity of the physician o Fulfillment of the obligations stipulated in the contract o In emergency cases, when the physician of choice of the patient is already available or when the condition of emergency ceases Expiration of the period as stipulated o Mutual agreement for its termination

ACTIVITY-PASSIVITY RELATION No interaction between physician and patient because the patient is unable to contribute activity This is characteristic in 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

by: P.G.Montanio & J.Wang

RIGHTS OF PHYSICIANS INHERENT RIGHTS o To choose patients o To limit practice of medicine o To determine appropriate management procedures o To avail of hospital services INCIDENTAL RIGHTS o Right of way while responding to emergency o Right of exemption from execution of instruments o Right of library to hold certain public/private offices to perform certain services o Right to compensation o Right to membership in medical societies RIGHTS GENERALLY ENJOYED BY EVERY CITIZEN Page 3 of 16

ACADs TEAM INHERENT RIGHTS 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 Note: 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 “…free to choose whom he will serve...always respond to any request for his assistance in emergency….” Art. II, Sec.3 Code of Ethics “In cases of emergency ...a physician should administer at least first aid treatment and then refer to a more qualified and competent physician …” Sec.1 RA 6615 “All government and private hospitals…are required to render immediate emergency medical assistance…” Sec.24 No.12, Medical Act of 1959 ”….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”

LM Related provisions: 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…this provision shall not apply to physicians who are no longer in the active practice…” o Doctrine of Unjust Enrichment No one must enrich himself at the expense of others “service rendered service paid” KINDS OF MEDICAL FEES Simple Contractual Fee – specifically stating the value of such medical service, either orally or in writing Retainer Fee – measured by the space of time rendered by patient 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. UNETHICAL FEES (ART.III, SEC 5, CODE OF ETHICS) “...solicitation of patients, directly or indirectly, through solicitors or agents, is unethical.” Straight Fee: o 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 o This kind of fee is unethical because the amount wagers with the unforceable contingencies

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 RIGHT TO DETERMINE THE APPROPRIATE MANAGEMENT OR PROCEDURE Doctrine of Superior Knowledge: o 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 TO AVAIL OF HOSPITAL SERVICES

INCIDENTAL RIGHTS RIGHT OF WAY WHILE RESPONDING TO THE CALL OF EMERGENCY RIGHT OF EXEMPTION FROM EXECUTION OF INSTRUMENTS AND LIBRARY Rule 39, Sec.12, Rules of Court RIGHT TO HOLD CERTAIN PUBLIC AND PRIVATE OFFICES Which can only be filled-up by physicians RIGHT TO PERFORM CERTAIN CERVICES WITH DU COMENSATION RIGHT TO MEMBERSHIP ON 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 Note: 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.

METHODS OF COLLECTION OF PAYMENTS FOR MEDICAL SERVICES Extra judicial – billing or referral to a bill collection agency Judicial methods JUDICIAL METHOD: FATCS TO BE PROVEN IN COURT Physician employed is duly qualified and licensed The professional fee demanded is reasonable The person The physician has rendered professional service to the patient liable for the payment is the defendant PATIENT’S OBLIGATION TO PAY 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 Implied promise to pay the physician by the benefactor of the medical services rendered in emergency cases. INTANCES WHERE THE PHYSICIAN “CANNOT” RECOVER PROFESSIONAL FEES Agreement that the service is gratuitous In government charity hospitals, health centers and other similar health units Rendered in private charitable institutions if expressly gratuitous to the indigent patients Waiver on the part of the physician Breach of contract When the physician cannot charge the patient pursuant to the Code of Ethics Those covered by Phil health Medical services rendered under a contract of employment unless expressly provided otherwise RIGHT GENERALLY ENJOYED BY EVERY CITIZEN pursuant to the provisions of Art.III, Bill of Rights, Philippine Constitution 1987

RIGHT TO COMPENSATION Based on the physician-patient contractual relationship Existence of friendship does not imply gratuitous services by: P.G.Montanio & J.Wang

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ACADs TEAM RIGHTS OF PATIENTS Right to give consent to diagnostic and treatment procedures Right to religious belief Right of privacy Right to disclosure of information Right to confidential information Right to choose his physician Right of treatment Right to refuse necessary treatments RIGHT TO GIVE CONSENT TO DIAGNOSTIC PROCEDURES Patient is the final arbiter of what must be done with his body Obligations of the Physician to Inform the Patient: o Diagnosis o General nature of the contemplated procedure Risk involved Prospect of success Potential danger if not applied Alternative methods of treatment BASES OF CONSENT The physician-patient relationship is fiduciary in nature Patient’s right to self-determination Contractual relationship PURPOSES OF CONSENT To protect the patient from unnecessary/unwarranted procedure applied to him without knowledge To protect the physician from any consequences for failure to comply with legal requirements INSTANCES WHEN CONSENT IS “NOT” NECESSARY In cases of emergency, there is an “implied consent” or the physician is “privilege because he is reasonably entitled to assume consent When the law made it compulsory for everyone to submit to the procedure

LM Other person who may give consent having substitute parental authority Note: 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 SUBJECT MATTER “MUST” BE 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 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 thereof. 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.” RIGHT TO PRIVACY RIGHT TO 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 RIGHT TO 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.

REQUISITES OF A VALID CONSENT Informed or enlightened consent Voluntary Subject matter must be legal FORMS OF CONSENTS Expressed consent – written or oral Implied consent may be deduced from the conduct of the patient SCOPE OF CONSENTS General or Blanket consent Limited or conditional consent Non-liability or exculpatory clause INFORMED OR ENLIGHTEN CONSENT Awareness and assent full disclosure of facts and willingness of the patient to submit

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. INSTANCES WHERE CONFIDENTIALITY IS NOT APPLICABLE When such disclosure is necessary to serve the best interest of justice When the disclosure will serve public health and safety When the patient waives its confidentiality RIGHT TO CHOOSE HIS PHYSICIANS RIGHT TO TREATMENT

QUANTUM OF INFORMATION NECESSARY TO FORM THE BASIS OD A VALID CONSENT Nature of his condition; Natured of proposed treatment or procedure; Possible alternative methods; Risk involved; Chances of success or failure Note: Consent must be given freely or voluntarily PERNSONS WHO CAN GIVE CONSENT Patient If patient is minor, consent must be obtained from the parents/guardian In the absence of the parents, consent of the grandparents must be obtained, paternal grandparents having preference In the absence of parents and grandparents, eldest brother or sister, provided one is of age and not disqualified by law to give consent by: P.G.Montanio & J.Wang

In emergency cases the patient has the right to treatment Sec. 1, 1st par, RA 6615 “…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…” 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.” 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 Page 5 of 16

ACADs TEAM A man is the master of his own self and may expressly prohibit a life-saving surgery or medical treatment Doctrine of parents 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 of the patient LIABILITIES OF PHYSICIANS Administrative” o Right to practice is temporarily withdrawn from the physician o A valid exercise of the police power of the State o Laws: Medical Act of 1959 as amended including the Code of Ethics and Rules and Regulations of the PRC o Penalty: reprimand, suspension, to revocation of license Criminal o An act or omission which constitute a crime by the physician o Laws: Revised Penal Code and other special laws o Penalty: imprisonment and/or fine Civil o Awarded against a physician to compensate for the injury he suffered on account of the physician’s act or omission as a breach of the contractual relationship of both parties o Laws. Civil Code of the Philippines and other related laws o Art. 100, RPC states that “Every person criminally liable is civilly liable.” Penalty: damages 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: Right to hearing Tribunal must consider the evidence presented Decision must have something to support itself Evidence must be substantial Decision must be based on the evidence adduced at the hearing, or at least contained in the record and disclosed to the parties 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)

GROUNDS FOR ADMINISTRATIVE LIABILITIES Sec.24, Art.III, Medical Act of 1959 as amended Personal Disqualifications: Immoral or dishonorable conduct; Insanity; Gross negligence, ignorance or incompetence resulting in an injury to or death of the patient; Addiction to alcoholic beverages or to any habit-forming drug rendering him incompetent to practice medicine. Criminal Acts: Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude Fraud in the acquisition of the certificate of registration Performance of or aiding in any criminal abortion Knowingly issuing false medical certificate Aiding or acting as dummy of an unqualified or unregistered person to practice medicine Unprofessional Conduct: False or extravagant or unethical advertisements wherein other things than his name, profession, limitation of practice, clinic hours, office and home address, are mentioned Issuing any statement or spreading any news or rumor which is derogatory to the character and reputation of another physician without justification by: P.G.Montanio & J.Wang

LM Violation of any of the Code of Ethics as approved by the PMA 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) Presumption of Innocence and Equipoise Rule Conviction of a physician, aside from imprisonment and/or fine, his registration may be cancelled or revoked if: The law imposes revocation of the license The crime wherein the physician was found guilty involved moral turpitude 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 prison 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…” Imprudence – deficiency of action or failing to take the necessary precaution once they are foreseen. Reckless imprudence – voluntary, without malice, doing or failing to do an act which results 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 neither 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. CIVIL LIABILITIES A civil suit filed against physician and/or hospitals is premised on recovery of damages for their wrongful act or of employees. Cause of action for damages is based on: 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. 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 quasidelict in as much as negligence is usually a ground for injury 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…” 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: The physician has a duty to the patient Page 6 of 16

ACADs TEAM The physician failed to perform such duty to his patient As a consequence of the failure, injury was sustained by the patient 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 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. There must be a direct physical connection between the wrongful act of the physician and the injury sustained by the patient 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 The result must be the natural continuous and probable consequences 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. LEGAL PRINCIPLES AND DOCTRINES APPLIED IN MEDICAL MALPRACTICE Doctrine of Vicarious Liability Doctrine of Ostensible Agent Borrowed Servant Doctrine 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 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. Art. 2180, Civil Code of the Philippines Obligations is demandable not only for one’s own acts or omission but also fort those persons whom one is responsible “….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 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, 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.” REASONS FOR APPLICATION OF THE DOCTRINE OF VICARIOUS LIABILITY Deep pocket theory The employer has the power to select his employee and to control his acts 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 To treat them as operating expense 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) DOCTRINE OF BORROWED SERVANT 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: P.G.Montanio & J.Wang

LM 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 DOCTRINE OF CAPTAIN-OF-THE-SHIP 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 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 DOCTRINE OF RES IPSA LOQUITOR The accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence It must be caused by an agency or instrumentality within the exclusive control of the defendant It must not have been due to any voluntary action or contribution on the part of the plaintiff Some cases wherein the Doctrine of Res Ipsa Loquitor “has been” applied Objects left in the patient’s body at the time of caesarian section Injury to a healthy part of the body Removal of a wrong part of the body when another part was intended Infection resulting from unsterilized instruments Failure to take radiographs to diagnose a possible fracture Instances where the Doctrine of Res Ipsa Loquitor “does not” apply: 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 Bad Result Rule Honest Errors of judgment as to Appropriate Procedure; 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’ Note: 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‘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.” 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 Related 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.” Page 7 of 16

ACADs TEAM 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: o Failure to give the physician an accurate history o Failure to follow the treatment recommended by the physician o Leaving the hospital against the advice of the physician o Failure to seek further medical assistance if symptoms persist 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 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 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 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 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 DOCTRINE OF RESCUE/FELLOW SERVANT 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 SOLE RESPONSIBILITY VS SHARED RESPONSIBILITY Sole responsibility o 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 o 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 SPECIFIC ACTS OF OMISSIONS WHICH CONSTITUTE MEDICAL MALPRACTICE Failure to take medical history Failure to examine or make a careful and adequate examination Non-referral of the patient to a specialist Failure to consult prior physicians for previous management Non-referral of patient to a hospital with equipment and trained personnel Failure to use the appropriate diagnostic test by: P.G.Montanio & J.Wang

LM Failure to diagnose infections Treatment resulting to addiction Abandonment of patients Failure to give proper instructions Failure to institute the proper prophylactic treatment Errors in blood transfusion Liabilities in administration of drugs Product liabilities of manufacturer Wrong baby cases 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 Elements: o There is a physician-patient relationship o The relationship is terminated without mutual consent of both parties o Unilateral termination of the contractual relationship by the physician o Continuing need of the patient for further medical treatment o Abandonment must have been the cause of the injury or death of the patient Some instances of abandonment: o Refusal by a physician to treat a case after he has seen the patient needing medical treatment but before treatment is commenced o Refusal to attend to a case for which he has already assumed responsibility o Failure to provide follow-up attention o 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: o The attending physician did not exercise due care and diligence in the selection of the substitute o If the substitute acts as agent of the attending physician in so far as carrying out a certain course of treatment in which case masterservant relationship is created Note: Non-payment of bill cannot be a defense for abandonment LIABILITIES IN THE ADMINISTRATION OF DRUGS Five basic rights: o Right drug o Right patient o Right dose o Right time o Right route NEGLIGENCE IN THE ADMINISTRATION OF A DRUG EHICH CAUSES INJURY TO THE PATIENT MAY ATTRIBUTE TO Drug reaction: o Failure to note history of allergy o Failure to test for signs of reaction o Failure to stop treatment when the drug reaction has been observed o Failure to provide adequate therapy to encounter a reaction o Treatment with a drug not proper for the illness Over-dosage Failure to give warning of the side effects Administering medicine on the wrong route Administration of the wrong medicine Administration of a drug on the wrong person Infection following an injection Injury to the nerves Failure to administer the drug 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 Page 8 of 16

ACADs TEAM 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 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, …...” Classification, according to Control and Financial Support: o 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) o Private – privately owned, especially established and operated with funds raised and contributed through donations, or private capital or other means.(Sec. 2(C), RA4226) For purposes of determining liability of private hospitals: o Private charitable or eleemosynary – established for the public benefit and not conducted for the pecuniary gain of the management. o Private pay – established for profit and gain Rationale why hospital cannot practice medicine: o The hospital cannot be subjected to government licensure examinations to determine whether it is qualified to practice medicine o A non-medical will be allowed to control a physician and through circumvention practice medicine o Breach of the confidential relationship in a physician-patient relationship PRIMARY DUTIES OF A HOSPITAL To furnish a safe and well-maintained building and ground To furnish adequate and safe equipment To exercise reasonable care in the selection of the hospital staff PERSONS COMING WITHIN THE PREMISES OF THE HOSPITAL 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. Licensee – one who is neither a customer, servant nor 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 convenience. His presence is merely tolerated. Invitee – one who is essential to the operation of a hospital or for whom the hospital has a purpose. LIABILITIES OF HOSPITALS FOR THE WRONGFUL ACTS OF THEIR AGENTS Government or Public Hospitals o A State cannot be sued without its consent. o 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.” o 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 o Those established to perform government functions; it is immune from being sued o Those performing proprietary function when it is established for profit o The government goes down to the level of any private hospital Private Charitable, Voluntary or eleemosynary for charity o A charity hospital is established and maintained from the donations, contributions, philanthropic acts and pays no dividends by: P.G.Montanio & J.Wang

LM o The determination whether a hospital was established for charity is the articles of incorporation and the constitution and by-laws of the corporation Private Hospital Operating for profit o May be held vicariously liable for the negligent acts of its employees Note: A hospital which allows 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 beds are devoted for charity is not deemed a charitable institution DOCTRINES APPLIED TO CHARITABLE HOSPITALS’ IMMUNITY FOR THE ACTS OF ITS EMPLOYEE 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. 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 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 INDEPENDENT CONTRACTOR THEORY A patient who enters a private charitable hospital does not have a contract with the hospital but with the attending physician Rules applied in determining the vicarious liability for the negligent acts of the resident physicians, nurses and others employees PRINCIPLES OF HOSPITAL LIABILITIES Principle of administrative/ministerial as against professional/medical duties o 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 o 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 Power of Control Contract of Service o 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 Independent Contractor Theory Sole Responsibility vs Shared Responsibility CORPORATE LIABILITIES OF HOSPITALS 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 Page 9 of 16

ACADs TEAM Recent decisions of the court have 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 VICARIOUS LIABILITIES FOR THE ACTS OF HOSPITAL EMPLOYEES 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. Attendance to emergency cases in hospitals Sec. 1 RA 6615 substantially states that “… 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.” 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 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. 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 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 DETENTION OF PATIENTSFOR NON-PAYMENT OF BILLS 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 LIABILITIES OF HOSPITALS FOR ITS ANCILLARY SERVICES Whenever the hospital administration enters into contract with a partnership of physicians to run the emergency room, the medical staffs 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 TWO ASPECTS OF EMERGENCY CARE Examination of the patient to determine his condition and need for emergency medical procedures Performance of the specific medical or surgical procedure which are required without delay to protect the patient’s health LIABILITY IN THE ERGENCY ROOM ARISES FROM THE FOLLOWING:

LM AMBULANCE 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 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. PURPOSE OF MAINTAINANCE OF MEDICAL RECORDS For convenience and necessity in consonance with the purpose enumerated As required by statutes (Hospital Licensure Law) o The hospital may be held liable for injury resulting from a breach of duty to maintain accurate records. o Destruction of records is an evidence of negligence. o An altered medical record may create suspicious intent to establish a defense and such alteration may be a proof of negligence o Removal of a certain portion of the record may raise The inference that they are remove deliberately in order to suppress evidence 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. VIOLATIONS OF THE CONFIDENTIAL NATURE OF MEDICAL RECORDS 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.“ 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…, who violates or fails to comply with the maintenance and keeping of the original records of transactions on any dangerous drugs…” “An additional penalty of revocation of license to practice his profession…” 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 used 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….”

Failure to admit Failure to examine and/or treat Negligence in the application of management procedures by: P.G.Montanio & J.Wang

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ACADs TEAM 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.” 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.” INFORMATION FOR WHICH NO AUTHORIZATION IS NEEDED Name of the patient and house officers associated with the treatment of a patient Personal circumstances of the patient which are not ordinarily related to the treatment WHEN MAY THE CONTENTS OF THE MEDICAL RECORDS BE DISCLOSED When requested by the patient or by someone who could act in his behalf which must be made in writing When the law requires such disclosure Upon a lawful order of the court Note: 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. 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. 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.” A condition of emergency is usually an exception to the observance of the standard ethical conducts Related Provisions of the Code of Medical Ethics 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…” 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.” 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...” Art. IV, Sec. 16 “A physician called upon to attend to a patient of another physician because of an emergency…, should attend only to the patient’s immediate needs…” by: P.G.Montanio & J.Wang

LM Art. IV, Sec. 17 “Whenever in the absence of the family physician several physicians have been simultaneously called in an emergency case “ “...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…” 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…” 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 Art. 275, Revised Penal Code Abandonment of persons in danger and abandonment of one’s own victim The penalty of arresto mayor shall be imposed upon: - 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 - Anyone who shall fail to help or render assistance to another which he has accidentally wounded or injured 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 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 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 Instances: o The injured person must be unconscious or otherwise unable to give a valid consent o The situation must be such as it would make it actually and apparently necessary to act before there is an opportunity to obtain consent o The physician in the exercise of his best judgment that the medical procedure is life-saving. Note: 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 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 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 Page 11 of 16

ACADs TEAM 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. Note: Surgery cannot be extended if an emergency is not present The law also implies an obligation on the part of the patient to pay reasonable value of the emergency service; if no specified amount agreed upon, the principle of quantum merit shall be applied DELEGATION OF PHYSICIAN’S DUTIES Requisites for a Valid Delegation o 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 o The person to whom such duty is delegated must be competent to perform such duty; o Proper instructions must be given to the person who will perform the delegated duty The patient consented, expressly or impliedly such delegation of duty 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 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. 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 Art. 20, Civil Code Every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same Art. 2176, Civil Code Whoever, by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damages done Types of Damages o Actual or Compensatory o Moral o Exemplary o Nominal o Temperate o Liquidate DOCTRINE OF CERTAINTY OF DAMAGE 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 ACTUAL OR COMPENSATED DAMAGES Kinds: Dano emergente – the loss already suffered by the patient Lucro cesante – failure to receive the benefit which would have pertained to him COMPENSATORY DAMAGES APPLIED TO MEDICAL MALPRACTICE

LM o Loss of Service or Support o Funeral Expenses Art. 2206, Civil Code 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. MORAL DAMAGES Kinds: o Physical Suffering o Mental Anguish o Fright and Moral Shock o Besmirched Reputation and Social Art. 2217, Civil Code 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. Art. 2219, Civil Code Moral damages may be recovered in the following and analogous cases: A criminal offense resulting in physical injuries Quasi-delict causing physical injuries EXEMPLARY OR CORRECTIVE DAMAGES Art. 2229, Civil Code 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. Art. 2230, Civil Code 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. Art. 2231, Civil Code In quasi-delict, exemplary damages may be granted if the defendant acted with gross negligence. Art. 2232, Civil Code In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive and malevolent manner. Art. 2233, Civil Code Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they should be adjudicated. 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. NOMINAL DAMAGES Art. 2221, Civil Code 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. LIQUIDATED DAMAGES Art. 2226, Civil Code Liquidated damages are those agreed upon by the parties to a contract, to be paid in case of breach thereof.

Applies to: o Death o Physical Disability o Loss of Earning Capacity o Medical, Surgical, Hospital, and Related Expenses by: P.G.Montanio & J.Wang

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ACADs TEAM TEMPERATE OR MODERATE DAMAGES Art. 2224, Civil Code 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. OBLIGATIONS ON THE PART OF THE PLAINTIFF (PATIENT) TO MINIMIZE DAMAGES Art. 2203, Civil Code 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 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 ATTORNEY’S FEES Art.2208, Civil Code Attorney’s fees and other related expenses in litigation, other than judicial cost are not as rule recoverable except when the law specifically provides. When exemplary damages are awarded When the defendant’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest In criminal cases of malicious prosecution against the plaintiff In case of clearly unfounded civil action or proceeding against the plaintiff Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly valid, just and demandable claim In actions for legal support In actions for the recovery of wages of household helpers, laborers and skilled workers In actions for indemnity under the workmen’s compensation and employer’s liability laws In a separate civil action to recover civil liability When at least double judicial costs are awarded In any other case where the court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered THE MEDICAL WITNESS THE COURT The court is 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. Different Courts in the Philippines o Supreme Court o Court of Appeals o Regional Trial Court o Municipal or City Trial Court o 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. PHYSICIAN AS AN ORDIANRY WITNESS Rules of Court o Sec. 20, Rule 130 - all persons who, having organs of sense, can perceive, and perceiving can make known their perception to others maybe witness Requisites of an Ordinary Witness o The person must have the organ and power of perception

by: P.G.Montanio & J.Wang

LM o The perception gathered by his organs of sense can be imparted to others o He does not fall in any of the exception or disqualifications provided by the Rules of Court REASONS FOR DISQUALIFICATION Mental Incapacity or immaturity - Sec. 21, Rule 130, Rules of Court o 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 o 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 Marriage - Sec. 22, Rule 130, Rules of Court o During their marriage, neither the husband nor the o 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 Death or Insanity - Sec. 23, Rule 130, Rules of Court o 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 Parental or filial Privilege - Sec. 25, Rule 130, Rules of Court o No descendant can be compelled, in a criminal case To testify against his parents and ascendants DIQUALIFICATION BY PROVILAGED COMMUNICATION The following persons cannot testify as to matters learned in confidence in the following cases (Sec. 24, Rule 130, Rules of Court) : o 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 o 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 o 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 o 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 o 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 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 Page 13 of 16

ACADs TEAM professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the character of the patient.” EXTENT OF THE PRIVILEGED COMMUNICATION Interns 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 WHEN COMMUNICATION IS NOT A PRIVILEGED COMMUNICATION When a person is examined at the instance of the law, for the purpose of testifying to solely qualify the physician to testify 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 Information obtained by a technician from a patient is not privileged When the public interest so requires.

LM ATTENDANCE OF A MEDICAL WITNESS IN COURT Sec. 1, Rule 21, Rules of 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.” Kinds of Subpoena: o 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. o 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. Note: Failure to comply with a subpoena without justifiable reason is a ground for reprimand, suspension or revocation of the certificate of registration.

SCOPE OF PRIVILEGE Oral testimony by the physician in court Affidavits, certificates and reports made by the physician as exhibit in court Hospital records WAIVER OF PRIVILEGE Patient may expressly or impliedly waive their right to privilege communication PHYSICIAN AS AN EXPERT WITNESS Expert witness is one who has the capacity to draw inference from the facts which a court would not be competent to draw. To warrant the use of expert testimony, two elements are required: o 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 o The witness must have such skill, knowledge or experience in that field or calling as to make it appear that his opinion or reference will probably aid the trier of facts in his search for the truth Opinion may be 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. RULES OF COURT FOR WITNESSES Sec. 48, Rule 130 o General rule - The opinion of a witness is not admissible, except as indicated by the Rules Sec. 49, Rule 130 o 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 Sec. 50, Rule 130 o Opinion of Ordinary Witness – The opinion of a witness for which proper basis is given, may be received in evidence regarding to: The identity of a person about whom he has adequate knowledge A handwriting with which he has sufficient familiarity The mental sanity of a person with whom he is sufficiently acquainted o The witness may also testify on his impressions of: emotion, behavior, condition or appearance of a person

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 “… Violation of any of the provisions of the Code of Medical Ethic shall be sufficient ground for reprimanding or for suspending or revoking a certificate of registration as physician…” Art. 233, Revised Penal Code “The penalties of arresto mayor…, 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.” WHEN A MEDICAL WITNESS NEED NOT COMPLY WQITH A SUBPOENA The Court issuing the subpoena has no jurisdiction over the subject matter of the case When the place of residence is more than 100 kilometers from the court issuing the subpoena 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 On account of illness incapacitating him to attend 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.” 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: To be protected from irrelevant, improper questions and from harsh or insulting demeanor Not to be detained longer than the interests of justice require Not to be examined except only as to matters pertinent to the issue Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law 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

DISTINCETIONS BETWEEN AN ORDIANRY AND EXPERT WITNESS 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 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

by: P.G.Montanio & J.Wang

INSTANCES WHEN THE MEDICAL WITNESS MAY NOT BE COMPELLED TO ANSWER QUESTIONS IN COURT 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 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 Page 14 of 16

ACADs TEAM Sec. 17, Art. III, Phil Constitution “No person shall be compelled to be witness against himself” IMPEACHMENT OF MEDICAL TESTIMONY By contradicting testimonies by others of his own class or by any other competent witnesses By showing that the medical witness is interested in the outcome of the case or bias By an inconsistent statement made at another time By not expressing the opinion testified to at the time when such expression might reasonably had been expected When the scientific treatise which he relies on as the basis of his opinion does not sustain him

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 know to him. He must answer the question provided those set of facts has the following requisites: o 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 o The hypothetical question is based upon facts which are in evidence and assumed facts within the limit of evidence o 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 RATIONALE ON THE CORROBORATIVE PROBATIVE VALUE OF MEDICAL EXPERT TESTIMONIES The testimony however impartial, may unconsciously favor one of the party litigants The opinion of the medical expert is based on experience and treatise or books which may be divergent from the observation of others HEARSAY EVIDENCE Not proceeding from personal knowledge of the witness, but from mere repetition of what he had heard others say It 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. RULES OF COURT FOR EVIDENCES Sec. 36, Rule 130 o Testimony generally confined to the personal knowledge of the witness; hearsay excluded o 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 Sec. 37, Rule 130 o The declaration of a dying person, made under a consciousness of an impending 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 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.” Grounds for Admissibility of Dying Declaration: by: P.G.Montanio & J.Wang

LM o Necessity – death of the declarant makes it impossible to obtain his testimony in court o Trustworthiness – every motive of falsehood is silenced, and the mind is induced by the most powerful consideration to tell the truth Requisites of Dying Declaration: o That the declaration must concern the cause and surrounding circumstances of the declarant’s death o That at the time the declaration was made, the declarant was under the consciousness of impending death o That the declarant is a competent witness o That the 1declaration is offered in a criminal case in which the declarant is the victim 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 Note: 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 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.” EFFECTS OF FALSE TESTIMONY 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: The penalty of reclusion temporal, if the defendant in said case shall have been sentenced to death The penalty of prision mayor, if the defendant shall have been sentenced to reclusion temporal or perpetua The penalty of prision correccional, if the defendant shall have been sentenced to any other afflictive penalty The penalty of arresto mayor, if the defendant shall have been sentenced to a correctional penalty or a fine, or shall have been acquitted 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…, if the prosecution is for felony punishable by an afflictive penalty.” 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…, if the amount in controversy shall exceed 5,000 pesos …” Art. 183, Revised Penal Code, False testimony in other cases and perjury in solemn affirmation: “The penalty of arresto mayor …, 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.” PRINCIPLE OF FALSUS IN UNO, FALSUS IN OMNIBUS “False in one thing, false in everything” When a witness falsified the truth on one point, his testimony on other points may be disregarded, unless corroborated by other unimpeached evidences Requisites: Page 15 of 16

ACADs TEAM o That the witness deliberately or intentionally falsified the truth o That the other portions of the testimony to be discredited, are not corroborated by circumstances or other unimpeached evidence o The false testimony must be on material point When it is not applicable: o When there are sufficient corroborations in many grounds of the testimony o When the mistake was not in a very material point o 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 CONTEMPT RULES OF COURT FOR CONTEMPT Sec. 9, Rule 21 o 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. Sec. 1, Rule 71 o 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.” Sec. 3, Rule 71 o 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, a person guilty of any of the following acts may be punished for indirect contempt: Misbehavior of an officer of a court in the performance of his official duties or in his official transactions Disobedience of or resistance to a lawful writ, process, order, or judgment of a court Any abuse of or any unlawful interference with the process or proceedings of a court not constituting direct contempt Any improper conduct tending directly or indirectly to impede, obstruct, or degrade the administration of justice Assuming to be an attorney The rescue of a person or property in the custody of an officer by virtue of an order o 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 pending such proceedings RIGHT AGAINST SELF-INCRIMINATION Sec. 17. Art. III, Philippine Constitution states that, o “No person shall be compelled to witness against himself” o 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 o 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 o 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) Scope: o The kernel of the right is not against all compulsion, but testimonial compulsion only o It is simply against the legal process of extracting from the lips of the accused an admission of his guilt o It does not apply where the evidence sought to be excluded is not an incriminating statement but an OBJECT EVIDENCE (e.g. Fingerprinting, photographing, paraffin testing, PE) o The prohibition extends to the compulsion for the production of documents, papers and chattels that may be used as evidence against by: P.G.Montanio & J.Wang

LM the witness except where the State has the right to examine or inspect under the police power of the State o 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 CODE OF MEDICAL ETHICS Art. I – General Principles o Primary objective of the practice of medicine is SERVICE to mankind o “Friend of Man” Art. II – Duties of Physicians to their Patients o To attend to his patients faithfully and conscientiously o Free to choose whom to serve o Immediate action in cases of emergency o Proper consultation and referral o He must exercise good faith and strict honesty in expressing his opinion o Sacred trust of information o Practice of medicine is not a business Art. III – Duties of Physicians to the Community o Cooperation with proper authorities, sanitation and health o To assist in the administration of justice o To protect the public from charlatans o No solicitation and extravagant and false advertisements o Gratuitous services to the indigents Art. IV – Duties of Physicians to their Colleagues and to the Profession o Gratuitous services to a colleague o Proper consultation and referral o Uphold the honor and dignity of the profession o Observe punctuality o Observe utmost caution, tact and prudence as regards professional conduct of another physician o To refrain from making unfair and unwarranted criticisms of other physicians o To keep abreast to the advancements of medical science and contribute to its progress o He should be diligent, upright, sober, modest and well-versed in both the science and art of medicine o No advertising by means of untruthful or improbable statements in newspapers or exaggerated announcements o Should expose without fear or favor, before the proper medical or legal tribunals corrupt and dishonest conduct of members of the profession o Should aid in safeguarding against the admission of those who are unfit or unqualified because of deficiency in moral character Art. V – Duties of Physicians to Allied Professionals o To cooperate with and safeguard the interest, reputation and dignity of allied professional o Not to allow being published any testimonial certifying the efficacy, value and superiority and recommendation of drugs o Non-payment of commissions to any person who refers cases to help him acquire patients PENAL PRIVISIONS 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. --------------------------------------------------------------------------------------------------END

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