Legal Medicine Midterms Notes

Legal Medicine (Atty. Capule) – Midterm Notes (As per pointers)

I. RA 8344 – DEMAND OF DEPOSITS

especially in the case of poor or indigent patients (Sec. 3, RA 8344)

Is it unlawful to demand a deposit?

Item 3 of IRR of RA 8344 provides:

NO. It becomes unlawful when the deposit/advance payment is demanded as a prerequisite for confinement or medical treatment of a patient in such hospital or medical clinic or to refuse to administer medical treatment and support as dictated by good practice of medicine to prevent death or permanent disability

1. The transferring and receiving hospital, shall be as much as practicable, be within ten (10) kilometer radius of each other. 2. The transfer of patients contemplated under this Act shall at all times be properly documented. 3. Hospitals may require a deposit or advance payment when the patient is no longer under the state of emergency and he/she refuses to be transferred.

Is refusal unlawful? NO. If there is strict compliance with the procedure on transfer, it is not construed as refusal.

When are hospitals required to extend medical services?

Procedure / Requisites for valid transfer: 1. there is inadequacy of medical capabilities of the hospital 2. the patient or his next of kin consents to the transfer, provided that if the patient is unconscious, incapable of giving consent and/or unaccompanied, the physician can transfer the patient even without his consent 3. The receiving hospital or medical clinic agrees to the transfer 4. such transfer shall be done only after necessary emergency treatment and support have been administered to stabilize the patient 5. that it has been established that such transfer entails less risks than the patient's continued confinement

Hospitals are required to render immediate medical assistance and provide facilities and medicine within its capabilities on emergency cases, where patients are in danger of dying and/or suffering serious physical injuries, (Sec. 1, RA 6615) Note: Doctrine of Reasonable Reliance – Hospital without emergency services allowed; Provided, that there is an announcement to the community that such hospital has no emergency services, so the people in the community will not rely on the hospital for such emergency services. II. RA 9439 – DETENTION OF PATIENTS (NOTE: The provisions of RA 9439 is NOT APPLICABLE to patients who stayed in private rooms)

No hospital or clinic, after being informed of the medical indications for such transfer, shall refuse to receive the patient nor demand from the patient or his next of kin any deposit or advance payment

Is it unlawful to detain patients for non-payment of hospital bills/medical expenses? YES. Sec. 1 provides that it shall be unlawful for any hospital or medical clinic in the country to detain or to otherwise cause, directly or indirectly, the detention of patients who have fully or partially recovered or have been adequately attended to, or who may have died, for reasons of

Transfer of Patients After the hospital or medical clinic mentioned above shall have administered medical treatment and support, it may cause the transfer of the patient to an appropriate hospital consistent with the needs of the patient, preferably to a government hospital, 1

Legal Medicine (Atty. Capule) – Midterm Notes (As per pointers)

of the medical sector quickens, and the regeneration of the people as a whole becomes more visibly attainable. In the institution of cost-cutting measures, the hospital has a right to reduce the facilities and services that are deemed to be nonessential, such that their reduction or removal would not be detrimental to the medical condition of the patient.

non-payment in part or in full of hospital bills or medical expense. Rights of patients that have fully or partially recovered, and already wish to leave the hospital or medical clinic, BUT financially incapable to settle medical expenses 1. right to leave the hospital or medical clinic 2. right to demand the issuance of the corresponding medical certificate and other pertinent papers required for the release of the patient from the hospital or medical clinic upon the execution of a promissory note covering the unpaid obligation 3. In case of a deceased patient, any surviving relative has the right to demand the corresponding death certificate and other documents required for interment and other purposes. (Also, under PD 651, hospitals are required to issue a death certificate even if hospital bills are not yet paid)

For the moment, the question to be considered is whether the subject facilities are indeed nonessential - the air-conditioner, telephone, television, and refrigerator – the removal of which would cause the adverse health effects and emotional trauma the respondents so claimed. Corollary to this question is whether the petitioner observed the diligence of a good father of the family in the course of ascertaining the possible repercussions of the removal of the facilities prior to the removal itself and for a reasonable time thereafter, with a view to prevent damage. After an extensive analysis of the record, it becomes rather worrisome to this Court that the courts a quo unreservedly drew their conclusions from the selfserving and uncorroborated testimonies of the respondents the probative value of which is highly questionable. We hold that the respondents failed to prove the damages so claimed.

Execution of promissory note is required The rights of the patients can only be exercised after executing and securing a promissory note, either by a mortgage or by a guarantee of a co-maker, who will be jointly and severally liable with the patient for the unpaid obligation.

The evidence in the record firmly establishes that the staff of the petitioner took proactive steps to inform the relatives of respondent Chua of the removal of facilities prior thereto, and to carry out the necessary precautionary measures to ensure that her health and well-being would not be adversely affected.

The hospital can choose the guarantor or the comaker. It has the right to make sure that the comaker is capable of paying or fulfilling the obligation. Case: Manila Doctors v. Chua and Ty Ruling: The operation of private pay hospitals and medical clinics is impressed with public interest and imbued with a heavy social responsibility. But the hospital is also a business, and, as a business, it has a right to institute all measures of efficiency commensurate to the ends for which it is designed, especially to ensure its economic viability and survival. And in the legitimate pursuit of economic considerations, the extent to which the public may be served and cured is expanded, the pulse and life

A patient cannot be detained in a hospital for nonpayment of the hospital bill The form of restraint must be total; movement must be restrained in all directions. If restraint is partial, e.g., in a particular direction with freedom to proceed in another, the restraint on the person's liberty is not total. However, the hospital may legally detain a patient against his will when he is a detained or convicted prisoner, or when the patient is 2

Legal Medicine (Atty. Capule) – Midterm Notes (As per pointers)

suffering from a very contagious disease where his release will be prejudicial to public health, or when the patient is mentally ill such that his release will endanger public safety, or in other exigent cases as may be provided by law.

IV. RECIPROCITY The registration or issuance of license of a foreigner professional rests in the PRC. The requirements for registration or licensing, however, must be substantially the same as those required and contemplated by the laws of the Philippines. It is further required that the laws of the foreign start allow the citizens of the Philippines to practice their profession on the same basis, grant, and privileges as those enjoyed by the citizens of the foreign country.

Authorities are of the view that, ordinarily, a hospital, especially if it is a private pay hospital, is entitled to be compensated for its services, by either an express or an implied contract, and if no express contract exists, there is generally an implied agreement that the patient will pay the reasonable value of the services rendered; when a hospital treats a patient's injuries, it has an enforceable claim for full payment for its services, regardless of the patient's financial status.

Case: Board of Medicine v. Ota Facts: Ota is a Japanese national, married to a Filipina, has been residing in the PH for more than 10 years, and graduated Doctor of Medicine. He filed an application to take the board exams. PRC requires him to submit affidavit stating that if he passes the boards, he cannot practice medicine until he submits proof that reciprocity exists between Japan and the Philippines in admitting foreigners into the practice of medicine. Ota submitted a duly notarized English translation of the Medical Practitioners Law of Japan duly authenticated by the Consul General of the Philippine Embassy to Japan. He was allowed to take the boards and he passed. In spite of all these, the Board of Medicine denied Ota‘s request for a license to practice medicine in the Philippines on the ground that no genuine reciprocity can be found in the law of Japan, as there is no Filipino or foreigner who can possibly practice there. Ota filed petition before the RTC. RTC ruled in favor of Ota stating that there is adequate proof that there exists a principle of reciprocity and ordering PRC to issue the license. PRC appealed to CA. CA affirmed RTC Ruling.

III. PRC IDENTIFICATION Powers, Functions, and Responsibilities of the Commission (Sec. 7) PRC upon recommendation of the PR Board concerned has power to approve the registration and authorize issuance of certificate or license of registration and professional ID card To supervise foreign nations who are authorized by existing laws to practice their professions either as holders of a certificate of registration and a professional identification card or a temporary special permit in the Philippines; To supervise professionals who were former citizens of the Philippines and who had been registered and issued a certificate of registration and a professional identification card prior to their naturalization as foreign citizens, who may, while in the country on a visit, sojourn or permanent residence, practice their profession:

Issue: Whether or not the principle of reciprocity exists.

Provided, that prior to the practice of their profession they shall have first been issued a special permit and updated professional identification card by the Board concerned subject to approval by the Commission and upon payment of the permit and annual registration fees

Held: Yes. The contention of the PRC that the requirements to practice medicine in Japan are practically impossible for a Filipino to comply with, there are also ambiguities in the Medical Practitioners Law of Japan, and there had not been a 3

Legal Medicine (Atty. Capule) – Midterm Notes (As per pointers)

single Filipino who was issued a license to practice medicine by the Japanese Government is untenable. What the law requires is for the foreigner to show proof that a Filipino can practice in his foreign country. It is enough that the laws in the foreign country permit a Filipino to get license and practice therein. Requiring respondent to prove first that a Filipino has already been granted license and is actually practicing therein unduly expands the requirements provided for under R.A. No. 2382 and P.D. No. 223.

schizophrenia. Nevertheless, the subpoena was issued. Counsel for Nelly filed an urgent motion to quash the subpoena. Respondent‘s counsel claimed that the witness will testify as an expert witness and would not testify on any information acquired while attending to the petitioner in a professional capacity. Lower Court ruled in favor of Juan. CA also ruled in favor of Juan stating that Nelly failed to establish the confidential nature of the testimony given by Dr. Acampado. Issue: Whether or not there is breach of confidentiality clause

V. PRIVILEGED COMMUNICATION

Held: No. In order that the privilege may be successfully claimed, the following requisites must concur:

Sec. 24, RRE. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:

1. the privilege is claimed in a civil case; xxx 2. the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics;

(c) A surgeon authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or 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

3. such person acquired the information while he was attending to the patient in his professional capacity; 4. the information was necessary to enable him to act in that capacity; and 5. the information was confidential, and, if disclosed, would blacken the reputation (formerly character) of the patient.

Case: Lim v. CA Facts: Petitioner Nelly Lim and Respondent Juan Lim are lawfully married to each other. Juan filed a petition for annulment of marriage in the ground that Nelly has been suffering from schizophrenia before, during, and even after their marriage.

These requisites conform with the four (4) fundamental conditions necessary for the establishment of a privilege against the disclosure of certain communications, to wit:

He presented three witnesses, one of which is the Chief of the Female Services of National Mental Hospital, Dr. Acampado. The counsel for Juan orally applied for the issuance of subpoena ad testificandum, the counsel for Nelly opposed the motion on the ground that the testimony sought to be elicited from the witness is privileged since the latter had examined the petitioner in a professional capacity and had diagnosed her to be suffering from

1. The communications must originate in a confidence that they will not be disclosed. 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. 4

Legal Medicine (Atty. Capule) – Midterm Notes (As per pointers)

3. The relation must be one which in the opinion of the community ought to be sedulously fostered

Case: Krohn v. CA Facts: A confidential psychiatric evaluation report is being presented in evidence before the trial court in a petition for annulment of marriage grounded on psychological incapacity. The witness testifying on the report is the husband who initiated the annulment proceedings, not the physician who prepared the report. The subject of the evaluation report is the wife, who invokes the rule on privileged communication between physician and patient, and seeks to enjoin her husband from disclosing the contents of the report. RTC allowed the admission of the psychiatric evaluation report as evidence because it is material to the case and because there was no objection on the part of the wife during the time it was referred to in the complaint. CA affirmed.

4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. The physician may be considered to be acting in his professional capacity when he attends to the patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to the physician to enable him "safely and efficaciously to treat his patient" are covered by the privilege. It is to be emphasized that "it is the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject communicated is not stated. One who claims this privilege must prove the presence of these aforementioned requisites. Petitioner failed to discharge that burden. Dr. Acampado was presented and qualified as an expert witness. She did not disclose anything obtained in the course of her examination, interview and treatment of the petitioner; moreover, the facts and conditions alleged in the hypothetical problem did not refer to and had no bearing on whatever information or findings the doctor obtained while attending to the patient.

Issue: Whether or not the presentation of the report is a breach of the privileged communication rule Held: No. It does not fall under the requisites laid down in the case of Lim v. CA. Moreover, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery or obstetrics. He is simply the patient's husband who wishes to testify on a document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report. VI. MEDICAL ACT OF 1959, AS AMENDED and other related provisions and concepts

The statutory physician-patient privilege, though duly claimed, is not violated by permitting a physician to give expert opinion testimony in response to a strictly hypothetical question in a lawsuit involving the physical mental condition of a patient whom he has attended professionally, where his opinion is based strictly upon the hypothetical facts stated, excluding and disregarding any personal professional knowledge he may have concerning such patient.

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 5

Legal Medicine (Atty. Capule) – Midterm Notes (As per pointers)

MEDICAL JURISPRUDENCE includes: -

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Licensure and regulatory laws; Physician-patient-hospital relationship together with the other paramedical personnel, their rights, duties and obligations; Liabilities for non-compliance with the law.

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.

PURPOSES OF LEGAL MEDICINE - 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.

The right to regulate the practice of medicine is based on the police power of the state. LICENSURE AND REGULATORY LAWS ADMINISTRATIVE BODIES 1. BOARD OF MEDICAL EDUCATION

ADVERSARIAL TRIAL SYSTEM -

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Primarily concerned with the standardization and regulation of medical education.

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.

Composition: Chairman - Secretary of Education Members: 1. Secretary of Health 2. Director, Bureau of Private Schools 3. Chairman, Board of Medicine 4. Representative, PMA 5. Council of Deans, APMC 6. Dean, UP-College of Medicine Functions: 1. To determine and prescribe the requirements for admission into a recognized college of Medicine; 2. To determine and prescribe requirements for the minimum physical facilities;

SOURCES OF LAW - Constitution - Laws enacted by the legislative body - Decrees, Orders, Proclamation, Letters, CA, BP, RA 6

Legal Medicine (Atty. Capule) – Midterm Notes (As per pointers)

3. To determine and prescribe the minimum number and qualifications of teaching personnel; 4. To determine and prescribe the minimum required curriculum; 5. To authorize the implementation of experimental curriculum; 6. To accept applications for admission to a medical school; 7. To select, determine and approve hospitals for training; 8. To promulgate, prescribe and enforce the necessary rules and regulations.

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Of good moral character and of recognized standing in the medical profession as certified by PMA; Not a member of any faculty of any medical school (including any pecuniary interest)

Powers, Functions and Responsibilities: 1. To determine and prepare the contents of the licensure examinations; 2. To promulgate such rules and regulations for the proper conduct of the examinations, correction and registration; 3. To administer oath; 4. To study the conditions affecting the practice of medicine; 5. To investigate violations, issue summons, subpoena and subpoena duces tecum; 6. To conduct hearings or investigations of administrative cases filed before them; 7. To promulgate decisions on such administrative cases subject to the review of the Commission; 8. To issue certificate of registration; 9. To suspend, revoke or reissue certificate of registration for causes provided by law or by the rules and regulations promulgated; 10. To promulgate, with the approval of PRC, rules and regulations in harmony with the provisions of the Medical Act of 1959 and necessary for the proper practice of medicine.

2. PROFESSIONAL REGULATIONS COMMISSION (PRC) To have general supervision and regulation of all professions requiring examinations which includes the practice of medicine. Composition: Commissioner Two Associate Commissioner Functions: Exercise general administrative, executive and policy-making functions for the whole agency. 3. BOARD OF MEDICINE Its primary duties are to give examinations for the registration of physicians and supervision, control and regulation of the practice of medicine.

ADMISSION MEDICINE

TO

THE

PRACTICE

OF

Prerequisites: Composition: 1. Minimum age requirement - at least 21 years of age

Six members appointed by the president from a list submitted by the Executive Council of the PMA.

2. Proper Educational Background - -Requirements for Admission in the College of Medicine - -Holder of a Bachelor‘s degree; - -Not convicted of any crime involving moral turpitude;

Qualifications: -

Natural-born citizen; Duly registered physician; In the practice of medicine for at least 10 years; 7

Legal Medicine (Atty. Capule) – Midterm Notes (As per pointers)

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-Certificate of Eligibility from the Board of Medical Education; -Good moral character

Surgery and Ophthalmology, Otorhinolaryngology Preventive Medicine and Public Health Legal Medicine, Ethics and Medical Jurisprudence

3. Examination Requirements - must have passed the corresponding Board Examination - Preliminary Examination - -At least 19 years of age; - -Of good moral character; - -Have completed the first two years of the medical course; - -Final or Complete Examination - -Citizen of the Philippines or of any country who has submitted competent and conclusive - Documentary evidence confirmed by the DFA showing that his country‘s existing laws permit citizens of the Philippines to practice medicine under the same rules and regulations governing citizens thereof (RECIPROCITY RULE).

PRACTICE OF MEDICINE What is the “practice of medicine”? It is a privilege or franchise granted by the State to any person to perform medical acts upon compliance with law, that is, the Medical Act of 1959 as amended which has been promulgated by the State in the exercise of police power to protect its citizenry from unqualified practitioners of medicine. It is diagnosing and applying and the usage of medicine and drugs for curing, mitigating, or relieving bodily disease or conditions. ACTS CONSTITUTING THE PRACTICE OF MEDICINE (pursuant to Sec.10, Art. III of the Medical Act of 1959 as amended):

4. Holder of certificate of registration No issuance to any candidate who has been: - -Convicted by a court of competent jurisdiction of any crime involving moral turpitude; - -Found guilty of immoral or dishonorable conduct after investigation by the Board of Medicine; - -Declared to be of unsound mind.

1. who shall for compensation, fee, reward in any form paid to him directly or through another, or even without the same, physically examine any person, and diagnose, treat, operate or prescribe any remedy for human disease, injury, deformity, physical, mental, psychical condition or any ailment, real or imaginary, regardless of the nature of the remedy or treatment administered, prescribed or recommended; 2. 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;

Scope of Examination: Preliminary - Anatomy and Histology Physiology Biochemistry Microbiology and Parasitology Final - Pharmacology and Therapeutics Pathology Medicine Obstetrics and Gynecology Pediatrics and Nutrition 8

Legal Medicine (Atty. Capule) – Midterm Notes (As per pointers)

3. who shall falsely use the title of M.D. after his name, shall be considered as engaged in the practice of medicine.

ILLEGAL PRACTICE OF MEDICINE Practice of medicine by any person not qualified and not duly-admitted to perform medical acts in compliance with law.

By DECISIONS OF COURTS, the following are not considered to constitute practice of medicine:

Penalties 1. 2. 3. 4.

One who takes BP reading; Application of medicated massage; Hospital; Nurse anesthetist

Pursuant to Sec.28, Art. IV, Medical Act of 1959 as amended – Any person found guilty of ―illegal practice‖ shall be punished by a fine of not less than one thousand pesos or more than ten thousand pesos with subsidiary imprisonment in case of insolvency or by imprisonment of not less than one year no more than five years, or by both such fine and imprisonment, in the discretion of the court.

Exemptions: By PROVISIONS OF LAW, the following are not considered to constitute practice of medicine (Sec.11, Art. III, Medical Act of 1959 as amended):

Qualified to practice medicine in the Philippines 1. Any medical student duly enrolled in an approved medical college; 2. dentist; 3. physiotherapist; 4. optometrist; 5. 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; 6. Any person who administers or recommends any household remedy as per classification of existing Pharmacy Laws; 7. Clinical psychologist with the prescription and direct supervision of a physician; 8. Prosthetist

1. Those who have complied with the prerequisites to the practice of medicine in accordance with Sec. 8, Art. III, Medical Act of 1959 as amended; 2. Those who can have limited practice without any certificate of registration in accordance with Sec.12, Art. III, Medical Act of 1959 as amended: -

Related to constitutional guarantee to religious freedom (freedom to believe and freedom to act in accordance with one‘s belief);

Exclusive consultation in specific and definite cases; Attached to international bodies to perform certain definite work in the Philippines; Commissioned medical officers stationed in the Philippines in their own territorial jurisdiction; Exchange professors in special branches of medicine; Medical students who have completed the first four years of medical course, graduates of medicine and registered nurses who may be given limited and special authorization by the DOH;

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.

3. ―Balikbayan‖ Physicians pursuant to PD 541, Allowing Former Filipino Professionals to Practice Their Respective Professions in the Philippines, proviso:

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Note: Faith Healing There is nothing in the Medical Act of 1959 exempting it from the definition of the acts which constitute practice of medicine;

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Legal Medicine (Atty. Capule) – Midterm Notes (As per pointers)

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Of good standing prior to their departure and in their adopted country; Have registered with PRC and paid their professional fee; Pay the corresponding income tax;

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5. Medical Students pursuant to Sec.11(a) and Sec.12(d), Art.III, Medical Act of 1959 as amended;

RIGHTS GENERALLY ENJOYED BY EVERY CITIZEN

6. Limited practitioners of medicine - Those that are governed by specific licensure laws

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Rationale why artificial persons cannot practice medicine

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management

INCIDENTAL RIGHTS - right of way while responding to emergency - right of exemption from execution of instruments and - Library to hold certain public/private offices to perform certain services to compensation right to membership in medical societies

4. Foreign physicians qualified to practice by Reciprocity Rule or by endorsement;

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to determine appropriate procedures to avail of hospital services

Pursuant to the provisions of Art. III, bill of rights, Philippine Constitution 1987

RIGHTS OF PATIENTS

Cannot be subjected to licensure examinations as required by law; Practice of medicine may be employed and controlled by unqualified physicians; Professional relationship between the patient and the physician will be impaired; Deprivation of free choice of physicians.

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ADDITIONAL NOTES

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

Basis of Consent 1. The physician-patient relationship fiduciary in nature. 2. Patient‘s right to self-determination. 3. Contractual relationship.

PHYSICIAN He 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)

is

Purposes 1. To protect the patient from unnecessary/unwarranted procedure applied to him without knowledge 2. To protect the physician from any consequences for failure to comply with legal requirements

RIGHTS OF PHYSICIAN INHERENT RIGHTS - to choose patients (except in emergency cases) - to limit practice of medicine 10

Legal Medicine (Atty. Capule) – Midterm Notes (As per pointers)

too remote from the development of the injury suffered by the patient. 3. The result must be the natural continuous and probable consequences.

Instances When Consent Is Not Necessary 1. In cases of emergency, there is an ―implied consent‖ or the physician is ―privilege because he is reasonably entitled to assume consent 2. When the law made it compulsory for everyone to submit to the procedure

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.

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.

DOCTRINE OF VICARIOUS LIABILITY Doctrine of Responsibility.

Imputed

Negligence/Command

Vicarious liability means the responsibility of a person, who is not negligent, for the wrongful conduct or negligence of another.

Elements of Medical Malpractice CAPTAIN-OF-THE-SHIP DOCTRINE 1. The physician has a duty to the patient; 2. The physician failed to perform such duty to his patient; 3. As a consequence of the failure, injury was sustained by the patient; 4. The failure of the physician is the proximate cause of the injury sustained by the patient.

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.

Criminal medical malpractice, the act or omission complained of must be punishable by law at the time of commission or omission. Proximate Cause

Requisites of Res Ipsa Loquitur Doctrine: that cause, which, in natural continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the result would not have occurred. 1. There must be a direct physical connection between the wrongful act of the physician and the injury sustained by the patient. 2. The cause or the wrongful act of the physician must be efficient and must not be

1. The accident must be of a kind which ordinarily does not occur in the absence of someone‘s negligence; 2. It must be caused by an agency or instrumentality within the exclusive control of the defendant; 3. It must not have been due to any voluntary action or contribution on the part of the plaintiff. 11

Legal Medicine (Atty. Capule) – Midterm Notes (As per pointers)

Some cases wherein the Doctrine of Res Ipsa Loquitor has been applied: 1. Objects left in the patient‘s body at the time of caesarian section; 2. Injury to a healthy part of the body; 3. Removal of a wrong part of the body when another part wad intended; 4. Infection resulting from unsterilized instruments; 5. Failure to take radiographs to diagnose a possible fracture; Instances where the Doctrine of Res Ipsa Loquitor does not apply: 1. Where the Doctrine of Calculated Risk is applicable; 2. When an accepted method of medical treatment involves hazards which may produce injurious results regardless of the care exercised by the physician. 3. Bad Result Rule; 4. Honest Errors of judgment as to Appropriate Procedure; 5. 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‘

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