Med Juris Lect

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

MEDICAL JURISPRUDENCE includes: • 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.

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.

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 Primarily concerned with the standardization and regulation of medical education PROFESSIONAL REGULATIONS COMMISSIONS To have general supervision and regulation of all professions requiring examinations which includes the practice of medicine 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

BOARD OF MEDICAL EDUCATION • • • • • • • • • • • • • • • • • •

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 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; 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.

PROFESSIONAL REGULATIONS COMMISSION • Composition: Commissioner Two Associate Commissioner • Exercise of Power and Functions of the Commission -exercise general administrative, executive and policymaking functions for the whole agency

BOARD OF MEDICINE • • • • • • • • •

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

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

ADMISSION TO THE PRACTICE OF MEDICINE Prerequisites: • 1. Minimum age requirement • - at least 21 years of age • 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; Certificate of Eligibility from the Board of Medical Education; Good moral character .

• 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).

• 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.

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”? • 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) 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; • 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.

• By DECISIONS OF COURTS are not considered to constitute practice of medicine: • a) One who takes bp reading; • b) Application of medicated massage; • c) Hospital; • d) Nurse anesthesist

Exemptions • • • • • •

• • •

By PROVISIONS OF LAW are not considered to constitute practice of medicine (Sec.11, Art. III, Medical Act of 1959 as amended): a) Any medical student duly enrolled in an approved medical college; b) dentist; c) physiotherapist; d) optometrist; e) 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; f) Any person who administers or recommends any household remedy as per classification of existing Pharmacy Laws; g) Clinical psychologist with the prescription and direct supervision of a physician; 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; • -Related to constitutional guarantee to religious freedom (freedom to believe and freedom to act in accordance with one’s belief); • -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.

ILLEGAL PRACTICE OF MEDICINE •

Practice of medicine by any person not qualified and not duly-admitted to perform medical acts in compliance with law. Penalties • 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.

• 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: Exclusive consultation in specific and definite cases; Attached to international bodies to perform certain definite work in the Phils; Commissioned medical officers stationed in the Phils 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;

• 3. “Balikbayan” Physicians pursuant to PD 541, Allowing Former Filipino Professionals to Practice Their Respective Professions in the Philippines • Proviso: • - 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;

• 4. Foreign physicians qualified to practice by Reciprocity Rule or by endorsement; • 5. Medical Students pursuant to Sec.11(a) and Sec.12(d), Art.III, Medical Act of 1959 as amended; • 6. Limited practitioners of medicine • - Those that are governed by specific licensure laws

 Rationale why artificial persons cannot practice medicine • -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 .

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)

• According to Justice Malholm • “ 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.”

Purpose • To prescribe the permanent framework of a system of government, to assign to the several departments their respective powers and duties, and to establish certain first principles on which the government is founded. (11Am. Jur. 606)

ESSENTIAL PARTS OF A CONSTITUTION Constitution of Liberty Constitution of Government Constitution of Sovereignty  

• AMENDMENT isolated or piecemeal change in the constitution while REVISION is the revamp or the rewriting of the entire instrument

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 • Consensual - based on mutual consent both parties • Fiduciary - based on mutual trust and confidence

Requisites of a contractual 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.1319NCC) • 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 •

Forms of Physician-Patient Relationship

1. Expressed – explicitly stated orally or in writing 2.Implied – the existence can be inferred from the acts of the contracting parties. Inferred by law as a matter of reason and justice for their acts or conduct

Some Instances where there is no Physician-Patient Relationship by DECISIONS OF COURTS

• 1. Pre-employment PE for purposes of determining whether an applicant is suitable for employment; • 2. PE for eligibility for insurance; • 3. Physician appointed by court to examine the accused; • 4. In performing an autopsy; • 5. Casual consultation in an unordinary place.

• PSYCHOLOGICAL PATTERNS OF PHYSICIANPATIENT RELATIONSHIP • ACTIVITY-PASSIVITY RELATION • No interaction between physician and patient because the patient is unable to contribute activity. This is characteristic in an 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.

DUTIES and OBLIGATIONS Imposed on the Physician in the Physician-Patient Relationship

• 1. He should posses the knowledge and skill of which an average physician is concerned; • General practitioner vs Specialist • 2. He should use such knowledge and skill with ordinary care and diligence; – “locality rule” – the standard of care is measured by the degree of care

in the locality – “similar locality rule” – diligence is determined when the other physicians in the locality or similar locality could have acted the same way – “national standard of care” - the diligence is determined on what is applicable on a national standard basis

• 3. He is obliged to exercise the best judgment; • 4. He has the duty to observe utmost good faith.

N.B. • - Physician-Patient relationship does not imply

• • • •

guaranty or any promise that the treatment will be successful - it does not imply any promise or guaranty that the treatment will benefit the patient - it does not imply any promise or guaranty that the treatment will produce certain result - it does not promise or guaranty that the treatment will not harm the patient - it does not promise that the physician will not commit errors in an honest way

DUTIES and OBLIGATIONS Imposed on the Patient in the Course of the PhysicianPatient Relationship

• 1. He must give an honest medical history; • 2. He must inform the physician of what occurred in the course of the treatment; • 3. He must cooperate and follow the instructions, orders and suggestions of the physician • 4. 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 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 • 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: – 1.Recovery of the patient or when the physician considers that his medical services will no longer be beneficial to the patient; – 2. Withdrawal of the physician provided: a) with consent of the patient, and b) patient is given ample time and notice; – 3. Discharge of the physician by the patient; – 4. Death of either party; – 5. Incapacity of the physician – 6. Fulfillment of the obligations stipulated in the contract; – 7. In emergency cases, when the physician of choice of the patient is already available or when the condition of emergency ceases; – 8. Expiration of the period as stipulated; – 9. Mutual agreement for its termination.

RIGHTS OF PHYSICIAN INHERENT RIGHTS to choose patients to limit practice of medicine to determine appropriate management procedures to avail of hospital services

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

RIGHTS GENERALLY ENJOYED BY EVERY CITIZEN Pursuant to the provisions of Art. III, bill of rights, Philippine Constitution 1987

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. • • NB: 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 • “xxx…free to choose whom he will serve…xxx..always respond to any request for his assistance in emergency….xxx” •

• •

Art. II, Sec.3 Code of Ethics “In cases of emergency, xxx ….a physician should administer at least first aid treatment and then refer to a more qualified and competent physician ……xxx”

• •

Sec.1 RA 6615 “All government and private hospitals…xxx .are required to render immediate emergency medical assistance…xxx.”

• •

Sec.24 No.12, Medical Act of 1959 “”xxx…….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

•

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 AVAIL OF HOSPITAL SERVICES • RIGHT TO DERTEMINE THE APPROPRIATE MANAGEMENT PROCEDURE • Doctrine of Superior Knowledge • - 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 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 SERVICES • RIGHT TO MEMBERSHIP IN 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

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.

RIGHT TO COMPENSATION

• - Based on the physician-patient contractual relationship; • - Existence of friendship does not imply gratuitous services.

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…xxx…this provision shall not apply to physicians who are no longer in the active practice….xxx.” Doctrine of Unjust Enrichment - no one must enrich himself at the expense of others - “service rendered service paid”

Kinds of Medical Fees: • 1. Simple Contractual Fee – specifically stating the value of such medical service, either orally or in writing • 2. Retainer Fee – measured by the space of time rendered by patient • 3. 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.

Art. III, Sec 5, Code of Ethics “xxx….solicitation of patients, directly or indirectly, through solicitors or agents, is unethical.” • 1. Straight Fee – 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; • - this kind of fee is unethical because the amount wagers with the unforceable contingencies .

Method of Collection of Payment for Medical Services • 1. Extra judicial – billing or referral to a bill collection agency • 2. Judicial methods Facts to be Proven in Court a) Physician employed is duly qualified and licensed; b) The physician has rendered professional service to the patient; c) The professional fee demanded is reasonable; d) The person liable for the payment is the defendant.

• 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. • NB. • Implied promise to pay the physician by the benefactor of the medical services rendered in emergency cases.

Instances where the physician cannot recover professional fees: Agreement that the service is gratuitous; 2. In government charity hospitals, health centers and other similar health units; 3. Rendered in private charitable institutions if expressly gratuitous to the indigent patients; 4. Waiver on the part of the physician; 5. Breach of contract; 6. When the physician cannot charge the patient pursuant to the Code of Ethics; 7. Those covered by Phil health; 8. Medical services rendered under a contract of employment unless expressly provided otherwise. 1.

RIGHTS OF PATIENTS • 1. Right to give consent to diagnostic and treatment procedures • 2. Right to religious belief • 3. Right of privacy • 4. Right to disclosure of information • 5. Right to confidential information • 6. Right to choose his physician • 7. Right of treatment • Right to refuse necessary treatments

RIGHT TO GIVE CONSENT TO DIANOSTIC PROCEDURES • • • • • • • • •

Obligations of the Physician to Inform the Patient: 1. Diagnosis 2. General nature of the contemplated procedure 1. Risk involved 2. Prospect of success 3. Potential danger if not applied 4. Alternative methods of treatment “….patient is the final arbiter of what must be done with his body.”

Bases of Consent • 1. The physician-patient relationship is fiduciary in nature. • 2. Patient’s right to self-determination. • 3. Contractual relationship.

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

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

Requisites of a Valid Consent • 1. Informed or enlightened consent • 2. Voluntary • 3. Subject matter must be legal

Forms of consent • 1. Expressed consent – written or oral • 2. Implied consent may be deduced from the conduct of the patient

Scope of the Consent • 1. General or Blanket consent • 2. Limited or conditional consent • 3. Non-liability or exculpatory clause



Informed/Enlightened Consent • awareness and assent • full disclosure of facts and willingness of the patient to submit

• Quantum of Information Necessary to Form the Basis of a Valid Consent • 1. Nature of his condition; • 2. Natured of proposed treatment or procedure; • 3. Possible alternative methods; • 4. Risk involved; • 5. Chances of success or failure • Consent must be given freely or voluntarily

• Persons Who Can Give consent – 1. Patient ; – 2. If patient is minor, consent must be obtained from the parents; – 3. In the absence of the parents, consent of the grandparents must be obtained, paternal grandparents having preference; – 4. In the absence of parents and grandparents, eldest brother or sister, provided one is of age and not disqualified by law to give consent; – 5. Other person who may give consent having substitute parental authority.

 •

Subject matter is 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.

NB: • - 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.

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 therof. 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 OF PRIVACY • RIGHT OF 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

Art. 1339, Civil Code states that “xxx……failure to disclose pacts, when there is duty to reveal them, as when the parties are bound by confidential elations, constitutes fraud.”

RIGHT OF 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.

•

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.

• Some instances where confidentiality is not applicable: – 1. When such disclosure is necessary to serve the best interest of justice; – 2. When the disclosure will serve public health and safety; – 3. When the patient waives its confidentiality.

RIGHT TO CHOOSE HIS PHYSICIANS RIGHT TO TREATMENT • - In emergency cases the patient has the right to treatment. • • Sec. 1, 1st par, RA 6615 • Provides that “xxx….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…xxx.” • • 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. A man is the master of his own self and may expressly prohibit a life-saving surgery or medical treatment. • - Doctrine of parens 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 PHYSICIAN •

ADMINISTRATIVE

– Right to practice is temporarily withdrawn from the physician; – A valid exercise of the police power of the State; – Laws: Medical Act of 1959 as amended including the Code of Ethics and Rules and Regulations of the PRC; – Penalty: reprimand, suspension, to revocation of license. •

CRIMINAL

– An act or omission which constitute a crime by the physician; – Laws: Revised Penal Code and other special laws; – Penalty: imprisonment and/or fine. •

CIVIL

– Awarded against a physician to compensate for theinjury he suffered on account of the physician’s act or omission as a breach of the contractual relationship of both parties; – Laws. Civil Code of the Philippines and other related laws; – 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: – – – – –

1. Right to hearing; 2. Tribunal must consider the evidence presented; 3. Decision must have something to support itself; 4. Evidence must be substantial; 5. Decision must be based on the evidence adduced at the hearing, or at least contained in the record and disclosed to the parties; – 6. 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: – 1. Immoral or dishonorable conduct; – 2. Insanity; – 3. Gross negligence, ignorance or incompetence resulting in an injury to or death of the patient; – 4. Addiction to alcoholic beverages or to any habitforming drug rendering him incompetent to practice medicine. –



Criminal Acts: – 1. Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude – 2. Fraud in the acquisition of the certificate of registration; – 3. Performance of or aiding in any criminal abortion – 4. Knowingly issuing false medical certificate; – 5. Aiding or acting as dummy of an unqualified or unregistered person to practice medicine.

Unprofessional Conduct – 1. False or extravagant or unethical advertisements wherein other things than his name, profession, limitation of practice, clinic hours, office and home address, are mentioned; – 2. Issuing any statement or spreading any news or rumor which is derogatory to the character and reputation of another physician without justification; – 3. 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: – a. The law imposes revocation of the license; – b. 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 prision 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…xxx.” • • 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 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 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: • 1. 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.

• 2. 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 quasi-delict 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…xxx.”

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: • 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. •

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

• Doctrine Cause

of

Efficient

Intervening

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 CASES

• Doctrine of Vicarious Liability –o –o –o

• • • • • • •

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 ones own acts or omission but also fort those persons whom one is responsible • “….xxx the owners or managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occassion 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.”

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).

BORROWED SERVANT DOCTRINE • 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 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.

CAPTAIN-OF-THE-SHIP DOCTRINE • - 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.

REASONS FOR APPLICATION OF THE DOCTRINE OF VICARIOUS LIABILITY • 1. Deep pocket theory; • 2. The employer has the power to select his employee and to control his acts; • 3. 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; • 4. To treat them as operating expense.

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 Res Ipsa Loquitor Doctrine: • 1.The accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; • 1. It must be caused by an agency or instrumentality within the exclusive control of the defendant; • 2. 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: • 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; • When an accepted method of medical treatment involves hazards which may produce injurious results regardless of the care exercised by the physician. • 2. Bad Result Rule; • 3. Honest Errors of judgment as to Appropriate Procedure; • 4. 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’

• 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 an ‘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 Civil Code 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.”

Art.2214, Civil Code • In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover.” Some Instances where there is contributory negligence: • 1. Failure to give the physician an accurate history; • 2. Failure to follow the treatment recommended by the physician; • 3. Leaving the hospital against the advice of the physician; • 4. Failure to seek further medical assistance if symptoms persist.

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 nonresponse.

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.

FELLOW SERVANT DOCTRINE • - This doctrine provides that if a servant (employee) was injured on account of the negligence of his fellow servant (employee), the employer cannot be held liable.

RESCUE DOCTRINE • - 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 • - 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 • - 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 OR OMISSIONS WHICH CONSTITUTE MEDICAL MALPRACTICE • • • • • • • • • • • • • • •

1. Failure to take medical history; 2. Failure to examine or make a careful and adequate examination; 3. Non-referral of the patient to a specialist; 4. Failure to consult prior physicians for previous management; 5. Non-referral of patient to a hospital with equipments and trained personnel; 6. Failure to use the appropriate diagnostic test; 7. Failure to diagnose infections; 8. Treatment resulting to addiction; 9. Abandonment of patients; 10. Failure to give proper instructions; 11. Failure to institute the proper prophylactic treatment; 12. Errors in blood transfusion; 13. Liabilities in administration of drugs; 14. Product liabilities of manufacturer; 15. 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: • 1. There is a physician-patient relationship; • 2. The relationship is terminated without mutual consent of both parties; • 3. Unilateral termination of the contractual relationship by the physician; • 4. Continuing need of the patient for further medical treatment; • 5. Abandonment must have been the cause of the injury or death of the patient.

Some instances of abandonment: • 1. Refusal by a physician to treat a case after he has seen the patient needing medical treatment but before treatment is commenced; • 2. Refusal to attend to a case for which he has already assumed responsibility; • 3. Failure to provide follow-up attention; • 4. 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: – a) the attending physician did not exercise due care and diligence in the selection of the substitute; and – b) If the substitute acts as agent of the attending physician in so far as carrying out a certain course of treatment in which case master-servant relationship is created.

• N.B. Non-payment of bill cannot be a defense for abandonment.

LIABILITIES IN THE ADMINISTRATION OF DRUGS

Five basic rights: • • • • •

1. 2. 3. 4. 5.

Right drug; Right patient; Right dose; Right time; and Right route.

Negligence in the administration of a drug which causes injury to the patient may be attributed to: • • • • • • • • • • • • • •

1. Drug reaction; failure to note history of allergy failure to test for signs of reaction failure to stop treatment when the drug reaction has been observed failure to provide adequate therapy to encounter a reaction treatment with a drug not proper for the illness 2. Overdosage; 3. Failure to give warning of the side effects; 4. Administering medicine on the wrong route; 5. Administration of the wrong medicine; 6. Administration of a drug on the wrong person; 7. Infection following an injection; 8. Injury to the nerves 9. 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. 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, …..xxx.” Classification, according to Control and Financial Support: 1. 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) 2. 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: • 1.

Private charitable or eleemosynary – established for the public benefit and not conducted for the pecuniary gain of the management. • 2. Private pay – established for profit and gain.

Rationale why hospital cannot practice medicine: • 1. The hospital cannot be subjected to government licensure examinations to determine whether it is qualified to practice medicine; • 2. A non-medical will be allowed to control a physician and through circumvention practice medicine; • Breach of the confidential relationship in a physician-patient relationship.

Primary Duties of a Hospital: • 1. To furnish a safe and well-maintained building and ground; • 2. To furnish adequate and safe equipments; • 3. To exercise reasonable care in the selection of the hospital staff.

Persons Coming Within the Premises of the Hospital • 1. 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. • 2. Licensee – one who is neither a customer, servant or 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 convinience. 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

1. Government or Public Hospitals • - A State cannot be sued without its consent. • - 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.” • - 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. • - Those established to perform government functions, it is immune from being sued. • - Those performing proprietary function when it is established for profit. The government goes down to the level of any private hospital.

2. Private Charitable, Voluntary or eleemosynary for charity • - A charity hospital is established and maintained from the donations, contributions, philantrophic acts and pays no dividends. • - The determination whether a hospital was established for charity is the articles of incorporation and the constitution and by-laws of the corporation.

3. Private Hospital Operating for profit

• - May be held vicariously liable for the negligent acts of its employees.

• N.B.   A hospital which allow 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 bed are devoted for charity is not deemed a charitable institution.

Doctrines Applied to Charitable Hospital Immunity for the Acts of its Employees

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.

1. Principle of administrative/ministerial as against professional/medical duties; • 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. • 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.

2. Power of Control;

3. Contract of Service; • 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.

4. Independent Contractor Theory;

5. Sole Responsibility vs Shared Responsibility.

LIABILITIES OF HOSPITAL • 1. CORPORATE Liabilities • 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. • Recent decisions of the court has 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. •   • 2. 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 “…xxx 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 patient for non-payment of bill • A patient cannot be detained in a hospital for nonpayment 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 HOSPITAL FOR ITS ANCILLARY SERVICES • - Whenever the hospital administration enters into contract with a partnership of physicians to run the emergency room, the medical staff 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 • 1. Examination of the patient to determine his condition and need for emergency medical procedures • 2. Performance of the specific medical or surgical procedure which are required without delay to protect the patient’s health. •

Liability in the emergency room may arise from the following: • 1. Failure to admit; • 2. Failure to examine and/or treat; • 3. Negligence in the application of management procedures.

•

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 Maintenance of Medical Records • 1. For convenience and necessity in consonance with the purpose enumerated; • 2. As required by statutes (Hospital Licensure Law) • - The hospital may be held liable for injury resulting from a breach of duty to maintain accurate records. • - Destruction of records is an evidence of negligence. • - An altered medical record may create suspicious intent to establish a defense and such alteration may be a proof of negligence. • - 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.

VIOLATION OF THE CONFIDENTIAL NATURE OF RECORD • 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………xxx who violates or fails to comply with the maintenance and keeping of the original records of transactions on any dangerous drugs….xxx” • An additional penalty of revocation of license to practice his profession……xxx.”

• 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 use 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…..xxx.”

•

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

• 1. Name of the patient and house officers associated with the treatment of a patient; • 2. Personal circumstances of the patient which are not ordinarily related to the treatment.

When May the Contents of the Record be Disclosed • 1. When requested by the patient or by someone who could act in his behalf which must be made in writing; • 2. When the law requires such disclosure; • 3. Upon a lawful order of the court. • N.B. • 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.

DAMAGES • 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.

• 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.

• 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.

• Doctrine of Certainty of Damages • 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.

TYPES OF DAMAGES • • • • • •

1. 2. 3. 4. 5. 6.

Actual or Compensatory; Moral; Exemplary Nominal; Temperate; Liquidated

ACTUAL OR COMPENSATORY DAMAGES • Art. 2199, Civil Code • Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. • • Art. 2200, Civil Code • Indemnification for damages shall comprehend not only the value of the loss suffered, but also that of the profits which the obligee failed to obtain.

• Kinds: • 1. ‘Dano emergente’ – the loss already suffered by the patient • 2. Lucro cesante – failure to receive the benefit which would have pertained to him.

Compensatory Damages Applied to Medical Malpractice 1. Death • 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. 2. Physical Disability 3. Loss of Earning Capacity 4. Medical, Surgical, Hospital, and Related Expenses 5. Loss of Service or Support 6. Funeral Expenses

MORAL DAMAGES • 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:

1. A criminal offense resulting in physical injuries; 2. Quasi-delict causing physical injuries.

• • • •

Physical Suffering Mental Anguish Fright and Moral Shock Besmirched Reputation and Social

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.

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.

Obligation 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 •

Attorney’s fees and other related expenses in litigation, other than judicial cost are not as rule recoverable except when the law specifically provides. (Art.2208, Civil Code)

• •

1. When exemplary damages are awarded; 2. When the defendant’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; 3. In criminal cases of malicious prosecution against the plaintiff; 4. In case of clearly unfounded civil action or proceeding against the plaintiff; 5. Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly valid, just and demandable claim; 6. In actions for legal support; 7. In actions for the recovery of wages of household helpers, laborers and skilled workers; 8. In actions for indemnity under the workmen’s compensation and employer’s liability laws; 9. In a separate civil action to recover civil liability; 10. When at least double judicial costs are awarded; 11. In any other case where the court deems it just and equitable that attorney’s fees and expenses of litigation should be recovered.

• • • • • • • • •

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.

Related Provisions of the Code of Medical Ethics • A condition of emergency is usually an exception to the observance of the standard ethical conducts. • 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…xxx.” • 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...xxx.”

• •

Art. IV, Sec. 16 “A physician called upon to attend to a patient of another physician because of an emergency….xxx….should attend only to the patient;\’s immediate needs….xxx.”

• •

Art. IV, Sec. 17 Whenever in the absence of the family physician several physicians have been simultaneously called in an emergency case • …xxx..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…xxx.”

• 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…xxx.”

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: • 1. 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. • 2. Anyone who shall fail to help or render assistance to another whom he has accidentaqlly wounded or injured…xxx.”

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 a 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. • 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.

Emergency Operation without Consent • 1. The injured person must be unconscious or otherwise unable to give a valid consent; • 2. The situation must be such as it would make it actually and apparently necessary to act before there is an opportunity to obtain consent; • The physician in the exercise of his best judgment that the medical procedure is life-saving.

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 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. • N.B. Surgery cannot be extended if an emergency is not present • • The law also implies an obligation on the part pf the patient to pay reasonable value of the emergency service. If no specified amount agreed upon, the principle of quantum meruit shall be applied.

DELEGATION OF A PHYSICIAN’S DUTIES • Requisites for a Valid Delegation • 1. 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.; • 2. The person to whom such duty is delegated must be competent to perform such duty; • 3. 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.

THE MEDICAL WITNESS AND THE COURT •

Court – 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 • • • • •

1. 2. 3. 4. 5.

Supreme Court Court of Appeals Regional Trial Court Municipal or City Trial Court 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 medicolegal in character.

PHYSICIAN AS AN ORDINARY WITNESS • Sec. 20, Rule 130, Rules of Court • “xxx….all persons who, having organs of sense, can perceive, and perceiving can make known their perception to others maybe witness…xxx.” • Requisites of an Ordinary Witness • 1. The person must have the organ and power of perception; • 2. The perception gathered by his organs of sense can be imparted to others; and • He does not fall in any of the exception or disqualifications provided by the Rules of Court.

Disqualification by reason of: • 1. Mental Incapacity or immaturity - Sec. 21, Rule 130, Rules of Court – a) 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; and – b) 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.

• 2. Marriage - Sec. 22, Rule 130, Rules of Court • During their marriage, neither the husband nor the • 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;

• • •

3. Death or Insanity - Sec. 23, Rule 130, Rules of Court 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;

• • •

4. Parental or filial Privilege - Sec. 25, Rule 130, Rules of Court No descendant can be compelled, in a criminal case, to testify against his parents and ascendants.

• Disqualification by reason of Privileged Communication •

Sec. 24, Rule 130, Rules of Court – The following persons cannot testify as to matters learned in confidence in the following cases: • 1. 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; •

2. 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;

• 3. 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; • 4. 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; • 5. 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 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 • 1. Interns; • 2. 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 • 1. When a person is examined at the instance of the law, for the purpose of testifying to solely qualify the physician to testify; • 2. 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. • 3. Information obtained by a technician from a patient is not privileged. • 4. When the public interest so requires.

Scope of the Privilege • 1. Oral testimony by the physician in court; • 2. Affidavits, certificates and reports made by the physician as exhibit in court; and • 3. Hospital records.

Waiver of Privilege

• Patient may expressly or impliedly waive their right to privilege communication.

HEARSAY EVIDENCE •

An evidence not proceeding from personal knowledge of the witness, but from mere repetition of what he had heard others say. I 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. • • Sec. 36, Rule 130, Rules of Court – Testimony generally confined to the personal knowledge of the witness; hearsay excluded. • “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, Rules of Court “The declaration of a dying person, made under a consciousness of an impending death, may be received in a criminal case wherein his 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 • 1. Necessity – death of the declarant makes it impossible to obtain his testimony in court. • 2. 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 • 1. That the declaration must concern the cause and surrounding circumstances of the declarant’s death; • 2. That at the time the declaration was made, the declarant was under the consciousness of impending death; • 3. That the declarant is a competent witness; • 4. That the declaration 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. • N.B. 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.”

THE PHYSICIAN AS AN EXPERT WITNESS

• An 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: • • •

1.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; and 2.The witness must have such skill, knowledge or experience in that field or calling as to make it appear that his 3.Opinion or reference will probably aid the trier of facts in his search for the truth.

• An OPINION maybe 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.

• Sec. 48, Rule 130, Rules of Court • General rule - The opinion of a witness is not admissible, except as indicated by the Rules. • • Sec. 49, Rule 130, Rules of Court • 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, Rules of Court •

Opinion of Ordinary Witness – The opinion of a witness for which proper basis is given, may be received in evidence regarding – – a) the identity of a person about whom he has adequate knowledge; – b) A handwriting with which he has sufficient familiarity; and – c) The mental sanity of a person with whom he is sufficiently acquainted.

• The witness may also testify on his impressions of • emotion, behavior, condition or appearance of a person.

Distinctions Between an Ordinary and Expert Witness • 1.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;

• 2.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.

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 • • • • • • •

1. 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. 2. 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. 3. Subpoena duces tecum and testificandum N.B. Failure to comply with a subpoena without justifiable reason is a ground for reprimand, suspension or revocation of the certificate of registration.

• 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 • “xxx…..(12) Violation of any of the provisions of the Code of Medical Ethics…shall be sufficient ground for reprimanding, or for suspending or revoking a certificate of registration as physician… xxx.” • Refusal of a public officer to give assistance in the administration of justice is penalized by law • Art. 233, Revised Penal Code • “The penalties of arresto mayor…xxx, 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 With a Subpoena • 1. The Court issuing the subpoena has no jurisdiction over the subject matter of the case; • 2. When the place of residence is more than 100 kilometers from the court issuing the subpoena. –

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.”

• 3. 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. • 4. On account of illness incapacitating him to attend.

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: i. To be protected from irrelevant, improper questions and from harsh or insulting demeanor; ii. Not to be detained longer than the interests of justice require; iii.Not to be examined except only as to matters pertinent to the issue; iv.Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or v. 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.”

Instances when the medical witness may not be compelled to answer questions in court • 1. 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. Sec. 17, Art. III, Phil Constitution – “No person shall be compelled to be witness against himself.

• 2. 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:

Impeachment of Medical Testimony • 1.By contradicting testimonies by others of his own class or by any other competent witnesses; • 2.By showing that the medical witness is interested in the outcome of the case or bias; • 3.By an inconsistent statement made at another time; • 4. By not expressing the opinion testified to at the time when such expression might reasonably had been expected; and • When the scientific treatise which he relies on as the basis of his opinion does not sustain him.

Effects of False Testimony • 1. 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: – i. The penalty of reclusion temporal, if the defendant in said case shall have been sentenced to death; – ii. The penalty of prision mayor, if the defendant shall have been sentenced to reclusion temporal or perpetua; – iii. The penalty of prision correccional, if the defendant shall have been sentenced to any other afflictive penalty; and – iv. The penalty of arresto mayor, if the defendant shall have been sentenced to a correccional penalty or a fine, or shall have been acquitted.”

• 2. 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….xxx…if the prosecution is for felony punishable by an afflictive penalty,..xxx.”

• 3. 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…xxx if the amount in controversy shall exceeds 5,000 pesos …xxx.”

• 4. Art. 183, Revised Penal Code, False testimony in other cases and perjury in solemn affirmation: “The penalty of arresto mayor …xxx, 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, Falsu In Omnibus” • When a witness falsified the truth on one point, his testimony on other points may be disregarded, unless corroborated by other unimpeached evidences.

• Requisites: • 1. That the witness deliberately or intentionally falsified the truth; • 2. That the other portions of the testimony to be discredited, are not corroborated by circumstances or other unimpeached evidence; • 3. The false testimony must be on material point.

• When it is not applicable • 1.When there are sufficient corroborations in many grounds of the testimony; • 2.When the mistake was not in a very material point; • 3.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 • Sec. 9, Rule 21, Rules of Court • 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, Rules of Court • 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…xxx.”

• Sec. 3, Rule 71, Rules of Court • 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… xxx…., a person guilty of any of the following acts may be punished for indirect contempt: – 1. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; – 2. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court….; – 3. Any abuse of or any unlawful interference with the process or proceedings of a court not constituting direct contempt…; – 4. Any improper conduct tending directly or indirectly to impede, obstruct, or degrade the administration of justice; – 5. Assuming to be an attorney…..; – 6. The rescue of a person or property in the custody of an officer by virtue of an order.

• 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.”

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 known to him. He must answer the question provided those set of facts has the following requisites: • 1. 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; • 2. The hypothetical question is based upon facts which are in evidence and assumed facts within the limit of evidence; • 3. 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 • 1.The testimony however impartial, may unconsciously favor one of the party litigants. The human mind is not absolutely impossible; • 2.The opinion of the medical expert is based on experience and treatise or books which may be divergent from the observation of others

CODE OF MEDICAL ETHICS • • • • • • • • • • • •

Art. I – General Principles Primary objective of the practice of medicine is “friend of man”

SERVICE to mankind.

Art. II – Duties of Physicians to their Patients To attend to his patients faithfully and conscientiously. Free to choose whom to serve. Immediate action in cases of emergency. Proper consultation and referral. He must exercise good faith and strict honesty in expressing his opinion. Sacred trust of information Practice of medicine is not a business.

• • • • • •

Art. III – Duties of Physicians to the Community Cooperation with proper authorities, sanitation and health. To assist in the administration of justice. To protect the public from charlatans. No solicitation and extravagant and false advertisements. Gratuitous services to the indigents.

Art. IV – Duties of Physicians to their Colleagues and to the Profession • • • • • • • • • • •

- Gratuitous services to a colleague. - Proper consultation and referral. - Uphold the honor and dignity of the profession. - Observe punctuality. - Observe utmost caution, tact and prudence as regards professional conduct of another physician. -To refrain from making unfair and unwarranted criticisms of other physicians. - To keep abreast to the advancements of medical science and contribute to its progress. - He should be diligent, upright, sober, modest and well-versed in both the science and art of medicine. - No advertising by means of untruthful or improbable statements in newspapers or exaggerated announcements. - Should expose without fear or favor, before the proper medical or legal tribunals corrupt and dishonest conduct of members of the profession. - 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 – To cooperate with and safeguard the interest, reputation and dignity of allied professional. – Not to allow to be published any testimonial certifying the efficacy, value and superiority and recommendation of drugs. – Non-payment of commissions to any person who refers cases to help him acquire patients.

• Penal Provisions • -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.

RIGHT AGAINST SELF-INCRIMINATION • Sec. 17. Art. III, Philippine Constitution states that, • “No person shall be compelled to witness against himself.” • 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. • 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. • 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: – The kernel of the right is not against all compulsion, but testimonial compulsion only. – It is simply against the legal process of extracting from the lips of the accused an admission of his guilt. – It does not apply where the evidence sought to be excluded is not an incriminating statement but an OBJECT EVIDENCE(eg. Fingerprinting, photographing, paraffin testing, PE). – The prohibition extends to the compulsion for the production of documents, papers and chattels that may be used as evidence against the witness except where the State has the right to examine or inspect under the police power of the State. – 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.

Thank you very much and good day to everyone! ALBERT D. REBOSA, M.D., LL.B.