Medical Jurisprudence Guide

MEDICAL JURISPRUDENCE Ivy D. Patdu, MD JD

HEALTH PROFESSIONS UNDER PRC 1.

What Health Related Professions are regulated by the Professional Regulations Regulations Commission? (Just have a general idea of what these professions are) R.A. No. 9484, (Dentistry) R.A. No. 5527 (Medical Technology), R.A. No. 2383, as amended (BOARD OF MED ICAL EDUCATION; RA No. 2382 Medical Act of 1959), R.A. No. 7392 (Midwife), R.A. No. 9173 (Nursing), P.D. No. 1286 (Nutrition and Dietetics), R.A. No. 8050 (Optometry), R.A. No. 5921 (Pharmacy), R.A. 5680 (Physical Therapy), R.A. No. 7431 (Radiologic Technology), R.A. No. 4373 (Social Work) , R.A. 9268 (Veterinarian) R.A. No. 1364 (Sanitary Engineering)

MEDICAL PRIVACY 2.

Philippine Constitution, art. III, §3

Section 3. 1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by la w. 2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding. 3.

Civil Code, art. 26 Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief: (1) Prying into the privacy of another's residence:

(2) Meddling with or disturbing the private life or family relations of another; (3) Intriguing to cause another to be alienated from his friends; (4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth, physical defect, or other personal condition. 4.

What is Medical or Health Privacy?

Since the creation of the Hippocratic oath about 400 B.C., protecting the privacy of patients has been an important part of  physicians' code of conduct. Over time, health information has come into use by many organizations and individuals who are not subject to medical ethics codes, including employers, insurers, government program administrators, attorneys and others. As uses of medical information multiplied, so have regulatory protections for this highly sensitive and deeply personal information. The regulatory regime for protecting privacy of health information is complex and fragmented. Some protections apply only to information held by government agencies. Some protections apply to specific groups, such as federal employees or school children. Some protections apply to specific medical conditions or types of information, such as information related to HIV/AIDS or substance abuse treatment. The first comprehensive set of f ederal regulation of health information, the Privacy Rule under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), came into effect in April 2003. The Security Rule, also required under HIPAA, was issued in final form on February 20, 2003 and will become effective in 2005. (from Electronic Privacy Information Center http://epic.org/privacy/medical/) 5.

Rules of Court, Rule 128, Section 24 (no sec.24)

RULE 128 General Provisions Sec. 1 . Evidence defined . — Evidence is the means, sanctioned by these rules, of ascertaining in a judicial proceeding the truth respecting a matter of fact. (1) Scope. — The rules of evidence shall be the same in all courts and in all trials and hearings, except as otherwise Sec. 2 . Scope. provided by law or these rules. (2a) Sec. 3 .  Admissibility of evidence. evidence . — Evidence is admissible when it is relevant to the issue and is not excluded by the law of  these rules. (3a)

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Sec. 4 . Relevancy ; collateral matters. — Evidence must have such a relation to the fact in issue as to induce belief in its

existence or non-existence. Evidence on collateral matters shall not be allowed, except when it tends in any reasonable degree to establish the probability or improbability of the fact in issue. (4a) 6.

Lim vs. Court of Appeals, 214 SCRA 273, 281-282(1992)

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The Electronic Commerce Act of 2000 (§§ 5,7, 31-33) Sec. 5. Definition of Terms. - For the purposes of this Act, the following terms are defined, as follows: a. “Addressee” refers to a person who is intended by the originator to receive the electronic data message or electronic document. The term does not include a person acting as an intermediary with respect to that electronic data message or  electronic document. b. “Computer”  refers to any device or apparatus which, by electronic,electro-mechanical or magnetic impulse, or by other means, is capable of receiving, recording, transmitting, storing, processing, retrieving, or producing information, data, figures, symbols or other modes of written expression according to mathematical and logical rules or of performing any one or more of  those functions. c. “Electronic Data Message” refers to information generated, sent, received or stored by electronic, optical or similar means. d. “Information and Communication System”  refers to a system intended for and capable of generating, sending, receiving, storing or otherwise processing electronic data messages or electronic documents and includes the computer system or other similar device by or in which data is recorded or stored and any procedures related to the recording or storage of electronic data message or electronic document. e. “Electronic Signature” refers to any distinctive mark, characteristic and/or sound in electronic form, representing the identity of a person and attached to or logically associated with the electronic data message or electronic document or any methodology or procedures employed or adopted by a person and executed or adopted by such person with the intention of  authenticating or approving an electronic data message or electronic document. f. “Electronic Document”  refers to information or the representation of information, data, figures, symbols or other modes of  written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. g. “Electronic Key”  refers to a secret code which secures and defendssensitive information that crosses over public channels into a form decipherable only with a matching electronic key. h. “Intermediary”  refers to a person who in behalf of another person and with respect to a particular electronic document sends, receives and/or stores or provides other services in respect of that electronic document. i. “Originator”  refers to a person by whom, or on whose behalf, the electronic document purports to have been created, generated and/or sent . The term does not include a person acting as an intermediary with respect to that electronic document.  j. “Service Provider” refers to a provider of (i) On-line services or network access, or the operator of facilities therefor, including entities offering the transmission, routing, or providing of connections for online communications, digital or otherwise, between or among points specified by a user, of electronic documents of the user’s choosing; or  (ii) The necessary technical means by which electronic documents of an originator may be stored and made accessible to a designated or undesignated third party;

Such service providers shall have no authority to modify or alter the content of the electronic data message or electronic document received or to make any entry therein on behalf of the originator, addressee or any third party unless specifically authorized to do so, and who shall retain the electronic document in accordance with the specific request or as necessary for the purpose of performing the services it was engaged to perform. Sec. 7. Legal Recognition of Electronic Documents.  – Electronic documents shall have the legal effect, validity or enforceability as any other document or legal writing, and (a) Where the law requires a document to be in writing, that requirement is met by an electronic document if the said electronic document maintains its integrity and reliability and can be authenticated so as to be usable for subsequent reference, in that (i) The electronic document has remained complete and unaltered, apart from the addition of any  endorsement and any authorized change, or any change which arises in the normal course of communication, storage and display; and  (ii) The electronic document is reliable in the light of the purpose for which it was generated and in the light of all the relevant circumstances. (b) Paragraph (a) applies whether the requirement therein is in the form of an obligation or whether the law simply   provides consequences for the document not being presented or retained in its original form. 2

(c) Where the law requires that a document be presented or retained in its original form, that requirement is met by an electronic document if (i) There exists a reliable assurance as to the integrity of the document from the time when it was first  generated in its final form; and  (ii) That document is capable of being displayed to the person to whom it is to be presented: Provided, That no provision of this Act shall apply to vary any and all requirements of existing laws on formalities required in the execution of documents for their validity. For evidentiary purposes, an electronic document shall be the functional equivalent of a written document under existing laws. This Act does not modify any statutory rule relating to the admissibility of electronic data messages or electronic documents, except the rules relating to authentication and best evidence. SEC. 31. Lawful Access. - Access to an electronic file, or an electronic signature of an electronic data message or electronic document shall only be authorized and enforced in favor of the individual or entity having a legal right to the possession or the use of the plaintext, electronic signature or file and solely for the authorized purposes. The electronic key for identity or integrity shall not be made available to any person or party without the consent of the individual or entity in lawful possession ofthat electronic key. SEC. 32. Obligation of Confidentiality. - Except for the purposes authorized under this Act, any person who obtained access to any electronic key, electronic data message, or electronic document, book, register, correspondence, information, or other material pursuant to any powers conferred under this Act, shall not convey to or share the same with any other person. SEC. 33. Penalties. - The following Acts shall be penalized by fine and/or imprisonment, as follows: (a) Hacking or cracking which refers to unauthorized access into orinterference in a computer system/server or information

andcommunication system; or any access in order to corrupt, alter, steal, or destroy using a computer or other similar  information and communication devices, without the knowledge and consent of the owner of thecomputer or information and  communications system, including theintroduction of computer viruses and the like, resulting in the corruption,destruction, alteration, theft or loss of electronic data messages orelectronic document shall be punished by a minimum fine of one hundredthousand pesos (P100,000.00) and a maximum commensurate to thedamage incurred and a mandatory imprisonment  of six (6) months tothree (3) years; (b) Piracy or the unauthorized copying, reproduction, dissemination,distribution, importation, use, removal, alteration, substitution, modification, storage, uploading, downloading, communication, making available to the public, or broadcasting of  protected material, electronic signature or copyrighted works including legally protected sound recordings or phonograms or information material on protected works, through the use of telecommunication networks, such as, but not limited to, the internet, in a manner that infringes intellectual property rights shall be punished by a minimum fine of one hundred thousand pesos (P100,000.00) and a maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months to three (3) years; (c) Violations of the Consumer Act or Republic Act No. 7394 a nd other relevant or pertinent laws through transactions covered by or using electronic data messages or electronic documents, shall be penalized with the same penalties as provided in those laws; (d) Other violations of the provisions of this Act, shall be penalized with a maximum penalty of one million pesos (P1,000,000.00) or six (6) years imprisonment. 8.

The anti-wiretapping law (Republic Act No. 4200, §1-2) Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private communication or spoken word, to tap any wire or cable, or by using any other device or arrangement, to secretly overhear, intercept, or record such communication or spoken word by using a device commonly known as a dictaphone or dictagraph or dictaphone or walkietalkie or tape recorder, or however otherwise described: It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such record, or copies thereof, of any communication or spoken word secured either before or after the effective date of this Act in the manner prohibited by this law; or to replay the same for any other person or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether complete or partial, to any other person: Provided , That the use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned in section 3 hereof, shall not be cov ered by this prohibition.

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Sec. 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done any of the acts declared to be

unlawful in the preceding section or who violates the provisions of the following section or of any order issued thereunder, or aids, permits, or causes such violation shall, upon conviction thereof, be punished by imprisonment for not less than six months or more than six years and with the accessory penalty of perpetual absolute disqualification from public office if the offender be a public official at the time of the commission of the offense, and, if the offender is an alien he shall be subject to deportation proceedings. 9.

In relation to right to privacy and confidentiality - Republic Act No. 9165, Republic Act No. 9262, Republic Act No. 8595 (What must be kept confidential?) Republic Act No. 9165 Sec. 60 . Confidentiality of Records Under the Voluntary Submission Program . Judicial and medical

records of drug dependents under the voluntary submission program shall be confidential and shall not be used against him for any purpose, except to determine how many times, by himself/herself or through his/her parent, spouse, guardian or relative within the fourth degree of consanguinity or affinity, he/she voluntarily submitted himself/herself for confinement, treatment and rehabilitation or has been committed to a Center under this program. RA 9262 SECTION 44. Confidentiality. –  All records pertaining to cases of violence against women and their children including those in the barangay shall be confidential and all public officers and employees and public or private clinics to hospitals shall respect the right to privacy of the victim. Whoever publishes or causes to be published, in any format, the name, address, telephone number, school, business address, employer, or other identifying information of a victim or an immediate family member, without the latter's consent, shall be liable to the contempt power of the court. Any person who violates this provision shall suffer the penalty of one (1) year imprisonment and a fine of not more than Five

Hundred Thousand pesos (P500,000.00). Republic Act No. 8595 (an act establishing a national high school) 10. R.A. No. 8504 “Philippine AIDS Prevention and Control Act of 1998", §§ 15-17, 30-42 Sec. 15. Consent as a requisite for HIV testing. — No compulsory HIV testing shall be allowed. However, the State shall encourage voluntary testing for individuals with a high risk for contracting HIV: Provided, That written informed consent must first be obtained. Such consent shall be obtained from the person concerned if he/she is of legal age or from the parents or legal guardian in the case of a minor or a mentally incapacitated individual. Lawful consent to HIV testing of a donated human body, organ, tissue, or blood shall be considered as having been given when: (a) a person volunteers or freely agrees to donate his/her blood, organ, or tissue for transfusion, transplantation, or research; (b) a person has executed a legacy in accordance with Sec. 3 of Republic Act No. 7170, also known as the "Organ Donation Act of 1991" ; (c) a donation is executed in accordance with Sec. 4 of Republic Act No. 7170. Sec. 16. Prohibitions on compulsory HIV testing . — Compulsory HIV testing as a precondition to employment, admission to educational institutions, the exercise of freedom of abode, entry or continued stay in the country, or the right to travel, the provision of medical service or any other kind of service, or the continued enjoyment of said undertakings shall be deemed unlawful. Sec. 17. Exception to the prohibition on compulsory testing. — Compulsory HIV testing may be allowed only in the following instances: a) When a person is charged with a ny of the crimes punishable under Articles 264 and 266 as amended by

Republic Act No. 8353, 335 and 338 of Republic Act No. 3815, otherwise known as the "Revised Penal  Code" or under Republic Act No. 7659; b) When the determination of the HIV status is necessary to resolve the relevant issues under Executive Order No. 309, otherwise known as the "Family Code of the Philippines"; and c) When complying with the provisions of Republic Act No. 7170, otherwise known as the "Organ Donation Act" and Republic Act No. 7719, otherwise known a s the "National Blood Services  Act". Sec. 30. Medical confidentiality . — All health professionals, medical instructors, workers, employers, recruitment agencies, insurance companies, data encoders, and other custodians of any medical record, file, data, or test results are directed to strictly observe confidentiality in the handling of all medical information, particularly the identity and status of persons with 4

HIV. Sec. 31. Exceptions to the mandate of confidentiality. — Medical confidentiality shall not be considered breached in the following cases: (a) when complying with reportorial requirements in conjunction with the AIDSWATCH programs provided in Sec. 2 7 of  this Act; (b) when informing other health workers directly involved or about to be involved in the treatment or care of a person with HIV/AIDS: Provided, That such treatment or care carry the risk of HIV transmission: Provided, further, That such workers shall be obliged to maintain the shared medical confidentiality; (c) when responding to a subpoena duces tecum and subpoena ad testificandum issued by a Court with jurisdiction over a legal proceeding where the main issue is the HIV status of an individual: Provided, That the confidential medical record shall be properly sealed by its lawful custodian after being double-checked for accuracy by the head of the office or department, hand delivered, and personally opened by the judge: Provided, further, That the judicial proceedings be held in executive session. Sec. 32. Release of HIV/AIDS test results. — All results of HIV/AIDS testing shall be confidential and shall be released only to the following persons (a) the person who submitted himself/herself to such test; (b) either parent of a minor child who has been tested; (c) a legal guardian in the case of insane persons or orphans; (d) a person authorized to receive such results in conjunction with the AIDSWATCH program as provided in Sec. 27 of this Act; (e) a justice of the Court of Appeals or the Supreme Court, as provided under subSec. (c) of this Act and in accordance with the provision of Sec. 16 hereof. Sec. 33. Penalties for violations of confidentiality. — Any violation of medical confidentiality as provided in Sec.s 30 and 32 of  this Act shall suffer the penalty of imprisonment for six (6) months to four (4) years, without prejudice to administrative sanctions such as fines and suspension or revocation of the violator's license to practice his/her profession, as well as the cancellation or withdrawal of the license to operate any business entity and the accreditation of hospitals, laboratories or clinics. Sec. 34. Disclosure to sexual partners. — Any person with HIV is obliged to disclose his/her HIV status and health condition to

his/her spouse or sexual partner at the earliest opportune time. Article VII: Discriminatory acts and policies Sec. 35. Discrimination in the workplace. — Discrimination in any form from pre-employment to post-employment, including hiring, promotion or assignment, based on the actual, perceived or suspected HIV status of an individual is prohibited. Termination from work on the sole basis o f actual, perceived or suspected HIV status is deemed unlawful. Sec. 36. Discrimination in schools. — No educational institution shall refuse admission or expel, discipline, segregate, deny participation, benefits or services to a student or prospective student on the basis of his/her actual, perceived or suspected HIV status. Sec. 37. Restrictions on travel and habitation. — The freedom of abode, lodging and travel of a person with HIV shall not be abridged. No person shall be quarantined, placed in isolation, or refused lawful entry into or deported from Philippine territory on account of his/her actual, perceived or suspected HIV status. Sec. 38. Inhibition from public service. — The right to seek an elective or appointive public offic e shall not be denied to a person with HIV. Sec. 39. Exclusion from credit and insurance services. — All credit and loan services, including health, accident and life insurance shall not be denied to a person on the basis of his/her actual, perceived or suspected HIV status: Provided, That the person with HIV has not concealed or misrepresented the fact to the insurance company upon application. Extension and continuation of  credit and loan shall likewise not be denied solely on the basis of said health condition. Sec. 40. Discrimination in hospitals and health institutions . — No person shall be denied health care service or be charged with a higher fee on account of actual, perceived or suspected HIV status. Sec. 41. Denial of burial services. — A deceased person who had AIDS or who was known, suspected or perceived to be HIVpositive shall not be denied any kind of decent burial services.

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Sec. 42. Penalties for discriminatory acts and policies. — All discriminatory acts and policies referred to in this Act shall be

punishable with a penalty of imprisonment for six (6) months to four (4) years and a fine not exceeding Ten thousand pesos (P10,000.00). In addition, licenses/permits of schools, hospitals and other institutions found guilty of committing discriminatory acts and policies described in this Act shall be revoked. PHYSICIAN LIABILITY 11. Medical Act of 1959, §§ 10-12,24,27-28 Section 10.  Acts constituting practice of medicine. A person shall be considered as engaged in the practice of medicine (a) who shall, for compensation, fee, salary or reward in any form, paid to him directly or through another, or even without the same, physical examine any person, and diagnose, treat, operate or prescribe any remedy for any human disease, injury, deformity, physical, mental or physical condition or any ailment, real or imaginary, regardless of the nature of the remedy or treatment administered, prescribed or recommended; or (b) who shall, by means of signs, cards, advertisements, 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 any human disease, injury, deformity, physical, mental or physical condition; or (c) who shall use the title M.D. after his name. Section 11. Exemptions. The preceding section shall not be construed to affect (a) any medical student duly enrolled in an approved medical college or school under training, serving without any professional fee in any government or private hospital, provided that he renders such service under the direct supervision and control of a registered physician; (b) any legally registered dentist engaged exclusively in the practice of dentistry; (c) any duly registered masseur or physiotherapist, provided that he applies massage or other physical means upon written order or prescription of a duly registered physician, or provided that such application of massage or physical means shall be limited to physical or muscular development; (d) any duly registered optometrist who mechanically fits or sells lenses, artificial eyes, limbs or other similar appliances or who is engaged in the mechanical examination of eyes for the purpose of constructing or adjusting eye glasses, spectacles and lenses; (e) any person who renders any service gratuitously in cases of emergency, or in places where the services of a duly registered physician, nurse or midwife are not available; (f) any person who administers or recommends any household remedy as per classification of existing Pharmacy Laws; and (g) any psychologist or mental hygienist in the performance of his duties, provided such performance is done in conjunction with a duly registered physician. Section 12. Limited practice without any certificate of registration. Certificates of registration shall not be required of the following persons: (a) Physicians and surgeons from other countries called in consultation only and exclusively in specific and definite cases, or those attached to international bodies or organization assigned to perform certain definite work in the Philippines provided they shall limit their practice to the specific work assigned to them and provided further they shall secure a previous authorization from the Board of Medical Examiners. (b) Commissioned medical officers of the United States armed forces stationed in the Philippines while rendering service as such only for the members of the said armed forces and within the limit of their own respective territorial jurisdiction. (c) Foreign physicians employed as exchange professors in special branches of medicine or surgery whose service may in the discretion of the Board of Medical Education, be necessary. (d) 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 Secretary of Health to render medical services during epidemics or national emergencies whenever the services of duly registered physicians are not available. Such authorization shall automatically cease when the epidemic or national emergency is declared terminated by the Secretary of Health. Section 24. Grounds for reprimand, suspension or revocation of registration certificate. Any of the following shall be sufficient ground for reprimanding a physician, or for suspending or revoking a certificate of registration as physician: (1) Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude; (2) Immoral or dishonorable conduct; (3) Insanity; (4) Fraud in the ac quisition of the certificate of registration; (5) Gross negligence, ignorance or incompetence in the practice of his or her profession resulting in an injury to or death of the patient; (6) Addiction to alcoholic beverages or to any habit forming drug rendering him or her incompetent to practice his or her profession, or to any form of gambling; (7) False or extravagant or unethical advertisements wherein other things than his name, profession, limitation of practice, clinic hours, office and home address, are mentioned. (8) Performance of or aiding in any criminal abortion; (9) Knowingly issuing any false medical certificate; 6

(10) Issuing any statement or spreading any news or rumor which is derogatory to the character and reputation of another physician without justifiable motive; (11) Aiding or acting as a dummy of an unqualified or unregistered person to practice medicine; (12) Violation of any provision of the Code of Ethics as approved by the Philippine Medical Association. Refusal of a physician to attend a patient in danger of death is not a sufficient ground for revocation or suspension of his registration certificate if there is a risk to the physician's life. Section 27. Reinstatement. After two years, the Board may order the reinstatement of any physicians whose certificate of  registration has been revoked, if the respondent has acted in an exemplary manner in the community wherein he resides and has not committed any illegal, immoral or dishonorable act. Section 28. Penalties. Any person found guilty of "illegal practice of medicine" shall be punished by a fine of not less than one thousand pesos nor more than ten thousand pesos with subsidiary imprisonment in case of insolvency, or by imprisonment of  not less than one year nor more than five years, or by both such fine and imprisonment, in the discretion of the court. 12. Code of Medical Ethics INTERNATIONAL CODE OF MEDICAL ETHICS (from Philippine Hospital Association official website) DUTIES OF DOCTORS IN GENERAL A DOCTOR MUST always maintain the highest standard of p rofessional conduct. A DOCTOR MUST NOT allow himself to be influenced merely by motives of profit. THE FOLLOWING PRACTICES are deemed unethical: a) Any self advertisement except such as expressly authorized by the national code of medical ethics. b) Taking part in a ny plan of medical care in which the doctor does not have professional independence. c) To receive any money in connection with services rendered to a pa tient other than the acceptance of a proper professional fee, or to pay any money in the same circumstances without the knowledge of the patient. UNDER NO CIRCUMSTANCES is a doctor permitted to do anything that would weaken the physical or mental resistance of a human being, except from strictly therapeutic or prophylactic indications imposed in the interest of the patient. A DOCTOR IS ADVISED to use great caution in publishing discoveries. The same applies to methods of treatment whose value is not recognized by the profession. WHEN A DOCTOR IS CALLED UPON to give evidence or a certificate he should only state that which he can verify. 13. E.O. No. 212, “Amending Presidential Decree No. 169” (July 10, 1987)

WHEREAS, Presidential Decree No. 169 requires medical practitioners to report the treatment of patients for serious and less serious physical injuries as defined in Articles 262, 263, 264, and 265 of the Revised Penal Code to the nearest Philippine Constabulary unit either personally or by the fastest means possible, under pain of penal and administrative sanctions; SECTION 1. The attending physician of any hospital, medical clinic, sanitarium or other medical establishments, or any other medical practitioner, who has treated any person for serious or less serious physical injuries as these injuries are defined in Articles 262, 263, 264 and 265 of the Revised Penal Code shall report the fact of such treatment promptly to the nearest government health authority: Provided , That no fee shall be charged for the transmission of such report through government communication facilities: Provided, further, That records of the reports kept by said health authorities shall, upon written request, be made available to law enforcement agencies. 14. RPC arts 15, 174, 259, 347, 365 Art. 15. Their concept. — Alternative circumstances are those which must be taken into consideration as aggravating or mitigating according to the nature and effects of the cri me and the other conditions attending its commission. They are the relationship, intoxication and the degree of instruction and education of the offender.chanrobles virtual law library The alternative circumstance of relationship shall be taken into consideration when the offended party in the spouse, ascendant, descendant, legitimate, natural, or adopted brother or sister, or relative by affinity in the same degrees of the offender.chanrobles virtual law library The intoxication of the offender shall be tak en into consideration as a mitigating circumstances when the off ender has

committed a felony in a state of intoxication, if the same is not habitual or subsequent to the plan to commit said felony but 7

when the intoxication is habitual or intentional, it shall be considered as an aggravating circumstance.chanrobles virtual law library Art. 174. False medical certificates, false certificates of merits or service, etc. — The penalties of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not to exceed P1,000 p esos shall be imposed upon: 1. Any physician or surgeon who, in connection, with the practice of his profession, shall issue a false certificate; an d 2. Any public officer who shall issue a false certificate of merit of service, good conduct or similar circumstances.chanrobles virtual law library The penalty of arresto mayor shall be imposed upon any private person who shall fal sify a certificate falling within the classes

mentioned in the two preceding subdivisions. Art. 259. Abortion practiced by a physician or midwife and dispensing of abortives. — The penalties provided in Article 256 shall be imposed in its maximum period, respectively, upon any physician or midwife who, taking advantage of their scientific knowledge or skill, shall cause an abortion or assist in causing the same.chanrobles virtual law library Any pharmacist who, without the proper prescription from a physician, shall dispense any abortive shall suffer arresto mayor

and a fine not exceeding 1,000 pesos. Art. 347. Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child. — The simulation of births and the substitution of one child for another shall be punished by prision mayor and a fine of not exceeding 1,000 pesos. The same penalties shall be imposed upon any person who shall conceal or aban don any legitimate child with intent to cause such child to lose its civil status. Any physician or surgeon or public officer who, in violation of the duties of his profession or office, shall cooperate in the

execution of any of the c rimes mentioned in the two next preceding paragraphs, shall suffer the penalties therein prescribed and also the penalty of temporary special disqualification. Art. 365. Imprudence and negligence. — 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 correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed. Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed. When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos. A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done mal iciously, would have constituted a light felony. In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the rules prescribed in Article sixty-four. The provisions contained in this article shall not be applicable: 1. When the penalty provided for the offense is equal to or lower than those provided in the first two p aragraphs of this article, in which case the court shall impose the penalty next lower in degree than that which should be imposed in the period which they may deem proper to apply. 2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods. Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing of failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition a nd other circumstances regarding persons, time and place. Simple imprudence consists 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.chanrobles virtual law library The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on

the spot to the injured parties such help as may be in this hand to give. (As amended by R.A. 1790, approved June 21, 1957). 15. Cruz v. Court of Appeals, 282 SCRA 188 (1997) 8

16. Civil Code arts. 1172-1174, 2176-2180 Art. 1172. Responsibility arising from negligence in the performance of every kind of obligation is also demandable, but such liability may be regulated by the courts, according to the circumstances. (1103) Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is r equired by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201, paragraph 2, shall apply. If the law or contract does not state the diligence which is to be observed in the performance, that which is expected of a good father of a family shall be required. (1104a) Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of 

the obligation requires the assumption of risk, no person shall be responsible for those e vents which could not be foreseen, or which, though foreseen, were inevitable. (1105a) Art. 2176. 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 a quasidelict and is governed by the provisions of this Chapter. (1902a) Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant. (n) Art. 2178. The provisions of Articles 1172 to 1174 are also applicable to a quasi-delict. (n) Art. 2179. 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 the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. (n) Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of  persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and 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 oc casion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. (1903a) 17. What is Negligence? “Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury.[17] The Supreme Court stated the test of negligence in the landmark case Picart v. Smith as follows:

The test by which to determine the existence or negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinary person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal  judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. (Underscoring supplied) 9

The test of negligence is objective. We measure the act or omission of the tortfeasor with that of an ordinary reasonable person in the same situation. 18. Proximate Cause, Patient’s own negligence - Cayao-Lasam vs. Ramolete, 574 SCRA 439(2008) 19. Res ipsa loquitur: Layugan v. Intermediate Appellate Court, 167 SCRA 363 (1988) 20. Captain of Ship Doctrine, res ipsa loquitur - Ramos v. Court of Appeals, 380 SCRA 467 (2002). 21. Doctrine of informed consent, Elements of Medical Negligence -- Li v. Soliman, G.R. No. 165279, June 7, 2011 22. Consent Forms and Waiver - Nogales vs. Capitol Medical Center, 511 SCRA 204, 228-29(2006) HOSPITAL LIABILITY 23. Hospital Code of Ethics Hospital Ethics (from Philippine Hospital Association website) To promote public welfare primarily and secondly, to guide governing bodies, hospital administrators, professional and non-

professional staff members and others who constitute the "hospital family", ethical and administrative principles are herewith established for the Philippine Hospital System. By the sincere and voluntary commitment to those principles, the hospital is better able to perform the functions in a manner that will deserve and receive the patronage and support of the community it serves. 1. Hospital must recognize that the care of the sick is their first responsibility and a sacred trust, striving, at all times, to provide

the best possible care and treatment to all in need of hospitalization. 2. Hospitals, recognizing their unique role in safeguarding the nation's health, should seek through compassionate and scientific

care and health education, to extend life, a lleviate suffering, and improve the general health of the communities they serve. 3. Hospitals should remain and promote harmonious relationships within the organization, to insure the proper environment

for effective, efficient and equitable care and treatment of patients. 4. Hospitals should seek to inspire the confidence of the entire community and should appreciate and respect the social and

religious practices and customs of patients. 5. Hospitals, to the extent possible and within their limitations, should conduct educational projects, stimulate research, and

encourage preventive health practices in the community. 6. Hospitals should cooperate with other hospitals, health and welfare agencies, government and non -government, and other

recognized organizations engaged in activities related to the health of the country. 7. Hospitals, in reporting their work to the public, should give a factual and objective interpretation of accomplishments and

objectives without putting down directly or indirectly by implication, the work of other hospitals or related organizations. 8. Hospital, cognizant of their social responsibilities, should actively support and encourage every effective means which will

ease the financial burdens of illness. 9. Hospital should be fair, honest and impartial in all their business relationships and utilize legal and legitimate means in

promoting their public relations. 10. Hospitals should be progressive in policies, personnel policies, and effort to maintain up-to-date equipment, methods and

standards of performance. 24. An Act Requiring the Licensure of all Hospitals in the Philippines and Authorizing the Bureau of Medical Services to Serve as Licensing Agency, Republic Act No. 4226, §1, 2 (a) (1965). SECTION 1. SECTION 2.

This Act shall also be known as the Hospital Licensure Act. Definitions. — As used in this Act —

(a) '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, or cribs, or bassinets for twenty-four-hour use or longer by patients in the treatment of diseases, diseased-conditions, injuries, deformities, or abnormal physical and mental states, maternity ca ses, and all institutions such as those for convalescence, sanitarial or sanitarial care, infirmities, nurseries, dispensaries and such other names by which they may designated. (b) 'Government hospital' means a hospital 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. (c) 'Private hospital' means one which is privately owned, established and operated with funds raised or contributed through 10

donations, or by private capital or other means, by private individuals, association, corporation, religious organization, fi rm, company or joint stock association. (d) 'Clinic' means a place in which patients avail of medical consultations or treatments on an out-patient basis. However, any clinic or dispensary where there is at least six beds or cribs or bassinets installed for twenty -four-hour use by patients shall be construed to fall within the definition of a hospital as described in this Act. (e) 'Licensee' is the person or persons granted a license to operate and maintain a hospital according to an approved minimum standard. 25. An Act Requiring Government and Private Hospitals and Clinics to Extend Medical Assistance in Emer gency Cases, Republic Act No. 6615 (1972). SECTION 1. All government and private hospitals or clinic duly licensed to operate as such are 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 dy ing and/or who may have suffered serious physical injuries. SECTION 2. The expenses and losses of earnings incurred by a private hospital of clinic for medicines, facilities and services beyond first aid extended to emergency cases as required herein, and not to exceed fifty thousand pesos per year, shall be deductible expenses and losses for income tax purposes which may be carried over for a period of five years, any provision of  law or regulation to the contrary notwithstanding. SECTION 3. Any hospital director, administrator, officer-in-charge or physician in the hospital, medical center or clinic, who shall refuse or fail without good cause to render the appropriate assistance pursuant to the requirements of section one afte r said case had been brought to his attention, or any nurse, midwife or medical attendant who shall refuse to extend the appropriate assistance, subject to existing rules, or neglect to notify or call a physician shall be punished by imprisonment of  one month and one day to one year and one day, and a fine of three hundred pesos to one thousand pesos, without prejudice to the provisions of Republic Act Numbered Twenty-three hundred eighty-two in the case of physicians. In the case of Gov ernment hospitals, the imposition of the penalty upon the person or persons guilty of the violations shall be without prejudice to the administrative action that might be proper. In the case of private hospitals, aside from the imposition of penalty upon the person or persons guilty of the violations, the

license of the hospital to operate shall, whenever justified, be suspended or revoked. 26. An Act Prohibiting the Detention of Patients in Hospitals and Medical Clinics on Grounds of Nonpayment of Hospital Bills or Medical Expenses Republic Act No. 9439 (2007). SECTION 1. It shall be unlawful for any hospital or medical clinic in the country to detain or to otherwise cause, directly or indirectly, the detention of patients who have fully or partially recovered or have been adequately attended to or who may have died, for reasons of nonpay ment in part or in full of hospital bills or medical expenses. SEC. 2. Patients who have fully or partially recovered and who already wish to leave the hospital or medical clinic but are financially incapable to settle, in part or in full, their hospitalization expenses, including professional fees and medicines, shall be allowed to leave the hospital or medical clinic, with a right to demand the issuance of the corresponding medical certificate and other pertinent papers required for the release of the patient from the hospital or medical clinic upon the execution of a promissory note covering the unpaid obligation. The promissory note shall be secured by either a mortgage or by a guarantee of a co-maker, who will be jointly and severally liable with the patient for the unpaid obligation. In the case of a deceased patient, the corresponding death certificate and other documents required for interment and other purposes shall be released to any of his surviving relatives requesting for the same: Provided, however , That patients who stayed in private rooms shall not be covered by this Act. SEC. 3. Any officer or employee of the hospital or medical clinic responsible f or releasing patients, who violates the provisions

of this Act shall be punished by a fine of not less than Twenty thousand pesos (P20,000.00), but not more than Fifty thousand pesos (P50,000.00), or imprisonment of not less than one month, but not more than six months, or both such fine and imprisonment, at the discretion of the proper court. 27. An Act Penalizing the Refusal of Hospitals and Medical Clinics to Administer Appropriate Initial Medical Treatment and Support in Emergency cases, amending fo r the purpose Batas Pambansa Blg. 702, otherwise known as "An Act Prohibiting the Demand of Deposits or Advance Payments for the Confinement or Treatment of Patients in Hospitals and Medical Clinics in Certain Cases", Republic Act No. 8344 §§1-4 (1997) 11

SECTION 1. In emergency or serious cases, it shall be unlawful for any proprietor, president, director, manager or any other

officer, and/or medical practitioner or employee of a hospital or medical clinic to request, solicit, demand or accept any deposit or any other form of a dvance payment as a p rerequisite for confinement or medical treatment of a patient in such hospital or medical clinic or to refuse to administer medical treatment and support as dictated by good practice of medicine to prevent death or permanent disability: Provided, That by reason of inadequacy of the medical capabilities of the hospital or medical clinic, the attending physician may transfer the patient to a facility where the appropriate care can be given, after the patient or his next of kin consents to sai d transfer and after the receiving hospital or medical clinic agrees to the transfer: Provided, however, That when the patient is unconscious, incapable of giving consent and/or unaccompanied, the physician can transfer the patient even without his consent: Provided, further, That such transfer shall be done only after necessary emergency treatment and support have been administered to stabilize the patient and after it has been established that such transfer entails less risks than the patient's continued confinement: Provided, furthermore, That no hospital or clinic, after being informed of the medical indications for such transfer, shall refuse to receive the patient nor demand from the patient or his next of kin any deposit or advance payment: Provided, finally, That strict compliance with the foregoing procedure on transfer shall not be construed as a refusal made punishable by this Act. SEC. 2. For purposes of this Act, the following definitions shall govern:

(a) 'Emergency' - a condition or state of a patient wherein based on the objective findings of a prudent medical officer on duty for the day there is immediate danger and where delay in initial support and treatment may cause loss of life or cause permanent disability to the patient. (b) 'Serious case' - refers to a condition of a patient characterized by gravity or danger wherein based on the objective findings of a prudent medical officer on duty for the day when left unattended to, may ca use loss of life or cause permanent disability to the patient. (c) 'Confinement' - a state of being admitted in a hospital or medical clinic for medical observation, diagnosis, testing, and treatment consistent with the capability and available facilities of the hospital or clinic. (d) 'Hospital' - a facility devoted primarily to 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. It shall also be construed as any institution, building or place where there are facilities and personnel fo r the continued and prolonged care of patients. (e) 'Emergency treatment and support' - any medical or surgical measure within the capability of the hospital or medical clinic that is administered by qualified health care professionals t o prevent the death or permanent disability of a patient. (f) 'Medical clinic' - a place in which patients can avail of medical consultation or treatment on an outpatient basis. (g) 'Permanent disability' - a condition of physical disability as defined under Article 192-C and Article 193-B and C of  Presidential Decree No 442; as amended, otherwise known as the Labor Code of the Philippines. (h) 'Stabilize' - the provision of necessary care until such time that the patient may be discharged or transferred to another hospital or clinic with a reasonable probability that no physical deterioration would result from or occur during such discharge or transfer. SEC. 3. After the hospital or medical clinic mentioned above shall have administered medical treatment and support, it may cause the transfer of the patient to an appropriate hospital consistent with the needs of the patient, preferably to a government hospital, specially in the case of poor or indigent patients. SEC. 4. Any official, medical pr actitioner or employee of the hospital or medical clinic who violates the provisions of this Act

shall, upon conviction by final judgment, be punished by imprisonment of not less than six (6) months and one (1) day but not more than two (2) years and four (4) months, or a fine of not less than Twenty thousand pesos (P20,000.00), but not more than One hundred thousand pesos (P100,000.00) or both, at the discretion of the court: Provided, however, That if such violation was committed pursuant to an established policy of the hospital or clinic or upon instruction of its management, the director or officer of such hospital or clinic responsible for the formulation and implementation of such policy shall, upon conviction by 12

final judgment, suffer imprisonment of four (4) to six (6) years, or a fine of not less than One hundred thousand pesos (P100,000.00), but not more than Five hundred thousand pesos (P500,000.00) or both, at the discretion of the court. 28. Civil Code, art. 1431 Art. 1431. Through estoppel an admission or representation is rendered conclusive upon the person making it, a nd cannot be

denied or disproved as against the person relying thereon. 29. Professional Services, Inc. vs. Court of Appeals, 544 SCRA 170(2008) 30. Professional Services, Inc. vs. Court of Appeals, 611 SCRA 282(2010)

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