Medical Jurisprudence Reviewer

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

PART I Background/Introduction I. Definition of Medical Jurisprudence A. Differentiate from Legal Medicine and Forensic Medicine Medical Jurisprudence A specialized area of legal practice concerned with the relationship between medicine and the law. -Scientific use of legal and paralegal specialties in the pursuit of justice in court proceedings in the protection of the public from medical negligence or malpractice -application of the principles of law as they relate to the practice of medicine, to the obligations of the practitioner to his patient, and to the relations of physicians to each other and to society in general -branch of medicine dealing with organization and relations of Medical Profession; duties and contractual obligation between practitioners and patients -Law

Legal Medicine The professional and academic discipline which concerns itself with legal aspects of medical science, medical practice, and other health care delivery problems -includes both forensic medicine and medical jurisprudence

II. Role/Purpose of Medical Jurisprudence A. Cause of Action B. Defense C. Evidence

Forensic Medicine A specialized area of medical practice concerned with the relationship between medicine and the law. -subspecialty of pathology -Medicine

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III. Branches of Law where MedJur/Legal Medicine may be applied A. Civil Law and Family Code 1. Determination and termination of civil personality Art40. Birth determines personality -conceived child shall be considered born for all purposes that are favorable to it, PROVIDED it be born later with the conditions specified in the following article Art41. For CIVIL PURPOSES Fetus: considered born if it is alive at the time it is completely delivered from the mother’s womb. -if INTRA-UTERINE LIFE OF 7 MONTHS: It is not deemed born if it dies w/n 24h after its complete delivery from the maternal womb Art42. Civil personality extinguished by DEATH Effect of death upon the rights and obligations of deceased is determined …by law …by contract …by will Art43. DOUBT between 2+ persons who are called to succeed each other, as to which died first, whoever alleges the death of one prior to the other, shall prove the same …presumption: DIED AT THE SAME TIME, no transmission of rights from one to the other 2. Limitation or restriction of a natural person’s capacity to act Art38. MERE RESTRICTIONS on capacity to act (do not exempt the incapacitated person from certain obligation – e.g. arise from his acts or from property relations) *Minority *Insanity *Imbecility *State of being a deaf-mute *Prodigality *Civil Interdiction Art39. Modify or Limit Capacity of Act: *age *insanity *imbecility *state of being a deaf-mute *penalty *prodigality family relations *alienage *absence *insolvency *trusteeship Circumstances: governed …NCC

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Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

…other codes …ROC …special laws *Capacity to act is not limited on account of religious belief/political opinion *Married woman + 21+ y.o. = qualified for all acts of civil life X: specified cases by law 3. The marriage and legal separation 4. Paternity and Filiation *Before: Blood Type – but conclusive only of NONPATERNITY (would prove that you’re not related) *Now: DNA 5. Tetamentary Capacity of a person making a will B. Criminal Law 1. Circumstances affecting criminal liability -Age of accused -juvenile Justice Act 2. Crimes Against Persons 3. Crimes against Chastity C. Remedial Law 1. Physical and Mental Examination of a Person (R28) 2. Proceedings for hospitalization of an insane person (R101) 3. Rules on Evidence D. Special Laws 1. Comprehensive Dangerous Drugs Act: Test WON person positive for SUBSTANCE ABUSE 2. Insurance Law: Test WON person insurable… 3. Labor Code: Fitness to work? 4. Employee’s Compensation Law 5. Anti-violence against Women and their Children Act of 2004 6. Juvenile Justice and Welfare Act of 2006 Part II HEALTH LAWS OF THE PHILIPPINES I. HEALTH PROFESSIONALS (15) 1. PHYSICIAN (RA 2382 – MEDICAL ACT OF 1959, AS AMENDED) Section 10. Acts constituting 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, …(PEDTROP)

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*physically examine any person, and *diagnose *treat *operate *prescribe any remedy for any human disease, injury, deformity, physical, mental or physical condition or 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, 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; (c) who shall use the title M.D. after his name. Ma’am (with regard prescription of drugs): if a pharmacist in a drugstore prescribes a drug even if he is not a registered physician, he may be held liable for illegal practice of medicine Section 11. Exemptions (not deemed as practicing). (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,

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Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

…provided such performance is done in conjunction with a duly registered physician. 2. NURSE (RA 9173 – PHILIPPINE NURSING ACT OF 2002) Section 28. Scope of Nursing. - A person shall be deemed to be practicing nursing within the meaning of this Act when …he/she singly or in collaboration with another, …initiates and performs nursing services to individuals, families and communities in any health care setting. It includes, but not limited to nursing care during conception, labor, delivery, infancy, childhood, toddler, preschool, school age, adolescence, adulthood, and old age. As independent practitioners, nurses are primarily responsible for the *promotion of health and *prevention of illness. A members of the health team, nurses shall collaborate with other health care providers for the curative, preventive, and rehabilitative aspects of care, restoration of health, alleviation of suffering, and when recovery is not possible, towards a peaceful death. It shall be the duty of the nurse to: (a) Provide nursing care through the utilization of the nursing process. Nursing care includes, but not limited to, *traditional and innovative approaches *therapeutic use of self-executing health care techniques and procedures *essential primary health care *comfort measures *health teachings, and *administration of written prescription for treatment, therapies, oral topical and parenteral medications *internal examination during labor in the absence of antenatal bleeding and delivery. In case of suturing of perineal laceration, special training shall be provided according to protocol established; (b) establish linkages with community resources and coordination with the health team; (c) Provide health education to individuals, families and communities; (d) Teach, guide and supervise students in nursing education programs including the administration of nursing services in varied settings such as hospitals and clinics; undertake consultation services; engage in such activities that require the utilization of knowledge and decision-making skills of a registered nurse; and (e) Undertake nursing and health human resource development training and research, which shall include, but not limited to, the development of advance nursing practice;

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Provided, That this section shall not apply to nursing students who perform nursing functions under the direct supervision of a qualified faculty: Provided, further, That in the practice of nursing in all settings, the nurse is duty-bound to: *observe the Code of Ethics for nurses and *uphold the standards of safe nursing practice. *to maintain competence by continual learning through continuing professional education to be provided by the accredited professional organization or any recognized professional nursing organization: Provided, finally, That the program and activity for the continuing professional education shall be submitted to and approved by the Board. 3. DENTIST (RA 4419-PHILIPPINE DENTAL ACT OF 1965) Section 14 Definition of Practice of Dentistry. - A person shall be regarded as engaged in the practice of dentistry or rendering dental service, within the meaning and intent of this Act, …who shall, for a fee, salary, compensation, or any form of reward, paid to him or through another, or even without such compensation or reward, *perform any operation or part of an operation, …upon the human mouth, jaw, teeth and surrounding tissue; *prescribe drugs or medicines for the treatment of oral diseases and lesions; or *correct malpositions of the teeth: Provided, however, That this provision shall not apply to (not deemed as practicing) *artisan or technicians engaged in the mechanical construction of artificial dentures or fixtures and other oral devices, …as long as none such procedures is done inside the mouth of the patient, *students of dentistry undergoing practice training in a legally constituted dental school or college …under the direction or supervision of a member of the faculty who is duly licensed to practice dentistry in the Philippines; or *registered dental hygienist serving as dentists' assistants who may be allowed to perform oral prophylaxis and such other procedures which the law regulating the practice of dental hygienists may permit. Section 15 Exemption from Registration (no need to register, though practicing). - Certificates of registration shall not be required of (1) commissioned dental officers of the army, navy and air forces of any foreign country, …whose operations in the Philippines are permitted by the Government, …while rendering services as such for the members of said forces only; and of

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Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

(2) dentist or oral surgeons from other countries …who are invited for consultations or demonstrations, …Provided, that in such cases their work shall be limited to the specific tasks assigned to them and …Provided further, that a previous authority has been granted by the board of Dental Examiners who shall have been the discretion to determine the duration of said authority, but in no cases shall it exceed the period of thirty days. Ma’am: General Dentist: any teeth Pendodontis (?) Endodontis(?): root canal 4. PHARMACIST (RA 5921 – ACT REGULATING THE PRACTICE OF PHARMACY) SECTION 23. Definition of practice of pharmacy. - A person shall be deemed to be practicing pharmacy within the meaning of this Article, …who shall, for a fee, salary, percentage or other reward paid or given directly to himself or indirectly through another, (1) PMAAPSDS *prepare or *manufacture, *analyze, *assay, *preserve, *store, *distribute or *sell any medicine, drug chemicals, cosmetics, pharmaceuticals, devices or contrivances used in pursuance thereof; or (2) render pharmaceutical service in any office or drug and cosmetic establishment …where scientific, technological or professional knowledge of pharmacy is applied; or (3) engage in teaching scientific, technological or professional pharmacy subject in a college of pharmacy; or (4) conduct or undertake scientific pharmaceutical research for biological and bacteriological testings and examinations. NOT deemed practicing pharmacy: persons performing executive manager or administrative functions and their subordinate personnel employed in the pharmaceutical laboratories 5. MEDICAL TECHNOLOGIST (RA 5527 – PHILIPPINE MEDICAL TECHNOLOGY ACT) Section 2(a) "Medical Technology". — An auxiliary branch of laboratory medicine …which deals with the examination by various chemical, microscopic, bacteriologic and other medical laboratory procedures or technique

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…which will aid the physician in the diagnosis, study and treatment of disease and in the promotion of health in general. Ma’am: lab person (b) "Pathologist". — A duly registered physician …who is specially trained in methods of laboratory medicine, …of the gross and microscopic study and interpretation of tissues, secretions and excretions of the human body and its functions …in order to: *diagnose disease *follow its course *determine the effectivity of treatment *ascertain cause of death *advance medicine by means of research. (c) "Medical Technologist". — A person who engages in the work of medical technology …under the supervision of a pathologist or licensed physician authorized by the department of health in places where there is no pathologist and …who having passed a prescribed course (Bachelor of Science in Medical Technology/Bachelor of Science in Hygiene) of training and examination …is registered under the provision of this Act. (d) "Medical Technician". — A person who not being a graduate of Bachelor of Science in Medical Technology/Bachelor of Science in Hygiene, …but having passed the corresponding civil service examination, …performs the work of medical technology under the supervision of a registered medical technologist and/or qualified pathologist. 6. VETERINARIAN (RA 9268 – THE PHILIPPINE VETERINARY MEDICINE ACT OF 2004) Sec. 29. Acts of Constituting Practice of Veterinary Medicine. - A person who is …authorized to practice veterinary medicine under this Act …shall append or cause to be appended to his name the letters: *D.V.M. (Doctor of Veterinary Medicine) *V..M. D. (Veterinary Medical Doctor) *D.V.S.(Doctor of Veterinary of Science), …the words *"Veterinarian *" Veterinary Surgeon *"Veterinary Dentist," *"Veterinary" any other initial or title …implying qualification to practice, offer or render, for a fee or otherwise, services such as: (a) EDTOPD: the examination and/or diagnosis, treatment, operation of, or the prescribing and dispensing of any remedy for, any injury to or

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Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

diseases, ailment or deformity of animals; (b) attesting for official or commercial purpose to the health of any terrestrial, aquatic, domestic or non-domestic animals; (c) rendering veterinary technical services which indirectly affect the health and welfare of human beings and animals; (d) attesting to the fitness for human consumption of animal products and by-products; (e) holding of any job or position in a public or private entity which requires knowledge of or skill in veterinary medicine (any: so kahit CEO ka ng Bayer veterinary ka?); or (f) teaching or lecturing of veterinary clinical subjects in the curriculum of the degree in veterinary medicine. Provided, That the enumeration of the above practices or services in this Section shall not be construed as excluding any other work requiring knowledge and application of professional veterinary medicine which the Board may specify, upon the recommendation of accredited professional organization in Veterinary Medicine. Sec. 30. Unlawful Practice of Veterinary Medicine. - It shall be unlawful for any person to practice veterinary medicine and any of its allied branches, including veterinary dentistry, without a valid and existing Certificate of Registration and Professional Identification Card issued by the Board of Veterinary Medicine and the Commission. 7. PHYSICAL AND OCCUPATIONAL THERAPIST (RA 5680 – PHILIPPINE PHYSICAL AND OCCUPATIONAL THERAPY LAW) Section 12. Inhibition Against the Practice of Physical Therapy and Occupational Therapy.- No person shall practice or offer to practice physical therapy and occupational therapy in the Philippines as defined in this Act, without the prescription of a duly registered physician and a valid certificate of registration as a physical therapist or an occupational therapist, as the case may be issued by the Board of Examiners for Physical Therapists and Occupational Therapists. A person shall be deemed to be practicing physical therapy within the meaning of this Act, …who for a fee or other consideration …applies or advises the use of heat, cold, light, electricity or other means for the treatment or prevention of disorders or neuro-muscular or musculoskeletal systems of the human body …or subject a patient to passive mobilization or physical rehabilitation procedures repeatedly. A person shall be deemed to be practicing occupational therapy within the meaning of this Act, …who for a fee or other consideration, …applies or advices the use of the treatment or prevention of disorders of the physical or psychological formation of the human body,

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…or subjects a patient to occupational therapy procedures repeatedly. *Note: Defined in Section 2; Section 12 provides for the illegal practice of PT/OT: w/o registration Section 13. Exemptions (Could practice even if not registered)(a) any registered physician; (b) any physical therapy and occupational therapy student as part of their undergraduate training in an approved school, college or university for physical therapy and occupational therapy, as the case may be; (c) all physical therapist who are already in the government service who became eligible by virtue of the testimonial examination given by the Civil Service Commission on December 29, 1967 in the City of Manila. 8. RADIOLOGY TECHNOLOGIST (RA 7431 – RADIOLOGIC TECHNOLOGY ACT OF 1992) Sec. 5. Practice of Radiology Technology. — The practice of radiologic technology shall include any and all acts by which one renders, furnishes, or contracts to render or furnish professional service as a radiologic technologist. A radiologic technologist shall also be considered in the practice of his profession …if the nature and character of his employment requires professional knowledge in the art and science of radiologic technology, +and such employment or position requires that the holder thereof be a radiologic technologist. Nothing in this Act shall be construed to disqualify other professionals duly registered with the Professional Regulation Commission from performing any of the acts abovementioned: Provided, That under the law or laws governing their respective professions, they may perform the said acts: Provided, further, That no person shall use the title "Radiologic Technologist" or any other title conveying the impression that he is a radiologist technologist without having been issued a certificate of registration as radiologic technologist by the Commission in the manner provided in this Act. Ma’am: vs. RADIOLOGIST: doctor 9. OPTOMETRIST (RA 8050 – REVISED OPTOMETRY LAW OF 1995) Sec. 4. Acts Constituting the Practice of Optometry. — Any of the following acts constitute the practice of optometry: (a) The examination of the human eye through the employment of subjective and objective procedures, including the use of specific topical diagnostic pharmaceutical agents or drugs and instruments, tools, equipment, implements, visual aids, apparatuses, machines, ocular exercises and related devices, for the purpose of determining the condition and acuity of human vision to correct and improve the same in accordance with subsections (b), (c), and (d) hereof;

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Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

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(b) The prescription and dispensing of ophthalmic lenses, prisms, contact lenses and their accessories and solutions, frames and their accessories, and supplies for the purpose of correcting and treating defects, deficiencies and abnormalities of vision; (c) The conduct of ocular exercises and vision training, the provision of orthoptics and other devices and procedures to aid and correct abnormalities of human vision, and the installation of prosthetic devices; (d) The counseling of patients with regard to vision and eye care and hygiene; (e) The establishment of offices, clinics, and similar places where optometric services are offered; and (f) The collection of professional fees for the performance of any of the acts mentioned in paragraphs (a), (b), (c), and (d) of this section.

*primary health care services in the community, including nutrition and family planning in carrying out the written order of physicians with regard to antenatal, intra-natal and post-natal care of the normal pregnant mother in giving immunization, including oral and parenteral dispensing of oxytocic drug after delivery of placenta, suturing parietal lacerations to control bleeding, to give intravenous fluid during obstetrical emergencies provided they have been trained for that purpose; and *may inject Vitamin K to the newborn:

Sec. 5. Prohibition Against the Unauthorized Practice of Optometry. — No person shall practice optometry as defined in Section 3 of this Act nor perform any of the acts constituting the practice of optometry as set forth in Section 4 hereof, without having been first admitted to the practice of this profession under the provisions of this Act and its implementing rules and regulations: Provided, That this prohibition shall not apply to *regularly licensed and duly registered physicians who have received post-graduate training in the diagnosis and treatment of eye disease: *examination of the human eye by duly registered physicians in connection with the physical examination of patients *public health workers trained and involved in the government's blindness prevention program conducting only visual acuity test and visual screening.

11. NUTRITIONIST DIETETICS (RA 1286 – REGULATING THE PRACTICE OF NURTRITION AND DIETETCS IN THE PHILIPPINES) Section 15. Practice of Nutrition and Dietetics. No person shall …offer himself in the Philippines as, or …use the title "Nutritionist-dietitian" or any word, letter, figure, or sign whatsoever, tending to convey the impression that he or she is a nutritionist-dietitians, or …advertise or indicate in any manner that he or she is qualified to perform the work of a nutritionist-dietitian …without holding a valid certificate or registration as issued by the Board in accordance with this Decree, unless exempt from registration as provided under Section 11 hereof.

10. MIDWIFE (RA 7392 – PHILIPPINE MIDWIFERY ACT OF 1992) Sec. 23. Practice of Midwifery Defined. — The practice of midwifery consist in *performing or *rendering, or *offering to perform or render, for a fee, salary, or other reward or compensation, services requiring an understanding of the principles and application of procedures and techniques in the supervision and care of women during -pregnancy -labor -puerperium management of normal deliveries, …including the performance of internal examination during labor except when patient is with antenatal bleeding; *health education of the patient, family and community;

Provided, however, That this provision shall not apply *to students in midwifery schools who perform midwifery service under the supervision of their instructors * nor to emergency cases.

Section 2. Definitions (c) Nutrition The science of foods, the nutrients and other substances therein, their action, interaction, and balance in relation to health and disease and the process by which the organism ingests, digests, absorbs, transports, utilizes and excretes food substances. In addition, nutrition must be concerned with certain social, economic, cultural and psychological implications of food and eating. (d) Dietetics refers primarily to the therapeutic and food service aspects of the delivery of nutritional services in hospitals and other health care institutions. (e) Nutritionist dietitian A person who is qualified to practice nutrition and dietetics as provided for under this Decree. 12. SANITARY ENGINEER (RA 1364 – SANITARY ENGINEERING LAW) Section 2. Definition of terms. — The practice of sanitary engineering within the meaning and intent of this Act shall embrace the following activities: (a) Sanitary surveys, reports, design, direction, management, consultation, and investigation of:

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Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

(1) Water purification plants, water collection and distribution systems, reservoirs, drainage and sewer systems, sewage treatment plants, malaria control structures, sewage disposal tanks, and other structures for public health and welfare. (2) Projects relating to stream pollution, insect and vermin control or eradication, rural and camp sanitation, and milk and food sanitation. (3) Systems for the prevention of atmospheric pollution or the control of indoorr, especially ther or working spaces in industrial establishments (industrial hygiene engineering). (b) Professional research and laboratory work supporting the activities listed in subsection (a). (c) The term "sanitary engineer" as used in this Act shall mean a person duly registered with the Board of Examiners for Sanitary Engineers in the manner as hereinafter provided. 13. SOCIAL WORKER ( RA 4373 – AN ACT TO REGULATE THE PRACTICE OF SOCIAL WORK) SECTION 10. Practice of social work and appointment as Social Workers. — Unless exempt from registration, no person shall practice or offer to practice social work in the Philippines as defined in this Act, or be appointed as a social worker or to any position calling for social worker in any social work agency whether private or governmental, without holding a valid certificate of registration as a social worker issued by the Board of Examiners for Social Workers: …provided, that registration shall not be required of *recognized social workers or authorities on social work who are residents and/or citizens of other countries called in for consultations in an agency or working with the United Nations and/or similar international social agencies: *workers who are employed in social work agencies at the date of the approval of this Act, except those in government social work agencies whose salaries may not be increased or adjusted until they shall have passed the civil service examination and qualified as social workers in accordance with the provisions of this Act: *those who at the time of the effectivity of this Act, possess the qualifications enumerated in Section twelve and are actually engaged in the practice of social work for a period of five years in a social work agency recognized by the Community Chest, Council of Welfare Agencies, Philippine Youth Welfare Coordinating Council, or Social Welfare Administration, if they register as social worker within a period of one year after the approval of this Act. SECTION 1. As used in this Act: (a) "Social Work" is the profession which is primarily concerned with organized social service activity

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…aimed to facilitate and strengthen basic social relationships and the mutual adjustment between individuals and their social environment for the good of the individual and of society. (b) A "social worker" as used in this Act is a practitioner …who by accepted academic training and social work professional experience …possesses the skill to achieve the objectives as defined and set by the social work profession, …through the use of the basic methods and techniques of social work (casework, group work, and community organization) which are designed to enable individuals, groups and communities to meet their needs and to solve the problems of adjustment to a changing pattern of society and, through coordinated action, to improved economic and social conditions, and is connected with an organized social work agency which is supported partially or wholly from government or community solicited funds. 14. PUBLIC HEALTH WORKER (RA 7305 – MAGNA CARTA FOR PUBLIC HEALTH WORKERS) Rule 1. Section 1. These Rules and Regulations shall cover all person engaged in health and health-related work, employed in all hospital, sanitaria, health centers, rural health units, barangay health station, clinics and other health-related establishments owned and operate by the government or its political subdivisions, regardless of the employment status. Also covered are medical and allied professional and support services personnel. Rule III. Definition of terms 1. Public Health Workers (PWH) - Persons engaged in health and health-related works. These cover employees in any of the following: a. Any government entity whose primary function according to its legal mandate is the delivery of health services and the operation of *hospitals *sanitaria health infirmaries *health centers *rural health units *barangay health stations *clinics or other institutional forms which similarly perform health delivery functions, like …clinical laboratories …treatment and rehabilitation centers …x-ray facilities and other similar activities involving the rendering of health services to the public; and b. Offices attached to agencies whose primary function according to their legal mandates involves provision, financing or regulation of health services.

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Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

Also covered are medical and allied health professionals, as well as administrative and support personnel, regardless of their employment status. 15. BARANGAY HEALTH WOKERS (RA 7883 – BARANGAY HEALTH WORKER’S BENEFITS AND INCENTIVES ACT OF 1995) Sec. 3. Definition. - The term “barangay health workers” refers to …a person who has undergone training programs under any accredited government and non-government organization and …who voluntarily renders primarily health care services in the community after having been accredited to function as such by the local health board in accordance with the guidelines promulgated by the Department of Health (DOH). III. E.O. No. 212: -requires attending physician of any *hospital *medical clinic *sanitarium *other medical establishments -or any other medical practitioner …who has treated any person for: *Art262: Mutilation: Deprive person TOTALLY or PARTIALLY of some essential organ of reproduction *Art263: Serious Physical Injuries: 1. injured person becomes *insane *imbecile *impotent *blind …in consequence of the physical injuries inflicted 2. injured person a. loses the use of speech b. power to hear c. power to smell d. loses an eye/hand/foot/arm/leg e. loses use of any such member (EHTAL) f. becomes incapacitated for work in which he is habitually engaged 3. person injured becomes a. deformed b. loses any other member of his body c. loses use thereof d. becomes ill or incapacitated for performance of work in which he is habitually engaged for more than 90d 4. injured person becomes ill or incapacitated for labor for more than 30d Art264: Administering injurious substances or beverages

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Art265: Less Serious Physical Injuries a. incapacitated for labor for 10d or more b. shall require medical attendance for 10+d Art266: Slight physical injuries and maltreatment a. incapacitated for labor for 1-9d b. shall require medical attendance for 1-9d …SHALL REPORT of such treatment promptly IV. Other Laws on Health Promotion A. RA 9288: Newborn Screening Act of 2004 …any health practitioner who *delivers *assists In the delivery of a newborn in the Philippines shall, …prior to delivery …inform the parents or legal guardian of the newborn of availability, nature and benefits of newborn screening ~performed 24hours – 3 hours after complete delivery IF PLACED IN ICU: tested by 7y.o. GR: new born screening X: religious beliefs B. RA 8504: Philippine Aids Prevention and Control Act of 1998: Keep identity confidential C. RA 7277: Magna Carta for Disabled Persons: Rights and Privileges of Disabled Persons: Equal Opportunity to Work/Educ/Health… D. RA 8980: Early Childhood Care and Development Act: -daycare -health, nutrition, yearly education and social services program -basic holistic needs of young children from birth to 6y E. RA 7875: National Health Insurance Act of 1995 -financial access to health services -provide health insurance coverage and ensure affordable, acceptable and healthcare services for all citizens -pay for utilization of health services by covered beneficiaries, purchasing health services V. Medical Practice A. Definition: persons 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, …(PEDTROP) *physically examine any person, and *diagnose *treat

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

*operate *prescribe any remedy for any human disease, injury, deformity, physical, mental or physical condition or 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, 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; (c) who shall use the title M.D. after his name. PEOPLE V. QUEBRAL F: Quebral was alleged to have diagnosed, treated and prescribed for certain diseases suffered by certain patients but was not registered as a physician. This was proven by Exhibit F-2 showing a document signed by the Chairman of the Board of Medical Examiners wherein he certified that Quebral was not a registered physician. H: Practice of medicine without license/ certificate of registration is an essential element of the offense charged PEOPLE VS. HATANI F: “Doctor” injected valium (and others) to the victim, while treating her with her LBM, then raped her. Raid in “Dr.” Hatani’s house resulted in discovery of various drugs, prescription pads and other medical instruments. PRC certified that Dr. Hatani is not a registered physician. Dr. Hatani argued, among other things, that there was no proof of payment so he was not in the practice of medicine. H: Law expressly provides that even if no payment made, the practice of medicine without license is prohibited by law PEOPLE VS. VENTURA F: Ventura, previously convicted of illegal practice of medicine, was caught again “practicing medicine” by subjecting his patients to hot water, and big bulbs. He was not a registered masseur nor a registered physician. He alleges that his practice was allowed by LG officials through ordinances and resolutions, and he was allowed by the Chairman of the Board of Medical Examiners to serve free in the Central Luzon Sanitarium. He also argued that he practices physiotherapy by massage through physical devices and upon the recommendation of duly registered physicians H: There is no such thing as an implied license to practice drugless healing. State has power to regulate the practice of medicine: The subjects where an examination is required relate to matters of which a thorough knowledge seems necessary for the proper diagnosis of diseases of the human body and it is within the police power of the State to require that

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persons who devote themselves to the curing of human ills should possess such knowledge. PEOPLE VS. BUENVIAJE F: “Dra.” Buenviaje, a chiropractic, practiced medicine and hold herself out as a doctor (through letterheads, signs, advertisement). She argues that chiropractic practice is not a practice of medicine; practice of medicine is different from holding herself out as a doctor. H: Law prohibits BOTH illegal practice of law and illegally advertising oneself as a doctor – merely different ways or means of committing the same offense of violating Medical Law. Chiropractic is a form of practice of medicine which required knowledge to proper diagnose of diseases of the human body AND IT IS WITHIN the police power of the State to require that persons who devote themselves to the curing of human ills should posses such knowledge. *Where chiropractic is by statute made a form of practice of medicine, a person holding himself out as a doctor of chiropractic in legal effect represents himself to be a doctor B. A physician should be *licensed and *registered with PRC GR: Only practice medicine in Philippines IF a HOLDER OF A VALID CERTIFICATE OF REGISTRATION duly issued by PRC X: Where Certificate not required (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

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Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

authorization shall automatically cease when the epidemic or national emergency is declared terminated by the Secretary of Health. ~4th year medical students still can’t use MD after their name, AND they have to be under the supervision of a registered physician VI. Illegal Practice of Medicine: WHEN (Reqs) a. performs acts under Section 10 of the Medical Act of 1959 (acts considered as practice of medicine) b. w/o falling in any of the exempted acts under Section 11 (their acts would not constitute practice of medicine) c. + DOES NOT HAVE A PROPER LICENSE + CERTIFICATE OF REGISTRATION TO PRACTICE MEDICINE in the Philippines from the Medical Board and PRC d. NOT a Filipino (Consti) e. Not below 21 y.o. A. Drugless Healing B. PEOPLE V. VENTURA (DR. WITH BULBS - PHYSIOTHERAPY): No such thing as implied license to practice drugless healing C. CRISOSTOMO V. SEC (OWNING STOCKS) F: Japanese stockholders wanted to invest on a hospital H: No law limits sale of hospital shares of stock to doctors only. Ownership of such shares doesn’t amount to engaging illegally in practice or medicine or nursing. D. PEOPLE V. QUEBRAL (Pangasinan faith healer alleges lack of proof of nonregistration but prosecution was able to show such): Practice of medicine without license/ certificate of registration is an essential element of the offense charged E. PEOPLE VS. HATANI (RAPIST DOCTOR – INJECTION OF SUBSTANCES- ALLEGED NONPAYMENT): Law expressly provides that even if no payment made, the practice of medicine without license is prohibited by law VII. Physician-Patient Relationship A. Contract Elements: (1) consent (2) causa (3) subject matter B. Nature *fiduciary *consensual C. NCC Art. 1305. A contract is a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service.

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Art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. Art. 1318. (REQs) There is no contract unless the following requisites concur: (1) Consent of the contracting parties; (2) Object certain which is the subject matter of the contract; (3) Cause of the obligation which is established. Art. 1319. Consent is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. The offer must be certain and the acceptance absolute. A qualified acceptance constitutes a counter-offer. Acceptance made by letter or telegram does not bind the offerer except from the time it came to his knowledge. The contract, in such a case, is presumed to have been entered into in the place where the offer was made. Art. 1322. An offer made through an agent is accepted from the time acceptance is communicated to him. D. Changes: patient is treated as a commercial commodity with VAT Law E. When does it start: Doctrine of Cognition of Civil Contracts GARCIA-RUEDA VS. PASCASIO F: Husband of Petitioner went for an operation to remove a stone blocking his ureter. He died. NBI’s autopsy found the lack of care by the attending physician in administering anaesthesia. Prosecutors “pingponged” the case so widow filed case vs. prosecutors with Ombudsman… H: When start: *when employed *when Dr. accepted the case, the Dr in effect represented that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, they will employ such training, care and skill in the treatment of their patients DEL ROSARIO V. BENGZON F: unconstitutionality of Generics Act of 1988: unequal treatment of gov’t physician; act of prescribing the correct medicine for the patient becomes the act of the salesgirl at drugstore; generic act impairs obligation of contracts between physician and his patiend H: No unequal treatment because all could include brand name; salesgirl merely informs the customer, but does not determine all other drug products to have same generic name… *no contract results from a consultation between patient and physician! A doctor may take in or refuse a patient, just as the patient

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

may take or refuse the doctor’s advices or prescription. NO PRIVATE CONTRACT BETWEEN DOCTORS AND PATIENT MAY OVERRIDE THE POWER OF THE STATE TO ENACT LAWS THAT ARE REASONABLY NECESSARY TO SECURE THE HEALTH, SAFETY, GOOD ORDERS, COMFORT, OR GENERAL WELFARE OF THE COMMUNITY VIII. Cases where there are NO PHYSICIAN-PATIENT RELATIONSHIP (PPR) a. pre-employment physical examination to determine whether the applicant is suitable for work or not b. physical examinations for the purpose of determining eligibility for insurance c. physician appointed by court d. autopsy (undead cannot give consent) e. casual questions f. emergency cases (particularly when the patient is unconscious) g. physical examination required by school *Similarity: not all the requisites of a patient-physician contract exist: mostly, not consensual, not fiduciary, not necessarily for a consideration… IX. Rights and duties of Physician (as contained in…) A. Bill of Rights in consti B. The Hippocratic Oath C. Code of Medical Ethics of the Board of Medicine D. Code of Ethics of the Medical Profession, Philippine Medical Association Rights: RLWWP 1. Right to refuse treatment X: RA 8344: inadequacy of medical capability of hospital/clinic …in cases of emergencies, can only refuse treatment if it is also a threat to the life of physician 2. Right to limit medical practice: specialization, don’t need to practice general medicine 3. Right to withhold information X: criminal cases + upon lawful order of the court 4. Right of way while responding to an emergency call (ambulance)

5.

Right to be paid for services rendered

X. Duties of Physicians to their patients A. Code of Ethics: can be summarized into 4: 1. Dr. possesses knowledge and skill of average physician 2. Use skill + … with ordinary diligence 3. Exercise best judgment

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4. Observe good faith e.g. self-advertisement, fee to procure referral CARILLO VS. PEOPLE F: Rude doctor operated on girl suspected to be suffering from appendicitis, Girl later died. There were findings that there was an overdose of Nubain. H: (re: duties of a physician) *should serve the interest of patients with greatest solicitude, giving the always his best talent and skill *attend patients faithfully and conscientiously *secure all possible benefits that may depend upon his professional skill and care

XI. Rights of Patients A. Right to choose his physician e.g. Health Management Org: what about HMO orders? When you chose HMO, you choose to waive your right to choose a doctor B. Right to treatment X: when the physician would be exposed to harm too C. Right to informed consent prior to treatment *Information: broadest term enough to freely and voluntarily give his consent (not necessary to give exact details that would make the patient hesitate to be operated on) D. Right to confidential information R130.24: (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 *advice or *treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, …which information was necessary to enable him to act in capacity, …and which would blacken the reputation of the patient; X: physical injuries (PD 169; EO 212), causes of PD 603 LIM VS. CA F: Psychiatrist from the National Mental Health Hospital whom the petitioner consulted with for her alleged schizophrenia was presented by husband who filed for annulment based on mental incapacity as an expert witness and NOT as her physician. H: Expert testimony of a physician based on hypothetical question as to cause of illness of a person whom he has attended is not privileged,

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

provided the physician does not give testimony tending to disclose confidential information related to him in his professional capacity while attending to the patient. The physician may be considered to be acting in his professional capacity when he attends to the patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to the physician to enable him "safely and efficaciously to treat his patient" are covered by the privilege. 16It is to be emphasized that "it is the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject communicated is not stated." OBITER: *This rule on the physician-patient privilege is intended to facilitate and make safe full and confidential disclosure by the patient to the physician of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. It rests in public policy and is for the general interest of the community. *elements for privileged communications to apply: (a) the privilege is claimed in a civil cases; (b) the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired the information while he was attending to the patient in his professional capacity; (d) the information was necessary to enable him to act in that capacity; and, (e) the information was confidential and, if disclosed, would blacken the reputation (formerly character) of the patient." KROHN VS. CA F: husband, who initiated annulment proceedings for psychological incapacity against his wife, presented and testified on the confidential psychiatric evaluation report made by the psychiatrists consulted by his wife in effort to save the marriage H: the rule on privileged communication between physician and patient DOES NOT APPLY if the person testifying is not a person authorized to practice medicine, surgery, or obstetrics. Nor does it apply if the testimony does not have the force and effect of the testimony of the physician who examined the patient and executed the report. E. F.

Right to privacy and access to communications Equal protection of law

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G. Review medical records and have information explained H. Continuity of care *Ma’am Pascual: pag umalis ung doctor without telling you and you need treatment, you can sue the doctor! PART III: LIABILITIES OF PHYSICIANS I. Administrative Liabilities A. PRACTICE OF MEDICINE IS A PRIVILEGE AND NOT A RIGHT. The State can take away the privilege anytime once there are violations of the provisions of the Medical Act. The proper venue is the PRC because it has quasi-judicial authority. B. Grounds for reprimand, suspension or revocation of certificate of registration of the physician (section 24, Medical Act of 1959): 1. conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude MORAL TORPITUDE (according to jurisprudence): an act of baseness, vileness or depravity in the private and social duties which a man owes to fellowmen contrary to accepted and customary rule ….conduct contrary to justice, honesty…BASTA MALA IN SE crimes 2. immoral or dishonorable conduct 3. insanity 4. fraud in the acquisition of the certificate of registration (note: meron nang certificate) 5. gross negligence, ignorance or incompetence in the practice of his or her profession resulting in an injury or death of the patient (note: so aside from crim/civil case, pede din admin) 6. addiction to alcoholic beverages or to any habit forming drug rendering him incompetent to practice profession, or to any form of gambling (Focus on ADDICTION: di lang madalas uminom, dapat addicted! Ratio: physician incompetent to practice medicine if he’s in this state) 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 (includes claiming to be qualified when in fact, the person is not – person is incompetent) 8. performance of or aiding in any criminal abortion 9. knowingly issuing any false medical certificate 10. issuing any statement or spreading any news or rumor which is derogatory to the character or 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 PMA

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

C. Characteristics of the Administrative Proceedings 1. Presumption of Innocence 2. Preponderance of Evidence 3. Rights of Respondents (in general, from Medical Act, Consti and ROC) (a) presumption of innocence (b) To be informed of the nature and cause of the accusation against him. (c) To be present and defend in person and by counsel at every stage of the proceeding (d) To testify as a witness in his own behalf but subject to crossexamination on matters covered by direct examination. His silence shall not in any manner prejudice him. (e) right against self-incrimination (f) To confront and cross-examine the witnesses against him at the trial (g) secure the attendance of witnesses and production of other evidence in his behalf (h) To have speedy, impartial and public trial. (i) appeal 4. Appeal from Judgment Sec. 26, Medical Act of 1959. Appeal from judgment. -deci of BME final 30d after date of promulgation UNLESS appeal w/n 30d period to Commissioner of Civil Service > Office of the President of Philippines …if final deci not satisfactory: >review >petition for certiorari (before regular courts) 5. Reinstatement Sec. 27, Medical Act of 1959. Reinstatement of certificate of registration -after 2yrs -if respondent acted in an exemplary manner in the community wherein he resides + has not committed any illegal, immoral or dishonorable act 6. Penalties Sec. 28. Penalties. -fine: min P1k, max P10k, subsidiary imprisonment in case of insolvency -imprisonment: min 1 yr, max 5 yrs 7. Injunctions Sec. 29. Injunctions. -action to enjoin any person illegally practicing medicine from the performance of any act constituting practice of medicine until the necessary certificate is secured -if continues to practice illegally, may be punished for contempt -even if enjoined, may still be prosecuted criminally/administratively III. Civil Liabilities of Physicians

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A. Civil liabilities of physicians under the following categories: 1. Breach of Contract; different from medical negligence 2. Violation of Art. 19, 20, 21 of NCC (Human Relations) Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage. 3. Tort (QD or breach of legal duty) – legal wrongdoing independent of the contract (Art. 2176 NCC) 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 quasi-delict and is governed by the provisions of this Chapter. *Note however that, as we’ve learned in Torts and Damages, acts under 2176 still includes acts wherein an existing contractual relation may exist III. Criminal Liabilities of Physicians A. Criminal v. Civil Liabilities Whose rights breached Liability Injury requirment Evidence required

Criminal Public: affect whole community: CRIME or Misdemeanor Penal: fine or imprisonment, or both None: even if nobody is hurt, mere existence of negligence enough Guilt beyond reasonable doubt

Civil Individual: civil injuries damages INJURY is an element Preponderance of evidence

B. Provisions of the RPC which mention physician as the wrongdoer 1. Issuance of false medical certificates (Art. 174) a. Any physician or surgeon who, in connection with the practice of his profession, shall issue a false certificate; and b. Any public officer who shall issue a false certificate of merit of service, good conduct or similar circumstances. The penalty of arresto mayor shall be imposed upon any private person who shall falsify a certificate falling within the classes mentioned in the two preceding subdivisions.

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

2. Abortion (Art. 259) -physician or midwife …taking advantage of their scientific knowledge or skill …shall cause an abortion or assist in causing the same. Any pharmacist who, …without the proper prescription from a physician, …shall dispense any abortive shall suffer arresto mayor and a fine not exceeding 1,000 pesos. 3. Simulation of births, substitution and concealment or abandonment of a legitimate child (Art. 347) -The simulation of births - substitution of one child for another -conceal or abandon 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 crimes mentioned in the two next preceding paragraphs, …shall suffer the penalties therein prescribed and also the penalty of temporary special disqualification. 4. Failure to report treatment of physical injuries (PD 169; EO 212) PD 169. 1. The attending physician of any (HMSO) …Hospital …medical clinic …sanitarium …or other medical establishments, or any medical practitioner, …who has treated any person for serious or less serious physical injuries as those injuries are defined in Articles 262, 263, 264 and 265 of the RPC !shall report the fact of such treatment >personally >or by fastest means of communication …to the nearest Philippine Constabulary unit without delay (PNP): (Provided, That no fee shall be charged for the transmission of such report through government communication facilities; 2. Contents of report to PNP: (indicate when practicable) a. name of patient, age of patient

b. c. d.

e. f.

address of patient nearest of kin of the patient the nature and probable cause of the injury; the approximate time and date when, and the place where, the injury was sustained; the time, date, and nature of treatment;

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g. the physical diagnosis and/or disposition of the patient; PENALTY FOR VIOLATION *if done with malicious intent/gross negligence > 1-3yrs imprisonment >P1-3k fine >government license or permit to practice CANCELLED after sentence final and executory EO 212 Sec. 1. (same with Section 1 of PD 169 + records of the reports kept by said health authorities shall, upon written request, be made available to law enforcement agencies (so no confidentiality here?) Sec. 2. (similar with Sec2 of PD 169 +): b) the name and address of the nearest of kin of the patient; c) the name and address of the person who brought the patient for medical treatment; PENALTY: also same, but jurisdiction transferred to BME 5. Refusal to render treatment in emergency cases (RA 6615, Sec. 3) Sec. 3. Any *hospital director *administrator *officer-in-charge *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 after said case had been brought to his attention, *or any nurse *midwife *medical attendant …who shall refuse to extend the appropriate assistance, subject to existing rules, …or neglect to notify or call a physician PENALTY: >imprisonment: 1m,1d to 1y,1d >fine: P300-1K >if Gov’t hospital: may also be subject to administrative action >if Private hospital: license of hospital to operate suspended/revoked 6. Violation of RA 9344 (Sec. 1, 4) – Juvenile Justice and Welfare Act of 2006 (though no mention of physician as wrongdoer…) SECTION 1. Short Title and Scope. - This act shalll be known as the "Juvenile Justice and welfare Act of 2006." It shall cover the different

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

stages involving children at risk and children in conflict with law from prevention to rehabilitation and reintegration. SECTION 4. Definition of Terms. - The following terms as used in this Act shall be defined as follows: (a) "Bail" refers to the security given for the release of the person in custody of the law, furnished by him/her or a bondsman, to guarantee his/her appearance before any court. Bail may be given in the form of corporate security, property bond, cash deposit, or recognizance. (b) "Best Interest of the Child" refers to the totality of the circumstances and conditions which are most congenial to the survival, protection and feelings of security of the child and most encouraging to the child's physical, psychological and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child. (c) "Child" refers to a person under the age of eighteen (18) years. (d) "Child at Risk" refers to a child who is vulnerable to and at the risk of committing criminal offenses because of personal, family and social circumstances, such as, but not limited to, the following: (1) being abuse by any person through sexual, physical, psychological, mental, economic or any other means and the parents or guardian refuse, are unwillling, or unable to provide protection for the child; (2) being exploited including sexually or economically; (3) being abandoned or neglected, and after diligent search and inquiry, the parent or guardian cannot be found; (4) coming from the dysfunctional or broken family or without a parent or guardian; (5) being out of school; (6) being a street child; (7) being a member of a gang; (8) living in a community with a high level of criminality ot drug abuse; and (9) living in situations of armed conflict. (e) "Child in Conflict with the Law" refers to a child who is alleged as, accused of, or adjudged as, having committed an offense under Philippine laws. (f) "Community-based Programs" refers to the programs provided in a community setting developed for purposes of intervention and diversion, as well as rehabilitation of the child in conflict with the law, for reintegration into his/her family and/or community. (g) "Court" refers to a family court or, in places where there are no family courts, any regional trial court. (h) "Deprivation of Liberty" refers to any form of detention or imprisonment, or to the placement of a child in conflict with the law in a public or private custodial setting, from which the child in conflict with the law is not permitted to leave at will by order of any judicial or administrative authority.

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(i) "Diversion" refers to an alternative, child-appropriate process of determining the responsibility and treatment of a child in conflict with the law onthe basis of his/her social, cultural, economic, psychological or educational background without resorting to formal court proceedings. (j) "Diversion Program" refers to the program that the child in conflict with the law is required to undergo after he/she is found responsible for an offense without resorting to formal court proceeding. (k) "Initial Contact With the Child " refers to the apprehension or taking into custody of a child in conflict with the law by law enforcement officers or private citizens. It includes the time when the child alleged to be in conflict with the law receives a subpoena under Section 3(b) of Rule 112 of the Revised Rules of Criminal Procedure or summons under Section 6(a) or Section 9(b) of the same Rule in cases that do not require preliminary investigation or where there is no necessity to placed the child alleged to be in conflict with the law under immediate custody. (l) "Intervention" refers to a series of activities which are designed to address issues that caused the child to committ an offense. It may take the form of an individualized treatment program, which may include counseling, skills training, education, and other activities tha twill enhance his/her psychological, emotional and psycho-social well-being. (m) "Juvenile Justice and Welfare System" refers to a system dealing with children at risk or children in conflict with the law, which provide child-appropriate proceedings, including programs and services for prevention, diversion, rehabilitation, re-integration and aftercare to ensure their normal growth and development. (n) "Law Enforcement Officer" refers to the person in authority or his/her agent as defined in Aritcle 152 of the Revised Penal Code, including a barangay tanod. (o) "Offense" refers to any act or omission whether punishable under special laws or the Revised Penal code, as amended. (p) "recognizance" refers to an undertaking in lieu of a bond assumed by a parent or custodian who shall be responsible for the appearance in court of the child in conflict with the law, when required. (q) "Restorative Justice" refers to a principle which requires a process of resolving conflicts with the maximum involvement of the victim, the offender and the community. It seeks to obtain reparation of the victim; and reassurance to the offender that he/she can be reintegrated into society. It also enhances public safety by activating the offender, the victim and the community in prevention strategies. (r) "Status Offenses" refers to the offenses which discriminate only against a child, while an adult does not suffer any penalty for committing similar acts. These shall include curfew violations, truancy, parental disobedience and the like. (s) "Youth Detention Home" refers to a 24-hour child caring institution managed by accredited local goverment units (LGUs) and licensed and/or accredited nongoverment organizations (NGOs) providing short term

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

residential care for children in conflict with the law who are awaiting court disposition of their cases or transfer to other agencies or jurisdiction. (t) "Youth Rehabilitation center" refers to a 24-hour residential care facility managed by the department of Social Welfare and Development (DSWDs), LGUs, licensed and/or accredited NGOs monitored by the DSWD, which provides care, treatment and rehabilitation services for children in conflict with the law. Rehabilitation services are provided under the guidance of a trained staff where residents are cared for under a structured therapeutic environment with the end view of reintegrating them into their families and communities as socially functioning individuals. Physical mobilities of residents of said centers may be restricted pending court disposition of the charges against them. (u) "Victimless Crimes" refers to offenses where there is no private offended party. 7. Failure to report maltreated or abused child (PD 603, Art 166) Art. 166. Report of Maltreated or Abused Child. – All *hospitals *clinics *and other institutions *as well as private physicians providing treatment ….shall, within 48hrs from knowledge of the case, …report …in writing …to the *city or provincial fiscal or *to the Local Council for the Protection of Children or *to the nearest unit of the Department of Social Welfare, …any case of a maltreated or abused child, or exploitation of an employed child contrary to the provisions of labor laws. It shall be the duty of the Council for the Protection of Children or the unit of the Department of Social Welfare to whom such a report is made to forward the same to the provincial or city fiscal. Penalty: max P2k fine *if sexual abuse: the records pertaining to the case shall be kept strictly confidential and no information relating thereto shall be disclosed except in connection with any court or official proceeding based on such report. Penalty if DISCLOSE: > fine: P100-5k > imprisonment: 30d-1yr 8. Violation of Generics Act of 1988 (Sec. 6 and 12) SECTION 6. Who Shall Use Generic Terminology –

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(a) All government health agencies and their personnel as well as other government agencies shall use generic terminology or generic names in all transactions related to purchasing, prescribing, dispensing and administering of drugs and medicines. (b) All medical, dental and veterinary practitioners, including private practitioners, shall write prescriptions using the generic name. The brand name may be included if so desired. (c) Any organization or company involved in the manufacture, importation, repacking, marketing and/or distribution of drugs and medicines shall indicate prominently the generic name of the product. In the case of brand name products, the generic name shall appear prominently and immediately above the brand name in all product labels as well as in advertising and other promotional materials. (d) Drug outlets, including drugstores, hospital and non-hospital pharmacies and non-traditional outlets such as supermarkets and stores, shall inform any buyer about any and all other drug products having the same generic name, together with their corresponding prices so that the buyer may adequately exercise, his option. Within one (1) year after approval of this Act, the drug outlets referred to herein, shall post in conspicuous places in their establishments, a list of drug products with the same generic name and their corresponding prices. SECTION 12. Penalty – A) Any person who shall violate Section 6(a) or 6(b) of this Act shall suffer the penalty graduated hereunder, viz: (a) for the first conviction, he shall suffer the penalty of reprimand which shall be officially recorded in the appropriate books of the Professional Regulation Commission. (b) for the second conviction, the penalty of fine in the amount of not less than two thousand pesos (P2,000.00) but not exceeding five thousand pesos (5,000.00) at the discretion of the court. (c) for the third conviction, the penalty of fine in the amount of not less than five thousand pesos (P5,000.00) but not exceeding then thousand pesos (P10,000.00) and suspension of his license to practice his profession for thirty (30) days at the discretion of the court. (d) for the fourth and subsequent convictions, the penalty of fine of not less than ten thousand pesos (P10,000.00) and suspension of his license to practice his profession for one year or longer at the discretion of the court. B) Any juridical person who violates Section 6(c), 6(d), 7 or 8 shall suffer the penalty of a fine of not less than five thousand pesos (P5,000.00) nor more than ten thousand pesos (P10,000.00) and suspension or revocation of license to operate such drug establishment or drug outlet at the discretion of the Court: Provided,That its officers directly responsible for the violation shall suffer the penalty of fine and suspension or revocation of license to practice profession, if applicable, and by imprisonment of not less than six (6) months nor more than one (1) year or both fine and imprisonment at the discretion of the Court: and Provided, further, That if

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

the guilty party is an alien, he shall be ipso facto deported after service of sentence without need of further proceedings. C) The Secretary of Health shall have the authority to impose administrative sanctions such as suspension or cancellation of license to operate or recommend suspension of license to practice profession to the Professional Regulation Commission as the case may be for the violation of this Act. 9. Violation of Philippine AIDS Prevention and Control Act of 1998 (Sec. 30) SECTION 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/test results …are directed to strictly observe confidentiality in the handling of all medical information, particularly the *identity and *status of persons with HIV. C. Liabilities incurred incidental to the practice of the profession 1. Criminal negligence and imprudence (Art. 365) 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(capital punishment or afflictive penalties attaches) 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 ( in max period are correctional), 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

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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 maliciously, 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 paragraphs 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 and 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. 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). 2. Violation of the Comprehensive Dangerous Drugs Act of 2002 (Sec. 18, 19 RA 9165) Section 18. Unnecessary Prescription of Dangerous Drugs. – The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) and the additional penalty of the revocation of his/her license to practice shall be imposed upon the practitioner, …who shall prescribe any dangerous drug

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

…to any person whose physical or physiological condition does not require the use or in the dosage prescribed therein, …as determined by the Board in consultation with recognized competent experts who are authorized representatives of professional organizations of practitioners, …particularly those who are involved in the care of persons with severe pain. Section 19. Unlawful Prescription of Dangerous Drugs. – The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, …who, unless authorized by law, …shall make or issue a prescription or any other writing purporting to be a prescription for any dangerous drug. 3. Liability in the issuance of birth and death certificates (PD 651, as amended by PD 766, Sec. 1, 2, 4, 5, 9) Sec. 1. Registration of births. -All babies born in hospitals, maternity clinics, private homes, or elsewhere within the period starting from January 1, 1974 up to the date when this decree becomes effective, …irrespective of the nationality, race, culture, religion or belief of their parents, …whether the mother is a permanent resident or transient in the Philippines, …and whose births have not yet been registered …must be reported for registration in the office of the local civil registrar of the place of birth by the: *physician *nurse *midwife *hilot *hospital or clinic administrator …who attended the birth *or in default thereof: …by either parent or …a responsible member of the family …or a relative …or any person who has knowledge of the birth of the individual child The report referred to above shall be accompanied with an affidavit describing the circumstances surrounding the delayed registration Sec. 2. Period of Registration of births. from birth without fine or fee of any kind

within thirty (30) days

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LIABILITY: joint ung parents and medical attendant (if no medical attendant, parent lang liable) Sec. 4. Registration of deaths. …All persons, irrespective of nationality, race, culture, religion and belief, …whether a permanent resident or a transient in the Philippines …who died in hospitals, clinic, private homes, or elsewhere, within the period from January 1, 1974 to the date of effectivity of this decree, …whose deaths have not yet been registered, …must be reported for registration through the local health officer to the local civil registrar of the place of death, …by *the physician who attended the deceased *in default thereof: by the nearest responsible relative or by any person who has knowledge of such death The report referred to above shall be accompanied by an affidavit describing the circumstances surrounding the delayed registration Sec. 5. Period of reporting and registration of deaths. -within 48 hours after death to the Local Health Officer of the place of death -Local Health Officer then issue the corresponding certificate of death and order its registration in the Office of the Local Civil Registrar within thirty (30) days after death, without fee or fine of any kind. In case the deceased was attended to by a physician, the latter must issue the necessary certificate of death within 48 hours after death and submit the same to the Local Health Officer of the place of death, who shall order its registration in the Office of the Local Civil Registrar within the said period of thirty (30) days after death, without fee or fine of any kind. The attending physician and responsible member of the family or person who has knowledge of the death are jointly liable to report the death to the Local Health Officer, for registration by the Local Civil Registrar of the place of the death. If the deceased was not attended by a physician or did not die in the hospital, the responsible member of the family alone shall be responsible for failure to submit the report of death to the Local Health Officer. Sec. 9. Penalty. Any person required under this decree to report for registration any fact concerning the civil status of persons and who fails to do so, or who deliberately makes false statements in the birth or death form and presents the same for registration, or who violates any rule or regulation which may be issued pursuant to this decree, and any local public health officer who fails to perform his duties as provided for in this decree, or violates any rule or regulation which may be issued pursuant to this decree, shall upon conviction, be punished by a fine of not less than

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

P500.00 nor more than P1,000.00 or imprisonment of not less than three (3) months nor more than six (6) months, or both, in the discretion of the court. 4. Sexual harassment Sec. 3. Work Education or Training-related Sexual Harassment Defined. Work, education of training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. (a) In a work-related or employment environment, sexual harassment is committed when: (1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions, or privileges; or the refusal to grant the sexual favor results in limiting, segregating or classifying the employee which in any way would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employee; (2) The above acts would impair the employee's rights or privileges under existing labor laws; or (3) The above acts would result in an intimidating, hostile, or offensive environment for the employee. (b) In an education or training environment, sexual harassment is committed: (1) Against one who is under the care, custody or supervision of the offender; (2) Against one whose education, training, apprenticeship or tutorship is entrusted to the offender; (3) When the sexual favor is made a condition to the giving of a passing grade, or the granting of honors and scholarships, or the payment of a stipend, allowance or other benefits, privileges or considerations; or (4) When the sexual advances result in an intimidating, hostile or offensive environment for the student, training or apprentice. Any person who directs or induces another to commit any act of sexual harassment as herein defined, or who cooperates in the commission thereof by another without which it would not have been committed, shall also be held liable under this Act. 5. Sale of pharmaceutical samples (RA 5921, Sec. 26, 40) Sec. 26. Markings and inhibition to the sale of drug samples. -can’t sell drugs which are given by manufacturer as samples (which are intended to be given free)

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-packaging should be marked: “Sample, not for sale” Sec. 40. Penal provisions. Any person who shall violate any of the provisions of Sections twelve, twenty-four, twenty-five, twenty-six, twentyseven and twenty-nine of this Act or any person who shall make false representation to procure a registration certificate as pharmacist for himself or for another; or any person who shall allow anyone in his employ who is not a registered pharmacist to engage in the practice of pharmacy; or any person who shall falsely display within the establishment the certificate of registration of a pharmacist who is not actually and regularly employed therein as such or to act as a dummy for any alien or an unqualified person for the purpose of opening and operating a retail drugstore; shall, upon conviction thereof, be sentenced to a fine of not less than one thousand pesos but not exceeding four thousand pesos or to an imprisonment of not less than six months and one day but not more than four years, in the discretion of the court. 6. Giving assistance to suicide (Art. 253) Art. 253. Giving assistance to suicide. — Any person who shall assist another to commit suicide shall suffer the penalty of prision mayor; -if such person lends his assistance to another to the extent of doing the killing himself, he shall suffer the penalty of reclusion temporal. …However, if the suicide is not consummated, the penalty of arresto mayor in its medium and maximum periods, shall be imposed. MEDICAL NEGLIGENCE I. Definition of Medical Negligence GARCIA-RUEDA v. PASCASIO (removal of stone blocking gallbladder but died) -type of claim …which a victim has available to him or her …to redress a wrong …committed by a medical professional …which has caused bodily harm - Prove that health care provider (physician): * failed to do something which a reasonably prudent health care provider would have done * did something that a reasonably prudent provider would not have done + and that that failure or action caused injury to the patient. II. Elements of medical negligence 1. The physician has a duty to his patient;(Duty) 2. The physician failed to perform such duty to his patient; (Breach)

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

3. As a consequence of the failure of the physiciann to perform his duty, injury was sustained by the patient; and (Injury) 4. The failure of the physician to perform his duty is the proximate cause of the injury sustained by the patient.(Causation) III. Physicians may become professionally liable for malpractice in the following ways: 1. Through the physician’s own negligence (failing to conform to generally accepted medical practice) 2. Through the negligence of the physician’s employees: Respondeat superior e.g. Secretary of Physician, if physician talks to her on the phone to ask regarding medical records of patient… 3. Through the physician’s failure to obtain the informed consent of the patient prior to treatment X: emergencies 4. Through breach of physician-patient contractual relationship e.g. abandoning patient disclosing confidential information guaranteeing a cure or some other specific result 5. Through the negligence of the physician’s partners (?) IV. Standard of Care: The standard of care for physicians and health care providers requires that …they exercise that degree of skill, knowledge, and care …ordinarily possessed and exercised by other members of the profession …acting under similar conditions and circumstances. Ma’am: National standard of care: followed, except in remote areas, in RP Local standard of care: followed in remote areas (?) GARCIA-RUEDA V. PASCASIO (DEADLY GALLBLADDER STONE REMOVAL): use same level of care …that any other reasonably competent doctor would use to treat a condition …under the same circumstances B. Some doctrines on standard of care: *As long as standard of care conformed with, practitioner would not be found negligent. Even if: 1. treatment proved unsuccessful 2. poor treatment or surgery result 3. error in judgment by the healthcare provider 4. not highest skill known to medical science applied 5. there are alternative recognized methods of treatment available, and the practitioner selected the wrong – but recognized – treatment

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*no presumption of violation of standard of care, of negligence (unless res ipsa): plaintiff must prove standard of care violation by showing expert witness *medical specialists requires the exercise of professional conduct normally exhibited by specialists in the same or similar locality under similar circumstances. C. Expert testimony to establish standard of care 1. to establish that the defendant physician has deviated from the applicable standard of care that injury has thereby resulted; 2. opinion of expert witness (R130.49)— The opinion of a witness …on a matter requiring special knowledge, skill, experience or training (SKSET) …which he shown to posses, may be received in evidence. 3. Exception: res ipsa loquitur RAMOS v. CA (1999) F: Axn for damages based on the erroneous intubation of anesthesia during operation for removal of kidney stones. Plaintiff comatosed. H: for Ramos -ON EXPERT TESTIMONY: when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. - Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. - Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised.

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

-When not applied: involves the merits of a diagnosis or of a scientific treatment. CRUZ v. CA (1997) F: Patient undergone hysterectomy operation for the removal of the myoma [Ma’am: myo- muscle, so myonma = mass within a muscle] in her uterus but due to the lack of facilities in the hospital, patient was transferred to another hospital but still died. COD: shock, antecedent cause: Disseminated Intravascular Coagulation (DIC) [Ma’am: din a nagcclot ung dugo]. Criminal Case filed. Expert witnesses presented were not able to connect death of patient with recklessness of the physicians. H: Physicians acquitted ON EXPERT TESTIMONY: There is an absence of any expert testimony on the matter of the standard of care employed by other physicians of good standing in the conduct of similar operations: only testified as to possible COD but not standard of care *The deference of courts to the expert opinion of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. Expert testimony should have been offered to prove that the circumstances cited by the courts below are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. - When the qualifications of a physician are admitted, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. This presumption is rebuttable by expert opinion which is so sadly lacking in the case at bench. [Ma’am: “hemorrhage due to DIC cannot be prevented, it will happen to anyone, anytime” – false! Severe blood lost should first occur before DIC would happen…so the expert witnesses presented should have proven why there was severe blood lost first!] *Expert opinion should be used to show standard of care and causation REYES v. SISTERS OF MERCY HOSPITAL (2000) F: Patient, already suffering recurring fever with chills, went to hospital and was suspected to have Typhoid fever. He was given chloromycetin after several tests conducted showed him to be positive for the illness and that he was compatible with said drug. Patient later died so Civil case filed by widow. Widow presented as expert witness the doctor who performed the autopsy. Respondents presented 2 expert witnesses on infectious diseases who have handled several Typhoid fever cases before. H: For doctors Expert testimony required for the determination of the *reasonable level of care *breach of such level of care

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*conclusion as to causation -should present witnesses who are EXPERTS on the subject matter Res Ipsa Loquitur DOES NOT APPLY as there was nothing unusual or extraordinary about the death of the patient: patient was already suffering from recurrent fever + there was a Typhoid fever prevalence at that area + patient indeed diagnosed to have typhoid = he might die of typhoid V. Laws governing medical negligence A. Civil Action (Art. 19, 20, 21, 2176 of NCC) Human relations articles 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 quasi-delict and is governed by the provisions of this Chapter. B. Criminal Action (Art. 365, RPC) CARILLO v. PEOPLE (Rude doctor operated on girl suspected to be suffering from appendicitis, Girl later died. There were findings that there was an overdose of Nubain. Doctors did not take body mass of the patient before administering the said drug, which was not yet tested on patients below 18 years old. No pre-operation…) OBITER: Simple negligence defined in A365, RPC; gravamen of the offense is ..failure to exercise the diligence necessitated or called for the situation which was not immediately life-destructive (here, patient died 3d after operation) CRUZ v. CA (Hysterectomy in hospital with lacking facilities, caused death by DIC) elements of reckless imprudence (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place.VI. Other applicable doctrines VI. Other Applicable Doctrines A. Contributory negligence -conduct on the part of the plaintiff which falls below the standard of conduct to which he should conform for his own protection and cooperates with negligence of defendant in bringing about plaintiff’s harm

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

-negligence of claiming party NOT IMMEDIATE AND PROXIMATE CAUSE OF THE INJURY, it being the defendant’s lack of due care LASAM v. RAMOLETE F: Patient went to physician’s clinic, complaining of the meaty mass discharged with her urine and bowel. Patient was 3m pregnant. “Raspa” was conducted by the physician. Several months after, patient complained of pain in her abdominal area and it was found that her fetus was dead. Filed admin case vs. physician H: patient’s negligence, in not consulting the physician after her operation even if she was told to do so, was the immediate and proximate cause of the injury she sustained, thus, recovery barred. B. Assumption of risk/ VIOLENTI NON FIT INJURIA: plaintiff deemed to have consented to the risk 3 requisites: (1) plaintiff had actual knowledge of the damage; (2) he understood an appreciated the risk from danger; (3) he voluntarily exposed himself to such risk. C. Last clear chance -negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff’s negligence -Last clear chance cannot apply when there are: 1) contractual relations, 2) joint tortfeasors, 3) concurrent negligence D. Independent Contractor: ER-EE relationship PROFESSIONAL SERVICES VS. AGANA F: Patient was operated upon to remove cancerous region of her colon + ovary as it was also infected. 2 pieces of gauze were left in the vagina of the patient which caused infection in the said area. Hospital argued that the physician was not an employee but a mere consultant/independent contractor of the hospital H: Apparent authority/holding out theory/doctrine of ostensible agency/agency by estoppel imposes liability, …not as a result of the reality of a contractual relationship, …but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or authority exists. -“The principal is bound by the acts of his agent with apparent authority which he knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. The question in every case is …the principal has …by his voluntary act …placed the agent in such a situation

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…that a person of ordinary prudence, conversant with business usage and the nature of the particular business, is justified in presuming that such an agent has authority to perform the particular act in question.” NOGALES v. CMC F: Forceps were used to extract the baby, and in the process, a piece of cervical tissue was torn. Patient died soon after. H: CMC liable, even if an independent contractor was liable GR: a hospital is not liable for the negligence of an independent contractorphysician X: “doctrine of apparent authority” where the physician is the “ostensible” agent of the hospital -the elements of an action under said doctrine are that: (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the alleged negligent individual was an employee/agent of the hospital (2) the hospital had knowledge of the acts creating the appearance of authority and acquiesce them (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. E. Res ipsa loquitur: requisites BATIQUIN v. CA F: Piece of rubber glove left in the ovary after a caesarean section was performed on the patient, causing an ovarian cyst. H: "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen in those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." -Doctrine does not dispense with requirement of proof of culpable negligence of defendant BUT a mere procedural convenience which recognizes prima facie negligence even W/O DIRECT PROOF RAMOS V. CA (wrongful intubation of anesthesia made patient comatosed) H: for Ramos Obiter: Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by the defendant's want of care.

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

- It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge. - Mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. Should prove the following (REQUISITES) 1. The accident is of a kind which ordinarily does not occur in the absence of someone's negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. REYES V. Sisters of Mercy Hospital (Typhoid case) H: Res Ipsa Loquitur is not a rigid/ordinary doctrine to be perfunctorily used BUT a rule to be cautiously applied, depending upon the circumstances of the case. -its application is restricted to situations in malpractice cases …where layman is able to say, …as a matter of common knowledge and observation, …that the consequences of professional care were not as such as would ordinarily have followed …if due care had been exercised. CANTRE V. SPS GO F: Droplight used to warm the mom and her baby caused a fresh gaping wound 2.5-3.5 inches in the inner portion of the mom’s left arm, which necessitated plastic surgery to be removed. H: In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury to justify the presumption of negligence on the part of the person who controls the instrument causing the injury. Elements: refer to Ramos v. CA F. Vicarious liability -a person is not only liable for the torts committed by himself, …but also for torts committed by others with whom he has a certain relationship and for whom he is responsible NOGALES V. CMC (piece of cervical tissue torn during caesarian operation) H: Vicarious liability presupposes an employer-employee relationship for which the control test is determining in assessing its existence. If there’s no EER, then hospital would not be liable. X: apparent authority

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(note however that in this case, CMC was held liable based on apparent authority and not on vicarious liability) G. Captain of the Ship: RAMOS v. CA (wrongful intubation case, as regard the relationship between the surgeon and anestheologist) As the so-called "captain of the ship," it is the surgeon's responsibility to see to it that those under him perform their task in the proper manner.

PART IV DNA AS EVIDENCE -DNA testing to prove guilt/innocence of accused I. What is DNA test? Other terms: *DNA typing *DNA fingerprinting *DNA profiling *genetic tests *genetic fingerprinting SCIENTIFIC BASIS: differences in genetic make-up/composition of individuals -genes composed of chemical substance = DNA

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

PEOPLE V. VALLEJO F: Brother of tutor of victim raped the girl. Blood type of suspect was “O” but the blood stains found on his clothes and the clothes of the victim were type “A”. Also, vaginal swabs from the victim contained DNA profile of victim as well as accused. H: Using totality of evidence rule, accused guilty beyond reasonable doubt. As to blood type: Argument of suspect that there was no direct determination of victim’s blood type as “A” has no merit since it is very probable that the blood of a victim, who died of bloody death, would produce bloodstains on her clothing. As to DNA: Suspect’s contention that prosecution failed to prove that there was no contamination of the DNA sample (as the specimens were already soaked in smirchy waters) does not lie: Each person’s DNA profile is distinct and unique. -Evidence Sample: material collected from the scene of the crime/from the victim’s body -Reference Sample: taken from suspect and victim …the evidence sample and reference sample are then matched in DNA testing *3 possible results from DNA test: 1. EXCLUSION: samples different: must have originated from different sources 2. INCONCLUSIVE: not possible to be sure whether the samples have similar DNA types 3. INCLUSION: could have originated from the same source – analyst now proceed to determine the statistical significance of the similarity [*Ma’am Avena: this is the 1s time that DNA test is admitted as object evidence – 2002!] PEOPLE V. YATAR F: Uncle in law raped niece in mother-in-law’s house, then killed her by stabbing her multiple times on the stomach (causing her intestines to protrude…eeew). Semen of the accused discovered inside the vaginal canal of the victim, which was subject to DNA testing. DNA from the semen found to be a match with DNA from blood sample taken from accused. Constitutionality of DNA evidence. H: re: DNA testing: -advanced as a uniquely effective means to link a suspect to a crime/exonerate a wrongly accused suspect, where biological evidence has been left; a fertile source of both inculpatory and exculpatory evidence. DNA: a molecule that encodes the genetic information in all living organisms -the same in each cell, does not change in person’s lifetime -no two individuals have the same DNA, X: identical twins -DNA evidence obtained through PCR (Polymerase Chain Reaction) testing and utilizing STR (Short Tandem Repeat) analysis could be appreciated as

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relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology -taking of blood samples from the accused is not included in the right against self-incrimination since the right against self-incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt AND DOES NOT APPLY where evidence sought to be excluded is not an incrimination but PART OF OBJECT EVIDENCE. HERRERA V. ALBA F: 13 y.o. Alba wanted his father to recognize and support him through petition for recognition. Father denied that he was the biological father, denying physical contact from mother. Alba then moved to direct the taking of DNA paternity testing, which was opposed by the “father”, which was granted. H: DNA test is a valid probative tool to determine filiation Paternity Test using DNA: 1. forensic scientist looks at number of variable regions in an individual to produce a DNA profile. 2. DNA profiles of the mother and the child examined to determine which half of the child’s DNA was inherited from mom 3. examine alleged father’s DNA profile to ascertain whether his DNA profile matches that of the child 4. if the comparison reached a 99.9% minimum value of probability of paternity inclusion (W), then there is a refutable presumption of paternity, to be subjected to Vallejo standards *The policy of the Family Code to liberalize the rule on the investigation of paternity and filiation of children, especially of illegitimate children, is without prejudice to the right of the putative parent to claim his or her own defenses. Where the evidence to aid this investigation is obtainable through the facilities of modern science and technology, such evidence should be considered subject to the limits established by the law, rules and jurisprudence. II. Initial reaction of the Court to DNA Evidence PE LIM V. CA (1997) F: Pe Lim was being asked to recognize his lovechild with her former common-law wife whom he met in a night club. Pe Lim denied paternity, saying that the mother and he were just friends and that the mother left for Japan and returned pregnant. H: The totality of evidence showed by mother proves that Pe Lim was indeed the father. HOWEVER, with regards DNA: “DNA, being a relatively new science, has not yet been accorded official recognition by our courts. Paternity will still have to be resolved by such conventional evidence as the relevant incriminating acts, verbal and written by the putative father. TIJING V. CA (2001)

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

F: Son of laundry woman kidnapped by customer. 4 years later, laudry woman found out that the common-law husband of her customer died. When she went to the wake, she found her son with her customer. H: The child with her customer is her son, based on the resemblance between the minor son and the mother. Also, Angelita (the customer) and her common law husband were already proven to be unable to bear child + records failed to prove that the child was theirs. Re DNA: “Parentage will still be resolved using conventional methods unless we adopt the modern and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test for identification and parentage testing…Of course, being a novel scientific technique, the use of DNA test as evidence is still open to challenge. Eventually, as the appropriate case comes, courts should not hesitate to rule on the admissibility of DNA evidence… Courts should apply the results of science when competently obtained in aid of situations presented, since to reject said results is to deny progress. III. Admissibility and Probative Value PEOPLE V. VALLEJO (DNA from vaginal swabs alleged to be contaminated because of the smirchy waters in the “compuerta” Re: Admissibility and probative value: Court should consider, among other things: 1. how the samples were collected 2. how the samples were handled 3. the possibility of contamination 4. whether the proper standards and procedures were followed in conducting the tests 5. the qualification of the analyst who conducted the tests Obiter in HERRERA V. ALBA: In Vallejo, the probative value AND NOT THE ADMISSIBILITY was now the issue due to “official recognition” accorded to DNA analysis. IV. DNA Evidence as Admissible in SC PEOPLE V. YATAR (semen in vaginal canal and blood sample from accused have matching DNA profiles. Uncle raped niece, stabbed in stomach, intestines protruded…eeew… Constitutionality of DNA evidence) *”Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters” -DNA evidence obtained through PCR testing and utilizing STR analysis could be appreciated as relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology IN RE: THE WRIT OF HABEAS CORPUS FOR REYNALDO DE VILLA F: Uncle (na naman?!), who was allegedly 67 y.o. then, was said to have raped his 12 y.o. niece by affinity, resulting to the birth of a baby girl. Uncle

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convicted in 1994. Now (2004?), son of the convicted uncle, using DNA evidence showing that DNA profile of alleged “sister” did not matched the profile of dad, filed this petition to free dad H: Dad was proven to be a rapist, and the victim’s pregnancy and resultant childbirth are IRRELEVNT in determining WON there was rape. Pregnancy of the victim NEVER was an element of rape. -DNA evidence showing incompatibility between DNA profile of the child and the putative father does not discharge the convicted putative father of the crime of rape. -DNA evidence did not fall within the statutory/jurisprudential definition of “newly discovered evidence” as such evidence was already available during the time of trial. Lack of knowledge of the existence of DNA testing speaks of negligence either on the accused’ party or of the counsel. TECSON V. COMELEC F: FPJ’s nationality was contestested, it being that he came from a Spanish father and American mother, so therefore, he is not a natural-born citizen. If ever his father became a Filipino citizen, his father’s marriage to his mom was said to be illegitimate, therefore, FPJ was an illegitimate son and should follow the nationality of the mom. H: FPJ was a Filipino Citizen, jus sanguinis Grandpa probably benefited from “en masse Filipinization” that 1902 Philippine Bill had effected. This means grandpa became a Filipino, and this citizenship extended to son, Allan Poe. So Allan Poe should be considered a Filipino citizen. …1935 Consti (applicable when FPJ was born) confers citizenship to all persons whose fathers are Filipino citizens regardless if legitimate/illegit! Re DNA: binanggit lang, no DNA evidence presented naman – cited Tijing v. CA …In case proof of filiation or paternity would be UNLIKELY to satisfactorily establish or would be difficult to obtain, DNA testing, which examines genetic codes obtained from body cells of the illegitimate child and any physical residue of the LONG DEAD PARENT could be resorted to. A positive match would clear up filiation or paternity. PEOPLE V. JANSON F: 6 masked men robbed Alcantara family then took turns raping the 13 year old daughter Maritess. One of the suspects made an extrajudicial confession allegedly admitting raping Maritess. RTC found them guilty. H: Inconsistencies in testimony of victim regarding positive identification of the suspects (when the suspects cannot be identified as they wore masks) and the inadmissible extrajudicial confession of Janson would not be enough to convict Janson of guilt beyond reasonable doubt. VICTIMS SHOULD HAVE OBTAINED DNA EVIDENCE from the seminal fluid found in the vagina of the victim, NOT UNCERTAIN TESTIMONIES!

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Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

AGUSTIN VS. CA F: Herrera v. Alba case all over again. Ma and Pa had affair which resulted to child. Pa even shouldered hospital expenses for birth. Then Pa refused to give support so Ma and child petitioned for support. Main issue is WON court could order DNA paternity testing in support proceeding. H: Court could order DNA paternity testing. Constitutionality of compulsory DNA testing and the admissibility of the results as evidence already upheld in Yatar v. CA. No violation of right vs self-incrimination as DNA evidence is object evidence, not testimonial evidence which is sought to be incriminated. Nor was there violation of right to privacy. In Ople v. Torres (National ID System), it was held that the right to privacy does not bar all incursions into individual privacy. The right is not intended to stifle scientific and technological advancements that enhance public service and the common god. Intrusions into the right must be accompanied by proper safeguards that enhance public service and the common good. HERRERA V. ALBA F: Similar to Agustin v. CA. Paternity case H: The policy of the Family Code to liberalize the rule on the investigation of paternity and filiation of children, especially of illegitimate children, is without prejudice to the right of the putative parent to claim his or her own defenses. Where the evidence to aid this investigation is obtainable through the facilities of modern science and technology, such evidence should be considered subject to the limits established by the law, rules and jurisprudence. PEOPLE V UMANITO (2007) F: Accused appealed conviction of crime of rape, petitioned the court for the conduct of DNA testing to determine WON the child borne by the victim was his. H: Guilt of Umanito to be determined through the result of the DNA test. With the advance in genetics and the availability of new technology, it can now be determined with reasonable certainty whether appellant is the father of the child. If he is not, his acquittal may be ordained. -1st known application of the New Rule on DNA Evidence (took effect Oct 15, 2007) V. When DNA evidence is NOT NECESSARY -where there are other evidence to prove the guilt beyond reasonable doubt of the accused ANDAL VS. PEOPLE F: Petition for habeas corpus (similar to In re De Villa) wherein the convicts, who were found to have raped victim and were about to be executed for death, were now requesting that DNA test be conducted to compare the semen samples found in the victim with samples from them.

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H: Eye-witness identification already so no need for DNA test. DNA testing unnecessary/forgotten evidence too late to consider now. VI. Probative value of DNA Analysis as Evidence VALLEJO STANDARD (BROTHER OF TUTOR RAPED TUTEE. SMIRCHED SAMPLES): Court should consider, among other things: 1. how the samples were collected 2. how the samples were handled 3. the possibility of contamination 4. whether the proper standards and procedures were followed in conducting the tests 5. the qualification of the analyst who conducted the tests + People v. Umanito (1st case where Rules on DNA Evidence of 2007 was used) 6. proper chain of custody in handling the samples submitted by the parties 7. that the samples be collected by a neutral 3rd party 8. the tested parties are appropriately identified at their sample collection appointments 9. the samples are protected with tamper tape at the collection site 10. that all persons in possession thereof at each stage of testing thoroughly inspected the samples for tampering and explained his role in the custody of the samples and acts he performed in relation thereto. VIII. DNA examination and right to self-incrimination PEOPLE V. YATAR (DNA from blood sample from accused and seminal fluid from victim’s vagina matched. Blood sample allegedly forced from accused. Eeew case) H: taking of blood samples from the accused is not included in the right against self-incrimination since the right against self-incrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt AND DOES NOT APPLY where evidence sought to be excluded is not an incrimination but PART OF OBJECT EVIDENCE. HERRERA VS. ALBA (Paternity case; putative father alleges that compulsory DNA testing is against his right vs. self-incrimination) H: Right to self-incrimination is just a prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from a defendant, NOT an inclusion of evidence taken from the body when it may be material. VIII. Rules on DNA Evidence ESTATE

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OF

ROGELIO ONG V. DIAZ

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

F: mom and putative father lived-in and conceived minor child now petitioning for support. Putative father denied being father, though admitted that he had actual sexual relations with mother. Putative father offered to submit self to DNA testing but died H: Death of the source of the biological sample is not a bar for DNA testing -Under the New Rules on DNA Testing: DNA Testing: verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from 2 or more distinct biological samples originates from the same person (direct identification_ or if the biological samples originate from related persons (kinship analysis) …Under Section 4, an appropriate court may order the conduct of DNA testing motu proprio or on application of any person who has legal interest in the matter in litigation BIOLOGICAL SAMPLE: any organic material originating from a person’s body, even if found in inanimate objects, that is susceptible to DNA testing. Includes: *blood *saliva *body fluids *tissues *hairs *bones …so as long as any of these biological samples may be obtained from Rogelio Ong, DNA test may be conducted

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DNA QUIZ TIP Special Review 1. case of HERRERA V. ALBA: rules in proving filiation *four significant procedural aspects of a traditional paternity action 1. prima facie case: that something happened between the two putative parents

2. 3. 4.

affirmative defenses: that the putative mother had sexual relations with other men or incapability of sexual relations presumed legitimacy (in case putative parents are married and child born during marriage) physical resemblance

*Laws establishing Filiation 172 and 174 FC: (1) The record of birth appearing in the civil register or a final judgment; or (2) An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned. In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) The open and continuous possession of the status of a legitimate child; or (2) Any other means allowed by the Rules of Court and special laws. + Rules on Evidence: PEDIGREE RULE 130 SEC. 39. Act or declaration about pedigree.—The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word “pedigree” includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. SEC. 40. Family reputation or tradition regarding pedigree.—The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree.

Blood testing: conclusive merely on the NON PATERNITY of the Father DNA typing simply means determining the “polymorphic loci.”

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

five (5) techniques to conduct DNA typing 1. RFLP (restriction fragment length polymorphism); 2. “reverse dot blot” or HLA DQ a/Pm loci : used in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; 3. mtDNA process; 4. VNTR (variable number tandem repeats); 5. PCR-([polymerase] chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported theoretical error rate of less than one (1) in a trillion.

Paternity Test using DNA: 1. forensic scientist looks at number of variable regions in an individual to produce a DNA profile. 2. DNA profiles of the mother and the child examined to determine which half of the child’s DNA was inherited from mom 3. examine alleged father’s DNA profile to ascertain whether his DNA profile matches that of the child 4. if the comparison reached a 99.9% minimum value of probability of paternity inclusion (W), then there is a refutable presumption of paternity, to be subjected to Vallejo standards -frye, schwartz, daubert Frye v. U.S.: F: the trial court convicted Frye of murder. Frye appealed his conviction to the Supreme Court of the District of Columbia. During trial, Frye’s counsel offered an expert witness to testify on the result of a systolic blood pressure deception test (This form of lie detector test asserts that “blood pressure is influenced by change in the emotions of the witness, and that the systolic blood pressure rises are brought about by nervous impulses sent to the sympathetic branch of the nervous system.”) made on defendant. H: affirmed Frye’s conviction and ruled that “the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made.” The Frye standard of general acceptance states as follows: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. State v. Schwartz F: Schwartz was charged with stabbing and murder. Bloodstained articles and blood samples of the accused and the victim were submitted for DNA testing to a government facility and a private facility. The prosecution introduced the private testing facility’s results over Schwartz’s objection. One of the issues brought before

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the state Supreme Court included the admissibility of DNA test results in a criminal proceeding. H (modification of the Frye standard): While we agree with the trial court that forensic DNA typing has gained general acceptance in the scientific community, we hold that admissibility of specific test results in a particular case hinges on the laboratory’s compliance with appropriate standards and controls, and the availability of their testing data and results. Daubert v. Merrell Dow Pharmaceuticals, Inc. F: a product liability case where both the trial and appellate courts denied the admissibility of an expert’s testimony because it failed to meet the Frye standard of “general acceptance.” H (further modified Frye standard) : in federal trials, the Federal Rules of Evidence have superseded the Frye standard. Daubert cautions that departure from the Frye standard of general acceptance does not mean that the Federal Rules do not place limits on the admissibility of scientific evidence. Rather, the judge must ensure that the testimony’s reasoning or method is scientifically valid and is relevant to the issue. Admissibility would depend on factors such as: (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; and (5) whether the theory or technique is generally accepted in the scientific community. Kumho Tires Co. v. Carmichael H: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

2. Case of Vallejo - probative value of DNA testing Court should consider, among other things: 1. how the samples were collected 2. how the samples were handled 3. the possibility of contamination 4. whether the proper standards and procedures were followed in conducting the tests 5. the qualification of the analyst who conducted the tests -purpose of DNA testing from Vallejo: The purpose of DNA testing is to ascertain whether an association exists between the evidence sample and the reference sample. The samples collected are subjected to various chemical processes to establish their profile.

cha.mendoza

Medical Jurisprudence Reviewer

Prof. Grecia-Pascual _

3. Study Cases and ratio for each case (multiple choice 'to usually) - mam will state a doctrine tapos you choose among the cases listed 4. Rules on DNA Evidence (this is very important, mam got most of the exam questions here, so be sure to memorize: section 3: Definition of terms

a)

Biological sample means any organic material originating from a person�s body, even if found in inanimate objects, that is susceptible to DNA testing. This includes blood, saliva and other body fluids, tissues, hairs and bones;

b)

DNA means deoxyribonucleic acid, which is the chain of molecules found in every nucleated cell of the body. The totality of an individual�s DNA is unique for the individual, except identical twins;

c)

DNA evidence constitutes the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples; DNA profile means genetic information derived from DNA testing of a biological sample obtained from a person, which biological sample is clearly identifiable as originating from that person; DNA testing means verified and credible scientific methods which include the extraction of DNA from biological samples, the generation of DNA profiles and the comparison of the information obtained from the DNA testing of biological samples for the purpose of determining, with reasonable certainty, whether or not the DNA obtained from two or more distinct biological samples originates from the same person (direct identification) or if the biological samples originate from related persons (kinship analysis); and Probability of Parentage means the numerical estimate for the likelihood of parentage of a putative parent compared with the probability of a random match of two unrelated individuals in a given population.

d) e)

f)

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a. Order, where appropriate, that biological samples be taken from any person or crime scene evidence; b. Impose reasonable conditions on DNA testing designed to protect the integrity of the biological sample, the testing process and the reliability of the test results, including the condition that the DNA test results shall be simultaneously disclosed to parties involved in the case; and c. If the biological sample taken is of such an amount that prevents the conduct of confirmatory testing by the other or the adverse party and where additional biological samples of the same kind can no longer be obtained, issue an order requiring all parties to the case or proceedings to witness the DNA testing to be conducted. An order granting the DNA testing shall be immediately executory and shall not be appealable. Any petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order. The grant of DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof.

section 4: application of DNA Testing Order - list down the process (process...)

SEC. 4. Application for DNA Testing Order. The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following: (a) A biological sample exists that is relevant to the case; (b) The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons; (c) The DNA testing uses a scientifically valid technique; (d) The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and (e) The existence of other factors, if any, which the court may consider as potentially affecting the accuracy or integrity of the DNA testing. Sec. 5. DNA Testing Order. If the court finds that the requirements in Section 4 hereof have been complied with, the court shall

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