POLYTECHNIC UNIVERSITY OF THE PHILIPPINES COLLEGE OF BUSINESS BACHELOR IN OFFICE ADMINISTRATIONMajor in Corporate Transcription

In partial fulfillment For the requirements In Medical Procedures with Practicum and Laboratory

Submitted By: Joziel Erica C. Roselo Jenny L. Cayonte Mariel M. Granada Anna Feliza N. Pascual Noriezhen John Basilio Frances Guada Jacinto Cristelle Mendoza Mary Rose S. Ticala BOA CT 3-3D

Presented to: Ms. Jessie I. Quierrez

July 26, 2012

Table of contents
Doctor and the law

I. II. III. IV. V.

Doctor as a complainant Doctor as a plaintiff Doctor as witness Vocabulary Words References

DOCTOR AS A COMPLAINANT

Republic act 2382 ARTICLE III THE BOARD OF MEDICAL EXAMINERS; REGISTRATION OF PHYSICIANS

Section 22. Administrative investigations. In addition to the functions provided for in the preceding sections, the Board of Medical Examiners shall perform the following duties: (1) to administer oath to physicians who qualified in the examination; (2) to study the conditions affecting the practice of medicine in all parts of the Philippines; (3) to exercise the powers conferred upon it by this article with the view of maintaining the ethical and professional standards of the medical profession; (4) to subpoena or subpoena duces tecum witnesses for all purposes required in the discharge of its duties; and (5) to promulgate, with the approval of the Commissioner of Civil Service, such rules and regulations as it may deem necessary for the performance of its duties in harmony with the provisions of this Act and necessary for the proper practice of medicine in the Philippines.

Administrative investigations may be conducted by not less than four members of the Board of Medical Examiners; otherwise the proceedings shall be considered void.

The existing rules of evidence shall be observed during all administrative investigations. The Board may disapprove applications for examination or registration, reprimand erring physicians, or suspend or revoke registration certificates, if the respondents are found guilty after due investigations.

Section 23. Procedure and rules. Within five days after the filling of written charges under oath, the respondent physician shall be furnished a copy thereof, without requiring him or her to answer the same, and the Board shall conduct the investigation within five days after the receipt of such copy by the respondent. The investigation shall be completed as soon as practicable.

Section 24. Grounds for reprimand, suspension or revocation of registration certificate. Any of the following shall be sufficient ground for reprimanding a physician, or for suspending or revoking a certificate of registration as physician:

(1) Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude;

(2) Immoral or dishonorable conduct;

(3) Insanity;

(4) Fraud in the acquisition of the certificate of registration;

(5) Gross negligence, ignorance or incompetence in the practice of his or her profession resulting in an injury to or death of the patient;

(6) Addiction to alcoholic beverages or to any habit forming drug rendering him or her incompetent to practice his or her profession, or to any form of gambling;

(7) False or extravagant or unethical advertisements wherein other things than his name, profession, limitation of practice, clinic hours, office and home address, are mentioned.

(8) Performance of or aiding in any criminal abortion;

(9) Knowingly issuing any false medical certificate;

(10) Issuing any statement or spreading any news or rumor which is derogatory to the character and reputation of another physician without justifiable motive;

(11) Aiding or acting as a dummy of an unqualified or unregistered person to practice medicine;

(12) Violation of any provision of the Code of Ethics as approved by the Philippine Medical Association.

Refusal of a physician to attend a patient in danger of death is not a sufficient ground for revocation or suspension of his registration certificate if there is a risk to the physician's life.

Section 25. Rights of respondents. The respondent physician shall be entitled to be represented by counsel or be heard by himself or herself, to have a speedy and public

hearing, to confront and to cross-examine witnesses against him or her, and to all other rights guaranteed by the Constitution and provided for in the Rules of Court.

Section 26. Appeal from judgment. The decision of the Board of Medical Examiners shall automatically become final thirty days after the date of its promulgation unless the respondent, during the same period, has appealed to the Commissioner of Civil Service and later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the case, or may file in court a petition for certiorari.

Section 27. Reinstatement. After two years, the Board may order the reinstatement of any physicians whose certificate of registration has been revoked, if the respondent has acted in an exemplary manner in the community wherein he resides and has not committed any illegal, immoral or dishonorable act. Article IV PENAL AND OTHER PROVISIONS

Section 28. Penalties. Any person found guilty of "illegal practice of medicine" shall be punished by a fine of not less than one thousand pesos nor more than ten thousand pesos with subsidiary imprisonment in case of insolvency, or by imprisonment of not less than one year nor more than five years, or by both such fine and imprisonment, in the discretion of the court.

Section 29. Injunctions. The Board of Medical Examiners may file an action to enjoin any person illegally practicing medicine from the performance of any act constituting practice of medicine if the case so warrants until the necessary certificate

therefore is secured. Any such person who, after having been so enjoined, continues in the illegal practice of medicine shall be punished for contempt of court. The said injunction shall not relieve the person practicing medicine without certificate of registration from criminal prosecution and punishment as provided in the preceding section.

Section 30. Appropriation. To carry out the provisions of this Act, there is hereby appropriated, out of any funds in the National Treasury not otherwise appropriated, the sum of twenty thousand pesos.

Section 31. Repealing clause. All Acts, executive orders, administrative orders, rules and regulations, or parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly.

Section 32. Effectivity. This Act shall take effect upon its approval: Provided, That if it is approved during the time when examinations for physicians are held, it shall take effect immediately after the said examinations: Provided, further, That section six of this Act shall take effect at the beginning of the academic year nineteen hundred sixty to nineteen hundred sixty-one, and the first paragraph of section seven shall take effect four years thereafter.

Approved: July 1959

DOCTOR AS A PLAINTIFF
Doctors as a Plaintiff A plaintiff ( in legal shorthand), also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit (also known as an action) before a court. By doing so, the plaintiff seeks a legal remedy, and if successful, the court will issue judgment in favor of the plaintiff and make the appropriate court order,

PROOF OF MEDICAL NEGLIGENCE

In a medical negligence case, the law requires the plaintiff to show the following things in order to recover a verdict:

(1) That there is a standard of care and skill expected of the average medical practitioner acting under the circumstances involved in the case.

(2) That the defendant physician failed to meet this established standard of care applicable.

(3) That the defendant physician's failure to meet this standard of care caused the injury to the patient.

(4) Application of the doctrine of res ipsa loquitur ("the thing speaks for itself").

Plaintiff v. Doctor, et al. (No. CIV-94-1600-T USDC WD Oklahoma)

Plaintiff v. Doctor offers a novel and effective use of expert testimony for the defense of medical malpractice cases. The defense introduced expert forensic psychiatric testimony with respect to:

a.) Medical decision making under conditions of uncertainty; b.) The distinction between informed consent and informed choice; c.) motivation for memory revision.

SAMPLE CASE:

Here is a story of a young woman who was a plaintiff against the Doctor that happened is her physician.

The plaintiff was a young woman suffering from chronic pelvic pain. After a period of unsuccessful attempts to control the pain with medications, the defendant

obstetrician/gynecologist performed a hysterectomy.

The plaintiff's and defendant's testimony differed as to how this decision was reached and whether it reflected the plaintiff's wishes. In the course of the surgery an embryo of one month's gestation was discovered and, as a necessary consequence of the surgery, aborted.

The plaintiff subsequently brought an action for medical malpractice, charging the defendant with performing an unwanted procedure, causing an unwanted abortion, and sexual misconduct. At the request of the defense, Harold J. Bursztajn, M.D. performed a court-ordered Rule 35 examination of the plaintiff. Subsequently, the charge of sexual

misconduct was dropped. However, the case went to trial on the other two charges. A unanimous jury verdict for the defense was returned.

Dr. Bursztajn testified for the defense as an expert witness in forensic psychiatry, medical decision making, and informed consent. His testimony included:

a constructive use of decision analysis to retrace the decision-making process engaged in by the physician and patient and thereby to counter the hindsight bias introduced by the plaintiff;

a forensic analysis of the informed-consent process engaged in by the physician and patient, which provided a psychological autopsy of the decision.

Specifically, Dr. Bursztajn testified:

that the physician and patient had appropriately considered the risks and benefits of four possible courses of action: medical treatment, psychiatric treatment, surgery, and no treatment;

that the patient had been competent to give informed consent and had in fact done so;

that the physician's actions met the standard of care in the areas of medical decision making and informed consent and were responsive to the patient's wishes as expressed at the time;

that a referral to a psychiatrist for psychogenic pain, which the patient in retrospect claimed to have sought, would not likely have been productive in view of the patient's defensive concealment of important aspects of her medical and personal history;

That, as a result of early developmental trauma, the patient had grown up feeling victimized. As a consequence, she had difficulty taking responsibility (which she equated with taking blame). Thus, although there was evidence that she had made an informed choice, she subsequently sought to disavow the choice she had made and automatically revised her memory of the informed consent process to fit her long-standing secret identity as a victim.

The plaintiff used the abortion case against the Doctor:

Abortion is defined as the termination of pregnancy by the removal or expulsion from the uterus of a fetus or embryo prior to viability. An abortion can occur spontaneously, in which case it is usually called a miscarriage, or it can be purposely induced. The term abortion most commonly refers to the induced abortion of a human pregnancy.

Current laws pertaining to abortion are diverse. Religious, moral, and cultural sensibilities continue to influence abortion laws throughout the world. The right to life, the right to liberty, the right to security of person, and the right to reproductive health are major issues of human rights that are sometimes used as justification for the existence or absence of laws controlling abortion.

Article II Section 12 of the 1987 Philippine Constitution

The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. It shall equally protect the life of the mother and the life of the unborn from conception.

The act is criminalized by the Revised Penal Code of the Philippines, which was enacted in 1930 and remains in effect today. Articles 256, 258 and 259 of the Code mandate imprisonment for the woman who undergoes the abortion, as well as for any person who assists in the procedure, even if they be the woman's parents, a physician or midwife. Article 258 further imposes a higher prison term on the woman or her parents if the abortion is undertaken "in order to conceal [the woman's] dishonor".

There is no law in the Philippines that expressly authorizes abortions in order to save the woman's life; and the general provisions which do penalize abortion make no qualifications if the woman's life is endangered. It may be argued that an abortion to save the mother's life could be classified as a justifying circumstance (duress as opposed to self-defense) that would bar criminal prosecution under the Revised Penal Code. However, this has yet to be adjudicated by the Philippine Supreme Court.

Proposals to liberalize Philippine abortion laws have been opposed by the Catholic Church, and its opposition has considerable influence in the predominantly Catholic country. However, the constitutionality of abortion restrictions has yet to be challenged before the Philippine Supreme Court.

DOCTOR AS A WITNESS
The Different Capacities in Which the Doctor Maybe Called To Testify

There are three sets of circumstances under which a doctor may be called as a witness, and the rights, privileges and duties of the doctor will be found to vary:

1. Where the doctor is possessed of information relevant to some issue on the case, which information he/she acquired in order than a professional capacity.

2. Where the doctor has treated a patient and he is called upon to testify as to the physical condition of the patient, treatment administered, etc. 3. Where the doctor has never treated the person whose bodily condition is in issue but is called as an expert to assist the court in arriving at a determination of a scientific fact as to the bodily condition of such person, the expectation to his recovery, etc.

Role of a medical expert witness

*The medical expert offers an opinion on the facts of the case.

This can be based on written notes and documents, or through an examination of the patient. The medical expert is not the treating doctor.

*While their opinion is provided at the request of one or other of the parties involved in the claim, the duty of the medical expert witness is to assist the court rather than the party who instructs them.

They can be summoon by both parties but their opinion must not be biased because their main objective is to give essential information that can help the court to clarify the case. *The medical experts report or comments must be independent, objective and unbiased. The doctors expertise helps the court decide the matter before it, and may be used to diminish the other sides case. It can lead to appearing as a witness in court and having the opinion tested by cross examination.

*The role can vary from considering a breach of duty in a clinical negligence claim, offering opinions on liability and causation, to examining a claimant and discussing their treatment and what could be offered.

*A medical expert witness should not be confused with a professional witness. The former provides an expert medical opinion on a case, whereas the latter is requested to testify solely on the observed facts of a case.

VOL. XXXVIII, No. 3 The Doctor on the Witness Stand 99

4. Our general trend has been tight abdominal closure wherever possible and the routine use of sulfonamides intra abdominally. Recently, however, we have had reasons to modify this procedure.8

5. Whenever it seems that drains must of necessity be used our results would indicate that cigarette drains are to be preferred. 6. Non-surgical intervention in generalized peritonitis and drainage without removal of the appendix in abscess formation seem to be expedient according to our series, as well as others. 7. Where there have been acute complications the appendicitis was considered and treated as a primary factor, the complication being treated along with the appendicitis.

EVERY practicing physician in this state is a potential witness and is subject to subpoena before its judiciary tribunals. Whether he likes it or not, sooner or later he will be hauled into court to give testimony in connection with some case he had examined or treated. Some doctors dread the ordeal, a great many resent the imposition and practically all do their best to discourage the parties in litigation from calling them to the witness stand.

However, if serious consideration is given this matter, it becomes quite obvious that there is no reason for dreading it or calling it an ordeal. Furthermore, it is the doctor's moral 'obligation to his patient to willingly and cheerfully p: esent all the facts in a case to enable his injured patient to obtain what he is legally entitled to under the law. It is unethical and even immoral for the doctor to attempt to evade his duty in connection with a contested case in which he was the attending physician.

The reason the average doctor assumes an antagonistic attitude toward medical testimony is because he so frequently becomes the object of a100 JOURNAL OF THE NATIONAL MEDICAL ASSOCIATION MAY, 1946 vicious attack on crossexamination by an arrogant and impertinent lawyer. I have seen and heard medical witnesses attacked as to their knowledge, ability, honesty, partiality and credibility. I have seen them at times present such a sorry spectacle that I have almost been ashamed of being one myself.

How is the average doctor to fulfill his duties to his patients and at the same time escape the indignities and discomfiture on cross-examination? How is he to impress the court and jury with his honesty and impartiality? How is he to discourage the unjustified innuendos and cruel insinuations and at the same time help his patient and justice?

The answer is "Be prepared". Keep careful records-most cases are tried long after the injury took place and the course of treatment terminated. In such cases the doctor will have more or less forgotten the subject matter of his testimony as the trial approaches. No court or jury would expect a doctor to rely entirely upon his memory for the recital of all the facts: n a given case unless it were of an extremely unusual or outstanding character. Since the average case is not outstanding and since he treats a good many other cases, he has to rely on his records or memoranda to refresh his-memory. It is best if they are in his own handwriting or dictated by him; however, there is no legal limitation as to the type or

character of evidence that may be used to refresh the memory of a witness. "Anything which will refresh the recollection of a witness may be looked at by him for that purpose, although in itself it is not evidential." (Hinkelsman v. Pasteelnick Atl. 441.)

CONTENTS OF RECORDS

1. Detailed history of the occurrence and mechanics of the injury.

2. Where and under what circumstances first examination was made.

3. Chief complaints or subjective symp.oms.

4. Physical examination and objective findings.

5. Persons present at time of examination.

6. Clinical progress notes, with special attention to pain and suffering.

7. X-rays and laboratory findings.

8. Pre-existing ailments or congenital anomalies.

9. Consultations-when, where and for what purposes.

10. Medical fees-amount collected and balance due.

11. Permanency of injuries and future effects.

Although physicians and surgeons in general are experts, and their opinions are admissible in evidence upon questions embraced in the practice of their professions, yet it is inadvisable for them to render an opinion as to the permanency of injury or disease without mature deliberation or medical consultation. The practice of insurance companies in submitting forms including a question as to permanency of the injury very frequently results in embarrassment for the attending physicians on the witness stand. This practice although not intended for such purpose, takes advantage of the weakness of human nature and personal egotism on the part of the physicians in obtaining in the hurried report an ultimate disability in a given accidental injury. The nature pride in his professional ability at times impel him to prognosticate little or no permanent incapacity in spite of the fact that by the very nature of the injury considerable permanent damage I bound to result in spite of the best of treatment This results in embarrassment because when the doctor goes over the injured carefully and find the residual damage and testifies to same, he I immediately confronted by his old report station no permanent disability will result from the injury.

I remember hearing one doctor testify in behalf of the patient with a lung injury to the effect that he would perform a lobectomy without permanent disability in spite of infection and pleural and pulmonary destruction.

In any case involving serious injury it is advisable for the general practitioner to have the benefit of a consultation for his own as well as the patient's protection. This will be of benefit in instituting proper treatment, clarifying the pathology and indicating the nature

of an extent of permanent injury, thus avoiding embarrassing questions on the witness stand.

To avoid discomfiture on the witness stand, the general practitioner who had been in charge of litigated traumatic case and who wishes to give opinion evidence should keep abreast of the medical literature and familiarize himself at least with the normal anatomy and physio'ogy of the

VOL. XXXVIII, No. 3 The Doctor on the Witness Stand 101 human body. This is particularly true of osteology and kinesiology. He should not only be familiar with the various types of motion in each individual joint, but also what muscles or group of muscles perform the various motions and what nerve or nerves control them. If limitation of motion is found he should be able to describe its average extent and degree of deviation from the normal.

As a rule the amount of incapacity is determined by a comparison with the opposite normal mate. However, very frequently this method is not available because of the absence or a previous injury to the mate. Furthermore some motions such as hyperextension of the spine have no mate for comparison. It is essential, therefore, for the medical witness to know the neutral position and normal range of motion of the various joints, and by measuring the degree of motion in the case at issue figure out the amount or percentage of deviation.

The prevailing impression is that the criterion of disability in joint injuries is the amount of restriction of motion. It is erroneous because very frequently severe and permanent disability results from excessive or abnormal motion. An injury to the crucial or lateral ligaments of the knee joint may result in a greater range of motion in the horizontal axis or may cause abnormal lateral mobility with consequent instability. An injury to the ankle may not restrict dorsi and plantar flexion but may give abnormal inversion or eversion in the upper ankle joint. In all of these instances there is considerable disability without involving restriction of motion.

I feel that no doctor should attempt to go on the witness stand and render opinion evidence without thoroughly believing in his own interpretation of his findings in spite of what other expert opinion may be. Furthermore, every medical witness should be ready and willing to demonstrate his findings outside the courtroom should he be called upon to do so. This procedure is at times permissible and advisable because of the diametrically opposite opinion by doctors of the opposing parties. It is well to bear this in mind when examining the injured and note such findings as are demonstrable to a lay witness. These include atrophy, shortening, curvature and any loses.

SUMMARY

1. Fulfill your obligation to your patient by testifying in his behalf.

2. Avoid embarrassment and discomfiture on the witness stand by acting in a dignified manner. being prepared and giving an honest and impartial opinion.

3. Do not submit hasty reports without due deliberation; do not pass on permanent disability prematurely.

4. Obtain all possible aid in arriving at an accurate diagnosis and instituting adequate treatment; these include x-rays and laboratory findings.

5. Obtain the services of a consultant whenever the injury appears serious or permanent incapacity probable.

6. Above all keep detailed and accurate records and bring them to court when called upon to testify.

VOCABULARY WORDS:

CERTIORARI- writ of superior court to call up the records of an inferior court or body acting in a quasi-judicial capacity.

WRIT- is a formal written order issued by a body with administrative or judicial jurisdiction; in
modern usage, this body is generally a court. Warrants, prerogative writs and subpoenas are common types of writs but there are many others.

SUBPOENA- a writ commanding a person designated in it to appear in court under a penalty for failure.

SUBPOENA DUCES TECUM- a writ commanding a person to produce in court certain designated documents or evidence.

REFERENCES:
http://www.lectlaw.com/files/med35.htm

http://www.forensic-psych.com/articles/casePlaintiffvDoctor.php

http://en.wikipedia.org/wiki/Abortion

http://www.hospitaldr.co.uk/guidance/how-to-become-a-medical-expert-witness

1. Thorek, Max: Surgical Errors and Safeguards, ed. 4, Philadelphia, J. B. Lippincott Company, 1943. 2. Goodman, Max and' Silverman, Irving: Acute Appendicitis in Patients with the Common Contagious Disease, New England J. of Med., 228:533-542 (April 29) 1943. 3. Husband, C. W. and Schmitt, N. L.: Torsion of the Gallbladder Associated with Acute Appendicitis, J. of International College of Surgeons, 8:348-50 (July-August) 1945. 4. Coleman, W. G.: Appendiceal Coprolith Simulating Ureteral Calculus, J. of International College of Surgeons, 8:397-401 (Sept.-Oct.) 1945. 5. Graves, Gutrie Zoeklee: Errors in the Diagnosis of Acute Appendicitis, International Surgical Digest, 40:135-137 (Sept.) 1945.

6. King, H. Jackson: The Problem of Acute Appendicitis, A Survey covering four years, The Amer. J. of Surgery, New Series, 49:104-111 (July-Sept.) 1940. 7. Ochsner, Alton and Johnston, J. Harvey: Appendiceal Peritonitis, International Surgical Digest, 40: 131-135 (Sept.) 1945. 8. Herbert, Peter A. and Scaricaciottoli, Thomas M.: Diffuse Hepatic Necrosis Caused by Sulfadiazine, Archives of Pathology, 40:94-98 (Aug.) 1945. Abstracted (With reference to a similar case) Jefferson, Nelson C.: J. N. M. A., this issue.

9. The Doctor as a witness by John E. Tracy, A.B., LL.D, Ann Harbor, Michigan.
10. The Doctor as a witness by John E. Tracy, A.B., LL.D, Ann Harbor, Michigan.

11. Know your rights and how to make them work for you: Readers Digest P. 180-183

12. Professional Nusing in the Philippines (Eleventh Edition): Ronald M. Venzon, RN, MAN; Lydia M. Venzon, RN, MAN Ph.D, FPCHA P. 194-198