Liabilities of Hospitals

Definition of Hospital
Hospital means a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment and care of individuals suffering from illness, disease, injury or deformity, or in need of obstetrical or other medical and nursing care. The term hospital shall also be construed as any institution, building or place where there are installed beds, cribs, or bassinets for twenty-four hour use or longer by patients in the treatment of diseases, diseased-conditions, injuries, deformities or abnormal physical and mental state, maternity cases, and all institutions, such as those for convalescence, sanitaria or sanitarial care infirmities, nurseries, dispensaries and such other names by which they may be designated. (Hospital Licensure Act, Republic Act 4226) A hospital is primarily a service institution whose concern is to serve the patients the doctors and the public.

Primary Duties of a Hospital

1. To furnish a safe and well maintained building and ground

The ground must be spacious, well drained and free from hazards that may cause injury to the user. It must be located in an area where the hygiene and sanitation can be observed and properly maintained to insure safety and aseptic conditions.
2. To furnish adequate and safe equipments

The selection of equipment must be based on the purpose for which it is needed. It is not required that the instruments be the most modern and sophisticated. In fact, it is more risky to use automatic apparatus inasmuch as human element in their operation is eliminated. The equipment must be well maintained and always functional.
3. To exercise reasonable care in the selection of the members o the hospital staff

The governing board of the hospital must exercise care and diligence in the selection of the hospital must exercise care and diligence in the selection of the hospital staff, otherwise, it will be held vicariously liable for the acts of the employees.

Regulation of Hospitals
The Bureau of Medical Services (now the Bureau of Health and Medical Services) as a licensing agency and subject to the approval of the Secretary of Health, shall promulgate rules and regulations to implement the provisions of this Act (Republic Act 4226 or Hospital Licensure Act) (Sec. 15) It further provides that licensing agency is given the power and duty to make periodic inspection of all hospitals so as to check compliance with rules and regulations legally promulgated or

with the provision of the Act and to make recommendations to directors or administrators of hospitals for the correction of defects found during inspections. (Sec. 6 f) For proper enforcement of the rules and regulations, the Act provides that Any person, partnership, association, or corporation who establishes, operates, conducts, manages or maintains a hospital or hospital clinic within the meaning of this Act or violates any provision thereof shall be liable to a fine of not more than five hundred pesos for each subsequent offense, and each day that the hospital shall operate after the first conviction shall be considered a subsequent offense.
A. Two Types of Rules and Regulations in a Hospital

A.1) State Regulation of a Hospital The state may impose certain regulations in the establishment and management of a hospital in the interest of public health, safety and welfare. The regulation may include: 1. The minimum standard requirements for ground and building including facilities for ventilation, waste disposal, fire protection, drainage, congestion and pollution, and explosives and other hazards. It may include facilities for X-ray, laboratories, isolation, and disinfection. The requirements are amply specified in the Licensure Act. 2. It may provide for provisions for minimum number of equipment and supplies for certain number of bed patients and dispensary services. 3. The State may set standard qualifications of medical and paramedical staff members. 4. Strict supervision of the staff to assure accuracy and good result of treatments. 5. A system of continuing medical education so that the staff members will be abreast with the recent developments in diagnostic and management procedures. A.2) Self Regulation of a Hospital Both public and private hospitals have the right to promulgate rules and regulations in relation to the use of their facilities. A government hospital may not curtail the right of a duly licensed physician to use the facilities of the hospital, provided he complies with the basic rules concerning internal discipline and those designed to enhance better public service. A private hospital is given more leeway in making rules and regulations as regards selection of staff, qualification of physicians who can avail of the hospital facilities, patients to be admitted, etc., provided that such rules and regulations are not arbitrary, discriminatory, unreasonable, monopolistic, or contrary to law and public policy.
The hospital's right to make rules and regulations does not include the right to suspend or control the treatment of a patient by a duly licensed physician. (Albert v. Board of Trustees of Gogebic County Public Hospital 341 Mich. 344, 67 N.W. 2D 244 1954)

Duties of the Governing Board of a Hospital

1. To determine the polices o the hospital in relation to the community needs; 2. To see to it that the proper professional standards are maintained in the care of the sick;

3. To coordinate the professional interest of the hospital with the administrative, financial and community needs; 4. To direct the administrative personnel in order to carry out the policies; and 5. To provide adequate financing to secure sufficient income and to assure businesslike control of expenditures.

Liabilities of Hospitals for the Wrongful Acts of Their Agents or Employees

1. Government or Public Hospitals A state cannot be sued except when it consents. The immunity of the government from the official acts of its officers, agents and employees is based on the old English maxim The King could do no wrong. If the King who is sovereign was incapable of doing wrongful act, it is but natural that no liability could be imposed upon him. Basically, the main reason is that there can be no legal right against the authority that makes the law on which the right depends 1. Following the doctrine of immunity of the state from suit, a public or government hospital cannot be sued inasmuch as it is owned and controlled by the government. There are other arguments in favor of the doctrine of state immunity from being sued while there are also arguments to the contrary.
Pros Government funds should be spent for public purposes and must not be diverted to compensate for private injuries. Government funds must be devoted to protect the welfare of society and not to satisfy personal interests. Cons Since the public purpose (establishment of a hospital) involved injury-producing activity, the injury thus caused should be viewed as a part of the activity's funds to pay the costs of public enterprise even if payment is made to a private person.

If the government can be sued by the citizen, While control of government activity by private then public service would be hindered, and public tort litigation may be involved, no such thing is safety endangered and consequently, the citizen will involved in ordinary accident cases. have control, in the use and disposition of the means for proper administration of the government. Making the government liable in all its operation, The emabarassment and expenses incidental then it will lead to endless embarassment, difficulties to defending accident suits are also part of the just and losses which would be subversive to the public and social cost of operation that causes injuries and interest. have never stiffled comparable private enterprises. The government or state must not be sued because Though the government as an entity does not the government derived no profit from its activity profit from the enterprise yet the taxpaying public unlike a private enterprise. does. It is the taxpaying public which would bear the government tort liability.2

The modern rule has modified the non-liability of government hospital damage suit on account of the negligence of its employees or servants. The distinction is now drawn between 1. public hospital established for governmental function 2. public hospital established for proprietary function. a. Government Hospitals Which are Established to Perform Governmental Functions
1 Kawananakoa v. Polybank, 205 U.S. 349, 51 L. ed 384 2 Harper and James, The Law of Torts, Vol. 2, 1611 - 1612

One of the main functions of the government is to preserve the life and maintain the health of the people. The conservation of public health, treatment of the indigent, protection of the people form hazards, alleviation of sufferings , and treatment of diseases are some of the duties of the government. If the public hospital is established with such duties, the the hospital is immune from being sued inasmuch as it was established to perform governmental function. In the Philippines, practically all national government hospitals are established to perform governmental functions and therefore cannot be sued for damage except when the government consents. b. Government Hospitals which are Established for Proprietary Functions A public hospital performs proprietary function when it is established for profit. If a hospital has been established for profit, the government goes down to the level of any private pay hospital or any other person or corporation who does some business and therefore must be held liable for the wrongful act of its employees or servants. In the Philippines, the government has not yet embarked in the establishment of a hospital to operate for profit purpose. 2. Private Charitable, Voluntary or Eleemosynary Hospital When is a hospital said to be established for charity? A charitable hospital is established and maintained from donations, contributions, philantrophic acts and pays no dividend, has no capital stock, seek no profit, and render hospital services gratuitously. The test of a charitable hospitals is not the extent of the services rendered nor whether the patient pays more or less than the cost of the services, but whether those who operates it are doing so for the profit, directly or indirectly. The way to determine whether a hospital was established for charity is the articles of incorporation and the constitution and by-laws of the corporation which established the hospital. A charitable hospital must not consist of rendering charitable acts to few sporadic cases but must be extended to the public over a period of time. There is no specific rule to be followed to determine whether a voluntary or eleemosynary hospital may be held liable for the negligent act of its employees or servants. In some jurisdictions, provided that the hospital authorities have exercised care and diligence in the selection of its employees, it cannot be held liable for the wrongful act of the employees. 3. Private Hospital Operating for Profit A private hospital for profit may be held vicariously liable for the negligent act of its employees. All other principles to determine liability of physicians may be applied to private hospitals operating for profit. However, the following rules are applied by courts to determine whether or not a hospital is vicariously liable for the negligent acts of the resident physicians, nurses and other employees.
Rule Principle of administrative or ministerial duties as (Administrative or Ministerial Duties) The against professional or medical duties performance of all routinary duties which is the very reason why he is appointed in the ordinary sense. *Any negligent act committed by such employees in the course of their employment which causes injury

to the patient, may make the hospital vicariously liable. (Professional or Medical Duties) duties the very nature of which is beyond the ordinary routine in a hospital. The performance of such duty must redound to the benefit and welfare of their patient. *Any negligence of such hospital employees, the barrowed servant doctrine must be applied and hospital employer must no be held liable. Principle of Control It does not matter whether the act is administrative or medical, but the crucial question is who has control over the employee. If the hospital has control hospital is liable; if it is the physician following the borrowed servant doctrine physician is liable; if both have concurrent control liability is joint.

Contract of Service distinguished from Contract for Contract of Service the vicarious liablity must be Service applied. Contract for Service the principle independent contractor must be applied. Independent Contractor Theory (Independent Contractor) a person who contracts with another without the control of or not subject to other's right of control with respect to the physical conduct in the performance of undertaking.

Sole Responsibility and Shared Responsibility

Liabilities of Hospital
The liabilities of a hospital may be classified as: 1. Corporate Liabilities 2. Vicarious Liabilities

Corporate Liabilities - those arising form the failure of the hospital to furnish accommodations and facilities necessary to carry out its purpose or to follow in a given situation, the established standard of conduct to which the corporation should conform. It's corporate liabilities may arise from:
a. Failure to furnish safe and well maintained buildings and ground b. Failure to furnish safe and reliable equipments c. Failure to make careful selection, review and supervision of independent physicians who are permitted to practice in the hospital (liability to patient).

Vicarious Liabilities (for the acts of Hospital Employees)

a. Nursing Staff a.1 Student Nurse not considered as employees of the hospital a.2 Professional Nurse The doctrine of vicarious liability may be applied for the negligent act which caused injury to the patient. a.3 Special Duty Nurse A special duty nurse is independent contractor. For any wrong committed by her, she herself must be held liable.

b. Medical Staff b.1 Interns not considered as employees of the hospital.

Rotating Internship Interns are assigned to all services of the hospital for a specific length of time as part of their academic clinical training. Interns may be assigned to all services but may be allowed to stay longer in one or two services to enable them to experience as basis for graduate education. Interns confine their entire training to single branch or service of medicine as a special training as a preparatory for residency.

Mixed Internship

Straight Internship

c. Resident Physicians they are medical graduates and duly authorized to practice medicine. The principle of borrowed servant shall be applied if the negligent act was done when the resident physician was under the supervision and control of another physician. d. Consultants As a general rule, the attending physician is not legally responsible for the acts of the specialist he calls to assist him in the management of his patient. The specialist is an independent contractor and the attending physician only acted as an agent of the patient. The acting physician be made jointly liable with the consultant if the participated with the consultant in making the diagnosis and actual treatment of the patient. The attending physician is always obliged to exercise due care in the selection of consultants. If the attending physician is found negligent in this regard, he may be held liable for the wrongful act of the consultant despite the fact that the latter acted as an independent contractor.

Admission
A person has no absolute right to be admitted in a hospital or to avail of hospital services. The discretion to admit is vested on the management or governing board. The relationship between hospital and patient is contractual and the hospital has the right to choose patients whom it wants to serve, in the same manner that the patient has the right to choose the hospital. A government hospital has no absolute privilege of choice of patients inasmuch as it is established and maintained by public funds. A government hospital must open its door to all who seek its services and facilities and must be made available to all medical practitioners and patients. However, it is limited by the facilities of the hospital, number of beds available, and the capacity of the technical staff to institute treatment procedures with competence. A private hospital is given more power to choose the physicians and patients it wants to serve. The management usually adopts certain guidelines to be the bases of admission of patients. The only limitation is that it must not be oppressive, discriminatory, illegal, or contrary to public policy. Justifiable grounds to refuse admission of patients in a hospital: 1. 2. 3. All accommodations are filled The patient is chronically ill The patient needs only convalescent care

4. or 5.

There is no available accommodation for the clinical service that patient is suffering The patient's illness is contagious and a risk to other patients

In order for the patient to able to collect damages from the hospital it must be shown that his non-admission is the proximate cause of any aggravation of his condition.

Attendance to Emergency Cases in Hospitals

According to the Hospital Licensure Act, hospitals are to provide among others, facilities for medical practice, and in order to carry out the legal obligation of physicians employed in these institutions or authorized to practice therein in attending to a patient in danger of death or is otherwise an emergency case, it become the responsibility of hospital to provide facilities for emergency cases. An emergency case as used means a patient whose delay in treatment may cause loss of life or limb or permanent residual damage.

Transfer of Patients
The transfer of emergency patients from one hospital or clinic to another can only be done if the condition of emergency ceases to be a threat to the life and that the transfer itself will not impair the life and health of the patient. The moment the patient is admitted to the hospital, there exists a contractual obligation for the hospital to let the patient avail of the services of the hospital until such time when the service is no longer necessary.

Liability for Hospital Infection

A clinic or hospital may be held liable for failure to afford patients with adequate protection against infection. Prevention of hospital acquired infection involve care of the physical plant, screening of personnel, care of equipment, use of aseptic techniques, and use or reuse of defective supplies. The risk of infection is common and there is no duty for the hospital to warn the patient, but the hospital will be held liable for the injury caused by infection if the patient can prove that it is caused by hospital negligence3. Infection caused by equipment and faulty technique Contact with infected patient Negligence of personnel and staff Hospital personnel may be the source of infection

Liabilities of Hospital for its Ancillary Services

I. Emergency Room

Inasmuch as the law (Republic Act 6615) imposes on hospitals (government and private) to render immediate medical assistance to emergency cases, it can be inferred that hospitals must have an emergency room or a place in a hospital to comply with the obligation. The administrative management of the operating room is quiet complex, the number of cases is quiet enormous on certain time of day and relatively more complaints are filed against its management of the hospital to enter into a contractual relationship to a partnership of physicians to render the emergency medical services. The extent of the liability of the partnership of independent
3 Butler v Berkley, 203 S.E. 2D 571, N.C. 1975

contractor depends on the terms of the contract. Whenever the hospital administration enters into a contract with a partnership of physicians to run the emergency room, the medical staff therein are not considered as employees of the hospital. Consequently liability for negligence in the emergency room is shifted to the medical partnership. However, the courts have held that even if contracts specify that physicians will be considered independent contractors, the hospitals are responsible for their action if they can exercise control over them. Control can be found in hospital regulations ans policies which cover the emergency room, staff privileges and compensation agreement. Even if emergency room physicians are characterized as independent contractors, the hospital will still be held legally responsible for their negligence because, in the absence of some clear indication to the contrary, the public has the right to rely on the common assumption that the emergency ward personnel work for and in behalf of the hospital4.
Malpractice liability in the emergency room may arise for the following:

Failure to Admit Failure to Examine and/or Treat Negligence in the Application of Management Procedures 1. 2. 3. 4. Emergency Room Record Emergency Room and the Police Press Reporter's Inquiry Compensation for Treating Unconscious Patient in the Emergency Room

II. Ambulance Service

An ambulance is a motor vehicle specially designed, equipped and used for the transportation of the sick, injured or wounded persons operated by trained personnel for ambulance service. Ambulance service may be a part of the hospital services or may be owned and operated by private agencies independent of the hospital, in which case any injury to a third party on account of the negligence of the driver the private operator must be held liable.
III. Hospital Pharmacy

A pharmacy/drugstore is a place or establishment where drugs, chemical products, active principles of drug, pharmaceuticals, proprietary medicine of pharmaceutical specialists, devices and poison are sold at retail and where medical, dental, and veterinary prescriptions are compounded and dispensed5. Pharmacy Law. *Duties and Responsibilities of Pharmacists please refer to Republic Act 5921,

IV. Medical Records6

4 Badeaux v East Jefferson Gen. Hospital 364 So. 2D 348 La Xt. App. 1978 5 Sec. 42, Republic Act 5921, Pharmacy Law 6 Group 3 Report

V. Hospital Security, Peace and Order

A hospital as a service institution must maintain a favorable environment conducive to the patient's comfort, peace of mind and early recovery. Reasonable restraint may be applied to violent or boisterous patient or tresspasser. He may be requested to leave the premises. Coercive way may also be employed if peaceful or nonviolent means are not effective. The physician or the nurse or nay other employees of the hospital may request a police officer to institute measures to prevent further disturbance or effect an arrest. VI. Hospital Liability for Medical Malpractice & Medical Negligence Cases Hospitals, having undertaken one of mankind's most important and delicate endeavors, must assume the grave responsibility of pursuing it with appropriate care. The care and service dispensed through this high trust, however technical, complex and esoteric its character may be, must meet standards of responsibility commensurate with the undertaking to preserve and protect the health, and indeed, the very lives of those placed in the hospital's keeping. VII. Provisions of Law; Basis of Hospital Liability Quasi Delict Art. 2176 (CC) 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. Art. 2180 (CC) (governing various liability under the doctrine of respondent superior) The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. Par. 3 The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Par. 4 Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. VIII. Conflicting Views Regarding Hospital Liability 1. The Schloendorff doctrine regards a physician, even if employed by a hospital, as an independent contractor because of the skill he exercises and the lack of control exerted over his work. Under this doctrine, hospitals are exempt from the application of the respondent superior principle for fault or negligence committed by physicians in the discharge of their profession. The foregoing view is grounded on the traditional notion that the professional status and the very nature of the physician's calling preclude him from being classed as an agent or employee of a hospital. Whenever he acts in a professional capacity. It has been said that medical practice strictly involves highly developed and specialized knowledge, such that physicians are generally free to exercise their own skill and judgment in rendering medical services sans interference. Hence, when a doctor practices medicine in a hospital setting, the hospital and its employees are deemed to subserve him in his

ministrations to the patient an his actions are of his own responsibility 7. The Schloendorff doctrine regards a physician, even if employed by a hospital, as an independent contractor because of the skill he exercises and the lack of control exerted over his work. Under this doctrine, hospitals are exempt from the application of the respondent superior principle for fault or negligence committed by physicians in the discharge of their profession. 2. Bing vs. Thunig, the New York Court of Appeals deviated from the Schloendorff doctrine, noting that modern hospitals actually do far more than provide facilities for treatment. Rather, they regularly employ, on a salaried basis, a large staff of physicians, interns, nurses, administrative and manual workers. They charge patients for medical care and treatment, even collecting for such services through legal action, if necessary. The court then concluded that there is no reason to exempt hospitals from the universal rule of respondent superior.
In our jurisdiction, the nature of the relationship between the hospital and the physicians is rendered inconsequential in view of our categorical pronouncement in Ramos v Court of Appeals, that for purposes of apportioning responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. In other words, private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not employees, xxx, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, when the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians.

Information Source:

Medical Jurisprudence (1998) (The Practice of Medicine and the Law) by: Pedro P. Solis, M.D., Ll.B,D. Crim.

7 Professional Services Inc. vs. Agana, G.R. No. 127590, January 31, 2007

San Sebastian College Recoletos

C.M. Recto Avenue, Manila Philippines

College of Law

Legal Medicine
A Written Report in

HOSPITAL LIABILITY
Submitted To: Dr. Joey Montemayor Professor

Submitted By: [Group 6] Joefranz Bilo Jose A. Capacite Jr. Blissy Natalie S. Itom