Doctrine in Medical Malpractice and Negligence

Medical Malpractice refers to professional negligence by a health care professional or provider

in which treatment provided was substandard, and caused harm, injury or death to a patient. In
the majority of cases, the medical malpractice or negligence involved a medical error, possibly
in diagnosis, medication dosage, health management, treatment or aftercare. The error may
have been because nothing was done (an act of omission), or a negligent act.
It is also any act or failure to act by a member of the medical profession that results to harm,
injury, distress, prolonged physical or mental suffering or the termination of life to a patient while
that patient is under the care of that medical professional
Medical malpractice law provides a way for patients to recover compensation from any harms
resulting from sub-standard treatment. The standards and regulations for medical malpractice
differ slightly from country-to-country; even within some countries, jurisdictions may have
varying
medical
malpractice
laws.
Medical Negligence refers to an act or omission (failure to act) by a medical professional that
deviates from the accepted medical standard of care. It is usually the legal concept upon which
the case hinges, from a "legal fault" perspective. Negligence on its own does not merit a
medical malpractice claim, but when the negligence is the cause of injury to a patient, there may
be a good case for medical malpractice It occurs when a doctor, dentist, nurse, surgeon or any
other medical professional performs their job in a way that deviates from this accepted medical
standard of care. In keeping with our car accident analogy, if a doctor provides treatment that is
sub-standard in terms of accepted medical norms under the circumstances, then that doctor has
failed to perform his or her duty, and is said to be negligent.
It is also

want of care required by the circumstances.

failure to observe that degree of care, precaution and vigilance which the circumstances
justly demand resulting in injury to another person.

The existence of negligence is determined by the behavior of the person in the situation.
How do we determine if a person acted in a negligent manner? What is the standard of care?

That which an ordinary prudent man would exercise under the same circumstances.

How Negligence Becomes Medical Malpractice

In short, medical negligence becomes medical malpractice when the doctors negligent
treatment causes undue injury to the patient -- makes the patients condition worse, causes
unreasonable and unexpected complications, or necessitates additional medical treatment, to
name just a few examples of whats considered injury in a malpractice case.

In other words, the addition of two additional elements -- legal causation and damages -- are
necessary before medical negligence will give rise to a viable medical malpractice lawsuit. If the
doctors medical negligence was not a foreseeable result of the patients harm (causation), or if
the doctors medical negligence actually had no detrimental effect on the patients condition
(damages), a medical malpractice claim will fall short.

Medical Negligence, what do you need to prove for your action to prosper?
Dr. Fernando P. Solidum vs. People, G.R. No. 192123, 10 March 2014, gives the requisites for
an action based on medical negligence, whether civil, criminal, or administrative, to prosper.
Specifically, the Supreme Court explained that it is necessary to prove by competent evidence
the following elements:
1.
the duty owed by the physician to the patient, as created by the physician-patient
relationship, to act in accordance with the specific norms or standards established by his
profession (standards of care);
2.
the breach of duty by the physician's failing to act in accordance with the applicable
standard of care;
3.
the causation (i.e., there must be a reasonably close and casual connection between the
negligent act or omission and the resulting injury); and
4.
the damages suffered by the patient.
Standard of care, in the medical profession, refers to the specific norms or standards to protect
the patient against unreasonable risk. As noted by the Supreme Court itself, no clear definition
of the duty of a particular physician in a particular case exists and this standard must be
determined in every case, with the judge weighing the testimonies of experts on both sides to
ultimately determine the standard, as the trier of fact.

Definition

Intentional?

Malpractice
A type of negligence where a
licensed professional fails to
provide services as per
standards set by governing
body
Yes

Negligence
Failure to exercise the care
that a reasonably prudent
person would exercise in like
circumstances
Can
be
intentional
unintentional

or

Cases filed in:

Criteria for proving the case
Example

Civil Courts
Duty, breach, causation and
damages
A doctor intentionally causing
harm to patients dye to not
performing his duties as per
medical standards

Civil Courts
Duty, breach, causation and
damages
A driver causing harm to
passengers due to his
carelessness

Doctrines

Doctrine of Vicarious Liability

o Doctrine of Ostensible Agent
o Borrowed Servant Doctrine
o Captain of the Ship Doctrine
Doctrine of Res Ipsa Loquitor
Doctrine of Common Knowledge
Doctrine of Contributory Negligence
Doctrine of Assumption of Risk
Doctrine of Last Clear Chance
Fellow Servant Doctrine
Rescue Doctrine

Doctrine of Efficient Intervening Cause

In the causal connection between the negligence of the physician and the injury
sustained by the patient, there may be an efficient intervening cause which is the
proximate cause of the injury.

Doctrine of Vicarious Liability

Doctrine of Imputed Negligence/Command Responsibility.

Liability for the tort of another
Secondary or indirect liability
Vicarious liability means the responsibility of a person, who is not negligent, for the
wrongful conduct or negligence of another.
Employer becomes liable for the acts of an employee
Employee must be acting within the scope of their responsibilities
Employer Employee relationship must exist and proven.
Why apply this doctrine?
Deep pocket theory;
The employer has the power to select his employee and to control his acts;
Since the employer benefits monetarily from the employee, the employer has
to bear the loss when neither the employer nor the employee is at fault;
To treat them as operating expense.

Related Civil Code Provision/s

Art. 2180, Civil Code of the Philippines
Obligations is demandable not only for ones own acts or omission but also fort those
persons whom one is responsible
.xxx the owners or managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the branches in which
the latter are employed or on the occassion of their functions
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned task, even though the former are not
engaged in any business or industry
The responsibility treated of this article shall cease when the person herein mentioned
prove that they observe all the diligence of a good father of a family to prevent injury.

Doctrine of Apparent/Ostensible Agent

In cases wherein the employees are at the same time are independent contractors of
the hospital;
Because of this peculiar situation, they are considered ostensible agents and
therefore, the hospital must be held liable for their negligent acts.(pathologist,
radiologist, anesthesiologist).
Fixes liability when there is no Employer-Employee relationship
The principal holds itself out to the public as a provider of medical services through
advertising or by an express representation.
The patient looked to the hospital to provide competent medical care.
Plaintiff was led to believe that the negligent person was an employee or agent of the
hospital Appearance of authority
The hospital knew that the person was claiming to be an agent/employee of the
hospital
The person relied upon the conduct of the hospital

Borrowed Servant Doctrine

Ordinarily, resident physicians, nurses and other personnel of the hospital are
employees or servants of the hospital.
The physician borrows the nurses, med tech, residents etc. employed by the hospital to
help him provide medical care to his patients.
In some instances, they are under the temporary supervision and control of another
other than their employer while performing their duties;

By fiction of law, they are deemed borrowed from the hospital by someone and for any
wrongful act committed by them during the period, their temporary employer must be
held liable for the discharge of their acts and duties;
In the determination whether one is a borrowed servant, it is necessary that he is not
only subjected to the control of another with regard to the work done and the manner of
performing it but also that the work to be done is for the benefit of the temporary
employer.

Captain of the Ship Doctrine

This doctrine enunciates liability of the surgeon not only for the wrongful acts of
those who are under his physical control but also those wherein he has extension of
control.
Surgeon is likened to a ship captain who must not only be responsible for the safety
of the crew and also of the passengers of the vessel.
The head surgeon is made responsible for everything that goes wrong within the four
corners of the operating room.
Assumes that the doctor is in complete control of everything and everyone in the
operating room.
Largely abandoned in other jurisdictions.

Doctrine of Res Ipsa Loquitor

The thing speaks for itself; nature of the wrongful act or injury is suggestive of
negligence.
Fact or occurrence of an injury taken with the surrounding circumstances may permit
an inference or make out of a plaintiff a prima facie case and present a question of
fact for defendant to meet with an explanation.
The patient was injured in a manner that would not normally occur but for a breach of
the applicable standard of care.
He was injured by an agency or instrumentality within the exclusive control of the
defendant.
Other possible causes are sufficiently eliminated by the evidence such that the jury
could reasonably conclude that the negligence was, more probably than not, that of
the defendant.
It is a mere evidentiary rule.
It is a rule of sympathy to counteract the conspiracy of silence.
General rule: expert testimony is necessary to prove that a physician has done a
negligent act or that has deviated from the standard of medical practice.
Requisites of Res Ipsa Loquitor Doctrine:
o The accident must be of a kind which ordinarily does not occur in the
absence of someones negligence;
o It must be caused by an agency or instrumentality within the exclusive control
of the defendant;

It must not have been due to any voluntary action or contribution on the part
of the plaintiff.
Some cases wherein the Doctrine of Res Ipsa Loquitor has been applied:
o Objects left in the patients body at the time of caesarian section;
o Injury to a healthy part of the body;
o Removal of a wrong part of the body when another part wad intended;
o Infection resulting from unsterilized instruments;
o Failure to take radiographs to diagnose a possible fracture;
Instances where the Doctrine of Res Ipsa Loquitor does not apply:
o Where the Doctrine of Calculated Risk is applicable;
o When an accepted method of medical treatment involves hazards which may
produce injurious results regardless of the care exercised by the physician.
o Bad Result Rule;
o Honest Errors of judgment as to Appropriate Procedure;
o Mistake in the Diagnosis.
o

- In most medical malpractice suits, there is a necessity for a physician to give his expert
medical opinion to prove whether acts or omissions constitute medical negligence. This
doctrine has been regarded as rule of sympathy to counteract the conspiracy of silence
According to one of the most distinguished jurist(Canada), Justice Mignault:

the practice of medicine and surgery is indispensable to humanity and

should not be fettered by rules and responsibility so strict as to exact an infallibility on the
part of the physician which he does not possess.

we would be doing a disservice to the community at large if we were to impose

liabilities on hospitals and doctors for everything that goes wrong. Doctors would be led to
think more of their own safety than the good of the patients. Initiative would be stiffed and
confidence shaken.

Doctrine of Contributory Negligence

Doctrine of Common Fault

It has been defined as conduct on the part of the plaintiff or injured party, contributing as
a legal cause to the harm he has suffered, which falls below the standard which he is
required to conform to his own protection.
It is the act or omission amounting to want of care on the part of the complaining party
which, concurring with the defendants negligence, is the proximate cause of the injury.
Related Civil Code Provisions
o Art. 2179, Civil Code

 When the plaintiffs own negligence was the immediate and proximate cause of his
injury, he cannot recover damages. But if his negligence was only contributory, the
immediate and proximate cause of injury being the defendants lack of due care, the
plaintiff may recover damages, but the court may mitigate the damages to be
awarded.
o

Art.2214, Civil Code

In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages
that he may recover.

Some Instances where there is contributory negligence:

o Failure to give the physician an accurate history;
o Failure to follow the treatment recommended by the physician;
o Leaving the hospital against the advice of the physician;
o Failure to seek further medical assistance if symptoms persist.

Doctrine of Superior Knowledge

In the physician-patient relationship, the physician has superior knowledge over his
patient. The patient just follows the instructions and orders of the physician and is
usually inactive and virtually places himself in the command and control of the
physician.
The defense of contributory negligence is available only when the patients conduct
is a truly flagrant disregard of his health and cannot apply where the patient is
mentally ill, semiconscious, heavily sedated or of advanced age.

Doctrine of Continuing Negligence

If the physician, after a prolonged treatment of a patient which normally produces

alleviation of the condition, fails to investigate non-response, he may be held liable if
in the exercise of care and diligence he could have discovered the cause of nonresponse.

Doctrine of Assumption of Risk

Predicated upon knowledge and informed consent, anyone who voluntarily assumes
the risk of injury from a known danger, if injured, is barred from recovery.
violenti non fit injuria, which means that a person who assents and was injure is
not regarded in law to be injured.

Doctrine of Last Clear Chance

A physician who has the last clear chance of avoiding damage or injury but
negligently fails to do is liable.

It implies thought, appreciation, mental direction and lapse of sufficient time to

effectually act upon impulse to save the life or prevent injury to another.

Doctrine of Foreseeability

A physician cannot be held accountable for negligence if the injury sustained by the
patient is on account of unforeseen conditions but if a physician fails to ascertain the
condition of the patient for want of the requisite skill and training is answerable for
the injury sustained by the patient if injury resulted thereto.
A physician owes duty of care to all persons who are foreseeably endangered by his
conduct, with respect to the risk which make the conduct unreasonably dangerous.

Fellow Servant Doctrine

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

Rescue Doctrine

If a physician who went to rescue a victim of an accident was himself injured, the
original wrongdoer must be held liable for such injury.

Proximate Causation
It is the nearest in the order of responsible causation or that which stands next in
causation to the effect, not necessarily in time or space but in causal relation
That cause in which in natural and continuous sequence, unbroken by any sufficient
intervening case, produces the injury and without which the result would not have
occurred.
Requisites
o Direct physical connection between the wrongful act of the physician and the
injury sustained by the patient
o Case of wrongful act of the physician must be efficient and not be too remote
from the development of the injury suffered by the patient
o Result be the natural continuous and probable consequences
Doctrine of Corporate Negligence/ Corporate Responsibility

Determination of a hospitals liability for negligent acts of professionals because of the

actions of a principal or an employer.
The hospital is liable if it fails to uphold the proper standard of care owed the patient,
which is to ensure the patients safety and well-being while at the hospital.
The duty of providing quality medical service is no longer the sole prerogative and
responsibility of the physician. Hospitals now tend to organize a highly professional
medical staff whose competence and performance need to be monitored by the
hospitals commensurate with their inherent responsibility to provide quality medical care.
Duty of a hospital

o
o
o
o

the use of reasonable care in the maintenance of safe and adequate facilities
and equipment;
the selection and retention of competent physicians;
the overseeing or supervision of all persons who practice medicine within its
walls; and
the formulation, adoption and enforcement of adequate rules and policies that
ensure quality care for its patients

A hospital has the duty to see that it meets the standards of responsibilities for the care
of patients.
It includes the proper supervision of the members of its medical staff.
If a hospital breached its duties to oversee or supervise all persons practicing medicine
within its walls and also failed to take an active step in fixing the negligence committed, it
will be vicariously liable for the negligence of the doctor under Article 2180 NCC and
directly liable for its own negligence under Article 2176 NCC (Professional Services Inc
vs Agana GR No. 126297, Jan. 31, 2006)

Doctrine of Respondeat Superior

This means let the master answer for the acts of subordinate.
The liability is expanded to include the master as well the employee.
The responsibility and accountability for patient care lie with the supervising physician,
regardless of whether that clinician has performed the procedure in question.
Both the employee and superior are liable and liability is expanded to the superior.

Doctrine of Strict Liability

A person injured by a defective product can recover compensation from his injury from
anyone in the distributive chain who sold the product while defect was present even
though the seller exercises conceivable caution.
Negligence or carelessness is not an issue nor warranty or promise.
Drug manufacturer is liable if his product is contaminated by any impurities which harm
the user.
If the drug has side effects, it is the duty of the manufacturer to warn the physician of it
either through the literature attached to it or services of promoters. Once the physician
has been forewarned, the manufacturer has no duty to insure that the warning reaches
the patient in normal circumstances.

Sole Responsibility vs Shared Responsibility

Sole responsibility

When the negligent act or omission which is the proximate cause of the injury
suffered by patient is attributed to the wrongful act of person

Shared responsibility

When the injury suffered by the patient is caused by the negligent act of two or more
persons, each of them acting concurrently and successively in the production of
injury.

References
http://attyho.blogspot.com/2014/05/medical-negligence-what-do-you-need-to.html
http://ndvlaw.com/the-treatment-of-medical-malpractice-in-the-philippines/
https://attypaylip.wordpress.com/2010/08/31/medical-malpratice-in-the-philippines/
http://www.batasnatin.com/law-library/civil-law/torts-and-damages/361-res-ipsa-loquitur-medicalnegligence-cases.html
https://www.scribd.com/doc/50099638/Legal-Medicine-and-Medical-Jurisprudence
http://www.ncbi.nlm.nih.gov/pubmed/10314631
http://attyho.blogspot.com/2014/05/medical-negligence-what-do-you-need-to.html
http://attylaserna.blogspot.com/2012/04/medical-malpractice-negligence-gr-no.html
https://www.scribd.com/doc/223776664/Medical-Malpractice
https://www.scribd.com/doc/11515781/Negligence-and-Medical-Malpractice