TORTS AND DAMAGES – MIDTERMS

CHAPTER 4 – MALPRACTICE

Three Requisites for liability for Quasi-delict

1. An act or omission constituting fault or negligence

2. Damage suffered by the injured party
3. Causal relation between the damage and the act or omission

Four essential requisites involving Medical Malpractice

1. Duty
2. Breach
3. Injury
4. Proximate Causation

Duty – refers to the standard of behavior which imposes restrictions on one’s conduct, the standard in turn refers to the
amount of competence associated with the proper discharge of the profession. Doctors have a duty to use at
least the same level of care that any other reasonably competent doctor would use to treat a condition under the
same circumstance. What is to be determined in the discussion of duty of the defendant doctor is the first
element of quasi-delict: an act or omission constituting fault or negligence.

Two Forms of Duty of Care

a. A duty to render a quality of care consonant with the level of medical and practical knowledge the physician may
reasonably expected to possess and the medical judgment he may expected to exercise
b. The duty based upon adept use of such medical facilities, services and equipment and options as are reasonably
available

Neighborhood Rule

- in treating his patient, a physician is under a duty to the patient to exercise that degree of care, skill and diligence
which physicians in the same general neighborhood and in the same line of practice ordinarily possess and exercise in
like cases.

Res Ipsa Loquitor (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
3. the possibility of contributing negligence which would make the plaintiff responsible is eliminated

Lost Chance Rule

- the lost of chance of achieving a favorable outcome or of avoiding an adverse consequence should be compensable
and should be valued approximately, rather than treated as all-or-nothing proposition

Doctrine of Informed Consent

- unless excused, the doctor must secure the consent of his patient to a particular treatment or an investigative
procedure. The test therefore for determining whether potential peril must be divulged is its materiality to the patient’s
decision.

Elements in Doctrine of Informed Consent

1. the physician had a duty to disclose material risks

2. the physician failed to disclose or inadequately disclose those risks
3. as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise
would not have consented to
4. the plaintiff was injured by the proposed treatment

Two Types of Causation (Lack of Informed Consent)

1. adequate disclosure would have caused the plaintiff to decline the treatment
2. the treatment proximately caused injury to the plaintiff
Professional Disclosure Standard

- a charge of failure to disclose should be judged by the standards of the reasonable medical practitioner

Reasonable Patient Standard

- the test is one of materiality. The test for determining whether a particular peril must be divulged is its materiality to
the patient’s decision: all risk potentially affecting the decision must be unmasked. Under this standard, adequate
disclosure “required the physician to discuss the nature of the proposed treatment, whether it was necessary, or merely
elective, the risks, and the available alternatives and their risks and benefits

Captain of the Ship Doctrine

- under this doctrine, the surgeon is likened to a ship captain who must not only be responsible for the safety of the
crew but 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.

Principle of Apparent Authority

- is based on the concept of estoppel, thus, it prevents the principal from denying the existence of agency to a third
party, provided that a representation, as to the agent's authority, has been made by him to the third party either
through his words or by his actions.
-even when no employment relationship exist but it is shown that the hospital holds out to the patient that the doctor is
its agent, the hospital may still be vicariously liable

Doctrine of Corporate Liability

- regardless of its relationship with the doctor, the hospital may be held directly liable to the patient for its own
negligence or failure to follow established standard of conduct to which it should conform as a corporation.

Corporate Negligence Doctrine

-a hospital conducted for private gain is under a duty to exercise ordinary care in furnishing its patients a
suitable and safe place. If an unsafe condition of the hospital’s premises causes an injury, there is a breach of the
hospital’s duty

1. to use reasonable care in the maintenance of safe and adequate facilities and equipment
2. to select and retain only competent physicians
3. to oversee as to patient care all persons who practice medicine within its walls
4. to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients

Medical Error
- is a preventable event that may cause or lead to inappropriate use or patient harm while the medication is in
the control of the health care professional, patient or consumer

Order Processing Error (Pharmacy)

- such as the dispensing of wrong drug, or the right drug in the wrong strength, or the labelling of correct
medication with incorrect direction
CHAPTER 6: DEFENSES IN NEGLIGENCE CASES

PLAINTIFF’S CONDUCT
The victim of negligence is likewise required to exercise due care in avoiding injury to himself. He ought to
conform to the standard of a reasonable man for his own protection.

Article 2179:
 When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only contributory, the immediate and proximate cause of the
injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts shall
mitigate the damages to be awarded.

CONTRIBUTORY NEGLIGENCE
 If the plaintiff’s negligence is merely contributory, the plaintiff is not barred from recovering from the
defendant.
 In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover
(Art. 2179, NCC).

COMPARATIVE NEGLIGENCE RULE

 Includes any rule under which the relative degree of negligence of the parties is considered in determining
whether, and to what degree, either should be responsible for his negligence.
 Involves apportionment of damages.
 Under the NCC, this doctrine does not completely bar recovery but merely mitigates the same.
 Definition of Contributory Negligence – Conduct on the part of the injured party, contributing as a legal
cause to the harm he has suffered, which falls below the standard to which he is required to conform for
his own protection.

TEST OF NEGLIGENCE: FORSEEABILITY

 There is contributory negligence when the party’s act showed lack of ordinary care and foresight that
such act could cause him harm or put his life in danger.

IMPUTED CONTRIBUTORY NEGLIGENCE

 Negligence is imputed if the actor is different from the person who is being made liable.
 The defendant will be subject to mitigated liability even if the plaintiff was not himself personally negligent
but because the negligence of another is imputed to the plaintiff.
 Applicable where the negligence was on the part of the person for whom the plaintiff is responsible, and
especially, by negligence of an associate in the transaction where he was injured.
 “The law imputes to the master the act of the servant, and if that act is negligent or wrongful and
proximately results in injury to a third person, the negligence or wrongful conduct is the negligence or
wrongful conduct of the master, for which he is liable.” (Phil. Commercial International Bank, et.al v. Court
of Appeals

IMPUTED NEGLIGENCE TO PLAINTIFF AS PROXIMATE CAUSE

 “If the master is injured by the negligence of a third person and by the concurring negligence of his own
servant or agent, the latter’s negligence is imputed to his superior and will defeat the superior’s claim
against the third person if the negligence is the proximate cause.” (Ramos v. COL Realty Corp.)

VIOLATION OF STATUTE BY THE VICTIM OR HIS AGENT

 Generally treated as negligence per se.
 Effect of such violation would depend on whether the same is
o 1) merely contributory negligence, or
o 2) the proximate cause of the loss, or
o 3) neither contributory nor the proximate cause of the loss.

NEITHER CONTRIBUTORY NEGLIGENCE NOR PROXIMATE CAUSE

 The violation of a statute is not sufficient to hold that the violation was the proximate cause of the injury,
unless the very injury that happened was precisely what was intended to be prevented by the statute.
 There must be proof of causation.

ASSUMPTION OF RISK
REQUISITES:
1. Plaintiff must know that the risk is present;
2. He must further understand its nature;
3. His choice to incur it is free and voluntary – In relation to this, it has been held that the plaintiff is excused
from the force of the rule if an emergency is found to exist or if the life or property of another is in peril or
when he seeks to rescue his endangered property.
KINDS:
EXPRESS WAIVER OF THE RIGHT TO RECOVER

EXPRESS CONSENT PERSPECTIVE

 There is assumption of risk if the plaintiff, in advance, has expressly waived his right to recover damages
for the negligent act of the defendant.
 The plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward
him, and to take his chances of injury from a known risk arising from what the defendant has to do or
leave undone.
 Has been ruled by the Supreme Court in Pleansantville Development Corp v. CA to be contrary to public
policy and cannot be allowed.
 Can only be valid if made AFTER the cause of action accrued, and may be construed as a condonation
of the obligation.
 In a contract of private carriage, it is legally acceptable for the parties to expressly stipulate that the goods
are at the shipper’s risk.
 FREE AND HARMLESS CLAUSE: A contract which stipulates that one party holds the other free and
harmless from any claim of third persons. Injured third persons are not bound.
 FUTURE FRAUD: Waiver of the right to recover damages is void.

IMPLIED ASSUMPTION
 DANGEROUS CONDITIONS: If the person knowingly volunteers to assume the risk of such dangerous
condition, he may not recover from the defendant who maintained such dangerous conditions.
 CONTRACTUAL RELATIONS: There is an implied assumption of risk, where the plaintiff, upon free and
voluntary entrance into a relationship where the negligence of the defendant is obvious, may be found to
accept and consent to it, and to undertake to look out for himself and to relieve the defendant of the duty.
 DANGEROUS ACTIVITIES: Persons who voluntarily participate in dangerous activities assume the risks
which are usually present in such activities.
 DEFENDANT’S NEGLIGENCE: The plaintiff is aware of the risk created by the defendant’s negligence,
yet he voluntarily decided to proceed to encounter it.

FORTUITOUS EVENT
 An event which takes place by accident and could not have been foreseen.
 A person is not liable if the cause of damage was fortuitous (Art. 1174, NCC).
 May either be an act of God or natural occurrences.
ELEMENTS:
1. The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with
his obligation, must be independent of the human will;
2. It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it
must be impossible to avoid;
3. The occurrence must be such as to render it impossible for the debtor to fulfil his obligation in a
normal manner;
4. The obligor must be free from any participation in the aggravation of the injury resulting to the creditor.
EFFECT OF NEGLIGENCE
 The negligence of the defendant which concurred with the fortuitous event or which resulted in the
aggravation of the injury of the plaintiff will make the defendant liable even if there was a fortuitous event.
MITIGATION DUE TO FORTUITOUS EVENT
 Courts may equitably mitigate the damages if the loss, even in part, would have resulted in any event
because of the fortuitous event.

EFFECT OF DEATH OF DEFENDANT

DEATH NOT A DEFENSE

 Death of the defendant will not extinguish the obligation based on quasi-delict.
 Action survives even if the defendant dies during the pendency of the case if the said case is an action
to recover for an injury to persons or property by reason of tort.
 The case will continue through the legal representative who will substitute the deceased.
 ROC Provision: The counsel’s duty includes the duty to inform the court within 30 days after such death
of the fact thereof, and to give the name and address of the defendant’s legal representative/s. Failure
shall be a ground for disciplinary action.

PRESCRIPTION
 Quasi-delict: 4 years from the date of the accident.
 The right of action accrues when there exists a cause of action, which consists of three elements:
1. A right in favour of the plaintiff by whatever means and under whatever law it arises or is created;
2. An obligation on the part of the defendant to respect such right;
 3. An act/omission on the part of such defendant violative of the right of the plaintiff.

DOCTRINE OF RELATIONS OR RELATIONS BACK DOCTRINE

 The doctrine should be applied where the injury was discovered long after the accident.
 The offended party should not be prejudiced in such case and the prescriptive period should commence
to run only upon discovery of the accident.
EFFECT OF PRESCRIPTION ON OTHER SOURCES OF OBLIGATION
 The prescription of the ex quasi delicto or quasi-delict does not operate as a bar to an action to enforce
the civil liability arising from the crime.

INVOLUNTARINESS
 Contracts: Force and intimidation result in vitiated consent and the resulting contract is considered
voidable.
 RPC: The person acting because of the force or intimidation employed upon him is subsidiarily liable to
the offended party, but liability is not based on negligence but may be classified as a strict liability.
 AS A COMPLETE DEFENSE: Believed to be complete in quasi-delict cases, and the defendant therefore
is not liable if force was exerted on him.
CHAPTER 7 – CAUSATION

Proximate Cause
- it is that cause which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred

Remote Cause
- that cause which some independent force merely took advantage of to accomplish something not the natural effect
thereof