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PHYSICIAN AND HOSPITAL LIABILITY

Who is considered to be practicing medicine? A. A medical student diagnosing and treating a patient under the supervision of the doctor B. A dentist because we call him/her a doctor C. Someone interviewed by Anthony Taberna on his show who offers to treats AIDS with a miracle drug for free D. An optometrist who examines the eye and provides eyeglasses

Practice of Medicine
A person shall be considered as 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, physically examine any person, and diagnose, treat, operate or prescribe any remedy for any human disease, injury, deformity, physical, mental or physical condition or any ailment, real or imaginary, regardless of the nature of the remedy or treatment administered, prescribed or recommended; or (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; or (c) who shall use the title M.D. after his name. (Republic Act No. 2382, 10)

The following are NOT acts constituting the practice of medicine


(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, provided such performance is done in conjunction with a duly registered physician. (Republic Act No. 2382, 11)

Can a person practice medicine without a duly issued medical license from PRC?

Physician Liability
Administrative Liability Civil Liability Criminal Liability

What is the penalty imposed on doctors found to be administratively liable?

A violation of which of the following could lead only to an administrative liability for a physician A. Revised Penal Code B. Medical Act of 1959 under Sec. 24 C. E.O. No. 212, on reporting patients with serious physical injury to local health authority D. Refusing to treat an emergency patient because there is a risk to a doctors life

Administrative Liability
Violation of Code of Ethics Violation of Medical Act of 1959 Sec. 24 (but some of those enumerated are also grounds for civil and/or criminal liability) E.O. No. 212 (July 10, 1987) Reporting of treatment of Serious and Less Serious Physical Injuries to nearest government health authority

The Code of Medical Ethics has recently been modified. In the new code of ethics, emphasis is placed on: A. Duties of Physicians to the Community B. Duties of Physicians to their colleagues and to the profession C. Duties of Physicians to allied professionals D. Relationship of Physicians with the Health Products Industry

The Code of Medical Ethics


Duties of Physicians to their patients Duties of Physicians to the Community Duties of Physicians to their colleagues and to the profession Duties of Physicians to allied professionals Relationship of Physicians with the Health Products Industry

DUTIES OF PHYSICIANS TO THEIR PATIENTS


Competence based on current standards Free to choose patients except if emergency Refer when needed Good faith and Strict honesty Preserve confidential information Reasonable fees

DUTIES OF PHYSICIANS TO THE COMMUNITY


Cooperate with proper authorities for health promotion or with government in administration of justice Attend to victims of epidemic and public calamity, except if personal safety is at stake Report unlicensed medical practitioners Soliciting patients unethical Physicians in multimedia must be well informed Shall not endorse medical or health product

DUTIES OF PHYSICIANS TO THEIR COLLEAGUES AND TO THE PROFESSION


Gratuitous service to a colleague, his or her spouse, children and parents Consultation with colleague when necessary, Observe proper protocol of referral system Full Disclosure of any pharmaceutical support in case of articles and presentations Report corrupt or dishonest conduct to proper forum May accept funds for CME but CME should be free from commercial influence

DUTIES OF PHYSICIANS TO ALLIED PROFESSIONALS


No payment of receipt of commissions from allied health worker for cases referred

RELATIONSHIP OF PHYSICIANS WITH THE HEALTH PRODUCTS INDUSTRY No material gain from product samples by may
try new products on patients provided they consent Gifts of reasonable value that would benefit patient may be accepted from health product company; donations for charitable purpose may be requested Research activities should be ethical, responsible and valid

Which is a Ground reprimand/suspension/revocation license to practice medicine?

for of

A. Doctor taking videos of himself having sexual intercourse with a woman but the taking of videos is without the womans consent B. Doctor advertising his name, profession, clinic address and clinic hours C. Issuing a medical certificate when the diagnosis indicated in the medical certificate is later proven to be wrong D. Assisting the abortion of a woman with an ectopic pregnancy

Grounds for reprimand, suspension or revocation of registration certificate


(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.

CRIMINAL LIABILITY

Can the fact of being a doctor be considered an aggravating circumstance?

CRIMINAL LIABILITY
* Degree of Instruction as an Alternative Circumstance Illegal Practice of Medicine False Medical Certificate Abortion practiced by a physician or midwife Simulation of births, substitution of one child for another and concealment or abandonment of a legitimate child. Criminal Negligence

Reckless Imprudence
The elements of reckless imprudence are: (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.

The allegations in the information in this case that the accused acted with reckless negligence in diagnosing, prescribing for, and treating the deceased Susana Tam, knowing that she did not possess the necessary technical knowledge or skill to do so, thus causing her death, sufficiently charge the crime of homicide through reckless imprudence, since ordinary diligence counsels one not to tamper with human life by trying to treat a sick man when he knows that he does not have the special skill, knowledge, and competence to attempt such treatment and cure, and may consequently reasonably foresee harm or injury to the latter. In a similar case wherein the accused, not being a regular practitioner, undertook to render medical assistance to another, causing physical injuries to the latter, said accused was found guilty and convicted by this Court of physical injuries through imprudence under the old Penal Code (U. S. vs. Feliciano Divino, 12 Phil., 175). [People vs. Vda. de Golez, 108 Phil. 855, 859(1960)]

Whether or not a physician has committed an inexcusable lack of precaution in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science [Cruz vs. Court of Appeals, 282 SCRA 188, 199-200(1997)(This case involves a hysterectomy performed for myoma allegedly in a hospital with inadequate facilities and untidy surroundings. The accused was acquitted because of lack of expert testimony to establish standard of care.]

The crime is committed if a person undergoes to treat a patient even if he is not qualified, and in the process causes injury to the patient. Inexcusable lack of precaution is determined based on accepted standard of care of the medical profession.

Negligence of a doctor resulting to injury to a patient may be ground for criminal liability. It is also basis for civil liability and award of damages under what law?

NEGLIGENCE CAUSING INJURY TO A PATIENT


The Medical Act imposes the penalty of imprisonment, fine, or both for any person found guilty of illegal practice of medicine. This refers to the act of engaging in the practice of medicine (defined in 10) without complying with the prerequisites provided by the same act (as provided in 8). There is no penalty under the Medical Act of 1959 for gross negligence, ignorance or incompetence other than administrative liability. (Republic Act No. 2382, 8,10 and 28)

Gross negligence, ignorance, or incompetence in the practice of Medicine resulting in an injury to or death of the patient may be basis for award of damages under the Civil Code which makes every person who negligently causes damage to another liable to indemnify the latter for the same. (NEW CIVIL CODE, , arts. 19-21, 2176.)

Civil Liability
Direct Liability under article 2176 Vicarious Liability, article 2180 in relation to article 2176

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.

Culpable Act or Negligence Damage to another Causal relation between the culpable act or negligence and the damage to another

What are the elements of medical negligence?

Elements of Medical Negligence


duty breach injury proximate causation

TEST to determine negligence: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, he is guilty of negligence. Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing the conduct or guarding against its consequences.

Negligence Conduct which creates undue risk of harm to others; risk means a danger which is apparent or should be apparent, to one in the position of the actor; determination of negligence is a question of foresight on the part of the actor (FORSEEABILITY); effect harmful to other was sufficiently probable to warrant his conduct or guarding against its consequence (PROBABILITY) The fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circumstances of the persons, of the time and of the place.

That cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

PROXIMATE CAUSE: that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.

Burden of Proof
BURDEN OF PROOF: duty of a party to present evidence on the facts in issue necessary to establish his claim or defenses by the amount of evidence required by law Plaintiff alleging DAMAGE because of the negligent act of defendant has the burden of proving such negligence It is even presumed that a person takes ordinary care of his concerns Quantum of proof required is preponderance of evidence Exception: when rules or the laws provide for cases when negligence is presumed

True or False
An expert testimony is always necessary in medical negligence cases, because an expert can testify as to standard of care and breach of that standard.

Doctrine of Res Ipsa Loquitur


the accident was of a kind which does not ordinarily occur unless someone is negligent; and that the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence. the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured

The doctrine of res ipsa loquitur, operates more as a rule of evidence than a substantial basis of a cause of action. The doctrine of res ipsa loquitur warrants a presumption or inference of negligence on the part of the person having charge of the instrumentality causing damage. Direct evidence as to specific act of negligence causing injury absent or not readily available

Elements of Medical Negligence


duty breach injury proximate causation

Doctrine of Informed Consent


Elements in a malpractice action based upon the doctrine of informed consent: (1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed 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; and (4) plaintiff was injured by the proposed treatment. The patient must point to significant undisclosed information relating to the treatment which would have altered her decision to undergo it. [Li v. Soliman, G.R. No. 165279, June 7, 2011]

Possible defenses of a physician being sued for medical negligence in a civil case

Possible Defenses of a Physician


1. No negligence 2. Plaintiffs Own Negligence is cause of injury 3. Assumption of risk (related to informed consent) 4. Act of God/Accident/Force Majeur

Patients own Negligence Doctrine of Contributory Negligence


Art. 2179. 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 the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. (See also Cayao-Lasam vs. Ramolete, 574 SCRA 439(2008)]

VICARIOUS LIABILITY
Article 2180 - 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. Xxx 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.

VICARIOUS LIABILITY
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.xxx The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

Give an Example of a Doctrine that makes a physician vicariously liable

VICARIOUS LIABILITY
Captain of Ship Doctrine Borrowed Servant Doctrine

CONSENT FORMS AND WAIVER OF LIABILITY


Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable.

CONSENT FORMS AND WAIVER OF LIABILITY


Release Forms: Consent on Admission and Consent to Operation. Both release forms consist of two parts. The first part gave CMC permission to administer to Corazon any form of recognized medical treatment which the CMC medical staff deemed advisable. The second part of the documents, which may properly be described as the releasing part, releases CMC and its employees from any and all claims arising from or by reason of the treatment and operation.

The documents do not expressly release CMC from liability for injury to Corazon due to negligence during her treatment or operation. Neither do the consent forms expressly exempt CMC from liability for Corazons death due to negligence during such treatment or operation. Such release forms, being in the nature of contracts of adhesion, are construed strictly against hospitals. Besides, a blanket release in favor of hospitals from any and all claims, which includes claims due to bad faith or gross negligence, would be contrary to public policy and thus void.

Even simple negligence is not subject to blanket release in favor of establishments like hospitals but may only mitigate liability depending on the circumstances. When a person needing urgent medical attention rushes to a hospital, he cannot bargain on equal footing with the hospital on the terms of admission and operation. Such a person is literally at the mercy of the hospital. There can be no clearer example of a contract of adhesion than one arising from such a dire situation. Thus, the release forms of CMC cannot relieve CMC from liability for the negligent medical treatment of Corazon. [Nogales vs. Capitol Medical Center, 511 SCRA 204, 228-29(2006)]

Hospital Liability
Direct Liability under article 2176 Corporate liabilities - those arising from the failure of hospitals to furnish accommodations and facilities necessary to carry out its purpose or to follow the established standard of conduct to which it should conform. Vicarious Liability

Elements of Medical Negligence


duty breach injury proximate causation

Under 2176, two things must be proven: that the hospital did not exercise reasonable care and caution required of prudent hospitals; and second, that this failure is the cause of injury to the patient.

Give an example of a hospital duty provided by law

Duties of Hospitals provided by Law


1. DUTY TO OBTAIN LICENSE 2. DUTY TO RENDER IMMEDIATE EMERGENCY MEDICAL ASSISTANCE 3. DUTY NOT TO REQUIRE DEPOSIT IN EMERGENCY AND SERIOUS CASES 4. DUTY NOT TO CAUSE DETENTION OF PATIENTS DUE TO NONPAYMENT

HOSPITAL CODE OF ETHICS


The Primary objective of the hospital are the following: 1.2 To provide the best possible facilities for the care of the sick and injured at all times; 1.3 To constantly upgrade and improve methods for the care, the cure, amelioration and prevention of disease; and

HOSPITAL CODE OF ETHICS


1.4 To promote the practice of medicine by Physicians within the institution consistent with the acceptable quality of patient care. These objectives require an efficient organization, a competent administrator, a qualified medical staff, other well-trained personnel and adequate physical facilities with all of which services are made available at all times consistent with community needs.

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

What doctrine may be used to make a hospital liable for acts of an independent contractor such as a physician who performs a negligent act causing injury to patient?

Vicarious Liability
1. vicarious liability for acts of an employee 2. the doctrine of apparent authority or agency by estoppel

Doctrine of Apparent Authority


It must be stressed that under the doctrine of apparent authority, the question in every case is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question.

Hospital's manifestations - described as an inquiry whether the hospital acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital.

Patient's reliance - as an inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence

THANK YOU!

CASE 1
13/F underwent an appendectomy. Apparently, patient was not weighed prior to the operation. The Operation was scheduled at 5PM but started 5:45PM because the surgeon arrived only at that time. Patient was finally brought out of the OR at 7PM and brought back to her room. Patient did not wake up and had a weak heartbeat but was apparently revived. Surgeon and anesthesiologist then left.

Approximately 15 minutes later, patient suffered convulsions. The family physician, surgeon and a cardiologist were called and after examining patient, doctors consulted with each other. The cardiologist then informed the parents that the infection went up to her head and that the anesthesiologist will be called. The anesthesiologist arrived only at 10:30PM.

Upon arriving and aeeing 2 small bottles and a big bottle of dextrose hanging above the bed of the child, the anesthesiologist said, "What is this? Christmas tree or what?" When asked why the child is deteriorating, the anesthesiologist answered, "that is nothing, the child will regain consciousness and if the child will not regain consciousness, I will resign as a doctor. Patient never regained consciousness and died 3 days later.

CASE 2
Elderly male consulted clinic and found to have BP 210/100 and HR 112. Patient was given Capoten 25mg and advised to go to a hospital. Physician instructed clinic ambulance to stand-by for conduction. After resting for a few minutes, patient said that he will just look for a companion. A nurse was asked to look for the patient but he could not be found. After a few minutes, the doctor left.

Patient apparently went to the hospital and was treated in the emergency room for four hours. Upon being discharged and prior to arriving home, patient experienced nausea, abnormal palpitation and uneasiness and had to be brought back to the hospital. He was admitted for treatment but the following morning, he suffered a stroke. He never completely recovered and eventually died months later.

CASE 3
A video was uploaded in YouTube showing an operation wherein medical staff extracted a can of body spray lodged in a patients rectum. Throughout the entire operation, the staff were seen to laugh and jeer, and several of them exclaimed, baby out! when the spray can was finally removed. The hospital apparently asked the patients permission to take the video of the unusual case, and the patient agreed.

CASE 4
Several sex videos found their way in the internet showing a physician having sex with various female partners. Videos were apparently taken without the knowledge and consent of the women, some of whom were his patients. Immorality complaints were filed against the physician before the Professional Regulations Commission.

The physicians license was revoked as he was found guilty of immorality and dishonorable and/or unethical conduct offensive to the profession. Physicians are expected to show respect for women and their patients, and to uphold the honor, dignity and integrity of the medical profession.