7/13/2013

MEDICAL MALPRACTICE
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. (medicalnewstoday.com)

DOCTOR

HOSPITAL
OTHER HEALTH CARE PROFESSIONALS

NURSE

PHARMACIST

What is Doctor-Patient Relationship?

ELEMENTS OF LIABILITY FOR MEDICAL MALPRACTICE 1. Duty 2. Breach 3. Injury 4. Proximate causation
SOURCES OF OBLIGATION IN MEDICAL MALPRACTICE 1. Delict 2. Quasi-delict 3. Contract

What is the STANDARD OF CARE required?

- It must be the reasonable average merit among the ordinarily good physicians.

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1.

When a doctor fails to attend to his patient & delays in attending his patient (Ramos v.

STANDARD OF CARE OF GENERAL PRACTITIONERS AND SPECIALISTS

Court of Appeals)
2.

1. 2.

When two doctors failed to conduct a thorough examination of the victim of a vehicular accident (Dr. Emmanuel Jarcia &

General Practitioners - ordinary care and diligence. Specialists that of an average specialist.

Dr. Marilou Bastan v. People)

National standards not a standard of a particular community. Locality Rule in relation to facilities Each physician has a duty to have a practical working knowledge of the facilities, equipment, resources, and options available to him or her as well as the practical limitations on the same.

Neighborhood Rule in treating his patient, a physician is under a duty to the patient to exercise that degree of care, skill & diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possessed & exercised in like cases

Expert Testimony
Burden of proof burden of proving the negligence of a doctor rests on the plaintiff who alleges such negligence which must be accompanied by expert testimony.
-

Qualified physicians possess unusual technical skills Testimony must prove that the circumstances cited are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. Usually necessary to support the conclusion as to causation

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DOCTRINE OF RES IPSA LOQUITUR -the thing speaks for itself

LOST CHANCE RULE

- That loss of opportunity for a better outcome is itself the injury for which negligently injured person may recover. DOCTRINE OF INFORMED CONSENT - The doctor must secure the consent of his patient to a particular treatment or investigative procedure

Requisites: The accident is of a kind which ordinarily does not occur in the absence of someones negligence 2. It is caused by an instrumentality within the exclusive control of the defendant/s 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated
1.

Limitation of its application

Doctor may be liable for quasi-delict under Article 2176

ELEMENTS OF LIABILITY

Duty of risk disclosure Cases when there is no duty to disclose 1. Emergency situation 2. When the patient is unconscious or otherwise incapable of consent

1. The physician had a duty to disclose material risks 2. The physician failed to disclose or inadequately disclosed those risks 3. As a direct & 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

OBJECTIVE REASONABLE PATIENT TEST

- In terms of what a prudent person in the patients position would have decided if suitably informed of the perils bearing significance
The plaintiff must show two types of causation 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. - Did the doctor disclose the information that, by established medical practice, is required to be disclosed?

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CAPTAIN OF THE SHIP DOCTRINE

LIABILITY OF HOSPITALS
- Vicarious liability as employer - Doctrine of corporate responsibility

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. It enunciates the 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.

(regardless of its relationship with the doctor, for its negligence or failure to follow an established standard of conduct)

- Liability for unlawful restraint (Patient

cannot be restrained to leave the hospital, the remedy is to file an action for recovery of money. Any person may act in behalf of the patient and apply in court for the issuance of the writ of habeas corpus.)

Governing law: R.A. No. 9173, Philippine Nursing Act of 2002. Standard and degree of care: National Standard If it concurs with the negligence of a doctor, the two of them are jointly and severally liable as tortfeasor.

Examples of negligence of nurses: 1. Failure to administer the medication ordered by the doctor 2. Failure to monitor a patients vital signs which caused the patients illness 3. Leaving a foreign object inside the body of the patient 4. Failure to protect the patient

Governing law: R.A. No. 5921 Order processing error : dispensing of wrong drug, or the right drug in the wrong strength, or the labeling of correct medication with incorrect directions. Degree of care: highest degree of care and diligence Doctrine of res ipsa loquitur is applicable

Applicable laws:
1. R.A. No. 4688, The Clinical Laboratory Law 2. R.A. No. 5527, The Philippine Medical Technology Act of 1969 3. Regulations issued by the DOH including Administrative Order No. 49-B Series of 1988, Revised Rules and Regulations Governing the

Registration, Operation, and Maintenance of Clinical Laboratories in the Philippines

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Their business is impressed with public interest, as such, high standards of performance are expected from them. The clinic must be administered, directed, and supervised by a licensed physician authorized by the Sec. of the DOH, the medical technologist must be under the supervision of the pathologist or licensed physician, and the results may only be released only to the requesting party.

Basis of responsibility: Code of Professional Responsibility An attorney is not bound to exercise extraordinary diligence, but only a reasonable degree of care and skill, having reference to the character of the business he undertakes to do. Proof of damage is necessary

Applicable law: R.A. No. 9298, Philippine Accountancy Act of 2004 Applicable standard: Skill of an ordinary accountant skilled in the knowledge, science, skill, and practice of accounting

Auditors may be held liable for breach of contract and negligence; they may also be liable for any perpetration of fraud upon an unsuspecting client. The relationship is both legal and moral. The client cannot be blamed for his unintelligent choice for the selection and appointment of an auditor.