Medical Malpractice in the Philippines

All you need to know about medical malpractice in the Philippines

The doctor (or the hospital or the clinic) I went to did not have a license. Is he (or it) liable?

Yes. The lack of license is negligence per se. (Garcia, Jr. v. Salvador, G.R. No. 168512, March 20, 2007. See also Añonuevo v. Court of Appeals, G.R. No. 130003, October 20, 2004; Asuncion v. Vda. de Golez, G.R. No. L-14160, June 30, 1960.)

Must I have been informed of the risks of the procedure before I went through?

Yes. (Sidaway v. Board of Governors of the Bethlem Royal Hospital, AC 871 (1985), UK Common Law.) The principle of Informed Consent requires that a patient be informed of the substantial risk of grave adverse consequences before he undergoes elective surgery.

What are the elements of medical malpractice?

1. There is a physician-patient relationship. A physician-patient relationship is formed when a patient engages the services of a physician. (Lucas v. Tuaño, G.R. No. 178763, 586 SCRA 173, 200, Apr. 21, 2009.)

2. There is a duty on the part of the physician to observe the same level of care that any reasonably competent doctor would use to treat the condition under the same circumstances. (Cayao-Lasam v. Ramolete, G.R. No. 159132, 574 SCRA 439, 454, Dec. 18, 2008, citing Reyes v. Sisters of Mercy Hospital, G.R. No. 130547, 396 Phil. 87, 107, Oct. 3, 2000.)

Parenthetically, medical literature may be used to establish the standard of care. (Shiffman, Melvin A., “Medicolegal Aspects of Liposuction”, Atlas of Liposuction, Jp Medical Ltd, 1st ed., 2013, p. 221.)

3. There is a breach of duty and injury. The injury contemplated by the law is a bodily injury to or death of the patient. (Cruz v. Court of Appeals, G.R. No. 122445, 346 Phil. 872, 876, Nov. 18, 1997.)

4. There is a causation between the breach and the injury. The act or omission complained of is the proximate cause of the injury suffered. The proximate cause of an injury is that cause that, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. (Vda. de Bataclan v. Medina, 102 Phil. 181, 186 [1957].)

It's obvious that the doctor was negligent.

You do not have to prove all the elements of medical malpractice then. The elements of duty and breach are presumed under the doctrine of res ipsa loquitur.

The breach of duty is presumed under the doctrine of res ipsa loquitur. Where the thing that caused the injury complained of is shown to be under the management of the defendant or his servants and the accident was such as in ordinary course of things does not happen if those who have its management or control used proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by the defendant’s want of care. This shifts the burden of proof to the defendant to establish that he has indeed observed due care and diligence. (Batiquin v. Court of Appeals, G.R. No. 118231, 327 Phil. 965, 968, July 5, 1996.)

The doctrine can be invoked only when under the circumstances, direct evidence is absent and not readily available. This is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it while the plaintiff has no such knowledge and is therefore compelled to allege negligence in general terms and rely upon the proof of the happening of the accident in order to establish negligence. The inference which the doctrine permits is grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person. (Macalinao v. Ong et al., G.R. NO. 146635, December 14, 2005. Citations omitted.)

In res ipsa loquitur, direct evidence is not necessary. (Jarcia, Jr. et al. v. People, G.R. No. 187926, February 15, 2012.)

Expert witnesses are dispensed with. (Solidum v. People, G.R. No. 192123, March 10, 2014.) A layman’s testimony is enough if he “would be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not as such as would ordinarily have followed if due care had been exercised.” (Ramos v. Court of Appeals, G.R. No. 124354, April 11, 2002.)

What are the elements of res ipsa loquitur?

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 conduct which would make the plaintiff responsible is eliminated. (Cantre v. Go, G.R. No. 160889, 522 SCRA 547, 556, Apr. 27, 2007.)

Give examples of the application of res ipsa loquitur.

Ending up in a comatose does not ordinarily arise from a simple operation unless someone is negligent. The administration of anaesthesia does not ordinarily result in decerebration, let alone death. (Ramos v. Court of Appeals, G.R. No. 124354, April 11, 2002. See also Voss vs. Bridwell, Kansas Supreme Court.)

What if someone else in the operating room was the one negligent, not the doctor?

The doctor is still liable under the Captain-of-the-Ship Doctrine and the Borrowed Servant Doctrine. The Captain-of-the-Ship Doctrine is “the doctrine imposing liability on a surgeon for the actions of assistants who are under the surgeon's control but who are employees of the hospital, not the surgeon.” ( BLACK’S LAW DICTIONARY [8th ed. 2004]; See Professional Services, Inc. v. Agana, G.R. No. 126927, 513 SCRA 478, Jan. 31, 2007.) The Borrowed Servant Doctrine imputes liability in a surgeon for the negligence committed by operating room personnel regardless of the identity of the employer of the latter. (Nogales v. Capitol Medical Center, CA-G.R. CV No. 45641, Feb. 6, 1998.)

Can I hold the clinic or the hospital liable?

Yes. The clinic is liable under the vicarious liability of an employer under art. 2180 of the Civil Code (respondeat 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 x x x Employers shall be liable for the damages caused by their employees x x x acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry x x x 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.

The clinic is also vicariously liable under the doctrine of Apparent Authority, also known as the Holding Out Theory, the doctrine of Ostensible Agency, and the doctrine of Agency by Estoppel. The elements are as follows:

1. The hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital;

2. Where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and

3. The plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. (See Darwin P. Angeles, “A Framework of Philippine Medical Malpractice Law”, 85 PHIL. L.J. 926-927, [2011].)

For instance, the plaintiffs and the patient were not informed that the doctors were independent contractors. Rather, they were misled that there were staff privileges granted by the clinic to the doctors in the form of extending the use of its medical facilities and the services of its medical staff, and all communications were in the name of the clinic. All these taken collectively gave a clear impression that the hospital exercised supervision and control over its staff and physicians and thus placing their actions under its responsibility, giving an impression that the negligent physicians were members of the clinic’s medical staff in collaboration with its other employed specialists. (Nogales v. Capitol Medical Center, 511 SCRA 204, 230, December 19, 2006.)

Furthermore, the clinic is directly liable under the doctrine of Corporate Negligence. The hospital owes a direct duty to its patients to ensure their safety and well-being while at the hospital. (40A Am. Jur. 2d §26 citing Stroud v. Abington Memorial Hospital, 546 F. Supp. 2d 238 [E.D. Pa. 2008].) The clinic has the “duty to exercise reasonable care to protect from harm all patients admitted into its facility for medical treatment.” (Professional Services, Inc. v. Agana, G.R. No. 126927, 513 SCRA 478, Jan. 31, 2007.) The duties of the clinic include the following:

1. The use of reasonable care in the maintenance of safe and adequate facilities and equipment;

2. The selection and retention of competent physicians; the overseeing or supervision of all persons who practice medicine within its walls;

3. The formulation, adoption and enforcement of adequate rules and policies that ensure quality care for its patients; and

4. To make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises. (id.)

A breach of any of these duties makes the clinic directly liable. (Darwin P. Angeles, “A Framework of Philippine Medical Malpractice Law”, 85 PHIL. L.J. 926-927, [2011].)

How much can I collect from the hospital and the doctor as compensation? 

It depends on your lawyer's negotiation and litigation skills. If the hospital or clinic is prominent and the doctor reputable, you may be able to collect more than from ones who are not.

How can I make the doctor responsible?

You can have him imprisoned, have his licensed cancelled, and collect monetary compensation.

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What are considered practices of medicine?

Any person who shall, for compensation or reward or even without the same, diagnose, treat, operate, and prescribe remedies for any human disease, injury, deformity, physical or mental condition or any ailment, real or supposed, regardless of the nature of the remedy or treatment used or recommended, or who shall, by means of signs, cards, advertisements, or in any other way, either offer or undertake by any means or method, to diagnose, treat, manipulate, adjust, operate, or prescribe for any human disease, pain, injury, deformity, physical or mental condition. (Sec. 770, RA 1885)

What is Medical Malpractice?

Any person who shall practice medicine in the Philippines without having previously obtained the proper certificate of registration issued by the Board of Medical Examiners as herein constituted, or the lawful Board which was its predecessor shall be considered as guilty of medical malpractice. (Sec. 770, RA 1885)

What is a medical malpractice suit?

A medical malpractice suit is an action available to victims to redress a wrong committed by medical professionals who caused bodily harm to, or the death of, a patient. As the term is used, the suit is brought whenever a medical practitioner or health care provider fails to meet the standards demanded by his profession, or deviates from this standard, and causes injury to the patient. (Noel Campang v. Nelson Cortejo)

What are the elements of medical negligence?

The elements of medical negligence are (1) duty, (2) breach, (3) injury, and (4) proximate causation.

As discussed by the Court in the case of Noel Campang v. Nelson Cortejo, duty refers to the standard of behavior that imposes restrictions on one's conduct. It requires proof of a professional relationship between the physician and the patient. Without the professional relationship, a physician owes no duty to the patient, and cannot, therefore, incur any liability. A physician-patient relationship is created when a patient engages the services of a physician, and the latter accepts or agrees to provide care to the patient.

Breach of duty occurs when the doctor fails to comply with or improperly performs his duties under professional standards.

If the patient, as a result of the breach of duty, is injured in body or in health, actionable malpractice is committed, entitling the patient to damages.

The patient must, lastly, prove the causal relation between the negligence and the injury. This connection must be direct, natural, and should be unbroken by any intervening efficient causes. In other words, the negligence must be the proximate cause of the injury.

What is the standard of care required?

The standard of care required of doctors are characterised by these two: (1) factual and (2) legal. According to the case of Noel Campang v. Nelson Cortejo, it is factual as medical negligence cases are highly technical in nature, requiring the presentation of expert witnesses to provide guidance to the court on matters clearly falling within the domain of medical science, and legal, insofar as the Court, after evaluating the expert testimonies, and guided by medical literature, learned treatises, and its fund of common knowledge, ultimately determines whether breach of duty took place.

What are the guidelines in qualifying an expert witness?

To qualify a witness as a medical expert, it must be shown that the witness (1) has the required professional knowledge, learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject; and (2) is familiar with the standard required of a physician under similar circumstances; where a witness has disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the evidence than to its admissibility. The Court further enunciated that it is not critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of the subject. Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he is not directly engaged but as to which he has an opinion based on education, experience, observation, or association with that specialty, his opinion is competent. (Evans v. Ohanesian)

What are the doctrines applicable to medical malpractice?

(1)Respondeat superior; (2) Res ipsa loquitor and (3) Good Samaritan Law/ Rescue Doctrine.

Respondeat superior is governed by the rule on vicarious liability under Art 2180, which provides:

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.

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.

Res ipsa loquitur or the thing speaks for itself. Under [this] doctrine . . . the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that [the] injury was caused by an agency or instrumentality under [the] exclusive control and management of defendant, and that the occurrence [sic] was such that in the ordinary course of things would not happen if reasonable care had been used. The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. (Batiquin v. CA)

Good Samaritan is defined as an individual performing volunteer services who does not receive compensation to reasonably assist a person in an emergency. It further provides that no good Samaritan shall be liable for harm caused by an act or omission if:

(1) the good Samaritan was acting in an emergency at the time of the act or omission;
(2) if appropriate or required, the good Samaritan was properly licensed, certified, or authorized by the appropriate authorities for the activities undertaken in an emergency at the time of the act or omission; and
(3) the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the good Samaritan.

What are the other doctrines found under Respondeat superior?

(1) Independent Contractor Doctrine; (2) Borrowed servant doctrine and the (3) Captain of the ship doctrine.

In general, a hospital is not liable for the negligence of an independent contractor-physician. There is, however, an exception to this principle. The hospital may be liable if the physician is the "ostensible" agent of the hospital. This exception is also known as the "doctrine of apparent authority."

In apparent authority, or what is sometimes referred to as the "holding out" theory, or doctrine of ostensible agency or agency by estoppel, it has its origin from the law of agency. It imposes liability, not as the result of the reality of a contractual relationship, but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists.

The case of Nogales v. Capitol Medical Center discussed the borrowed servant doctrine. This doctrine provides that once the surgeon enters the operating room and takes charge of the proceedings, the acts or omissions of operating room personnel, and any negligence associated with such acts or omissions, are imputable to the surgeon. While the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon the surgeon for their negligent acts under the doctrine of respondeat superior.

In the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the surgery room and all personnel connected with the operation. Their duty is to obey his orders. (Professional Services Inc v. Natividad and Enrique Agana)

What are the applicable doctrines for the liabilities of hospitals?

The applicable doctrines are: (1) Vicarious Liability; and (2) Apparent Authority/Ostensible Agency.

Vicarious liability is found under Art 2180 and 2176 of the Civil Code, which provides:

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.

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.

Article 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.

The Court held 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. Private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, x x x, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with 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, 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.

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 respondeat superior principle for fault or negligence committed by physicians in the discharge of their profession. However, in Bing v. 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 respondeat superior. (Schloendorff v. Society of New York Hospital)

The doctrine of apparent authority is discussed in the case of Gilbert v. Sycamore Municipal Hospital wherein the Court held:

[U]nder the doctrine of apparent authority a hospital can be held vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor. The elements of the action have been set out as follows:

For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.

The element of holding out on the part of the hospital does not require an express representation by the hospital that the person alleged to be negligent is an employee. Rather, the element is satisfied if the hospital holds itself out as a provider of emergency room care without informing the patient that the care is provided by independent contractors. The element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff relies upon the hospital to provide complete emergency room care, rather than upon a specific physician.

Respicio & Co. represents victims, doctors and other medical professionals, and hospitals and other medical organisations in medical malpractice suits.

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