2.

6
Atty. Malaya Capulong, MD, LIB
Negligence
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.

How do we determine if a person acted in a

negligent manner?
The existence of negligence is determined by the
behavior of the person in the situation.

What is the standard of care?

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

September 19, 2015

The cause/the wrongful act of the physician must be

efficient and must not be too remote from the
development of the injury.

Medical Malpractice
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
Bad or unskillful practice of medicine which
results in injury to the patient
Failure on the part of the physician to exercise
the degree of care, skill and diligence, as to
treatment in a manner contrary to accepted
standards of medicine resulting in injury to the
patient.
Doctors
Nurses
Midwives
Pharmacists
Dentists
Physical Therapists
4 Elements of Malpractice
Duty
Breach
Injury
Proximate Causation
Duty
Duty to:
Possess medical knowledge
Possess the necessary skills
Exercise care
Use sound medical judgment
It is the responsibility of every doctor to practice
medicine according to the ethical standards of
his profession

Ordinary
prudent
man

Reasonably
competent
practitioner in the same class,
acting in similar circumstances.
Breach
Failure to diagnose or misdiagnosis
Failure to provide appropriate treatment
Unreasonable delay in treatment
Injury
Failure to adhere to standard of case Injury
But for the physicians conduct the patient would
not have been injured.
Proximate Causation
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.
There must be a direct physical connection
between the wrongful act of the physician and the
injury sustained by the patient.

Transcribers: GONZAGAs, MONTEMAYOR

The result must be the natural continuous and

probable consequences.

LEGAL PRINCIPLES AND DOCTRINES APPLIED IN

MEDICAL MALPRACTICE CASES
Doctrine of Res Ipsa Loquitor

The thing speaks for itself

The fact of occurrence of injury raises the

presumption of negligence.
1. The patient was injured in a manner that would
not normally occur but for a breach of the
applicable standard of care;
2. He was injured by an agency or instrumentality
within the exclusive control of the defendant;
3. 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

Doctrine of Vicarious Liability

Liability for the tort of another
Secondary or indirect liability
Art. 2180, Civil Code of the Philippines
Obligations are 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 xxx in which the latter are employed
or on the occasion 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 xxx
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.
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.
Captain of the Ship Doctrine
Assumes that the doctor is in complete control of
everything and everyone in the OR.
Largely abandoned in other jurisdictions.
Borrowed Servant Doctrine
The physician borrows the nurses, med tech,
residents etc. employed by the hospital to help
him provide medical care to his patients.
Nurses and other personnel of the hospital are
employees or servants of the hospital;
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 borrowed from the hospital
and for any wrongful act committed by them during
the period, their temporary employer must be
held liable.

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Negligence & Malpractice

When is an employee considered the

borrowed servant of another?
The employee is subject to the control of
another with regard to the work done and
the manner of performing it
The work to be done by the employee is
for the benefit of the temporary employer.
Doctrine of Contributory Negligence
Doctrine of Common Fault
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.
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.
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:
1. Failure to give the physician an accurate
history;
2. Failure
to
follow
the
treatment
recommended by the physician;
3. Leaving the hospital against the advice of
the physician;
4. Failure to seek further medical assistance
if symptoms persist.
The absence of reasonable care on the part of
the patient or his attendant that combines
with the negligent action of the doctor
resulting in the damage completed off directly
and without which damage should not have
occurred.
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 - a person who
assents and was injured is not regarded in
law to be injured.

Transcribers: GONZAGAs, MONTEMAYOR

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 Apparent Authority Or Ostensible Agent

Fixes liability when there is no EmployerEmployee relationship

1. The principal holds itself out to the public as a
provider of medical services through advertising
or by an express representation.
2. The patient looked to the hospital to provide
competent medical care.

RAMOS vs. COURT OF APPEALS, DE LOS

SANTOS MEDICAL CENTER, ET. AL (April
11, 2002)
No
Employee-Employer
relationship
between Drs. Hosaka and Gutierrez and
De Los Santos Medical Center
Drs. Hosaka and Gutierrez are solely liable
for their own negligent acts
Is
a
Hospital
Liable
for
Medical
Malpractice? Yes.

1.
2.
3.

Doctrine of Apparent Authority

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
Rogelio P. Nogales, et. al.vs. Capitol
Medical Center, et. al. (December 19,
2006)
CMC granted hospital privileges to Dr.
Estrada
On admission, consent forms were printed
on CMC letterhead
The spouses Nogales were not informed
that Dr. Estrada was an independent
contractor
Mr. & Mrs. Nogales chose Dr. Estrada
because of his affiliation/employment with
CMC which they characterized as a
reputable hospital
PROFESSIONAL
SERVICES,
INC.
vs.
AGANA AGANA vs. JUAN FUENTES AMPIL
vs. AGANA (JANUARY 31, 2007)
PSIs (Medical City Hospital) liability
is based on:
o Doctrine of Apparent Authority
o Doctrine of Corporate Negligence

Page

Negligence & Malpractice

Doctrine of Apparent Authority: By
accrediting Dr. Ampil & Dr. Fuentes and
publicly advertising their qualifications the
hospital created the impression that they
were its agents.
Doctrine of Corporate Negligence: 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.

4.

Doctrine of Corporate Negligence

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
1. the use of reasonable care in the
maintenance of safe and adequate
facilities and equipment;
2. the selection and retention of competent
physicians;
3. the overseeing or supervision of all
persons who practice medicine within its
walls; and

3.

Transcribers: GONZAGAs, MONTEMAYOR

the formulation, adoption and enforcement

of adequate rules and policies that ensure
quality care for its patients
Questionable Sponge Count Scrub
Nurses Duty Hospital Liability
-END-

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QUIZ with ANSWERS

Failure to observe that degree of care, precaution and vigilance which the
circumstances justly demand resulting in injury to another person.
(Negligence)
That which an ordinary prudent man would exercise under the same
circumstances. (Standard of Care)
4 elements of malpractice (Duty, Breach, Injury, Proximate
Causation)
Failure on the part of the physician to exercise the degree of care, skill
and diligence, as to treatment in a manner contrary to accepted
standards of medicine resulting in injury to the patient. (Malpractice)
The duty of providing quality medical service is no longer the sole
prerogative and responsibility of the physician but also the hospital.
(Doctrine of Corporate Negligence)
Fixes liability when there is no Employer-Employee relationship
(Doctrine of Apparent Authority)
Physician who has the last clear chance of avoiding damage or injury but
negligently fails to do is liable. (Doctrine of Last Clear Chance)
Predicated upon knowledge and informed consent (Doctrine of
Assumption of Risk)
Doctrine of Common Fault (Doctrine of Contributory Negligence)
They are under the temporary supervision and control of another other
than their employer while performing their duties. (Borrowed Servant
Doctrine)
Assumes that the doctor is in complete control of everything and
everyone in the OR. (Captain of the Ship Doctrine)
Secondary or indirect liability (Doctrine of Vicarious Liability)
The fact of occurrence of injury raises the presumption of negligence.
(Doctrine of Res Ipsa Loquitor)

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