5th Feb 2015

medical malpractice

Proving medical malpractice in the Philippines one of the more difficult civil cases in the Philippines. Medical procedures involve, to a great degree, technical matters, which must be clearly understood first, prior to pursuing a claim that a treatment was attended with malpractice. Moreover, in order to prove the existence of medical malpractice in any case, the legal requirements of the law must be completely satisfied.

Medical malpractice suits fall into the genre of claims based on tort, called quasi-delicts. In general, negligence suits require proof that a party failed to observe, for the protection of the interest of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. It is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. (Layugan vs. Intermediate Appellate Court, citing Black’s Law Dictionary, Fifth Edition, 930).

The Supreme Court, in a case, also had occasion to explain that doctors, because of their training and the very nature of their work, doctors or physicians are required to exercise utmost diligence in the performance of their tasks, to wit:

Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi then already provided: “If a physician make a deep incision upon a man with his bronze lancet and cause the man’s death, or operate on the eye socket of a man with his bronze lancet and destroy the man’s eyes, they shall cut off his hand.” Subsequently, Hippocrates wrote what was to become part of the healer’s oath: “I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patients, and abstain from whatever is deleterious and mischievous. . . . While I continue to keep this oath unviolated may it be granted me to enjoy life and practice the art, respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot.” At present, the primary objective of the medical profession is the preservation of life and maintenance of the health of the people.

Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the ancients, neither will it and this Court, as this case would show, let the act go uncondemned.

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As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the people, and the State’s compelling interest to enact measures to protect the public from “the potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma.” Indeed, a physician is bound to serve the interest of his patients “with the greatest of solicitude, giving them always his best talent and skill.” Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of her profession’s rigid ethical code and in contravention of the legal standards set forth for professionals, in general, and members of the medical profession, in particular.” (Dr. Victoria L. Batiquin and Allan Batiquin vs. Court of Appeals, G.R. No. 118231, 05 July 1996.)

If the application of the foregoing rulings of the Supreme Court to an incident will show the presence of negligence, i.e., when a doctor, hospital or medical professional failed to perform the necessary medical services on a patient according to the degree of skill required from an ordinary practitioner of their respective professions, then a cause of action arising from negligence or quasi-delict exists.

However, being a distinct type of tort, the Supreme Court stated that, to prove medical malpractice or medical negligence, four (4) elements have to be established, to wit:

A word on medical malpractice or negligence cases.

In its simplest terms, the type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action caused injury to the patient. Hence, there are four elements involved in medical negligence cases: duty, breach, injury and proximate causation.  

As with any civil case, substantial evidence must be presented to establish the liability of the responsible party. If the elements of duty, breach, injury and proximate causation are established with substantial evidence, then a hospital, doctor, or other medical professional will be held liable for malpractice. Civil liability, in the form of damages, may be awarded by the court in such instances.

When a doctor or hospital accepts a patient for treatment, a physician-patient relationship is created. The first element of duty arises at this stage. By accepting a case, the doctor or hospital commenced the duty to render medical service in favor of the patient in accordance with the expected training and skill of a medical practitioner. This is in line with the ruling of the Supreme Court in the case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al, to wit:

Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-patient relationship was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, they will employ such training, care and skill in the treatment of their patients. They 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 circumstances. The breach of these professional duties of skill and care, or their improper performance, by a physician surgeon whereby the patient is injured in body or in health, constitutes actionable malpractice. Consequently, in the event that any injury results to the patient from want of due care or skill during the operation, the surgeons may be held answerable in damages for negligence.

The second element of breach is present when the hospital or doctor does treatment in breach of professional duties. An example of this would be a doctor that applies treatment without consulting the patient’s history. It is a standard operating procedure for all doctors to apprise themselves about the medical history of a person before they decide on taking him/her as a patient. This process is necessary so that the doctor can gauge whether he/she is capable of successfully helping the patient and also for the doctor to make the proper preparations and decisions with respect to how to treat said patient.

It is also worthy to note that under Section 2 Article II of the Code of Ethics promulgated by the Board of Medicine to govern the conduct of doctors practicing medicine in the Philippines, a physician has the obligation not to abandon a patient under any circumstance, to wit:

Section 2. A physician is free to choose whom he will serve. He may refuse calls, or other medical services for reasons satisfactory to his professional conscience. He should, however, always respond to any request for his assistance in an emergency. Once he undertakes a case, he should not abandon nor neglect it. If for any reason he wants to be released from it, he should announce his desire previously, giving sufficient time or opportunity to the patient or his family to secure another medical attendant.

Thus, it can be said that when a doctor or hospital unjustifiably refuses to proceed with treatment, or just suddenly abandons his or her patient, the act can be considered as breach of duty.

The presence of the third element arises where injury, liability or even death arises as a consequence of a negligent medical treatment or procedure.

 The last element to establish medical malpractice or medical negligence, is however, the most difficult one to prove. Medical procedures are fraught with varying consequences, and affected by innumerable factors such as the environment, personal health, health of the other members of the family, food intake, medicine, activities of the patient, such that it would be difficult to establish, to a convincing degree, whether the injury is the proximate result or directly arose from the procedure conducted.

However, there are instances of medical malpractice or medical negligence that involve the application of the familiar doctrine res ipsa loquitur. The doctrine of res ipsa loquitur, which directly translates to “the thing speaks for itself”, governs cases where negligence is clear by a simple examination of the injury or the circumstances surrounding the medical treatment given, such as where a gauze or a pair of scissors are left inside the body cavity after it has been sutured, or blood of a different type is infused to a patient.

In sum, the difficulty in successfully prosecuting medical negligence lies in the fact that medicine is not an exact science. There are numerous life-saving procedures that are experimental, or even not experimental, but are fraught with consequences, such that even the best doctors cannot predict the outcome of the treatment. Also, countless environmental variable play a direct hand in the effectiveness of a treatment.

All that any medical professional or hospital has to do to avoid medical malpractice is to study the procedure well including the patient’s history, keep the patient well-informed of the procedure which the doctor or hospital intends to perform, conduct the treatment in good faith, and with the required degree of competence, diligence and skill. This way, any claim of malpractice may be avoided.

Nicolas & De Vega Law Offices is a full service law firm in the Philippines. You may visit us at the 16th Flr., Suite 1607 AIC Burgundy Empire Tower, ADB Ave., Ortigas Center, 1605 Pasig City, Metro Manila, Philippines. You may also call us at +632 4706126, +632 4706130, +632 4016392, or email us at info@ndvlaw.com.

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