Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
-branch of medicine that deals with the application of medical knowledge to the purposes of law and in the administration of justice
MEDICAL JURISPRUDENCE
deals with the aspect of law and legal concepts in relation with the practice of medicine
PURPOSES
To protect the public from charlatans; To promote professionalism and foster professional interrelationship; To develop awareness of the rights, duties and obligations of the patient, physician, and the hospital; To control the increasing number of medical malpractice suits against physicians; To explain the purpose and procedure of certain legislation; To study the need to amend, repeal our health care laws in harmony with the recent scientific and social development.
.it often undermines the pursuit of truth as the opposing parties seek to win at all cost without the obligation to reveal the facts which may be detrimental to their case. The lawyer aims to win the fight not to help the court discover facts or establish the truth.
SOURCES OF LAW
Constitution Laws enacted by the legislative body Decrees, Orders, Proclamation, Letters, CA, BP, RA Administrative acts, orders, Rules and Regulation Local customs Generally accepted principles of International law
BOARD OF MEDICINE
Composition: Six members appointed by the president from a list submitted by the Executive Council of the PMA.
Qualifications: - Natural-born citizen; - Duly-registered physician; - In the practice of medicine for at least 10 years; - Of good moral character and of recognized standing in the medical profession as certified by PMA; - Not a member of any faculty of any medical school (including any pecuniary interest).
3. Examination Requirements - must have passed the corresponding Board Examination Preliminary Examination -At least 19 years of age; - Of good moral character; -Have completed the first two years of the medical course; Final or Complete Examination -Citizen of the Philippines or of any country who has submitted competent and conclusive - documentary evidence confirmed by the DFA showing that his countrys existing laws permit citizens of the Philippines to practice medicine under the same rules and regulations governing citizens thereof (RECIPROCITY RULE).
4. Holder of certificate of registration No issuance to any candidate who has been: -Convicted by a court of competent jurisdiction of any crime involving moral turpitude; -Found guilty of immoral or dishonorable conduct after investigation by the Board of Medicine; -Declared to be of unsound mind.
Preliminary - Anatomy and Histology Physiology Biochemistry Microbiology and Parasitology Final - Pharmacology and Therapeutics Pathology Medicine Obstetrics and Gynecology Pediatrics and Nutrition Surgery and Ophthalmology, Otorhinolaryngology Preventive Medicine and Public Health Legal Medicine, Ethics and Medical Jurisprudence
Scope of Examination:
PRACTICE OF MEDICINE
What is the practice of medicine? It is a privilege or franchise granted by the State to any person to perform medical acts upon compliance with law, that is, the Medical Act of 1959 as amended which has been promulgated by the State in the exercise of police power to protect its citizenry from unqualified practitioners of medicine. It is diagnosing and applying and the usage of medicine and drugs for curing, mitigating, or relieving bodily disease or conditions.
ACTS CONSTITUTING THE PRACTICE OF MEDICINE (pursuant to Sec.10, Art. III of the Medical Act of 1959 as amended):
A) who shall for compensation, fee, 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 human disease, injury, deformity, physical, mental, psychical condition or any ailment, real or imaginary, regardless of the nature of the remedy or treatment administered, prescribed or recommended; B) who shall by means of signs, cards, advertisement, 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 human disease, injury, deformity, physical, mental or psychical condition; C) who shall falsely use the title of M.D. after his name, shall be considered as engaged in the practice of medicine.
By DECISIONS OF COURTS are not considered to constitute practice of medicine: a) One who takes bp reading; b) Application of medicated massage; c) Hospital; d) Nurse anesthesist
Exemptions
By PROVISIONS OF LAW are not considered to constitute practice of medicine (Sec.11, Art. III, Medical Act of 1959 as amended): a) Any medical student duly enrolled in an approved medical college; b) dentist; c) physiotherapist; d) optometrist; e) Any person who renders any service gratuitously in cases of emergency or in places where the services of a physician, nurse or midwife are not available; f) Any person who administers or recommends any household remedy as per classification of existing Pharmacy Laws; g) Clinical psychologist with the prescription and direct supervision of a physician; Prosthetist.
Faith Healing
-There is nothing in the Medical Act of 1959 exempting it from the definition of the acts which constitute practice of medicine; -Related to constitutional guarantee to religious freedom (freedom to believe and freedom to act in accordance with ones belief); -Acted in pursuance of his religious belief and with the tenets of his church he professes, not deemed to be a practice of medicine but part of his religious freedom.
1. Those who have complied with the prerequisites to the practice of medicine in accordance with Sec. 8, Art. III, Medical Act of 1959 as amended;
2. Those who can have limited practice without any certificate of registration in accordance with Sec.12, Art. III, Medical Act of 1959 as amended:
Exclusive consultation in specific and definite cases; Attached to international bodies to perform certain definite work in the Phils; Commissioned medical officers stationed in the Phils in their own territorial jurisdiction; Exchange professors in special branches of medicine; Medical students who have completed the first four years of medical course, graduates of medicine and registered nurses who may be given limited and special authorization by the DOH;
3. Balikbayan Physicians pursuant to PD 541, Allowing Former Filipino Professionals to Practice Their Respective Professions in the Philippines Proviso: - Of good standing prior to their departure and in their adopted country; - Have registered with PRC and paid their professional fee; Pay the corresponding income tax;
4. Foreign physicians qualified to practice by Reciprocity Rule or by endorsement; 5. Medical Students pursuant to Sec.11(a) and Sec.12(d), Art.III, Medical Act of 1959 as amended; 6. Limited practitioners of medicine - Those that are governed by specific licensure laws
PHYSICIAN
..is a person who after completing his secondary education follows a prescribed course of medicine at a recognized university or medical school, at the successful completion of which, is legally licensed to practice medicine by the responsible authorities and is capable of undertaking the prevention, diagnosis, and treatment of human illness by the exercising independent judgment and without supervision. (WHO)
According to Justice Malholm CONSTITUTION is that written instrument enacted by direct actions of the people by which the fundamental powers of the government are established, defined, and by which these powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.
Purpose
To prescribe the permanent framework of a system of government, to assign to the several departments their respective powers and duties, and to establish certain first principles on which the government is founded. (11Am. Jur. 606)
AMENDMENT isolated or piecemeal change in the constitution while REVISION is the revamp or the rewriting of the entire instrument
PHYSICIAN-PATIENT RELATIONSHIP
Contract - is the meeting of minds between two persons whereby one binds himself with respect to the other, to give something or to render some service(Art.1305, NCC)
1. Expressed explicitly stated orally or in writing 2.Implied the existence can be inferred from the acts of the contracting parties. Inferred by law as a matter of reason and justice for their acts or conduct
1. Pre-employment PE for purposes of determining whether an applicant is suitable for employment; 2. PE for eligibility for insurance; 3. Physician appointed by court to examine the accused; 4. In performing an autopsy; 5. Casual consultation in an unordinary place.
PSYCHOLOGICAL PATTERNS OF PHYSICIANPATIENT RELATIONSHIP ACTIVITY-PASSIVITY RELATION No interaction between physician and patient because the patient is unable to contribute activity. This is characteristic in an emergency cases when the patient is unconscious. GUIDANCE-COOPERATION RELATION Patient is conscious and suffering from pain, anxiety and other distressing symptoms, he seeks help and willing to cooperate. The physician is in a position of trust. MUTUAL PARTICIPATION RELATION It is in the nature of a negotiated agreement between equal parties.
1. He should posses the knowledge and skill of which an average physician is concerned; General practitioner vs Specialist 2. He should use such knowledge and skill with ordinary care and diligence;
locality rule the standard of care is measured by the degree of care
in the locality similar locality rule diligence is determined when the other physicians in the locality or similar locality could have acted the same way national standard of care - the diligence is determined on what is applicable on a national standard basis
3. He is obliged to exercise the best judgment; 4. He has the duty to observe utmost good faith.
N.B.
- Physician-Patient relationship does not imply
guaranty or any promise that the treatment will be successful - it does not imply any promise or guaranty that the treatment will benefit the patient - it does not imply any promise or guaranty that the treatment will produce certain result - it does not promise or guaranty that the treatment will not harm the patient - it does not promise that the physician will not commit errors in an honest way
DUTIES and OBLIGATIONS Imposed on the Patient in the Course of the PhysicianPatient Relationship
1. He must give an honest medical history; 2. He must inform the physician of what occurred in the course of the treatment; 3. He must cooperate and follow the instructions, orders and suggestions of the physician 4. He must state whether he understands the contemplated course of action; He must exercise the prudence to be expected of an ordinary patient under the same circumstances.
TERMINATION It is the time when the duties and obligations by a physician to his patient ceases. The following are some ways of termination of the relationship:
1.Recovery of the patient or when the physician considers that his medical services will no longer be beneficial to the patient; 2. Withdrawal of the physician provided: a) with consent of the patient, and b) patient is given ample time and notice; 3. Discharge of the physician by the patient; 4. Death of either party; 5. Incapacity of the physician 6. Fulfillment of the obligations stipulated in the contract; 7. In emergency cases, when the physician of choice of the patient is already available or when the condition of emergency ceases; 8. Expiration of the period as stipulated; 9. Mutual agreement for its termination.
RIGHTS OF PHYSICIAN
INHERENT RIGHTS
to choose patients to limit practice of medicine to determine appropriate management procedures to avail of hospital services
INCIDENTAL RIGHTS
right of way while responding to emergency right of exemption from execution of instruments and Library to hold certain public/private offices to perform certain services to compensation right to membership in medical societies
Art. II, Sec.3 Code of Ethics In cases of emergency, xxx .a physician should administer at least first aid treatment and then refer to a more qualified and competent physician xxx Sec.1 RA 6615 All government and private hospitalsxxx .are required to render immediate emergency medical assistancexxx. Sec.24 No.12, Medical Act of 1959 xxx.Although the ethical rule obliges a physician to attend to an emergency, his failure to respond to it may not make him liable if in so doing, there is a risk to his life. Refusal of a physician to attend to a patient in danger of death is not a sufficient ground for revocation or suspension of his registration if there is a risk to the physicians life
RIGHT OF EXEMPTION FROM EXECUTION OF INSTRUMENTS AND LIBRARY Rule 39, Sec.12, Rules of Court
RIGHT TO HOLD CERTAIN PUBLIC AND PRIVATE OFFICES which can only be filled up by physicians RIGHT TO PERFORM CERTAIN SERVICES RIGHT TO MEMBERSHIP IN MEDICAL SOCIETIES
- Any qualified medical practitioner has the right to become a member of the PMA through one of its component society. - Membership in a medical society may be voluntary or involuntary
Philippine Medical Care Act of 1969(RA 6111 as amended) provides that membership to the PMA is a requirement before a physician can practice medicine under the Medicare.
RIGHT TO COMPENSATION
- Based on the physician-patient contractual relationship; - Existence of friendship does not imply gratuitous services.
Art. III, Sec 5, Code of Ethics xxx.solicitation of patients, directly or indirectly, through solicitors or agents, is unethical. 1. Straight Fee for the amount tendered by the patient to the physician, the latter shall be responsible for the payment of hospital bill, lab fees, medicines, and other incidental expenses; - this kind of fee is unethical because the amount wagers with the unforceable contingencies .
The obligation to pay devolves on the patient himself provided he is of legal age, of sound mind and has the capacity to enter into a contractual relation. If the patient dies or becomes legally incapacitated to pay, medical fee shall be made from the following persons in order:
1. spouse; 2. descendants, of the nearest degree; 3. ascendants, of the nearest degree; 4. brothers and sisters. NB. Implied promise to pay the physician by the benefactor of the medical services rendered in emergency cases.
RIGHTS OF PATIENTS
1. Right to give consent to diagnostic and treatment procedures 2. Right to religious belief 3. Right of privacy 4. Right to disclosure of information 5. Right to confidential information 6. Right to choose his physician 7. Right of treatment Right to refuse necessary treatments
Bases of Consent
1. The physician-patient relationship is fiduciary in nature. 2. Patients right to self-determination. 3. Contractual relationship.
Purposes
1.To protect the patient from unnecessary/unwarranted procedure applied to him without knowledge 2. To protect the physician from any consequences for failure to comply with legal requirements
Forms of consent
1. Expressed consent written or oral 2. Implied consent may be deduced from the conduct of the patient
Informed/Enlightened Consent awareness and assent full disclosure of facts and willingness of the patient to submit
Quantum of Information Necessary to Form the Basis of a Valid Consent 1. Nature of his condition; 2. Natured of proposed treatment or procedure; 3. Possible alternative methods; 4. Risk involved; 5. Chances of success or failure Consent must be given freely or voluntarily
Subject matter is legal The subject matter or procedure applied to the patient and which the patient consented must not be that which the law penalizes or against public policy.
NB:
- consent of minor is not valid if the procedure will not benefit him - expressed refusal of a minor to surgery shall not prevail over the existing emergency - Doctrine of parens patriae , the court may grant consent for the minor.
RIGHT OF PRIVACY
RIGHT OF DISCLOSURE OF INFORMATION the physician-patient relationship being fiduciary in nature, the physician is obliged to make full and frank disclosure to the patient or any person who may act on his behalf all he pertinent facts relative to his illness
Art. 1339, Civil Code states that xxxfailure to disclose pacts, when there is duty to reveal them, as when the parties are bound by confidential elations, constitutes fraud.
LIABILITIES OF PHYSICIAN
ADMINISTRATIVE
Right to practice is temporarily withdrawn from the physician; A valid exercise of the police power of the State; Laws: Medical Act of 1959 as amended including the Code of Ethics and Rules and Regulations of the PRC; Penalty: reprimand, suspension, to revocation of license.
CRIMINAL
An act or omission which constitute a crime by the physician; Laws: Revised Penal Code and other special laws; Penalty: imprisonment and/or fine.
CIVIL
Awarded against a physician to compensate for theinjury he suffered on account of the physicians act or omission as a breach of the contractual relationship of both parties; Laws. Civil Code of the Philippines and other related laws; Art. 100, RPC states that Every person criminally liable is civilly liable.Penalty: damages
ADMINISTRATIVE LIABILITIES
Quantum of evidence needed: substantial evidence, such relevant evidence as a reasonable mind might accept as adequate to support a conclusion Administrative Due Process:
1. Right to hearing; 2. Tribunal must consider the evidence presented; 3. Decision must have something to support itself; 4. Evidence must be substantial; 5. Decision must be based on the evidence adduced at the hearing, or at least contained in the record and disclosed to the parties; 6. The Board or its judges must act on its or their independent consideration of the facts and the law of the case, and not simply accept the views of a subordinate in arriving at a decision. (Ang Tibay vs. CIR)
GROUNDS FOR ADMINISTRATIVE LIABILITIES Sec.24, Art.III, Medical Act of 1959 as amended
Personal Disqualifications:
1. Immoral or dishonorable conduct; 2. Insanity; 3. Gross negligence, ignorance or incompetence resulting in an injury to or death of the patient; 4. Addiction to alcoholic beverages or to any habitforming drug rendering him incompetent to practice medicine.
Criminal Acts:
1. Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude 2. Fraud in the acquisition of the certificate of registration; 3. Performance of or aiding in any criminal abortion 4. Knowingly issuing false medical certificate; 5. Aiding or acting as dummy of an unqualified or unregistered person to practice medicine.
Unprofessional Conduct
1. False or extravagant or unethical advertisements wherein other things than his name, profession, limitation of practice, clinic hours, office and home address, are mentioned; 2. Issuing any statement or spreading any news or rumor which is derogatory to the character and reputation of another physician without justification; 3. Violation of any of the Code of Ethics as approved by the PMA.
CRIMINAL LIABILITIES
A criminal act is an outraged to the sovereignty of the State so it must be instituted in the name of the sovereign people as party-plaintiff (People of the Philippines vs X) Quantum of evidence is proof beyond reasonable doubt. This does not mean absolute certainty as excluding possibility of error but only mean moral certainty, or that degree which produces conviction in an unprejudiced mind (Rule 133, Sec. 2, Rules of Court)
Presumption of Innocence and Equipoise Rule Conviction of a physician, aside from imprisonment and/or fine, his registration may be cancelled or revoked if:
a. The law imposes revocation of the license; b. The crime wherein the physician was found guilty involved moral turpitude.
Imprudence and Negligence- Art.365, Revised Penal Code Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correctional in its medium period, if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor shall be imposedxxx. Imprudence deficiency of action or failing to take the necessary precaution once they are foreseen.
Reckless imprudence voluntary, without malice, doing or failing to do an act which results from from material damage by reason of inexcusable lack of precaution on the part of the person performing the act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Simple imprudence consist in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. Negligence- indicates a deficiency of perception or when the wrongful act maybe avoided by paying proper attention and using due diligence in foreseeing them.
CIVIL LIABILITIES
A civil suit filed against physician and/or hospitals is premised on recovery of damages for their wrongful act or of employees.
In an action for breach of contract, the negligence of the doctor is not an issue, for if the doctor makes contract to effect a cure and fails to do so, he is liable for breach of contract even though he uses the highest possible professional skill.
2. Tort(Quasi-delict ) - Legal wrongdoing independent of a contract - Primary basis is negligence or fault of the physician as the one directly responsible for the injury sustained by the patient - Ordinarily, any malpractice action is based on torts or quasi-delict in as much as negligence is usually a ground for injury.
Art. 2176 of the Civil Code provides that 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 quasi-delictxxx.
MEDICAL MALPRACTICE
failure of a physician to properly perform the duty which devolves upon him in his professional relation to his patient which results to injury. It may be defined as bad or unskillful practice of medicine resulting to injury of the patient or 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 to injury to the patient.
Elements: 1. The physician has a duty to the patient; 2. The physician failed to perform such duty to his patient; 3. As a consequence of the failure, injury was sustained by the patient; 4. The failure of the physician is the proximate cause of the injury sustained by the patient.
Criminal medical malpractice, the act or omission complained of must be punishable by law at the time of commission or omission.
Proximate Cause is that cause, which, in natural continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the result would not have occurred.
1. There must be a direct physical connection between the wrongful act of the physician and the injury sustained by the patient. 2. The cause or the wrongful act of the physician must be efficient and must not be too remote from the development of the injury suffered by the patient. 3. The result must be the natural continuous and probable consequences.
Doctrine Cause
of
Efficient
Intervening
In the causal connection between the negligence of the physician and the injury sustained by the patient, there may be an efficient intervening cause which is the proximate cause of the injury.
Doctrine of Res Ipsa Loquitor Doctrine of Common Knowledge Doctrine of Contributory Negligence Doctrine of Assumption of Risk Doctrine of Last Clear Chance Fellow Servant Doctrine Rescue Doctrine
Art. 2180, Civil Code of the Philippines Obligations is 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 in the service of the branches in which the latter are employed or on the occassion 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, even though the former are not engaged in any business or industry 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.
CAPTAIN-OF-THE-SHIP DOCTRINE
- This doctrine innunciates 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.
REASONS FOR APPLICATION OF THE DOCTRINE OF VICARIOUS LIABILITY 1. Deep pocket theory; 2. The employer has the power to select his employee and to control his acts; 3. Since the employer benefits monetarily from the employee, the employer has to bear the loss when neither the employer nor the employee is at fault; 4. To treat them as operating expense.
Requisites of Res Ipsa Loquitor Doctrine: 1.The accident must be of a kind which ordinarily does not occur in the absence of someones negligence; 1. It must be caused by an agency or instrumentality within the exclusive control of the defendant; 2. It must not have been due to any voluntary action or contribution on the part of the plaintiff.
Some cases wherein the Doctrine of Res Ipsa Loquitor has been applied:
1. Objects left in the patients body at the time of caesarian section; 2. Injury to a healthy part of the body; 3. Removal of a wrong part of the body when another part wad intended; 4. Infection resulting from unsterilized instruments; 5. Failure to take radiographs to diagnose a possible fracture;
Instances where the Doctrine of Res Ipsa Loquitor does not apply:
1. Where the Doctrine of Calculated Risk is applicable; When an accepted method of medical treatment involves hazards which may produce injurious results regardless of the care exercised by the physician. 2. Bad Result Rule; 3. Honest Errors of judgment as to Appropriate Procedure; 4. Mistake in the Diagnosis. - In most medical malpractice suits, there is a necessity for a physician to give his expert medical opinion to prove whether acts or omissions constitute medical negligence. This doctrine has been regarded as rule of sympathy to counteract the conspiracy of silence
According to one of the most distinguished jurist(Canada), Justice Mignault: the practice of medicine and surgery is indispensable to humanity and should not be fettered by rules and responsibility so strict as to exact an infallibility on the part of the physician which he does not possess. we would be doing a disservice to the community at large if we were to impose liabilities on hospitals and doctors for everything that goes wrong. Doctors would be led to think more of their own safety than the good of the patients. Initiative would be stiffed and confidence shaken.
DOCTRINE OF CONTINUING NEGLIGENCE If the physician, after a prolonged treatment of a patient which normally produces alleviation of the condition, fails to investigate non-response, he may be held liable if in the exercise of care and diligence he could have discovered the cause of nonresponse.
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 FORESEEABILITY
- A physician cannot be held accountable for negligence if the injury sustained by the patient is on account of unforeseen conditions but if a physician fails to ascertain the condition of the patient for want of the requisite skill and training is answerable for the injury sustained by the patient if injury resulted thereto. - A physician owes duty of care to all persons who are foreseeably endangered by his conduct, with respect to the risk which make the conduct unreasonably dangerous.
RESCUE DOCTRINE
- If a physician who went to rescue a victim of an accident was himself injured, the original wrongdoer must be held liable for such injury.
Abandonment of patients
- termination of the physician-patient relationship without the consent of the patient and without giving the patient adequate notice and opportunity to find another physician.
Elements:
1. There is a physician-patient relationship; 2. The relationship is terminated without mutual consent of both parties; 3. Unilateral termination of the contractual relationship by the physician; 4. Continuing need of the patient for further medical treatment; 5. Abandonment must have been the cause of the injury or death of the patient.
Negligence in the administration of a drug which causes injury to the patient may be attributed to:
1. Drug reaction; failure to note history of allergy failure to test for signs of reaction failure to stop treatment when the drug reaction has been observed failure to provide adequate therapy to encounter a reaction treatment with a drug not proper for the illness 2. Overdosage; 3. Failure to give warning of the side effects; 4. Administering medicine on the wrong route; 5. Administration of the wrong medicine; 6. Administration of a drug on the wrong person; 7. Infection following an injection; 8. Injury to the nerves 9. Failure to administer the drug.
Sec.2(a), RA 4226, Hospital Licensure Act HOSPITAL means a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment, and care of individuals suffering from illness, disease, injury or deformity, or in need of obstetrical or other medical and nursing care. The term hospital shall also be construed as any institution, building or place where there are installed beds, cribs, bassinets for twenty-four hour use or longer by patients in the treatment of diseases, ..xxx. Classification, according to Control and Financial Support: 1. Public/Government operated and maintained either partially or wholly by the national, provincial, municipal, or city government or other political subdivision, or by any department, division, board or other agency thereof. (Sec. 2(b) RA 4226) 2. Private privately owned, especially established and operated with funds raised and contributed through donations, or private capital or other means.(Sec. 2(C), RA4226)
LIABILITIES OF HOSPITALS
2. Private Charitable, Voluntary or eleemosynary for charity - A charity hospital is established and maintained from the donations, contributions, philantrophic acts and pays no dividends. - The determination whether a hospital was established for charity is the articles of incorporation and the constitution and by-laws of the corporation.
N.B.
A hospital which allow the patient to pay if ever they have the capacity to do so and serve others gratuitously does not change the fundamental nature of the hospital as charity. The charging of the fee is not controlling but the purpose the fee will be use is the measure of charity. The fact that a hospital refuses to accept certain persons and others to pay in accordance with their means does not affect its charitable status, if it is operated for no profit. A charitable hospital must not consist of rendering charitable acts to few sporadic cases but must be extended to the public over a period of time. A hospital established for profit even though some bed are devoted for charity is not deemed a charitable institution.
Doctrines Applied to Charitable Hospital Immunity for the Acts of its Employees
Rules applied in determining the vicarious liability for the negligent acts of the resident physicians, nurses and others employees.
2. Power of Control;
3. Contract of Service;
If the contract has been entered with hospital to render professional services, the hospital may be held liable provided the negligent act was committed within the scope of employment. But if entered with the patient for contract of services, the principle of independent contractor theory is applied.
LIABILITIES OF HOSPITAL
1. CORPORATE Liabilities Those arising from failure of the hospital to furnish accommodations and facilities necessary to carry out its purpose or to follow in a given situation, the established standard of conduct to which the corporation should conform. Recent decisions of the court has extended hospital liability to patient for its failure to make careful selection, review, and supervision of independent physicians who are permitted to practice in the hospital. 2. VICARIOUS Liabilities for the Acts of Hospital Employees.
Admission
A person has no absolute right to be admitted in a hospital or to avail of hospital services. The relationship between the hospital and the patient is contractual. A government has no absolute privilege of choice of patients inasmuch as it is established and maintained by public funds except for justifiable grounds.
Transfer of patients
It must be premised on desire and consent of the patient and when the condition of the patient would permit to do so.
Discharge of patients
After evaluation of the patients condition, considers that further hospitalization is no longer indispensable, a physician may order the discharge with or without condition.
Refusal to be hospitalized
Refusal of the patient to remain in the hospital will not be a lawful ground to detain him if he is of sound mind and of legal age. Related laws: Art. 268, Revised Penal Code 1987 Philippine Constitution, Sec. 1 and 6 Refusal of the patient to leave the hospital
Premature discharge
The attending physician and the hospital any be held liable to the patient if the latter is discharged from the hospital in spite of the fact that further hospitalization is still necessary.
An AMBULANCE is a motor vehicle specifically designed, equipped and used for the transportation of the sick, injured or wounded persons operated by trained personnel for ambulance service. The criminal liability of an ambulance driver is the same as that of an ordinary driver. However, the civil liability arising therefrom the hospital must be held liable.
Hospital Pharmacy Sec. 42, RA 5921. A PHARMACY is a place or establishment where drugs, chemical products, active principles of drug, pharmaceuticals, proprietary medicine of pharmaceutical specialties, devices and poison are sold at retail and where medical and dental veterinary prescriptions are compounded and dispensed.
Medical Records
It is compilation of the pertinent facts of the patients life history, illness, and treatment. It is a compilation of scientific data derived from many sources, coordinated into a document and made available for various uses to serve the patient, the physician, the institution in which the patient has been treated, the science of medicine and society as a whole.
Sec. 17, Art. II, Comprehensive Dangerous Drug Act of 2002 (Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Chemicals. The penalty of imprisonment ranging from 1 year to 6 years and a fine ranging from 10,000.00 to 50,000.00 shall be imposed upon any practitionerxxx who violates or fails to comply with the maintenance and keeping of the original records of transactions on any dangerous drugs.xxx An additional penalty of revocation of license to practice his professionxxx.
Sec. 60, Art. VIII, Comprehensive Dangerous Drug Act of 2002 (Confidentiality of Records Under the Voluntary Submission Program) Judicial and medical records of drug dependents under the voluntary submission program shall be confidential and shall not be use against him for any purposes, except to determine how many time by himself or through his parent, spouse guardian or relative within the fourth degree of consanguinity or affinity, he voluntarily submitted himself to confinement, treatment and rehabilitation in any center..xxx.
Sec. 64. Art. VIII, Comprehensive Dangerous Drugs Act of 2002(Confidentiality of Records Under the Compulsory Submission Program) The records of a drug dependent who was rehabilitated and discharged from the Center under the compulsory submission program, or who was charged for violation of Sec. 15 of this act shall be covered under Sec 60 of this act. However, the records of a drug dependent who was not rehabilitated, or who has escaped but did not surrender himself within the prescribed period, shall be forwarded to the court and their use shall be determined by the court, taking into consideration public interest and the welfare of the drug-dependent.
Sec. 21 (c), Rule 130, Rules of Court (Privilege Communication) A person authorized to practice medicine, surgery, obstetrics cannot in civil case, without the consent of the patient, be examined as to any information, which he may have acquired in attending such patient In a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the character of the patient.
1. Name of the patient and house officers associated with the treatment of a patient; 2. Personal circumstances of the patient which are not ordinarily related to the treatment.
Sec. 37, Rule 130, Rules of Court Entries in the Course of Business Entries made at, or near the time of the transactions to which they refer, by a person deceased, outside the Philippines or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary course of business or duty. Patients record is admissible in evidence even if the person who made the entry is dead or not available, as the records are entries in the course of business.
DAMAGES
DAMAGES are the pecuniary compensations that may be recovered for breach of some duty or the violation of some rights recognized by law. If a suit is filed against a physician for a professional liability claims, the objective of the plaintiff is to recover damages. If the physician is found negligent in the performance of his professional services, he liable for the payment of damages for all the direct, natural and logical consequences of his act.
Art. 20, Civil Code Every person who, contrary to law, willfully or negligently causes damage to another shall indemnify the latter for the same. Art. 2176, Civil Code Whoever, by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damages done.
Damages must be sufficiently proven by evidence. To permit the Court to determine how much it must be. The proof must show the nature, extent, cause and probable duration of the injury.
TYPES OF DAMAGES
1. 2. 3. 4. 5. 6. Actual or Compensatory; Moral; Exemplary Nominal; Temperate; Liquidated
Kinds: 1. Dano emergente the loss already suffered by the patient 2. Lucro cesante failure to receive the benefit which would have pertained to him.
MORAL DAMAGES
Art. 2217, Civil Code Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be recovered if they are the proximate result of the defendants act or omission.
Physical Suffering Mental Anguish Fright and Moral Shock Besmirched Reputation and Social
Art. 2231, Civil Code In quasi-delict, exemplary damages may be granted if the defendant acted with gross negligence. Art. 2232, Civil Code In contracts and quasi-contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive and malevolent manner. Art. 2233, Civil Code Exemplary damages cannot be recovered as a matter of right; the court will decide whether or not they should be adjudicated.
compensation over and above actual or compensatory damages awarded as punishment or deterrence, because of the wanton, reckless, malicious or oppressive nature of the wrong committed.
Punitive damages are recoverable from a physician in an action for malpractice where there is evidence tending to show that he has acted with malice, or that he acted with recklessness, oppression, or with utter disregard to the effects of his act, or that he is guilty of gross negligence in the performance of his profession.
NOMINAL DAMAGES
Art. 2221, Civil Code Nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or recognized not for the purpose of indemnifying the plaintiff for any loss suffered. It is a trifling sum awarded to the plaintiff in an action where there is no substantial loss or injury to be compensated. It is awarded to plaintiff as a vindication of a right violated.
LIQUIDATED DAMAGES
Art. 2226, Civil Code Liquidated damages are those agreed upon by the parties to a contract, to be paid in case of breach thereof.
ATTORNEYS FEES
Attorneys fees and other related expenses in litigation, other than judicial cost are not as rule recoverable except when the law specifically provides. (Art.2208, Civil Code) 1. When exemplary damages are awarded; 2. When the defendants act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest; 3. In criminal cases of malicious prosecution against the plaintiff; 4. In case of clearly unfounded civil action or proceeding against the plaintiff; 5. Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just and demandable claim; 6. In actions for legal support; 7. In actions for the recovery of wages of household helpers, laborers and skilled workers; 8. In actions for indemnity under the workmens compensation and employers liability laws; 9. In a separate civil action to recover civil liability; 10. When at least double judicial costs are awarded; 11. In any other case where the court deems it just and equitable that attorneys fees and expenses of litigation should be recovered.
Art. IV, Sec. 15 A physician should never examine or treat a hospitalized patient of another without the latters knowledge and consent except in cases of emergency...xxx. Art. IV, Sec. 16 A physician called upon to attend to a patient of another physician because of an emergency.xxx.should attend only to the patient;\s immediate needs.xxx.
Art. IV, Sec. 17 Whenever in the absence of the family physician several physicians have been simultaneously called in an emergency case xxx..the first to arrive should be considered as physician in charge, unless the patient or his family has special preference for some other one among those who are presentxxx.
Art. IV, Sec.20 When a physician is requested by a colleague to take care of a patient because of an emergencyxxxThe physician should treat the patient in the same manner and with the same delicacy as he would have wanted his own patient cared for under similar conditionsxxx.
Art. 275, Revised Penal Code Abandonment of persons in danger and abandonment of ones own victim The penalty of arresto mayor shall be imposed upon: 1. Anyone who shall fail to render assistance to any person whom he shall find in an uninhabited place wounded or in danger or dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense. 2. Anyone who shall fail to help or render assistance to another whom he has accidentaqlly wounded or injuredxxx.
Standard of Care in Emergencies A physician cannot be held to the same conduct as one who had an opportunity to reflect, even though it later appears that he made a wrong decision yet prudent at that time.
2. Marriage - Sec. 22, Rule 130, Rules of Court During their marriage, neither the husband nor the wife may testify for or against the other without the consent of the affected spouse, except in a civil case by one against the other, or in any criminal case for a crime committed by one against the other or the latters direct ascendants or ascendants;
3. Death or Insanity - Sec. 23, Rule 130, Rules of Court Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of the deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person become of unsound mind; 4. Parental or filial Privilege - Sec. 25, Rule 130, Rules of Court No descendant can be compelled, in a criminal case, to testify against his parents and ascendants.
3. A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient; 4. A minister or a priest cannot, without the consent of the person making the confession, be examined as to any confession made to or any advice given him in his professional character in the course of discipline enjoined by the church to which he belongs; 5. A public officer cannot be examined during his term of office or afterwards as to communications made to him in official confidence, when the court finds that the public interest would suffer by the disclosure.
Sec. 24(c), Rule 130, Rules of Court A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the character of the patient.
Waiver of Privilege
HEARSAY EVIDENCE
An evidence not proceeding from personal knowledge of the witness, but from mere repetition of what he had heard others say. I does not derive its value solely from the credit of the witness but its value rests mainly in the veracity and competency of other persons. The very nature of the evidence shows its weakness, and it is admitted only in special cases because of necessity. As a general rule, it is NOT admissible in evidence. Sec. 36, Rule 130, Rules of Court Testimony generally confined to the personal knowledge of the witness; hearsay excluded. A witness can testify only to those facts which he knows of his own knowledge; that is, which is derived from his own perception, except as otherwise provided by these rules.
Sec. 37, Rule 130, Rules of Court The declaration of a dying person, made under a consciousness of an impending death, may be received in a criminal case wherein his death, may be received in a criminal case wherein his death is the subject of inquiry, as evidence of the cause and surrounding circumstances of such death.
Dying declaration
One of the exceptions in hearsay evidence rule. Is the statement made by a person who is at the point of death, and is conscious of his impending death, in reference to the manner in which he receives his injuries of which he is dying, or the immediate cause of his death, and in reference to the person who inflicted such injuries or in connection with such injuries of a person who is charged or suspected of having committed them; which statements are admissible in evidence in a trial where the killing of the declarant is the crime charged to the defendant.
Learned Treatises
Sec. 46, Rule 130, Rules of Court A published treatise, periodical or pamphlet on a subject of history, science or art is admissible as tending to prove the truth of a matter stated therein if the court takes judicial notice, or a witness expert in the subject testifies that the writer of the statement in the treatise, periodical or pamphlet is recognized in his profession or calling as expert in the subject.
An EXPERT WITNESS is one who has the capacity to draw inference from the facts which a court would not be competent to draw.
An OPINION maybe defined as the belief, judgment, inference, or sentiment formed by the mind with regard to things, person or events perceived by a witness. An opinion in the legal sense is something more than mere speculation or conjecture.
Sec. 48, Rule 130, Rules of Court General rule - The opinion of a witness is not admissible, except as indicated by the Rules. Sec. 49, Rule 130, Rules of Court Opinion of Expert Witness - The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence.
The witness may also testify on his impressions of emotion, behavior, condition or appearance of a person.
2.An ORDINARY witness need not be skilled on the line he is testifying but an EXPERT witness must be skilled on the art, science or trade he is testifying.
Kinds of Subpoena
1. Subpoena ad testificandum A process requiring a person to appear before a trial or hearing of an action or investigation conducted under our laws or for the taking of a deposition at a certain definite date, time and place to testify on some material issues. 2. Subpoena duces tecum A process which requires a person to produce at the trial some documents or papers which are under his control or possession that are pertinent to the issues of his controversy, at a certain date, time and place. 3. Subpoena duces tecum and testificandum
N.B. Failure to comply with a subpoena without justifiable reason is a ground for reprimand, suspension or revocation of the certificate of registration.
Sec. 2, Art. III, Code of Medical Ethics It is the duty of every physician, when called upon by the judicial authorities, to assist in the administration of justice on matters which are medico-legal in character. Sec. 24, Art. III, Medical Act of 1959 as amended xxx..(12) Violation of any of the provisions of the Code of Medical Ethicsshall be sufficient ground for reprimanding, or for suspending or revoking a certificate of registration as physician xxx. Refusal of a public officer to give assistance in the administration of justice is penalized by law Art. 233, Revised Penal Code The penalties of arresto mayorxxx, shall be imposed upon a public officer who, upon demand from a competent authority, shall fail to lend his cooperation towards the administration of justice or other public service, if such failure shall result in serious damage to the public interest, or to a third party.
3. When the patient is attending to an emergency and no one is available and competent enough to be his substitute to attend to such emergency. 4. On account of illness incapacitating him to attend.
Instances when the medical witness may not be compelled to answer questions in court
1. It will tend to subject him to punishment for an offense; Incriminatory questions may subject the witness to punishment or disclosure of which would form a necessary and essential part of a crime.
Sec. 17, Art. III, Phil Constitution No person shall be compelled to be witness against himself.
2. It will degrade his character, except when such degradation of character is the very fact at issue; A medical witness may refer to memoranda, notes or other pertinent papers:
2. Art. 181, Revised Penal Code, False Testimony favorable to a defendant: Any person who shall give false testimony in favor of the defendant in a criminal case, shall suffer the penalties of arresto mayor in its maximum period to prision correccional.xxxif the prosecution is for felony punishable by an afflictive penalty,..xxx.
3. Art. 182, Revised Penal Code, False Testimony in Civil Cases: Any person found guilty of false testimony in civil cases shall suffer the penalty of prision correccionalxxx if the amount in controversy shall exceeds 5,000 pesos xxx.
4. Art. 183, Revised Penal Code, False testimony in other cases and perjury in solemn affirmation: The penalty of arresto mayor xxx, knowingly making untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon ant material before a competent person authorized to administer an oath in cases in which the law so requires. Any person, who in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective penalties provided therein.
Requisites: 1. That the witness deliberately or intentionally falsified the truth; 2. That the other portions of the testimony to be discredited, are not corroborated by circumstances or other unimpeached evidence; 3. The false testimony must be on material point.
When it is not applicable 1.When there are sufficient corroborations in many grounds of the testimony; 2.When the mistake was not in a very material point; 3.When the error did not arise from the apparent desire to prevent the truth, but from innocent mistakes and the desire of the witness to exculpate himself though not completely.
CONTEMPT
Sec. 9, Rule 21, Rules of Court Contempt Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule. Sec. 1, Rule 71, Rules of Court Direct Contempt Punished Summarily A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, refusal to be sworn or to answer as witness, or to subscribe an affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by such courtxxx.
Sec. 3, Rule 71, Rules of Court Indirect contempt To Be Punished After Charged and Hearing After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period xxx., a person guilty of any of the following acts may be punished for indirect contempt:
1. Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; 2. Disobedience of or resistance to a lawful writ, process, order, or judgment of a court.; 3. Any abuse of or any unlawful interference with the process or proceedings of a court not constituting direct contempt; 4. Any improper conduct tending directly or indirectly to impede, obstruct, or degrade the administration of justice; 5. Assuming to be an attorney..; 6. The rescue of a person or property in the custody of an officer by virtue of an order.
But nothing in this section shall be construed as to prevent the court from issuing process to bring the respondent to the court, or from holding him in custody pending such proceedings.
Art. II Duties of Physicians to their Patients To attend to his patients faithfully and conscientiously. Free to choose whom to serve. Immediate action in cases of emergency. Proper consultation and referral. He must exercise good faith and strict honesty in expressing his opinion. Sacred trust of information Practice of medicine is not a business.
Art. III Duties of Physicians to the Community Cooperation with proper authorities, sanitation and health. To assist in the administration of justice. To protect the public from charlatans. No solicitation and extravagant and false advertisements. Gratuitous services to the indigents.
Penal Provisions -Violation of the provisions of this Code constitute unethical and unprofessional conduct and therefore a sufficient ground for the reprimand, suspension or revocation of the certificate of registration of the offending physician in accordance with the provisions of Sec. 24, par. 12 of the Medical Act of 1959.
Scope:
The kernel of the right is not against all compulsion, but testimonial compulsion only. It is simply against the legal process of extracting from the lips of the accused an admission of his guilt. It does not apply where the evidence sought to be excluded is not an incriminating statement but an OBJECT EVIDENCE(eg. Fingerprinting, photographing, paraffin testing, PE). The prohibition extends to the compulsion for the production of documents, papers and chattels that may be used as evidence against the witness except where the State has the right to examine or inspect under the police power of the State. The right also protects the accused against any attempt to compel him to furnish a specimen of his handwriting in connection with a prosecution for falsification.
Thank you very much and good day to everyone! ALBERT D. REBOSA, M.D., LL.B.