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The third issue necessitates a glimpse at the historical development of Employers shall be liable for the damages caused by their employees and
hospitals and the resulting theories concerning their liability for the household helpers acting within the scope of their assigned tasks even
negligence of physicians. though the former are not engaged in any business or industry.
Until the mid-nineteenth century, hospitals were generally charitable The responsibility treated of in this article shall cease when the persons
institutions, providing medical services to the lowest classes of society, herein mentioned prove that they observed all the diligence of a good
without regard for a patients ability to pay. Those who could afford father of a family to prevent damage.
medical treatment were usually treated at home by their doctors.
However, the days of house calls and philanthropic health care are over. Professionals engaged by an employer, such as physicians, dentists, and
The modern health care industry continues to distance itself from its pharmacists, are not employees under this article because the manner
charitable past and has experienced a significant conversion from a not- in which they perform their work is not within the control of the latter
for-profit health care to for-profit hospital business. Consequently, (employer). In other words, professionals are considered personally liable
significant changes in health law have accompanied the business-related for the fault or negligence they commit in the discharge of their duties,
changes in the hospital industry. One important legal change is an and their employer cannot be held liable for such fault or negligence. In
increase in hospital liability for medical malpractice. Many courts now the context of the present case, a hospital cannot be held liable for the
allow claims for hospital vicarious liability under the theories of fault or negligence of a physician or surgeon in the treatment or
respondeat superior, apparent authority, ostensible authority, or agency operation of patients.
by estoppel.
Such view is grounded on the traditional notion that the professional
The statute governing liability for negligent acts is Article 2176 of the Civil status and the very nature of the physicians calling preclude him from
Code, which reads: being classed as an agent or employee of a hospital, whenever he acts in
a professional capacity. It has been said that medical practice strictly
Article 2176. Whoever by act or omission causes damage to another, there involves highly developed and specialized knowledge, such that
being fault or negligence, is obliged to pay for the damage done. Such physicians are generally free to exercise their own skill and judgment in
fault or negligence, if there is no pre-existing contractual relation rendering medical services sans interference. Hence, when a doctor
between the parties, is called a quasi-delict and is governed by the practices medicine in a hospital setting, the hospital and its employees
provisions of this Chapter. are deemed to subserve him in his ministrations to the patient and his
actions are of his own responsibility.
A derivated of this provision is Article 2180, the rule governing vicarious
liability under the doctrine of respondeat superior, thus: 5. The case of SCHLOENDORFF v. Society of New York Hospital, 211 N.Y.
125, 105 N.E. 92, 52 L.R.A., N.S. 505 (1914), was then considered an are required to submit proof of completion of residency, their
authority for this view. The SCHLOENDORFF DOCTRINE regards a educational qualifications, generally, evidence of accreditation by the
physician, even if employed by a hospital, as an independent contractor appropriate board (diplomate), evidence of fellowship in most cases, and
because of the skill he exercises and the lack of control exerted over his references. These requirements are carefully scrutinized by members of
work. Under this doctrine, hospitals are exempt from the application of the hospital administration or by a review committee set up by the
the respondeat superior principle for fault or negligence committed by hospital who either accept or reject the application.
physicians in the discharge of their profession.
After a physician is accepted, either as a visiting or attending consultant,
However, the efficacy of such doctrine has weakened with the significant he is normally required to attend clinico-pathological conferences,
developments in medical care. Courts came to realize that modern conduct bedside rounds for clerks, interns and residents, moderate grand
hospitals are increasingly taking active role in supplying and regulating rounds and patient audits and perform other tasks and responsibilities,
medical care to patients. No longer were a hospitals functions limited to for the privilege of being able to maintain a clinic in the hospital, and/or
furnishing room, food, facilities for treatment and operation, and for the privilege of admitting patients into the hospital. In addition to
attendants for its patients. Thus, in Bing v. Thunig, 2 N.Y. 2d 656, 163 NYS these, the physicians performance as a specialist is generally evaluated
2d 3, 143 (1957), the New York Court of Appeals deviated from the by a peer review committee on the basis of mortality and morbidity
Schloendorff doctrine, noting that modern hospitals actually do far more statistics, and feedback from patients, nurses, interns and residents. A
than provide facilities for treatment. Rather, they regularly employ, on a consultant remiss in his duties, or a consultant who regularly falls short of
salaried basis, a large staff of physicians, interns, nurses, administrative the minimum standards acceptable to the hospital or its peer review
and manual workers. They charge patients for medical care and committee, is normally politely terminated.
treatment, even collecting for such services through legal action, if
necessary. The court then concluded that there is no reason to exempt In other words, private hospitals, hire, fire and exercise real control over
hospitals from the universal rule of respondeat superior. their attending and visiting consultant staff. While consultants are not,
technically employees, x x x , the control exercised, the hiring, and the
In our shores, the nature of the relationship between the hospital and the right to terminate consultants all fulfill the important hallmarks of an
physicians is rendered inconsequential in view of our categorical employer-employee relationship, with the exception of the payment of
pronouncement in Ramos v. Court of Appeals, that for purposes of wages. In assessing whether such a relationship in fact exists, the control
apportioning responsibility in medical negligence cases, an employer- test is determining. Accordingly, on the basis of the foregoing, we rule
employee relationship in effect exists between hospitals and their that for the purpose of allocating responsibility in medical negligence
attending and visiting physicians. Thus, it was held: cases, an employer-employee relationship in effect exists between
hospitals and their attending and visiting physicians.
We now discuss the responsibility of the hospital in this particular
incident. The unique practice (among private hospitals) of filling up
specialist staff with attending and visiting consultants, who are
allegedly not hospital employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases. However, the
difficulty is more apparent than real.
In the first place, hospitals exercise significant control in the hiring and
firing of consultants and in the conduct of their work within the hospital
premises. Doctors who apply for consultant slots, visiting or attending,