Doctrine in Medical Malpractice and Negligence

Medical Malpractice refers to professional negligence by a health care professional or provider in which
treatment provided was substandard, and caused harm, injury or death to a patient. In the majority of
cases, the medical malpractice or negligence involved a medical error, possibly in diagnosis, medication
dosage, health management, treatment or aftercare. The error may have been because nothing was done
(an act of omission),or negligent act.

It is also 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

Medical malpractice law provides a way for patients to recover compensation from any harms resulting
from sub-standard treatment. The standards and regulations for medical malpractice differ slightly from
country-to-country; even within some countries, jurisdictions may have varying medical malpractice laws.

Medical Negligence refers to an act or omission (failure to act) by a medical professional that deviates
from the accepted medical standard of care. It is usually the legal concept upon which the case hinges,
from a "legal fault" perspective. Negligence on its own does not merit a medical malpractice claim, but
when the negligence is the cause of injury to a patient, there may be a good case for medical malpractice
It occurs when a doctor, dentist, nurse, surgeon or any other medical professional performs their job in a
way that deviates from this accepted medical standard of care. In keeping with our car accident analogy,
if a doctor provides treatment that is sub-standard in terms of accepted medical norms under the
circumstances, then that doctor has failed to perform his or her duty, and is said to be negligent.

It is also

 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.

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

How do we determine if a person acted in a negligent manner? What is the standard of care?

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

How Negligence Becomes Medical Malpractice

In short, medical negligence becomes medical malpractice when the doctor’s negligent treatment causes
undue injury to the patient -- makes the patient’s condition worse, causes unreasonable and unexpected
complications, or necessitates additional medical treatment, to name just a few examples of what’s
considered “injury” in a malpractice case.

In other words, the addition of two additional elements -- legal causation and damages -- are necessary
before medical negligence will give rise to a viable medical malpractice lawsuit. If the doctor’s medical
negligence was not a foreseeable result of the patient’s harm (causation), or if the doctor’s medical
negligence actually had no detrimental effect on the patient’s condition (damages), a medical malpractice
claim will fall short.
Medical Negligence, what do you need to prove for your action to prosper?
Dr. Fernando P. Solidum vs. People, G.R. No. 192123, 10 March 2014, gives the requisites for an action
based on medical negligence, whether civil, criminal, or administrative, to prosper.

Specifically, the Supreme Court explained that it is necessary to prove by competent evidence the
following elements:
1. the duty owed by the physician to the patient, as created by the physician-patient relationship, to
act in accordance with the specific norms or standards established by his profession (standards of care);
2. the breach of duty by the physician's failing to act in accordance with the applicable standard of
care;
3. the causation (i.e., there must be a reasonably close and casual connection between the
negligent act or omission and the resulting injury); and
4. the damages suffered by the patient.

Standard of care, in the medical profession, refers to the specific norms or standards to protect the patient
against unreasonable risk. As noted by the Supreme Court itself, no clear definition of the duty of a
particular physician in a particular case exists and this standard must be determined in every case, with
the judge weighing the testimonies of experts on both sides to ultimately determine the standard, as the
trier of fact.

Malpractice Negligence
Definition A type of negligence where a Failure to exercise the care that
licensed professional fails to a reasonably prudent person
provide services as per would exercise in like
standards set by governing body circumstances
Intentional? Yes Can be intentional or
unintentional
Cases filed in: Civil Courts Civil Courts
Criteria for proving the case Duty, breach, causation and Duty, breach, causation and
damages damages
Example A doctor intentionally causing A driver causing harm to
harm to patients dye to not passengers due to his
performing his duties as per carelessness
medical standards

Doctrines

• Doctrine of Vicarious Liability

– o Doctrine of Ostensible Agent
– o Borrowed Servant Doctrine
– o Captain of the Ship Doctrine
• 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

Doctrine of Efficient Intervening Cause

 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 Vicarious Liability

 Doctrine of Imputed Negligence/Command Responsibility.

 Liability for the tort of another
 Secondary or indirect liability
 Vicarious liability means the responsibility of a person, who is not negligent, for the wrongful
conduct or negligence of another.
 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.

Why apply this doctrine?

 Deep pocket theory;
 The employer has the power to select his employee and to control his acts;
 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;
 To treat them as operating expense.

Related Civil Code Provision/s

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.”

Doctrine of Apparent/Ostensible Agent

 In cases wherein the employees are at the same time are independent contractors of the
hospital;
 Because of this peculiar situation, they are considered ostensible agents and therefore, the
hospital must be held liable for their negligent acts.(pathologist, radiologist, anesthesiologist).
 Fixes liability when there is no Employer-Employee relationship
  The principal holds itself out to the public as a provider of medical services through
advertising or by an express representation.
 The patient “looked” to the hospital to provide competent medical care.
 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

Borrowed Servant Doctrine

 Ordinarily, resident physicians, nurses and other personnel of the hospital are employees or
servants of the hospital.
 The physician “borrows” the nurses, med tech, residents etc. employed by the hospital to help
him provide medical care to his patients.
 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 deemed borrowed from the hospital by someone and for any wrongful
act committed by them during the period, their temporary employer must be held liable for the
discharge of their acts and duties;
 In the determination whether one is a borrowed servant, it is necessary that he is not only
subjected to the control of another with regard to the work done and the manner of performing it
but also that the work to be done is for the benefit of the temporary employer.

Captain of the Ship Doctrine

 This doctrine enunciates 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.
 Surgeon is likened to a ship captain who must not only be responsible for the safety of the
crew and also of the passengers of the vessel.
 The head surgeon is made responsible for everything that goes wrong within the four corners
of the operating room.
 Assumes that the doctor is in complete control of everything and everyone in the operating
room.
 Largely abandoned in other jurisdictions.

Doctrine of Res Ipsa Loquitor

 “The thing speaks for itself”; nature of the wrongful act or injury is suggestive of negligence.
 Fact or occurrence of an injury taken with the surrounding circumstances may permit an
inference or make out of a plaintiff a prima facie case and present a question of fact for
defendant to meet with an explanation.
 The patient was injured in a manner that would not normally occur but for a breach of the
applicable standard of care.
 He was injured by an agency or instrumentality within the exclusive control of the defendant.
 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.
 It is a mere evidentiary rule.
  It is a rule of sympathy to counteract the conspiracy of silence.
 General rule: expert testimony is necessary to prove that a physician has done a negligent
act or that has deviated from the standard of medical practice.
 Requisites of Res Ipsa Loquitor Doctrine:
o The accident must be of a kind which ordinarily does not occur in the absence of
someone’s negligence;
o It must be caused by an agency or instrumentality within the exclusive control of the
defendant;
o 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:
o Objects left in the patient’s body at the time of caesarian section;
o Injury to a healthy part of the body;
o Removal of a wrong part of the body when another part wad intended;
o Infection resulting from unsterilized instruments;
o Failure to take radiographs to diagnose a possible fracture;
 Instances where the Doctrine of Res Ipsa Loquitor does not apply:
o Where the Doctrine of Calculated Risk is applicable;
o When an accepted method of medical treatment involves hazards which may
produce injurious results regardless of the care exercised by the physician.
o Bad Result Rule;
o Honest Errors of judgment as to Appropriate Procedure;
o 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 Contributory Negligence

 Doctrine of Common Fault

 It has been defined as 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 defendant’s negligence, is the proximate cause of the injury.
 Related Civil Code Provisions
o Art. 2179, Civil Code

“ When the plaintiff’s 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 defendant’s lack of due care, the plaintiff may recover
damages, but the court may mitigate the damages to be awarded.”

o 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:

o Failure to give the physician an accurate history;
o Failure to follow the treatment recommended by the physician;
o Leaving the hospital against the advice of the physician;
o Failure to seek further medical assistance if symptoms persist.

Doctrine of Superior Knowledge

 In the physician-patient relationship, the physician has superior knowledge over his patient.
The patient just follows the instructions and orders of the physician and is usually inactive and
virtually places himself in the command and control of the physician.
 The defense of contributory negligence is available only when the patient’s conduct is a truly
flagrant disregard of his health and cannot apply where the patient is mentally ill,
semiconscious, heavily sedated or of advanced age.

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 non-response.

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”, which means that a person who assents and was injure is not
regarded in law to be injured.

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.

Fellow Servant Doctrine

 This doctrine provides that if a servant (employee) was injured on account of the negligence
of his fellow servant (employee), the employer cannot be held liable.

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.

Proximate Causation

 It is the nearest in the order of responsible causation or that which stands next in causation to
the effect, not necessarily in time or space but in causal relation
 That cause in which in natural and continuous sequence, unbroken by any sufficient
intervening case, produces the injury and without which the result would not have occurred.
 Requisites
o Direct physical connection between the wrongful act of the physician and the injury
sustained by the patient
o Case of wrongful act of the physician must be efficient and not be too remote from
the development of the injury suffered by the patient
o Result be the natural continuous and probable consequences

Doctrine of Corporate Negligence/ Corporate Responsibility

 Determination of a hospital’s liability for negligent acts of professionals because of the actions of
a principal or an employer.
 The hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to
ensure the patient’s safety and well-being while at the hospital.
 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
o the use of reasonable care in the maintenance of safe and adequate facilities and
equipment;
o the selection and retention of competent physicians;
o the overseeing or supervision of all persons who practice medicine within its walls; and
o the formulation, adoption and enforcement of adequate rules and policies that ensure
quality care for its patients

 A hospital has the duty to see that it meets the standards of responsibilities for the care of
patients.
  It includes the proper supervision of the members of its medical staff.
 If a hospital breached its duties to oversee or supervise all persons practicing medicine within its
walls and also failed to take an active step in fixing the negligence committed, it will be vicariously
liable for the negligence of the doctor under Article 2180 NCC and directly liable for its own
negligence under Article 2176 NCC (Professional Services Inc vs Agana GR No. 126297, Jan.
31, 2006)

Doctrine of Respondeat Superior

 This means “let the master answer for the acts of subordinate”.
 The liability is expanded to include the master as well the employee.
 The responsibility and accountability for patient care lie with the supervising physician, regardless
of whether that clinician has performed the procedure in question.
 Both the employee and superior are liable and liability is expanded to the superior.

Doctrine of Strict Liability
 A person injured by a defective product can recover compensation from his injury from anyone
in the distributive chain who sold the product while defect was present even though the seller
exercises conceivable caution.
 Negligence or carelessness is not an issue nor warranty or promise.
 Drug manufacturer is liable if his product is contaminated by any impurities which harm the user.
 If the drug has side effects, it is the duty of the manufacturer to warn the physician of it either
through the literature attached to it or services of promoters. Once the physician has been
forewarned, the manufacturer has no duty to insure that the warning reaches the patient in
normal circumstances.

Sole Responsibility vs Shared Responsibility

Sole responsibility

 When the negligent act or omission which is the proximate cause of the injury suffered by
patient is attributed to the wrongful act of person

Shared responsibility

 When the injury suffered by the patient is caused by the negligent act of two or more persons,
each of them acting concurrently and successively in the production of injury.