Medical Malpractice and Negligence

MEMBERS

Airah Vanne Burgos – BSBA-Financial Management

Reynaldo Angelito Cortes – Information and Communication Technology

Marjorie Guarino – Public Administration

Stephanie Ann Ramos– BS Nursing

Rejeane Louise Ignacio – Education Major in Information Technology

Rhodora Ledesma, M.D./Nuclear Medicine

COVERAGE

RES IPSA LIQUITUR

PROXIMATE CAUSE

DOCTRINE OF CORPORATE RESPONSIBILITY

DOCTRINE OF RESPONDEAT SUPERIOR

DOCTRINE OF APPARENT AUTHORIT

CAPTAIN OF THE SHIP DOCTRINE

BORROWED SERVANT RULE

Medical Malpractice & Negligence: DISTINCTIONS

• Medical Malpractice – general term used when a medical practitioner (Doctor) or an allied medical practitioner (Dentist, Nurse, Medical Technologist) KNOWINGLY deviates from the standard practice of medicine

• Medical Negligence – specific term used when a medical practioner does not exercise due diligence and standard care required of him thus resulting to injury to the patient. Usually connotes accidental or unintentional injury.

Duties of Doctors

GENERAL PRACTITIONER – an M.D., board certified , goes into practice without further training in any particular field of medicine.

Standard of care required is ORDINARY CARE and DILIGENCE in the application of his knowledge and skill in the practice of medicine.

SPECIALIST – an M.D., goes into further training in a particular field of medicine and is certified as such after passing the specialization board (Diplomate or Fellow).

- FPCP - FPCC - FPCS - FPPS - FPSNM- FACP - ACNC - ACS, etc.

Standard of care required is more than just ordinary care and diligence but a HIGHER degree of care expected from an average physician or general practitioner.

Elements of Medical Negligence

1. Breach of such professional duty or improper performance thereof;

2. Injury is caused to the patient, constituting actionable malpractice;

3. Duty to perform at least the same level of care that any reasonably prudent doctor would use to treat a condition under the same circumstances;

4. The doctor’s actions in fact caused the harm to the patient or the proximate cause of the patient’s injury.

Proximate cause

• “that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.”

• a legal concept of "cause-and-effect" relationships

• determines whether an injury would have resulted from a particular cause.

• In Malpractice - An element required to prove negligence; i.e., the plaintiff–Patient or Patient's estate must prove that the Patient's injury is reasonably connected to the physician's action, through either the 'but for' test or the 'substantial factor‘ test.

Two pronged EVIDENCE

1. Evidence as to the recognized standards of the medical community in the particular kind of case; AND

2. A showing that the physician DEVIATED from this standard in his treatment.

Note: It is a matter of expert opinion whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient. + Court’s appreciation of the facts and the significance of an expert’s opinion.

Obstacles to obtaining EVIDENCE based on expert testimony

The Hippocratic Oath mandates physicians to give primordial consideration to the well-being of their patients. If a doctor fails to live up to this precept, he is accountable for his acts. This notwithstanding, courts face a unique restraint in adjudicating medical negligence cases because physicians are not guarantors of care and, they never set out to intentionally cause injury to their patients. However, intent is immaterial in negligence cases because where negligence exists and is proven, it automatically gives the injured a right to reparation for the damage caused. Cantre vs Sps Go, G.R. No. 160889, April 27, 2007

Obstacles to obtaining EVIDENCE based on expert testimony

HIPPOCRATIC OATH - deterrent to getting a candid opinion from one physician who knows that his testimony will pin down a fellow physician. So if you cannot prove your case by means of an expert witness who is not very cooperative, call Mr. RES IPSA LIQUITUR

Doctrine of RES IPSA LIQUITUR

- Literally means: “the thing speaks for itself”. - Its function is to aid the plaintiff in proving the elements of negligence by

circumstancial evidence. - The doctrine can only be invoked when and only when, under the circumstances,

involved, direct evidence is absent and not readily available.

Medical malpractice can be established by the doctrine of res ipsa liquitur. It is applicable to cases where the court, from its fund of knowledge, can determine the standard of care or where an ordinary layman can conclude that there was negligence on the part of the doctor.

Limitation: not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished.

In cases involving medical negligence, the doctrine of RES IPSA LIQUITUR allows the mere existence of an injury to justify the presumption of negligence on the part of the person who controls the instrument causing the injury. Cantre vs Sps Go, G.R. No. 160889, April 27, 2007

Cantre vs Sps Go, G.R. No. 160889, April 27, 2007

Facts: Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the Dr. Jesus Delgado Memorial Hospital. She was the attending physician of respondent Nora S. Go, who was admitted at the said hospital on April 19, 1992.

Nora Go delivered a baby boy by normal vaginal delivery, with Dr. Cantre in attendance. After the delivery, Nora had massive vaginal bleeding. Because of profuse bleeding, patient went into hypovolemic shock.

The BP dropped to 0/0.

Dr. Cantre was able to stabilize the patient. She ordered a drop light to be placed near the patient and her blood pressure monitored.

However, a gaping wound was caused by the blood pressure cuff that was used to monitor the patient’s blood pressure.

Issues:

Is petitioner liable for the injury suffered by respondent Nora Go?

Injury – gaping wound in the arm where the BP cuff was placed.

Cause - either the BP cuff or the drop light which was placed

too near the arm of the patient

Ruling:

The Hippocratic Oath mandates physicians to give primordial consideration to the well-being of their patients. If a doctor fails to live up to this precept, he is accountable for his acts. This notwithstanding, courts face a unique restraint in adjudicating medical negligence cases because physicians are not guarantors of care and, they never set out to intentionally cause injury to their patients. However, intent is immaterial in negligence cases because where negligence exists and is proven, it automatically gives the injured a right to reparation for the damage caused.

In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury to justify a presumption of negligence on the part of the person who controls the instrument causing the injury, provided that the following requisites concur:1. The accident is of a kind which ordinarily does not occur in the absence of someone's negligence;2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.

• As to the first requirement, the gaping wound on Nora's arm is certainly not an ordinary occurrence in the act of delivering a baby,

• far removed as the arm is from the organs involved in the process of giving birth. • Such injury could not have happened unless negligence had set in somewhere.• Second, whether the injury was caused by the droplight or by the blood pressure

cuff is of no moment. Both instruments are deemed within the exclusive control of the physician in charge under the “CAPTAIN OF THE SHIP" doctrine.

• This doctrine holds the surgeon in charge of an operation liable for the negligence of his assistants during the time when those assistants are under the surgeon's control.

• In this particular case, it can be logically inferred that petitioner, the senior consultant in charge during the delivery of Nora's baby, exercised control over the assistants assigned to both the use of the droplight and the taking of Nora's blood pressure. Hence, the use of the droplight and the blood pressure cuff is also within petitioner's exclusive control.

• Third, the gaping wound on Nora's left arm, by its very nature and considering her condition, could only be caused by something external to her and outside her control as she was unconscious while in hypovolemic shock. Hence, Nora could not, by any stretch of the imagination, have contributed to her own injury.

• NO CONTRIBUTORY NEGLIGENCE ON THE PART OF THE PATIENT

Doctrine of Contributory Negligence Definition

• Doctrine of Common Fault.• It is the conduct on the part of the plaintiff, contributing as a legal cause to the

harm he has suffered, which falls below the standard to which he is required to conform for his own protection.

Legal BasisArticle 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 the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the court shall mitigate the damages to be awarded.

Article 2214, Civil CodeIn quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover.

Instances where there is contributory negligenceFailure to give the physician an accurate history (Mackey v. Greenview Hospital Inc. 587 SW 2d 589, Ky App. 1979)Failure to follow the treatment recommended by the physician (Gerber v. day, 6 P 2d

535, Cal 1931; Ernest v. Schwartz, 445 SW 2d 337,

LIABILITY OF HOSPITALS

Professional Services, Inc. v Agana, G.R. No. 126297, January 31, 2006

Facts: PSI, together with Dr. Miguel Ampil and Dr. Juan Fuentes was impleaded by Enrique Agana and Natividad Agana (later substituted by her heirs), in a complaint for damages filed in the RTC of QC for injuries suffered by Natividad when Dr. Ampil and Dr. Fuentes neglected to remove from her body two gauzes which were used in the surgery they performed on her on April 11, 1984 at the Medical City General Hospital . PSI was impleaded as owner, operator and manager of the hospital.

As a consequence, the patient suffered pain, in the abdomen. She went abroad for further tests but she came back still in pain, with no definite diagnosis as to what caused the pain. After a few months from surgery she developed foul smelling vaginal discharge. 2 pieces of surgical gauze were found stuffed in her vagina. Diagnosis: Recto-vaginal Fistula.

Issue: Liability of Hospitals

For the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians.

(Professional Services, Inc. v Agana, G.R. No. 126297, January 31, 2006.)

While consultants are not, technically employees, the control exercised, the hiring and right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of wages. In assessing whether such relationship exists, the control test is determining.

(Nograles v Capitol Medical Center, G.R.,No. 142625, December 19, 2006.)

The hospital’s liability is also anchored upon the following doctrines:

• agency principle of apparent authority or agency by estoppel

• doctrine of corporate negligence/corporate responsibility

which have gained acceptance in the determination of a hospital’s liability for negligent acts of professionals because of the actions fo a principal or an employer .

(Professional Services, Inc. v Agana, G.R. No. 126297, January 31, 2006 )

Liability of Hospitals APPARENT AUTHORITY

Where it is shown that a hospital, by its actions, has held out a particular physician as its agent and/or employee and that a patient has accepted treatment from that physician in the reasonable belief that it is being rendered in behalf of the hospital, the hospital will be liable for physician’s negligence.

(Professional Services, Inc. v Agana, G.R. No. 126297, January 31, 2006)

Liability of Hospitals BORROWED SERVANT DOCTRINE

• BORROWED SERVANT RULE• The common law principle that the employer of a borrowed employee, rather

than the employee’s regular employer, is liable for the employee’s actions that occur while the employee is under the control of the temporary employer. Sometimes referred to as borrowed employee doctrine.

Liability of Hospitals Doctrine of Corporate Responsibility

• A hospital has the duty to see that it meets the standards of responsibilities for the care of patients. Such duty includes the proper supervison 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 Art. 2180, and directly liable for its own negligence under Art. 2176.

(Professional Services, Inc. v Agana, G.R. No. 126297, January 31, 2006)

Liability of Hospital/Medical Director/Dept. Head

Doctrine of Respondeat Superior

• Means “let the master answer for the acts of the subordinate.”• Under this doctrine, the liability is expanded to include the master as well as the

employee.• The legal principle that the responsibility and accountability for patient care lie

with the supervising physician, regardless of whether that clinician has performed the procedure in question.

(Medical Dictionary for the Health Professions and Nursing © Farlex 2012)

• Both employee and superior are liable; liability is expanded to the superior.

(JISTARRI V. NAPPI 378 Pa.Super. 583 (1988))

MEDICAL MALPRACTICE / NEGLIGENCE:

THE EXCEPTION RATHER THAN THE RULE

THE RULE IS THAT DOCTORS ARE COMPASSIONATE,

SINCERE AND TRUE TO THEIR CALLING,

BOUND BY THEIR HIPPOCRATIC OATH,

TO SERVE AND HEAL, AND NOT TO DO HARM OR INJURY.