MEDICAL MALPRACTICE

DR. ARSENIO C. PASCUAL, JR., M.D., Ll. B.

Not only a medical problem but a disease of the social body and is contagious! Definition – bad, wrong, or injudicious treatment resulting in injury, unnecessary suffering, or death to the patient, and proceeding from ignorance, carelessness, want of professional skill, disregard of established rules or principles, neglect, or malicious or criminal intent. (Black’s law Dictionary, 3rd ed.) 

DUTY

BREACH

INJURY

PROXIMATE CAUSE.

 

FOUR ELEMENTS INVOLVED IN MEDICAL NEGLIGENCE CASES, NAMELY:

THE PHYSICIAN OR SURGEON IS NOT REQUIRED AT HIS PERIL TO EXPLAIN WHY A PARTICULAT DIAGNOSIS WAS NOT CORRECT, OR WHY ANY PARTICULAR SCIENTIFIC TREATMENT DID NOT

PRODUCE THE DESIRED RESULT 

INASMUCH AS THE CAUSES OF THE INJURY INVOLVED IN MALPRACTICE ACTIONS ARE DETERMINABLE ONLY IN THE LIGHT OF SCIENTIFIC KNOWLEDGE, IT HAS BEEN RECOGNIGED THAT EXPERT TESTIMONY IS USUALLY NECESSARY TO SUPPORT THE CONCLUSION AS TO CAUSATION.

• Physician is condemned by hindsight

• Physician made a valiant effort to aid the patient under difficult and complex circumstances

• Physician is held to unrealistic standard of perfection

• Reality that bad results follow good medical treatment

• Medicine is both a science and an art because of the high degree of uncertainty about the human body’s response to treatment and the limited ability of science to understand, predict, and control results

Considerations

• Complex factual and legal issues are involved

• Human dignity is at issue

• Arduous task of educating the judge on complex medical issues

• Plaintiff must, aside from proving negligence, also needs to prove that the conduct of the physician caused the harm and that he deviated from the standards or was negligent

DOCTRINES RELEVANT TO MEDICAL MALPRACTICE

• Respondeat superior – responsibility of the employer or owners of the establishment for the acts of the employee. – related to Articles 2176 and 2180, CCP.

• Doctrine of assumption of risk – in the case of treatment or procedures wherein there is inherent risk or dangers which although foreseen are however unpreventable and the patient has been so informed of the risk and agrees to the treatment of procedure, there will not be any cause of action against the physician as the patient has legally assumed the risk. e.g., burn of the skin in radiation therapy, loss of hair in chemo-therapy for cancer, feminization following hormonal therapy for cancer.

• Borrowed servant rule – where an employee is considered to be temporarily transferred to the employ and thus becomes the responsibility of another in the performance of a certain function. e.g., nurse specifically singled out by a physician who then instructs her to administer an injection to a patient or suture a patient.

• “Res ipsa loquitur” is a Latin phrase which literally mean ‘the thing or transaction speaks for itself”.

• A maxim for the rule that the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out plaintiff’s prima facie case, and present a question of fact for defendant to meet an explanation.

• Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from or was caused by the defendant’s want of care.”

A recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence

However, the court also said:  ‘The doctrine is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished.” (Ramos vs. C.A.,DLSMC, et al., G.R. 124354, 12/29/99)

THE DOCTRINE OF RES IPSA LOQUITUR CAN HAVE NO APPLICATION IN A SUIT AGAINST A PHYSICIAN OR SURGEON WHICH INVOLVES THE MERITS OF A DIAGNOSIS OR OF A SCIENTIFIC TREATMENT.

WHEN AND UNDER WHAT CIRCUMSTANCES MAY A PHYSICIAN BECOME LIABLE FOR MEDICAL MALPRACTICE  = FOR ACTS OF NEGLIGENCE, EITHER BY

OMISSION OR COMMISSION= FOR ACTS CONSTITUTING RECKLESS

IMPRUDENCE= FOR WILLFULL DEPARTURE FROM

ACCEPTABLE OR STANDARD NORMS OF MEDICAL PRACTICE

= FOR BREACH OF POSITIVE LAW, SUCH AS FAILURE TO COMPLY WITH THE LEGAL REQUIREMENTS FOR VALID CONSENT (aguire case)

Usual areas from which causes of action arises

• Error in diagnosis due to inadequate or insufficient history and/or physical examination

• Failure to request for laboratory/diagnostic examinations/procedures which are pertinent of necessary for making a diagnosis or determining proper and correct treatment (due to restriction imposed by HMO) stomach ca and eye tumor

Diagnosis:

• Failure to check dependability/reliability of results of tests or diagnostic procedures or verify results where indicated - e.g. checking if x-ray films are satisfactory, where the lab. results are not consistent with the clinical picture, discuss the interpretations with readers if ambiguous or doubtful

Treatment:

1.Delayed

2.Wrong

3. Inadequate/ insufficient

4. Incomplete/ improper advise/ instruction regarding treatment

1.Failure to do pre-discharge examination – e.g. notes on assessment of physical condition (binan case of foot drop), retained vaginal sponge in gynecologic-ob patients

2.Failure to give adequate/satisfactory discharge instructions re:

a. Home medications

b. activity

c. follow up visit

d. diet

Failures/lapses on discharge:

• Breakdown of traditional patient-family physician relationship

• Professional jealousy due to intensified competition

• Economic stress coupled with high cost of medical care

• Increased suit consciousness

• Unkind or unguarded remarks of fellow physicians and other para-medical workers

Factors responsible –

Adverse effect of malpractice suits:

1.Time the doctor is compelled to spend in the preparation of his defense and attendance to court proceedings

2.Damage to professional reputation, both among peers and in community

3. Loss of public confidence

4. Disturbance to peace of mind of both physician and his family

5. Expenses of litigation

1.negligence, either by omission or commission

2.willful departure from acceptable or standard or norms of medical treatment (clinical practice guidelines, evidence based medicine, established protocols)

3.over prognostication or over simplification of medical problems

Factors attributable to the physicians themselves:

What are the legal requirements for valid informed consent?

DISCLOSURE OF FACTS UPON WHICH JUDGEMENT FOR GIVING CONSENT IS BASED.

What triggers or brings about the filing of malpractice cases

1.Complications2.Death3.Aggravation of condition4.Adverse incidents or events

The occurrence of:

5.Perceived faults or errors on the part of hospital personnel such as:

a. Delayed response to callsb. Seeming indifference to listen to or

act on complaintsc. Discourtesyd. Failure to promptly detect setting in

of complications and to administer prompt and proper remedial measures such as respiratory distress, bleeding, drop in BP, high fever, restlessness

THINGS TO KEEP IN MIND REGARDING MALPRACTICE SUITS:

• A DISSATISFIED OR DISGRUNTLED PATIENT IS DOUBLY LIKELY TO SUE

• NEW PATIENTS ARE MORE LIKELY TO SUE THAN OLD ONES

• ANY PATIENT WITH LESS THAN PERFECT END RESULTS IS A POTENTIAL MALPRACTICE CLAIMANT AND MAY SUE THE PHYSICIAN WHO CARED FOR HIM

• GREATEST AND BEST MEANS TO PROTECT/DEFEND AGAINST MALPRACTICE SUITS IS TO KEEP GOOD AND COMPLETE CLINIC AND HOSPITAL RECORDS

How can malpractice suits be minimized if not prevented?

• Good and complete history and physical examination

• Admitting notes

• Pre-operative notes

• Pre-anesthesia evaluation

• Operative/anesthesia notes

• Post-op/anesthesia notes

First and foremost - the keeping of good and complete medical records, with emphasis on:

• Pre-discharge notes with emphasis on physical condition at time of discharge

• Nurses and progress notes, more particularly where there are complications or adverse incidents/events, or there is sudden change in patient’s condition. Notes should include date, time and persons present and more importantly, action taken – e.g. referrals, response of and time of persons to whom referral is made.

• Side notes at least, specially when there is a shift in the direction or changes in management

Benefits from good and complete medical record keeping; 1.Compliance with the requirements of

ISO, JICA and Philhealth.

2.Release of medical records can be expedited without any fear on part of physician or hospital

3.Expeditious release of medical records to patient or the family - usually have favorable effect of dispelling any doubt or suspicions on the part of the patient and/or family

4. In the event a complaint is filed, respondent may simply deny the charges and support the denial with the submission of medical records as proof of exercise of due diligence and care, as well as adherence to well and universally accepted standards of medical practice, thereby facilitating the early and expeditious resolution of the complaint, thus abbreviate/expedite disposition of complaint

2. Make sure that all tissues, foreign bodies, abortuses, and/or stillborns are sent to PATHOLOGY for proper examination, recording and disposition

3. Avoid discussing cases in the presence of other persons

4. There should only be one spokesperson as much as possible.

5. In lieu of usual request for C-P clearance, request for medical evaluation. Internists are advised to limit their answers to their findings and not to tie hands of the surgeon and the anesthesiologist by even suggesting deferment of the operation or intra-operative monitoring, these are best transmitted verbally.

6. Poor or failure in compliance by patient should be made of record and reminders/notice to patient should be made in writing

7. Refrain from deviating from standards specially this days where we now have CPGs.

8. Limit practice to field of specialty or area of professional competence

9. Prompt referrals as well as prompt response to referrals

10. Make full use of laboratory and diagnostic aids, and make sure to be kept well informed of the results and verify them where indicated.

11. Be sure to secure consents for all procedures that are invasive or entails risks, and be sure to perform skin tests where indicated and to keep antidote handy when administering same.

13. Be cautions in labeling illnesses, esp. those that can affect reputation or social standing

14. Discuss fees as early and as much as possible to avoid misunderstandings

15. Avoid telephone consultations

16. Always secure qualified and competent help

17. Exercise caution in delegation of duties18. Make sure to consult legal counseling

before testifying or giving either verbal or written statements.

19. Be tactful and diplomatic at all times when dealing with patients, specially regarding complaints.

20. Observe scrupulous and meticulous attention to the requirements of good medical practice, specially these days on account of the CPGs which can always be accessed by patients.

QUESTIONS YOU SHOULD CONSIDER WHEN ATTENDING PATIENTS:

1. CAN I, WITH LEGAL SAFETY, OPERATE ON THIS PATIENT?

2. WHAT TYPE OF CONSENT DO I NEED?

3. IS CONSULTATION IN ORDER?4. ARE THE HISTORY, PHYSICAL

EXAMINATION, LABORATORY TEST AND DIAGNOSTIC PROCEDURES ADEQUATE?

5. Are the preparations complete or adequate

5. IN CASE OF DEATH, SHOULD I INSIST ON AN AUTOPSY?

6. WHAT INFORMATION SHOULD I RELEASE AND TO WHOM?

7. SHOULD I ANSWER THIS LETTER? THIS TELEPHONE INQUIRY? WHAT SHOULD I SAY?

8. SHOULD I PRESENT MY BILL OR PRESS FOR ITS PAYMENT?

9. SHOULD I GIVE THE PATIENT HIS X-RAYS AND MEDICAL RECORDS?

10. WHAT INFORMATION FROM OR TO FORMER OR PRIOR PHYSICIANS MAY BE RELEASED AND HOW

WHAT TO DO IN CASE YOU ARE SUED:1. SEEK LEGAL ADVISE IMMEDIATELY 2. BE SURE TO ENGAGE THE RIGHT

LAWYER - NOT ADVISABLE AND DISASTROUS TO CHANGE LAWYERS MIDWAY

3. DISCUSS FEES OF YOUR LAWYER TO AVOID MISUNDERSTANDINGS LATER

4. BE SURE TO GIVE YOUR LAWYER ALL THE FACTS OF THE CASE, DO NOT HIDE ANYTHING

5. DISCUSS WITH YOUR LAWYER THE STRENGHT OR WEAKNESS OF YOUR POSITION TO HELP YOU DECIDE ON WHAT TO DO

Consider seriously whether to litigate or to settle, taking into consideration the following:

A. SETTLEMENT:

1) EXPEDITOUS2) USUALLY CHEAPER3) MAY HOWEVER ENCOURAGE

CLAIMS/SUITS4) MAY IMPLY GUILT5) BEST TIME/APPROACH6) HOW MUCH SETTLE FOR

1) EXPENSIVE2) TIME B. LITIGATION:

1) EXPENSIVE2) TIME CONSUMING AND RIGOROUS3) ELEMENT OF UNCERTAINTY4) NEED FOR EVIDENCES AND

WITNESSES5) CONSEQUENCES SPECIALLY IN

CASE OF CONVICTION IN CRIMINAL CASES6. RIGORS OF PROTRACTED

LITIGATION:

Allegations in some actual complaints for medical malpractice:

1.wrong diagnosis – e.g. A case of appendectomy who after discharged was admitted to another hospital for acute abdomen and was found to have twisted ovarian cyst and surgical site infection. Pregnancy diagnosed as abdominal tumor. Failure to explore a patient who developed an intra-abdominal abscess after a laparotomy for stab wound which turned out to be due to retained OS.

2. wrong medicine and over-dosage – e.g. A 1 mo. Old infant who was given 50 mgs. Benadryl. A non-diabetic patient who was given insulin. Insulin mistakenly administered insulin to a diabetic patient; despite patient’s objection for the reason that she was earlier informed that her BS was low.

3. wrong choice of procedure – a case of post partum bleeding after forceps extraction where obstetrician failed to do speculum tried to control by packing vagina with OS who turned out to have laceration of cervix. Surgeon who amputated finger which sustained large laceration.

4. technical error – A case of patently erroneously application of a metal plate for fixation of a Fracture wherein the metal plate was applied where there is no fracture. A case of failure to properly place screw which failed to catch/include the fractured fragment. A case of nephrectomy wherein the wrong kidney was removed.

5.inadequate preparation – failure to refer for C-P evaluation an elderly patient prior to an elective surgery who suffered cardiac arrest during induction. Failure to recheck cbc prior to surgery

6. insufficient diagnostic tests – Lap done on pt. with ureteral stone without first ascertaining location of stone immediately prior to surgery. Laparotomy on a pt. who several days earlier, swallowed three metal screws confirmed by X-ray w/o requesting for another X-ray to verify if FB’s were still in same location at the time of the scheduled surgery.

7. wrong interpretation of diagnostic test – x-ray’s, lab results

8. Failure to submit surgical specimen for histopath or abortus for examination and documentation

8. Administration of expired drugs

10. Retained rubber drain11. Operating on wrong side –

thoracostomy, burr hole.12. Accidents caused by plain and simple

carelessness as it injury from fragment of bottle containing peperazine which exploded.

13. Lost surgical specimen, switching of specimens (blood, urine)

Standard of care required of doctors – the diligence and care of a good father of a family, meaning ordinary care and diligence only, but which should be: Of the level of knowledge and/or skill that a professional is required to possess/employ which is evaluated in the light of advanced state of medical knowledge at the time.

SOME JURISPRUDENCE ON MALPRACTICE SUITS:

• “Doctors are protected by a special rule of law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishap or unusual consequences. Furthermore they are not liable for honest mistakes of judgment. (Francisco, J. Cited by the Supreme Court in Cruz vs. C.A. et al., G.R. 122445, Nov. 18, 1997)

• “The mere fact that a bad result follows a particular treatment does not by itself establish negligence.” – Crouch vs, Wychaff (Wash,) 107 Pa. (2d) 339; (underscoring ours)

• “Presumption of lack of care or of skill does not arise merely because of the occurrence of an unexpected result.” – Hill vs. Boughton (Fla.) 1 So. (2d) 610; Simon vs. Freidrich, 296 N. W. 941; Kasten vs. Woodson (Tex.) 123 S. W. (2d) 981; (underscoring ours)

• “The law presumes that the physcian did his duty.” – Mernomer vs. Scanner (Ky), 228 S. W. 303; Kasten vs. Woodson, ibid; Houghton vs. Dickenson, 29 Cal. App. 321; (underscoring ours)

• “A physician or surgeon does not guarantee the result of a treatment or operation, and proof alone that an operation is different in outcome from that expected, or followed by disastrous results, neither establishes nor supports an inference of want of proper care, skill or diligence.” – Macquaid vs. Michon (N.J.), 152 Atl. 881; (underscoring ours)

• “Negligence on the part of the physician cannot be presumed.” – Yates vs. Gambol (Minn.) 268 N. W. 670; Boyce vs. Brown (Ariz.) 77 Pac (2d) 455; (underscoring ours)

• “Negligence on the part of the physician must be affirmatively proved.” – Englkins vs. Carlson, et al., (Cal.) 88 PAC (2d) 695; (underscoring ours)

• “Plaintiffs are required to prove that the physicians were unskilled or negligent.” – Kalines vs. Baltimore Eye, Ear and Throat Hospital (MD) Atl. (2d) 612; (underscoring ours)

• “The negligence of an attending physician could only be presumed in a case when there is a proponderance of evidence that he had failed to do the best that he could. Under given circumstances this presumption cannot arise simply from mere facts that the administration and/or operation of the physician has been unsecessful or failed to produce the expected results. For such could be attributed to the twist of nature.” – 70 C.J.S. 963-1; Am. Jur. 227; Abaya et al., vs. Favis, 3 C. A. Rep. 450; (underscoring ours)

“Whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion. The deference of the courts to the expert opinion of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. Expert testimony should have been offered to prove that the circumstances cited by the courts are constitutive of conduct falling below the standard of care employed by other physicians in good standing performing the same operation.” – Dr. Ninevitch Cruz vs. Court of Appeals, et al., G.R. 122445, November 18, 1997; (underscoring ours) 

“ The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result.” (Leah Reyes vs. Sisters of Mercy Hospital, G.R. 130547, Oct. 3, 2000)

OTHER MATTERS OF CONCERN PHYSICIANS are strongly advised to take note of:

PHARMACY LAW – R.A. 5921

Art. IV, Sec. 25 - Sale of medicine, pharmaceuticals, drugs and devices - No medicine, pharmaceutical, or drug of whatever nature and kind, or device shall be compounded, dispensed, sold or resold, or otherwise be made available to the consuming public except through a prescription drugstore or hospital pharmacy, duly established in accordance with the provisions of this Act. 

 Declared policy of the state in AID and HIV cases

no test for AIDS OR HIV may be conducted without the consent of the patient and the results thereof are strictly confidential and cannot be divulged so that, even in reporting the case to the state, the name and address of the patient is not to be divulge, nor can it be made known even to hospital workers who are attending to the patient.

R. A. 8344 – ON TRANSFER OF PATIENTSSection 1 provides:

May only be done for reason of –

1) For inadequacy of the medical capabilities of the hospital or medical clinic2) Only with the next of kin’s consent, except when the patient is unconscious, incapable of giving consent and/or unaccompanied and after it has been established that such transfer entails less risk than the patient’s continued confinement,

3) And only after the receiving hospital or medical clinic agrees to the transfer;

OTHER MATTERS FOR PHYSICIANS TO KEEP IN MIND:

Make sure that your visits to the patient are properly documented 

Timely referrals as well as response to referrals  

20 % Sr. Citizen discount on professional fees is mandatory upon demand of a Sr. Citizen, provided he presents proof of his age and Pilipino citizenship 

As held in PSI vs. Agana,

“Once a physician undertakes the treatment and care of a patient, the law imposes on him certain obligations. In order to escape liability, he must possess that reasonable degree of learning, skill and experience required by his profession. At the same time, he must apply reasonable care and diligence in the exercise of his skill and the application of his knowledge, and exert his best judgment.”

It is good practice to always encircle abnormal results of laboratory and diagnostic examinations as well as to indicate date and time the same is noted for medico-legal purposes.

Another good practice is to brief nurses on expected complications so that they be alerted as to what to expect and be alert for their occurrence.

When a patient is discharged but does not go home, the attending continues to be responsible unless he specifically informs the patient and/or family that he will no longer see the patient as well as his reasons therefore with advise to the patient to engage services of another physician should they decide to continue to stay.

Medico-moral considerations related to dying and their legal implications:

In the case of terminal and incurable cases on life support systems –

• Once connected to life support systems, it may only be discontinued upon pronouncement of brain dead

• No one can authorize discontinuance of life support systems until patient dies

• The one who disconnects the life support system may be held criminally liable for murder

“NO HEROIC MEASURES”, OR “NO HEARTWELL” AND NOT “DO NOT RESUSSITATE” ARE THE PROPER ORDERS IN THE FOLLOWING:

• There is no possibility of cure, recovery, or improvement of the quality of life and, the family is disposed not to unduly prolong life and the process of dying any longer,

• Where medical assistance/therapy administered will only prolong agony and death at great expense to the family but without any possibility of cure, recovery, or improvement of the quality of life and whose resources are already drained to the limit

• Where any intervention will only prolong process of dying without any hope of cure, recovery, or improving quality of life

BIOETHICAL PRINCIPLES:Medicine’s ultimate business is neither the pursuit of happiness nor even the prolongation of life, it is rather, the maintenance or restoration of health (or some desirable approximation to health) THUS, THE QUESTION?

• when may treatment be or ought to be withheld or withdrawn?

•when treatment will be futile – no longer serves the goal(s) of medicine for a particular patient

•when it no longer maintains that person in a reasonably satisfactory condition

•when the benefits it promises for that person are outweighed by the burdens it will impose

•when it no longer paliates the symnptoms of illness

•when it no longer saves lives

•medicine ought to try to recognize when someone is dying (which maybe long before the onset of final terminal illness) so as then to shift its emphasis from cure to comfort care, and to improving the quality of life that remains.

Withdrawing/withholding of life sustaining treatment – not necessarily equivalent to intent to bring about death. Purpose maybe on grounds of its futility, or to honor patient’s wish to be relieved of, or wish to free others from, the burdens of that treatment.

There is no duty (either in ethics or in law) to maintain futile treatment, even if the treatment is life sustaining

REMINDERS FOR NURSES

:

• MAKE SURE TO ALWAYS ENTER DATE AND SPECIFIC TIME OF PARTICULAR CHARTING

• CHART ONLY YOUR OWN ACTS OR OBSERVATIONS

• AVAIL OF WATCHERS PRESENCE FOR THE BENEFIT AND PROTECTION OF NURSES

REGARDING PRIVATE DUTY NURSES 1. They are the employees of patient and not of hospital

2. Their acceptance to assist in the care of the patient is subject to approval of nursing service which shall evaluate their qualifications before allowing them to participate in the care of patient

3. They may only perform such duties and functions delegated by staff nurse who shall remain responsible therefore

4. Nursing service is the one primarily responsible for patient

5. They are not to be allowed access to or take possession of patient’s chart at any time, nor to make entries thereon.

• Complaints, unusual or any adverse event should be charted and should include action taken thereon, referrals made, response time to referral as well as results.

• Reason pharmacology is part of nursing curriculum is so that nurses may be familiar with the dosages and indications as well as understand the rationale for administration of medications ordered. They are therefore expected to note any inadvertent errors in orders for medication and should clarify any perceived problem in connection therewith before carrying our orders.

• NOTE: According to law, nurses may not take telephone orders and are mandated to carry out only written orders except in cases of emergencies.

• It is good and sound practice to encircle abnormal values of laboratory results, indicate date and time the same is noted and transmit them to the AP ASAP and to chart said action for medico-legal purposes.

• If for any reason a doctors order is ambiguous, it should be cleared with the ordering physician for the reason that, any opinion expressed by another physician is simply just that, an opinion, and will not protect the nurse concerned.

ON THE QUESTION OF HOSPITAL LIABILITY FOR THE ACTS OF ITS CONSULTANTS:

RAMOS VS. DLSMC – in the original decision, the court said that the hospital was liable for the acts of Hosaka and Gutierez because:

There exists employer-employee relationship between the hospitals and their consultants. While consultants are not, technically employees, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of payment of wages. In assessing whether such relationship in fact exists, the control test is determining. Thus, on the basis of the foregoing, it was ruled that, for the purpose of allocating responsibility in medical negligence cases, the employer-employee relationship in effect exists between hospitals and their attending and visiting physicians.

Upon motion for reconsideration by defendants, the court modified its earlier decision and in its amended decision issued on April 11, 2002, said:

As explained by respondent hospital,

1) the admission of a physician to membership in DLSMC’s medical staff as active or visiting consultant is first decided upon by the Credentials Committee thereof

2) which is composed of the heads of the various specialty departments, chaired by the specialty department to which he applied for

3) the Committee in turn recommends to DLSMC's Medical Director or Hospital Administrator the acceptance or rejection of the applicant physician 4) said director or administrator validates the committee's recommendation.

Similarly, in cases where a disciplinary action is lodged against a consultant, the same is initiated by the department to which the consultant concerned belongs and filed with the Ethics Committee consisting of department specialty heads. The Medical Director/Hospital Administrator mere acts as ex-officio member of said committee.

Neither is there any showing that it is DLSMC which pays any of its consultants for medical services rendered by the latter to their respective patients.

Moreover, the contract between the consultant in respondent hospital and his patient is separate and distinct from the contract between respondent hospital and said patient. 1) The first has for its object the rendition of medical services by the consultant to the patient, 2) the second concerns the provision by the hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper treatment of the patient.

Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary for her treatment.

For these reasons, we reverse the finding of liability on the part of

DLSMC for the injury suffered by petitioner Erlinda.

ROGELIO NOGALES VS. CMC = The doctrine laid down in the Ramos vs. DLSMC on the liability of hospital for the acts of their consultants was reversed in this case. In this case, CMC claims it that it cannot be held liable for the acts of Dr. Estrada since it merely allowed Dr. Estrada to use its facilities when patient was about to give birth which CMC considered an emergency. CMC claims that Dr. Estrada is not an employee of CMC, but an independent contractor.

In finding CMC liable, the court said that, although generally, a hospital is not liable for the negligence of an independent contractor, there is however an exception to this principle. A hospital may be held liable if the physician is the “ostensible” agent of the hospital.”

This doctrine is also known as the “doctrine of apparent authority.” In Gilbert v Sycamore Hospital, 958, 819 N.Y.S. 2d 169 (2006) the Illinois Supreme Court explained the doctrine in this wise:

Under the doctrine, a hospital can be held vicariously liable for the negligent acts of a physician providing care at the hospital regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor.

The elements of the action have been set out as follows:

“The plaintiff must show that (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital

. (2) where the acts of the agent create the appearance of authority, it must also be proven that the hospital had knowledge of and acquiesed in them; and

(3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.

The element of “holding out” on the part of the hospital does not require an express representation by the hospital that the person alleged to be negligent is an employee. Rather, the element is satisfied if the hospital holds itself out as a provider of emergency room care without informing the patient that the care is provided by independent contractors.

The element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff relies upon the hospital to provide complete emergency room care rather than upon a specific physician.

The doctrine of apparent authority is a species of the doctrine of estoppel which rests on the rule: Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a particular thing true, and to act upon such belief, he cannot in any litigation arising out of such declaration, act or omission, be permitted to so falsify it.”

In the instant case, CMC impliedly held out Dr. Estrada as a member of the medical staff. Through CMC’s acts, CMC clothed Dr. Estrada with apparent authority thereby leading the spouses Nogales to believe that Dr. Estrada was an employee or agent of CMC. CMC cannot now repudiate such authority.

First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical staff and facilities to Dr. Estrada. Upon Dr. Estrada’s request for Corazon’s admission, CMC, though its personnel, readily accommodated Corazon and updated Dr. Estrada of her condition.

Second, CMC made Rogelio sign consent forms printed on CMC letterhead. Prior to Corazon’s admission and supposed hysterectomy, CMC asked Rogelio to sign release forms, the contents of which reinforced Rogelio’s belief that Dr. Estrada was a member of CMC’s medical staff.

The Consent on Admission and Agreement which he was asked to sign explicitly provides, among others, that

1. the signatory is the person responsible for the patient

2. he submits the patient to Dr. Estrada for treatment, etc. and that Dr. Estrada, personally or by and through CMC and/or its staff may use, adapt or employ such means or methods as may be deemed best and expedient, etc.

He was also asked to sign a Consent for Operation which provide that:

1. He gives his consent to submit Corazon to Hysterectomy by the surgical staff and anesthesiologist of CMC.

Nothing in either form said anything about Dr. Estrada being an independent contractor physician.

Professional Services, Inc. (Medical City) vs. Natividad and Enrique Agana –

In its decision, the court in this case, reiterated the doctrine laid down in Nogales vs. CMC, thus strengthening said doctrine which overturned the doctrine laid down in Ramos vs. DLSMC.

As in the CMC case, the court likewise said that:

1) hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises, as

2) Doctors who apply for consultant slots, visiting or attending are required to submit proof of completion of residency, their educational qualifications, generally evidence of accreditation by appropriate board (diplomate), evidence of fellowship in most cases, and references.

3) The requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application.

4) After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathologic conferences, conduct bedside rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital and/or for the privilege of admitting patients into the hospital.

5) In addition to these, the physician’s performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents.

6) A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals hire, fire and exercise real control over their attending and visiting consultant staff.

The reasoning in the CMC case were the same reasons used as the basis for holding MC liable.

In addition to which, the court applied “The Doctrine of Ostensible agency” or “agency by estoppel” which the court expounded.

The court further said that,

the liability of MC was not only on the basis of the Ramos pronouncement but,

is also anchored on the doctrine of corporate negligence which the court said, gained acceptance in the determination of a hospital’s liability for the negligent acts of health professionals as the case serves as a perfect platform to test its applicability.

The court pointed out the PSI (MC) publicly displays in the lobby of MC the names and specializations of the physicians associated or accredited by it, so that it is now estopped from passing all the blame to the physicians whose name it proudly paraded in the public directory leading the public to believe that it vouched for their skill and competence.

That PSI’s act is tantamount to holding out to the public that MC, through its accredited physicians, offers quality health care services.

That by the said act, MC is publicly advertising their qualifications, and created the impression that they are its agents, authorized to perform medical or surgical services for its patients and that the patients, as expected, accepted their services on the reasonable belief that such were being rendered by the hospital or its employees, agents, or servants.

The court also said that PSI’s liability is also anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine of corporate negligence, meaning - a hospital’s liability for negligent acts of health professionals.

Further, the court said, PSI as owner, operator and manager of Medical City Hospital, “did not perform the necessary supervision nor exercise diligent efforts in the supervision of Drs. Ampil and Fuentes and its nursing staff, resident doctors, and medical interns who assisted Drs. Ampil and Fuentes in the performance of their duties as surgeons.

That premised on the doctrine of corporate negligence, the trial court, according to the supreme court, was correct in holding PSI directly liable for such breach.

The court further said that, the liability of PSI is traceable to its failure to conduct an investigation of the matter reported in the nota bene of the count nurse.

It explained that Drs. Ampil and Fuentes operated with the assistnace of the Medical City’s staff, composed of resident doctors, nurses and interns.

As such, it is reasonable to conclude that PSI, as the operator of the hospital, has actual or conservative knowledge of the procedures carried out, particularly the report of the attending nurses that the two pieces of gauze were missing. This means that the knowledge of any staff of Medical City Hospital constitutes knowledge of PSI. Now, the failure of PSI, despite the attending nurses report, to investigate and inform Natividad regarding the missing gauzes amount to callous negligence.

Not only did PSI breach its duties to exercise or supervise all persons who practice medicine within its walls, it also failed to take active step in fixing the negligence committed. This renders PSI not only vicariously liable for the negligence of Dr. Ampil under Art. 2180 of the Civil Code but also directly liable for its own negligence under Art. 2176.

With the passage of time, more duties were expected from hospitals, among them

(1)the use of reasonable care in the maintenance of safe and adequate facilities and equipment;

(2)the selection and retention of competent physicians;

(3) the overseeing or supervision of all persons who practice medicine within its walls;

4) the formulation, adoption and enforcement of adequate rules and policies that ensure quality care for its patients.

Thus, in Tucson Medical Center, Inc. vs. Misevich, it was held that a hospital, following the doctrine of corporate responsibility, has the duty to see that it meets the standards of responsibilities for the care of patients. Such duties includes the proper supervision of members of its medical staff.

In Bost v. Riley, the court concluded that a patient who enters a hospital does so with the reasonable expectation that it will attempt to cure him. The hospital accordingly has the duty to make reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians practicing in its premises.

Final comment occasioned by a recent case:

RESIDENT’S should be required to make:

1) Admitting notes on all admissions

2) Daily progress notes on their patients

Senior/chief residents should conduct daily rounds on all patients in their service with all the residents as well as random chart rounds

All residents should be required to have working knowledge about all the patients in their service

When called for a referral, the resident should always make a note of the referral, the reason therefore, response time, findings, action taken, results. This is particularly important for legal purposes.

Thank You