MEDICAL NEGLIGENCE AND MEDICAL MALPRACTICE DIFFERENTIATED

TABLE OF CONTENTSWhat is Legal Medicine?History of Legal MedicineApplication of Legal Medicine to LAWWhat is Forensic Medicine?What is Medical Jurisprudence?What are the Acts which constitute Medical Practice?What are the Rights inherent in the practice of Medicine?What is the difference between Medical Negligence and Medical Malpractice?Doctrine of Proximate CauseWhat is the Degree of Care needed to be applied by Physicians?Doctrine of Res Ipsa Loquitur- Case of Cantre V. Sps. GoDoctrine of Contributory NegligenceLiabilities of Hospitals-Doctrine of Apparent Authority- Doctrine of Corporate Responsibility - Doctrine of respondent SuperiorWhat are the Liabilities of a Physician Which May Arise from His Negligent or Wrongful Acts or Omissions

WHAT IS LEGAL MEDICINE?Legal Medicine-is the branch of medicine that applies medical and surgical concepts, scientific knowledge, and skills to medico legal issues, in order to assist the trier of facts in the proper dispensation of justice.

- a branch of medicine which deals with the application of medical knowledge to the purposes of law and in the administration of justice.

HISTORY OF LEGAL MEDICINE

Paulus Zacchias (1584 1659) is the Father of Forensic Medicine; an Italian practical physician, teacher of medical science, medio-legal jurist, philosopher, and poet. His most well known book is Quaestiones medico-legales (written in 1557).

He was the first to describe the importance and application ofmedicine to the proper administration of justice.

-He is said to have occupied the position as personal physician for Pope Innocentius X. Zacchias was also an adviser for the Rota Romana, the highest Papal court of appeals.

HISTORY OF LEGAL MEDICINEInthe Phil., thefatherofLegal Medicine can be rightfully bestowed to Dr. Pedro P. Solis.

The late Dr. Pedro P. Solis completed his elementary education at Julugan Elementary School, secondary education at the University of the Philippines (U.P.) High School and Associate in Arts in U.P.. Dr. Pedro Solis finished Medicine at the U.P. College of Medicine and Law at the Manila Law College. His graduate degree in Criminology was obtained from Cambridge University in England. For forty-four years Dr. Solis served the government initially as medico-legal officer, eventually becoming the National Bureau of Investigation's Deputy Director for Technical Services.

He taught in various institutions such as the Colleges of Law, Medicine and Public Health of the University of the PHilippines, Manila Law College, Philippine College of Criminology, the medical colleges of Far Eastern University (FEU), University of the East (U.E.), Manila Central University (M.C.U.) and the colleges of Law of Lyceum and San Sebastian.

Dr. Solis wrote textbooks in Legal Medicine, Medical Jurisprudence and Criminal Investigation, which are still widely used at present. He represented the country in various international organizations and committees in the fields of law, medicine and criminology.

APPLICATION OF LEGAL MEDICINE TO LAWLegal Medicine is applied to Law

1. CIVIL LAW- the determination and termination of civil personality- the limitation or restriction of a natural persons capacity to act- marriage and legal separation - testamentary capacity of a person making a will- paternity and filiation - the right to hereditary succession2. CRIMINAL LAW-Feloniesand circumstances which affect criminal liability-Civilliability exdelictu -Crimesrelative to opium and prohibited drugs -Crimesagainstcivilstatusofpersons -Crimesagainst chastity-Crimesagainst persons-Quasioffenses3. REMEDIAL LAW-Physicaland Mental Examinationofa person-Hospitalization of insane persons -RulesofEvidence

APPLICATION OF LEGAL MEDICINE TO LAW4. SPECIAL LAWS- Dangerous Drug Act- Youth and Child Welfare Code - Insurance law - Sanitation Code- Employees Compensation Law- Labor Code

5. CORPUS DELICTI- is the body or substance of the crime and is defined as the fact that a crime actually has been committed. In all criminal prosecutions, the burden is on the prosecution to prove the corpus delicti.

WHAT IS FORENSIC MEDICINE?Forensic medicine is the practice of medicine as it pertains to the Law. It involves areas like determining the nature and cause of death, medical negligence and identification of human remains. It can include medical examination of suspects and victims in support of the investigation of crime such as medical examination of the victims of rape, for the purpose of determining the nature and extent of any injuries and the taking of samples, fitness of suspects to be interviewed where it may be in doubt for medical reasons, and determining whether a person is acting under the influence of drugs.

There are various branches within the field of forensic medicine including Forensic pathology that is concerned primarily with establishing the nature and cause of suspicious death.

Forensic Odontology is the application of dentistry to legal matters. Amongst other tasks the Forensic Odontologists can identify individuals using their dentition and through bite marks.

Forensic Radiography is the application of science of diagnostic imaging to questions of law. Forensic Radiography can be used to identify the individual, identify the cause of the injury or death and to identify evidential material.a

WHAT IS MEDICAL JURISPRUDENCE?Medical Jurisprudence-isthe studyofthe MedicalLaw and its applicable Jurisprudence that governs, regulates and defines the practice of medicine.

-Itincludestherights,duties, obligations and liabilities of both physician and patient to each other in a physician patient professional contract.

In the Philippines, Legal Medicine is the appropriate name for Forensic Medicine.

What are the Acts which constitute Medical Practice?The followingacts constitute the Practice of Medicine:

1. To physically examine and diagnose a patient.2. To physically examine and treat a patient3. To physically examine and perform surgery in a patient4. To physically examine and prescribe any remedy to a patient.

What are the Rights inherent in the practice of Medicine?Rights inherent in the Practice of Medicine:

1. The right to choose his patients2. The right to limit the practice of his profession3. The right to determine appropriate treatment procedures in the discretion andjudgment ofthe physician.4. The right to avail of hospital privileges after being qualified.5. The right to receive just and fair compensation from his patients.

What is the difference between Medical Negligence and Medical Malpractice?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. Common complaints about doctors who commit malpractice include:

Error in anesthesiaMistake during childbirthSurgical errorsUnnecessary surgeryWrongful deathWrong diagnosis or misdiagnosisExamples of medical negligence include:

Failure to revise a diagnosisFailure to warn patients of the risks of treatmentFailure to remove surgical instruments from the patient during surgeryFailure to attend to or treat a patientIncompetenceFailure to refer a patient to a specialist relevant to their disease or injuryWrongful diagnosis

Doctrine of Proximate CauseThat 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 plaintiffPatient or Patient's estate must prove that the Patient's injury is reasonably connected to the physician's action.

what is the Degree of Care needed to be applied by Physicians?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.

Source: Solis MEDICAL JURISPRUDENCE 1988

Doctrine of Res Ipsa LoquiturLiterally means: the thing speaks for itself. Originated in the English Jurisprudence of Byrne V. Boadle (1853 Case)If one eventuality happens unusually or not occasionally, NEGLIGENCE is presumed if one has control over things. 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.

Doctrine of Res Ipsa LoquiturLiterally means: the thing speaks for itself. Originated in the English Jurisprudence of Byrne V. Boadle (1853 Case)If one eventuality happens unusually or not occasionally, NEGLIGENCE is presumed if one has control over things. 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.

Doctrine of Res Ipsa LoquiturMedical 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.

Case study: 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.

Case study: Cantre vs Sps Go, G.R. No. 160889, April 27, 2007 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 patients blood pressure.

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

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

Case study: Cantre vs Sps Go, G.R. No. 160889, April 27, 2007 In cases involving medical negligence, the doctrine ofres 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:

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.

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

Case study: Cantre vs Sps Go, G.R. No. 160889, April 27, 2007 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 NegligenceDoctrine 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 plaintiffs 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 defendants 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.

Liabilities of HospitalsThe hospitals 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 hospitals liability for negligent acts of professionals because of the actions for a principal or an employer .

Doctrine of Apparent AuthorityWhere 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 physicians negligence.

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

Doctrine of Corporate ResponsibilityA 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)

Doctrine of respondent SuperiorA 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)

Liabilities of a Physician Which May Arise from His Negligent or Wrongful Acts or OmissionsLiabilities of a Physician Which May Arise from His Negligent or Wrongful Acts or Omissions:

1. ADMINISTRATIVE LIABILITY- A complaint under oath can be filed before theProfessionalRegulationCommissionBoardofMedicine,for reprimand,ofthelicensetopractice medicine.

2. CRIMINAL LIABILITY- When an act or omission constitutes a crime, the physician can be imprisoned or fined or both, as any other profession.

3. CIVIL LIABILITY- The aggrieved party can be awarded monetarydamagesforanywrongfulor negligentactoromission,whenthe professional is found guilty.

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