8/30/2014

Medical
Jurisprudence and
Related Laws
Block 2-C
1

1. The Philippine Regulations Commission regulates the following Health Related
Professions:
A. RA 9484: The Practice of Dentistry, Dental Hygiene, and Dental Technology
B. RA 5527: Medical Technology
C. RA 2383, as amended: Medicine
D. RA 7392: Midwifery
E. RA 9173: Nursing
F. PD No. 1286: Nutrition and Dietetics
G. RA No. 8050: Optometry
H. RA No. 5921: Pharmacy
I. RA No. 5680: Physical Therapists and Occupational Therapists
J. RA No. 7431: Radiologic Technology
K. RA No. 1364: Board of Sanitary Engineering
L. RA No. 4373: Social Work
M. RA No. 9268: Veterinary Medicine
N. RA No. 10029: Psychology
2. Provisions in the Bill of Rights provide for the Right to Privacy
Section 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.
Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.


2

3. Provisions of the Civil Code that provide that every person shall respect the privacy of
another person

Article 26 and Article 32, paragraph 11 of the New Civil Code provide for the privacy rights of every
person.
Article 26: Every person shall respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons. The following and similar acts, though they may not constitute a criminal
offense, shall produce a cause of action for damages, prevention and other relief:
(1) Prying into the privacy of another's residence:
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth,
physical defect, or other personal condition.

Article 32: Any public officer or employee, or any private individual, who directly or indirectly obstructs,
defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another
person shall be liable to the latter for damages:
x x x
(11) The privacy of communication and correspondence
x x x

4.
Electronic Commerce Act of 2000
PART II ELECTRONIC COMMERCE IN GENERAL
CHAPTER I GENERAL PROVISIONS

Section 5. Definition of Terms - For the purposes of this Act, the following terms are defined, as
follows:
(a) "Addressee" refers to a person who is intended by the originator to receive the electronic data
message or electronic document. The term does not include a person acting as an intermediary
with respect to that electronic data message or electronic data document.
3

(b) "Computer" refers to any device or apparatus which, by electronic, electro-mechanical, or
magnetic impulse, or by other means, is capable of receiving, recording, transmitting, storing,
processing, retrieving, or producing information, data, figures, symbols or other modes of
written expression according to mathematical and logical rules or of performing any one or more
of these functions.
(c) "Electronic Data Message" refers to information generated, sent, received or stored by
electronic, optical or similar means.
(d) "Information and Communications System" refers to a system intended for and capable of
generating, sending, receiving, storing, or otherwise processing electronic data messages or
electronic documents and includes the computer system or other similar device by or in which
data is recorded or stored and any procedures related to the recording or storage of electronic
data message or electronic document.
(e) "Electronic Signature" refers to any distinctive mark, characteristic and/or sound in electronic
form, representing the identity of a person and attached to or logically associated with the
electronic data message or electronic document or any methodology or procedures employed or
adopted by a person and executed or adopted by such person with the intention of
authenticating or approving an electronic data message or electronic document.
(f) "Electronic Document" refers to information or the representation of information, data, figures,
symbols or other modes of written expression, described or however represented, by which a
right is established or an obligation extinguished, or by which a fact may be prove and affirmed,
which is receive, recorded, transmitted, stored, processed, retrieved or produced electronically.
(g) "Electronic Key" refers to a secret code which secures and defends sensitive information that
cross over public channels into a form decipherable only with a matching electronic key.
(h) "Intermediary" refers to a person who in behalf of another person and with respect to a
particular electronic document sends, receives and/or stores provides other services in respect
of that electronic data message or electronic document.
(i) "Originator" refers to a person by whom, or on whose behalf, the electronic document purports
to have been created, generated and/or sent. The term does not include a person acting as an
intermediary with respect to that electronic document.
(j) "Service provider" refers to a provider of - i. On-line services or network access or the operator
of facilities therefor, including entities offering the transmission, routing, or providing of
connections for online communications, digital or otherwise, between or among points specified
4

by a user, of electronic documents of the user's choosing; or ii. The necessary technical means by
which electronic documents of an originator may be stored and made accessible to designated or
undesignated third party.

Such service providers shall have no authority to modify or alter the content of the electronic data
message or electronic document received or to make any entry therein on behalf of the originator,
addressee or any third party unless specifically authorized to do so, and who shall retain the
electronic document in accordance with the specific request or as necessary for the purpose of
performing the services it was engaged to perform.

CHAPTER II LEGAL RECOGNITION OF ELECTRONIC WRITING OR DOCUMENT
AND DATA MESSAGES

Section 7. Legal Recognition of Electronic Documents - Electronic documents shall have the legal
effect, validity or enforceability as any other document or legal writing, and - (a) Where the law
requires a document to be in writing, that requirement is met by an electronic document if the said
electronic document maintains its integrity and reliability and can be authenticated so as to be usable
for subsequent reference, in that - i. The electronic document has remained complete and unaltered,
apart from the addition of any endorsement and any authorized change, or any change which arises
in the normal course of communication, storage and display; and ii. The electronic document is
reliable in the light of the purpose for which it was generated and in the light of all relevant
circumstances.

PART V FINAL PROVISIONS

Section 31. Lawful Access. - Access to an electronic file, or an electronic signature of an electronic
data message or electronic document shall only be authorized and enforced in favor of the individual
or entity having a legal right to the possession or the use of plaintext, electronic signature or file or
solely for the authorized purposes. The electronic key for identity or integrity shall not be made
available to any person or party without the consent of the individual or entity in lawful possession
of that electronic key;

5

Section 32. Obligation of Confidentiality. - Except for the purposes authorized under this Act, any
person who obtained access to any electronic key, electronic data message or electronic document,
book, register, correspondence, information, or other material pursuant to any powers conferred
under this Act, shall not convey to or share the same with any other person.

Section 33. Penalties. - The following Acts, shall be penalized by fine and/or imprisonment, as
follows: (a) Hacking or crackling with refers to unauthorized access into or interference in a
computer system/server or information and communication system; or any access in order to
corrupt, alter, steal, or destroy using a computer or other similar information and communication
devices, without the knowledge and consent of the owner of the computer or information and
communications system, including the introduction of computer viruses and the like, resulting in the
corruption, destruction, alteration, theft or loss of electronic data messages or electronic documents
shall be punished by a minimum fine of One Hundred Thousand pesos (P 100,000.00) and a
maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months
to three (3) years; (b) Piracy or the unauthorized copying, reproduction, dissemination, or
distribution, importation, use, removal, alteration, substitution, modification, storage, uploading,
downloading, communication, making available to the public, or broadcasting of protected material,
electronic signature or copyrighted works including legally protected sound recordings or
phonograms or information material on protected works, through the use of telecommunication
networks, such as, but not limited to, the internet, in a manner that infringes intellectual property
rights shall be punished by a minimum fine of one hundred thousand pesos (P 100,000.00) and a
maximum commensurate to the damage incurred and a mandatory imprisonment of six (6) months
to three (3) years; (c) Violations of the Consumer Act of Republic Act No. 7394 and other relevant
to pertinent laws through transaction covered by or using electronic data messages or electronic
documents, shall be penalized with the same penalties as provided in those laws; (d) Other violations
of the provisions of this Act, shall be penalized with a maximum penalty of one million pesos (P
1,000,000.00) or six (6) years imprisonment.

Contributions of the Electronic Commerce Act to Ensuring Medical Privacy

The right of patients to have their privacy protected is not only based on ethical considerations
owing to the physicians' code of conduct, but it also guaranteed by constitutional rights to privacy
6

and a series of statutes aimed at regulating and protecting specific forms of information. One of
these statutes is The Electronic Commerce Act of 2000, a law that institutionalizes the legal status of
electronic documents and electronic data messages and intends to protect the fidelity and
confidentiality of electronic documents and electronic data messages.

Health information is transmitted and stored increasingly through electronic documents and
electronic data messages nowadays. The prevalence of technology in the medical profession
inevitably resulted to the digitalization of medical data and patient information, making them easier
to store, access, and reproduce. The caveat to this is that sensitive and confidential information are
easily multiplied and vulnerable to unwanted and unwarranted disclosure. The Electronic Commerce
Act of 2000 seeks to address this vulnerability by delineating the requisites for proper use of these
data, obligating confidentiality in using the same and imposing punitive measures to punish and
deter malicious usage.

The law contributes to ensuring medical privacy through several ways. For example, when a video of
a surgery is recorded for documentary or academic purposes, the same is encrypted with an
electronic key for identity, which bars access to anyone not authorized to access the document. The
electronic key is lawfully possessed by authorized persons and can only be shared with express their
express consent. If the video is leaked by one of the authorized people or if it's hacked, these
offenders will be punished accordingly by the same law for breaking their obligation of
confidentiality. These offenders can be traced because transmission of electronic documents also
bear electronic signatures that identify from where they originated. If test results for STDs or HIV
are emailed, for example, they will always bear the signature of the medical professional handling the
same. These are deeply sensitive and personal information that should be kept private. Any
untoward usage of the same can be identified and promptly penalized.

Many organizations and individuals not subject to medical ethics codes use medical
information.
1
These including employers, insurers, government program administrators, attorneys,
and others.
2
Regulatory protection for this highly sensitive and deeply personal information become

1
Electronic Privacy Information Center, Medical Record Privacy, available at
http://epic.org/privacy/medical/ (last accessed Aug. 29, 2014).
2
Id.
7

more necessary with the abundance of users. Regulatory mechanisms, such as the Electronic
Commerce Act, then, should continue to be developed in response to the changing landscape of
information systems. Patients should be insulated from the distress and trauma of having private
information about them fall into the right hands by establishing legal authorities and regulated legal
access over their medical information.


5.
REPUBLIC ACT No. 4200
AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED
VIOLATIONS OF THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES.

Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such communication or spoken word by
using a device commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or
tape recorder, or however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the
next preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other
such record, or copies thereof, of any communication or spoken word secured either before or after
the effective date of this Act in the manner prohibited by this law; or to replay the same for any
other person or persons; or to communicate the contents thereof, either verbally or in writing, or to
furnish transcriptions thereof, whether complete or partial, to any other person: Provided, That the
use of such record or any copies thereof as evidence in any civil, criminal investigation or trial of
offenses mentioned in section 3 hereof, shall not be covered by this prohibition.

Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done
any of the acts declared to be unlawful in the preceding section or who violates the provisions of the
following section or of any order issued thereunder, or aids, permits, or causes such violation shall,
upon conviction thereof, be punished by imprisonment for not less than six months or more than
six years and with the accessory penalty of perpetual absolute disqualification from public office if
8

the offender be a public official at the time of the commission of the offense, and, if the offender is
an alien he shall be subject to deportation proceedings.

Contributions of the Anti-Wire Tapping Law to Ensuring Medical Privacy

The purpose of The Anti-Wire Tapping Law is for the protection of everyones right to privacy. It
prohibits overhearing, intercepting, or recording private communications. The law also provides that
any evidence obtained in violation of this law shall be deemed inadmissible in any civil, criminal,
administrative and legislative hearings or investigations.

Medical practitioners have the duty to keep information relating to a patient. Everyone grants their
medical practitioners high degree of trust of confidence with regard to confidential information
involving their medical information. Medical practitioners obtain information about a patient
through communication. Through this communication channel, medical practitioners also relay and
transmit information regarding medical conditions and advise to his/her patients. These
communications can be classified as private communication in the ambits of the Anti-Wire Tapping
Law. The law afforded such private communication protection from any unlawful recording. The
doctors and their patients can expect that the privacy of their conversation in all times. The law
punishes those who secretly record or intercept with private conversations and communications.

The law protects everyones right to privacy including medical privacy. An example of which is the
recording of a confession made by a party in his official psychologist or psychiatrist about a crime he
previously committed. The person who suffers from mental trauma and breakdown may opt to
consult a psychiatrist. He may have given pertinent information about an offense he committed.
Unknown to both of them, an NBI agent has been spying and following the party accused. He
successfully obtained a recording of conversation between the psychiatrist and the patient including
the confession made by the patient of the crime he committed. Such recording is inadmissible as
evidence in the court in the prosecution of the party accused because of express prohibition
mandated by the Anti- Wire Tapping Law.

6. How the Data Privacy Act of 2012 (R.A. 10173) is relevant to medical privacy.

9

Republic Act No. 10173 (R.A. No. 10173) or the Data Privacy Act of 2012 stems from the policy
of the State to recognize the vital role of information and communications technology in nation-
building and the States inherent obligation to ensure that personal information in information and
communications systems in the government and in the private sector are secured and protected.
3
This
Act applies to the processing of all types of personal information and to any natural and juridical
person involved in personal information processing including those personal information controllers
and processors.
4


RA 10173 specifies that the processing of personal information shall be permitted only if not otherwise
prohibited by law, and when at least one of the conditions provided under Section 12 of the said Act
exists, i.e. the data subject has given his or her consent, the processing of personal information is
necessary and is related to the fulfillment of a contract with the data subject or in order to take steps
at the request of the data subject prior to entering into a contract, the processing is necessary for
compliance with a legal obligation to which the personal information controller is subject, etc.
5

Moreover, the processing of sensitive personal information and privileged information shall be prohibited,
except in cases enumerated under Section 13 of said Act.
6


Paragraph (e) of Section 13 explicitly provides that the processing of sensitive personal information
and privileged information will be allowed when the processing is necessary for purposes of medical
treatment, is carried out by a medical practitioner or a medical treatment institution, and an adequate
level of protection of personal information is ensured.
7


As a rule, therefore, sensitive personal information such as information about a patient must be kept
confidential. However, Section 13 (e) of R.A. 10173 provides for the exception, provided the following
requisites are satisfied:
(a) The processing of the patients information is necessary for the purposes of medical
treatment,

3
Republic Act No. 10173, 2.
4
Ibid, 4.
5
Ibid, 12.
6
Ibid, 13.
7
Ibid, 13 (e).
10

(b) The medical treatment is carried out by a medical practitioner or a medical treatment
institution, and
(c) An adequate level of protection of personal information is ensured.

I. Medical or Health Privacy

There is currently no standard definition of privacy or confidentiality. Even the Data Privacy Act
of 2012
8
and the Rules of Court
9
do not provide a definition of both privacy and confidentiality.
Instead, that law merely provides the examples of information that are covered by existing
rules on privacy and confidentiality.
10


For purposes of this report, the Authors will use the definition adopted by the United States
(U.S.) National Library of Medicine. They define privacy as the state of being free from
intrusion or disturbance in ones private life or affairs.
11
They define confidentiality as the
privacy of information and its protection against unauthorized disclosure.
12


In the Philippines, the Philippine Medical Association convened to write the Philippine
Medical Association Declaration on the Rights and Obligations of the Patient. The Ninth (9th)
Right declares the Right to Privacy and Confidentiality which provides the patient the right to
privacy and protection from unwarranted publicity. This right is for the patient to be
safeguarded from exposure, private or public, either by photography, publications, video-
taping, discussion, medical teaching or by any other means that would otherwise reveal his
person and identity and the treatment he has been, is being, or will be given. It further provides
in subsection (a) that the patients health status, diagnosis, prognosis, treatment, and all other
personal information be kept secret even after death except in cases where descendants would
acquire knowledge that would inform them of their health risks. It also provides that the
storage of the data must be appropriate to protect the identity of the patient including Human
substance under subsection (b). There are exceptions to patient confidentiality such as: when
the controversy of his mental or physical condition must be resolved in court litigation, when
public health and safety requires it, when the patient consents or his legal representative gives

8
See generally An Act Protecting Individual Personal Information in Information and Communications
Systems in the Government and the Private Sector, Creating for this Purpose a National Privacy
Commission, and for other Purposes [Data Privacy Act of 2012], Republic Act No. 10173 (2011).
9
REVISED RULES ON EVIDENCE, rule 128, 24.
10
See Data Privacy Act of 2012 & REVISED RULES ON EVIDENCE, rule 128, 24.
11
Ivy D. Patdu, Carl A. T. Antonio, & Alvin B. Marcelo, Health Information Privacy in the Philippines:
Trends and Challenges in Policy and Practice (Part of a Monograph Series on Privacy in the Developing
World) 2, available at https://www.academia.edu/4727321/Health_information_privacy_in_the_
Philippines_Trends_and_challenges_in_policy_and_practice (last accessed Aug. 25, 2014) (citing
National Center for Biotechnology Information, National Library of Medicine, Project MeSH, available
at http://www.ncbi.nlm.nih.gov/mesh/68018907 (last accessed Aug. 25, 2014)) (emphasis supplied).
12
Id. (citing National Center for Biotechnology Information, National Library of Medicine, Project
MeSH, available at http://www.ncbi.nlm.nih.gov/mesh/68003219 (last accessed Aug. 25, 2014))
(emphasis supplied).
11

consent if he is incapacitate, when his condition is important to a medical or scientific forum
for the advancement of science and medicine, and when it is otherwise required by law.
13


In strict legal statute we have Republic Act No. 10173 or the Data Privacy Act of 2012. Its
policy is the policy of the state which is to protect the fundamental human right of privacy, of
communication while ensuring the free flow of information to promote innovation and
growth. The state recognizes its inherent obligation to ensure that personal information and
information and communications systems in the government and in the private sector are
secured and protected. In relation to medical or health privacy, Sensitive personal information as
used in the Act, includes the personal information of an individual regarding his health,
genetics, or sexual life and also his/her current health records.

The Act prohibits the processing of sensitive personal information and privileged information.
Processing here is defined but not limited to the collection, recording, storage, modification,
retrieval, consultation, use, erasure, and destruction of data. However, there are exceptions,
Sensitive personal information and Privileged information can be processed when:
(1) the processing is necessary to protect the life and health of the person and the
person is not legally or physically able to express his or her consent prior to the
processing,
(2) the processing is necessary for medical treatment, is carried out by a medical
practitioner or a medical treatment institution, and an adequate level of protection
of personal information is ensured,
(3) the person consents,
(4) the processing is necessary to achieve lawful and noncommercial objectives of
public organizations and their associations provided certain conditions are met,
(5) the processing will protect lawful rights and interests of natural or legal persons in
court proceedings, or the establishment, defense or exercise of legal claims or
when provided to government or public authority.

The Act also prohibits the processing of these kinds of data which are collected by, used, and
stored with government agencies by the government itself, third parties, or by their contractors
without following the proper commission guidelines and complying with the pertinent
requirements.

II. Differences between Privacy from Confidentiality.

Ivy D. Patdu, et al., explains that

In brief, privacy pertains to an individuals right to be free from
unwanted external scrutiny; whereas confidentiality points to the duty
that rests on those to whom private information has been entrusted, that
is, that they will not unnecessarily disclose such privileged
communication.
14



13
Philippine Medical Association, The Rights and Obligations of Patients, available at
http://www.cmaao.org/cmaao/eventsfl/eve_db_2.html (last accessed Aug. 25, 2014).
14
Id.
12

Therefore, what seems to be the more poignant issue for discussion is how the intrusion by a
medical practitioner into the private life of a patient is balanced by a medical practitioners
responsibility of keeping of the information elicited as confidential.

A patient who comes before a doctor for treatment establishes a doctor-patient relationship
that is highly fiduciary in nature.
15
Necessarily, the patient will have to shed off his
constitutional guarantee of privacy
16
so that the doctor will obtain relevant information
essential for the patients treatment. But the disclosure of such private information puts a
responsibility on the part of the medical practitioner to secure [the information] from
unauthorized access, and that ultimately[,] the data gathered will be used to deliver safe [and]
quality care that will benefit the patient.
17


The Authors reproduce the representation (Figure 1) by Patdu, et al. that portrays the
dynamics between confidentiality and privacy



15
Id. (emphasis supplied).
16
See PHIL. CONST. art. III, 3.
17
Patdu et al., supra note 4, at 2 (citing Peter Croll, Privacy, Security and Access with Sensitive Health
Information, in HEALTH INFORMATICS: AN OVERVIEW 168-75 (Evelyn J. S. Hovenga ed., 2010).
13

Figure 1. A model for privacy, confidentiality, and security within the context
of health information by Patdu, et al.
18


The concepts of medical privacy and medical confidentiality are also covered by specific rules
relating different medical professions and different medical conditions.

Take for example the Code of Ethics of the Philippine Medical Association (CoE-PMA),
19

the Code of Ethics of the Board of Medicine (CoE-BOM),
20
and the Code of Ethics for
Filipino Nurses (CoE-RN).
21


The CoE-PMA provides

Section 6. The physician should hold as sacred and highly confidential
whatever may be discovered or learned pertinent to the patient even after
death, except when required in the promotion of justice, safety and public
health.
22


This is further reiterated by the CoE-BOM, which provides

Section 6. The medical practitioner should guard as a sacred trust anything that
is confidential or private in nature that he may discover or that may be
communicated to him in his professional relation with his patients, even after
their death. He should never divulge this confidential information, or anything
that may reflect upon the moral character of the person involved, except when
it is required in the interest of justice, public health, or public safety.
23


Interestingly though, despite the nurses being a front-line service provider, the CoE-RN does
not provide for a specific provision that governs medical privacy or confidentiality. The closest
provision that the CoE-RN has that relates to medical privacy are

ARTICLE II
REGISTERED NURSES AND THE PEOPLE

SECTION 4.

18
Id. The figure was lifted from the article referenced. Id. The Authors would like to express their sincerest
gratitude to them who own the rights to the figure.
19
Philippine Medical Association, Code of Ethics of the Philippine Medical Association, available at
https://www.philippinemedicalassociation.org/downloads/pma-codes/FINAL-PMA-
CODEOFETHICS2008.pdf (last accessed Aug. 25 2014) [hereinafter CoE-PMA].
20
Professional Regulation Commission Board of Medicine, Board of Medicine Code of Ethics, available
at http://www.prc.gov.ph/uploaded/documents/Board%20of%20Medicine-CE.pdf (last accessed
Aug. 25, 2014) [hereinafter CoE-BOM].
21
Professional Regulation Commission Board of Nursing, Code of Ethics for Nurses, available at
http://www.pna-ph.org/downloads/Code%20of%20Ethics%20for%20Nurses.pdf (last accessed
Aug. 25, 2014) [hereinafter CoE-RN].
22
CoE-PMA, supra note 12. 6.
23
CoE-BOM, supra note 13, 6.
14


Ethical Principles

1. Values, customs, and spiritual beliefs held by individuals shall be
respected.
2. Individual freedom to make rational and unconstrained decisions shall
be respected.
3. Personal information acquired in the process of giving nursing care
shall be held in strict confidence.
...

ARTICLE V
REGISTERED NURSES, SOCIETY, AND ENVIRONMENT

SECTION 13.

Ethical Principles

1. The preservation of life, respect for human rights, and promotion of
healthy environment shall be a commitment of a Registered Nurse.
24


Issues of privacy and confidentiality of specific conditions are covered by different rules, e.g.,
cases involving sexual abuse,
25
cases involving juvenile delinquents,
26
cases involving those
afflicted with the Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency
Syndrome (AIDS),
27
cases involving dangerous drugs,
28
and cases involving abuse of women
and children.
29
The summary of the rules that pertain to privacy and confidentiality in these
conditions are found in Table 2.

Specific Legislation Privacy Confidentiality

24
CoE-RN, supra note 14, art. II, 4 & art. V, 13.
25
See generally An Act Providing Assistance and Protection for Rape Victims, Establishing for the Purpose
a Rape Crisis Center in Every Province and City, Authorizing the Appropriation of Funds therefor, and
for Other Purposes [Rape Victim Assistance and Protection Act of 1998], Republic Act No. 8505 (1998).
26
An Act Establishing a Comprehensive Juvenile Justice and Welfare System, Creating the Juvenile
Justice and Welfare Council under the Department of Justice, Appropriating Funds therefor and for
Other Purposes [Juvenile Justice and Welfare Act of 2006], Republic Act No. 9344 (2006).
27
An Act Promulgating Policies and Prescribing Measures for the Prevention and Control of HIV/AIDS
in the Philippines, Instituting a Nationwide HIV/AIDS Information and Educational Program,
Establishing a Comprehensive HIV/AIDS Monitoring System, Strengthening the Philippine National
AIDS Council, and for Other Purposes [Philippine AIDS Prevention and Control Act of 1998], Republic
Act No. 8504 (1998).
28
An Act Instituting the Comprehensive Dangerous Drugs Act of 2002, Repealing Republic Act No. 6425,
otherwise known as the Dangerous Drugs Act of 1972m as Amended, Providing Funds therefor, and
for Other Purposes [Comprehensive Dangerous Drugs Act of 2002], Republic Act No. 9165 (2002).
29
An Act Defining Violence against Women and their Children, Providing for Protective Measures for
Victims, Prescribing Penalties therefore, and for Other Purposes [Anti-Violence Against Women and
Their Children Act of 2004], Republic Act No. 9262 (2004).
15

Rape Victim Assistance and
Protection Act of 1998
30

The Rape Crisis Center
31
shall
ensure the privacy of rape
victims.
32


The police officer, the
prosecutor, the Court and its
officers, as well as the parties to
the complaint shall recognize
the right to privacy of the
offended party and the
accused.
33


The Court may order a closed-
door investigation, prosecution
or trial and that the name and
personal circumstances of the
offended party and/or the
accused, or any other
information tending to
establish their identities, and
such circumstances or
information on the complaint
shall not be disclosed to the
public.
34

It shall be the duty of the police
officer or the examining
physician, who must be of the
same gender as the offended
party, to ensure that only
persons expressly authorized
by the offended party shall be
allowed inside the room where
the investigation or medical or
physical examination is being
conducted.
35


The Court may order a closed-
door investigation, prosecution
or trial and that the name and
personal circumstances of the
offended party and/or the
accused, or any other
information tending to
establish their identities, and
such circumstances or
information on the complaint
shall not be disclosed to the
public.
36

Juvenile Justice and Welfare
Act of 2006
37

Every child in conflict with the
law shall have the right to
privacy.
38


The public shall be excluded
during the proceedings
concerning a child in conflict
with the law.
39

The results of the childs
physical and mental
examination shall be kept
confidential unless otherwise
ordered by the Family Court.
40


The records and proceedings of
the trial shall be kept
confidential.
41



30
Rape Victim Assistance and Protection Act of 1998.
31
Id. 3.
32
Id. 3, d.
33
Id. 5.
34
Id.
35
Id. 4.
36
Rape Victim Assistance and Protection Act of 1998, 4.
37
Juvenile Justice and Welfare Act of 2006.
38
Id. 5, h.
39
Id. 43.
40
Id. 21, j.
41
Id. 43.
16

The records shall not be
disclosed directly or indirectly
to anyone by any of the parties
or the participants in the
proceedings for any purpose
whatsoever, except to
determine if the child in
conflict with the law may have
his/hes sentence suspended or
if he/she may be granted
probation under the Probation
Law, or to enforce the civil
liability imposed in the criminal
action.
42


Component authorities shall at
all times keep the records
confidential and shall prevent
the disclosure of information to
the media and shall maintain a
separate police blotter for cases
involving children in conflict
with the law.
43


Records shall not be used in
subsequent proceedings unless
when beneficial to the offender
and with his consent.
44

Philippine AIDS Prevention
and Control Act of 1998
45

The State shall extend to every
person suspected or known to
be infected with HIV/AIDS
full protection of his/her
human rights and civil liberties.
Towards this end, the right of
privacy of individuals with HIV
shall be guaranteed.
46


The privacy of a person with
HIV is guaranteed, most
especially in the following
locations and conditions:
All health professionals,
medical instructors, workers,
employers, recruitment
agencies, insurance companies,
data encoders, and other
custodians of any medical
record, file, data, or test results
are directed to strictly observe
confidentiality in the handling
of all medical information,
particularly the identity and
status of persons with HIV.
54



42
Id.
43
Juvenile Justice and Welfare Act of 2006, 43.
44
Id.
45
Philippine AIDS Prevention and Control Act of 1998.
46
Id. 2, b (2).
54
Id. 43.
17

(a) In the workplace;
47

(b) In schools;
48

(c) In accommodation and
travel carriers;
49

(d) In public services;
50

(e) In credit and insurance
services;
51

(f) In hospitals and health
institutions;
52
and
(g) In funeral services.
53

The only exceptions to the
foregoing rule are:
(a) When complying with
the reportorial
requirements of the
law;
(b) When informing other
health workers of the
HIV status of the
patient, provided, that
care involves the risk of
transmission, and
provided further, that
the other health
workers shall keep the
confidential nature of
the information; and
(c) When complying with
the lawful order of the
Court.
55


The results of an HIV test shall
only be to persons designated
by the law, such as the patient
himself, his parents, his
guardian, an authorized
representative of the
monitoring agencies, and a
Justice of the Court of Appeals
or the Supreme Court.
56

Comprehensive Dangerous
Drugs Act of 2002
57

Judicial and medical records of
drug dependents shall be
confidential and shall not be
used against him for any
purpose, except to determine

47
Id. 35.
48
Id. 36.
49
Id. 37.
50
Id. 38.
51
Philippine AIDS Prevention and Control Act of 1998, 39.
52
Id. 40.
53
Id. 41.
55
Id. 31.
56
Id. 32.
57
Comprehensive Dangerous Drugs Act of 2002.
18

the frequency of his voluntary
submission.
58


The records of a drug
dependent who was
rehabilitated and discharged
from the Center under the
compulsory submission
program shall be confidential.
59


Upon the dismissal of the
proceedings against the
accused, the court shall enter an
order to expunge all official
records, other than the
confidential record to be
retained by the DOJ relating to
the case. Such an order, which
shall be kept confidential, shall
restore the accused to his/her
status prior to the case.
60


The DOJ shall keep a
confidential record of the
proceedings on suspension of
sentence and shall not be used
for any purpose other than to
determine whether or not a
person accused under this Act
is a first-time minor offender.
61

Anti-Violence Against Women
and Their Children Act of
2004
62

All records pertaining to cases
of violence against women and
their children including those in
the barangay shall be
confidential and all public
officers and employees and
public or private clinics to
hospitals shall respect the right
to privacy of the victim.
63

All records pertaining to cases
of violence against women and
their children including those in
the barangay shall be
confidential and all public
officers and employees and
public or private clinics to
hospitals shall respect the right
to privacy of the victim.
64


58
Id. 62.
59
Id. 64.
60
Id. 62.
61
Id. 71.
62
Anti-Violence Against Women and Their Children Act of 2004.
63
Id. 44.
64
Id.
19

Table 1. Summary of privacy confidentiality rules as provided by different
legislations.

III. Doctor-Patient Confidentiality and the Rules of Court

The doctor-patient confidentiality finds its relevance in law under the Rules of Court.
65
This
section provides

The following persons cannot testify as to matters learned in confidence in the
following cases:
...
(c) A person authorized to practice medicine, surgery or obstetrics cannot in
a civil case, without the consent of the patient, be examined as to any
advice or treatment given by him or any information which he may have
acquired in attending such patient in a professional capacity, which
information was necessary to enable him to act in capacity, and which
would blacken the reputation of the patient.
66


This provision underwent several changes and can be traced from the 1940 Rules of Court.
67

In Lim v. Court of Appeals
68
, the Supreme Court traced the roots of this provision; to wit:

This is a reproduction of paragraph (c), Section 21, Rule 130 of the 1964
Revised Rules of Court with two (2) modifications, namely: (a) the inclusion
of the phrase advice or treatment given by him, and (b) substitution of the
word reputation for the word character. Said Section 21 in turn is a
reproduction of paragraph (f), Section 26, Rule 123 of the 1940 Rules of Court
with a modification consisting in the change of the phrase which would tend
to blacken in the latter to would blacken. Verily, these changes affected the
meaning of the provision. Under the 1940 Rules of Court, it was sufficient
if the information would tend to blacken the character of the patient. In
the 1964 Rules of Court, a stricter requirement was imposed; it was
imperative that the information would blacken such character. With the
advent of the Revised Rules on Evidence on 1 July 1989, the rule was
relaxed once more by the substitution of the word character with the
word reputation. There is a distinction between these two concepts.
Character is what a man is, and reputation is what he is supposed to be in
what people say he is. Character depends on attributes possessed, and
reputation on attributes which others believe one to possess. The former
signifies reality and the latter merely what is accepted to be reality at present.
69


Doctor-patient privilege is also found in the international setting. However, several differences
can be noted. In comparison with the U.S., the physician-patient privilege of the Philippines

65
REVISED RULES ON EVIDENCE, rule 128, 24.
66
Id.
67
1940 RULES ON EVIDENCE, rule 126, 26 (superseded 1964).
68
Lim v. Court of Appeals, 214 SCRA 273, 281-82 (1992).
69
Id. (emphasis supplied).
20

under the Rules of Court is narrower. In the U.S., (1) the privilege extends to mental health
providers who act in the capacity of psychotherapists (2) the phrase blacken the reputation
of the patient does not exist (3) the privilege can be waived by putting the condition in issue.
70


The pertinent rule on evidence has been expounded by the Supreme Court by posing the
following questions:

(1) Can the patient-doctor privilege be invoked against a third person?
(2) What are the requisites for the proper invocation of this privilege?
(3) At what stage of the trial can privilege be invoked?
(4) Does privilege cover only testimonial evidence or does it also extend to hospital
records?
(5) What is the purpose of privilege?

Can the patient-doctor privilege be invoked against a third person? What are the requisites for the proper
invocation of this privilege?

In Krohn v. Court of Appeals
71
, the wife in an annulment proceeding sought to enjoin her
husband from disclosing the contents of a psychiatric evaluation report being presented in
evidence before the trial court. The wife argued that under Section 24 (c), Rule 130 of the
Rules of Court, if physician is prohibited from testifying on matters he acquired in attending
to a patient in a professional capacity, with more reason should a third person (the husband
in this case) be prohibited from testifying the same matters. She argued that allowing her
husband to testify on the contents of the report will set a very bad and dangerous precedent
because it abets circumvention of the rules intent.

The Supreme Court held, in elaborating the privileged communication between a doctor and
a patient, that the rule intends to prevent the doctor from making public information that
will result in humiliation, embarrassment, or disgrace to the patient. The privilege creates a
zone of privacy intended to preclude the humiliation of the patient that may follow the
disclosure of his ailments.

To properly invoke the privilege, the Supreme Court held in Lim that the following requisites
must concur:

1. The privilege is claimed in a civil case;
2. The person against whom the privilege is claimed is one duly authorized
to practice medicine, surgery or obstetrics;
3. Such person acquired the information in his personal capacity;
4. The information was necessary to enable him to act in the capacity; and
5. The information was confidential and, if disclosed, would blacken the
reputation of the patient.
72



70
AMERICAN BAR ASSOCIATION, ANALYSIS OF THE RULES OF EVIDENCE AND THE ELECTRONIC RULES OF
EVIDENCE FOR THE REPUBLIC OF THE PHILIPPINES 6 (2006).
71
Krohn v. Court of Appeals, 233 SCRA 146, 152 (1994).
72
Id. at 153.
21

The Supreme Court held in Krohn that the wife cannot invoke such privilege because it is not
claimed by a duly authorized person who practices medicine, surgery or obstetrics but only
the patients husband. Neither can his testimony be considered an exception because his
testimony cannot have the force and effect of the testimony of the physician.

In Blue Cross Health Care, Inc. v. Olivares
73
, Olivares applied for a health care program with the
petitioner, a health maintenance firm. 38 days after the effectivity of her health insurance,
respondent suffered a stroke and was admitted at a hospital accredited by petitioner. Several
laboratory tests were performed. When respondent was about to be discharged, she requested
the petitioner to settle her medical bills to which the latter refused because the stroke she
suffered is not covered by her insurance.

The physician of the respondent refused to divulge any information because the respondent
invoked the patient-physician confidentiality prompting petitioner to file the present case.
Ultimately, the Supreme Court held that respondent is correct in raising the privilege and the
burden of proving that the stroke is not covered by the insurance rests upon the petitioner.

At what stage of the trial can privilege be invoked? Does privilege cover only testimonial evidence or does it
also extend to hospital records?

In Chan v. Chan
74
, petitioner filed for declaration of nullity of her marriage, dissolution of their
conjugal partnership of gains and the award of custody of their children to her. The grounds
were incessant drinking and excessive use of prohibited drugs despite undergoing hospital
confinement for detoxification and rehabilitation.

To support her action for annulment, petitioner filed a request for the issuance of a subpoena
ducestecum to the hospital where he was confined regarding respondents medical records. This
request was accompanied by a motion to be allowed to submit in evidence the subpoenaed
records.

Respondents opposed invoking the physician-patient privilege. The Supreme Court held that
the purpose of the privilege is to encourage the patient to open up to the physician, relate to
him the history of his ailment, and give him access to his body, enabling the physician to make
a correct diagnosis of that ailment and provide appropriate cure. Any fear that a physician
could be compelled in the future to come to court and narrate all that had transpired between
him and the patient might prompt the latter to clam up, thus putting his own health at great
risk.
75


In the instant case, the Supreme Court held that the petitioners request for subpoena ducestecum
is premature since the offer of evidence was made at the trial. Therefore, she will have to wait
for trial to begin before making the same request. It is when those records are produced for
examination at the trial, that respondent may opt to object, not just to their admission in
evidence, but more so to their disclosure.


73
See generally Blue Cross Health Care, Inc. v. Olivares, 544 SCRA 580 (2008).
74
See generally Chan v. Chan, 702 SCRA 76 (2013).
75
Id. (citing VICENTE FRANCISCO JR., THE REVISED RULES OF COURT OF THE PHILIPPINES 282 (1997)).
22

Petitioner argued that the hospital records she requested is not privileged since only
testimonial evidence may be regarded as privileged. According to the petitioner, only the
examination of the physician at the trial is privileged.

The Supreme Court held that if the results of tests that the physician ordered, the diagnosis of
the patients illness and the advice or treatment given to the patient are disclosed, it would
allow access to evidence that is inadmissible without the patients consent. Physician
memorializes all these information in the patients records. In effect, disclosing them would
be the equivalent of compelling the physician to testify on privileged matters he gained while
dealing with the patient without the latters prior consent.

What is the purpose of privilege?

Ultimately speaking, the doctor-patient privilege is for the sole benefit of the patient. Firstly,
it secures the patient of his right to privacy. As a patient, full disclosure is essential for proper
diagnosis and treatment. Therefore, privacy can easily be compromised. If the patient chooses
privacy, then the right to life is sacrificed. To ensure both rights are protected, the law
prevented the further divulging of very personal information even if essential in resolving civil
cases. Secondly, it prevents public degradation resulting from persons passing upon judgments
after disclosure of sickness. With this privilege inscribed in our laws, the State is able to
perform its duty in protecting the basic rights of its citizens.

IV. Lim v. Court of Appeals
76


FACTS:

Nelly Lim and Juan Sim are lawfully married. Private respondent Juan filed a petition for
annulment of such marriage on the ground that petitioner Nelly has allegedly been suffering
from mental illness called schizophrenia before, during and after the marriage and until the
present. Juans counsel announced that he would present as his witness the Chief of the
Female Services of the National Mental Hospital, Dr. Lydia Acampado, a Doctor of Medicine
who specializes in psychiatry. Counsel orally applied for a subpoena ad testificandum requiring Dr.
Acampado to testify. Petitioners counsel opposed the motion on the ground that the
testimony is privileged since the latter had examined the petitioner in a professional capacity
and had diagnosed her to be suffering from schizophrenia. Subpoena was issued. Nellys
counsel filed an urgent motion to quash the subpoena and suspend the proceedings pending
resolution of the motion.

Petioners arguments: Dr. Acampado is barred from testifying under the rule on confidentiality
of a physician-patient relationship.

Private respondents arguments: Dr. Acampado would be presented as an expert witness and
would not testify on any information acquired while attending to the petitioner in a
professional capacity.

The Motion to quash the subpoena was denied.

76
Lim, 214 SCRA at 281-82.
23


Dr. Acampado took the witness stand as an expert witness. She was asked hypothetical
questions related to her field of expertise. She neither revealed the illness she examined and
treated the petitioner for nor disclosed the results of her examination and the medicines she
had prescribed.

Petitioner filed with the Court of Appeals a petition for certiorari and prohibition to annul the
order of the RTC judge on the ground of grave abuse of discretion amounting to lack of
jurisdiction, and to prohibit him from proceeding with the reception of Dr. Acampados
testimony.

The Court of Appeals denied the petition on the ground that the petitioner failed in
establishing the confidential nature of the testimony given by or obtained from Acampado.
Petitioner then appealed to the Supreme Court.

ISSUE:

Whether or not Dr. Acampados testimony is privileged on the ground of doctor-patient
confidentiality

RULING:

FIRST, it does not qualify as privileged communication. The Revised Rules on Evidence
provide

Disqualification by reason of privileged communication. - The following persons cannot
testify as to matters learned in confidence in the following cases:
...
(c) A person authorized to practice medicine, surgery or obstetrics cannot in a
civil case, without the consent of the patient, be examined as to any evidence
or treatment given by him or any information which he may have acquired in
attending such patient in a professional capacity, which information was
necessary to enable him to act in that capacity, and which would blacken the
reputation of the patient.

This rule on the physician-patient privilege is intended to facilitate and make safe full and
confidential disclosure by the patient to the physician of all facts, circumstances and
symptoms, unrestricted by enforced disclosure on the witness stand. It rests on public policy
and is for the general interest of the community.

The rule may be waived if no timely objection to the physicians testimony. The following
requisites must concur in order for the privilege to be successfully claimed:

1. The privilege is claimed in a civil case;
2. The person against whom the privilege is claimed is one duly authorized to practice
medicine, surgery or obstetrics;
3. Such person acquired the information while he was attending to the patient in his
professional capacity;
24

4. The information was necessary to enable him to act in that capacity; and
5. The information was confidential, and if disclosed, would blacken the reputation
of the patient.

These requisites conform with the 4 fundamental conditions necessary for the establishment
of a privilege against the disclosure of certain communication:

1. The communication must originate in a confidence that they will not be disclosed.
2. This element of confidentiality must be essential to the full and satisfactorily
maintenance of the relation between the parties.
3. The relation must be one which in the opinion of the community ought to be
sedulously fostered.
4. The injury that would inure to the relation by the disclosure of the communications
must be greater than the benefit thereby gained for the correct disposal of litigation.

Only disclosures which would have been efficaciously to treat his patient are covered by the
privilege. Also, it is only the tenor of the communication that is privileged. The mere fact of
making a communication as well as the date of consultation and the number of consultations, are
therefore not privileged from disclosure, so long as the subject communicated it not stated.

One who claims the privilege must prove the existence of the aforementioned requisites. As
applied to the case, Dr. Acampado was presented and qualified as an expert witness. She did
not disclose anything obtained in the course of her examination, interview and treatment of
the petitioner. The facts and conditions alleged in the hypothetical problem did not refer to
and had no bearing on whatever information or findings the doctor obtained while attending
to the patient. There was no showing that Dr. Acampados answers to the questions
propounded to her relating to the hypothetical problem were influenced by the information
obtained from the petitioner. As an expert witness, her testimony before the trial court cannot
be excluded.

Second, information elicited during consultation with a physician in the presence of a third
parties removes such information from the mantle of privilege. It is clear from Dr.
Acampados testimony that interviews with the petitioner were always conducted in the
presence of a third party.

Third, nothing specific or concrete was offered to show that indeed, the information obtained
from Dr. Acampado would blacken the formers character (or reputation).

Finally, while counsel for petitioner opposed the oral request for the issuance of a subpoena ad
testificandum to Dr. Acampado and filed a formal motion for the quashal of said subpoena, the
petitioner makes no claim in any of her pleadings that her counsel had objected to any
question asked of the witness on the ground that it elicited an answer that would
violate the privilege.

V. Cebu Canister Scandal

To provide context, the Authors reproduce, with gratitude, the following scenario as
authored by Patdu, et al.
25


In mid 2008, a three-minute footage went viral on the video-sharing website
YouTube showing what appears to be an operation involving the extraction of
a metal spray bottle canister from the rectum of an unidentified patient. The
operating room was crowded with giggling medical staff, all of them shown on
the video with their cellular phones on hand to document the procedure. While
the canister was being extracted, somebody shouted Baby out! after which
the room broke into laughter and applause. One medical staff even opened the
canister and sprayed its contents inside the room, resulting to further laughter
from those in attendance.

The circumstances related to the incident only became clear a few weeks after
the video has circulated in emails and mobile phones and has been lengthily
discussed in various Internet forums. A 39-year-old homosexual florist from
Cebu City underwent minor operation on January 3, 2008 at the Vicente Sotto
Memorial Medical Center (VSMMC) for extraction of a foreign body lodged
in his rectum. He was allegedly asleep at the time of the operation, and was
not made aware that the procedure was going to be filmed, nor was he
informed post facto that the medical staff took a footage of his operation. He
claimed that he only learned of the existence of the YouTube video when it
was brought to his attention by their barangay captain, who saw the video on
YouTube.

As a response to the public outrage generated by the incident, various
investigating bodies were formed the hospital, Department of Health
(DOH), National Bureau of Investigation (NBI), House of Representatives
to determine the culpability of those involved in the operation, as well as to
identify the person who first uploaded the video.

Without denying any liability, the hospital and relatives of medical personnel
involved were quick to point out that the public should focus on the successful
outcome of the operation; that those involved were, in fact, first rate health
professionals and calling for a revocation of their licenses was an excessive
punishment; and that the incident was an isolated case of mischief.

While some nurses and doctors were initially placed on a three-month
preventive suspension, the case filed with the Professional Regulation
Commission was eventually dismissed on the basis of a technicality. The
identity of the person who first uploaded the video on YouTube was never
discovered, and the incident, which died a natural death, became a mere
footnote in the annals of Philippine medical history.
77


The person who uploaded the video in the internet, knowing that it can be seen by the general
public, can be held liable under Republic Act 10175 known as the Cybercrime Prevention Act
of 2012 which defines the crime of cyber libel


77
Patdu et al., supra note 4, at 8.
26

...
(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355
of the Revised Penal Code, as amended, committed through a computer
system or any other similar means which may be devised in the future.
78


Consequently, the Revised Penal Code defined libel as:

Art. 353. Definition of libel. A libel is public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act, omission, condition,
status, or circumstance tending to cause the dishonor, discredit, or contempt
of a natural or juridical person, or to blacken the memory of one who is dead.
79


There is no question that the act of uploading a very intimate and personal video caused
humiliation and dishonor on the part of the patient. It can be gleaned from the facts that what
the patient consented to is the act of taking the video of his unusual case and not to the
uploading of video. Certainly, the patient could not have consented to the upload because the
patient is well aware of the audience in the internet.

Under the New Civil Code of the Philippines:

Article 2217. Moral damages include physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury. Though incapable of pecuniary computation,
moral damages may be recovered if they are the proximate result of the
defendant's wrongful act for omission.
80


Therefore, as an additional remedy, the patient could actually recover moral damages he
suffered as a consequence of the upload and unprofessional conduct of the medical staff.

This is without prejudice to administrative sanctions that the Professional Regulation
Commission may provide.

There is no better way to describe the opinion of the Authors than by quoting Patdu, et al.

Regardless of the intentwhether for educational or entertainment purposes
as in the first of these cases, or out of curiosity or in return for a sum of money
as in the second these two cases demonstrate that even in the presence of
legal and ethical safeguards instances that result in violation of the patients
right to privacy still occur, though most are perhaps on a scale sufficient
warranting media attention. The pervasiveness of tsismis (gossip) in Filipino
culture7476 may lead a nurse assigned to a well-known celebrity to talk about
her patients case with her family and friends. A group of medical students,

78
An Act Defining Cybercrime, Providing for the Prevention, Investigation, Suppression and the
Imposition of Penalties therefor, and for Other Purposes [Cybercrime Prevention Act of 2012], Republic
Act No. 10175, 4, 4 (4).
79
REVISED PENAL CODE, art. 353.
80
CIVIL CODE, art. 2217.
27

over the course of dinner at a public restaurant, may similarly discuss a novel
case assigned to their care.
81


12. Digest Krohn vs. Court of Appeals(G.R. No. 108854, June 12, 1994)
FACTS:
Petitioner Ma. Paz Fernandez Krohn and Private respondent Edgar Krohn, Jr. were
married in 1964 and their union produced three children, Edgar Johannes, Karl Wilhelm
and Alexandra.
However, in 1971, Ma. Paz underwent psychological testing purportedly in an effort to ease
the martial strain.
The effort proved futile which led to their separation in fact in 1973.
Thereafter in 1975, Edgar secured a copy of the confidential psychiatric report on Ma. Paz
signed by Drs. Banaag and Reyes.
In 1978, with the report among others, Edgar obtained a decree from the Tirbunal
Metropolitanum Matrimonilae in Manila nullifying his marriage with Ma. Paz on the ground of
incapacitas assumendi onera conjugalia due to lack of discretion existent at the time of the
wedding and thereafter was pronounced Final and Definite in 1979.
Subsequently, in 1982, the CFI issued an order granting the voluntary dissolution of the
conjugal partnership.
In 1990, Edgar filed a petition for the annulment of his marriage with Ma. Paz before the
trial court, citing the Confidential Psychiatric Evaluation report which Ma. Paz opposed as
either unfounded or irrelevant.
At the hearing in 1991, Edgar took the witness stand and tried to testify on the contents of
the confidential Psychiatric Evaluation Report. However, this was objected to on the
ground that it violated the rule on privileged communication between physician and patient.
The contention of the parties are as follows:
o Ma. Paz
filed a manifestation expressing her continuing objection to any evidence,
oral or documentary that would thwart the physician-patient privileged
communication rule,
Submitted a Statement for the Record asserting among others that there is no
factual or legal basis whatsoever for Edgar to claim psychological incapacity
to annul their marriage, such ground being completely false, fabricated and
merely an afterthought.
o Edgar
Opposed Ma. Paz motion to disallow the introduction of the confidential
psychiatric report as evidence and afterwards moved to strike out Ma. Paz
Statement for the record.
The trial court issued an Order admitting the Confidential Psychiatric Evaluation report
ruling that the report is material in evidence on the following grounds:
o The very issue in the case is whether or not the respondent had been suffering from
psychological incapacity

81
Patdu et al., supra note 4, at 8.
28

o When the psychiatric report was referred to in the complaint, the respondent did not
object thereto on the ground of supposed privileged communication between patient
and physician but it being irrelevant.
Due to the trial courts denial of the Motion for Reconsideration and the CAs subsequent
dismissal of the case, petitioner now seeks to enjoin the presentation and disclosure of the
contents of the psychiatric report and prays for the admission of her Statement for the
record to form part of the records of the case.
Petitioner argues :
o Since Sec. 24, par.(c), rule 130, of the Rules of Court prohibits a physician from
testifying on matters which he may have acquired in attending to a patient in a
professional capacity, WITH MORE REASON should a third person (like
respondent-husband in this particular instance) be PROHIBITED from testifying on
privileged matters between a physician and patient or from submitting any medical
report, findings or evaluation prepared by a physician which the latter has acquired as
a result of his confidential and privileged relation with a patient.
o To allow her husband to testify on the contents of the psychiatric evaluation report
will set a very bad and dangerous precedent because it abets circumvention of the
rules intent in preserving the sanctity, security and confidence to the relation of
physician and his patient.
Private respondent contends that the rules are very explicit: the prohibition to
testify is not applicable to the case at bar where the person sought to be barred from
testifying on the privileged communication is the husband and not the physician of
the petitioner.

ISSUE:
Whether or not the husbands testimony regarding the contents of the Confidential
Psychiatric Evaluation report is admissible

HELD:
THE HUSBANDS TESTIMONY IS ADMISSIBLE. Petition dismissed.
Lim v. CA lays down the requisites in order the privilege may be successfully
invoked:
(a) the privilege is claimed in a civil case;
(b) the person against whom the privilege is claimed is one duly authorized to
practice medicine, surgery or obstetrics;
(c) such person acquired the information while he was attending to the patient in his
professional capacity;
(d) the information was necessary to enable him to act in that capacity; and
(e) the information was confidential and, if disclosed, would blacked the reputation of
the patient.
In the instant case, the person against whom the privilege is claimed is not one
duly authorized to practice medicine, surgery or obstetrics.
Plainly and clearly, this does not fall within the claimed prohibition. Neither can his
testimony be considered a circumvention of the prohibition because his testimony
cannot have the force of the prohibition because his testimony cannot have the force
and testimony of the physician who examined the patient and executed the report.
29

It was a fatal mistake for petitioner to invoke the rule on privilege communications but
never questioned the testimony as hearsay, for counsel effectively waived his right to
object and consequently, the evidence offered may be admitted.

13. A psychiatrist who treated a woman is prevented from testifying in a civil case.
A. If he will testify as an expert witness
B. If he will talk about matters he learned during a social gathering which will
blacken the reputation of his patient.
C. If he will talk only about advice he gave to woman while attending to her but
not her diagnosis.
D. If woman has waived her right to confidentiality.

Section 24 (C), Rule 30 of the Rules of Court provides:
A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without
the consent of the patient, be examined as to any advice or treatment given by him or any
information which he may have acquired in attending such patient in a professional capacity,
which information was necessary to enable him to act in capacity, and which would blacken the
reputation of the patient

A. He cannot testify without the consent of the woman treated if such testimony involves
information which he may acquired in attending to the woman in his capacity as a
Psychiatrist. (Section 24 (C), Rule 30, Rules of Court)

B. He can testify even without the consent of the woman since he has obtained the
information through a social gathering and not because of his capacity as a Psychiatrist.
(ibid.)

C. He cannot testify without the consent of the woman as long the information involves any
advice or treatment given by him in attending to the woman as his Pschiatrist. (id.)

D. He can testify even without consent since the right of the woman is waived.

14. In relation to right to privacy and confidentiality(See Republic Act 9165, Republic Act
9262, reublic Act 8595), what specific health related data must be kept confidential?

1. Cases of Battered Woman Syndrome (Section 26, RA 9262)
2. Victims records of physical, emotional or psychological injuries (Section 31, ibid)
3. Victims records regarding rehabilitative, counselling and treatment (Section 41, id.)
4. Judicial and medical records of drug dependents (Section 60, RA 9165)
5. Records of drug dependents who were rehabilitated and discharged (Sec. 64, ibid)


15. Discuss the provisions of Republic Act No. 8504 Philippine AIDS Prevention and
Control Act of 1998(Section 15-17, 30-42) that are related to medical privacy.

30

Privacy in general is defined as the right of an individual to limit access to others to with regard
to some aspect of their person.
82
On the other hand, Medical privacy is defined as the practice of
keeping information about a patient confidential.
83
This includes conversational discretion of
health care providers; the security of medical records; as well as the physical privacy of patients
from other patients and providers while in a medical facility.
84


Once a patient and health care provider relationship is established, the health worker is
provided for access to the private and personal information of the patient which will serve as a
guide for such health care provider to arrive at a conclusion regarding the sickness or query of
the patient.
85
This interaction between the health care provider and the patient obtains an implied
agreement whereby the personal information shared by the patient must not be shared and must
be held by the health care provider in full confidence.
86


The Philippine Aids Prevention and Control Act of 1998 protect this kind of privacy and
personal information through its provisions particularly with regard to HIV testing. Since of the
policies of the State is to accord the persons inflicted with HIV full protection of their human
rights and civil liberties, the State shall strengthen the right of privacy of individuals with HIV.

According to the law, no compulsory HIV testing shall be allowed. Although the State may
encourage voluntary testing, this shall not be done without the consent of the volunteer. In
addition, compulsory HIV testing as a precondition to employment, admission to educational
institutions, etc., shall be deemed unlawful.

Pursuant to the right of privacy of HIV victims, the law also provides that all health
professionals, medical instructors, employers, workers, insurance and recruitment agencies and
other custodian of medical records and tests must strictly observe confidentiality in the handling
of all medical information specifically the identity and status of these people. This confidentiality
however, also has exceptions such as when there is a need to comply with reportorial
requirements; to inform other health workers about to be involved in the treatment or care of a
person with HIV and such care poses a risk of HIV transmission; or when there is a need to
respond to a subpoena, the main issue of which is the HIV status of the person, provided that
such judicial proceeding such be conducted in an executive session. The law also provides an
exclusive list of persons who shall receive the results of the HIV testing.

82
Security, Privacy, Confidentiality of Health Information in the Philippines, available at,
http://www.studymode.com/essays/Security-Privacy-Confidentiality-Of-Health-Information-
970720.html (last accessed August 29, 2014).
83
Medical Privacy, available at, http://en.wikipedia.org/wiki/Medical_privacy (last accessed August 29,
2014).
84
Medical Privacy, available at, http://en.wikipedia.org/wiki/Medical_privacy (last accessed August 29,
2014).
85
Health Information Privacy in the Philippines: Trends and Challenges in Policy and Practice, available
at,
http://www.academia.edu/4727321/Health_information_privacy_in_the_Philippines_Trends_and_chall
enges_in_policy_and_practice (last accessed August 29, 2014).
86
Health Information Privacy in the Philippines: Trends and Challenges in Policy and Practice, available
at,
http://www.academia.edu/4727321/Health_information_privacy_in_the_Philippines_Trends_and_chall
enges_in_policy_and_practice (last accessed August 29, 2014).
31


To strengthen the law about HIV confidentiality, this Act also provide for penalties for any
violation of medical confidentiality as may be determined by the courts.

This confidentiality is not without limits. The law provides that any person with HIV is obliged
to disclose his or her HIV status to his or her spouse at the earliest opportune time. Since the
State aims to protect the human rights of HIV victims, discrimination, in all its forms and
subtleties, against individuals with HIV or persons perceived or suspected of having HIV shall
be considered inimical to individual and national interest. Towards this end, discrimination in the
workplace, school, restriction on the right to travel and inhibition from public services, exclusion
from credit services, discrimination in hospitals and denial of burial services are highly
discouraged.

16. Can a person be compelled to take an HIV test?

No. Compulsory HIV testing is considered unlawful under Republic Act 8504 or the Philippine
AIDS Prevention and Control Act.
In the Declaration of Policy of the said, Sec. 2, par. b(1), it provided that compulsory HIV
testing shall be considered unlawful unless otherwise provided in this Act. --- The only
exception to the prohibition on compulsory HIV testing is under Section 17 of the law
which allows for compulsory HIV testing under the following circumstances:
o When a person is charged with any of the crimes punishable under Articles 264 and
266 as amended by Republic Act No. 8353, 335 and 338 of Republic Act No. 3815,
otherwise known as the "Revised Penal Code" or under Republic Act No. 7659;
o When the determination of the HIV status is necessary to resolve the relevant issues
under Executive Order No. 309, otherwise known as the "Family Code of the
Philippines"; and
o When complying with the provisions of Republic Act No. 7170, otherwise known as
the "Organ Donation Act" and Republic Act No. 7719, otherwise known as
the "National Blood Services Act"
In Section 15, the law provided that consent is a requisite for HIV Testing: No compulsory
HIV testing shall be allowed.
In Section 16, the law further provided that compulsory HIV testing as a precondition to
employment, admission to educational institutions, exercise of freedom of abode, entry or
continued stay in the country, or the right to travel, the provision of medical service, or any
other kind of service is deemed unlawful.

The State, however, is mandated to encourage voluntary testing for individuals with a
high risk for contracting HIV. Under this voluntary testing, the written informed consent of the
person must first be obtained either from the person concerned or from the parents or legal
guardian in the case of a minor or a mentally incapacitated individual. (Sec. 15, RA 8504).

Lawful consent to HIV testing of a donated human body, organ, tissue, or blood shall be
considered as having been given under the following circumstances:
(a) a person volunteers or freely agrees to donate his/her blood, organ, or tissue for
transfusion, transplantation, or research;
(b) a person has executed a legacy in accordance with Sec. 3 of Republic Act No.
32

7170, also known as the"Organ Donation Act of 1991";
(c) a donation is executed in accordance with Sec. 4 of Republic Act No. 7170


17) Who owns the medical record of a person admitted in a hospital?

From the Philippine Medical Association Declaration on the Rights and Obligations of the Patient, it would
appear that the hospital owns the medical record of the patient. Under paragraph 12 of the said
declaration, a patient has the right to his/her medical record only upon request. From this, it may
be inferred that the medical records are kept by the health care institution with the patient having
only the prerogative/right to access it. The textual reference of the said declaration provides:

12. Right to Medical Records. The health care institution and the physician shall ensure
and safeguard the integrity and authenticity of the medical records.
a. Upon the request of patient, the physician shall issue a medical certificate, a
clinical abstract to the patient upon discharge from the institution. Any
relevant document that the patient may require for insurance claims shall also
be made available to him within a reasonable period of time.
b. He has the right to view the contents of his medical records with the attending
physician explaining contents thereof and at his expense.
c. The patient may obtain from the health care institution a reproduction of his
medical record at his expense.

18. What is the practice of medicine?
Section 10 of Republic Act No. 2382, known as The Medical Act of 1959, provides the following
acts as constituting practice of medicine:
Section 10. Acts constituting practice of medicine. A person shall be considered as engaged in the practice of medicine
(a) who shall, for compensation, fee, salary or reward in any form, paid to him directly or through another, or even
without the same, physical examine any person, and diagnose, treat, operate or prescribe any remedy for any human
disease, injury, deformity, physical, mental or physical condition or any ailment, real or imaginary, regardless of the
nature of the remedy or treatment administered, prescribed or recommended; or
(b) who shall, by means of signs, cards, advertisements, written or printed matter, or through the radio, television or
any other means of communication, either offer or undertake by any means or method to diagnose, treat, operate or
prescribe any remedy for any human disease, injury, deformity, physical, mental or physical condition; or
(c) who shall use the title M.D. after his name.

19. What is not considered practice of medicine? (See RA 2382)
Section 11 of Republic Act No. 2382, known as The Medical Act of 1959, provides for the following
acts as not considered as practice of medicine:
Section 11. Exemptions. The preceding section shall not be construed to affect
(a) any medical student duly enrolled in an approved medical college or school under training, serving without any
professional fee in any government or private hospital, provided that he renders such service under the direct supervision
and control of a registered physician;
(b) any legally registered dentist engaged exclusively in the practice of dentistry;
(c) any duly registered masseur or physiotherapist, provided that he applies massage or other physical means upon
written order or prescription of a duly registered physician, or provided that such application of massage or physical
means shall be limited to physical or muscular development;
33

(d) any duly registered optometrist who mechanically fits or sells lenses, artificial eyes, limbs or other similar appliances
or who is engaged in the mechanical examination of eyes for the purpose of constructing or adjusting eye glasses,
spectacles and lenses;
(e) any person who renders any service gratuitously in cases of emergency, or in places where the services of a duly
registered physician, nurse or midwife are not available;
(f) any person who administers or recommends any household remedy as per classification of existing Pharmacy Laws;
and (g) any psychologist or mental hygienist in the performance of his duties, provided such performance is done in
conjunction with a duly registered physician.

20. Can a person practice medicine without a duly issued medical license from PRC?
Yes, according to Section 12 of Republic Act No. 2382, known as The Medical Act of 1959, which
states:
Section 12. Limited practice without any certificate of registration. Certificates of registration shall not be required of
the following persons:
(a) Physicians and surgeons from other countries called in consultation only and exclusively in specific and definite
cases, or those attached to international bodies or organization assigned to perform certain definite work in the
Philippines provided they shall limit their practice to the specific work assigned to them and provided further they shall
secure a previous authorization from the Board of Medical Examiners.
(b) Commissioned medical officers of the United States armed forces stationed in the Philippines while rendering service
as such only for the members of the said armed forces and within the limit of their own respective territorial jurisdiction.
(c) Foreign physicians employed as exchange professors in special branches of medicine or surgery whose service may in
the discretion of the Board of Medical Education, be necessary.
(d) Medical students who have completed the first four years of medical course, graduates of medicine and registered
nurses who may be given limited and special authorization by the Secretary of Health to render medical services during
epidemics or national emergencies whenever the services of duly registered physicians are not available. Such
authorization shall automatically cease when the epidemic or national emergency is declared terminated by the Secretary
of Health.

21. What is illegal practice of medicine? (See RA 2382)
Under Republic Act No. 2382, known as The Medical Act of 1959, there is an illegal practice of
medicine when a person commits an act or acts under Section 10 of the said Act (mentioned
above), not falling under the exemptions in Section 12 (mentioned above) and not having the
following qualifications:
Section 8. Prerequisite to the practice of medicine. No person shall engage in the practice of medicine in the Philippines
unless he is at least twenty-one years of age, has satisfactorily passed the corresponding Board Examination, and is a
holder of a valid Certificate of Registration duly issued to him by the Board of Medical Examiners.
The law further provides the following penalties:
Section 28. Penalties. Any person found guilty of "illegal practice of medicine" shall be punished by a fine of not less
than one thousand pesos nor more than ten thousand pesos with subsidiary imprisonment in case of insolvency, or by
imprisonment of not less than one year nor more than five years, or by both such fine and imprisonment, in the
discretion of the court.
22. Can a physician refuse to treat a patient? Explain.
Yes, Article 2, Section 2 of the Code of Ethics of the Philippine Medical Association provides that,
A physician should be free to choose patients. However, Republic Act No. 8344 (AN ACT
PENALIZING THE REFUSAL OF HOSPITALS AND MEDICAL CLINICS TO
ADMINISTER APPROPRIATE INITIAL MEDICAL TREATMENT AND SUPPORT IN
EMERGENCY OR SERIOUS CASES, AMENDING FOR THE PURPOSE BATAS
PAMBANSA BILANG 702) provides that:
34

SECTION 1. In emergency or serious cases, it shall be unlawful for any proprietor, president, director, manager or
any other officer, and/or medical practitioner or employee of a hospital or medical clinic to request, solicit, demand or
accept any deposit or any other form of advance payment as a prerequisite for confinement or medical treatment of a
patient in such hospital or medical clinic or to refuse to administer medical treatment and support as dictated by good
practice of medicine to prevent death or permanent disability: Provided, That by reason of inadequacy of the medical
capabilities of the hospital or medical clinic, the attending physician may transfer the patient to a facility where the
appropriate care can be given, after the patient or his next of kin consents to said transfer and after the receiving
hospital or medical clinic agrees to the transfer: Provided, however, That when the patient is unconscious, incapable of
giving consent and/or unaccompanied, the physician can transfer the patient even without his consent: Provided,
further, That such transfer shall be done only after necessary emergency treatment and support have been administered
to stabilize the patient and after it has been established that such transfer entails less risks than the patient's continued
confinement: Provided, furthermore, That no hospital or clinic, after being informed of the medical indications for such
transfer, shall refuse to receive the patient nor demand from the patient or his next of kin any deposit or advance
payment: Provided, finally, That strict compliance with the foregoing procedure on transfer shall not be construed as a
refusal made punishable by this Act.

23. Digest People vs. Vda. De Golez 108 Phil 855, 859 (1960)
People v Vda. de Golez
GR No. L-14160
June 30, 1960

FACTS
Dec. 1946, Negros Occidental: De Golez, a quack doctor, diagnosed and treated Tam for a
certain bodily ailment that the latter was suffering from.
De Golez did this knowing fully well that she did not possess the necessary technical or
scientific knowledge or skill.
As a result of De Golezs negligence, carelessness and lack of medical skill, Tam died.
An information was filed against De Golez.
o Assistant fiscal made a manifestation that De Golez was also charged with the crime
of illegal practice of medicine before another sala of the same court.
o As such, the trial court dismissed the information for being fatally defective on the
basis that the facts do not constitute the offense of homicide thru reckless
imprudence,
Because illegal practice of medicine is malicious per se.
By practicing medicine without academic preparation or a license,
De Golez committed a criminal act for which criminal intent is
presumed.
o Homicide cannot be imputed to a person who has no authority to practice in the
medical profession.
Homicide requires that the crime results from a lawful act done without
exercising care and diligence.
i. The death in the case at bar resulted from illegal practice of medicine, which
in itself is an unlawful act.
(k) Provincial fiscal, through Solicitor General urges that lower court erred in dismissing the
information for being fatally defective.

ISSUE
35

W/N illegal practice of medicine requires an element of criminal intent

HELD
NO.
The crime of illegal practice of medicine is a statutory offense wherein criminal intent is
taken for granted, so that a person may be convicted thereof irrespective of his intention
and in spite of his having acted in good faith and without malice
o Even if he was not motivated by an evil desire to injure or hurt another, but by an
honest desire to cure or alleviate the pain of a patient.
Also, the offense consists in the mere act of practicing medicine in violation of the Medical
Law
o Even if no injury to another, much less death, results from malpractice.
Where the patient dies, the illegal practitioner should be equally responsible for the death of
his patient, an offense independent and distinct from the illegal practice of medicine.
The allegations in the information that De Golez, knowing that she did not possess technical
knowledge or skill to treat Tam, thus causing the latters death, are sufficient to charger her
(the former) with homicide thru reckless imprudence.

However, since the lower court dismissed an information that was valid in form and substance to
sustain a conviction, and since De Golez pleaded not guilty, granting this appeal would constitute
double jeopardy. Further proceedings upon this case are barred. Trial court should have been more
careful. It should have allowed its judgments to be influenced by preconceived notions or undue
haste in dispatching cases.

24. Differentiate Administrative, Civil, and Criminal Liability of Physicians
Administrative Civil Criminal
Where is this filed? It is filed before the
Board of Medicine;
and its decision
becomes final after 30
days unless an appeal is
filed before the
Professional
Regulations
Commission and later
to the Office of the
President
An original complaint
for civil actions are
filed in court, but the
civil aspect of a
criminal complaint is
deemed instituted with
such complaint subject
to the provisions of
Rule 111 of the Rules
of Court.
Pursuant to the Rules
on Criminal Procedure,
the complaint or
information should be
instituted and tried in
the court of the
municipality or
territory where the
offense was committed
or where any of its
essential ingredients
occurred, and the
other items
enumerated under Rule
110, Section 15 of the
Rules of Court.
36

Administrative Civil Criminal
What is the
consequence for the
liability?
The board may
reprimand, suspend
or revoke the
physician's license.
However, after 2 years
of exemplary behavior,
the revoked license
may be reinstated at
the Board's discretion.
The Medical Act
imposed the penalty of
imprisonment, fine, or
both for any person
found guilty of illegal
medical practice. It
does not give penalty
for gross negligence,
ignorance or
incompetence other
than administrative
liability.

However, they may be
the basis for the award
of damages under the
Civil Code (Art. 19-21,
2176 and 2180) which
makes every person
who negligently causes
damage to another
liable to indemnify the
latter.
The criminal liability of
physicians vary
depending on the
statute violated. The
nature of such
liabilities may either be
personal or
incidental devolving
on the following acts:

Personal:
-
Abortion

-
Issuance of false
medical certificate

-
Failure to report
treatment of physical
injuries

-
Simulation of births,
substitution of one
child for another,
and concealment or
abandonment of a
legitimate child

-
Refusal to render
treatment in
emergency cases


Incidental:
-
Criminal negligence
and imprudence

-
Violation of the
Dangerous Drugs
Act

-
Violation of
Pharmacy Law

-
Defamation (slander
or libel)


Note that the above
mentioned acts
becomes part of thei
grounds for the
Board's decisions
regarding reprimand,
37

Administrative Civil Criminal
suspension and
revocation. S
Proof Required Substantial evidence or
the amount of relevant
evidence which a
reasonable mind might
accept as adequate to
justify a conclusion
Preponderance of
evidence
Proof beyond
reasonable doubt
38



25. Discuss. Several sex videos found their way in the internet showing a physician having
sex with various female partners. Videos were apparently taken without the knowledge and
consent of the women, some of whom were his patients. Immorality complaints were filed
against the physician before the Professional Regulations Commission. (Read about the
Hayden Kho case).

The complaint filed against the physician will prosper. The act of taking videos without the
knowledge and consent of the women, whom some of which were his patients, is an immoral or
dishonorable conduct which is a ground for reprimanding a physician, or suspending or revoking a
certificate of registration as physician under RA 2382 or The Medical Act of 1959.

This situation is very similar to the case of Hayden Kho vs Katrina Halili which was decided
in the Court of Appeals. In that case, Hayden Kho is a duly licensed physician and worked as one of
the doctors of the Belo Medical Group, Inc. Katrina Halili went to the said clinic for consultation
and thereafter, Kho performed liposuction on Halili. Weeks after, they developed an amorous
relationship. Subsequently, existence of their sex videos was rumored to be circulating online. This is
without the consent and knowledge of Halili. Halili filed a complaint against Kho before the Board
of Medicine for immorality and dishonorable/unethical conduct. The Board found Kho guilty as
charged. PRC affirmed such decision.

When it was brought to The Court of Appeals, it affirmed the decision of the Board and
PRC that Kho is indeed guilty of immorality and dishonorable/unethical conduct under Section
24 of the Medical Act of 1959. It is interesting to note that when Kho raised the defense that such
act is not in relation to the practice of medicine the Court of appeals stated that:

It may be well to state that nowhere is it required in the law that the complained immorality and
dishonorable conduct must bear connection with the practice of medicine. Dishonorable conduct
is more embrasive to include intellectual and moral incompetence to practice the profession and also
acts of a nature to jeopardize the interest of the public. Immoral or dishonorable conduct is a
legislative catch-all ground to include a broad spectrum of reprehensible conduct of a physician
connected with the practice of the profession or not, provided it is contrary to existing norms or the
conduct is disgraceful, unbecoming, unethical or repulsive to the moral standard in society. The
Board of Medicine, in view of maintaining the ethical, moral and professional standard of the
medical profession may exercise discretion in determining what must be considered immoral or
dishonorable conduct of a physician.

It added:

Indeed, a relation between the complained act constituting immorality or dishonorable conduct to
the practice of medicine need not exist. It may pertain to life in general as there can be no
dichotomy to separate a physicians existence into his professional and personal being. Truly, the
standard of morality to which medical practitioners ought to adhere to is quite high, and with good
reason. The State has the primary interest that the public health should be preserved and life be
made secure. Thus, [T]he regulation of the practice of medicine in all its branches has long been
recognized as a reasonable method of protecting the health and safety of the public

39

26. Discuss the Administrative liability of Physicians (Medical Act of 1959, Code of medical
Ethics, E.O. No. 212, Amending Presidential Decree no. 169) What are the grounds to
hold a physician administratively liable?


Medical Act of 1959

Section 24 of the Medical Act of 1959 provides the ground for reprimanding a physician, or
for suspending or revoking a certificate of registration as physician.
The grounds are:
(1) Conviction by a court of competent jurisdiction of any criminal offense involving moral
turpitude;
(2) Immoral or dishonorable conduct;
(3) Insanity;
(4) Fraud in the acquisition of the certificate of registration;
(5) Gross negligence, ignorance or incompetence in the practice of his or her profession resulting in
an injury to or death of the patient;
(6) Addiction to alcoholic beverages or to any habit forming drug rendering him or her incompetent
to practice his or her profession, or to any form of gambling;
(7) False or extravagant or unethical advertisements wherein other things than his name, profession,
limitation of practice, clinic hours, office and home address, are mentioned.
(8) Performance of or aiding in any criminal abortion;
(9) Knowingly issuing any false medical certificate;
(10) Issuing any statement or spreading any news or rumor which is derogatory to the character and
reputation of another physician without justifiable motive;
(11) Aiding or acting as a dummy of an unqualified or unregistered person to practice medicine;
(12) Violation of any provision of the Code of Ethics as approved by the Philippine Medical
Association.

Also in the said section, it provides that refusal of a physician to attend a patient in danger of death
is not a sufficient ground for revocation or suspension of his registration certificate if there is a risk
to the physician's life.

Section 28, in relation to section 10, 11 and 12, pertains to a situation where a person has
done acts committing illegal practice of medicine. Section 10 of the Act enumerates acts which
considers a person engages in the practice of medicine which are 1) one who shall diagnose, treat or
prescribe a remedy for any disease, ailment or injury of a person for a fee; or 2) one who shall by
means of advertisement, radio or television or other means of communication, either offer or
undertake by any means or method to diagnose, treat or prescribe any remedy for any human
disease, ailment or injury; or 3) one who shall use the title M.D after his name. Section 11 provides
the exemption which should no be construed as engaged in the practice of medicine and Section 12
provides that the individuals enumerated therein does not need to have certificate of registration.
Upon careful review of the said provisions, physician cannot be administratively liable in this case
because this situation actually contemplates a person not a physician who actually engaged to such
practice of medicine provided he does not fall within the exception provided in Section 11 and
Section 12. Thus, Physician cannot be held administratively liable on the said provisions.


40

Executive Order No. 212
Amending Presidential Decree no. 169.

Executive Order No. 212, Section 1, gives an obligation to an attending physician to report
to the nearest government health authority the fact that he treated a person for serious or less
serious physical injuries as these injuries are defined in Articles 262, 263, 264 and 265 of the Revised
Penal Code. Also in the same provision, the records of the reports kept by said health authorities
shall, upon written request, be made available to law enforcement agencies.

Section 2 of the Executive Order provides that the report shall indicate, when practicable the
following:
a) the name, age and address of the patient;
b) the name and address of the nearest of kin of the patient;
c) the name and address of the person who brought the patient for medical treatment;
d) the nature and probable cause of the patient's injury;
e) the approximate time and date when the injury was sustained;
f) the place where the injury was sustained;
g) the time, date and nature of the treatment; and
the diagnosis, the prognosis and/or disposition of the patient.


The violation of the said act will make the physician administratively liable as provided in
Section 4 of the said law which provides: Any violation of this Act or of the aforesaid rules and
regulations issued by the Secretary of Health, in consultations with the Philippine Constabulary, shall
be punished administratively with a fine that shall not be less than One Hundred Pesos (P100.00)
nor more than Five Hundred Pesos (P500.00). In addition, the license or permit of the attending
physician shall be cancelled upon the third violations of this Act or of its implementing rules and
regulations.

27. Can a physician be made administratively liable for violating the Code of Medical
Ethics. Why (If yes, what is your legal basis) or why not?

Yes a physician can be held administratively liable for violating the Code of Medical Ethics.
Section 24 of the Medical Act of 1959 provides for the grounds for the reprimand,
suspension or revocation or registration certificate. To quote it states that :

Any of the following shall be sufficient ground for reprimanding a physician, or for
suspending or revoking a certificate of registration as physician:

12. Violation of any provision of the Code of Ethics as approved by the Philippine Medical
Association. Refusal of a physician to attend to a patient in danger of death is not a sufficient
ground for revocation for suspension of his registration certificate if there is a risk to the
physicians life.


This section provides for the legal basis for any administrative liability that may be imposed
on a physician who violates the Code of Medical Ethics as provided by the Philippine Medical
41

Association. As explicitly stated it allows for the reprimand, suspension or even the revocation of
the certificate of registration of a physician who violates any of his duties under the code of medical
ethics.

28. Which of the grounds to hold a physician administratively liable also constitute criminal
acts that may be punished under the Revised Penal Code?


It is submitted that the following grounds for a physicians administrative liability also constitute
criminal acts that may be punished under the Revised Penal Code:


5. Gross negligence, ignorance or incompetence in the practice of his or her profession resulting
in an injury to or death of the patient.

8. Performance of or aiding in any criminal abortion.
9. Knowingly issuing any false medical certificate.
10. Issuing any statement or spreading any news or rumor which is derogatory to the character
& reputation of another physician without justifiable motive.

12. Violation of any provision of the Code of Ethics as approved by the Philippine Medical
Association. Refusal of a physician to attend a patient in danger of death is not a sufficient ground
for revocation for suspension of his registration certificate if there is a risk to the physicians life.

Respectively they correspond to the crimes of reckless imprudence (365), abortion practiced by a
physician or midwife (Article 259), false medical certificates (Article 174), libel (Article 353-355) and
abandonment of a person in danger (Article 275).

Gross negligence, ignorance or incompetence in the practice of his or her profession resulting in an
injury to or death of the patient constitutes reckless imprudence when a physician does or fails to do
an act voluntarily and without malice resulting to material damage on his patient.

Performance of or aiding in any criminal abortion is at square with Article 259 of the Revised Penal
Code which punishes a physician or midwife who practices an abortion. The elements of the crime
are that there is a pregnant woman who has suffered an abortion that is intended and that a
physician or midwife causes or assists in the abortion while taking advantage of his or her scientific
knowledge or skill.

Knowingly issuing and false medical certificates is also punished under the Revised Penal Code
under Article 174 which punishes a physician or surgeon who in connection with the practice of his
profession shall issue a false certificate.

Issuing any statement or spreading any news or rumor which is derogatory to the character &
reputation of another physician without justifiable motive will constitute libel under when a
physician makes a malicious imputation of any crime or vice or defect, real or imaginary, or any act,
omission, condition, status or circumstance tending to cause the dishonor, discredit or contempt of
any other physician.

42

Under the Code of Ethics of Medical Professionals Section 3 provides:

In cases of emergency, wherein immediate action is necessary, a physician should administer
at least first aid treatment and then refer the patient to a more qualified and competent physician if
the case does not fall within his particular line.

A physician who fails to do this can be held administratively liable for violating the Code of Ethics
of Medical Professionals. Furthermore he can also be held criminally liable for Article 275 of the
Revised Penal code for abandoning a person in danger when a physician shall fail to render
assistance to any person whom he shall find in an uninhabited place wounded or in danger of dying,
when he can render such assistance without detriment to himself, unless such omission shall
constitute a more serious offense.


29. Briefly Outline the Code of Medical Ethics

I. General Principles

A. Conduct of a Physician

To serve mankind without discrimination

2. To act in accordance with the Code of Medical Ethics and generally
accepted principles of the International Code of Medical Ethics

To fulfil civic duties of a good citizen, conform to laws and cooperate with
authorities

To work together and in harmony with colleagues

To cooperate to safe-guard the interest, reputation and dignity of paramedical
and other health professionals

6. To be upright, diligent, sober modest and well-versed in both the science and
art of the medical profession

B. Considerations of a Physician

1. Primary - Service to mankind

2. Secondary - Financial gain and other benefits from health product industries

II. Four-fold Duty of a Physician

A. Duties of Physicians to their Patients

1. Duty of Competence
43


a) Duty to provide medical care in accordance with the current standard of
care compassion, independence and respect for human dignity

b) Duty to accept only patients to whom he can provide medical
services in accordance with the current standards of care compassion,
independence and respect for human dignity

2. Duty to Ensure the Safety and Health of a Patient

a) Duty to give first-aid in cases of emergency

b) Duty to seek assistance from a specialist in serious/difficult cases

3. Duty of Honesty

4. Duty of Confidentiality

5. Duty to Charge Fair and Equitable Medical Fees


B. Duties of Physicians to the Community

1. Duty to Cooperate with Authorities to Promote Health

2. Duty to Assist in the Administration of Justice

3. Duty to Report Unlicensed Medical Practices

4. Duty of Modest Advertising of Medical Services

5. Duty of Diligence in Multimedia

a) Diligence in giving diagnosis in broadcast media

b) Diligence in writing articles

C. Duties of Physicians to Colleagues and to the Profession

1. Duties to Colleagues

a) Duty to waive professional fees

b) Duty to consult a specialist when necessary

c) Duty to observe protocol in making referrals

d) Duty of diligence of substitute physicians
44


e) Duty to respect the doctor-patient relationship of colleagues

f) Duty not to receive commission for referrals

2. Duties to the Profession

a) Duty of competence of the editorial board of medical journals

b) Duty to report corrupt and dishonest practices of colleagues

c) Duty to keep abreast of medical developments

d) Duty as to funds

Duty to appropriate funds from commercial sources for the benefit of the
association or society

Duty to only accept reasonable subsidies to support Continuing Medical
Education (CME) events

Duty of faculty/speaker/consultant to only accept honoraria and
reimbursement for reasonable transportation, lodging and meal expenses
from health industries.

Duty to grant scholarships only when the selection of scholars is made by the
organizers of CME or an academic institution

e) Duty to not to commercialize the (CME)

Duty to use generic names during CME activities

Duty not to allow commercial exhibits interfere or influence CME activities

D. Duty of Physicians to Allied Professionals

1. Duty Not to Pay or Receive Commission to or From Allied Health Workers

III. Relationship of Physicians with the Health Product Industry

A. Benefits Received from Health Products Industry

1. Physicians Shall Not Derive Any Material Gain From Product Samples

2. Physicians May Only Receive From Health Product Industries

45

a) Gifts of reasonable value that primarily benefits patient care or related to the
physicians work

b) Donations requested by the physician for charitable purposes that does not
redound to the physicians benefit

B. Research

1. Research activities must be ethically defensible, socially responsible and scientifically
valid
2. Research trials conducted by a physician for a health product industry should be in
accordance with national or institutional guidelines to protect human subjects

3. Remuneration should be reasonable and should not constitute an enticement

C. Postmarketing Surveillance

1. Must be done with the informed consent of patients

2. Physicians are encouraged to report or share the result of the activity with the
authorities

IV Amendments

A. Procedure

1. Recommendation of the Commission on Ethics to amend or repeal the code

2. Approval of the Board of Governors of the Philippine Medical Association of the
amendment or repeal by a vote of 2/3

3. Ratification of the General Assembly


30. There are advertisements showing doctors apparently endorsing commercial products.
Discuss in relation to the Code of Medical Ethics.

The revised Code of Medical Ethics, specifically Article III Section 5 of the same, provides for
the duties of a physician who is involved in multimedia, to wit:

Section 5. A physician involved in [multimedia] must be well informed of the matter under
discussion. Only the name of the physician and membership to a society or institution may be
mentioned or posted. A physician should only make a general opinion and shall refrain from
making a specific diagnosis, therapy or projection to individual cases in his appearances in the
broadcast media. An article written by a physician must be evidenced-based and disclose
46

connections with pharmaceutical or health product companies. A physician shall not commercially
endorse any medical or health product. (Italics supplied)

By carefully reading the above-mentioned provision, it is therefore clear that advertisements
showing doctors endorsing commercial products is not per se contrary to the Code of Medical Ethics
(Code). What is prohibited by the Code is the endorsement of a medical or health product. This is
because when a physician endorses commercial products other than medical or health products, they
endorse the same in their capacity as a private individual whose endorsement is just as good as any
person. The same however cannot be said for a physician who advertises or endorses a medical or
health product. As a person who presents himself to the public to be learned in the field of health
and medicine, a physicians opinion and, by extension, endorsement of a medical or health product
carries much weight so much so that it can induce persons into patronizing a medical or health
product based solely on such supposed learned opinion. In conclusion, advertisements showing
doctors endorsing commercial products is not prohibited if such commercial products are not
health-related or medical in nature.

31. Pharmaceutical company funds a medical research conducted by a physician. Is this
allowed?

The Code provides for two kinds of research which may be conducted by a physician, that is, a
research activity and a research trial. These two kinds of research are governed by separate rules to
determine whether such act is allowed. Article VI Section 5 which deals with research activities
provides:

Section 5. Research activities shall be ethically defensible, socially responsible and scientifically
valid. Any remuneration should be reasonable and should not constitute as an enticement.

On the other hand, research trials are governed by Article VI Section 5, to wit:

Section 6. Research trials conducted by physicians for an industry should be done in
accordance with the national or institutional guidelines for the protection of human rights.

The elements of a valid research activity and research trial can be gathered from these provisions.
Under Section 5 of Article VI the elements of a lawful research activity are:

1. It is ethically defensible

2. It is socially responsible

3. It is scientifically valid and,

4. The remuneration should be reasonable and should not constitute and enticement

For a research trial to be lawful, the same should be in accordance with the national or institutional
guidelines for the protection of human life. In the instant case, it is not exactly stated what the
47

nature of the research is. Nevertheless, the mere funding of a pharmaceutical company of a medical
research is not in itself unlawful if there is no absence in any of the requirements for a research
activity or research trial stated in the Code.




#32 Enumerate the criminal liability of physicians under the Revised Penal Code Articles
15, 174, 259, 347, 365


Article 15. Alternative circumstances. Alternative circumstances are those which must be taken into
consideration as aggravating or mitigating according to the nature and effects of the crime and the
other conditions attending its commission. They are the degree of instruction and education of the
offender.

Article 174. False medical certificates, false certificates of merits or service, etc. The penalties
of arresto mayor in its maximum period to prision correccional in its minimum period and a fine not
to exceed P1,000 pesos shall be imposed upon:
1. Any physician or surgeon who, in connection, with the practice of his profession, shall issue a
false certificate

Article 259. Abortion practiced by a physician or midwife and dispensing of abortives. The
penalties provided in Article 256 shall be imposed in its maximum period, respectively, upon any
physician who, taking advantage of their scientific knowledge or skill, shall cause an abortion or
assist in causing the same.

Article 347. Simulation of births, substitution of one child for another and concealment or
abandonment of a legitimate child. The simulation of births and the substitution of one child
for another shall be punished by prision mayor and a fine of not exceeding 1,000 pesos.

The same penalties shall be imposed upon any person who shall conceal or abandon any legitimate
child with intent to cause such child to lose its civil status.

Any physician or surgeon who, in violation of the duties of his profession or office, shall cooperate
in the execution of any of the crimes mentioned in the two next preceding paragraphs, shall suffer the
penalties therein prescribed and also the penalty of temporary special disqualification.

Article 365. Imprudence and negligence. Any person who, by reckless imprudence, shall
commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty
of arresto mayor in its maximum period to prision correccional in its medium period; if it would have
constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall
be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum
period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise
constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum
48

periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum
period shall be imposed.

When the execution of the act covered by this article shall have only resulted in damage to the property
of another, the offender shall be punished by a fine ranging from an amount equal to the value of said
damages to three times such value, but which shall in no case be less than twenty-five pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by
simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have
constituted a light felony.



Reckless imprudence consists in voluntary, but without malice, doing or falling to do an act from
which material damage results by reason of inexcusable lack of precaution on the part of the person
performing of failing to perform such act, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding persons, time and place.

Simple imprudence consists in the lack of precaution displayed in those cases in which the damage
impending to be caused is not immediate nor the danger clearly manifest.

The penalty next higher in degree to those provided for in this article shall be imposed upon the
offender who fails to lend on the spot to the injured parties such help as may be in this hand to give.
49

#33 Cruz vs Court of Appeals, 282 SCRA 188 (1997)

FACTS
Petitioner Dr Ninevetch Cruz found a myoma in the uterus of patient Lydia Umali
Dr Cruz scheduled Lydia for a hysterectomy on March 23
Lydia was checked in the clinic by her daughter Rowena, who noticed the clinic was untidy
and that the floor and window were dusty
Rowena wanted to postpone the operation but Dr Cruz convinced Lydia to proceed with the
original schedule
The surgery was not an emergency, but elective
During the surgery, Dr Lina Ercillo, the attending anaesthesiologist, instructed Lydia's relatives
to buy tagamet ampules; after one hour, type A blood from St Gerald Blood Bank; after the
operation, more blood
Lydia was gasping for breath because the oxygen tank had run out of supply
A few hours after the operation, Lydia went into shock and her blood pressure dropped to
60/50, necessitating her transfer to San Pablo District Hospital (SPDH)
This transfer was made without the consent of Rowena or any other relative of Lydia
Dr Cruz and Dr Ercillo re-operated on Lydia upon her arrival at SPDH because there was
blood oozing from the abdominal incision
Lydia died while Dr Cruz was closing the abdominal wall; she was pronounced dead at 3 AM
and her death certificate states shock as the immediate cause of death and Disseminated
Intravascular Coagulation (DIC) as the antecedent cause
Rowena filed a case against Dr Cruz and Dr Ercillo, charging them with reckless imprudence and
negligence resulting in homicide which information states that the two doctors [failed] to supply or
store sufficient provisions and facilities necessary to meet any and all exigencies apt to arise
before, during, and/or after a surgical operation... including lack of preparation and foresight
needed to avert a tragedy, the untimely death of said Lydia Umali on the day following said
surgical operation
The MTCC of San Pablo City found Dr Ercillo not guilty for insufficiency of evidence while
Dr Cruz was guilty and sentenced to imprisonment
Basis of MTCC's decision: clinic was untidy, there was a lack of provisions like bloody and
oxygen to prepare for any contingency during the operation, there was no showing that
Dr Cruz conducted a cardio-pulmonary clearance or any typing of Lydia's blood; the
patient chart (a public document) was not presented in evidence
Dr Cruz appealed her conviction to the RTC which affirmed the decision of the MTCC
The CA also affirmed the MTCC's decision, and on petition for review on certiorari, modified
her sentence to include indeminifcation of Php 50,000 for the death of Lydia

ISSUE
W/N Dr Cruz's conviction of the crime of reckless imprudence resulting in homicide, arising
from an alleged medical malpractice, is supported by the evidence on record

HELD/RATIO
NO, the circumstances are insufficient to sustain a judgment of conviction against Dr
50

Cruz for the crime of reckless imprudence resulting in homicide.

Whether or not a physician has committed an inexcusable lack of precaution in the
treatment of his patient is to be determined according to the standard of care observed
by other members of the prfession in good standing under similar circumstances,
bearing in mind the advanced state of the profession at the time of treatment or the
present state of medical science.
In the instant case, there is an absence of expert testimony as to the matter of the standard
of care employed by other physicians of good standing in the conduct of similar
operations.
The prosecution's expert witnesses (doctors of the NBI) only testified as to the possible
cause of death but did not provide a standard of care that Dr Cruz should have exercised.
While all three lower courts (MTCC, RTC, and CA) point out the inadequacy and
untidiness of the facilities, the lack of provisions, the failure to subject Lydia to a cardio-
pulmonary clearance prior to the hysterectomy, and even the subsequent transfer to
SPDH, the conclusions of whether these circumstances constitute reckless imprudence on
the part of Dr Cruz is still best arrived at not through educated surmises nor conjectures
of laymen including judges but by the uneqstionable knowledge of expert witnesses
Whether a doctor has exercise the requisite degree of skill and care in the treatment of
a patient is a matter of expert opinion
Courts defer to the expert opinion of qualified physicials since the latter possess
unusual technical skills which laymen are incapable of inteliggently evaluating
Thus, expert testimony shoud have been offered to prove that the circumstances cited by
the lower courts are constitutive of conduct falling below the standard of care employed
by other physicians in good standing when performing the same operation (i.e.
hysterectomy).
Even assuming arguendo that the attendant circumstances constitued reckless
imprudence in the exercise of Dr Cruz's duties as a surgeon, no proof exists that any
of the circumstances caused Lydia's death.
Elements of reckless imprudence are
1) Offender does or fails to do an act
2) Doing or failure to do the act is voluntary
3) It be without malice
4) Material damage results from the reckless imprudence
5) There is inexcusable lack of precaution on the part of the offender, taking into
consideration his employment/occupation, degree of intelligence, physical condition, and
other circumstances regarding persons, time, and place
In this case, the fourth (4
th
) element is absent that the injury to the person or property
(i.e. Lydia's death) was a consequence of the reckless imprudence
There must be a proof of breach of duty on the part of Dr Cruz as well as a causal
connection of such breach and the resulting death of the patient (i.e. Lydia)
The possible causes of a hemorrhage are 1) failure of surgeon to tie or suture a cut blood
vessel, 2) allowing a cut blood vessel to get out of control ,3) the subequent loosening of
the tie or suture applied to a cut blood vessel, and 4) a clotting defect known as DIC
51

Lydia's autopsy did not reveal any untied or unsutured cut blood vessel nor was there
any indicaiton that the tie or suture of a cut blood vessel had become loose thereby
causing the hemorrhage
The finding of all three doctors do not preclude the probability that DIC caused the
hemorrhage and consequently Lydia's death
It was testified to that hemorrhage due to DIC cannot be prevented, it will happen to
anyone, anytime
Nevertheless, Dr Cruz is civilly liable for the death of Lydia Umali, for while a
conviction of a crime requires proof beyond reasonable doubt, only a preponderance
of evidence is required to establish civil liability.
Thus, Dr Cruz is acquitted of the crime of reckless impreudence resulting in homicide
but is ordered to pay the heirs of the deceased Lydia Umali Php 50,000 as civil liability,
Php 100,000 as moral damages, and Php 50,000 as exemplary damages
A copy of the decision will be furnished to the Professional Regulation Commission for
appropriate action


52

#34 How do you determine if a physician has committed an inexcusable lack of precaution
in the treatment of his patient?

Whether or not a physician had committed an inexcusable lack of precaution in the
treatment of their patient/s is to be determined according to the standard of care observed by
other members of the profession of the medical practice.

This standard of care is relative to the acts and practices of other physicians in good
standing given the similar circumstances of an event, bearing in mind the advanced state of
the profession at the time of treatment or the present state of medical science. (Cruz vs Court
of Appeals, G.R. 122445)

The Court stated that a physician in effect represents that, having the same needed training and skill
possessed by other physicians practicing in the same field he will employ such same training, care
and skill in the treatment of his patients.

The physician therefore has a duty to use at least the same level of care that any other reasonably
competent doctor would use to treat a condition under the same circumstances. (Leonila
Garcia-Rueda v. Wilfred L. Pascasio, G.R. 118141)


53

#35 What are the elements of criminal medical negligence?

1. Duty
They have a duty to use at least the same level of care that any other reasonably
competent doctor would use under the same circumstances
2. Breach
The breach of these professional duties of skill and care, or their improper
performance, by a physician surgeon whereby the patient is injured in body or in
health, constitutes actionable malpractice
3. Injury
In the event that any injury results to the patient from want of due care or skill during
the operation, the surgeons may be held answerable in damages for negligence
4. Proximate causation
2 queries:
.i. whether the doctors actions in fact caused the harm to the patient
.ii. whether these were the proximate cause of the patients injury
It is virtually impossible to ascertain the merits of a medical negligence case without
extensive investigation, research, and consultations with medical experts (Garcia-
Rueda v. Pascasio, G.R. 118141)



Burden of establishing negligence: there must be proof of breach of duty on the part of the surgeon
as well as a casual connection of such breach and the resulting death of his patient

In this jurisdiction, such claims are most often brought as a civil action for damages under Article
2176 of the Civil Code, and in some instances, as a criminal case under Article 365 of the Revised
Penal Code with which the civil action for damages is impliedly instituted (Cruz v. CA, G.R.
122445)


54

#36 Digest Carillo vs People, G.R. No. 869890, January 21, 1994.

FACTS
At about 10:30 AM on May 31, 1981, Catherine Acosta complained of pains in the lower part
of her abdomen so she was brought to Dr. Elva Pea
Dra. Pea called for Dr. Emilio Madrid, who examined Catherine
According to Dr. Madrid, her condition might be appendicitis
Dr. Pea told Catherine's parents to bring the child to the hospital in Baclaran so that the child
will be observed
At the Baclaran General Hospital, a nurse took a blood sample from Catherine
The findings became known at around 3:00 PM and Catherine was scheduled for operation at
5:00 PM; however, the operation took place at 5:45 p.m. because Dr. Madrid arrived only at
that time
When brought inside the operating room, Catherine was feeling very well and they did not
subject the child to ECG (electrocardiogram) and X-ray
Dr. Emilio Madrid, a surgeon, was assisted by Dr. Leandro Carillo, anesthesiologist, in
operating on Catherine.
According to the childs mother, she "noticed something very unfamiliar."
The three nurses who assisted in the operation were going in and out of the operating
room, they were not carrying anything, but in going out of the operating room, they were
already holding something.
It has also been established that Catherine was not weighed before the administration of
anesthesia on her.
The operation was finished at 7:00 PM and when Catherine was brought out from the
operating room, she was observed to be shivering; her heart beat was not normal; she was
asleep and did not wake up; she was pale; and had difficulty in breathing
Dr. Emilio Madrid suggested that she be placed under an oxygen tank
Catherine was transferred to her room. Afterwards, her mother noticed that her heartbeat was
not normal. According to the Dr. Madrid, it was due to the lesion of the child. Few minutes
after they revived the heartbeat of the child, Dr. Madrid and Dr. Carillo left
15-30 minutes after, Catherine developed convulsion and stiffening of the body
The nurse called on Dr. dela Pea, who called Dr. Madrid and the cardiologist. The
cardiologist informed the mother that that she suffered from severe infection which went up
to her head.
When Catherine remained unconscious until noontime the next day, a neurologist examined
her and she was diagnosed as comatose. Three (3) days later, Catherine died without regaining
consciousness.
A case was filed against Dr. Madrid and Dr. Carillo
The CA held that Catherine suffered from an overdose of, or an adverse reaction to,
anaesthesia, particularly the arbitrary administration of Nubain (a painkiller) without benefit
of prior weighing of Catherine's body mass, which determines the dosage which can be safely
given
The CA held that this triggered a heart attack as post-operative complication, depriving
Catherin's brain of oxygen, leading to the brain's hemorrhage
55

This cardiac arrest was held to be the immediate cause of death
The CA found criminal negligence on the part of both doctors, holding that both failed to
observe the required standard of diligence in the examination of Catherine prior to the actual
administration of the anaesthesia and that it was an act of negligence when they failed to
monitor her heartbeat after the operation and when they left the hospital immediately after
reviving Catherine's heartbeat, depriving Catherine of immediate and expert medical assistance
when she suffered a cardiac arrest approximately 15-30 minutes later

ISSUE
W/N the CA drastically misapprehended the relevant, operative facts in the case to compel
the Supreme Court to examine and resolve questions of fact
W/N the findings of the CA adequately support the conclusion that Dr Carillo was, along
with Dr Madrid, guilty of simple negligence which resulted in homicide

HELD/RATIO
1) No. Dr Carillo has not shown misapprehension of facts on the part of the CA which
would require the Supreme Court to overturn the judgment reached by the CA.
2) Yes. Both doctors failed to appreciate the serious condition of their patient whose
adverse physical signs were quite manifest right after surgery.
After reviving her heartbeat, both doctors failed to monitor their patient closely or extend
further medical care to her; such conduct was especially necessary in view of the inadequate,
post-operative facilities of the hospital
The inadequate nature of those facilities did impose higher standard of professional
diligence upon the two doctors personally than would have been called for in a modern
fully-equipped hospital
There is a strong implication that the patient's post-operative condition must have been
considered by the two doctors as in some way related to the anesthetic treatment she had
received from the petitioner either during or after the surgical procedure.
Once summoned, petitioner anesthesiologist could not be readily found
When he finally appeared at 10:30 PM, he was evidently in a bad temper, commenting
critically on the dextrose bottles before ordering their removal
This circumstance indicated he was not disposed to attend to this unexpected call, in
violation of the canons of his profession that as a physician, he should serve the interest
of his patient "with the greatest of solicitude, giving them always his best talent and skill."
The canons of medical ethics require a physician to "attend to his patients faithfully and
conscientiously."
He should secure for them all possible benefits that may depend upon his professional
skill and care
As the sole tribunal to adjudge the physician's failure to fulfill his obligation to his patient
is, in most cases, his own conscience, violation of this rule on his part is "discreditable and
inexcusable.
Dr Carillo relied heavily in this proceeding on the testimony on cross-examination of the
expert witnesses for the prosecution to show that blood poisoning resulting from a ruptured
appendix could also be responsible for the Catherine's death
56

Also, no suggestion has been made that the rupture of the patient's occurred prior to surgery.
After her blood sample was examined, the patient was merely diagnosed as a case of
appendicitis, without further elaboration. No intensive preoperative preparations, like the
immediate administration of antibiotics, were thereafter undertaken on the patient. This is a
standard procedure for patients who are, after being diagnosed, suspected of suffering from a
perforated appendix and consequent peritonitis.
The gravamen of the offense of simple negligence is the failure to exercise the diligence
necessitated or called for the situation which was not immediately
life-destructive but which culminated, in the present case, in the death of a human being three
(3) days later. Such failure to exercise the necessary degree of care and diligence is a negative
ingredient of the offense charged. The rule in such cases is that while the prosecution must
prove the negative ingredient of the offense, it needs only to present the best evidence
procurable under the circumstances, in order to shift the burden of disproving or countering
the proof of the negative ingredient to the accused, provided that such initial evidence
establishes at least on a prima facie basis the guilt of the accused. This rule is particularly
applicable where the negative ingredient of the offense is of such a nature or character as,
under the circumstances, to be specially within the knowledge or control of the accused.
In the instant case, the Court is bound to observe that the events which occurred during the
surgical procedure (including whether or not Nubain had in fact been administered as an
anesthesia immediately before or during the surgery) were peculiarly within the knowledge and
control of Dr. Carillo and Dr. Madrid.
Hence, the above mentioned incident presupposes that Dr. Madrid failed to exercise the
appropriate and necessary degree off care and diligence to prevent the sudden decline in the
condition of Catherine Acosta.

37. List down the following provisions of the Civil Code: Arts. 1172-1174, 2176-2180

Art. 1172. Responsibility arising from negligence in the performance of every kind of obligation is also
demandable, but such liability may be regulated by the courts, according to the circumstances. (1103)

Art. 1173. The fault or negligence of the obligor consists in the omission of that diligence which is
required by the nature of the obligation and corresponds with the circumstances of the persons, of
the time and of the place. When negligence shows bad faith, the provisions of Articles 1171 and 2201,
paragraph 2, shall apply.
If the law or contract does not state the diligence which is to be observed in the performance,
that which is expected of a good father of a family shall be required. (1104a)

Art. 1174. Except in cases expressly specified by the law, or when it is otherwise declared by
stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be
responsible for those events which could not be foreseen, or which, though foreseen, were inevitable.
(1105a)

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
(1902a)

57

Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and
distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot
recover damages twice for the same act or omission of the defendant. (n)

Art. 2178. The provisions of Articles 1172 to 1174 are also applicable to a quasi-delict. (n)

Art. 2179. 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
courts shall mitigate the damages to be awarded. (n)

Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are responsible for the damages
caused by the minor children who live in their company.
Guardians are liable for damages caused by the minors or incapacitated persons who are under
their authority and live in their company.
The owners and 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 occasion of their functions.
Employers shall be liable for the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the former are not engaged in any business
or industry.
The State is responsible in like manner when it acts through a special agent; but not when the
damage has been caused by the official to whom the task done properly pertains, in which case what
is provided in Article 2176 shall be applicable.
Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused
by their pupils and students or apprentices, so long as they remain in their custody.
The responsibility treated of in this article shall cease when the persons herein mentioned
prove that they observed all the diligence of a good father of a family to prevent damage. (1903a)
58

38. What are the elements of quasi-delict?
The elements of quasi-delict are:
(1) There is fault or negligence on the part of the defendant resulting in a wrongful act or
omission, whether voluntary or not, and whether criminal or not;
(2) There is damage and injury suffered by another person;
(3) There is a direct causal relation between the fault or negligence and the resulting damage and
injury.

That is, the fault or negligence is the proximate cause of the damage or injury.
87



87
Taylor vs. Meralco 16 Phil 8; Elcano vs. Hill77 SCRA 98
59

39. What is Negligence?

Concept of negligence
Negligence consists in the omission of that diligence which is required by the nature of the
particular obligation and corresponds with the circumstances of the persons, of the time and of the
place.
88
It is not an absolute term but a relative one, its application depends upon the situation of the
parties and the degree of vigilance and care demanded by the prevailing circumstances of time and
place.
Negligence is the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of
something which a prudent man and reasonable man would not do.
89


Test of Negligence
The test of negligence can be determined by this standard: If the defendant, in committing or
causing the negligent act, had used reasonable care and vigilance which a man of ordinary prudence
would have employed under the same situation, he is not guilty of negligence. Otherwise, he is guilty.
90


88
Art. 1173, Civil Code of the Philippines
89
Sicam vs. Jorge, 529 SCRA 443
90
Pineda, E. Obligtions and Contracts (2009 ed., p. 24), Quezon City, Philippines.
60

40. What is Proximate Cause?
Proximate cause is that cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury which the result would not have occurred.
91

A person committing a felony is criminally liable for all the natural and logical consequences
resulting therefrom although the wrongful act done be different from that which he intended.
Natural refers to an occurrence in the ordinary course of human life or events, while logical means
that there is a rational connection between the act of the accused and the resulting injury or damage.
92

The proximate legal cause is that acting first and producing the injury, either immediately, or
setting other events in motion, all constituting a natural and continuous chain of events, each having
a close causal connection with its immediate predecessor. There must be a relation of cause and
effect, the cause being the felonious act of the offender, the effect being the resultant injuries and/or
death of the victim.
93



91
Bataclan vs. Medina, 102 Phil. 181
92
Reyes, L., Revised Penal Code (2012).
93
Id.
61

41. What are the elements of medical negligence?
To obtain a judgment against a physician for negligence, the patient must present the following
evidence: (1) that the physician owed a duty to the patient, (2) that a physician was derelict and
breached that duty by failing to act as the ordinary, competent physician in the same community would
have acted under the same or similar circumstances, (3) that such failure or breach was the direct cause
of the patients injuries and (4) that damages to the patient resulted therefrom.
(1) Duty. Duty exists when the physician-patient relationship has been established. That is, the
patient has sought the assistance of the physician and the physician has knowingly undertaken
to provide the needed medical service. Physicians have a duty to use at least the same level of
care that any other reasonably competent medical practitioner would use to treat a condition
under the same circumstances.

(2) Derelict (neglectful of obligation). Proof of dereliction, or proof of negligence of an
obligation, must be shown in obtaining a judgment for malpractice. The breach of professional
duties of skill and care, or their improper performance constitutes actionable malpractice.

(3) Direct cause. Another element in medical negligence cases is causation which is divided into
2 inquiries: whether the actions in fact caused the harm and whether these were the proximate
cause of injury.

(4) Damages. In the event that any injury results from want of due care or skill, the surgeons
maybe held answerable in damages for negligence may be claimed.
The burden of proving each of the four elements of negligence is on the plaintiff. Failure on
the part of the plaintiff to prove any one of these elements may result in the dismissal of the case.
Negligence cannot create a right of action unless it is the proximate causethat which, in the natural
and continuous sequence, unbroken by an efficient intervening cause, produces injury and without
which the result would not have occurredof the injury.

62

42. When do you say there is a breach of duty on the part of the physician?
A breached of duty is established where a physicians practice has failed to meet an appropriate
standard. Essentially, it requires two-pronged evidence: evidence as to the recognized standards of
practice in the particular kind of case and a showing that a physician in question negligently departed
from this standard in his treatment.

Standards of practice are the boundaries by which the
knowledge and skill levels of a physician are determined

The standard of reasonable man who is said to be an ordinary person placed in the same
circumstances is usually applied for most tort cases. This rule is based on the assumption that a
physician is expected to use a reasonable level of skill, knowledge and care that is possessed by other
physicians of similar education and background. There have been many cases that have tried to identify
specific standards, but in reality, the best way to identify them is to look at the resources most often
used to prove whether the standards have been adhered or not. In one US jurisprudence, there was a
patient who sustained fractures during ECT treatment and who alleged that care under anesthesia had
been negligent in part because he had not been given muscle relaxation for the procedure, and had
not been restrained or warned of the risks of fracture. It was concluded however that negligence
could not be established, as evidence was provided that at the time it was not universal practice to
administer muscle relaxation, as contrasting opinions existed as to the benefits of muscle relaxation
balanced against the increased risks of the relaxant.

Sources of proof of standard of care
When the standard of care must be proved in a court of law, certain resources are frequently
used. The Bolam standard, by which the alleged negligent practice is compared with that of a
doctors peers, is untilized. An expert witnessthe written or verbal evidence is given by qualified
expert in an area should be a member of the profession in question who is qualified to identify what
a reasonable member of the profession would do under similar circumstances. Another resource is
documentary evidence, i.e., medical textbooks, medical journal articles, professional treatises, and
standards published by national organizations such as Philippine Medical Association, as well as
agency policies and regulations, maybe used.

63

43. Discuss how a patients own negligence may be a defense in a medical malpractice case.
(Cayao- Lasam vs. Ramolete, 574 SCRA 439 (2008) as reference)
In the case of Cayao- Lasam vs. Ramolete, the Court defined medical negligence as a particular
form of negligence which consists in the failure of a physician or surgeon to apply his practice of
medicine that degree of care and skill which is ordinarily employed by the profession generally, under
similar conditions, and in like surrounding circumstances. The Court further provided that the four
elements of medical negligence are: duty, breach, injury, and proximate causation. Medical negligence
is brought as a civil action for damages under Article 2176 of the Civil Code which provides:
Article 2176. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or negligence,
if there is no pre-existing contractual relation between the parties, is called a quasi-
delict and governed by the provisions of this Chapter.
The defenses in the aforementioned action for damages are provided in Article 2179:
Article 2179. 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 courts shall
mitigate the damages to be awarded.
Proximate cause is that which, in natural and continuous sequence, unbroken by an efficient
intervening cause, produces injury, and without which the result would not have occurred. An act or
omission is the proximate cause of an injury or damage if the act or omission played a substantial part
in bringing about or actually causing the injury or damage. The injury or damage should be the direct
result or a reasonably probable consequence of the act or omission. Hence, if it can be proven that
the act or omission of the defendant is the proximate cause of the injury of the complainant, the
defendant will be held liable for damages. Consequently, if the act or omission of the defendant is not
the proximate cause of complainants injury, the defendant will not be held liable.
Contributory negligence is the act or omission amounting to want of ordinary care on the part
of the person injured, which, concurring with the defendants negligence is the proximate cause of the
injury. The presence of contributory negligence on the part of the complainant has the effect of
mitigating the defendants liability. Thus, while the absence of proximate cause absolves the defendant
from any liability, the presence of contributory negligence merely mitigates the his liability.
In the case of Cayao- Lasam vs. Ramolete, Dr. Fe Cayao-Lasam was charged with Gross
Negligence and Malpractice for her alleged negligence and incompetence in conducting Dilatation and
Curettage Procedure (D&C) or raspa. The D&C procedure allegedly led to the rupture of the
complainants uterus which forced her to undergo a hysterectomy. As a result, she lost her chance to
bear a child. In dismissing the complaint, the Court found that the complainants failure to return to
the defendant for her follow-up evaluation broke the chain of continuity that is required in the doctrine
of proximate cause. The complainant could have avoided the rupture of her uterus and the resulting
injury had she followed the defendants advice to return for check-up four (4) days after the D&C
procedure. Instead, complainant returned to the hospital one and a half months after when she was
already in a life-threatening condition. Moreover, through the expert witness, it was proven that the
defendant conducted the D&C procedure in accordance with the standard medical practice. The
complainants clear omission was the proximate cause of her own injury and not merely contributory
negligence on her part, thus, she cannot recover damages from the injury.
In view of the foregoing, the patients own negligence (i.e. failure to heed the doctors advice),
can be raised as a defense in malpractice cases either:
64

(1) To avoid liability as when the complainants own negligence is the immediate and proximate
cause of his injury; or
(2) To mitigate liability as when the complainants negligence is only contributory and the
immediate and proximate cause of the injury is the defendants lack of due care.
The abovementioned defenses are expressly provided in Article 2179 of the Civil Code.
65

44. Digest Flores vs. Pineda, 571 SCRA 83, 91 (2008)
SPOUSES FREDELICTO FLORES (deceased) and FELICISIMA FLORES, petitioners,
vs.
SPOUSES DOMINADOR PINEDA and VIRGINIA SACLOLO, and FLORENCIO, CANDIDA,
MARTA, GODOFREDO, BALTAZAR and LUCENA, all surnamed PINEDA, as heirs of the
deceased TERESITA S. PINEDA, and UNITED DOCTORS MEDICAL CENTER, INC.,
respondents.
Ponente: BRION, J.

FACTS:
On April 17, 1987, Teresita Pineda (Teresita) consulted Dr. Fredelicto Flores (Dr. Fredelicto),
regarding her medical condition where she complained of general body weakness, loss of appetite,
frequent urination and thirst, and on-and-off vaginal bleeding. Dr. Fredelicto conducted an initial
interview and advised Teresita to go to the United Doctors Medical Center (UDMC) in Quezon City
for a general check-up.
Teresita failed to return the following week but when her condition persisted, she went to
further consult Dr. Flores at his UDMC clinic on April 28, 1987, along with her sister, Lucena Pineda
(Lucena). Upon their arrival, Lucena testified that her sister became very weak and had to lie down.
After a routine check-up, Dr. Fredelicto ordered Teresita's admission to the hospital and for Teresitas
blood and urine samples be taken for tests. In the admission slip, he directed the hospital staff to
prepare the patient for an "on call" D&C operation to be performed by his wife, Dr. Felicisima Flores
(Dr. Felicisima).
As preparation for the operation, Dr. Felicisima, called up the laboratory for the results of the
tests. At that time, only the results for the blood sugar (BS), uric acid determination, cholesterol
determination, and complete blood count (CBC) were available. Teresita's BS count was
10.67mmol/l7 and her CBC was 109g/l.8. Dr. Felicisima then proceeded with the D&C operation
with Dr. Fredelicto administering the general anesthesia.
It was shown through an ultrasound the following day that Teresita had an enlarged uterus
and myoma uteri. Dr. Felicisima then advised Teresita that she could recover at home, however the
latter opted for hospital confinement. On April 29, 1987, when the laboratory examination results
came in, Teresita's urinalysis showed a three plus sign (+++) indicating that the sugar in her urine was
very high. She was then placed under the care of Dr. Amado Jorge, an internist.
Teresitas condition worsened and she was put in the ICU. Further tests confirmed that she
was suffering from Diabetes Mellitus Type II. Insulin was administered on the patient, however due
to complications brought by the diabetes, Teresita died on May 6, 1987.
Teresitas family brought the current suit against the doctor-spouses, alleging that Teresitas
death was caused by their negligence and asked for damages. The RTC ruled in favor of Teresitas
family and ordered the doctor-spouses to pay actual, moral, and exemplary damages, plus attorney's
fees and costs. The CA modified the decision by deleting the attorneys fees and costs of suit.

ISSUE:
Whether or not the doctor-spouses are liable through negligence for the death of Teresita, and should
thus be made to pay damages?

HELD:
Yes, the doctor-spouses are liable for negligence resulting to the death of Teresita.
Teresitas family argues that the doctor-spouses decision to proceed with the D&C operation,
despite Teresita's condition and the laboratory test results, amounted to negligence. Doctor-spouses
66

however argue that a D&C operation is the proper and accepted procedure to address vaginal bleeding,
which was the medical problem presented to them.

Elements of a Medical Negligence Case
A medical negligence case is a type of claim to redress a wrong committed by a medical
professional, that has caused bodily harm to or the death of a patient. It involves four elements which
are: duty, breach, injury, and proximate causation.
Duty refers to the standard of behavior which imposes restrictions on one's conduct. The
standard in turn refers to the amount of competence associated with the proper discharge of the
profession. A physician is expected to use at least the same level of care that any other reasonably
competent doctor would use under the same circumstances. Breach of duty occurs when the physician
fails to comply with these professional standards. If injury results to the patient as a result of this
breach, the physician is answerable for negligence.
Doctor-spouses content that at the time of the operation, there was nothing to indicate that
Teresita was afflicted with diabetes: a blood sugar level of 10.67mmol/l did not necessarily mean that
she was a diabetic considering that this was random blood sugar; there were other factors that might
have caused Teresita's blood sugar to rise. However the Supreme Court stated that prior to the D&C
operation, Teresita was already suspected to have diabetes, particularly when Dr. Fredelicto had
initially examined Teresita on April 17, 1987 and right before the operation when test results showed
that Teresita had an increased blood sugar level. Also, it was made known to the doctor-spouses that
Teresita was the experiencing general body weakness, loss of appetite, frequent urination, and thirst -
all of which are classic symptoms of diabetes, which should have alerted them to the possibility that
Teresita was suffering from the said disease.
Expert testimony for the plaintiffs (Teresitas family) showed that tests should have been
ordered immediately on admission to the hospital in view of the symptoms presented, and that failure
to recognize the existence of diabetes constitutes negligence.

Injury and Causation
The most critical factor in a medical negligence case is proof of the causal connection between
the negligence which the evidence established and the plaintiff's injuries.
Where Dr. Mendoza, an expert witness of the plaintiffs, explained thus: Stress, whether
physical or emotional, is a factor that can aggravate diabetes; a D&C operation is a form of physical
stress...surgical stress can aggravate the patient's hyperglycemia: when stress occurs, the diabetic's
body, especially the autonomic system, reacts by secreting hormones which are counter-regulatory;
she can have prolonged hyperglycemia which, if unchecked, could lead to death. Medical literature
further explains that if the blood sugar has become very high, the patient becomes comatose (diabetic
coma). When this happens over several days, the body uses its own fat to produce energy, and the
result is high levels of waste products (called ketones) in the blood and urine (called diabetic
ketoacidiosis, a medical emergency with a significant mortality).
The Supreme Court ruled that such scenario was what had occurred in this case and thus
found that the causal connection between D&C operation and Teresita's death due to aggravated
diabetic condition was sufficiently established.
Such findings thus led to the Supreme Court concluding that the doctor-spouses decision to
proceed with the D&C operation, despite Teresita's hyperglycemia and failing to adequately
preparing Teresita for the procedure, was contrary to the standards observed by the medical
profession. Failure to observe this standard amounted to a breach of duty which resulted in the
patient's death. Due to this negligent conduct, liability must attach to the doctor-spouses.

67







45. What is Res Ipsa Loquitur?
Res ipsa loquitur is a legal maxim and a Latin phrase which means "the thing or the transaction
speaks for itself."
94
In simple terms, it is a procedural doctrine applied in cases to justify an inference
based on common knowledge and ordinary experience of the circumstances surrounding the act or
harm caused.

In the case of Ramos v. CA,
95
this doctrine served as a basis in holding the surgeon and
anesthesiologist liable for damages due to their negligence, which resulted in the comatose and
subsequent death of the patient. The main act of negligence referred to the wrong intubation of the
patient during a surgery for the removal of gallstones.

It was explained in the case that in invoking res ipsa loquitur, the following elements have to be
established:
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.
96

These elements were successfully proved in the case cited. The bluish discoloration of the skin and
the enlargement of the patients stomach, among others, are not ordinary circumstances when
anesthesia or an endotracheal tube is being administered. The Supreme Court also held that the
surgeon and anesthesiologist were in control of the instrumentalities used in the operation and that
the patient could not have possibly contributed to the situation as she was under surgery.

It is also important to note that res ipsa loquitur is not a rule of substantive law but it gives
evidentiary value and places the burden of proof on the defendant to disprove that s/he is not guilty
of such negligence. Generally, what the patient must do is to prove a nexus between the particular
act or omission complained of and the injury sustained while under the custody and management of
the defendant without need to produce expert medical testimony to establish the standard of care.
97


46. What is the Captain of Ship Doctrine?

94
Ramos v. CA, 321 SCRA 585, 588-89 (1999).
95
Ramos v. CA, 380 SCRA 467 (2002).
96
Ramos, supra note 1.
97
Id.
68

The Captain of Ship Doctrine provides that the operating surgeon is held to be completely in
charge and can be held liable for any negligent act done in the surgery room given that the duty of the
personnel present in the operating room is to obey the attending surgeons orders. This doctrine was
first introduced into Philippine jurisprudence in the case of Ramos et al. v. CA.
98


This doctrine was also applied in the case of Mendoza v. Casumpang,
99
where the surgeon, Dr.
Mendoza, was found liable by the Court to pay for damages to the family of Josephine Casumpang
who died due to complications brought about by a gauze left in her cervix after a hysterectomy
(removal of uterus) and myomectomy (removal of uterine fibroids) performed by Dr. Mendoza.

The court held that as the Captain of the Ship, the surgeon is the person primarily
responsible for ascertaining if all the instruments and materials used have been accounted for after the
surgery. The court further elaborated that leaving any foreign substance after an operation was prima
facie evidence of negligence and was a clear breach of her duty as a physician.


47. What is the Doctrine of Informed Consent?
It is a general principle of law which states:
A physician has a duty to disclose what a reasonably prudent physician in the medical community in
the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury might
be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own
welfare, and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none
at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the
probable benefits.
100


Jurisprudence has established the four elements that a plaintiff must prove in an action to hold a
physician liable for violating the doctrine of informed consent. These are:
1. The physician had a duty to disclose material risks
2. He failed to disclose or inadequately disclosed those risks
3. As a direct and proximate result of the failure to disclose, the patient consented to treatment
she otherwise would not have consented to
4. The plaintiff was injured by the proposed treatment.
The gravamen in an informed consent case requires the plaintiff to point to significant undisclosed
information relating to the treatment which would have altered her decision to undergo it.
101

(Emphasis supplied)


98
Rester John L. Nonato, The Abandonment of the Captain of the Ship Doctrine in Light of Recent
Developments in Philippine Surgery in the Context of the Operating Room, 58 ATENEO L.J. 504 (2013)
citing Ramos, supra note 1.
99
Mendoza v. Casumpang, 668 SCRA 436, 439 (2012).
100
Li v. Soliman, 651 SCRA 32 (2011).
101
Id.
69

The doctrine is premised on the trust relationship formed in a physician-patient relationship.
A physician has the duty to warn of the dangers lurking in the proposed treatment and to impart
information which the patient has every right to expect.
102
The physician is not expected to give a
technical description of such risks. The doctrine only requires a reasonable explanation from the
physician in non-technical terms as to what is at stake, the alternatives available, the goals to be
achieved from the treatment, and the risks that may ensure if the treatment is pursued or not.
103


The scope of the information that must be disclosed by the physician is measured by the
patients need, which is whatever information material to the decision. The test is whether a
potential peril must be divulged in its materiality to the patients decision.
104


The doctrine was applied in the case of Li v. Soliman.
105
Here, a suit for damages was pursued
against a physician for allegedly failing to inform the parents of a child who had osteosarcoma (cancer of
the bone) of all the side effects of chemotherapy. The child eventually died after a few days of the
treatment. The parents claimed that they would not have given their consent to chemotherapy had the
physician not falsely assured them of its side effects. The Supreme Court held that there was no
violation of the doctrine in this case. When the physician informed the parents of the side effects such
as lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart
damage and skin darkening, the physician could assume that the parents understood that the death of
their child was still a risk that could not be ruled out given the general side effects of chemotherapy
disclosed by the physician.


48. Are waivers signed by patients valid? Explain.
Waivers signed by patients which relieve hospitals and other establishments from any and all
claims," which includes claims due to bad faith or gross negligence, would be contrary to public policy
and thus void
.106


In the case of Nogales v. Capital Medical Center, Nogales wife died because of complications that
occurred after giving birth. Nogales sued the hospital because of the latters negligence in the selection
and supervision of its physicians and hospital staff. The hospital interposed the defense that Nogales
had signed two forms (a Consent on Admission and Agreement form and a Consent to Operation
form) both of which contained the provision that (Nogales) would not hold liable or responsible and
hereby waive and forever discharge and hold free...the Capitol Medical Center...from any and all claims
of whatever kind of nature, arising from directly or indirectly, or by reason of said cure, treatment, etc.
(or by reason of said operation for the Consent to Operation form).

102
Id.
103
Id.
104
Id.
105
Id.
106
Nogales v. Capitol Medical Center, 511 SCRA 204, 228-29 (2006).
70

The Supreme Court held that the documents do not expressly release the hospital from
liability. Such forms, being in the nature of contracts of adhesion, are construed strictly against
hospitals, and that even simple negligence is not subject to blanket release in favor of hospitals but
may only mitigate their liability depending on the circumstances. The Court further stated that a person
asking for urgent medical attention is at the mercy of the hospital and would not have the same
bargaining power as that of the hospital.
107

49. What is the difference between Ramos v. CA, 321 SCRA 585, 588-89 (1999) and Ramos v.
CA, 380 SCRA 467 (2002)? Briefly digest the cases and explain the basis of the decision in the
Motion for Reconsideration in the 2002 case.
The two cases, Ramos v. CA (1999)
108
and Ramos v. CA (2002)
109
, involve the same set of facts.
It involves a certain Erlinda Ramos (Erlinda), a woman who underwent surgery to remove a stone
in her gallbladder. On the day of the operation, Dr. Hosaka, the attending surgeon, arrived three hours
late due to another surgery scheduled in a different hospital. Dr. Gutierrez, on the other hand, was
the anesthesiologist who was recommended by Dr. Hosaka to the patient. It was only on the day of
the operation that Dr. Gutierrez met Erlinda.
During the surgery, the sister-in-law of the patient who was the Dean of a College of Nursing
witnessed the operation and testified to the misapplication of the anesthesia by Dr. Gutierrez
specifically of the faulty intubation which caused several complications in the surgery.
As a result, Erlinda Ramos became comatose due to brain damage from the lack of oxygen in
the brain and subsequently died (cited in the 2002 case). Erlindas husband then sued Dr. Hosaka, Dr.
Gutierrez, and De Los Santos Medical Center, the hospital, for damages.
The Supreme Court, in its 1999 ruling, held them liable for damages based on the application
of res ipsa loquitur. It held that brain damage is an injury which does not ordinarily occur in the process
of a gall bladder operation, giving rise to a presumption of negligence on the part of the doctors and
the hospital. Dr. Hosaka, being the head of the surgical team, has the responsibility to see to it that
those under him perform their task in the proper manner. Dr. Gutierrez is negligent for failing to
perform the pre-operative evaluation before the surgery. She admitted herself that she saw Erlinda for
the first time on the day of the operation itself. And De Los Santos Medical Hospital, as the employer
of Dr. Hosaka and Dr. Gutierrez, is responsible for the negligence of its employees
However, upon defendants motion for reconsideration, the Supreme Court modified its
ruling in 2002. It was also in the 2002 ruling that Erlinda had already died after years of being comatose.
In the 2002 ruling, the Court absolved the hospital, De Los Santos Medical Center, of its liability since
there was no employer-employee relationship established between the hospital and Dr. Hosaka and
Dr. Gutierrez, who are regarded as consultants of the hospital. It was held that the contract of the
hospital with its consultants is separate and distinct from the contract with its patients.
Meanwhile, Dr. Hosaka claimed that the Captain of Ship Doctrine has been abandoned in the
United States and that it does not apply to him since his specialization on surgery and Dr. Gutierrezs
specialization on anesthesiology are distinct fields and such cannot be considered under his control.

107
Id.
108
Ramos, supra note 1.
109
Ramos, supra note 2.
71

He relied on American jurisprudence but the Supreme Court held that based on the circumstances of
the case, it is evident that Dr. Hosaka had control in the operation and thus, affirmed to be liable.
The Supreme Court, however, modified damages to delete the award of temperate damages due
to the supervening event of the death of Erlinda.

50. WHAT ARE THE LEGAL DUTIES OF HOSPITALS?
The legal duties of hospitals are as follows:
LAW LEGAL DUTIES PENALTY/WHO
SHALL BE
PENALIZED
OTHER
COMMENTS
RA 9439
An act prohibiting
the detention of
patients in
hospitals and
medical clinics on
grounds of
nonpayment of
hospital bills or
medical expenses

1. Duty not to detain or to
otherwise cause, directly or
indirectly, the detention of
patients who have fully or
partially recovered or have
been adequately attended
to or who may have died,
for reasons of nonpayment
in part or in full of hospital
bills or medical expenses.

2. Duty to allow patients
who have fully or partially
recovered and who already
wish to leave the hospital
or medical clinic but are
financially incapable to
settle, in part or in full,
their hospitalization
expenses, including
professional fees and
medicines, to leave the
hospital or medical clinic.

3. Duty to respect the right
of the abovementioned
patients to demand the
issuance of the
corresponding medical
certificate and other
pertinent papers required
for the release of the
patient from the hospital or
medical clinic upon the
execution of a promissory
note covering the unpaid
obligation.
1. Any officer or
employee of the
hospital or medical
clinic responsible for
releasing patients, who
violates the provisions
of this Act

Penalty:
- a fine of not less
than Twenty thousand
pesos (P20,000.00),
but not more than
Fifty thousand pesos
(P50,000.00), or
imprisonment of not
less than one month,
but not more than six
months, or both such
fine and
imprisonment, at the
discretion of the
proper court.

The Department of
Health shall
promulgate the
necessary rules and
regulations to carry
out the provisions of
this Act.



72


4. Duty to release the
corresponding death
certificate and other
documents required for
interment and other
purposes to any of his
surviving relatives
requesting for the same, in
the case of a deceased
patient.


RA 8344
An act penalizing
the refusal of
hospitals and
medical clinics to
administer
appropriate initial
medical treatment
and support in
emergency or
serious cases,
amending for the
purpose batas
pambansa bilang
702, otherwise
known as "an act
prohibiting the
demand of
deposits or
advance payments
for the
confinement or
treatment of
patients in
hospitals and
medical clinics in
certain cases"


1. Duty of any proprietor,
president, director,
manager or any other
officer, and/or medical
practitioner or employee of
a hospital or medical clinic
not to request, solicit,
demand or accept any
deposit or any other form
of advance payment as a
prerequisite for
confinement or medical
treatment of a patient in
such hospital or medical
clinic or to refuse to
administer medical
treatment and support as
dictated by good practice
of medicine to prevent
death or permanent
disability
provided:

Provided:
a) that by reason of
inadequacy of the medical
capabilities of the hospital
or medical clinic, the
attending physician may
transfer the patient to a
facility where the
appropriate care can be
given, after the patient or
his next of kin consents to
1. Any official,
medical practitioner or
employee of the
hospital or medical
clinic who violates the
provisions of this Act

Penalty:
- imprisonment of not
less than six (6)
months and one (1)
day but not more than
two (2) years and four
(4) months, or a fine
of not less than
Twenty thousand
pesos (P20,000.00),
but not more than
One hundred
thousand pesos
(P100,000.00) or both,
at the discretion of the
court.

2. The director or
officer of such
hospital or clinic
responsible for the
formulation and
implementation of the
policy, if such
violation was
committed pursuant
to their established
1. DEFINITIONS;
(a) 'Emergency' - a
condition or state of a
patient wherein based
on the objective
findings of a prudent
medical officer on
duty for the day there
is immediate danger
and where delay in
initial support and
treatment may cause
loss of life or cause
permanent disability
to the patient.

"(b) 'Serious case' -
refers to a condition
of a patient
characterized by
gravity or danger
wherein based on the
objective findings of a
prudent medical
officer on duty for the
day when left
unattended to, may
cause loss of life or
cause permanent
disability to the
patient.

"(c) 'Confinement' -
a state of being
73

said transfer and after the
receiving hospital or
medical clinic agrees to the
transfer:

b) that when the patient is
unconscious, incapable of
giving consent and/or
unaccompanied, the
physician can transfer the
patient even without his
consent

c) that such transfer shall
be done only after
necessary emergency
treatment and support have
been administered to
stabilize the patient and
after it has been established
that such transfer entails
less risks than the patient's
continued confinement

d) that no hospital or clinic,
after being informed of the
medical indications for
such transfer, shall refuse
to receive the patient nor
demand from the patient
or his next of kin any
deposit or advance
payment

e) that strict compliance
with the foregoing
procedure on transfer shall
not be construed as a
refusal made punishable by
this Act


2. Duty of the hospital or
medical clinic, when
proper, to cause the
transfer of the patient to an
appropriate hospital
policy or upon
instruction of its
management.

Penalty:
- imprisonment of
four (4) to six (6)
years, or a fine of not
less than One
hundred thousand
pesos (P100,000.00),
but not more than
Five hundred
thousand pesos
(P500,000.00) or both,
at the discretion of the
court.



admitted in a hospital
or medical clinic for
medical observation,
diagnosis, testing, and
treatment consistent
with the capability
and available facilities
of the hospital or
clinic

"(d) 'Hospital' - a
facility devoted
primarily to the
diagnosis, treatment
and care of
individuals suffering
from illness, disease,
injury or deformity, or
in need of obstetrical
or other medical and
nursing care. It shall
also be construed as
any institution,
building or place
where there are
facilities and
personnel for the
continued and
prolonged care of
patients.

"(e) 'Emergency
treatment and
support' - any
medical or surgical
measure within the
capability of the
hospital or medical
clinic that is
administered by
qualified health care
professionals to
prevent the death or
permanent disability
of a patient.

74

consistent with the needs
of the patient, preferably to
a government hospital,
specially in the case of poor
or indigent patients, after
they have administered
medical treatment and
support.
"(f) 'Medical clinic' -
a place in which
patients can avail of
medical consultation
or treatment on an
outpatient basis.

"(g) 'Permanent
disability' - a
condition of physical
disability as defined
under Article 192-C
and Article 193-B and
C of Presidential
Decree No 442; as
amended, otherwise
known as the Labor
Code of the
Philippines.

"(h) 'Stabilize' - the
provision of necessary
care until such time
that the patient may
be discharged or
transferred to another
hospital or clinic with
a reasonable
probability that no
physical deterioration
would result from or
occur during such
discharge or transfer.


2. The Department of
Health shall
promulgate the
necessary rules and
regulations to carry
out the provisions of
this Act.

3. The transferring
and receiving hospital:
(a) shall be as much as
practicable, be within
75

ten (10) kilometer
radius of each other,
and (b) shall at all
times be properly
documented.

4. Hospitals may
require a deposit or
advance payment
when the patient is no
longer under the state
of emergency and
he/she refuses to be
transferred.



RA 4226
AN ACT
REQUIRING
THE
LICENSURE OF
ALL
HOSPITALS IN
THE
PHILIPPINES
AND
AUTHORIZING
THE BUREAU
OF MEDICAL
SERVICES TO
SERVE AS THE
LICENSING
AGENCY
1. Government or private
hospitals must obtain a
construction permit
issued by licensing
agency before
construction.
a. Permit will be issued if
the following are
provided for in the
plan: Sufficient bed
space for the hospital
bed capacity proposed,
laboratory room,
operating room, work
room for sterilization,
anesthesia preparation,
X-ray or radiology
room, pharmacy,
dispensary or out-
patient department,
delivery room,
isolation rooms,
autopsy room or
morgue, sufficient
quarters for residents,
nurses, attendants and
helpers and sufficient
number of toilet
facilities and wards
shall be constructed
Any person,
partnership,
association or
corporation who
establishes, operates
conducts, manages,
maintains a hospital or
hospital clinic within
the meaning of this
act without first
obtaining a license as
provided for in this
Act or violates any
provision

Penalty:
Shall be guilty of
misdemeanor, and
upon conviction shall
be liable for a fine: 1st
offense = not more
than 500. Each
subsequent offense,
not more than 1,000.
And each day that the
hospital shall operate
after the first
conviction is a
subsequent offense.

Licenses are not
transferrable
Licensed agency
Bureau of Medical
Services
It has the
following powers:
Conduct ocular
survey
Prescribe
standard plans for
government
hospitals
Approve plans for
hospital plants
and issue permits
or authority to
construct hospital
Keep a
permanent
register of
approved
hospitals
Grant licenses for
operation and
maintenance of
hospitals or
revoke them
76

that segregation of
sexes if observed.
2. All hospitals must be
registered and get a
license for its operation
from a licensing agency
before it operates or
opens to the public.

Licenses may be
suspended or
revoked for any of
the following grounds:
1. Repeated violation
by the licensee of
any provision of
this act or of any
other existing law
2. Violation of rules
and regulation
prescribed in the
implementation of
this act
3. Repeated failure to
make necessary
corrections or
adjustments
required by the
licensing agency in
the improvement
of facilities and
services.

Make periodic
inspection of all
hospitals to check
compliance with
rules and
regulations
Publish yearly a
list of all
approved
hospitals
Submit yearly
reports to
Secretary of
Health, Speaker
of House of
Representative,
Senate President
and chairmen and
members of
Committees on
health of both
houses, such
reports to include
approved hospital
indicating the
name of the
hospital etc


RA 6615
AN ACT
REQUIRING
GOVERNMENT
AND PRIVATE
HOSPITALS
AND CLINICS
TO EXTEND
MEDICAL
ASSISTANCE
IN
EMERGENCY
CASES


All government and private
hospitals or clinic duly
licensed to operate as such
are hereby required to
render immediate
emergency medical
assistance and to provide
facilities and medicine
within its capabilities to
patients in emergency cases
who are in danger of dying
and/or who may have
suffered serious physical
injuries.


Any hospital director,
administrator, officer-
in-charge or physician
in the hospital,
medical center or
clinic, who shall refuse
or fail without good
cause to render the
appropriate assistance
pursuant to the
requirements of
section one after said
case had been brought
to his attention, or any
nurse, midwife or
medical attendant who
shall refuse to extend
the appropriate

The expenses and
losses of earnings
incurred by a private
hospital of clinic for
medicines, facilities
and services beyond
first aid extended to
emergency cases as
required herein, and
not to exceed fifty
thousand pesos per
year, shall be
deductible expenses
and losses for income
tax purposes which
may be carried over
for a period of five
years, any provision
77

assistance, subject to
existing rules, or
neglect to notify or
call a physician.

Penalty:
By imprisonment of
one month and one
day to one year and
one day, and a fine of
three hundred pesos
to one thousand
pesos, without
prejudice to the
provisions of Republic
Act Numbered
Twenty-three hundred
eighty-two in the case
of physicians.
In the case of
Government
hospitals, the
imposition of the
penalty upon the
person or persons
guilty of the violations
shall be without
prejudice to the
administrative action
that might be proper.
In the case of private
hospitals, aside from
the imposition of
penalty upon the
person or persons
guilty of the
violations, the license
of the hospital to
operate shall,
whenever justified, be
suspended or revoked.


of law or regulation to
the contrary
notwithstanding.


51. WHAT IS EMERGENCY?
78

Emergency is a condition or state of a patient wherein based on the objective findings of a prudent
medical officer on duty for the day there is immediate danger and where delay in initial support and
treatment may cause loss of life or cause permanent disability to the patient.
52. WHAT ARE THE DUTIES OF HOSPITALS UNDER THE HOSPITAL CODE OF
ETHICS?
Objectives of the Hospital:
1. The Primary objective of the hospital are the following:
1.1 To provide the best possible facilities for the care of the sick and injured at all times;
1.2 To constantly upgrade and improve methods for the care, the cure, amelioration and
prevention of disease; and
1.3 To promote the practice of medicine by Physicians within the institution consistent with
the acceptable quality of patient care. These objectives require an efficient organization, a competent
administrator, a qualified medical staff, other well-trained personnel and adequate physical facilities
with all of which services are made available at all times consistent with community needs.
2. The hospital should have the following secondary objectives:
2.1 To encourage research and teaching and to assist in the advancement of scientific
knowledge.
2.2 To set an example of ethical practice, cooperate with other hospitals and take an active
part in the promotion of health;
2.3 To provide kind and considerate care for all patients and must always provide
needed emergency treatment. The hospital has a moral responsibility to make every effort to ensure
full and complete recovery of its patients because of which the hospitals' interest and activities require
an extension beyond its walls.
1.1.1 To cooperate with recognized hospital associations and agencies and to develop cooperative
action with other hospitals within the country.

II. Hospital Ethics
1. Hospital must recognize that the care of the sick is their first responsibility and a sacred trust,
striving, at all times, to provide the best possible care and treatment to all in need of hospitalization.
79

2. Hospitals, recognizing their unique role in safeguarding the nation's health, should seek through
compassionate and scientific care and health education, to extend life, alleviate suffering, and improve
the general health of the communities they serve.
3. Hospitals should remain and promote harmonious relationships within the organization, to insure
the proper environment for effective, efficient and equitable care and treatment of patients.
4. Hospitals should seek to inspire the confidence of the entire community and should appreciate and
respect the social and religious practices and customs of patients.
5. Hospitals, to the extent possible and within their limitations, should conduct educational projects,
stimulate research, and encourage preventive health practices in the community.
6. Hospitals should cooperate with other hospitals, health and welfare agencies, government and non-
government, and other recognized organizations engaged in activities related to the health of the
country.
7. Hospitals, in reporting their work to the public, should give a factual and objective interpretation
of accomplishments and objectives without putting down directly or indirectly by implication, the
work of other hospitals or related organizations.
8. Hospital, cognizant of their social responsibilities, should actively support and encourage every
effective means which will ease the financial burdens of illness.
9. Hospital should be fair, honest and impartial in all their business relationships and utilize legal and
legitimate means in promoting their public relations.
10. Hospitals should be progressive in policies, personnel policies, and effort to maintain up-to-date
equipment, methods and standards of performance.



53. CASE DIGEST AQUINO V. HEIRS OF RAYMUNDA CALAYAG 678 SCRA 609
Facts: When Raymunda Calayag went into labor, her husband Rodrigo brought her to St. Michaels
Clinic. There, its owner, Dr. Unite after an examination told the couple that Raymunda would
have to undergo a caesarian operation but she has to be transferred to Sacred Heart Hospital.
There, Dr. Aquino applied a preliminary anesthesia and an anesthesia on her spine. After the
operation, Raymunda had a stillborn eight-month-old baby. Suddenly, the medical team
noticed that Raymunda is turning blue and her vital signs were gone, but they were able to
restore these.
Dr. Unite said to Rodrigo that Raymundas turning blue is just normal since she had anesthesia
and everything will return to normal after eight hours. However, this never happened. Upon
referral to an internist, it was discovered that Raymunda suffered a cardiac arrest during the
operation. Thereafter, the internist ordered Raymundas move to a better hospital.
80

Raymunda was then admitted to Medical Center Manila where the attending neurologist
declared Raymunda to be in vegetative state because there was lack of oxygen coming to
the brain caused by the cardiac arrest. She never recovered. She died eventually.
Now, the heirs of Raymunda Calayag, namely Rodrigo and their seven children sued Dr. Unite,
Dr. Aquino and Dr. Reyes, owner of Sacred Heart Hospital for medical malpractice. They
allege that Dr. Aquino and Dr. Unite were grossly negligent while Dr. Reyes was remiss in his
duty of supervision.
Issue: Whether or not the three doctors are negligent in their respective duties resulting in the death
of Raymunda Calayag.
Held: In order to obtain a conviction for medical malpractice, the Heirs of Raymunda Calayag should
establish these: (1) duty; (2) breach; (3) injury; and (4) proximate causation. The Heirs have
successfully proven the breach of duty committed by Dr. Aquino and Dr. Unite since the
former have presented the attending neurologist where his expert testimony outlined before
the trial court the cause of Raymunda being a vegetable. Moreover, this witness clearly
pointed the blame to the doctors present in Raymundas operation for failing to monitor the
vital signs during the operation. Furthermore, the testimony of the neurologist outlined what
should usually happen and what happened here being an anesthetic accident since Dr. Aquino
administered the anesthesia at the wrong site. This notwithstanding, Dr. Unite cannot escape
liability. Since she is the surgeon in charge, she should not have allowed Dr. Aquino inside
because he is sick. As a last point, the trial court found out that there was no notation in the
records of Raymundas operation regarding the cardiac arrest. The absence of this notation
spelled the difference because if the surgeons had this notation, they have 6 to 8 minutes from
the time of cardiac arrest to save Raymunda. The absence clearly marked the negligence of Dr.
Unite and Dr. Aquino.
However, the liability of Dr. Reyes was not proven since Dr. Unite and Dr. Aquino were not
under the hospitals payroll and there were no evidence presented that Raymundas fate was
caused by defective hospital facilities. Not even the doctrine of ostensible agency or doctrine
of apparent authority would make Dr. Reyes liable since there was no evidence adduced to
this effect.

54. Digest Professional Services Inc vs Court of Appeals 611 SCRA 282 (2010).
Professional Services, Inc. v. Court of Appeals
Facts:
Professional Services Inc. (PSI), the owner and operator of the Medical City, together with Dr. Miguel
Ampil and Dr. Juan Fuentes, was impleaded by Enrique Agana and Natividad Agana, in a complaint
for damages filed in the RTC of Quezon City for the injuries suffered by Natividad when Dr. Ampil
and Dr. Fuentes neglected to remove from her body two gauzes.
In the original case, the SC held that PSI is directly liable based on the following:
1. The relationship between PSI and Dr. Ampil is that of an employer-employee relationship.
Citing Ramos v. CA, "for purposes of allocating responsibility in medical negligence cases, an
employer-employee relationship exists between hospitals and their consultants. Although the
ruling was reversed in Ramos, such cannot be applied here because the defense raised by PSI
consisted merely of a general denial of responsibility over the actions of Dr. Ampil.
2. Since PSI accredited Dr. Ampil and advertised his qualifications, PSI created the public
impression that he was its agent, hence it is liable under the doctrine of apparent authority.
81

3. PSI, as owner and operation of Medical City General Hospital, PSI was bound to provide
comprehensive medical services to Agana and to exercise reasonable care to protect her from
harm. PSI committed a serious breach of its corporate duty when it failed to conduct an
immediate investigation into the reported missing gauzes.
In this motion for reconsideration, PSI argues that:
1. Because of the reversal of the ruling in Ramos v. CA, stating that there is no employer-
employee relationship between the hospital and the doctor, the same ruling should be applied
in this case as Aganas failed to prove the employer-employee relationship between PSI and
Dr. Ampil.
2. Aganas engaged Dr. Ampil as their doctor in the latters personal capacity and did not primarily
and specifically engaged Medical City for its medical services.
3. It cannot be liable under the doctrine of corporate negligence since the proximate cause of the
injury was the negligence of Dr. Ampil.

Issue:
W/N PSI should be liable?
Held/Ratio: Yes
PSI is liable to the Aganas, not under the principle of respondeat superior for lack of evidence of an
employment relationship with Dr. Ampil but under the principle of ostensible agency for the
negligence of Dr. Ampil and under the principle of corporate negligence for its failure to perform its
duties as a hospital.
The hospital may be held liable in either of the following:
1. The principle of respondeat superior when there is an employment relationship
2. The principle of apparent authority even when there is no employment relationship but the
hospital holds out to the patient that the doctor is its agenct.
3. The principle of corporate negligence - regardless of its relationship with the doctor, the
hospital may be held directly liable to the patient for its own negligence or failure to follow
established standard of conduct to which it should conform as a corporation.
Principle of Respondeat Superior
The application of the Control Test to determine the existence of an employer-employee
relationship between hospital and doctor.
Under the "control test", an employment relationship exists between a physician and a hospital
if the hospital controls both the means and the details of the process by which the physician
is to accomplish his task.
Although certain facts show that PSI exercised control over Dr. Ampil, since the work of Dr.
Ampil is being monitored, the decision of the lower courts finding that there is no employer-
employee relationship was not questioned, hence, such finding became conclusive. Also, there
was insufficient evidence to prove that PSI exercised to power of control over the means the
82

details of the specific process by which Dr. Ampil applied his skills. Hence, PSI cannot be
liable under the principle of respondeat superior.
Principle of Apparent Authority
There is, however, ample evidence that PSI held out to the Aganas that Dr. Ampil was its
agent:
1. The hospital's implied manifestation to the patient which led the latter to conclude
that the doctor was the hospital's agent
2. The patients reliance upon the conduct of the hospital and the doctor, consistent with
ordinary care and prudence.
In this case, one of the reasons why the Aganas chose Dr. Ampil was because the latter was a
staff of the Medical City, a prominent and known hospital.
Also, PSI required the Aganas to sign a consent for hospital case prior to Natividads
surgery. By such statement, PSI virtually reinforced the public impression that Dr. Ampil was
a physician of its hospital, rather than one independently practicing in it; that the medications
and treatments he prescribed were necessary and desirable; and that the hospital staff was
prepared to carry them out.
Hence, PSI is vicariously liable for the negligence of Dr. Ampil as its ostensible agent.




Principle of Corporate Negligence
In this case, PSI admitted that although it had no power to control the means or method by
which Dr. Ampil conducted its surgery, it had the power to review or cause the review of what
may have irregularly transpired in the course of the operation strictly for the purpose of
determining whether some form of negligence may have attended any procedure done inside
its premises.
By such admission, PSI define the standards of its corporate conduct, namely:
1. That it had a corporate duty to Natividad even after her operation to ensure her safety
as a patient
2. That its corporate duty was not limited to having its nursing staff note or record the
two missing gauzes
3. That its corporate duty extended to determining Dr. Ampil's role in it, bringing the
matter to his attention, and correcting his negligence.
PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil assumed
personal responsibility already since the latter admitted that he would personally notify
Natividad of the 2 missing gauzes. Such is unacceptable as PSI cannot simply waive its duty
to review what transpired during the operation. While Dr. Ampil may have had the primary
responsibility of notifying Natividad about the missing gauzes, PSI imposed upon itself the
separate and independent responsibility of initiating the inquiry into the missing gauzes.
83

PSI also had the duty to take notice of medical records prepared by its own staff and submitted
to its custody. Thus, the record taken during the operation of Natividad which reported a
gauze count discrepancy should have given PSI sufficient reason to initiate a review. It should
not have waited for Natividad to complain.
As it happened, PSI took no heed of the record of operation and consequently did not initiate
a review of what transpired during Natividads operation. By its inaction, therefore, PSI failed
its own standard of hospital care. It committed corporate negligence.
Note: The corporate negligence ascribed to PSI is different from the medical negligence
attributed to Dr. Ampil. The duties of the hospital are distinct from those of the doctor-
consultant practicing within its premises in relation to the patient; hence, the failure of PSI to
fulfill its duties as a hospital corporation gave rise to a direct liability to the Aganas distinct
from that of Dr. Ampil.

84

55. What is the difference with Professional Services Inc vs Court of Appeals 544 SCRA 170
(2008) and Professional Services Inc vs Court of Appeals 611 SCRA 282 (2010)?

Basically, the 2008 case of Professional Services Inc. vs Court of Appeals
110
involved the resolution
of the first motion for reconsideration filed by the petitioner Professional Services, Inc. (PSI) with the
Supreme Court. They assailed the decision of the Courts First Division
111
which held the company
solidarily liable with Dr. Ampil for the latters medical negligence. On the other hand, the 2010 case
of the same name
112
involves the second motion for reconsideration filed by the same party, this time
urging referral to the Supreme Court en banc.
113

Additional parties
114
intervened during the second motion of reconsideration of the 2010
Decision to question the effects of the 2008 Decision on their business; particularly the finding of the
Court in the first motion for reconsideration that there existed an employer-employee relationship
between the attending physician (Dr. Ampil) and the Medical City (PSIs company).
115

As for the resolution of the Court in both cases, though it arrived at the same conclusion when
it denied both motions for reconsideration of PSI, the 2010 en banc decision reversed the previous
holding in the 2008 case insofar as in the latter case, the Court affirmed
116
that an employer-employee
relationship existed between Dr. Ampil and Medical City and therefore the latter was liable under the
principle of respondeat superior or vicarious liability as expressed in Art. 2180 of the New Civil
Code. The Court en banc specifically addressed this issue in the second motion for reconsideration to
allay the anxiety of the intervenors.
117
In so holding, the Court held
Control as a determinative factor in testing the employer-employee
relationship between doctor and hospital under which the hospital could be held
vicariously liable to a patient in medical negligence cases is a requisite fact to be
established by preponderance of evidence. Here, there was insufficient evidence that PSI
exercised the power of control or wielded such power over the means and the details of the specific process
by which Dr. Ampil applied his skills in the treatment of Natividad. Consequently, PSI cannot be
held vicariously liable for the negligence of Dr. Ampil under the principle of respondeat superior.
118




110
544 SCRA 170 (2008).
111
513 SCRA 478 (2007).
112
Professional Services Inc. vs Court of Appeals, 611 SCRA 282 (2010).
113
Id. at 285.
114
Manila Medical Services, Inc. (MMSI), Asian Hospital, Inc. (AHI), and Private Hospital Association of
the Philippines (PHAP).
115
Professional Services Inc. vs Court of Appeals, 544 SCRA 170, 176 (2008).
116
Id. at 177.
117
Professional Services Inc. vs Court of Appeals, 611 SCRA 282, 293 (2010).
118
Id. at 294; emphasis supplied.
85

56. Is the doctor an employee of the hospital?
No, it was eventually reconsidered by the Supreme Court that Dr. Ampil had no employer-
employee relationship with Medical City.
119

In the original decision
120
sought to be reconsidered, the Court through its First Division
declared that there was, in fact, an employer employee relationship obtaining in the case, thus:
In our shores, the nature of the relationship between the hospital and the physicians
is rendered inconsequential in view of our categorical pronouncement in Ramos v. Court
of Appeals
121
that for purposes of apportioning responsibility in medical negligence
cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians. This Court held:
x x x. In other words, private hospitals, hire, fire and exercise real control over their
attending and visiting consultant staff. While consultants are not, technically
employees, x x x, 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 the payment of wages. In assessing whether such a relationship
in fact exists, the control test is determining. Accordingly, on the basis of the
foregoing, we rule that 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.
122

This was affirmed in the first motion for reconsideration filed by Professional Services, Inc.
wherein the Court addressed the issue of whether the Court erred in considering that there was an
employer-employee relationship in the following manner:
The motion lacks merit.
As earlier mentioned, the First Division, in its assailed Decision, ruled that an
employer-employee relationship in effect exists between the Medical City and Dr.
Ampil. Consequently, both are jointly and severally liable to the Aganas. X x x.
X x x. The Court considered the peculiar relationship between a hospital and its
consultants on the bases of certain factors. One such factor is the control test
wherein the hospital exercises control in the hiring and firing of consultants, like Dr.
Ampil, and in the conduct of their work.
123

However, the Court en banc reversed this point of contention the second motion for
reconsideration wherein it was held that the question of whether or not an employer-employee
relationship existed was not raised as an issue by the parties upon review; thus
X x x. it appears to have escaped the Courts attention that both the RTC and the
CA found no employment relationship between PSI and Dr. Ampil, and that the
Aganas did not question such finding. In its March 17, 1993 decision, the RTC found that

119
Id.
120
Professional Services Inc. vs Court of Appeals, 513 SCRA 478 (2007)
121
Ramos v. Court of Appeals, 321 SCRA 584 (1999).
122
Id. at pp. 499-500; emphasis supplied.
123
Professional Services Inc. vs Court of Appeals, 544 SCRA 170, at pp. 177-178 (2008).
86

defendant doctors were not employees of PSI in its hospital, they being merely
consultants without any employer-employee relationship and in the capacity of
independent contractors. The Aganas never questioned such finding.
PSI, Dr. Ampil and Dr. Fuentes appealed from the RTC decision but only on the
issues of negligence, agency and corporate liability. X x x.
In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had no
employer-employee relationship, such finding became final and conclusive even to this
Court
X x x to allay the anxiety of the intervenors, the Court holds that, in this particular
instance, the concurrent finding of the RTC and the CA that PSI was not the employer
of Dr. Ampil is correct.
124

Therefore, it is clear that in the final resolution of this case, Dr. Ampil was not considered by
the Final Arbiter as an employee of the hospital.



124
Professional Services Inc. vs Court of Appeals, 611 SCRA 282, at pp. 292-293 (2010); emphasis supplied.
87

57. What is the doctrine of corporate negligence?
The Doctrine of Corporate Negligence or Corporate Responsibility has been regarded as the
solution by the Courts to the complex problem of distributing a hospitals liability for the negligence
of its health practitioners, when the respondeat superior or apparent authority is inapplicable.
125

Said doctrine is grounded on realization of the Courts of the apparent fact that, at this present
age, given the developments of modern-day hospitals, the duty of providing quality medical service
is no longer the sole prerogative and responsibility of the physician. This is now a shared
responsibility.
The Doctrine of Corporate Negligence has its roots in the case of Darling v. Charleston
Community Hospital.
126
According to the case, the hospital was found to have been negligent on account
of its failure to: have a sufficient number of trained nurses attending the patient, failing to require a
consultation with or examination by members of the hospital staff, and failing to review the treatment
rendered to the patient.
The case of Darling has been the foundation of other jurisdictions for holding that a hospitals
corporate negligence extends to consciously letting a physician, known to be incompetent, to practice
medicine at the hospital.
As several number of duties are now expected from hospitals given the modernization of
society:
(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; and
(4) The formulation, adoption and enforcement of adequate rules and policies that ensure quality care
for its patients.
127

Under this doctrine, a hospital has the responsibility to see to it that it meets the standards of
responsibilities for the care of patients and must properly supervise the members of its medical staff.
128

Lastly, it can be said that when a patient engages the services of a hospital, he has the right to
reasonably expect that it will cure him. Because of this, the hospital has the corresponding duty to to
make a reasonable effort to monitor and oversee the treatment prescribed and administered by the
physicians practicing in its premises.
129



125
Professional Services Inc vs Court of Appeals, 611 SCRA 282 (2010)
126
33 Ill. 2d 326, 211 N.E. 2d 253.
127
Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581 (1997).
128
Tucson Medical Center, Inc. v. Misevich 115 Ariz. 34, 545 P2d 958 (1976).
129
Bost v. Riley, 262 S.E. 2d 391, cert denied 300 NC 194, 269 S.E. 2d 621 (1980).
88

58. What is the doctrine of agency by estoppel or doctrine of apparent authority? What is its
relation with Art. 1431 of the Civil Code?
As can be culled from the decision of the Court in the Professional Services, Inc. v Court of Appeals
set of cases, the Doctrine of Agency by Estoppel or Doctrine of Apparent authority, as aptly explained
by the Court
X x x has its origin from the law of agency. It imposes liability, not as the result of
the reality of a contractual relationship, but rather because of the actions of a principal or an employer
in somehow misleading the public into believing that the relationship or the authority exists. The
concept is essentially one of estoppel and has been explained in this manner:
The principal is bound by the acts of his agent with the apparent authority which he
knowingly permits the agent to assume, or which he holds the agent out to the public
as possessing. The question in every case is whether the principal has by his voluntary
act placed the agent in such a situation that a person of ordinary prudence, conversant
with business usages and the nature of the particular business, is justified in presuming
that such agent has authority to perform the particular act in question.
130

It can be readily seen that the doctrine is actually one based on the concept of estoppel and
therefore, the relationship of such doctrine with Art. 1431 of the New Civil Code is quite clear, which
provides
Article 1431. Through estoppel, an admission or representation is rendered
conclusive upon the person making it, and cannot be denied or disproved as against
the person relying thereon.
An example of the interplay of the doctrine and the provision in question together with others
of similar import was given in one of the cases when the Court said that [e]ven when no employment
relationship exists but it is shown that the hospital holds out to the patient that the doctor is its agent,
the hospital may still be vicariously liable under Article 2176 in relation to Article 1431 and Article
1869 of the Civil Code or the principle of apparent authority.
131


VICARIOUS LIABILITY vis--vis DIRECT LIABILITY

Vicarious liability is where a person is held liable not only for torts committed by himself, but
also for those committed by third parties with whom he has a certain relationship and for whom he is
responsible.
132
This is the doctrine of imputed negligence according to Anglo-American tort law.
133


As can be inferred from the above-stated definition of vicarious liability, it is a distinct concept
from direct liability in the sense that in the latter, one is made to answer for ones own acts causing
damage to another while vicarious liability presupposes that the person vicariously liable is not the one
who directly committed the act which is the basis of damages by a third person but by virtue of a
relationship between said person and the tortfeasor, the former is held liable. In both instances, liability
is attached to the person which is not subsidiary but primary. To illustrate, when a father causes

130
Professional Services Inc. vs Court of Appeals, 513 SCRA 478, 500 (2007); emphasis supplied.
131
Professional Services Inc. vs Court of Appeals, 611 SCRA 282, 291 (2010).
132
Timoteo B. Aquino, Torts and Damages, Rex Book Store, Manila Philippines, 2013, p. 724.
133
Id.
89

damage to another, he is directly liable. And even if the damage was caused by his minor son who
lives with him, negligence can be imputed to the father and therefore, the latter becomes vicariously
liable. The same is true as between guardians and their wards as well as between a teacher and his
students.

In the context of hospitals and other similar establishments, where an employment
relationship exists between the hospital and the negligent doctor or the doctor at fault, the hospital
may be held vicariously liable under Art. 2176 in relation to Art. 2180 of the Civil Code or the principle
of respondeat superior.
134
Moreover, even when there is no such relationship, but it is alleged and proven
that the hospital holds out to the patient that the doctor is its agent, the hospital may still be vicariously
liable under Art. 2176 in relation to Art. 1431 and Art. 1869 of the Civil Code or the principle of
apparent authority.
135


ART. 2176, CIVIL CODE

Based on Art. 2176, a quasi-delict is act or omission by a person usually called a tortfeasor
which causes damage to another in his person, property or rights, giving rise to an obligation to pay
for the damage done, there being fault or negligence even when no pre-existing contractual relation
exists between the parties.
136


Except in certain cases expressly provided for by law, the basic principle in our jurisdiction on
quasi-delict is that a person cannot be held liable for damage caused by him, unless he is at fault or is
negligent and the damage is produced by his wrongful act or omission.
137


De Leon has enumerated the essential requisites of Quasi-Delict as follows:
(1) There must be an act or omission by the defendant;
(2) There must be fault or negligence on the defendant;
(3) There must be damage or injury caused to the plaintiff;
(4) There must be a direct relation or connection of cause and effect between the act
or omission and the damage;
(5) There is no pre-existing contractual relation between the parties.
138


Example:
In a case, the holder of a first class ticket in a place who was ousted from his
first class accommodation and compelled to take a seat in the tourist class, was
awarded damages because although the relation between the passenger and the carrier
is contractual both in origin and nature, the act that breaks the contract may also be a
tort. The air carrier must answer for the willful and malevolent act of its manager.
139



134
Professional Services Inc., vs. Agana, G.R. No. 126297, (2010).
135
Id.
136
Hector S. De Leon, Comments and Cases on Torts and Damages, Rex Book Store, Manila, Philippines,
2012, p. 183-185.
137
Id.
138
Id.
139
Air France vs. Carrascoso, 18 SCRA 155, (1966).
90

By the foregoing discussions, it can be concluded that a quasi-delict, as defined and established
in Art. 2176 of the Civil Code, gives rise to a direct liability to the person responsible thereof. The
best proof of this is the first element of a quasi-delict which is an act or omission by the defendant
which causes damage to another. As opposed to vicarious liability, the act or omission which is the
basis for damages in this case is that of the liable party himself.

ART. 2180, CIVIL CODE

Art. 2180 is an example of vicarious liability. Under this principle of vicarious or imputed
liability, a person is made liable not only for torts committed by himself, but also for torts committed
by others with whom he has certain relationships and for whom he is responsible, subject to certain
conditions.
140
Negligence is said to be imputed if the tortfeasor is different from the person who is
being held responsible.
141

The direct and primary responsibility imposed by Art. 2180 is an application of this principle.
This is as opposed to the general rule that no person can be held liable for the acts and omissions of
another, and therefore, the enumeration under this article is exclusive.
142
As can be inferred from the
first paragraph of Art. 2180, the liability imposed thereof is solidary. This conclusion is supported by
Art. 2194 which says that the responsibility of two or more persons who are liable for a quasi-delict is
solidary.
143
Also, Art. 2180 does not distinguish whether the injured party or claimant is an employee
or a third person.
144

The following are the persons enumerated in Art. 2180 to have vicarious liability:
(1) Parents (father and in his absence, the mother) as to the damages caused by their
minor children who live in their company;
(2) Guardians as to the damages caused by the minors or incapacitated persons who
are under their authority and live in their company;
(3) The owners and managers of an establishment or enterprise as to the damages
caused by their employees in the service of the branches in which said employees
are employed or on the occasion of their functions;
(4) Employers as to the damages caused by their employees and household helpers
acting within the scope of their assigned tasks, even though the employers are not
engaged in any business or industry.
(5) The state as to its special agents, but not when the damage has been caused by the
official to whom the task done properly pertains.
(6) Teachers or heads of establishments of arts and trades as to the damages caused
by their pupils and students and apprentices, so long as they remain in their
custody.
145



140
De Leon, supra note 3, at 361.
141
Id.
142
Id.
143
Id.
144
Id.
145
An Act to Ordain and Institute the Civil Code of the Philippines [Civil Code], Republic Act No. 386,
art. 2180 (1950).
91

It is clear from the foregoing that the parents, guardians, owner and managers, etc. are
the ones held liable for the acts and omissions done by third persons. Thus, as opposed to
direct liability, the liability attached to said persons is that of vicarious liability.

Doctrine of Vicarious Liability applied in Medical Malpractice

According to one of the leading authorities on the development of tort law, the idea of
vicarious liability was common in primitive law where "owners" were liable for the negligence of
servants, slaves, inanimate objects, and "wives" (Prosser, Law of Torts, page 470).
146

Losses caused by negligence of employees were carried by the employer as a required cost of
doing business. The employer profits by the action of the employee and should bear the damage. The
employer is bet- ter able to absorb the cost and because negligence is a foreseeable aspect of business,
vicarious liability allows the cost of negligence to be distributed among users through setting prices or
obtaining liability insurance. In addition, by holding the employer responsible, the employer may be
more careful in selection of employees and will take more precau- tions to see that activities are
conducted safely.
147


Borrowed Servant Doctrine

Employees of the hospital are sometimes temporarily under the supervision and control of
another. The borrowed servant doctrine is a special application of the doctrine of respondeat superior
and applies when a hospital employee is under the direct control of an independent doctor or agency.
The person, who is actually controlling the employees actions, is responsible for them. In tort law,
respondeat superior was used to hold the master liable for the acts of his servant.
148


Sometimes an employer will lend his employee to another person without terminating
the original employment contract. When the borrowing person has the right to control the
worker, and the employee has consented to the lending arrangement, a borrowed servant
situation comes into existence. The question then arises whether the general employer,
special employer, or both will be liable for workmen's compensation payments. Generally, the

146
Arrow Electronics v. Adecco Employment Services, Inc ., 195 S.W.3d 646 (Tenn. Ct. App. 2005) as cited
in Loaned Servant Doctrine. Day on Torts: Leading Cases in Tennessee Tort Law Chapter 77: Vicarious
Liability. Available at: http://www.johndaylegal.com/lawyer-attorney-1804145.html, (last accessed
August 25, 2014).
147
CAPTAIN OF THE SHIP. Gene A. Blumenreich, JD, AANA General Counsel Powers & Hall
Boston VoL 61 No. 1 (February1993)
148
PROSSER, TORTS 350, 62 (2d ed. 1952) as cited by Blumenreich at 16:"The idea of vicarious liability
was common enough in primitive law. Not only the torts of servants and slaves, or even wives, but those
of inanimate objects, were charged against their owner. The movement of the early English law was away
from such strict responsibility, until by the sixteenth century it was considered that the master should not
be liable for his servant's torts unless he had commanded the particular act. But soon after 1700 this rule
was found to be far too narrow to fit the expanding complications of commerce and industry, and the courts
began to revert to something like the earlier rule, under the fiction of a command to the servant 'implied'
from the employment." The master was held liable because: "he has a fictitious 'control' over the behavior
of the servant [This is] in accord with the general common law notion that one who is in a position to
exercise some general control over the situation should bear the loss."
92

courts have held only the special employer liable, employing the control test of the borrowed
servant cases to determine this liability.
149


In Saint Paul-Mercury Indemnity Co. v. St. Joseph's Hospital, the court held that the hospital
could not be jointly liable because the servant's negligence occurred at a time when she was working
under the exclusive direction and control of the surgeon. The rule is plain that when a general
employer assigns his servant to duty for another and surrenders to the other direction and
control in relation to the work to be done, the servant be- comes the servant of the other insofar
as his services relate to the work so controlled and directed. His general employer is no longer
liable for the servant's torts committed in the directed and controlled work. In the operating
room the surgeon must be the master. He can't tolerate any other voice in the control of his
assistant.
150


Another illustration of this doctrine is when the surgeon is supposed to teach and supervise
the anesthesiologist who is a doctor in training/resident, and the resident becomes the surgeons
borrowed servant during the surgery. However, the surgeon is only responsible for the act of
Anesthesiology while under his supervision. The hospital, which pays the residents salary, is
responsible for what he does when the surgeon is not around. Likewise, the surgeon is expected to
supervise the acts of a nurse anesthetist because s/he is neither a doctor nor a trainee. He or she is
the surgeons borrowed servant as long as he or she works on his patient, and the surgeon is
responsible for everything a nurse anesthetist does to his patient.

Captain of the Ship Doctrine

The surgeon is likened to a captain of the ship. The head surgeon is responsible for anything
that will go wrong in the four corners of the Operating Room. This is a legal doctrine, which holds
that during an operation, the surgeon is liable for all actions conducted in the course of the operation
151

The doctrine is a form of the "borrowed servant doctrine", in which a party usually liable for the
employees actions (like the hospital who pays the wages) is absolved of responsibility when that
"borrowed servant" is asked to do something that is outside of the bounds of policy.
152


Captain of the Ship was first introduced into the law of negligence by the case of McConnell
v Williams, the court said: in the course of an operationand until the surgeon leaves that
room at the conclusion of the operationhe is in the same complete charge of those who are
present and assisting him as is the captain of a ship over all on board, and that such supreme
control is indeed essential in view of the high degree of protection to which an anaesthetized
and unconscious patient is entitled It can be gleaned that physicians who had the right or
responsibility to control the actions of the agents or employees assisting them becomes subject to
liability for negligent acts committed by such agents.
153


149
WORKMEN'S COMPENSATION- LIABILITY UNDER THE BORROWED SERVANT DOCTRINE,
Merwin M. Brandon Jr., Louisiana Law Review, p.923, Volume 19, Number 4 (1959).
150
2212 Minn. 558, 4 N.W. 2d 637
151
Murphy EK, "Captain of the ship" doctrine continues to take on water US National Library of
Medicine National Institutes of Health, AORN Journal. (2001), available at
http://www.ncbi.nlm.nih.gov/pubmed/11665386, (last accessed August 26, 2014).
152
http://definitions.uslegal.com/c/captain-of-the-ship-doctrine/
153
McConnell v. Williams ,361 Pa. 355; 65 A.2d 243.
93


Hospitals have a non-delegable duty to patients and can be liable for the breach of duties
independent of the negligence of its employees or agents. Hospitals have: (1) a duty to use reasonable
care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain
only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as
to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure
quality care for its patients.
154
Thus a hospital is required to establish and enforce policies that meet
the duties incumbent upon it. For example, in Bilonoha v. Zubritzky, the courts held that a hospital
without a policy for counting instruments at the end of a case could be negligent as an institution
along with the surgeon when instruments were left in a patients wound.
155


Doctrine of Ostensible agent

In Ramos v. Court of Appeals, court said that:. Apparent authority, or what is sometimes
referred to as the holding out theory, or doctrine of ostensible agency or agency by estoppel,
has its origin from the law of agency. It imposes liability, not as the result of the reality of a
contractual relationship, but rather because of the actions of a principal or an employer in
somehow misleading the public into believing that the relationship or the authority exists.
The concept is essentially one of estoppel and has been explained in this manner:

The principal is bound by the acts of his agent with the apparent authority which he
knowingly permits the agent to assume, or which he holds the agent out to the public as
possessing. The question in every case is whether the principal has by his voluntary act placed
the agent in such a situation that a person of ordinary prudence, conversant with business
usages and the nature of the particular business, is justified in presuming that such agent has
authority to perform the particular act in question.
156


The terms ostensible agency, agency by estoppel, apparent authority, and holding out
tend to be used interchangeably by the courts to refer to this theory of liability. Agency by estoppel is
defined as one created by operation of law and established by proof of such acts of the principal as
reasonably lead third persons to the conclusion of its existence. Arises where principal by negligence
in failing to supervise agents affairs, allows agent to exercise powers not granted to him, thus justifying
others in believing the agent possesses requisite authority.
157


An ostensible agency is an implied or presumptive agency which exists where one, either
intentionally or from want of ordinary care, induces another to believe that a third person is his agent,
though he never in fact, employed him. It is, strictly speaking, no agency at all, but is in reality based
entirely upon estoppel. Apparent authority refers to the power to affect the legal relations of another

154
Captain of the Ship in Medical Malpractice available at
http://wiki.cns.org/wiki/index.php/Captain_of_the_Ship_in_Medical_Malpractice, (last accesed
August 30, 2014).
155
Bilonoha v. Zubritzky, 233 Pa. Super. 136, 336 A.2d 351 (1975).
156
Ramos v. Court of Appeals, G.R. No. 124354, December 29, 1999, 321 SCRA 584.
157
Baker v. Werner, 654 P2d 263 (1982) and Adamski v. Tacoma Gen. Hosp., 20 Wash App. 98, 579 P2d
970 (1978).
94

person by transactions with third persons, professedly as agent for the other, arising from and in
accordance with the others manifestations to such third persons.
158


Pathologist, radiologist and anesthesiologist occupy a peculiar stature they are usually
employees and at the same time independent contractors. In practice, they usually get a certain
percentage of the fee paid to the hospital. Their PF are collected by the hospital. Most courts consider
them as ostensible agents therefore, the hospital must be held liable for their negligent act.

Example: The radiologist performed a radiation therapy however the patient suffered severe
burns on the skin. The hospital is liable also liable because radiologists, although consultant doctors,
are also employees of hospital.

DOCTRINE OF APPARENT AUTHORITY

The Supreme Court discussed the doctrine of Apparent Authority in the case of Nogales v
Capitol Medical Center
159
, citing Gilbert v Sycamore Municipal Hospital:

[U]nder the doctrine of apparent authority 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:

For a hospital to be liable under the doctrine of apparent authority, a 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, the plaintiff
must also prove that the hospital had knowledge of and acquiesced 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

158
BLACKS LAW DICTIONARY (6th Ed. 1990) 1100.
159
Nogales v Capitol Medical Center, G.R. No. 142625 (2006).
95

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 Court in this case stated that the doctrine of apparent authority is a species of the doctrine
of estoppel, citing Art. 1431 of the Civil Code, which states

[t]hrough estoppel, an admission or representation is rendered conclusive upon
the person making it, and cannot be denied or disproved as against the person
relying thereon.

DOCTRINE OF CORPORATE NEGLIGENCE

The doctrine of corporate negligence holds hospitals to be liable for their patients while they
are in the hospital. In Professional Services, Inc. v Agana
160
, the Supreme Court stated that hospitals have
the duty to exercise reasonable care to protect from harm all patients admitted into its facility for
medical treatment.

These duties include:
the use of reasonable care in the maintenance of safe and adequate facilities and equipment
161
;
the selection and retention of competent physicians
162
;
the overseeing or supervision of all persons who practice medicine within its walls;
the formulation, adoption and enforcement of adequate rules and policies that ensure quality
care for its patients
163
;
to make a reasonable effort to monitor and oversee the treatment prescribed and
administered by the physicians practicing in its premises.
164

RES IPSA LOQUITUR

Res ipsa loquitur is a Latin phrase that means the thing speaks for itself. In Ramos v. Court of
Appeals
165
, the Supreme Court had the opportunity to discuss that res ipsa loquitur is a maxim that states
the rule that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or make out a

160
Professional Services, Inc v. Agana, G.R. No. 126297 (2007).
161
Id.
162
Id.
163
Id.
164
Id.
165
Ramos v. Court of Appeals, G.R. No. 124354 (1999).
96

plaintiff's prima facie case, and present a question of fact for defendant to meet with an
explanation.

In other words, res ipsa loquitur means that the plaintiff can create a rebuttable presumption
of negligence committed by the defendant by proving that:

1. the harm done would not have resulted if there is no negligence
2. the instrument that caused the harm was under the defendants control
3. there are no other plausible explanations
166

However, res ipsa loquitur is not a substantive rule as it does not vest any additional right. It is
merely a procedural rule, and does not produce a separate ground for liability.
167

Courts of other jurisdictions have found the maxim applicable in the following cases:

leaving of a foreign object in the body of the patient after an operation, injuries
sustained on a healthy part of the body which was not under, or in the area, of
treatment, removal of the wrong part of the body when another part was
intended, knocking out a tooth while a patient's jaw was under anesthetic for
the removal of his tonsils, and loss of an eye while the patient plaintiff was
under the influence of anesthetic, during or following an operation for
appendicitis, among others.
168


It is not applicable in cases of malpractice suits when the only showing is that the desired result
of the treatment was not accomplished.
169




166
Cornwell University Law School Legal Institute, RES IPSA LOQUITUR, available at
http://www.law.cornell.edu/wex/res_ipsa_loquitur (last accessed August 28, 2014).
167
Ramos v. Court of Appeals, G.R. No. 124354 (1999).
168
Id.
169
Id.
97

CASE DIGEST OF NOGALES VS. CAPITOL MEDICAL CENTER
170


PETITIONER: ROGELIO P. NOGALES, for himself and on behalf of the minors, ROGER
ANTHONY, ANGELICA, NANCY, and MICHAEL CHRISTOPHER, all surnamed NOGALES
RESPONDENT: CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA, DR. ELY
VILLAFLOR, DR. ROSA UY, DR. JOEL ENRIQUEZ, DR. PERPETUA LACSON, DR. NOE
ESPINOLA, and NURSE J. DUMLAO
PONENTE: CARPIO, J.
G.R. NO./DATE: GR. NO. 142625 and December 19,2006

FACTS:
4. Corazon Nogales was pregnant with her 4
th
child and is under the exclusive prenatal care or
Dr. Estrada as early as her 4
th
month pregnancy or on December 1975.
5. While Corazon was on her last trimester of pregnancy, Dr. Estrada noted an increase in her
blood pressure and development of leg edema indicating preeclampsia; a dangerous
complication in pregnancy.
6. Around midnight, Corazon felt mild labor pains prompting her and her husband Rogelio to
go the home of Dr. Estrada.
7. After examination and upon advise of Dr. Estrada she was admitted to Capitol Medical Center.
8. Upon instruction of Dr. Estrada 10 mg of valium was immediately administered by
intramuscular injection and later syntocinon admixed with dextrose 5% in lactated Ringers
solution was administered to Corazon.
9. Corazon was transferred to the delivery room and her bag of water ruptured spontaneously
and later, her cervix was fully dilated and then started to feel convulsions.
10. Dr. Estrada ordered injection of 10 g of magnesium but only 2.5 g was administered. Assisted
by Dr. Villaflor, Dr. Estrada applied low forceps to extract Corazons baby and in the process
her cervical tissue was allegedly torn. The baby came out in an injured condition and had to
be intubated and resuscitated.
11. Corazon suffered profuse vaginal bleeding and later died. Her cause of death was
Hemorrhage Post Partum.
12. Nogales filed a complaint for damages with RTC of Manila against the doctors of CMC.
13. TC: after 11 years, rendered judgment finding Dr. Estrada solely liable for damages.
14. CA affirmed TC.

ISSUE:
W/N CMC is liable for negligence of Dr. Estrada?
HELD:
YES. Although Dr. Estrada is solely liable for damages, CMC is liable by virtue of the doctrine
of apparent authority.

170
Nogales vs Capitol Medical Center, GR. NO. 142625, Dec. 19,2006.

98

Dr. Estradas negligence in handling and management of Corazons condition is final and is
liable.
1. ON LIABILITY OF CMC
In Ramos vs. CA, we held:
In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant"
staff. 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 the
payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly,
on the basis of the foregoing, we rule that 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.
171

o CMC does not exercise control over Dr. Estradas treatment and management of
Corazons condition.
o Corazon was under the exclusive prenatal care of Dr. Estrada and at the time of her
admission, there was no showing that CMC had a part in diagnosing her condition.
o While Dr. Estrada enjoyed the privileges at CMC, such fact alone does not make him
an employee of CMC since the hospital merely allowed him to use facilities when
Corazon was about to give birth.
o Dr. Estrada was not an employee of CMC but an independent contractor.
GENERAL RULE: A hospital is not liable for the negligence of an independent contractor
physician.
o EXCEPTION: when physician is the OSTENSIBLE AGENT of the hospital or
the DOCTRINE ON APPARENT AUTHORITY. Its elements are:
Hospital or 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
acts of the agent create the appearance of authority, the plaintiff must also
prove that the hospital had knowledge of and acquiesced in them
the plaintiff acted in reliance upon the conduct of the hospital or its agent,
consistent with ordinary care and prudence.
o In the case, CMC impliedly held out Dr. Estrada as a member of its medical staff.
Through CMC's acts, it clothed Dr. Estrada with apparent authority which leads the
Spouses Nogales to believe that Dr. Estrada was an employee or agent of CMC.
o The records show that the Spouses Nogales relied upon a perceived employment
relationship with CMC in accepting Dr. Estrada's services.
Rogelio testified that he and his wife specifically chose Dr. Estrada to handle
Corazon's delivery not only because of their friend's recommendation, but
more importantly because of Dr. Estrada's "connection with a reputable
hospital, the [CMC]."

171
Ramos vs. CA 378 Phil. 1198 (1999).
99

In other words, Dr. Estrada's relationship with CMC played a significant role
in the Spouses Nogales' decision in accepting Dr. Estrada's services.
Moreover, there is no showing that before and during Corazon's confinement
at CMC, the Spouses Nogales knew or should have known that Dr. Estrada
was not an employee of CMC.
2. ON LIABILTIY OF OTHER RESPONDENTS.
These employees acted upon the order of Dr. Estrada and were in good faith and had no
evidence of any negligence with contributed to the death of Corazon.
3. ON AWARD OF INTEREST ON DAMAGES
ARTICLE 211 OF THE CIVIL CODE states that in crimes and quasi-delicts, interest as a
part of the damages may, in a proper case, be adjudicated in the discretion of the court.
DISPOSTION:
WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds respondent Capitol
Medical Center vicariously liable for the negligence of Dr. Oscar Estrada. The amounts of
P105,000 as actual damages and P700,000 as moral damages should each earn legal interest at the
rate of six percent (6%) per annum computed from the date of the judgment of the trial court.
The Court affirms the rest of the Decision dated 6 February 1998 and Resolution dated 21 March
2000 of the Court of Appeals in CA-G.R. CV No. 45641.
SO ORDERED.