MEDICAL MALPRACTICE physicians; and the supervision, control, and regulation of the
(TORTS AND DAMAGES) practice of medicine in the Philippines. Under the Medical Act,
Physicians are not warrantors of cures or insurers against
personal injuries or death of the patient. Difficulties and
uncertainties in the practice of profession are such that no
practitioner can guarantee results. Error of judgment will not
necessarily make the physician liable. (Torts and Damages,
Timoteo B. Aquino)
“Throughout history, patients have consigned
their fates and lives to the skill of their doctors. For a
breach of this trust, men have been quick to demand
retribution. Some 4,000 years ago, the Code of
Hammurabi then already provided: "If a physician
make a deep incision upon a man with his bronze
lancet and cause the man's death, or operate on the
eye socket of a man with his bronze lancet and
destroy the man's eyes, they shall cut off his
hand." Subsequently, Hippocrates wrote what was to
become part of the healer's oath: "I will follow that
method of treatment which according to my ability
and judgment, I consider for the benefit of my
patients, and abstain from whatever is deleterious
and mischievous . . . . While I continue to keep this
oath unviolated may it be granted me to enjoy life
and practice the art, respected by all men at all times
but should I trespass and violate this oath, may the
reverse be my lot." At present, the primary objective
of the medical profession is the preservation of life
and maintenance of the health of the people.
Needless to say then, when a physician strays
from his sacred duty and endangers instead the life of
his patient, he must be made to answer
therefor. Although society today cannot and will not
tolerate the punishment meted out by the ancients,
neither will it and this Court, as this case would show,
let the act go uncondemned.
Xxx
As a final word, this Court reiterates its
recognition of the vital role the medical profession
plays in the lives of the people, and State's compelling
interest to enact measures to protect the public from
"the potentially deadly effects of incompetence and
ignorance in those who would undertake to treat our
bodies and minds for disease or trauma." Indeed, a
physician is bound to serve the interest of his patients
"with the greatest of solicitude, giving them always
his best talent and skill." (Dr. Victoria L. Batiquin and
allan Batiquin v. Court of Appeals, et al, 258 SCRA 334
[1996]).
Doctors or physicians are experts, who, because of their
training and the very nature of their work, are required to
exercise utmost diligence in the performance of their tasks.
(Torts and Damages, Timoteo B. Aquino) However, proving
medical malpractice in the Philippines is one of the more
difficult civil cases. Its difficulty lies, among others, on the fact
that medical procedures involve, to a great degree, technical
matters, which must be clearly understood first, prior to
pursuing a claim that a treatment was attended with
malpractice.
The rights and obligations of physicians, and the law that
governs the relationship between doctors and patients are
covered by the Medical Act of 1959 (R.A. No. 2382) which
provides, among others, the standardization and regulation of
medical education; the examination for registration of
gross negligence, ignorance, or incompetence in the practice
of medicine resulting in an injury to or death of the patient
shall be sufficient ground to suspend or revoke the certificate
of registration of any physician. However, R.A. 2382 has no
provision imposing civil or criminal penalty for acts
constituting gross negligence, ignorance, or incompetence.
Nonetheless, a patient who dies or suffers injury because of
the attendance of any of these circumstances when a
physician attends to him/her may be prosecuted under Article
365 of the Revised Penal Code or seek an award of damages
under the Civil Code such as an action based on quasi-delict.
A. CRIMINAL LIABILITY
"Doctors are protected by a special law. They are not
guarantors of care. They do not even warrant a good
result. They are not insurers against mishap or unusual
consequences. Furthermore they are not liable for honest
mistake of judgment.” (Cruz versus Court of Appeals, 282 SCRA
188 [1997])
Criminal liability for medical negligence may be, however,
brought under Article 365 of the Revised Penal Code (criminal
imprudence and negligence). The elements of reckless
imprudence are:
(1) that the offender does or fails to do an act;
(2) that the doing or the failure to do that act is
voluntary;
(3) that it be without malice;
(4) that material damage results from the reckless
imprudence; and
(5) that there is inexcusable lack of precaution on the
part of the offender, taking into consideration his employment
or occupation, degree of intelligence, physical condition, and
other circumstances regarding persons, time and place.
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 profession 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 Leonila Garcia-Rueda
v. Wilfred L. Pacasio, et. al., this Court stated that in accepting
a case, a doctor in effect represents that, having the needed
training and skill possessed by physicians and surgeons
practicing in the same field, he will employ such training, care
and skill in the treatment of his patients. He 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. It is in this aspect of medical
malpractice that expert testimony is essential to establish not
only the standard of care of the profession but also that the
physician's conduct in the treatment and care falls below such
standard. Further, inasmuch as the causes of the injuries
involved in malpractice actions are determinable only in the
light of scientific knowledge, it has been recognized that
expert testimony is usually necessary to support the
conclusion as to causation.”
“Inexcusable lack of precaution” is defined as “whether
or not a physician has committed an ‘inexcusable lack of
precaution’ in the treatment of his [or her] patient is to be
determined according to the standard of case observed by
other members of the profession in good standing under
similar circumstances bearing in mind another the advance
1
state of the profession at the time of treatment or the present
state of medical science.” In cases where the negligence is not
reckless in nature, the doctor may be held liable instead for
simple imprudence. However, the negligence exhibited by the
two doctors does not approximate negligence of a reckless
nature but merely amounts to simple imprudence. Simple
imprudence consists in the lack of precaution displayed in
those cases in which the damage impending to be caused is
not the immediate nor the danger clearly manifest. The
elements of simple imprudence are as follows.
1. that there is lack of precaution
on the part of the offender; and
2. that the damage impending to
be caused is not immediate of
the danger is not clearly
manifest.
In litigations involving medical negligence, the plaintiff
has the burden of establishing accused-appellants negligence,
and for a reasonable conclusion of negligence, there must be
proof of breach of duty on the part of the physician as well as
a causal connection of such breach and the resulting injury of
his patient. The connection between the negligence and the
injury must be a direct and natural sequence of events,
unbroken by intervening efficient causes. In other words, the
negligence must be the proximate cause of the
injury. Negligence, no matter in what it consists, cannot create
a right of action unless it is the proximate cause of the injury
complained of. The proximate cause of an injury is that cause
which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury and without
which the result would not have occurred. (Jarcia, Jr. v.
People, 666 SCRA 336 (2012)
B. CIVIL LIABILITY
The injured party may hold the physician liable for
damages based on tort, called quasi-delicts under Article 2176
of the New Civil Code. In general, negligence suits require
proof that a party failed to observe, for the protection of the
interest of another person, that degree of care, precaution,
and vigilance which the circumstances justly demand,
whereby such other person suffers injury. It 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 and reasonable man would not do. (Layugan vs.
Intermediate Appellate Court, citing Black’s Law Dictionary,
Fifth Edition, 930).
The Supreme Court had occasion to explain that doctors,
because of their training and the very nature of their work,
doctors or physicians are required to exercise utmost diligence
in the performance of their tasks, to wit:
Throughout history, patients have consigned their
fates and lives to the skill of their doctors. For a
breach of this trust, men have been quick to demand
retribution. Some 4,000 years ago, the Code of
Hammurabi then already provided: “If a physician
make a deep incision upon a man with his bronze
lancet and cause the man’s death, or operate on the
eye socket of a man with his bronze lancet and
destroy the man’s eyes, they shall cut off his hand.”
Subsequently, Hippocrates wrote what was to
become part of the healer’s oath: “I will follow that
method of treatment which according to my ability
and judgment, I consider for the benefit of my
patients, and abstain from whatever is deleterious
and mischievous. . . . While I continue to keep this
oath unviolated may it be granted me to enjoy life
and practice the art, respected by all men at all times
but should I trespass and violate this oath, may the
reverse be my lot.” At present, the primary objective
of the medical profession is the preservation of life
and maintenance of the health of the people.
Needless to say then, when a physician strays
from his sacred duty and endangers instead the life of
his patient, he must be made to answer therefor.
Although society today cannot and will not tolerate
the punishment meted out by the ancients, neither
will it and this Court, as this case would show, let the
act go uncondemned.
xxx xxx
As a final word, this Court reiterates its
recognition of the vital role the medical profession
plays in the lives of the people, and the State’s
compelling interest to enact measures to protect the
public from “the potentially deadly effects of
incompetence and ignorance in those who would
undertake to treat our bodies and minds for disease
or trauma.” Indeed, a physician is bound to serve the
interest of his patients “with the greatest of
solicitude, giving them always his best talent and
skill.” Through her tortious conduct, the petitioner
endangered the life of Flotilde Villegas, in violation of
her profession’s rigid ethical code and in
contravention of the legal standards set forth for
professionals, in general, and members of the
medical profession, in particular.” (Dr. Victoria L.
Batiquin and Allan Batiquin vs. Court of Appeals, G.R.
No. 118231, 05 July 1996.)
When the evidence show the presence of negligence,
such as when a doctor, hospital or medical professional failed
to perform the necessary medical services on a patient
according to the degree of skill required from an ordinary
practitioner of their respective professions, then a cause of
action arising from negligence or quasi-delict exists.
However, being a distinct type of tort, the Supreme Court
stated that, to prove medical malpractice or medical
negligence, four (4) elements have to be established, to wit:
“A word on medical malpractice or negligence
cases.
In its simplest terms, the type of lawsuit which has
been called medical malpractice or, more
appropriately, medical negligence, is that type of claim
which a victim has available to him or her to redress a
wrong committed by a medical professional which has
caused bodily harm. In order to successfully pursue
such a claim, a patient must prove that a health care
provider, in most cases a physician, either failed to do
something which a reasonably prudent health care
provider would have done, or that he or she did
something that a reasonably prudent provider would
not have done; and that that failure or action caused
injury to the patient. Hence, there are four elements
involved in medical negligence cases: duty, breach,
injury and proximate causation.
2

As with any civil case, substantial evidence must
be presented to establish the liability of the
responsible party. If the elements of duty, breach,
injury and proximate causation are established with
substantial evidence, then a hospital, doctor, or other
medical professional will be held liable for malpractice.
Civil liability, in the form of damages, may be awarded
by the court in such instances.
When a doctor or hospital accepts a patient for
treatment, a physician-patient relationship is created.
The first element of duty arises at this stage. By
accepting a case, the doctor or hospital commenced
the duty to render medical service in favor of the
patient in accordance with the expected training and
skill of a medical practitioner. This is in line with the
ruling of the Supreme Court in the case of Leonila
Garcia-Rueda v. Wilfred L. Pacasio, et. al, to wit:
Evidently, when the victim employed the services
of Dr. Antonio and Dr. Reyes, a physician-patient
relationship was created. In accepting the case, Dr.
Antonio and Dr. Reyes in effect represented that,
having the needed training and skill possessed by
physicians and surgeons practicing in the same field,
they will employ such training, care and skill in the
treatment of their patients. They have 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. 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. Consequently, 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.
The second element of breach is present when the
hospital or doctor does treatment in breach of
professional duties. An example of this would be a
doctor that applies treatment without consulting the
patient’s history. It is a standard operating procedure
for all doctors to apprise themselves about the medical
history of a person before they decide on taking
him/her as a patient. This process is necessary so that
the doctor can gauge whether he/she is capable of
successfully helping the patient and also for the doctor
to make the proper preparations and decisions with
respect to how to treat said patient.
It is also worthy to note that under Section 2
Article II of the Code of Ethics promulgated by the
Board of Medicine to govern the conduct of doctors
practicing medicine in the Philippines, a physician has
the obligation not to abandon a patient under any
circumstance, to wit:
Section 2. A physician is free to choose whom he
will serve. He may refuse calls, or other medical
services for reasons satisfactory to his professional
conscience. He should, however, always respond to
any request for his assistance in an emergency. Once
he undertakes a case, he should not abandon nor
neglect it. If for any reason he wants to be released
from it, he should announce his desire previously,
giving sufficient time or opportunity to the patient or
his family to secure another medical attendant.
Thus, it can be said that when a doctor or hospital
unjustifiably refuses to proceed with treatment, or just
suddenly abandons his or her patient, the act can be
considered as breach of duty.
The presence of the third element arises where
injury, liability or even death arises as a consequence
of a negligent medical treatment or procedure.
The last element to establish medical malpractice
or medical negligence, is however, the most difficult
one to prove. Medical procedures are fraught with
varying consequences, and affected by innumerable
factors such as the environment, personal health,
health of the other members of the family, food intake,
medicine, activities of the patient, such that it would
be difficult to establish, to a convincing degree,
whether the injury is the proximate result or directly
arose from the procedure conducted.
However, there are instances of medical
malpractice or medical negligence that involve the
application of the familiar doctrine res ipsa loquitur.
The doctrine of res ipsa loquitur, which directly
translates to “the thing speaks for itself”, governs cases
where negligence is clear by a simple examination of
the injury or the circumstances surrounding the
medical treatment given, such as where a gauze or a
pair of scissors are left inside the body cavity after it
has been sutured, or blood of a different type is
infused to a patient.
In sum, the difficulty in successfully prosecuting
medical negligence lies in the fact that medicine is not
an exact science. There are numerous life-saving
procedures that are experimental, or even not
experimental, but are fraught with consequences, such
that even the best doctors cannot predict the outcome
of the treatment. Also, countless environmental
variable play a direct hand in the effectiveness of a
treatment.
All that any medical professional or hospital has to
do to avoid medical malpractice is to study the
procedure well including the patient’s history, keep the
patient well-informed of the procedure which the
doctor or hospital intends to perform, conduct the
treatment in good faith, and with the required degree
of competence, diligence and skill. This way, any claim
of malpractice may be avoided.”
An important element of medical negligence is the
duty of a physician to a patient. For the physician to be
obliged to perform her/her duties, there must be a doctor-
patient relationship established. The relationship of doctor-
patient begins when the patient engages the services of a
physician, and the physician accepts the case. “a physician-
patient relationship may be created when the professional
services of a physician are rendered to and accepted by
another for purposes of medical or surgical treatment. (Quirk
v. Zukerman, June 30, 2003) An implied physician-patient
relationship can be inferred also from the circumstances
prevailing. This relationship of physician-patient is usually
contractual in nature. The liability of the doctor for negligence
may arise from contract. In cases, where no contractual
3
obligation is present, the doctor may still be held liable for
gross negligence based on quasi-delict because even a doctor
who unilaterally treated a patient without the latter’s consent
must exercise due care in making such treatment.
 STANDARD OF CARE:
Medical malpractice is a particular form of
negligence which consists in the failure of a physician
or surgeon to apply to 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. (Reyes v.
Sisters of Mercy Hospital, October 3, 2000) Whether a
physician 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 profession 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.
(Cruz v. CA, Nov. 18, 1997)The standard referred to
here is not the average merit among all known
practitioners from the best to the worst and from the
most to the least experienced, but the reasonable
average merit among ordinarily good physicians.
(Reyes v. Sisters of Mercy Hospital)
However, the standard of care demanded from a
general practitioner is ordinary care and diligence in
the application of his knowledge and skill in his
practice of the profession. He ought to apply to his
patient what other general practitioners will apply
when confronted with similar situation. (Pedro P.
Solis, medical Jurisprudence, 19988 Ed.) A “specialist”
on the other hand, duty to the patient is generally
considered to be that of an average specialist, not
that of a average physician.
a. Examples of Negligence of Doctors. A doctor
may be considered negligent when he fails to attend
to his patient and delays in attending his patient. In
Ramos v. Court of Appeals, the fact that the doctor
arrived almost three hours after the scheduled
operation was taken against the said doctor.
Negligence may consist in error in diagnosis and
in treatment. Error in diagnosis and error in
treatment may both result because of the
incompetence or inexperience of the doctor. In either
case, the liability of the doctor attaches. The doctor
cannot use as an excuse his or her inexperience.
Error in diagnosis or treatment may be the
result of failure on the part of the doctor to take a
full medical history. In cases involving surgery,
pre-operative examination and evaluation is
required. Thus, in Ramos v. Court of Appeals, the
anaesthesiologist failed to perform pre-operative
evaluation of the patient which, in turn, resulted
in faulty intubation.
Similarly, the doctor may be considered negligent
if he failed to give the proper advice or is otherwise
guilty of negligence in his communications to the
patient. For instance, a doctor who fails to give proper
instructions to the patient regarding the frequency and
quantity of medication may be held liable for
negligence.
In Spouses Flores v. Spouses Pineda, a doctor was
made liable for the death of the patient that resulted
when the doctor decided to proceed with the "D & C"
procedure despite the patient's hyperglycemia and
without adequately preparing the patient.
In Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan
v. People. two doctors in the Emergency Room failed to
conduct a thorough examination of the victim of a
vehicular accident. The doctors failed to detect the
fractures in the bone that caused fever, swelling of the
right leg and misalignment of the right foot. The
doctors made baseless assurances that everything was
all right thereby depriving the victim of "adequate
medical attention that placed him in a more dangerous
situation than he was already in."
Casumpang v. Cortejo, involved misdiagnosis of
dengue and the patient was not timely treated for
dengue as a consequence; instead of dengue, the
diagnosis was bronchopneumonia. Rosit . Davao
Doctors Hospital involved a dentist who failed to install
the erect size of screws causing the sufferings of the
patient; one of the screw struck the molar of the
patient.
b. General Practitioners v. Specialists.
The "standard of care demanded from a general
practitioner is ordinary care and diligence in the
application of his knowledge and skill in his practice of
the profession. He ought to apply to his patient what
other general practitioners will apply when confronted
with similar situation."
On the other hand, "a specialist's legal duty to the
patient is generally considered to be that of an average
specialist, not that of an average physician. A physician
who holds himself out as having special knowledge
and skill in the treatment of a particular organ or
disease or injury is required to bring to the discharge
of his duty to a patient employing him as such as a
specialist, not merely that of an average degree of skill
possessed by general practitioners but that special
degree of skill and care which physicians, similarly
situated who devote special study and attention to the
treatment of such organ, disease or injury ordinarily
possess, regard being in the state of scientific
knowledge at the time."
The Court reiterated in Solidum v. People that the
standard of care by which the specialist is judged is the
care and skill commonly possessed and exercised by
similar specialists under the circumstances. The
specialty standard of care may be higher than that
required of the general practitioner."
Stated differently, the proper standard is whether
the physician, of a general practitioner, has exercised
the degree of care and skill of the average qualified
practitioner, taking into account the advances in the
profession. One holding out as a specialist should also
be held to the standard of care and skill of the average
member of the profession practicing the specialty,
taking into account the advances in the profession. In
both cases, it is permissible to consider the resources
available to the general practitioner and the specialist
as one of the circumstances in determining the degree
of skill and care required.
c. National Standards.
Each physician may with reason and
fairness be expected to possess or have
reasonable access to such medical knowledge as
is commonly possessed or reasonably available
to competent physician in the same specialty or
general field of practice in the Philippines The
4
 standard is a national standard and not the
standard of a particular community only.
d. Locality Rule in Relation to
Facilities.
Each physician has a duty to have a practical
working knowledge of the facilities, equipment,
resources and options reasonably available to him or
her as well as the practical limitations on the same.
This includes knowledge of personnel in health related
fields and their general knowledge and competence.
The doctor must be aware of the specialized services
or facilities available in his area. Hence, to a certain
extent, local medical custom and the facilities in the
community may affect the duty of care of doctors but
only in the sense that the "content of the duty of care
may be informed by local medical custom but never
subsumed by it."
"The duty of care, as it thus emerges from
considerations of reason and fairness, when applied to
the facts of the world of medical science and practice,
takes two forms: (a) a duty to render a quality of care
consonant with the level of medical and practical
knowledge the physician may reasonably be expected
to possess and the medical judgment he may be
expected to exercise; and (b) the duty based upon the
adept use of such medical facilities, services, and
equipment and options as are reasonably available.
With respect to this second form of the duty, [the
Court] regard[s] that there remains a core of validity to
the premise of the old locality rule." With respect to
the first form (a), national standards apply.
e. Neighborhood Rule.
The Supreme Court articulated the General
Neighborhood standard in Lucas v. Tuano observing
that in treating his patient, a physician is under a duty
to the patient to exercise that degree of care, skill, and
diligence which physicians in the same general
neighborhood and in the same general line of practice
ordinarily possess and exercise in like cases. The Court
said that "proof of such breach must likewise rest upon
the testimony of an expert witness that the treatment
accorded to the patient failed to meet the standard
level of care, skill, and diligence which physicians in
the same general neighborhood and in the same
general line of practice ordinarily possess and exercise
in like cases.
It is submitted that the term "neighborhood
should not be used in the formulation of the standard
of care that applies not only doctors but also to all
persons in general. It is believed that inclusion of the
word neighborhood" in the standard of care will only
mal the rule vague if the term remains undefined; the
word may eve lead into confusion regarding the true
nature of the standard.
Reference to the degree of care employed by
persons in the same general neighborhood is strikingly
similar to the formulation of the standard of care in
common law. However, the rule in common law is
different from the rule under the New Civil Code. In
common law, neighborhood connotes proximity. Lord
Atkin in Donoghue U. Stevenson made the classic
announcement of the neighborhood rule where he
opined that there must be some general conception of
relations giving rise to a duty of care. He explained:
"x x x Who, then, in law, is my neighbor? The
answer seems to be persons who are so closely and
directly affected by my act that I ought reasonably to
have them in contemplation as being so affected when
I am directing my mind to the acts or omissions which
are called question."
The neighborhood rule articulated by Lord Atkins
was later elaborated in Anns v. Merton London
Borough Council (LBC) where it was explained that in
negligence cases in addition to foreseeability of
damage, "one has to ask whether, as between the
alleged wrongdoer and the person who has suffered
damage there is sufficient relationship of proximity or
neighborhood such that, in the reasonable
contemplation of the former, carelessness on his part
may be likely to cause damage to the latter, in which
case a prima facie duty of care arises." Hence, Anns v.
Merton LBC appears to treat proximity as synonymous
with foreseeability.
Negligence of Residents.
"Resident doctors" are licensed doctors under
training for a particular specialty. They are merely
"subordinates who usually defer to the attending
physician on the decision to be made and on the action
to be taken." The attending physician, on the other
hand, is primarily responsible for managing the
resident's exercise of duties. While attending and
resident physicians share the collective responsibility
to deliver safe and appropriate care to the patients, it
is the attending physician who assumes the principal
responsibility of patient care. Because he/she exercises
a supervisory role over the resident, and is ultimately
responsible for the diagnosis and treatment of the
patient, the standards applicable to and the liability of
the resident for medical malpractice is theoretically
less than that of the attending physician. These relative
burdens and distinctions, however, do not translate to
immunity from the legal duty of care for residents, or
from the responsibility arising from their own
negligent act." Nevertheless, they must exercise the
same degree of care that is required of a physician.
1.05. ERROR OF JUDGMENT.
Error on the part of the doctor does not
necessarily result in the finding of negligence. Whether
an error of judgment is negligent or not depends on
the nature of the error. "If it is one that would not
have been made a reasonably competent professional
man professing to have the standard and type of skill
that the defendant held himself out as having, and
acting with ordinary care, then it is negligent. If, on the
other hand, it is an error that a man, with ordinary
care, might have made, then it is not negligence."
1.07. EXPERT TESTIMONY.
Whether a physician or surgeon has exercised the
requisite degree of skill and care in the treatment of
his patient is, in the generality of cases, a matter of
expert opinion. Courts defer to the expert opinion of
qualified physicians because of the court's realization
that the qualified physicians possess unusual technical
skills which laymen in most instances are incapable of
intelligently evaluating. Expert testimony should be
offered to prove that the circumstances cited by the
courts below are constitutive of conduct falling below
the standard of care employed by other physicians in
good standing when performing the same operation. It
must be remembered that when the qualifications of a
physician are admitted, there is an inevitable
presumption that in proper cases he takes the
necessary precaution and employs the best of his
knowledge and skill in attending to his clients, unless
5
the contrary is sufficiently established. This
presumption is rebuttable by expert opinion.
What Must be Established Through an Expert.
A doctor is duty-bound to use at least the same
level of care that any reasonably competent doctor
would use to treat a condition under the same
circumstances. 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.
As to this aspect of medical malpractice, the
determination of the reasonable level of care and the
breach thereof, expert testimony is essential. Further,
inasmuch as the causes of the injuries involved in
malpractice actions are determinable only in the light
of scientific knowledge, it has been recognized that
expert testimony is usually necessary to support the
conclusion as to causation.
1.08. RES IPSA LOQUITUR.
Medical malpractice can also be established by
relying on the doctrine of res ipsa loquitur. In cases
involving medical negligence, the doctrine of res ipsa
loquitur allows the mere existence of an injury to
justify a presumption of negligence on the part of the
person who controls the instrument causing the injury,
provided that the following requisites concur: (1) The
accident is of a kind which ordinarily does not occur in
the absence of someone's negligence; (2) It is caused
by an instrumentality within the exclusive control of
the defendant or defendants; and (3) The possibility of
contributing conduct which would make the plaintiff
responsible is eliminated.
However, the application of the doctrine of res
ipsa loquitur in medical malpractice cases is limited to
cases where the court from its fund of common
knowledge can determine the standard of care. These
are cases where an ordinary layman can conclude that
there was negligence on the part of the doctor. It is
restricted to situations where a layman is able to say,
as a matter of common knowledge and observation,
that the consequences of professional care were not as
such as would ordinarily have followed if due care had
been exercised. If a layman cannot or is not in a
position to say if due care has been exercised, the
testimony of an expert would then be indispensable.
1.10. DOCTRINE OF INFORMED CONSENT.
Unless excused, the doctor must secure the
consent of his patient to a particular treatment or an
investigative procedure. Consent is an integral part of
the physician-patient relationship and doctors are duty
bound to obtain an authorization for care carried out
in their offices or elsewhere. However, consent of the
patient may be express or implied.
a. Nature of Liability. A doctor may be liable for
quasi-delict under Article 2176 of the New Civil Code if
he negligently failed to secure the consent of a patient
to treatment. The liability may be imposed because
the doctor failed to warn the patient. The nature of the
liability of the doctor was explained in this wise:
"A physician is under a duty to treat his patient
skillfully but proficiency in diagnosis and therapy is not
the full measure of his responsibility The cases
demonstrate that the physician is under an obligation
to communicate specific information to the patient
when the exigencies of reasonable care call for it. Due
care may require a physician perceiving symptoms of
bodily abnormality to alert the patient to the
condition. It may call upon the physician confronting
an ailment which does not respond to his ministrations
to inform the patient thereof. It may command the
physician to instruct the patient as to any limitations to
be presently observed for his own welfare, and as to
any precautionary therapy he should seek in the
future. It may oblige the physician to advise the
patient of the need for or desirable. ity of any
alternative treatment promising greater benefit than
that being pursued. Just as plainly, due care normally
demands that the physician warn the patient of any
risks to his well-being which contemplated therapy
may involve.
The context in which the duty of risk-disclosure
arises is invariably the occasion for decision as to
whether a particular treatment procedure is to be
undertaken. To the physician, whose training enables a
self satisfying evaluation, the answer may seem clear,
but it is the prerogative of the patient, not the
physician, to determine for himself the direction in
which his interests seem to lie. To enable the patient to
chart his course understandably, some familiarity with
the therapeutic alternatives and their hazards
becomes essential.
A reasonable revelation in these respect is not
only a necessity, but, as [the Court] see[s] it, is as much
a matter of physician's duty. It is a duty to warn of the
dangers lurking in the proposed treatment, and that is
surely a facet of due care. It is, too, a duty to impart
information which the patient has every right to
expect. The patient's reliance upon the physician is a
trust of the kind which traditionally has exacted
obligations beyond those associated with arms-length
transactions. His dependence upon the physician for
information affecting his well-being, in terms of
contemplated treatment, is well-nigh abject. x x x."
b. Rationale and History of Liability for Informed
Consent.
"The negligence theory of consent puts the patient
and the health practitioner on a more even footing
that they were previously, particularly when
inadequate disclosure of information is concerned."
The existence of the negligence theory reinforces the
need for greater diligence on the part of health
personnel in providing pa ents with information
relevant to their health care." In Dr. Rubi Li v. Spouses
Soliman, the Supreme Court the Supreme Court
explained the nature and history of the doctrine of
informed consent as follows:
"The doctrine of informed consent within the
context of physician- patient relationships goes far
back into English common law. As early as 1767,
doctors were charged with the tort of "battery" (i.e.,
an unauthorized physical contact with a patient) if they
had not gained the consent of their patients prior to
performing a surgery or procedure. In the United
States the seminal case was Schoendorff v. Society of
New York Hospital which involved unwanted
treatment performed by a doctor. Justice Benjamin
Cardozo's oft-quoted opinion upheld the basic right of
a patient to give consent to any medical procedure or
treatment: "Every human being of adult years and
sound mind has a right to determine what shall be
done with his own body; and a surgeon who performs
an operation without his patient's consent, commits an
assault, for which he is liable in damages. From a
purely ethical norm, informed consent evolved into a
6
general principle of law that 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.
Subsequently, in Canterbury v. Spence, the court
observed that the duty to disclose should not be
limited to medical usage as to arrogate the decision on
revelation to the physician alone. Thus, respect for the
patient's right of self-determination on particular
therapy demands a standard set by law for physicians
rather than one which physicians may or may not
impose upon themselves. The scope of disclosure is
premised on the fact that patients ordinarily are
persons unlearned in the medical sciences. Proficiency
in diagnosis and therapy is not the full measure of a
physician's responsibility. It is also his duty to warn of
the dangers lurking in the proposed Treatment and to
impart information which the patient has every right
to expect. Indeed, the patient's reliance upon the
physician is a trust of the kind which traditionally has
exacted obligations beyond those associated with
arms-length transactions. The physician is not
expected to give the patient a short medical education,
the disclosure rule only requires of him a reasonable
explanation, which means generally informing the
patient in nontechnical terms as to what is at stake;
the therapy alternatives open to him, the goals
expectably to be achieved, and the risks that may
ensue from particular treatment or no treatment. As to
the issue of demonstrate. ing what risks are considered
material necessitating disclosure, it was held that
experts are unnecessary to a showing of the
materiality of a risk to a patient's decision on
treatment, or to the reasonably, expectable effect of
risk disclosure on the decision. Such unrevealed risk
that should have been made known must further
materialize, for otherwise the omission, however
unpardonable, is without legal consequence. And, as in
malpractice actions generally, there must be a causal
relationship between the physician's failure to divulge
and damage to the patient.
Reiterating the foregoing considerations, Cobbs v. Grant deemed
it as integral part of physician's overall obligation to patient, the
duty of reasonable disclosure of available choices with respect
to proposed therapy and of dangers inherently and potentially
involved in each. However, the physician is not obliged to
discuss relatively minor risks inherent in common procedures
when it is common knowledge that such risks inherent in
procedure of very low incidence. Cited as exceptions to the rule
that the patient should not be denied the opportunity to weigh
the risks of surgery or treatment are emergency cases where it
is evident he cannot evaluate data, and where the patient is a
child or incompetent. The court, thus concluded that the
patient's right of self-decision can only be effectively exercised if
the patient possesses adequate information to enable him in
making an intelligent choice. The scope of the physician's
communications to the patient, then must be measured by the
patient's need, and that need is whatever information is
material to the decision. The test therefore for determining
whether a potential peril must be divulged is its materiality to
the patient's decision.
Cobbs v. Grant further reiterated the
pronouncement in Canterbury v. Spence that for
liability of the physician for failure to inform patient,
there must be causal relationship between physician's
failure to inform and the injury to patient and such
connection arises only if it is established that, had
revelation been made, consent to treatment would not
have been given."
c. Elements of Liability.
The presence of doctor-client relationship must be
established before the doctrine of informed consent
can be applied. In addition to this, the Supreme Court
ruled that the plaintiff must establish of informed
consent: four essential elements in a malpractice
action based on the doctrine
(1) The physician had a duty to disclose material
risks;
(2) The physician failed to disclose or inadequately
disclosed those risks;
(3) As a direct and proximate result of the failure
to disclose consented to; and patient consent to
treatment she otherwise would not have
(4) The plaintiff was injured by the proposed
treatment.
The Court observed that "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."
e. Scope of Duty.
What should be disclosed depends on the
particular circum chances of a given case. "The
element of ethical duty to disclose material risks in the
proposed medical treatment cannot thus be reduced
to one simplistic formula applicable in all instances.
Thus, doctors must consider, on a case-to-case basis,
various factors such as the medical steps preceding
diagnosis, the nature and purpose of the proposed
treatment, the risk of the treatment, treatment
alternatives and the risk of doing nothing as an option.
Captain of the Ship Doctrine
This is especially true if the doctor is the head of
the surgical team, the so-called captain of the ship,
because as such he has the responsibility to see to it
that those under him perform the task in the proper
manner. Under the "Captain of the Ship" Doctrine, the
7
surgeon is likened to a ship captain who must not only employee relationship between the hospital and the
be responsible for the safety of the crew but also of physician (under Article 2180), or (2) if the doctrine of
the passengers of the vessel. The head surgeon is apparent authority can be applied, that is, if the
made responsible for everything that goes wrong hospital holds out to the patient that the physician is
within the four corners of the operating room. It an agent.123 The Supreme Court explained in its
enunciates the liability of the surgeon not only for the Resolution on the Motion for Reconsideration in
wrongful acts of those who are under his physical Rogelio Ramos, et al. v. Court of Appeals, et al., that
control but also those wherein he has extension of there was no employer-employee relationship
control. between the hospital and the physician that will make
2. LIABILITY OF HOSPITALS. the hospital liable under Article 2180.
The Supreme Court clarified in its February 2, 2010 In Professional Services, Inc. v. Court of Appeals,
Resolution in Professional Services, Inc. v. Agana, the the Supreme Court sustained the liability of hospitals
different bases of liability of hospitals in relation to the based on the doctrine of corporate responsibility. The
negligence of doctors: duty of providing quality medical service is no longer
"While in theory a hospital as a juridical entity the sole prerogative and responsibility of the
cannot practice medicine, in reality it utilizes doctors, physician. This is because the modern hospital now
surgeons and medical practitioners in the conduct of tends to organize a highly professional medical staff
its business of facilitating medical and surgical whose competence and performance need also to be
treatment Within that reality, three legal relationships monitored by the hospital commensurate with its
crisscross: (1) between the hospital and the doctor inherent responsibility to provide quality medical
practicing within its premises; (2) between the hospital care. Such responsibility includes the proper
and the patient being treated or examined within its supervision of the members of its medical staff.
premises; and (3) between the patient and the doctor. Accordingly, the hospital has the duty to make a
The exact nature of each relationship determines the reasonable effort to monitor and oversee the
basis and extent of the liability of the hospital for the treatment prescribed and administered by the
negligence of the doctor. physicians practicing in its premises.
Where an employment relationship exists, the "The corporate negligence doctrine imposes
hospital may be held vicariously liable under Article several duties on a hospital:(i) to use reasonable care
2176 in relation to Article 2180 of the Civil Code or the in the maintenance of safe and adequate facilities and
principle of respondeat superior. Even when no equipment; (ii) to select and retain only competent
employment relationship exists but it is shown that physicians; (iii) to oversee as to patient care all
the hospital holds out to the patient that the doctor is persons who practice medicine within its walls; and
its agent, the hospital may still be vicariously liable (iv) to formulate, adopt, and enforce adequate rules
under Article 2176 in relation to Article 1431 and and policies to ensure quality care for its patients.
Article 1869 of the Civil Code or the principle of These special tort duties arise from the special
apparent authority. Moreover, regardless of its relationship existing between a hospital or nursing
relationship with the doctor, the hospital may be held home and its patients, which are based on the
directly liable to the patient for its own negligence or vulnerability of the physically or mentally ill persons
failure to follow established standard of conduct to and their inability to provide care for themselves."
which it should conform as a corporation.
The vicarious liability of a hospital as an employer
or as a principal of an agent may also be based either
on quasi-delict under Article 2180 of the New Civil
Code and delict under Article 102 or 104 of the
Revised Penal Code 119 A single negligent act or
omission of an employee may give rise to different
sources of vicarious liability of the hospital-employer
quasi-delict and delict. These tort obligations based
on delict and quasi-delict - may even concur with
obligation arising from contract. This concurrence of
causes of action is of course subject to proscription
against double recovery.
Note that the hospital may not escape liability by
the mere fact that the patient used of health care
plan or card. The only effect of the availment of the
patient's card benefits is that the choice of physician
is limited only to physicians who are accredited with
the health card provided. Thus, the patient's use of
health care plan in this case only limited the choice of
doctors (or coverage of services, amount etc.) and not
the liability of doctors or the hospital.
2.01. VICARIOUS LIABILITY OF HOSPITAL AS
EMPLOYER.
As explained in the above-quoted ruling in
Professional Health Services, Inc. v. Agana,12 the
hospital itself may be vicariously liable for the act or
omission of the physician if: (1) there is employer