negligence and medical malpractice
TRANSCRIPT
NEGLIGENCE&
MEDICAL MALPRACTICE
ATTY. MALAYA M. CAPULONG, MD
NEGLIGENCENEGLIGENCE
Negligence – want of care
required by the
circumstances.
NEGLIGENCENEGLIGENCE
Negligence is the failure
to observe that degree of
care, precaution and
vigilance which the
circumstances justly
demand resulting in injury
to another person.
NEGLIGENCENEGLIGENCE
The existence of
negligence is determined
by the behavior of the
person in the situation.
NEGLIGENCENEGLIGENCE
How do we determine if a
person acted in a
negligent manner?
What is the standard of
care?
NEGLIGENCENEGLIGENCE
That which an ordinary
prudent man would
exercise under the same
circumstances.
MEDICAL MALPRACTICE
• Any act or failure to act by a member of the medical profession that results to harm, injury, distress, prolonged physical or mental suffering or the termination of life to a patient while that patient is under the care of that medical professional
MEDICAL MALPRACTICE
• Doctors• Nurses• Midwives• Pharmacists• Dentists• Physical Therapists
MEDICAL MALPRACTICE
DUTY
BREACH
INJURY
PROXIMATE CAUSATION
MEDICAL MALPRACTICE
DUTY
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
Duty to -Duty to -
Possess medical knowledgePossess medical knowledge
Possess the necessary skillsPossess the necessary skills
Exercise careExercise care
Use sound medical judgmentUse sound medical judgment
MEDICAL MALPRACTICE
It is the responsibility of every doctor to
practice medicine according to the
ethical standards of his profession
MEDICAL MALPRACTICE
Every member of the healthcare
team should follow the ethical
codes of their profession
MEDICAL MALPRACTICE
Ordinary prudent man
Reasonably competent
practitioner in the same class, acting in
similar circumstances.
MEDICAL MALPRACTICE
• DUTY
• BREACH
MEDICAL MALPRACTICE
• Bad or unskillful practice by a physician or other professional in which the health or welfare of the patient is injured.
• Failure of a professional to follow the accepted standards of practice of his profession.
MEDICAL MALPRACTICE
• Failure to diagnose or misdiagnosis.
• Failure to provide appropriate treatment.
• Unreasonable delay in treatment
MEDICAL MALPRACTICE
• DUTY• BREACH
• INJURY
MEDICAL MALPRACTICE
• DUTY• BREACH• INJURY
• PROXIMATE CAUSATION
MEDICAL MALPRACTICE
Proximate Causation
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.
MEDICAL MALPRACTICE
Failure to adhere to Failure to adhere to the standard of carethe standard of care
INJURY
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
““But for” the But for” the physician’s conduct physician’s conduct the patient would the patient would
not have been not have been injured.injured.
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
Doctrine of Res Ipsa
Loquitor -
“The thing speaks for
itself”
The fact of occurrence of
injury raises the
presumption of negligence.
Doctrine of Res Ipsa
Loquitor -
1.The patient was injured in a manner that would not normally occur but for a breach of the applicable standard of care;
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
Doctrine of Res Ipsa
Loquitor -
2.He was injured by an agency or instrumentality within the exclusive control of the defendant;
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
Doctrine of Res Ipsa Loquitor -
3. Other possible causes are sufficiently eliminated by the evidence such that the jury could reasonably conclude that the negligence was, more probably than not, that of the defendant.
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
Doctrine of Vicarious Liability
-
Liability for the tort of
another
Secondary or indirect
liability
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
Doctrine of Vicarious Liability
-
Employer becomes liable for
the acts of an employee
Employee must be acting
within the scope of their
responsibilities
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
Doctrine of Vicarious
Liability
Employer – Employee
relationship must exist and
proven.
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
“Captain of the Ship”
Doctrine
Assumes that the doctor is
in complete control of
everything and everyone in
the OR.
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
“Captain of the Ship”
Doctrine
Largely abandoned in
other jurisdictions.
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
“Borrowed Servant”
Doctrine
The physician “borrows” the
nurses, med tech, residents
etc. employed by the
hospital to help him provide
medical care to his patients.
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
Doctrine of Apparent Authority
Or Ostensible Agent
- Fixes liability when there is no Employer-Employee
relationship
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
Doctrine of Apparent Authority
Or Ostensible Agent
1. The principal holds itself out to the public as a provider of medical services through advertising or by an express representation.
MEDICAL MEDICAL MALPRACTICEMALPRACTICE
Doctrine of Apparent Authority
Or Ostensible Agent
2. The patient “looked” to the hospital to provide competent medical care.
MEDICAL MALPRACTICE
Is a Hospital Liable
for Medical
Malpractice?
NO
MEDICAL MALPRACTICE
RAMOS vs. COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER, ET. AL
April 11, 2002
MEDICAL MALPRACTICE
No Employee-Employer relationship between
Drs. Hosaka and Gutierrez and De Los
Santos Medical Center
MEDICAL MALPRACTICE
Drs. Hosaka and Gutierrez are solely liable for their own
negligent acts
MEDICAL MALPRACTICE
Is a Hospital Liable
for Medical
Malpractice?
YES
MEDICAL MALPRACTICE
Rogelio P. Nogales, et. al.vs.
Capitol Medical Center, et. al.
December 19 2006
MEDICAL MALPRACTICE
Doctrine of Apparent Authority
1. Plaintiff was led to believe that the negligent person was an employee or agent of the hospital – Appearance of authority
MEDICAL MALPRACTICE
Doctrine of Apparent Authority
2. The hospital knew that the person was claiming to be an agent/employee of the hospital
3. The person relied upon the conduct of the hospital
MEDICAL MALPRACTICE
• CMC granted hospital privileges to Dr. Estrada
• On admission, consent forms were printed on CMC letterhead
• The spouses Nogales were not informed that Dr. Estrada was an independent contractor
MEDICAL MALPRACTICE
• Mr. & Mrs. Nogales chose Dr. Estrada because of his affiliation/employment with CMC which they characterized as a reputable hospital
MEDICAL MALPRACTICE
PROFESSIONAL SERVICES, INC. vs. AGANA
AGANA vs. JUAN FUENTES
AMPIL vs. AGANA
JANUARY 31, 2007
MEDICAL MALPRACTICE
PSI’s (Medical City Hospital) liability is based on:
Doctrine of Apparent Authority
Doctrine of Corporate Negligence
MEDICAL MALPRACTICE
Doctrine of Apparent Authority
By accrediting Dr. Ampil & Dr.
Fuentes and publicly
advertising their qualifications
the hospital created the
impression that they were its
agents.
MEDICAL MALPRACTICE
Doctrine of Corporate Negligence
The hospital is liable if it fails
to uphold the proper
standard of care owed the
patient, which is to ensure
the patient’s safety and well-
being while at the hospital.
MEDICAL MALPRACTICE
Doctrine of Corporate Negligence
The duty of providing quality medical
service is no longer the sole prerogative
and responsibility of the physician.
Hospitals now tend to organize a highly
professional medical staff whose
competence and performance need to be
monitored by the hospitals commensurate
with their inherent responsibility to
provide quality medical care.
MEDICAL MALPRACTICE
Duty of a hospital
1)the use of reasonable care in the maintenance of safe and adequate facilities and equipment;
2)the selection and retention of competent physicians;
MEDICAL MALPRACTICE
Duty of a hospital
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
MEDICAL MALPRACTICE
QUESTIONABLE SPONGE COUNT
SCRUB NURSE’ DUTY
HOSPITAL LIABILITY
MEDICAL MALPRACTICE
CHARITABLE, NON-PROFIT INSTITUTION
CORPORATE ENTERPRISE
MEDICAL MALPRACTICE
• Criminal prosecution
• Civil suit
• Administrative complaint
MEDICAL MALPRACTICECriminal Prosecution under the
Revised Penal Code
Art. 365 – Reckless Imprudence/Gross negligence
resulting in Serious Physical Injuries Less Serious Physical Injuries Homicide
MEDICAL MALPRACTICE
Distinguish Art. 365 from
other provisions of the
Revised Penal Code and
other laws which makes
certain acts criminal.
MEDICAL MALPRACTICE
Art. 173, RPC – False Medical
Certificates
Art. 253, RPC – Giving assistance to
suicide
Art. 259,RPC – Abortion practiced by a
physician or midwife
and dispensing of
abortives.
MEDICAL MALPRACTICE
Sec. 17, RA 9165 – Maintenance and keeping of original
records of transactions
Sec. 18, RA 9165 – Unnecessary Prescription of Dangerous Drugs
MEDICAL MALPRACTICE
Civil Suit for Negligence
Civil Code – Art. 2176 – Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done.
MEDICAL MALPRACTICE
Administrative LiabilityAdministrative Liability
Complaint for Complaint for Negligence before the Negligence before the
Professional Regulation Professional Regulation CommissionCommission
THANK YOU
AND
HAVE A NICE WEEKEND!