negligence and medical malpractice

NEGLIGENCE&

MEDICAL MALPRACTICE

ATTY. MALAYA M. CAPULONG, MD

NEGLIGENCENEGLIGENCE

Negligence – want of care

required by the

circumstances.


Negligence is the failure

to observe that degree of

care, precaution and

vigilance which the

circumstances justly

demand resulting in injury

to another person.


The existence of

negligence is determined

by the behavior of the

person in the situation.


How do we determine if a

person acted in a

negligent manner?

What is the standard of

care?


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


““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.


Doctrine of Res Ipsa

Loquitor -

“The thing speaks for

itself”

The fact of occurrence of

injury raises the

presumption of negligence.


Loquitor -

1.The patient was injured in a manner that would not normally occur but for a breach of the applicable standard of care;



Loquitor -

2.He was injured by an agency or instrumentality within the exclusive control of the defendant;



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.


Doctrine of Vicarious Liability

-

Liability for the tort of

another

Secondary or indirect

liability


Doctrine of Vicarious Liability

-

Employer becomes liable for

the acts of an employee

Employee must be acting

within the scope of their

responsibilities


Doctrine of Vicarious

Liability

Employer – Employee

relationship must exist and

proven.


“Captain of the Ship”

Doctrine

Assumes that the doctor is

in complete control of

everything and everyone in

the OR.


“Captain of the Ship”

Doctrine

Largely abandoned in

other jurisdictions.


“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.


Doctrine of Apparent Authority

Or Ostensible Agent

- Fixes liability when there is no Employer-Employee

relationship



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.



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


1. Plaintiff was led to believe that the negligent person was an employee or agent of the hospital – Appearance of authority

MEDICAL MALPRACTICE


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 Corporate Negligence

MEDICAL MALPRACTICE


By accrediting Dr. Ampil & Dr.

Fuentes and publicly

advertising their qualifications

the hospital created the

impression that they were its

agents.

MEDICAL MALPRACTICE


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


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!

negligence and medical malpractice

Documents

medical knowledge

medical malpracticefailure

medical malpractice

degree of care

presumption of negligence

similar circumstances

ethical standards

unskillful practice