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Estrada, Gian Legal Medicine

Valdez, Maria Yanily Ann R. Dr. Joey Montemayor

Medical Malpractice: An Overview

What is Legal medicine?

Branch of medicine that deals with the application of medical knowledge to the
purposes of law and in the administration of justice

What constitutes the practice of medicine?

The practice of medicine in the Philippines is governed by the Medical Act of

1959. It says that a person shall be considered as engaged in the practice of medicine:

(a) [W]ho 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) [I]maginary, regardless of the nature of the remedy or treatment administered,

prescribed or recommended; or

(c) [W]ho 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

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(d) [W]ho shall use the title M.D. after his name.
In Board of Medicine v. Ota1, the Supreme Court held that a foreigner may be
granted license to practice medicine in the Philippines so long as it can be shown that he
possesses all of the qualifications and none of the disqualifications required by law for the
practice of the medicine

Who are exempted?

Section 11 of the Medical Act of 1959 also provides the of lists exemptions as
mentioned in the above section to wit:

(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;

(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.

1 Board of Medicine v. Ota, G.R. No. 166097, 558 SCRA 234, Jul. 14, 2018

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Diligence required

Extra Ordinary Diligence

In the case of Reyes vs. Sisters of Mercy Hospital2, there is no doubt that a
physician-patient relationship existed between respondent doctors and Jorge Reyes.
Respondents were thus 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. It is breach of
this duty which 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. In as much 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.

Definition of malpractice and negligence

Medical Malpractice

It is a particular form of negligence which consists in the failure of the physicians

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

Medical Negligence
An act or omission by a health care provider which deviates from accepted
standards of practice in the medical community and which causes injury to the patient.

2 G.R. No. 130547 (October 3, 2000)

Pineda, Torts and Damages, 2009

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What are the elements of medical malpractice/negligence?

1. Duty to the patient

In Carillo v. People4, the duty of a physician has been said to include the duty to
“serve the interest of his patient with the greatest of solicitude, giving them always his best
talent and skill.” This doctrine tempered in various cases such the case of Reyes v. Sisters of
Mercy Hospital5 which lays down the current standard, which is “not what is actually 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 the ordinarily good physicians.”
Another case decided by the Supreme Court to determine whether or not a physician is guilty
of actionable malpractice is enunciated in Cruz v. Court of Appeals in this wise: “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.”6

2. Breach
Also in the case of Cruz v. Court of Appeals, the Supreme Court has ruled that
the following acts constitute breaches of duty of a physician: inadequacy of facilities, lack of
provisions, untidiness of the clinic and failure to conduct pre-operation tests on the patient;7
the act of seeing the patient for the first time only an hour before the scheduled operative
procedure8; scheduling another procedure in a different hospital thirty minutes apart from the
patient’s scheduled operation causing the surgeon to be over three hours late for the

G.R. No. 86890, 229 SCRA 386, Jan. 21, 1994
Reyes, 396 Phil. 87, 104, Oct. 3, 2000.
Cruz, 346 Phil. 872, 883, Nov. 18, 1997.

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procedure9; leaving of sponges or other foreign objects in the wound after the incision has been
closed10; and failure to consider the patient’s high blood sugar and subjecting the patient to an
evaluative procedure which caused the patient’s death due to complications from diabetes11.

3. Injury
The failure to adhere with the standard of care would tantamount to injury.

4. Proximate Cause
Causation of the act of the medical practitioner leading to the injury must be
proven within a reasonable medical probability and based upon competent expert testimony. If
the medical practitioner’s negligence is not the immediate cause of the injury, he may still be
held liable if it is proven by a preponderance of evidence that the act or omission complained of
is the proximate cause of the injury suffered by the plaintiff12. Proximate cause, 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 occurred13. In the case of
Cayao-Lasam v. Ramolete14 illustrated the element of proximate cause as applied to cases of
medical malpractice.

Professional Services, Inc. v. Agana, G.R. No. 126927 (hereinafter “Professional Services, Inc.”), 513 SCRA 478, Jan. 31, 2007; Batiquin, 327
Phil. 965, 968, Jul. 5, 1996
Flores, 571 SCRA 83, 91, Nov. 14, 2008.
Flores, 571 SCRA 83, 99, Nov. 14, 2008.
Vda. de Bataclan v. Medina, 102 Phil. 181, 186 (1957).
Cayao-Lasam v. Ramolete 574 SCRA 439, 458, Dec. 18, 2008, Facts: On July 28, 1994, respondent 3 months pregnant Editha Ramolete was
brought to Lorma Medical Center (LMC) in San Fernando, La Union due to vaginal bleeding upon advise of petitioner related via telephone,
Editha was admitted to the LMC on the same day. A pelvic sonogram was then conducted on Editha revealing the fetus weak cardiac pulsation.
The following day, Editha repeat pelvic sonogram showed that aside from the fetus weak cardiac pulsation, no fetal movement was also
appreciated. Due to persistent and profuse vaginal bleeding, petitioner advised her to undergo a D&C procedure. She was discharged the
following day. On September 16, 1994, Editha was once gain brought at the LMC, as she was suffering from vomiting ans severe abdominal
pains. Editha was attended by Drs. Dela Cruz, Mayo and Komiya. Dr. Mayo allegedly informed Editha that there was a dead fetus in the latter’s
womb, after Editha went laparectomy, she was found to have massive intra-abdominal hemorrhage and ruptured uterus. Thus, she had to go
hysterectomy and as a result no more chance to bear a child. Issue: Whether or not petitioner is liable for medical malpractice.Held: No.
Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practices of
medicine that degree of care and skill which is ordinarily employed by the profession generally under similar conditions, and in like surrounding

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Difference between Malpractice and Negligence
Malpractice Negligence

Definition: Failure to provide services of the Failure to exercise the care that a
professionals as per standards set by reasonably prudent person would
the governing body. exercise in like circumstances.
Intentional?: Yes either intentional or unintentional.
Cases filed in: Civil Courts Civil Courts
Criteria for proving Duty, Breach, Causation and Damages Duty, Breach, Causation and
the case: Damages

The first case to equate medical malpractice with “medical negligence” was
Garcia-Rueda v. Pascasio15. This was followed by Cruz v. Court of Appeals16. This
notwithstanding, there is nothing in our law that restricts actionable medical malpractice to
acts of negligence. In fact, our laws on the practice of medicine, particularly the Medical Act17
as well as the Code of Ethics of the Medical Profession provide for numerous acts and grounds
constituting actionable malpractice.

circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something
which a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient. There are
four elements involved in medical negligence cases: duty, breach, injury, and proximate cause. A physician-patient relationship was created
when Editha employed the services of the petitioner. As Editha’s physician, petitioner was 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’s 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, in as much 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 suspect the conclusion as to causation.It is undisputed
that Editha did not return for follow-up evaluation, in defiance of the petitioners advice. This is as found out is the proximate cause of the injury
she sustained.

G.R. No. 118141 (hereinafter “Garcia-Rueda”), 344 Phil. 323, Sep. 5, 1997
Cruz, 346 Phil. 872, 876, Nov. 18, 1997
See Medical Act, §§24, 28.

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Legal principles and doctrines applied in medical malpractice cases

1. Doctrine of Res Ipsa Loquitor

“The thing speaks for itself”
The fact of occurrence of injury raises the presumption of negligence. The
patient was injured in a manner that would not normally occur but for a breach of the
applicable standard of care. This doctrine, as cited in Ramos v. Court of Appeals18 implies that
the injury to the patient therein was one which does not ordinarily take place in the absence of

2. Captain-of-the-Ship Doctrine

The “Captain-of-the-Ship” doctrine is defined as “the doctrine imposing liability

on a surgeon for the actions of assistants who are under the surgeon's control but who are
employees of the hospital, not the surgeon.”
This doctrine was introduced in Philippine jurisprudence in Ramos v. Court of
Appeals19 where a surgeon was held liable after a woman who was scheduled for a standard
cholecystectomy20 suffered irreparable brain damage due to the negligence of the
anesthesiologist. The Supreme Court declared that a surgeon, as the so-called “captain of the
ship”, has the responsibility to see to it that those under him perform their task in the proper
manner21 which necessarily transcends physical presence. The “Captain-of-the-Ship” doctrine
was later cited in the cases of Professional Services, Inc. v. Agana22 and Cantre v. Go23 thus,
solidifying its application Philippine medical malpractice law. In Cantre, the Supreme Court
extended the application of the doctrine to include instruments within the exclusive control of
the physician. It was held that surgeon’s control over the assistants inside the operating room

G.R. No. 124354
Professional Services Inc., 513 SCRA 478, Jan. 31, 2007
surgical excision of the gall bladder
Ramos v. Court of Appeals (Decision), at 1239
Professional Services Inc., 513 SCRA 478, Jan. 31, 2007
Cantre, 522 SCRA 547, 556, Apr. 27, 2007

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also translates to exclusive control over the instruments operated by the same assistants
making any injury caused thereby, directly imputable on the surgeon

3. Borrowed Servant Doctrine

Ordinarily, resident physicians, nurses and other personnel of the hospital are
employees or servants of the hospital. In some instances, they are under the temporary
supervision and control of another other than their employer while performing their duties. By
fiction of law, they are deemed borrowed from the hospital by someone and for any wrongful
act committed by them during the period, their temporary employer must be held liable for the
discharge of their acts and duties. In the determination whether one is a borrowed servant, it is
necessary that he is not only subjected to the control of another with regard to the work done
and the manner of performing it but also that the work to be done is for the benefit of the
temporary employer.

In the case of Nogales V Capitol Medical Center24, on the liability of the other
respondents, the Court of Appeals applied the "borrowed servant" doctrine considering that Dr.
Estrada was an independent contractor who was merely exercising hospital privileges. This
doctrine provides that once the surgeon enters the operating room and takes charge of the
proceedings, the acts or omissions of operating room personnel, and any negligence associated
with such acts or omissions, are imputable to the surgeon. While the assisting physicians and
nurses may be employed by the hospital, or engaged by the patient, they normally become the
temporary servants or agents of the surgeon in charge while the operation is in progress, and
liability may be imposed upon the surgeon for their negligent acts under the doctrine of
respondeat superior

4. Vicarious Liability of an Employer under art. 2180 of the Civil Code

The landmark case of Ramos v. Court of Appeals erased all doubts as to whether
there can be an employer-employee relationship between hospitals and doctors. The very
words of the Supreme Court were of the following tenor:

G.R. No. 142625, December 19, 2006

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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

As such, a hospital can be held liable for the negligence of its doctor-employee
based on Art. 2180 of the Civil Code which considers a person accountable not only for his own
acts but also for those of others based on the former’s responsibility under a relationship of
patria potestas.

5. Vicarious Liability under the Doctrine of Apparent Authority

The doctrine of apparent authority, also known as “holding out theory” or

doctrine of ostensible agency or agency by estoppel, is a means of imposing liability not based
on contract but based on principle of estoppel. The doctrine of apparent authority was
introduced to medical malpractice actions in the case of Nogales v. Capitol Medical Center26.

In that case the Supreme Court adopted the rationale of the Illinois Supreme
Court in the case of Gilbert v. Sycamore Municipal Hospital. To apply the doctrine of apparent
authority, the Court in Nogales laid down test to determine the liability of a hospital through
the acts of an independent contractor-physician.
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. In the instant case, CMC impliedly held
out Dr. Estrada as a member of its medical staff. Through CMC's acts, CMC clothed Dr. Estrada with

Ramos v. Court of Appeals (Decision), at 1240-41 (emphasis supplied, citations omitted).
Nogales, 511 SCRA 204, 230, December 19, 2006

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apparent authority thereby leading the Spouses Nogales to believe that Dr. Estrada was an employee or
agent of CMC.

6. The Doctrine of Corporate Negligence

The doctrine of corporate negligence was introduced in the landmark case of

Professional Services, Inc., v. Agana27. It involved no less than the medical giant, Medical City
General Hospital, one of the country‟s biggest and most successful hospitals28. The case was a
complaint for damages filed by the Enrique Agana and Natividad Agana (later substituted by her
heirs) against Dr. Miguel Ampil and Dr. Juan Fuentes for the injuries suffered by Natividad when
Dr. Ampil and Dr. Fuentes neglected to remove from her body, two gauzes which were used in
a hysterectomy performed on April 11, 1984 at the Medical City General Hospital.
Under the doctrine of corporate negligence, the hospital owes a direct duty to its
patients to its patients to ensure their safety and well-being while at the hospital.29 In Philippine
jurisdiction, this has been translated as the “duty to exercise reasonable care to protect from
harm all patients admitted into its facility for medical treatment.”30 It has been also defined as a
direct theory of liability against a hospital, which contemplates some form of systemic
negligence by hospital, not simply a vicarious theory of liability based on the negligence of its
The doctrine of corporate negligence has been described as “broader than the
concept of negligent credentialing in that corporate negligence includes acts of direct hospital
negligence, such as negligence in supervising patient care or in failing to enforce hospital
guidelines regarding patient care.”32

Professional Services Inc., 513 SCRA 478, Jan. 31, 2007.
See The Medical City “The Capital of Health” available at: (last visited
on March 18, 2010).
40A Am. Jur. 2d §26 citing Stroud v. Abington Memorial Hospital, 546 F. Supp. 2d 238 (E.D. Pa. 2008)
Professional Services, Inc., 513 SCRA 478, 505, Jan. 31, 2007
40A Am. Jur. §26 citing Stroud v. Abington Memorial Hospital, 546 F. Supp. 2d 238 (E.D. Pa. 2008); Pastore v. Samson, 900 A.2d 1067 (R.I.
40A Am. Jur. 2d §26 citing Larson v. Wasemiller, 738 N.W.2d 300 (Minn. 2007).

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What suits to file?

Criminal Prosecution under the Revised Penal Code

Art. 365 – Reckless Imprudence/Gross negligence resulting in

- Serious Physical Injuries
- Less Serious Physical Injuries
- Homicide
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 abortive
Sec. 17, RA 9165 –Maintenance and keeping of original records of transactions
Sec. 18, RA 9165 –Unnecessary Prescription of Dangerous Drugs

Civil Suit for Negligence

Art. 2176, Civil Code – Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done

Administrative Liability
Complaint for Negligence before the Professional Regulation Commission

Available defenses
• House Bill 226 – Remedy of both patient and doctor
• Senate Bill 743 – Safety of patient
• Senate Bill 1720 – Anti-medical malpractice
• No integration

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