TORTS AND DAMAGES – MIDTERMS

CHAPTER 4 – MALPRACTICE
THREE REQUISITES FOR LIABILITY FOR QUASI-DELICT (ADC)
1. An act or omission constituting fault or negligence;
2. Damage suffered by the injured party;
3. Causal relation between the damage and the act or omission.
FOUR ESSENTIAL REQUISITES INVOLVING MEDICAL MALPRACTICE (DBIP)
1. Duty
2. Breach
3. Injury
4. 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. Doctors
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 circumstance. What is to be determined in the discussion of duty of
the defendant doctor is the first element of quasi-delict: an act or omission constituting fault or
negligence.
TWO FORMS OF DUTY OF CARE
a. A duty to render a quality of care consonant with the level of medical and practical knowledge the
physician may reasonably expected to possess and the medical judgment he may expected to exercise
b. The duty based upon adept use of such medical facilities, services and equipment and options as are
reasonably available
Neighborhood Rule
- 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 line of practice ordinarily
possess and exercise in like cases.
Res Ipsa Loquitor (Requisites)
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
3. the possibility of contributing negligence which would make the plaintiff responsible is eliminated

Lost Chance Rule

- the lost of chance of achieving a favorable outcome or of avoiding an adverse consequence should be
compensable and should be valued approximately, rather than treated as all-or-nothing proposition

Doctrine of Informed Consent

- unless excused, the doctor must secure the consent of his patient to a particular treatment or an investigative
procedure. The test therefore for determining whether potential peril must be divulged is its materiality to the
patient’s decision.

Elements in Doctrine of Informed Consent

1. the physician had a duty to disclose material risks

2. the physician failed to disclose or inadequately disclose 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

Two Types of Causation (Lack of Informed Consent)

1. adequate disclosure would have caused the plaintiff to decline the treatment
2. the treatment proximately caused injury to the plaintiff

Professional Disclosure Standard

- a charge of failure to disclose should be judged by the standards of the reasonable medical practitioner

Reasonable Patient Standard

- the test is one of materiality. The test for determining whether a particular peril must be divulged is its
materiality to the patient’s decision: all risk potentially affecting the decision must be unmasked. Under this
standard, adequate disclosure “required the physician to discuss the nature of the proposed treatment,
whether it was necessary, or merely elective, the risks, and the available alternatives and their risks and
benefits

Captain of the Ship Doctrine

- under this doctrine, the surgeon is likened to a ship captain who must not only be responsible for the safety of
the crew but also of the passengers of the vessel. The head surgeon is made responsible for everything that
goes wrong within the four corners of the operating room.

Principle of Apparent Authority

- is based on the concept of estoppel, thus, it prevents the principal from denying the existence of agency to a
third party, provided that a representation, as to the agent's authority, has been made by him to the third party
either through his words or by his actions.
-even when no employment relationship exist 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

Doctrine of Corporate Liability

- 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.

Corporate Negligence Doctrine

-a hospital conducted for private gain is under a duty to exercise ordinary care in furnishing its patients
a suitable and safe place. If an unsafe condition of the hospital’s premises causes an injury, there is a
breach of the hospital’s duty

1. to use reasonable care in the maintenance of safe and adequate facilities and equipment
2. to select and retain only competent physicians
3. to oversee as to patient care all persons who practice medicine within its walls
4. to formulate, adopt and enforce adequate rules and policies to ensure quality care for its patients

Medical Error
- is a preventable event that may cause or lead to inappropriate use or patient harm while the
medication is in the control of the health care professional, patient or consumer

Order Processing Error (Pharmacy)

- such as the dispensing of wrong drug, or the right drug in the wrong strength, or the labelling of
correct medication with incorrect direction

CHAPTER 6: DEFENSES IN NEGLIGENCE CASES

I. PLAINTIFF’S CONDUCT

The victim of negligence is likewise required to exercise due care in avoiding injury to himself. He ought to
conform to the standard of a reasonable man for his own protection.

Article 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.

2. CONTRIBUTORY NEGLIGENCE
 If the plaintiff’s negligence is merely contributory, the plaintiff is not barred from recovering from the
defendant.
 In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may
recover (Art. 2179, NCC).
 a. COMPARATIVE NEGLIGENCE RULE
 Includes any rule under which the relative degree of negligence of the parties is considered in
determining whether, and to what degree, either should be responsible for his negligence.
 Involves apportionment of damages.
 Under the NCC, this doctrine does not completely bar recovery but merely mitigates the same.
 Definition of Contributory Negligence – Conduct on the part of the injured party, contributing as a
legal cause to the harm he has suffered, which falls below the standard to which he is required to
conform for his own protection.

b. TEST OF NEGLIGENCE: FORSEEABILITY

 There is contributory negligence when the party’s act showed lack of ordinary care and foresight that
such act could cause him harm or put his life in danger.

2.01. IMPUTED CONTRIBUTORY NEGLIGENCE

 Negligence is imputed if the actor is different from the person who is being made liable.
 The defendant will be subject to mitigated liability even if the plaintiff was not himself personally
negligent but because the negligence of another is imputed to the plaintiff.
 Applicable where the negligence was on the part of the person for whom the plaintiff is responsible, and
especially, by negligence of an associate in the transaction where he was injured.
 “The law imputes to the master the act of the servant, and if that act is negligent or wrongful and
proximately results in injury to a third person, the negligence or wrongful conduct is the negligence or
wrongful conduct of the master, for which he is liable.” (Phil. Commercial International Bank, et.al v.
Court of Appeals

a. IMPUTED NEGLIGENCE TO PLAINTIFF AS PROXIMATE CAUSE

 “If the master is injured by the negligence of a third person and by the concurring negligence of his own
servant or agent, the latter’s negligence is imputed to his superior and will defeat the superior’s claim
against the third person if the negligence is the proximate cause.” Ramos v. COL Realty Corp.

3. VIOLATION OF STATUTE BY THE VICTIM OR HIS AGENT

 Generally treated as negligence per se.
 Effect of such violation would depend on whether the same is 1) merely contributory negligence, or 2)
the proximate cause of the loss, or 3) neither contributory nor the proximate cause of the loss.

a. NEITHER CONTRIBUTORY NEGLIGENCE NOR PROXIMATE CAUSE

 The violation of a statute is not sufficient to hold that the violation was the proximate cause of the injury,
unless the very injury that happened was precisely what was intended to be prevented by the statute.
 There must be proof of causation.

4. ASSUMPTION OF RISK
4.01. REQUISITES:
1. Plaintiff must know that the risk is present;
2. He must further understand its nature;
3. His choice to incur it is free and voluntary – In relation to this, it has been held that the plaintiff is
excused from the force of the rule if an emergency is found to exist or if the life or property of another is
in peril or when he seeks to rescue his endangered property.

4.02. KINDS:
a. EXPRESS WAIVER OF THE RIGHT TO RECOVER
EXPRESS CONSENT PERSPECTIVE
 There is assumption of risk if the plaintiff, in advance, has expressly waived his right to recover
damages for the negligent act of the defendant.
 The plaintiff has given his express consent to relieve the defendant of an obligation of conduct toward
him, and to take his chances of injury from a known risk arising from what the defendant has to do or
leave undone.
 Has been ruled by the Supreme Court in Pleansantville Development Corp v. CA to be contrary to
public policy and cannot be allowed.
 Can only be valid if made AFTER the cause of action accrued, and may be construed as a condonation
of the obligation.
 In a contract of private carriage, it is legally acceptable for the parties to expressly stipulate that the
goods are at the shipper’s risk.
 FREE AND HARMLESS CLAUSE: A contract which stipulates that one party holds the other free and
harmless from any claim of third persons. Injured third persons are not bound.
 FUTURE FRAUD: Waiver of the right to recover damages is void.

b. IMPLIED ASSUMPTION
  DANGEROUS CONDITIONS: If the person knowingly volunteers to assume the risk of such dangerous
condition, he may not recover from the defendant who maintained such dangerous conditions.
 CONTRACTUAL RELATIONS: There is an implied assumption of risk, where the plaintiff, upon free
and voluntary entrance into a relationship where the negligence of the defendant is obvious, may be
found to accept and consent to it, and to undertake to look out for himself and to relieve the defendant
of the duty.
 DANGEROUS ACTIVITIES: Persons who voluntarily participate in dangerous activities assume the
risks which are usually present in such activities.
 DEFENDANT’S NEGLIGENCE: The plaintiff is aware of the risk created by the defendant’s negligence,
yet he voluntarily decided to proceed to encounter it.

II. FORTUITOUS EVENT

 An event which takes place by accident and could not have been foreseen.
 A person is not liable if the cause of damage was fortuitous (Art. 1174, NCC).
 May either be an act of God or natural occurences.

2. ELEMENTS:
1. The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with
his obligation, must be independent of the human will;
2. It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it
must be impossible to avoid;
3. The occurrence must be such as to render it impossible for the debtor to fulfil his obligation in a
normal manner;
4. The obligor must be free from any participation in the aggravation of the injury resulting to the
creditor.

a. EFFECT OF NEGLIGENCE
 The negligence of the defendant which concurred with the fortuitous event or which resulted in the
aggravation of the injury of the plaintiff will make the defendant liable even if there was a fortuitous
event.

b. MITIGATION DUE TO FORTUITOUS EVENT

 Courts may equitably mitigate the damages if the loss, even in part, would have resulted in any event
because of the fortuitous event.

III. EFFECT OF DEATH OF DEFENDANT

1. DEATH NOT A DEFENSE

 Death of the defendant will not extinguish the obligation based on quasi-delict.
 Action survives even if the defendant dies during the pendency of the case if the said case is an action
to recover for an injury to persons or property by reason of tort.
 The case will continue through the legal representative who will substitute the deceased.
 ROC Provision: The counsel’s duty includes the duty to inform the court within 30 days after such death
of the fact thereof, and to give the name and address of the defendant’s legal representative/s. Failure
shall be a ground for disciplinary action.

IV. PRESCRIPTION
 Quasi-delict: 4 years from the date of the accident.
 The right of action accrues when there exists a cause of action, which consists of three elements:
1. A right in favour of the plaintiff by whatever means and under whatever law it arises or is created;
2. An obligation on the part of the defendant to respect such right;
3. An act/omission on the part of such defendant violative of the right of the plaintiff.

2. DOCTRINE OF RELATONS OR RELATIONS BACK DOCTRINE

 The doctrine should be applied where the injury was discovered long after the accident.
 The offended party should not be prejudiced in such case and the prescriptive period should
commence to run only upon discovery of the accident.

3. EFFECT OF PRESCRIPTION ON OTHER SOURCES OF OBLIGATION

 The prescription of the ex quasi delicto or quasi-delict does not operate as a bar to an action to enforce
the civil liability arising from the crime.
 V. INVOLUNTARINESS

 Contracts: Force and intimidation result in vitiated consent and the resulting contract is considered
voidable.
 RPC: The person acting because of the force or intimidation employed upon him is subsidiarily liable to
the offended party, but liability is not based on negligence but may be classified as a strict liability.
 AS A COMPLETE DEFENSE: Believed to be complete in quasi-delict cases, and the defendant
therefore is not liable if force was exerted on him.

CHAPTER 7: CAUSATION

 There must be a causal link between the defendant’s conduct and the plaintiff’s loss. Hence, without proof
of causation, the action for damages based on tort fails.

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 occurred.

 Not necessarily the last link in the chain of events but that which is the procuring efficient and predominant
cause.
 Not necessarily the sole cause of the accident.
 Element of foreseeability is immaterial: Because the actor is liable for damages which resulted from his
acts, whether the same is foreseen or unforeseen.
 READ Rodrigueza vs Manila Railroad Comp case pg 303

REMOTE CAUSE
 cause which some independent force merely took advantage of to accomplish something not the natural
effect thereof.

CONCURRENT CAUSE
 The concurrent negligent acts or omission of two or more persons, although acting independently, are in
combination the direct and proximate case of a single injury to a third person.
 Rationale: because it is impossible to determine what proportion each contributed to the injury.
 Hence, the joint tortfeasors are solidarily liable
 Art 2179 NCC: plaintiff cannot recover if his negligent act or omission is the proximate cause of his damage
or injury.

TEST OF PROXIMATE CAUSE

1. CAUSE-IN-FACT TEST
 it is necessary that there be proof that defendant's conduct is a factor in causing plaintiff's damage
a. “BUT FOR” TEST OR SINE QUA NON TEST
 defendant's conduct is the cause in fact of the injury under this test if the damage would not have
resulted had there been negligence on the part of the defendant.
 This is the test commonly applied in Philippine jurisdiction
b. “SUBSTANTIAL FACTOR TEST”
 the causes set in motion by the defendant must continue until the moment of the damage or at least
down the setting in motion of the final active injurious force which immediately produced or preceded
the damage.
 Important in cases where there are concurrent causes
c. “NESS TEST”
 A modified “BUT FOR TEST”
 Under this test, the act or omission is the cause in fact if it is a necessary element of a sufficient set

2. POLICY TESTS
 if the damage or injury to the plaintiff is beyond the limit of the liability fixed by law, the defendant's conduct
cannot be considered the proximate cause of the damage
 Different policy tests: (FO-SHOP)
1) Foreseeability test;
 2) Natural and ordinary or direct consequences
test;
3) The substantial factor test;
4) Hindsight test;
5) Orbit of risk test; and
6) Natural and probable consequence test.

 Policy Test Divided Into 2 Groups: 1) Foresight perspective; and 2) Directness perspective

FORESIGHT PERSPECTIVE: the defendant is not liable for the unforeseeable consequences of his act. The
liability is limited within the risk created by the defendant’s negligent act
 foreseeablity test
 natural and probable consequences test
 natural and ordinary or direct consequences test

DIRECTNESS PERSPECTIVE: those which follow in the sequence from the effect of the defendant’s act
makes the defendant liable for damages which are beyond the risk
 hindsight test
 orbit of risk test
 substantial factor test

 the definition of proximate cause which includes the element of foreseeability is not consistent with the
express provision of the New Civil Code (Art. 2202).

“natural and probable consequences of the act or omission complained for” (Art. 2202)

• involves 2 things: (Reyes & Puno)

a. causality
damage would not have resulted without the fault or negligence of the defendant
b. adequacy
the fault of the defendant would normally result in the damage suffered by the obligee
 moral damages & purely economic loss are recoverable under the Philippine jurisdiction on Torts cases.
Moreover, the defendant can also be made liable even to those who may be considered unforeseeable
plaintiffs.

CAUSE AND CONDITION

it is no longer practicable to distinguish between cause and condition (Phoenix Construction vs IAC)
• if no danger existed in the condition except because of the independent cause, such condition was not
the proximate cause
• if an independent negligent act or defective condition sets in the operation the circumstances which
result in the injury because the prior defective condition, such subsequent act or condition is the
proximate cause.
• Even if the defendant had only created a condition, he may be held liable for damages if such condition
resulted in harm to either person or property.
• Types of dangerous conditions
◦ inherently dangerous
▪ they retain their potential energy in full, even if they are stored or handled with utmost care.
◦ in a dangerous position
▪ like the case of Phoenix Construction vs. IAC
▪ includes cases where the object is placed in an unstable position where the application of small
force will permit the release of some greater force.
◦ defective products
▪ the thing itself is not supposed to be dangerous but it was negligently or erroneously produced
or constructed
▪ i.e defective buildings

EGG- SKULL OR THIN- SKULL RULE

The tortfeasor- defendant is liable even though the negligent act caused an injury that is greater than what is
usually experienced by a normal person because of a prior condition of the plaintiff.

EFFICIENT INTERVENING CAUSE

 • is one that destroys the causal connection between the negligent act and injury and thereby negatives
liability
• sometimes called novuc actus interviens
• there is no efficient intervening cause if the force created by the negligent act or omission have either:
1. remained active itself
2. created another force which remained
active until it directly caused the result
3. created a new active risk of being acted
upon by the active force that caused
the result.

• Equivalent to the pre-emptive cause referred to in the NESS test of Professor Wright
• the test for efficient intervening cause is found in the nature and manner in which it affects the
continuity of operation of the primary cause or the connection between it and the injury
• such intervening cause must be:
◦ new
◦ independent or one not under the control of the official wrongdoer
◦ one which by the exercise of reasonable foresight and diligence, he should have anticipated and
guarded against it
◦ it must break the continuity of causal connection between the original negligent act or omission and
the injury so that the former cannot be said to have been the efficient cause of the latter
• a cause is not an intervening cause if it is already in operation at the time the negligent act is
committed.
• Foreseeable intervening cause
◦ cannot be considered sufficient intervening causes.
• A medical treatment is an intervening cause

• the intervention of an unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer from
consequences of negligence, if such negligence directly and proximately cooperates with the
independent cause in the resulting injury.
◦ An unforeseen and unexpected act of a 3rd person may not be considered efficient intervening
cause of it is duplicative in nature or it merely aggravated the injury that resulted because of the
prior cause.

CONTRIBUTORY NEGLIGENCE
 conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered,
which falls below the standard to which he is required to conform for his own protection

• the reduction of the liability of the defendant cannot be more than 50% because such reduction by more
than 50% is no longer consistent with a finding that the defendant's negligence was the proximate
cause of the damage or injury
• if the defendant's negligence caused the injury but the plaintiff's negligence may have increased or
aggravated the resulting damage or injury, the liability of the defendant should also be mitigated.

LAST CLEAR CHANCE

• Requisites:
◦ Plaintiff was in a position of danger by his own negligence
◦ Defendant knew of such position of the plaintiff
◦ Defendant had the least clear chance to avoid the accident by exercise of ordinary care but failed to
exercise such last clear chance and
◦ Accident occurred as proximate cause of such failure

• Views:
◦ prevailing view
▪ the person who has the last fair chance to avoid the impending harm and fails to do so is
chargeable with the consequences, without reference to the prior negligence of the other party.
◦ minority view
 ▪ the doctrine is not applicable in the jurisdiction where the common law doctrine of contributory
negligence (which bars recovery) has been rejected

◦ 3rd view
▪ the rule of comparative negligence and last clear chance are not considered inconsistent in any
way
• cases where doctrine is applied
◦ the doctrine is being applied for the purpose of determining the proximate cause of the accident
◦ Picart vs. Smith; PBCom vs CA;
• cases where doctrine is inapplicable
a. when only the defendant was negligent
b. where the party charged is required to act instantaneously; or if the injury cannot be avoided by
the application of all means at hand
c. if the defendant's negligence is a concurrent cause and which was still in operation up to the
time the injury was inflicted. (joint tortfeasors or between defendants)
d. when plaintiff, a passenger, filed an action against a carrier based on contract
e. if the actor was not aware of the danger or risk brought about by prior fraud or negligent act