TORTS AND DAMAGES – MIDTERMS Lost Chance Rule
CHAPTER 4 – MALPRACTICE - the lost of chance of achieving a favorable
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
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