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Medical Jurisprudence: legal aspect of medical practice

 Licensure and regulatory laws


o Board of Medical Education: under CHED
 Standardization and regularization of medical education
 Chairman: Health Secretary or duly authorized rep
 Members
 Health Sec or representative
 Director, Bureau of Private Schools or rep
 Chairman, Board of Medicine or rep
 Rep of PMA
 Dean, COM, UP
 Representative of the Council of Deans of Phil Med Schools
 APMC representative
o PRC: under the Office of the President
 General supervision of all professions requiring examinations
o Board of Medicine: under PRC
 Created by the Medical Act of 1959 (RA 2382)
 Give examinations
 Supervise, control, and regulate the practice of medicine
 Admission to the practice of medicine
o At least 21 yo
o Passed the boards
o Holder of Certificate of Registration issued by Board of Medicine
 Who are qualified to practice medicine in the Philippines?
o See reviewer
 Physician-patient relationship
o Contractual
 Requisites
 Consent
 Object (medical service)
 May be expressed or implied
o Consensual and fiduciary (based on mutual trust)
 Liabilities of physicians:
o Administrative
 Cases heard in quasi-judicial bodies/administrative bodies (PRC,
DOLE, LTFRB)
 Penalty: temporary withdrawal of license or simple reprimand;
license may be revoked
 Number one cause of cases: Immorality
 Decision of BOM becomes final 30 days after date of promulgation
 BOM may reinstate physician after 2 years if physician has behaved
hehehe
 Should be filed by the proper party: someone who is prejudiced or in
danger of being prejudiced
 Any person
 Corporation
 Board itself (motu proprio)
 Respondent physician must be given a copy of the complaint within 5
days
 He shall be summoned within 5 days from filing
o Criminal
 Defined by existing laws
o Civil
 Physician should compensate patient for injury suffered
 Cause of action based on:
 Breach of contract
 Tort (quasi delict or breach of legal duty): legal wrongdoing
independent of contract
o Negligence: ground for revocation of license, criminal prosecution, and a
claim for civil damages
o Abortion:
 Reclusion temporal: if physician shall use violence upon the person
of the pregnant woman
 Prision mayor: if, without violence, he shall act without the consent
of the woman
 Prision correccional: if with the woman’s consent
 Elements of the crime
 Woman must be pregnant
 Offender must be a physician or midwife
 MD or midwife causes abortion
 MD or midwife took advantage of his scientific knowledge or
skill in procuring abortion
o Reckless imprudence: voluntary, without malice, doing or failing to do an
act from which material damage results by reason of inexcusable lack of
precaution on the part of the person performing or failing to perform such
act
o Simple imprudence: lack of precaution in cases in which the damage
impending to be caused is not immediate nor the danger clearly manifested
o Damages:
 Actual/compensatory: pecuniary
 Dano emergente: loss already suffered
 Lucro cesante: failure to receive benefit which would have pertained
to him
 i.e. loss of income due to inability to go to work
 Rights of a physician
o Inherent: may or may not be expressly granted but deemed to exist
 Right to choose patient (except in cases of emergency)
 MD is ethically, but not legally, bound
 Right to limit practice of his profession
 Right to avail of hospital services
 Right to determine the appropriate management procedure
 “Doctrine of Superior Knowledge”
o Incidental
 Right of way while responding to the call of emergency
 Right of exemption from execution of instruments and library
 Right to holder certain public or private offices which can only be
held by a physician
 Right of membership in medical societies
 Right to compensation
 Rights of a patient
o Right to give consent to diagnostic and treatment procedures
 Note: full disclosure does not require MD to inform px of every
possibility even if chances are remote
 Instances when consent is not necessary
 Emergency cases
 When law requires it (i.e. immunization)
 Forms
o Expressed
 Written
 Oral
o Implied
 Who can give consent
 Patient himself if he is of legal age and sound mind
o Emancipated minors
o During a lucid interval
o Consent of spouse not necessary if px is married
o Voidable – contracts agreed upon during a state of
drunkenness/hypnotic spell
 For minors (in order)
o Parents
 Father – decision prevails in cases of
disagreement in court unless indicated
o Grandparents
 Paternal
 Maternal
o Eldest sibling of legal age
o Guardians/teachers/professors/heads of orphanages or
institutions
o Court
o Note: minor may give consent himself regarding
necessities in life which include dwelling, clothing,
and medical attendance
 Minor may enter contract of medical service
with a physician if it will affect the
preservation of his life and health
 Consent not valid if procedure is not beneficial
 Minor may express refusal
 Consent may be granted by court but may
refuse elective operations that can be deferred
until the px reaches the age of majority
o Right to religious belief
 2 aspects
 Freedom to believe
 Freedom to act in accordance with one’s belief
o Not absolute, subject to the power of the state
o Right to privacy
 Examples of acts constituting invasion of privacy
 Physical intrusion at a time when px may rightfully expect to
be alone
 During tx – necessary personnel only
 Px waives right when he enters a charity training hospital:
does not imply that px may be subjected to discourteous,
immoral, or malicious liberties
 Not an invasion of privacy: publication of px’s state of health
when it is of public interest
o Right to disclosure of information
 Fraud – failure of disclosure
o Right to confidential information
 Exceptions of the confidentiality rule
 Disclosure necessary to serve the best interest of justice
o In criminal cases, MD may disclose info if it is
connected with a criminal act
 Disclosure will serve public health and safety
 Px waives to the confidential nature of such info
o Right to choose physicians
o Right of treatment
 All hospitals are required to render immediate emergency assistance
and to provide facilities and medicine within its capabilities
o Right to refuse necessary treatment
 MD is morally and ethically bound to exert all effort to persuade px
to give consent to tx procedure
 Px cannot refuse if procedure is mandated by law
 Review: Duties of Physicians according to Medical Ethics: page 39 of compiled Med
Juris-Legal Med Notes

Doctrines applied in Malpractice Cases

 Applicable doctrines in the determination of liability


o Doctrine of vicarious liability
 ‘secondary’ liability
 Doctrine of ostensible agent
 Ostensible agent: a person who has been given the
appearance of being an employee or acting (an agent) for
another (principal), which would make anyone dealing with
the ostensible agent reasonably believe he/she was an
employee or agent.
 MDs are usually employees but at the same time independent
contractors in the hospital; get a percentage of the fees paid
to the hospital; hospital may be held liable for their negligent
acts
 Example: a pathologist, aside from the salary from hospital,
has a percentage with every lab exam (physician-hospital
contract); px has a choice to choose a pathologist or have
the pathologist-on-duty as default (px-MD contract)
o Act of pathologist is an act of the hospital
o Hospital may be held liable
 Borrowed servant doctrine
 An employer of a borrowed employee, rather than being the
employee’s regular employer, is liable for the employee’s
actions that occur while the employee is under the control of
the temporary employer
 Surgeon-in-charge, resident MD, intern, nurse as ‘borrowed
servant’
 If action is performed under the direct action of MD-in-charge,
hospital is not liable
 Captain of the ship doctrine
 Example: during an operation, the surgeon-in-charge is liable
for all actions conducted during the operation
 Doctrine of imputed negligence or command responsibility
 Blame attribute to an individual not on the basis of his/her
conduct but because of the conduct of anther for which s/he
becomes legally responsible
 Requisites:
o Employee chosen by employer personally or through
another
o Service rendered in accordance with others (person
giving orders must have authority)
o Wrongful act was on occasion or by reason of
functions entrusted
 4-fold test proving existence of employee-employer
relationship
o Right to hire/select employees
o Payment of salaries or wages for services
o Power of dismissal or to impose discipline
o Power of control
 Example: jeepney driver went to a town fiesta without the
permission of the owner and bumped into a pedestrian on the
way; owner cannot be held responsible as he did not give
permission (‘ultra vires acts’ – act done without authority)
o Doctrine of res ipsa loquitur
 “the thing speaks for itself”
 Doctrine of common knowledge
 No need for expert testimony to find physician liable
 Requisites
 Accident would not occur without negligence
 Agency must be in control of the defendant
 There was no contributing conduct by the patient
 Example: MD held liable for medical equipment found inside the px’s
body
o Doctrine of contributory negligence
 Both parties are guilty of negligence
 Determine which of the 2 negligent acts is the proximate cause of
injury
 Doctrine of superior knowledge must be considered
 Example: px had an injury and was subjected to an ex-lap; px was
treated; px swam in a river a day after being discharged and unable
to comply with meds prescribed
o Doctrine of continuing negligence
 Involves prolonged management
 Failure to make periodic reassessment of patient’s condition
 Condition could have discovered had MD exercised due care and
diligence
o Doctrine of assumption of risk
 ‘violenti non fit injuria’ – presence of act of violence but no injury
resulted
 Px appraised of risks involving a procedure but waives rights
 If patient is injured, he is not regarded in law to be injured
o Doctrine of last clear chance
 ‘Who had the last clear chance to save the patient?’
 Example: even if /you had the ‘right of way’, as long as you
deliberately did not take the opportunity to avoid the accident, you
are liable
o Doctrine of foreseeability
 If due to unforeseen conditions, MD is not liable for injury
 Includes ‘force majeure’ cases which cannot be foreseen or if
foreseen, cannot be avoided
 MD must possess necessary knowledge and skill to anticipate
probable complications
o Fellow servant doctrine
 Bars or reduces the amount of money an injured employee could
recover against an employer if an injury was caused solely by the
negligence of a fellow emplpyee
 Employer was able to provide safe and suitable
tools/machinery
 Employer may be liable if negligent employee is unskilled, disabled,
drunken before or after he was hired
o Rescue doctrine
 Original wrongdoer is held liable if MD gets injured while treating a
victim of an accident
 Negligent person, together with the original wrongdoer, is held liable
is MD gets injured while treating a victim of an accident
 Tree fell on MD while treating a victim of accident, MD gets
injured, original wrongdoer and negligent tree cutter both
held liable
o Shared vs sole responsibility
 Was the negligent act caused by 2 or more persons acting
concurrently or successively?
 Were the 2 care givers independent practitioners caring for the same
patient?
 Was the independent practitioner able to observe the negligent act
or could have observed the negligent act had he exercised
diligence?
 Was the independent practitioner in a position to take affirmative
action to prevent the negligent acts of the other?
 Practice of defensive medicine
o Any act or omission on the part of MD that is motivated primarily by the
desire to avoid malpractice liability
 Negative defensive medicine
 Avoidance of performing hazardous procedures even if these
are essential for patients’ welfare
 Positive defensive medicine
 Unnecessary hospital admissions, diagnostic tests
 Excessive overtreatment
 Liabilities of hospitals
o Government/public hospitals
 Doctrine of immunity: hospital cannot be sued except when govt
consents
 Hospital is established to perform govt’l functions with duty
to preserve life and maintain health
o Private hospitals
 If charitable/voluntary/eleemosynary - cannot be liable as long as
evidence is provided indicating that authorities exercised due care
in selection of employees
 If hospital operates for profit – may be vicariously liable
o Contract of service vs contract of services
 Contract of service: if nurse/MD enters a contract with hospital to
render professional service, hospital has vicarious liability
 Contract of services: MD/nurse hired by px, patient has no liability
o Grounds for refusal to admit
 No vacancy
 Px is chronically ill
 Only convalescent care needed
 Illness is contagious and risk to others
o Detention of px for nonpayment of bill
 Deprivation of liberty
 Hospital and AP may be liable for slight illegal detention

Emergencies in Medical Practice

 Emergency: an unforeseen combination of circumstances which calls for immediate


action in orderto save life and limb, or to avoid permanent damage
 MD should administer at least first aid treatment
 MD should not treat another MD’s px except in cases of emergency
o MD should treat px’s immediate needs only
 If several MDs have been simultaneously called, first to arrive will be MD in charge
unless px has preference
 Abandonment of persons in danger and abandonment of one’s own victim
o Failure to assist any person wounded or dying in an uninhabited place
o Failure to assist another whom he has accidentally injured
o Penalized by arresto mayor
 1 month and 1 day to 6 months of imprisonment
 Standard of care in emergencies: cannot be strictly applied to MDs during cases of
emergency
o Action may be a mistake yet prudent
o MD is not guilty if he is compelled to act in an emergency
 Consent
o MD has right to act under theory of implied consent
o If px of legal age and sound mind refuses, he shall prevail even if there is
imminent danger to his life
 MD must persuade
o Conditions to be satisfied
 Px must be unconscious or unable to give valid consent
 Situation requires MD must act before consent can be obtained
 MD believes px will die or become seriously impaired unless a
procedure is performed
o If px ‘s guardian or parents refuse to give consent: MD must file court action
to compel parents/guardians to give consent or divest custody
o Px obliged by law to pay MD
 Who may attend to an emergency
o MD
o Med students
o Registered nurses
 Physician as witness
o Ordinary
 Requisites
 Must have organs and powers of perception
 Perception may be imparted to others
 Disqualifications
 Husband against wife and vice versa except with consent of
the other or cases by one against the other
 Descendant against ascendant
 Compelled to attend
o Expert
 Has capacity to draw inference from facts which court is unable to
do
 May offer opinion
 Underwent special training to deduce correct inference
 Cannot be compelled to attend
 Not privileged communication
o Px is examined by a court-ordered MD (no MD-px relationship)
o Info obtained by nurse if MD was not present
o MD performing autopsy on a person who was not his px
o Info obtained by a technician
o If public safety demands it
o Note: privilege applies even after the px’s death
 Waiver of privilege
o Expressed
o Implied
 If px posts on social media confidential info that he provided to his
MD
 Hearsay evidence: not admissible
o Exception: dying declaration
 Requisites for admissibility:
 Must concern cause and circumstances of declarant’s death
 Declaration made at time declarant was conscious of
impending death
 Declarant is a competent witness
 Declaration offered in a criminal case of homicide, murder, or
parricide
 Standard medical books
o Considered hearsay evidence
o May be used as basis of a medical witness
o May be admissible evidence during\cross examinations wherein book is
used to discredit a witness who based his testimony upon it
 Emergency room and the police
o Px must not be questioned without the approval or consent of AP
o Px can be subjected to physical and lab tests (nonviolative of px’s
constitutional right against self-incrimination)

Bioethics

 Study of ethical and moral implications of medical research and practice


 General ethical principles
o Respect for persons
 Includes
 Respect for autonomy
 Protection of persons with impaired or diminished autonomy
o Beneficence
 Maximize benefits and minimize harms
 Soundness of research design
o Justice
 To treat each person in accordance to what is morally right and
proper
 To give each person what is due him/her
 Distributive justice

Legal Medicine

 Law
o Valid 15 days after publication
o Bill of attainder – punishment without trial
o Principle of extraterritoriality
 In treaties
 Person who committed a crime in the Philippines will be subjected to
the laws of his own country
o Principle of exterritoriality
 International agreements
 President of another country commits a crime in the Philippines, he
will have diplomatic immunity
 Crime committed outside the country will not be subjected to
Philippine laws
 Malum prohibitum: an act is punishable because the law said so
o No need for intent
 Malum in se: evil in itself
o There should be intent
 Stages in the commission of crimes
o Consummated
o Frustrated: offender performs all acts of execution but felony was not
produced by reason of causes independent of the will of the perpetrator
o Attempted: not all acts of execution were performed due to some cause or
accident other than the offender’s own spontaneous desistance
 If no mortal wound: attempted
 Circumstances affecting criminal liability
o Exempting
 < 15 por > 15 but < 18 and acted without discernment
o Justifying
 Defense of self
 Defense of relatives: up to 4th civil degree
 Defense of stranger
 Avoidance of greater injury or evil
 Fulfillment of duty or lawful exercise of right or office
 Obedience to an order issued for some lawful purpose
 Battered women syndrome: at least 2 cycles of acute battering
o Mitigating: does not free offender from criminal liability but reduces the
penalty
 1 MC: one penalty lower
 2 MC: one degree lower
 Ordinary: may be counteracted by an aggravating circumstance
 Privileged: cannot be counteracted
 Age or minority: if > 15 and < 18 and acted with discernment
 Voluntary surrender
o Aggravating
o Alternating
 May mitigate or aggravate
 Alcoholism
 Persons liable for felonies
o Principals
 By direct participation
 By induction
 Masterminds
 By indispensable cooperation
 If middle man did not know about the plan, not liable
 By conspiracy
o Accomplices
 Those who cooperate in the execution of the offense by previous or
simultaneous acts
 Penalty is one degree lower than principals
o Accessories
 Those who, having knowledge of the crime and without having
participated therein as principals or accessories, take part after its
commission by:
 Earning profit from a crime or helping the offender earn profit
 By concealing or destroying the body or instruments to
prevent discovery
 Assisting in the escape of the principal through abuse of his
public functions or whenever the crime is treason, parricide,
murder, or an attempt to take the life of the Chief Executive
or the principal is a habitual crime offender
 One deg lower than accomplice, two degrees lower than principal
o Duration of Penalties
 Arresto menor: 1 day to 30 days
 Arresto mayor: 31 days to 6 mos
 Prison correccional: 6 mos and 1 day to 6 years
 Prison mayo: 6 years and 1 day to 12 years
 Reclusion temporal: 12 years and 1 day to 20 years
 Reclusion perpetua: 30 years
 Evidence: means, sanctioned by the Rules of court, of ascertaining in a judicial
proceeding, the truth respecting a matter of fact
o Factum probandum: theory or contention
o Factum probans: material evidencing the proposition
 Admissibility of evidence
o Relevant to issue (irrelevant)
o Not excluded by the rules of court (incompetent – i.e. improperly obtained)
 Types of medical evidence
o Autoptic/real – made known or addressed to the senses of the court
 i.e. stolen item
o Testimonial
 Ordinary: cannot be asked of opinion
 May refuse to answer if privileged communication
o No consent
o Civil case
o Knowledge obtained while attending to px in a
professional capacity
o Info would blacken character of px
 Hearsay
o Not admissible
o Except if dying declaration
 Expert
o Experimental: corroborated proof to a previously stated opinion or
confirmation of opinion
o Documentary evidence
 Best evidence rule
 Should be original document
 With exceptions
o Physical
 Corpus delecti
 “body of the crime”
 Prohibited drugs, stolen articles, body of victim, instrument
with bloodstains
 Associative
 Links suspects to the crime
 Fingerprints, articles of clothing
 Tracing
 Assists in locating the suspect
 Clinical record of MD showing tx of injuries sustained by
victim during the criminal act
 Preservation of evidence
o Photographs, audio, video
 Data Privacy Act (RA 10173)
o Sketching
o Mind of witness
 Kinds of evidence necessary for convivtion
o Direct evidence
o Circumstantial
 Existence of a fact may be inferred as a necessary probable
consequence
 Not admissible if standing alone
 Weight and sufficiency of evidence
o Criminal cases
 Proof beyond reasonable doubt
 Moral certainty – degree of proof which produces conviction in an
unprejudiced mind
 Not necessarily 100%
o Civil cases
 One side greater than the other (preponderance of evidence)
o Administrative
 Substantial: more than a mere scintilla of evidence
 Medico-legal aspects of physical injury
o Wound: dissolution of the natural continuity of any tissue of the living body
 Disruption of anatomic integrity
o Vital reaction: sum total of all rxns to trauma
o Depth of wound
 Superficial: restricted to layers of the skin
 Deep: beyond the skin

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