Medical Malpratice in the Philippines

Medical malpractice has been defined as the failure of physician to exercise that degree of care and skill ordinarily employed by the medical profession under similar conditions and circumstances (THE PREPARATION AND TRIAL OF MEDICAL MALPRACTICE CASES, By Richard E. Shandell, Patricia Smith; Law Journal Press, 1990 ed.; pg.1-3). In its simplest terms, it is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonable prudent provider would not have done; and that failure or action caused injury to the patient (Garcia-Rueda v. Pascasio, et. al, G.R. No. 118141, Sept. 5, 1997 citing http://www.medicalmal.com/neglig.html.; Cruz v. Court of Appeals and Umali, G.R. 122445, Nov. 18, 1997; Lucas v. Tuano, G.R. 178763, Apr. 21, 2009 [Clearly, the present controversy is a classic illustration of a medical negligence case against a physician based on the latter’s professional negligence. In this type of suit, the patient or his hears, in order to prevail, is required to prove by preponderance of evidence that the physician failed to exercise that degree of skill, care and learning possessed by other persons in the same profession; and that as a proximate result of such failure, the patient or his heirs suffered damages.]; Ramos v. Court of Appeals, G.R. 124354, Apr. 11, 2002 [Established medical procedures and practices, though in constant flux are devised for the purpose of preventing complications. A physician’s experience with his patients would sometimes tempt him to deviate from established community practices, and he may end a distinguished career using unorthodox methods without incident. However, when failure to follow established procedure results in the evil precisely sought to be averted by observance of the procedure ad a nexus is made between the deviation and the injury or damage, the physician would necessarily be called to account for it.]). However, for lack of a specific law geared towards the type of negligence committed
by members of the medical profession, such claim for damages is almost always anchored on the alleged violation of Art. 2176 of the Civil Code (Lucas v. Tuano, G.R. 178763, Apr. 21, 2009).

To recover in a cause of action for medical malpractice, the plaintiff must prove:
1. The existence of a duty, owed by the defendant to the plaintiff, to conform to a recognized standard of professional care;
2. A breach of that duty;
3. An injury that is causally related to the breach of the duty;
4. Legally recognizable damage.(Waffen v. US Dept. of Health and Human Services, 799 F.2d 911 (4th Cir. 1986)
Shumacher v. United States, 714 F. upp. 154 (M.D.N.C. 1988)

Failure to prove any one of these elements is fatal to plaintiff’s case. (Bellomy v. United States, 888 F. Supp 760 (S.D. W. Va. 1995); Ewing v. St. Louis Clayton Orthopedic Group, Inc. 790 F.2d 682 (8th Cir. 1986))

Duty:
In medical malpractice cases, the duty owed by the defendant physician arises from the physician-patient relationship. In turn, this relationship is created when professional services are rendered and accepted for purposes of diagnosis or treatment (Miller v. Sullivan, 625 N.Y.S. 2d 102 (N.Y. App. Div. 1995); 61 Am. Jur. 2d Physicians, Surgeons & Other Healers § 130 (2008) [“The relationship of physician and patient is formed if the professional services of a physician are accepted by another person for the purposes of medical or surgical treatment. Because this relationship may result from an express or implied contract, the voluntary acceptance of the physician-patient relationship by the affected parties creates a prima facie presumption of a contractual relationship between them.”]). Mead v. Adler, 231 Or. App. 451 (2009), clarifies that a duty of care and a physician-patient relationship are formed when a physician “affirmatively undertakes to diagnose or treat” the patient. The physician-patient relationship is created by mutual consent that may be express or implied(http://www.uthsc.edu/Medicine/legaledu/UT/factsheets/PhysicianPatientRelationship.pdf). When physicians take charge of a case, their employment continues until ended by: (1) their dismissal by the patient; (2) their withdrawal after reasonable notice; (3) the mutual consent of the parties; and (4) the cessation of the necessity that gave rise to the relationship. (Hongsathavij v. Queen of Angels/Hollywood Presby. Med. Ctr., 62 Cal. App. 4th 1123, 1138 (Cal. Ct. App. 1998) [“A physician cannot just walk away from a patient after accepting the patient for treatment. A physician cannot withdraw treatment from a patient without due notice and an ample opportunity afforded to secure the presence of another medical attendant. In the absence of the patient’s consent, the physician must notify the patient he is withdrawing and allow ample opportunity to secure the presence of another physician.”]; Ricks v. Budge, 91 Utah 307, 314 (1937) [“The obligation of continuing attention can be terminated only by the cessation of the necessity which gave rise to the relationship, or by the discharge of the physician by the patient, or by the withdrawal from the case by the physician after giving the patient reasonable notice so as to enable the patient to secure other medical attention. A physician has the right to withdraw from a case, but if the case is such as to still require further medical or surgical attention, he must, before withdrawing from the case, give the patient sufficient notice so the patient can procure other medical attention if he desires.”]; Blanchette et. al. v. Barrett, March 23, 1994 [The determination of whether the physician-patient relationship has terminated depends upon several factors. These factors include the subjective views of the parties as to whether their relationship had terminated; the length of the relationship; the frequency of their interactions; the nature of the physician’s practice; whether the physician had prescribed a course of treatment for or was monitoring the condition of the patient; whether the patient was relying upon the opinion and advice of the physician with regard to a particular injury, illness or medical condition; and whether the patient had begun to consult with another physician concerning the same injury, illness or medical condition.]; Louisell v. Williams [requiring either recovery of patient from illness, injury or condition being treated; authorized transfer of referral of patient to another physician; or express or implied discharge of physician by patient to terminate relationship.])

Breach:
“Standard of care” refers to the rule against which a physician’s conduct is measured (Advincula v. United Blood Services 176 III.2d I, 678 N.E.2d 1009 (1996)).  In Garcia-Rueda v. Pascasio, et. al., 278 SCRA 769 (1997) cited in Lucas v. Tuano, G.R. 178763, Apr. 21, 2009 the court held that “when a patient engages the services of a physician, a physician-patient relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by physicians and surgeons practicing in the same field; and that he will employ such training, care, and skill in the treatment of the patient. Thus, in treating his patient, a physician is under a duty to the former to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases.” (Snyder v. Panteleo (1956) 143 Conn. 290, 122 A.2d 21) cited in Lucas v. Tuano, G.R. 178763, Apr. 21, 2009; Garcia-Rueda v. Pascasio, et. al., 278 SCRA 769 (1997); Flores v. Pineda, G.R. 158996, Nov. 14, 2008;
Joyce v. Boulevard Physical Therapy & Rehabilitation Center, P.C., 694 A.2d 648 (Pa. Super. 1977) [A specialist is required to exercise the degree of skill, learning and care normally possessed by physicians who devote special study and attention to the diagnosis and treatment of diseases within that specialty.]; Jistarri v. Nappi, 549 A.2d 210 (Pa. 1988) [A resident specialist is held to a standard higher than that for a general practitioner, but not as high as that for a fully trained specialist.]; Cf. Sheely v. Memorial Hospital 710 A.2d 161, 166 (R.I. 1998) [however, the appropriate standard of care should not be compartmentalized by a physician’s area of professional specialization or certification; rather, the inquiry should focus on whether the procedure was performed in conformity with the recognized standard of care, i.e., in a reasonable manner.]; Johnson v. Agoncillo, 515 N.W.2d 508 (Wis. App. 1994) [Nevertheless, a physician who negligently attempts treatment outside his or her expertise is not immunized from liability.]).

This standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field(Flores v. Pineda, G.R. 158996, Nov. 14, 2008). The duty to use appropriate care and skill are inseparable. Breach of duty, therefore, occurs when the physician fails to comply with these professional standards. The patient in a medical malpractice case must usually demonstrate that the defendant physician departed from an accepted medical standard of care. (Millsap by Millsap v. Jane Lamb Memorial Hospital 111 F.R.D. 481 (S.D. Iowa 1986); Brown V. Macheers, 547 S.E.2d 759 (1991) [Either failure to use reasonable care or to bring appropriate treatment to the patient is malpractice.]; Flores v. Pineda, G.R. 158996, Nov. 14, 2008 [As in any civil action, the burden to prove the existence of the necessary elements rests with the plaintiff. To successfully pursue a claim, the plaintiff must prove by preponderance of evidence that, one, the physician failed go do something which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent health care provider would not have done; and two, the failure or action caused injury to the patient.]; Gorman v. Shu-Fang Chen, MD, Ltd., 596 N.E. 2d 1350 (Ill. App. 1992) [The plaintiff must first establish the appropriate medical standard of care, so that the fact finder can determine whether the defendant’s conduct was a deviation from that standard.])

Causation:

“Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must be a causal connection between said breach and the resulting injury sustained by the patient. Put in another way, in order that there may be a recovery for an injury, it must be shown that the ‘injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by any intervening efficient causes.’ (Chan Lugay v. St. Luke’s Hospital, Inc., 10 CA Reports 415 (1966); Garcia-Rueda v. Pascasio, et. al., 278 SCRA 769 (1997) citing http://www.medicalmal.com/neglig.html. [Another element in medical negligence cases is causation which is divided into two inquiries: whether the doctor’s actions in fact caused the harm to the patient and whether these were the proximate cause of the patient’s injury.]) And the proximate cause of an injury is that cause, which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.” (Lucas v. Tuano, G.R. 178763, Apr. 21, 2009 citing Calimutan v. People of the Philippines, G.R. No. 152133, 9 February 2006, 482 SCRA 44, 60, in turn citing Vda. de Bataclan v. Medina, 102 Phil. 181, 186 (1957); Nolen v. United States, 571 F. Supp. 295 (W. Penn. 1983) [plaintiff must show the physician’s treatment proximately caused the harm]; Salis v. United States, 522 F. Supp. 989 (MD. Penn. 1981) [a direct causal link between the physician’s negligence and the harm must be established in a malpractice case.]While any number of acts or omissions might be said to have “caused” a result, proximate cause involves a determination of whether liability should be imposed.

In Lucas v. Tuano, G.R. 178763, Apr. 21, 2009 citing Barngrover v. Hins, 657 S.E.2d 14 (Ga. Ct. App. 2008), the court has the occasion to state, “Just as with the elements of duty and breach of the same, in order to establish the proximate cause of the injury by a preponderance of the evidence in a medical malpractice action, the patient must similarly use expert testimony, because the question of whether the alleged professional negligence caused the patient’s injury is generally one for expert medical knowledge beyond the ken of the average layperson; using the specialized training and knowledge of his field, the expert’s role is to present to the court a realistic assessment of the likelihood that the physician’s alleged negligence caused the patient’s injury.” Courts frequently call upon expert testimony to interpret and advise, after examining medical records concerning the nature of injuries, future medical, disability and other issues before the court. (http://www.answers.com/topic/subpoena-duces-tecum#cite_ref-65).

Damage:

“Damages” is the sum of money awarded by the court to the successful plaintiff of a tort action; “damage,” on the other hand, means the actual harm to an interest whether or not protected by law. (Tortious Liability for Unintentional Harm in the Common Law and the Civil Law, Volume 2, Frederick Henry Lawson, B. S. Markesinis, CUP Archive, 1982, pg. 215 citing American Restatement, ($ 902 comment a(1939)). It has two requisites: that it must be direct and must be certain. The requirement of directness is really connected with remoteness, and thus is part of the wider problem of causation. xxx. The requirement that the damage be certain naturally includes “actual” damage, though even “future” damage will do so long as it is not entirely “hypothetical.” Id.

It is not sufficient merely for the claimant to establish a factual causal connection between the act of the defendant and damage that the claimant suffers. It is also necessary to establish that the damage was not too remote. This is a matter of law, and legal rules have been formulated to determine the question of remoteness of damage which has been established in answer to the question: For how much of the damage is the defendant liable? All the direct consequences or only those that are reasonably foreseeable? (27 Modern Tort Law by Vivienne Harpwood, 6th ed., pg. 173
http://en.wikipedia.org/wiki/Remoteness_in_English_law  [Remoteness in English law is a set of rules in both tort and contract, which limits the amount of compensatory damages for a wrong. In negligence, the test of causation not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the claimant was not too remote. As with the policy issues in establishing that there was a duty of care and that that duty was breached, remoteness is designed as a further limit on a cause of action to ensure that the liability to pay damages is fairly placed on the defendant]). If the allegedly negligent conduct does not cause damage, it creates no medical malpractice cause of action. Id. The mere breach of a professional duty, causing only nominal damages, speculative harm, or threat of future harm, is insufficient (29 Williams v. Wraxall, (Cal. App. 1995). Moreover, there is no negligence and consequently no liability where the injury is not due to ignorance, carelessness or lack of due skill (Rewards for the Rescue of Human Life: Nadelmann, von Mehren and Hazard (ed.) XXth, pgs. 161-171).

The requirement of certitude (certain) includes those of actuality. Nonetheless, future damage can also have a character which is certain, namely, if the damage would arise with certitude from the current state of affairs and the judge can already calculate it (The Interaction of Contract Law and Tort and Property in Europe: A Comparative Study, by Christian von Bar, Ulrich Drobnig, Guido Alpa, european law publ., 2004, pg.75).

The facts of the case must be proved in such a way as to enable the court to form a judicial conviction that the injury in question is really due to the defendant’s negligence and not merely that the injury alleged and proved probably follows from the physician’s negligence. (International encyclopedia of comparative law: Torts / chief editor, André Tunc, Volume 11, Part 2, Martinus Nijhoff Publishers, 1986, pg. 123, [This practically means that in principle the patient is deemed to assume the risk of injuries unexplained as to their origin and or causation. But where consent is lacking, the risk of the treatment or operation is no longer assumed by the patient but by the physician. Even where the damage caused by the unauthorized treatment of operation is probably not due to the fault of the physician and was unforeseeable, the physician is still liable. The legal reason for his liability here is not a possibly defective performance of the operation, but the very fact that he has acted without informed consent.])