CRISBERT I. CUALTEROS, M.D. - MEDICAL JURISPRUDENCE
   
DR. CRISBERT I. CUALTEROS
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  Clinical Practice Guidelines

CRISBERT I. CUALTEROS, M.D. Family and Medicine

 

MEDICAL JURISPRUDENCE

 

- concerns law and legal concepts which has to do with the practice of medicine.

 

Purpose of the study:

 

1. Protect the public

  1. Promote professionalism

  2. Develop awareness of the RO D.

  3. Counter malpractice

  4. Explain legislation

  5. Repeal and amend laws

 

Law

 

is a body of rules to regulate the conduct of it’s members.

 

Classification:

1. Law which is not enforced by the State: Natural, Divine, Moral

2. Law which is enforced by the State

a. As to purpose : Substantive and Procedural

b. As to nature of the subject matter: Public and Private

 

Sources:

  1. Constitution

  2. Enacted by Congress

  3. Decrees, Orders, Proclamations

  4. Administrative acts, orders, rules, regulations

  5. Local customs

  6. Principles of International law

 

 

The Law and the Practice of Medicine

 

The right to regulate the practice of medicine is based on the police power of the state whose purpose is for the good and welfare of its people.

 

By: 1. Licensure laws

2. Code of Ethics

3. Criminal laws

4. Civil law

5. Medical Societies

6. Hospital rules and Regulations

7. Public opinion

 

 

LICENSURE AND REGULATORY LAWS

 

- To maintain high quality and standards of medical practice

 

Administrative bodies:

  1. Board of Medical Education – standardization and regulation of medical education

  2. Professional Regulation Commission – supervise / regulate

  3. Board of Medicine – examinations, supervise /control /regulate practice of medicine

 

1.BOARD OF MEDICAL EDUCATION:

  1. Requirements of admission

  2. Minimum facilities

  3. Minimum qualifications of teachers

  4. Minimum required curriculum

  5. Accept application for certification for admission

  6. Approve hospitals for training

 

2. PRC

1. Enforce regulatory policies

2. Perform acts in the implementation of its function

3. Conduct licensure examinations

4. Maintain the register of authorized practitioners

5. supervise foreign nationals

 

3. BOARD OF MEDICINE

1. Determines contents of examinations

2. Promulgates rules of the exams with the approval of PRC

3. Administer oath

4. Study conditions affecting practice of medicine

5. Investigate violations, issue summons

6. Conduct hearings

7. Suspends, revoke, re-issue Cert. of Registration

 

 

ADMISSION TO THE PRACTICE OF MEDICINE: He must meet the following:

 

  1. Minimum age requirement – 21 y.o.

  2. Proper educational background – A.B., Eligible to enter Medical school,

- Good moral character, Birth certificate

  1. Examination requirements - Subjects in Med School

  2. Holder of Cert. of registration - Filipino citizen, Good moral char.,

Sound mind, not convicted of moral turpitude, Internship

 

 

 

 

PRACTICE OF MEDICINE

 

It is a privilege granted by the state to any person to perform medical acts upon compliance with the law.

 

Medical Act of 1959 – promulgated by the state in the exercise of the

police power.

 

Acts constituting the practice of medicine:

 

A person who shall for compensation or none physically examine any person, diagnose, treat, operate or prescribe ( DTOP) any remedy for human disease.

 

  1. By means of advertisement and the like either offer to undertake method to diagnose, treat, operate or remedy.

 

  1. Who shall falsely use the title of M.D.after his name.

 

Not considered a Practice of Medicine:

  1. A medical intern under the supervision of a registered physician.

  2. Legally registered dentist engaged exclusively in practice of dentistry.

  3. Any duly registered masseur or physiotherapist.

  4. Registered optometrist who mechanically fits or sells lenses.

  5. Any person who renders gratuitously in cases of emergency where no MD is available.

  6. Prosthetist who fit artificial limbs

  7. Clinical psychologist in regards to psychiatric cases.

 

 

Faith healing, healing by prayer or divine healing or Acupuncture

- there is nothing in the Medical Act exempting faith healing from the definition of the acts which constitutes practice of medicine.

 

 

WHO ARE QUALIFIED TO PRACTICE MEDICINE:

 

  1. Those who complied to practice medicine in accordance to the Medical Act.

  2. Those who can have limited practice without Cert. of Registration like the Foreign physicians, Medical students.

  3. Balikbayan physicians

  4. Foreign physicians qualified to practice by reciprocity.

  5. Limited practioners of the healing art like nurses, dentist, optometrist, M.T., MW.

PT, Masseur, Chiropodist,Chiropractor

 

Only natural person can practice medicine.

 

PHYSICIAN-PATIENT RELATIONSHIP ( PPR )

 

-it is contractual, consensual and fiduciary

 

 

- a meeting of the minds of two persons where one binds himself with respect to the other to give something or to render some service either express or implied.

 

a. consent

b. object

c. consideration

 

 

NO Physican-Patient Relationship in the following:

 

  1. Pre-employment Physical Examination whether suitable for the job.

  2. Eligibility for insurance purposes.

  3. M.D. appointed by the court.

  4. Surgeon performing an autopsy.

  5. Casual questions in a party.

 

 

Psychological patterns of PPR:

 

  1. Activity-Passivity Relation – unconscious

  2. Guidance cooperation relation – ill but conscious, M.D. in trust

  3. Mutual participation – juridical equal to M.D.

 

 

 

Types of medical services which the patient may solicit from his physician:

 

  1. Perform specific tests.

  2. Examine patient and inform him of state of health.

  3. Examine and recommend remedy.

  4. Give emergency treatment.

  5. Treat but no follow-up care.

  6. Treat with follow-up care.

 

 

 

 

 

 

 

 

 

Duties and Obligations imposed on the

A. Physician in the PPR:

 

  1. He should possess the knowledge and skill of which an average physician is expected.

  2. He should use the knowledge and skill with ordinary care and diligence.

  3. He is obliged to exercise the best judgment.

  4. He has the duty to observe utmost good faith.

 

B. Patient

 

1. Give an honest medical history.

2. Cooperation and follow instructions.

3. Inform physician on what occurred in the course of treatment.

4. Must state if he understands the instructions given.

5. Must not act as if a stranger to the problem.

 

 

Terms NOT included in the PPR

 

  1. Does not imply a promise that treatment is successful.

  2. Treatment will benefit the patient.

  3. Will produce certain results.

  4. Will not harm the patient.

  5. Will not commit errors

 

What the law implies in the PPR - the physician will render service.

 

Commencement of the PPR

 

- the physician is obliged to comply with the legal duties and responsibilities.

- When a patient ask a physician to treat and the moment the M.D. willingly

agrees is the start.

 

Termination of the PPR

 

  1. Recovery of the patient from the condition.

  2. Withdrawal of the physician. – consent, ample time

  3. Discharge of the physician by the patient.

  4. Death of the patient.

  5. Death or incapacity of the physician.

  6. Fulfillment in the obligations as stipulated in the contract.

  7. In cases of emergency, upon arrival of the attending M.D.

  8. Expiration of the period.

  9. Mutual agreement between the M.D. and Pt. to terminate PPR.

 

RIGHTS OF PHYSICIANS

 

Rights INHERENT in the privilege to practice medicine

  1. Right to choose patient, even if no other M.D.: except in emergencies

 

  1. To limit the practice of his profession.

= Only in his field of specialty.

= Private clinic or hospital

= Within political or geographical boundary.

= Only on certain days, hours of the day.

= Certain class of people.

= By dictates of his conscience.

= Ignorance

= Retirement

 

From other sources:

= Imposed by the public.

= Religion – abortion

= Professional ethics

= Medical society

= Imposed by law

= By contract

 

  1. To determine the appropriate management procedures.

= frequency of visits

= Doctrine of superior knowledge – pt. follows

 

  1. Right to avail hospital services.

 

 

Rights INCIDENTAL in the privilege to practice medicine

 

  1. Right of way while responding to call of emergency.

 

  1. Right of exemption from execution of instruments and library.

= not deprive physicians to practice of healing.

 

  1. Right to hold certain public or private offices.

 

  1. Right to compensation even unconscious due to Implied contract.

= Doctrine of unjustified enrichment: service rendered, service paid

 

  1. Right to membership in medical societies.

 

Rights generally enjoyed by every citizen as provided in the Bill of Rights.

 

Kinds of MEDICAL FEES:

  1. Simple contractual fee – Ap for a sum

  2. Retainers fee - Space of time, not an employee of the pt.

  3. Contingent fee - result of treatment

  4. Dichotomous fee, fee splitting - unethical

  5. Straight fee or pakyaw system

 

Methods of collection of payments for medical services:

  1. Friendly or extrajudicial methods:

    1. Billing

    2. Referral to a bill collection agency

 

2. Judicial methods

 

Facts to be proven in court::

  1. That plaintiff-physician is qualified and licensed to practice.

Not duly licensed: a. Single isolated case,

b. Contract perfected in foreign country.

 

2. That the physician performed professional services.

 

3. That the defendant failed to pay the reasonable PF after repeated

demands.

 

 

In the absence of agreement, the physician is required to prove that the PF

- customary and reasonable.

 

 

FACTORS INFLUENCING THE AMOUNT OF PF

  1. Nature and character of the services rendered.

  2. Labor, time and trouble involved.

  3. Importance and responsibility.

  4. Professional character and social standing of the M.D.

  5. The results secured.

  6. Financial ability of the patient.

  7. Purchasing power of the peso.

  8. Local customs

 

If a patient dies or incapacitated:

  1. The spouse

  2. The descendants of the nearest degree.

  3. The ascendants of the nearest degree

  4. The brothers and sisters

 

 

Circumstances which are important as indicative of the third party’s promise to pay for the patients care:

 

  1. 3rd party requested the service.

  2. Patient is closely related to him.

  3. Part of the household.

  4. Assumes control of patients case.

  5. Attended the pt. previously and paid by the 3rd party.

  6. The physician sent a bill to the 3rd party.

 

 

Instances when the physician cannot recover PF:

  1. Agreement that the service is gratuitous.

  2. Professional services by government physicians in charity wards.

  3. Private charitable institutions.

  4. Waiver in the part of the physician.

  5. Expressed contract to cure and non-fulfillment

  6. Covered by Medicare.

  7. Colleague is a doctor.

  8. Industrial physicians to their employees.

  9. To school, faculty, students.

 

 

Defenses obliged to pay the Medical bill in Court.

  1. Exorbitant fees

  2. No medical service rendered.

  3. Defendant not the person legally to pay.

  4. No consent to such medical services.

  5. Previous agreement that it is gratuitous.

  6. Not qualified to practice.

  7. Party is not financially capacitated.

 

 

Grounds for counter complaint:

  1. Contract to cure.

  2. Fraudulent representations as to the ailment.

  3. Treatment is contrary to the agreement.

 

 

 

 

 

 

 

 

 

RIGHTS OF PATIENTS:

  1. Give consent to diagnostic and treatment procedures – inform pt.

  2. Religious belief

  3. Privacy

  4. Disclosure of information

  5. Confidential information

  6. Choose his physician

  7. Treatment

  8. Refuse necessary treatments

 

 

 

1.Give CONSENT to diagnostic and treatment procedures – inform pt.

 

Basis of the consent: Fiduciary rel-ship, right to self determination

 

Purpose: a) To protect pt. from procedures without consent.

b) To protect M.D. from failure to comply with legal rqmts

 

NOT NECESSARY:

a) Emergency cases

b) Law require submission to the procedure

 

Requisites of valid consent:

      1. It must be an informed consent

      2. Voluntarily given to the patient

      3. Subject matter must be legal

 

5 elements of an Informed consent:

a) He must understand the nature of his condition.

b) The nature of the proposed treatment or procedure

c) Awareness of the possible alternative courses of action

d) Risk of the proposed alternatives courses of action

e) Informed of the chances of success or failure of the

proposed and alternative therapies.

 

Instances when informed consent require MORE Disclosure of Facts:

  1. when the procedure will entail much risk.

  2. When the procedure is experimental or innovative.

 

 

Instances when full disclosure may NOT be necessary:

  1. Cause emotional upset to the patient

  2. When the medical procedure is publicly known to be safe

 

 

 

Extention of the operative procedure beyond what is consented.

- to any abnormal conditions when he thinks advisable for the welfare of the

patient and follow the approved practice of surgeons generally.

 

 

Scope of the consent:

  1. General or blanket

  2. Limited or conditional

  3. Non-viability or exculpatory clause in the consent

 

Persons who can give the consent:

  1. Patient

  2. If minor, consent from parents

= Redound to the preservation of life and health

= Expressed refusal of a minor shall not prevail in an

emergency case

 

  1. Grandparents, if parents are absent

  2. Eldest brother or sister are of age and not disqualified by law

  3. Substitute parental authority – guardians, teachers

 

 

2. Right to Religious belief

a) Right to believe

b) Right to act in accordance with one’s belief

* Limited by the police power of the state

* Freedom to believe is absolute but freedom to act is limited by statutes.

 

3. Right of Privacy

a) To be left alone

b) Free from unwarranted publicity

 

Ways of intruding to the right of privacy of patients:

1. Physical intrusion at a time the patient would like to be left alone.

 

  1. Publishing information about the patient which is offensive to the ordinary person.

 

  1. Used for commercial purposes aspects of personality of the patients life.

= Taking photos and publication in the print media can only be done with

the express consent of the patient or who acts in his behalf,

= The condition imposed must not be violated even if it is a scientific

journal.

= NOT an invasion of privacy when public interest demands such

publication.

 

4.Right of Disclosure

= Being fiduciary the patient is obliged to disclose pertinent facts regarding

the illness with good faith and strict honesty- if not, guilty of fraud.

= May not reveal remote possibilities to the patient.

 

 

5. Right of Confidential information

= Physician is not allowed to divulge to a 3rd party.

a) Statutory Privileged Communication

Not in a civil case – that may blacken the character of the patient.

b) Ethical or Professional Confidential Information – Sacred trust

Main purpose: to make patient fully disclose all facts and circumstances.

 

NOT APPLICABLE:

    1. When such disclosure is necessary to serve the best interest of justice. = Criminal in nature,Child abuse, Physical injuries.

    2. When disclosure of information will serve public health and safety.

    3. When the patient waives to the confidential nature of such information.

 

6. Right to Choose his physician

 

7. Right to Treatment in emergency cases

= immediate emergency medical assistance to dying and

serious physical injuries. . First aid treatment.

 

8. Right to Refuse necessary treatment

= To determine what must be done to his own body.

= Parents have no right based on religious belief or other grounds to deny

medical treatment to their child.

= The state under the Doctrine of Parens Patriae to assume

guardianship when the child is neglected by the parents to have the

child treated.

 

 

Other rights of patients:

    1. Right to receive visitors.

    2. Unrestricted right to correspondence.

    3. Right to be free from mechanical restraints.

    4. Right to be release as soon as the condition

 

 

Malpractice – Is a generic term that includes all:

( ADMINISTRATIVE, CRIMINAL AND CIVIL)

- Of wrongful acts of physician.

 

LIABILITIES OF PHYSICIANS

 

Factors bringing increasing frequency of the complaints against physicians:

1. Gradual disappearance of the Family physician.

2. The “ doctors loose talk” or unethical coaching of other physicians.

3. Breakdown in communication and rapport between the physician and his

patient.

4. Disservices made by the mass communication media.

5. Malpractice is a sort of disease of society which may be endemic or

epidemic form.

6. Incompetence of the practitioner and commercialization of medical practice.

7. Proliferation of medicinal drugs.

8. Changing attitude of the physician in the management of his patient.

 

Classification of Liabilities of Physician arising from his wrongful act or omission:

1. Administrative liability – Right granted to heal withdrawn > police power.

2. Criminal liabilities - Imprisoned or fined as penalty

3. Civil liabilities - Moral and punitive damages

 

ex: Negligence penalized in RPC, CC, Medical Act of 1959

 

1. ADMINISTRATIVE LIABILITY Reprimand, suspension, revocation C of R

 

Characteristics of the Proceedings in the PRC

    1. Penal in nature

    2. Preponderance of evidence

    3. Entitled to be represented by counsel

    4. Decision of the Board of Medicine is final after 30 days unless appealed.

    5. After 2 years may be re-instated

 

WHO can file complaint:

    1. Any person

    2. Firm or corporation through authorized representative

    3. The Board of Medicine itself

 

COMPLAINT : In writing and under oath.

 

Service of Summons - Letter subpoena requiring appearance.

    1. Time

    2. Place

    3. To answer within the period specified

    4. A copy of the complaint.

 

Rights of the Respondent in the Administrative Investigation in the Board of Medicine:

1. To be represented by counsel or be heard in person.

2. To have a speedy and public hearing.

3. To confront and cross-examine witnesses against him.

4. To be presumed innocent

5. Right of appeal and others…

 

GROUNDS for Administrative Investigation:

1. Personal disqualification

a) Immoral or dishonorable conduct.

b) Insanity

c) Gross negligence or incompetence

d) Addiction to alcohol or drugs

 

2. Criminal acts

    1. Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude.

    2. Fraud in the acquisition of Cert. Of Registration

    3. Performance or aiding in any criminal abortion.

    4. Knowingly issuing any false medical certificate.

    5. Aiding or acting as a dummy of an unqualified or unregistered person to practice medicine.

 

3. Unprofessional conduct

    1. False extravagant or false advertisements

    2. Issuing news or rumor which is derogatory to the character and reputation of another physician without justifiable cause.

    3. Violation of any provision of the Code of Ethics

 

* Physicians are to assist in the administration of justice which are

medico-legal in character.

 

> Decisions of the Board must be in writing and signed by the majority of the

members.

 

> A petition for reconsideration for rehearing shall be filled within 30 days after

receipt of the decision.

 

 

>Appeal from judgment:

- the decision by the Board will be automatically be final after 30 days after promulgation unless appealed to PRC then to Office of the President.

 

> Execution of decision

Upon expiration of the period to appeal is perfected.

 

CRIMINAL LIABILITIES OF PHYSICIANS

 

When the act or omission is done by deliberate intent.

 

Characteristics of Criminal Cases:

1. A criminal act is an outrage to the sovereignty of the state.

2. The action is filed and tried in court.

3. Proof beyond reasonable doubt.

4. Accused is presumed innocent.

5. If convicted, has the right to appeal.

6. Penalty is imprisonment or fined.

7. Additional revocation of Cert. Regis. If: law imposes/ guilty of moral turpitude

 

 

PROVISIONS RPC wherein a Physician may be criminally liable:

1. Physician as wrong doer

    1. Issuance of false medical certificates

    2. Abortion

    3. Simulation, substitution of birth

    4. Failure to report treatment of physical injuries

    5. Refusal to render treatment in emergency cases.

 

2. Liabilities incurred incidental to the practice of the profession:

    1. Criminal negligence or imprudence

Negligence - Deficiency of perception

Imprudence – Deficiency of action, voluntary, no malice

 

    1. Violation of Dangerous Drugs

    2. Violation of Pharmacy law – Sale of samples

 

    1. Liability in the issuance of birth and death certificates

 

    1. Defamation – public and malicious imputation of a crime

causing dishonor

 

Written defamation- libel

Oral defamation - slander

 

3. Provisions in the Penal code applicable to anyone

 

 

 

 

 

 

 

CIVIL LIABILITIES OF PHYSICIANS

 

The cause of action for damages on account of the injury may be based on:

 

1. Breach of Contract – contract of warranty, not void, violated, legally cognizable

2. Tort - legal wrongdoing independent of contract : negligence or fault > injury

 

 

4 D’s MEDICAL MALPRACTICE

1. Duty – duty of a M.D. to pt.

  1. Dereliction – failure to perform his duty

3. Damage – pt. Suffers damage

4. Direct – negligence is the direct cause

 

 

Duties

a) Duty to possess knowledge and skill of the profession.

b) Duty to utilize such knowledge and skill with care and diligence

c) Duty to exercise the best judgment.

d) Duty to observe utmost good faith to his patient

 

Failure of Physician to perform his duty:

    1. Violations of positive law - abortion

    2. Negligence - lack of care/ failure to exercise skill

    3. Ignorance - absence of knowledge

    4. Departure from accepted practice – standards of practice

 

Failure of the physician to perform his duty is the proximate cause of the

Injury sustained by the patient or

 

the DOCTRINE of Proximate Cause.

= continuous and natural sequence, unbroken by an efficient cause

producing the injury and without which the result would not have

occurred.

 

 

Conditions that must be complied with in the determination of the proximate cause:

1. Direct physical connection between the wrongful act and the injury. -unsterile

2. Wrongful act must not be too remote from the development of the injury.

3. The result must be the natural and probable consequences of the cause.

 

 

 

 

 

DOCTRINE of Efficient Independent Intervening Cause:

= may mitigate the damage to be rewarded.

 

Standard of care of Physicians:

1. Degree of ability by other physicians in the same locality.

2. Degree of care, attention, diligence or vigilance exercised by those physicians

in the application of their skills.

3. Special or extraordinary for specialist.

 

 

Locality rule:

= socio economic similarities or geographical proximity

 

Alternative Treatment Methods

= as long as minority of physicians would agree with the defendant.

 

Bad results:

= Physicians are not an insurer of the good result of treatment.

 

= Patients do not recover or improve for a variety of reasons unconnected with the quality of care which the patient have received.

 

The physician must keep up with the medical developments.

 

 

PRINCIPLES AND DOCTRINES APPLIED IN MALPRACTICE

 

1. Doctrine of vicarious liability or Doctrine of Respondent superior

a) Doctrine of Ostensible agent - Pathologist/Hospital

b) Borrowed servant Doctrine - Nurses borrowed from the hospital

c) Captain of the Ship Doctrine - Surgeon

- Increasing complexity

- to encourage surgeon to concentrate in his job

- shifting to the hospital from the surgeon’s responsibility

 

= Vicarious liability: the responsibility of a person on the negligence of another

 

= To make the owner responsible of the faults of the employees negligence

a) The employee was chosen by the owner

b) Service of the employees according to the orders of the employer

c) Wrongful act was on the occasion of the function entrusted to him.

 

= NOT applicable when the owner has exercised due care and diligence in the

selection and supervision of his employees.

 

 

Reasons in support to the Doctrine of Vicarious Liability

1.The negligent employee; nurses res. physician, have not enough money

2. Employer has the power to select his employees.

3. Employer benefits from his servants work.

4. Employer is in the position to approximate future damage.

 

Usually involves the Surgeons activities in Operating situation:

1. The potential danger is greater in the O.R.

2. Application is more complex in the O.R.

3. Surgeons tend to have more servants

 

 

2. Doctrine of res ipsa loqitor / Doctrine of Common Knowledge

= the thing speaks of itself > done a negligent act

= Foreign bodies is left unintentionally and allowed to remain in the pt. body.

 

Requisites for the Res ipsa Liquitor Doctrine

a) The accident would not occur without negligence.

b) The agency must be in control of the defendant.

c) There was no contributing conduct by the plaintiff.

 

Cases applied:

a) Objects left in the pt. body at the time of surgery.

b) Injury to a healthy part of the body in the treatment area or to a part remote

from the treatment area.

c) Removal of a wrong part of the body when another part was intended.

d) Teeth dropped down the windpipe

e) Burns

f) Infection resulting from unsterilized instruments.

g) Failure to take x-rays to dx possible fx.

h) Fx set so badly that the deficiency of the workmanship is apparent to anybody.

i) Disability directly resulting from injection of drugs into the body.

j) explosion of anesthetic gases

 

When Surgeon is not liable?

1. When the surgeon is in the stress of emergency

2. when the sponge become saturated with blood and was difficult to detect.

 

 

Precautionary measures:

1. Fixing a pair of forceps in one end of the sponge.

2. Assignment of one of the O.R. nurses on duty to count the sponge.

3. Surgeon counting with the nurses.

4. Search made by surgeon by sight or hand.

5. Formal inquiry affirmed by his search.

 

 

3. Doctrine of contributory negligence

= Conduct in the part of the plaintiff contributing as a legal cause to harm he has suffered which falls below the standard to which he is required to conform for his own protection.

 

 

4. Doctrine of continuing negligence

= Physician after prolonged treatment of a patient produces no improvement when in fact normally it would.

 

= Fails to investigate for non-response may be liable if in the exercise of care and diligence have discovered the cause of the non-response.

 

 

5. Doctrine of Assumption of risk

= An injured person actually knew the risks involved is barred from recovery.

 

= Based on the maxim” volenti non fit injuria” that a person who assents and was injured is not regarded in law to be injured. The doctrine is predicated upon the knowledge and consent.

 

 

6. Doctrine of Last Clear Chance

= Failure from the physician to apply emergency mechanical occlusion of the vessel injured by pressure or torniquet which cause the death of the patient.

 

 

7. Doctrine of Foreseeability

= Physician cannot be held liable for negligence if the injury sustained by the patient is on account of unforeseen conditions.

 

BUT, if one fails to ascertain the pt. condition for want of the requisite skill and training is answerable to the injury sustained by the patient.

 

8. Fellow Servant Doctrine

= If an employee was injured on account of the negligence of his fellow employee, the employer cannot be held liable.

= since both physician and the patient are of the same employer, workmen’s compensation was the plaintiffs exclusive remedy.

 

9. Rescue Doctrine

 

10. Sole responsibility vs. Shared responsibility

= negligent act attributed to one person

= caused by 2 or more persons

 

SPECIFIC ACTS OR OMISSIONS OF MALPRACTICE

 

1. Failure to take history or P.E. > liability for negligent misdiagnosis

 

2. Non-referral of the patient to a specialist

 

3. Failure to consult prior physicians for previous management.

 

4. Non-referral of patient to a hospital with equipments and trained personnel.

 

5. Failure to use the appropriate diagnostic test.

 

6. Failure to diagnose infection

 

7. Treatment resulting to Addiction

 

8. Telephone orders except emergency cases

 

9. Experimental treatment :

 

Two important requirements:

a) Awareness and consent of the patient

b) The physician to perform the experimental treatment must be capable to

perform the innovative technique.

 

10.Abandonment of patients

Elements of Abandonment:

a) Physician-patient relationship

b) Terminated by the physician without mutual consent

c) No time for the patient to secure services of another

d) Continuing need of the patient for further treatment

e) Abandonment is the cause of the resulting death or injury

 

Instances when a physician is liable for abandonment:

a) Refusal by a physician to treat a case after he has seen the person

needing treatment but before treatment is commenced.

b) Refusal to attend a case which he has assumed responsibility.

c) Failure to follow-up

d) Failure to arrange substitute physician in one absence

= did not exercise with due care in the selection

= acts as a master-servant relationship

 

Non-payment of bills is not a defense ground for abandonment.

 

11. Failure to institute proper prophylactic treatment

 

12. Blood transfusion

a) Mechanical

= volume: pulmonary edema

= embolic: air

 

b) Chemical and serological

= incorrect grouping

= infected blood

= chemical which may be due to overcooling or overheating

 

CASES1. Transfusion of the wrong type of blood

= Tech. Is hosp. Employee > hospital liable

but if under supervision of the pathologist : also liable

= Hospital not liable as long with due care in hiring.

2. Blood transfusion in a wrong patient

= Defendant is liable

3. Slipping of the needle outside the vein and infusion of blood into the

soft tissues.

4. Infection following transfusion

5. Negligence following transfusion

 

13. Administration of drugs

Five rights Liabilities in the administration of drugs

1. The right Drug

2. The right patient

3. The right dose

4. At the right time

5. Via the right route

 

Negligence in the administration of a drug causing injury to the patient may

be attributed to:

1. Drug reaction

= Failure to note the history of allergy

= Failure to test for signs of reaction

= Failure to stop treatment when drug reaction has been observed

= Failure to provide adequate therapy to encounter a reaction

= Treatment with a drug not proper for the illness

2. Overdose of the drug administered

3. Failure to give warning side effects

4. Administering medicine on the wrong route

5. Administration of the wrong medicine

6. Administration of a drug on the wrong person

7. Infection following injection

8. Injury to the nerves

 

14. Product liability: Doctrine of Strict liability> any from the distributive chain

LIABILITIES OF HOSPITALS

 

Hospital – primarily a service institution whose concern is to serve patients,

doctors, and the public.

- it cannot practice medicine

 

Primary duties of a hospital:

1. To furnish a safe and well maintained building and ground

2. To furnish adequate and safe equipments

3. To exercise reasonable care in the selection of the hospital staff.

 

Classification of liabilities of the hospital:

1. Corporate liabilities: = Failure to furnish accommodations, facilities

= Safe and reliable equipments

= Failure to make careful selection, supervision of its

employees

 

2. Vicarious liabilities “ borrowed servant “

= Nursing staff: student nurse

= Medical interns, Residents

Specialist – an independent contractor

 

 

Liabilities of hospital for the wrongful acts of their agents or employees:

1. Government or Public hospitals

= A state cannot be sued without its consent.

a) Government funds should be used for public purposes

b) Public service can be hindered.

c) Endless embarassment

d) Derived no profit from its activity

 

2. Charitable, Voluntary Eleemosynary hospitals

a) Trust Fund Doctrine – contributions are only held in trust

b) Implied Waiver Theory–humanitarian contributions waives damages

c) Public Policy Theory – quasi-public function

 

Present trend – Partial immunity:

a) injuries suffered by strangers

b) cases involving corporate negligence

c) insured charitable hospital

d) injury sustained by a pay ward patient

 

3. Private hospital operating for profit

- held vicariously liable for the negligent of its employees.

- The principle of administrative or ministerial duties as against

professional or medical duties.> beyond ordinary routine

Government hospital has no choice regarding whom to admit because it is established and maintained by public funds.

 

Justifiable grounds to refuse admission:

    1. All accommodation are filled

    2. Patient is chronically ill

    3. Needs only convalescent care

    4. No available accommodation of the disease

    5. Contagious and at risk to other patients.

 

Attendance to all emergency cases in hospitals:

= If an emergency patient has been given immediate care and the threat to life and serious injury have simmered down, a private hospital is not obliged to admit a patient if he cannot pay the required deposit.

 

Transfer of patient:

= Can only be done if the condition of emergency ceases to be a threat to the life and the transfer itself will not impair the life and health of the patient.

 

Discharge of patient:

= Further hospitalization no longer indispensable

 

Refusal of patient to be hospitalized:

= Will not be a lawful ground to detain him if he is of sound mind and of legal age.

 

Refusal of patient to leave the hospital:

= Refer to Social worker

 

Detention of patient for non-payment of bill:

= File suit in court.

 

Liability for hospital infection:

1. Infection caused by equipment and faulty technique

2. Contact with infected patient

3. Negligence of personnel and staff

4. Hospital personnel may be the source of the infection

 

Patients are not bound by secret limitations contained in a private contract between the hospital and the doctor.

 

Two aspects of Emergency Care

1. Examination of the patient to determine his condition and need for emergency

medical procedures.

2. Performance of the specific medical or surgical procedure which are required

without delay to protect the patients health.

 

MALPRACTICE LIABILITY in the Emergency Room

1. Failure to admit

2. Failure to examine or treat

3. Negligence in the application of management procedures

 

Good emergency room records should be kept on each case handled in the emergency room department.

 

The Police/Emergency Room

= No questioning must be done without prior approval of the attending physician.

    1. Whether questioning will be prejudicial to the life and health or

    2. Whether the patient is in sound possession of his mental faculties to give relevant information.

 

Media / Emergency Room

= Release of information by the Chief of hospital or his representative

 

Guidelines:

1. Private patients : Acknowledgement or admission

General condition

Name of Attending Physician

 

2. Emergency cases:Name , age, sex, address, occupation

Nature of accident :

Extent of injuries

Be careful in expressing an opinion as to definitive

diagnosis or prognosis

 

3. Restrictive information: In cases of poisoning, intoxication, stabbing,

attempted suicide or other similar occurrence

NO MOTIVE be given.

MEDICAL INFORMATION be given only by RIC.

 

4. Photographs: None taken from an unconscious patient

Permission from RIC and patient is required.

 

Medical Records:

1, To document patients Hx, P.E., Tx

2. To aid in the continuity of care

3. To provide a record of billing

 

When may the contents of the medical record be disclosed:

1. When requested by the patient made into writing

2. When the law require such disclosure

3. Upon Court order

***Removal, erasure > removed deliberately to suppress evidence

EMERGENCIES IN MEDICAL PRACTICE

 

Emergency – is an unforeseen combination of circumstance which calls for an immediate action.

 

A condition of emergency is usually an exception to the observance of the standard ethical conducts.

1. Must respond to any request for his assistance in an emergency.

= uninhabited place, injured by him

2. Administer at least first aid.

3. May examine and treat patient of another in case of emergency.

4. Should attend only to patients immediate needs.

5. Several physicians were called, first to arrive be the physician in charge.

6. Treat patient same manner as he treats his patients.

 

Emergency operation without consent:

Based on the = Theory of Implied Consent:

Requisites:

    1. Unconscious or unable to give a valid consent.

    2. Necessary to act before the opportunity to obtain consent.

    3. Surgeon best judgment that the patient may die, lose a limb unless

an operation is performed

 

Refusal to give consent:

1. Refusal of the patient

2. Refusal of the Guardian

3. Refusal followed by an emergency - may

 

Who may attend to emergency cases:

1. Any person

2. Medical Students/Nurses

3. Physicians

 

 

 

 

 

 

 

 

 

 

 

 

 

DELEGATION OF PHYSICIAN’S DUTIES

 

Requisites for a valid delegation :

1. Such duty of the physician validly can be delegated.

EXCEPT: the following

a) Duty is the principal subject-matter of the M.D.-Pt Contractual Relationship.

b) When the patient agreed to render strictly personal services to the patient.

c) When no one is with sufficient competency to perform such duty.

d) when the patient expressly objects to the delegation of duty.

 

2. The person to whom such duty is delegated must be competent to perform

such duty.

3. Proper instructions must be given to the person who will perform the delegated

duty.

4. The patient consented expressly or impliedly such delegation of duty.

 

 

 

HUMAN TRANSPLANTATION

= A minor cannot give consent to be a donor for transplantation even if he has the full capacity to discern or nearing age of majority., not benefit the minor.

 

Basis of Death:

  1. Unreceptivity and unresponsiveness

  2. No movement or breathing

  3. No reflexes

  4. Flat EEG – best confirmation.

 

Certification of Death: present for at least 2 hours before death is certified.

 

 

FERTILITY CONTROL

Fertility Control Methods is within the bounds of law:

  1. It must be voluntary.

  2. No life must be destroyed

  3. Public welfare must be amply protected.

  4. Sexual enjoyment must not be impaired.

 

 

Guidelines in the application of contraceptive procedures:

1. Informed consent must be obtained before the application of the procedure.

2. The provider must respect the right of religion of the patient.

3. In the application of the contraceptive or sterilization procedure care and

diligence must be observed.

 

 

MEDICAL WITNESS AND THE COURT

 

It is the duty of every physician when called upon by the judicial authorities, to assist in the administration of justice on matters which are medico-legal in character.

 

 

As an ORDINARY WITNESS

= He should only be allowed to state the facts which come to his own perception.

 

 

As an EXPERT WITNESS

= He is allowed to give inference, deduction, conclusion or opinion from the facts presented to him.

 

 

Requisites for a person to become an ordinary witness:

1. The person must have the organ and the power of perception.

2. The perceptions gathered by his organs of sense can be imparted to others.

3. He does not fall in any of the exceptions in the Rules of Court.

 

 

Persons not disqualified from becoming a Witness:

1. Persons interested in the outcome of the case.

2. Persons who have been convicted of a crime.

3. persons on account of his opinion on matters of religious belief.

 

 

Persons who cannot be a Witness on account of physical disqualification:

1. Those with unsound mind

2. Children of tender age and inferior capacity incapable of receiving correct

impressions of the facts when they are examined.

 

 

Privileged communication:

1. The husband or wife during marriage or afterwards

2. An attorney without the consent of his client.

3. Physician cannot in a civil case without consent of the patient.

4. Minister or priest without consent of the person making the confession.

5. Public officer during his term of office.

 

 

 

 

 

 

Requisites of the privileged information between the Physician and his Patient

1. That the privilege is claimed in a civil case.

2. That the person against whom the privilege is claimed is one duly authorized

to practice medicine, surgery or obstetrics.

3. That the physician acquired information while was attending the patient in his

professional capacity.

4. That the information is confidential, if disclose will blacken the character of the

patient.

 

 

HEARSAY EVIDENCE

 

- is an evidence not proceeding from the personal knowledge of the witness but from mere repetition of what he had heard others say.

 

 

- As a rule, it is not admissible:

  1. It is hard to determine whether the original declarant is irresponsible.

  2. Depreciation of the truth of the statement on the process of repetition.

  3. Opportunity for the commission of fraud.

 

 

Grounds for admissibility:

  1. Necessity

  2. Trustworthiness

 

Requisites for its admissibility:

1. The declaration must concern the cause and surrounding circumstances of the

declarant’s death.

2. That at the time the declarant was made, the declarant was under the

consciousness of impending death.

3. That the declarant is a competent witness.

4. That the declarant is offered in a criminal case for homicide, murder or

parricide in which the declarant is the victim.

 

Factors to be considered in determining the weight of a dying declaration:

1. The trustworthiness of the physician who reported the declaration.

2. The capacity of the declarant at the time of making the declaration to

accurately remember the past.

3. The capacity of the declarant to tell what he remembered.

4. Factors which may influence the declarant in making a declaration.

 

 

 

 

 

Duties of a physician with regards to Dying declaration

1. Physician must observe patient of feeling of impending death and advise the

importance in making of such declaration

 

2. Observe carefully the mental condition of the patient.

 

3. Physician immediately write down what patient’s statements.

 

4. He must avoid leading questions.

 

5. If the case is long standing, he may inform any officer of the law to take down

the dying declaration.

 

6. The Physician must produce the statement taken and not to judge by himself

the relevant points of admissibility.

 

 

Requisites for admissibility of Expert Evidence:

  1. That the fact to be proven is one requiring expert knowledge

  2. That the witness is really an expert.

 

 

Three things demanded from every Medical Witness

 

1. That he must be absolutely honest and unbiased in his testimony.

 

2. That he has the real expert knowledge of the subject on which he is testifying.

 

3. That he studied thoroughly the case in which he expects to testify and

prepared himself to look up the opinion and statement held by authorities and

others who have written on the subject.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HIPPOCRATIC OATH

 

 

 

Now being admitted to the profession of Medicine, I solemnly pledge to consecrate my life to the service of humanity.

 

 

I will give respect and gratitude to my deserving teachers.

 

 

I will practice medicine with conscience and dignity. The health of my patient will be my first consideration. I will hold in confidence all that my patients confide to me.

 

 

I will maintain by all means in my power the honor and noble traditions of the medical profession.

 

 

My colleagues will be my brothers.

 

 

I will not permit considerations of race, religion, nationality, party, politics and social standing to intervene between my duty and my patient.

 

 

I will maintain the utmost respect of human life from its inception.

 

 

Even threat will not use my medical knowledge contrary to the laws of humanity.

 

 

Those promises I will make solemnly, freely and upon my honor:

 

   

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