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First do no harm

"Physicians are expected to match their competence and diligence with empathy and patience."

 

This is the translation of the Latin phrase “primum non nocere” which is believed to be part of the Latin translation of the originally Greek Hippocratic Oath. In the Philippines, the equivalent phrase in the Hippocratic Oath is that “[I] will abstain from harming or wrong doing any man by it.”

It is the dream of every Filipino family to have a son, daughter, sibling or grandchild who is a physician. As an officemate said, by having a doctor in the family “it is as if you have medical insurance without paying a premium.”

The real advantage of having a doctor in the family is that you have someone with medical knowledge who is immediately accessible when you need medical advice, and has genuine concern for you.

The medical doctor is not expected to cure all illnesses wherein his advice or treatment is sought but he is expected to provide competent medical care with full professional skill in accordance with the current standards of care, compassion, independence and respect for human dignity (Section 1, Article II, Code of Ethics of the Philippine Medical Association).

Most visit a physician for diagnosis, prognosis, or treatment; and the physician shall respect the right of the patient to refuse medical treatment despite a contrary opinion. A physician shall not conceal nor exaggerate the patient’s condition except when it is to the latter’s best interest (Section 5, Article II, Code of Ethics of the Philippine Medical Association).

In the case of surgery or invasive treatment, a physician shall obtain from the patient voluntary informed consent. In case of unconsciousness or a state of mental deficiency the informed consent may be given by a spouse or immediate relatives and in the absence of both, by the party authorized by an advanced directive of the patient (Section 5, Article II, Code of Ethics of the Philippine Medical Association).

Physicians are not infallible. They may commit wrong diagnoses or errors of judgment but when the physician's erroneous diagnosis was the result of negligent conduct (e.g., neglect of medical history, failure to order the appropriate tests, failure to recognize symptoms), it becomes evidence of medical malpractice (Casumpang v. Cortejo, G.R. No. 171127, March 11, 2015 ).


The possible legal actions against the negligent doctor are: (a) a criminal action for reckless imprudence; (b) a civil action for medical malpractice; and (c) an administrative action. Medical malpractice suits are brought whenever a medical practitioner or health care provider fails to meet the standards demanded by his profession, or deviates from this standard, and causes injury to the patient (Casumpang v. Cortejo).

In one case, the Supreme Court declared a doctor negligent when a piece of rubber was left in the abdomen of the patient after surgery (Batiquin v. Court of Appeals, G.R. No. 118231, July 5, 1996). In another case, a doctor misdiagnosed a patient as having bronchopnuemonia, when in fact it was dengue. This misdiagnosis resulted in the death of the patient (Casumpang v. Cortejo).

The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4) proximate causation. Duty refers to the standard of behavior that imposes restrictions on one's conduct. It requires proof of a professional relationship between the physician and the patient. Without the professional relationship, a physician owes no duty to the patient, and cannot therefore incur any liability (Casumpang v. Cortejo).

When does the physician-patient relationship commence? It is created when a patient engages the services of a physician and the latter accepts or agrees to provide care for the patient. The mere fact that an individual approaches a physician and seeks diagnosis, advice or treatment does not create the duty of care unless the physician agrees (Casumpang v. Cortejo).

Examples of situations wherein there is no physician-patient relationship are as follows: (a) the doctor is consulted casually in a social gathering; (b) the doctor’s advice was sought by the relative of the patient on a no-names basis; or (c) the doctor’s advice was given based on limited facts such as in a public service TV or radio program.

However, despite the absence of an expressed agreement, the physician-patient relationship may be implied from the physician's affirmative action to diagnose or treat a patient; or in his participation in the diagnosis and/or treatment. The usual illustration would be the case of a patient who goes to a hospital or a clinic, and is examined and treated by the doctor (Casumpang v. Cortejo).

Once a physician-patient relationship is established, the legal duty of care follows. The doctor accordingly becomes duty-bound to use at least the same standard of care that a reasonably competent doctor would use to treat a medical condition under similar circumstances (Casumpang v. Cortejo).

Breach of duty occurs when the doctor fails to comply with, or improperly performs his duties under professional standards. This determination is both factual and legal, and is specific to each individual case. If the patient, as a result of the breach of duty, is injured in body or in health, actionable malpractice is committed, entitling the patient to damages (Casumpang v. Cortejo).

To successfully claim damages, the patient must lastly prove the causal relation between the negligence and the injury. This connection must be direct, natural, and should be unbroken by any intervening efficient causes. In other words, the negligence must be the proximate cause of the injury (Casumpang v. Cortejo).

If the determination of the doctor’s negligence and liability is based on the factual and legal circumstances of each case, how then can it be proved? It can be proved, by evidence and expert testimony, that the negligence played an integral part in causing the injury or damage, and that the injury or damage was either a direct result, or a reasonably probable consequence of the physician's negligence (Casumpang v. Cortejo).

In the Philippines, the biggest challenge in proving a doctor’s negligence is to get a medical specialist to testify against another doctor. This is necessary since the subject of the inquiry is medical science, a highly technical field that is completely outside the competence of judges.

In the case of Casumpang v. Cortejo, the Supreme Court said that “the expert testimony is crucial in determining first, the standard medical examinations, tests, and procedures that the attending physicians should have undertaken in the diagnosis and treatment of dengue fever; and second, the dengue fever signs and symptoms that the attending physicians should have noticed and considered.”

But in Batiquin v. Court of Appeals, the Supreme Court applied res ipsa loquitur or “the thing speaks for itself” in holding the doctor negligent in the absence of expert evidence. The doctrine is a rule of evidence that is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof (G.R. No. 118231, July 5, 1996).

The next question is: Can the hospital or medical institution be held vicariously liable with the doctor for negligence? For the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians (Ramos v. Court of Appeals, G.R. No. 124354, December 29, 1999).

The private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. However, the basis for holding an employer (hospital) solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code (Ramos v. Court of Appeals).

This provision considers a person accountable not only for his own acts but also for those of others based on the former's responsibility under a relationship of patria potestas.  Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family to prevent damage (Ramos v. Court of Appeals).

The hospital may also claim that it is not liable for the negligence of an independent contractor-physician. However, the hospital may be liable if the physician is the "ostensible" agent of the hospital unless the patient knows, or should have known, that the physician is an independent contractor.  This exception is also known as the "doctrine of apparent authority" (Nogales v. Capitol Medical Center, G.R. No. 142625, December 19, 2006).

The service of our physicians to the community and the country is important and appreciated. Physicians are expected to match their competence and diligence with empathy and patience, thereby upholding the nobility of their profession.

Topics: Tranquil G.S. Salvador III , Greek Hippocratic Oath , medical doctor , Code of Ethics of the Philippine Medical Association
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