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PATIENT - PHYSICIAN
RELATIONSHIP

PATIENT - PHYSICIAN
RELATIONSHIP

Creation of PPR
CONTACT
PHYSICAL
PHONE

The circumstances of the contact causes the

patient to have a reasonable expectation of
treatment, or if the physician undertook to
render treatment.

Duties and Obligations are

established consequent to the
establishment of the relationship from
which liabilities may arise.

PPR
BROAD TERM COVERING ALL STEPS
TAKEN TO EFFECT A CURE
INCLUDES EXAMINATION, DIAGNOSIS,
AS WELL AS TREATMENT

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Patient-Physician Relationship

Basis of the Relationship:

CONTRACT:

the patient solicits the service of the MD

and the latter agrees to render such
service

CONSENSUAL - basis is mutual consent

- MD consents to render
medical service and
the Pt
accepts such
service
FIDUCIARY- basis is mutual trust and
confidence in one
another

Forms

Requisites of a Contract:

Patient-Physician Contractual Relationship

CONSENT
OBJECT
Medical Service
CONSIDERATION
Factor that instigated the MD to
render the service = money
= act of
benevolence

EXPRESSED
- explicitly stated orally and in writing

IMPLIED
- inferred by law from the acts of the contracting parties
as a matter of reason and justice, the circumstances
surrounding the transaction
- a necessary assumption that a contract existed
between
the parties by tacit
understanding

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Psychological Patterns in
PPR

Nonexistence of PPR

ACTIVITY-PASSIVITY RELATIONSHIP
Pre-employment exam to determine fitness for

work
Insurance eligibility examinations
Determination of sanity by court appointed
physician
Autopsy
Casual answers to medical queries in
unordinary
places (socials, parties,
etc.)

seen in emergency room scenarios

GUIDANCE-COOPERATION RELATIONSHIP

conscious Pt seeks guidance from MD

Mutual Participation Relationship

Pt thinks he is equal to MD and that the
relationship
is in the nature of a negotiated
agreement between
equal parties.

Types of Services that may be sought by the

Patient

specific tests or examinations

examination to determine health status
examination, diagnosis, treatment recommendation
(without actual treatment)
emergency care and treatment
examination, diagnosis, treatment of particular
problems
examination, diagnosis, treatment of all medical
conditions
follow-up care

MD's Duties
and Obligations
...consequent to PtMD Relationship

Medical Services may be specific,

limited or comprehensive.

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MD Duties and Obligations consequent to

MD Duties and Obligations consequent to

PPR

PPR

Possess the knowledge and skill expected on

an average physician
Knowledge expected of a GP is different
from that of a specialist

Use such knowledge and skill with

ordinary care and diligence
customary std. care based on conduct
prevailing in the area

MD Duties and Obligations consequent to

PPR

Rules of Customary Standards

Locality Rule
- std of care as applied in MD's locality

"Similar "Locality Rule

- expansion of original rule
- std of care as applied by MDs in similar
localities
under similar circumstances

National Std of Care Rule

-technological advances
-opportunities for post-grad seminars and
training

Exercise the Best Judgment

Honest errors of judgment in
management does not always mean
NEGLIGENCE, provided it is not so
gross.

Observe Utmost Good Faith

Honesty in expressing medical opinion
Timely notice of serious tendency
Unprofessional to exaggerate Pt's
condition

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PPR does not contemplate any of the ff promises or

guaranties:

Patient's Duties and

Obligations

1. Tx Success
2. Tx benefits pt
3. Tx to produce certain or specific results
4. Tx will not harm pt
5. MD will not commit honest mistakes or
errors

...consequent to Pt-MD
Relationship

Implication of PPR is the rendering of medical services.

Patient's duties and obligations

consequent to PPR

Give an honest medical history of the disease.

Cooperate and follow MD's orders even if w/pain,

discomfort or difficulties.
Inform MD of events resulting from treatment.
Convey that he understands contemplated course

of action, things expected of him after being duly

instructed.

PPR in Special Situations

Curbstone, sidewalk, social consults

Second opinions
Substitute and covering physicians
House staff
ER MDs
Phone contacts

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Termination of Pt-MD Relationship

Recovery (not necessarily complete) from

the condition being treated.
MD considers his further service will not
longer be beneficial to Pt.
MD withdraws service
Due notice to Pt.
Pt's consent
Provide ample time to look for a
replacement

Discharge by MD

Termination of Pt-MD
Relationship

DOM or MD incapacity
RIP
Fulfillment of the obligations
stipulated in the contract
In emergency cases, upon
abatement or when the attending MD
takes over
Expiration of specified period
Mutual agreement to terminate

Abandonment
Unilateral severance by MD without reasonable
notice to Pt at a time when continued care is
still necessary
Intent to terminate w/o Pts consent
Failure to attend to Pt as frequently as due care demands
(constructive abandonment)

An MD must conduct himself

PROFESSIONALLY
AT ALL TIMES.

MD illness or disability
Not considered abandonment

No abandonment when MD refuses to enter

into PPR

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HEALTH CARE
MALPRACTICE

Health Care
MALPRACTICE

PROFESSIONAL
MISCONDUCT
UNREASONABLE LACK OF SKILL

UNFAITHFULNESS IN CARRYING OUT

PROFESSIONAL OR FIDUCIARY DUTIES
DOES NOT IMPLY GENERAL LACK OF
COMPETENCE
MORE THAN MERE MISTAKE OR BAD
OUTCOME

LIABILITY GENERATING CONDUCT

HEALTH CARE PROFESSIONAL
ADVERSE OUTCOME OF PATIENT
CARE

GROUNDS FOR MALPRACTICE

1. NEGLIGENCE
2. INTENTIONAL FELONIES
3. FAILURE OF INFORMED CONSENT
4. ABANDONMENT
5. BREACH OF CONFIDENTIALITY
6. BREACH OF CONTRACT
WARRANTY TO CURE

7. MD's LIABILITY FOR OTHER HEALTH CARE

PROVIDERS
8. Etc

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NEGLIGENCE

Negligence

BREACH OF DUTY TO BEHAVE REASONABLY AND

PRUDENTLY UNDER THE CIRCUMSTANCES, CAUSING
FORESEEABLE HARM TO OTHERS
FOUR ELEMENTS FOR A SUCCESSFUL SUIT (4 Ds)

DUTY
DERELECTION OF DUTY
DIRECT CAUSATION
DAMAGES

THE FOUR ELEMENTS MUST BE PROVEN

FOUR DISTINCT ELEMENTS ARE NECESSARY TO

PROVE NEGLIGENCE AS A CAUSE OF ACTION:
1. A DUTY OWED, OR STANDARD OF CONDUCT
REQUIRED TO BE MET BY THE ALLEGED
WRONGDOER IN RELATION TO THE INJURED
PARTY.
2. FAILURE TO CONFORM TO THAT DUTY OR
STANDARD OF CONDUCT.
3. A LINK SHOWING THAT THE FAILURE WAS A
"PROXIMATE" OR DIRECT CAUSE OF INJURY TO
THE COMPLAINING PARTY.

DUTY
MD MUST ACT ACCORDING TO SPECIFIC
STDS OF CARE ESTABLISHED BY THE
PROFESSION

REQUIRES EVERY MD TO POSSESS THE

REQUISITE SKILL, CARE, AND DILIGENCE
THAT A PARTICULAR CASE DEMANDS

4. ACTUAL LOSS OR INJURY THAT CAN BE MEASURED

FOR COMPENSATION IN MONEY DAMAGES

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Standard of Care
STD OF CARE IS AN OBJECTIVE
STANDARD

NOT SET BY BODIES OF MDs OR

PROFESSIONAL SOCIETIES
NOT DEPENDENT ON ANY INDIVIDUAL
MD'S OWN KNOWLEDGE

BENCH ULTIMATELY DETERMINES THE

STD BASED ON EXPERT MEDICAL
TESTIMONY

Standard of Care
WHEN EXPERT TESTIMONY NOT REQUIRED
GROSS SHOWING OF LACK OF CARE`

Standard of Care
DETERMINATION MAY REQUIRE EXPERT
TESTIMONY

HIGHLY TECHNICAL

PROVIDE GUIDANCE TO ARRIVE AT A

FAIR AND JUST VERDICT

SPECIALTY STD MAY OFTEN BE HIGHER

THAN THAT REQUIRED FOR GPs

DERELICTION OF DUTY
PHYSICIAN DID NOT COMPLY WITH DUTY
TOWARD PATIENT
FAILS TO ACT ACCDG TO NORMS OR STDS
THROUGH COMMISSION OR OMISSION OF
CERTAIN ACTS

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DIRECT CAUSATION
ALLEGED ACTS OR OMISSION MUST BE
THE PROXIMATE CAUSE OF THE PATIENTS
INJURY
ANY INTERVENING MATERIAL CAUSE OTHER
THAN THE DOCTORS NEGLIGENCE WILL NOT
RESULT IN LIABILITY

DIRECT CAUSATION
TESTS TO DETERMINE PROXIMATE CAUSE
1. BUT FOR or SINE QUA NON RULE
NEGLIGENT ACT IS MATERIAL TO THE
OCCURRENCE OF THE EVENT
END RESULT WOULD NOT BE THE SAME IF
DEFENDANTS CONDUCT WAS REMOVED
FROM THE SCENARIO

DIRECT CAUSATION
PROXIMATE CAUSE .a.k.a. LEGAL CAUSE
THAT WHICH IN THE NATURAL AND CONTINOUS
SEQUENCE, UNBROKEN BY ANY INTERVENING
CAUSE, PRODUCE INJURY WITHOUT WHICH THE
RESULT WOULD NOT HAVE OCCURED

DIRECT CAUSATION
TESTS TO DETERMINE PROXIMATE CAUSE
2. FORESEEABILITY TEST
PATIENT'S DAMAGES MUST BE THE
FORESEEABLE RESULT OF DEFENDANT HEALTH
CARE PROVIDER'S SUBSTANDARD PRACTICE
NEED ONLY TO PROVE THAT THE PATIENT'S
INJURIES WERE OF A TYPE THAT WOULD HAVE
BEEN FORESEEN BY A REASONABLE PHYSICIAN
AS LIKELY RESULTING FROM THE BREACH OF
MEDICAL STANDARD OF CARE

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DIRECT CAUSATION
TESTS TO DETERMINE PROXIMATE CAUSE
3. CAUSE AND CONDITION TEST
ALLEGED CONDITION MUST BE AN ACTIVE CAUSE
AND NOT A PASSIVE ONE OF THE EVENT IN
QUESTION

4. NATURAL AND PROBABALE CONSEQUENCE

TEST
EVENT APPEALS TO A RATIONAL MIND AS A
NATURAL OR LOGICAL CONSEQUNCE OT THE
DOCTORS CONDUCT

DAMAGES
NO MONETARY CLAIM CAN BE RECOVERED
WITHOUT PROOF THAT THE PATIENT ACTUALLY
INCURRED PHYSICAL INJURY

DAMAGES
IF THE PATIENT IS NOT HARMED, THERE CAN BE
NO RECOVERY
DAMAGES ARE MERELY PART OF THE REMEDY
ALLOWED FOR THE INJURY CAUSED BY A BREACH OR
WRONG

CONTEMPLATES ACTUAL LOSS OR DAMAGE TO

THE INTERESTS OF THE PATIENT BY THE MD'S
BREACH OF THE STD OF CARE

PHYSICIANS' DEFENSES
AGAINST CLAIMS OF NEGLIGENCE
Did not violate the four elements
ASSUMPTION OF RISK
PATIENT ASSUMES RESPONSIBILITY FOR ALL
POSSIBLE COMPLICATIONS IN THE
CONTEMPLATED TREARTMENT
INFORMED CONSENT CRITICAL

CONTRIBUTORY NEGLIGENCE
PATIENTS OWN NEGLIGENCE WAS THE
IMMEDIATE AND PROXIMATE CAUSE OF THE
INJURY NO RECOVERY
PHYSICIANS NEGLIGENCE IS THE PROXIMATE
CAUSE AND PATIENTS NEGLIGENCE MERELY
CONTRIBUTORY- MITIGATION OF DAMAGES

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INFANTICIDE
KILLING OF CHILD LESS THAN 3 DAYS OLD

ABORTION

OTHER DEFENSES

INTENTIONAL
UNINTENTIONAL

SUIT NOT PROPERLY LAID

PHYSICAL INJURIES

ACTS IN HIS CAPACITY AS AN EMPLOYEE

INTENTIONAL
FELONIES

HOMICIDE

STATUTE OF LIMITATIONS
PRESCRIPTIVE PERIOD FOR DEPENDS ON
NATURE OF CRIME
HOMICIDE - 20 YEARS
PHYSICAL INJURIES 5 TO 15 YEARS

ACTS OF LASCIVIOUSNESS
VICTIMS CAN BE MALE AND FEMALES

ACTS OF LASCIVIOUSNESS WITH CONSENT

OFFENDED IS >12 BUT <18
VICTIMS ARE FEMALES ONLY

FAILURE OF INFORMED CONSENT

SCOPE OF CONSENT
DELIMITS WHAT MD CAN DO OR NOT DO
MUST NOT BE EXCEEDED
OUTSIDE THE SCOPE
WRONG PROCEDURE
RIGHT PROCEDURE PLUS A WRONG PROCEDURE

NEGLIGENCE MAY RESULT WHEN MD PROCEEDS

TO DIAGNOSE AND TREAT A PATIENT WITHOUT
GETTING AN ADEQUATE INFORMED CONSENT
FOR SUCH DIAGNOSIS AND TREATMENT

WITHIN SCOPE
CONDITIONS NOT ANTICIPATED WHICH IF NOT CORRECTED
ENDANGERS LIFE OR HEALTH
EXTENSION OF PROCEDURE TO TREAT AN EMERGENCY

MD ACTIONS NOT BASED ON INFORMED

CONSENT IS A DEVIATION FROM RECOGNIZED
STD OF CARE

CONSENT TO ONE PROCEDURE DOES NOT IMPLY CONSENT TO

A PROHIBITED EXTENSION OF SUCH PROCEDURE.

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MD DUTY TO ADVISE THE PATIENT

OR PATIENT'S RESPONSIBLE PARTY

SITUATIONS WHERE
IMPLIED CONSENT READILY APPARENT

1. PROBLEM TO BE TREATED OR SYMPTOM TO BE DIAGNOSED

EMERGENCY

2. PROPOSED TEST OR PRESCRIPTION

MINOR REQUIRING EMERGENCY CARE

3. RISKS, CONSEQUENCES, COMPLICATIONS OR SIDE

EFFECTSOF THE TEST OR TREATMENT

COMATOSE REQUIRING IMMEDIATE TX

MENTALLY INCOMPETENT

4. INDICATIONS FOR THE CHOICE

UNAVAILABILITY OF A LEGAL GUARDIAN

5. EXPECTED RESULTS TO BE ACHIEVED BY THE TEST OR

TREATMENT

INTOXICATED PATIENT TEMPORARILY LACKING

CAPACITY TO REASON

6. REASONABLE AVAILABLE ALTERNATIVES METHODS AND

COSTS OF DIAGNOSIS AND TREATMENT

PATIENT WHO DID NOT SIGN CONSENT FORM

BUT ALLOWED TX TO PROCEED W/O
OBJECTIONS

7. CONSEQUENCES OF DOING NOTHING

Responsibility for Informed

Consent
Attending physician is responsible for
getting the informed consent

such responsibility cannot be

delegated
but authority may be delegated to
another MD

ABANDONMENT

GENERALLY, NO DUTY TO TREAT ANY PERSON

WHO IS NOT ALREADY A PATIENT

NO PHYSICIAN CAN BE AVAILABLE AT ALL TIMES

AND IN ALL CIRCUMSTANCES

BRIEF LAPSES OF COVERAGE ARE GENERALLY

REASONABLE

PROVIDE AN ADEQUATE SURROGATE IF

UNAVAILABLE FOR ONE REASON OR ANOTHER

LIABLE IF UNAVAILABILITY OF COVERGAE FOR

SEVERAL HOURS HARMS HOSPITAL PATIENTS

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BREACH OF CONFIDENTIALITY
CONFIDENTIALITY NOT ABSOLUTE
IN LIFE THREATENING EMERGENCIES TO
ADEQUATELY MANAGE THE PATIENT
INFORMATION TO OTHER TREATING PHYSICIANS
AND CONSULTANTS
TO OTHER THIRD PARTIES WITH PATIENT'S
CONSENT

BREACH OF CONTRACT
OR WARRANTY TO CURE

MD LIABLE FOR PROMISES TO

EFFECT A CURE OR TO ACHIEVE A
PARTICULAR RESULT
BASIS OF SUIT IS BREACH OF
CONTRACT
NO NEED TO SHOW COMPLIANCE WITH
MEDICAL STD OF CARE

MD LIABILITY FOR OTHER HEALTH

CARE PROVIDERS
MDs

HAVE THE DUTY TO THEIR

PATIENTS TO SUPERVISE
PROPERLY OTHER HEALTH TEAM
MEMBERS AND SUBORDINATES

DUTY

STD OF CARE OF SUBORDINATES IS

THAT OF THE SAME PROFESSION OR
OCCUPATION AND NOT THAT OF AN
MD PERFORMING THE SAME SERVICE

CREATES VICARIOUS LIABILITY

ONE PERSON LIABLE THE WRONGFUL

ACTS OR OMISSIONS OF ANOTHER

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MD LIABILITY FOR OTHER HEALTH

CARE PROVIDERS

MD LIABILITY FOR OTHER HEALTH

CARE PROVIDERS

REFERRALS

PHYSICIANS' EMPLOYEES

FAILURE

TO REFER MAY MAKE MD LIABLE IF

REFERRAL IS AN ESTABLISHED STD OF CARE

PHYSICIANS MAY BE LIABLE FOR HIRING,

TRAINING, ASSIGNING, SUPERVISING, OR
RETAINING EMPLOYEES WHO HARM
PATIENTS OR OTHERS

Doctrine of Vicarious Liability

LEGAL
PRINCIPLES / DOCTRINES
IN
MEDICAL MALPRACTICE

APPLIED WHEN AN EMPLOYER- EMPLOYEE

RELATIONSHIP BETWEEN THE HEALTH
CARE FACILITY AND THE PHYSICIAN
HOSPITAL IS RESPONSIBLE FOR THE ACTS
AND OMISSIONS OF ITS EMPLOYEES
PROVIDED THESE WERE DONE WITHIN THE
SCOPE OF EMPLOYMENT

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Doctrine of Independent Contractor

*To escape liability, must prove that diligence

of a good father of a family to prevent damage
was observed. (Art. 2180 NCC)

I C ONE WHO WORKS WITHOUT THE

CONTROL AND SUPERVISION OF THE
EMPLOYER
PERSONALLY LIABLE FOR HIS
NEGLIGENT ACTS
CONSULTANTS WHO BRING IN PRIVATE
PATIENTS TO THE HOSPITAL ARE I Cs

Doctrine of Ostensible Agent

(Reliance Theory)

CAPTAIN OF THE SHIP DOCTRINE

MDs WHO RENDER SERVICE TO

HOSPITALS AND PAID ON
COMMISSION BASIS

DOES NOT MEAN MDs CAN TOTALLY

DISREGARD HOSPITAL POLICIES

HOSPITAL EMPLOYEE TEMPORARILY

COMES UNDER THE SUPERVISION AND
CONTROL OF ANOTHER WHILE
PERFORMING DUTIES
HOSPITAL EMPLOYEES ORDERED BY PRIVATE MD
TO PERFORM PARTICULAR FUNCTION

I.E., PATHOLOGISTS, RADIOLOGISTS, E.R. MDs

MD ACTS AS I.C.
WHILE NOT EMPLOYEES, HOSPITAL MAY BE
HELD LIABLE FOR NEGLIGENT ACTS OR
OMMISSIONS
PATIENTS ARE HOSPITALS NOT THE MDs

DEEMED TO BE BORROWED FROM THE

HOSPITAL AND PRIVATE MD BECOMES
TEMPORARY EMPLOYER
ACTS OF OMMISSIONS ARE THE RESPONSIBILTIY OF
THE BORROWER NOT THE HOSPITAL

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CAPTAIN OF THE SHIP DOCTRINE

JOINT AND SEVERAL LIABILITY

LEGAL CONCEPT:

LIABILITY RESTS WITH THE

CAPTAIN FOR THE WRONGFUL
ACTS OF THOSE UNDER HIS
CONTROL AND THOSE WHEREIN HE
HAS EXTENSION OR CONTROL

WHERE TWO OR MORE DEFENDANTS

HAVE BEEN HELD JOINTLY AND
SEVERALLY LIABLE IN FAVOR OF A
PLAINTIFF IN JUDGEMENT, THE
JUDGMENT MAY BE ENFORCED
AGAINST ANYONE OF THEM

JOINT AND SEVERAL LIABILITY

COURT FINDS SEVERAL DEFENDANTS LIABLE

PRORATES EXTENT OF LIABILITY TO EACH

Surgeon - 30%; Anesthesiologist 70% etc.

RES IPSA LOQUITUR

Patient plaintiff can proceed against any of

the participants for the full amount of
damages

NATURE OF THE INJURY SUGGESTS

NEGLIGENCE
EXPERT TESITMONY MAY NOT BE REQUIRED

Defendants can have the money reimbursed

by other co-defendants

THE THING SPEAKS FOR ITSELF.

COMMON KNOWLEDGE CAN DETERMINE

THE PROPER STD OF CARE

RULES OF EVIDENCE STILL APPLY

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Doctrine of Assumption of Risk

Voluntary assumption of risk of injury from

a known danger is barred from recovery,
if injured
"Volenti non fit injurea" - a person who
assents and is injured is not regarded in
law to be injured

knowledge and consent (informed)

negligence not excused

Physician Liabilities
ADMINISTRATIVE
CIVIL
CRIMINAL

Sole/Shared Responsibility
Two or more independent practitioners
caring for the same patient are each
liable for his own acts and for failure to
prevent the negligent acts of the other
which he has observed, or which in the
exercise of ordinary diligence, he
should have observed.

MALICIOUS PROSECUTION
LAWSUIT
claims physician was sued with malice
for no good reason

necessary elements:
judicial proceeding has been initiated or
continued by the patient vs. the physician
physician prevailed in this proceeding
no probable cause to institute the
proceeding
proceeding was instituted because of
malice

physician sustained injury

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MALICIOUS PROSECUTION
LAWSUIT

This type of counter-suit not available if

the patient prevailed regardless of tactics
used (i.e., unfair)
Catch 22:
Sue using other legal theories (i.e.,
defamation, etc.)

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