Negligence & Medical Malpractice Dr.

Capulong January 27, 2012

Legal Medicine
Capulong, MD

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Negligence want of care required by the circumstances. Negligence is the failure to observe that degree of care, precaution and vigilance which the circumstances justly demand resulting in injury to another person. The existence of negligence is determined by the behavior of the person in the situation.

INJURY PROXIMATE CAUSATION That cause, which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred.

How do we determine if a person acted in a negligent manner? What is the standard of care? That which an ordinary prudent man would exercise under the same circumstances.

Failure to adhere to the standard of care

INJURY But for the physicians conduct the patient would not have been injured.

MEDICAL MALPRACTICE Any act or failure to act by a member of the medical profession that results to harm, injury, distress, prolonged physical or mental suffering or the termination of life to a patient while that patient is under the care of that medical professional o Doctors o Nurses o Midwives o Pharmacists o Dentists o Physical Therapists DUTY Duty to o o o o

Doctrine of Res Ipsa Loquitor The thing speaks for itself The fact of occurrence of injury raises the presumption of negligence. 1. 2. 3. The patient was injured in a manner that would not normally occur but for a breach of the applicable standard of care; He was injured by an agency or instrumentality within the exclusive control of the defendant; Other possible causes are sufficiently eliminated by the evidence such that the jury could reasonably conclude that the negligence was, more probably than not, that of the defendant.

Possess medical knowledge Possess the necessary skills Exercise care Use sound medical judgment

Doctrine of Vicarious Liability Liability for the tort of another Secondary or indirect liability Employer becomes liable for the acts of an employee Employee must be acting within the scope of their responsibilities Employer Employee relationship must exist and proven.

It is the responsibility of every doctor to practice medicine according to the ethical standards of his profession Every member of the healthcare team should follow the ethical codes of their profession Ordinary prudent man

Captain of the Ship Doctrine Assumes that the doctor is in complete control of everything and everyone in the OR. Largely abandoned in other jurisdictions.

Reasonably competent practitioner in the same class, acting in similar circumstances.

Borrowed Servant Doctrine BREACH Bad or unskillful practice by a physician or other professional in which the health or welfare of the patient is injured. Failure of a professional to follow the accepted standards of practice of his profession. Failure to diagnose or misdiagnosis. Failure to provide appropriate treatment. Unreasonable delay in treatment The physician borrows the nurses, med tech, residents etc. employed by the hospital to help him provide medical care to his patients.

Doctrine of Apparent Authority Or Ostensible Agent Fixes liability when there is no Employer-Employee relationship

Doctrine of Apparent Authority Or Ostensible Agent

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Duty of a hospital 1. 2. The principal holds itself out to the public as a provider of medical services through advertising or by an express representation. The patient looked to the hospital to provide competent medical care. 1) 2) 3) 4) the use of reasonable care in the maintenance of safe and adequate facilities and equipment; the selection and retention of competent physicians; the overseeing or supervision of all persons who practice medicine within its walls; and the formulation, adoption and enforcement of adequate rules and policies that ensure quality care for its patients

Is a Hospital Liable for Medical Malpractice? NO RAMOS vs. COURT OF APPEALS, DE LOS SANTOS MEDICAL CENTER, ET. AL April 11, 2002 No Employee-Employer relationship between Drs. Hosaka and Gutierrez and De Los Santos Medical Center Drs. Hosaka and Gutierrez are solely liable for their own negligent acts Is a Hospital Liable for Medical Malpractice? YES

Rogelio P. Nogales, et. al.vs.Capitol Medical Center, et. al. December 19 2006 Doctrine of Apparent Authority 1. 2. 3. 4. 5. 6. 7. Plaintiff was led to believe that the negligent person was an employee or agent of the hospital Appearance of authority The hospital knew that the person was claiming to be an agent/employee of the hospital The person relied upon the conduct of the hospital CMC granted hospital privileges to Dr. Estrada On admission, consent forms were printed on CMC letterhead The spouses Nogales were not informed that Dr. Estrada was an independent contractor Mr. & Mrs. Nogales chose Dr. Estrada because of his affiliation/employment with CMC which they characterized as a reputable hospital

PROFESSIONAL SERVICES, INC. vs. AGANA AGANA vs. JUAN FUENTES AMPIL vs. AGANA JANUARY 31, 2007 PSIs (Medical City Hospital) liability is based on: Doctrine of Apparent Authority Doctrine of Corporate Negligence

Doctrine of Apparent Authority By accrediting Dr. Ampil & Dr. Fuentes and publicly advertising their qualifications the hospital created the impression that they were its agents.

Doctrine of Corporate Negligence The hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patients safety and well-being while at the hospital. The duty of providing quality medical service is no longer the sole prerogative and responsibility of the physician. Hospitals now tend to organize a highly professional medical staff whose competence and performance need to be monitored by the hospitals commensurate with their inherent responsibility to provide quality medical care.

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