MEDICAL NEGLIGENCE AND MALPRACTICE

SAINT LOUIS UNIVERSITY – SCHOOL OF LAW

 SOURCES OF OBLIGATION

1. Law
2. Contracts
3. Quasi-Contracts
4. Delict
5. Quasi-delicts
 MEDICAL NEGLIGENCE
 Form of negligence
 Failure of a physician or surgeon to apply to
his practice of medicine that degree of care
and skill which is ordinarily employed by
the profession generally, under similar
conditions, and in like surrounding circumstances
 MEDICAL MALPRACTICE
 Medical malpractice suits fall into the genre of claims
based on tort, called quasi-delicts.
 Negligence suits require proof that a party failed to
observe, for the protection of the interest of another
person, that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby such
other person suffers injury.
 It is the omission to do something which a reasonable
man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable
man would not do.
 MEDICAL MALPRACTICE
 The State has a compelling interest to enact measures
to protect the public from “the potentially deadly
effects of incompetence and ignorance in those who
would undertake to treat our bodies and minds for
disease or trauma.”
 ELEMENTS OF MEDICAL
MALPRACTICE

1. DUTY
2. BREACH OF DUTY
3. INJURY
4. PROXIMATE CAUSATION
 DUTY
 Duty refers to the standard of behavior which
imposes restrictions on one’s conduct. Duty arises
when there is physician-patient relationship which is
generated when a patient engages the services of
a physician (Lucas v. Tuaño, G.R. No. 178763, April
21, 2009). Physicians have a duty to use at least
the same level of care that any other reasonably
competent doctor would use to treat a condition
under the same circumstances (Largo, 2007).
 BREACH OF DUTY
 The second element of breach is present when the
hospital or doctor does treatment in breach of
professional duties.

Example:
 A doctor that applies treatment without consulting the

patient’s history.
 When a doctor or hospital unjustifiably refuses to
proceed with treatment, or just suddenly abandons his
or her patient, the act can be considered as breach
of duty.
 INJURY

 The presence of the third element

arises where injury, liability or
even death arises as a
consequence of a negligent
medical treatment or procedure.
 PROXIMATE CAUSATION
 Proximate cause – a cause that directly
produces an event and without which the even
would not have occured.
 The injury must be the proximate result or
directly arose from the procedure conducted.
MERCURY DRUG VS. SEBASTIAN BAKING
G.R. NO. 156037, May 28, 2007
Sebastian Baking, went to the clinic of Dr. Cesar Sy for a
medical check up. After several tests, Dr. Sy prescribed two medical
prescriptions, namely:
1) Diamicron for his blood sugar; and
2) Benalize tablets for his triglyceride.
Respondent went to Mercury Drugstore to buy the prescribed
medicines. However, he was given Dormicrum (potent sleeping
tablet) instead of Diamicron. Sebastian took the medicines he bought
from the drugstore for three consecutive days unaware that it was
the wrong ones. On the third day, he figured in a vehicular accident
with another car. It appeared that he fell asleep while driving and
had no idea about what happened. Suspecting that the prescribed
medicines might have caused this, he went back to Dr. Sy and
shocked to know that his patient was given the wrong meds. He then
filed a case for damages against the drugstore.
Was the negligence the
proximate cause of
Sebastian’s accident?
Answer
 YES.
 Proximate cause is any cause that produces injury in
a natural and continuous sequence, unbroken by any
efficient intervening cause, such that the result would
not have occurred otherwise.
RULING OF THE SUPREME COURT
 The Supreme Court ruled that the proximate cause
of the accident was the petitioner’s employee’s
gross negligence. Hence, it made the drugstore
liable due to the negligent act of its employee.
Here, the vehicular accident could not have occurred
had petitioner’s employee been careful in reading
Dr. Sy’s prescription. Without the potent effects of
Dormicum, a sleeping tablet, it was unlikely that
respondent would fall asleep while driving his car,
resulting in a collision.
Is Mercury Drugstore liable
as an employer?
 YES. Article 2176 of the New Civil Code
provides that “Whoever by act or
omission causes damage to another,
there being fault or negligence, is
obliged to pay for the damage done.
 An employer of a negligent employee is
liable for the damages caused by the
latter. When an injury is caused by the
negligence of an employee, there instantly
arises a presumption of the law that there
has been negligence on the part of the
employer, either in the selection of his
employee or in the supervision over him,
after such selection.
The Court enumerated the three (3) elements
of Quasi-delict, to wit:

a. Damage suffered by the plaintiff;

b. Fault or negligence of the defendant; and
c. Connection of the cause and effect
between the fault or negligence of the
defendant and the damage incurred by the
plaintiff.
 MEDICAL MALPRACTICE
 When a doctor, hospital or medical
professional failed to perform the necessary
medical services on a patient according to the
degree of skill required from an ordinary
practitioner of their respective professions, then
a cause of action arising from negligence or
quasi-delict exists.
 MEDICAL MALPRACTICE
 In order to successfully pursue such a claim, a
patient must prove that a healthcare 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 reasonably prudent provider
would not have done; and that that failure or
action caused injury to the patient. Hence, there
are four elements involved in medical negligence
cases: duty, breach, injury and proximate
causation.
 DOCTRINES
 RES IPSA LOQUITOR
As to Physicians:
 CAPTAIN OF THE SHIP DOCTRINE

 DOCTRINE OF INFORMED CONSENT

As to Hospitals:
 DOCTRINE OF CORPORATE RESPONSIBILITY

 DOCTRINE OF APPARENT AUTHORITY

(HOLDING OUT THEORY)
 RES IPSA LOQUITOR
 “the thing speaks for itself”

 The negligence is clear by a simple examination of

the injury or the circumstances surrounding the
medical treatment given.
CAPTAIN OF THE SHIP DOCTRINE

 The operating surgeon is the person in

complete charge of the surgery room
and all personnel connected with the
operation. Their duty is to obey his
orders {Rural Educational Assn v. Bush,
42 Tenn. App. 34, W. 2d 761 (1956)}.
DOCTRINE OF INFORMED CONSENT

 A physician has a duty to disclose what a reasonably

prudent physician in the medical community in the exercise
of reasonable care would disclose to his patient as to
whatever grave risks of injury might be incurred from a
proposed course of treatment, so that a patient,
exercising ordinary care for his own welfare, and faced
with a choice of undergoing the proposed treatment, or
alternative treatment, or none at all, may intelligently
exercise his judgment by reasonably balancing the
probable risks against the probable benefits (Li v. Sps.
Soliman, G.R. No. 165279, June 7, 2011).
DOCTRINE OF INFORMED CONSENT

 It requires doctors, before administering

treatment to their patients, to disclose
adequately the material risks and side effects
of the proposed treatment. (Li v. Sps. Soliman, G.R.
No. 165279, June 7, 2011).
DOCTRINE OF CORPORATE RESPONSIBILITY

 The hospital has the duty to exercise

reasonable care to protect from
harm all patients admitted into its
facility for medical treatment hence
it is liable for the negligent acts of its
health professionals (PSI v. Agana,
G.R. No.126297, January 31, 2007).
DOCTRINE OF CORPORATE RESPONSIBILITY

 A hospital has the duty to see to it that

it meets the standard of responsibilities
for the care of patients. Such duty
includes the proper supervision of the
members of its medical staff.
 DOCTRINE OF APPARENT AUTHORITY
(HOLDING OUT THEORY)
 Where it can be shown that a hospital, by its
actions, has held out a particular physician as
its agent and/or employee and that a patient
has accepted treatment from that physician in
the reasonable belief that it is being rendered
in behalf of the hospital then the hospital will
be liable for the physician’s negligence (PSI v.
Agana, G.R. No.126297, January 31, 2007).
 REPUBLIC ACT NO. 10918
 RA 10918
AN ACT REGULATING AND MODERNIZING THE PRACTICE
OF PHARMACY IN THE PHILIPPINES, REPEALING FOR THE PURPOSE
REPUBLIC ACT NUMBERED FIVE THOUSAND NINE HUNDRED TWENTY-ONE
(R.A. NO. 5921), OTHERWISE KNOWN AS THE PHARMACY LAW

 THE SUMMARY OF REPUBLIC ACT NO. 5921

(Republic Act No. 5921 “The Pharmacy Law” as amended by E.O. 174)

OBJECTIVES:
 To govern the standardization and regulation of pharmaceutical

education;
 The examination for registration of graduates of schools of pharmacy;
and
 The supervision, control and regulation of the practice of pharmacy in the

Philippines.
CANDIDACY FOR BOARD EXAMINATION

Filipino Citizen
Of good moral character

Must have completed internship requirements

Graduate with degree in pharmacy

Ratings Required: A general average of at least

75%; No ratings below 50% in more than two
subjects; and failure to pass the board exam in three
consecutive attempts needs to enroll and undergo a
pre-board review course from a duly accredited
college of pharmacy.
 PRACTICE OF PHARMACY
1. Prepare or manufacture, analyzed, assay, preserve,
store, distribute or sell any medicine, drug chemicals,
cosmetics, pharmaceuticals, devices of contrivances used in
pursuance thereof;
2. Render pharmaceutical service in any office or drug and
cosmetic establishment where scientific, technological or
professional knowledge of pharmacy is applied;
3. Engage in teaching scientific, technological or professional
pharmacy subject in a college of pharmacy; or
4. Conduct or undertake scientific pharmaceutical research
for biological and bacteriological testings and
examinations.
PREREQUISITES FOR THE PRACTICE
OF PHARMACY

 Is at least 21 years of age;

 Passed the Board Exams

 Holder of valid certificate of

registration
 Grounds for Non registration
1) Convicted of an offense involving moral turpitude by a
court of competent jurisdiction;
2) Summarily adjudged by the Board as guilty for
misrepresentation or falsification of documents in
connection with the application for examination or for
violation of the General Instructions to Examinees;
3) Found guilty of immoral or dishonorable conduct by the
Board;
4) Medically proven to be addicted to any drug or alcohol
by a medical or drug testing facility accredited by the
government; and
5) Declared of unsound mind by a court of competent
jurisdiction.
 JURISPRUDENCE
INVOLVING A
PHARMACIST/
PHARMACY ASSISTANT
 MERCURY DRUG CORPORATION
vs. AURMELA GANZON
G.R NO. 165622, October 17, 2008

 Doctrine:
The profession of pharmacy demands great
care and skill. The Court reminded druggists to
exercise the highest degree of care known to
practical men. Petitioners Mercury Drug and
Ganzon have similarly failed to live up to high
standard of diligence expected of them as
pharmacy professionals. They were grossly
negligent in dispensing ear drops instead of the
prescribed eye drops to De Leon.
FACTS OF THE CASE
Judge Raul De Leon noticed that his left eye was
reddish. He also had difficulty reading. De Leon consulted
his friend Dr. Charles Milla about his irritated left eye. The
latter prescribed the drugs Cortisporin Opthalmic and
Ceftin. De Leon went to a branch of Mercury Drug Store
Corporation to buy the prescribed medicines. He showed his
prescription to petitioner Aurmela Ganzon, a pharmacist
assistant. Subsequently, he paid for and took the medicine
handed over by Ganzon. After applying 2-3 drops on De
Leon’s eye, he felt searing pain. He immediately rinsed the
affected eye with water, but the pain did not subside. Only
then did he discovered that he was given the wrong
medicine, Cortisporin Otic Solution.
ISSUE

 Are Mercury Drug

Corporation and the
pharmacy assistant liable?
RULING OF THE SUPREME COURT
YES. Mercury Drug and Ganzon failed to exercise the
highest degree of diligence expected of them.

Denying that they were negligent, Mercury Drug and

Ganzon pointed out that De Leon’s own negligence was the
proximate cause of his injury. They argued that any injury
would have been averted had De Leon exercised due
diligence before applying the medicine on his eye. Had he
cautiously read the medicine bottle label, he would have
known that he had the wrong medicine.

Mercury Drug and Ganzon can not exculpate themselves

from any liability. As active players in the field of dispensing
medicines to the public, the highest degree of care and
diligence is expected of them.
 In the United States case of Tombari v. Conners, it was
ruled that the profession of pharmacy demands care
and skill, and druggists must exercise care of a
specially high degree, the highest degree of care
known to practical men.
 In Fleet v. Hollenkemp, the US Supreme Court ruled that
a druggist that sells to a purchaser or sends to a
patient one drug for another or even one innocent drug,
calculated to produce a certain effect, in place of
another sent for and designed to produce a different
effect, cannot escape responsibility, upon the alleged
pretext that it was an accidental or innocent mistake.
 Smiths Admrx v. Middelton teaches Us that one
holding himself out as competent to handle drugs,
having rightful access to them, and relied upon by
those dealing with him to exercise that high degree
of caution and care called for by the peculiarly
dangerous nature of the business, cannot be heard
to say that his mistake by which he furnishes a
customer the most deadly of drugs for those
comparatively harmless, is not in itself gross
negligence.
JANUARY 29, 2017/ PUBLISHED IN AN
ARTICLE IN SUNSTAR
Phoebe Tejero went to Watsons Personal Care
Store in SM City Cebu to buy the medicine prescribed
by her doctor. However, instead of giving her
Cefalexin, the medicine that was written in her
prescription and was intended for her urinary tract
infection, the assistant pharmacist gave her Eltroxin,
and Tejero said she consumed all the tablets she
bought that was good for seven days. It was only
when she suffered severe headache and irritability
when she consulted her doctor again. It was found out
that because of the wrong medicine, Tejero said she
suffered from Iatrogenic Hyperthyroidism as
diagnosed by her doctor.
TEJERO CASE
Upon learning about it, Tejero went again to
Watsons to complain and one of its pharmacists even
accompanied her when she had her laboratory test
days after it. Tejero said a formal demand for
damages (because of the incident) was sent to the
store, to no avail. In a separate interview with
SunStar Cebu, Tejero said she formally filed the
complaint to remind the people concerned at Watsons
to be extra careful.

“They’re dealing with lives, so they must be extra

careful. I was traumatized because of the incident and I
may suffer the consequences for a lifetime,” she said.
TEJERO CASE
Lawyer Rene Abcede Jr., who serves as legal
counsel of Tejero said they will demand for
DAMAGES against Watsons since effects of their
negligence will affect his client for a lifetime.

“Consequences of the wrong medicine might

not take effect immediately to my client but as the
years go by, it might appear and might affect
her,” he said.
THANK YOU FOR LISTENING! 
The drugstore business is imbued with
public interest. The health and safety of
the people will be put into jeopardy if
drugstore employees will not exercise
the highest degree of care and
diligence in selling medicines.