Medical Negligence, what do you need to prove for your action to prosper?

Dr. Fernando P. Solidum vs. People, G.R. No. 192123, 10 March 2014, gives the requisites for an action based on medical negligence, whether civil, criminal, or administrative, to prosper.

Specifically, the Supreme Court explained that it is necessary to prove by competent evidence the following elements:

1. the duty owed by the physician to the patient, as created by the physician-patient relationship, to act in accordance with the specific norms or standards established by his profession (standards of care);
2. the breach of duty by the physician's failing to act in accordance with the applicable standard of care;
3. the causation (i.e., there must be a reasonably close and casual connection between the negligent act or omission and the resulting injury); and
4. the damages suffered by the patient.

Standard of care, in the medical profession, refers to the specific norms or standards to protect the patient against unreasonable risk. As noted by the Supreme Court itself, no clear definition of the duty of a particular physician in a particular case exists and this standard must be determined in every case, with the judge weighing the testimonies of experts on both sides to ultimately determine the standard, as the trier of fact.

The discussion of the Supreme Court, which I find very clear, is quoted below for reference, thus -

"An action upon medical negligence — whether criminal, civil or administrative — calls for the plaintiff to prove by competent evidence each of the following four elements, namely: (a) the duty owed by the physician to the patient, as created by the physician-patient relationship, to act in accordance with the specific norms or standards established by his profession; (b) the breach of the duty by the physician's failing to act in accordance with the applicable standard of care; (3) the causation, i.e., there must be a reasonably close and causal connection between the negligent act or omission and the resulting injury; and (4) the damages suffered by the patient.

In the medical profession, specific norms or standards to protect the patient against unreasonable risk, commonly referred to as standards of care, set the duty of the physician to act in respect of the patient. Unfortunately, no clear definition of the duty of a particular physician in a particular case exists. Because most medical malpractice cases are highly technical, witnesses with special medical qualifications must provide guidance by giving the knowledge necessary to render a fair and just verdict. As a result, the standard of medical care of a prudent physician must be determined from expert testimony in most cases; and in the case of a specialist (like an anesthesiologist), the standard of care by which the specialist is judged is the care and skill commonly possessed and exercised by similar specialists under similar circumstances. The specialty standard of care may be higher than that required of the general practitioner. 

The standard of care is an objective standard by which the conduct of a physician sued for negligence or malpractice may be measured, and it does not depend, therefore, on any individual physician's own knowledge either. In attempting to fix a standard by which a court may determine whether the physician has properly performed the requisite duty toward the patient, expert medical testimony from both plaintiff and defense experts is required. The judge, as the trier of fact, ultimately determines the standard of care, after listening to the testimony of all medical experts. 

Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to provide guidance to the trial court on what standard of care was applicable. It would consequently be truly difficult, if not impossible, to determine whether the first three elements of a negligence and malpractice action were attendant." (Emphasis and underscoring supplied)

As can be seen from above, in Dr. Fernando P. Solidum, the prosecution was not able to prove the foregoing requisites beyond reasonable doubt, as it did not even establish the first three elements, namely, the duty on the part of Dr. Solidum to his patient; Dr. Solidum's breach thereof by failing to act in accordance with the standard of care appropriate for his particular profession in that particular situation; and the causation between Dr. Solidum's alleged negligent act and the untimely demise of the patient.

The Supreme Court thus reversed both the Court of Appeals and the trial court and acquitted Dr. Solidum of all charges.

x x x x x x

Note that, as an exception to the foregoing, the Supreme Court explained that in some cases of medical negligence, the doctrine of res ipsa loquitur is applicable.

The Supreme Court recognized that there are certain cases which are such of a character as to justify an inference of negligence as the cause for that harm. In these case, expert testimony on the standard of care applicable is not necessary, especially "when common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care has been exercised" (citing Ramos vs. Court of Appeals, G.R. No. 124354, 29 December 1999)

The doctrine of res ipsa loquitur, however, while recognized, should be applied cautiously and depends upon the circumstances of each case.

I am quoting again the discussion of the Supreme Court on this doctrine, as it presents an important caveat on the applicability of the said doctrine to medical malpractice cases, to wit -

"Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of that harm. The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given inference. 

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. 

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, among others. 

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. If there was such extraneous intervention, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he could." (citing Ramos vs. Court of Appeals, G.R. No. 124354, 29 December 1999; emphasis and underscoring supplied)

What is required for the defense of alibi to prosper?

The case of People vs. Obogne, G.R. No. 199740, 24 March 2014, sadly, is another case involving the rape of a mentally retarded minor.

After having been found guilty of simple rape, the accused appealed to the Supreme Court and questioned the admissibility of the victim's testimony, arguing that she is not a competent witness considering that she is mentally retarded or "incapable of making her perception known to others by reason of her mental incapacity".

The Supreme Court did not give credence to this argument, quoting with approval the decision of the trial court which found the victim fully capable of recalling and narrating what the accused did to her. The trial court also held that mental retardation per se does not affect a witness' credibility.

As to the defense of alibi (the accused claimed that he was at another place at the time of the incident), the Supreme Court again discarded this and claimed that his alibi does not satisfy the oft-cited standard for alibi to constitute a credible defense against any crime.

Specifically, the Supreme Court held that for alibi to prosper, "it must not only be shown that appellant was at another place at the time of the commission of the crime but that it was also impossible for him to be present at the crime scene".

In this case, the place where the accused claimed he was at the time of the rape was found to be just four (4) kilometers, or an hour or less, away from the place where the rape occurred. Hence, it was not impossible for the accused to have raped the 12-year old victim.

Is a child's testimony admissible?

Yes, a child is not incompetent to give testimony simply because of his age.

In People vs. Avendano, G.R. No. 137407, 28 January 2003, the Supreme Court explained that to be considered a competent witness, a child should possess the following:

1) Capacity of observation;

2) Capacity of recollection; and

3) Capacity of communication.

The Supreme Court further explained that it is the degree of the child's intelligence that determines the child's competence as a witness. "If the child is sufficiently mature to receive correct impressions by his senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth, then he is competent to testify," regardless of his age.

The Three-Day Notice Rule

Section 4, Rule 15 of the Rules of Court requires every written motion required to be heard, including the Notice of Hearing, to be served upon the adverse party at least three (3) days before the date of hearing. The requirement refers to "actual receipt" and not just the mailing thereof to the adverse party, which is usually the case for pleadings.

Commonly referred to as the "three day notice" rule, this rule imposes upon the movant the burden of making sure that the other party actually receives his motion at least three (3) days before the hearing so that the adverse party may have ample time to prepare for the same and meet the motion. Failure to comply with this rule will make the motion a mere scrap of paper, unworthy of recognition by the Court.

While basic, this rule (quite suprisingly) is still violated by practitioners. I myself, in fact, have invoked the three-day notice rule a number of times just to get the court to throw out the opposing party's motion or "scrap of paper".

More often than not, however, and unless the Court is in Quezon City which is the pilot court for the new procedural rules where discretion is not allowed, the Court allows the motion to be heard "in the interest of justice" hence the reason for the abuse by some practitioners.

Note also, however, that this is always not the case as there are judges who are strict on the application of this rule and would not hesitate to throw out a motion once the adverse party points to the non-observance of the required formalities. 

One instance is the case of Cabrera vs. Ng, G.R. No. 201601, 12 March 2014, where the trial court found the motion for reconsideration therein to have failed to comply with the three-day notice rule, thus rendering the same ineffective to toll the period of finality of the Court's earlier decision.

The case eventually reached the Supreme Court via a petition for review on certiorari under Rule 45 of the Rules of Court. In overturning the decision of the trial court and the Court of Appeals (which upheld the trial court), the Supreme Court looked into the essence of the rule, which is to "give the adverse party the opportunity to be heard" on the motion and held that the same was satisfied in this case.

Here, the Supreme Court noted that although the motion was received by the adverse party a few days after the date set for hearing, since the hearing was postponed twice and since the adverse party was actually able to file his opposition thereto, there was no reason for the trial court to throw out the motion for reconsideration on the ground of non-compliance with the three-day notice rule, thus -

"Nevertheless, the three-day notice requirement is not a hard and fast rule. When the adverse party had been afforded the opportunity to be heard, and has been indeed heard through the pleadings filed in opposition to the motion, the purpose behind the three-day notice requirement is deemed realized."

Consequently, the Supreme Court ruled that the trial court erred in denying the motion for reconsideration and directed the trial judge to proceed to consider the same within five (5) days from the finality of its (the Supreme Court) decision.

Can a disbarred lawyer be re-admitted to the Philippine bar?

Yes. Re-admission, however, would depend greatly on the discretion of the Supreme Court, who would first evaluate whether the applicant's re-entry as counselor-at-law would preserve public interest in the orderly and impartial administration of justice.

This was the ruling in Julieta Narag vs. Atty. Dominador M. Narag, A.C. No. 3405, 18 March 2014, where, in denying Atty. Narag's Petition for Re-admission to the Philippine Bar, the Supreme Court explained -

"Whether the applicant shall be reinstated in the Roll of Attorneys rests to a great extent on the sound discretion of the Court. The action will depend on whether or not the Court decides that the public interest in the orderly and impartial administration of justice will continue to be preserved even with the applicant's reentry as a counselor at law. The applicant must, like a candidate for admission to the bar, satisfy the Court that he is a person of good moral character, a fit and proper person to practice law. The Court will take into consideration the applicant's character and standing prior to the disbarment, the nature and character of the charge/s for which he was disbarred, his conduct subsequent to the disbarment, and the time that has elapsed between the disbarment and the application for reinstatement.” (Emphasis and underscoring supplied)

In Julieta Narag, Atty. Narag was disbarred in the year 1998 after being found guilty of gross immorality when he abandoned his family in order to live with a 17-year old paramour. 

On 29 November 2013, Atty. Narag filed a Petition for Re-admission alleging that he has already expressed extreme repentance and remorse to his wife and their children for his misgivings. Atty. Narag further claimed that his wife and his six children had already forgiven him on 10 June 2010 and presented an undated affidavit of his son, Dominador, Jr., attesting to the truth of Atty. Narag's claim.

Notwithstanding the foregoing, however, the Supreme Court still DENIED Atty. Narag's petition for re-admission to the Philippine Bar.

In denying his petition, the Supreme Court found that Atty. Narag has not really reformed, contrary to his claim of repentance. In fact, the Supreme Court found that Atty. Narag still lives with his paramour and that he has not rid himself of the grossly immoral act which made him inept to practice law.

As to the supposed forgiveness extended by his wife and children, the Supreme Court found the same to be mere hearsay, considering that only Dominador, Jr. submitted an affidavit to this effect. Nevertheless, the fact of forgiveness is immaterial to his re-admission as Atty. Narag is still committing a grossly immoral conduct (still living with a woman other than his wife).

Because of the foregoing, and despite the fact that Atty. Narag had engaged himself in various civic, social, and community activities, as well as bequeathed all his properties to his legal wife and children, the Supreme Court chose to uphold the disbarment of Atty. Narag and still deny him the privilege of practicing law in the country.

Just goes to show the high standards of moral integrity expected of those who practice law in the country, which, according to Supreme Court, should be "enjoyed only by those who continue to display unassailable character."

Re: Motion to Withdraw Information in Criminal Cases

Carolina B. Jose vs. Purita Suarez, G.R. No. 176111, 17 July 2013 held that "when a trial court is confronted to rule on 'a motion to dismiss a case or withdraw an Information', it is its 'bounden duty to assess independently the merits of the motion, and this assessment must be embodied in a written order disposing of the motion.'"

This means that the trial court cannot just perfunctorily deny a motion to withdraw an information and instead, as explained in Carolina B. Jose, must state and/or do the following:

1. Positively state that the evidence is sufficient to make out a case for the offense charged;
2. Include a discussion on the merits of the case;
3. Assess if the DOJ's conclusion is supported by evidence;
4. Look at the basis of the DOJ's recommendation;
5. Embody its assessment in the said Order; and
6. State the reason/s in denying the motion to withdraw Information.

The Supreme Court held that the trial court's failure to do any of the above constitutes grave abuse of discretion amounting to excess of jurisdiction; hence correctible by certiorari, as in the case above where the trial court denied the motion to withdraw information by saying that it appeared "unmeritorious" without more.

---

Food for thought: If the trial court is made to make these findings in its Order denying the motion to withdraw information, can it be accused of pre-judgment or bias on the basis of the said Order later on, thus giving ground for inhibition?

Furthermore, assuming arguendo that the prosecution insists on withdrawing the Information, can the trial court compel the prosecutor to prosecute even though he did not want to do the same to begin with? Would this not also eventually result in the dismissal of the case if the prosecutor lacks the conviction necessary to prosecute the case zealously?

When real property is sold due to delinquent real property taxes, should you always deposit the amount for which it was sold before you can assail its validity?

Section 267 of the Local Government Code clearly states that before one can assail the validity of a tax sale of real property, the petitioner must first deposit the amount for which the property was sold (i.e., purchase price), together with interest of two percent (2%) per month from the date of sale to the time of the institution of the action, thus -

"Section 267.Action Assailing Validity of Tax Sale. — No court shall entertain any action assailing the validity or any sale at public auction of real property or rights therein under this Title until the taxpayer shall have deposited with the court the amount for which the real property was sold, together with interest of two percent (2%) per month from the date of sale to the time of the institution of the action. The amount so deposited shall be paid to the purchaser at the auction sale if the deed is declared invalid but it shall be returned to the depositor if the action fails.

Neither shall any court declare a sale at public auction invalid by reason or irregularities or informalities in the proceedings unless the substantive rights of the delinquent owner of the real property or the person having legal interest therein have been impaired."

In Spouses Plaza vs. Lustiva, et al., G.R. No. 172909, 5 March 2014, the Supreme Court explained that this deposit is a jurisdictional requirement, the non-payment of which warrants the dismissal of the action.

Hence, given the characterization above, it is clear that the failure to make this deposit will render an action annulling a tax/auction sale futile.

However, is a deposit necessary at all times?

The answer is No.

In the same case of Spouses Plaza, the Supreme Court explained that the deposit is only required in initiatory actions assailing the validity of tax sales. This is clear from the use of the terms "entertain" and "institute" which undoubtedly refer to the filing of the complaint or petition, as the case may be, in the first instance. The title of Section 267, in fact, is clear on the scope or applicability of this provision.

In Spouses Plaza, the respondents therein raised the defense that the tax sale (from which the petitioners allegedly derived their title) is a void sale. The petitioners argued that this defense cannot be entertained because the respondents failed to deposit the amount of the purchase price, together with interest, with the court in accordance with Section 267. Hence, the defense of nullity of the auction sale should be ignored.

The Supreme Court, in resolving the petition, dismissed the petitioners' argument and explained that the Section 267 is inapplicable because the main case was for injunction and damages, with the issue of nullity of the auction sale raised by the respondents only as a defense, and in no way converted the action to an action for annulment of a tax sale.

Note, however, that although the respondents did not institute an action to annul the tax sale, the effect of their victory in the RTC (which dismissed the main case while the Petition for Review was pending with the SC) is the same - the Petitioners were found not entitled to the land in question because there had been no valid auction sale.

So, it appears that the invalidity of an auction sale, if raised as a defense, will not result in the application of Section 267 (hence, making it cheaper for the part of the defendant to resist the takeover of his or her land). While an owner who desires to be more proactive in the protection of his rights will be penalized more by requiring him/her to first deposit the purchase price plus interest before the court can even take cognizance of his action.

Can the trial court just award attorney's fees without explaining the basis for the same?

No, if the trial court fails to justify and clearly explain the basis for the award of attorney's fees in its decision, then the same should be deleted.

This was ruling in Ledda v. BPI, G.R. No. 200868, 21 November 2012, where the Supreme Court deleted the award of attorney's fees in favor of BPI since the trial court failed to explain its basis, to wit -

“Settled is the rule that the trial court must state the factual, legal or equitable justification for the award of attorney's fees. The matter of attorney's fees cannot be stated only in the dispositive portion of the decision. The body of the court's decision must state the reasons for the award of attorney's fees. In Frias v. San Diego-Sison, the Court held:

'Article 2208 of the New Civil Code enumerates the instances where such may be awarded and, in all cases, it must be reasonable, just and equitable if the same were to be granted. Attorney's fees as part of damages are not meant to enrich the winning party at the expense of the losing litigant. They are not awarded every time a party prevails in a suit because of the policy that no premium should be placed on the right to litigate. The award of attorney's fees is the exception rather than the general rule. As such, it is necessary for the trial court to make findings of facts and law that would bring the case within the exception and justify the grant of such award. The matter of attorney's fees cannot be mentioned only in the dispositive portion of the decision. They must be clearly explained and justified by the trial court in the body of its decision. On appeal, the CA is precluded from supplementing the bases for awarding attorney's fees when the trial court failed to discuss in its Decision the reasons for awarding the same. Consequently, the award of attorney's fees should be deleted.'

In this case, the trial court failed to state in the body of its decision the factual or legal reasons for the award of attorney's fees in favor of BPI. Therefore, the same must be deleted.” (Emphasis and underscoring supplied)

Actionable Documents; what happens if you fail to properly contest an actionable document?

When the basis of your complaint or defense is founded on a written instrument or document (i.e., contract of loan, deed of sale, etc.), that instrument is considered an “actionable document”.

Actionable documents (the substance thereof) not only need to be alleged in the pleading, but it or a copy thereof must also be attached to the pleading (complaint or answer) as an exhibit, or at the very least, reproduced or set forth therein (Section 7, Rule 8 of the Rules of Court).

To deny an actionable document, specific denial is not enough. The denial must likewise be under oath (i.e., verified). Note that, in ordinary cases (meaning cases not based on actionable documents), one need only to specifically deny the allegations in the complaint without need of executing a verification of the Answer or the Reply, as the case may be, but if an actionable document is being contested or denied, verification is necessary, as this is the express requirement found in Section 8, Rule 8 of the Rules of Court, to wit -

"SEC. 8. How to contest such documents. - When an action or defense is founded upon a written instrument, copied in or attached to the corresponding pleading as provided in the preceding Section, the genuineness and due execution of the instrument shall be deemed admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the facts; but the requirement of an oath does not apply when the adverse party does not appear to be a party to the instrument or when compliance with an order for an inspection of the original instrument is refused.” (underscoring supplied)

What happens then if an actionable document is not properly denied or contested?

The failure to properly contest an actionable document will result in the admission of the “genuineness and due execution” of the said document.

Spouses Santos v. Alcazar, G.R. No. 183034, 12 March 2014 explains what is meant by the admission of the “genuineness and due execution”of a document, thus -

“By the admission of the genuineness and due execution [of such document] is meant that the party whose signature it bears admits that he signed it or that it was signed by another for him with his authority; that at the time it was signed it was in words and figures exactly as set out in the pleading of the party relying upon it; that the document was delivered; and that any formal requisites required by law, such as a seal, an acknowledgment, or revenue stamp, which it lacks, are waived by him. Hence, such defenses as that the signature is a forgery . . .; or that it was unauthorized . . .; or that the party charged signed the instrument in some other capacity than that alleged in the pleading setting it out . . .; or that it was never delivered . . ., are cut off by the admission of its genuineness and due execution." (emphasis and underscoring supplied)

Basically, the admission of the genuineness and due execution of a document means that the document exists and is in all respects the one signed or executed by the party against whom it is raised. This, of course, does not mean that the plaintiff is already entitled to judgment as a matter of right, but only that the document is what it purports to be. A party is not precluded from raising any defense which will rebut the effect of the actionable document, and thus defeat the plaintiff's cause of action against him (i.e., payment, prescription, etc.).

In Segundino Toribio, et al. vs. Judge Abdulwahid A. Bidin, G.R. No. 57821, 17 January 1985, the Supreme Court explained that the reason behind the rule requiring a specific denial under oath is so that the adverse party (the one who introduces the actionable document) will know beforehand whether he will have to meet the issue of genuineness and due execution of the document during trial. It is likewise there to relieve a party of the trouble and expense of proving in the first instance, the existence or non-existence of the document, which is necessarily within the knowledge of the adverse party.

Thus, as explained in Spouses Santos, when a party fails to properly contest an actionable document, “a prima facie case is made for the plaintiff which dispenses with the necessity of evidence on his part and entitles him to a judgment on the pleadings unless a special defense of new matter, such as payment, is interposed by the defendant.”