Tuesday, April 27, 2010

SLICING THE RESPONSIBILITY (When the hospital and surgeon share the blame for negligence)

By Siesta-friendly

In the consolidated cases Professional Services, Inc., v. the Court Of Appeals and Natividad and Enrique Agana, Natividad and Enrique Agana v. the Court Of Appeals and Juan Fuentes, and Miguel Ampil v. Natividad and Enrique Agana, the Supreme Court en banc held that Medical City General Hospital – owned and operated by Professional Services, Inc. – is liable to the heirs of the deceased patient, Natividad Agana, on the basis of an ostensible agency existing between the hospital and the negligent surgeon who operated on Mrs. Agana and on the basis of the hospital’s own corporate negligence during and after the surgery.[1]

The 3 cases arose from the following facts established at trial:

On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City Hospital) because of difficulty of bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Miguel Ampil ... diagnosed her to be suffering from "cancer of the sigmoid."

On April 11, 1984, Dr. Ampil, assisted by the medical staff of the Medical City Hospital, performed an anterior resection surgery on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary, necessitating the removal of certain portions of it.  Thus, Dr. Ampil obtained the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes ... to perform hysterectomy on her.

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and closed the incision.

However, the operation appeared to be flawed. In the corresponding Record of Operation dated April 11, 1984, the attending nurses entered these remarks:
"sponge count lacking 2”
“announced to surgeon searched (sic) done but to no avail continue for closure."

Dr. Ampil was the lead surgeon during the operation of Natividad.  He requested the assistance of Dr. Fuentes only to perform hysterectomy when he (Dr. Ampil) found that the malignancy in her sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and finding everything to be in order, allowed Dr. Fuentes to leave the operating room.  Dr. Ampil then resumed operating on Natividad.  He was about to finish the procedure when the attending nurses informed him that two pieces of gauze were missing.  A "diligent search" was conducted, but the misplaced gauzes were not found.  Dr. Ampil then directed that the incision be closed.  During this entire period, Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.

On April 24, 1984, Natividad was released from the hospital ...

After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of the surgery. Dr. Ampil then recommended that she consult an oncologist to examine the cancerous nodes which were not removed during the operation.

On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further treatment. After four months of consultations and laboratory examinations, Natividad was told she was free of cancer. Hence, she was advised to return to the Philippines.

On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then assured her that the pains would soon vanish.

Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek treatment at the Polymedic General Hospital. While confined there, Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal vault. A recto-vaginal fistula had formed in her reproductive organs which forced stool to excrete through the vagina. Another surgical operation was needed to remedy the damage. Thus, in October 1984, Natividad underwent another surgery. (G.R. No. 126297/G.R. No. 126467/G.R. No. 127590, January 31, 2007)

The Aganas’ ordeal prompted them to file a court case.  From the trial court to the Court of Appeals to the Supreme Court, the hospital and the lead surgeon, Dr. Ampil was held liable while Dr. Fuentes - who performed the hysterectomy - was absolved.

Ostensible Agency

In finding the hospital liable for its surgeon’s negligence, the Supreme Court found –

“ample evidence that the hospital … held out to the patient … that the doctor … was its agent.  Present are the two factors that determine apparent authority: first, the hospital's implied manifestation to the patient which led the latter to conclude that the doctor was the hospital's agent; and second, the patient’s reliance upon the conduct of the hospital and the doctor, consistent with ordinary care and prudence … the decision made by Enrique for [his wife] Natividad to consult Dr. Ampil was significantly influenced by the impression that Dr. Ampil was a staff member of Medical City General Hospital, and that said hospital was well known and prominent.  Enrique looked upon Dr. Ampil not as independent of but as integrally related to Medical City.”

The Supreme Court also held that the hospital’s “consent for hospital care” - required to be signed prior to the surgery - affirmed that the surgeon was of the hospital.  The form reads:

“Permission is hereby given to the medical, nursing and laboratory staff of the Medical City General Hospital to perform such diagnostic procedures and to administer such medications and treatments as may be deemed necessary or advisable by the physicians of this hospital for and during the confinement of xxx. (emphasis supplied)”

Corporate Negligence

In deciding that the hospital is liable for its own corporate negligence, the Supreme Court noted that the hospital admitted the following in its Motion for Reconsideration:

”… In addition to noting the missing gauzes, regular check-ups were made and no signs of complications were exhibited during her stay at the hospital, which could have alerted [the] hospital to render and provide post-operation services to and tread on Dr. Ampil's role as the doctor of Mrs. Agana.  The absence of negligence of [the hospital] from the patient's admission up to her discharge is borne by the finding of facts in this case.  Likewise evident therefrom is the absence of any complaint from Mrs. Agana after her discharge from the hospital which had she brought to the hospital's attention, could have alerted [the hospital] to act accordingly and bring the matter to Dr. Ampil's attention. But this was not the case.  Ms. Agana complained ONLY to Drs. Ampil and Fuentes, not the hospital.  How then could [the hospital] possibly do something to fix the negligence committed by Dr. Ampil when it was not informed about it at all. (emphasis supplied)”           

“… had Natividad Agana “informed the hospital of her discomfort and pain, the hospital would have been obliged to act on it.”

Thus, the Court found that “while [the hospital] had no power to control the means or method by which Dr. Ampil conducted the surgery on Natividad Agana, it had the power to review or cause the review of what may have irregularly transpired within its walls strictly for the purpose of determining whether some form of negligence may have attended any procedure done inside its premises, with the ultimate end of protecting its patients.”

And that the hospital admitted it “assumed a duty to “tread on” the role of any doctor rendering services within its premises for the purpose of ensuring the safety of the patients availing themselves of its services and facilities.”

The Court also noted the hospital admitted “the standards of its corporate conduct under the circumstances of this case, specifically: (a) that it had a corporate duty to Natividad even after her operation to ensure her safety as a patient; (b) that its corporate duty was not limited to having its nursing staff note or record the two missing gauzes and (c) that its corporate duty extended to determining Dr. Ampil's role in it, bringing the matter to his attention, and correcting his negligence.”

The Aganas must be grateful to whomever drafted the admission-filled Motion for Reconsideration.

Unacceptable excuse

Undeterred, the hospital argued that it was excused “from fulfilling its corporate duty on the ground that Dr. Ampil assumed the personal responsibility of informing Natividad about the two missing gauzes.  Dr. Ricardo Jocson, who was part of the group of doctors that attended to Natividad, testified that toward the end of the surgery, their group talked about the missing gauzes but Dr. Ampil assured them that he would personally notify the patient about it.  Furthermore, [the hospital] claimed that there was no reason for it to act on the report on the two missing gauzes because Natividad Agana showed no signs of complications. She did not even inform the hospital about her discomfort.

The Supreme Court was not persuaded holding that the hospital should not have delegated its duty to review what happened during surgery to the surgeon nor the patient –

[The hospital] could not simply wave off the problem and nonchalantly delegate to Dr. Ampil the duty to review what transpired during the operation. … [The hospital] could not have expected that purpose to be achieved by merely hoping that the person likely to have mislaid the gauzes might be able to retrace his own steps.  By its own standard of corporate conduct, [the hospital]'s duty to initiate the review was non-delegable.

While Dr. Ampil may have had the primary responsibility of notifying Natividad about the missing gauzes, [the hospital] imposed upon itself the separate and independent responsibility of initiating the inquiry into the missing gauzes. The purpose of the first would have been to apprise Natividad of what transpired during her surgery, while the purpose of the second would have been to pinpoint any lapse in procedure that led to the gauze count discrepancy, so as to prevent a recurrence thereof and to determine corrective measures that would ensure the safety of Natividad.  That Dr. Ampil negligently failed to notify Natividad did not release [the hospital] from its self-imposed separate responsibility.

Corollary to its non-delegable undertaking to review potential incidents of negligence committed within its premises, [the hospital] had the duty to take notice of medical records prepared by its own staff and submitted to its custody, especially when these bear earmarks of a surgery gone awry.  Thus, the record taken during the operation of Natividad which reported a gauze count discrepancy should have given [the hospital] sufficient reason to initiate a review.  It should not have waited for Natividad to complain.” [emphasis supplied]

In short, all the hospital had to do was to review the records which clearly noted the loss of 2 gauzes, review what happened and take steps to ensure the patient’s safety. It did none of these and merely blamed everything on the lead surgeon and the patient.

Not a precedent

Due to the circumstances unique in this case including the hospital’s judicial admissions in its Motion for Reconsideration, the Court held that the case is “not intended to set a precedent and should not serve as a basis to hold hospitals liable for every form of negligence of their doctors-consultants under any and all circumstances.“  But it does affirm that doctors and hospitals have a duty to their patients and they can be held liable when they have been remiss in their duties.

Doctors still have to be true to the oath they have taken:.  
“I swear to fulfill, to the best of my ability and judgment, this covenant:

I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.

I will apply, for the benefit of the sick, all measures [that] are required, avoiding those twin traps of overtreatment and therapeutic nihilism.

I will remember that there is art to medicine as well as science, and that warmth, sympathy, and understanding may outweigh the surgeon's knife or the chemist's drug.

I will not be ashamed to say "I know not," nor will I fail to call in my colleagues when the skills of another are needed for a patient's recovery.

I will respect the privacy of my patients, for their problems are not disclosed to me that the world may know. Most especially must I tread with care in matters of life and death. If it is given me to save a life, all thanks. But it may also be within my power to take a life; this awesome responsibility must be faced with great humbleness and awareness of my own frailty. Above all, I must not play at God.

I will remember that I do not treat a fever chart, a cancerous growth, but a sick human being, whose illness may affect the person's family and economic stability. My responsibility includes these related problems, if I am to care adequately for the sick.

I will prevent disease whenever I can, for prevention is preferable to cure.

I will remember that I remain a member of society, with special obligations to all my fellow human beings, those sound of mind and body as well as the infirm.

If I do not violate this oath, may I enjoy life and art, respected while I live and remembered with affection thereafter. May I always act so as to preserve the finest traditions of my calling and may I long experience the joy of healing those who seek my help.”[2]

[1]  G.R. No. 126297/G.R. No. 126467/G.R. No. 127590, February 2, 2010
[2]  The Hippocratic oath: modern version. (n.d.). Retrieved from  http://www.pbs.org/wgbh/nova/doctors/oath_modern.html


Monday, April 12, 2010


By Obiter 07

Nothing could be more embarrassing, to be a titan of industry as well university board member and use the words of another without attribution and worse, to be found out.  Worst of all, to commit the plagiarism in a commencement speech at a university.  Legally speaking (as contrasted to a less than legal speech in this case), what law if, any, is possibly violated by plagiarism?

Protected Literary and Artistic Works

Under the Intellectual Property Code (Republic Act No. 8293), even lectures and speeches are protected from the moment of their creation.  Needless to say, only original speeches are protected by the law. 

Literary and artistic works are original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall include in particular:

a)      Books, pamphlets, articles and other writings;
b)      Periodicals and newspapers;
c)      Lectures, sermons, addresses, dissertations prepared for oral delivery, whether or not reduced in writing or other material form;
d)     Letters; xxx
e)      Other literary, scholarly, scientific and artistic works.

Works are protected by the sole fact of their creation, irrespective of their mode or form of expression, as well as of their content, quality and purpose. [1]

Economic Rights

An author enjoys certain economic rights over his creation as follows:

Subject to the provisions of Chapter VIII of the Code, copyright or economic rights consist of the exclusive right to carry out, authorize or prevent the following acts:

1)      Reproduction of the work or substantial portion of the work;
2)      Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the work;
3)      The first public distribution of the original and each copy of the work by sale or other forms of transfer of ownership;
4)      Rental of the original or a copy of an audiovisual or cinematographic work, a work embodied in a sound recording, a computer program, a compilation of data and other materials or a musical work in graphic form, irrespective of the ownership of the original or the copy which is the subject of the rental; (n)
5)      Public display of the original or a copy of the work;
6)      Public performance of the work; and
7)      Other communication to the public of the work. [2]

Moral Rights

Apart from economic rights, an author has certain moral rights as well. The author of a work shall, independently of the economic rights in Section 177 (mentioned above) or the grant of an assignment or license with respect to such right, have the right:

1)      To require that the authorship of the works be attributed to him, in particular, the right that his name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the public use of his work;
2)      To make any alterations of his work prior to, or to withhold it from publication;
3)      To object to any distortion, mutilation or other modification of, or other derogatory action in relation to, his work which would be prejudicial to his honor or reputation; and
4)      To restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work. [3]

Fair Use

The defense of fair use may be available but only if there is at least attribution to the original author. If using another’s words, the least one can do is to acknowledge it. There is no infringement of copyright in the making of quotations from a published work if they are compatible with fair use and only to the extent justified for the purpose, including quotations from newspaper articles and periodicals in the form of press summaries: Provided, That the source and the name of the author, if appearing on the work, are mentioned.[4]


If a copyright holder’s economic or moral rights have been violated as action for injunction to restrain the same, and for damages, among other forms of relief, are available.

Any person infringing a right protected under this law shall be liable:

a)      To an injunction restraining such infringement. The court may also order the defendant to desist from an infringement, among others, to prevent the entry into the channels of commerce of imported goods that involve an infringement, immediately after customs clearance of such goods.
b)      Pay to the copyright proprietor or his assigns or heirs such actual damages, including legal costs and other expenses, as he may have incurred due to the infringement as well as the profits the infringer may have made due to such infringement, and in proving profits the plaintiff shall be required to prove sales only and the defendant shall be required to prove every element of cost which he claims, or, in lieu of actual damages and profits, such damages which to the court shall appear to be just and shall not be regarded as penalty.
c)      Deliver under oath, for impounding during the pendency of the action, upon such terms and conditions as the court may prescribe, sales invoices and other documents evidencing sales, all articles and their packaging alleged to infringe a copyright and implements for making them.
d)     Deliver under oath for destruction without any compensation all infringing copies or devices, as well as all plates, molds, or other means for making such infringing copies as the court may order.
e)      Such other terms and conditions, including the payment of moral and exemplary damages, which the court may deem proper, wise and equitable and the destruction of infringing copies of the work even in the event of acquittal in a criminal case.

In an infringement action, the court shall also have the power to order the seizure and impounding of any article which may serve as evidence in the court proceedings.[5]

Criminal Liability

Criminal liability might likewise attach and be imposed on the infringer.  Any person infringing or aiding or abetting such infringement shall be guilty of a crime punishable by:

a)      Imprisonment of 1 year to 3 years plus a fine ranging from P50,000- P150,000 for the first offense.
b)      Imprisonment of 3 years and 1 day to 6 years plus a fine ranging from P150,000 - P500,000 for the second offense.
c)      Imprisonment of 6 years and 1 day to 9 years plus a fine ranging from P500,000) to P1,500,000 for the third and subsequent offenses.
d)     In all cases, subsidiary imprisonment in cases of insolvency.[6]

Civil Liability

The author or his heirs may be be entitled to damages.  Violation of any of the rights conferred under the Code entitle those charged with their enforcement to the same rights and remedies available to a copyright owner.  In addition, damages which may be availed of under the Civil Code may also be recovered. Any damage recovered after the creator's death shall be held in trust for and remitted to his heirs, and in default of the heirs, shall belong to the government.[7]

Decided Case

In UNIVERSITY OF THE PHILIPPINES BOARD OF REGENTS, et al. vs. COURT OF APPEALS, et al. [G.R. No. 134625.  August 31, 1999], the Supreme Court upheld a university’s power to withdraw a doctorate agree it had awarded based on a finding of plagiarism.   

With respect to the injury that a copyright owner must suffer in order for an infringement action to prosper, the Supreme Court ruled that it “does not necessarily require that the entire copyrighted work, or even a large portion of it, be copied. If so much is taken that the value of the original work is substantially diminished, there is an infringement of copyright and to an injurious extent, the work is appropriated. In determining the question of infringement, the amount of matter copied from the copyrighted work is an important consideration. To constitute infringement, it is not necessary that the whole or even a large portion of the work shall have been copied. If so much is taken that the value of the original is sensibly diminished, or the labors of the original author are substantially and to an injurious extent appropriated by another, that is sufficient in point of law to constitute piracy. The essence of intellectual piracy should be essayed in conceptual terms in order to underscore its gravity by an appropriate understanding thereof. Infringement of a copyright is a trespass on a private domain owned and occupied by the owner of the copyright, and, therefore, protected by law, and infringement of copyright, or piracy, which is a synonymous term in this connection, consists in the doing by any person, without the consent of the owner of the copyright, of anything the sole right to do which is conferred by statute on the owner of the copyright.” [HABANA, et al.vs. ROBLES, et al. [G.R. No. 131522.  July 19, 1999.]

Apart from the legal issues, what may matter more is how we respond to such cases of intellectual dishonesty, whether inadvertent or premeditated.  There are reports that students of the same university where the plagiarizing speaker made his commencement speech have been prevented from graduating.  Fair enough.  But the speaker/titan/board member’s tender of resignation from the university board has not yet been accepted.  Why the delay?  If any of the plagiarizing students, say, donated a building to the university would he/she be allowed to graduate then?  Shouldn’t there be the same standards for students as well as alumni, no matter how well-placed or successful? 

For those who were about to graduate and to whom the speeches were delivered, they certainly deserved more than what they heard.  In the end, the lesson for them may be that values can never be transactional, that they are constant and upheld in every instance, or should be, even when no one is looking.

[1]  Section 172.1
[2]   Section 177
[3]  Section 193
[4]  Section 184.1, as amended by
[5]  Section 216.
[6]  Section 217
[7]  Section 199


Wednesday, April 7, 2010

Presidential Succession

By Siesta-friendly

The presidential elections are less than 1 month away.  Now’s a good a time as any to tackle the order of presidential succession under the Philippine Constitution, specifically under Article VII (Executive Department).

After the elections


a)      the President-elect fails to qualify, the Vice President-elect shall only act as President until the President-elect shall have qualified, or
b)      a President shall not have been chosen, the Vice President-elect shall only act as President until a President shall have been chosen and qualified. (Section 7)

Under these 2 scenarios, the Vice President does not become President but only Acting President until the condition required is met.

If no President and Vice-President shall have been chosen or shall have qualified, the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall only act as President until a President or a Vice-President shall have been chosen and qualified. (Section 7)

During the term of office
If the President:

a)      dies,
b)      is permanent disabled,
c)      is removed from office, or
d)     resigns,

the Vice-President shall become the President to serve the unexpired term. (Section 8)

If the vacancy is only in the Office of the Vice-President, the President shall nominate a Vice-President from among the Members of the Senate and the House of Representatives who shall assume office upon confirmation by a majority vote of all the Members of both Houses of the Congress, voting separately. (Section 9)

But, if both the President and Vice-President:

a)      die,
b)      are permanent disabled,
c)      are removed from office, or
d)     resign,

the President of the Senate or, in case of his inability, the Speaker of the House of Representatives, shall act as President until the President or Vice-President shall have been elected and qualified. (Section 8)

Necessity of Law

Beyond the officials above mentioned, the Congress needs to pass a law to provide for the manner in which one who is to act as President shall be selected until a President or a Vice-President shall have qualified, in case of death, permanent disability, or inability of said officials.

The Oath

What exactly does a President sign up for?  It might be hard for us to remember knowing how some past Presidents have behaved themselves, but since 1987, a President has had to utter these words under oath:

"I do solemnly swear (or affirm) that I will faithfully and conscientiously fulfill my duties as President (or Vice-President or Acting President) of the Philippines, preserve and defend its Constitution, execute its laws, do justice to every man, and consecrate myself to the service of the Nation. So help me God.”  (Section 5).

This coming May, we can only hope that we get a President who will keep these words to heart, in both letter and spirit.