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


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