Rhaffy B. Rapacon

OTHER LEGAL PRINCIPLES OR DOCTRINES APPLIED IN MEDICAL MALPRACTICE CASES

I. DOCTRINE OF VICARIOUS LIABILITY

Vicarious liability is a legal doctrine that assigns liability for an injury to a person who did not cause the injury but who has a particular legal relationship to the person who did act negligently. This doctrine is applicable upon employer, with employees who act negligible within the course and scope of their employment. Due to this doctrine the victim can sue both the employer and the employees, to avoid it the employer must take responsibilities to choose the right employees that is fit for the certain work. The employees must take note that every wrong action, the employer is also liable of that act.

A. Doctrine of Ostensible Agent:

In medicine, pathologist, radiologist and anesthesiologist are example of ostensible agent. They are also member of the staff of the hospital, and because they are appointed by board of medicine of certain hospital. It is under the doctrine of vicarious liability because the hospital is liable of wrong diagnosis or act of their ostensible agent. The board of medicine should take necessary precaution of choosing the right agent to avoid negligence.

B. Barrowed Servant Doctrine:

Barrowed servant doctrine is applicable when the employees are temporarily under the supervision and control of another while performing their duties. The hospital is not liable in the wrong act of the barrowed servant. The temporary employer is liable if the employee commit a mistake under his/her supervision. In the operating room the private physician is the employer of the nurse and resident doctors that will assist in the operation. The private physician as the leader should be present during the operation and make sure that the employee will not commit any mistake.

C. Captain of the ship Doctrine

The captain of the ship doctrine is applicable in operating room, the surgeon is the captain who responsible in safety of the crew (nurses and resident) and his passengers (the patients). Like a captain the surgeon gives orders which the crew needs to follow, the surgeon is responsible in any damage or wrongful acts committed by his crew. The captain needs to review the action of his crew to avoid the ship to sink.

II. DOCTRINE OF RES IPSA LOQUITUR

This simply means “the thing speaks for itself”, the injury is the evidence of negligence. The injury is enough evidence that the physician commit a mistake, there is no need for the expert medical testimony to proof wrongdoing. The physician should take a complete history and physical examination before treatment and operation. Make sure that certain procedure can improve the condition of the patient, not to add to the injury.

III. DOCTRINE OF CONTRIBUTOR NEGLIGENCE (doctrine of common fault)

In the practice of medicine the physician is the captain of the treatment and has the superior knowledge over the patient. In the beginning of the patient-doctor relationship, the patient must cooperate with the physician in carrying doctor’s order and instruction for better outcome of the treatment and diagnosis. This doctrine is due to the failure of the patient to follow instructions, failure to give necessary information and failure to seek medical assistance when needed. When the injury of the plaintiff was due to his own negligence like not following the physician order the patient cannot recover damages against the physician. But if the plaintiff follows the doctors advised and still cause’s injury due wrong management of the defendant, the plaintiff can still recover damage against the physician. This doctrine is applicable only to the patient you is mentally and physically fit to cause negligence.

IV. DOCTRINE OF CONTINUING NEGLIGENCE

The physician should have the skill to discover any error of treatment. It is his duty to investigate, examine and manage if the patient is responding well to the treatment or not. Physician should perform effectively when the manifestations worsen. It is his duty to be knowledgeable in the patient’s case. Prolonged failure of non-response of this duty can make the physician reliable.

V. DOCTRINE OF ASSUMPTION OF RISK

It is also the duty of the physician to explain the risks of injury in doing certain procedure. The doctors should make sure that the patient signedthen informed consent prior to procedure or management; this will serve as a defense against the case. Signed informed consent is an evidenced that the patient actually knew and the doctor explained the risk and danger of the procedure. The physician is not reliable if negative outcome has arrived. The physician imposed by law should also give his full talent and knowledge to treat the high risk patient. The doctor can also be reliable if the court proved that the physician act negligibly.

VI. DOCTRINE OF LAST CLEAR CHANCE

The doctrine of last chance is applicable in emergency situations like accidents. Physicians are inquiring to act or to avoid an accident. The physicians are requiring gaining knowledge in preserving the life and avoid further injuries during emergency situation. The court can file a case if the physician is proven that he ignore those you need his immediate help in treating and to save the life of the individual. The physician cannot be held liable if he/she acted properly in certain situation.

VII. DOCTRINE OF FORESEEABLILITY

Foreseeability is the facility to perceive, know in advance, or reasonably anticipate that damage or injury will probably ensue from acts or omissions. The physician must take necessary precaution to prevent further injury to the patient, whether it is a self-inflict or accidental injury. Psychiatric patients have the ability to harm others and themselves,

Psychiatric physician should take special precaution and attention in safeguarding psychiatric patients from self-harm and harming others. The physician should provide a safe environment to these kinds of patients. Raising the bedrails and providing handrails to avoid falls especially to restless and elderly patients can prevent accidents. Accidents due to failure to take necessary precautions can make the physician liable to the court.

VIII. FELLOW OF SERVANT DOCTRINE

Fellow servant rule is a common law doctrine that barred or reduced the amount of money an injured employee could recover against an employer if an injury was caused solely by the negligence of a fellow worker. The fellow-servant rule said simply, workers who are hurt by a coworker—a fellow servant—should blame the responsible coworker, not their employer. This doctrine helps us to remember that we have an obligation to our fellow coworkers. We need also to consider the safety of other members of the group while working. As doctors we need to be knowledgeable in order for as to treat our fellow coworkers equally the treatment they deserved. The employer is only liable if the court proved that they lack necessary precaution in choosing the employee that is qualified for that certain position.

IX. .RESCUE DOCTRINE

The physician by the virtue of the Good Samaritan law is required to attain in the emergency situation as long as the safety of the physician is ensured. The physician who responds to a call is not liable to the negative outcome of the victim. The principle that one who has, through her negligence, endangered the safety of another can be held liable for injuries sustained by a third person who attempts to save the imperiled person from injury. In the rescue doctrine if the physician who rescue the victim is injured the, the physician can also file a case to the person who injured the victim. This doctrine is one of the benefits of the doctor who risk their life to save the life of the others.

X. SOLE REPONSIBILITIES VS. SHARED REPONSIBILITIES

In patient with two or more physicians, their shared responsibilities are to promote a good health and provide a better life. Failure of these responsibilities can caused the two doctors liable of that act. Sole responsibilities are the responsibilities of the doctor according to their filed of specialization. It is only the doctor who neglect to his field is liable.