LEGAL MEDICINE

1. LEGAL MEDICINE • -branch of medicine that deals with the application of medical knowledge to the purposes of law and in the administration of justice

2. MEDICAL JURISPRUDENCE • deals with the aspect of law and legal concepts in relation with the practice of medicine

3. MEDICAL JURISPRUDENCE includes: • Licensure and regulatory laws; • Physician-patient-hospital relationship together with the other paramedical personnel, their rights, duties and obligations; • Liabilities for non-compliance with the law.

4. PURPOSES • To protect the public from charlatans; • To promote professionalism and foster professional interrelationship; • To develop awareness of the rights, duties and obligations of the patient, physician, and the hospital; • To control the increasing number of medical malpractice suits against physicians; • To explain the purpose and procedure of certain legislation; • To study the need to amend, repeal our health care laws in harmony with the recent scientific and social development.

5. ADVERSARIAL TRIAL SYSTEM • Philippine courts is a court litigation where there is competition of inconsistent version of facts and theories in law during trial; • Each party to the contest is given equal opportunity to investigate the case, gather and present all proofs in support of his allegation, and give argument that his contention is correct ; • Ultimate purpose is for a just solution. 

6. “…….it often undermines the pursuit of truth as the opposing parties seek to win at all cost without the obligation to reveal the facts which may be detrimental to their case. The lawyer aims to win the fight not to help the court discover facts or establish the truth.”

7. SOURCES OF LAW • Constitution • Laws enacted by the legislative body • Decrees, Orders, Proclamation, Letters, CA, BP, RA • Administrative acts, orders, Rules and Regulation • Local customs • Generally accepted principles of International law

8. LAW AND THE PRACTICE OF MEDICINE • The State must maintain high standard of practice by setting up rules and regulations with regards to qualifications and procedure for the admission to the profession. These are legal safeguards to guarantee the safety of the patient and impose liability to the practitioner who through his act or omission causes damage or injury to the health and welfare of the patient.  • The right to regulate the practice of medicine is based on the police power of the state.

9. LICENSURE AND REGULATORY LAWS • ADMINISTRATIVE BODIES • BOARD OF MEDICAL EDUCATION • Primarily concerned with the standardization and regulation of medical education • PROFESSIONAL • REGULATIONS COMMISSIONS • To have general supervision and regulation of all professions requiring examinations which includes the practice of medicine • BOARD OF MEDICINE • Its primary duties are to give examinations for the registration of physicians and supervision, control and regulation of the practice of medicine

10. BOARD OF MEDICALEDUCATION • Composition: • Chairman - Secretary of Education • Members - Secretary of Health • Director, Bureau of Private Schools • Chairman, Board of Medicine • Representative, PMA • Council of Deans,APMC • Dean, UP-College of Medicine • Functions: • 1.    To determine and prescribe the requirements for admission into a recognized college of Medicine; • 2.      To determine and prescribe requirements for the minimum physical facilities; • 3.      To determine and prescribe the minimum number and qualifications of teaching personnel; • 4.      To determine and prescribe the minimum required curriculum; • 5.      To authorize the implementation of experimental curriculum; • 6.      To accept applications for admission to a medical school; • 7.      To select, determine and approve hospitals for training; • 8.      To promulgate, prescribe and enforce the necessary rules and regulations.

11. PROFESSIONAL REGULATIONS COMMISSION • Composition: Commissioner Two Associate Commissioner • Exercise of Power and Functions of the Commission -exercise general administrative, executive and policy-making functions for the whole agency

12. BOARDOF MEDICINE • Composition: • Six members appointed by the president from a • list submitted by the Executive Council of the PMA. • Qualifications: • -  Natural-born citizen; • -  Duly-registered physician; • -  In the practice of medicine for at least 10 years; • -  Of good moral character and of recognized standing in the medical profession as certified by PMA; • -   Not a member of any faculty of any medical school (including any pecuniary interest).

13. Powers, Functions and Responsibilities: • 1. To determine and prepare the contents of the licensure examinations; • 2. To promulgate such rules and regulations for the proper conduct of the examinations, correction and registration; • 3.  To administer oath; • 4.  To study the conditions affecting the practice of medicine; • 5. To investigate violations, issue summons, subpoena and subpoena duces tecum; • 6. To conduct hearings or investigations of administrative cases filed before them; • 7.  To promulgate decisions on such administrative cases subject to the review of the Commission; • 8.  To issue certificate of registration; • 9.  To suspend, revoke or reissue certificate of registration for causes provided by law or by the rules and regulations promulgated; • 10.To promulgate, with the approval of PRC, rules and regulations in harmony with the provisions of the Medical Act of 1959 and necessary for the proper practice of medicine.

14. ADMISSION TO THE PRACTICE OF MEDICINE Prerequisites: • 1. Minimum age requirement • - at least 21 years of age • 2. Proper Educational Background Requirements for Admission in the College of Medicine Holder of a Bachelor’s degree; Not convicted of any crime involving moral turpitude; Certificate of Eligibility from the Board of Medical Education; Good moral character . 

15. 3. Examination Requirements - must have passed the corresponding Board Examination • Preliminary Examination -At least 19 years of age; - Of good moral character; -Have completed the first two years of the medical course; • Final or Complete Examination -Citizen of the Philippines or of any country who has submitted competent and conclusive - documentary evidence confirmed by the DFA showing that his country’s existing laws permit citizens of the Philippines to practice medicine under the same rules and regulations governing citizens thereof (RECIPROCITY RULE).

16. 4. Holder of certificate of registration • No issuance to any candidate who has been: -Convicted by a court of competent jurisdiction of any crime involving moral turpitude; -Found guilty of immoral or dishonorable conduct after investigation by the Board of Medicine; -Declared to be of unsound mind.

17. Scope of Examination: • Preliminary - Anatomy and Histology • Physiology • Biochemistry • Microbiology and Parasitology • Final - Pharmacology and Therapeutics • Pathology • Medicine • Obstetrics and Gynecology • Pediatrics and Nutrition • Surgery and Ophthalmology, • Otorhinolaryngology • Preventive Medicine and Public Health • Legal Medicine, Ethics and Medical • Jurisprudence

18. PRACTICE OF MEDICINE • What is the “practice of medicine”? • It is a privilege or franchise granted by the State to any person to perform medical acts upon • compliance with law, that is, the Medical Act of 1959 as amended which has been promulgated by the State in the exercise of police power to protect its citizenry from unqualified practitioners of medicine. • It is diagnosing and applying and the usage of medicine and drugs for curing, mitigating, or relieving bodily disease or conditions.

19. ACTS CONSTITUTING THE PRACTICE OF MEDICINE (pursuant to Sec.10, Art. III of the Medical Act of 1959 as amended):

20. A) who shall for compensation, fee, reward in any form paid to him directly or through another, or even without the same, physically examine any person, and diagnose, treat, operate or prescribe any remedy for human disease, injury, deformity, physical, mental, psychical condition or any ailment, real or imaginary, regardless of the nature of the remedy or treatment administered, prescribed or recommended; • B) who shall by means of signs, cards, advertisement, written or printed matter, or through the radio, television or any other means of communication, either offer or undertake by any means or method to diagnose, treat, operate, or prescribe any remedy for human disease, injury, deformity, physical, mental or psychical condition; • C)   who shall falsely use the title of M.D. after his name, shall be considered as engaged in the practice of medicine.

21. By DECISIONS OF COURTS are not considered to constitute practice of medicine: • a)     One who takes bp reading; • b)    Application of medicated massage; • c)     Hospital; • d)    Nurse anesthesist

22. Exemptions • By PROVISIONS OF LAW are not considered to constitute practice of medicine (Sec.11, Art. III, Medical Act of 1959 as amended): • a)   Any medical student duly enrolled in an approved medical college; • b)  dentist; • c)   physiotherapist; • d)  optometrist; • e)   Any person who renders any service gratuitously in cases of emergency or in places where the services of a physician, nurse or midwife are not available; • f)    Any person who administers or recommends any household remedy as per classification of existing Pharmacy Laws; • g)   Clinical psychologist with the prescription and direct supervision of a physician; • Prosthetist.

23. Faith Healing -There is nothing in the Medical Act of 1959 exempting it from the definition of the acts which constitute practice of medicine; • -Related to constitutional guarantee to religious freedom (freedom to believe and freedom to act in accordance with one’s belief); • -Acted in pursuance of his religious belief and with the tenets of his church he professes, not deemed to be a practice of medicine but part of his religious freedom.

24. ILLEGAL PRACTICE OF MEDICINE • Practice of medicine by any person not qualified and not duly-admitted to perform medical acts in compliance with law. Penalties • Pursuant to Sec.28, Art. IV, Medical Act of 1959 as amended – Any person found guilty of “illegal practice” shall be punished by a fine of not less than one thousand pesos or more than ten thousand pesos with subsidiary imprisonment in case of insolvency or by imprisonment of not less than one year no more than five years, or by both such fine and imprisonment, in the discretion of the court.

25. Qualified to practice medicine in the Philippines • 1. Those who have complied with the prerequisites to the practice of medicine in accordance with Sec. 8, Art. III, Medical Act of1959 as amended;

26. 2. Those who can have limited practice without any certificate of registration in accordance with Sec.12, Art. III, Medical Act of1959 as amended: Exclusive consultation in specific and definite cases; Attached to international bodies to perform certain definite work in the Phils; Commissioned medical officers stationed in the Phils in their own territorial jurisdiction; Exchange professors in special branches of medicine; Medical students who have completed the first four years of medical course, graduates of medicine and registered nurses who may be given limited and special authorization by the DOH;

27. 3. “Balikbayan” Physicians pursuant to PD 541, Allowing Former Filipino Professionals to Practice Their Respective Professions in the Philippines • Proviso: • -    Of good standing prior to their departure and in their adopted country; • -  Have registered with PRC and paid their professional fee; • -      Pay the corresponding income tax;

28. 4. Foreign physicians qualified to practice by Reciprocity Rule or by endorsement; • 5. Medical Students pursuant to Sec.11(a) and Sec.12(d), Art.III,Medical Act of 1959 as amended; • 6. Limited practitioners of medicine • -    Those that are governed by specific licensure laws

29. Rationale why artificial persons cannot practice medicine • -Cannot be subjected to licensure examinations as required by law; • -Practice of medicine may be employed and controlled by unqualified physicians; • -Professional relationship between the patient and the physician will be impaired; • -Deprivation of free choice of physicians .

30. PHYSICIAN • “…..is a person who after completing his secondary education follows a prescribed course of medicine at a recognized university or medical school, at the successful completion of which, is legally licensed to practice medicine by the responsible authorities and is capable of undertaking the prevention, diagnosis, and treatment of human illness by the exercising independent judgment and without supervision.” (WHO)

31. According to Justice Malholm  • “ CONSTITUTION is that written instrument enacted by direct actions of the people by which the fundamental powers of the government are established, defined, and by which these powers are distributed among the several departments for their safe and useful exercise for the benefit of the body politic.”

32. Purpose • To prescribe the permanent framework of a system of government, to assign to the several departments their respective powers and duties, and to establish certain first principles on which the government is founded. (11Am. Jur. 606)

33. ESSENTIAL PARTS OF A CONSTITUTION Constitution of Liberty Constitution of Government Constitution of Sovereignty

34. AMENDMENTisolated or piecemeal change in the constitution while REVISION is the revamp or the rewriting of the entire instrument

35. PHYSICIAN-PATIENT RELATIONSHIP • Contract - is the meeting of minds between two persons whereby one binds himself with respect to the other, to give something or to render some service(Art.1305, NCC)

36. Nature of the relationship • Consensual - based on mutual consent both parties • Fiduciary - based on mutual trust and confidence

37. Requisites of a contractual relationship • Consent – manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract (Art.1319NCC) • Object – the subject matter of the contract which is the medical service which the patient wants to be rendered to him by his physician • Cause – is the consideration or the factor that instigated the physician to render the medical service to the patient, which could be remuneratory or an act of liberality

38. Forms of Physician-Patient Relationship 1. Expressed – explicitly stated orally or in writing 2.Implied – the existence can be inferred from the acts of the contracting parties. Inferred by law as a matter of reason and justice for their acts or conduct

39. Some Instances where there is no Physician-Patient Relationship by DECISIONS OF COURTS • 1. Pre-employment PE for purposes of determining whether an applicant is suitable for employment; • 2. PE for eligibility for insurance; • 3. Physician appointed by court to examine the accused; • 4. In performing an autopsy; • 5. Casual consultation in an unordinary place.

40. PSYCHOLOGICAL PATTERNS OF PHYSICIAN-PATIENT RELATIONSHIP • ACTIVITY-PASSIVITY RELATION • No interaction between physician and patient because the patient is unable to contribute activity. This is characteristic in an emergency cases when the patient is unconscious.  • GUIDANCE-COOPERATION RELATION • Patient is conscious and suffering from pain, anxiety and other distressing symptoms, he seeks help and willing to cooperate. The physician is in a position of trust.  • MUTUAL PARTICIPATION RELATION • It is in the nature of a negotiated agreement between equal parties.

41. DUTIES and OBLIGATIONS Imposed on the Physician in the Physician-Patient Relationship

42. 1.  He should posses the knowledge and skill of which an average physician is concerned; • General practitioner vs Specialist • 2.  He should use such knowledge and skill with ordinary care and diligence; • “locality rule” – the standard of care is measured by the degree of care in the locality • “similar locality rule” – diligence is determined when the other physicians in the locality or similar locality could have acted the same way • “national standard of care” - the diligence is determined on what is applicable on a national standard basis • 3.  He is obliged to exercise the best judgment; • 4. He has the duty to observe utmost good faith.

43. N.B. • - Physician-Patient relationship does not imply guaranty or any promise that the treatment will be successful  • - it does not imply any promise or guaranty that the treatment will benefit the patient  • - it does not imply any promise or guaranty that the treatment will produce certain result  • - it does not promise or guaranty that the treatment will not harm the patient  • - it does not promise that the physician will not commit errors in an honest way

44. DUTIES and OBLIGATIONS Imposed on the Patient in the Course of the Physician-Patient Relationship

45. 1. He must give an honest medical history; • 2. He must inform the physician of what occurred in the course of the treatment; • 3. He must cooperate and follow the instructions, orders and suggestions of the physician • 4. He must state whether he understands the contemplated course of action; • He must exercise the prudence to be expected of an ordinary patient under the same circumstances.

46. STAGES OF PHYSICIAN-PATIENT RELATIONSHIP • COMMENCEMENT • It is the very time the physician is obliged to comply with the legal duties and obligations to his patient.

47. TERMINATION • It is the time when the duties and obligations by a physician to his patient ceases. The following are some ways of termination of the relationship: • 1.Recovery of the patient or when the physician considers that his medical services will no longer be beneficial to the patient; • 2. Withdrawal of the physician provided: a) with consent of the patient, and b) patient is given ample time and notice; • 3.  Discharge of the physician by the patient; • 4.  Death of either party; • 5.  Incapacity of the physician • 6. Fulfillment of the obligations stipulated in the contract; • 7. In emergency cases, when the physician of choice of the patient is already available or when the condition of emergency ceases; • 8.     Expiration of the period as stipulated; • 9.     Mutual agreement for its termination.

48. RIGHTS OF PHYSICIAN INHERENT RIGHTS to choose patients to limit practice of medicine to determine appropriate management procedures to avail of hospital services INCIDENTAL RIGHTS right of way while responding to emergency right of exemption from execution of instruments and Library to hold certain public/private offices to perform certain services to compensation right to membership in medical societies RIGHTS GENERALLY ENJOYED BY EVERY CITIZEN Pursuant to the provisions of Art. III, bill of rights, Philippine Constitution 1987

49. RIGHT TO CHOOSE PATIENTS • - Any person who is given right to practice medicine is not obliged to practice medicine. • - Cannot be compelled to accept professional employment. • NB: The law does not give any qualification the right of the physician to choose his patient, however, the Code ofMedical Ethics and RA 6615 provides otherwise in cases of emergency. • Related provisions • Art II, Sec.2 Code of Ethics • “xxx…free to choose whom he will serve…xxx..always respond to any request for his assistance in emergency….xxx”

50. Art. II, Sec.3 Code of Ethics • “In cases of emergency, xxx ….a physician should administer at least first aid treatment and then refer to a more qualified and competent physician ……xxx”  • Sec.1 RA 6615 • “All government and private hospitals…xxx .are required to render immediate emergency medical assistance…xxx.” • Sec.24 No.12, Medical Act of 1959 • “”xxx…….Although the ethical rule obliges a physician to attend to an emergency, his failure to respond to it may not make him liable if in so doing, there is a risk to his life. • Refusal of a physician to attend to a patient in danger of death is not a sufficient ground for revocation or suspension of his registration if there is a risk to the physician’s life