Two-Pronged War of PH Frontliners: COVID-19 and Medical Liability

by Elaine A. Atienza, Noel Kris E. Illescas, Joseph Anthony P. Lopez and Dianne Marie V. Roa-Oarde

On 28 March 2020, a person under investigation for COVID-19 passed away after having spent eleven (11) hours in a tent outside one of the major hospitals in the Philippines waiting for admission.
Under normal circumstances, this may have easily led to a medical malpractice suit against the attending physician(s), if any, and the hospital itself. However, the conditions in the hospital that day were far from normal. In a statement to the media, the hospital’s spokesperson revealed that on that day alone, the hospital had eighty (80) patients at the emergency room triage waiting to be tested for COVID-19. Among them, two (2) needed to be intubated, while five (5) needed ventilators. On that same day, only three (3) nurses attended the area, as many of the hospital’s health workers were under quarantine from exposure to COVID-19 patients. The hospital was simply overwhelmed as it lacked manpower, rooms, and medical and protective equipment to properly and timely accommodate patients—a scene reflected in practically all hospitals worldwide in places hit by the pandemic.
As of 22 April 2020, or 47 days since the first case of local COVID-19 transmission, there have been 6,710 confirmed cases of COVID-19 in the Philippines. Of these, 693 have recovered, while 446 have died. With the overwhelming rate of increase in confirmed COVID-19 cases, medical health workers are forced to endanger their own lives while treating patients and making quick decisions to battle a disease that remains far from being understood—all without proper protection and immunity both against the virus and against medical liability. And yet, even while they are being hailed as heroes amidst the war against COVID-19, they face another enemy on another front, medical liability.
Medical Malpractice in the Philippines
A medical malpractice suit is brought whenever a medical practitioner or health care provider fails to meet the standards demanded by his profession or deviates from this standard, and causes injury or death to a patient. In essence, an action upon medical negligence against doctors, whether criminal, civil or administrative, calls for proof that, first, the medical professional either: (a) did what a reasonably prudent medical professional would not have done; or (b) failed to do what a reasonably prudent medical professional would have done, and, second, such act or omission had caused injury or death. [Casumpang vs. Coretjo, G.R. No. 171127, 11 March 2015]
The burden is upon the plaintiff to prove by competent evidence the following elements: (a) a duty owed by the physician to the patient to act in accordance with the specific norms or standards established by his profession; (b) breach of duty by the physician’s failing to act in accordance with the applicable standard of care; (c) causation, or a reasonably close and causal connection between the negligent act or omission and the resulting injury; and (d) damages suffered by the patient. [Solidum vs. People of the Philippines, G.R. No. 192123, 10 March 2014]
The second element, breach of duty, is the essence of liability for medical malpractice against doctors and other healthcare providers, and is the most complicated one as it is determined through the standard of care by which the conduct of a physician sued for negligence or malpractice may be measured. The complexity in the factor of standard of care lies in the fact that each case is fact-specific and dependent upon the particular circumstances at issue. Whether or not the doctor breached his duty is determined based on an assessment of whether he proceeded with such reasonable caution as a prudent person in his/her specialization would have exercised under such circumstances.
With these standards, it is apparent that the standard of care in an emergency—or in the current situation, an unprecedented global pandemic that is leaving hospitals worldwide overwhelmed and over-capacitated—would take into account the exigent conditions in which medical professionals or healthcare providers are working. In our current situation, given the novelty of the deadly virus, some mistakes that might ordinarily constitute negligence may not necessarily give rise to liability if it is determined that they were reasonable or unavoidable under the circumstances.
Additionally, doctors are protected by the presumption that they have conformed to the standard of care and diligence required of the circumstances. As such, the burden is upon the plaintiff to prove the standard of diligence and care demanded by the circumstances and that the physician failed to comply with the same.

Liability of Hospitals, Clinics and Other Health Care Organizations
On the same side of the spectrum are the hospitals, clinics, and other health care organizations, which have the following main duties: (a) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (b) a duty to select and retain competent physicians; (c) a duty to oversee or supervise all persons who practice medicine within its walls; (d) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients; and (e) duty to exert reasonable effort in monitoring and overseeing the treatment being administered by the doctors and medical professionals practicing in its premises.
Hence, hospitals, clinics, and other health care organizations may likewise be held liable under the theories of respondeat superior or ostensible agency, and corporate negligence. On one hand, under the doctrine of respondeat superior, the organization as the employer is responsible for the acts of its physicians, nurses and other health professionals in the course of their employment. Health care organizations may likewise be held liable under the doctrine of corporate negligence, where a plaintiff must show that: (a) the hospital deviated from the standard of care; (b) the hospital has actual or constructive knowledge of the flaws or procedures that caused the injury; and (c) a causal link between the conduct and the harm.
In a pandemic like COVID-19, hospitals, clinics, and other health care organizations are under tremendous pressure to exceed ordinary capacity and handle huge numbers of patients quickly, efficiently, and effectively. However, at the height of the crisis, these entities may fail to follow standard operating procedures for facility maintenance, personnel oversight, treatment protocols, and other matters, which could lead to corporate negligence claims.
Enactment of Measures to Reduce Liability Risk
Given these situations, which is applicable to almost all places in the globe, other countries have taken urgent steps to reduce the medical malpractice liability of medical professionals so they can freely provide much-needed medical treatment without the fear of getting sued. For instance, in the United States, at least six (6) states—New York, New Jersey, Michigan, Massachusetts, Illinois and Connecticut—have enacted emergency executive orders and legislation to shield health care providers from civil liability given the shortage of ventilators and frontline medical professionals in areas hardest-hit by the COVID-19 outbreak. The legislation in these States generally cover suits related to a lack of resources attributable to the pandemic and decisions which may reasonably stem therefrom, effectively relaxing the standard of care in situations impacted by the virus outbreak, and ultimately, the determination of existence of any breach. Claims against acts of crime, fraud, gross negligence and willful misconduct, however, are not barred.
However, no such legislation has been adopted in the Philippines. While the Department of Health has issued different guidelines aiming to provide responsive strategies and mechanisms to guide both physicians and hospitals in managing COVID-19 cases, the same do not provide any limitations on the possible liabilities of health care providers and facilities. These only recognize the limited information and low-quality evidence available about the disease, as well as the increased demand for health services beyond health facilities’ normal working capacity. At most, these may only provide proof of the fact of such circumstances.
The Looming Dilemma
With the current pandemic, and with the death count rising each day, the question now lies – will physicians and hospitals be held liable for the deaths of the virus’ victims? The short answer is that it would heavily depend on the circumstances surrounding the said death. In the absence of an explicit legislation or directive stating that health care facilities and health care professionals are protected from liability that may result from treating individuals with COVID-19 under the conditions associated with this public health emergency (e.g., lack of ventilators and insufficiency of rooms to accommodate patients) circumstances surrounding any supposed negligent act will have to be taken into consideration.
As mentioned above, the liability under medical malpractice is very fact-specific and dependent upon the particular circumstances at issue. To say the least, the standard of diligence and care required of a physician is relative and is dependent not only on the competency of “good doctors” in the locality, but on the specific field as well. In this case, the competency of doctors against COVID-19, not only in the locality but worldwide, has yet to be determined.
Thus, in assessing the vulnerability of doctors and healthcare facilities to medical malpractice suits in connection with COVID-19, it would be important to examine the extra-ordinary and unprecedented circumstances brought about by the novel disease. Given that a great deal about the said virus has yet to be discovered, it may be argued that the standard of care and diligence required is tilted in favor of medical frontliners. The lack of certainty as to how to cure the virus, including the resources available to do so, leaves much to the discretion of doctors as to the treatment of their patients.
This article is intended for informational purposes only and should not be construed as legal advice. 
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