Expert opinion needed to prove medical malpractice

Dear PAO,
My wife died in the hospital two days after she gave birth. I knew that there was something wrong because the cause of her death cannot be explained by the attending obstetrician-gynecologist, including the hospital staff from whom I asked for some explanations. I really want to sue them; however, I do not have proofs. Please guide me on what to do.
Dindo

Dear Dindo,
Most cases in medical malpractice or criminal negligence need the testimony of expert witness to prove that malpractice was committed. In Rosit vs Gestuvo (G.R. No. 210445, December 7, 2015), the Supreme Court clearly discussed the necessity of expert testimony to prove medical malpractice including its exemptions:

“To establish medical negligence, this court has held that an expert testimony is generally required to define the standard of behavior by which the court may determine whether the physician has properly performed the requisite duty toward the patient. This is so considering that the requisite degree of skill and care in the treatment of a patient is usually a matter of expert opinion.

Solidum v. People of the Philippines provides an exception. There, the court explained that where the application of the principle of res ipsa loquitur is warranted, an expert testimony may be dispensed with in medical negligence cases:

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed of by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. x x x

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient’s jaw was under anaesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of anaesthetic, during or following an operation for appendicitis, among others.

We have further held that resort to the doctrine of res ipsa loquitur as an exception to the requirement of an expert testimony in medical negligence cases may be availed of if the following essential requisites are satisfied: ( 1) the accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured.”

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Violent ways of collecting debt punishable by law

Dear PAO,
I am indebted to a man who is in the business of lending money. I was not able to pay several monthly instalments, which rendered the whole amount I owed collectible as agreed upon. Because of this, the man barged into our house and started to forcibly take our appliances as payment for the money I owed him. Is this legal?
Ronnel

Dear Ronnel,
There is no question that that man who lent you money has the right to oblige you to pay, considering that the loan he extended to you is due and demandable. There are ways allowed by law on how this man can collect the loan from you. One is to demand payment in person or through a letter. Another is by bringing the matter before the Katarungang Pambarangay, in case both of you live in the same barangay (village), city or municipality. Lastly, he may file a collection case against you in court.

The method which he used in collecting the payment of the loan, however, is not in accordance with law. In fact, it is punishable under the Revised Penal Code of the Philippines, to wit:

“Art. 287. Light coercions. — Any person who, by means of violence, shall seize anything belonging to his debtor for the purpose of applying the same to the payment of the debt, shall suffer the penalty of arresto mayor in its minimum period and a fine equivalent to the value of the thing, but in no case less than 75 pesos.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Taking of naked photos without permission a criminal act

Dear PAO,
Please advise me on what case should I file against the roommate of my boyfriend who took my pictures during my intimate time with my boyfriend. I found out through a friend that my boyfriend’s roommate had my naked pictures which he allegedly took without my consent. He’s also been sending these pictures to his other friends. I hope you can advise me on this matter. Thanks! 
Meg

Dear Meg,
The crime committed by the roommate of your boyfriend who took and distributed your naked pictures without your consent is the violation of Republic Act (R.A.) No. 9995, known as the Anti-Photo and Video Voyeurism Act of 2009.

According to this law, the following acts are considered illegal and punishable by law:

“Section 4. Prohibited Acts. – It is hereby prohibited and declared unlawful for any person:

(a) To take photo or video coverage of a person or group of persons performing sexual act or any similar activity or to capture an image of the private area of a person/s such as the naked or undergarment clad genitals, pubic area, buttocks or female breast without the consent of the person/s involved and under circumstances in which the person/s has/have a reasonable expectation of privacy;

(b) To copy or reproduce, or to cause to be copied or reproduced, such photo or video or recording of sexual act or any similar activity with or without consideration;

(c) To sell or distribute, or cause to be sold or distributed, such photo or video or recording of sexual act, whether it be the original copy or reproduction thereof; or

(d) To publish or broadcast, or cause to be published or broadcast, whether in print or broadcast media, or show or exhibit the photo or video coverage or recordings of such sexual act or any similar activity through VCD/DVD, internet, cellular phones and other similar means or device.

The prohibition under paragraphs (b), (c) and (d) shall apply notwithstanding that consent to record or take photo or video coverage of the same was given by such person/s. Any person who violates this provision shall be liable for photo or video voyeurism as defined herein” (RA No. 9995) (Emphasis supplied).

This aforementioned provision of the law clearly enumerates the different manner by which any person can violate this law. Among those enumerated here is the act of taking pictures of another person in his/her private and intimate moment and distributing them, which is exactly what the roommate of your boyfriend, did to you. As such, it is clear that he may be charged for violating this law and be punished accordingly.

Should the alleged crime committed by the roommate of your boyfriend be proven in Court, he may be punished with an imprisonment of not less than three years but not more than seven years and/or a fine ranging from P100,000 to P500,000 at the discretion of the court.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Candidates can sue for online libel

POLITICIANS or candidates for the upcoming May 9 national and local elections can file charges if their photos or videos posted online were maligned by netizens, according to the Philippine National Police Anti-Cybercrime Group (ACG).

“They can file charges of online libel with us and we have investigators ready to attend to their complaints,” PNP-ACG spokesman, Supt. Jay Guillermo, said in a press briefing on Friday.

PNP spokesman Chief Supt. Wilben Mayor said the online user or owner of the account subject to a complaint can be held liable for online libel.

With the official campaign period set to begin next month, some candidates have already started their campaign pitch on the Internet.

But some of photos of candidates posted online have been maligned and Guillermo said these could be considered libelous in nature.

“They [candidates or politicians] can come to us to file a complaint and we are ready to investigate them,” Guillermo said.

“So far we have not yet received any complaints, but in case there are, the PNP-ACG is ready to entertain them and investigate their complaints. As for the user of social media, they should be very careful in posting or choose the proper words,” he added.

source:  Manila Times

Difference between arbitrary detention and unlawful arrest

Dear PAO,
We want to ask for clarification about the difference between the crime of arbitrary detention and illegal arrest. My neighbor was arrested and detained by our barangay (village) officials for unspecified reason. As a concerned citizen, I find the action as somewhat abusive. What is the proper case to file against these officials? I hope for your helpful response.
Janus

Dear Janus,
To explain and compare the difference between the crime of arbitrary detention and illegal arrest, we shall refer to the Revised Penal Code (RPC) of the Philippines, which provides legal definition of these crimes.

According to Article 124 of the RPC, arbitrary detention is committed by any public officer or employee who without legal grounds detains a person. Under this provision, the commission of a crime or violent insanity or any other ailment requiring the compulsory confinement of the patient in a hospital, shall be considered legal grounds for the detention of any person. (Ibid.)

On the other hand, Article 269 of the law provides that unlawful arrest is committed by any person who, in any case other than those authorized by law, or without reasonable ground, shall arrest or detain another for the purpose of delivering him to the proper authorities.

As seen from the above-cited definitions, arbitrary detention is committed by a public officer while both public officers and private persons can commit the crime of unlawful arrest. The essence of the crime of arbitrary detention is a public officer’s act of detaining a person without any lawful cause. In unlawful arrest, the crime is the act of arresting a person without a legal cause for the purpose of delivering the person arrested to proper authorities. Conversely, it is considered arbitrary detention when the public officer merely detains a person without any intention in bringing the person to the proper authorities.

Therefore in your situation in the barangay, if the person was detained for no lawful reason, the village officials may be liable for arbitrary detention. If your neighbor, however, was arrested illegally for the purpose of bringing him to judicial authorities, then your officials may be liable for unlawful arrest.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net

Consummated crime

Is a person still liable for the crime of bigamy despite the fact that after contracting the second marriage, his first marriage has been judicially declared null and void? This is the question raised and resolved in the case of Charlie.

Charlie has been civilly married to Tina for almost 9 years. Since they got married before a Judge of a Metropolitan Trial Court of Muntinlupa City on Oct. 25, 1992, Tina left to work abroad and would only come home to the Philippines for vacations. Such situation apparently led Charlie into the arms of another woman, Nena whom he courted and eventually married on Nov. 12, 2001 in Meycauayan, Bulacan according to the rites of a Protestant Church.

So when Tina went home for a vacation in 2002, she was informed of such marriage between Charlie and Nena. To verify the information, she went to the National Statistics Office and secured a copy of the marriage certificate confirming the marriage of Charlie and Nena. But since she was working abroad, she had no time to immediately take any steps against Charlie.

It was only on March 14, 2006, when Tina’s uncle filed before the Office of the Provincial Prosecutor of Malolos, a complaint accusing Charlie of committing the crime of bigamy. And on May 7, 2006, Charlie was charged before the Regional Trial Court (RTC) of Bulacan with bigamy defined and penalized under Article 349 of the Revised Penal Code as amended.

It turned out however that Charlie had also filed an action before the RTC of Caloocan City for the declaration of nullity of his marriage to Tina on the ground of the latter’s psychological incapacity to comply with her essential marital obligation. The RTC of Caloocan has already rendered a decision declaring his marriage to Tina null and void which became final on May 28, 2006.

Using this final judgment declaring his first marriage to Tina null and void, Charlie claimed that there is no bigamy to speak of because there is in effect no such first marriage to Tina. He tried to differentiate between a previously valid but voidable marriage and a marriage null and void from the beginning (ab initio) and contended that while a voidable marriage requires a judicial dissolution before one can validly contract a second marriage, a void marriage need not be judicially determined.

Opinion ( Article MRec ), pagematch: 1, sectionmatch: 1

But the RTC nevertheless convicted Charlie of the crime of bigamy and sentenced him to suffer the penalty of imprisonment of 4 years, 2 months and 1 day, minimum to 6 years and 1 day as maximum. Was the trial court correct?

Yes. A judicial declaration of absolute nullity of a previous marriage is necessary before a person can contract a second marriage. Parties to a marriage should not be allowed to assume that their marriage is void even if such be the fact but must first secure a judicial declaration of the nullity of that marriage before they can be allowed to marry again.

In this case, Charlie legally married Tina on Oct. 25, 1992. He contracted a second and subsequent marriage with Nena on Nov. 12, 2001. At the time of his second marriage to Nena, his first marriage to Tina was still legally subsisting. The decision declaring his first marriage to Tina became final only on May 28, 2006 or about 5 years after his second marriage to Nena. It is evident therefore that he has committed the crime charged. Criminal culpability attaches to the offender upon commission of the offense.

If Charlie’s contention will be allowed, a person who commits bigamy can simply evade prosecution or conviction by immediately filing a petition for declaration of nullity of his earlier marriage and hope that a favorable decision is rendered therein before anyone institutes a complaint against him or before he is convicted of the crime charged (Teves vs. People, et. al. G.R. 18775, August 24, 2011, 656 SCRA 307).

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E-mail: attyjosesison@gmail.com

A LAW EACH DAY(KEEPS TROUBLE AWAY) By Jose C. Sison (The Philippine Star) 

Supreme Court denies militants’ court protection

THE SUPREME COURT (SC) has denied lawmakers from the progressive Makabayan bloc protection from alleged state-sanctioned harassment.

SC Public Information Office Chief Theodore O. Te said in a briefing the petition for writ of amparo and habeas data by nine militant activists was dismissed for “lack of merit.”

The petitioners have cited their inclusion in the Criminal Investigation and Detection Group’s (CIDG) “rogues gallery,” which they claimed indicated they were subject to state surveillance in violation of their rights to life and liberty.

But the full court said they failed to show how their right to privacy was violated “given that the information contained in the rogues gallery is only their photographs, their names, and their position in their respective organizations.”

“All these data are of public knowledge, and are readily accessible to anyone as petitioners are known personalities,” read an excerpt of the decision reached during Tuesday’s en banc session.

Incumbent Representatives Carlos Isagani T. Zarate (Bayan Muna party-list) and Emerenciana A. de Jesus (Gabriela Women’s Party) as well as former representatives Rafael V. Mariano (Anakpawis) and Teodoro A. Casiño (Bayan Muna) led the petitioners.

Other petitioners were Karapatan Secretary-General Cristina Palabay, Sr., Mary Francis Añover of the Rural Missionaries of the Philippines, Rev. Irma M. Balaba of the National Council of Churches of the Philippines, Children’s Rehabilitation Center executive director Jacquiline Ruiz, and the family of the late activist and labor leader Crispin B. Beltran.

They said they have been subject to trumped-up charges for taking up the rights of Mindanao’s lumad (indigenous peoples) evacuees in Davao City, who fled their homes in Talaingod, Davao del Norte, to escape militarization and paramilitary harassment.

The respondents were President Benigno S. C. Aquino III, Defense Secretary Voltaire T. Gazmin, Gen. Hernando Delfin Carmelo A. Iriberri, AFP Deputy Commander for Intelligence Maj. Gen. Virgilio A. Hernandez, Intelligence Service of the AFP (ISAFP) Chief Brig. Gen. Arnold M. Quiapo, Philippine Army Commanding General Maj. Gen. Eduardo M. Año, AFP Deputy Commanding General for Personnel Brig. Gen. Honorato S. delos Reyes, Philippine National Police Director Ricardo C. Marquez, and PNP Criminal Investigation and Detection Group Director Chief Supt. Victor P. Deona.

Also impleaded were the following Mindanao military and police authorities: Eastern Mindanao Command Commanding General Lt. Gen. Aurelio B. Baladad, 60th Infantry Division Commanding Officer Lt. Col. Roberto Bunagan, Eastern Mindanao CIDG Regional Director Police Senior Supt. Joel C. Pernito, Davao City Criminal Investigation Division Team Leader Police Chief Insp. Warren E. Dablo, and several John Does and Jane Does.

Although the activists in the rejected petition failed in their request for court protection, the SC had previously granted the writ of amparo to 22 union leaders on Aug. 4, and to 11 activists from health workers and youth groups on Sept. 8. -- Vince Alvic Alexis F. Nonato

source:  Businessworld