DR. RUBI LI, Petitioner, - versus - | G.R. No. 165279 Present: CORONA, C.J., CARPIO, CARPIO MORALES, VELASCO, JR., NACHURA, LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO,* ABAD, VILLARAMA, JR., PEREZ, MENDOZA, and SERENO, JJ. |
SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of deceased Angelica Soliman, Respondents. | Promulgated: June 7, 2011 |
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DECISION
VILLARAMA, JR., J.:
x x x.
The petition is meritorious.
The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action caused injury to the patient.[51]
This Court has recognized that medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians stems from the former’s realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating, hence the indispensability of expert testimonies.[52]
In this case, both the trial and appellate courts concurred in finding that the alleged negligence of petitioner in the administration of chemotherapy drugs to respondents’ child was not proven considering that Drs. Vergara and Balmaceda, not being oncologists or cancer specialists, were not qualified to give expert opinion as to whether petitioner’s lack of skill, knowledge and professional competence in failing to observe the standard of care in her line of practice was the proximate cause of the patient’s death. Furthermore, respondents’ case was not at all helped by the non-production of medical records by the hospital (only the biopsy result and medical bills were submitted to the court). Nevertheless, the CA found petitioner liable for her failure to inform the respondents on all possible side effects of chemotherapy before securing their consent to the said treatment.
The doctrine of informed consent within the context of physician-patient relationships goes far back into English common law. As early as 1767, doctors were charged with the tort of “battery” (i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their patients prior to performing a surgery or procedure. In the United States, the seminal case was Schoendorff v. Society of New York Hospital[53] which involved unwanted treatment performed by a doctor. Justice Benjamin Cardozo’s oft-quoted opinion upheld the basic right of a patient to give consent to any medical procedure or treatment: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.”[54] From a purely ethical norm, informed consent evolved into a general principle of law that a physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the probable benefits.[55]
Subsequently, in Canterbury v. Spence[56] the court observed that the duty to disclose should not be limited to medical usage as to arrogate the decision on revelation to the physician alone. Thus, respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.[57] The scope of disclosure is premised on the fact that patients ordinarily are persons unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the full measure of a physician’s responsibility. It is also his duty to warn of the dangers lurking in the proposed treatment and to impart information which the patient has every right to expect. Indeed, the patient’s reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated with armslength transactions.[58] The physician is not expected to give the patient a short medical education, the disclosure rule only requires of him a reasonable explanation, which means generally informing the patient in nontechnical terms as to what is at stake; the therapy alternatives open to him, the goals expectably to be achieved, and the risks that may ensue from particular treatment or no treatment.[59] As to the issue of demonstrating what risks are considered material necessitating disclosure, it was held that experts are unnecessary to a showing of the materiality of a risk to a patient’s decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that should have been made known must further materialize, for otherwise the omission, however unpardonable, is without legal consequence. And, as in malpractice actions generally, there must be a causal relationship between the physician’s failure to divulge and damage to the patient.[60]
Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral part of physician’s overall obligation to patient, the duty of reasonable disclosure of available choices with respect to proposed therapy and of dangers inherently and potentially involved in each. However, the physician is not obliged to discuss relatively minor risks inherent in common procedures when it is common knowledge that such risks inherent in procedure of very low incidence. Cited as exceptions to the rule that the patient should not be denied the opportunity to weigh the risks of surgery or treatment are emergency cases where it is evident he cannot evaluate data, and where the patient is a child or incompetent.[62] The court thus concluded that the patient’s right of self-decision can only be effectively exercised if the patient possesses adequate information to enable him in making an intelligent choice. The scope of the physician’s communications to the patient, then must be measured by the patient’s need, and that need is whatever information is material to the decision. The test therefore for determining whether a potential peril must be divulged is its materiality to the patient’s decision.[63]
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the physician for failure to inform patient, there must be causal relationship between physician’s failure to inform and the injury to patient and such connection arises only if it is established that, had revelation been made, consent to treatment would not have been given.
There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent: “(1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment.” The gravamen in an informed consent case requires the plaintiff to “point to significant undisclosed information relating to the treatment which would have altered her decision to undergo it.[64]
Examining the evidence on record, we hold that there was adequate disclosure of material risks inherent in the chemotherapy procedure performed with the consent of Angelica’s parents. Respondents could not have been unaware in the course of initial treatment and amputation of Angelica’s lower extremity, that her immune system was already weak on account of the malignant tumor in her knee. When petitioner informed the respondents beforehand of the side effects of chemotherapy which includes lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart damage and skin darkening, there is reasonable expectation on the part of the doctor that the respondents understood very well that the severity of these side effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease itself, each patient’s reaction to the chemical agents even with pre-treatment laboratory tests cannot be precisely determined by the physician. That death can possibly result from complications of the treatment or the underlying cancer itself, immediately or sometime after the administration of chemotherapy drugs, is a risk that cannot be ruled out, as with most other major medical procedures, but such conclusion can be reasonably drawn from the general side effects of chemotherapy already disclosed.
As a physician, petitioner can reasonably expect the respondents to have considered the variables in the recommended treatment for their daughter afflicted with a life-threatening illness. On the other hand, it is difficult to give credence to respondents’ claim that petitioner told them of 95% chance of recovery for their daughter, as it was unlikely for doctors like petitioner who were dealing with grave conditions such as cancer to have falsely assured patients of chemotherapy’s success rate. Besides, informed consent laws in other countries generally require only a reasonable explanation of potential harms, so specific disclosures such as statistical data, may not be legally necessary.[65]
The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be reduced to one simplistic formula applicable in all instances. Further, in a medical malpractice action based on lack of informed consent, “the plaintiff must prove both the duty and the breach of that duty through expert testimony.[66] Such expert testimony must show the customary standard of care of physicians in the same practice as that of the defendant doctor.[67]
In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOH’s Operational and Management Services charged with receiving complaints against hospitals, does not qualify as expert testimony to establish the standard of care in obtaining consent for chemotherapy treatment. In the absence of expert testimony in this regard, the Court feels hesitant in defining the scope of mandatory disclosure in cases of malpractice based on lack of informed consent, much less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be an evolving one.
As society has grappled with the juxtaposition between personal autonomy and the medical profession's intrinsic impetus to cure, the law defining “adequate” disclosure has undergone a dynamic evolution. A standard once guided solely by the ruminations of physicians is now dependent on what a reasonable person in the patient’s position regards as significant. This change in perspective is especially important as medical breakthroughs move practitioners to the cutting edge of technology, ever encountering new and heretofore unimagined treatments for currently incurable diseases or ailments. An adaptable standard is needed to account for this constant progression. Reasonableness analyses permeate our legal system for the very reason that they are determined by social norms, expanding and contracting with the ebb and flow of societal evolution.
As we progress toward the twenty-first century, we now realize that the legal standard of disclosure is not subject to construction as a categorical imperative. Whatever formulae or processes we adopt are only useful as a foundational starting point; the particular quality or quantity of disclosure will remain inextricably bound by the facts of each case. Nevertheless, juries that ultimately determine whether a physician properly informed a patient are inevitably guided by what they perceive as the common expectation of the medical consumer—“a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure.”[68] (Emphasis supplied.)
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15, 2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE.
The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904 is REINSTATED and UPHELD.
No costs.
SO ORDERED.
* No part.
[1] Rollo, pp. 33-63. Penned by Associate Justice Mariano C. Del Castillo (now a Member of this Court) and concurred in by Associate Justices Roberto A. Barrios and Magdangal M. De Leon.
[3] Id. at 119-162. Penned by Judge Salvador D. Silerio.
[4] Records, p. 174.
[5] Id. at 175.
[6] Id. at 254.
[7] Rollo, pp. 80-89.
[8] Id. at 95-108.
[10] TSN, October 6, 1995, pp. 18-26, 60; TSN, January 27, 1997, pp. 4-5.
[11] Rollo, p. 35.
[12] Id. at 35 and 81.
[13] TSN, October 6, 1995, pp. 39-40; rollo, p. 123.
[14] Id. at 40.
[15] Cisplatin is in a class of drugs known as platinum-containing compounds. It slows or stops the growth of cancer cells inside the body. Source: http://www.nlm.nih.gov/medlineplus/druginfo/meds/a684036.html. (Site visited on August 21, 2010.)
[16] Doxorubicin is an anti-cancer (antineoplastic or cytotoxic) chemotherapy drug. It is classified as an “anthracycline antibiotic.” Source: http://www.chemocare.com/bio/doxorubicin.asp (Site visited on August 21, 2010.)
[17] Cosmegen is the trade name for Dactinomycin, an anti-cancer (antineoplastic or cytotoxic) chemotherapy drug classified as an “alkylating agent.” Source: http://www.chemocare.com/bio/cosmegen.asp (Site visited on August 21, 2010.)
[20] TSN, April 22, 1996, pp. 11-12.
[21] Rollo, p. 35.
[22] Id. at 120.
[23] TSN, October 6, 1995, pp. 27-28.
[24] TSN, September 19, 1994, p. 18.
[25] Par. 11 of Answer, rollo, p. 100.
[26] TSN, September 19, 1994, p. 19; paragraph 16 of Complaint, rollo, p. 82.
[27] TSN, October 6, 1995, pp. 28-30; paragraphs 12, 13 & 14 of Answer, rollo, pp. 100-101.
[28] Rollo, p. 101.
[30] Rollo, p. 36.
[31] Id. at 125-126.
[33] Paragraph 14 of Answer, rollo, pp. 101-102.
[34] Paragraphs 19-20 of Complaint, rollo, pp. 83; paragraphs 15-17 of Answer, pp. 102-103.
[35] Paragraph 17 of Answer, rollo, p. 103.
[36] Paragraph 23 of Complaint, rollo, p. 83; TSN, September 19, 1994, pp. 24-25.
[38] Paragraph 17 of Answer, rollo, p. 103.
[39] Id.
[40] Rollo, p. 37.
[41] TSN, October 6, 1995, p. 33.
[42] Id.
[43] TSN, December 15, 1994, p. 22.
[45] TSN, April 28, 1995, pp. 23-25.
[49] Id. at 58-59, 62-63.
[51] Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5, 1997, 278 SCRA 769, 778.
[52] Lucas v. Tuaño, G.R. No. 178763, April 21, 2009, 586 SCRA 173, 201-202, citing Dr. Cruz v. Court of Appeals, 346 Phil. 872, 884-885 (1997).
[53] 105 N.E. 92, 93 (N.Y. 1914).
[54] Id.
[55] Black’s Law Dictionary, Fifth Edition, p. 701, citing Ze Barth v. Swedish Hospital Medical Center, 81 Wash.2d 12, 499 P.2d 1, 8.
[56] 464 F.2d 772 C.A.D.C., 1972.
[57] Id. at 784.
[58] Id. at 780-782.
[59] Id. at 782.
[60] Id. at 790, 791-792.
[61] 8 Cal.3d 229, 502 P.2d 1 Cal. 1972.
[62] Id.
[63] Id.
[64] Davis v. Kraff, N.E.2d 2010 WL 4026765 Ill.App. 1 Dist., 2010, citing Coryell v. Smith, 274 Ill.App.3d 543, 210 Ill.Dec. 855, 653 N.E.2d 1317 (1995).
[67] Id., 230, citing Shenefield v. Greenwich Hospital Assn., 10 Conn.App. 239, 248-49, 522 A.2d 829 (1987).
[68] “Informed Consent: From the Ambivalence of Arato to the Thunder of Thor” Issues in Law & Medicine, Winter, 1994 by Armand Arabian. Sourced at Internet - http://findarticles.com/p/articles/mi_m6875/is_n3_10/ai_n25022732/pg_37/?tag=content;col1