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Reckless imprudence generally defined by our penal law consists in

voluntarily but without malice, doing or failing to do an act from which


material damage results by reason of inexcusable lack of precaution
on the part of the person performing or failing to perform such act, taking
into consideration his employment or occupation, degree of
intelligence, physical condition and other circumstances regarding
persons, time and place.
Imprudence connotes a deficiency of action.
It implies a failure in precaution or a failure to take the necessary
precaution once the danger or peril becomes foreseen.
Reckless imprudence requires the concurrence of the following
elements, namely,
(a) that the offender has done or failed to do an act;
(b) that the act is voluntary;
(c) that the same is without malice;
(d) that material damage results; and
(e) that there has been inexcusable lack of precaution on the part of the
offender.

CRIMINAL NEGLIGENCE

Art. 365. Imprudence and negligence.


Any person who, by reckless imprudence, shall commit any act which, had
it been intentional, would constitute a grave felony, shall suffer the penalty
of arresto mayor in its maximum period to prision correccional in its
medium period; if it would have constituted a less grave felony, the penalty
of arresto mayor in its minimum and medium periods shall be imposed; if it
would have constituted a light felony, the penalty of arresto menor in its
maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an
act which would otherwise constitute a grave felony, shall suffer the penalty
of arresto mayor in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto mayor in its
minimum period shall be imposed.
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When the execution of the act covered by this article shall have only
resulted in damage to the property of another, the offender shall be
punished by a fine ranging from an amount equal to the value of said
damages to three times such value, but which shall in no case be less than
twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be imposed upon
any person who, by simple imprudence or negligence, shall cause some
wrong which, if done maliciously, would have constituted a light felony.
In the imposition of these penalties, the court shall exercise their sound
discretion, without regard to the rules prescribed in Article sixty-four.
The

provisions

contained

in

this

article

shall

not

be

applicable:

1. When the penalty provided for the offense is equal to or lower than those
provided in the first two paragraphs of this article, in which case the court
shall impose the penalty next lower in degree than that which should be
imposed in the period which they may deem proper to apply
2. When, by imprudence or negligence and with violation of the Automobile
Law, to death of a person shall be caused, in which case the defendant shall
be punished by prision correccional in its medium and maximum periods.
Reckless imprudence consists in voluntary, but without malice, doing or
falling to do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person performing of
failing to perform such act, taking into consideration his employment or
occupation, degree of intelligence, physical condition and other
circumstances regarding persons, time and place.
Simple imprudence consists in the lack of precaution displayed in those
cases in which the damage impending to be caused is not immediate nor
the danger clearly manifest.
The penalty next higher in degree to those provided for in this article shall
be imposed upon the offender who fails to lend on the spot to the injured
parties such help as may be in this hand to give. (As amended by R.A.
1790, approved June 21, 1957).
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DEFENSES IN MEDICAL MALPRACTICE.


Section 27. Offer of compromise not admissible.
In civil cases, an offer of compromise is not an admission of any liability,
and is not admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses (criminal
negligence) or those allowed by law to be compromised, an offer of
compromised by the accused may be received in evidence as an implied
admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to
lesser offense, is not admissible in evidence against the accused who made
the plea or offer.
An offer to pay or the payment of medical, hospital or other expenses
occasioned by an injury is not admissible in evidence as proof of civil or
criminal liability for the injury. (24a)
What is the Discovery Rule?
In many instances of malpractice, a patient may not be immediately aware
that medical negligence has occurred.
While wrong site surgery will be obvious, a misdiagnosis or prescription
drug error may not be readily apparent until months or even years
afterwards.
In these cases, most states allow extra time for the discovery of medical
negligence before the statute of limitation for filing a medical
malpractice claim begin.
It is important to note that not all states provide time for the discovery of
the negligence.
In these states, the statutes begin when the negligent care is performed,
not when the patient becomes aware of it.
Remember: all patients have a legal right to receive professionally sound
medical care.
Any violations in the standard of care can create a liability for the negligent
doctor.
If you are concerned you may be the victim of medical malpractice, find a
lawyer immediately.
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The continuing treatment rule exists to prevent the situation of an ill or


injured patient with a chronic condition that is either untreated or
inadequately treated, who does not question physicians conduct, actions
and advice (while treatment is undertaken).
Under this rule, when a patient suffers injuries that arise from a course of
treatment that has run continuously and is related to the same original
condition or complaint, the statute of limitations does not begin to run until
the patient terminates treatment (the statute is tolled or does not begin
to run).1
A Court has explained this rule stating:
The continuous treatment exception is premised upon the doctrinal
assumption that a patient who has placed his trust and confidence in a
hospital's medical staff and is hence in no position to question his
physician's techniques, has a right to rely upon the doctor's professional
skill without the necessity of interrupting a continuous course of treatment
by instituting suit.
The exception thus provides the patient with an opportunity to seek
corrective treatment from the doctor as well as affording the physician a
reasonable chance to identify and correct errors made at a prior stage of
treatment.2
In addition, under the continuing treatment rule, a patient is not expected
to discover that the doctors acts were malpractice.
This is so because the negligent doctor might conceal important information
and the patient might be reluctant to question the care the physician
provided.
The patient might think that it is against his own interest to disrupt the
course of treatment by suing his physician.
Notably, consultation with an attorney does not necessarily break the
continuing treatment and commence the running of the statute while actual
knowledge of an act of malpractice does result in the statute of limitations
starting to run.
The continuing treatment rule also reflects that during an ongoing
relationship, it may be impossible to pinpoint the exact date of a particular
negligence or omission.
Moreover, the negligence or omission may have been a series of acts or
omissions.
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Thus, it is appropriate to allow the course of treatment to terminate before


the statute of limitations starts to run, rather than having doctor and
patient dispute when the action or inaction that gave rise to the patients
eventual claim started.
Vicarious liability is a form of a strict, secondary liability that arises under
the common law doctrine of agency, respondeat superior, the responsibility
of the superior for the acts of their subordinate or, in a broader sense, the
responsibility of any third party that had the "right, ability or duty to
control" the activities of a violator.
It can be distinguished from contributory liability, another form of
secondary liability, which is rooted in the tort theory of enterprise liability.
The law has developed the view that some relationships by their nature
require the person who engages others to accept responsibility for the
wrongdoing of those others.
The most important such relationship for practical purposes is that of
employer and employee.
RES IPSA LOQUITUR
In negligence action if the plaintiff cannot make out a breach of defendants
duty of care a nonsuit will result.
It is the purpose of the res ipsa loquitur doctrine, in appropriate cases, to
supply this m,issing element by inferring the breach from the nature of the
injury.
Underlying the doctrine is the recognition that it is unjust to deny the
plaintiff any possibility of recovery when the nature of his injury speaks
strongly enough of a negligent causations.
Res ipsa loquitur is defined by three elements:
One. The injury must be one which common knowledge indicates does not
occur ordinarily absent negligence. In medical malpractice cases either this
conclusion is based on knowledge common to laymen, or expert testimony
may establish that the conclusion is common knowledge among experts.
Art. 262. Mutilation.
The penalty of reclusion temporal to reclusion perpetua shall be imposed
upon any person who shall intentionally mutilate another by
depriving him, either totally or partially, or some essential organ of
reproduction.

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II. PHYSICAL INJURIES


A.

MUTILATION: (262)

Kinds of Mutilation
1. Intentionally mutilating another by depriving him, totally or
partially, of some essential organ for reproduction.
2. Intentionally making another mutilation, i.e. lopping, clipping off
any part of the body of the offended party, other than the essential organ
for reproduction, to deprive him of that part of the body.
Elements:
1. There be a castration i.e. mutilation of organs necessary for generation.
2. Mutilation is caused purposely and deliberately.
Notes:
In the first kind of mutilation, the castration must be made purposely.
Otherwise, it will be considered as mutilation of the second kind
Mayhem: refers to any other intentional mutilation
B.

SERIOUS PHYSICAL INJURIES: (263)

How Committed
1. Wounding
2. Beating
3. Assaulting
4. Administering injurious substances
What are serious physical injuries:
1. Injured person becomes insane, imbecile, impotent or blind
2. Injured person
a. loses the use of speech or the power to hear or to smell, loses an eye,
a hand, foot, arm or leg
b. loses the use of any such member
c. becomes incapacitated for the work in which he had been habitually
engaged
3. Injured person
a. becomes deformed
b. loses any other member of his body
c. loses the use thereof
d. becomes ill or incapacitated for the performance of the work in which
he had been habitually engaged in for more than 90 days
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4. Injured person becomes ill or incapacitated for labor for more than 30
days (but not more than 90 days)
Notes:
1. Serious physical injuries may be committed through reckless
imprudence or simple imprudence.
2. There must be no intent to kill.
3. Impotent should include inability to copulate and sterility.
4. Blindness requires lost of vision in both eyes.
Mere weakness in vision is not contemplated.
5. Loss of power to hear must involve both ears.
Otherwise, it will be considered as serious physical injuries under par 3.
6. Loss of use of hand or incapacity of usual work in par 2 must be
permanent.
7. Par 2 refers to principal members of the body.
Par 3 on the other hand, covers any other member which is not a
principal part of the body.
In this respect, a front tooth is considered as a member of the body,
other than a principal member.
8. Deformity:
abnormality.

means

physical

ugliness,

permanent

and

definite

Not curable by natural means or by nature.


It must be conspicuous and visible.
Thus, if the scar is usually covered by a dress, it would not be
conspicuous and visible.
9. The loss of 3 incisors is a visible deformity.
Loss of one incisor is not.
However, loss of one tooth which impaired appearance is a deformity.

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10. Deformity by loss of teeth refers to injury which cannot be impaired by


the action of the nature.
11. Loss of both outer ears constitutes deformity and also loss of the
power to hear.
Meanwhile, loss of the lobule of the ear is only a deformity.
12. Loss of the index and middle fingers is either a deformity or loss of
a member, not a principal one of his body or use of the same.
13. Loss of the power to hear in the right ear is considered as merely loss
of use of some other part of the body.
14. If the injury would require medical attendance for more than 30 days,
the illness of the offended party may be considered as lasting more than
30 days.
The fact that there was medical attendance for that period of time shows
that the injuries were not cured for that length of time.
15. Under par 4, all that is required is illness or incapacity, not medical
attendance.
16. In determining incapacity, the injured party must have an avocation
at the time of the injury.
Work: includes studies or preparation for a profession.
17. When the category of the offense of serious physical injuries depends
on the period of the illness or incapacity for labor, there must be
evidence of the length of that period.
Otherwise, the offense will only be considered as slight physical injuries.
18. There is no incapacity if the injured party could still engage in his work
although less effectively than before.
19. Serious physical injuries is qualified
a. when the crime is committed against the same persons enumerated
in the article on parricide or
b. When it is attended by any of the circumstances defining the crime
of murder.

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However, serious physical injuries resulting from excessive


chastisement by parents is not qualified serious physical
injuries.
C.
ELEMENTS OF ADMINISTERING INJURIOUS SUBSTANCES OR
BEVERAGES: (264)
a. That the offender inflicted upon another person any serious physical
injury.
b. That it was done knowingly administering to him any injurious
substances or beverages or by taking advantage of his weakness of mind
of credulity.
c. He had no intent to kill.
Notes:
a. It is frustrated murder when there is intent to kill.
b. Administering means introducing into the body the substance, thus
throwing of the acid in the face is not contemplated.

D.

ELEMENTS OF LESS SERIOUS PHYSICAL INJURIES: (265)

a. That the offended party is incapacitated for labor for 10 days or more
(but not more than 30 days), or needs medical attendance for the
same period of time.
b. That the physical injuries must not be those described in the preceding
articles.
Notes:

Circumstances qualifying the offense:


a. When there is manifest intent to insult or offend the injured person.
b. When there are circumstances adding ignominy to the offense.
c. When the victim is either the offenders
guardians, curators or teachers.

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parents,

ascendants,

d. When the victim is a person of rank or person in authority, provided


the crime is not direct assault.
e. It falls under this article even if there was no incapacity but the medical
treatment was for 13 days.
E.

SLIGHT PHYSICAL INJURIES: (266)

3 Kinds:
1. That which incapacitated the offended party for labor from 1-9 days or
required medical attendance during the same period.
2. That which did not prevent the offended party from engaging in his
habitual work or which did not require medical attendance (ex. Blackeye).
3. Ill-treatment of another by deed without causing any injury (ex.
slapping but without causing dishonor)
F. ELEMENTS OF DEATH IN A TUMULTOUS AFFRAY: (251)

That there be several persons.


That they did not compose groups organized for the common purpose of
assaulting and attacking each other reciprocally.
That these several persons quarreled and assaulted one another in a
confused and tumultuous manner.
That someone was killed in the course of the affray.
That it cannot be ascertained who actually killed the deceased.
That the person or persons who inflicted serious physical injuries or who
used violence can be identified.
Notes:

Tumultuous affray exists hen at least 4 persons take part in it


When there are 2 identified groups of men who assaulted each other, there
is no tumultuous affray
Persons liable are:
person/s who inflicted serious physical injuries
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if it is not known who inflicted serious physical injuries on the deceased, all
persons who used violence upon the person of the victim.
G. ELEMENTS OF PHYSICAL INJURIES INFLICTED IN A TUMULTOUS
AFFRAY: (252)

that there is a tumultuous affray as referred to in the preceding article.


That a participant or some participants thereof suffer serious physical
injuries or physical injuries of a less serious nature only.
that the person responsible therefor cannot be identified.
That all those who appear to have used violence upon the person of the
offended party are known.
Art. 246. Parricide.
Any person who shall kill his father, mother, or child, whether legitimate or
illegitimate, or any of his ascendants, or descendants, or his spouse, shall
be guilty of parricide and shall be punished by the penalty of reclusion
perpetua to death.
Art. 247. Death or physical injuries inflicted under exceptional
circumstances. Any legally married person who having surprised his
spouse in the act of committing sexual intercourse with another person,
shall kill any of them or both of them in the act or immediately thereafter,
or shall inflict upon them any serious physical injury, shall suffer the penalty
of destierro.chanrobles virtual law library
If he shall inflict upon them physical injuries of any other kind, he shall be
exempt from punishment.
These rules shall be applicable, under the same circumstances, to parents
with respect to their daughters under eighteen years of age, and their
seducer, while the daughters are living with their parents.chanrobles virtual
law library
Any person who shall promote or facilitate the prostitution of his wife or
daughter, or shall otherwise have consented to the infidelity of the other
spouse shall not be entitled to the benefits of this article.chanrobles virtual
law library
Art. 248. Murder.
Any person who, not falling within the provisions of Article 246 shall kill
another, shall be guilty of murder and shall be punished by reclusion
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temporal in its maximum period to death, if committed with any of the


following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of
armed men, or employing means to weaken the defense or of means or
persons to insure or afford impunity.chanrobles virtual law library
2. In consideration of a price, reward, or promise.chanrobles virtual law
library
3. By means of inundation, fire, poison, explosion, shipwreck, stranding of a
vessel, derailment or assault upon a street car or locomotive, fall of an
airship, by means of motor vehicles, or with the use of any other means
involving great waste and ruin.chanrobles virtual law library
4. On occasion of any of the calamities enumerated in the preceding
paragraph, or of an earthquake, eruption of a volcano, destructive cyclone,
epidemic or other public calamity.chanrobles virtual law library
5. With evident premeditation.chanrobles virtual law library
6. With cruelty, by deliberately and inhumanly augmenting the suffering of
the victim, or outraging or scoffing at his person or corpse.

res ipsa loquitur


[rs ips lokwitoor]
Etymology: L, the thing speaks for itself
a legal concept, important in many malpractice suits, describing a situation
in which an injury occurred when the defendant was solely and
exclusively in control and in which the injury would not have occurred
had due care been exercised. Classic examples of res ipsa loquitur are a
sponge left in the abdomen after abdominal surgery or the amputation of
the wrong extremity.
Corporate negligence
Failure of a corporation to meet its legal obligations to its clients.
With regard to health care facilities, responsibilities included under the
doctrine of corporate negligence are
a. monitoring and supervision of the competence of medical and nursing
personnel within the facility;

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b. investigating physicians' credentials before granting staff privileges;


and
c. Negligent hiring of health care professionals (including failure to
conduct appropriate background investigations).
See also: negligence

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