Evidence Flashcards
The means, sanctioned by the Rules of Court, of ascertaining in a judicial proceeding, the truth respecting a matter of fact
Evidence
- Tends to establish a fact by proving another fact; not considered conclusive itself, but can be connected to a matter of fact
- No solid proof regarding a fact, but another fact is true but is not directly connected to a matter
Example: hearsay, rumors, testimony
Circumstantial Evidence
- Evidence which are not excluded by law as tending to prove a fact in issue
- Anything that can prove a matter of fact is called __________
Example: birth certificate, dental health records, etc.
Competent Evidence
- The law does not permit this evidence to be contradicted
- No evidence is by law made conclusive unless so declared by statute
- Hard to contradict/disprove
Conclusive Evidence
- Additional evidence of a different character to the same point
- An evidence which supports and confirms
Example: an old picture showing father and son after matching 99.9% DNA test
Corroborative Evidence
Additional evidence of the same character to the same point
Example: two different blood tests show paternity match
Cumulative Evidence
- Proves a fact without and interference or presumption and which in itself, if true, establishes that fact
- Anything that directly proves a matter of fact
Direct Evidence
Testimony given by an expert witness on a matter requiring special skill, knowledge, training, or experience which he is shown to posses
Expert Evidence
Not directed to prove a fact in issue as determined by the rules of substantive law and of pleadings
Example: hearsay
Immaterial Evidence
Irrelevant to the issue or which is excluded by the rules of evidence
Example: evidence taken in violation of the Bill of Rights
Inadmissible Evidence
Excluded by law either on ground of its immateriality, irrelevancy, want of credibility, or for any other reason
Example: a testimony that contains hearsay or
information outside of the expert’s field
Incompetent Evidence
- No tendency in reason to establish the probability or improbability of a fact in question
- Not related to the matter of fact
- Any evidence not proving a fact; “out of the blue”
Irrelevant Evidence
Directed to prove a fact in issue
Material Evidence
- Proves a particular fact until contradicted and overcome by other evidence
- Not conclusive until proven/disproven
Prima Facie Evidence
- Directly addressed to the court’s senses as would materially aid the judge to arrive at a proper conclusion as to the truth respecting a matter of fact
- A.k.a. visual evidence/object evidence
Real Evidence
Having any value in reason as may tend to establish the probability or improbability of a fact in question
Relevant Evidence
Is any written or oral statement or declaration of a person respecting a matter of fact sought to be proven
Testimonial Evidence
Consist of writing or any material containing letters, words, numbers, figures, symbols, or other modes of written expression offered as proof of their contents
Documentary Evidence
A deduction which the law expressly directs to be made from particular facts
PRESUMPTION OF LAW
Presumption of law that is legally satisfactory and may not be contradicted and overcome by proof to the contrary; facts coming from conclusive evidences
Conclusive Presumption
presumption of law that is satisfactory if uncontradicted but may be overcome by other evidence
Disputable Presumption
- A deduction which reason draws from the facts proven without an expressed direction of law to that effect
- Facts that needs to be proven to become an evidence
PRESUMPTION OF FACT
Means that the original of a document or writing is the best evidence of such document or writing and must be produced unless the original is lost, destroyed, unavailable, or otherwise unobtainable
Best Evidence Rule
Substitutionary evidence which becomes admissible, when the best evidence or original document is lost, or destroyed, or cannot be produced in court, or is in the custody of the adverse party
Secondary Evidence
Means that parole or oral evidence of prior or contemporaneous agreements is not admissible to modify, or contradict the written agreement; everything not found in the written agreement is not true
Parole Evidence Rule
A witness can testify only to those facts which he knows of his personal knowledge, which are derived from his own perception, except as otherwise provided in the Rules of Court (Chismis Rule)
Hearsay Rule
The first exception of the hearsay rule
Dying Declaration
- The declaration of a dying person, made under the consciousness of an impending death
- His death is the subject of inquiry
Dying Declaration
The source of all information regarding confinement and treatment in a hospital or management in a dental clinic
PATIENT’S CLINICAL RECORD
PATIENT’S CLINICAL RECORD
includes
*Patient’s dental history
*Results of examinations
*Records of treatment
*Copies of laboratory reports
*Notations of all instructions given
*Copies of all prescription and notes
*Documents of informed consent when applicable
*Any other pertinent data
PATIENT’S CLINICAL RECORD
Reasons/Goals
To provide the best dental care
To supply statistical information
To provide legal protection
Correcting a Handwritten Entry on Patient’s Clinical Record
•Draw a line through the error
•Insert the correction above or immediately following
•In the margin, write “correction” or “Corr.”, your initials, and
the date.
Except as otherwise provided by law, witnesses are all persons who can perceive, and perceiving, can make their known perception to others, may be witnesses
WITNESSES
Religious or political belief, interest in the outcome of the case, or conviction of a crime unless otherwise provided by law, shall not be ground of disqualification
WITNESSES
testifies on matters that came to his knowledge through his own senses and testifies on facts
Ordinary witness
gives testimony on matters he knows a lot about; can give an opinion on matters that he has plenty of experience about
Expert Witness
The opinion of a witness on a matter requiring:
* Special knowledge
* Skill
* Experience or training which he is shown to possess
EXPERT TESTIMONY
- The dentist rendering expert testimony in cases of litigations shall limit comments to the case brought forth and avoid undue criticism to defame or discredit the other
- Generally relied upon in malpractice suits
EXPERT TESTIMONY
- The guiding principle is “helpfulness to the court”
- The only true criterion is: “can a court receive from him appreciable help?”
Qualifying a Witness as an Expert
To qualify an expert (in witness):
Personal circumstances, then:
* Academic background of the subject
* His experience, professional standing, and training on the said line
* The relative objectivity of his views
* Degree of concordance of his views with the facts proven
it is not proper to include assumptions not supported by evidence
When the doctrine of _________ is availed by the plaintiff because the injury itself provides the proof of negligence
res Ipsa loquitur
res Ipsa loquitur
“the thing speaks for itself”
Necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within thee common knowledge of mankind
res Ipsa loquitur
No need for an expert testimony in these cases of _________
res Ipsa loquitur
A person authorized to practice medicine, surgery, or obstetrics cannot, in a civil case, without the consent of the patient, be examined as to any advise or treatment given by him or any information which he may have acquire in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient
PRIVILEGED COMMUNICATION
This privilege can be claimed in civil cases only; it cannot be invoked in a criminal case because the privilege cannot be used as a shield in the prosecution of crimes
PRIVILEGED COMMUNICATION
Requisites of Privileged Communications between Dentist and Patient:
- Claimed in a civil case
- That the person, is one duly authorized to practice dentistry
- That such person acquired the information while he was attending t he patient in his personal capacity
- That the information was confidential, and, if disclosed, shall tend to blacken the character of the patient
Scope of the Privilege
The privilege applies to the testimony of the dentist on the stand or to any:
- Testimony of the dentist on the stand
- Affidavit
- Certificate
- Dental records containing privileged matters
The privilege applies even after the death of the patient
Duration of the Privilege
Privileged Communication Not Applicable when:
1.
Personal injury suit by patient
2.
In competency, guardianship and commitment proceedings
3.
The privilege does not apply in contests involving the
patient’s will, nor in any action involving the validity of a deed
or conveyance executed by the now-deceased patient or the
decedent’s intentions with regard thereto, or in any
proceeding in which all parties are claiming through the
deceased patient
4.
Malpractice cases
5.
Illegal purpose
6.
Legal disclosures
Another exception to the physician-patient privilege
Legal Disclosures
The dentist, dental hygienist, or dental technologist shall report all violations of the Philippine Dental Act of 2007,
rules and regulations governing the practice of Dentistry, and this Code, as may be committed by a duly licensed dentist, dental hygienist, or dental technologist, or non-dentist, which comes to their knowledge, to the appropriate chapter of affiliate society, the Board, or the Professional Regulation Commission
Legal Disclosures
Alleged illegal dental practitioners must be treated with due respect in accordance to their primary human rights and must be presumed innocent until proven guilty
Legal Disclosures
Is the power to hear, determine, ascertain facts, and decide by the application of rules of law to the ascertained facts in the enforcement and administration of law
Administrative Adjudicatory or Quasi-Judicial Power
- Has a quality resembling that of judicial proceeding
- Proceedings before the PRC and the PRBs, like the Board of Dentistry, are all in the nature of quasi-judicial proceedings
Nature of Administrative Proceedings
ESSENTIAL REQUIREMENTS OF ADMINISTRATIVE DUE ROCESS
- An opportunity to present his case and to adduce evidence
- Tribunal must consider the evidence presented
- The decision must be supported by itself
- The evidence must be substantial
- The decision must be rendered on the evidence presented
- The board or its judges must act impartially
- The decision must be rendered in such a manner that the parties to the proceedings will know the various issues involved, and the reasons for the decision rendered
Shall be heard by a committee
Administrative Charges Vs. Public Health Worker
Administrative Charges Vs. Public Health Worker
Composition
- Provincial/city public health officer
- representative of provincial public health workers
- Supervisor of the district of the dentist
- PDA representative
The committee shall submit its findings and recommendations to the Secretary of Health within ________ days from the
termination of the hearings
thirty (30)
SAFEGUARDS IN DISCIPLINARY PROCEDURES
- The right to be informed, in writing, of the charges
- The right to full access to the evidence in the case
- The right to defend himself/herself, to be defended by a
representative of his/her choice, adequate time given to the public
health worker for the preparation of his/her defense - The right to confront witnesses presented against him/her and
summon witnesses in his/her behalf - The right to appeal
- The right to reimbursement of reasonable expenses incurred in
his/her defense in case of exoneration or dismissal of the charges - Such other rights as will ensure fairness and impartiality during
proceedings
GROUNDS FOR ADMINISTRATIVE PROCEEDINGS
- Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude
- Immoral or dishonorable conduct
- Insanity
- Fraud in the acquisition of the certificate of registration
- Gross negligence or incompetence in the practice of his profession
- Addiction to alcoholic beverages or to any habit-forming drugs rendering him incompetent to practice his profession
- False or extravagant or unethical advertisement wherein
other things than his name, profession, limitation of practice, office, and home address are mentioned - Aiding or acting as a dummy of an unqualified or unregistered
person to practice dentistry - Violation of any provisions of the Philippine Dental Act of 2007, the PRC Modernization Act of 2000, and their respective rules
and regulations - Conduct discreditable to the dental profession
RULES OF PROCEDURE AT THE PROFESSIONAL REGULATION
COMMISSION
- PRC Resolution No. 06-342, Series of 2006
- PRC Resolution No. 2013-775, Series of 2013
- Resolution No. 2017-1033(A), Series of 2017
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
verified with certification against forum shopping
Complaint
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
submitting numerous same complaints against the same dentist/practitioner; illegal and may be discredited
Forum Shopping
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
order of the court or quasi-judicial agency to an individual called to appear in court or hearing to file an answer through personal service or registered mail
Summons
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
within 15 days from receipt of summons; attach all records necessary; failure to answer would mean a default, wherein the board decides with the complainant’s documents alone
Answers
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
presentation of documents submitted of both parties in the presence of their lawyers
Pre-Trial Conference
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
depending on the pretrial conference
Summary Judgement or go to Trial
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
then execution of decision unless appealed; decision must support itself and must be rendered on the evidence presented
Decision by the BOD
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
done when you are not satisfied with the decision of the Board of Dentistry
Appeal to the Commission (Sec. 6, Rule XVI)
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
done when you
are not satisfied with the decision of the PRC
Appeal to Court of Appeals (Sec. 8, Rule XVI)
EXECUTION OF DECISION
division of PRC that executes the final decision, orders, or resolution of the commission or board in coordination with the concerned Association of (Integrated) Professional Organization and concerned government agencies
Legal and Investigation Division (LID)
EXECUTION OF DECISION
for penalty of suspension or revocation, LID responsible for safekeeping of the surrendered COR and PIC
Surrender of PRC/COR and PIC
- The principle long upheld by it that administrative findings of fact that are supported by substantial evidence must be treated by courts as final
- This follows a trend in modern legislation known as the doctrine of conclusive finality, which is justified by the comity that courts extend to the executive branch and the recognition of the expertise of administrative agencies in dealing with particular questions of fact
DOCTRINE OF CONCLUSIVE FINALITY OF ADMINISTRATIVE DECISIONS
Independently of statutory authority, the President, as the administrative head, and under his constitutional power of control of executive department, bureaus and offices, on his motion or on appeal of some individual who might deem himself aggrieved by the action of an administrative official exercise his power of revision
ADMINISTRATIVE APPEAL AND REVIEW
- Legal responsibility for the payment to an agreed third-party due to the violation of civil law
- Liability imposed by the court against a person who violates the civil law
CIVIL LIABILITY
law concerning individual relations, properties, business, personal dealings, etc., and their interaction with each other
Civil Law
Comes with monetary compensation instead of imprisonment like in criminal law
Civil Law
Deals more on private individuals and has nothing to do with the state or government
Civil Law
- Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith (Human Relations)
- Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages (fraud, negligence, delays)
- In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those that were the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted
LEGAL BASIS OF CIVIL LIABILITY
In cases of fraud, bad faith, malice, or wanton (improper) attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation
LEGAL BASIS OF CIVIL LIABILITY
extinguished in the same manner as other obligations
EXTINCTION OF CIVIL LIABILITY
the offender shall continue to be obliged to satisfy the civil liability resulting from the crime committed by him, notwithstanding the fact that he has served his sentence consisting of deprivation of liberty or other rights, or has not been required to serve the same by reason of amnesty, pardon, commutation of sentence, or any other reason
Obligation to Satisfy Civil Liability
In short, persons with criminal offenses shall still pay civil liability after serving time in imprisonment
Obligation to Satisfy Civil Liability
forgiveness of a criminal offense granted by the head of the state or President; amnesty is before judgment, pardon is after judgment;
civil liability is still present
Amnesty/Pardon
A juridical necessity to give, to do, or not to do
OBLIGATIONS
- Obligations arising from law are not presumed
- Only those expressly determined in the Civil Code or in special laws are demandable, and shall be regulated by the precepts of the law which establishes them
Law
- Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith
- stipulations of the contract by the parties must not be contrary to law, morality, good customs, public order, and public policy
Contracts
- deals with what is right and what is wrong
- Norms of good and right conduct
- Governs the private personal interactions of people
Morality
governs the professional interactions of people
Ethics
generally accepted principles of morality which have received some social and practical recognition in the community for so long
Good Customs
the safety and order of the community in order to maintain peace; examples are obeying traffic rules
Public Order
- a good ________ seeks to define issues and implement strategies to produce positive results for the general public
- System of law or regulatory measures to make the society lead a better life and to maintain delivery of goods and services
Public Policy
“no one shall be unjustly enriched or benefited at the expense of another”
Quasi-contracts
giving rise to an obligation to deliver a thing or render a service
Quasi-contracts
A presumptive consent as basis of quasi-contract giving rise to an obligation to deliver a thing or render a service
Quasi-contracts
also termed as solutio indebita
Quasi-contracts
Every person criminally liable for a felony is also civilly liable and therefore becomes obligated to the person he has wronged
Acts or Omissions Punishable by Law (Delicts)
Whoever by act of omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done
Quasi-Delicts (TORTS)
Such fault or negligence, if there is no pre-existing contractual relation between the parties
Quasi-Delicts (TORTS)
Dental negligence falls under this category, wherein there is
no intent but still caused damage
Quasi-Delicts (TORTS)
- The performance of this obligation does not depend upon a condition
- Is demandable at once
Example: patient’s payment to dental service
Pure Obligation
The acquisition/extinguishment of rights shall depend upon the happening of the event which constitutes the condition
Conditional Obligation
that which gives birth to the obligation; obligation happens only upon the happening of this event
Suspensive Condition
that which results to the loss or extinguishment of an obligation
Resolutory Condition
Obligations for whose fulfillment a certain day that has been fixed, shall be demandable only when that day comes
Obligation with a Period
- A person alternatively bound by different prestations shall completely perform one of them
- The creditor cannot be compelled to receive part of one and part of the other undertaking
- The right of choice belongs to the debtor unless it has been granted to the creditor
Alternative Obligations
“to each his own”; kaniya-kaniyan bayad; pro-rata, proportionate
Joint Obligations
“one for all, all for one”; joint and several, in solidum, individually and collectively, each will pay the whole value
Solidary Obligations
Obligations to give definite things and those which are not susceptible of partial performance
Indivisible Obligation
Delivery or performance is susceptible of division or partial performance
Divisible Obligation
- In obligations with a penal clause, the penalty shall substitute the indemnity for damages
- Nevertheless, damages shall be paid if the obligor refuses to pay the penalty or is guilty of fraud in the fulfillment of the obligation
. Obligations with a Penal Clause
an accessory obligation to assume the responsibility if there is non-performance
Penal Clause
one which gives a right of action to compel their performance; all contracts are civil obligations
Civil Obligations
- not based on positive law but on equity and natural law
- Do not grant a right of action to enforce its performance
- Voluntary
Natural Obligations
means the realization of the purpose of the obligation
PERFORMANCE OF AN OBLIGATION
In the obligation “to give”, there is performance upon the delivery of the thing itself, and if the thing to deliver is a specific thing, the obligee has the right to compel the obligor to deliver no other than the specific thing
PERFORMANCE OF AN OBLIGATION
In the prestation “to do”, if a person obliged to do something fails to do it, it shall be executed at his cost
PERFORMANCE OF AN OBLIGATION
CAUSES OF NON-PERFORMANCE OF OBLIGATION
- Voluntary Non-performance of Obligation
- Involuntary Non-performance or Non-performance due to Fortuitious events or Force Majeure (acts of God)
events which could not be foreseen, or which though foreseen, were inevitable
Fortuitious events
acts of God like natural disasters (flood, typhoon, landslide, etc.)
Force Majeure
REQUISITES TO CONSIDER AN EVENT AS FORTUITIOUS
- The cause of the event must be something beyond the control of man i.e. earthquake
- Must not be foreseen, or even if foreseen, is inevitable i.e., typhoon, fire
- Because of the occurrence of this event, the debtor is rendered helpless or incapable of performing his obligation in a normal way
- Obligor or debtor must not have been guilty of contributory negligence and must not have participated in the aggravation of the damage done
Delay in Obligation
- Time of delivery or time of service is the controlling motive of the contract
- Demand would be useless
- In this case, fortuitious event is not an excuse
- Delay = damage
Reciprocal Obligation
- Both parties have obligations to perform
- Neither party incur in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him
- From the moment one of the parties fulfills his obligations, delay by the other begins
after payment, obligation is extinguished
By Payment or Performance
if the thing due is lost due to fortuitious event, it is not your negligence
By the Loss of the Thing due
- condonation or remission is essentially gratuitous, and requires the acceptance by the obligor
- It may be made expressly or impliedly
- Express condonation requires the compliance with forms of donations
- Basically means to forgive or to forget debt
By the Condonation or Remission of the Deb
- The obligation is extinguished from the time the characters of creditor and debtor are merged in the same person
- The enforcement of the obligation becomes impossible
By the Confusion or Merger of the Rights of Creditor and Debtor
shall take place when two persons, in their own right, are creditors and debtors to each other
By Compensation
a juridical act of dual function in that at the time it extinguishes an obligation, it creates a new one in lieu of the old
Novation
Obligations may be modified by:
- Changing the object or principal conditions of an obligation
- Changing the parties
Is a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service
CONTRACT
An obligation whereby an agreement entered unto upon sufficient consideration to do or not to do a particular thing
CONTRACT
True or False
All contracts are agreements, not all agreements are
contracts
True
True or False
Only those that give rise to civil obligation is called a contract
True
Every transaction between a dentist and a patient is a contract, either express or implied, or partly expressed and partly implied
LEGAL NATURE OF THE TRANSACTION
Terms and conditions are made known to each part either in writing or verbal
Expressed Contract
One or more terms or conditions are not definitely known but are taken for granted by operation of law
Implied Contract
A concluded or inferred agreement from the overt acts or conduct of the parties which the law presumed or ascribed as the manifestation of intention of parties to enter into a contract
Implied Contract
True or False
Every contract contains an offer, acceptance, and consideration
True
when you accept an offer, it must be an unconditional and unequivocal acceptance to the exact terms of the offer; if not, it becomes a counteroffer
Acceptance
arbitration clauses set up provisions whereby independent and binding arbitrators settle contractual disputes
Arbitration
- Standard contract clauses use universal language as a type of template
- Usually found at the end of the contract
Boilerplate
Boilerplate clauses includes?
- arbitration clauses
- entire agreement clauses
- force majeure clauses
when one part of the contract accuses the other party of not following the terms of the contract
Breach
- provisions of a contract that specify a particular occurrence
- In the event these conditions happen, this is what the contract does in response
Conditions
something of value that is bargained for and given in exchange for the promise contained in the offer
Consideration
something such as monetary compensation, that is awarded for a breach of contract
Damages
a clause that protects the contracting parties by declaring that the contract represents the complete and final agreement between the parties
Entire Agreement
a clause in contracts that excuses a part from not performing their contractual obligations due to unforeseen events beyond their control
Force Majeure
guaranty of loan is an agreement where one party guarantees a second party’s loan obligation to a third party
Guaranty
a promise to carry out the terms of the proposed transaction, in exchange for the consideration
Offer
introductory paragraphs of a contract that describe the nature of the contract and why each party has elected to enter into the agreement
Recitals
- First element
- Should be intelligently given with an exact idea of what it refers to be free and spontaneous by the contracting parties
Consent
an indispensable element for the existence of consen
Legal capacity
presuposses legal capacity
legal consent
consent given through the following renders the contract voidable
Visiation of Consent
transgresses intelligence
Mistake
transgresses freedom of consent
Violence/force
transgresses freedom of consent
Intimidation
transgresses reasonable freedom of choice
Undue influence
transgresses spontaneousity
Fraud
- The thing which is agreed upon receiving the consideration to do or not to do
- Thing, right, or services which is the subject matter of the obligation arising from the contract
- The aim of purpose of the contract
- The object must not be outside the commerce of men
- It must not be contrary to law, morality, good customs, public order, and public policy
- Impossible things or services cannot be the object of a contract
Object or Subject Matter
- A promise or a performance bargained by a promisor in exchange of that promise
- The price asked by a promisor in entering into a subject matter of a contract
- States why each party is joining to an agreement; something worth bargaining for
Cause or Consideration
the cause is the prestation or promise of a thing or service by the other i.e., dental treatments
onerous contracts
the cause is the service or benefit which is to be compensated i.e., job contracts
remuneratory contracts
the cause is the mere liberality of the benefactor i.e., donation
contracts of pure beneficence
HOW AND WHEN A CONTRACTS ARE PERFECTED:
- Contracts are perfected by a mere consent
- All contracts in Civil Code are consensual, and are perfected from the moment the parties agree as regards the definite subject matter and a fixed consideration
- The moment of perfection, obligation arise and are binding between the parties and their heirs
- Consent is manifested through acceptance
- “I give that you may give”;
- applied to a giving of money or goods under a promise of repayment in money or goods, and to loans of money, and contracts of sale
Do ut Des
- “I perform so that you are to perform”;
- signifies an agreement to do work for another if the other will do work for him; or to do any other positive acts on both sides; or it maybe to forbear on one side in consideration of something done on the other
Facio ut facias
- “I do that you may give”;
- a valid and enforceable contract results from an implied consent where one party renders service to another and the latter accepts such service without proof that the same is given gratuitously
Facio ut des
- “I pay in order that you may perform”;
- when one agrees with the employee to give such wage based on performance
Do ut facias
- Contracts that was validly or legally entered by two consenting/contracting parties
- But, one party is prejudiced than the other; impartial or unequal contract
- One party would suffer much damages
- Court may rescind the contract if one party would suffer damages more than the other from a contract agreement in the interest of equity
RESCISSIBLE CONTRACTS
These contracts are binding, unless they are annulled by a
proper action in court; they are susceptible of ratification
VOIDABLE CONTRACTS
VOIDABLE CONTRACTS
Give the 2 example of contracts that are voidable or annullable, even though there may been no damage to the contracting parties
- Those where one of the parties is incapable of giving consent to a contract i.e. minor aged contracting party
- Those where the consent is vitiated by mistake, violence,
intimidation, undue influence, or fraud
- When contract is not in writing, it is called unenforceable contract
- There is no basis to enforce the contract obligations
UNENFORCEABLE CONTRACTS
- Contracts that are null and void from the very beginning because of its impossibility
- These contracts cannot be ratified, neither can the right to set up the defense of illegality be waived
VOID CONTRACTS
An important legal protection is the right to give informed
consent to treatment
INFORMED CONSENT
True or False
A dentist who performs a procedure on a client without informed consent may be found civilly liable for committing battery
True
The basic principle of informed consent is that:
- Give proper education about the risks and benefits
- The patient has the right to choose freely whether to submit to treatment or not
- Unless the dentist has provided the patient with scientifically valid, accurate information about the treatment, a state of informed consent does not exist
Should reflect that the patient already has informed consent about the treatment option of the clinician
INFORMED CONSENT FORM (ICF)
WHO CAN GIVE INFORMED CONSENT?
- Any capacitated patient
- Spouse - if patient himself cannot give informed consent
- A parent or natural guardian in case of minors
- A guardian in case a person is incapacitated to give consent
- A legal guardian appointed by the court
- Duly appointed officers of the Department of Social Welfare and Development (DSWD)
before a dentist could do a physical examination, the proper consent must be given by the patient
Non-Consensual Physical Contact
the patient has the right to be informed regarding procedures, risks, and alternatives, and answers to questions with respect to treatment, in terms that they can be reasonably expected to understand
Non-Consensual Medical Treatment and Procedure
The failure, without legal reason, to comply with the terms of contract
BREACH OF CONTRACT
It is also defined as the failure without legal reason excuse, to perform any promise which forms the whole or part of the contract
BREACH OF CONTRACT
Is the existence of an agreement or bargained-for exchange where one of the parties fails, without a legally valid excuse, to live up to his or her responsibilities under the contract
BREACH OF CONTRACT
True or false
A contract may be breached in whole only
False
A contract may be breached in whole or in part
a breach of contract usually occurs by one or more of the parties in one of the following ways:
- Failing to perform as promised
- Making it impossible for the other party to perform
- Making it known there is an intention not to perform
States that you cannot enforce contracts that are not in writing
STATUTE OF FRAUDS
What contracts must be in writing?
- Sales of real property
- Promises to pay someone else’s debt
- A contract that takes longer than one year to complete
- Property leases for more than one year
- Contracts for more than a certain amount of money, the amount of which is set by the state (500)
- A contract that will go beyond the lifetime of the one performing the contract
- The transfer of property upon the death of the party performing the consent
- Refers to the prescription period
- Every action has a corresponding period to perform
STATUTE OF LIMITATIONS
are laws that set the deadline or maximum period of time within which a lawsuit or claim may be filed
Statutes of limitations
- The deadlines vary depending on the circumstances of the case, and the type of case or claim
- Within how many years from the time of negligence or malpractice?
- Statute of Limitations
- 6 years
If you sue for breach of contract, you must sue within the ________
statute of limitations
“let the master answer”;
the dentist may be held liable for the wrongful act of his or her dental assistant
Doctrine of Respondeat Superior
a dentist with people using the dentist’s name as an agent even without permission, the dentist can be held liable if the dentist remains silent
Doctrine of Ostencible Agent or Holding Out Theory or Agency by Estoppel
applicable to visiting dentists
Borrowed servant Doctrine
the surgeon is likened to a ship captain who is responsible for everything that goes wrong in the operating room, including those acts done by those under him
Captain of the ship Doctrine
substitute liability
Vicarious Liability of Hospital
is under the State Immunity from Suit; government cannot be sued
Government or Public Hospital
also cannot be sued because it sources its funds from charity or donations of funds to help other people
Private Charitable or Eleemonsynary Hospital Private Charitable or Eleemonsynary Hospital
those entering private charitable or government hospital cannot sue the hospitals, implying their waiver of this right to sue
Implied Waiver Theory
those patients in private charitable hospitals do not have a contract to the hospital, only the doctor
Doctrine of Independent Contractor
May be defined as the pecuniary compensation, recompense, or satisfaction for an injury sustained, or as otherwise expressed, the pecuniary consequences which the law imposes for the breach of some duty or the violation of some right
DAMAGES
are the amounts recoverable or that which can be awarded for the damage done or sustained
DAMAGES
is the legal invasion of a legal right
Injury
is the hurt, loss or harm, which results from the injury
damage
there can be damage without injury in those instances in which loss or harm was not the result of a violation of a legal right
Damnum Absque Injuria
In such cases, the consequences must be borne by the injured person alone
Damnum Absque Injuria
The law affords no remedy for damages resulting from an act that does not amount to a legal injury or wrong
Damnum Absque Injuria
If a damage results from a person’s exercising his legal rights
Damnum Absque Injuria
They cannot be granted unless supported by the evidence on record
ACTUAL DAMAGES
It is the compensatory or actual damages that are most frequently involved in professional liability cases
ACTUAL DAMAGES
Includes physical suffering, mental anguish, fright, serious anxiety, besmitched reputation, wounded feelings, moral shock, social humiliation, and similar injury
MORAL DAMAGES
True or False
There is no hard and fast rule in the determination of what
would be a fair amount of moral damages
True
BASIS OF AWARD OF MORAL DAMAGES
- moral damages are not punitive in nature but are designed to compensate and alleviate in some way the physical suffering, mental anguish, etc. unjustly caused to a person
- Such damages, to be recoverable, must be the proximate result of a wrongful act or omission of the factual basis for which is satisfactorily established by the aggrieved party
CONDITIONS FOR AWARD OF MORAL DAMAGES
- Duty
- deviation
- direct causation
- damage
This is usually the Civil Code
LEGAL PROVISIONS MANDATING AWARD OF MORAL DAMAGES
suit that is groundless, malicious, without probable cause, or part of conspiracy
Unfounded suit
a small sum of money awarded to a plaintiff to commemorate the fact the plaintiff won their civil case in court.
Nominal damages
are more than nominal but less than compensatory damages
Temperate or Moderate damages
a predetermined or specified amount of money that must be paid as damages if one party fails to meet certain contractual requirements
Liquidated Damages
are imposed, by way of example or correction for the public good
Exemplary or Corrective Damages
An important legal protection is the right to give informed consent to treatment; this can be done through interviewing
INFORMED CONSENT
In writing informed consent, what should the Dentist do?
- Dentist is to properly educate the patient about the risks and benefits of the proposed treatment
- Dentist gives alternative treatment options
- Dentist may also give the option of no treatment
- The patient has the right to choose freely whether to submit to treatment or not
- Treatment results would be dependent 50% on dentist and 50% on patient
should be signed by the patient after giving the informed consent to the patient
INFORMED CONSENT FORM
modified for different cases because of different risks, different treatment alternatives, and different procedures
INFORMED CONSENT FORM
If condition is inherent like bleeding, discomfort, pain, or anesthesia, you can opt for what?
you may not include it in the informed consent
How long should ICF be kept for?
10 years
COMMUNICATION/LANGUAGE BARRIER ISSUES IN
INFORMED CONSENT TAKING
- If there is no way to communicate with the patient and give informed consent, you may refer the patient to other facilities who can understand the language
- If patient is persistent on being treated at your clinic, then an interpreter is required in order to have informed consent
- Interpreter should be honest and dependable
- Interpreter should affix his/her signature to signify that the translation is successful
Encompasses all possible civil liability that a professional can incur as a result of professional acts
PROFESSIONAL LIABILITY
It is preferred over the term “malpractice” because the latter carries some negative evertones
PROFESSIONAL LIABILITY
a tort liability - when applied to the dental profession
Negligence
negligence is called
malpractice
the doing of some act which a reasonable and prudent dentist would not do, or the failure to do some act which such a person should or would do
Negligence
__________, or more appropriately __________, is the type of claim which a victim has available to him or her to redress a wrong committed by a dentist which has caused bodily harm
Malpractice
dental negligence
simply means performance or doing of an act
Feasance
the performing of an act that is wholly wrongful and unlawful
Malfeasance
the improper performance of some lawful act
Misfeasance
is the failure to do something that should have been done
Nonfeasance
Such fault or negligence, if there is no pre-existing contractual relation between the parties
quasi-delict
are civil wrongs that are done to clients
Torts
in civil cases or tort actions, the person who is filing the suit seeks compensation for damages he feels he suffered as result of the action or activity in question; in the Philippines, torts are referred to as
quasi-delicts
When a person is guilty of ____________, he or she is guilty of an act or failure to act
Culpa aquiliana
exists when the dentist-patient relationship has been established
DUTY
Neglectful of Obligation
DERELICT
proof of dereliction, or proof of negligence of an obligation; the breach of professional duties of skill and care, or their improper performance
DERELICT
causation which is divided into two inquiries: whether the actions in fact caused the harm and whether these were the proximate cause of the injury
DIRECT CAUSE
injury results from want of due care or skill; dentists may be held answerable in damages for negligence
DAMAGES
The burden of proving each of the four elements of negligence is on the plaintiff
PROXIMATE CAUSE
Failure to prove any one of the elements may result in dismissal of the case
PROXIMATE CAUSE
The most common rule is the reasonable person rule
STANDARDS OF PRACTICE
the written or verbal evidence given by a qualified expert in an area
Expert Witness
like textbooks, journal articles, etc. published by national organizations such as the PDA
Documentary Evidence
“the thing or the transaction speaks for itself”
DOCTRINE OF RES IPSA LOQUITOR
the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen of those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or
was caused by the defendant’s want of care
DOCTRINE OF RES IPSA LOQUITOR
Requisites of res Ipsa Loquitor
- The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence
- It is caused by an instrumentality within the exclusive control of the defendant/s
- The possibility of contributing conduct which would make the plaintiff responsible is eliminated
If the dentist, after a prolonged treatment of a patient which normally produces alleviation of the condition, fails to investigate non-response may be held liable if in the exercise of the care and diligence he could have discovered the cause
of non-response
DOCTRINE OF CONTINUING NEGLIGENCE
Usually applied to foreign body cases, improper setting of broken bones, in the application of cast, and in wrongful diagnosis
DOCTRINE OF CONTINUING NEGLIGENCE
Anyone who voluntarily assumes the risk of injury from a known danger, if injured, is barred from recover
DOCTRINE OF ASSUMPTION OF RISK
This is based upon a maxim “violent non fit injuria”, which means that a person who assents and injured is not regarded in law to be injured, edicted upon knowledge and consent
DOCTRINE OF ASSUMPTION OF RISK
A dentist cannot be liable for negligence if the injury sustained by a patient is on account of unforeseen conditions
But, a dentist who fails to ascertain to condition of the patient for want of the requisite skills and training is answerable for the injury sustained by the patient if injury resulted thereto
DOCTRINE OF FORSEEABILITY
It provides that if an employee was injured on account of the negligence of his fellow employee, the employer cannot be held liable
FELLOW SERVANT DOCTRINE
Any person who, in good faith, renders emergency medical care or assistance to an injured person at the scene of the accident or other emergency without the expectation of receiving or intending to receive compensation from such injured person for such service, shall not be liable in civil damages for any act or omission, not constituting gross negligence, in the course of such care or assistance
RESCUE DOCTRINE
Under the rule, the tortfeasors are joint and severally liable, meaning the plaintiff-patient can recover damages in full from either
DEEP POCKET RULE
Liability will be compensated by an adjudged person by the court; adjudge person will be a rich person or deep pocket person
DEEP POCKET RULE
Give examples of dental malpractice
- Nerve injuries
- Negligently completed crowns and bridges
- Failure to take patient’s relevant medical history
- Failure to detect oral cancer, periodontal disease, or other diseases
- Unnecessary extraction of multiple teeth
- Extraction of wrong teeth
Administrative Adjudicatory or Quasi-Judicial Power
Is the power to hear, determine, ascertain facts, and decide by the application of rules of law to the ascertained facts in the enforcement and administration of law
Nature of Administrative Proceedings
- Has a quality resembling that of judicial proceeding
- Proceedings before the PRC and the PRBs, like the Board of Dentistry, are all in the nature of quasi-judicial proceedings
- An opportunity to present his case and to adduce evidence
- Tribunal must consider the evidence presented
- The decision must be supported by itself
- The evidence must be substantial
- The decision must be rendered on the evidence presented
- The board or its judges must act impartially
- The decision must be rendered in such a manner that the parties to the proceedings will know the various issues involved, and the reasons for the decision rendered
ESSENTIAL REQUIREMENTS OF ADMINISTRATIVE DUE ROCESS
Administrative Charges Vs. Public Health Worker
Shall be heard by a committee
- Provincial/city public health officer
- representative of provincial public health workers
- Supervisor of the district of the dentist
- PDA representative
Administrative Charges Vs. Public Health Worker
Composition
thirty (30)
The committee shall submit its findings and recommendations to the Secretary of Health within ________ days from the
termination of the hearings
- The right to be informed, in writing, of the charges
- The right to full access to the evidence in the case
- The right to defend himself/herself, to be defended by a
representative of his/her choice, adequate time given to the public
health worker for the preparation of his/her defense - The right to confront witnesses presented against him/her and
summon witnesses in his/her behalf - The right to appeal
- The right to reimbursement of reasonable expenses incurred in
his/her defense in case of exoneration or dismissal of the charges - Such other rights as will ensure fairness and impartiality during
proceedings
SAFEGUARDS IN DISCIPLINARY PROCEDURES
- Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude
- Immoral or dishonorable conduct
- Insanity
- Fraud in the acquisition of the certificate of registration
- Gross negligence or incompetence in the practice of his profession
- Addiction to alcoholic beverages or to any habit-forming drugs rendering him incompetent to practice his profession
- False or extravagant or unethical advertisement wherein
other things than his name, profession, limitation of practice, office, and home address are mentioned - Aiding or acting as a dummy of an unqualified or unregistered
person to practice dentistry - Violation of any provisions of the Philippine Dental Act of 2007, the PRC Modernization Act of 2000, and their respective rules
and regulations - Conduct discreditable to the dental profession
GROUNDS FOR ADMINISTRATIVE PROCEEDINGS
- PRC Resolution No. 06-342, Series of 2006
- PRC Resolution No. 2013-775, Series of 2013
- Resolution No. 2017-1033(A), Series of 2017
RULES OF PROCEDURE AT THE PROFESSIONAL REGULATION
COMMISSION
Complaint
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
verified with certification against forum shopping
Forum Shopping
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
submitting numerous same complaints against the same dentist/practitioner; illegal and may be discredited
Summons
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
order of the court or quasi-judicial agency to an individual called to appear in court or hearing to file an answer through personal service or registered mail
Answers
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
within 15 days from receipt of summons; attach all records necessary; failure to answer would mean a default, wherein the board decides with the complainant’s documents alone
Pre-Trial Conference
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
presentation of documents submitted of both parties in the presence of their lawyers
Summary Judgement or go to Trial
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
depending on the pretrial conference
Decision by the BOD
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
then execution of decision unless appealed; decision must support itself and must be rendered on the evidence presented
Appeal to the Commission (Sec. 6, Rule XVI)
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
done when you are not satisfied with the decision of the Board of Dentistry
Appeal to Court of Appeals (Sec. 8, Rule XVI)
LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
done when you
are not satisfied with the decision of the PRC
Legal and Investigation Division (LID)
EXECUTION OF DECISION
division of PRC that executes the final decision, orders, or resolution of the commission or board in coordination with the concerned Association of (Integrated) Professional Organization and concerned government agencies
Surrender of PRC/COR and PIC
EXECUTION OF DECISION
for penalty of suspension or revocation, LID responsible for safekeeping of the surrendered COR and PIC
DOCTRINE OF CONCLUSIVE FINALITY OF ADMINISTRATIVE DECISIONS
- The principle long upheld by it that administrative findings of fact that are supported by substantial evidence must be treated by courts as final
- This follows a trend in modern legislation known as the doctrine of conclusive finality, which is justified by the comity that courts extend to the executive branch and the recognition of the expertise of administrative agencies in dealing with particular questions of fact
ADMINISTRATIVE APPEAL AND REVIEW
Independently of statutory authority, the President, as the administrative head, and under his constitutional power of control of executive department, bureaus and offices, on his motion or on appeal of some individual who might deem himself aggrieved by the action of an administrative official exercise his power of revision
CIVIL LIABILITY
- Legal responsibility for the payment to an agreed third-party due to the violation of civil law
- Liability imposed by the court against a person who violates the civil law
Civil Law
law concerning individual relations, properties, business, personal dealings, etc., and their interaction with each other
Civil Law
Comes with monetary compensation instead of imprisonment like in criminal law
Civil Law
Deals more on private individuals and has nothing to do with the state or government
LEGAL BASIS OF CIVIL LIABILITY
- Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith (Human Relations)
- Those who in the performance of their obligations are guilty of fraud, negligence, or delay, and those who in any manner contravene the tenor thereof, are liable for damages (fraud, negligence, delays)
- In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those that were the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted
LEGAL BASIS OF CIVIL LIABILITY
In cases of fraud, bad faith, malice, or wanton (improper) attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation
EXTINCTION OF CIVIL LIABILITY
extinguished in the same manner as other obligations
Obligation to Satisfy Civil Liability
the offender shall continue to be obliged to satisfy the civil liability resulting from the crime committed by him, notwithstanding the fact that he has served his sentence consisting of deprivation of liberty or other rights, or has not been required to serve the same by reason of amnesty, pardon, commutation of sentence, or any other reason
Obligation to Satisfy Civil Liability
In short, persons with criminal offenses shall still pay civil liability after serving time in imprisonment
Amnesty/Pardon
forgiveness of a criminal offense granted by the head of the state or President; amnesty is before judgment, pardon is after judgment;
civil liability is still present
OBLIGATIONS
A juridical necessity to give, to do, or not to do
Law
- Obligations arising from law are not presumed
- Only those expressly determined in the Civil Code or in special laws are demandable, and shall be regulated by the precepts of the law which establishes them
Contracts
- Obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith
- stipulations of the contract by the parties must not be contrary to law, morality, good customs, public order, and public policy
Morality
- deals with what is right and what is wrong
- Norms of good and right conduct
- Governs the private personal interactions of people
Ethics
governs the professional interactions of people
Good Customs
generally accepted principles of morality which have received some social and practical recognition in the community for so long
Public Order
the safety and order of the community in order to maintain peace; examples are obeying traffic rules
Public Policy
- a good ________ seeks to define issues and implement strategies to produce positive results for the general public
- System of law or regulatory measures to make the society lead a better life and to maintain delivery of goods and services
Quasi-contracts
“no one shall be unjustly enriched or benefited at the expense of another”
Quasi-contracts
giving rise to an obligation to deliver a thing or render a service
Quasi-contracts
A presumptive consent as basis of quasi-contract giving rise to an obligation to deliver a thing or render a service
Quasi-contracts
also termed as solutio indebita
Acts or Omissions Punishable by Law (Delicts)
Every person criminally liable for a felony is also civilly liable and therefore becomes obligated to the person he has wronged
Quasi-Delicts (TORTS)
Whoever by act of omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done
Quasi-Delicts (TORTS)
Such fault or negligence, if there is no pre-existing contractual relation between the parties
Quasi-Delicts (TORTS)
Dental negligence falls under this category, wherein there is
no intent but still caused damage
Pure Obligation
- The performance of this obligation does not depend upon a condition
- Is demandable at once
Example: patient’s payment to dental service
Conditional Obligation
The acquisition/extinguishment of rights shall depend upon the happening of the event which constitutes the condition
Suspensive Condition
that which gives birth to the obligation; obligation happens only upon the happening of this event
Resolutory Condition
that which results to the loss or extinguishment of an obligation
Obligation with a Period
Obligations for whose fulfillment a certain day that has been fixed, shall be demandable only when that day comes
Alternative Obligations
- A person alternatively bound by different prestations shall completely perform one of them
- The creditor cannot be compelled to receive part of one and part of the other undertaking
- The right of choice belongs to the debtor unless it has been granted to the creditor
Joint Obligations
“to each his own”; kaniya-kaniyan bayad; pro-rata, proportionate
Solidary Obligations
“one for all, all for one”; joint and several, in solidum, individually and collectively, each will pay the whole value
Indivisible Obligation
Obligations to give definite things and those which are not susceptible of partial performance
Divisible Obligation
Delivery or performance is susceptible of division or partial performance
. Obligations with a Penal Clause
- In obligations with a penal clause, the penalty shall substitute the indemnity for damages
- Nevertheless, damages shall be paid if the obligor refuses to pay the penalty or is guilty of fraud in the fulfillment of the obligation
Penal Clause
an accessory obligation to assume the responsibility if there is non-performance
Civil Obligations
one which gives a right of action to compel their performance; all contracts are civil obligations
Natural Obligations
- not based on positive law but on equity and natural law
- Do not grant a right of action to enforce its performance
- Voluntary
PERFORMANCE OF AN OBLIGATION
means the realization of the purpose of the obligation
PERFORMANCE OF AN OBLIGATION
In the obligation “to give”, there is performance upon the delivery of the thing itself, and if the thing to deliver is a specific thing, the obligee has the right to compel the obligor to deliver no other than the specific thing
PERFORMANCE OF AN OBLIGATION
In the prestation “to do”, if a person obliged to do something fails to do it, it shall be executed at his cost
- Voluntary Non-performance of Obligation
- Involuntary Non-performance or Non-performance due to Fortuitious events or Force Majeure (acts of God)
CAUSES OF NON-PERFORMANCE OF OBLIGATION
Fortuitious events
events which could not be foreseen, or which though foreseen, were inevitable
Force Majeure
acts of God like natural disasters (flood, typhoon, landslide, etc.)
- The cause of the event must be something beyond the control of man i.e. earthquake
- Must not be foreseen, or even if foreseen, is inevitable i.e., typhoon, fire
- Because of the occurrence of this event, the debtor is rendered helpless or incapable of performing his obligation in a normal way
- Obligor or debtor must not have been guilty of contributory negligence and must not have participated in the aggravation of the damage done
REQUISITES TO CONSIDER AN EVENT AS FORTUITIOUS
- Time of delivery or time of service is the controlling motive of the contract
- Demand would be useless
- In this case, fortuitious event is not an excuse
- Delay = damage
Delay in Obligation
- Both parties have obligations to perform
- Neither party incur in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him
- From the moment one of the parties fulfills his obligations, delay by the other begins
Reciprocal Obligation
By Payment or Performance
after payment, obligation is extinguished
By the Loss of the Thing due
if the thing due is lost due to fortuitious event, it is not your negligence
By the Condonation or Remission of the Deb
- condonation or remission is essentially gratuitous, and requires the acceptance by the obligor
- It may be made expressly or impliedly
- Express condonation requires the compliance with forms of donations
- Basically means to forgive or to forget debt
By the Confusion or Merger of the Rights of Creditor and Debtor
- The obligation is extinguished from the time the characters of creditor and debtor are merged in the same person
- The enforcement of the obligation becomes impossible
By Compensation
shall take place when two persons, in their own right, are creditors and debtors to each other
Novation
a juridical act of dual function in that at the time it extinguishes an obligation, it creates a new one in lieu of the old
- Changing the object or principal conditions of an obligation
- Changing the parties
Obligations may be modified by:
CONTRACT
Is a meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service
CONTRACT
An obligation whereby an agreement entered unto upon sufficient consideration to do or not to do a particular thing
True
True or False
All contracts are agreements, not all agreements are
contracts
True
True or False
Only those that give rise to civil obligation is called a contract
LEGAL NATURE OF THE TRANSACTION
Every transaction between a dentist and a patient is a contract, either express or implied, or partly expressed and partly implied
Expressed Contract
Terms and conditions are made known to each part either in writing or verbal
Implied Contract
One or more terms or conditions are not definitely known but are taken for granted by operation of law
Implied Contract
A concluded or inferred agreement from the overt acts or conduct of the parties which the law presumed or ascribed as the manifestation of intention of parties to enter into a contract
True
True or False
Every contract contains an offer, acceptance, and consideration
Acceptance
when you accept an offer, it must be an unconditional and unequivocal acceptance to the exact terms of the offer; if not, it becomes a counteroffer
Arbitration
arbitration clauses set up provisions whereby independent and binding arbitrators settle contractual disputes
Boilerplate
- Standard contract clauses use universal language as a type of template
- Usually found at the end of the contract
- arbitration clauses
- entire agreement clauses
- force majeure clauses
Boilerplate clauses includes?
Breach
when one part of the contract accuses the other party of not following the terms of the contract
Conditions
- provisions of a contract that specify a particular occurrence
- In the event these conditions happen, this is what the contract does in response
Consideration
something of value that is bargained for and given in exchange for the promise contained in the offer
Damages
something such as monetary compensation, that is awarded for a breach of contract
Entire Agreement
a clause that protects the contracting parties by declaring that the contract represents the complete and final agreement between the parties
Force Majeure
a clause in contracts that excuses a part from not performing their contractual obligations due to unforeseen events beyond their control
Guaranty
guaranty of loan is an agreement where one party guarantees a second party’s loan obligation to a third party
Offer
a promise to carry out the terms of the proposed transaction, in exchange for the consideration
Recitals
introductory paragraphs of a contract that describe the nature of the contract and why each party has elected to enter into the agreement
Consent
- First element
- Should be intelligently given with an exact idea of what it refers to be free and spontaneous by the contracting parties
Legal capacity
an indispensable element for the existence of consen
legal consent
presuposses legal capacity
Visiation of Consent
consent given through the following renders the contract voidable
Mistake
transgresses intelligence
Violence/force
transgresses freedom of consent
Intimidation
transgresses freedom of consent
Undue influence
transgresses reasonable freedom of choice
Fraud
transgresses spontaneousity
Object or Subject Matter
- The thing which is agreed upon receiving the consideration to do or not to do
- Thing, right, or services which is the subject matter of the obligation arising from the contract
- The aim of purpose of the contract
- The object must not be outside the commerce of men
- It must not be contrary to law, morality, good customs, public order, and public policy
- Impossible things or services cannot be the object of a contract
Cause or Consideration
- A promise or a performance bargained by a promisor in exchange of that promise
- The price asked by a promisor in entering into a subject matter of a contract
- States why each party is joining to an agreement; something worth bargaining for
onerous contracts
the cause is the prestation or promise of a thing or service by the other i.e., dental treatments
remuneratory contracts
the cause is the service or benefit which is to be compensated i.e., job contracts
contracts of pure beneficence
the cause is the mere liberality of the benefactor i.e., donation
- Contracts are perfected by a mere consent
- All contracts in Civil Code are consensual, and are perfected from the moment the parties agree as regards the definite subject matter and a fixed consideration
- The moment of perfection, obligation arise and are binding between the parties and their heirs
- Consent is manifested through acceptance
HOW AND WHEN A CONTRACTS ARE PERFECTED:
Do ut Des
- “I give that you may give”;
- applied to a giving of money or goods under a promise of repayment in money or goods, and to loans of money, and contracts of sale
Facio ut facias
- “I perform so that you are to perform”;
- signifies an agreement to do work for another if the other will do work for him; or to do any other positive acts on both sides; or it maybe to forbear on one side in consideration of something done on the other
Facio ut des
- “I do that you may give”;
- a valid and enforceable contract results from an implied consent where one party renders service to another and the latter accepts such service without proof that the same is given gratuitously
Do ut facias
- “I pay in order that you may perform”;
- when one agrees with the employee to give such wage based on performance
RESCISSIBLE CONTRACTS
- Contracts that was validly or legally entered by two consenting/contracting parties
- But, one party is prejudiced than the other; impartial or unequal contract
- One party would suffer much damages
- Court may rescind the contract if one party would suffer damages more than the other from a contract agreement in the interest of equity
VOIDABLE CONTRACTS
These contracts are binding, unless they are annulled by a
proper action in court; they are susceptible of ratification
- Those where one of the parties is incapable of giving consent to a contract i.e. minor aged contracting party
- Those where the consent is vitiated by mistake, violence,
intimidation, undue influence, or fraud
VOIDABLE CONTRACTS
Give the 2 example of contracts that are voidable or annullable, even though there may been no damage to the contracting parties
UNENFORCEABLE CONTRACTS
- When contract is not in writing, it is called unenforceable contract
- There is no basis to enforce the contract obligations
VOID CONTRACTS
- Contracts that are null and void from the very beginning because of its impossibility
- These contracts cannot be ratified, neither can the right to set up the defense of illegality be waived
INFORMED CONSENT
An important legal protection is the right to give informed
consent to treatment
True
True or False
A dentist who performs a procedure on a client without informed consent may be found civilly liable for committing battery
- Give proper education about the risks and benefits
- The patient has the right to choose freely whether to submit to treatment or not
- Unless the dentist has provided the patient with scientifically valid, accurate information about the treatment, a state of informed consent does not exist
The basic principle of informed consent is that:
INFORMED CONSENT FORM (ICF)
Should reflect that the patient already has informed consent about the treatment option of the clinician
- Any capacitated patient
- Spouse - if patient himself cannot give informed consent
- A parent or natural guardian in case of minors
- A guardian in case a person is incapacitated to give consent
- A legal guardian appointed by the court
- Duly appointed officers of the Department of Social Welfare and Development (DSWD)
WHO CAN GIVE INFORMED CONSENT?
Non-Consensual Physical Contact
before a dentist could do a physical examination, the proper consent must be given by the patient
Non-Consensual Medical Treatment and Procedure
the patient has the right to be informed regarding procedures, risks, and alternatives, and answers to questions with respect to treatment, in terms that they can be reasonably expected to understand
BREACH OF CONTRACT
The failure, without legal reason, to comply with the terms of contract
BREACH OF CONTRACT
It is also defined as the failure without legal reason excuse, to perform any promise which forms the whole or part of the contract
BREACH OF CONTRACT
Is the existence of an agreement or bargained-for exchange where one of the parties fails, without a legally valid excuse, to live up to his or her responsibilities under the contract
False
A contract may be breached in whole or in part
True or false
A contract may be breached in whole only
- Failing to perform as promised
- Making it impossible for the other party to perform
- Making it known there is an intention not to perform
a breach of contract usually occurs by one or more of the parties in one of the following ways:
STATUTE OF FRAUDS
States that you cannot enforce contracts that are not in writing
- Sales of real property
- Promises to pay someone else’s debt
- A contract that takes longer than one year to complete
- Property leases for more than one year
- Contracts for more than a certain amount of money, the amount of which is set by the state (500)
- A contract that will go beyond the lifetime of the one performing the contract
- The transfer of property upon the death of the party performing the consent
What contracts must be in writing?
STATUTE OF LIMITATIONS
- Refers to the prescription period
- Every action has a corresponding period to perform
Statutes of limitations
are laws that set the deadline or maximum period of time within which a lawsuit or claim may be filed
- Statute of Limitations
- 6 years
- The deadlines vary depending on the circumstances of the case, and the type of case or claim
- Within how many years from the time of negligence or malpractice?
statute of limitations
If you sue for breach of contract, you must sue within the ________
Doctrine of Respondeat Superior
“let the master answer”;
the dentist may be held liable for the wrongful act of his or her dental assistant
Doctrine of Ostencible Agent or Holding Out Theory or Agency by Estoppel
a dentist with people using the dentist’s name as an agent even without permission, the dentist can be held liable if the dentist remains silent
Borrowed servant Doctrine
applicable to visiting dentists
Captain of the ship Doctrine
the surgeon is likened to a ship captain who is responsible for everything that goes wrong in the operating room, including those acts done by those under him
Vicarious Liability of Hospital
substitute liability
Government or Public Hospital
is under the State Immunity from Suit; government cannot be sued
Private Charitable or Eleemonsynary Hospital Private Charitable or Eleemonsynary Hospital
also cannot be sued because it sources its funds from charity or donations of funds to help other people
Implied Waiver Theory
those entering private charitable or government hospital cannot sue the hospitals, implying their waiver of this right to sue
Doctrine of Independent Contractor
those patients in private charitable hospitals do not have a contract to the hospital, only the doctor
DAMAGES
May be defined as the pecuniary compensation, recompense, or satisfaction for an injury sustained, or as otherwise expressed, the pecuniary consequences which the law imposes for the breach of some duty or the violation of some right
DAMAGES
are the amounts recoverable or that which can be awarded for the damage done or sustained
Injury
is the legal invasion of a legal right
damage
is the hurt, loss or harm, which results from the injury
Damnum Absque Injuria
there can be damage without injury in those instances in which loss or harm was not the result of a violation of a legal right
Damnum Absque Injuria
In such cases, the consequences must be borne by the injured person alone
Damnum Absque Injuria
The law affords no remedy for damages resulting from an act that does not amount to a legal injury or wrong
Damnum Absque Injuria
If a damage results from a person’s exercising his legal rights
ACTUAL DAMAGES
They cannot be granted unless supported by the evidence on record
ACTUAL DAMAGES
It is the compensatory or actual damages that are most frequently involved in professional liability cases
MORAL DAMAGES
Includes physical suffering, mental anguish, fright, serious anxiety, besmitched reputation, wounded feelings, moral shock, social humiliation, and similar injury
True
True or False
There is no hard and fast rule in the determination of what
would be a fair amount of moral damages
- moral damages are not punitive in nature but are designed to compensate and alleviate in some way the physical suffering, mental anguish, etc. unjustly caused to a person
- Such damages, to be recoverable, must be the proximate result of a wrongful act or omission of the factual basis for which is satisfactorily established by the aggrieved party
BASIS OF AWARD OF MORAL DAMAGES
- Duty
- deviation
- direct causation
- damage
CONDITIONS FOR AWARD OF MORAL DAMAGES
LEGAL PROVISIONS MANDATING AWARD OF MORAL DAMAGES
This is usually the Civil Code
Unfounded suit
suit that is groundless, malicious, without probable cause, or part of conspiracy
Nominal damages
a small sum of money awarded to a plaintiff to commemorate the fact the plaintiff won their civil case in court.
Temperate or Moderate damages
are more than nominal but less than compensatory damages
Liquidated Damages
a predetermined or specified amount of money that must be paid as damages if one party fails to meet certain contractual requirements
Exemplary or Corrective Damages
are imposed, by way of example or correction for the public good
INFORMED CONSENT
An important legal protection is the right to give informed consent to treatment; this can be done through interviewing
- Dentist is to properly educate the patient about the risks and benefits of the proposed treatment
- Dentist gives alternative treatment options
- Dentist may also give the option of no treatment
- The patient has the right to choose freely whether to submit to treatment or not
- Treatment results would be dependent 50% on dentist and 50% on patient
In writing informed consent, what should the Dentist do?
INFORMED CONSENT FORM
should be signed by the patient after giving the informed consent to the patient
INFORMED CONSENT FORM
modified for different cases because of different risks, different treatment alternatives, and different procedures
you may not include it in the informed consent
If condition is inherent like bleeding, discomfort, pain, or anesthesia, you can opt for what?
10 years
How long should ICF be kept for?
- If there is no way to communicate with the patient and give informed consent, you may refer the patient to other facilities who can understand the language
- If patient is persistent on being treated at your clinic, then an interpreter is required in order to have informed consent
- Interpreter should be honest and dependable
- Interpreter should affix his/her signature to signify that the translation is successful
COMMUNICATION/LANGUAGE BARRIER ISSUES IN
INFORMED CONSENT TAKING
PROFESSIONAL LIABILITY
Encompasses all possible civil liability that a professional can incur as a result of professional acts
PROFESSIONAL LIABILITY
It is preferred over the term “malpractice” because the latter carries some negative evertones
Negligence
a tort liability - when applied to the dental profession
malpractice
negligence is called
Negligence
the doing of some act which a reasonable and prudent dentist would not do, or the failure to do some act which such a person should or would do
Malpractice
dental negligence
__________, or more appropriately __________, is the type of claim which a victim has available to him or her to redress a wrong committed by a dentist which has caused bodily harm
Feasance
simply means performance or doing of an act
Malfeasance
the performing of an act that is wholly wrongful and unlawful
Misfeasance
the improper performance of some lawful act
Nonfeasance
is the failure to do something that should have been done
quasi-delict
Such fault or negligence, if there is no pre-existing contractual relation between the parties
Torts
are civil wrongs that are done to clients
quasi-delicts
in civil cases or tort actions, the person who is filing the suit seeks compensation for damages he feels he suffered as result of the action or activity in question; in the Philippines, torts are referred to as
Culpa aquiliana
When a person is guilty of ____________, he or she is guilty of an act or failure to act
DUTY
exists when the dentist-patient relationship has been established
DERELICT
Neglectful of Obligation
DERELICT
proof of dereliction, or proof of negligence of an obligation; the breach of professional duties of skill and care, or their improper performance
DIRECT CAUSE
causation which is divided into two inquiries: whether the actions in fact caused the harm and whether these were the proximate cause of the injury
DAMAGES
injury results from want of due care or skill; dentists may be held answerable in damages for negligence
PROXIMATE CAUSE
The burden of proving each of the four elements of negligence is on the plaintiff
PROXIMATE CAUSE
Failure to prove any one of the elements may result in dismissal of the case
STANDARDS OF PRACTICE
The most common rule is the reasonable person rule
Expert Witness
the written or verbal evidence given by a qualified expert in an area
Documentary Evidence
like textbooks, journal articles, etc. published by national organizations such as the PDA
DOCTRINE OF RES IPSA LOQUITOR
“the thing or the transaction speaks for itself”
DOCTRINE OF RES IPSA LOQUITOR
the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen of those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or
was caused by the defendant’s want of care
- The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence
- It is caused by an instrumentality within the exclusive control of the defendant/s
- The possibility of contributing conduct which would make the plaintiff responsible is eliminated
Requisites of res Ipsa Loquitor
DOCTRINE OF CONTINUING NEGLIGENCE
If the dentist, after a prolonged treatment of a patient which normally produces alleviation of the condition, fails to investigate non-response may be held liable if in the exercise of the care and diligence he could have discovered the cause
of non-response
DOCTRINE OF CONTINUING NEGLIGENCE
Usually applied to foreign body cases, improper setting of broken bones, in the application of cast, and in wrongful diagnosis
DOCTRINE OF ASSUMPTION OF RISK
Anyone who voluntarily assumes the risk of injury from a known danger, if injured, is barred from recover
DOCTRINE OF ASSUMPTION OF RISK
This is based upon a maxim “violent non fit injuria”, which means that a person who assents and injured is not regarded in law to be injured, edicted upon knowledge and consent
DOCTRINE OF FORSEEABILITY
A dentist cannot be liable for negligence if the injury sustained by a patient is on account of unforeseen conditions
But, a dentist who fails to ascertain to condition of the patient for want of the requisite skills and training is answerable for the injury sustained by the patient if injury resulted thereto
FELLOW SERVANT DOCTRINE
It provides that if an employee was injured on account of the negligence of his fellow employee, the employer cannot be held liable
RESCUE DOCTRINE
Any person who, in good faith, renders emergency medical care or assistance to an injured person at the scene of the accident or other emergency without the expectation of receiving or intending to receive compensation from such injured person for such service, shall not be liable in civil damages for any act or omission, not constituting gross negligence, in the course of such care or assistance
DEEP POCKET RULE
Under the rule, the tortfeasors are joint and severally liable, meaning the plaintiff-patient can recover damages in full from either
DEEP POCKET RULE
Liability will be compensated by an adjudged person by the court; adjudge person will be a rich person or deep pocket person
- Nerve injuries
- Negligently completed crowns and bridges
- Failure to take patient’s relevant medical history
- Failure to detect oral cancer, periodontal disease, or other diseases
- Unnecessary extraction of multiple teeth
- Extraction of wrong teeth
Give examples of dental malpractice
