DEJ Notes 2024 (Administrative & Civil Responsibility) PDF

DEJ NOTES 2024 ( ADMINISTRATIVE & CIVIL RESPONSIBILITY) ADMINISTRATIVE RESPONSIBILITY LEGAL Dentist and Administrative Liability RESPONSIBILITIES OF Dentist and Civil Liability A DENTIST Dentist and Criminal Liability Dentist and Narcotics IMPORTA...

DEJ NOTES 2024 ( ADMINISTRATIVE & CIVIL RESPONSIBILITY) ADMINISTRATIVE RESPONSIBILITY LEGAL Dentist and Administrative Liability RESPONSIBILITIES OF Dentist and Civil Liability A DENTIST Dentist and Criminal Liability Dentist and Narcotics IMPORTANCE OF o Legal responsibilities are intertwined in every service he renders to a patient KNOWING THE LEGAL and are felt when question arises involving negligence in the performance of his RESPONSIBILITIES professional duties or in the care or treatment of patients or in the fulfillment of contractual obligations o Knowledge of legal responsibilities guides him properly in the discharge of his functions o Helps him avoid easily in incurring administrative civil and criminal liability ADMINISTRATIVE An action filed against a dentist before the Board of Dentistry for the revocation or ACTION suspension of his Certificate of Registration (professional license) ADMINISTRATIVE o Not done summarily PROCEEDINGS o The BOD observes administrative DUE PROCESS pursuant to a constitutional right that “no person shall be deprived of LIFE, LIBERTY or PROPERTY without due process of law or denied the equal protection of the laws.” o The general law of the land o A law which HEARS before it condemns, which proceeds upon inquiry and renders judgment only AFTER trial o UNDUE REVOCATION Involves deprivation of the legal right ( right in rem ) to practice dentistry, which is OR SUSPENSION property right, without due process ESSENTIAL o Right to a hearing which include the right to present one’s case and submit REQUIREMENTS evidence in support thereof o The board or body must consider the evidence presented o The evidence must be substantial o The decision must be based on the evidence presented o The board or the body must act on its own independent consideration of the laws and facts of the controversy o It should render its decision in such manner that the parties can know the various issues involved and the reason for the decision rendered PROCEDURES 1. A complaint is filed by an offended part 2. If the complaint has merit, the Board serves defendant with summons requiring appearance of the respondent/ defendant at a designated time, day and place or requiring him to answer within specified period, a copy of the complaint attached therewith; 3. The respondent / defendant files an answer 4. The parties appear personally or through counsel 5. Formal hearing or investigation a. complainant produces / presents evidence on his part b. respondent then offers evidence in support of his defense c. both parties offer their respective rebuttal evidences  d. unless there’s agreement to submit the case without argument, the complainant or counsel makes the opening argument followed by the respondent with the former making the concluding argument 6. All motions are made in writing except motion for continuance 7. Complaint may be dismissed for lack of interest or failure to prosecute when complainant or counsel does not appear at a designated hearing 8. Respondent may be declared in default if he does not appear on designated hearing and the BOD proceeds to hear the complainant, his witnesses and render a judgment by default 9. If the parties are non-suited or defaulted, they submit their respective memoranda 10. THE BOARD RENDERS DECISION 11. Losing party may file a petition for RECONSIDERATION or for rehearing on grounds of L: a. fraud, accident, mistake or excusable negligence b. newly discovered evidence c. imposition of excessive penalty d. insufficiency of evidence e. decision is contrary to law or not in accordance with facts presented 12. Decision of the Board may be appealed to the PRC ( Execution of decision ) 13. WHEN PERIOD TO APPEAL EXPIRES, or no appeal has been duly perfected, execution of the decision is immediately enforced and executed ( relief from decisions, Orders or Proceedings ) 14. A petition for relief may be filed on grounds of : a. fraud, mistake or excusable negligence b. unjustly deprived of a hearing c. prevented from taking an appeal 15. If taken before the PRC, and the decision is adverse to the respondent-appellant, he may file a petition before the commission on the ground of fraud, accident, mistake or excusable negligence praying that the decision order or proceeding be set aside 16. Petition must a. be verified b. be filed within 60 days after the petitioner learns of the decision, order or proceedings to be set aside and not more than six (6) months after such proceedings was taken c. be accompanied with affidavits ( grounds relied upon / facts re the substantial cause of action or defense as the case may be ) 17. SEPARATION OF o As a rule, the findings of an administrative agency which is an extension of the POWERS Executive Department, are not open to review by the Courts o The Courts may review the judgment of the BOD when such is UNREASONABLE, ARBITRARY or OPPRESSIVE or when the BOD has ACTED in EXCESS or ABUSE of its AUTHORITY JUDICIAL REVIEW The POWER to determine conflicting claims of authority under the Constitution, and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them FINALITY OF The decision of the head of the department on question of fact is CONCLUSIVE and on ADMINISTRATIVE mixed question of law and fact, or of law alone, his action carries a strong presumption DECISIONS of its correctness o That when the law imposes upon a public officer the right or duty to exercise judgment, it is his judgment that is to be exercised and not that of a court. o Decision of administrative officers involving the exercise of discretion is final and cannot be reviewed by the courts except when an abuse of authority or error of law is committed o That procedures and decisions of administrative bodies given by law the power to do so, are assumed to have exercised the same correctly unless otherwise proven the contrary JUDICIAL REMEDIES o Means which the law employs to ENFORCE LEGAL RIGHTS and OBLIGATIONS and PREVENTS / PROVIDES REDRESS for violation of such rights and obligations o NON-JUDICIAL or JUDICIAL NON-JUDICIAL -Those which the law permits an injured person to apply either by himself alone or with the aid of others ( e.g. remedy by compromise or arbitration ) -Or any amicable settlement agreeable to all parties concerned ( extra judicial settlements / remedies ) JUDICIAL REMEDIES -Applied through the agencies of the government authorized by law, usually courts of justice o PENAL - repressive remedies are those which punish the commission of a crime or prevent its commission o CIVIL REMEDIES – Designed to prevent or redress the violation of a private right ORDINARY / EXTRAORDINARY / PROVISIONAL ORDINARY CIVIL An ordinary action / suit may be regularly availed of in a court of justice REMEDIES 1. for the protection / enforcement of a right 2. Prevention or redress of a wrong (annulment of contract, mortgage foreclosure) 3. Specific performance of obligations enforceable by law EXTRAORDINARY REMEDY MANDAMUS -HIGHEST JUDICIAL WRIT -A special civil action directed against any tribunal, corporation, board or person which or who is alleged in a verified petition to have unlawfully neglected the performance of an act which a law specifically enjoins as a duty resulting from an office, trust or station or excluded another from the use and enjoyment of a right or office to which other is entitled  - There being no other plain, speedy and adequate remedy in the ordinary course of law, for the purpose of having the court command ( immediately or at some other specified time ) to do the act required to be done, to protect the rights of the petitioner and to pay the damages sustained by the petitioner by reason of the wrongful acts of the defendant. It applies to ministerial acts or duties and not to discretionary ones nor to performance of contractual obligations It is not a preventive remedy but a coercive or drastic writ; one that commands the exercise of power already possessed and commands performance ( not desistance ) of a duty already imposed If the BOD refuses to admit to licensure examination an applicant who has all the qualifications for admission and none of the disqualifications, MANDAMUS will lie to COMPEL the BOD to admit to the examination the applicant thus refused It the BOD refuses the issuance of CR to a successful examinee who has answered all the requirements and the refusal is due to WHIMSICAL reasons or for NO REASON at all, MANDAMUS will lie to COMPEL the BOD to issue the CR QUO WARRANTO -The government begins its action to recover an office or franchise from the person or corporation in possession of it. -To determine the right to use or exercise of a franchise or office & to oust the holder of its enjoyment if his claims is not well-founded or if he forfeited his right to enjoy the privilege QW is the remedy to try the right to an office or franchise, M does not lie to try disputed titles, but merely to enforce clear, legal duties. INJUNCTION -A writ or order requiring a person to REFRAIN from a particular act. -A preventive remedy -May also require the performance of a particular act, in which case it shall be known as Preliminary Mandatory Injunction, it does not lie to restrain the exercise of a discretionary power GROUNDS FOR ISSUANCE OF INJUNCTION That the plaintiff is entitled to the relief demanded, and the whole part of such relief consists in restraining the commission or continuance of the acts complained of, or in the performance of an act or acts, either for a limited period or perpetually That the commission or continuance of some act complained of during the litigation or the non-performance thereof would probably work injustice to the plaintiff That the defendant is doing, threatens or is about to do, or is procuring or suffering to be done some act probably in violation of the plaintiff’s  rights respecting the subject or the action and tending to render the judgment ineffectual PROHIBITION -A preventive remedy to restrain the doing of some act about to be done and not intended to provide remedy for acts already accomplished An extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested When the proceedings of any tribunal, corporation , board or person, whether exercising functions, judicial or ministerial, are without or in excess of its or his jurisdiction or with grave abuse of discretion, and there is no other plain, speedy and adequate remedy in the ordinary course of law o Similar in that the object of both remedies is the restraint of legal proceedings o Injunctive relief implies a wrong threatened by the parties litigant against whom such relief is sough o Prohibition, relief is sought against a court, tribunal or person, threatening or assuming to exercise judicial power. CERTIORARI -A writ or order from a superior court to an inferior court commanding the latter to send up the record of a particular case where a question of jurisdiction of the same or irregularity in its proceedings is raised PETITION FOR -A remedy for elevating to the SC at the instance of the aggrieved party, orders, REVIEW rulings or decisions of administrative tribunals, boards or officer exercising judicial function for review and determination of whether they are based on facts established or adduced during the hearing and investigation When no question of jurisdiction is involved but merely an error of law or fact, the appropriate remedy is review not certiorari Effect of acquittal on Criminal Will not terminate revocation proceedings Charges The dentist can be dealt with administratively in spite of his aquittal by the court o The standard of the dental profession is addressed to the community and not to the court o Only preponderance of evidence for the revocation of CR is necessary o Administrative aspect is separate and distinct from the criminal charge of the same case in the revocation proceedings  SEPARATION OF POWER o As a rule, the findings of an administrative agency which is an extension of the Executive Department, are not open to review by the Courts o The Courts may review the judgment of the BOD when such is UNREASONABLE, ARBITRARY or OPPRESSIVE or when the BOD has ACTED in EXCESS or ABUSE of its AUTHORITY CIVIL RESPONSIBILITY GENERAL RULE When a criminal action is instituted civil action for the civil liability arising from the offense is impliedly instituted with the criminal action Unless the offended party expressly waives the civil action or reserves his right to institute it separately Every person criminally liable for a felony is also civilly liable every person, who contrary to law, willfully or negligently causes damages to another, seal indemnify the latter for the same any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damage any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages OBLIGATION is a juridical necessity to give, to do or not to do CIVIL OBLIGATION – is one which has a binding force in law and which gives to the obligee or creditor the right of enforcing it against the obligor or debtor in a court of justice NATURAL OBLIGATION – is one which can not be enforced by action, but which is binding on the party who makes it in conscience and according to the natural law. CONTRACT PATIENT – DENTIST RELATIONSHIP -meeting of minds between two persons whereby one binds himself with respect to the other, to give something or to render some service ( Art. 1305, Civil Code). NATURE OF THE RELATIONSHIP -CONSENSUAL - based on mutual consent of both the DENTIST and the patient -FIDUCIARY - based on mutual trust and confidence in one another REQUISITES OF A CONTRACTUAL Consent – manifested by the meeting of the offer and the acceptance upon RELATIONSHIP the thing and the cause which are to constitute the contract (Art.1319NCC) Object – the subject matter of the contract which is the dental service which the patient wants to be rendered to him by his physician Cause – is the consideration or the factor that instigated the dentist to render the medical service to the patient, which could be remenuratory or an act of liberality BINDING EFFECT OF A CONTRACT Obligations arising from contracts have the force of law between the contracting parties & should be complied with in good faith a man obligates himself to do that which he promises to be bound, because that which is agreed to in a contract is the law between each contracting parties  o contracts take effect only between the parties, their assigns and heirs, except in cases where the right & obligations arising from the contract are not transmissible by their nature or by stipulation or by provision of the law o the heir is not liable beyond the value of the property he received from the decedent ( Art 1311, C.C. ) o Non-transmissible obligation by nature may be exemplified by that of a dentist who has a contract for dental work with a patient. o If the dentist dies before the completion of the work, his obligation cannot be assumed by his children unless of course, one of them is qualified dentist who can do the work properly & the patient consents to the transmission of the obligation IMPLIED DUTIES & OBLIGATIONS Outside of the contractual obligations of dentists towards their OF A DENTIST patients in the performance of their duties as such they are also bound to perform such duties in accordance with certain implied or presumed obligations from the start of their practice DENTIST’S DUTIES 1. He should possesed the knowledge and skill ( ability & dexterity) equal to those of an average dentist in the locality; those who hold themselves out as specialists are, of course, presumed to possess a higher degree of skill, to use the utmost care & diligence & to exercise best judgement if the dentist does not possess the skill required by the case, he should refer the patient to another dentist who is more competent 2. To use reasonable and ordinary care & diligence - this means that the dentist must pay attention to his patient so that the patients safety & protection is safeguarded 3. To use his best judgement that is, to exercise his best discretion on good faith the dentist must exercise his best judgement, not just a good or better judgement but the best 4. To keep the professional trust of his patient to keep in confidence whatever the dentist has perceived of his patients the dentist must guard against betrayal of professional trust OBLIGATIONS NOT INCLUDED IN o The dentist does not imply that his treatment will be a success THE DENTIST-PATIENT o Nor does he guarantee that his management will be successful RELATIONSHIP o Nor guarantee that there is no error of judgement OBLIGATION OF THE PATIENT TO The patient must give an honest history of his case, he must give THE DENTIST a true declaration of facts The patient must cooperate and follow the instructions of his dentist He must exercise necessary precautions. In other words, he should not be a stranger to his own problem RIGHTS OF A DENTIST To choose his patients, except in case of an emergency where he may not refuse to treat the patient to limit his practice - to that of which is in consonance with his specialty - geographically or politically or in time or within the limit of his conscience He can avail of hospital services o He has the right to choose his line or management of treatment  o He has the right of way, that is, when called to an emergency, he can avail of exception to traffic rules o the dental apparatus and all dental equipment and instruments in the practice of dentistry are free from attachments, otherwise this would be adding insult to injury o the dentist has the right to compensation, simple or contingent, depending the success of the treatment, or on some conditions INFORMED CONSENT Principle of PATIENT AUTONOMY the right of everyone to choose what is appropriate for themselves CONSENT -Art. 1319 Civil Code of the Philippines -manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract -means conformity ,must be free, not the result of force, intimidation, or threat. FORMS OF CONTRACT EXPRESSED - when the nature and extent of DENTAL service has been orally / CONSENT / verbally agreed upon or has been reduced to writing IMPLIED - existence of a contract can be concluded, inferred, or deduced from the acts of the parties or LEGAL DEFINITION OF -Consent manifested by signs, action or facts, or by inaction or silence, which IMPLIED CONSENT raises a presumption that consent has been given; -or consent that arises from a course of conduct or relationship between the parties, in which there is mutual acquiescence or a lack of objection under circumstance signifying assent. BASIC TRAITS OF AUTHORITY (WHO CAN GIVE CONSENT) CONSENT-GIVER ◼ 1. PATIENT - conscious, coherent, of legal age ◼ 2. Spouse ◼ 3. Direct descendants ( children of legal age ) ◼ 4. Direct ascendants ( parents ) ◼ 5. Siblings ◼ 6. Guardians ◼ 7. Attending doctor ( judgment call / emergency cases) ◼ 8. Medical Director / Hospital Administrator ◼ 9. Courts of Law MENTAL CAPACITY ◼ The ability to comprehend, assimilate information and ◼ to take a decision based upon such information FIVE DISTINCT CATEGORIES “Ozar and Sokol 1. The ability to understand the relationship of cause and effect 2. The ability to see alternative courses of action available and to choose between them 3. The ability of a person to perceive himself as one who can choose between the alternatives in a given situation 4. The ability to reason comparatively about the alternative courses of action and to reach a moral judgment about them  5. The ability to form and choose values, principles of conduct and personal ideals to guide one’s moral judgments and to shape one’s moral reflections and conduct accordingly LEGAL TEST - rely upon whether the patient is able to comprehend and retain information material to the autonomous decision regarding the treatment, particularly as to the likely consequences of receiving or not having the treatment What affects decisions about capacity ◼ AGE – legal age / emancipated minors ◼ MATURITY - May be an indication of capacity -Some have been assessed to have a mental development age that is different from their biological age ◼ COMPLEXITY OF PROCEDURE - The time, care and effort taken in ensuring that the patient understood the consent process is more onerous when a procedure is more complex ◼ TEMPORARY INCAPACITY - Some may be rendered incompetent by virtue of illness, unconsciousness, alcohol or drugs misuse or extreme dental phobia AUTONOMY Means that any consent provided is voluntary and without coercion CONSENT Essentially the communication process whereby the clinician receives the VOLUNTARY & CONTINUING PERMISSION of a patient to a particular procedure -EXPRESS -IMPLIED - patient is unconscious, unidentified, unaccompanied by next of kin and the case is considered an EMERGENCY case - Minimum procedures to stabilize the patient’s condition MUST BE INFORMED -Practitioner has the AFFIRMATIVE DUTY to provide the patient with enough information about the recommended treatment for the patient to make an autonomous decision as to whether to REJECT, ACCEPT or POSTPONE it. -Duty to volunteer the information material to the decision-making process WHAT MUST BE TOLD -The risks and benefits of the recommended procedure -The anticipated outcome -The alternatives to the procedure along with their risks ad benefits -Cost outlays CASE DISCUSSION -Must be in a language the patient understands SHOULD EVOLVE -The patient must be given the opportunity to ask questions and have them AROUND answered -The consent must be given freely, without coercion -The consent process must be documented HOW MUCH TO TELL -The scope of the disclosure the physician / dentist is LEGALLY OBLIGED to OF THE RISK? make  -Full disclosure – obviously prohibitive and unrealistic PROFESSIONAL -The professional test / “BOLAM TEST” COMMUNITY -As long as the clinician provides the patient with information in a similar vein STANDARD to that provided by a REASONABLE, REPUTABLE and COMPETENT body of opinion of a practitioner professing to have the same skills, THEN that clinician would NOT be found to be negligent REASONABLE PERSON -Recognizes that clinician has the duty to warn the patient of a material risk STANDARD inherited in the proposed treatment -What information does the practitioner feel that the patient should be provided with about the procedure ? -Nature, purpose, effect, risk, alternatives and cost -Is the information provided sufficient for a reasonably intelligent person to make an intelligent choice? -Was this person in particular given enough information to make an intelligent decision? the prudent practitioner should follow both standards and inform the patient of the material and the foreseeable risks…In other words, tell it ALL ! CONSENT IMPLIED BY -Only in true emergencies – when care must be rendered at once to protect LAW : EMERGENCIES the life or health of the patient -The practitioner may proceed at NO RISK without the consent of the patient Would consent have been given if the patient was able to grant consent ? Would a reasonable person in the same situation have granted consent? EMERGENCIES -Best interest of the patient -Clinician should do the MINUMUM necessary to STABILIZE the situation if that is what he believes to be the best interests of the patient and -Where it would be against the patient’s interest to do otherwise CONSENT IMPLIED BY -The patient was aware of the nature of the problem or the need for the THE ACTION/S OF THE treatment being provided PARTY -The patient made no objection when the treatment began TELEPHONE CONSENT -If properly executed, acceptable to the courts -Must contain all the elements that constitute a valid consent -Should be properly documented -Appropriate notes should be made on the patient’s chart, signed by the one who obtained the consent and countersigned by the listening party -A follow-up letter containing all the information about the need for the care, what was said to the parent and the details of the parent’s response IS A WRITTEN -In general, consent need not be in writing to be VALID CONSENT NECESSARY? -When the treatment is invasive or the risks are significant, the details of the risk need to be spelled out in detail and the consent should be in writing -The courts have noted that surgery patients may not pay careful attention to what is being said or to the details of what they are signing -Therefore, unless the need for the invasive procedure is immediate, the patient should be given the consent form to take home to read -When the patient returns at the time the invasive procedure is scheduled, he should be advised to ask questions and then sign the form  ELEMENTS NEEDED 1. The consent must be freely given FOR A CONSENT TO BE 2. The proposed treatment & its prognosis must be described VALID 3. The patient must be informed of the risks & benefits of the proposed treatment, including the prognosis if no treatment is provided 4. Alternative treatment/s to the one suggested, must be described 5. The patient must be given an opportunity to ask questions and have them answered 6. All communication with the patient must be in a language the patient understands 7. The consent must be obtained from a patient authorized to grant consent 8. The person who obtains the consent must be the treating doctor or one trained in obtaining consent 9. If the doctor is not the person obtaining the consent, he must be available to answer any questions the patient may have 10. To minimize risk, consent must be in writing INFORMED REFUSAL -A NEW CAUTION -A patient who refuses to follow the recommendation of a treating dentist must be advised of the consequences of the refusal -The dentist should make an entry of such refusal in the patient’s record which should also state that the patient was informed of the risks of NOT complying with the recommendation RECORDKEEPING A detailed record is the BEST DEFENSE against legal actions 1. Substantially complete 2. Accurate 3. Clear and tamper-free 4. Proper documentation 5. Proper filing o A record of each encounter with a patient will improve diagnosis and treatment planning and will also assist with efficient, safe and complete delivery of care considering the chronic nature of dental disease o Will also assist another clinician in assuming that patient’s care o May also form the basis of self protection in the event of a dispute associated with any treatment provided o May also form the basis for some types of SELF-MONITORING or AUDIT SYSTEMS used in quality review systems o May assist in patient identification or other aspects of forensic dentistry Recordkeeping is the foundation for good patient care and good communications about your practice. Good records support billing practices and demonstrate your knowledge of your patient, the practice of dentistry and  the laws and regulations governing that practice. A complete record will address every aspect of the practice of dentistry: Evaluation / Diagnosis / Prevention / Treatment Or explain why it doesn’t Confidentiality must be addressed when disposing of records as well as all other times ENTRIES o The responsibility of the dentist o Should be identifiable to that dentist o Must be LEGIBLE INDELIBLE o Any ABBREVIATIONS used should be standard WHAT IS NOT WRITTEN …WAS NOT DONE !!!