Evidence Flashcards
(483 cards)
1
Q
The means, sanctioned by the Rules of Court, of ascertaining in a judicial proceeding, the truth respecting a matter of fact
A
Evidence
2
Q
- 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
A
Circumstantial Evidence
3
Q
- 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.
A
Competent Evidence
4
Q
- 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
A
Conclusive Evidence
5
Q
- 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
A
Corroborative Evidence
6
Q
Additional evidence of the same character to the same point
Example: two different blood tests show paternity match
A
Cumulative Evidence
7
Q
- 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
A
Direct Evidence
8
Q
Testimony given by an expert witness on a matter requiring special skill, knowledge, training, or experience which he is shown to posses
A
Expert Evidence
9
Q
Not directed to prove a fact in issue as determined by the rules of substantive law and of pleadings
Example: hearsay
A
Immaterial Evidence
10
Q
Irrelevant to the issue or which is excluded by the rules of evidence
Example: evidence taken in violation of the Bill of Rights
A
Inadmissible Evidence
11
Q
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
A
Incompetent Evidence
12
Q
- 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”
A
Irrelevant Evidence
13
Q
Directed to prove a fact in issue
A
Material Evidence
14
Q
- Proves a particular fact until contradicted and overcome by other evidence
- Not conclusive until proven/disproven
A
Prima Facie Evidence
15
Q
- 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
A
Real Evidence
16
Q
Having any value in reason as may tend to establish the probability or improbability of a fact in question
A
Relevant Evidence
17
Q
Is any written or oral statement or declaration of a person respecting a matter of fact sought to be proven
A
Testimonial Evidence
18
Q
Consist of writing or any material containing letters, words, numbers, figures, symbols, or other modes of written expression offered as proof of their contents
A
Documentary Evidence
19
Q
A deduction which the law expressly directs to be made from particular facts
A
PRESUMPTION OF LAW
20
Q
Presumption of law that is legally satisfactory and may not be contradicted and overcome by proof to the contrary; facts coming from conclusive evidences
A
Conclusive Presumption
21
Q
presumption of law that is satisfactory if uncontradicted but may be overcome by other evidence
A
Disputable Presumption
22
Q
- 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
A
PRESUMPTION OF FACT
23
Q
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
A
Best Evidence Rule
24
Q
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
A
Secondary Evidence
25
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
26
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
27
The first exception of the hearsay rule
Dying Declaration
28
* The declaration of a dying person, made under the consciousness of an impending death
* His death is the subject of inquiry
Dying Declaration
29
The source of all information regarding confinement and treatment in a hospital or management in a dental clinic
PATIENT’S CLINICAL RECORD
30
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
31
PATIENT’S CLINICAL RECORD
Reasons/Goals
To provide the best dental care
To supply statistical information
To provide legal protection
32
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.
33
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
34
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
35
testifies on matters that came to his knowledge through his own senses and testifies on facts
Ordinary witness
36
gives testimony on matters he knows a lot about; can give an opinion on matters that he has plenty of experience about
Expert Witness
37
The opinion of a witness on a matter requiring:
* Special knowledge
* Skill
* Experience or training which he is shown to possess
EXPERT TESTIMONY
38
* 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
39
* 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
40
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*
41
When the doctrine of _________ is availed by the plaintiff because the injury itself provides the proof of negligence
res Ipsa loquitur
42
res Ipsa loquitur
“the thing speaks for itself”
43
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
44
No need for an expert testimony in these cases of _________
res Ipsa loquitur
45
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
46
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
47
Requisites of Privileged Communications between Dentist and Patient:
1. Claimed in a civil case
2. That the person, is one duly authorized to practice dentistry
3. That such person acquired the information while he was attending t he patient in his personal capacity
4. That the information was confidential, and, if disclosed, shall tend to blacken the character of the patient
48
# Scope of the Privilege
The privilege applies to the testimony of the dentist on the stand or to any:
1. Testimony of the dentist on the stand
2. Affidavit
3. Certificate
4. Dental records containing privileged matters
49
The privilege applies even after the death of the patient
Duration of the Privilege
50
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
51
Another exception to the physician-patient privilege
Legal Disclosures
52
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
53
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
54
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
55
* 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
56
ESSENTIAL REQUIREMENTS OF ADMINISTRATIVE DUE ROCESS
1. An opportunity to present his case and to adduce evidence
2. Tribunal must consider the evidence presented
3. The decision must be supported by itself
4. The evidence must be substantial
5. The decision must be rendered on the evidence presented
6. The board or its judges must act impartially
7. 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
57
Shall be heard by a committee
Administrative Charges Vs. Public Health Worker
58
# 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
59
The committee shall submit its findings and recommendations to the Secretary of Health within ________ days from the
termination of the hearings
thirty (30)
60
SAFEGUARDS IN DISCIPLINARY PROCEDURES
1. The right to be informed, in writing, of the charges
2. The right to full access to the evidence in the case
3. 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
4. The right to confront witnesses presented against him/her and
summon witnesses in his/her behalf
5. The right to appeal
6. The right to reimbursement of reasonable expenses incurred in
his/her defense in case of exoneration or dismissal of the charges
7. Such other rights as will ensure fairness and impartiality during
proceedings
61
GROUNDS FOR ADMINISTRATIVE PROCEEDINGS
1. Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude
2. Immoral or dishonorable conduct
3. Insanity
4. Fraud in the acquisition of the certificate of registration
5. Gross negligence or incompetence in the practice of his profession
6. Addiction to alcoholic beverages or to any habit-forming drugs rendering him incompetent to practice his profession
7. False or extravagant or unethical advertisement wherein
other things than his name, profession, limitation of practice, office, and home address are mentioned
8. Aiding or acting as a dummy of an unqualified or unregistered
person to practice dentistry
9. Violation of any provisions of the Philippine Dental Act of 2007, the PRC Modernization Act of 2000, and their respective rules
and regulations
10. Conduct discreditable to the dental profession
62
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
63
# LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
verified with certification against forum shopping
Complaint
64
# LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
submitting numerous same complaints against the same dentist/practitioner; illegal and may be discredited
Forum Shopping
65
# 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
66
# 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
67
# LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
presentation of documents submitted of both parties in the presence of their lawyers
Pre-Trial Conference
68
# LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
depending on the pretrial conference
Summary Judgement or go to Trial
69
# 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
70
# 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)
71
# 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)
72
# 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)
73
# 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
74
* 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
75
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
76
* 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
77
law concerning individual relations, properties, business, personal dealings, etc., and their interaction with each other
Civil Law
78
Comes with monetary compensation instead of imprisonment like in criminal law
Civil Law
79
Deals more on private individuals and has nothing to do with the state or government
Civil Law
80
1. 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)
2. 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)
3. 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
81
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
82
extinguished in the same manner as other obligations
EXTINCTION OF CIVIL LIABILITY
83
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
84
In short, persons with criminal offenses shall still pay civil liability after serving time in imprisonment
Obligation to Satisfy Civil Liability
85
forgiveness of a criminal offense granted by the head of the state or President; amnesty is before judgment, pardon is after judgment;
## Footnote
civil liability is still present
Amnesty/Pardon
86
A juridical necessity to give, to do, or not to do
OBLIGATIONS
87
* 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
88
* 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
89
* deals with what is right and what is wrong
* Norms of good and right conduct
* Governs the private personal interactions of people
Morality
90
governs the professional interactions of people
Ethics
91
generally accepted principles of morality which have received some social and practical recognition in the community for so long
Good Customs
92
the safety and order of the community in order to maintain peace; examples are obeying traffic rules
Public Order
93
* 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
94
“no one shall be unjustly enriched or benefited at the expense of another”
Quasi-contracts
95
giving rise to an obligation to deliver a thing or render a service
Quasi-contracts
96
A presumptive consent as basis of quasi-contract giving rise to an obligation to deliver a thing or render a service
Quasi-contracts
97
also termed as **solutio indebita**
Quasi-contracts
98
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)
99
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)
100
Such fault or negligence, if there is no pre-existing contractual relation between the parties
Quasi-Delicts (TORTS)
101
**Dental negligence** falls under this category, wherein there is
no intent but still caused damage
Quasi-Delicts (TORTS)
102
* The performance of this obligation does not depend upon a condition
* Is demandable at once
## Footnote
Example: patient’s payment to dental service
Pure Obligation
103
The acquisition/extinguishment of rights shall depend upon the happening of the event which constitutes the condition
Conditional Obligation
104
that which gives birth to the obligation; obligation happens only upon the happening of this event
Suspensive Condition
105
that which results to the loss or extinguishment of an obligation
Resolutory Condition
106
Obligations for whose fulfillment a certain day that has been fixed, shall be demandable only when that day comes
Obligation with a Period
107
* 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
108
“to each his own”; kaniya-kaniyan bayad; pro-rata, proportionate
Joint Obligations
109
“one for all, all for one”; joint and several, in solidum, individually and collectively, each will pay the whole value
Solidary Obligations
110
Obligations to give definite things and those which are not susceptible of partial performance
Indivisible Obligation
111
Delivery or performance is susceptible of division or partial performance
Divisible Obligation
112
* 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
113
an accessory obligation to assume the responsibility if there is non-performance
Penal Clause
114
one which gives a right of action to compel their performance; all contracts are civil obligations
Civil Obligations
115
* 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
116
means the realization of the purpose of the obligation
PERFORMANCE OF AN OBLIGATION
117
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
118
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
119
CAUSES OF NON-PERFORMANCE OF OBLIGATION
1. Voluntary Non-performance of Obligation
2. Involuntary Non-performance or Non-performance due to Fortuitious events or Force Majeure (acts of God)
120
events which could not be foreseen, or which though foreseen, were inevitable
Fortuitious events
121
acts of God like natural disasters (flood, typhoon, landslide, etc.)
Force Majeure
122
REQUISITES TO CONSIDER AN EVENT AS FORTUITIOUS
1. The cause of the event must be something beyond the control of man i.e. earthquake
2. Must not be foreseen, or even if foreseen, is inevitable i.e., typhoon, fire
3. Because of the occurrence of this event, the debtor is rendered helpless or incapable of performing his obligation in a normal way
4. Obligor or debtor must not have been guilty of contributory negligence and must not have participated in the aggravation of the damage done
123
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
124
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
125
after payment, obligation is extinguished
By Payment or Performance
126
if the thing due is lost due to fortuitious event, it is not your negligence
By the Loss of the Thing due
127
* 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
128
* 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
129
shall take place when two persons, in their own right, are creditors and debtors to each other
By Compensation
130
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
131
Obligations may be modified by:
* Changing the object or principal conditions of an obligation
* Changing the parties
132
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
133
An obligation whereby an agreement entered unto upon sufficient consideration to do or not to do a particular thing
CONTRACT
134
# True or False
All contracts are agreements, not all agreements are
contracts
True
135
# True or False
Only those that give rise to civil obligation is called a contract
True
136
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
137
Terms and conditions are made known to each part either in writing or verbal
Expressed Contract
138
One or more terms or conditions are not definitely known but are taken for granted by operation of law
Implied Contract
139
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
140
# True or False
Every contract contains an offer, acceptance, and consideration
True
141
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
142
arbitration clauses set up provisions whereby independent and binding arbitrators settle contractual disputes
Arbitration
143
* Standard contract clauses use universal language as a type of template
* Usually found at the end of the contract
Boilerplate
144
Boilerplate clauses includes?
* arbitration clauses
* entire agreement clauses
* force majeure clauses
145
when one part of the contract accuses the other party of not following the terms of the contract
Breach
146
* provisions of a contract that specify a particular occurrence
* In the event these conditions happen, this is what the contract does in response
Conditions
147
something of value that is bargained for and given in exchange for the promise contained in the offer
Consideration
148
something such as monetary compensation, that is awarded for a breach of contract
Damages
149
a clause that protects the contracting parties by declaring that the contract represents the complete and final agreement between the parties
Entire Agreement
150
a clause in contracts that excuses a part from not performing their contractual obligations due to unforeseen events beyond their control
Force Majeure
151
guaranty of loan is an agreement where one party guarantees a second party’s loan obligation to a third party
Guaranty
152
a promise to carry out the terms of the proposed transaction, in exchange for the consideration
Offer
153
introductory paragraphs of a contract that describe the nature of the contract and why each party has elected to enter into the agreement
Recitals
154
* First element
* Should be intelligently given with an exact idea of what it refers to be free and spontaneous by the contracting parties
Consent
155
an indispensable element for the existence of consen
Legal capacity
156
presuposses legal capacity
legal consent
157
consent given through the following renders the contract voidable
Visiation of Consent
158
transgresses intelligence
Mistake
159
transgresses freedom of consent
Violence/force
160
transgresses freedom of consent
Intimidation
161
transgresses reasonable freedom of choice
Undue influence
162
transgresses spontaneousity
Fraud
163
* 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
164
* 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
165
the cause is the prestation or promise of a thing or service by the other i.e., dental treatments
onerous contracts
166
the cause is the service or benefit which is to be compensated i.e., job contracts
remuneratory contracts
167
the cause is the mere liberality of the benefactor i.e., donation
contracts of pure beneficence
168
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
169
* “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
170
* “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
171
* “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
172
* “I pay in order that you may perform”;
* when one agrees with the employee to give such wage based on performance
Do ut facias
173
* 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
174
These contracts are binding, unless they are annulled by a
proper action in court; they are susceptible of ratification
VOIDABLE CONTRACTS
175
# VOIDABLE CONTRACTS
Give the 2 example of contracts that are voidable or annullable, even though there may been no damage to the contracting parties
1. Those where one of the parties is incapable of giving consent to a contract i.e. minor aged contracting party
2. Those where the consent is vitiated by mistake, violence,
intimidation, undue influence, or fraud
176
* When contract is not in writing, it is called unenforceable contract
* There is no basis to enforce the contract obligations
UNENFORCEABLE CONTRACTS
177
* 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
178
An important legal protection is the right to give informed
consent to treatment
INFORMED CONSENT
179
# True or False
A dentist who performs a procedure on a client without informed consent may be found civilly liable for committing battery
True
180
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
181
Should reflect that the patient already has informed consent about the treatment option of the clinician
INFORMED CONSENT FORM (ICF)
182
WHO CAN GIVE INFORMED CONSENT?
1. Any capacitated patient
2. Spouse - if patient himself cannot give informed consent
3. A parent or natural guardian in case of minors
4. A guardian in case a person is incapacitated to give consent
5. A legal guardian appointed by the court
6. Duly appointed officers of the Department of Social Welfare and Development (DSWD)
183
before a dentist could do a physical examination, the proper consent must be given by the patient
Non-Consensual Physical Contact
184
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
185
The failure, without legal reason, to comply with the terms of contract
BREACH OF CONTRACT
186
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
187
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
188
# True or false
A contract may be breached in whole only
False
| A contract may be breached in whole or in part
189
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
190
States that you cannot enforce contracts that are not in writing
STATUTE OF FRAUDS
191
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
192
* Refers to the prescription period
* Every action has a corresponding period to perform
STATUTE OF LIMITATIONS
193
are laws that set the deadline or maximum period of time within which a lawsuit or claim may be filed
Statutes of limitations
194
* 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
195
If you sue for breach of contract, you must sue within the ________
statute of limitations
196
“let the master answer”;
the dentist may be held liable for the wrongful act of his or her dental assistant
Doctrine of Respondeat Superior
197
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
198
applicable to visiting dentists
Borrowed servant Doctrine
199
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
200
substitute liability
Vicarious Liability of Hospital
201
is under the State Immunity from Suit; government cannot be sued
Government or Public Hospital
202
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
203
those entering private charitable or government hospital cannot sue the hospitals, implying their waiver of this right to sue
Implied Waiver Theory
204
those patients in private charitable hospitals do not have a contract to the hospital, only the doctor
Doctrine of Independent Contractor
205
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
206
are the amounts recoverable or that which can be awarded for the damage done or sustained
DAMAGES
207
is the legal invasion of a legal right
Injury
208
is the hurt, loss or harm, which results from the injury
damage
209
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
210
In such cases, the consequences must be borne by the injured person alone
Damnum Absque Injuria
211
The law affords no remedy for damages resulting from an act that does not amount to a legal injury or wrong
Damnum Absque Injuria
212
If a damage results from a person’s exercising his legal rights
Damnum Absque Injuria
213
They cannot be granted unless supported by the evidence on record
ACTUAL DAMAGES
214
It is the compensatory or actual damages that are most frequently involved in professional liability cases
ACTUAL DAMAGES
215
Includes physical suffering, mental anguish, fright, serious anxiety, besmitched reputation, wounded feelings, moral shock, social humiliation, and similar injury
MORAL DAMAGES
216
# True or False
There is no hard and fast rule in the determination of what
would be a fair amount of moral damages
True
217
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
218
CONDITIONS FOR AWARD OF MORAL DAMAGES
* Duty
* deviation
* direct causation
* damage
219
This is usually the Civil Code
LEGAL PROVISIONS MANDATING AWARD OF MORAL DAMAGES
220
suit that is groundless, malicious, without probable cause, or part of conspiracy
Unfounded suit
221
a small sum of money awarded to a plaintiff to commemorate the fact the plaintiff won their civil case in court.
Nominal damages
222
are more than nominal but less than compensatory damages
Temperate or Moderate damages
223
a predetermined or specified amount of money that must be paid as damages if one party fails to meet certain contractual requirements
Liquidated Damages
224
are imposed, by way of example or correction for the public good
Exemplary or Corrective Damages
225
An important legal protection is the right to give informed consent to treatment; this can be done through interviewing
INFORMED CONSENT
226
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
227
should be signed by the patient after giving the informed consent to the patient
INFORMED CONSENT FORM
228
modified for different cases because of different risks, different treatment alternatives, and different procedures
INFORMED CONSENT FORM
229
If condition is inherent like bleeding, discomfort, pain, or anesthesia, you can opt for what?
you may not include it in the informed consent
230
How long should ICF be kept for?
10 years
231
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
232
Encompasses all possible civil liability that a professional can incur as a result of professional acts
PROFESSIONAL LIABILITY
233
It is preferred over the term “malpractice” because the latter carries some negative evertones
PROFESSIONAL LIABILITY
234
a tort liability - when applied to the dental profession
Negligence
235
negligence is called
malpractice
236
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
237
__________, 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
238
simply means performance or doing of an act
Feasance
239
the performing of an act that is wholly wrongful and unlawful
Malfeasance
240
the improper performance of some lawful act
Misfeasance
241
is the failure to do something that should have been done
Nonfeasance
242
Such fault or negligence, if there is no pre-existing contractual relation between the parties
quasi-delict
243
are civil wrongs that are done to clients
Torts
244
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
245
When a person is guilty of ____________, he or she is guilty of an act or failure to act
Culpa aquiliana
246
exists when the dentist-patient relationship has been established
DUTY
247
Neglectful of Obligation
DERELICT
248
proof of dereliction, or proof of negligence of an obligation; the breach of professional duties of skill and care, or their improper performance
DERELICT
249
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
250
injury results from want of due care or skill; dentists may be held answerable in damages for negligence
DAMAGES
251
The burden of proving each of the four elements of negligence is on the plaintiff
PROXIMATE CAUSE
252
Failure to prove any one of the elements may result in dismissal of the case
PROXIMATE CAUSE
253
The most common rule is the reasonable person rule
STANDARDS OF PRACTICE
254
the written or verbal evidence given by a qualified expert in an area
Expert Witness
255
like textbooks, journal articles, etc. published by national organizations such as the PDA
Documentary Evidence
256
“the thing or the transaction speaks for itself”
DOCTRINE OF RES IPSA LOQUITOR
257
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
258
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
259
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
260
Usually applied to foreign body cases, improper setting of broken bones, in the application of cast, and in wrongful diagnosis
DOCTRINE OF CONTINUING NEGLIGENCE
261
Anyone who voluntarily assumes the risk of injury from a known danger, if injured, is barred from recover
DOCTRINE OF ASSUMPTION OF RISK
262
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
263
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
264
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
265
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
266
Under the rule, the tortfeasors are joint and severally liable, meaning the plaintiff-patient can recover damages in full from either
DEEP POCKET RULE
267
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
268
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
269
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
270
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**
271
1. An opportunity to present his case and to adduce evidence
2. Tribunal must consider the evidence presented
3. The decision must be supported by itself
4. The evidence must be substantial
5. The decision must be rendered on the evidence presented
6. The board or its judges must act impartially
7. 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
272
Administrative Charges Vs. Public Health Worker
Shall be heard by a committee
273
* 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
274
thirty (30)
The committee shall submit its findings and recommendations to the Secretary of Health within ________ days from the
termination of the hearings
275
1. The right to be informed, in writing, of the charges
2. The right to full access to the evidence in the case
3. 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
4. The right to confront witnesses presented against him/her and
summon witnesses in his/her behalf
5. The right to appeal
6. The right to reimbursement of reasonable expenses incurred in
his/her defense in case of exoneration or dismissal of the charges
7. Such other rights as will ensure fairness and impartiality during
proceedings
SAFEGUARDS IN DISCIPLINARY PROCEDURES
276
1. Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude
2. Immoral or dishonorable conduct
3. Insanity
4. Fraud in the acquisition of the certificate of registration
5. Gross negligence or incompetence in the practice of his profession
6. Addiction to alcoholic beverages or to any habit-forming drugs rendering him incompetent to practice his profession
7. False or extravagant or unethical advertisement wherein
other things than his name, profession, limitation of practice, office, and home address are mentioned
8. Aiding or acting as a dummy of an unqualified or unregistered
person to practice dentistry
9. Violation of any provisions of the Philippine Dental Act of 2007, the PRC Modernization Act of 2000, and their respective rules
and regulations
10. Conduct discreditable to the dental profession
GROUNDS FOR ADMINISTRATIVE PROCEEDINGS
277
* 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
278
Complaint
# LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
verified with certification against forum shopping
279
Forum Shopping
# LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
submitting numerous same complaints against the same dentist/practitioner; illegal and may be discredited
280
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
281
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
282
Pre-Trial Conference
# LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
presentation of documents submitted of both parties in the presence of their lawyers
283
Summary Judgement or go to Trial
# LIFE OF ADMINISTRATIVE COMPLAINT VS DENTIST
depending on the pretrial conference
284
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
285
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
286
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
287
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
288
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
289
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
290
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
291
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
292
Civil Law
law concerning individual relations, properties, business, personal dealings, etc., and their interaction with each other
293
Civil Law
Comes with monetary compensation instead of imprisonment like in criminal law
294
Civil Law
Deals more on private individuals and has nothing to do with the state or government
295
LEGAL BASIS OF CIVIL LIABILITY
1. 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)
2. 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)
3. 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
296
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
297
EXTINCTION OF CIVIL LIABILITY
extinguished in the same manner as other obligations
298
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
299
Obligation to Satisfy Civil Liability
In short, persons with criminal offenses shall still pay civil liability after serving time in imprisonment
300
Amnesty/Pardon
forgiveness of a criminal offense granted by the head of the state or President; amnesty is before judgment, pardon is after judgment;
## Footnote
civil liability is still present
301
OBLIGATIONS
A juridical necessity to give, to do, or not to do
302
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
303
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
304
Morality
* deals with what is right and what is wrong
* Norms of good and right conduct
* Governs the private personal interactions of people
305
Ethics
governs the professional interactions of people
306
Good Customs
generally accepted principles of morality which have received some social and practical recognition in the community for so long
307
Public Order
the safety and order of the community in order to maintain peace; examples are obeying traffic rules
308
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
309
Quasi-contracts
“no one shall be unjustly enriched or benefited at the expense of another”
310
Quasi-contracts
giving rise to an obligation to deliver a thing or render a service
311
Quasi-contracts
A presumptive consent as basis of quasi-contract giving rise to an obligation to deliver a thing or render a service
312
Quasi-contracts
also termed as **solutio indebita**
313
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
314
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
315
Quasi-Delicts (TORTS)
Such fault or negligence, if there is no pre-existing contractual relation between the parties
316
Quasi-Delicts (TORTS)
**Dental negligence** falls under this category, wherein there is
no intent but still caused damage
317
Pure Obligation
* The performance of this obligation does not depend upon a condition
* Is demandable at once
## Footnote
Example: patient’s payment to dental service
318
Conditional Obligation
The acquisition/extinguishment of rights shall depend upon the happening of the event which constitutes the condition
319
Suspensive Condition
that which gives birth to the obligation; obligation happens only upon the happening of this event
320
Resolutory Condition
that which results to the loss or extinguishment of an obligation
321
Obligation with a Period
Obligations for whose fulfillment a certain day that has been fixed, shall be demandable only when that day comes
322
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
323
Joint Obligations
“to each his own”; kaniya-kaniyan bayad; pro-rata, proportionate
324
Solidary Obligations
“one for all, all for one”; joint and several, in solidum, individually and collectively, each will pay the whole value
325
Indivisible Obligation
Obligations to give definite things and those which are not susceptible of partial performance
326
Divisible Obligation
Delivery or performance is susceptible of division or partial performance
327
. 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
328
Penal Clause
an accessory obligation to assume the responsibility if there is non-performance
329
Civil Obligations
one which gives a right of action to compel their performance; all contracts are civil obligations
330
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
331
PERFORMANCE OF AN OBLIGATION
means the realization of the purpose of the obligation
332
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
333
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
334
1. Voluntary Non-performance of Obligation
2. Involuntary Non-performance or Non-performance due to Fortuitious events or Force Majeure (acts of God)
CAUSES OF NON-PERFORMANCE OF OBLIGATION
335
Fortuitious events
events which could not be foreseen, or which though foreseen, were inevitable
336
Force Majeure
acts of God like natural disasters (flood, typhoon, landslide, etc.)
337
1. The cause of the event must be something beyond the control of man i.e. earthquake
2. Must not be foreseen, or even if foreseen, is inevitable i.e., typhoon, fire
3. Because of the occurrence of this event, the debtor is rendered helpless or incapable of performing his obligation in a normal way
4. 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
338
* 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
339
* 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
340
By Payment or Performance
after payment, obligation is extinguished
341
By the Loss of the Thing due
if the thing due is lost due to fortuitious event, it is not your negligence
342
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
343
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
344
By Compensation
shall take place when two persons, in their own right, are creditors and debtors to each other
345
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
346
* Changing the object or principal conditions of an obligation
* Changing the parties
Obligations may be modified by:
347
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
348
CONTRACT
An obligation whereby an agreement entered unto upon sufficient consideration to do or not to do a particular thing
349
True
# True or False
All contracts are agreements, not all agreements are
contracts
350
True
# True or False
Only those that give rise to civil obligation is called a contract
351
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
352
Expressed Contract
Terms and conditions are made known to each part either in writing or verbal
353
Implied Contract
One or more terms or conditions are not definitely known but are taken for granted by operation of law
354
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
355
True
# True or False
Every contract contains an offer, acceptance, and consideration
356
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
357
Arbitration
arbitration clauses set up provisions whereby independent and binding arbitrators settle contractual disputes
358
Boilerplate
* Standard contract clauses use universal language as a type of template
* Usually found at the end of the contract
359
* arbitration clauses
* entire agreement clauses
* force majeure clauses
Boilerplate clauses includes?
360
Breach
when one part of the contract accuses the other party of not following the terms of the contract
361
Conditions
* provisions of a contract that specify a particular occurrence
* In the event these conditions happen, this is what the contract does in response
362
Consideration
something of value that is bargained for and given in exchange for the promise contained in the offer
363
Damages
something such as monetary compensation, that is awarded for a breach of contract
364
Entire Agreement
a clause that protects the contracting parties by declaring that the contract represents the complete and final agreement between the parties
365
Force Majeure
a clause in contracts that excuses a part from not performing their contractual obligations due to unforeseen events beyond their control
366
Guaranty
guaranty of loan is an agreement where one party guarantees a second party’s loan obligation to a third party
367
Offer
a promise to carry out the terms of the proposed transaction, in exchange for the consideration
368
Recitals
introductory paragraphs of a contract that describe the nature of the contract and why each party has elected to enter into the agreement
369
Consent
* First element
* Should be intelligently given with an exact idea of what it refers to be free and spontaneous by the contracting parties
370
Legal capacity
an indispensable element for the existence of consen
371
legal consent
presuposses legal capacity
372
Visiation of Consent
consent given through the following renders the contract voidable
373
Mistake
transgresses intelligence
374
Violence/force
transgresses freedom of consent
375
Intimidation
transgresses freedom of consent
376
Undue influence
transgresses reasonable freedom of choice
377
Fraud
transgresses spontaneousity
378
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
379
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
380
onerous contracts
the cause is the prestation or promise of a thing or service by the other i.e., dental treatments
381
remuneratory contracts
the cause is the service or benefit which is to be compensated i.e., job contracts
382
contracts of pure beneficence
the cause is the mere liberality of the benefactor i.e., donation
383
* 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:
384
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
385
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
386
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
387
Do ut facias
* “I pay in order that you may perform”;
* when one agrees with the employee to give such wage based on performance
388
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
389
VOIDABLE CONTRACTS
These contracts are binding, unless they are annulled by a
proper action in court; they are susceptible of ratification
390
1. Those where one of the parties is incapable of giving consent to a contract i.e. minor aged contracting party
2. 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
391
UNENFORCEABLE CONTRACTS
* When contract is not in writing, it is called unenforceable contract
* There is no basis to enforce the contract obligations
392
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
393
INFORMED CONSENT
An important legal protection is the right to give informed
consent to treatment
394
True
# True or False
A dentist who performs a procedure on a client without informed consent may be found civilly liable for committing battery
395
* 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:
396
INFORMED CONSENT FORM (ICF)
Should reflect that the patient already has informed consent about the treatment option of the clinician
397
1. Any capacitated patient
2. Spouse - if patient himself cannot give informed consent
3. A parent or natural guardian in case of minors
4. A guardian in case a person is incapacitated to give consent
5. A legal guardian appointed by the court
6. Duly appointed officers of the Department of Social Welfare and Development (DSWD)
WHO CAN GIVE INFORMED CONSENT?
398
Non-Consensual Physical Contact
before a dentist could do a physical examination, the proper consent must be given by the patient
399
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
400
BREACH OF CONTRACT
The failure, without legal reason, to comply with the terms of contract
401
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
402
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
403
False
| A contract may be breached in whole or in part
# True or false
A contract may be breached in whole only
404
* 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:
405
STATUTE OF FRAUDS
States that you cannot enforce contracts that are not in writing
406
* 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?
407
STATUTE OF LIMITATIONS
* Refers to the prescription period
* Every action has a corresponding period to perform
408
Statutes of limitations
are laws that set the deadline or maximum period of time within which a lawsuit or claim may be filed
409
* 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?
410
statute of limitations
If you sue for breach of contract, you must sue within the ________
411
Doctrine of Respondeat Superior
“let the master answer”;
the dentist may be held liable for the wrongful act of his or her dental assistant
412
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
413
Borrowed servant Doctrine
applicable to visiting dentists
414
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
415
Vicarious Liability of Hospital
substitute liability
416
Government or Public Hospital
is under the State Immunity from Suit; government cannot be sued
417
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
418
Implied Waiver Theory
those entering private charitable or government hospital cannot sue the hospitals, implying their waiver of this right to sue
419
Doctrine of Independent Contractor
those patients in private charitable hospitals do not have a contract to the hospital, only the doctor
420
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
421
DAMAGES
are the amounts recoverable or that which can be awarded for the damage done or sustained
422
Injury
is the legal invasion of a legal right
423
damage
is the hurt, loss or harm, which results from the injury
424
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
425
Damnum Absque Injuria
In such cases, the consequences must be borne by the injured person alone
426
Damnum Absque Injuria
The law affords no remedy for damages resulting from an act that does not amount to a legal injury or wrong
427
Damnum Absque Injuria
If a damage results from a person’s exercising his legal rights
428
ACTUAL DAMAGES
They cannot be granted unless supported by the evidence on record
429
ACTUAL DAMAGES
It is the compensatory or actual damages that are most frequently involved in professional liability cases
430
MORAL DAMAGES
Includes physical suffering, mental anguish, fright, serious anxiety, besmitched reputation, wounded feelings, moral shock, social humiliation, and similar injury
431
True
# True or False
There is no hard and fast rule in the determination of what
would be a fair amount of moral damages
432
* 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
433
* Duty
* deviation
* direct causation
* damage
CONDITIONS FOR AWARD OF MORAL DAMAGES
434
LEGAL PROVISIONS MANDATING AWARD OF MORAL DAMAGES
This is usually the Civil Code
435
Unfounded suit
suit that is groundless, malicious, without probable cause, or part of conspiracy
436
Nominal damages
a small sum of money awarded to a plaintiff to commemorate the fact the plaintiff won their civil case in court.
437
Temperate or Moderate damages
are more than nominal but less than compensatory damages
438
Liquidated Damages
a predetermined or specified amount of money that must be paid as damages if one party fails to meet certain contractual requirements
439
Exemplary or Corrective Damages
are imposed, by way of example or correction for the public good
440
INFORMED CONSENT
An important legal protection is the right to give informed consent to treatment; this can be done through interviewing
441
* 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?
442
INFORMED CONSENT FORM
should be signed by the patient after giving the informed consent to the patient
443
INFORMED CONSENT FORM
modified for different cases because of different risks, different treatment alternatives, and different procedures
444
you may not include it in the informed consent
If condition is inherent like bleeding, discomfort, pain, or anesthesia, you can opt for what?
445
10 years
How long should ICF be kept for?
446
* 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
447
PROFESSIONAL LIABILITY
Encompasses all possible civil liability that a professional can incur as a result of professional acts
448
PROFESSIONAL LIABILITY
It is preferred over the term “malpractice” because the latter carries some negative evertones
449
Negligence
a tort liability - when applied to the dental profession
450
malpractice
negligence is called
451
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
452
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
453
Feasance
simply means performance or doing of an act
454
Malfeasance
the performing of an act that is wholly wrongful and unlawful
455
Misfeasance
the improper performance of some lawful act
456
Nonfeasance
is the failure to do something that should have been done
457
quasi-delict
Such fault or negligence, if there is no pre-existing contractual relation between the parties
458
Torts
are civil wrongs that are done to clients
459
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
460
Culpa aquiliana
When a person is guilty of ____________, he or she is guilty of an act or failure to act
461
DUTY
exists when the dentist-patient relationship has been established
462
DERELICT
Neglectful of Obligation
463
DERELICT
proof of dereliction, or proof of negligence of an obligation; the breach of professional duties of skill and care, or their improper performance
464
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
465
DAMAGES
injury results from want of due care or skill; dentists may be held answerable in damages for negligence
466
PROXIMATE CAUSE
The burden of proving each of the four elements of negligence is on the plaintiff
467
PROXIMATE CAUSE
Failure to prove any one of the elements may result in dismissal of the case
468
STANDARDS OF PRACTICE
The most common rule is the reasonable person rule
469
Expert Witness
the written or verbal evidence given by a qualified expert in an area
470
Documentary Evidence
like textbooks, journal articles, etc. published by national organizations such as the PDA
471
DOCTRINE OF RES IPSA LOQUITOR
“the thing or the transaction speaks for itself”
472
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
473
* 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
474
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
475
DOCTRINE OF CONTINUING NEGLIGENCE
Usually applied to foreign body cases, improper setting of broken bones, in the application of cast, and in wrongful diagnosis
476
DOCTRINE OF ASSUMPTION OF RISK
Anyone who voluntarily assumes the risk of injury from a known danger, if injured, is barred from recover
477
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
478
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
479
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
480
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
481
DEEP POCKET RULE
Under the rule, the tortfeasors are joint and severally liable, meaning the plaintiff-patient can recover damages in full from either
482
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
483
* 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
