Statutes of limitation for medical malpractice in the Philippines

The law sets time limits for filing court cases called statutes of limitations. Prescriptive periods also apply to medical malpractice cases. How long can someone sue for medical malpractice before it's too late?

Such quandary was answered in De Jesus v. Dr. Uyloang, Asian Hospital and Medical Center, and Dr. John Francois Ojeda (G.R. No. 234851, February 15, 2022).

The case involved a failed surgery by Drs. Uyloang and Ojeda on De Jesus for gallstones. De Jesus later had abdominal pains and bile leakage, which Dr. Uyloang said was normal.De Jesus sought a second opinion, confirming the wrong duct was clipped, leading to bile leakage. Another surgery was needed on November 19, 2010.

On November 10, 2015, after five years, De Jesus lodged a medical malpractice case against Dr. Uyloan, Asian Hospital and Medical Center and Dr. Ojeda. All of them moved for the case’s dismissal invoking that the time to file the action already prescribed.

Now, the crux of the controversy: did the action grounded on medical malpractice already prescribe?

De Jesus argued that, since the action was based on a contract between the defendant doctors and hospital, the action prescribes in six or ten years under Article 1145 and 1144 of the Civil Code, respectively.

To determine whether the De Jesus’ medical malpractice suit was barred by the statutes of limitation, the Philippine Supreme Court had to define the nature of a medical malpractice suit.

Medical Malpractice defined: contract or quasi-delict?
While jurisprudence is clear as to the requisites of establishing a physician-patient relationship, there appears to be a lacunae in what the nature of the relationship is. Does it constitute a contract?

As defined in the earlier Casumpang v. Cortejo (G.R. No. 171127, March 11, 2015), “a physician-patient relationship is created when a patient engages the services of a physician, and the latter accepts or agrees to provide care to the patient. The establishment of this relationship is consensual, and the acceptance by the physician essential.” It can be gleaned from this jurisprudential definition that the first requisite of a contract — consent — is satisfied. Does this mean that this meeting the minds between a physician and patient ourightly establishes a contractual relationship between them?

After all, contracts are born with concurrence of three : (a) consent of the contracting parties; (b) object certain which is the subject matter of the contract; and (c) cause of the obligation which is established (Art. 1318, Civil Code).

The Philippine Supreme Court held that a physician-patient relationship is not contractual. It explained:

The fact that the physician-patient relationship is consensual does not necessarily mean it is a contractual relation, in the sense in which petitioner employs this term by equating it with any other transaction involving exchange of money for services. Indeed, the medical profession is affected with public interest. Once a physician-patient relationship is established, the legal duty of care follows. The doctor accordingly becomes duty-bound to use at least the same standard of care that a reasonably competent doctor would use to treat a medical condition under similar circumstances. Breach of duty occurs when the doctor fails to comply with, or improperly performs his duties under professional standards. This determination is both factual and legal, and is specific to each individual case. If the patient, as a result of the breach of duty, is injured in body or in health, actionable malpractice is committed, entitling the patient to damages. (De Jesus v. Dr. Uyloang, et. al, supra.)

Does this pronouncement therefore foreclose any contractual relationship between a physician and a patient? Interestingly, the Philippine Supreme Court hinted that it was also possible that an action for medical malpractice can be based on contract, specifically when the plaintiff “allege[s] an express promise to provide treatment or achieve a specific result.”

Citing a textbook on American malpractice jurisprudence, “The Preparation and Trial of Medical Malpractice Cases[,]” the Philippine Supreme Court expounded that:

Absent an express contract, a physician does not impliedly warrant the success of his or her treatment but only that he or she will adhere to the applicable standard of care. Thus, there is no cause of action for breach of implied contract or implied warranty arising from an alleged failure to provide adequate medical treatment. This allegation clearly sounds in tort, not in contract; therefore, the plaintiff's remedy is an action for malpractice, not breach of contract. A breach of contract complaint fails to state a cause of action if there is no allegation of any express promise to cure or to achieve a specific result. A physician's statements of opinion regarding the likely result of a medical procedure are insufficient to impose contractual liability, even if they ultimately prove incorrect. (Shandell and Smith, 2006)

Following this logic, we can draw this conclusion: absent any specific promise to cure or achieve a definite result, no contractual relationship between them arises notwithstanding the physician’s acceptance of the patient’s engagement. Supporting this conclusion are rulings of the Philippine Supreme Court in earlier cases which recognizes that physicians are not insurers of life (Ramos v. Court of Appeals, G.R. No. 124354, December 29, 1999) and good result of treatment (Lucas v. Dr. Tuaño, G.R. No. 178763, April 21, 2009). 

Verily, that physicians cannot and do not guarantee that a patient will be cured is already well-entrenched in Philippine jurisprudence. Seemingly, this jurisprudential trend will not favor award of damages based on contract liability theory in medical malpractice suits, notwithstanding the the settled doctrine that liability for quasi-delict may co-exist in the presence of contractual relations.

The inescapable conclusion then is the period of prescription for quasi-delict applies in medical malpractice cases. 

Nature of medical malpractice cases

American legal system classifies medical malpractice or medical negligence as a form of “tort.” The Philippines, however, does not have “tort” imbedded in its legal system. Instead, the Civil Code of the Philippines provides for a system of quasi-delict. Chief Justice Alexander Gesmundo speaking in De Jesus eruditely explains:

For lack of a specific law geared towards the type of negligence committed by members of the medical profession in this jurisdiction, such claim for damages is almost always anchored on the alleged violation of Art. 2176 of the Civil Code, which states that:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would have done, or that he or she did something that a reasonably prudent physician or surgeon would not have done, and that the failure or action caused injury to the patient. There are thus four elements involved in medical negligence cases, namely: duty, breach, injury, and proximate causation. (De Jesus v. Dr. Uyloang, et. al, supra.)

While the contract theory of medical malpractice cases was debunked, it does not mean that victim of medical malpractice or medical negligence are without recourse. The Philippine Supreme Court’s pronouncement in De Jesus only indicates that medical malpractice victims may vindicate their rights by filing an action for damages based on quasi-delict. Parenthetically, they can also file a case for criminal negligence under Article 365 of the Revised Penal Code (on Quasi-Crimes). 

Drawing lessons from the De Jesus case, victims of medical malpractice should ever be mindful of the prescriptive period in filing the suit within the prescriptive period. Simply put, as in any case, time is of the essence.

Revisiting statute of limitations in civil cases

Generally, statutes of limitation are provided for in specific laws. In so far as civil cases are concerned, absent specific prescriptive period under special law, the Civil Code applies. Determinative in the case of De Jesus are Articles 1144, 1145 and 1146 of the Civil Code, to wit:

ARTICLE 1144. The following actions must be brought within ten years from the time the right of action accrues:

(1) Upon a written contract;

(2) Upon an obligation created by law;

(3) Upon a judgment.

ARTICLE 1145. The following actions must be commenced within six years:

(1) Upon an oral contract;

(2) Upon a quasi-contract.

ARTICLE 1146. The following actions must be instituted within four years:

(1) Upon an injury to the rights of the plaintiff;

(2) Upon a quasi-delict;

However, when the action arises from or out of any act, activity, or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year.

Falling under the broad concept of quasi-delict, medical malpractice cases prescribe within four-years from the commission of such wrongful act or omission. Clearly, De Jesus’ medical malpractice suit came one year too late. It took him five years to pursue his claim against Drs. Uyloang and Ojeda, as well as Asian Hospital and Medical Center. As to why he waited for time to slip away, we could only surmise. This curious case serves as a reminder and a caveat what tons of law books have been saying all along: “the law helps the vigilant but not those who sleep on their rights.” Vigilantibus, sed non dormientibus jura subverniunt.

Filipino nurses: Too many, but never enough

Healthcare workers in government, including nurses, cheered on when it was announced on July 9, 2024 that the Department of Health will release around P27.4 billion health emergency allowance for health workers who served during the height of the COVID-19. Will this be enough to keep them from fleeing the country to search for greener pastures? Only time will tell.

For a country that prides itself as one of the world’s largest producers of nurses, the Philippines is faced with the paradox of having a surplus of nurses yet still never enough to sustain its much-needed army of nurses during the battle against COVID-19. Overseas migration was not the only factor affecting deficient supply of nurses in the Philippines. The lack of stable jobs and dismal wages also factored in. (Ortiga & Rivero, 2019). Inadequate state funding to hire more nurses worsened this existing crisis in nursing supply. (Perrin, Hagopian, Sales, & Huang, 2007)

The International Centre on Nurse Migration reports close to six million shortfalls of nurses even prior to the outbreak of the COVID-19 pandemic. (Buchanan, Catton & Shaffer, 2022) retaining nurses and maintaining adequate supply of nursing workforce challenged many countries. It compelled nations to implement drastic and "emergency" policy actions to keep a sufficient regiment of nurses. The Philippines is no exception.

In 2020, the Philippine Overseas Employment Administration (POEA) through Governing Board Resolution No. 9, 2020 banned the deployment of health workers abroad. The deployment ban was due to a reported shortage of 290,000 health workers in the country. (Governing Board Resolution No. 9, 2020) The shortfall in health workers was aggravated by an average annual migration of 13,000 health care professionals that aggravated the deficiency in national supply of health human resource, majority of whom are nurses. (Ibid.)

After a huge public backlash, the POEA Governing Board issued Governing Board Resolution No. 17 which temporarily lifted the ban but imposed an annual overseas deployment cap of 5,000 new hire healthcare workers starting January 1, 2021. (Governing Board Resolution No. 17, 2020)

During the pandemic, nurses were seen as “heroes” of the war against COVID-19. However, Rowalt Alibudbud (2022) argues that it’s not enough to honor nurses during the Covid-19 crisis. (Alibubud, 2022) Honor sans just proper wages, adequate staffing and livable conditions will not sustain the Philippines’ Covid-19 response. He observed, “hospitals in the country began downsizing operations, not because of lack of facilities, but rather because of lack of health care workers.” (Alibubud, 2022)

Agence France-Presse (2021) reports the alarming plight of nurses experiencing burn out in the midst of the unprecedented rise COVID-19 cases in 2021, which ultimately led most of them to quit nursing. The article notes that the nursing service in most hospitals were already “dangerously understaffed even before the pandemic.” (Agence France-Presse, 2021)

Filipino Nurses United President, Maristela Abenojar, attributes such “chronic understaffing” to inadequate salaries of Filipino nurses. On paper, an entry-level nurse in a private hospital is entitled to earn Salary Grade 15, which is roughly Php 33,575.00 (US$ 670.00) per month. However, according to Abenojar, in reality, there are still nurses in the public hospitals who are employed on short-term contracts, earning Php 22,000.00 per month with no benefits such as statutorily-mandated hazard pay. (Agence France-Presse, 2021)

During the COVID-19 pandemic, overseas recruitment of nurse became widespread and aggressive. While reforms in the nursing policies are seen in increments, the circumstances beg the question whether our government has done enough to retain our pool of nurses and instill in them a sense of nationalism that would make them stay.

The twenty year saga for nurse’s equitable wages

We cannot blame Filipino nurses if they have their a strong desire to migrate. Afterall, they have been fighting for 20 years for government to hear their call to implement the statutory wage under Republic Act (RA) No. 9173.

In order to enhance the general welfare, commitment to service and professionalism of nurses, the minimum base pay of nurses working in the public health institutions shall not be lower than salary grade (SG) 15 prescribed under Republic Act No. 6758, otherwise known as the “Compensation and Classification Act of 1989”: Provided, That for nurses working in local government units, adjustments to their salaries shall be in accordance with Section 10 of the said law.

This provision on minimum base pay of entry level nurse in public health institutions incorporated the prevailing Compensation and Classification Act of 1989 or RA 6758. Under Section 9,in relation to Section 7 of RA 6758, the minimum base pay of nurses was classified as SG 10 or Php 3,102.00 (1st Step) to Php 3,325.00 (8th Step) prior to the effectivity of RA 9173.

Section 32 of RA 9173, thus, upgraded the salary grade for entry level nurses in public health institutions for SG 10 to SG 15 (Php 4,418.00 to Php 4,737). On 28 July 2008, the Congress approved Joint Resolution (JR)No. 4 (Salary Standardization Law III) authorizing the President to Modify the Compensation and Position Classification System of Civilian Personnel and Base Pay Schedule of Military and Uniformed Personnel in the Government, and For Other Purposes.” Under Section Item 3 (a) of JR No. 4, SG 15 was equivalent to Php 24,887 to Php 26,868. However, JR No. 4 expressly repealed RA 9173.

On 17 June 2009, President Macapagal-Arroyo approved JR No. 4 and issued Executive Order (EO) No. 811 implementing JR No. 4. Section 6 of Executive Order No. 811, downgraded the SG assignment for entry level nurses from SG 15 as provided under Section 32 of RA 9173 to SG 11 (Php 18,549.00 to Php 19,887.00).

On 8 October 2019, the Supreme Court step its foot against the downgrading of the pay grade of entry level nurses in public health institutions from SG 15 to SG 11 through a mere Joint Resolution and Executive Order implementing the same in the case of Ang Nars Party-List v. Executive Secretary, G.R. No. 215746, October 8, 2019.

In this case, the Supreme Court clarified that a JR is not a law or a statute, thus, it was held that it cannot repeal the provision of RA 9173:

Under Section 26 (2), Article VI of the 1987 Constitution, only a bill can be enacted into law after following certain requirements expressly prescribed under the Constitution. A joint resolution is not a bill, and its passage does not enact the joint resolution into a law even if it follows the requirements expressly prescribed in the Constitution for enacting a bill into a law.

xxx xxx xxx

A bill is, of course, vastly different form a joint resolution. First, a bill to be approved by Congress must pass three (3) readings on separate days. The can be no deviation from this requirement, unless the President certifies that the bull as urgent. In contrast, Congress can approve a joint resolution in one, two or three readings, on the same day or on separate days, depending on the rules of procedure that the Senate or the House may, at their sole discretion, adopt.

Second, the Constitution requires that before a bill is approved, printed copies of the bill in its final form must be distributed to the Members of the Senate and House three days before its passage. There can be no deviation from this requirement, unless the President certifies the bill as urgent. In contrast, a joint resolution can be approved on the same day, or several days after, the final printed copies are distributed to the Members of the Senate and the House, depending on the rules of procedure that the Senate or the House may, at their sole discretion, adopt.

Third, a bill approved by Congress must be presented to the President for his signature or veto. There can be no deviation from this. In contrast, a joint resolution approved by Congress does not require the President’s signature or veto, unless the Senate or the House, in their respective rules of procedure, at their sole discretion, requires such presentation to the President.

Fourth, upon the last reading of a bill, no amendment is allowed, and voting on the bill shall immediately be taken. There can be no deviation from this requirement. In contrast, there is no such requirement in approving a joint resolution, unless the Senate and the House, at their sole discretion, adopt such requirement.

Fifth, the procedure in enacting a bill into law is permanently fixed as prescribed by the Constitution and cannot be amended by any act of Congress. In contrast, the procedure for passing a joint resolution is adopted separately by the Senate or the House, respectively.

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Again, this amendment or repeal cannot be affected through a mere joint resolution. Moreover, EO No. 811, not being a law, cannot also amend or repeal Section 32 of RA 9173. There can be no dispute whatsoever that EO No. 811, a mere presidential issuance, cannot amend or repeal a prior law.

Notwithstanding this pronouncement on the rightful salary of government nurses, the Philippine Supreme Court said that it did not have the mandate to compel the DOH and Department of Budget and Management (DBM) to implement Section 32 of RA No. 9173 due to the following reasons:

Despite the continued existence and validity of Section 32 of RA No. 9173, the Supreme Court cannot grant petitioner’s prayer to compel respondents to implement Section 32 of RA No. 9173, an implementation that requires the appropriation of public funds through a law. The power of the purse belongs exclusively to Congress under Sections 24 and 25, Article VI of the 1987 Constitution.

Section 29(1), Article VI of the 1987 Constitution mandates: “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” The power to appropriate public funds can only be made through law, and the power to enact a law is a purely legislative power. The court cannot compel Congress to fund Section 32 of RA 9173 as the power to appropriate makes the necessary appropriation through a law, Section 32 of RA 9173 will remain an unfunded law, a situation that applies to other laws.

Petitioner may lobby with the Congress to fund through a law the implementation of Section 32 of RA 9173. Congress may also review RA No. 6758 and pass amendatory laws to reconcile the distortions in the salary grades of all government employees. The Supreme Court, however, cannot dictate upon Congress which, under the separation of powers, has the sole Constitutional power of the purse – the exclusive power to appropriate public funds.

Factors for Filipino Nurses’ strong intention to migrate

Many developing countries grapple with migration of nursing work force. (Zolot, 2019) Buchan & Calman (2004) attribute the spike interest international nurse migration due to shortfall in the nursing workforce worldwide. While the World Health Organization (WHO, 2020) notes as marginal increase in the global nursing workforce from 2013 to 2018 by 4.7 Million, such increase fails to keep up with population increase, demands of universal healthcare and sustainable development goals. (Elmaco, 2022)

Researchers from the Institute for Immigration Research of George Mason University, noting that 13 to 15 percent of working nurses in the United States are foreign-born, place emphasis on the crucial role of immigrant nurses in supplying adequate nursing workforce to keep a stable healthcare delivery system. (Hohn, Lowry, Fernández-Pena & Witte 2016)

The trend in recruitment of nurse continues to rise. Years prior to the COVID-19 pandemic, Hohn, Lowry, Fernández-Pena & Witte (2016) already predicted a shortfall of more than a million new and replacement nurse by 2022. According to the US Bureau of Labor Statistics, the US healthcare market will need around 372,000 additional registered nurses by 2028. (Smiley, 2020).

In her Empire of Care: Nursing and Migration in Filipino American History, Dr. Catherine Choy traced the migration of Filipino nurses in the US which led to the Philippines being dubbed as “the leading exporter of nurses in the world.” The 1907, when the Philippines was still annexed to the US, saw the growth spurt of nursing schools under Americanized medical training curriculum aiming to employ Filipino nurses for the US market. (Choy, 2003) A century hence later, the Philippines remain its standing as the “the leading exporter of nurses in the world” (Lorenzo, Galvez-Tan, Icamina, & Javier, 2007).

The Philippine Statistics Authority records that 70,000 Filipinos were employed abroad from 2008 to 2012 (McLaughlin, 2020). According to the Washington-based Migration Policy Institute, there were 145,800 Filipino registered nurses employed in the US. (Batalova, 2020)

Meanwhile, on the other end of the Atlantic ocean, UK National Health Service employed roughly 18,500 Filipinos in 2020. In the Asian hemisphere, Japan had been actively recruiting Filipino nurses to care in for its elderly (Elmaco, 2022) On the other, in the middle east, there is a huge population of Filipino nurses recruited to man its healthcare system. (McLaughlin, 2020). Spain, the Philippine’s first and longest colonizer, fast-tracked the hiring of Filipino nurses to assuage its strained healthcare system especially during the COVID-19 pandemic. (Aboy, 2020).

The promise of the “opportunity to change their lives for the better and to secure the quality of life they aspire” in a more advance society drives many nurses. (Xu and Zhang, 2005) This explains why many nurses consider moving and working overseas as one of their future goals. (Elmaco, 2022)

Prior to the COVID-19 pandemic, the emigration of Filipino nurse burgeoned to at least 71 percent from 2012 to 2016. (Elmaco, 2002; citing Lopez and Jiao, 2020) As shown in the estimates of the Philippine Overseas Employment Administration (POEA) and the Commission on Higher Education (CHED), the Philippines is produces around 26,000 licensed nurses annually from 2012 to 2016, however, an estimated 18,500 emigrated annually. (Lopez and Jiao, 2020)

Elmaco (2022) cautioned that these figures may be inaccurate as may Filipino licensed nurses leave the Philippines unofficially owing to the practice of direct recruitment and departure on the basis immigrant visas which are not reflected in the Philippines’ international employment estimates. Pang, Lansang and Haines (2002) opined that mobility estimates of the Philippine government ought to be treated with caution.

The Philippines produced 20,000 graduates per year since 1999 under 233 nursing schools. (Corcega et al., 2002) However, retention and integration of this nurses in the country’s healthcare system appears to be the government’s least concern. Corcega et al (2002) noted that the Philippines’ strategy for healthcare migration involved actively training a surplus of registered nurses that cannot be absorbed by the local market for the international market. Building a nursing workforce for export to boost the country’s economy through foreign remittances remained a predominant government policy strategy. (Ortiga, 2017) Clearly, as in other countries that supply nursing workforce to the world, the Philippine government support the migration of its nursing workforce is a widely accepted policy. (Dussault, Buchan and Craveiro, 2016).

For a country that boast itself as one of the world’s largest producers of nurses, the Philippine’s nurse staffing ratio, however, is inadequate to support the needs of its burgeoning population. (UPPI and DRDF, 2020) The Private Hospitals Association of the Philippines reported a shortfall of around 23,000 nurses (Maru, 2020).

WHO’s Global Code of Practice on the International Recruitment of Health Personnel looks down on the recruitment of health personnel from countries that experience shortage (WHO, 2010) However, recruitment of Filipino nurses for overseas employment became more rampant amidst the pandemic. From personal experience, the proponent of this study saw offers of foreign recruiters that are irresistible.

According to a study, the Philippines is “ill-placed to encourage” deployment of Filipino nurses. (Elmaco, 2022) The International Council of Nurses, in a study, concluded that the “the local health system in the Philippines needs to support the growth of nursing as a profession and to address the dilemmas present with regard to work environments and pay.” (Buchan, 2020). However, the economic realities confronting Filipino nurses in the Philippines cannot stop them from migrating for greener pastures.

The study of Elmaco (2022) makes a strong argument that the Philippines’s nursing migration experience are affected by push and pull factor. The ‘push’ factors that encourage nurses to leave their home countries, according to the International Centre on Nurse Migration, including limited access to educational and career opportunities, low pay, a lack of resources, limited social benefits, political instability and the absence of safe and secure conditions. (Li, Li and Nie, 2014).

Meanwhile, the ‘pull’ factors that gravitate nurse to developed countries include better “working conditions, job security and advancement, avenues to improve skills, and travel opportunities.” (Aiken et al., 2004).

In the three decades, Philippine society saw the saga of Filipino nursing working public hospitals and government office fighting for a decent wage. It took decade from 1991 for Filipino nurses in the public sector to secure a statutory minimum wage of Salary Grade 15 through the enactment of RA 9173 in 2002. This was however a phyrric victory as it took the government 20 years to implement through the Supreme Court’s Ang Nars ruling. The legal battle for this right to be recognized and finally implemented was uphill and full of heartbreaks. “Filipino nurses public hospitals and government offices had to campaign for almost two decades before they secured a pay increase required by law.” (de Vera, 2020)

Perhaps the pandemic’s silver lining for Filipino nurses is that during the height of the pandemic Budget Circular No. 2020-4 (Department of Budget and Management, 2020) was released to enforce Section 32 of RA 9173 only in July 2020. Nurses finally enjoyed a monthly salary equivalent to t PHP 28,890 (USD 580) to PHP 33,423 (around USD 671) in state-run health institutions.

Will the enforcement Section 32 of RA 9173 keep our Filipino nurses from migrating? With the rising trend of overseas recruitment, Philippine government needs to act fast to prevent the pool of its talented nurses from hemorrhaging.