Li vs Soliman (GR No. 165279 June 7, 2011)

Li vs Spouses Soliman
GR No. 165279 June 7, 2011

Facts: On July 7, 1993, respondents 11 year old daughter, Angelica Soliman underwent a biopsy of the mass located in her lower extremity at the St. Lukes Medical Center (SLMC). Results showed that Angelica was suffering from osteosaucoma, ostiobiostic type, a high-grade (highly malignant) cancer of the bone which usually affects teenage children. Following this diagnosis, Angelica’s right leg was amputated by Dr. Tamayo in order to remove the tumor. As a adjuvant treatment to eliminate any remaining cancer cells, and hence minimizing the chances of recurrence and prevent the decease from spreading to other parts of the patient’s body, chemotherapy was suggested by Dr. Tamayo and referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.

On July 23, 1993, petitioner saw the respondents at the hospital after Angelica’s surgery and discussed with them Angelica’s condition. Petitioner told respondents that Angelica should be given 2-3 weeks to recover from the operation before starting the chemotherapy. Respondents were apprehensive due to financial constraints as Reynaldo earns only from P70,000-150,000 a year from his jewelry and watching repair business. Petitioner, however, assured them not to worry about her professional fee and told them to just save up for medicines to be used.

As the chemotherapy session started, day by day, Angelica experience worsening condition and other physical effect on the body such as discoloration, nausea, and vomiting.

Petitioner claimed, that she explained to respondents that even when a tumor is removed, there are still small lesions undetectable to the naked eye and that adjuvant chemotherapy is needed to clean out the small lesions in order to lessen the chance of cancer to recur. She did not give the respondents any assurance that chemotherapy will cure Angelica’s cancer. During these consultations with respondents, she explained the following side effects of chemotherapy treatment to respondents: 1.) Falling hair; 2.) nausea and vomiting; 3.) loss of appetite; 4.) low count of WBC, RBC, and platelets; 5.) possible sterility due to the effects on Angelica’s ovary; 6.) Damage to kidney and heart; 7.) darkening of the skin especially when exposed to sunlight. She actually talked to the respondents four times, once at the hospital after the surgery, twice at her clinic and fourth when Angelica’s mother called her through long distance. This was disputed by respondents who countered that petitioner gave them assurance that there is 95% chance of healing for Angelica if she undergoes chemotherapy and that the only side effects were nausea, vomiting and hair loss. Those were the only side effects of chemotherapy mentioned by petitioner.

Issue: Whether or not petitioner committed medical malpractice.

Held: No. The type of lawsuit which has been called medical malpractice or more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such claim, a patient must prove that a health care provider in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done or that he or she did something that a reasonably health care provider would not have done; and that failure or action caused injury to the patient.

Medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians stems from the former’s realization that the latter possess unusual technical skills which layman in most instances are incapable of intelligently evaluating, hence the indispensability of expert testimonies.

The doctrine of informed consent within the context of physician-patient relationships goes as far back into english common law. As early as 1767, doctors were charged with the tort of battery if they have not gained the consent of their patients prior to performing a surgery or procedure. In the United States, the seminal case was Schoendorff vs Society of New York Hospital which involved unwanted treatment performed by a doctor. Justice Bejamin Cardozo oft-quoted opinion upheld the basic right of a patient to give consent to any medical procedure or treatment; every human being of adult year and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages. From a purely ethical norm, informed consent evolved into a general principle of law that a physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risk of injury might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for her own welfare and faced with a choice of undergoing the proposed treatment, as alternative treatment, or none at all, may intelligently exercise his judgement by reasonably balancing the probable risk against the probable benefits.

There are four essential elements a plaintiff must proved in a malpractice action based upon the doctrine of informed consent: 1.) the physician had a duty to disclose material risks; 2.) he failed to disclose or inadequately disclosed those risks; 3.) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and 4.) plaintiff was injured by the proposed treatment. The gravamen in an informed consent requires the plaintiff to point to significant undisclosed information relating to the treatment which could have altered her decision to undergo it.

Examining the evidence, we hold that there was adequate disclosure of material risks inherent in chemotherapy procedure performed with the consent of Angelica’s parents. Respondents could not have been unaware in the course of initial treatment and amputation of Angelica’s lower extremity that her immune system was already weak on  account of the malignant tumor in her knee. When petitioner informed the respondents beforehand of the side effects of chemotherapy which includes lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart damage and skin darkening, there is reasonable expectation on the part of the doctor that the respondents understood very well that the severity of these side effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease itself, each patients reaction to the chemical agents even with pre-treatment laboratory tests cannot be precisely determined by the physician. That death can possibly result from complications of the treatment or the underlying cancer itself, immediately or sometime after the administration of chemotherapy drugs, is a risk that cannot be ruled out, as with most other major medical procedures, but such conclusion can be reasonably drawn from the general side effects of chemotherapy already disclosed.

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