Dear PAO,
I am a victim of “plastic surgery gone wrong.” After the surgery, my face became permanently asymmetrical and swollen. When I confronted the head plastic surgeon, he argued that his assistant made a mistake in administering the proper dosage of the medicine required during the surgery. However, since I directly transacted and conferred with this head surgeon before, during, and after the surgery, I want to implead him in the lawsuit. Can I file a lawsuit against him?
Paula
Dear Paula,
Yes, a lawsuit against the head plastic surgeon may be meritorious, notwithstanding the fact that it was his assistant who was directly negligent during the surgery.
In Dr. Milagros L. Cantre v. Sps. Go and Go, GR 160889, April 27, 2007, penned by Associate Justice Leonardo Quisumbing, the Supreme Court explained that the head surgeon or the surgeon in charge of an operation is liable for the negligence of his/her assistants, saying:
“In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an injury to justify a presumption of negligence on the part of the person who controls the instrument causing the injury, provided that the following requisites concur:
“1. The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;
“2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and
“3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.
“As to the first requirement, the gaping wound on Nora’s arm is certainly not an ordinary occurrence in the act of delivering a baby, far removed as the arm is from the organs involved in the process of giving birth. Such injury could not have happened unless negligence had set in somewhere.
“Second, whether the injury was caused by the droplight or by the blood pressure cuff is of no moment. Both instruments are deemed within the exclusive control of the physician in charge under the ‘captain of the ship’ doctrine. This doctrine holds the surgeon in charge of an operation liable for the negligence of his assistants during the time when those assistants are under the surgeon’s control. In this particular case, it can be logically inferred that petitioner, the senior consultant in charge during the delivery of Nora’s baby, exercised control over the assistants assigned to both the use of the droplight and the taking of Nora’s blood pressure. Hence, the use of the droplight and the blood pressure cuff is also within petitioner’s exclusive control.”
Thus, as the head surgeon, your doctor may be held liable not only for his own negligence, but also for the negligence of his assistants during the surgery or when such assistants were under his professional control. As the proverbial “captain of the ship,” the head surgeon may be impleaded and held directly liable for the medical malpractice or negligence committed by the assistants he is supervising.
We hope that we were able to answer your queries. This advice was solely based on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.
Thank you for your continued trust and support.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net
