THE PHYSICIAN AS AN EXPERT WITNESS

An EXPERT WITNESS is one who has the capacity to draw inference from the facts which a court would not be competent to draw.

To warrant the use of expert testimony, two elements are required: The subject of inference must be so distinctly related to some science, profession, business or occupation as to be beyond the knowledge of average layman; and The witness must have such skill, knowledge or experience in that field or calling as to make it appear that his Opinion or reference will probably aid the trier of facts in his search for the truth.An OPINION may be defined as the belief, judgment, inference, or sentiment formed by the mind with regard to things, person or events perceived by a witness. An opinion in the legal sense is something more than mere speculation or conjecture.

Sec. 48, Rule 130, Rules of CourtGeneral rule - The opinion of a witness is not admissible, except as indicated by the Rules.Sec. 49, Rule 130, Rules of CourtOpinion of Expert Witness - The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence.Sec. 50, Rule 130, Rules of CourtOpinion of Ordinary Witness The opinion of a witness for which proper basis is given, may be received in evidence regarding the identity of a person about whom he has adequate knowledge; A handwriting with which he has sufficient familiarity; and The mental sanity of a person with whom he is sufficiently acquainted.

The witness may also testify on his impressions of emotion, behavior, condition or appearance of a person.

Distinctions between an Ordinary and Expert Witness

An ORDINARY witness can only testify as a general rule, on those things which he has perceived with his own organs of perception, while an EXPERT witness may render his opinion, inference, conclusion or deduction on what he and others perceived; An ORDINARY witness need not be skilled on the line he is testifying but an EXPERT witness must be skilled on the art, science or trade he is testifying.

ATTENDANCE OF A MEDICAL WITNESS IN COURT

Sec. 1, Rule 21, Rules of Court Subpoena is a process directed to a person requiring him to attend and to testify at the hearing or the trial of an action, or at any investigation conducted by competent authority, or for the taking of his deposition. It may also require him to bring with him books, documents, or other things under his control, in which case it is called subpoena duces tecum.Kinds of Subpoena

Subpoena ad testificandumA process requiring a person to appear before a trial or hearing of an action or investigation conducted under our laws or for the taking of a deposition at a certain definite date, time and place to testify on some material issues. Subpoena duces tecumA process which requires a person to produce at the trial some documents or papers which are under his control or possession that are pertinent to the issues of his controversy at a certain date, time and place. Subpoena duces tecum and testificandum

N.B.Failure to comply with a subpoena without justifiable reason is a ground for reprimand, suspension or revocation of the certificate of registration.

Sec. 2, Art. III, Code of Medical Ethics It is the duty of every physician, when called upon by the judicial authorities, to assist in the administration of justice on matters which are medico-legal in character.Sec. 24, Art. III, Medical Act of 1959 as amended xxx..(12) Violation of any of the provisions of the Code of Medical Ethicsshall be sufficient ground for reprimanding, or for suspending or revoking a certificate of registration as physicianxxx.REFUSAL OF A PUBLIC OFFICER TO GIVE ASSISTANCE IN THE ADMINISTRATION OF JUSTICE IS PENALIZED BY LAWArt. 233, Revised Penal Code The penalties of arresto mayorxxx, shall be imposed upon a public officer who, upon demand from a competent authority, shall fail to lend his cooperation towards the administration of justice or other public service, if such failure shall result in serious damage to the public interest, or to a third party.

When a Medical Witness Need Not Comply With a Subpoena The Court issuing the subpoena has no jurisdiction over the subject matter of the case; When the place of residence is more than 100 kilometers from the court issuing the subpoena. Sec. 10, Art.21, Rules of Court The provisions of sections 8 and 9 0f this rule (Compelling attendance and Contempt) shall not apply to a witness who resides more than 100 km from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained. When the patient is attending to an emergency and no one is available and competent enough to be his substitute to attend to such emergency. On account of illness incapacitating him to attend.

Rights and Obligations of a WitnessSec. 3, Rule 132, Rules of Court A witness must answer questions, although his answers may tend to establish a claim against him. However, it is the right of a witness: To be protected from irrelevant, improper questions and from harsh or insulting demeanor; Not to be detained longer than the interests of justice require; Not to be examined except only as to matters pertinent to the issue; Not to give an answer which will tend to subject him to a penalty for an offense unless otherwise provided by law; or Not to give an answer which will tend to degrade his reputation, unless it be to the very fact at issue or to a fact from which the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction of an offense.

Instances when the medical witness may not be compelled to answer questions in court

It will tend to subject him to punishment for an offense; Incriminatory questions may subject the witness to punishment or disclosure of which would form a necessary and essential part of a crime. Sec. 17, Art. III, Phil Constitution No person shall be compelled to be witness against himself. It will degrade his character, except when such degradation of character is the very fact at issue; A medical witness may refer to memoranda, notes or other pertinent papers.

Impeachment of Medical Testimony By contradicting testimonies by others of his own class or by any other competent witnesses; By showing that the medical witness is interested in the outcome of the case or bias; By an inconsistent statement made at another time; By not expressing the opinion testified to at the time when such expression might reasonably had been expected; and When the scientific treatise which he relies on as the basis of his opinion does not sustain him.

Effects of False Testimony

1. Art. 180, Revised Penal Code, False testimony against a defendant: Any person who shall give false testimony against the defendant in any criminal case shall suffer:i. The penalty of reclusion temporal, if the defendant in said case shall have been sentenced to death;ii. The penalty of prision mayor, if the defendant shall have been sentenced to reclusion temporal or perpetua;iii. The penalty of prision correccional, if the defendant shall have been sentenced to any other afflictive penalty; andiv. The penalty of arresto mayor, if the defendant shall have been sentenced to a correccional penalty or a fine, or shall have been acquitted.

2. Art. 181, Revised Penal Code, False Testimony favorable to a defendant:Any person who shall give false testimony in favor of the defendant in a criminal case, shall suffer the penalties of arresto mayor in its maximum period to prision correccional.xxxif the prosecution is for felony punishable by an afflictive penalty,..xxx.

3. Art. 182, Revised Penal Code, False Testimony in Civil Cases:Any person found guilty of false testimony in civil cases shall suffer the penalty of prision correccionalxxx if the amount in controversy shall exceeds 5,000 pesos xxx.

4. Art. 183, Revised Penal Code, False testimony in other cases and perjury in solemn affirmation:The penalty of arresto mayor xxx, knowingly making untruthful statements and not being included in the provisions of the next preceding articles, shall testify under oath, or make an affidavit, upon ant material before a competent person authorized to administer an oath in cases in which the law so requires. Any person, who in case of a solemn affirmation made in lieu of an oath, shall commit any of the falsehoods mentioned in this and the three preceding articles of this section, shall suffer the respective penalties provided therein.

Principle of Falsus in Uno, Falsu in OmnibusWhen a witness falsified the truth on one point, his testimony on other points may be disregarded, unless corroborated by other unimpeached evidences.

Requisites: That the witness deliberately or intentionally falsified the truth; That the other portions of the testimony to be discredited, are not corroborated by circumstances or other unimpeached evidence; The false testimony must be on material point.

When it is not applicable When there are sufficient corroborations in many grounds of the testimony; When the mistake was not in a very material point; When the error did not arise from the apparent desire to prevent the truth, but from innocent mistakes and the desire of the witness to exculpate himself though not completely.

CONTEMPT

Sec. 9, Rule 21, Rules of CourtContempt Failure by any person without adequate cause to obey a subpoena served upon him shall be deemed a contempt of court from which the subpoena is issued. If the subpoena was not issued by a court, the disobedience thereto shall be punished in accordance with the applicable law or Rule.

Sec. 1, Rule 71, Rules of CourtDirect Contempt Punished Summarily A person guilty of misbehavior in the presence of or so near a court as to obstruct or interrupt the proceedings before the same, including disrespect toward the court, offensive personalities toward others, refusal to be sworn or to answer as witness, or to subscribe an affidavit or deposition when lawfully required to do so, may be summarily adjudged in contempt by such courtxxx.

Sec. 3, Rule 71, Rules of CourtIndirect contempt To Be Punished after Charged and Hearing After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such periodxxx., a person guilty of any of the following acts may be punished for indirect contempt: Misbehavior of an officer of a court in the performance of his official duties or in his official transactions; Disobedience of or resistance to a lawful writ, process, order, or judgment of a court.; Any abuse of or any unlawful interference with the process or proceedings of a court not constituting direct contempt; Any improper conduct tending directly or indirectly to impede, obstruct, or degrade the administration of justice; Assuming to be an attorney..; The rescue of a person or property in the custody of an officer by virtue of an order.

But nothing in this section shall be construed as to prevent the court from issuing process to bring the respondent to the court, or from holding him in custody pending such proceedings.

Hypothetical questions propounded to a medical witness A physician may be requested to draw his conclusions or opinions from asset of facts which may or may not known to him. He must answer the question provided those set of facts has the following requisites: It must be framed as to fairly represent those facts and not give a situation a false color by the way the statement was given; The hypothetical question is based upon facts which are in evidence and assumed facts within the limit of evidence; The hypothetical question must not be unfair or misleading. Where the expert is familiar with the facts by personal observation and so testifies, he may be asked directly for his opinion, without stating the facts upon which it is based. When the expert is not familiar with the facts upon which it is based, they must be stated to him hypothetically, and upon the assumption of the facts so stated, he must base his opinion. Rationale on the Corroborative Probative Value of Medical Expert Testimonies The testimony however impartial, may unconsciously favor one of the party litigants. The human mind is not absolutely impossible; The opinion of the medical expert is based on experience and treatise or books which may be divergent from the observation of others CODE OF MEDICAL ETHICS

Art. I General Principles Primary objective of the practice of medicine is SERVICE to mankind. (friend of man)

Art. II Duties of Physicians to their Patients To attend to his patients faithfully and conscientiously. Free to choose whom to serve. Immediate action in cases of emergency. Proper consultation and referral. He must exercise good faith and strict honesty in expressing his opinion. Sacred trust of information Practice of medicine is not a business.

Art. III Duties of Physicians to the Community Cooperation with proper authorities, sanitation and health. To assist in the administration of justice. To protect the public from charlatans. No solicitation and extravagant and false advertisements. Gratuitous services to the indigents. Art. IV Duties of Physicians to their Colleagues and to the Profession Gratuitous services to a colleague. Proper consultation and referral. Uphold the honor and dignity of the profession. Observe punctuality. Observe utmost caution, tact and prudence as regards professional conduct of another physician. To refrain from making unfair and unwarranted criticisms of other physicians. To keep abreast to the advancements of medical science and contribute to its progress. He should be diligent, upright, sober, modest and well-versed in both the science and art of medicine. No advertising by means of untruthful or improbable statements in newspapers or exaggerated announcements. -Should expose without fear or favor, before the proper medical or legal tribunals corrupt and dishonest conduct of members of the profession. Should aid in safeguarding against the admission of those who are unfit or unqualified because of deficiency in moral character.

Art. V Duties of Physicians to Allied Professionals To cooperate with and safeguard the interest, reputation and dignity of allied professional. Not to allow to be published any testimonial certifying the efficacy, value and superiority and recommendation of drugs. Non-payment of commissions to any person who refers cases to help him acquire patients.

Penal Provisions Violation of the provisions of this Code constitute unethical and unprofessional conduct and therefore a sufficient ground for the reprimand, suspension or revocation of the certificate of registration of the offending physician in accordance with the provisions of Sec. 24, par. 12 of the Medical Act of 1959.

RIGHT AGAINST SELF-INCRIMINATION

Sec. 17. Art. III, Philippine Constitution states that, No person shall be compelled to witness against himself. The right is available not only in criminal prosecutions but also in all other government proceedings, including civil actions and administrative or legislative investigations. It may be claimed not only by the accused but also by any witness to whom a question calling for an incriminating answer is addressed. In criminal actions, the accused may not be compelled to take the witness stand, on the reasonable assumption that the purpose of the interrogation will be to incriminate him. The same principle shall apply to the respondent in an administrative proceeding where the respondent may be subjected to sanctions of a penal character, such as cancellation of his license to practice medicine.(Pascual vs. Board of Medical Examiners, 28 SCRA 345).

Scope: The kernel of the right is not against all compulsion, but testimonial compulsion only. It is simply against the legal process of extracting from the lips of the accused an admission of his guilt. It does not apply where the evidence sought to be excluded is not an incriminating statement but an OBJECT EVIDENCE (eg. Fingerprinting, photographing, paraffin testing, PE). The prohibition extends to the compulsion for the production of documents, papers and chattels that may be used as evidence against the witness except where the State has the right to examine or inspect under the police power of the State. The right also protects the accused against any attempt to compel him to furnish a specimen of his handwriting in connection with a prosecution for falsification.