LEGAL ADVICE : Payment of Franchise Dues

What is the legal implication for franchisees who do not pay dues despite frequent follow-ups and reminders on arrears?

A delinquent Franchisee who fails to settle overdue accounts despite notices and demands maybe considered by the Franchisor to have terminated her contract with the latter as per provision 20 and 20.1 of the Franchise Agreement. This is a course without prejudice to the filing of a civil case for collection and damages within the courts of law by the Franchisor against the Franchisee.

What does the law say about under declarations of reports in a franchise system like not stating the actual figures of sales or deliveries, for example?

Under-declarations by either the Franchisor or the Franchisee for the purpose of evading payment of proper taxes is of course illegal and unlawful as this would amount to tax evasion and may be subject to criminal prosecution.

Can a Franchisor demand payables from a Franchisee who claims bankruptcy?

Yes. Generally, the Franchisor may demand for payables or accounts due and demandable from a franchisee who has been declared bankrupt by the courts. However, the Franchisor will have to litigate his cause in the courts while the bankruptcy proceedings is being heard and it is the court that will ultimately decide the manner and priority of payments among all creditors party to the case.

Can a Franchisor demand payables from a Franchisee who claims there were no statements of accounts received?

Yes. This is very clear and evident as per Provision 23 of the Franchise Agreement which states, to wit:

Non-Waiver

The failure of WPFI to require from Franchisee strict compliance with the terms and conditions of this Agreement shall not operate as a waiver by WPFI or its designated representative of any right under this Agreement to enforce compliance by the Franchisee with the terms and conditions or for WPFI to seek remedy or appropriate legal relief for any breach of this Agreement.

Hence, the Franchisee is obliged to pay all account s due and payable to the Franchisor even without any demand or notice as such obligation is incumbent and inherent as per the contract / agreement between the Franchisor and Franchisee.

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LEGAL ADVICE : Death during Delivery

What should a midwife do when a child / mother dies during delivery?

If the mother or the child unfortunately dies during delivery, it is incumbent upon the midwife who attended to the delivery (if there are no other physicians / health workers) to state the probable cause of death and sign the death certificate. Remember that the death certificate (just like SSS, GSIS, Philhealth cards and the birth certificate) is a public document that must be filled up honestly, accurately and completely.

It may be wise and prudent that if the cause of death is undetermined or doubtful, to advise the family members of the deceased that an autopsy be performed to determine the true cause of death.

What should a midwife do if she is threatened with a court suit or is actually sued?

First, try to keep calm and explain to relatives of the patient what could have probably happened. If they try to threaten you with physical harm, then you may report it to your Barangay or to the police authorities.

What to do if and when you receive a subpoena, either for a:

• Criminal case (usually from the National Bureau of Investigation or the Prosecutor’s Office),

• Civil case (from the Metropolitan or Municipal / Regional Trial Courts) or

• Administrative case (from the PRC, Philhealth or DOH)?

Please take note that under the Midwifery Act of 1991, midwives can only attend to normal pregnancy so much so that should there be any abnormal manifestation on the part of the patient or from the fetus during the pre-natal period, the midwife is supposed to refer the patient to a physician or to a medical clinic / hospital. However, should the emergency occur during or after delivery, the midwife should immediately institute first aid or resuscitative measures within her competency prior to transfer to a better equipped medical facility.

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LEGAL ADVICE : Know the Law

"Ignorance of the law excuses no one from compliance therewith".

As professionals and as cornerstones in the nation’s health care delivery system, midwives should possess knowledge of what laws govern their profession. In the event that violations are committed, not knowing the law would even be an aggravating circumstance, for midwives are professionals, not ordinary laymen who may not have come across such laws.

The law that governs the midwifery profession is RA 7382, better known as the Midwifery Act of 1992. As professionals, midwives have three kinds of liabilities, namely: Criminal, Civil, and Administrative.

Criminal liability occurs when an offence falling under the provisions of the Revised Penal Code and Special Criminal Law is committed. Once convicted, the penalty that could be imposed is imprisonment, payment of fines and damages, disqualification to hold public office, and revocation of license to practice one’s profession if it involves moral turpitude, a crime that is inherently immoral. The quantum of proof required for conviction is guilt beyond reasonable doubt.

On the other hand, the evidence required in a Civil case is only preponderance of evidence. A purely Civil case may not involve any prison term or fine but there is an order from the court to pay damages for the prevailing litigant namely moral, actual, nominal, exemplary, and liquidated damages. Civil cases involve incurring violation of the provisions of the New Civil Code, including the Family Code.

The third kind of liability is Administrative. This is not for violation of the law but rather for violation of the Profession’s code of ethics. And unlike in criminal and civil cases where judges/lawyers decide the case, one’s own peers or colleagues in the profession decide administrative complaints. The quantum of evidence that is required is only substantial evidence, much lower than that in criminal and civil cases. Immorality, bad faith in dealing with patients and colleagues, charging exorbitant fees are all administrative / ethical in nature.

It is in this context that we are inviting our readers to write and send to us queries on legal and ethical matters and issues, which we will try to answer and discuss in our forthcoming issues.

For questions on legal or ethical matters or to send feedback regarding this column, please email us at legal@wfmc.com.ph.