GEO. W.

DAYWALT, plaintiff-appellant,
vs.
LA CORPORACION DE LOS PADRES AGUSTINOS RECOLETOS, ET AL., defendantsappellees.
C. C. Cohn and Thos. D. Aitken for appellant.
Crossfield & O'Brien for appellee.
STREET, J.:
In the year 1902, Teodorica Endencia, an unmarried woman, resident in the Province of
Mindoro, executed a contract whereby she obligated herself to convey to Geo. W. Daywalt, a
tract of land situated in the barrio of Mangarin, municipality of Bulalacao, now San Jose, in
said province. It was agreed that a deed should be executed as soon as the title to the land
should be perfected by proceedings in the Court of Land Registration and a Torrens
certificate should be produced therefore in the name of Teodorica Endencia. A decree
recognizing the right of Teodorica as owner was entered in said court in August 1906, but the
Torrens certificate was not issued until later. The parties, however, met immediately upon the
entering of this decree and made a new contract with a view to carrying their original
agreement into effect. This new contract was executed in the form of a deed of conveyance
and bears date of August 16, 1906. The stipulated price was fixed at P4,000, and the area of
the land enclosed in the boundaries defined in the contract was stated to be 452 hectares
and a fraction.
The second contract was not immediately carried into effect for the reason that the Torrens
certificate was not yet obtainable and in fact said certificate was not issued until the period of
performance contemplated in the contract had expired. Accordingly, upon October 3, 1908,
the parties entered into still another agreement, superseding the old, by which Teodorica
Endencia agreed upon receiving the Torrens title to the land in question, to deliver the same
to the Hongkong and Shanghai Bank in Manila, to be forwarded to the Crocker National
Bank in San Francisco, where it was to be delivered to the plaintiff upon payment of a
balance of P3,100.
The Torrens certificate was in time issued to Teodorica Endencia, but in the course of the
proceedings relative to the registration of the land, it was found by official survey that the
area of the tract inclosed in the boundaries stated in the contract was about 1.248 hectares
of 452 hectares as stated in the contract. In view of this development Teodorica Endencia
became reluctant to transfer the whole tract to the purchaser, asserting that she never
intended to sell so large an amount of land and that she had been misinformed as to its area.
This attitude of hers led to litigation in which Daywalt finally succeeded, upon appeal to the
Supreme Court, in obtaining a decree for specific performance; and Teodorica Endencia was
ordered to convey the entire tract of land to Daywalt pursuant to the contract of October 3,
1908, which contract was declared to be in full force and effect. This decree appears to have
become finally effective in the early part of the year 1914. 1
The defendant, La Corporacion de los Padres Recoletos, is a religious corporation, with its
domicile in the city of Manila. Said corporation was formerly the owner of a large tract of
land, known as the San Jose Estate, on the island of Mindoro, which was sold to the
Government of the Philippine Islands in the year 1909. The same corporation was at this
time also the owner of another estate on the same island immediately adjacent to the land
which Teodorica Endencia had sold to Geo. W. Daywalt; and for many years the Recoletos
Fathers had maintained large herds of cattle on the farms referred to. Their representative,
charged with management of these farms, was father Isidoro Sanz, himself a members of
the order. Father Sanz had long been well acquainted with Teodorica Endencia and exerted
over her an influence and ascendency due to his religious character as well as to the
personal friendship which existed between them. Teodorica appears to be a woman of little
personal force, easily subject to influence, and upon all the important matters of business
was accustomed to seek, and was given, the advice of father Sanz and other members of
his order with whom she came in contact.
Father Sanz was fully aware of the existence of the contract of 1902 by which Teodorica
Endencia agreed to sell her land to the plaintiff as well as of the later important
developments connected with the history of that contract and the contract substituted
successively for it; and in particular Father Sanz, as well as other members of the defendant
corporation, knew of the existence of the contract of October 3, 1908, which, as we have
already seen finally fixed the rights of the parties to the property in question. When the
Torrens certificate was finally issued in 1909 in favor of Teodorica Endencia, she delivered it
for safekeeping to the defendant corporation, and it was then taken to Manila where it
remained in the custody and under the control of P. Juan Labarga the procurador and chief

official of the defendant corporation, until the deliver thereof to the plaintiff was made
compulsory by reason of the decree of the Supreme Court in 1914.
When the defendant corporation sold the San Jose Estate, it was necessary to bring the
cattle off of that property; and, in the first half of 1909, some 2,368 head were removed to the
estate of the corporation immediately adjacent to the property which the plaintiff had
purchased from Teodorica Endencia. As Teodorica still retained possession of said property
Father Sanz entered into an arrangement with her whereby large numbers of cattle
belonging to the defendant corporation were pastured upon said land during a period
extending from June 1, 1909, to May 1, 1914.
Under the first cause stated in the complaint in the present action the plaintiff seeks to
recover from the defendant corporation the sum of P24,000, as damages for the use
and occupation of the land in question by reason of the pasturing of cattle thereon
during the period stated. The trial court came to the conclusion that the defendant
corporation was liable for damages by reason of the use and occupation of the premises in
the manner stated; and fixed the amount to be recovered at P2,497. The plaintiff appealed
and has assigned error to this part of the judgment of the court below, insisting that damages
should have been awarded in a much larger sum and at least to the full extent of P24,000,
the amount claimed in the complaint.
As the defendant did not appeal, the property of allowing damages for the use and
occupation of the land to the extent o P2,497, the amount awarded, is not now in question an
the only thing here to be considered, in connection with this branch of the case, is whether
the damages allowed under this head should be increased. The trial court rightly ignored the
fact that the defendant corporation had paid Teodorica Endencia of ruse and occupation of
the same land during the period in question at the rate of P425 per annum, inasmuch as the
final decree of this court in the action for specific performance is conclusive against her right,
and as the defendant corporation had notice of the rights of the plaintiff under this contract of
purchase, it can not be permitted that the corporation should escape liability in this action by
proving payment of rent to a person other than the true owner.
With reference to the rate of which compensation should be estimated the trial court came to
the following conclusion:
As to the rate of the compensation, the plaintiff contends that the defendant
corporation maintained at leas one thousand head of cattle on the land and that the
pasturage was of the value of forty centavos per head monthly, or P4,800 annually,
for the whole tract. The court can not accept this view. It is rather improbable that
1,248 hectares of wild Mindoro land would furnish sufficient pasturage for one
thousand head of cattle during the entire year, and, considering the locality, the rate
of forty centavos per head monthly seems too high. The evidence shows that after
having recovered possession of the land the plaintiff rented it to the defendant
corporation for fifty centavos per hectares annually, the tenant to pay the taxes on
the land, and this appears to be a reasonable rent. There is no reason to suppose
that the land was worth more for grazing purposes during the period from 1909 to
1913, than it was at the later period. Upon this basis the plaintiff is entitled to
damages in the sum of p2,497, and is under no obligation to reimburse the
defendants for the land taxes paid by either of them during the period the land was
occupied by the defendant corporation. It may be mentioned in this connection that
the Lontok tract adjoining the land in question and containing over three thousand
hectares appears to have been leased for only P1,000 a year, plus the taxes.
From this it will be seen that the trial court estimated the rental value of the land for grazing
purposes at 50 centavos per hectare per annum, and roughly adopted the period of four
years as the time for which compensation at that rate should be made. As the court had
already found that the defendant was liable for these damages from June, 1, 1909, to May 1,
1914, or a period of four years and eleven months, there seems some ground for the
contention made in the appellant's first assignment of error that the court's computation was
erroneous, even accepting the rule upon which the damages were assessed, as it is
manifest that at the rate of 50 centavos per hectare per annum, the damages for four years
and eleven months would be P3,090.
Notwithstanding this circumstance, we are of the opinion that the damages assessed
are sufficient to compensate the plaintiff for the use and occupation of the land during
the whole time it was used. There is evidence in the record strongly tending to show that
the wrongful use of the land by the defendant was not continuous throughout the year but
was confined mostly to the reason when the forage obtainable on the land of the defendant
corporation was not sufficient to maintain its cattle, for which reason it became necessary to
allow them to go over to pasture on the land in question; and it is not clear that the whole of

the land was used for pasturage at any time. Considerations of this character probably led
the trial court to adopt four years as roughly being the period during which compensation
should be allowed. But whether this was advertently done or not, we see no sufficient
reason, in the uncertainty of the record with reference to the number of the cattle grazed and
the period when the land was used, for substituting our guess for the estimate made by the
trial court.
In the second cause of action stated in the complaint the plaintiff seeks to recover
from the defendant corporation the sum of P500,000, as damages, on the ground that
said corporation, for its own selfish purposes, unlawfully induced Teodorica Endencia
to refrain from the performance of her contract for the sale of the land in question and
to withhold delivery to the plaintiff of the Torrens title, and further, maliciously and
without reasonable cause, maintained her in her defense to the action of specific
performance which was finally decided in favor of the plaintiff in this court. The cause
of action here stated is based on liability derived from the wrongful interference of the
defendant in the performance of the contract between the plaintiff and Teodorica Endencia;
and the large damages laid in the complaint were, according to the proof submitted by the
plaintiff, incurred as a result of a combination of circumstances of the following nature: In
1911, it appears, the plaintiff, as the owner of the land which he had bought from Teodorica
Endencia entered into a contract (Exhibit C) with S. B. Wakefield, of San Francisco, for the
sale and disposal of said lands to a sugar growing and milling enterprise, the successful
launching of which depended on the ability of Daywalt to get possession of the land and the
Torrens certificate of title. In order to accomplish this end, the plaintiff returned to the
Philippine Islands, communicated his arrangement to the defendant,, and made repeated
efforts to secure the registered title for delivery in compliance with said agreement with
Wakefield. Teodorica Endencia seems to have yielded her consent to the consummation of
her contract, but the Torrens title was then in the possession of Padre Juan Labarga in
Manila, who refused to deliver the document. Teodorica also was in the end contract with the
plaintiff, with the result that the plaintiff was kept out of possession until the Wakefield project
for the establishment of a large sugar growing and milling enterprise fell through. In the light
of what has happened in recent years in the sugar industry, we feel justified in saying that the
project above referred to, if carried into effect, must inevitably have proved a great success.
The determination of the issue presented in this second cause of action requires a
consideration of two points. The first is whether a person who is not a party to a contract for
the sale of land makes himself liable for damages to the vendee, beyond the value of the use
and occupation, by colluding with the vendor and maintaining him in the effort to resist an
action for specific performance. The second is whether the damages which the plaintiff seeks
to recover under this head are too remote and speculative to be the subject of recovery.
As preliminary to a consideration of the first of these questions, we deem it well it dispose of
the contention that the members of the defendants corporation, in advising and prompting
Teodorica Endencia not to comply with the contract of sale, were actuated by improper and
malicious motives. The trial court found that this contention was not sustained,
observing that while it was true that the circumstances pointed to an entire sympathy
on the part of the defendant corporation with the efforts of Teodorica Endencia to
defeat the plaintiff's claim to the land, the fact that its officials may have advised her
not to carry the contract into effect would not constitute actionable interference with
such contract. It may be added that when one considers the hardship that the ultimate
performance of that contract entailed on the vendor, and the doubt in which the issue was
involved to the extent that the decision of the Court of the First Instance was unfavorable
to the plaintiff and the Supreme Court itself was divided the attitude of the defendant
corporation, as exhibited in the conduct of its procurador, Juan Labarga, and other members
of the order of the Recollect Fathers, is not difficult to understand. To our mind a fair
conclusion on this feature of the case is that father Juan Labarga and his associates
believed in good faith that the contract cold not be enforced and that Teodorica would
be wronged if it should be carried into effect. Any advice or assistance which they
may have given was, therefore, prompted by no mean or improper motive. It is not, in
our opinion, to be denied that Teodorica would have surrendered the documents of title and
given possession of the land but for the influence and promptings of members of the
defendants corporation. But we do not credit the idea that they were in any degree
influenced to the giving of such advice by the desire to secure to themselves the paltry
privilege of grazing their cattle upon the land in question to the prejudice of the just rights of
the plaintiff.
The attorney for the plaintiff maintains that, by interfering in the performance of the contract
in question and obstructing the plaintiff in his efforts to secure the certificate of tittle to the
land, the defendant corporation made itself a co-participant with Teodorica Endencia in the
breach of said contract; and inasmuch as father Juan Labarga, at the time of said unlawful
intervention between the contracting parties, was fully aware of the existence of the contract

(Exhibit C) which the plaintiff had made with S. B. Wakefield, of San Francisco, it is insisted
that the defendant corporation is liable for the loss consequent upon the failure of the project
outlined in said contract.
In this connection reliance is placed by the plaintiff upon certain American and English
decisions in which it is held that a person who is a stranger to contract may, by an
unjustifiable interference in the performance thereof, render himself liable for the damages
consequent upon non-performance. It is said that the doctrine of these cases was
recognized by this court in Gilchrist vs. Cuddy (29 Phil. Rep., 542); and we have been
earnestly pressed to extend the rule there enunciated to the situation here presente.
Somewhat more than half a century ago the English Court of the Queen's Bench saw its way
clear to permit an action for damages to be maintained against a stranger to a contract
wrongfully interfering in its performance. The leading case on this subject is Lumley vs. Gye
([1853], 2 El. & Bl., 216). It there appeared that the plaintiff, as manager of a theatre, had
entered into a contract with Miss Johanna Wagner, an opera singer,, whereby she bound
herself for a period to sing in the plaintiff's theatre and nowhere else. The defendant,
knowing of the existence of this contract, and, as the declaration alleged, "maliciously
intending to injure the plaintiff," enticed and produced Miss Wagner to leave the plaintiff's
employment. It was held that the plaintiff was entitled to recover damages. The right which
was here recognized had its origin in a rule, long familiar to the courts of the common law, to
the effect that any person who entices a servant from his employment is liable in damages to
the master. The master's interest in the service rendered by his employee is here considered
as a distinct subject of juridical right. It being thus accepted that it is a legal wrong to break
up a relation of personal service, the question now arose whether it is illegal for one person
to interfere with any contract relation subsisting between others. Prior to the decision of
Lumley vs. Gye [supra] it had been supposed that the liability here under consideration was
limited to the cases of the enticement of menial servants, apprentices, and others to whom
the English Statutes of Laborers were applicable. But in the case cited the majority of the
judges concurred in the opinion that the principle extended to all cases of hiring. This
doctrine was followed by the Court of Appeal in Bowen vs. Hall ([1881], 6 Q. B., Div., 333);
and in Temperton vs. Russell ([1893], Q. B., 715), it was held that the right of action for
maliciously procuring a breach of contract is not confined to contracts for personal services,
but extends to contracts in general. In that case the contract which the defendant had
procured to be breached was a contract for the supply of building material.
Malice in some form is generally supposed to be an essential ingredient in cases of
interference with contract relations. But upon the authorities it is enough if the wrongdoer, having knowledge of the existence of the contract relations, in bad faith sets
about to break it up. Whether his motive is to benefit himself or gratify his spite by
working mischief to the employer is immaterial. Malice in the sense of ill-will or spite
is not essential.
Upon the question as to what constitutes legal justification, a good illustration was put in the
leading case. If a party enters into contract to go for another upon a journey to a remote and
unhealthful climate, and a third person, with abona fide purpose of benefiting the one who is
under contract to go, dissuades him from the step, no action will lie. But if the advice is not
disinterested and the persuasion is used for "the indirect purpose of benefiting the defendant
at the expense of the plaintiff," the intermedler is liable if his advice is taken and the contract
broken.
The doctrine embodied in the cases just cited has sometimes been found useful, in the
complicated relations of modern industry, as a means of restraining the activities of labor
unions and industrial societies when improperly engaged in the promotion of strikes. An
illustration of the application of the doctrine in question in a case of this kind is found in
South Wales Miners Federation vs. Glamorgan Coal Co. ([1905]), A. C., 239). It there
appeared that certain miners employed in the plaintiff's collieries, acting under the order of
the executive council of the defendant federation, violated their contract with the plaintiff by
abstaining from work on certain days. The federation and council acted without any actual
malice or ill-will towards the plaintiff, and the only object of the order in question was that the
price of coal might thereby be kept up, a factor which affected the miner's wage scale. It was
held that no sufficient justification was shown and that the federation was liable.
In the United States, the rule established in England by Lumley vs. Gye [supra] and
subsequent cases is commonly accepted, though in a few of the States the broad idea that a
stranger to a contract can be held liable upon its is rejected, and in these jurisdictions the
doctrine, if accepted at all, is limited to the situation where the contract is strictly for personal
service. (Boyson vs. Thorn, 98 Cal., 578; Chambers & Marshall vs. Baldwin 91 Ky., 121;
Bourliervs. Macauley, 91 Ky., 135; Glencoe Land & Gravel Co. vs. Hudson Bros. Com. Co.,
138 Mo., 439.)

It should be observed in this connection that, according to the English and American
authorities, no question can be made as to the liability to one who interferes with a contract
existing between others by means which, under known legal cannons, can be denominated
an unlawful means. Thus, if performance is prevented by force, intimidation, coercion, or
threats, or by false or defamatory statements, or by nuisance or riot, the person using such
unlawful means is, under all the authorities, liable for the damage which ensues. And in
jurisdictions where the doctrine of Lumley vs. Gye [supra] is rejected, no liability can arise
from a meddlesome and malicious interference with a contract relation unless some such
unlawful means as those just indicated are used. (See cases last above cited.)
This brings us to the decision made by this court in Gilchrist vs. Cuddy (29 Phil. Rep., 542). It
there appeared that one Cuddy, the owner of a cinematographic film, let it under a rental
contract to the plaintiff Gilchrist for a specified period of time. In violation of the terms of this
agreement, Cuddy proceeded to turn over the film also under a rental contract, to the
defendants Espejo and Zaldarriaga. Gilchrist thereupon restored to the Court of First
Instance and produced an injunction restraining the defendants from exhibiting the film in
question in their theater during the period specified in the contract of Cuddy with Gilchrist.
Upon appeal to this court it was in effect held that the injunction was not improperly granted,
although the defendants did not, at the time their contract was made, know the identity of the
plaintiff as the person holding the prior contract but did know of the existence of a contract in
favor of someone. It was also said arguendo, that the defendants would have been liable in
damages under article 1902 of the Civil Code, if the action had been brought by the plaintiff
to recover damages. The force of the opinion is, we think, somewhat weakened by the
criticism contain in the concurring opinion, where it is said that the question of breach of
contract by inducement was not really involved in the case. Taking the decision upon the
point which was rally decided, it is authority for the proposition that one who buys something
which he knows has been sold to some other person can be restrained from using that thing
to the prejudice of the person having the prior and better right.
Translated into terms applicable to the case at bar, the decision in Gilchrist vs. Cuddy (29
Phil. Rep., 542), indicates that the defendant corporation, having notice of the sale of the
land in question to Daywalt, might have been enjoined by the latter from using the property
for grazing its cattle thereon. That the defendant corporation is also liable in this action for
the damage resulting to the plaintiff from the wrongful use and occupation of the property has
also been already determined. But it will be observed that in order to sustain this liability it is
not necessary to resort to any subtle exegesis relative to the liability of a stranger to a
contract for unlawful interference in the performance thereof. It is enough that defendant use
the property with notice that the plaintiff had a prior and better right.
Article 1902 of the Civil Code declares that any person who by an act or omission,
characterized by fault or negligence, causes damage to another shall be liable for the
damage so done. Ignoring so much of this article as relates to liability for negligence, we
take the rule to be that a person is liable for damage done to another by any culpable act;
and by "culpable act" we mean any act which is blameworthy when judged by accepted legal
standards. The idea thus expressed is undoubtedly broad enough to include any rational
conception of liability for the tortious acts likely to be developed in any society. Thus
considered, it cannot be said that the doctrine of Lumleyvs. Gye [supra] and related cases is
repugnant to the principles of the civil law.
Nevertheless, it must be admitted that the codes and jurisprudence of the civil law furnish a
somewhat uncongenial field in which to propagate the idea that a stranger to a contract may
sued for the breach thereof. Article 1257 of the Civil Code declares that contracts are binding
only between the parties and their privies. In conformity with this it has been held that a
stranger to a contract has no right of action for the nonfulfillment of the contract except in the
case especially contemplated in the second paragraph of the same article. (Uy Tam and Uy
Yet vs. Leonard, 30 Phil. Rep., 471.) As observed by this court in Manila Railroad
Co. vs. Compaia Transatlantica, R. G. No. 11318 (38 Phil. Rep., 875), a contract, when
effectually entered into between certain parties, determines not only the character and extent
of the liability of the contracting parties but also the person or entity by whom the obligation
is exigible. The same idea should apparently be applicable with respect to the person against
whom the obligation of the contract may be enforced; for it is evident that there must be a
certain mutuality in the obligation, and if the stranger to a contract is not permitted to sue to
enforce it, he cannot consistently be held liable upon it.
If the two antagonistic ideas which we have just brought into juxtaposition are capable of
reconciliation, the process must be accomplished by distinguishing clearly between the right
of action arising from the improper interference with the contract by a stranger thereto,
considered as an independent act generate of civil liability, and the right of action ex
contractu against a party to the contract resulting from the breach thereof. However, we do
not propose here to pursue the matter further, inasmuch as, for reasons presently to be

stated, we are of the opinion that neither the doctrine of Lumley vs. Gye [supra] nor the
application made of it by this court in Gilchrist vs. Cuddy (29 Phil. Rep., 542), affords any
basis for the recovery of the damages which the plaintiff is supposed to have suffered by
reason of his inability to comply with the terms of the Wakefield contract.
Whatever may be the character of the liability which a stranger to a contract may incur
by advising or assisting one of the parties to evade performance, there is one
proposition upon which all must agree. This is, that the stranger cannot become more
extensively liable in damages for the nonperformance of the contract than the party in
whose behalf he intermeddles. To hold the stranger liable for damages in excess of
those that could be recovered against the immediate party to the contract would lead
to results at once grotesque and unjust. In the case at bar, as Teodorica Endencia was
the party directly bound by the contract, it is obvious that the liability of the defendant
corporation, even admitting that it has made itself coparticipant in the breach of the
contract, can in no even exceed hers. This leads us to consider at this point the extent
of the liability of Teodorica Endencia to the plaintiff by reason of her failure to
surrender the certificate of title and to place the plaintiff in possession.
It should in the first place be noted that the liability of Teodorica Endencia for damages
resulting from the breach of her contract with Daywalt was a proper subject for adjudication
in the action for specific performance which Daywalt instituted against her in 1909 and which
was litigated by him to a successful conclusion in this court, but without obtaining any special
adjudication with reference to damages. Indemnification for damages resulting from the
breach of a contract is a right inseparably annexed to every action for the fulfillment of the
obligation (art. 1124, Civil Code); and its is clear that if damages are not sought or recovered
in the action to enforce performance they cannot be recovered in an independent action. As
to Teodorica Endencia, therefore, it should be considered that the right of action to recover
damages for the breach of the contract in question was exhausted in the prior suit. However,
her attorneys have not seen fit to interpose the defense of res judicata in her behalf; and as
the defendant corporation was not a party to that action, and such defense could not in any
event be of any avail to it, we proceed to consider the question of the liability of Teodorica
Endencia for damages without refernce to this point.
The most that can be said with refernce to the conduct of Teodorica Endencia is that
she refused to carry out a contract for the sale of certain land and resisted to the last
an action for specific performance in court. The result was that the plaintiff was
prevented during a period of several years from exerting that control over the property which
he was entitled to exert and was meanwhile unable to dispose of the property
advantageously. Now, what is the measure of damages for the wrongful detention of real
property by the vender after the time has come for him to place the purchaser in
possession?
The damages ordinarily and normally recoverable against a vendor for failure to deliver land
which he has contracted to deliver is the value of the use and occupation of the land for the
time during which it is wrongfully withheld. And of course where the purchaser has not paid
the purchaser money, a deduction may be made in respect to the interest on the money
which constitutes the purchase price. Substantially the same rule holds with respect to the
liability of a landlord who fails to put his tenant in possession pursuant to contract of lease.
The measure of damages is the value of the leasehold interest, or use and occupation, less
the stipulated rent, where this has not been paid. The rule that the measure of damages for
the wrongful detention of land is normally to be found in the value of use and occupation is,
we believe, one of the things that may be considered certain in the law (39 cyc., 1630; 24
Cyc., 1052 Sedgewick on Damages, Ninth ed., sec. 185.) almost as wellsettled, indeed,
as the rule that the measure of damages for the wrongful detention of money is to be found
in the interest.
We recognize the possibility that more extensive damages may be recovered where, at the
time of the creation of the contractual obligation, the vendor, or lessor, is aware of the use to
which the purchaser or lessee desires to put the property which is the subject of the contract,
and the contract is made with the eyes of the vendor or lessor open to the possibility of the
damage which may result to the other party from his own failure to give possession. The
case before us is not this character, inasmuch as at the time when the rights of the parties
under the contract were determined, nothing was known to any to them about the San
Francisco capitalist who would be willing to back the project portrayed in Exhibit C.
The extent of the liability for the breach of a contract must be determined in the light of the
situation in existence at the time the contract is made; and the damages ordinarily
recoverable are in all events limited to such as might be reasonable are in all events limited
to such as might be reasonably foreseen in the light of the facts then known to the
contracting parties. Where the purchaser desires to protect himself, in the contingency of the

failure of the vendor promptly to give possession, from the possibility of incurring other
damages than such as the incident to the normal value of the use and occupation, he should
cause to be inserted in the contract a clause providing for stipulated amount to the paid upon
failure of the vendor to give possession; and not case has been called to our attention
where, in the absence of such a stipulation, damages have been held to be recoverable by
the purchaser in excess of the normal value of use and occupation. On the contrary, the
most fundamental conceptions of the law relative to the assessment of damages are
inconsistent with such idea.
The principles governing this branch of the law were profoundly considered in the case
Hadley vs. Baxendale (9 Exch., 341), decided in the English Court of Exchequer in 1854;
and a few words relative to the principles governing will here be found instructive. The
decision in that case is considered a leading authority in the jurisprudence of the common
law. The plaintiffs in that case were proprietors of a mill in Gloucester, which was propelled
by steam, and which was engaged in grinding and supplying meal and flour to customers.
The shaft of the engine got broken, and it became necessarily that the broken shaft be sent
to an engineer or foundry man at Greenwich, to serve as a model for casting or
manufacturing another that would fit into the machinery. The broken shaft could be delivered
at Greenwich on the second day after its receipts by the carrier it. It was delivered to the
defendants, who were common carriers engaged in that business between these points, and
who had told plaintiffs it would be delivered at Greenwich on the second day after its delivery
to them, if delivered at a given hour. The carriers were informed that the mill was stopped,
but were not informed of the special purpose for which the broken shaft was desired to
forwarded, They were not told the mill would remain idle until the new shaft would be
returned, or that the new shaft could not be manufactured at Greenwich until the broken one
arrived to serve as a model. There was delay beyond the two days in delivering the broken
shaft at Greenwich, and a corresponding delay in starting the mill. No explanation of the
delay was offered by the carriers. The suit was brought to recover damages for the lost
profits of the mill, cause by the delay in delivering the broken shaft. It was held that the
plaintiff could not recover.
The discussion contained in the opinion of the court in that case leads to the
conclusion that the damages recoverable in case of the breach of a contract are two
sorts, namely, (1) the ordinary, natural, and in a sense necessary damage; and (2)
special damages.
Ordinary damages is found in all breaches of contract where the are no special
circumstances to distinguish the case specially from other contracts. The consideration paid
for an unperformed promise is an instance of this sort of damage. In all such cases the
damages recoverable are such as naturally and generally would result from such a breach,
"according to the usual course of things." In case involving only ordinary damage no
discussion is ever indulged as to whether that damage was contemplated or not. This is
conclusively presumed from the immediateness and inevitableness of the damage, and the
recovery of such damage follows as a necessary legal consequence of the breach. Ordinary
damage is assumed as a matter of law to be within the contemplation of the parties.
Special damage, on the other hand, is such as follows less directly from the breach
than ordinary damage. It is only found in case where some external condition, apart
from the actual terms to the contract exists or intervenes, as it were, to give a turn to
affairs and to increase damage in a way that the promisor, without actual notice of that
external condition, could not reasonably be expected to foresee. Concerning this sort of
damage, Hadley vs.Baxendale (1854) [supra] lays down the definite and just rule that before
such damage can be recovered the plaintiff must show that the particular condition which
made the damage a possible and likely consequence of the breach was known to the
defendant at the time the contract was made.
The statement that special damages may be recovered where the likelihood of such
damages flowing from the breach of the contract is contemplated and foreseen by the parties
needs to be supplemented by a proposition which, though not enunciated in
Hadley vs. Baxendale, is yet clearly to be drawn from subsequent cases. This is that where
the damage which a plaintiff seeks to recover as special damage is so far speculative as to
be in contemplation of law remote, notification of the special conditions which make that
damage possible cannot render the defendant liable therefor. To bring damages which would
ordinarily be treated as remote within the category of recoverable special damages, it is
necessary that the condition should be made the subject of contract in such sense as to
become an express or implied term of the engagement. Horne vs. Midland R. Co. (L. R., 8 C.
P., 131) is a case where the damage which was sought to be recovered as special damage
was really remote, and some of the judges rightly places the disallowance of the damage on
the ground that to make such damage recoverable, it must so far have been within the
contemplation of the parties as to form at least an implied term of the contract. But others

proceeded on the idea that the notice given to the defendant was not sufficiently full and
definite. The result was the same in either view. The facts in that case were as follows: The
plaintiffs, shoe manufacturers at K, were under contract to supply by a certain day shoes to a
firm in London for the French government. They delivered the shoes to a carrier in sufficient
time for the goods to reach London at the time stipulated in the contract and informed the
railroad agent that the shoes would be thrown back upon their hands if they did not reach the
destination in time. The defendants negligently failed to forward the good in due season. The
sale was therefore lost, and the market having fallen, the plaintiffs had to sell at a loss.
In the preceding discussion we have considered the plaintiff's right chiefly against
Teodorica Endencia; and what has been said suffices in our opinion to demonstrate
that the damages laid under the second cause of action in the complaint could not be
recovered from her, first, because the damages laid under the second cause of action
in the complaint could not be recovered from her, first, because the damages in
question are special damages which were not within contemplation of the parties
when the contract was made, and secondly, because said damages are too remote to
be the subject of recovery. This conclusion is also necessarily fatal to the right of the
plaintiff to recover such damages from the defendant corporation, for, as already
suggested, by advising Teodorica not to perform the contract, said corporation could
in no event render itself more extensively liable than the principle in the contract.
Our conclusion is that the judgment of the trial court should be affirmed, and it is so ordered,
with costs against the appellant.

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf

and as natural guardians of the minors, ROMMEL RAMOS,
ROY
RODERICK
RAMOS
and
RON
RAYMOND
RAMOS, petitioners, vs. COURT OF APPEALS, DELOS
SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and
DRA. PERFECTA GUTIERREZ, respondents.
DECISION
KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the

health and welfare of their patients. If a doctor fails to live up to this precept, he is made
accountable for his acts. A mistake, through gross negligence or incompetence or plain
human error, may spell the difference between life and death. In this sense, the doctor
plays God on his patients fate.[1]
In the case at bar, the Court is called upon to rule whether a surgeon, an
anesthesiologist and a hospital should be made liable for the unfortunate comatose
condition of a patient scheduled for cholecystectomy.[2]
Petitioners seek the reversal of the decision [3] of the Court of Appeals, dated 29 May
1995, which overturned the decision[4]of the Regional Trial Court, dated 30 January 1992,
finding private respondents liable for damages arising from negligence in the
performance of their professional duties towards petitioner Erlinda Ramos resulting in
her comatose condition.
The antecedent facts as summarized by the trial court are reproduced hereunder:

PlaintiffErlindaRamoswas,untiltheafternoonofJune17,1985,a47yearold
(Exh.A)robustwoman(TSN,October19,1989,p.10).Exceptforoccasional
complaintsofdiscomfortduetopainsallegedlycausedbythepresenceofa
stoneinhergallbladder(TSN,January13,1988,pp.45),shewasasnormal
asanyotherwoman.MarriedtoRogelioE.Ramos,anexecutiveofPhilippine
LongDistanceTelephoneCompany,shehasthreechildrenwhosenamesare
RommelRamos,RoyRoderickRamosandRonRaymondRamos(TSN,
October19,1989,pp.56).
Becausethediscomfortssomehowinterferedwithhernormalways,shesought
professionaladvice.Shewasadvisedtoundergoanoperationfortheremoval

ofastoneinhergallbladder(TSN,January13,1988,p.5).Sheunderwenta
seriesofexaminationswhichincludedbloodandurinetests(Exhs.AandC)
whichindicatedshewasfitforsurgery.
Throughtheintercessionofamutualfriend,Dr.Buenviaje(TSN,January13,
1988,p.7),sheandherhusbandRogeliometforthefirsttimeDr.Orlino
Hozaka(shouldbeHosaka;seeTSN,February20,1990,p.3),oneofthe
defendantsinthiscase,onJune10,1985.Theyagreedthattheirdateatthe
operatingtableattheDLSMC(anotherdefendant),wouldbeonJune17,1985
at9:00A.M..Dr.Hosakadecidedthatsheshouldundergoacholecystectomy
operationafterexaminingthedocuments(findingsfromtheCapitolMedical
Center,FEUHospitalandDLSMC)presentedtohim.RogelioE.Ramos,
however,askedDr.Hosakatolookforagoodanesthesiologist.Dr.Hosaka,in
turn,assuredRogeliothathewillgetagoodanesthesiologist.Dr.Hosaka
chargedafeeofP16,000.00,whichwastoincludetheanesthesiologistsfeeand
whichwastobepaidaftertheoperation(TSN,October19,1989,pp.1415,
2223,3133;TSN,February27,1990,p.13;andTSN,November9,1989,pp.
34,10,17).
Adaybeforethescheduleddateofoperation,shewasadmittedatoneofthe
roomsoftheDLSMC,locatedalongE.RodriguezAvenue,QuezonCity(TSN,
October19,1989,p.11).
Ataround7:30A.M.ofJune17,1985andwhilestillinherroom,shewas
preparedfortheoperationbythehospitalstaff.Hersisterinlaw,Herminda
Cruz,whowastheDeanoftheCollegeofNursingattheCapitolMedical
Center,wasalsothereformoralsupport.Shereiteratedherpreviousrequestfor
Hermindatobewithherevenduringtheoperation.Afterpraying,shewas
giveninjections.HerhandswereheldbyHermindaastheywentdownfrom
herroomtotheoperatingroom(TSN,January13,1988,pp.911).Her
husband,Rogelio,wasalsowithher(TSN,October19,1989,p.18).Atthe
operatingroom,HermindasawabouttwoorthreenursesandDr.Perfecta
Gutierrez,theotherdefendant,whowastoadministeranesthesia.Althoughnot
amemberofthehospitalstaff,HermindaintroducedherselfasDeanofthe
CollegeofNursingattheCapitolMedicalCenterwhowastoprovidemoral
supporttothepatient,tothem.Hermindawasallowedtostayinsidethe
operatingroom.
Ataround9:30A.M.,Dr.GutierrezreachedanearbyphonetolookforDr.
Hosakawhowasnotyetin(TSN,January13,1988,pp.1112).Dr.Gutierrez
thereafterinformedHermindaCruzabouttheprospectofadelayinthearrival
ofDr.Hosaka.Hermindathenwentbacktothepatientwhoasked,Mindy,wala
pabaangDoctor?Theformerreplied,Huwagkangmagalaala,daratingna
iyon(ibid.).
Thereafter,Hermindawentoutoftheoperatingroomandinformedthepatients
husband,Rogelio,thatthedoctorwasnotyetaround(id.,p.13).Whenshe
returnedtotheoperatingroom,thepatienttoldher,Mindy,inipnainipnaako,
ikuhamoakongibangDoctor.So,shewentoutagainandtoldRogelioabout
whatthepatientsaid(id.,p.15).Thereafter,shereturnedtotheoperatingroom.
Ataround10:00A.M.,RogelioE.Ramoswasalreadydying[and]waitingfor
thearrivalofthedoctorevenashedidhisbesttofindsomebodywhowill

allowhimtopullouthiswifefromtheoperatingroom(TSN,October19,
1989,pp.1920).Healsothoughtofthefeelingofhiswife,whowasinsidethe
operatingroomwaitingforthedoctortoarrive(ibid.).Atalmost12:00noon,
hemetDr.Garciawhoremarkedthathe(Dr.Garcia)wasalsotiredofwaiting
forDr.Hosakatoarrive(id.,p.21).WhiletalkingtoDr.Garciaataround
12:10P.M.,hecametoknowthatDr.Hosakaarrivedasanurseremarked,
NandiyannasiDr.Hosaka,dumatingnaraw.Uponhearingthosewords,he
wentdowntothelobbyandwaitedfortheoperationtobecompleted(id.,pp.
16,2930).
Atabout12:15P.M.,HermindaCruz,whowasinsidetheoperatingroomwith
thepatient,heardsomebodysaythatDr.Hosakaisalreadyhere.Shethensaw
peopleinsidetheoperatingroommoving,doingthisandthat,[and]preparing
thepatientfortheoperation(TSN,January13,1988,p.16).Assheheldthe
handofErlindaRamos,shethensawDr.Gutierrezintubatingthehapless
patient.ShethereafterheardDr.Gutierrezsay,anghirapmaintubatenito,mali
yataangpagkakapasok.Olumalakiangtiyan(id.,p.17).Becauseofthe
remarksofDra.Gutierrez,shefocusedherattentiononwhatDr.Gutierrezwas
doing.Shethereafternoticedbluishdiscolorationofthenailbedsoftheleft
handofthehaplessErlindaevenasDr.Hosakaapproachedher.Shethenheard
Dr.HosakaissueanorderforsomeonetocallDr.Calderon,another
anesthesiologist(id.,p.19).AfterDr.Calderonarrivedattheoperatingroom,
shesawthisanesthesiologisttryingtointubatethepatient.Thepatientsnailbed
becamebluishandthepatientwasplacedinatrendelenburgpositiona
positionwheretheheadofthepatientisplacedinapositionlowerthanherfeet
whichisanindicationthatthereisadecreaseofbloodsupplytothepatients
brain(Id.,pp.1920).Immediatelythereafter,shewentoutoftheoperating
room,andshetoldRogelioE.Ramosthatsomethingwrongwasxxx
happening(Ibid.).Dr.Calderonwasthenabletointubatethepatient(TSN,July
25,1991,p.9).
Meanwhile,Rogelio,whowasoutsidetheoperatingroom,sawarespiratory
machinebeingrushedtowardsthedooroftheoperatingroom.Healsosaw
severaldoctorsrushingtowardstheoperatingroom.Wheninformedby
HermindaCruzthatsomethingwrongwashappening,hetoldher(Herminda)
tobebackwiththepatientinsidetheoperatingroom(TSN,October19,1989,
pp.2528).
HermindaCruzimmediatelyrushedback,andsawthatthepatientwasstillin
trendelenburgposition(TSN,January13,1988,p.20).Atalmost3:00P.M.of
thatfatefulday,shesawthepatienttakentotheIntensiveCareUnit(ICU).
Abouttwodaysthereafter,RogelioE.RamoswasabletotalktoDr.
Hosaka.Thelatterinformedtheformerthatsomethingwentwrongduringthe
intubation.Reactingtowhatwastoldtohim,Rogelioremindedthedoctorthat
theconditionofhiswifewouldnothavehappened,hadhe(Dr.Hosaka)looked
foragoodanesthesiologist(TSN,October19,1989,p.31).
DoctorsGutierrezandHosakawerealsoaskedbythehospitaltoexplainwhat
happenedtothepatient.Thedoctorsexplainedthatthepatienthad
bronchospasm(TSN,November15,1990,pp.2627).

ErlindaRamosstayedattheICUforamonth.Aboutfourmonthsthereafteror
onNovember15,1985,thepatientwasreleasedfromthehospital.
Duringthewholeperiodofherconfinement,sheincurredhospitalbills
amountingtoP93,542.25whichisthesubjectofapromissorynoteand
affidavitofundertakingexecutedbyRogelioE.Ramosinfavorof
DLSMC.SincethatfatefulafternoonofJune17,1985,shehasbeenina
comatosecondition.Shecannotdoanything.Shecannotmoveanypartofher
body.Shecannotseeorhear.Sheislivingonmechanicalmeans.Shesuffered
braindamageasaresultoftheabsenceofoxygeninherbrainforfourtofive
minutes(TSN,November9,1989,pp.2122).Afterbeingdischargedfromthe
hospital,shehasbeenstayingintheirresidence,stillneedingconstantmedical
attention,withherhusbandRogelioincurringamonthlyexpenseranging
fromP8,000.00toP10,000.00(TSN,October19,1989,pp.3234).Shewas
alsodiagnosedtobesufferingfromdiffusecerebralparenchymaldamage(Exh.
G;seealsoTSN,December21,1989,p.6).[5]
Thus, on 8 January 1986, petitioners filed a civil case [6] for damages with the
Regional Trial Court of Quezon City against herein private respondents alleging
negligence in the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the possible cause of Erlindas
injury. Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano
Gavino to prove that the damage sustained by Erlinda was due to lack of oxygen in her
brain caused by the faulty management of her airway by private respondents during the
anesthesia phase. On the other hand, private respondents primarily relied on the expert
testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain
damage was Erlindas allergic reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered
judgment in favor of petitioners, to wit:

Afterevaluatingtheevidenceasshowninthefindingoffactssetforthearlier,
andapplyingtheaforecitedprovisionsoflawandjurisprudencetothecaseat
bar,thisCourtfindsandsoholdsthatdefendantsareliabletoplaintiffsfor
damages.Thedefendantswereguiltyof,attheveryleast,negligenceinthe
performanceoftheirdutytoplaintiffpatientErlindaRamos.
OnthepartofDr.PerfectaGutierrez,thisCourtfindsthatsheomittedto
exercisereasonablecareinnotonlyintubatingthepatient,butalsoinnot
repeatingtheadministrationofatropine(TSN,August20,1991,pp.510),
withoutdueregardtothefactthatthepatientwasinsidetheoperating
roomforalmostthree(3)hours.Foraftershecommittedamistakein
intubating[the]patient,thepatient'snailbedbecamebluishandthepatient,
thereafter,wasplacedintrendelenburgposition,becauseofthedecreaseof
bloodsupplytothepatient'sbrain.Theevidencefurthershowsthatthehapless
patientsufferedbraindamagebecauseoftheabsenceofoxygeninher
(patient's)brainforapproximatelyfourtofiveminuteswhich,inturn,caused
thepatienttobecomecomatose.
OnthepartofDr.OrlinoHosaka,thisCourtfindsthatheisliableforthe
actsofDr.PerfectaGutierrezwhomhehadchosentoadminister
anesthesiaonthepatientaspartofhisobligationtoprovidethepatienta

`goodanesthesiologist',andforarrivingforthescheduledoperationalmost
three(3)hourslate.
OnthepartofDLSMC(thehospital),thisCourtfindsthatitisliableforthe
actsofnegligenceofthedoctorsintheir`practiceofmedicine'intheoperating
room.Moreover,thehospitalisliableforfailingthroughitsresponsible
officials,tocancelthescheduledoperationafterDr.Hosakainexcusablyfailed
toarriveontime.
Inhavingheldthus,thisCourtrejectsthedefenseraisedbydefendantsthatthey
haveactedwithduecareandprudenceinrenderingmedicalservicesto
plaintiffpatient.Forifthepatientwasproperlyintubatedasclaimedbythem,
thepatientwouldnothavebecomecomatose.And,thefactthatanother
anesthesiologistwascalledtotrytointubatethepatientafterher(thepatient's)
nailbedturnedbluish,belietheirclaim.Furthermore,thedefendantsshould
haverescheduledtheoperationtoalaterdate.This,theyshouldhavedone,if
defendantsactedwithduecareandprudenceasthepatient'scasewasan
elective,notanemergencycase.
xxx

WHEREFORE,andinviewoftheforegoing,judgmentisrenderedinfavorof
theplaintiffsandagainstthedefendants.Accordingly,thelatterareorderedto
pay,jointlyandseverally,theformerthefollowingsumsofmoney,towit:
1)thesumofP8,000.00asactualmonthlyexpensesfortheplaintiffErlinda
RamosreckonedfromNovember15,1985orinthetotalsumofP632,000.00
asofApril15,1992,subjecttoitsbeingupdated;
2)thesumofP100,000.00asreasonableattorney'sfees;
3)thesumofP800,000.00bywayofmoraldamagesandthefurthersum
ofP200,000.00bywayofexemplarydamages;and,
4)thecostsofthesuit.
SOORDERED.[7]
Private respondents seasonably interposed an appeal to the Court of Appeals. The
appellate court rendered a Decision, dated 29 May 1995, reversing the findings of the
trial court. The decretal portion of the decision of the appellate court reads:

WHEREFORE,fortheforegoingpremisestheappealeddecisionishereby
REVERSED,andthecomplaintbelowagainsttheappellantsisherebyordered
DISMISSED.ThecounterclaimofappellantDeLosSantosMedicalCenteris
GRANTEDbutonlyinsofarasappelleesareherebyorderedtopaytheunpaid
hospitalbillsamountingtoP93,542.25,pluslegalinterestforjusticemustbe
temperedwithmercy.
SOORDERED.[8]
The decision of the Court of Appeals was received on 9 June 1995 by petitioner
Rogelio Ramos who was mistakenly addressed as Atty. Rogelio Ramos. No copy of the
decision, however, was sent nor received by the Coronel Law Office, then counsel on
record of petitioners. Rogelio referred the decision of the appellate court to a new lawyer,
Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the

reglementary period for filing a motion for reconsideration. On the same day, Atty.
Ligsay, filed with the appellate court a motion for extension of time to file a motion for
reconsideration. The motion for reconsideration was submitted on 4 July 1995. However,
the appellate court denied the motion for extension of time in its Resolution dated 25 July
1995.[9] Meanwhile petitioners engaged the services of another counsel, Atty. Sillano, to
replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion
for reconsideration contending that the period to file the appropriate pleading on the
assailed decision had not yet commenced to run as the Division Clerk of Court of the
Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this
explanation, the appellate court still denied the motion to admit the motion for
reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the
ground that the fifteen-day (15) period for filing a motion for reconsideration had already
expired, to wit:

WesaidinourResolutiononJuly25,1995,thatthefilingofaMotionfor
Reconsiderationcannotbeextended;precisely,theMotionforExtension
(Rollo,p.12)wasdenied.Itis,ontheotherhand,admittedinthelatterMotion
thatplaintiffs/appelleesreceivedacopyofthedecisionasearlyasJune9,
1995.Computationwise,theperiodtofileaMotionforReconsideration
expiredonJune24.TheMotionforReconsideration,inturn,wasreceivedby
theCourtofAppealsalreadyonJuly4,necessarily,the15dayperiodalready
passed.Forthatalone,thelattershouldbedenied.
EvenassumingadmissibilityoftheMotionforReconsideration,butafter
consideringtheComment/Opposition,theformer,forlackofmerit,ishereby
DENIED.
SOORDERED.[10]
A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The
next day, or on 12 April 1996, Atty. Sillano filed before this Court a motion for extension
of time to file the present petition for certiorari under Rule 45. The Court granted the
motion for extension of time and gave petitioners additional thirty (30) days after the
expiration of the fifteen-day (15) period counted from the receipt of the resolution of the
Court of Appeals within which to submit the petition. The due date fell on 27 May
1996. The petition was filed on 9 May 1996, well within the extended period given by the
Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I

INPUTTINGMUCHRELIANCEONTHETESTIMONIESOF
RESPONDENTSDRA.GUTIERREZ,DRA.CALDERONANDDR.
JAMORA;
II

INFINDINGTHATTHENEGLIGENCEOFTHERESPONDENTSDID
NOTCAUSETHEUNFORTUNATECOMATOSECONDITIONOF
PETITIONERERLINDARAMOS;
III

INNOTAPPLYINGTHEDOCTRINEOFRESIPSALOQUITUR.[11]
Before we discuss the merits of the case, we shall first dispose of the procedural
issue on the timeliness of the petition in relation to the motion for reconsideration filed by
petitioners with the Court of Appeals. In their Comment,[12] private respondents contend
that the petition should not be given due course since the motion for reconsideration of

the petitioners on the decision of the Court of Appeals was validly dismissed by the
appellate court for having been filed beyond the reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the delay in filing the
motion for reconsideration is attributable to the fact that the decision of the Court of
Appeals was not sent to then counsel on record of petitioners, the Coronel Law Office. In
fact, a copy of the decision of the appellate court was instead sent to and received by
petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty.
Rogelio Ramos. Based on the other communications received by petitioner Rogelio
Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no
copy of the decision of the appellate court was furnished to the counsel on
record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a
motion for reconsideration, referred the same to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices should be
sent to the partys lawyer at his given address. With a few exceptions, notice to a litigant
without notice to his counsel on record is no notice at all. In the present case, since a copy
of the decision of the appellate court was not sent to the counsel on record of petitioner,
there can be no sufficient notice to speak of. Hence, the delay in the filing of the motion
for reconsideration cannot be taken against petitioner. Moreover, since the Court of
Appeals already issued a second Resolution, dated 29 March 1996, which superseded the
earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of
petitioner, we believe that the receipt of the former should be considered in determining
the timeliness of the filing of the present petition. Based on this, the petition before us
was submitted on time.
After resolving the foregoing procedural issue, we shall now look into the merits of
the case. For a more logical presentation of the discussion we shall first consider the issue
on the applicability of the doctrine of res ipsa loquitur to the instant case. Thereafter, the
first two assigned errors shall be tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction
speaks for itself. The phrase res ipsa loquitur is a maxim for the rule that the fact of the
occurrence of an injury, taken with the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or make out a plaintiffs prima facie case,
and present a question of fact for defendant to meet with an explanation. [13] Where the
thing which caused the injury complained of is shown to be under the management of the
defendant or his servants and the accident is such as in ordinary course of things does not
happen if those who have its management or control use proper care, it affords reasonable
evidence, in the absence of explanation by the defendant, that the accident arose from or
was caused by the defendants want of care.[14]
The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a
matter of common knowledge and experience, the very nature of certain types of
occurrences may justify an inference of negligence on the part of the person who controls
the instrumentality causing the injury in the absence of some explanation by the
defendant who is charged with negligence.[15] It is grounded in the superior logic of
ordinary human experience and on the basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence of the accident itself. [16] Hence, res
ipsa loquitur is applied in conjunction with the doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of substantive law
and, as such, does not create or constitute an independent or separate ground of liability.
[17]
Instead, it is considered as merely evidentiary or in the nature of a procedural rule. [18] It
is regarded as a mode of proof, or a mere procedural convenience since it furnishes a
substitute for, and relieves a plaintiff of, the burden of producing specific proof of
negligence.[19] In other words, mere invocation and application of the doctrine does not
dispense with the requirement of proof of negligence.It is simply a step in the process of
such proof, permitting the plaintiff to present along with the proof of the accident, enough
of the attending circumstances to invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place on the defendant the burden of going
forward with the proof.[20] Still, before resort to the doctrine may be allowed, the
following requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence of someones
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.[21]

In the above requisites, the fundamental element is the control of the instrumentality
which caused the damage.[22] Such element of control must be shown to be within the
dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition
to proving injury or damage, must show a situation where it is applicable, and must
establish that the essential elements of the doctrine were present in a particular incident.[23]
Medical malpractice[24]cases do not escape the application of this
doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant
upon the harm are themselves of such a character as to justify an inference of
negligence as the cause of that harm.[25] The application of res ipsa loquitur in
medical negligence cases presents a question of law since it is a judicial function to
determine whether a certain set of circumstances does, as a matter of law, permit a
given inference.[26]
Although generally, expert medical testimony is relied upon in malpractice suits
to prove that a physician has done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res ipsa loquitur is availed by the
plaintiff, the need for expert medical testimony is dispensed with because the injury
itself provides the proof of negligence.[27] The reason is that the general rule on the
necessity of expert testimony applies only to such matters clearly within the domain of
medical science, and not to matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the facts.[28] Ordinarily, only physicians
and surgeons of skill and experience are competent to testify as to whether a patient has
been treated or operated upon with a reasonable degree of skill and care. However,
testimony as to the statements and acts of physicians and surgeons, external appearances,
and manifest conditions which are observable by any one may be given by non-expert
witnesses.[29] Hence, in cases where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court from its fund of common
knowledge can determine the proper standard of care.[30] Where common knowledge
and experience teach that a resulting injury would not have occurred to the patient if due
care had been exercised, an inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but how and why it occurred.[31] When
the doctrine is appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res ipsa loquitur is allowed
because there is no other way, under usual and ordinary conditions, by which the
patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an operation,
[32]
injuries sustained on a healthy part of the body which was not under, or in the area, of
treatment,[33] removal of the wrong part of the body when another part was intended,
[34]
knocking out a tooth while a patients jaw was under anesthetic for the removal of his
tonsils,[35] and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis,[36]among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably
enlarged, it does not automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to show that he is not guilty of the
ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending upon the circumstances
of each case. It is generally restricted to situations in malpractice cases where a layman is
able to say, as a matter of common knowledge and observation, that the consequences of
professional care were not as such as would ordinarily have followed if due care had been
exercised.[37] A distinction must be made between the failure to secure results, and the
occurrence of something more unusual and not ordinarily found if the service or

treatment rendered followed the usual procedure of those skilled in that particular
practice. It must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment.[38] The physician or surgeon is not required at his
peril to explain why any particular diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result. [39] Thus, res ipsa loquituris not
available in a malpractice suit if the only showing is that the desired result of an operation
or treatment was not accomplished.[40] The real question, therefore, is whether or not in
the process of the operation any extraordinary incident or unusual event outside of the
routine performance occurred which is beyond the regular scope of customary
professional activity in such operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent cause or causes of the untoward
consequence.[41] If there was such extraneous interventions, the doctrine of res ipsa
loquitur may be utilized and the defendant is called upon to explain the matter, by
evidence of exculpation, if he could.[42]
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will
hereinafter be explained, the damage sustained by Erlinda in her brain prior to a
scheduled gall bladder operation presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell,[43] where the
Kansas Supreme Court in applying the res ipsa loquitur stated:

Theplaintiffhereinsubmittedhimselfforamastoidoperationanddeliveredhis
personovertothecare,custodyandcontrolofhisphysicianwhohadcomplete
andexclusivecontroloverhim,buttheoperationwasneverperformed.Atthe
timeofsubmissionhewasneurologicallysoundandphysicallyfitinmindand
body,buthesufferedirreparabledamageandinjuryrenderinghimdecerebrate
andtotallyincapacitated.Theinjurywasonewhichdoesnotordinarilyoccurin
theprocessofamastoidoperationorintheabsenceofnegligenceinthe
administrationofananesthetic,andintheuseandemploymentofan
endoctrachealtube.Ordinarilyapersonbeingputunderanesthesiaisnot
rendereddecerebrateasaconsequenceofadministeringsuchanesthesiainthe
absenceofnegligence.Uponthesefactsandunderthesecircumstancesa
laymanwouldbeabletosay,asamatterofcommonknowledgeand
observation,thattheconsequencesofprofessionaltreatmentwerenotassuch
aswouldordinarilyhavefollowedifduecarehadbeenexercised.
Heretheplaintiffcouldnothavebeenguiltyofcontributorynegligence
becausehewasundertheinfluenceofanestheticsandunconscious,andthe
circumstancesaresuchthatthetrueexplanationofeventismoreaccessibleto
thedefendantsthantotheplaintifffortheyhadtheexclusivecontrolofthe
instrumentalitiesofanesthesia.
Uponallthefacts,conditionsandcircumstancesallegedinCountIIitisheld
thatacauseofactionisstatedunderthedoctrineofresipsaloquitur.[44]
Indeed, the principles enunciated in the aforequoted case apply with equal force
here. In the present case, Erlinda submitted herself for cholecystectomy and expected a
routine general surgery to be performed on her gall bladder. On that fateful day she
delivered her person over to the care, custody and control of private respondents who
exercised complete and exclusive control over her.At the time of submission, Erlinda was
neurologically sound and, except for a few minor discomforts, was likewise physically fit
in mind and body. However, during the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable damage to her brain. Thus,
without undergoing surgery, she went out of the operating room already decerebrate and
totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury
which does not normally occur in the process of a gall bladder operation. In fact,
this kind of situation does not happen in the absence of negligence of someone in the

administration of anesthesia and in the use of endotracheal tube. Normally, a person

being put under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia if the proper procedure was followed. Furthermore,
the instruments used in the administration of anesthesia, including the endotracheal
tube, were all under the exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could not have been guilty of
contributory negligence because she was under the influence of anesthetics which
rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured or
destroyed while the patient is unconscious and under the immediate and exclusive control
of the physicians, we hold that a practical administration of justice dictates the
application of res ipsa loquitur. Upon these facts and under these circumstances the Court
would be able to say, as a matter of common knowledge and observation, if negligence
attended the management and care of the patient. Moreover, the liability of the physicians
and the hospital in this case is not predicated upon an alleged failure to secure the desired
results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in
fact no operation or treatment was ever performed on Erlinda. Thus, upon all these initial
determination a case is made out for the application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the present case we are
not saying that the doctrine is applicable in any and all cases where injury occurs to a
patient while under anesthesia, or to any and all anesthesia cases. Each case must be
viewed in its own light and scrutinized in order to be within the res ipsa
loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and the
presumption of negligence allowed therein, the Court now comes to the issue of whether
the Court of Appeals erred in finding that private respondents were not negligent in the
care of Erlinda during the anesthesia phase of the operation and, if in the affirmative,
whether the alleged negligence was the proximate cause of Erlindas comatose
condition. Corollary thereto, we shall also determine if the Court of Appeals erred in
relying on the testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of Appeals relied on the
testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the
testimony of Dra. Gutierrez, the Court of Appeals rationalized that she was candid
enough to admit that she experienced some difficulty in the endotracheal intubation [45]of
the patient and thus, cannot be said to be covering her negligence with falsehood. The
appellate court likewise opined that private respondents were able to show that the brain
damage sustained by Erlinda was not caused by the alleged faulty intubation but was due
to the allergic reaction of the patient to the drug Thiopental Sodium (Pentothal), a shortacting barbiturate, as testified on by their expert witness, Dr. Jamora. On the other hand,
the appellate court rejected the testimony of Dean Herminda Cruz offered in favor of
petitioners that the cause of the brain injury was traceable to the wrongful insertion of the
tube since the latter, being a nurse, was allegedly not knowledgeable in the process of
intubation. In so holding, the appellate court returned a verdict in favor of respondents
physicians and hospital and absolved them of any liability towards Erlinda and her
family.
We disagree with the findings of the Court of Appeals. We hold that private
respondents were unable to disprove the presumption of negligence on their part in
the care of Erlinda and their negligence was the proximate cause of her piteous
condition.
In the instant case, the records are helpful in furnishing not only the logical scientific
evidence of the pathogenesis of the injury but also in providing the Court the legal nexus
upon which liability is based. As will be shown hereinafter, private respondents own
testimonies which are reflected in the transcript of stenographic notes are replete of
signposts indicative of their negligence in the care and management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the
anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed to properly
intubate the patient.This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol
Medical Center School of Nursing and petitioner's sister-in-law, who was in the operating

room right beside the patient when the tragic event occurred. Witness Cruz testified to
this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As I have said, I was with the patient, I was beside the stretcher holding the left hand of the
patient and all of a sudden I heard some remarks coming from Dra. Perfecta Gutierrez
herself. She was saying Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan.

xxx
ATTY. PAJARES:
Q: From whom did you hear those words lumalaki ang tiyan?
A: From Dra. Perfecta Gutierrez.

xxx
After hearing the phrase lumalaki ang tiyan, what did you notice on the person of the
patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if any?
A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after a while the patients nailbed
became bluish and I saw the patient was placed in trendelenburg position.

xxx
Q: Do you know the reason why the patient was placed in that trendelenburg position?

A: As far as I know, when a patient is in that position, there is a decrease of blood

supply to the brain.[46]
xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by
declaring that:

Aperusalofthestandardnursingcurriculuminourcountrywillshowthat
intubationisnottaughtaspartofnursingproceduresandtechniques.Indeed,
wetakejudicialnoticeofthefactthatnursesdonot,andcannot,intubate.Even
ontheassumptionthatsheisfullycapableofdeterminingwhetherornota
patientisproperlyintubated,witnessHermindaCruz,admittedly,didnotpeep
intothethroatofthepatient.(TSN,July25,1991,p.13).Moreimportantly,

thereisnoevidencethatsheeverauscultatedthepatientorthatsheconducted
anytypeofexaminationtocheckiftheendotrachealtubewasinitsproper
place,andtodeterminetheconditionoftheheart,lungs,andother
organs.Thus,witnessCruz'scategoricalstatementsthatappellantDra.
GutierrezfailedtointubatetheappelleeErlindaRamosandthatitwasDra.
Calderonwhosucceededindoingsoclearlysufferfromlackofsufficient
factualbases.[47]
In other words, what the Court of Appeals is trying to impress is that being a nurse,
and considered a layman in the process of intubation, witness Cruz is not competent to
testify on whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate court. Although witness
Cruz is not an anesthesiologist, she can very well testify upon matters on which she is
capable of observing such as, the statements and acts of the physician and surgeon,
external appearances, and manifest conditions which are observable by any one. [48] This is
precisely allowed under the doctrine of res ipsa loquitur where the testimony of expert
witnesses is not required. It is the accepted rule that expert testimony is not necessary
for the proof of negligence in non-technical matters or those of which an ordinary
person may be expected to have knowledge, or where the lack of skill or want of
care is so obvious as to render expert testimony unnecessary.[49] We take judicial
notice of the fact that anesthesia procedures have become so common, that even an
ordinary person can tell if it was administered properly. As such, it would not be too
difficult to tell if the tube was properly inserted. This kind of observation, we
believe, does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose
long experience and scholarship led to her appointment as Dean of the Capitol Medical
Center School of Nursing, was fully capable of determining whether or not the intubation
was a success. She had extensive clinical experience starting as a staff nurse in Chicago,
Illinois; staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean
of the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol
Medical Center School of Nursing.[50]Reviewing witness Cruz' statements, we find that
the same were delivered in a straightforward manner, with the kind of detail, clarity,
consistency and spontaneity which would have been difficult to fabricate. With her
clinical background as a nurse, the Court is satisfied that she was able to demonstrate
through her testimony what truly transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez
who admitted that she experienced difficulty in inserting the tube into Erlindas trachea, to
wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you
did not immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the ...
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said mahirap yata ito, what were you referring to?
A: Mahirap yata itong i-intubate, that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right away.[51]

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense
that she encountered hardship in the insertion of the tube in the trachea of Erlinda
because it was positioned more anteriorly (slightly deviated from the normal anatomy of

a person)[52] making it harder to locate and, since Erlinda is obese and has a short neck and
protruding teeth, it made intubation even more difficult.
The argument does not convince us. If this was indeed observed, private respondents
adduced no evidence demonstrating that they proceeded to make a thorough assessment
of Erlindas airway, prior to the induction of anesthesia, even if this would mean
postponing the procedure. From their testimonies, it appears that the observation was
made only as an afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is
universally observed to lessen the possibility of anesthetic accidents. Pre-operative
evaluation and preparation for anesthesia begins when the anesthesiologist reviews the
patients medical records and visits with the patient, traditionally, the day before elective
surgery.[53] It includes taking the patients medical history, review of current drug therapy,
physical examination and interpretation of laboratory data. [54] The physical examination
performed by the anesthesiologist is directed primarily toward the central nervous
system, cardiovascular system, lungs and upper airway.[55] A thorough analysis of the
patient's airway normally involves investigating the following: cervical spine mobility,
temporomandibular mobility, prominent central incisors, diseased or artificial teeth,
ability to visualize uvula and the thyromental distance. [56] Thus, physical characteristics of
the patients upper airway that could make tracheal intubation difficult should be studied.
[57]
Where the need arises, as when initial assessment indicates possible problems (such as
the alleged short neck and protruding teeth of Erlinda) a thorough examination of the
patients airway would go a long way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the
first time on the day of the operation itself, on 17 June 1985. Before this date, no prior
consultations with, or pre-operative evaluation of Erlinda was done by her. Until the day
of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up
and needs of Erlinda. She was likewise not properly informed of the possible difficulties
she would face during the administration of anesthesia to Erlinda. Respondent Dra.
Gutierrez act of seeing her patient for the first time only an hour before the scheduled
operative procedure was, therefore, an act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and vigilance in dealing with human
lives lie at the core of the physicians centuries-old Hippocratic Oath. Her failure to follow
this medical procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing
around with the trial court's ignorance of clinical procedure, hoping that she could get
away with it.Respondent Dra. Gutierrez tried to muddle the difference between an
elective surgery and an emergency surgery just so her failure to perform the required preoperative evaluation would escape unnoticed. In her testimony she asserted:

ATTY.LIGSAY:
Q:Wouldyouagree,Doctor,thatitisgoodmedicalpracticetoseethepatienta
daybeforesoyoucanintroduceyourselftoestablishgooddoctorpatient
relationshipandgainthetrustandconfidenceofthepatient?
DRA.GUTIERREZ:
A:AsIsaidinmypreviousstatement,itdependsontheoperativeprocedureof
theanesthesiologistandinmycase,withelectivecasesandnormalcardio
pulmonaryclearancelikethat,Iusuallydon'tdoitexceptonemergencyandon
casesthathaveanabnormalities(sic).[58]
However, the exact opposite is true. In an emergency procedure, there is hardly
enough time available for the fastidious demands of pre-operative procedure so that an
anesthesiologist is able to see the patient only a few minutes before surgery, if at
all. Elective procedures, on the other hand, are operative procedures that can wait for
days, weeks or even months. Hence, in these cases, the anesthesiologist possesses the
luxury of time to make a proper assessment, including the time to be at the patient's

bedside to do a proper interview and clinical evaluation. There is ample time to explain
the method of anesthesia, the drugs to be used, and their possible hazards for purposes of
informed consent. Usually, the pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed and cooperative.
Erlindas case was elective and this was known to respondent Dra. Gutierrez. Thus,
she had all the time to make a thorough evaluation of Erlindas case prior to the operation
and prepare her for anesthesia. However, she never saw the patient at the bedside. She
herself admitted that she had seen petitioner only in the operating room, and only on the
actual date of the cholecystectomy. She negligently failed to take advantage of this
important opportunity. As such, her attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed to perform preoperative evaluation of the patient which, in turn, resulted to a wrongful intubation,
we now determine if the faulty intubation is truly the proximate cause of Erlindas
comatose condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led
to Erlindas coma was due to bronchospasm[59] mediated by her allergic response to the
drug, Thiopental Sodium, introduced into her system. Towards this end, they presented
Dr. Jamora, a Fellow of the Philippine College of Physicians and Diplomate of the
Philippine Specialty Board of Internal Medicine, who advanced private respondents'
theory that the oxygen deprivation which led to anoxic encephalopathy,[60] was due to an
unpredictable drug reaction to the short-acting barbiturate.We find the theory of private
respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of
anesthesiology simply because he is not an anesthesiologist. Since Dr. Jamora is a
pulmonologist, he could not have been capable of properly enlightening the court about
anesthesia practice and procedure and their complications. Dr. Jamora is likewise not an
allergologist and could not therefore properly advance expert opinion on allergicmediated processes. Moreover, he is not a pharmacologist and, as such, could not have
been capable, as an expert would, of explaining to the court the pharmacologic and toxic
effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamoras testimony as an expert
witness in the anesthetic practice of Pentothal administration is further supported by his
own admission that he formulated his opinions on the drug not from the practical
experience gained by a specialist or expert in the administration and use of Sodium
Pentothal on patients, but only from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a
method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what you have read from
books and not by your own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.
Q: And because they have used it on you and on account of your own personal experience you
feel that you can testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims. [61]

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls

within the fields of anesthesia, internal medicine-allergy, and clinical pharmacology. The
resulting anoxic encephalopathy belongs to the field of neurology. While admittedly,
many bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary

medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic mediated

bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology
and pharmacology. On the basis of the foregoing transcript, in which the pulmonologist
himself admitted that he could not testify about the drug with medical authority, it is clear
that the appellate court erred in giving weight to Dr. Jamoras testimony as an expert in
the administration of Thiopental Sodium.
The provision in the rules of evidence[62]regarding expert witnesses states:

Sec.49.Opinionofexpertwitness.Theopinionofawitnessona
matterrequiringspecialknowledge,skill,experienceortrainingwhich
heisshowntopossess,maybereceivedinevidence.
Generally, to qualify as an expert witness, one must have acquired special knowledge
of the subject matter about which he or she is to testify, either by the study of recognized
authorities on the subject or by practical experience. [63] Clearly, Dr. Jamora does not
qualify as an expert witness based on the above standard since he lacks the necessary
knowledge, skill, and training in the field of anesthesiology. Oddly, apart from submitting
testimony from a specialist in the wrong field, private respondents intentionally avoided
providing testimony by competent and independent experts in the proper areas.
Moreover, private respondents theory, that Thiopental Sodium may have produced
Erlinda's coma by triggering an allergic mediated response, has no support in
evidence. No evidence of stridor, skin reactions, or wheezing - some of the more common
accompanying signs of an allergic reaction - appears on record. No laboratory data were
ever presented to the court.
In any case, private respondents themselves admit that Thiopental induced, allergicmediated bronchospasm happens only very rarely. If courts were to accept private
respondents' hypothesis without supporting medical proof, and against the weight of
available evidence, then every anesthetic accident would be an act of God. Evidently, the
Thiopental-allergy theory vigorously asserted by private respondents was a mere
afterthought. Such an explanation was advanced in order to absolve them of any and all
responsibility for the patients condition.
In view of the evidence at hand, we are inclined to believe petitioners stand that it
was the faulty intubation which was the proximate cause of Erlindas comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces injury, and without which the
result would not have occurred.[64] An injury or damage is proximately caused by an act or
a failure to act, whenever it appears from the evidence in the case, that the act or
omission played a substantial part in bringing about or actually causing the injury or
damage; and that the injury or damage was either a direct result or a reasonably probable
consequence of the act or omission.[65] It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at hand, faulty intubation is
undeniably the proximate cause which triggered the chain of events leading to Erlindas
brain damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that the first intubation
was a failure. This fact was likewise observed by witness Cruz when she heard
respondent Dra. Gutierrez remarked, Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan. Thereafter, witness Cruz noticed abdominal
distention on the body of Erlinda. The development of abdominal distention, together
with respiratory embarrassment indicates that the endotracheal tube entered the
esophagus instead of the respiratory tree. In other words, instead of the intended
endotracheal intubation what actually took place was an esophageal intubation. During
intubation, such distention indicates that air has entered the gastrointestinal tract through
the esophagus instead of the lungs through the trachea. Entry into the esophagus would
certainly cause some delay in oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention had been observed during the
first intubation suggests that the length of time utilized in inserting the endotracheal tube
(up to the time the tube was withdrawn for the second attempt) was fairly significant. Due
to the delay in the delivery of oxygen in her lungs Erlinda showed signs of cyanosis.[66] As
stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent only after he

noticed that the nailbeds of Erlinda were already blue. [67] However, private respondents
contend that a second intubation was executed on Erlinda and this one was successfully
done. We do not think so. No evidence exists on record, beyond private respondents' bare
claims, which supports the contention that the second intubation was
successful. Assuming that the endotracheal tube finally found its way into the proper
orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of a
successful intubation. In fact, cyanosis was again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could not be claimed, as private
respondents insist, that the second intubation was accomplished.Even granting that the
tube was successfully inserted during the second attempt, it was obviously too late. As
aptly explained by the trial court, Erlinda already suffered brain damage as a result of the
inadequate oxygenation of her brain for about four to five minutes.[68]
The above conclusion is not without basis. Scientific studies point out that intubation
problems are responsible for one-third (1/3) of deaths and serious injuries associated with
anesthesia.[69]Nevertheless, ninety-eight percent (98%) or the vast majority of difficult
intubations may be anticipated by performing a thorough evaluation of the patients
airway prior to the operation.[70] As stated beforehand, respondent Dra. Gutierrez failed to
observe the proper pre-operative protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable care been used in the pre-operative
evaluation, respondent physician could have been much more prepared to meet the
contingency brought about by the perceived anatomic variations in the patients neck and
oral area, defects which would have been easily overcome by a prior knowledge of those
variations together with a change in technique. [71] In other words, an experienced
anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would have
had little difficulty going around the short neck and protruding teeth. [72] Having failed to
observe common medical standards in pre-operative management and intubation,
respondent Dra. Gutierrez negligence resulted in cerebral anoxia and eventual coma of
Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of
the surgical team. As the so-called captain of the ship,[73] it is the surgeons responsibility
to see to it that those under him perform their task in the proper manner. Respondent Dr.
Hosakas negligence can be found in his failure to exercise the proper authority (as the
captain of the operative team) in not determining if his anesthesiologist observed proper
anesthesia protocols. In fact, no evidence on record exists to show that respondent Dr.
Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore,
it does not escape us that respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as Erlindas cholecystectomy, and was in fact over three
hours late for the latters operation. Because of this, he had little or no time to confer with
his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in
his professional duties towards his patient. Thus, he shares equal responsibility for the
events which resulted in Erlindas condition.
We now discuss the responsibility of the hospital in this particular incident. The
unique practice (among private hospitals) of filling up specialist staff with attending and
visiting consultants,[74]who are allegedly not hospital employees, presents problems in
apportioning responsibility for negligence in medical malpractice cases. However, the
difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of
consultants and in the conduct of their work within the hospital premises. Doctors who
apply for consultant slots, visiting or attending, are required to submit proof of
completion of residency, their educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate), evidence of fellowship in most cases,
and references. These requirements are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital who either accept or reject
the application.[75] This is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is
normally required to attend clinico-pathological conferences, conduct bedside rounds for
clerks, interns and residents, moderate grand rounds and patient audits and perform other
tasks and responsibilities, for the privilege of being able to maintain a clinic in the
hospital, and/or for the privilege of admitting patients into the hospital. In addition to
these, the physicians performance as a specialist is generally evaluated by a peer review

committee on the basis of mortality and morbidity statistics, and feedback from patients,
nurses, interns and residents. A consultant remiss in his duties, or a consultant who
regularly falls short of the minimum standards acceptable to the hospital or its peer
review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their
attending and visiting consultant staff. While consultants are not, technically employees,
a point which respondent hospital asserts in denying all responsibility for the patients
condition, the control exercised, the hiring, and the right to terminate consultants all
fulfill the important hallmarks of an employer-employee relationship, with the exception
of the payment of wages. In assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the foregoing, we rule that for the
purpose of allocating responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending and visiting
physicians.This being the case, the question now arises as to whether or not respondent
hospital is solidarily liable with respondent doctors for petitioners condition.[76]
The basis for holding an employer solidarily responsible for the negligence of its
employee is found in Article 2180 of the Civil Code which considers a person
accountable not only for his own acts but also for those of others based on the formers
responsibility under a relationship of patria potestas.[77] Such responsibility ceases when
the persons or entity concerned prove that they have observed the diligence of a good
father of the family to prevent damage. [78] In other words, while the burden of proving
negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the
respondents (parent, guardian, teacher or employer) who should prove that they observed
the diligence of a good father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of its
responsibility over respondent physicians, failed to adduce evidence showing that it
exercised the diligence of a good father of a family in the hiring and supervision of the
latter. It failed to adduce evidence with regard to the degree of supervision which it
exercised over its physicians. In neglecting to offer such proof, or proof of a similar
nature, respondent hospital thereby failed to discharge its burden under the last paragraph
of Article 2180. Having failed to do this, respondent hospital is consequently solidarily
responsible with its physicians for Erlindas condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and
relying on the testimonies of the witnesses for the private respondents. Indeed, as shown
by the above discussions, private respondents were unable to rebut the presumption of
negligence. Upon these disquisitions we hold that private respondents are solidarily liable
for damages under Article 2176[79] of the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a
total of P632,000.00 pesos (should be P616,000.00) in compensatory damages to the
plaintiff, subject to its being updated covering the period from 15 November 1985 up to
15 April 1992, based on monthly expenses for the care of the patient estimated
at P8,000.00.
At current levels, the P8000/monthly amount established by the trial court at the time
of its decision would be grossly inadequate to cover the actual costs of home-based care
for a comatose individual. The calculated amount was not even arrived at by looking at
the actual cost of proper hospice care for the patient. What it reflected were the actual
expenses incurred and proved by the petitioners after they were forced to bring home the
patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be transferred to a
hospice specializing in the care of the chronically ill for the purpose of providing a proper
milieu adequate to meet minimum standards of care. In the instant case for instance,
Erlinda has to be constantly turned from side to side to prevent bedsores and hypostatic
pneumonia. Feeding is done by nasogastric tube. Food preparation should be normally
made by a dietitian to provide her with the correct daily caloric requirements and vitamin
supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to
avoid muscle atrophy, and by a pulmonary therapist to prevent the accumulation of
secretions which can lead to respiratory complications.

Given these considerations, the amount of actual damages recoverable in suits

arising from negligence should at least reflect the correct minimum cost of proper care,
not the cost of the care the family is usually compelled to undertake at home to avoid
bankruptcy. However, the provisions of the Civil Code on actual or compensatory
damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff are
those suffered by him as he has duly proved. The Civil Code provides:

Art.2199.Exceptasprovidedbylaworbystipulation,oneisentitledtoan
adequatecompensationonlyforsuchpecuniarylosssufferedbyhimashehas
dulyproved.Suchcompensationisreferredtoasactualorcompensatory
damages.
Our rules on actual or compensatory damages generally assume that at the time of
litigation, the injury suffered as a consequence of an act of negligence has been
completed and that the cost can be liquidated. However, these provisions neglect to take
into account those situations, as in this case, where the resulting injury might be
continuing and possible future complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to
adequately and correctly respond to the injury caused, should be one which compensates
for pecuniary loss incurred and proved, up to the time of trial; and one which would meet
pecuniary loss certain to be suffered but which could not, from the nature of the case, be
made with certainty.[80] In other words, temperate damages can and should be awarded on
top of actual or compensatory damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases, no incompatibility arises
when both actual and temperate damages are provided for. The reason is that these
damages cover two distinct phases.
As it would not be equitable - and certainly not in the best interests of the
administration of justice - for the victim in such cases to constantly come before the
courts and invoke their aid in seeking adjustments to the compensatory damages
previously awarded - temperate damages are appropriate. The amount given as temperate
damages, though to a certain extent speculative, should take into account the cost of
proper care.
In the instant case, petitioners were able to provide only home-based nursing care for
a comatose patient who has remained in that condition for over a decade. Having
premised our award for compensatory damages on the amount provided by petitioners at
the onset of litigation, it would be now much more in step with the interests of justice if
the value awarded for temperate damages would allow petitioners to provide optimal care
for their loved one in a facility which generally specializes in such care. They should not
be compelled by dire circumstances to provide substandard care at home without the aid
of professionals, for anything less would be grossly inadequate. Under the circumstances,
an award of P1,500,000.00 in temperate damages would therefore be reasonable.[81]
In Valenzuela vs. Court of Appeals,[82] this Court was confronted with a situation
where the injury suffered by the plaintiff would have led to expenses which were difficult
to estimate because while they would have been a direct result of the injury (amputation),
and were certain to be incurred by the plaintiff, they were likely to arise only in the
future. We awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:

Asaresultoftheaccident,Ma.LourdesValenzuelaunderwenta
traumaticamputationofherleftlowerextremityatthedistalleftthigh
justabovetheknee.Becauseofthis,Valenzuelawillforeverbe
deprivedofthefullambulatoryfunctionsofherleftextremity,even
withtheuseofstateoftheartprosthetictechnology.Wellbeyondthe
periodofhospitalization(whichwaspaidforbyLi),shewillbe

requiredtoundergoadjustmentsinherprostheticdeviseduetothe
shrinkageofthestumpfromtheprocessofhealing.
Theseadjustmentsentailcosts,prostheticreplacementsandmonthsof
physicalandoccupationalrehabilitationandtherapy.Duringher
lifetime,theprostheticdevisewillhavetobereplacedandreadjustedto
changesinthesizeofherlowerlimbeffectedbythebiologicalchanges
ofmiddleage,menopauseandaging.Assumingshereaches
menopause,forexample,theprostheticwillhavetobeadjustedto
respondtothechangesinboneresultingfromaprecipitatedecreasein
calciumlevelsobservedinthebonesofallpostmenopausalwomen.In
otherwords,thedamagedonetoherwouldnotonlybepermanentand
lasting,itwouldalsobepermanentlychangingandadjustingtothe
physiologicchangeswhichherbodywouldnormallyundergothrough
theyears.Thereplacements,changes,andadjustmentswillrequire
correspondingadjustivephysicalandoccupationaltherapy.Allofthese
adjustments,ithasbeendocumented,arepainful.
x x x.

Aprostheticdevise,howevertechnologicallyadvanced,willonlyallow
areasonableamountoffunctionalrestorationofthemotorfunctionsof
thelowerlimb.Thesensoryfunctionsareforeverlost.Theresultant
anxiety,sleeplessness,psychologicalinjury,mentalandphysicalpain
areinestimable.[83]
The injury suffered by Erlinda as a consequence of private respondents negligence is
certainly much more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has
been in a comatose state for over fourteen years now. The burden of care has so far been
heroically shouldered by her husband and children, who, in the intervening years have
been deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the care of petitioner
would be virtually impossible to quantify. Even the temperate damages herein awarded
would be inadequate if petitioners condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victims actual injury would not
even scratch the surface of the resulting moral damage because it would be highly
speculative to estimate the amount of emotional and moral pain, psychological damage
and injury suffered by the victim or those actually affected by the victims condition.
[84]
The husband and the children, all petitioners in this case, will have to live with the day
to day uncertainty of the patients illness, knowing any hope of recovery is close to
nil. They have fashioned their daily lives around the nursing care of petitioner, altering
their long term goals to take into account their life with a comatose patient. They, not the
respondents, are charged with the moral responsibility of the care of the victim. The
familys moral injury and suffering in this case is clearly a real one. For the foregoing
reasons, an award of P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are
hereby awarded. Considering the length and nature of the instant suit we are of the
opinion that attorneys fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence cases because
physicians are not insurers of life and, they rarely set out to intentionally cause injury or
death to their patients. However, intent is immaterial in negligence cases because where
negligence exists and is proven, the same automatically gives the injured a right to
reparation for the damage caused.
Established medical procedures and practices, though in constant flux are devised for
the purpose of preventing complications. A physicians experience with his patients would
sometimes tempt him to deviate from established community practices, and he may end a

distinguished career using unorthodox methods without incident. However, when failure
to follow established procedure results in the evil precisely sought to be averted by
observance of the procedure and a nexus is made between the deviation and the injury or
damage, the physician would necessarily be called to account for it. In the case at bar, the
failure to observe pre-operative assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents case.
WHEREFORE, the decision and resolution of the appellate court appealed from are
hereby modified so as to award in favor of petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00 as actual damages computed as of the date
of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that
petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral
damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary
damages and attorneys fees; and, 5) the costs of the suit.