cardiac arrest as a post-operative complication; 6 and 4) Dr.
Nieto Salvador, an expert
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 86890 January 21, 1994
LEANDRO CARILLO, vs. PEOPLE OF THE PHILIPPINES
FELICIANO, J.:
Petitioner Dr. Leandro Carillo, an anesthetist, seeks review of the Decision of the
Court of Appeals dated 28 November 1988, which affirmed his conviction by the
Regional Trial Court of the crime of simple negligence resulting in homicide, for the
death of his thirteen (13) year old patient Catherine Acosta. The trial court had
sentenced him to suffer the penalty of arresto mayor in its medium period (four [4]
months' imprisonment), as well as to pay the heirs of his patient an indemnity of
P30,000.00 for her death, P10,000.00 as reimbursement for actual expenses incurred,
P50,000.00 as moral damages and to pay the costs of the suit. The information filed
against petitioner and his co-accused, the surgeon Dr. Emilio Madrid, alleged the
following:
That on or about the 31st of May 1981, in the municipality of Paraaque, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring and confederating together and mutually
helping and aiding with one another, without taking the necessary care and
precaution to avoid injury to person, did then and there willfully, unlawfully and
feloniously operate, in a reckless, careless and imprudent manner and neglected
to exercise their respective medical knowhow and tasks and/or departed from the
recognized standard in their treatment, diagnosis of the condition, and operation
of the patient, one Catherine Acosta, 13 years old, which negligence caused the
death of the said Catherine Acosta.
Petitioner and Dr. Emilio Madrid entered pleas of not guilty at arraignment and the
case proceeded to trail with Judge Job B. Madayag presiding.
The prosecution presented as its principal evidence the testimony of four (4) witnesses,
namely: 1) Yolanda Acosta, Catherine's mother, who was able to observe the conduct
of the accused outside the operating theater before, during and after the appendectomy
procedure carried out on her daughter; 4 2) Domingo Acosta, Catherine's father, who
corroborated some parts of his wife's testimony; 5 3) Dr. Horacio Buendia, an expert
witness who described before the trial court the relationship between a surgeon and an
anesthetist in the course of a surgical operation, as well as define the likelihood of
witness who analyzed and explained the significance of the results of the pathological
study and autopsy conducted on Catherine's body by one Dr. Alberto Reyes. 7
After the prosecution had rested its case, the defense was granted leave to file a
demurrer to the evidence. 8 After failing to file the demurrer within the reglementary
period, Judge Manuel Yuzon, who had in the meantime taken over as presiding judge
of the sala where this case was pending, denied the defense motion for extension of
time to file demurrer and declared the case submitted for decision. 9
On 19 September 1985, the trial court promulgated its decision convicting both the
accused of the crime charged. 10
On appeal, the Court of Appeals affirmed the judgment of conviction, and specified
that the civil liability of the two (2) accused was solidary in nature. 11
Petitioner Dr. Carillo alone filed the present Petition for Review with the Court,
seeking reversal of his conviction, or in the alternative, the grant of a new trial. Dr.
Madrid did not try to appeal further the Court of Appeals Decision. Accordingly, the
judgment of conviction became final insofar as the accused surgeon Dr. Madrid is
concerned.
The facts of the case as established by the Court of Appeals are as follows:
The deceased, Catherine Acosta, a 13 year old girl, daughter of spouses Domingo and
Yolanda Acosta, complained to her father at about 10:30 o'clock in the morning of
May 31, 1981 of pains in the lower part of her abdomen. Catherine was then brought
to Dr. Elva Pea. Dra. Pea called for Dr. Emilio Madrid and the latter examined
Catherine Acosta. According to Dr. Madrid, his findings might be appendicitis. Then
Dr. Pea told Catherine's parents to bring the child to the hospital in Baclaran so that
the child will be observed.
At the Baclaran General Hospital, a nurse took blood sample form the child. The
findings became known at around 3:00 o'clock in the afternoon and the child was
scheduled for operation at 5:00 o'clock in the afternoon. The operation took place at
5:45 p.m. because Dr. Madrid arrived only at that time.
When brought inside the operating room, the child was feeling very well and they did
not subject the child to ECG (electrocardiogram) and X-ray. The appellant Dr. Emilio
Madrid, a surgeon, operated on Catherine. He was assisted by appellant, Dr. Leandro
Carillo, an anesthesiologists. During the operation, while Yolanda Acosta, Catherine's
mother, was staying outside the operating room, she "noticed something very
unfamiliar." The three nurses who assisted in the operation were going in and out of
the operating room, they were not carrying anything, but in going out of the operating
room, they were already holding something.
Yolanda asked one of the nurses if she could enter the operating room but she was
refused.

At around 6:30 p.m., Dr. Emilio Madrid went outside the operating room and Yolanda
Acosta was allowed to enter the first door.
The appendicitis (sic) was shown to them by Dr. Madrid, because, according to Dr.
Madrid, they might be wondering because he was going to install drainage near the
operating (sic) portion of the child.
When asked, the doctor told them the child was already out of danger but the operation
was not yet finished.
It has also been established that the deceased was not weighed before the
administration of anesthesia on her.
The operation was finished at 7:00 o'clock in the evening and when the child was
brought out from the operating room, she was observed to be shivering (nanginginig);
her heart beat was not normal; she was asleep and did not wake up; she was pale; and
as if she had difficulty in breathing and Dr. Emilio Madrid suggested that she placed
under oxygen tank; that oxygen was administered to the child when she was already
in the room.
Witness Yolanda Acosta further testified that shortly before the child was transferred
from the operating room to her room, she (witness) was requested by the
anesthesiologist to go home and get a blanket.
A portion of Yolanda Acosta's testimony on what happened when she returned to the
hospital are reproduced hereunder as follows:
Q What happened afterward?
A When I arrived in the hospital, my child was being transferred to her bed.
Q What else happened?
Q I noticed that the heartbeat of my daughter was not normal. And I noticed that her
hospital gown is rising up and down.
Q What transpired after that?
A I asked Dr. Madrid why it was like that, that the heartbeat of my daughter is not
normal.
Q And did the doctor make any reply?
A The doctor said because of the lesion of the child.
Q What else happened?
A After they have revived the heartbeat of the child, Dr. Carillo and Dr. Madrid left.
Q Now do you remember what time was it when Dr. Carillo stepped out?
A Only a minute after they have transferred the child to the bed.
Q What happened later on after Dr. Carillo and Dr. Madrid stepped out of the hospital?
A After 15 or 30 minutes has lapsed at about 7:15 or 7:30, the child had developed
convulsion and stiffening of the body.
Q When you observed convulsion and stiffening of the body, did you do anything?
A We requested the nurse who was attending to her to call for a doctor.
Q And the nurse who was attending to the patient called for a doctor?
A They called for Dra. Pea, their family physician.
Q What transpired afterwards?
A What Dra. Pea did was call for Dr. Madrid and the cardiologist.
Q Did this doctor arrived?
A Yes.
Q What transpired after the doctor arrived?
A They examined the child.
Q After they examined the child, did they inform you of the result of the examination?
A The cardiologist was the one whom informed us after he stepped out of the room
when we followed him. The doctor told us that she suffered severe infection which
went up to her head.
Q After you were informed of the result of his examination, what transpired next?
A According to them, they will do their best for the child and that they will call for Dr.
Carillo.
Q Did Dr. Carillo arrived?
A At around 10:30 in the evening.
Q Did Dr. Carillo do anything when he arrived on 31 May 1981?
A When he arrived, he noticed that there were two small bottles and big bottles of
dextrose which were hanging above the bed of the child. Then he said, "What is this?
Christmas tree or what?" He told us that one bottle of dextrose be removed. And the
big one will remain.
Q What happened after that?
A After that we talked to Dr. Carillo and asked him how did this happen to the child.
Q What did Dr. Carillo reply (sic) to you?
A He answered "that is nothing, the child will regain consciousness and if the child
will not regain consciousness, I will resign (sic) as a doctor." 12
(Emphasis supplied)
When Catherine remained unconscious until noontime the next day, a neurologist
examined her and she was diagnosed as comatose. 13 Three (3) days later, Catherine
died without regaining consciousness. 14
The Court of Appeals held that Catherine had suffered from an overdose of, or an
adverse reaction to, anesthesia, particularly the arbitrary administration of Nubain, a
pain killer, without benefit of prior weighing of the patient's body mass, which weight
determines the dosage of Nubain which can safely be given to a patient. 15 The Court
of Appeals held that this condition triggered off a heart attack as a post-operative
complication, depriving Catherine's brain of oxygen, leading to the brain's
hemorrhage. 16 The Court of Appeals identified such cardiac arrest as the immediate
cause of Catherine's death. 17

The Court of Appeals found criminal negligence on the part of petitioner Dr. Carillo
and his co-accused Dr. Madrid, holding that both had failed to observe the required
standard of diligence in the examination of Catherine prior to the actual administration
of anesthesia; 18 that it was "a bit rash" on the part of the accused Dr. Carillo "to have
administered Nubain without first weighing Catherine"; 19 and that it was an act of
negligence on the part of both doctors when, (a) they failed to monitor Catherine's
heartbeat after the operation and (b) they left the hospital immediately after reviving
Catherine's heartbeat, depriving the latter of immediate and expert medical assistance
when she suffered a heart attack approximately fifteen (15) to thirty (30) minutes later.
20
Since neither petitioner nor his co-accused presented evidence in their own behalf, the
present Petition seeks to question the soundness of the factual conclusions drawn by
the Court of Appeals, upon which the affirmance of petitioner's conviction was based.
Close examination of the instant Petition for Review shows that petitioner's main
arguments are two-fold: (1) the Court of Appeals "completely brushed aside" and
"misapprehended" Catherine's death certificate and biopsy report which allegedly
showed that the cause of death was a ruptured appendix, which led to blood poisoning,
21 rather than faulty anesthetic treatment; and (2) there was no direct evidence of
record showing that Nubain was administered to Catherine either during the
appendectomy procedure or after such operation.
Two (2) related issues are thus posed for the Court's consideration. The first is whether
the Court of Appeals so drastically "misapprehended" the relevant, operative facts in
this case as to compel this Court to examine and resolve question(s) of fact which
would have a decisive significance for the disposition of the case. The rule is too firmly
settled to require much documentation that only questions of law may be raised before
this Court in a petition for review on certiorari, subject to certain well-known
exceptions. 23 After careful scrutiny of petitioner's contentions before us and the
record of this case, we do not believe that petitioner has shown "misapprehension of
facts" on the part of the Court of Appeals which would require this Court to overturn
the judgment reached by the former.
The second issue is whether or not the findings of fact of the Court of Appeals
adequately support the conclusion that petitioner Dr. Carillo was, along with Dr.
Madrid, guilty of simple negligence which resulted in homicide. Our review of the
record leads us to an affirmative answer.
Petitioner contends that the Court of Appeals seriously erred in finding that an
overdose of, or an allergic reaction to, the anesthetic drug Nubain had led to the death
of Catherine Acosta and that the true cause of Catherine's death was that set out in the
death certificate of Catherine: "Septicemia (or blood poisoning) due to perforated
appendix with peritonitis." 24 The concept of causation in general, and the cause of
death in human beings in particular, are complex and difficult notions. What is fairly
clear is that death, understood as a physical condition involving cessation of vital signs
in the brain and heart, is preceded by a series of physiological events, any one of which
events can, with equal cogency, be described as a "cause of death". The Court of
Appeals found that an overdose of, or an adverse reaction to, Nubain, an anesthetic or
pain-killing drug the appropriate dose of which depends on the body weight or mass
of the patient, had generated or triggered off cardiac arrest, which in turn led to lack
of oxygen in Catherine's brain, which then brought about hemorrhaging in the brain.
Vital activity in the brain thereupon ceased. The medical evidence presented at the trial
was quite consistent with the findings of the Court of Appeals which concluded that
cardiac arrest was the cause of Catherine's death. 25
For his part, petitioner insists that cardiac arrest is not the only cause of oxygen-
starvation of the brain, that septicemia with peritonitis or severe infection which had
"gone up to the head" of Catherine was an equally efficient cause of deprivation of the
brain of oxygen and hence of brain hemorrhage. The medical testimony of the expert
witnesses for the prosecution on which petitioner relies is also consistent with
petitioner's theory that septicemia with peritonitis was, or at least could have been, the
cause of Catherine's death. 26
Indeed, it appears to the Court that there was no medical proof submitted to the trial
court to show that one or the other "cause" was necessarily an exclusive cause of death
in the case of Catherine Acosta; that an overdose or allergic reaction to Nubain could
not have combined with septicemia and peritonitis in bringing about Catherine's death.
What is of critical importance for present purposes is not so much the identification of
the "true cause" or "real cause" of Catherine's death but rather the set of circumstances
which both the trial court and the Court of Appeals found constituted simple (as
distinguished from reckless) negligence on the part of the two accused Dr. Madrid and
Dr. Carillo leading to the death of Catherine.
When the patient was wheeled out of the operating room after completion of surgery,
she manifested signs of medical instability (i.e., shivering, paleness, irregular
breathing and weak heart beat). 27 She was not brought to a properly equipped
recovery room, or intensive care until which the hospital lacked. 28 Such facilities and
their professional staffs, of which an anesthetist is commonly a part, are essential for
providing close observation and patient care while a post-surgery patient is recovering
from the effects of anesthesia and while the normal protective mechanisms are still
dull or obtunded. 29 Instead, the patient was merely brought to her assigned hospital
bed and was provided oxygen on the instructions of Dr. Madrid then "revived" her
heartbeat. 30 Both doctors then left their patient and the hospital; approximately fifteen
minutes later, she suffered convulsions and cardiac arrest. 31
The conduct of Dr. Madrid and of the petitioner constituted inadequate care of their
patient in view of her vulnerable condition. Both doctors failed to appreciate the
serious condition of their patient whose adverse physical signs were quite manifest
right after surgery. And after reviving her heartbeat, both doctors failed to monitor
their patient closely or extend further medical care to her; such conduct was especially
necessary in view of the inadequate, post-operative facilities of the hospital. We do
not, of course, seek to hold petitioner responsible for the inadequate facilities of the
Baclaran General Hospital. We consider, however, that the inadequate nature of those
facilities did impose a somewhat higher standard of professional diligence upon the
accused surgeon and anesthetist personally than would have been called for in a
modern fully-equipped hospital.
While Dr. Madrid and a cardiologist were containing the patient's convulsions, and
after the latter had diagnosed that infection had reached the patient's head, these two
(2) apparently after consultation, decided to call-in the petitioner. 32 There is here a
strong implication that the patient's post-operative condition must have been
considered by the two (2) doctors as in some way related to the anesthetic treatment
she had received from the petitioner either during or after the surgical procedure.
Once summoned, petitioner anesthesiologist could not be readily found. When he
finally appeared at 10:30 in the evening, he was evidently in a bad temper, commenting
critically on the dextrose bottles before ordering their removal. 33 This circumstance
indicated he was not disposed to attend to this unexpected call, in violation of the
canons of his profession that as a physician, he should serve the interest of his patient
"with the greatest of solicitude, giving them always his best talent and skill." 34
Indeed, when petitioner finally saw his patient, he offered the unprofessional bluster
to the parents of Catherine that he would resign if the patient will not regain
consciousness. 35 The canons of medical ethics require a physician to "attend to his
patients faithfully and conscientiously." He should secure for them all possible benefits
that may depend upon his professional skill and care. As the sole tribunal to adjudge
the physician's failure to fulfill his obligation to his patient is, in most cases, his own
conscience, violation of this rule on his part is "discreditable and inexcusable". 36
Nubain was an experimental drug for anesthesia and post-operative pain and the
medical literature required that a patient be weighed first before it is administered and
warned that there was no (or inadequate) experience relating to the administration
thereof to a patient less that eighteen (18) ears of age. 37 Yet, the doctor's order sheet
(Exhibit "C") did not contain this precaution but instead directed a reader to apply the
drug only when warranted by the circumstances. 38 During the offer of Exhibit "C"
by the prosecution, Dr. Madrid admitted that this prescription, which was unsigned,
was made in his own handwriting. 39 It must be observed that the instruction was
open-ended in that some other individual still had to determine if circumstances
existed warranting administration of the drug to the patient. The document thus
indicated the abdication of medical responsibility on an extremely critical matter.
Since petitioner anesthesiologist entered subsequent prescriptions or orders in the
same order sheet, which were signed by him, at 7:15 p.m. on the same evening of 31
May 1981, he was in a position to appreciate the dangers inherent in the prior
prescription, which was within his (petitioner's) area of specialization, and to order
measures to correct this anomaly and protect his patient's well-being. So far as the
condition of the evidence shows, he failed to do so. In sum, only a low level of
diligence was exhibited by petitioner and Dr. Madrid in the prescription of medication
for their patient.
As noted earlier, petitioner relied heavily in this proceeding on the testimony on cross-
examination of the expert witnesses for the prosecution to show that blood poisoning
resulting from a ruptured appendix could also be responsible for the patient's death.
No suggestion has been made that the rupture of the patient's occurred prior to surgery.
After her blood sample was examined, the patient was merely diagnosed as a case of
appendicitis, without further elaboration. 40 No intensive preoperative preparations,
like the immediate administration of antibiotics, was thereafter undertaken on the
patient. This is a standard procedure for patients who are, after being diagnosed,
suspected of suffering from a perforated appendix and consequent peritonitis. 41 The
mother also testified that petitioner anesthesiologist merely injected a drug, "pre-
anesthesia" intended to put the patient to sleep, into the container of fluids being
administered to her daughter intravenously at her room, prior to surgery. 42 We note
further that the surgeon Dr. Madrid was forty-five minutes late in arriving at the
operating theater. 43 Considering that delay in treatment of appendicitis increases the
morbidity of the patient, 44 Dr. Madrid's conduct can only be explained by a pre-
operative diagnosis on his part that the condition of appendicitis was not yet attended
by complications (i.e., a ruptured appendix and peritonitis).
The above circumstances do strongly indicate that the rupture of the patient's appendix
occurred during the appendectomy procedure, that is, at a time and place the
operating room where the two (2) accused were in full control of the situation and
could determine decisively what needed to be done in respect of the patient. 45 This
circumstance must be considered in conjunction with other related circumstances
which the prosecution had proven: that the patient was ambulatory when brought to
the operating room; 46 that she left the operating room two (2) hours later in obviously
serious condition; and that an appendectomy accompanied or followed by sustained
antibiotic treatment is a fairly common and generally accepted medical procedure for
dealing with ruptured appendix and peritonitis, 47 a fact of which judicial note may be
taken.
As early as in People v. Vistan, 48 the Court defined simple negligence, penalized
under what is now Article 365 of the Revised Penal Code, as "a mere lack of prevision
in a situation where either the threatened harm is not immediate or the danger not
openly visible." Put in a slightly different way, the gravamen of the offense of simple
negligence is the failure to exercise the diligence necessitated or called for the situation
which was not immediately life-destructive but which culminated, in the present case,
in the death of a human being three (3) days later. Such failure to exercise the necessary
degree of care and diligence is a negative ingredient of the offense charged. The rule
in such cases is that while the prosecution must prove the negative ingredient of the
offense, it needs only to present the best evidence procurable under the circumstances,
in order to shift the burden of disproving or countering the proof of the negative
ingredient to the accused, provided that such initial evidence establishes at least on a
prima facie basis the guilt of the accused. 49 This rule is particularly applicable where
the negative ingredient of the offense is of such a nature or character as, under the
circumstances, to be especially within the knowledge or control of the accused. 50 In
the instant case, the Court is bound to observe that the events which occurred during
the surgical procedure (including whether or not Nubain had in fact been administered
as an anesthesia immediately before or during the surgery) were peculiarly within the
knowledge and control of Dr. Carillo and Dr. Madrid. It was, therefore, incumbent
upon the two (2) accused to overturn the prima facie case which the prosecution had
established, by reciting the measures which they had actually taken to prevent or to
counter the obviously serious condition of Catherine Acosta which was evident right
after surgery. This they failed or refused to do so.
Still another circumstance of which account must be taken is that both petitioner and
Dr. Madrid failed to inform the parents of their minor patient of the nature of her
illness, or to explain to them either during the surgery (if feasible) or at any time after
the surgery, the events which comprised the dramatic deterioration of her condition
immediately after surgery as compared with her pre-surgery condition. To give a
truthful explanation to the parents was a duty imposed upon them by the canons of
their profession. 51 Petitioner should have explained to Catherine's parents the actual
circumstances surrounding Catherine's death, how, in other words, a simple
appendectomy procedure upon an ambulatory patient could have led to such fatal
consequences.
By way of resume, in the case at bar, we consider that the chain of circumstances above
noted, namely: (1) the failure of petitioner and Dr. Madrid to appreciate the serious
post-surgery condition of their patient and to monitor her condition and provide close
patient care to her; (2) the summons of petitioner by Dr. Madrid and the cardiologist
after the patient's heart attack on the very evening that the surgery was completed; (3)
the low level of care and diligence exhibited by petitioner in failing to correct Dr.
Madrid's prescription of Nubain for post-operative pain; (4) the extraordinary failure
or refusal of petitioner and Dr. Madrid to inform the parents of Catherine Acosta of
her true condition after surgery, in disregard of the requirements of the Code of
Medical Ethics; and (5) the failure of petitioner and Dr. Madrid to prove that they had
in fact exercised the necessary and appropriate degree of care and diligence to prevent
the sudden decline in the condition of Catherine Acosta and her death three (3) days
later, leads the Court to the conclusion, with moral certainty, that petitioner and Dr.
Madrid were guilty of simple negligence resulting in homicide.
In addition to the main arguments raised by petitioner earlier, he also raised an
ancillary, constitutional claim of denial of due process. He contends that he was
deprived of his right to have competent representation at trial, and to have his cause
adequately heard, because his counsel of record, Atty. Jose B. Puerto, was
"incompetent" and exhibited "gross negligence" by manifesting an intent to file a
demurrer to the evidence, in failing to present evidence in his behalf and in omitting
to file a defense memorandum for the benefit of Judge Yuzon, after the latter took
over the case at the end of trial and before the Judge rendered his decision. 52
Petitioner submits he is entitled to a new trial. 53
These contentions do not persuade. An examination of the record indicates that Atty.
Puerto represented petitioner during trial with reasonable competence. Except for the
two hearing sessions when witnesses Domingo Acosta was cross-examined and
recross-examined by Atty. Puerto, petitioner was present during all the sessions when
the other prosecution witnesses were presented and during which Atty. Puerto
extensively cross-examined them in behalf of petitioner and Dr. Madrid. This counsel
elicited from the two (2) expert witnesses for the prosecution testimony favorable to
petitioner and which was relied upon by the latter in this proceeding. 54 The record
further indicates that if petitioner indeed entertained substantial doubts about the
capability of Atty. Puerto, he could have easily terminated the services of that counsel
and retained a new one, or sought from the trial court the appointment of counsel de
oficio, during the ample opportunity given from the time Atty. Puerto manifested his
intent to file a demurrer on 16 October 1985, to the submission of the case for decision
on 25 June 1986 and before the promulgation of judgment on 19 September 1986. 55
During all this time, petitioner could have obtained leave of court to present evidence
in his behalf in lieu of a demurrer, or to submit a memorandum for the defense. After
promulgation of the judgment of conviction, petitioner did not seek a new trial, but
permitted Atty. Puerto to obtain leave from the trial court to continue on bail during
the pendency of the proceedings before the Court of Appeals. 56 Indeed, petitioner
replaced Atty. Puerto as counsel only upon institution of the present petition.
Petitioner's constitutional objection is plainly an afterthought.
WHEREFORE, the Decision of the Court of Appeals dated 28 November 1988 is
hereby AFFIRMED, subject only to the modification that the indemnity for the death
of Catherine Acosta is hereby increased to P50,000.00, in line with current
jurisprudence.
SO ORDERED.
 SECOND DIVISION
[G.R. No. 118141. September 5, 1997]
LEONILA GARCIA-RUEDA, petitioner, vs. WILFREDO L. PASCASIO,
RAUL R. ARNAU, ABELARDO L. APORTADERA JR., Honorable
CONDRADO M. VASQUEZ, all of the Office of the Ombudsman; JESUS F.
GUERRERO, PORFIRIO MACARAEG, and GREGORIO A. ARIZALA, all of
the Office of the City Prosecutor, Manila, respondents.
DECISION
ROMERO, J.:
May this Court review the findings of the Office of the Ombudsman? The general rule
has been enunciated in Ocampo v. Ombudsman [1] which states:
In the exercise of its investigative power, this Court has consistently held that courts
will not interfere with the discretion of the fiscal or the Ombudsman to determine the
specificity and adequacy of the averments of the offense charged. He may dismiss the
complaint forthwith if he finds it to be insufficient in form and substance or if he
otherwise finds no ground to continue with the inquiry; or he may proceed with the
investigation of the complaint if, in his view, it is in due and proper form.
Does the instant case warrant a departure from the foregoing general rule? When a
patient dies soon after surgery under circumstances which indicate that the attending
surgeon and anaesthesiologist may have been guilty of negligence but upon their being
charged, a series of nine prosecutors toss the responsibility of conducting a preliminary
investigation to each other with contradictory recommendations, ping-pong style,
perhaps the distraught widow is not to be blamed if she finally decides to accuse the
City Prosecutors at the end of the line for partiality under the Anti-Graft and Corrupt
Practices Act. Nor may she be entirely faulted for finally filing a petition before this
Court against the Ombudsman for grave abuse of discretion in dismissing her
complaint against said City Prosecutors on the ground of lack of evidence. Much as
we sympathize with the bereaved widow, however, this Court is of the opinion that the
general rule still finds application in instant case. In other words, the respondent
Ombudsman did not commit grave abuse of discretion in deciding against filing the
necessary information against public respondents of the Office of the City Prosecutor.
The following facts are borne out by the records.
Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical
operation at the UST hospital for the removal of a stone blocking his ureter. He was
attended by Dr. Domingo Antonio, Jr. who was the surgeon, while Dr. Erlinda
Balatbat-Reyes was the anaesthesiologist. Six hours after the surgery, however,
Florencio died of complications of unknown cause, according to officials of the UST
Hospital.[2]
Not satisfied with the findings of the hospital, petitioner requested the National Bureau
of Investigation (NBI) to conduct an autopsy on her husbands body. Consequently, the
NBI ruled that Florencios death was due to lack of care by the attending physician in
administering anaesthesia. Pursuant to its findings, the NBI recommended that Dr.
Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged for Homicide through
Reckless Imprudence before the Office of the City Prosecutor.
During the preliminary investigation, what transpired was a confounding series of
events which we shall try to disentangle. The case was initially assigned to Prosecutor
Antonio M. Israel, who had to inhibit himself because he was related to the counsel of
one of the doctors. As a result, the case was re-raffled to Prosecutor Norberto G. Leono
who was, however, disqualified on motion of the petitioner since he disregarded
prevailing laws and jurisprudence regarding preliminary investigation. The case was
then referred to Prosecutor Ramon O. Carisma, who issued a resolution recommending
that only Dr. Reyes be held criminally liable and that the complaint against Dr. Antonio
be dismissed.
The case took another perplexing turn when Assistant City Prosecutor Josefina Santos
Sioson, in the interest of justice and peace of mind of the parties, recommended that
the case be re-raffled on the ground that Prosecutor Carisma was partial to the
petitioner. Thus, the case was transferred to Prosecutor Leoncia R. Dimagiba, where a
volte face occurred again with the endorsement that the complaint against Dr. Reyes
be dismissed and instead, a corresponding information be filed against Dr. Antonio.
Petitioner filed a motion for reconsideration, questioning the findings of Prosecutor
Dimagiba.
Pending the resolution of petitioners motion for reconsideration regarding Prosecutor
Dimagibas resolution, the investigative pingpong continued when the case was again
assigned to another prosecutor, Eudoxia T. Gualberto, who recommended that Dr.
Reyes be included in the criminal information of Homicide through Reckless
Imprudence. While the recommendation of Prosecutor Gualberto was pending, the
case was transferred to Senior State Prosecutor Gregorio A. Arizala, who resolved to
exonerate Dr. Reyes from any wrongdoing, a resolution which was approved by both
City Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus F. Guerrero.
Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) of
Republic Act No. 3019 [3] against Prosecutors Guerrero, Macaraeg, and Arizala for
manifest partiality in favor of Dr. Reyes before the Office of the Ombudsman.
However, on July 11, 1994, the Ombudsman issued the assailed resolution dismissing
the complaint for lack of evidence.
In fine, petitioner assails the exercise of the discretionary power of the Ombudsman to
review the recommendations of the government prosecutors and to approve and
disapprove the same. Petitioner faults the Ombudsman for, allegedly in grave abuse of
discretion, refusing to find that there exists probable cause to hold public respondent
City Prosecutors liable for violation of Section 3(e) of R.A. No. 3019.
Preliminarily, the powers and functions of the Ombudsman have generally been
categorized into the following: investigatory powers, prosecutory power, public
assistance function, authority to inquire and obtain information, and function to adopt,
institute and implement preventive measures. [4]
As protector of the people, the Office of the Ombudsman has the power, function and
duty to act promptly on complaints filed in any form or manner against public officials
and to investigate any act or omission of any public official when such act or omission
appears to be illegal, unjust, improper or inefficient. [5]
While the Ombudsman has the full discretion to determine whether or not a criminal
case should be filed, this Court is not precluded from reviewing the Ombudsmans
action when there is an abuse of discretion, in which case Rule 65 of the Rules of Court
may exceptionally be invoked pursuant to Section I, Article VIII of the 1987
Constitution. [6]
In this regard, grave abuse of discretion has been defined as where a power is exercised
in an arbitrary or despotic manner by reason of passion or personal hostility so patent
and gross as to amount to evasion of positive duty or virtual refusal to perform a duty
enjoined by, or in contemplation of law. [7]
From a procedural standpoint, it is certainly odd why the successive transfers from one
prosecutor to another were not sufficiently explained in the Resolution of the
Ombudsman. Being the proper investigating authority with respect to misfeasance,
non-feasance and malfeasance of public officials, the Ombudsman should have been
more vigilant and assiduous in determining the reasons behind the buckpassing to
ensure that no irregularity took place.
Whether such transfers were due to any outside pressure or ulterior motive is a matter
of evidence. One would have expected the Ombudsman, however, to inquire into what
could hardly qualify as standard operating procedure, given the surrounding
circumstances of the case.
While it is true that a preliminary investigation is essentially inquisitorial, and is often
the only means to discover who may be charged with a crime, its function is merely to
determine the existence of probable cause. [8] Probable cause has been defined as the
existence of such fact and circumstances as would excite the belief, in a reasonable
mind, acting on the facts within the knowledge of the prosecution, that the person
charged was guilty of the crime for which he was prosecuted.[9]
Probable cause is a reasonable ground of presumption that a matter is, or may be, well
founded, such a state of facts in the mind of the prosecutor as would lead a person of
ordinary caution and prudence to believe, or entertain an honest or strong suspicion,
that a thing is so. The term does not mean actual and positive cause nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding
of probable cause does not require an inquiry into whether there is sufficient evidence
to procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for the
reception of evidence of the prosecution in support of the charge.[10]
In the instant case, no less than the NBI pronounced after conducting an autopsy that
there was indeed negligence on the part of the attending physicians in administering
the anaesthesia. [11] The fact of want of competence or diligence is evidentiary in
nature, the veracity of which can best be passed upon after a full-blown trial for it is
virtually impossible to ascertain the merits of a medical negligence case without
extensive investigation, research, evaluation and consultations with medical experts.
Clearly, the City Prosecutors are not in a competent position to pass judgment on such
a technical matter, especially when there are conflicting evidence and findings. The
bases of a partys accusation and defenses are better ventilated at the trial proper than
at the preliminary investigation.
A word on medical malpractice or negligence cases.
In its simplest terms, the type of lawsuit which has been called medical malpractice
or, more appropriately, medical negligence, is that type of claim which a victim has
available to him or her to redress a wrong committed by a medical professional which
has caused bodily harm.
In order to successfully pursue such a claim, a patient must prove that a health care
provider, in most cases a physician, either failed to do something which a reasonably
prudent health care provider would have done, or that he or she did something that a
reasonably prudent provider would not have done; and that that failure or action caused
injury to the patient.[12]
Hence, there are four elements involved in medical negligence cases: duty, breach,
injury and proximate causation.
Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a
physician-patient relationship was created. In accepting the case, Dr. Antonio and Dr.
Reyes in effect represented that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, they will employ such training,
care and skill in the treatment of their patients.[13] They have a duty to use at least the
same level of care that any other reasonably competent doctor would use to treat a
condition under the same circumstances. The breach of these professional duties of
skill and care, or their improper performance, by a physician surgeon whereby the
patient is injured in body or in health, constitutes actionable malpractice.[14]
Consequently, in the event that any injury results to the patient from want of due care
or skill during the operation, the surgeons may be held answerable in damages for
negligence.[15]
Moreover, in malpractice or negligence cases involving the administration of
anaesthesia, the necessity of expert testimony and the availability of the charge of res
ipsa loquitur to the plaintiff, have been applied in actions against anaesthesiologists to
hold the defendant liable for the death or injury of a patient under excessive or
improper anaesthesia.[16] Essentially, it requires two-pronged evidence: evidence as
to the recognized standards of the medical community in the particular kind of case,
and a showing that the physician in question negligently departed from this standard
in his treatment.[17]
Another element in medical negligence cases is causation which is divided into two
inquiries: whether the doctors actions in fact caused the harm to the patient and
whether these were the proximate cause of the patients injury.[18] Indeed here, a
causal connection is discernible from the occurrence of the victims death after the
negligent act of the anaesthesiologist in administering the anesthesia, a fact which, if
confirmed, should warrant the filing of the appropriate criminal case. To be sure, the
allegation of negligence is not entirely baseless. Moreover, the NBI deduced that the
attending surgeons did not conduct the necessary interview of the patient prior to the
operation. It appears that the cause of the death of the victim could have been averted
had the proper drug been applied to cope with the symptoms of malignant
hyperthermia. Also, we cannot ignore the fact that an antidote was readily available to
counteract whatever deleterious effect the anaesthesia might produce. [19] Why these
precautionary measures were disregarded must be sufficiently explained.
The City Prosecutors were charged with violating Section 3(e) of the Anti-Graft and
Corrupt Practices Act which requires the following facts:
1. The accused is a public officer discharging administrative or official functions or
private persons charged in conspiracy with them;
2. The public officer committed the prohibited act during the performance of his
official duty or in relation to his public position;
3. The public officer acted with manifest partiality, evident bad faith or gross,
inexcusable negligence; and
4. His action caused undue injury to the Government or any private party, or gave any
party any unwarranted benefit, advantage or preference to such parties. [20]
Why did the complainant, petitioner in instant case, elect to charge respondents under
the above law?
While a party who feels himself aggrieved is at liberty to choose the appropriate
weapon from the armory, it is with no little surprise that this Court views the choice
made by the complainant widow.
To our mind, the better and more logical remedy under the circumstances would have
been to appeal the resolution of the City Prosecutors dismissing the criminal complaint
to the Secretary of Justice under the Department of Justices Order No. 223, [21]
otherwise known as the 1993 Revised Rules on Appeals From Resolutions In
Preliminary Investigations/Reinvestigations, as amended by Department Order No.
359, Section 1 of which provides:
Section 1. What May Be Appealed. - Only resolutions of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a
criminal complaint may be the subject of an appeal to the Secretary of Justice except
as otherwise provided in Section 4 hereof.
What action may the Secretary of Justice take on the appeal? Section 9 of Order No.
223 states: The Secretary of Justice may reverse, affirm or modify the appealed
resolution. On the other hand, He may motu proprio or on motion of the appellee,
dismiss outright the appeal on specified grounds. [22]
In exercising his discretion under the circumstances, the Ombudsman acted within his
power and authority in dismissing the complaint against the Prosecutors and this Court
will not interfere with the same.
WHEREFORE, in view of the foregoing, the instant petition is DISMISSED, without
prejudice to the filing of an appeal by the petitioner with the Secretary of Justice
assailing the dismissal of her criminal complaint by the respondent City Prosecutors.
No costs.
SO ORDERED.

THIRD DIVISION
[G.R. No. 118231. July 5, 1996]
DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE G.
VILLEGAS, respondents.
DECISION
DAVIDE, JR., J.:
Throughout history, patients have consigned their fates and lives to the skill of their
doctors. For a breach of this trust, men have been quick to demand retribution. Some
4,000 years ago, the Code of Hammurabi then already provided: "If a physician make
a deep incision upon a man with his bronze lancet and cause the man's death, or operate
on the eye socket of a man with his bronze lancet and destroy the man's eyes, they
shall cut off his hand." Subsequently, Hippocrates wrote what was to become part of
the healer's oath: "I will follow that method of treatment which according to my ability
and judgment, I consider for the benefit of my patients, and abstain from whatever is
deleterious and mischievous . . . . While I continue to keep this oath unviolated may it
be granted me to enjoy life and practice the art, respected by all men at all times but
should I trespass and violate this oath, may the reverse be my lot." At present, the
primary objective of the medical profession is the preservation of life and maintenance
of the health of the people.
Needless to say then, when a physician strays from his sacred duty and endangers
instead the life of his patient, he must be made to answer therefor. Although society
today cannot and will not tolerate the punishment meted out by the ancients, neither
will it and this Court, as this case would show, let the act go uncondemned.
The petitioners appeal from the decision of the Court of Appeals of 11 May 1994 in
CA-G.R. CV No. 30851, which reversed the decision of 21 December 1990 of Branch
30 of the Regional Trial Court (RTC) of Negros Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital,
Dumaguete City from January 9, 1978 to September 1989. Between 1987 and
September, 1989 she was also the Actg. Head of the Department of Obstetrics and
Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as
the latter's private patient sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris
Teresita Sy who was also a Resident Physician at the same Hospital, C.I. and O.R.
Nurse Arlene Diones and some student nurses performed a simple cesarean section on
Mrs. Villegas at the Negros Oriental Provincial Hospital and after 45 minutes Mrs.
Villegas delivered her first child, Rachel Acogido, at about 11:45 that morning.
Thereafter, Plaintiff remained confined at the Hospital until September 27, 1988
during which period of confinement she was regularly visited by Dr. Batiquin. On
September 28, 1988, Mrs. Villegas checked out of the Hospital . . . and on the same
day she paid Dr. Batiquin, thru the latter's secretary, the amount of P1,500.00 as
"professional fee" . . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and
complained of being feverish. She also gradually lost her appetite, so she consulted
Dr. Batiquin at the latter's polyclinic who prescribed for her certain medicines . . .
which she had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin on
October 31, 1988 . . . certifying to her physical fitness to return to her work on
November 7, 1988. So, on the second week of November, 1988 Mrs. Villegas returned
to her work at the Rural Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end
and despite the medications administered by Dr. Batiquin. When the pains become
unbearable and she was rapidly losing weight she consulted Dr. Ma. Salud Kho at the
Holy Child's Hospital in Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas
at the Holy Child's Hospital on January 20, 1989 she found Mrs. Villegas to be
feverish, pale and was breathing fast. Upon examination she felt an abdominal mass
one finger below the umbilicus which she suspected to be either a tumor of the uterus
or an ovarian cyst, either of which could be cancerous. She had an x-ray taken of Mrs.
Villegas' chest, abdomen and kidney. She also took blood tests of Plaintiff. A blood
count showed that Mrs. Villegas had [an] infection inside her abdominal cavity. The
result of all those examinations impelled Dr. Kho to suggest that Mrs. Villegas submit
to another surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow
discharge inside, an ovarian cyst on each of the left and right ovaries which gave out
pus, dirt and pus behind the uterus, and a piece of rubber materials on the right side of
the uterus embedded on [sic] the ovarian cyst, 2 inches by 3/4 inch in size. This piece
of rubber material which Dr. Kho described as a "foreign body" looked like a piece of
a "rubber glove" . . . and which is [sic] also "rubber-drain like . . . . It could have been
a torn section of a surgeon's gloves or could have come from other sources. And this
foreign body was the cause of the infection of the ovaries and consequently of all the
discomfort suffered by Mrs. Villegas after her delivery on September 21, 1988.
The piece of rubber allegedly found near private respondent Flotilde Villegas' uterus
was not presented in court, and although Dr. Ma. Salud Kho testified that she sent it to
a pathologist in Cebu City for examination, it was not mentioned in the pathologist's
Surgical Pathology Report.
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of rubber
are a Medical Certificate, a Progress Record, an Anesthesia Record, a Nurse's Record,
and a Physician's Discharge Summary. The trial court, however, regarded these
documentary evidence as mere hearsay, "there being no showing that the person or
persons who prepared them are deceased or unable to testify on the facts therein stated
. . . . Except for the Medical Certificate (Exhibit "F"), all the above documents were
allegedly prepared by persons other than Dr. Kho, and she merely affixed her signature
on some of them to express her agreement thereto . . . ." The trial court also refused
to give weight to Dr. Kho's testimony regarding the subject piece of rubber as Dr. Kho
"may not have had first-hand knowledge" thereof, as could be gleaned from her
statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign body
that goes with the tissues but unluckily I don't know where the rubber was.
The trial court deemed vital Dr. Victoria Batiquin's testimony that when she confronted
Dr. Kho regarding the piece of rubber, "Dr. Kho answered that there was rubber indeed
but that she threw it away." This statement, the trial court noted, was never denied nor
disputed by Dr. Kho, leading it to conclude:
There are now two different versions on the whereabouts of that offending "rubber"
(1) that it was sent to the Pathologist in Cebu as testified to in Court by Dr. Kho and
(2) that Dr. Kho threw it away as told by her to Defendant. The failure of the Plaintiffs
to reconcile these two different versions serve only to weaken their claim against
Defendant Batiquin.
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even without
admitting the private respondents' documentary evidence, deemed Dr. Kho's positive
testimony to definitely establish that a piece of rubber was found near private
respondent Villegas' uterus. Thus, the Court of Appeals reversed the decision of the
trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established by preponderance of
evidence. The trial court itself had narrated what happened to appellant Flotilde after
the cesarean operation made by appellee doctor . . . . After the second operation,
appellant Flotilde became well and healthy. Appellant Flotilde's troubles were caused
by the infection due to the "rubber" that was left inside her abdomen. Both appellants
testified that after the operation made by appellee doctor, they did not go to any other
doctor until they finally decided to see another doctor in January, 1989 when she was
not getting any better under the care of appellee Dr. Batiquin . . . . Appellee Dr.
Batiquin admitted on the witness stand that she alone decided when to close the
operating area; that she examined the portion she operated on before closing the same
. . . . Had she exercised due diligence, appellee Dr. Batiquin would have found the
rubber and removed it before closing the operating area.
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of P7,100.00
(Exh. G-1-A) plus hospital and medical expenses together with doctor's fees in the
total amount P9,900.00 (Exhs. G and G-2)] for the second operation that saved her
life.
For the miseries appellants endured for more than three (3) months, due to the
negligence of appellee Dr. Batiquin, they are entitled to moral damages in the amount
of P100,000.00; exemplary damages in the amount of P20,000.00 and attorney's fees
in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children because her uterus and
ovaries were removed by Dr. Kho is not taken into consideration as it is not shown
that the removal of said organs were the direct result of the rubber left by appellee Dr.
Batiquin near the uterus. What is established is that the rubber left by appellee cause
infection, placed the life of appellant Flotilde in jeopardy and caused appellants fear,
worry and anxiety . . . .
WHEREFORE, the appealed judgment, dismissing the complaint for
damages is REVERSED and SET ASIDE. Another judgment is hereby
entered ordering defendants-appellees to pay plaintiffs-appellants the
amounts of P17,000.00 as and for actual damages; P100,000.00 as and for
moral damages; P20,000.00 as and for exemplary damages; and P25,000.00
as and for attorney's fees plus the cost of litigation.
SO ORDERED.
From the above judgment, the petitioners appealed to this Court claiming that the
appellate court; (1) committed grave abuse of discretion by resorting to findings of
fact not supported by the evidence on record, and (2) exceeded its discretion,
amounting to lack or excess of jurisdiction, when it gave credence to testimonies
punctured with contradictions and falsities.
The private respondents commented that the petition raised only questions of fact,
which were not proper for review by this Court.
While the rule is that only questions of law may be raised in a petition for review on
certiorari, there are exceptions, among which are when the factual findings of the trial
court and the appellate court conflict, when the appealed decision is clearly
contradicted by the evidence on record, or when the appellate court misapprehended
the facts.
After deciphering the cryptic petition, we find that the focal point of the instant appeal
is the appreciation of Dr. Kho's testimony. The petitioners contend that the Court of
Appeals misappreciated the following portion of Dr. Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case this would
turn out to be a medico-legal case, I have heard somebody that [sic] says [sic] there is
[sic] a foreign body that goes with the tissues but unluckily I don't know where the
rubber was. It was not in the Lab, it was not in Cebu. (Italics supplied)
The petitioners prefer the trial court's interpretation of the above testimony, i.e., that
Dr. Kho's knowledge of the piece of rubber was based on hearsay. The Court of
Appeals, on the other hand, concluded that the underscored phrase was taken out of
context by the trial court. According to the Court of Appeals, the trial court should
have likewise considered the other portions of Dr. Kho's testimony, especially the
following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside the
abdomen, there was an ovarian cyst on the left and side and there was also an ovarian
cyst on the right which, on opening up or freeing it up from the uterus, turned out to
be pus. Both ovaries turned out . . . to have pus. And then, cleaning up the uterus, at
the back of the uterus it was very dirty, it was full of pus. And there was a [piece of]
rubber, we found a [piece of] rubber on the right side.
We agree with the Court of Appeals. The phrase relied upon by the trial court does not
negate the fact that Dr. Kho saw a piece of rubber in private respondent Villegas'
abdomen, and that she sent it to a laboratory and then to Cebu City for examination by
a pathologist. Not even the Pathologist's Report, although devoid of any mention of a
piece of rubber, could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of
the piece of rubber could not be based on other than firsthand knowledge for, as she
asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it.
The petitioners emphasize that the private respondents never reconciled Dr. Kho's
testimony with Dr. Batiquin's claim on the witness stand that when Dr. Batiquin
confronted Dr. Kho about the foreign body, the latter said that there was a piece of
rubber but that she threw it away. Although hearsay, Dr. Batiquin's claim was not
objected to, and hence, the same is admissible but it carries no probative value.
Nevertheless, assuming otherwise, Dr. Batiquin's statement cannot belie the fact that
Dr. Kho found a piece of rubber near private respondent Villegas' uterus. And even if
we were to doubt Dr. Kho as to what she did to the piece of rubber, i.e., whether she
threw it away or sent it to Cebu City, we are not justified in distrusting her as to her
recovery of a piece of rubber from private respondent Villegas' abdomen. On this
score, it is perfectly reasonable to believe the testimony of a witness with respect to
some facts and disbelieve his testimony with respect to other facts. And it has been
aptly said that even when a witness is found to have deliberately falsified in some
material particulars, it is not required that the whole of his uncorroborated testimony
be rejected, but such portions thereof deemed worthy of belief may be credited.
It is here worth nothing that the trial court paid heed to the following portions of Dr.
Batiquin's testimony: that no rubber drain was used in the operation, and that there
was neither any tear on Dr. Batiquin's gloves after the operation nor blood smears on
her hands upon removing her gloves. Moreover, the trial court pointed out that the
absence of a rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant
during the operation on private respondent Villegas. But the trial court failed to
recognize that the assertions of Drs. Batiquin and Sy were denials or negative
testimonies. Well-settled is the rule that positive testimony is stronger than negative
testimony. Of course, as the petitioners advocate, such positive testimony must come
from a credible source, which leads us to the second assigned error.
While the petitioners claim that contradictions and falsities punctured Dr. Kho's
testimony, a reading of the said testimony reveals no such infirmity and establishes
Dr. Kho as a credible witness. Dr. Kho was frank throughout her turn on the witness
stand. Furthermore, no motive to state any untruth was ever imputed against Dr. Kho,
leaving her trustworthiness unimpaired. The trial court's following declaration shows
that while it was critical of the lack of care with which Dr. Kho handled the piece of
rubber, it was not prepared to doubt Dr. Kho's credibility, thus only supporting out
appraisal of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about her findings,
but it can also be said that she did not take the most appropriate precaution to preserve
that "piece of rubber" as an eloquent evidence of what she would reveal should there
be a "legal problem" which she claim[s] to have anticipated.
Considering that we have assessed Dr. Kho to be a credible witness, her positive
testimony [that a piece of rubber was indeed found in private respondent Villegas'
abdomen] prevails over the negative testimony in favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to
delve into the nature and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury
is shown to be under the management of the defendant, and the accident is such as in
the ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care." Or as Black's Law Dictionary
puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or inference that
defendant was negligent, which arises upon proof that [the] instrumentality causing
injury was in defendant's exclusive control, and that the accident was one which
ordinary does not happen in absence of negligence. Res ipsa loquitur is [a] rule of
evidence whereby negligence of [the] alleged wrongdoer may be inferred from [the]
mere fact that [the] accident happened provided [the] character of [the] accident and
circumstances attending it lead reasonably to belief that in [the] absence of negligence
it would not have occurred and that thing which caused injury is shown to have been
under [the] management and control of [the] alleged wrongdoer . . . . Under [this]
doctrine . . . the happening of an injury permits an inference of negligence where
plaintiff produces substantial evidence that [the] injury was caused by an agency or
instrumentality under [the] exclusive control and management of defendant, and that
the occurrence [sic] was such that in the ordinary course of things would not happen
if reasonable care had been used.
actual culprit or the exact cause of the foreign object finding its way into private
respondent Villegas' body, which, needless to say, does not occur unless through the
intervention of negligence. Second, since aside from the cesarean section, private
respondent Villegas underwent no other operation which could have caused the
offending piece of rubber to appear in her uterus, it stands to reason that such could
only have been a by-product of the cesarean section performed by Dr. Batiquin. The
petitioners, in this regard, failed to overcome the presumption of negligence arising
from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for
negligently leaving behind a piece of rubber in private respondent Villegas' abdomen
and for all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role the medical
profession plays in the lives of the people, and State's compelling interest to enact
measures to protect the public from "the potentially deadly effects of incompetence
and ignorance in those who would undertake to treat our bodies and minds for disease
or trauma." Indeed, a physician is bound to serve the interest of his patients "with the
greatest of solicitude, giving them always his best talent and skill." Through her
tortious conduct, the petitioner endangered the life of Flotilde Villegas, in violation of
her profession's rigid ethical code and in contravention of the legal standards set forth
for professionals, in the general, and members of the medical profession, in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court of Appeals in
CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.

xxx xxx xxx

The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of
negligence which recognizes that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of negligence. The doctrine is
not a rule of substantive law, but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and circumstances of a particular
case, is not intended to and does not dispense with the requirement of proof of culpable
negligence on the party charged. It merely determines and regulates what shall be
prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach
of the duty of due care. The doctrine can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not readily available.

In the instant case, all the requisites for recourse to the doctrine are present. First, the
entire proceedings of the cesarean section were under the exclusive control of Dr.
Batiquin. In this light, the private respondents were bereft of direct evidence as to the
 THIRD DIVISION
[G.R. No. 122445. November 18, 1997]
DR. NINEVETCH CRUZ, petitioner, vs. COURT OF APPEALS and LYDIA
UMALI, respondents.
DECISION
FRANCISCO, J.:
"Doctors are protected by a special law. They are not guarantors of care. They do not
even warrant a good result. They are not insurers against mishap or unusual
consequences. Furthermore they are not liable for honest mistake of judgment"[1]
The present case against petitioner is in the nature of a medical malpractice suit, which
in simplest term is the type of claim which a victim has available to him or her to
redress a wrong committed by a medical professional which has cause bodily harm.[2]
In this jurisdiction, however, such claims are most often brought as a civil action for
damages under Article 2176 of the Civil Code,[3] and in some instances, as a criminal
case under Article 365 of the Revised Penal Code[4] with which the civil action for
damages is impliedly instituted. It is via the latter type of action that the heirs of the
deceased sought redress for the petitioner's alleged imprudence and negligence in
treating the deceased thereby causing her death. The petitioner and one Dr. Lina Ercillo
who was the attending anaesthesiologist during the operation of the deceased were
charged with "reckless imprudence and negligence resulting to (sic) homicide" in an
information which reads:
"That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the accused abovenamed, being
then the attending anaesthesiologist and surgeon, respectively, did then and there, in a
negligence (sic), careless, imprudent, and incompetent manner, and failing to supply
or store sufficient provisions and facilities necessary to meet any and all exigencies
apt to arise before, during and/or after a surgical operation causing by such negligence,
carelessness, imprudence, and incompetence, and causing by such failure, including
the lack of preparation and foresight needed to avert a tragedy, the untimely death of
said Lydia Umali on the day following said surgical operation."[5]
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the
above-mentioned charge. On March 4, 1994, the Municipal Trial Court in Cities
(MTCC) of San Pablo City rendered a decision, the dispositive portion of which is
hereunder quoted as follows:
"WHEREFORE, the court finds the accused Dr. Lina Ercillo not guilty of the offense
charged for insufficiency of evidence while her co-accused Dra. Ninevetch Cruz is
hereby held responsible for the death of Lydia Umali on March 24, 1991, and therefore
guilty under Art. 365 of the Revised Penal Code, and she is hereby sentenced to suffer
the penalty of 2 months and 1 day imprisonment of arresto mayor with costs."[6]
The petitioner appealed her conviction to the Regional Trial Court (RTC) which
affirmed in toto the decision of the MTCC[7] prompting the petitioner to file a petition
for review with the Court of Appeals but to no avail. Hence this petition for review on
certiorari assailing the decision promulgated by the Court of Appeals on October 24,
1995 affirming petitioner's conviction with modification that she is further directed to
pay the heirs of Lydia Umali P50,000.00 as indemnity for her death.[8]
In substance, the petition brought before this Court raises the issue of whether or not
petitioner's conviction of the crime of reckless imprudence resulting in homicide,
arising from an alleged medical malpractice, is supported by the evidence on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied
her mother to the Perpetual Help Clinic and General Hospital situated in Balagtas
Street, San Pablo City, Laguna. They arrived at the said hospital at around 4:30 in the
afternoon of the same day.[9] Prior to March 22, 1991, Lydia was examined by the
petitioner who found a "myoma"[10] in her uterus, and scheduled her for a
hysterectomy operation on March 23, 1991.[11] Rowena and her mother slept in the
clinic on the evening of March 22, 1991 as the latter was to be operated on the next
day at 1:00 o'clock in the afternoon.[12] According to Rowena, she noticed that the
clinic was untidy and the window and the floor were very dusty prompting her to ask
the attendant for a rag to wipe the window and the floor with.[13] Because of the untidy
state of the clinic, Rowena tried to persuade her mother not to proceed with the
operation.[14] The following day, before her mother was wheeled into the operating
room, Rowena asked the petitioner if the operation could be postponed. The petitioner
called Lydia into her office and the two had a conversation. Lydia then informed
Rowena that the petitioner told her that she must be operated on as scheduled.[15]
Rowena and her other relatives, namely her husband, her sister and two aunts waited
outside the operating room while Lydia underwent operation. While they were waiting,
Dr. Ercillo went out of the operating room and instructed them to buy tagamet ampules
which Rowena's sister immediately bought. About one hour had passed when Dr.
Ercillo came out again this time to ask them to buy blood for Lydia. They bought type
"A" blood from the St. Gerald Blood Bank and the same was brought by the attendant
into the operating room. After the lapse of a few hours, the petitioner informed them
that the operation was finished. The operating staff then went inside the petitioner's
clinic to take their snacks. Some thirty minutes after, Lydia was brought out of the
operating room in a stretcher and the petitioner asked Rowena and the other relatives
to buy additional blood for Lydia. Unfortunately, they were not able to comply with
petitioner's order as there was no more type "A" blood available in the blood bank.
Thereafter, a person arrived to donate blood which was later transfused to Lydia.
Rowena then noticed her mother, who was attached to an oxygen tank, gasping for
breath. Apparently the oxygen supply had run out and Rowena's husband together with
the driver of the accused had to go to the San Pablo District Hospital to get oxygen.
Lydia was given the fresh supply of oxygen as soon as it arrived.[16] But at around
10:00 o'clock P.M. she went into shock and her blood pressure dropped to 60/50.
Lydia's unstable condition necessitated her transfer to the San Pablo District Hospital
so she could be connected to a respirator and further examined.[17] The transfer to the
San Pablo City District Hospital was without the prior consent of Rowena nor of the
other relatives present who found out about the intended transfer only when an
ambulance arrived to take Lydia to the San Pablo District Hospital. Rowena and her
other relatives then boarded a tricycle and followed the ambulance.[18]
Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the
operating room and the petitioner and Dr. Ercillo re-operated on her because there was
blood oozing from the abdominal incision.[19] The attending physicians summoned
Dr. Bartolome Angeles, head of the Obstetrics and Gynecology Department of the San
Pablo District Hospital. However, when Dr. Angeles arrived, Lydia was already in
shock and possibly dead as her blood pressure was already 0/0. Dr. Angeles then
informed petitioner and Dr. Ercillo that there was nothing he could do to help save the
patient.[20] While petitioner was closing the abdominal wall, the patient died.[21]
Thus, on March 24, 1991, at 3:00 o'clock in the morning, Lydia Umali was pronounced
dead. Her death certificate states "shock" as the immediate cause of death and
"Disseminated Intravascular Coagulation (DIC)" as the antecedent cause.[22]
In convicting the petitioner, the MTCC found the following circumstances as sufficient
basis to conclude that she was indeed negligent in the performance of the operation:
"x x x, the clinic was untidy, there was lack of provision like blood and oxygen to
prepare for any contingency that might happen during the operation. The manner and
the fact that the patient was brought to the San Pablo District Hospital for reoperation
indicates that there was something wrong in the manner in which Dra. Cruz conducted
the operation. There was no showing that before the operation, accused Dr. Cruz had
conducted a cardio pulmonary clearance or any typing of the blood of the patient. It
was (sic) said in medical parlance that the "abdomen of the person is a temple of
surprises" because you do not know the whole thing the moment it was open (sic) and
surgeon must be prepared for any eventuality thereof. The patient (sic) chart which is
a public document was not presented because it is only there that we could determine
the condition of the patient before the surgery. The court also noticed in Exh. "F-1"
that the sister of the deceased wished to postpone the operation but the patient was
prevailed upon by Dra. Cruz to proceed with the surgery. The court finds that Lydia
Umali died because of the negligence and carelessness of the surgeon Dra. Ninevetch
Cruz because of loss of blood during the operation of the deceased for evident
unpreparedness and for lack of skill, the reason why the patient was brought for
operation at the San Pablo City District Hospital. As such, the surgeon should answer
for such negligence. With respect to Dra. Lina Ercillo, the anaesthesiologist, there is
no evidence to indicate that she should be held jointly liable with Dra. Cruz who
actually did the operation."[23]
The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's
declaration of "incompetency, negligence and lack of foresight and skill of appellant
(herein petitioner) in handling the subject patient before and after the operation."[24]
And likewise affirming the petitioner's conviction, the Court of Appeals echoed similar
observations, thus:
"x x x. While we may grant that the untidiness and filthiness of the clinic may not by
itself indicate negligence, it nevertheless shows the absence of due care and
supervision over her subordinate employees. Did this unsanitary condition permeate
the operating room? Were the surgical instruments properly sterilized? Could the
conditions in the OR have contributed to the infection of the patient? Only the
petitioner could answer these, but she opted not to testify. This could only give rise to
the presumption that she has nothing good to testify on her defense. Anyway, the
alleged "unverified statement of the prosecution witness" remains unchallenged and
unrebutted.
Likewise undisputed is the prosecution's version indicating the following facts: that
the accused asked the patient's relatives to buy Tagamet capsules while the operation
was already in progress; that after an hour, they were also asked to buy type "A" blood
for the patient; that after the surgery, they were again asked to procure more type "A"
blood, but such was not anymore available from the source; that the oxygen given to
the patient was empty; and that the son-in-law of the patient, together with a driver of
the petitioner, had to rush to the San Pablo City District Hospital to get the much-
needed oxygen. All these conclusively show that the petitioner had not prepared for
any unforeseen circumstances before going into the first surgery, which was not
emergency in nature, but was elective or pre-scheduled; she had no ready antibiotics,
no prepared blood, properly typed and cross-matched, and no sufficient oxygen
supply.
Moreover, there are a lot of questions that keep nagging Us. Was the patient given any
cardio-pulmonary clearance, or at least a clearance by an internist, which are standard
requirements before a patient is subjected to surgery. Did the petitioner determine as
part of the pre-operative evaluation, the bleeding parameters of the patient, such as
bleeding time and clotting time? There is no showing that these were done. The
petitioner just appears to have been in a hurry to perform the operation, even as the
family wanted the postponement to April 6, 1991. Obviously, she did not prepare the
patient; neither did she get the family's consent to the operation. Moreover, she did not
prepare a medical chart with instructions for the patient's care. If she did all these,
proof thereof should have been offered. But there is none. Indeed, these are
overwhelming evidence of recklessness and imprudence."[25]
This court, however, holds differently and finds the foregoing circumstances
insufficient to sustain a judgment of conviction against the petitioner for the crime of
reckless imprudence resulting in homicide. The elements of reckless imprudence are:
(1) that the offender does or fails to do an act; (2) that the doing or the failure to do
that act is voluntary; (3) that it be without malice; (4) that material damage results from
the reckless imprudence; and (5) that there is inexcusable lack of precaution on the
part of the offender, taking into consideration his employment or occupation, degree
of intelligence, physical condition, and other circumstances regarding persons, time
and place.
Whether or not a physician has committed an "inexcusable lack of precaution" in the
treatment of his patient is to be determined according to the standard of care observed
by other members of the profession in good standing under similar circumstances
bearing in mind the advanced state of the profession at the time of treatment or the
present state of medical science.[26] In the recent case of Leonila Garcia-Rueda v.
Wilfred L. Pacasio, et. al.,[27] this Court stated that in accepting a case, a doctor in
effect represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in
the treatment of his patients. He therefore has a duty to use at least the same level of
care that any other reasonably competent doctor would use to treat a condition under
the same circumstances. It is in this aspect of medical malpractice that expert
testimony is essential to establish not only the standard of care of the profession but
also that the physician's conduct in the treatment and care falls below such
standard.[28] Further, inasmuch as the causes of the injuries involved in malpractice
actions are determinable only in the light of scientific knowledge, it has been
recognized that expert testimony is usually necessary to support the conclusion as to
causation.[29]
Immediately apparent from a review of the records of this case is the absence of any
expert testimony on the matter of the standard of care employed by other physicians
of good standing in the conduct of similar operations. The prosecution's expert
witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the
National Bureau of Investigation (NBI) only testified as to the possible cause of death
but did not venture to illuminate the court on the matter of the standard of care that
petitioner should have exercised.
All three courts below bewail the inadequacy of the facilities of the clinic and its
untidiness; the lack of provisions such as blood, oxygen, and certain medicines; the
failure to subject the patient to a cardio-pulmonary test prior to the operation; the
omission of any form of blood typing before transfusion; and even the subsequent
transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by
the petitioner. But while it may be true that the circumstances pointed out by the courts
below seemed beyond cavil to constitute reckless imprudence on the part of the
surgeon, this conclusion is still best arrived at not through the educated surmises nor
conjectures of laymen, including judges, but by the unquestionable knowledge of
expert witnesses. For whether a physician or surgeon has exercised the requisite degree
of skill and care in the treatment of his patient is, in the generality of cases, a matter of
expert opinion.[30] The deference of courts to the expert opinion of qualified
physicians stems from its realization that the latter possess unusual technical skills
which laymen in most instances are incapable of intelligently evaluating.[31] Expert
testimony should have been offered to prove that the circumstances cited by the courts
below are constitutive of conduct falling below the standard of care employed by other
physicians in good standing when performing the same operation. It must be
remembered that when the qualifications of a physician are admitted, as in the instant
case, there is an inevitable presumption that in proper cases he takes the necessary
precaution and employs the best of his knowledge and skill in attending to his clients,
unless the contrary is sufficiently established.[32] This presumption is rebuttable by
expert opinion which is so sadly lacking in the case at bench.
Even granting arguendo that the inadequacy of the facilities and untidiness of the
clinic; the lack of provisions; the failure to conduct pre-operation tests on the patient;
and the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation
performed on her by the petitioner do indicate, even without expert testimony, that
petitioner was recklessly imprudent in the exercise of her duties as a surgeon, no
cogent proof exists that any of these circumstances caused petitioner's death. Thus, the
absence of the fourth element of reckless imprudence: that the injury to the person or
property was a consequence of the reckless imprudence.
In litigations involving medical negligence, the plaintiff has the burden of establishing
appellant's negligence and for a reasonable conclusion of negligence, there must be
proof of breach of duty on the part of the surgeon as well as a casual connection of
such breach and the resulting death of his patient.[33] In Chan Lugay v. St Luke's
Hospital, Inc.,[34] where the attending physician was absolved of liability for the death
of the complainant's wife and newborn baby, this court held that:
"In order that there may be a recovery for an injury, however, it must be shown that
the 'injury for which recovery is sought must be the legitimate consequence of the
wrong done; the connection between the negligence and the injury must be a direct
and natural sequence of events, unbroken by intervening efficient causes.' In other
words, the negligence must be the proximate cause of the injury. For, 'negligence, no
matter in what it consists, cannot create a right of action unless it is the proximate
cause of the injury complained of.' And 'the proximate cause of an injury is that cause,
which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have occurred.'''[35]
(Underscoring supplied.)
Dr. Arizala who conducted an autopsy on the body of the deceased summarized his
findings as follows:
"Atty. Cachero:
Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1-
b". There appears here a signature above the typewritten name Floresto Arizala, Jr.,
whose signature is that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?
A. Only as to the autopsy report no. 91-09, the time and place and everything after the
post mortem findings, sir.
Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm.,
infraumbilical area, anterior abdominal area, midline, will you please explain that in
your own language?
A. There was incision wound (sic) the area just below the navel, sir.
Q. And the last paragraph of the postmortem findings which I read: Uterus, pear-
shaped and pale measuring 7.5 x 5.5 x 5.0 cm, with some surface nodulation of the
fundic area posteriorly. Cut-section shows diffusely pale myometrium with areas of
streak induration. The ovaries and adnexal structures are missing with the raw surfaces
patched with clotted blood. Surgical sutures were noted on the operative site.
Intestines and mesenteries are pale with blood clots noted between the mesentric folds.
Hemoperitonium: 300 s.s.,
right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.',
will you please explain that on (sic) your own language or in ordinary
A. There was a uterus which was not attached to the adnexal structures namely ovaries
which were not present and also sign of previous surgical operation and there were
(sic) clotted blood, sir.
Q. How about the ovaries and adnexal structures?
A. They are missing, sir.
Q. You mean to say there are no ovaries?
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical sutures?
A. Yes, sir.
Q. How about the intestines and mesenteries are place (sic) with blood clots noted
between the mesenteric folds, will you please explain on (sic) this?
A. In the peritoneal cavity, they are mostly perritonial blood.
Q. And what could have caused this blood?
A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic) outside as
a result of the injuries which destroyed the integrity of the vessel allowing blood to sip
(sic) out, sir.
Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can you tell the
court the cause of death?
A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic
shock.
Q. Can you tell the us what could have caused this hemorrhagic shock?
A. Well hemorrhagic shock is the result of blood loss.
Q. What could have the effect of that loss of blood?
A. Unattended hemorrhage, sir.[36] (Underscoring supplied.)
The foregoing was corroborated by Dr. Nieto Salvador:
"Q. And were you able to determine the cause of death by virtue of the examination of
the specimen submitted by Dr. Arizala?
A. Without knowledge of the autopsy findings it would be difficult for me to determine
the cause of death, sir.
Q. Have you examined the post mortem of Dr. Arizala?
A. Yes, sir, and by virtue of the autopsy report in connection with your pathology
report.
Q. What could have caused the death of the victim?
A. This pathologic examination are (sic) compatible with the person who died, sir.
Q. Will you explain to us the meaning of hemorrhagic compatible?
A. It means that a person died of blood loss. Meaning a person died of non-replacement
of blood and so the victim before she died there was shock of diminish of blood of the
circulation. She died most probably before the actual complete blood loss, sir.
Court: Is it possible doctor that the loss of the blood was due on (sic) operation?
A. Based on my pathology findings, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel
may be cut while on operation and this cause (sic) bleeding, or may be set in the course
of the operation, or may be (sic) he died after the operation. Of course there are other
cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood replacement?
A. Yes, sir."[37] (Underscoring supplied.)
The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the
cause of death. However, as likewise testified to by the expert witnesses in open court,
hemorrhage or hemorrhagic shock during surgery may be caused by several different
factors. Thus, Dr. Salvador's elaboration on the matter:
"Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that you mentioned you said that it could
be at the moment of operation when one losses (sic) control of the presence, is that
correct? During the operation there is lost (sic) of control of the cut vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may have slipped later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible also to some clotting defect, is that
correct?
A. May be (sic)."[38] (Underscoring supplied).
Defense witness, Dr. Bu C. Castro also gave the following expert opinion:
"Q. Doctor even a patient after an operations (sic) would suffer hemorrage what would
be the possible causes of such hemorrage (sic)?
A. Among those would be what we call Intravascular Coagulation and this is the reason
for the bleeding, sir, which cannot be prevented by anyone, it will happen to anyone,
anytime and to any persons (sic), sir.
COURT:
What do you think of the cause of the bleeding, the cutting or the operations done in
the body?
A. Not related to this one, the bleeding here is not related to any cutting or operation
that I (sic) have done.
Q. Aside from the DIC what could another causes (sic) that could be the cause for the
hemorrhage or bleeding in a patient by an operations (sic)?
A. In general sir, if there was an operations (sic) and it is possible that the ligature in
the suture was (sic) become (sic) loose, it is (sic) becomes loose if proven.
xxxxxxxxx
Q. If the person who performed an autopsy does not find any untight (sic) clot (sic)
blood vessel or any suture that become (sic) loose the cause of the bleeding could not
be attributed to the fault of the subject?
A. Definitely, sir."[39] (Underscoring supplied.)
According to both doctors, the possible causes of hemorrhage during an operation are:
(1) the failure of the surgeon to tie or suture a cut blood vessel; (2) allowing a cut blood
vessel to get out of control; (3) the subsequent loosening of the tie or suture applied to
a cut blood vessel; and (4) and a clotting defect known as DIC. It is significant to state
at this juncture that the autopsy conducted by Dr. Arizala on the body of Lydia did not
reveal any untied or unsutured cut blood vessel nor was there any indication that the
tie or suture of a cut blood vessel had become loose thereby causing the
hemorrhage.[40] Hence the following pertinent portion of Dr. Arizala's testimony:
"Q: Doctor, in examining these structures did you know whether these were sutured
ligature or plain ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if the cut structures were tied by first
suturing it and then tying a knot or the tie was merely placed around the cut structure
and tied?
A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall because you did not even bothered (sic) to
examine, is that correct?
A: Well, I bothered enough to know that they were sutured, sir.
Q: So, therefore, Doctor, you would not know whether any of the cut structures were
not sutured or tied neither were you able to determine whether any loose suture was
found in the peritoneal cavity?
A: I could not recall any loose sutured (sic), sir."[41]
On the other hand, the findings of all three doctors do not preclude the probability that
DIC caused the hemorrhage and consequently, Lydia's death. DIC which is a clotting
defect creates a serious bleeding tendency and when massive DIC occurs as a
complication of surgery leaving raw surface, major hemorrhage occurs.[42] And as
testified to by defense witness, Dr. Bu C. Castro, hemorrhage due to DIC "cannot be
prevented, it will happen to anyone, anytime."[43] He testified further:
"Q. Now, under the circumstance one of the possibility as you mentioned in (sic) DIC?
A. Yes, sir.
Q. And you mentioned that it cannot be prevented?
A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that will tell you whether this patient
suffered among such things as DIC?
A. Well, I did reserve because of the condition of the patient.
Q. Now, Doctor you said that you went through the record of the deceased Lydia Umali
looking for the chart, the operated (sic) records, the post mortem findings on the
histophanic (sic) examination based on your examination of record, doctor, can you
more or less says (sic) what part are (sic) concerned could have been the caused (sic)
of death of this Lydia Umali?
A. As far as the medical record is concern (sic) the caused (sic) of death is dessimulated
(sic) Intra Vascular Coagulation or the DIC which resulted to hemorrhage or bleedings,
sir.
Q. Doctor based on your findings then there is knowing (sic) the doctor would say
whether the doctor her (sic) has been (sic) fault?
liable for the death of Lydia Umali, for while a conviction of a crime requires proof
beyond reasonable doubt, only a preponderance of evidence is required to establish
civil liability.[45]
The petitioner is a doctor in whose hands a patient puts his life and limb. For
insufficiency of evidence this Court was not able to render a sentence of conviction
but it is not blind to the reckless and imprudent manner in which the petitioner carried
out her duties. A precious life has been lost and the circumstances leading thereto
exacerbated the grief of those left behind. The heirs of the deceased continue to feel
the loss of their mother up to the present time[46] and this Court is aware that no
amount of compassion and commiseration nor words of bereavement can suffice to
assuage the sorrow felt for the loss of a loved one. Certainly, the award of moral and
exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case.

ATTY. MALVEDA: WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is hereby
ACQUITTED of the crime of reckless imprudence resulting in homicide but is
We will moved (sic) to strike out the (sic) based on finding they just read the chart as ordered to pay the heirs of the deceased Lydia Umali the amount of FIFTY
well as the other record. THOUSAND PESOS (P50,000.00) as civil liability, ONE HUNDRED THOUSAND
PESOS (P100,000.00) as moral damages, and FIFTY THOUSAND PESOS
ATTY. PASCUAL:
(P50,000.00) as exemplary damages.
Precisely based on this examination.
Let the copy of this decision be furnished to the Professional Regulation Commission
ATTY. MALVEDA: (PRC) for appropriate action.

Not finding, there was no finding made. SO ORDERED.

COURT:

He is only reading the record.

ATTY. PASCUAL:

Yes, sir.

A. No, sir, there is no fault on the part of the surgeon, sir." [44]

This court has no recourse but to rely on the expert testimonies rendered by both
prosecution and defense witnesses that substantiate rather than contradict petitioner's
allegation that the cause of Lydia's death was DIC which, as attested to by an expert
witness, cannot be attributed to the petitioner's fault or negligence. The probability that
Lydia's death was caused by DIC was unrebutted during trial and has engendered in
the mind of this Court a reasonable doubt as to the petitioner's guilt. Thus, her acquittal
of the crime of reckless imprudence resulting in homicide. While we condole with the
family of Lydia Umali, our hands are bound by the dictates of justice and fair dealing
which hold inviolable the right of an accused to be presumed innocent until proven
guilty beyond reasonable doubt. Nevertheless, this Court finds the petitioner civilly
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 124354 December 29, 1999
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 vs. COURT OF APPEALS, DELOS
SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA.
PERFECTA GUTIERREZ, respondents.
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 patient's 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:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh.
"A") robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints
of discomfort due to pains allegedly caused by the presence of a stone in her gall
bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman.
Married to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone
Company, she has three children whose names are Rommel Ramos, Roy Roderick
Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation for the removal of a
stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of
examinations which included blood and urine tests (Exhs. "A" and "C") which
indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p.
7), she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be
Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in this case, on June
10, 1985. They agreed that their date at the operating table at the DLSMC (another
defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she
should undergo a "cholecystectomy" operation after examining the documents
(findings from the Capitol Medical Center, FEU Hospital and DLSMC) presented to
him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the
anesthesiologist's fee and which was to be paid after the operation (TSN, October 19,
1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November
9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at one of the rooms of
the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October
19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared
for the operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the
Dean of the College of Nursing at the Capitol Medical Center, was also there for moral
support. She reiterated her previous request for Herminda to be with her even during
the operation. After praying, she was given injections. Her hands were held by
Herminda as they went down from her room to the operating room (TSN, January 13,
1988, pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p.
18). At the operating room, Herminda saw about two or three nurses and Dr. Perfecta
Gutierrez, the other defendant, who was to administer anesthesia. Although not a
member of the hospital staff, Herminda introduced herself as Dean of the College of
Nursing at the Capitol Medical Center who was to provide moral support to the patient,
to them. Herminda was allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka
who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter
informed Herminda Cruz about the prospect of a delay in the arrival of Dr. Hosaka.
Herminda then went back to the patient who asked, "Mindy, wala pa ba ang Doctor"?
The former replied, "Huwag kang mag-alaala, darating na iyon" (Ibid.).
Thereafter, Herminda went out of the operating room and informed the patient's
husband, Rogelio, that the doctor was not yet around (id., p. 13). When she returned
to the operating room, the patient told her, "Mindy, inip na inip na ako, ikuha mo ako
ng ibang Doctor." So, she went out again and told Rogelio about what the patient said
(id., p. 15). Thereafter, she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the
arrival of the doctor" even as he did his best to find somebody who will allow him to
pull out his wife from the operating room (TSN, October 19, 1989, pp. 19-20). He also
thought of the feeling of his wife, who was inside the operating room waiting for the
doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that
he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While
talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived
as a nurse remarked, "Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing
those words, he went down to the lobby and waited for the operation to be completed
(id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the
patient, heard somebody say that "Dr. Hosaka is already here." She then saw people
inside the operating room "moving, doing this and that, [and] preparing the patient for
the operation" (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos,
she then saw Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr.
Gutierrez say, "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan" (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her
attention on what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration
of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka approached
her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room,
she saw this anesthesiologist trying to intubate the patient. The patient's nailbed
became bluish and the patient was placed in a trendelenburg position a position
where the head of the patient is placed in a position lower than her feet which is an
indication that there is a decrease of blood supply to the patient's brain (Id., pp. 19-20).
Immediately thereafter, she went out of the operating room, and she told Rogelio E.
Ramos "that something wrong was . . . happening" (Ibid.). Dr. Calderon was then able
to intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine
being rushed towards the door of the operating room. He also saw several doctors
rushing towards the operating room. When informed by Herminda Cruz that
something wrong was happening, he told her (Herminda) to be back with the patient
inside the operating room (TSN, October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that
fateful day, she saw the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter
informed the former that something went wrong during the intubation. Reacting to
what was told to him, Rogelio reminded the doctor that the condition of his wife would
not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN,
October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to explain what
happened to the patient. The doctors explained that the patient had bronchospasm
(TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on
November 15, 1985, the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting to
P93,542.25 which is the subject of a promissory note and affidavit of undertaking
executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of
June 17, 1985, she has been in a comatose condition. She cannot do anything. She
cannot move any part of her body. She cannot see or hear. She is living on mechanical
means. She suffered brain damage as a result of the absence of oxygen in her brain for
four to five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from
the hospital, she has been staying in their residence, still needing constant medical
attention, with her husband Rogelio incurring a monthly expense ranging from
P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed
to be suffering from "diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN,
December 21, 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 Erlinda's
injury. Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano
Gavino to prove that the 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 Erlinda's 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:
After evaluating the evidence as shown in the finding of facts set forth earlier, and
applying the aforecited provisions of law and jurisprudence to the case at bar, this
Court finds and so holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the performance of their duty
to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise
reasonable care in not only intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the
fact that the patient was inside the operating room for almost three (3) hours. For after
she committed a mistake in intubating [the] patient, the patient's nailbed became bluish
and the patient, thereafter, was placed in trendelenburg position, because of the
decrease of blood supply to the patient's brain. The evidence further shows that the
hapless patient suffered brain damage because of the absence of oxygen in her
(patient's) brain for approximately four to five minutes which, in turn, caused the
patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as part
of his obligation to provide the patient a good anesthesiologist', and for arriving for
the scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of
negligence of the doctors in their "practice of medicine" in the operating room.
Moreover, the hospital is liable for failing through its responsible officials, to cancel
the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have
acted with due care and prudence in rendering medical services to plaintiff-patient. For
if the patient was properly intubated as claimed by them, the patient would not have
become comatose. And, the fact that another anesthesiologist was called to try to
intubate the patient after her (the patient's) nailbed turned bluish, belie their claim.
Furthermore, the defendants should have rescheduled the operation to a later date.
This, they should have done, if defendants acted with due care and prudence as the
patient's case was an elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor
of the plaintiffs and against the defendants. Accordingly, the latter are
ordered to pay, jointly and severally, the former the following sums of
money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda
Ramos reckoned from November 15, 1985 or in the total sum of P632,000.00
as of April 15, 1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further sum of
P200,000,00 by way of exemplary damages; and,
4) the costs of the suit.
SO ORDERED. 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, for the foregoing premises the appealed decision is hereby
REVERSED, and the complaint below against the appellants is hereby
ordered DISMISSED. The counterclaim of appellant De Los Santos Medical
Center is GRANTED but only insofar as appellees are hereby ordered to pay
the unpaid hospital bills amounting to P93,542.25, plus legal interest for
justice must be tempered with mercy. SO ORDERED. 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:
We said in our Resolution on July 25, 1995, that the filing of a Motion for
Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo, p.
12) was denied. It is, on the other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for Reconsideration expired on June 24.
The Motion for Reconsideration, in turn, was received by the Court of Appeals already
on July 4, necessarily, the 15-day period already passed. For that alone, the latter
should be denied.
Even assuming admissibility of the Motion for the Reconsideration, but after
considering the Comment/Opposition, the former, for lack of merit, is hereby
DENIED.
SO ORDERED. 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 this, the petition before us was submitted on time.
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS
DRA. GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT
CAUSE THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER
ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 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 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 party's 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 believed that the receipt of the former should be
considered in determining the timeliness of the filing of the present petition. Based on
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 plaintiff's 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 defendant's 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 of 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 someone's
negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or
defendants; and
3. The possibility of contributing conduct which would make the plaintiff responsible
is eliminated. 21
In the above requisites, the fundamental element is the "control of 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 patient's 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 loquitur is 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:
The plaintiff herein submitted himself for a mastoid operation and delivered his person
over to the care, custody and control of his physician who had complete and exclusive
control over him, but the operation was never performed. At the time of submission
he was neurologically sound and physically fit in mind and body, but he suffered
irreparable damage and injury rendering him decerebrate and totally incapacitated. The
injury was one which does not ordinarily occur in the process of a mastoid operation
or in the absence of negligence in the administration of an anesthetic, and in the use
and employment of an endoctracheal tube. Ordinarily a person being put under
anesthesia is not rendered decerebrate as a consequence of administering such
anesthesia in the absence of negligence. Upon these facts and under these
circumstances a layman would be able to say, as a matter of common knowledge and
observation, that the consequences of professional treatment were not as such as would
ordinarily have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he
was under the influence of anesthetics and unconscious, and the circumstances are
such that the true explanation of event is more accessible to the defendants than to the
plaintiff for they had the exclusive control of the instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a
cause of action is stated under the doctrine of res ipsa loquitur. 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 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 Erlinda's 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 short-acting 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 Q: From whom did you hear those words "lumalaki ang tiyan"?
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 A: From Dra. Perfecta Gutierrez.
them of any liability towards Erlinda and her family. xxx xxx xxx
We disagree with the findings of the Court of Appeals. We hold that private Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the person of
respondents were unable to disprove the presumption of negligence on their part in the the patient?
care of Erlinda and their negligence was the proximate cause of her piteous condition.
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was
In the instant case, the records are helpful in furnishing not only the logical scientific at.
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' Q: Where was Dr. Orlino Ho[s]aka then at that particular time?
own testimonies which are reflected in the transcript of stenographic notes are replete
A: I saw him approaching the patient during that time.
of signposts indicative of their negligence in the care and management of Erlinda.
Q: When he approached the patient, what did he do, if any?
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 A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.
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 Q: Did Dr. Calderon, upon being called, arrive inside the operating room?
the operating room right beside the patient when the tragic event occurred. Witness
A: Yes sir.
Cruz testified to this effect:
Q: What did [s]he do, if any?
ATTY. PAJARES:
A: [S]he tried to intubate the patient.
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?
Q: What happened to the patient?
A: In particular, I could see that she was intubating the patient.
A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's nailbed
Q: Do you know what happened to that intubation process administered by Dra.
became bluish and I saw the patient was placed in trendelenburg position.
Gutierrez?
xxx xxx xxx
ATTY. ALCERA:
Q: Do you know the reason why the patient was placed in that trendelenburg position?
She will be incompetent Your Honor.
A: As far as I know, when a patient is in that position, there is a decrease of blood
COURT:
supply to the brain. 46
Witness may answer if she knows.
xxx xxx xxx
A: As have said, I was with the patient, I was beside the stretcher holding the left hand
The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by
of the patient and all of a sudden heard some remarks coming from Dra. Perfecta
declaring that:
Gutierrez herself. She was saying "Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan. A perusal of the standard nursing curriculum in our country will show that intubation
is not taught as part of nursing procedures and techniques. Indeed, we take judicial
xxx xxx xxx
notice of the fact that nurses do not, and cannot, intubate. Even on the assumption that
ATTY. PAJARES: she is fully capable of determining whether or not a patient is properly intubated,
witness Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN,
July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated
the patient or that she conducted any type of examination to check if the endotracheal
tube was in its proper place, and to determine the condition of the heart, lungs, and
other organs. Thus, witness Cruz's categorical statements that appellant Dra. Gutierrez
failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who
succeeded in doing so clearly suffer from lack of sufficient factual bases. 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 at 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 Erlinda's 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 Erlinda's 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
patient's medical records and visits with the patient, traditionally, the day before
elective surgery. 53 It includes taking the patient's 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 patient's 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 patient's 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 physician's 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
pre-operative evaluation would escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the patient a day
before so you can introduce yourself to establish good doctor-patient relationship and
gain the trust and confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure of the
anesthesiologist and in my case, with elective cases and normal cardio-pulmonary
clearance like that, I usually don't do it except on emergency and on cases that have an
abnormalities (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 be at the patient's beside 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.
Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus,
she had all the time to make a thorough evaluation of Erlinda's 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 pre-operative
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 Erlinda's comatose
condition.
Private respondents repeatedly hammered the view that the cerebral anoxia which led
to Erlinda's 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 allergic-
mediated 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. Jamora's 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. Jamora's testimony as an expert in the administration of Thiopental
Sodium.
The provision in the rules of evidence 62 regarding expert witnesses states:
Sec. 49. Opinion of expert witness. The opinion of a witness on a matter requiring
special knowledge, skill, experience or training which he is shown to possess, may be
received in evidence.
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, allergic-
mediated 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 advanced in order to
absolve them of any and all responsibility for the patient's 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 Erlinda's 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
Erlinda's 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
patient's 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 patient's 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 surgeon's
responsibility to see to it that those under him perform their task in the proper manner.
Respondent Dr. Hosaka's 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
Erlinda's cholecystectomy, and was in fact over three hours late for the latter's
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 Erlinda's 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
physician's 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 patient's
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 petitioner's
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 former's
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 Erlinda's 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. Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved.
Such compensation is referred to as actual or compensatory 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:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation
of her left lower extremity at the distal left thigh just above the knee. Because of this,
Valenzuela will forever be deprived of the full ambulatory functions of her left
extremity, even with the use of state of the art prosthetic technology. Well beyond the
period of hospitalization (which was paid for by Li), she will be required to undergo
adjustments in her prosthetic devise due to the shrinkage of the stump from the process
of healing.
These adjustments entail costs, prosthetic replacements and months of physical and
occupational rehabilitation and therapy. During the lifetime, the prosthetic devise will
have to be replaced and readjusted to changes in the size of her lower limb effected by
the biological changes of middle-age, menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be adjusted to respond to the
changes in bone resulting from a precipitate decrease in calcium levels observed in the
bones of all post-menopausal women. In other words, the damage done to her would
not only be permanent and lasting, it would also be permanently changing and
adjusting to the physiologic changes which her body would normally undergo through
the years. The replacements, changes, and adjustments will require corresponding
adjustive physical and occupational therapy. All of these adjustments, it has been
documented, are painful.
xxx xxx xxx
A prosthetic devise, however technologically advanced, will only allow a reasonable
amount of functional restoration of the motor functions of the lower limb. The sensory
functions are forever lost. The resultant anxiety, sleeplessness, psychological injury,
mental and physical pain are inestimable. 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 petitioner's condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's 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 victim's condition.
84 The husband and the children, all petitioners in this case, will have to live with the
day to day uncertainty of the patient's 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 family's 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 attorney's 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 physician's 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 attorney's fees; and, 5) the costs of the
suit. SO ORDERED.
 SECOND DIVISION
[G.R. No. 130547. October 3, 2000]
LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD and
KRISTINE, all surnamed REYES, represented by their mother, LEAH
ALESNA REYES, petitioners, vs. SISTERS OF MERCY HOSPITAL, SISTER
ROSE PALACIO, DR. MARVIE BLANES, and DR. MARLYN RICO,
respondents.
DECISION
MENDOZA, J.:
This is a petition for review of the decision[1] of the Court of Appeals in CA-G.R. CV
No. 36551 affirming the decision of the Regional Trial Court, Branch IX, Cebu City
which dismissed a complaint for damages filed by petitioners against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other petitioners,
namely, Rose Nahdja, Johnny, Lloyd, and Kristine, all surnamed Reyes, were their
children. Five days before his death on January 8, 1987, Jorge had been suffering from
a recurring fever with chills. After he failed to get relief from some home medication
he was taking, which consisted of analgesic, antipyretic, and antibiotics, he decided to
see the doctor.
On January 8, 1987, he was taken to the Mercy Community Clinic by his wife. He was
attended to by respondent Dr. Marlyn Rico, resident physician and admitting physician
on duty, who gave Jorge a physical examination and took his medical history. She
noted that at the time of his admission, Jorge was conscious, ambulatory, oriented,
coherent, and with respiratory distress.[2] Typhoid fever was then prevalent in the
locality, as the clinic had been getting from 15 to 20 cases of typhoid per month.[3]
Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered a Widal
Test, a standard test for typhoid fever, to be performed on Jorge. Blood count, routine
urinalysis, stool examination, and malarial smear were also made.[4] After about an
hour, the medical technician submitted the results of the test from which Dr. Rico
concluded that Jorge was positive for typhoid fever. As her shift was only up to 5:00
p.m., Dr. Rico indorsed Jorge to respondent Dr. Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the evening. She also took Jorges
history and gave him a physical examination. Like Dr. Rico, her impression was that
Jorge had typhoid fever. Antibiotics being the accepted treatment for typhoid fever,
she ordered that a compatibility test with the antibiotic chloromycetin be done on
Jorge. Said test was administered by nurse Josephine Pagente who also gave the patient
a dose of triglobe. As she did not observe any adverse reaction by the patient to
chloromycetin, Dr. Blanes ordered the first five hundred milligrams of said antibiotic
to be administered on Jorge at around 9:00 p.m. A second dose was administered on
Jorge about three hours later just before midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorges temperature
rose to 41C. The patient also experienced chills and exhibited respiratory distress,
nausea, vomiting, and convulsions. Dr. Blanes put him under oxygen, used a suction
machine, and administered hydrocortisone, temporarily easing the patients
convulsions. When he regained consciousness, the patient was asked by Dr. Blanes
whether he had a previous heart ailment or had suffered from chest pains in the past.
Jorge replied he did not.[5] After about 15 minutes, however, Jorge again started to
vomit, showed restlessness, and his convulsions returned. Dr. Blanes re-applied the
emergency measures taken before and, in addition, valium was administered. Jorge,
however, did not respond to the treatment and slipped into cyanosis, a bluish or
purplish discoloration of the skin or mucous membrane due to deficient oxygenation
of the blood. At around 2:00 a.m., Jorge died. He was forty years old. The cause of his
death was Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever.
On June 3, 1987, petitioners filed before the Regional Trial Court of Cebu City a
complaint[6]for damages against respondents Sisters of Mercy, Sister Rose Palacio,
Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine Pagente. On September 24,
1987, petitioners amended their complaint to implead respondent Mercy Community
Clinic as additional defendant and to drop the name of Josephine Pagente as defendant
since she was no longer connected with respondent hospital. Their principal contention
was that Jorge did not die of typhoid fever.[7] Instead, his death was due to the
wrongful administration of chloromycetin. They contended that had respondent
doctors exercised due care and diligence, they would not have recommended and
rushed the performance of the Widal Test, hastily concluded that Jorge was suffering
from typhoid fever, and administered chloromycetin without first conducting
sufficient tests on the patients compatibility with said drug. They charged respondent
clinic and its directress, Sister Rose Palacio, with negligence in failing to provide
adequate facilities and in hiring negligent doctors and nurses.[8]
Respondents denied the charges. During the pre-trial conference, the parties agreed to
limit the issues on the following: (1) whether the death of Jorge Reyes was due to or
caused by the negligence, carelessness, imprudence, and lack of skill or foresight on
the part of defendants; (2) whether respondent Mercy Community Clinic was negligent
in the hiring of its employees; and (3) whether either party was entitled to damages.
The case was then heard by the trial court during which, in addition to the testimonies
of the parties, the testimonies of doctors as expert witnesses were presented.
Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the
Northern Mindanao Training Hospital, Cagayan de Oro City. On January 9, 1987, Dr.
Vacalares performed an autopsy on Jorge Reyes to determine the cause of his death.
However, he did not open the skull to examine the brain. His findings[9] showed that
the gastro-intestinal tract was normal and without any ulceration or enlargement of the
nodules. Dr. Vacalares testified that Jorge did not die of typhoid fever. He also stated
that he had not seen a patient die of typhoid fever within five days from the onset of
the disease.
For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra
Panopio. Dr. Gotiong is a diplomate in internal medicine whose expertise is
microbiology and infectious diseases. He is also a consultant at the Cebu City Medical
Center and an associate professor of medicine at the South Western University College
of Medicine in Cebu City. He had treated over a thousand cases of typhoid patients.
According to Dr. Gotiong, the patients history and positive Widal Test results ratio of
1:320 would make him suspect that the patient had typhoid fever. As to Dr. Vacalares
observation regarding the absence of ulceration in Jorges gastro-intestinal tract, Dr.
Gotiong said that such hyperplasia in the intestines of a typhoid victim may be
microscopic. He noted that since the toxic effect of typhoid fever may lead to
meningitis, Dr. Vacalares autopsy should have included an examination of the
brain.[10]
The other doctor presented was Dr. Ibarra Panopio, a member of the American Board
of Pathology, examiner of the Philippine Board of Pathology from 1978 to 1991,
fellow of the Philippine Society of Pathologist, associate professor of the Cebu
Institute of Medicine, and chief pathologist of the Andres Soriano Jr. Memorial
Hospital in Toledo City. Dr. Panopio stated that although he was partial to the use of
the culture test for its greater reliability in the diagnosis of typhoid fever, the Widal
Test may also be used. Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorges case
was already the maximum by which a conclusion of typhoid fever may be made. No
additional information may be deduced from a higher dilution.[11] He said that Dr.
Vacalares autopsy on Jorge was incomplete and thus inconclusive.
On September 12, 1991, the trial court rendered its decision absolving respondents
from the charges of negligence and dismissing petitioners action for damages. The trial
court likewise dismissed respondents counterclaim, holding that, in seeking damages
from respondents, petitioners were impelled by the honest belief that Jorges death was
due to the latters negligence.
Petitioners brought the matter to the Court of Appeals. On July 31, 1997, the Court of
Appeals affirmed the decision of the trial court.
Hence this petition.
Petitioners raise the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE
ERROR WHEN IT RULED THAT THE DOCTRINE OF RES IPSA LOQUITUR
IS NOT APPLICABLE IN THE INSTANT CASE.
II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE
ERROR WHEN IT MADE AN UNFOUNDED ASSUMPTION THAT THE
LEVEL OF MEDICAL PRACTICE IS LOWER IN ILIGAN CITY.
III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT
RULED FOR A LESSER STANDARD OF CARE AND DEGREE OF DILIGENCE
FOR MEDICAL PRACTICE IN ILIGAN CITY WHEN IT APPRECIATE[D] NO
DOCTORS NEGLIGENCE IN THE TREATMENT OF JORGE REYES.
Petitioners action is for medical malpractice. This is a particular form of negligence
which consists in the failure of a physician or surgeon to apply to his practice of
medicine that degree of care and skill which is ordinarily employed by the profession
generally, under similar conditions, and in like surrounding circumstances.[12] In
order to successfully pursue such a claim, a patient must prove that the physician or
surgeon either failed to do something which a reasonably prudent physician or surgeon
would have done, or that he or she did something that a reasonably prudent physician
or surgeon would not have done, and that the failure or action caused injury to the
patient.[13] There are thus four elements involved in medical negligence cases,
namely: duty, breach, injury, and proximate causation.
In the present case, there is no doubt that a physician-patient relationship existed
between respondent doctors and Jorge Reyes. Respondents were thus duty-bound to
use at least the same level of care that any reasonably competent doctor would use to
treat a condition under the same circumstances. It is breach of this duty which
constitutes actionable malpractice.[14] As to this aspect of medical malpractice, the
determination of the reasonable level of care and the breach thereof, expert testimony
is essential. Inasmuch as the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been recognized that
expert testimony is usually necessary to support the conclusion as to causation.[15]
Res Ipsa Loquitur
There is a case when expert testimony may be dispensed with, and that is under the
doctrine of res ipsa loquitur. As held in Ramos v. Court of Appeals:[16]
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 loquitor is availed by the plaintiff,
the need for expert medical testimony is dispensed with because the injury itself
provides the proof of negligence. 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. 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. 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. 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. 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 loquitor 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, injuries
sustained on a healthy part of the body which was not under, or in the area, of
treatment, removal of the wrong part of the body when another part was intended,
knocking out a tooth while a patients jaw was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient was under the influence of anesthetic,
during or following an operation for appendicitis, among others.[17]
Petitioners asserted in the Court of Appeals that the doctrine of res ipsa loquitur applies
to the present case because Jorge Reyes was merely experiencing fever and chills for
five days and was fully conscious, coherent, and ambulant when he went to the
hospital. Yet, he died after only ten hours from the time of his admission.
This contention was rejected by the appellate court.
Petitioners now contend that all requisites for the application of res ipsa loquitur were
present, namely: (1) the accident was of a kind which does not ordinarily occur unless
someone is negligent; (2) the instrumentality or agency which caused the injury was
under the exclusive control of the person in charge; and (3) the injury suffered must
not have been due to any voluntary action or contribution of the person injured.[18]
The contention is without merit. We agree with the ruling of the Court of Appeals. In
the Ramos case, the question was whether a surgeon, an anesthesiologist, and a
hospital should be made liable for the comatose condition of a patient scheduled for
cholecystectomy.[19] In that case, the patient was given anesthesia prior to her
operation. Noting that the patient was neurologically sound at the time of her
operation, the Court applied the doctrine of res ipsa loquitur as mental brain damage
does not normally occur in a gallblader operation in the absence of negligence of the
anesthesiologist. Taking judicial notice that anesthesia procedures had become so
common that even an ordinary person could tell if it was administered properly, we
allowed the testimony of a witness who was not an expert. In this case, while it is true
that the patient died just a few hours after professional medical assistance was
rendered, there is really nothing unusual or extraordinary about his death. Prior to his
admission, the patient already had recurring fevers and chills for five days unrelieved
by the analgesic, antipyretic, and antibiotics given him by his wife. This shows that he
had been suffering from a serious illness and professional medical help came too late
for him.
Respondents alleged failure to observe due care was not immediately apparent to a
layman so as to justify application of res ipsa loquitur. The question required expert
opinion on the alleged breach by respondents of the standard of care required by the
circumstances. Furthermore, on the issue of the correctness of her diagnosis, no
presumption of negligence can be applied to Dr. Marlyn Rico. As held in Ramos:
. . . . 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.
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 a surgeon which involves the merits of a diagnosis or of a
scientific treatment. 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.[20]
Specific Acts of Negligence
We turn to the question whether petitioners have established specific acts of
negligence allegedly committed by respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously relied upon the
Widal test, diagnosed Jorges illness as typhoid fever, and immediately prescribed the
administration of the antibiotic chloromycetin;[21] and (2) Dr. Marvie Blanes erred in
ordering the administration of the second dose of 500 milligrams of chloromycetin
barely three hours after the first was given.[22] Petitioners presented the testimony of
Dr. Apolinar Vacalares, Chief Pathologist of the Northern Mindanao Training
Hospital, Cagayan de Oro City, who performed an autopsy on the body of Jorge Reyes.
Dr. Vacalares testified that, based on his findings during the autopsy, Jorge Reyes did
not die of typhoid fever but of shock undetermined, which could be due to allergic
reaction or chloromycetin overdose. We are not persuaded.
First. While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do
not find him to be so as he is not a specialist on infectious diseases like typhoid fever.
Furthermore, although he may have had extensive experience in performing autopsies,
he admitted that he had yet to do one on the body of a typhoid victim at the time he
conducted the postmortem on Jorge Reyes. It is also plain from his testimony that he
has treated only about three cases of typhoid fever. Thus, he testified that:[23]
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you have never seen a patient who died of
typhoid fever?
A In autopsy. But, that was when I was a resident physician yet.
Q But you have not performed an autopsy of a patient who died of typhoid fever?
A I have not seen one.
Q And you testified that you have never seen a patient who died of typhoid fever within
five days?
A I have not seen one.
Q How many typhoid fever cases had you seen while you were in the general practice
of medicine?
A In our case we had no widal test that time so we cannot consider that the typhoid
fever is like this and like that. And the widal test does not specify the time of the
typhoid fever.
Q The question is: how many typhoid fever cases had you seen in your general practice
regardless of the cases now you practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis. Both
lower courts were therefore correct in discarding his testimony, which is really
inadmissible.
In Ramos, the defendants presented the testimony of a pulmonologist to prove that
brain injury was due to oxygen deprivation after the patient had bronchospasms[24]
triggered by her allergic response to a drug,[25] and not due to faulty intubation by the
anesthesiologist. As the issue was whether the intubation was properly performed by
an anesthesiologist, we rejected the opinion of the pulmonologist on the ground that
he was not: (1) an anesthesiologist who could enlighten the court about anesthesia
practice, procedure, and their complications; nor (2) an allergologist who could
properly advance expert opinion on allergic mediated processes; nor (3) a
pharmacologist who could explain the pharmacologic and toxic effects of the drug
allegedly responsible for the bronchospasms.
Second. On the other hand, the two doctors presented by respondents clearly were
experts on the subject. They vouched for the correctness of Dr. Marlyn Ricos
diagnosis. Dr. Peter Gotiong, a diplomate whose specialization is infectious diseases
and microbiology and an associate professor at the Southwestern University College
of Medicine and the Gullas College of Medicine, testified that he has already treated
over a thousand cases of typhoid fever.[26] According to him, when a case of typhoid
fever is suspected, the Widal test is normally used,[27] and if the 1:320 results of the
Widal test on Jorge Reyes had been presented to him along with the patients history,
his impression would also be that the patient was suffering from typhoid fever.[28] As
to the treatment of the disease, he stated that chloromycetin was the drug of choice.[29]
He also explained that despite the measures taken by respondent doctors and the
intravenous administration of two doses of chloromycetin, complications of the
disease could not be discounted. His testimony is as follows:[30]
ATTY. PASCUAL:
Q If with that count with the test of positive for 1 is to 320, what treatment if any would
be given?
A If those are the findings that would be presented to me, the first thing I would
consider would be typhoid fever.
Q And presently what are the treatments commonly used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after you have administered chloramphenical
about 3 1/2 hours later, the patient associated with chills, temperature - 41oC, what
could possibly come to your mind?
A Well, when it is change in the clinical finding, you have to think of complication.
Q And what will you consider on the complication of typhoid?
A One must first understand that typhoid fever is toximia. The problem is
complications are caused by toxins produced by the bacteria . . . whether you have
suffered complications to think of -- heart toxic myocardities; then you can consider a
toxic meningitis and other complications and perforations and bleeding in the ilium.
Q Even that 40-year old married patient who received medication of chloromycetin of
500 milligrams intravenous, after the skin test, and received a second dose of
chloromycetin of 500 miligrams, 3 hours later, the patient developed chills . . . rise in
temperature to 41oC, and then about 40 minutes later the temperature rose to 100oF,
cardiac rate of 150 per minute who appeared to be coherent, restless, nauseating, with
seizures: what significance could you attach to these clinical changes?
A I would then think of toxemia, which was toxic meningitis and probably a toxic
meningitis because of the high cardiac rate.
Q Even if the same patient who, after having given intramuscular valium, became
conscious and coherent about 20 minutes later, have seizure and cyanosis and rolling
of eyeballs and vomitting . . . and death: what significance would you attach to this
development?
A We are probably dealing with typhoid to meningitis.
Q In such case, Doctor, what finding if any could you expect on the post-mortem
examination?
A No, the finding would be more on the meninges or covering of the brain.
Q And in order to see those changes would it require opening the skull?
A Yes.
As regards Dr. Vacalares finding during the autopsy that the deceaseds gastro-
intestinal tract was normal, Dr. Rico explained that, while hyperplasia[31] in the
payers patches or layers of the small intestines is present in typhoid fever, the same
may not always be grossly visible and a microscope was needed to see the texture of
the cells.[32]
Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member
of the Philippine and American Board of Pathology, an examiner of the Philippine
Board of Pathology, and chief pathologist at the MetroCebu Community Hospital,
Perpetual Succor Hospital, and the Andres Soriano Jr. Memorial Medical Center. He
stated that, as a clinical pathologist, he recognized that the Widal test is used for
typhoid patients, although he did not encourage its use because a single test would
only give a presumption necessitating that the test be repeated, becoming more
conclusive at the second and third weeks of the disease.[33] He corroborated Dr.
Gotiongs testimony that the danger with typhoid fever is really the possible
complications which could develop like perforation, hemorrhage, as well as liver and
cerebral complications.[34] As regards the 1:320 results of the Widal test on Jorge
Reyes, Dr. Panopio stated that no additional information could be obtained from a
higher ratio.[35] He also agreed with Dr. Gotiong that hyperplasia in the payers
patches may be microscopic.[36]
Indeed, the standard contemplated is not what is actually the average merit among all
known practitioners from the best to the worst and from the most to the least
experienced, but the reasonable average merit among the ordinarily good
physicians.[37] Here, Dr. Marlyn Rico did not depart from the reasonable standard
recommended by the experts as she in fact observed the due care required under the
circumstances. Though the Widal test is not conclusive, it remains a standard
diagnostic test for typhoid fever and, in the present case, greater accuracy through
repeated testing was rendered unobtainable by the early death of the patient. The
results of the Widal test and the patients history of fever with chills for five days, taken
with the fact that typhoid fever was then prevalent as indicated by the fact that the
clinic had been getting about 15 to 20 typhoid cases a month, were sufficient to give
upon any doctor of reasonable skill the impression that Jorge Reyes had typhoid fever.
Dr. Rico was also justified in recommending the administration of the drug
chloromycetin, the drug of choice for typhoid fever. The burden of proving that Jorge
Reyes was suffering from any other illness rested with the petitioners. As they failed
to present expert opinion on this, preponderant evidence to support their contention is
clearly absent.
Third. Petitioners contend that respondent Dr. Marvie Blanes, who took over from Dr.
Rico, was negligent in ordering the intravenous administration of two doses of 500
milligrams of chloromycetin at an interval of less than three hours. Petitioners claim
that Jorge Reyes died of anaphylactic shock[38] or possibly from overdose as the
second dose should have been administered five to six hours after the first, per
instruction of Dr. Marlyn Rico. As held by the Court of Appeals, however:
That chloromycetin was likewise a proper prescription is best established by medical
authority. Wilson, et. al., in Harrisons Principle of Internal Medicine, 12th ed. write
that chlorampenicol (which is the generic of chloromycetin) is the drug of choice for
typhoid fever and that no drug has yet proven better in promoting a favorable clinical
response. Chlorampenicol (Chloromycetin) is specifically indicated for bacterial
meningitis, typhoid fever, rickettsial infections, bacteriodes infections, etc. (PIMS
Annual, 1994, p. 211) The dosage likewise including the first administration of five
hundred milligrams (500 mg.) at around nine oclock in the evening and the second
dose at around 11:30 the same night was still within medically acceptable limits, since
the recommended dose of chloromycetin is one (1) gram every six (6) hours. (cf.
Pediatric Drug Handbook, 1st Ed., Philippine Pediatric Society, Committee on
Therapeutics and Toxicology, 1996). The intravenous route is likewise correct.
(Mansser, ONick, Pharmacology and Therapeutics) Even if the test was not
administered by the physician-on-duty, the evidence introduced that it was Dra. Blanes
who interpreted the results remain uncontroverted. (Decision, pp. 16-17) Once more,
this Court rejects any claim of professional negligence in this regard.
....
As regards anaphylactic shock, the usual way of guarding against it prior to the called it, the reasonable skill and competence . . . that a physician in the same or similar
administration of a drug, is the skin test of which, however, it has been observed: Skin locality . . . should apply.
testing with haptenic drugs is generally not reliable. Certain drugs cause nonspecific
histamine release, producing a weal-and-flare reaction in normal individuals. WHEREFORE, the instant petition is DENIED and the decision of the Court of
Immunologic activation of mast cells requires a polyvalent allergen, so a negative skin Appeals is AFFIRMED.
test to a univalent haptenic drug does not rule out anaphylactic sensitivity to that drug. SO ORDERED.
(Terr, Anaphylaxis and Urticaria in Basic and Clinical Immunology, p. 349) What all
this means legally is that even if the deceased suffered from an anaphylactic shock,
this, of itself, would not yet establish the negligence of the appellee-physicians for all
that the law requires of them is that they perform the standard tests and perform
standard procedures. The law cannot require them to predict every possible reaction to
all drugs administered. The onus probandi was on the appellants to establish, before
the trial court, that the appellee-physicians ignored standard medical procedure,
prescribed and administered medication with recklessness and exhibited an absence of
the competence and skills expected of general practitioners similarly situated.[39]

Fourth. Petitioners correctly observe that the medical profession is one which, like the
business of a common carrier, is affected with public interest. Moreover, they assert
that since the law imposes upon common carriers the duty of observing extraordinary
diligence in the vigilance over the goods and for the safety of the passengers,[40]
physicians and surgeons should have the same duty toward their patients.[41] They
also contend that the Court of Appeals erred when it allegedly assumed that the level
of medical practice is lower in Iligan City, thereby reducing the standard of care and
degree of diligence required from physicians and surgeons in Iligan City.

The standard of extraordinary diligence is peculiar to common carriers. The Civil Code
provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods
and for the safety of the passengers transported by them, according to the
circumstances of each case. . . .

The practice of medicine is a profession engaged in only by qualified individuals. It is

a right earned through years of education, training, and by first obtaining a license
from the state through professional board examinations. Such license may, at any time
and for cause, be revoked by the government. In addition to state regulation, the
conduct of doctors is also strictly governed by the Hippocratic Oath, an ancient code
of discipline and ethical rules which doctors have imposed upon themselves in
recognition and acceptance of their great responsibility to society. Given these
safeguards, there is no need to expressly require of doctors the observance of
extraordinary diligence. As it is now, the practice of medicine is already conditioned
upon the highest degree of diligence. And, as we have already noted, the standard
contemplated for doctors is simply the reasonable average merit among ordinarily
good physicians. That is reasonable diligence for doctors or, as the Court of Appeals
 EN BANC
A.M. No. 2005-08-SC December 9, 2005
SAMUEL R. RUEZ, JR. vs. MARYBETH V. JURADO
DECISION
AZCUNA, J.:
It is unfortunate that this administrative case involves co-workers in
this Court. Complainant, Samuel R. Ruez, Jr. (Ruez, Jr.), is Chief of the
Clearance Section, Checks Disbursement Division of the FMO-OCA and is the
son of the aggrieved party, Samuel V. Ruez, Sr. (Ruez, Sr.), Driver I for the
Motorpool, Property Division of the OCA. Respondent is Dr. Marybeth V.
Jurado (Dr. Jurado), Medical Officer IV of the Medical and Dental Services. All
three were working for the Court at the time of the incident in issue.
The parties agree that on January 12, 2005, at around 4:20 p.m., Ruez,
Sr. arrived by himself at this Courts clinic complaining of dizziness. His blood
pressure and pulse rate were taken by the reception nurse and were registered
at 210/100 mmHg and 112 beats a minute, respectively. What transpired next
is disputed. Ruez, Jr. alleged that despite his fathers medical condition, he was
merely advised to go to a hospital and then allowed to walk out of the clinic
on his own. Dr. Jurado, on the other hand, maintained that after being
informed of Ruez, Sr.s blood pressure and heart rate, she instructed the nurse
to administer one tablet of Capoten 25mg, an emergency drug that quickly
lowers a patients blood pressure. She then informed Ruez, Sr. that he will be
taken to the hospital, after which she immediately instructed the ambulance
driver, Mr. Jacinto, to stand by for hospital conduction. Minutes later, after
having taken Capoten and being given a chance to rest, Ruez, Sr. stood up and
walked out saying, Doktora, hanap lang ho ako ng kasama. Dr. Jurado said she
waited for him to return but he failed to show up. She asked Mr. Almarza, a
nurse at the clinic, to look for Ruez, Sr. but he was unable to locate him.
According to Ruez, Jr., after being informed of his fathers condition,
he rushed him to the Manila Doctors Hospital. There, Ruez, Sr. was treated in
the emergency room for approximately four hours before he was discharged
at around 8:30 p.m. and allowed to go home. However, prior to reaching their
house in Balintawak, Caloocan City, Ruez, Sr. began experiencing nausea,
abnormal palpitation and uneasiness and had to be brought back to the
hospital.
Ruez, Sr. and Ruez, Jr.[1] arrived at the emergency room of the Manila
Doctors Hospital at around 10:00 p.m. after which Ruez, Sr. underwent a C.T.
Scan. The C.T. Scan revealed a blood clot necessitating him to be admitted for
treatment and observation. The following morning he suffered a stroke and
for a moment was on flat line. The doctors were able to revive him and
thereafter he was transferred to the intensive care unit. Unfortunately, Ruez
Sr. never recovered from his ailment and, on September 12, 2005, he passed
away due to medical complications.[2]
On February 15, 2005, Ruez, Jr. filed a letter-complaint with the Office
of the Chief Justice regarding the alleged lack of attention given to his father
by Dr. Jurado. Specifically, he claims that Dr. Jurado merely advised his father
to go to the hospital and then allowed him to travel to Manila Doctors Hospital
despite the availability of an ambulance at the disposal of the clinic. Ruez, Jr.
submits that his father would not have suffered a stroke if not for the neglect
of Dr. Jurado.
The letter-complaint was referred to Atty. Eden T. Candelaria, Deputy Clerk
of Court and Chief of Administrative Services, for investigation. Atty.
Candelaria required Dr. Jurado to submit her comment to the letter-complaint.
The comment was submitted on March 18, 2005, together with supporting
affidavits from respondents witnesses. This was followed by Ruez, Jr.s reply
to the comment on April 12, 2005 and Dr. Jurados rejoinder on April 22, 2005. [3]
Atty. Candelaria submitted her report on June 17, 2005. The report gave
credence to the account of Dr. Jurado that Ruez, Sr. was given Capoten,
informed that he should be hospitalized and that the ambulance was placed
on standby to take him there. These factual findings of Atty. Candelaria appear
to be supported by the affidavits of the clinics personnel, including the
ambulance driver, who witnessed the events that happened between Ruez, Sr.
and Dr. Jurado.
The issue now for the Court to resolve is whether, given the accepted facts,
there is cause to hold Dr. Jurado administratively liable. Atty. Candelaria is
satisfied that Dr. Jurado provided Ruez, Sr. proper treatment inside the clinic.
However, in her opinion, Dr. Jurados actions after Ruez, Sr. had left were less
than the required diligence of a good father of a family. We quote below the
analysis of Atty. Candelaria:
. . . Records will clearly show that minutes after Mr.
Ruez, Sr. left the clinic, Dr. Jurado also left the clinic to go
home. This is shown by her time out registered in the
Chronolog Machine on the said date which was 4:31 p.m. and
 her inclusion in the list of passengers of Shuttle Bus No. 6. As
an efficient and intelligent doctor, Dr. Jurado should have at
least personally exerted all her efforts to determine the
whereabouts of Mr. Ruez, Sr. because of his condition and
again at the very least informed his relatives in the Court in
order that they too take the necessary action that very
moment. Or in the alternative, if indeed, Dr. Jurado may have
been in a hurry at that time to do some errands, she should
have at least[,] again, turned Mr. Ruez over the a [d]octor who
was willing to be left behind after office hours. These however
never happened. All that she relied on was the fact that there
was an emergency treatment and an order for hospital
conduction but [the same] didnt materialize and [she] put
[the] blame on Mr. Ruez, Sr. As admitted by complainant, Mr.
Ruez, Sr., is a mere driver and perhaps may have no
knowledge at all of the consequences of his 210/100 blood
pressure and since he sought refuge from the [c]linic, the
clinic, particularly Dr. Jurado[,] should have made him feel
safe and secure in the said place. . . .
Atty. Candelaria recommends that Dr. Jurado be held liable for simple neglect
of duty and suspended for one (1) month and (1) day. She further recommends
that, in light of what happened, Dr. Prudencio Banzon, SC Senior Staff Officer,
Medical and Dental Services, be directed to prepare a flexi-time schedule (until
5:30 p.m.) for all doctors and nurses in the clinic to enable it to provide
immediate and proper attention in case of any emergency medical situation.
The Court does not agree that the acts or omission of Dr. Jurado amount to
simple neglect of duty. Simple neglect of duty is defined as failure to give
proper attention to a task expected of an employee resulting from either
carelessness or indifference[4] or signifies a disregard of duty resulting from
carelessness or indifference.[5] In Philippine Retirement Authority,[6] it was stated,
The Court has decided the following, inter alia, as constituting the less grave
offense of Simple Neglect of Duty: delay in the transmittal of court records, delay
in responding to written queries, and delay of more than one (1) year and
seven (7) months in furnishing a party with a copy of the courts decision. In
all the instances cited by the Court, respondents had the duty or were expected
to do certain acts which they failed to do. How do we determine what acts are
expected of Dr. Jurado? Atty. Candelarias report cites the applicable yardstick:
a physician or surgeon is expected to apply in his practice of medicine that
degree of care and skill which is ordinarily employed by the profession,
generally, and under similar conditions.[7] Therefore, to find Dr. Jurado liable
for simple neglect of duty the Court has to be convinced that those in the
medical profession were also expected to act in the manner illustrated by Atty.
Candelaria, i.e., to exert all efforts to determine the whereabouts of Ruez, Sr.,
inform his relatives or turn his case over to a doctor who was available after
office hours.
Article II, Section 1 of the Code of Medical Ethics of the Medical
Profession in the Philippines states:
A physician should attend to his patients faithfully
and conscientiously. He should secure for them all possible
benefits that may depend upon his professional skill and care.
As the sole tribunal to adjudge the physicians failure to fulfill
his obligation to his patients is, in most cases, his own
conscience, violation of this rule on his part is discreditable
and inexcusable.
A doctors duty to his patient is not required to be extraordinary.[8] The
standard contemplated for doctors is simply the reasonable average merit
among ordinarily good physicians, i.e. reasonable skill and competence.[9] We
are persuaded that Dr. Jurado fulfilled such a standard when she treated Ruez,
Sr. inside the clinic. But what of Dr. Jurados conduct after Ruez, Sr. left the
clinic and failed to return?
It has been held that a patient cannot attribute to a physician damages
resulting from his own failure to follow his advice, even though he was
ignorant of the consequences which would result from his failure. [10] If a
patient leaves the hospital contrary to instructions, the physician is not liable
for subsequent events.[11] There is no expectation from doctors that they track
down each patient who apparently missed their appointments or force them
to comply with their directives. After all, a person is still the master of his own
body.[12]
Dr. Jurado may have allowed Ruez, Sr. to walk out of the clinic despite
her earlier diagnosis of his condition. By that time Ruez, Sr.s condition had
temporarily stabilized and she did not have the authority to stop him just as
other doctors have no power, save in certain instances (such as when the law
makes treatment compulsory due to some communicable disease[13] or when
consent is withheld by a minor but non-treatment would be detrimental or
when the court of competent jurisdiction orders the treatment), to force
patients into staying under their care. Dr. Jurado relied on Ruez, Sr.s
representation that he would return in order to be brought to the hospital but
made no undertaking to wait for him beyond the clinic hours or to look for
him if he did not return. Thus, when Ruez, Sr. failed to show up as of closing
time, and could not be found by the male nurse who looked for him at her
instructions, Dr. Jurado had reason to think that he had decided to disregard
her medical advice, which he in fact did when he and Ruez, Jr. decided to go
to the hospital on their own. Ruez, Sr., still of sound mind, had the right to
accept or ignore his doctors recommendation. Dr. Jurado was obligated to care
for Ruez, Sr. when the latter asked for medical treatment, which she did, but
when he left on his own accord Dr. Jurado was not expected, much less duty-
bound, to seek out her patient and continue being his doctor.

Some people may interpret Dr. Jurados inaction as indifference, while

others may view the same as just proper. Some would applaud Dr. Jurados
dedication had she done all the things mentioned by Atty. Candelaria and yet
others would see them as still insufficient. There will always be a divergence
of opinions as to how Dr. Jurado should have conducted herself but the Court
must distinguish between acts that deserve to be emulated or disdained and
those that deserve sanctions. The former is largely a matter of opinion while
the latter can only be imposed if there was a failure to perform a clear duty,
expectation or obligation. People may frown upon certain behaviors and
chastise others for having less compassion, but it does not necessarily follow
that those acts translate to neglect of duty, misconduct or negligence.

Dr. Jurado could have exerted greater efforts by searching all over the
compound for Ruez, Sr. but the fact remains that these were not part of her
duties nor were they expected from her. Simple neglect of duty presupposes a
task expected of an employee. Thus, it cannot be present if there was no
expected task on her part. That said, the Court wishes to exhort Dr. Jurado,
and all personnel in its clinic, not to be satisfied with merely fulfilling the
minimum, but to go for the magis, the best service they can render by way of
being exemplars for their fellow workers in the Court.

WHEREFORE, the Court finds no reason to hold Dr. Jurado liable for simple
neglect of duty, and, therefore, DISMISSES the complaint for lack of merit.
As recommended by Atty. Eden T. Candelaria, Deputy Clerk of Court and
Chief of Administrative Services, Dr. Prudencio Banzon, Senior Staff Officer,
Medical and Dental Services, is DIRECTED to prepare a flexi-time schedule
for all doctors and nurses in the clinic to further develop its capability to
provide immediate and proper attention in emergency medical situations, and
to submit the same to Atty. Candelaria in 30 days from receipt of a copy of this
decision which should be served upon him forthwith.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 142625 December 19, 2006
ROGELIO P. NOGALES, for himself and on behalf of the minors, ROGER
ANTHONY, ANGELICA, NANCY, and MICHAEL CHRISTOPHER, all
surnamed NOGALES, petitioners, vs. CAPITOL MEDICAL CENTER, DR.
OSCAR ESTRADA, DR. ELY VILLAFLOR, DR. ROSA UY, DR. JOEL
ENRIQUEZ, DR. PERPETUA LACSON, DR. NOE ESPINOLA, and NURSE J.
DUMLAO, respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 6 February 1998 Decision2 and 21 March 2000
Resolution3 of the Court of Appeals in CA-G.R. CV No. 45641. The Court of Appeals
affirmed in toto the 22 November 1993 Decision4 of the Regional Trial Court of
Manila, Branch 33, finding Dr. Oscar Estrada solely liable for damages for the death
of his patient, Corazon Nogales, while absolving the remaining respondents of any
liability. The Court of Appeals denied petitioners' motion for reconsideration.
The Facts
Pregnant with her fourth child, Corazon Nogales ("Corazon"), who was then 37 years
old, was under the exclusive prenatal care of Dr. Oscar Estrada ("Dr. Estrada")
beginning on her fourth month of pregnancy or as early as December 1975. While
Corazon was on her last trimester of pregnancy, Dr. Estrada noted an increase in her
blood pressure and development of leg edema5 indicating preeclampsia,6 which is a
dangerous complication of pregnancy.7
Around midnight of 25 May 1976, Corazon started to experience mild labor pains
prompting Corazon and Rogelio Nogales ("Spouses Nogales") to see Dr. Estrada at his
home. After examining Corazon, Dr. Estrada advised her immediate admission to the
Capitol Medical Center ("CMC").
On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff nurse
noted the written admission request8 of Dr. Estrada. Upon Corazon's admission at the
CMC, Rogelio Nogales ("Rogelio") executed and signed the "Consent on Admission
and Agreement"9 and "Admission Agreement."10 Corazon was then brought to the
labor room of the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of CMC, conducted an
internal examination of Corazon. Dr. Uy then called up Dr. Estrada to notify him of
her findings.
Based on the Doctor's Order Sheet,11 around 3:00 a.m., Dr. Estrada ordered for 10
mg. of valium to be administered immediately by intramuscular injection. Dr. Estrada
later ordered the start of intravenous administration of syntocinon admixed with
dextrose, 5%, in lactated Ringers' solution, at the rate of eight to ten micro-drops per
minute.
According to the Nurse's Observation Notes,12 Dr. Joel Enriquez ("Dr. Enriquez"), an
anesthesiologist at CMC, was notified at 4:15 a.m. of Corazon's admission.
Subsequently, when asked if he needed the services of an anesthesiologist, Dr. Estrada
refused. Despite Dr. Estrada's refusal, Dr. Enriquez stayed to observe Corazon's
condition.
At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the CMC. At 6:10
a.m., Corazon's bag of water ruptured spontaneously. At 6:12 a.m., Corazon's cervix
was fully dilated. At 6:13 a.m., Corazon started to experience convulsions.
At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium sulfate.
However, Dr. Ely Villaflor ("Dr. Villaflor"), who was assisting Dr. Estrada,
administered only 2.5 grams of magnesium sulfate.
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to extract
Corazon's baby. In the process, a 1.0 x 2.5 cm. piece of cervical tissue was allegedly
torn. The baby came out in an apnic, cyanotic, weak and injured condition.
Consequently, the baby had to be intubated and resuscitated by Dr. Enriquez and Dr.
Payumo.
At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which rapidly
became profuse. Corazon's blood pressure dropped from 130/80 to 60/40 within five
minutes. There was continuous profuse vaginal bleeding. The assisting nurse
administered hemacel through a gauge 19 needle as a side drip to the ongoing
intravenous injection of dextrose.
At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with bottled blood.
It took approximately 30 minutes for the CMC laboratory, headed by Dr. Perpetua
Lacson ("Dr. Lacson"), to comply with Dr. Estrada's order and deliver the blood.
At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the Obstetrics-Gynecology
Department of the CMC, was apprised of Corazon's condition by telephone. Upon
being informed that Corazon was bleeding profusely, Dr. Espinola ordered immediate
hysterectomy. Rogelio was made to sign a "Consent to Operation."13
Due to the inclement weather then, Dr. Espinola, who was fetched from his residence
by an ambulance, arrived at the CMC about an hour later or at 9:00 a.m. He examined
the patient and ordered some resuscitative measures to be administered. Despite Dr.
Espinola's efforts, Corazon died at 9:15 a.m. The cause of death was "hemorrhage,
post partum."14
On 14 May 1980, petitioners filed a complaint for damages15 with the Regional Trial
Court16 of Manila against CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr.
Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for the death of Corazon.
Petitioners mainly contended that defendant physicians and CMC personnel were
negligent in the treatment and management of Corazon's condition. Petitioners charged
CMC with negligence in the selection and supervision of defendant physicians and
hospital staff.
For failing to file their answer to the complaint despite service of summons, the trial
court declared Dr. Estrada, Dr. Enriquez, and Nurse Dumlao in default.17 CMC, Dr.
Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their respective answers denying
and opposing the allegations in the complaint. Subsequently, trial ensued.
After more than 11 years of trial, the trial court rendered judgment on 22 November
1993 finding Dr. Estrada solely liable for damages. The trial court ruled as follows:
The victim was under his pre-natal care, apparently, his fault began from his incorrect
and inadequate management and lack of treatment of the pre-eclamptic condition of
his patient. It is not disputed that he misapplied the forceps in causing the delivery
because it resulted in a large cervical tear which had caused the profuse bleeding which
he also failed to control with the application of inadequate injection of magnesium
sulfate by his assistant Dra. Ely Villaflor. Dr. Estrada even failed to notice the
erroneous administration by nurse Dumlao of hemacel by way of side drip, instead of
direct intravenous injection, and his failure to consult a senior obstetrician at an early
stage of the problem.
On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr. Joel Enriquez, Dr.
Lacson, Dr. Espinola, nurse J. Dumlao and CMC, the Court finds no legal justification
to find them civilly liable.
On the part of Dra. Ely Villaflor, she was only taking orders from Dr. Estrada, the
principal physician of Corazon Nogales. She can only make suggestions in the manner
the patient maybe treated but she cannot impose her will as to do so would be to
substitute her good judgment to that of Dr. Estrada. If she failed to correctly diagnose
the true cause of the bleeding which in this case appears to be a cervical laceration, it
cannot be safely concluded by the Court that Dra. Villaflor had the correct diagnosis
and she failed to inform Dr. Estrada. No evidence was introduced to show that indeed
Dra. Villaflor had discovered that there was laceration at the cervical area of the
patient's internal organ.
On the part of nurse Dumlao, there is no showing that when she administered the
hemacel as a side drip, she did it on her own. If the correct procedure was directly thru
the veins, it could only be because this was what was probably the orders of Dr.
Estrada.
While the evidence of the plaintiffs shows that Dr. Noe Espinola, who was the Chief
of the Department of Obstetrics and Gynecology who attended to the patient Mrs.
Nogales, it was only at 9:00 a.m. That he was able to reach the hospital because of
typhoon Didang (Exhibit 2). While he was able to give prescription in the manner
Corazon Nogales may be treated, the prescription was based on the information given
to him by phone and he acted on the basis of facts as presented to him, believing in
good faith that such is the correct remedy. He was not with Dr. Estrada when the
patient was brought to the hospital at 2:30 o'clock a.m. So, whatever errors that Dr.
Estrada committed on the patient before 9:00 o'clock a.m. are certainly the errors of
Dr. Estrada and cannot be the mistake of Dr. Noe Espinola. His failure to come to the
hospital on time was due to fortuitous event.
On the part of Dr. Joel Enriquez, while he was present in the delivery room, it is not
incumbent upon him to call the attention of Dr. Estrada, Dra. Villaflor and also of
Nurse Dumlao on the alleged errors committed by them. Besides, as anesthesiologist,
he has no authority to control the actuations of Dr. Estrada and Dra. Villaflor. For the
Court to assume that there were errors being committed in the presence of Dr. Enriquez
would be to dwell on conjectures and speculations.
On the civil liability of Dr. Perpetua Lacson, [s]he is a hematologist and in-charge of
the blood bank of the CMC. The Court cannot accept the theory of the plaintiffs that
there was delay in delivering the blood needed by the patient. It was testified, that in
order that this blood will be made available, a laboratory test has to be conducted to
determine the type of blood, cross matching and other matters consistent with medical
science so, the lapse of 30 minutes maybe considered a reasonable time to do all of
these things, and not a delay as the plaintiffs would want the Court to believe.
Admittedly, Dra. Rosa Uy is a resident physician of the Capitol Medical Center. She
was sued because of her alleged failure to notice the incompetence and negligence of
Dr. Estrada. However, there is no evidence to support such theory. No evidence was
adduced to show that Dra. Rosa Uy as a resident physician of Capitol Medical Center,
had knowledge of the mismanagement of the patient Corazon Nogales, and that
notwithstanding such knowledge, she tolerated the same to happen.
In the pre-trial order, plaintiffs and CMC agreed that defendant CMC did not have any
hand or participation in the selection or hiring of Dr. Estrada or his assistant Dra. Ely
Villaflor as attending physician[s] of the deceased. In other words, the two (2) doctors
were not employees of the hospital and therefore the hospital did not have control over
their professional conduct. When Mrs. Nogales was brought to the hospital, it was an
emergency case and defendant CMC had no choice but to admit her. Such being the
case, there is therefore no legal ground to apply the provisions of Article 2176 and
2180 of the New Civil Code referring to the vicarious liability of an employer for the
negligence of its employees. If ever in this case there is fault or negligence in the
treatment of the deceased on the part of the attending physicians who were employed
by the family of the deceased, such civil liability should be borne by the attending
physicians under the principle of "respondeat superior".
WHEREFORE, premises considered, judgment is hereby rendered finding defendant
Dr. Estrada of Number 13 Pitimini St. San Francisco del Monte, Quezon City civilly
liable to pay plaintiffs: 1) By way of actual damages in the amount of P105,000.00; 2)
By way of moral damages in the amount of P700,000.00; 3) Attorney's fees in the
amount of P100,000.00 and to pay the costs of suit.
For failure of the plaintiffs to adduce evidence to support its [sic] allegations against
the other defendants, the complaint is hereby ordered dismissed. While the Court looks
with disfavor the filing of the present complaint against the other defendants by the
herein plaintiffs, as in a way it has caused them personal inconvenience and slight
damage on their name and reputation, the Court cannot accepts [sic] however, the
theory of the remaining defendants that plaintiffs were motivated in bad faith in the
filing of this complaint. For this reason defendants' counterclaims are hereby ordered
dismissed.
SO ORDERED.18
Petitioners appealed the trial court's decision. Petitioners claimed that aside from Dr.
Estrada, the remaining respondents should be held equally liable for negligence.
Petitioners pointed out the extent of each respondent's alleged liability.
On 6 February 1998, the Court of Appeals affirmed the decision of the trial court.19
Petitioners filed a motion for reconsideration which the Court of Appeals denied in its
Resolution of 21 March 2000.20
Hence, this petition.
Meanwhile, petitioners filed a Manifestation dated 12 April 200221 stating that
respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao "need no
longer be notified of the petition because they are absolutely not involved in the issue
raised before the [Court], regarding the liability of [CMC]."22 Petitioners stressed that
the subject matter of this petition is the liability of CMC for the negligence of Dr.
Estrada.23
The Court issued a Resolution dated 9 September 200224 dispensing with the
requirement to submit the correct and present addresses of respondents Dr. Estrada,
Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court stated that with the filing
of petitioners' Manifestation, it should be understood that they are claiming only
against respondents CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy who have filed their
respective comments. Petitioners are foregoing further claims against respondents Dr.
Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao.
The Court noted that Dr. Estrada did not appeal the decision of the Court of Appeals
affirming the decision of the Regional Trial Court. Accordingly, the decision of the
Court of Appeals, affirming the trial court's judgment, is already final as against Dr.
Oscar Estrada.
Petitioners filed a motion for reconsideration25 of the Court's 9 September 2002
Resolution claiming that Dr. Enriquez, Dr. Villaflor and Nurse Dumlao were notified
of the petition at their counsels' last known addresses. Petitioners reiterated their
imputation of negligence on these respondents. The Court denied petitioners' Motion
for Reconsideration in its 18 February 2004 Resolution.26
The Court of Appeals' Ruling
In its Decision of 6 February 1998, the Court of Appeals upheld the trial court's ruling.
The Court of Appeals rejected petitioners' view that the doctrine in Darling v.
Charleston Community Memorial Hospital27 applies to this case. According to the
Court of Appeals, the present case differs from the Darling case since Dr. Estrada is
an independent contractor-physician whereas the Darling case involved a physician
and a nurse who were employees of the hospital.
Citing other American cases, the Court of Appeals further held that the mere fact that
a hospital permitted a physician to practice medicine and use its facilities is not
sufficient to render the hospital liable for the physician's negligence.28 A hospital is
not responsible for the negligence of a physician who is an independent contractor.29
The Court of Appeals found the cases of Davidson v. Conole30 and Campbell v. Emma
Laing Stevens Hospital31 applicable to this case. Quoting Campbell, the Court of
Appeals stated that where there is no proof that defendant physician was an employee
of defendant hospital or that defendant hospital had reason to know that any acts of
malpractice would take place, defendant hospital could not be held liable for its failure
to intervene in the relationship of physician-patient between defendant physician and
plaintiff.
On the liability of the other respondents, the Court of Appeals applied the "borrowed
servant" doctrine considering that Dr. Estrada was an independent contractor who was
merely exercising hospital privileges. This doctrine provides that once the surgeon
enters the operating room and takes charge of the proceedings, the acts or omissions
of operating room personnel, and any negligence associated with such acts or
omissions, are imputable to the surgeon.32 While the assisting physicians and nurses
may be employed by the hospital, or engaged by the patient, they normally become
the temporary servants or agents of the surgeon in charge while the operation is in
progress, and liability may be imposed upon the surgeon for their negligent acts under
the doctrine of respondeat superior.33
The Court of Appeals concluded that since Rogelio engaged Dr. Estrada as the
attending physician of his wife, any liability for malpractice must be Dr. Estrada's sole
responsibility.
While it found the amount of damages fair and reasonable, the Court of Appeals held
that no interest could be imposed on unliquidated claims or damages.
The Issue
Basically, the issue in this case is whether CMC is vicariously liable for the negligence
of Dr. Estrada. The resolution of this issue rests, on the other hand, on the
ascertainment of the relationship between Dr. Estrada and CMC. The Court also
believes that a determination of the extent of liability of the other respondents is
inevitable to finally and completely dispose of the present controversy.
The Ruling of the Court
The petition is partly meritorious.
On the Liability of CMC
Dr. Estrada's negligence in handling the treatment and management of Corazon's
condition which ultimately resulted in Corazon's death is no longer in issue. Dr.
Estrada did not appeal the decision of the Court of Appeals which affirmed the ruling
of the trial court finding Dr. Estrada solely liable for damages. Accordingly, the
finding of the trial court on Dr. Estrada's negligence is already final.
Petitioners maintain that CMC is vicariously liable for Dr. Estrada's negligence based
on Article 2180 in relation to Article 2176 of the Civil Code. These provisions
pertinently state:
Art. 2180. The obligation imposed by article 2176 is demandable not only for one's
own acts or omissions, but also for those of persons for whom one is responsible.
xxxx
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not
engaged in any business or industry.
xxxx
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is
no pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
Similarly, in the United States, a hospital which is the employer, master, or principal
of a physician employee, servant, or agent, may be held liable for the physician's
negligence under the doctrine of respondeat superior.34
In the present case, petitioners maintain that CMC, in allowing Dr. Estrada to practice
and admit patients at CMC, should be liable for Dr. Estrada's malpractice. Rogelio
claims that he knew Dr. Estrada as an accredited physician of CMC, though he
discovered later that Dr. Estrada was not a salaried employee of the CMC.35 Rogelio
further claims that he was dealing with CMC, whose primary concern was the
treatment and management of his wife's condition. Dr. Estrada just happened to be the
specific person he talked to representing CMC.36 Moreover, the fact that CMC made
Rogelio sign a Consent on Admission and Admission Agreement37 and a Consent to
Operation printed on the letterhead of CMC indicates that CMC considered Dr. Estrada
as a member of its medical staff.
On the other hand, CMC disclaims liability by asserting that Dr. Estrada was a mere
visiting physician and that it admitted Corazon because her physical condition then
was classified an emergency obstetrics case.38
CMC alleges that Dr. Estrada is an independent contractor "for whose actuations CMC
would be a total stranger." CMC maintains that it had no control or supervision over
Dr. Estrada in the exercise of his medical profession.
The Court had the occasion to determine the relationship between a hospital and a
consultant or visiting physician and the liability of such hospital for that physician's
negligence in Ramos v. Court of Appeals,39 to wit:
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. 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
physician's 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 patient's
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 petitioner's
condition.
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 former's
responsibility under a relationship of patria potestas. x x x40 (Emphasis supplied)
While the Court in Ramos did not expound on the control test, such test essentially
determines whether an employment relationship exists between a physician and a
hospital based on the exercise of control over the physician as to details. Specifically,
the employer (or the hospital) must have the right to control both the means and the
details of the process by which the employee (or the physician) is to accomplish his
task.41
After a thorough examination of the voluminous records of this case, the Court finds
no single evidence pointing to CMC's exercise of control over Dr. Estrada's treatment
and management of Corazon's condition. It is undisputed that throughout Corazon's
pregnancy, she was under the exclusive prenatal care of Dr. Estrada. At the time of
Corazon's admission at CMC and during her delivery, it was Dr. Estrada, assisted by
Dr. Villaflor, who attended to Corazon. There was no showing that CMC had a part in
diagnosing Corazon's condition. While Dr. Estrada enjoyed staff privileges at CMC,
such fact alone did not make him an employee of CMC.42 CMC merely allowed Dr.
Estrada to use its facilities43 when Corazon was about to give birth, which CMC
considered an emergency. Considering these circumstances, Dr. Estrada is not an
employee of CMC, but an independent contractor.
The question now is whether CMC is automatically exempt from liability considering
that Dr. Estrada is an independent contractor-physician.
In general, a hospital is not liable for the negligence of an independent contractor-
physician. There is, however, an exception to this principle. The hospital may be liable
if the physician is the "ostensible" agent of the hospital.44 This exception is also
known as the "doctrine of apparent authority."45 In Gilbert v. Sycamore Municipal
Hospital,46 the Illinois Supreme Court explained the doctrine of apparent authority in
this wise:
[U]nder the doctrine of apparent authority a hospital can be held vicariously liable for
the negligent acts of a physician providing care at the hospital, regardless of whether
the physician is an independent contractor, unless the patient knows, or should have
known, that the physician is an independent contractor. The elements of the action
have been set out as follows:
"For a hospital to be liable under the doctrine of apparent authority, a plaintiff must
show that: (1) the hospital, or its agent, acted in a manner that would lead a reasonable
person to conclude that the individual who was alleged to be negligent was an
employee or agent of the hospital; (2) where the acts of the agent create the appearance
of authority, the plaintiff must also prove that the hospital had knowledge of and
acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary care and prudence."
The element of "holding out" on the part of the hospital does not require an express
representation by the hospital that the person alleged to be negligent is an employee.
Rather, the element is satisfied if the hospital holds itself out as a provider of
emergency room care without informing the patient that the care is provided by
independent contractors.
The element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff
relies upon the hospital to provide complete emergency room care, rather than upon a
specific physician.
The doctrine of apparent authority essentially involves two factors to determine the
liability of an independent-contractor physician.
The first factor focuses on the hospital's manifestations and is sometimes described as
an inquiry whether the hospital acted in a manner which would lead a reasonable
person to conclude that the individual who was alleged to be negligent was an
employee or agent of the hospital.47 In this regard, the hospital need not make express
representations to the patient that the treating physician is an employee of the hospital;
rather a representation may be general and implied.48
The doctrine of apparent authority is a species of the doctrine of estoppel. Article 1431
of the Civil Code provides that "[t]hrough estoppel, an admission or representation is
rendered conclusive upon the person making it, and cannot be denied or disproved as
against the person relying thereon." Estoppel rests on this rule: "Whenever a party has,
by his own declaration, act, or omission, intentionally and deliberately led another to
believe a particular thing true, and to act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission, be permitted to falsify it."49
In the instant case, CMC impliedly held out Dr. Estrada as a member of its medical
staff. Through CMC's acts, CMC clothed Dr. Estrada with apparent authority thereby
leading the Spouses Nogales to believe that Dr. Estrada was an employee or agent of
CMC. CMC cannot now repudiate such authority.
First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical staff and
facilities to Dr. Estrada. Upon Dr. Estrada's request for Corazon's admission, CMC,
through its personnel, readily accommodated Corazon and updated Dr. Estrada of her
condition.
Second, CMC made Rogelio sign consent forms printed on CMC letterhead. Prior to
Corazon's admission and supposed hysterectomy, CMC asked Rogelio to sign release
forms, the contents of which reinforced Rogelio's belief that Dr. Estrada was a member
of CMC's medical staff.50 The Consent on Admission and Agreement explicitly
provides:
KNOW ALL MEN BY THESE PRESENTS:
I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar St., Malate Mla.,
being the father/mother/brother/sister/spouse/relative/ guardian/or person in custody
of Ma. Corazon, and representing his/her family, of my own volition and free will, do
consent and submit said Ma. Corazon to Dr. Oscar Estrada (hereinafter referred to as
Physician) for cure, treatment, retreatment, or emergency measures, that the Physician,
personally or by and through the Capitol Medical Center and/or its staff, may use,
adapt, or employ such means, forms or methods of cure, treatment, retreatment, or
emergency measures as he may see best and most expedient; that Ma. Corazon and I
will comply with any and all rules, regulations, directions, and instructions of the
Physician, the Capitol Medical Center and/or its staff; and, that I will not hold liable
or responsible and hereby waive and forever discharge and hold free the Physician, the
Capitol Medical Center and/or its staff, from any and all claims of whatever kind of
nature, arising from directly or indirectly, or by reason of said cure, treatment, or
retreatment, or emergency measures or intervention of said physician, the Capitol
Medical Center and/or its staff.
x x x x51 (Emphasis supplied)
While the Consent to Operation pertinently reads, thus:
I, ROGELIO NOGALES, x x x, of my own volition and free will, do consent and
submit said CORAZON NOGALES to Hysterectomy, by the Surgical Staff and
Anesthesiologists of Capitol Medical Center and/or whatever succeeding operations,
treatment, or emergency measures as may be necessary and most expedient; and, that
I will not hold liable or responsible and hereby waive and forever discharge and hold
free the Surgeon, his assistants, anesthesiologists, the Capitol Medical Center and/or
its staff, from any and all claims of whatever kind of nature, arising from directly or
indirectly, or by reason of said operation or operations, treatment, or emergency
measures, or intervention of the Surgeon, his assistants, anesthesiologists, the Capitol
Medical Center and/or its staff.52 (Emphasis supplied)
Without any indication in these consent forms that Dr. Estrada was an independent
contractor-physician, the Spouses Nogales could not have known that Dr. Estrada was
an independent contractor. Significantly, no one from CMC informed the Spouses
Nogales that Dr. Estrada was an independent contractor. On the contrary, Dr. Atencio,
who was then a member of CMC Board of Directors, testified that Dr. Estrada was
part of CMC's surgical staff.53
Third, Dr. Estrada's referral of Corazon's profuse vaginal bleeding to Dr. Espinola,
who was then the Head of the Obstetrics and Gynecology Department of CMC, gave
the impression that Dr. Estrada as a member of CMC's medical staff was collaborating
with other CMC-employed specialists in treating Corazon.
The second factor focuses on the patient's reliance. It is sometimes characterized as an
inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or
its agent, consistent with ordinary care and prudence.54
The records show that the Spouses Nogales relied upon a perceived employment
relationship with CMC in accepting Dr. Estrada's services. Rogelio testified that he
and his wife specifically chose Dr. Estrada to handle Corazon's delivery not only
because of their friend's recommendation, but more importantly because of Dr.
Estrada's "connection with a reputable hospital, the [CMC]."55 In other words, Dr.
Estrada's relationship with CMC played a significant role in the Spouses Nogales'
decision in accepting Dr. Estrada's services as the obstetrician-gynecologist for
Corazon's delivery. Moreover, as earlier stated, there is no showing that before and
during Corazon's confinement at CMC, the Spouses Nogales knew or should have
known that Dr. Estrada was not an employee of CMC.
Further, the Spouses Nogales looked to CMC to provide the best medical care and
support services for Corazon's delivery. The Court notes that prior to Corazon's fourth
pregnancy, she used to give birth inside a clinic. Considering Corazon's age then, the
Spouses Nogales decided to have their fourth child delivered at CMC, which Rogelio
regarded one of the best hospitals at the time.56 This is precisely because the Spouses
Nogales feared that Corazon might experience complications during her delivery
which would be better addressed and treated in a modern and big hospital such as
CMC. Moreover, Rogelio's consent in Corazon's hysterectomy to be performed by a
different physician, namely Dr. Espinola, is a clear indication of Rogelio's confidence
in CMC's surgical staff.
CMC's defense that all it did was "to extend to [Corazon] its facilities" is untenable.
The Court cannot close its eyes to the reality that hospitals, such as CMC, are in the
business of treatment. In this regard, the Court agrees with the observation made by
the Court of Appeals of North Carolina in Diggs v. Novant Health, Inc.,57 to wit:
"The conception that the hospital does not undertake to treat the patient, does not
undertake to act through its doctors and nurses, but undertakes instead simply to
procure them to act upon their own responsibility, no longer reflects the fact. Present
day hospitals, as their manner of operation plainly demonstrates, do far more than
furnish facilities for treatment. They regularly employ on a salary basis a large staff of
physicians, nurses and internes [sic], as well as administrative and manual workers,
and they charge patients for medical care and treatment, collecting for such services,
if necessary, by legal action. Certainly, the person who avails himself of 'hospital
facilities' expects that the hospital will attempt to cure him, not that its nurses or other
employees will act on their own responsibility." x x x (Emphasis supplied)
Likewise unconvincing is CMC's argument that petitioners are estopped from claiming
damages based on the Consent on Admission and Consent to Operation. Both release
forms consist of two parts. The first part gave CMC permission to administer to
Corazon any form of recognized medical treatment which the CMC medical staff
deemed advisable. The second part of the documents, which may properly be
described as the releasing part, releases CMC and its employees "from any and all
claims" arising from or by reason of the treatment and operation.
The documents do not expressly release CMC from liability for injury to Corazon due
to negligence during her treatment or operation. Neither do the consent forms
expressly exempt CMC from liability for Corazon's death due to negligence during
such treatment or operation. Such release forms, being in the nature of contracts of
adhesion, are construed strictly against hospitals. Besides, a blanket release in favor of
hospitals "from any and all claims," which includes claims due to bad faith or gross
negligence, would be contrary to public policy and thus void.
Even simple negligence is not subject to blanket release in favor of establishments like
hospitals but may only mitigate liability depending on the circumstances.58 When a
person needing urgent medical attention rushes to a hospital, he cannot bargain on
equal footing with the hospital on the terms of admission and operation. Such a person
is literally at the mercy of the hospital. There can be no clearer example of a contract
of adhesion than one arising from such a dire situation. Thus, the release forms of
CMC cannot relieve CMC from liability for the negligent medical treatment of
Corazon.
On the Liability of the Other Respondents
Despite this Court's pronouncement in its 9 September 200259 Resolution that the
filing of petitioners' Manifestation confined petitioners' claim only against CMC, Dr.
Espinola, Dr. Lacson, and Dr. Uy, who have filed their comments, the Court deems it
proper to resolve the individual liability of the remaining respondents to put an end
finally to this more than two-decade old controversy.
a) Dr. Ely Villaflor
Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause of Corazon's
bleeding and to suggest the correct remedy to Dr. Estrada.60 Petitioners assert that it
was Dr. Villaflor's duty to correct the error of Nurse Dumlao in the administration of
hemacel.
The Court is not persuaded. Dr. Villaflor admitted administering a lower dosage of
magnesium sulfate. However, this was after informing Dr. Estrada that Corazon was
no longer in convulsion and that her blood pressure went down to a dangerous level.61
At that moment, Dr. Estrada instructed Dr. Villaflor to reduce the dosage of
magnesium sulfate from 10 to 2.5 grams. Since petitioners did not dispute Dr.
Villaflor's allegation, Dr. Villaflor's defense remains uncontroverted. Dr. Villaflor's
act of administering a lower dosage of magnesium sulfate was not out of her own
volition or was in contravention of Dr. Estrada's order.
b) Dr. Rosa Uy
Dr. Rosa Uy's alleged negligence consisted of her failure (1) to call the attention of Dr.
Estrada on the incorrect dosage of magnesium sulfate administered by Dr. Villaflor;
(2) to take corrective measures; and (3) to correct Nurse Dumlao's wrong method of
hemacel administration.
The Court believes Dr. Uy's claim that as a second year resident physician then at
CMC, she was merely authorized to take the clinical history and physical examination
of Corazon.62 However, that routine internal examination did not ipso facto make Dr.
Uy liable for the errors committed by Dr. Estrada. Further, petitioners' imputation of
negligence rests on their baseless assumption that Dr. Uy was present at the delivery
room. Nothing shows that Dr. Uy participated in delivering Corazon's baby. Further,
it is unexpected from Dr. Uy, a mere resident physician at that time, to call the attention
of a more experienced specialist, if ever she was present at the delivery room.
c) Dr. Joel Enriquez
Petitioners fault Dr. Joel Enriquez also for not calling the attention of Dr. Estrada, Dr.
Villaflor, and Nurse Dumlao about their errors.63 Petitioners insist that Dr. Enriquez
should have taken, or at least suggested, corrective measures to rectify such errors.
The Court is not convinced. Dr. Enriquez is an anesthesiologist whose field of
expertise is definitely not obstetrics and gynecology. As such, Dr. Enriquez was not
expected to correct Dr. Estrada's errors. Besides, there was no evidence of Dr.
Enriquez's knowledge of any error committed by Dr. Estrada and his failure to act hemacel administration was introduced. Therefore, there is no basis to hold Nurse
upon such observation. Dumlao liable for negligence.

d) Dr. Perpetua Lacson On the Award of Interest on Damages

Petitioners fault Dr. Perpetua Lacson for her purported delay in the delivery of blood The award of interest on damages is proper and allowed under Article 2211 of the
Corazon needed.64 Petitioners claim that Dr. Lacson was remiss in her duty of Civil Code, which states that in crimes and quasi-delicts, interest as a part of the
supervising the blood bank staff. damages may, in a proper case, be adjudicated in the discretion of the court.68

As found by the trial court, there was no unreasonable delay in the delivery of blood
from the time of the request until the transfusion to Corazon. Dr. Lacson competently
explained the procedure before blood could be given to the patient.65 Taking into
account the bleeding time, clotting time and cross-matching, Dr. Lacson stated that it
would take approximately 45-60 minutes before blood could be ready for
transfusion.66 Further, no evidence exists that Dr. Lacson neglected her duties as head
of the blood bank.
WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds
respondent Capitol Medical Center vicariously liable for the negligence of Dr. Oscar
Estrada. The amounts of P105,000 as actual damages and P700,000 as moral damages
should each earn legal interest at the rate of six percent (6%) per annum computed
from the date of the judgment of the trial court. The Court affirms the rest of the
Decision dated 6 February 1998 and Resolution dated 21 March 2000 of the Court of
Appeals in CA-G.R. CV No. 45641.

e) Dr. Noe Espinola SO ORDERED.

Petitioners argue that Dr. Espinola should not have ordered immediate hysterectomy
without determining the underlying cause of Corazon's bleeding. Dr. Espinola should
have first considered the possibility of cervical injury, and advised a thorough
examination of the cervix, instead of believing outright Dr. Estrada's diagnosis that the
cause of bleeding was uterine atony.

Dr. Espinola's order to do hysterectomy which was based on the information he

received by phone is not negligence. The Court agrees with the trial court's observation
that Dr. Espinola, upon hearing such information about Corazon's condition, believed
in good faith that hysterectomy was the correct remedy. At any rate, the hysterectomy
did not push through because upon Dr. Espinola's arrival, it was already too late. At
the time, Corazon was practically dead.

f) Nurse J. Dumlao

In Moore v. Guthrie Hospital Inc.,67 the US Court of Appeals, Fourth Circuit, held
that to recover, a patient complaining of injuries allegedly resulting when the nurse
negligently injected medicine to him intravenously instead of intramuscularly had to
show that (1) an intravenous injection constituted a lack of reasonable and ordinary
care; (2) the nurse injected medicine intravenously; and (3) such injection was the
proximate cause of his injury.

In the present case, there is no evidence of Nurse Dumlao's alleged failure to follow
Dr. Estrada's specific instructions. Even assuming Nurse Dumlao defied Dr. Estrada's
order, there is no showing that side-drip administration of hemacel proximately caused
Corazon's death. No evidence linking Corazon's death and the alleged wrongful
 Republic of the Philippines discharge. After a series of medical examinations, Dr. Miguel Ampil, petitioner in
SUPREME COURT G.R. No. 127590, diagnosed her to be suffering from "cancer of the sigmoid."
Manila
FIRST DIVISION On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the Medical City
Hospital, performed an anterior resection surgery on Natividad. He found that the
G.R. No. 126297 January 31, 2007 malignancy in her sigmoid area had spread on her left ovary, necessitating the removal
of certain portions of it. Thus, Dr. Ampil obtained the consent of Natividads husband,
PROFESSIONAL SERVICES, INC., Petitioner, vs. NATIVIDAD and Enrique Agana, to permit Dr. Juan Fuentes, respondent in G.R. No. 126467, to perform
ENRIQUE AGANA, Respondents. hysterectomy on her.

x-----------------------x After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed
the operation and closed the incision.
G.R. No. 126467 January 31, 2007
However, the operation appeared to be flawed. In the corresponding Record of
NATIVIDAD (Substituted by her children MARCELINO AGANA III, Operation dated April 11, 1984, the attending nurses entered these remarks:
ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and
RAYMUND AGANA) and ENRIQUE AGANA, Petitioners, vs. JUAN "sponge count lacking 2
FUENTES, Respondent.
"announced to surgeon searched (sic) done but to no avail continue for closure."
x- - - - - - - - - - - - - - - - - - - -- - - - x
On April 24, 1984, Natividad was released from the hospital. Her hospital and medical
G.R. No. 127590 January 31, 2007 bills, including the doctors fees, amounted to P60,000.00.

MIGUEL AMPIL, Petitioner, vs. NATIVIDAD AGANA and ENRIQUE After a couple of days, Natividad complained of excruciating pain in her anal region.
AGANA, Respondents. She consulted both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was
the natural consequence of the surgery. Dr. Ampil then recommended that she consult
DECISION an oncologist to examine the cancerous nodes which were not removed during the
SANDOVAL-GUTIERREZ, J.: operation.

Hospitals, having undertaken one of mankinds most important and delicate
endeavors, must assume the grave responsibility of pursuing it with appropriate care.
The care and service dispensed through this high trust, however technical, complex
and esoteric its character may be, must meet standards of responsibility commensurate
with the undertaking to preserve and protect the health, and indeed, the very lives of
those placed in the hospitals keeping.1
Assailed in these three consolidated petitions for review on certiorari is the Court of
Appeals Decision2 dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R.
SP No. 32198 affirming with modification the Decision3 dated March 17, 1993 of the
Regional Trial Court (RTC), Branch 96, Quezon City in Civil Case No. Q-43322 and
nullifying its Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital
(Medical City Hospital) because of difficulty of bowel movement and bloody anal
On May 9, 1984, Natividad, accompanied by her husband, went to the United States
to seek further treatment. After four months of consultations and laboratory
examinations, Natividad was told she was free of cancer. Hence, she was advised to
return to the Philippines.
On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains.
Two weeks thereafter, her daughter found a piece of gauze protruding from her vagina.
Upon being informed about it, Dr. Ampil proceeded to her house where he managed
to extract by hand a piece of gauze measuring 1.5 inches in width. He then assured her
that the pains would soon vanish.
Dr. Ampils assurance did not come true. Instead, the pains intensified, prompting
Natividad to seek treatment at the Polymedic General Hospital. While confined there,
Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina --
a foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal
vault. A recto-vaginal fistula had formed in her reproductive organs which forced stool
to excrete through the vagina. Another surgical operation was needed to remedy the
damage. Thus, in October 1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96,
Quezon City a complaint for damages against the Professional Services, Inc. (PSI),
owner of the Medical City Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil
Case No. Q-43322. They alleged that the latter are liable for negligence for leaving
two pieces of gauze inside Natividads body and malpractice for concealing their acts
of negligence.
Meanwhile, Enrique Agana also filed with the Professional Regulation Commission
(PRC) an administrative complaint for gross negligence and malpractice against Dr.
Ampil and Dr. Fuentes, docketed as Administrative Case No. 1690. The PRC Board
of Medicine heard the case only with respect to Dr. Fuentes because it failed to acquire
jurisdiction over Dr. Ampil who was then in the United States.
On February 16, 1986, pending the outcome of the above cases, Natividad died and
was duly substituted by her above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding
PSI, Dr. Ampil and Dr. Fuentes liable for negligence and malpractice, the decretal part
of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants
PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN
FUENTES to pay to the plaintiffs, jointly and severally, except in respect of the award
for exemplary damages and the interest thereon which are the liabilities of defendants
Dr. Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of
P21.60-US$1.00, as reimbursement of actual expenses incurred in the United States of
America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;
c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic
Hospital, medical fees, and cost of the saline solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorneys fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing
of the complaint until full payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of
Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial
execution of its Decision, which was granted in an Order dated May 11, 1993.
Thereafter, the sheriff levied upon certain properties of Dr. Ampil and sold them for
P451,275.00 and delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into an agreement with PSI
and Dr. Fuentes to indefinitely suspend any further execution of the RTC Decision.
However, not long thereafter, the Aganas again filed a motion for an alias writ of
execution against the properties of PSI and Dr. Fuentes. On September 21, 1993, the
RTC granted the motion and issued the corresponding writ, prompting Dr. Fuentes to
file with the Court of Appeals a petition for certiorari and prohibition, with prayer for
preliminary injunction, docketed as CA-G.R. SP No. 32198. During its pendency, the
Court of Appeals issued a Resolution5 dated October 29, 1993 granting Dr. Fuentes
prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No.
42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision6
in Administrative Case No. 1690 dismissing the case against Dr. Fuentes. The Board
held that the prosecution failed to show that Dr. Fuentes was the one who left the two
pieces of gauze inside Natividads body; and that he concealed such fact from
Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing
of CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case against defendant-appellant
Dr. Juan Fuentes is hereby DISMISSED, and with the pronouncement that defendant-
appellant Dr. Miguel Ampil is liable to reimburse defendant-appellant Professional
Services, Inc., whatever amount the latter will pay or had paid to the plaintiffs-
appellees, the decision appealed from is hereby AFFIRMED and the instant appeal
DISMISSED.
Concomitant with the above, the petition for certiorari and prohibition filed by herein
defendant-appellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED
and the challenged order of the respondent judge dated September 21, 1993, as well as
the alias writ of execution issued pursuant thereto are hereby NULLIFIED and SET
ASIDE. The bond posted by the petitioner in connection with the writ of preliminary
injunction issued by this Court on November 29, 1993 is hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution7
dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in
holding that: (1) it is estopped from raising the defense that Dr. Ampil is not its
employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is not entitled to its
counterclaim against the Aganas. PSI contends that Dr. Ampil is not its employee, but
a mere consultant or independent contractor. As such, he alone should answer for his
negligence.
In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding
that Dr. Fuentes is not guilty of negligence or medical malpractice, invoking the
doctrine of res ipsa loquitur. They contend that the pieces of gauze are prima facie
proofs that the operating surgeons have been negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in
finding him liable for negligence and malpractice sans evidence that he left the two
pieces of gauze in Natividads vagina. He pointed to other probable causes, such as:
(1) it was Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the
attending nurses failure to properly count the gauzes used during surgery; and (3) the
medical intervention of the American doctors who examined Natividad in the United
States of America.
For our resolution are these three vital issues: first, whether the Court of Appeals erred
in holding Dr. Ampil liable for negligence and malpractice; second, whether the Court
of Appeals erred in absolving Dr. Fuentes of any liability; and third, whether PSI may
be held solidarily liable for the negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Courts attention to other
possible causes of Natividads detriment. He argues that the Court should not discount
either of the following possibilities: first, Dr. Fuentes left the gauzes in Natividads
body after performing hysterectomy; second, the attending nurses erred in counting
the gauzes; and third, the American doctors were the ones who placed the gauzes in
Natividads body.
Dr. Ampils arguments are purely conjectural and without basis. Records show that he
did not present any evidence to prove that the American doctors were the ones who
put or left the gauzes in Natividads body. Neither did he submit evidence to rebut the
correctness of the record of operation, particularly the number of gauzes used. As to
the alleged negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his
(Dr. Fuentes) work and found it in order.
The glaring truth is that all the major circumstances, taken together, as specified by
the Court of Appeals, directly point to Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding
of the patient during the surgical operation.
Second, immediately after the operation, the nurses who assisted in the surgery noted
in their report that the sponge count (was) lacking 2; that such anomaly was
announced to surgeon and that a search was done but to no avail prompting Dr.
Ampil to continue for closure x x x.
Third, after the operation, two (2) gauzes were extracted from the same spot of the
body of Mrs. Agana where the surgery was performed.
An operation requiring the placing of sponges in the incision is not complete until the
sponges are properly removed, and it is settled that the leaving of sponges or other
foreign substances in the wound after the incision has been closed is at least prima
facie negligence by the operating surgeon.8 To put it simply, such act is considered so
inconsistent with due care as to raise an inference of negligence. There are even legions
of authorities to the effect that such act is negligence per se.9
Of course, the Court is not blind to the reality that there are times when danger to a
patients life precludes a surgeon from further searching missing sponges or foreign
objects left in the body. But this does not leave him free from any obligation. Even if
it has been shown that a surgeon was required by the urgent necessities of the case to
leave a sponge in his patients abdomen, because of the dangers attendant upon delay,
still, it is his legal duty to so inform his patient within a reasonable time thereafter by
advising her of what he had been compelled to do. This is in order that she might seek
relief from the effects of the foreign object left in her body as her condition might
permit. The ruling in Smith v. Zeagler10 is explicit, thus:
The removal of all sponges used is part of a surgical operation, and when a physician
or surgeon fails to remove a sponge he has placed in his patients body that should be
removed as part of the operation, he thereby leaves his operation uncompleted and
creates a new condition which imposes upon him the legal duty of calling the new
condition to his patients attention, and endeavoring with the means he has at hand to
minimize and avoid untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze.
Worse, he even misled her that the pain she was experiencing was the ordinary
consequence of her operation. Had he been more candid, Natividad could have taken
the immediate and appropriate medical remedy to remove the gauzes from her body.
To our mind, what was initially an act of negligence by Dr. Ampil has ripened into a
deliberate wrongful act of deceiving his patient.
This is a clear case of medical malpractice or more appropriately, medical negligence.
To successfully pursue this kind of case, a patient must only prove that a health care
provider either failed to do something which a reasonably prudent health care provider
would have done, or that he did something that a reasonably prudent provider would
not have done; and that failure or action caused injury to the patient.11 Simply put, the
elements are duty, breach, injury and proximate causation. Dr, Ampil, as the lead
surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividads
body before closure of the incision. When he failed to do so, it was his duty to inform
Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to
Natividad, necessitating her further examination by American doctors and another
surgery. That Dr. Ampils negligence is the proximate cause12 of Natividads injury
could be traced from his act of closing the incision despite the information given by
the attending nurses that two pieces of gauze were still missing. That they were later
on extracted from Natividads vagina established the causal link between Dr. Ampils
negligence and the injury. And what further aggravated such injury was his deliberate
concealment of the missing gauzes from the knowledge of Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on
the ground that it is contrary to the doctrine of res ipsa loquitur. According to them,
the fact that the two pieces of gauze were left inside Natividads body is a prima facie
evidence of Dr. Fuentes negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for itself." It is 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 Stated
differently, where the thing which caused the injury, without the fault of the injured,
is under the exclusive control of the defendant and the injury is such that it should not
have occurred if he, having such control used proper care, it affords reasonable
evidence, in the absence of explanation that the injury arose from the defendants want
of care, and the burden of proof is shifted to him to establish that he has observed due
care and diligence.14
From the foregoing statements of the rule, the requisites for the applicability of the
doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which
caused the injury was under the control and management of the defendant; (3) the
occurrence was such that in the ordinary course of things, would not have happened if
those who had control or management used proper care; and (4) the absence of
explanation by the defendant. Of the foregoing requisites, the most instrumental is the
"control and management of the thing which caused the injury."15
We find the element of "control and management of the thing which caused the injury"
to be wanting. Hence, the doctrine of res ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead surgeon during the operation of
Natividad. He requested the assistance of Dr. Fuentes only to perform hysterectomy
when he (Dr. Ampil) found that the malignancy in her sigmoid area had spread to her
left ovary. Dr. Fuentes performed the surgery and thereafter reported and showed his
work to Dr. Ampil. The latter examined it and finding everything to be in order,
allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed operating
on Natividad. He was about to finish the procedure when the attending nurses informed
him that two pieces of gauze were missing. A "diligent search" was conducted, but the
misplaced gauzes were not found. Dr. Ampil then directed that the incision be closed.
During this entire period, Dr. Fuentes was no longer in the operating room and had, in
fact, left the hospital.
Under the "Captain of the Ship" rule, the operating surgeon is the person in complete
charge of the surgery room and all personnel connected with the operation. Their duty
is to obey his orders.16 As stated before, Dr. Ampil was the lead surgeon. In other
words, he was the "Captain of the Ship." That he discharged such role is evident from
his following conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2)
examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes
permission to leave; and (4) ordering the closure of the incision. To our mind, it was
this act of ordering the closure of the incision notwithstanding that two pieces of gauze
remained unaccounted for, that caused injury to Natividads body. Clearly, the control
and management of the thing which caused the injury was in the hands of Dr. Ampil,
not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not
per se create or constitute an independent or separate ground of liability, being a mere
evidentiary rule.17 In other words, mere invocation and application of the doctrine
does not dispense with the requirement of proof of negligence. Here, the negligence
was proven to have been committed by Dr. Ampil and not by Dr. Fuentes.
 III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical development of hospitals and
the resulting theories concerning their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable institutions,
providing medical services to the lowest classes of society, without regard for a
patients ability to pay.18 Those who could afford medical treatment were usually
treated at home by their doctors.19 However, the days of house calls and philanthropic
health care are over. The modern health care industry continues to distance itself from
its charitable past and has experienced a significant conversion from a not-for-profit
health care to for-profit hospital businesses. Consequently, significant changes in
health law have accompanied the business-related changes in the hospital industry.
One important legal change is an increase in hospital liability for medical malpractice.
Many courts now allow claims for hospital vicarious liability under the theories of
respondeat superior, apparent authority, ostensible authority, or agency by estoppel.
20
In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of
the Civil Code, which reads:
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is
no pre-existing contractual relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter.
A derivative of this provision is Article 2180, the rule governing vicarious liability
under the doctrine of respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is demandable not only for ones
own acts or omissions, but also for those of persons for whom one is responsible.
x x x x x x
The owners and managers of an establishment or enterprise are likewise responsible
for damages caused by their employees in the service of the branches in which the
latter are employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks even though the former are not
engaged in any business or industry.
x x x x x x
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.
A prominent civilist commented that professionals engaged by an employer, such as
physicians, dentists, and pharmacists, are not "employees" under this article because
the manner in which they perform their work is not within the control of the latter
(employer). In other words, professionals are considered personally liable for the fault
or negligence they commit in the discharge of their duties, and their employer cannot
be held liable for such fault or negligence. In the context of the present case, "a hospital
cannot be held liable for the fault or negligence of a physician or surgeon in the
treatment or operation of patients."21
The foregoing view is grounded on the traditional notion that the professional status
and the very nature of the physicians calling preclude him from being classed as an
agent or employee of a hospital, whenever he acts in a professional capacity.22 It has
been said that medical practice strictly involves highly developed and specialized
knowledge,23 such that physicians are generally free to exercise their own skill and
judgment in rendering medical services sans interference.24 Hence, when a doctor
practices medicine in a hospital setting, the hospital and its employees are deemed to
subserve him in his ministrations to the patient and his actions are of his own
responsibility.25
The case of Schloendorff v. Society of New York Hospital26 was then considered an
authority for this view. The "Schloendorff doctrine" regards a physician, even if
employed by a hospital, as an independent contractor because of the skill he exercises
and the lack of control exerted over his work. Under this doctrine, hospitals are exempt
from the application of the respondeat superior principle for fault or negligence
committed by physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened with the significant
developments in medical care. Courts came to realize that modern hospitals are
increasingly taking active role in supplying and regulating medical care to patients. No
longer were a hospitals functions limited to furnishing room, food, facilities for
treatment and operation, and attendants for its patients. Thus, in Bing v. Thunig,27 the
New York Court of Appeals deviated from the Schloendorff doctrine, noting that
modern hospitals actually do far more than provide facilities for treatment. Rather,
they regularly employ, on a salaried basis, a large staff of physicians, interns, nurses,
administrative and manual workers. They charge patients for medical care and
treatment, even collecting for such services through legal action, if necessary. The
court then concluded that there is no reason to exempt hospitals from the universal rule
of respondeat superior.
In our shores, the nature of the relationship between the hospital and the physicians is
rendered inconsequential in view of our categorical pronouncement in Ramos v. Court
of Appeals28 that for purposes of apportioning responsibility in medical negligence
cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians. This Court held:
"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," who are allegedly not hospital employees, presents
problems in apportioning responsibility for negligence in medical malpractice cases.
However, the difficulty is 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. x x x.
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, x x his silence or lack of action, or his failure to repudiate the agency, knowing that another
x, 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. "
But the Ramos pronouncement is not our only basis in sustaining PSIs liability. Its
liability is also anchored upon the agency principle of apparent authority or agency by
estoppel and the doctrine of corporate negligence which have gained acceptance in the
determination of a hospitals liability for negligent acts of health professionals. The
present case serves as a perfect platform to test the applicability of these doctrines,
thus, enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as the "holding
out" theory, or doctrine of ostensible agency or agency by estoppel,29 has its origin
from the law of agency. It imposes liability, not as the result of the reality of a
contractual relationship, but rather because of the actions of a principal or an employer
in somehow misleading the public into believing that the relationship or the authority
exists.30 The concept is essentially one of estoppel and has been explained in this
manner:
"The principal is bound by the acts of his agent with the apparent authority which he
knowingly permits the agent to assume, or which he holds the agent out to the public
as possessing. The question in every case is whether the principal has by his voluntary
act placed the agent in such a situation that a person of ordinary prudence, conversant
with business usages and the nature of the particular business, is justified in presuming
that such agent has authority to perform the particular act in question.31
The applicability of apparent authority in the field of hospital liability was upheld long
time ago in Irving v. Doctor Hospital of Lake Worth, Inc.32 There, it was explicitly
stated that "there does not appear to be any rational basis for excluding the concept of
apparent authority from the field of hospital liability." Thus, in cases where it can be
shown that a hospital, by its actions, has held out a particular physician as its agent
and/or employee and that a patient has accepted treatment from that physician in the
reasonable belief that it is being rendered in behalf of the hospital, then the hospital
will be liable for the physicians negligence.
Our jurisdiction recognizes the concept of an agency by implication or estoppel.
Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of the principal, from
person is acting on his behalf without authority.
In this case, PSI publicly displays in the lobby of the Medical City Hospital the names
and specializations of the physicians associated or accredited by it, including those of
Dr. Ampil and Dr. Fuentes. We concur with the Court of Appeals conclusion that it
"is now estopped from passing all the blame to the physicians whose names it proudly
paraded in the public directory leading the public to believe that it vouched for their
skill and competence." Indeed, PSIs act is tantamount to holding out to the public that
Medical City Hospital, through its accredited physicians, offers quality health care
services. By accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their
qualifications, the hospital created the impression that they were its agents, authorized
to perform medical or surgical services for its patients. As expected, these patients,
Natividad being one of them, accepted the services on the reasonable belief that such
were being rendered by the hospital or its employees, agents, or servants. The trial
court correctly pointed out:
x x x regardless of the education and status in life of the patient, he ought not be
burdened with the defense of absence of employer-employee relationship between the
hospital and the independent physician whose name and competence are certainly
certified to the general public by the hospitals act of listing him and his specialty in
its lobby directory, as in the case herein. The high costs of todays medical and health
care should at least exact on the hospital greater, if not broader, legal responsibility for
the conduct of treatment and surgery within its facility by its accredited physician or
surgeon, regardless of whether he is independent or employed."33
The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like
PSI, are capable of acting only through other individuals, such as physicians. If these
accredited physicians do their job well, the hospital succeeds in its mission of offering
quality medical services and thus profits financially. Logically, where negligence mars
the quality of its services, the hospital should not be allowed to escape liability for the
acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence and
malpractice is that PSI as owner, operator and manager of Medical City Hospital, "did
not perform the necessary supervision nor exercise diligent efforts in the supervision
of Drs. Ampil and Fuentes and its nursing staff, resident doctors, and medical interns
who assisted Drs. Ampil and Fuentes in the performance of their duties as surgeons."34
Premised on the doctrine of corporate negligence, the trial court held that PSI is
directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the judicial answer to
the problem of allocating hospitals liability for the negligent acts of health
practitioners, absent facts to support the application of respondeat superior or apparent
authority. Its formulation proceeds from the judiciarys acknowledgment that in these
modern times, the duty of providing quality medical service is no longer the sole
prerogative and responsibility of the physician. The modern hospitals have changed
structure. Hospitals now tend to organize a highly professional medical staff whose
competence and performance need to be monitored by the hospitals commensurate
with their inherent responsibility to provide quality medical care.35
The doctrine has its genesis in Darling v. Charleston Community Hospital.36 There,
the Supreme Court of Illinois held that "the jury could have found a hospital negligent,
inter alia, in failing to have a sufficient number of trained nurses attending the patient;
failing to require a consultation with or examination by members of the hospital staff;
and failing to review the treatment rendered to the patient." On the basis of Darling,
other jurisdictions held that a hospitals corporate negligence extends to permitting a
physician known to be incompetent to practice at the hospital.37 With the passage of
time, more duties were expected from hospitals, among them: (1) the use of reasonable
care in the maintenance of safe and adequate facilities and equipment; (2) the selection
and retention of competent physicians; (3) the overseeing or supervision of all persons
who practice medicine within its walls; and (4) the formulation, adoption and
enforcement of adequate rules and policies that ensure quality care for its patients.38
Thus, in Tucson Medical Center, Inc. v. Misevich,39 it was held that a hospital,
following the doctrine of corporate responsibility, has the duty to see that it meets the
standards of responsibilities for the care of patients. Such duty includes the proper
supervision of the members of its medical staff. And in Bost v. Riley,40 the court
concluded that a patient who enters a hospital does so with the reasonable expectation
that it will attempt to cure him. The hospital accordingly has the duty to make a
reasonable effort to monitor and oversee the treatment prescribed and administered by
the physicians practicing in its premises.
In the present case, it was duly established that PSI operates the Medical City Hospital
for the purpose and under the concept of providing comprehensive medical services to
the public. Accordingly, it has the duty to exercise reasonable care to protect from
harm all patients admitted into its facility for medical treatment. Unfortunately, PSI
failed to perform such duty. The findings of the trial court are convincing, thus:
x x x PSIs liability is traceable to its failure to conduct an investigation of the matter
reported in the nota bene of the count nurse. Such failure established PSIs part in the
dark conspiracy of silence and concealment about the gauzes. Ethical considerations,
if not also legal, dictated the holding of an immediate inquiry into the events, if not for
the benefit of the patient to whom the duty is primarily owed, then in the interest of
arriving at the truth. The Court cannot accept that the medical and the healing
professions, through their members like defendant surgeons, and their institutions like
PSIs hospital facility, can callously turn their backs on and disregard even a mere
probability of mistake or negligence by refusing or failing to investigate a report of
such seriousness as the one in Natividads case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the
assistance of the Medical City Hospitals staff, composed of resident doctors, nurses,
and interns. As such, it is reasonable to conclude that PSI, as the operator of the
hospital, has actual or constructive knowledge of the procedures carried out,
particularly the report of the attending nurses that the two pieces of gauze were
missing. In Fridena v. Evans,41 it was held that a corporation is bound by the
knowledge acquired by or notice given to its agents or officers within the scope of
their authority and in reference to a matter to which their authority extends. This means
that the knowledge of any of the staff of Medical City Hospital constitutes knowledge
of PSI. Now, the failure of PSI, despite the attending nurses report, to investigate and
inform Natividad regarding the missing gauzes amounts to callous negligence. Not
only did PSI breach its duties to oversee or supervise all persons who practice medicine
within its walls, it also failed to take an active step in fixing the negligence committed.
This renders PSI, not only vicariously liable for the negligence of Dr. Ampil under
Article 2180 of the Civil Code, but also directly liable for its own negligence under
Article 2176. In Fridena, the Supreme Court of Arizona held:
One final word. Once a physician undertakes the treatment and care of a patient, the
law imposes on him certain obligations. In order to escape liability, he must possess
that reasonable degree of learning, skill and experience required by his profession. At
the same time, he must apply reasonable care and diligence in the exercise of his skill
and the application of his knowledge, and exert his best judgment.

x x x In recent years, however, the duty of care owed to the patient by the hospital has WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of
expanded. The emerging trend is to hold the hospital responsible where the hospital the Court of Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.
has failed to monitor and review medical services being provided within its walls. See
Kahn Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977). Costs against petitioners PSI and Dr. Miguel Ampil.

Among the cases indicative of the emerging trend is Purcell v. Zimbelman, 18 Ariz. SO ORDERED.
App. 75,500 P. 2d 335 (1972). In Purcell, the hospital argued that it could not be held
liable for the malpractice of a medical practitioner because he was an independent
contractor within the hospital. The Court of Appeals pointed out that the hospital had
created a professional staff whose competence and performance was to be monitored
and reviewed by the governing body of the hospital, and the court held that a hospital
would be negligent where it had knowledge or reason to believe that a doctor using the
facilities was employing a method of treatment or care which fell below the recognized
standard of care.

Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital
has certain inherent responsibilities regarding the quality of medical care furnished to
patients within its walls and it must meet the standards of responsibility commensurate
with this undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App. 165, 500 P.
2d 1153 (1972). This court has confirmed the rulings of the Court of Appeals that a
hospital has the duty of supervising the competence of the doctors on its staff. x x x.

x x x x x x

In the amended complaint, the plaintiffs did plead that the operation was performed at
the hospital with its knowledge, aid, and assistance, and that the negligence of the
defendants was the proximate cause of the patients injuries. We find that such general
allegations of negligence, along with the evidence produced at the trial of this case,
are sufficient to support the hospitals liability based on the theory of negligent
supervision."

Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for
damages, let it be emphasized that PSI, apart from a general denial of its responsibility,
failed to adduce evidence showing that it exercised the diligence of a good father of a
family in the accreditation and supervision of the latter. In neglecting to offer such
proof, PSI failed to discharge its burden under the last paragraph of Article 2180 cited
earlier, and, therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover,
as we have discussed, PSI is also directly liable to the Aganas.

SECOND DIVISION
G.R. No. 160889 April 27, 2007
DR. MILAGROS L. CANTRE vs. SPS. JOHN DAVID Z. GO and NORA S. GO,
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision[1] dated October 3, 2002 and Resolution[2]
dated November 19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184, which
affirmed with modification the Decision[3] dated March 3, 1997 of the Regional Trial
Court of Quezon City, Branch 98, in Civil Case No. Q-93-16562.
The facts, culled from the records, are as follows:
Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the
Dr. Jesus Delgado Memorial Hospital. She was the attending physician of respondent
Nora S. Go, who was admitted at the said hospital on April 19, 1992.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy.
However, at around 3:30 a.m., Nora suffered profuse bleeding inside her womb due to
some parts of the placenta which were not completely expelled from her womb after
delivery. Consequently, Nora suffered hypovolemic shock, resulting in a drop in her
blood pressure to 40 over 0. Petitioner and the assisting resident physician performed
various medical procedures to stop the bleeding and to restore Noras blood pressure.
Her blood pressure was frequently monitored with the use of a sphygmomanometer.
While petitioner was massaging Noras uterus for it to contract and stop bleeding, she
ordered a droplight to warm Nora and her baby.[4] Nora remained unconscious until
she recovered.
While in the recovery room, her husband, respondent John David Z. Go noticed a fresh
gaping wound two and a half (2 ) by three and a half (3 ) inches in the inner portion of
her left arm, close to the armpit.[5] He asked the nurses what caused the injury. He
was informed it was a burn. Forthwith, on April 22, 1992, John David filed a request
for investigation.[6] In response, Dr. Rainerio S. Abad, the medical director of the
hospital, called petitioner and the assisting resident physician to explain what
happened. Petitioner said the blood pressure cuff caused the injury.
On May 7, 1992, John David brought Nora to the National Bureau of Investigation for
a physical examination, which was conducted by medico-legal officer Dr. Floresto
Arizala, Jr.[7] The medico-legal officer later testified that Noras injury appeared to be
a burn and that a droplight when placed near the skin for about 10 minutes could cause
such burn.[8] He dismissed the likelihood that the wound was caused by a blood
pressure cuff as the scar was not around the arm, but just on one side of the arm.[9]
On May 22, 1992, Noras injury was referred to a plastic surgeon at the Dr. Jesus
Delgado Memorial Hospital for skin grafting.[10] Her wound was covered with skin
sourced from her abdomen, which consequently bore a scar as well. About a year after,
on April 30, 1993, scar revision had to be performed at the same hospital.[11] The
surgical operation left a healed linear scar in Noras left arm about three inches in
length, the thickest portion rising about one-fourth (1/4) of an inch from the surface of
the skin. The costs of the skin grafting and the scar revision were shouldered by the
hospital.[12]
Unfortunately, Noras arm would never be the same. Aside from the unsightly mark,
the pain in her left arm remains. When sleeping, she has to cradle her wounded arm.
Her movements now are also restricted. Her children cannot play with the left side of
her body as they might accidentally bump the injured arm, which aches at the slightest
touch.
Thus, on June 21, 1993, respondent spouses filed a complaint[13] for damages against
petitioner, Dr. Abad, and the hospital. Finding in favor of respondent spouses, the trial
court decreed:
In view of the foregoing consideration, judgment is hereby rendered in favor
of the plaintiffs and against the defendants, directing the latters, (sic) jointly
and severally
(a) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in
moral damages;
(b) to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00)
exemplary damages;
(c) to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal
damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for and as attorneys fees;
and
(e) to pay Six Thousand Pesos (P6,000.00) litigation expenses.
SO ORDERED.[14]
Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals, which
affirmed with modification the trial court decision, thus:
WHEREFORE, in view of all the foregoing, and finding no reversible error in
the appealed Decision dated March 3, 1997 of Branch 98 of the Regional Trial
Court of Quezon City in Civil Case No. Q-93-16562, the same is hereby
AFFIRMED, with the following MODIFICATIONS:
 1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay
plaintiffs-appellees John David Go and Nora S. Go the sum of P200,000.00
as moral damages;
2. Deleting the award [of] exemplary damages, attorneys fees and expenses
of litigation;
3. Dismissing the complaint with respect to defendants-appellants Dr.
Rainerio S. Abad and Delgado Clinic, Inc.;
4. Dismissing the counterclaims of defendants-appellants for lack of merit;
and
5. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay the
costs.
SO ORDERED.[15]
Petitioners motion for reconsideration was denied by the Court of Appeals. Hence, the
instant petition assigning the following as errors and issues:
I.
WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS
COMMITTED GRAVE ABUSE OF THEIR DISCRETION WHEN,
NOTWITHSTANDING THAT BOTH PARTIES HAVE RESTED THEIR
RESPECTIVE CASES, THE LOWER COURT ADMITTED THE ADDITIONAL
EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO BY
ANY WITNESS AND THIS DECISION OF THE LOWER COURT WAS
UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE
ABUSE OF DISCRETION;
II.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF
ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE
PRESENTED BY THE PETITIONER, IT RULED THAT THE PETITIONER HAS
NOT AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH THE
BODY OF MRS. NORA GO, AND THIS DECISION OF THE LOWER COURT
WAS UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING
GRAVE ABUSE OF DISCRETION;
III.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF
ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE
PRESENTED BY THE PETITIONER, IT RULED THAT PETITIONER DRA.
CANTRE WAS NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY
(BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT MRS. GO CAME
ABOUT;
IV.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE
ABUSE OF ITS DISCRETION WHEN IT MADE A RULING ON THE
RESPONDENTS INJURY QUOTING THE TESTIMONY OF SOMEONE WHO
WAS NOT PRESENT AND HAS NOT SEEN THE ORIGINAL, FRESH INJURY
OF RESPONDENT MRS. NORA GO;
V.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS
DISCRETION RULED THAT PETITIONER DRA. CANTRE SHOULD HAVE
INTENDED TO INFLICT THE INJURY TO SAVE THE LIFE OF RESPONDENT
MRS. GO;
VI.
WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS
COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE
DETAILED PROCEDURES DONE BY PETITIONER, BOTH RULED THAT
THE RESPONDENT WAS LEFT TO THE CARE OF THE NURSING STAFF;
VII.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF
DISCRETION WHEN, CONTRARY TO THE MEDICAL PURPOSES OF
COSMETIC SURGERY, IT RULED THAT THE COSMETIC SURGERY MADE
THE SCARS EVEN MORE UGLY AND DECLARED THE COSMETIC
SURGERY A FAILURE;
VIII.
WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC)
DISCRETION WHEN, CONTRARY TO RESPONDENTS CONTRARY
TESTIMONIES AND THE ABSENCE OF ANY TESTIMONY, IT RULED THAT
THEY ARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD,
ALTHOUGH MODIFIED, BY THE COURT OF APPEALS LIKEWISE ABUSING
ITS DISCRETION.[16]
Petitioner contends that additional documentary exhibits not testified to by any witness
are inadmissible in evidence because they deprived her of her constitutional right to
confront the witnesses against her. Petitioner insists the droplight could not have
touched Noras body. She maintains the injury was due to the constant taking of Noras
blood pressure. Petitioner also insinuates the Court of Appeals was misled by the
testimony of the medico-legal officer who never saw the original injury before plastic
surgery was performed. Finally, petitioner stresses that plastic surgery was not
intended to restore respondents injury to its original state but rather to prevent further
complication.
Respondents, however, counter that the genuineness and due execution of the
additional documentary exhibits were duly admitted by petitioners counsel.
Respondents point out that petitioners blood pressure cuff theory is highly improbable,
being unprecedented in medical history and that the injury was definitely caused by
the droplight. At any rate, they argue, even if the injury was brought about by the blood
pressure cuff, petitioner was still negligent in her duties as Noras attending physician.
Simply put, the threshold issues for resolution are: (1) Are the questioned additional
exhibits admissible in evidence? (2) Is petitioner liable for the injury suffered by
respondent Nora Go? Thereafter, the inquiry is whether the appellate court committed
grave abuse of discretion in its assailed issuances.
As to the first issue, we agree with the Court of Appeals that said exhibits are
admissible in evidence. We note that the questioned exhibits consist mostly of Noras
medical records, which were produced by the hospital during trial pursuant to a
subpoena duces tecum. Petitioners counsel admitted the existence of the same when
they were formally offered for admission by the trial court. In any case, given the
particular circumstances of this case, a ruling on the negligence of petitioner may be
made based on the res ipsa loquitur doctrine even in the absence of such additional
exhibits.
Petitioners contention that the medico-legal officer who conducted Noras physical
examination never saw her original injury before plastic surgery was performed is
without basis and contradicted by the records. Records show that the medico-legal
officer conducted the physical examination on May 7, 1992, while the skin grafting
and the scar revision were performed on Nora on May 22, 1992 and April 30, 1993,
respectively.
Coming now to the substantive matter, is petitioner liable for the injury suffered by
respondent Nora Go?
The Hippocratic Oath mandates physicians to give primordial consideration to the
well-being of their patients. If a doctor fails to live up to this precept, he is accountable
for his acts. This notwithstanding, courts face a unique restraint in adjudicating
medical negligence cases because physicians are not guarantors of care and, they never
set out to intentionally cause injury to their patients. However, intent is immaterial in
negligence cases because where negligence exists and is proven, it automatically gives
the injured a right to reparation for the damage caused.[17]
In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere
existence of an injury to justify a presumption of negligence on the part of the person
who controls the instrument causing the injury, provided that the following requisites
concur:
1. The accident is of a kind which ordinarily does not occur in the absence of 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.[18]
As to the first requirement, the gaping wound on Noras arm is certainly not an ordinary
occurrence in the act of delivering a baby, far removed as the arm is from the organs
involved in the process of giving birth. Such injury could not have happened unless
negligence had set in somewhere
Second, whether the injury was caused by the droplight or by the blood pressure cuff
is of no moment. Both instruments are deemed within the exclusive control of the
physician in charge under the captain of the ship doctrine. This doctrine holds the
surgeon in charge of an operation liable for the negligence of his assistants during the
time when those assistants are under the surgeons control.[19] In this particular case,
it can be logically inferred that petitioner, the senior consultant in charge during the
delivery of Noras baby, exercised control over the assistants assigned to both the use
of the droplight and the taking of Noras blood pressure. Hence, the use of the droplight
and the blood pressure cuff is also within petitioners exclusive control
Third, the gaping wound on Noras left arm, by its very nature and considering her
condition, could only be caused by something external to her and outside her control
as she was unconscious while in hypovolemic shock. Hence, Nora could not, by any
stretch of the imagination, have contributed to her own injury.
Petitioners defense that Noras wound was caused not by the droplight but by the
constant taking of her blood pressure, even if the latter was necessary given her
condition, does not absolve her from liability. As testified to by the medico-legal
officer, Dr. Arizala, Jr., the medical practice is to deflate the blood pressure cuff
immediately after each use. Otherwise, the inflated band can cause injury to the patient
similar to what could have happened in this case. Thus, if Noras wound was caused by
the blood pressure cuff, then the taking of Noras blood pressure must have been done
so negligently as to have inflicted a gaping wound on her arm,[20] for which petitioner
cannot escape liability under the captain of the ship doctrine.
Further, petitioners argument that the failed plastic surgery was not intended as a
cosmetic procedure, but rather as a measure to prevent complication does not help her
case. It does not negate negligence on her part.
Based on the foregoing, the presumption that petitioner was negligent in the exercise
of her profession stands unrebutted. In this connection, the Civil Code provides:

ART. 2176. Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done.

ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation,
and similar injury. Though incapable of pecuniary computation, moral damages may
be recovered if they are the proximate result of the defendants wrongful act or
omission.

Clearly, under the law, petitioner is obliged to pay Nora for moral damages suffered
by the latter as a proximate result of petitioners negligence.

We note, however, that petitioner has served well as Noras obstetrician for her past
three successful deliveries. This is the first time petitioner is being held liable for
damages due to negligence in the practice of her profession. The fact that petitioner
promptly took care of Noras wound before infection and other complications set in is
also indicative of petitioners good intentions. We also take note of the fact that Nora
was suffering from a critical condition when the injury happened, such that saving her
life became petitioners elemental concern. Nonetheless, it should be stressed that all
these could not justify negligence on the part of petitioner.

Hence, considering the specific circumstances in the instant case, we find no grave
abuse of discretion in the assailed decision and resolution of the Court of Appeals.
Further, we rule that the Court of Appeals award of Two Hundred Thousand Pesos
(P200,000) as moral damages in favor of respondents and against petitioner is just and
equitable.[21]

WHEREFORE, the petition is DENIED. The Decision dated October 3, 2002 and
Resolution dated November 19, 2003 of the Court of Appeals in CA-G.R. CV No.
58184 are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.
 SECOND DIVISION
October 11, 2007 G.R. No. 172406
CONCEPCION ILAO-ORETA vs. SPOUSES EVA MARIE and BENEDICTO
NOEL RONQUILLO,
DECISION
CARPIO MORALES, J.:
Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel Benedicto (Noel)
Ronquillo (the Ronquillo spouses or the spouses), had not been blessed with a child
despite several years of marriage. They thus consulted petitioner, Dr. Concepcion Ilao-
Oreta (Dr. Ilao-Oreta), an obstetrician-gynecologist-consultant at the St. Lukes
Medical Center where she was, at the time material to the case, the chief of the
Reproductive Endocrinology and Infertility Section.
Upon Dr. Ilao-Oretas advice, Eva Marie agreed to undergo a laparoscopic procedure
whereby a laparascope would be inserted through the patients abdominal wall to get a
direct view of her internal reproductive organ in order to determine the real cause of
her infertility.
The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be performed by Dr.
Ilao-Oreta. At around 7:00 a.m. of said date, Eva Marie, accompanied by her husband
Noel, checked in at the St. Lukes Medical Center and underwent pre-operative
procedures including the administration of intravenous fluid and enema.
Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure, however, and no
prior notice of its cancellation was received. It turned out that the doctor was on a
return flight from Hawaii to, and arrived at 10:00 p.m. of April 5, 1999 in, Manila.
On May 18, 1999, the Ronquillo spouses filed a complaint[1] against Dr. Ilao-Oreta
and the St. Lukes Medical Center for breach of professional and service contract and
for damages before the Regional Trial Court (RTC) of Batangas City. They prayed for
the award of actual damages including alleged loss of income of Noel while
accompanying his wife to the hospital, moral damages, exemplary damages, the costs
of litigation, attorneys fees, and other available reliefs and remedies.[2]
In her Answer,[3] Dr. Ilao-Oreta gave her side of the case as follows: She went on a
honeymoon to Hawaii and was scheduled to leave Hawaii at 3:00 p.m. of April 4, 1999
for Manila. Aware that her trip from Hawaii to Manila would take about 12 hours,
inclusive of a stop-over at the Narita Airport in Japan, she estimated that she would
arrive in Manila in the early morning of April 5, 1999. She thus believed in utmost
good faith that she would be back in Manila in time for the scheduled conduct of the
laparoscopic procedure. She failed to consider the time difference between Hawaii and
the Philippines, however.
In its Answer,[4] the St. Lukes Medical Center contended that the spouses have no
cause of action against it since it performed the pre-operative procedures without
delay, and any cause of action they have would be against Dr. Ilao-Oreta.
By Decision[5] of March 9, 2001, Branch 84 of the Batangas RTC, finding that the
failure of the doctor to arrive on time was not intentional, awarded Eva Marie only
actual damages in the total amount of P9,939 and costs of suit. It found no adequate
proof that Noel had been deprived of any job contract while attending to his wife in
the hospital.
On appeal by the spouses, the Court of Appeals, by Decision[6] of April 21, 2006,
finding Dr. Ilao-Oreta grossly negligent,[7] modified the trial courts decision as
follows:
WHEREFORE, the trial Courts decision dated March 9, 2001 is affirmed,
subject to the modification that the amount of actual damages, for which
both defendants-appellees are jointly and severally liable to plaintiffs-
appellants, is increased to P16,069.40. Furthermore, defendant-appellee
Dr. Ilao-Oreta is also held liable to pay plaintiff-appellants the following:
(a) P50,000.00 as moral damages;
(b) P25,000.00 as exemplary damages; and
(c) P20,000.00 as attorneys fees.
SO ORDERED.[8] (Underscoring supplied)
Hence, the present Petition for Review[9] of Dr. Ilao-Oreta raising the following
arguments:
The court a quo erred in finding petitioner to have acted with gross negligence and
awarding moral damages to respondents.[10]
The court a quo erred in awarding Exemplary Damages to respondents.[11
The court a quo [erred] in awarding Attorneys Fees to respondents.[12]
The court a quo erred in increasing the award of actual damages in favor of
respondents.[13]
Gross negligence implies a want or absence of or failure to exercise slight care or
diligence, or the entire absence of care. It evinces a thoughtless disregard of
consequences without exerting any effort to avoid them.[14] It is characterized by want
of even slight care, acting or omitting to act in a situation where there is a duty to act,
not inadvertently but willfully and intentionally with a conscious indifference to
consequences in so far as other persons may be affected.[15]
The records show that before leaving for Hawaii, Dr. Ilao-Oreta left an admitting order
with her secretary for one of the spouses to pick up, apprised Eva Marie of the
necessary preparations for the procedure, and instructed the hospital staff to perform
pre-operative treatments.[16] These acts of the doctor reflect an earnest intention to
perform the procedure on the day and time scheduled.
The records also show that on realizing that she missed the scheduled procedure, Dr.
Ilao-Oreta, upon arrival in Manila, immediately sought to rectify the same, thus:
[ATTY SINJAN] Q: So, can you tell us the reason why you missed that operation?
[DR. ILAO-ORETA] A: When I scheduled her for the surgery, I looked at my ticket
and so I was to leave Hawaii on April 4 at around 4:00 oclock in the afternoon, so I
was computing 12 hours of travel including stop-over, then probably I would be in
Manila early morning of April 5, then I have so much time and I can easily do the case
at 2:00 oclock, you know it skipped my mind the change in time.
Q: So when you arrived at 10:00 [PM] in Manila, what did you do?
A: I called immediately the hospital and I talked with the nurses, I asked about the
patient, Mrs. Ronquillo, and they told me that she has already left at around 7:00.
Q: And after calling the hospital, what happened?
A: I wanted to call the plaintiffs, but I didnt have their number at that time, so in the
morning I went to my office early at 8:00 and looked for her chart, because her
telephone number was written in the chart. So, I called them right away.
Q: Were you able to contact them?
A: I was able to reach Mr. Ronquillo.
Q: In the course of your conversation, what did you tell Mr. Ronquillo?
A: I apologized to him, I said I was sorry about the time that I missed the surgery, and
I told him that I can do the case right that same day without Mrs. Ronquillo having to
undergo another [b]arium enema.
Q: What else did you tell him, if any?
A: I asked him whether I can talk with Mrs. Ronquillo because I wanted to apologize
to her personally.
Q: And what did he say?
A: I could hear on the background that Mrs. Ronquillo was shouting angrily that she
didnt want to talk to me, and that she didnt want re-scheduling of the surgery . . .
ATTY LONTOK: May we move, your Honor, for the striking out of the answer, this
is purely hearsay.
COURT: Remain on the record.
WITNESS [DR. ILAO-ORETA]: . . . and then Mr. Ronquillo told me Im sorry, Dra.,
we cannot re-schedule the surgery.[17] (Underscoring supplied)
Noel admitted that indeed Dr. Ilao-Oreta called him up after she arrived in Manila as
related by her.[18]
The evidence then shows that Dr. Ilao-Oreta, who had traveled more than twice to the
United States where she obtained a fellowship in Reproductive Endocrinology and
Infertility was indeed negligent when she scheduled to perform professional service at
2:00 p.m. on April 5, 1999 without considering the time difference between the
Philippines and Hawaii.
The doctors act did not, however, reflect gross negligence as defined above. Her
argument that Although petitioner failed to take into consideration the time difference
between the Philippines and Hawaii, the situation then did not present any clear and
apparent harm or injury that even a careless person may perceive. Unlike in situations
where the Supreme Court had found gross negligence to exist, petitioner could not
have been conscious of any foreseeable danger that may occur since she actually
believed that she would make it to the operation that was elective in nature, the only
purpose of which was to determine the real cause of infertility and not to treat and cure
a life threatening disease. Thus, in merely fixing the date of her appointment with
respondent Eva Marie Ronquillo, petitioner was not in the pursuit or performance of
conduct which any ordinary person may deem to probably and naturally result in
injury,[19] (Underscoring in original) thus persuades.
It bears noting that when she was scheduling the date of her performance of the
procedure, Dr. Ilao-Oreta had just gotten married and was preparing for her
honeymoon,[20] and it is of common human knowledge that excitement attends its
preparations. Her negligence could then be partly attributed to human frailty which
rules out its characterization as gross.
The doctors negligence not being gross, the spouses are not entitled to recover moral
damages.
Neither are the spouses entitled to recover exemplary damages in the absence of a
showing that Dr. Ilao-Oreta acted in a wanton, fraudulent, reckless, oppressive or
malevolent manner,[21] nor to award of attorneys fees as, contrary to the finding of
the Court of Appeals that the spouses were compelled to litigate and incur expenses to
protect their interest,[22] the records show that they did not exert enough efforts to
settle the matter before going to court. Eva Marie herself testified:
ATTY. SINJIAN:
Q: Isnt it true that before instituting this present case, you did not make any demand
on Dr. Ilao-Oreta regarding the claims which you have allegedly incurred, because of
the failed laparoscopic surgery operation?
A [EVA MARIE]: I will tell the truth. Dr. Augusto Reyes of St. Lukes . . .
Q: But did you demand?
A: No, I did not demand because
ATTY. SINJIAN: That will be all, your Honor.
ATTY. LONTOK: The witness is still explaining.
WITNESS: Im explaining first. Dr. Augusto Reyes told me that he will hold the
meeting for me and Dr. Oreta to settle things and reimburse all the money that I spent
from the hospital, and he even suggested Dr. Oreta to personally talk to me.
ATTY. SINJIAN:
Q: So it was to Dr. Augusto Reyes that you talked?
A: Yes.
Q: But you did not demand anything or write to Dr. Oreta?
A: No.
Q: Before instituting this case?
A: No.[23] (Underscoring supplied)
Finally, Dr. Ilao-Oretas prayer for the reduction of actual damages is well-taken.
Article 2201 of the Civil Code provides:
In contracts and quasi-contracts, the damages for which the obligor who acted in good
faith is liable shall be those which are the natural and probable consequences of the
breach of the obligation, and which the parties have foreseen or could have reasonably
foreseen at the time the obligation was constituted.
In fixing the amount of actual damages, the Court of Appeals and the trial court
included expenses which the spouses incurred prior to April 5, 1999 when the breach
of contract complained of occurred.[24] The Court of Appeals also included the
alleged P300 spent on fuel consumption from the spouses residence at San Pascual,
Batangas to the St. Lukes Medical Center in Quezon City and the alleged P500 spent
on food in the hospital canteen, both of which are unsubstantiated by independent or
competent proof.[25] The only piece of documentary evidence supporting the food and
fuel expenses is an unsigned listing.[26] As the fuel and food expenses are not
adequately substantiated, they cannot be included in the computation of the amount of
actual damages. So Premiere Development Bank v. Court of Appeals[27] instructs:
In the instant case, the actual damages were proven through the sole testimony of
Themistocles Ruguero, the vice president for administration of Panacor. In his
testimony, the witness affirmed that Panacor incurred losses, specifically, in terms of
training and seminars, leasehold acquisition, procurement of vehicles and office
equipment without, however, adducing receipts to substantiate the same. The
documentary evidence marked as Exhibit W, which was an ordinary private writing
allegedly itemizing the capital expenditures and losses from the failed operation of
Panacor, was not testified to by any witness to ascertain the veracity of its content.
Although the lower court fixed the sum of P4,520,000.00 as the total expenditures
incurred by Panacor, it failed to show how and in what manner the same were
substantiated by the claimant with reasonable certainty. Hence, the claim for actual
damages should be received with extreme caution since it is only based on bare
assertion without support from independent evidence. Premieres failure to prove actual
expenditure consequently conduces to a failure of its claim. In determining actual
damages, the court cannot rely on mere assertions, speculations, conjectures or
guesswork but must depend on competent proof and on the best evidence obtainable
regarding the actual amount of loss.[28] (Underscoring supplied)
The list of expenses cannot replace receipts when they should have been issued as a
matter of course in business transactions[29] as in the case of purchase of gasoline and
of food.
The documented claim for hospital and medical expenses of the spouses is detailed in
the Statement of Account issued by the hospital, the pertinent entries of which read:
xxxx
GROSS HOSPITAL CHARGES 2,416.50
4/5/1999 1699460 DEPOSITOFFICIAL
RECEIPT (5,000.00)
(5,000.00)
________
4/5/1999 SECOND 0284893 UNUSED MED 0439534 (65.55)
FLOOR HINOX 500 MG CAP
SECOND 0284894 UNUSED MED 0439893 (62.25)
FLOOR PHENERGAN 2 ML
50MG ______ (127.80)
BALANCE DUE (2,711.30)[30]
=======
As extrapolated from the above-quoted entries in the Statement of Account, P2,288.70
(the gross hospital charges of P2,416.50 less the unused medicine in the amount of
P127.80) was debited from the P5,000 deposit[31] to thus leave a balance of the
deposit in the amount of P2,711.30, which the trial court erroneously denominated as
confinement fee. The remaining balance of P2,711.30 was the amount refundable to
the spouses.

Following Eastern Shipping Lines, Inc. v. Court of Appeals,[32] this Court awards
interest on the actual damages to be paid by Dr. Ilao-Oreta at the rate of 6% per annum
from the time of the filing of the complaint on May 18, 1999, and at 12% per annum
from the finality of this judgment until its satisfaction.

WHEREFORE, the petition is GRANTED. The decision appealed from is

MODIFIED in that :

1) The award to respondents-spouses Noel and Eva Marie Ronquillo of actual damages
is REDUCED to P2,288.70, to bear interest at a rate of 6% per annum from the time
of the filing of the complaint on May 18, 1999 and, upon finality of this judgment, at
the rate of 12% per annum until satisfaction; and

2. The award of moral and exemplary damages and attorneys fees is DELETED.

SO ORDERED.
 SECOND DIVISION
G.R. No. 158996 November 14, 2008
SPOUSES FREDELICTO FLORES (deceased) and FELICISIMA FLORES,
VS. SPOUSES DOMINADOR PINEDA and VIRGINIA SACLOLO, and
FLORENCIO, CANDIDA, MARTA, GODOFREDO, BALTAZAR and
LUCENA, all surnamed PINEDA, as heirs of the deceased TERESITA S.
PINEDA, and UNITED DOCTORS MEDICAL CENTER, INC.,
DECISION
BRION, J.
This petition involves a medical negligence case that was elevated to this Court
through an appeal by certiorari under Rule 45 of the Rules of Court. The petition assails
the Decision[1] of the Court of Appeals (CA) in CA G.R. CV No. 63234, which
affirmed with modification the Decision[2] of the Regional Trial Court (RTC) of
Nueva Ecija, Branch 37 in Civil Case No. SD-1233. The dispositive portion of the
assailed CA decision states:
WHEREFORE, premises considered, the assailed Decision of the Regional
Trial Court of Baloc, Sto. Domingo, Nueva Ecija, Branch 37 is hereby
AFFIRMED but with modifications as follows:
1) Ordering defendant-appellants Dr. and Dra. Fredelicto A. Flores and the
United Doctors Medical Center, Inc. to jointly and severally pay the plaintiff-
appellees heirs of Teresita Pineda, namely, Spouses Dominador Pineda and
Virginia Saclolo and Florencio, Candida, Marta, Godofredo, Baltazar and
Lucena, all surnamed Pineda, the sum of P400,000.00 by way of moral
damages;
2) Ordering the above-named defendant-appellants to jointly and severally
pay the above-named plaintiff-appellees the sum of P100,000.00 by way of
exemplary damages;
3) Ordering the above-named defendant-appellants to jointly and severally
pay the above-named plaintiff-appellees the sum of P36,000.00 by way of
actual and compensatory damages; and
4) Deleting the award of attorneys fees and costs of suit.
SO ORDERED.
While this case essentially involves questions of facts, we opted for the requested
review in light of questions we have on the findings of negligence below, on the
awarded damages and costs, and on the importance of this type of ruling on medical
practice.[3]
BACKGROUND FACTS
Teresita Pineda (Teresita) was a 51-year old unmarried woman living in Sto. Domingo,
Nueva Ecija. She consulted on April 17, 1987 her townmate, Dr. Fredelicto Flores,
regarding her medical condition. She complained of general body weakness, loss of
appetite, frequent urination and thirst, and on-and-off vaginal bleeding. Dr. Fredelicto
initially interviewed the patient and asked for the history of her monthly period to
analyze the probable cause of the vaginal bleeding. He advised her to return the
following week or to go to the United Doctors Medical Center (UDMC) in Quezon
City for a general check-up. As for her other symptoms, he suspected that Teresita
might be suffering from diabetes and told her to continue her medications.[4]
Teresita did not return the next week as advised. However, when her condition
persisted, she went to further consult Dr. Flores at his UDMC clinic on April 28, 1987,
travelling for at least two hours from Nueva Ecija to Quezon City with her sister,
Lucena Pineda. They arrived at UDMC at around 11:15 a.m.. Lucena later testified
that her sister was then so weak that she had to lie down on the couch of the clinic
while they waited for the doctor. When Dr. Fredelicto arrived, he did a routine check-
up and ordered Teresitas admission to the hospital. In the admission slip, he directed
the hospital staff to prepare the patient for an on call D&C[5] operation to be
performed by his wife, Dr. Felicisima Flores (Dr. Felicisima). Teresita was brought to
her hospital room at around 12 noon; the hospital staff forthwith took her blood and
urine samples for the laboratory tests[6] which Dr. Fredelicto ordered.
At 2:40 p.m. of that same day, Teresita was taken to the operating room. It was only
then that she met Dr. Felicisima, an obstetrician and gynecologist. The two doctors Dr.
Felicisima and Dr. Fredelicto, conferred on the patients medical condition, while the
resident physician and the medical intern gave Dr. Felicisima their own briefings. She
also interviewed and conducted an internal vaginal examination of the patient which
lasted for about 15 minutes. Dr. Felicisima thereafter called up the laboratory for the
results of the tests. At that time, only the results for the blood sugar (BS), uric acid
determination, cholesterol determination, and complete blood count (CBC) were
available. Teresitas BS count was 10.67mmol/l[7] and her CBC was 109g/l.[8]
Based on these preparations, Dr. Felicisima proceeded with the D&C operation with
Dr. Fredelicto administering the general anesthesia. The D&C operation lasted for
about 10 to 15 minutes. By 3:40 p.m., Teresita was wheeled back to her room.
A day after the operation (or on April 29, 1987), Teresita was subjected to an
ultrasound examination as a confirmatory procedure. The results showed that she had
an enlarged uterus and myoma uteri.[9] Dr. Felicisima, however, advised Teresita that
she could spend her recovery period at home. Still feeling weak, Teresita opted for
hospital confinement.
Teresitas complete laboratory examination results came only on that day (April 29,
1987). Teresitas urinalysis showed a three plus sign (+++) indicating that the sugar in
her urine was very high. She was then placed under the care of Dr. Amado Jorge, an
internist.
By April 30, 1987, Teresitas condition had worsened. She experienced difficulty in
breathing and was rushed to the intensive care unit. Further tests confirmed that she
was suffering from Diabetes Mellitus Type II.[10] Insulin was administered on the
patient, but the medication might have arrived too late. Due to complications induced
by diabetes, Teresita died in the morning of May 6, 1987.[11]
Believing that Teresitas death resulted from the negligent handling of her medical
needs, her family (respondents) instituted an action for damages against Dr. Fredelicto
Flores and Dr. Felicisima Flores (collectively referred to as the petitioner spouses)
before the RTC of Nueva Ecija.
The RTC ruled in favor of Teresitas family and awarded actual, moral, and exemplary
damages, plus attorneys fees and costs.[12] The CA affirmed the judgment, but
modified the amount of damages awarded and deleted the award for attorneys fees and
costs of suit.[13]
Through this petition for review on certiorari, the petitioner spouses Dr. Fredelicto
(now deceased) and Dr. Felicisima Flores allege that the RTC and CA committed a
reversible error in finding them liable through negligence for the death of Teresita
Pineda.
ASSIGNMENT OF ERRORS
The petitioner spouses contend that they exercised due care and prudence in the
performance of their duties as medical professionals. They had attended to the patient
to the best of their abilities and undertook the management of her case based on her
complaint of an on-and-off vaginal bleeding. In addition, they claim that nothing on
record shows that the death of Teresita could have been averted had they employed
means other than what they had adopted in the ministration of the patient.
THE COURTS RULING
We do not find the petition meritorious.
The respondents claim for damages is predicated on their allegation that the decision
of the petitioner spouses to proceed with the D&C operation, notwithstanding
Teresitas condition and the laboratory test results, amounted to negligence. On the
other hand, the petitioner spouses contend that a D&C operation is the proper and
accepted procedure to address vaginal bleeding the medical problem presented to
them. Given that the patient died after the D&C, the core issue is whether the decision
to proceed with the D&C operation was an honest mistake of judgment or one
amounting to negligence.
Elements of a Medical Negligence Case
A medical negligence case is a type of claim to redress a wrong committed by a
medical professional, that has caused bodily harm to or the death of a patient. There
are four elements involved in a medical negligence case, namely: duty, breach, injury,
and proximate causation.[14]
Duty refers to the standard of behavior which imposes restrictions on ones
conduct.[15] The standard in turn refers to the amount of competence associated with
the proper discharge of the profession. A physician is expected to use at least the same
level of care that any other reasonably competent doctor would use under the same
circumstances. Breach of duty occurs when the physician fails to comply with these
professional standards. If injury results to the patient as a result of this breach, the
physician is answerable for negligence.[16]
As in any civil action, the burden to prove the existence of the necessary elements rests
with the plaintiff.[17] To successfully pursue a claim, the plaintiff must prove by
preponderance of evidence that, one, the physician either failed to do something which
a reasonably prudent health care provider would have done, or that he did something
that a reasonably prudent provider would not have done; and two, the failure or action
caused injury to the patient.[18] Expert testimony is therefore essential since the
factual issue of whether a physician or surgeon has exercised the requisite degree of
skill and care in the treatment of his patient is generally a matter of expert opinion.[19]
Standard of Care and Breach of Duty
D&C is the classic gynecologic procedure for the evaluation and possible therapeutic
treatment for abnormal vaginal bleeding.[20] That this is the recognized procedure is
confirmed by Drs. Salvador Nieto (Dr. Nieto) and Joselito Mercado (Dr. Mercado),
the expert witnesses presented by the respondents:
DR. NIETO: [W]hat I know among obstetricians, if there is bleeding, they perform
what we call D&C for diagnostic purposes
xxx xxx xxx
Q: So are you trying to tell the Court that D&C can be a diagnostic treatment?
A: Yes, sir. Any doctor knows this.[21] Dr. Mercado, however, objected with respect
to the time the D&C operation should have been conducted in Teresitas case. He
opined that given the blood sugar level of Teresita, her diabetic condition should have
been addressed first:
Q: Why do you consider the time of performance of the D&C not appropriate?

A: Because I have read the record and I have seen the urinalysis, [there is] spillage in
the urine, and blood sugar was 10.67
Q: What is the significance of the spillage in the urine?
A: It is a sign that the blood sugar is very high.
Q: Does it indicate sickness?
A: 80 to 95% it means diabetes mellitus. The blood sugar was 10.67.
xxx xxx xxx
COURT: In other words, the operation conducted on the patient, your opinion, that it
is inappropriate?
A: The timing of [when] the D&C [was] done, based on the record, in my personal
opinion, that D&C should be postponed a day or two.[22]
The petitioner spouses countered that, at the time of the operation, there was nothing
to indicate that Teresita was afflicted with diabetes: a blood sugar level of 10.67mmol/l
did not necessarily mean that she was a diabetic considering that this was random
blood sugar;[23] there were other factors that might have caused Teresitas blood sugar
to rise such as the taking of blood samples during lunchtime and while patient was
being given intra-venous dextrose.[24] Furthermore, they claim that their principal
concern was to determine the cause of and to stop the vaginal bleeding.
The petitioner spouses contentions, in our view, miss several points. First, as early as
April 17, 1987, Teresita was already suspected to be suffering from diabetes.[25] This
suspicion again arose right before the D&C operation on April 28, 1987 when the
laboratory result revealed Teresitas increased blood sugar level.[26] Unfortunately, the
petitioner spouses did not wait for the full medical laboratory results before proceeding
with the D&C, a fact that was never considered in the courts below. Second, the
petitioner spouses were duly advised that the patient was experiencing general body
weakness, loss of appetite, frequent urination, and thirst all of which are classic
symptoms of diabetes.[27] When a patient exhibits symptoms typical of a particular
disease, these symptoms should, at the very least, alert the physician of the possibility
that the patient may be afflicted with the suspected disease:
[Expert testimony for the plaintiff showed that] tests should have been ordered
immediately on admission to the hospital in view of the symptoms presented, and that
failure to recognize the existence of diabetes constitutes negligence.[28]
Third, the petitioner spouses cannot claim that their principal concern was the vaginal
bleeding and should not therefore be held accountable for complications coming from
other sources. This is a very narrow and self-serving view that even reflects on their
competence.
Taken together, we find that reasonable prudence would have shown that diabetes and
its complications were foreseeable harm that should have been taken into consideration
by the petitioner spouses. If a patient suffers from some disability that increases the
magnitude of risk to him, that disability must be taken into account so long as it is or
should have been known to the physician.[29] And when the patient is exposed to an
increased risk, it is incumbent upon the physician to take commensurate and adequate
precautions.
Taking into account Teresitas high blood sugar,[30] Dr. Mendoza opined that the
attending physician should have postponed the D&C operation in order to conduct a
confirmatory test to make a conclusive diagnosis of diabetes and to refer the case to
an internist or diabetologist. This was corroborated by Dr. Delfin Tan (Dr. Tan), an
obstetrician and gynecologist, who stated that the patients diabetes should have been
managed by an internist prior to, during, and after the operation.[31]
Apart from bleeding as a complication of pregnancy, vaginal bleeding is only rarely
so heavy and life-threatening that urgent first-aid measures are required.[32] Indeed,
the expert witnesses declared that a D&C operation on a hyperglycemic patient may
be justified only when it is an emergency case when there is profuse vaginal bleeding.
In this case, we choose not to rely on the assertions of the petitioner spouses that there
was profuse bleeding, not only because the statements were self-serving, but also
because the petitioner spouses were inconsistent in their testimonies. Dr. Fredelicto
testified earlier that on April 28, he personally saw the bleeding,[33] but later on said
that he did not see it and relied only on Teresitas statement that she was bleeding.[34]
He went on to state that he scheduled the D&C operation without conducting any
physical examination on the patient.
The likely story is that although Teresita experienced vaginal bleeding on April 28, it
was not sufficiently profuse to necessitate an immediate emergency D&C operation.
Dr. Tan[35] and Dr. Mendoza[36] both testified that the medical records of Teresita
failed to indicate that there was profuse vaginal bleeding. The claim that there was
profuse vaginal bleeding although this was not reflected in the medical records strikes
us as odd since the main complaint is vaginal bleeding. A medical record is the only
document that maintains a long-term transcription of patient care and as such, its
maintenance is considered a priority in hospital practice. Optimal record-keeping
includes all patient inter-actions. The records should always be clear, objective, and
up-to-date.[37] Thus, a medical record that does not indicate profuse medical bleeding
speaks loudly and clearly of what it does not contain.
That the D&C operation was conducted principally to diagnose the cause of the vaginal
bleeding further leads us to conclude that it was merely an elective procedure, not an
emergency case. In an elective procedure, the physician must conduct a thorough pre-
operative evaluation of the patient in order to adequately prepare her for the operation
and minimize possible risks and complications. The internist is responsible for
generating a comprehensive evaluation of all medical problems during the pre-
operative evaluation.[38]
The aim of pre-operative evaluation is not to screen broadly for undiagnosed disease,
but rather to identify and quantify comorbidity that may impact on the operative
outcome. This evaluation is driven by findings on history and physical examination
suggestive of organ system dysfunctionThe goal is to uncover problem areas that may
require further investigation or be amenable to preoperative optimization.
If the preoperative evaluation uncovers significant comorbidity or evidence of poor
control of an underlying disease process, consultation with an internist or medical
specialist may be required to facilitate the work-up and direct management. In this
process, communication between the surgeons and the consultants is essential to define
realistic goals for this optimization process and to expedite surgical management.[39]
[Emphasis supplied.]
Significantly, the evidence strongly suggests that the pre-operative evaluation was less
than complete as the laboratory results were fully reported only on the day following
the D&C operation. Dr. Felicisima only secured a telephone report of the preliminary
laboratory result prior to the D&C. This preliminary report did not include the 3+ status
of sugar in the patients urine[40] a result highly confirmatory of diabetes.
Because the D&C was merely an elective procedure, the patients uncontrolled
hyperglycemia presented a far greater risk than her on-and-off vaginal bleeding. The
presence of hyperglycemia in a surgical patient is associated with poor clinical
outcomes, and aggressive glycemic control positively impacts on morbidity and
mortality.[41] Elective surgery in people with uncontrolled diabetes should preferably
be scheduled after acceptable glycemic control has been achieved.[42] According to
Dr. Mercado, this is done by administering insulin on the patient.[43]
The management approach in this kind of patients always includes insulin therapy in
combination with dextrose and potassium infusion. Insulin xxx promotes glucose
uptake by the muscle and fat cells while decreasing glucose production by the liver
xxx. The net effect is to lower blood glucose levels.[44]
The prudent move is to address the patients hyperglycemic state immediately and
promptly before any other procedure is undertaken. In this case, there was no evidence
that insulin was administered on Teresita prior to or during the D&C operation. Insulin
was only administered two days after the operation.
As Dr. Tan testified, the patients hyperglycemic condition should have been managed
not only before and during the operation, but also immediately after. Despite the
possibility that Teresita was afflicted with diabetes, the possibility was casually
ignored even in the post-operative evaluation of the patient; the concern, as the
petitioner spouses expressly admitted, was limited to the complaint of vaginal
bleeding. Interestingly, while the ultrasound test confirmed that Teresita had a myoma
in her uterus, she was advised that she could be discharged a day after the operation
and that her recovery could take place at home. This advice implied that a day after
the operation and even after the complete laboratory results were submitted, the
petitioner spouses still did not recognize any post-operative concern that would require
the monitoring of Teresitas condition in the hospital.
The above facts, point only to one conclusion that the petitioner spouses failed, as
medical professionals, to comply with their duty to observe the standard of care to be
given to hyperglycemic/diabetic patients undergoing surgery. Whether this breach of
duty was the proximate cause of Teresitas death is a matter we shall next determine.
Injury and Causation
As previously mentioned, the critical and clinching factor in a medical negligence case
is proof of the causal connection between the negligence which the evidence
established and the plaintiffs injuries;[45] the plaintiff must plead and prove not only
that he had been injured and defendant has been at fault, but also that the defendants
fault caused the injury. A verdict in a malpractice action cannot be based on
speculation or conjecture. Causation must be proven within a reasonable medical
probability based upon competent expert testimony.[46]
The respondents contend that unnecessarily subjecting Teresita to a D&C operation
without adequately preparing her, aggravated her hyperglycemic state and caused her
untimely demise. The death certificate of Teresita lists down the following causes of
death:
Immediate cause: Cardiorespiratory arrest
Antecedent cause: Septicemic shock, ketoacidocis
Underlying cause: Diabetes Mellitus II
Other significant conditions contributing to death: Renal Failure Acute[47]
Stress, whether physical or emotional, is a factor that can aggravate diabetes; a D&C
operation is a form of physical stress. Dr. Mendoza explained how surgical stress can
aggravate the patients hyperglycemia: when stress occurs, the diabetics body,
especially the autonomic system, reacts by secreting hormones which are counter-
regulatory; she can have prolonged hyperglycemia which, if unchecked, could lead to
death.[48] Medical literature further explains that if the blood sugar has become very
high, the patient becomes comatose (diabetic coma). When this happens over several
days, the body uses its own fat to produce energy, and the result is high levels of waste
products (called ketones) in the blood and urine (called diabetic ketoacidiosis, a
medical emergency with a significant mortality).[49] This was apparently what
happened in Teresitas case; in fact, after she had been referred to the internist Dr. Jorge,
laboratory test showed that her blood sugar level shot up to 14.0mmol/l, way above
the normal blood sugar range. Thus, between the D&C and death was the diabetic
complication that could have been prevented with the observance of standard medical
precautions. The D&C operation and Teresitas death due to aggravated diabetic
condition is therefore sufficiently established.
The trial court and the appellate court pinned the liability for Teresitas death on both
the petitioner spouses and this Court finds no reason to rule otherwise. However, we
clarify that Dr. Fredelictos negligence is not solely the act of ordering an on call D&C
operation when he was mainly an anaesthesiologist who had made a very cursory
examination of the patients vaginal bleeding complaint. Rather, it was his failure from
the very start to identify and confirm, despite the patients complaints and his own
suspicions, that diabetes was a risk factor that should be guarded against, and his
participation in the imprudent decision to proceed with the D&C operation despite his
early suspicion and the confirmatory early laboratory results. The latter point comes
out clearly from the following exchange during the trial:
Q: On what aspect did you and your wife consult [with] each other?
A: We discussed on the finding of the laboratory [results] because the hemoglobin was
below normal, the blood sugar was elevated, so that we have to evaluate these
laboratory results what it means.
Q: So it was you and your wife who made the evaluation when it was phoned in?
A: Yes, sir.
Q: Did your wife, before performing D&C ask your opinion whether or not she can
proceed?
A: Yes, anyway, she asked me whether we can do D&C based on my experience.
Q: And your answer was in the positive notwithstanding the elevation of blood sugar?
A: Yes, sir, it was both our disposition to do the D&C. [Emphasis supplied.][50]
If Dr. Fredelicto believed himself to be incompetent to treat the diabetes, not being an
internist or a diabetologist (for which reason he referred Teresita to Dr. Jorge),[51] he
should have likewise refrained from making a decision to proceed with the D&C
operation since he was niether an obstetrician nor a gynecologist.
These findings lead us to the conclusion that the decision to proceed with the D&C
operation, notwithstanding Teresitas hyperglycemia and without adequately preparing
her for the procedure, was contrary to the standards observed by the medical
profession. Deviation from this standard amounted to a breach of duty which resulted
in the patients death. Due to this negligent conduct, liability must attach to the
petitioner spouses.
Liability of the Hospital
In the proceedings below, UDMC was the spouses Flores co-defendant. The RTC
found the hospital jointly and severally liable with the petitioner spouses, which
decision the CA affirmed. In a Resolution dated August 28, 2006, this Court however
denied UDMCs petition for review on certiorari. Since UDMCs appeal has been
denied and they are not parties to this case, we find it unnecessary to delve on the
matter. Consequently, the RTCs decision, as affirmed by the CA, stands.
Award of Damages
Both the trial and the appellate court awarded actual damages as compensation for the
pecuniary loss the respondents suffered. The loss was presented in terms of the hospital
bills and expenses the respondents incurred on account of Teresitas confinement and
death. The settled rule is that a plaintiff is entitled to be compensated for proven
pecuniary loss.[52] This proof the respondents successfully presented. Thus, we affirm
the award of actual damages of P36,000.00 representing the hospital expenses the
patient incurred.
In addition to the award for actual damages, the respondent heirs of Teresita are
likewise entitled to P50,000.00 as death indemnity pursuant to Article 2206 of the
Civil Code, which states that the amount of damages for death caused by a xxx quasi-
delict shall be at least three thousand pesos,[53] even though there may have been
mitigating circumstances xxx. This is a question of law that the CA missed in its
decision and which we now decide in the respondents favor.
The same article allows the recovery of moral damages in case of death caused by a
quasi-delict and enumerates the spouse, legitimate or illegitimate ascendants or
descendants as the persons entitled thereto. Moral damages are designed to
compensate the claimant for the injury suffered, that is, for the mental anguish, serious
anxiety, wounded feelings which the respondents herein must have surely felt with the
unexpected loss of their daughter. We affirm the appellate courts award of
P400,000.00 by way of moral damages to the respondents.
We similarly affirm the grant of exemplary damages. Exemplary damages are imposed
by way of example or correction for the public good.[54] Because of the petitioner
spouses negligence in subjecting Teresita to an operation without first recognizing and
addressing her diabetic condition, the appellate court awarded exemplary damages to
the respondents in the amount of P100,000.00. Public policy requires such imposition
to suppress the wanton acts of an offender.[55] We therefore affirm the CAs award as
an example to the medical profession and to stress that the public good requires stricter
measures to avoid the repetition of the type of medical malpractice that happened in
this case.

With the award of exemplary damages, the grant of attorneys fees is legally in
order.[56] We therefore reverse the CA decision deleting these awards, and grant the
respondents the amount of P100,000.00 as attorneys fees taking into consideration the
legal route this case has taken.

WHEREFORE, we AFFIRM the Decision of the CA dated June 20, 2003 in CA

G.R. CV No. 63234 finding petitioner spouses liable for negligent medical practice.
We likewise AFFIRM the awards of actual and compensatory damages of P36,000.00;
moral damages of P400,000.00; and exemplary damages of P100,000.00.

We MODIFY the CA Decision by additionally granting an award of P50,000.00 as

death indemnity and by reversing the deletion of the award of attorneys fees and costs
and restoring the award of P100,000.00 as attorneys fees. Costs of litigation are
adjudged against petitioner spouses.

To summarize, the following awards shall be paid to the family of the late Teresita
Pineda:

1. The sum of P36,000.00 by way of actual and compensatory damages;

2. The sum of P50,000.00 by way of death indemnity;
3. The sum of P400,000.00 by way of moral damages;
4. The sum of P100,000.00 by way of exemplary damages;
5. The sum of P100,000.00 by way of attorneys fees; and
6. Costs.

SO ORDERED.

Republic of the Philippines
Supreme Court
Manila
THIRD DIVISION
G.R. No. 159132 December 18, 2008
FE CAYAO-LASAM VS. SPOUSES CLARO and EDITHA RAMOLETE
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court filed by Dr. Fe Cayao-Lasam (petitioner) seeking to annul the Decision[1] dated
July 4, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 62206.
The antecedent facts:
On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha) was
brought to the Lorma Medical Center (LMC) in San Fernando, La Union due to vaginal
bleeding. Upon advice of petitioner relayed via telephone, Editha was admitted to the
LMC on the same day. A pelvic sonogram[2] was then conducted on Editha revealing
the fetus weak cardiac pulsation.[3] The following day, Edithas repeat pelvic
sonogram[4] showed that aside from the fetus weak cardiac pulsation, no fetal
movement was also appreciated. Due to persistent and profuse vaginal bleeding,
petitioner advised Editha to undergo a Dilatation and Curettage Procedure (D&C) or
raspa.
On July 30, 1994, petitioner performed the D&C procedure. Editha was discharged
from the hospital the following day.
On September 16, 1994, Editha was once again brought at the LMC, as she was
suffering from vomiting and severe abdominal pains. Editha was attended by Dr.
Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly
informed Editha that there was a dead fetus in the latters womb. After, Editha
underwent laparotomy,[5] she was found to have a massive intra-abdominal
hemorrhage and a ruptured uterus. Thus, Editha had to undergo a procedure for
hysterectomy[6] and as a result, she has no more chance to bear a child.
On November 7, 1994, Editha and her husband Claro Ramolete (respondents) filed a
Complaint[7] for Gross Negligence and Malpractice against petitioner before the
Professional Regulations Commission (PRC).
Respondents alleged that Edithas hysterectomy was caused by petitioners unmitigated
negligence and professional incompetence in conducting the D&C procedure and the
petitioners failure to remove the fetus inside Edithas womb.[8] Among the alleged acts
of negligence were: first, petitioners failure to check up, visit or administer medication
on Editha during her first day of confinement at the LMC;[9] second, petitioner
recommended that a D&C procedure be performed on Editha without conducting any
internal examination prior to the procedure;[10] third, petitioner immediately
suggested a D&C procedure instead of closely monitoring the state of pregnancy of
Editha.[11]
In her Answer,[12] petitioner denied the allegations of negligence and incompetence
with the following explanations: upon Edithas confirmation that she would seek
admission at the LMC, petitioner immediately called the hospital to anticipate the
arrival of Editha and ordered through the telephone the medicines Editha needed to
take, which the nurses carried out; petitioner visited Editha on the morning of July 28,
1994 during her rounds; on July 29, 1994, she performed an internal examination on
Editha and she discovered that the latters cervix was already open, thus, petitioner
discussed the possible D&C procedure, should the bleeding become more profuse; on
July 30 1994, she conducted another internal examination on Editha, which revealed
that the latters cervix was still open; Editha persistently complained of her vaginal
bleeding and her passing out of some meaty mass in the process of urination and bowel
movement; thus, petitioner advised Editha to undergo D&C procedure which the
respondents consented to; petitioner was very vocal in the operating room about not
being able to see an abortus;[13] taking the words of Editha to mean that she was
passing out some meaty mass and clotted blood, she assumed that the abortus must
have been expelled in the process of bleeding; it was Editha who insisted that she
wanted to be discharged; petitioner agreed, but she advised Editha to return for check-
up on August 5, 1994, which the latter failed to do.
Petitioner contended that it was Edithas gross negligence and/or omission in insisting
to be discharged on July 31, 1994 against doctors advice and her unjustified failure to
return for check-up as directed by petitioner that contributed to her life-threatening
condition on September 16, 1994; that Edithas hysterectomy was brought about by her
very abnormal pregnancy known as placenta increta, which was an extremely rare and
very unusual case of abdominal placental implantation. Petitioner argued that whether
or not a D&C procedure was done by her or any other doctor, there would be no
difference at all because at any stage of gestation before term, the uterus would rupture
just the same.
On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a
Decision,[14] exonerating petitioner from the charges filed against her. The Board
held:
Based on the findings of the doctors who conducted the laparotomy on Editha, hers is
a case of Ectopic Pregnancy Interstitial. This type of ectopic pregnancy is one that is
being protected by the uterine muscles and manifestations may take later than four (4)
months and only attributes to two percent (2%) of ectopic pregnancy cases.
When complainant Editha was admitted at Lorma Medical Center on July 28, 1994
due to vaginal bleeding, an ultra-sound was performed upon her and the result of the
Sonogram Test reveals a morbid fetus but did not specify where the fetus was located.
Obstetricians will assume that the pregnancy is within the uterus unless so specified
by the Sonologist who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be
faulted if she was not able to determine that complainant Editha is having an ectopic
pregnancy interstitial. The D&C conducted on Editha is necessary considering that her
cervix is already open and so as to stop the profuse bleeding. Simple curettage cannot
remove a fetus if the patient is having an ectopic pregnancy, since ectopic pregnancy
is pregnancy conceived outside the uterus and curettage is done only within the uterus.
Therefore, a more extensive operation needed in this case of pregnancy in order to
remove the fetus.[15]
Feeling aggrieved, respondents went to the PRC on appeal. On November 22, 2000,
the PRC rendered a Decision[16] reversing the findings of the Board and revoking
petitioners authority or license to practice her profession as a physician.[17]
Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of the
Rules of Court. Petitioner also dubbed her petition as one for certiorari[18] under Rule
65 of the Rules of Court.
In the Decision dated July 4, 2003, the CA held that the Petition for Review under
Rule 43 of the Rules of Court was an improper remedy, as the enumeration of the
quasi-judicial agencies in Rule 43 is exclusive.[19] PRC is not among the quasi-
judicial bodies whose judgment or final orders are subject of a petition for review to
the CA, thus, the petition for review of the PRC Decision, filed at the CA, was
improper. The CA further held that should the petition be treated as a petition for
certiorari under Rule 65, the same would still be dismissed for being improper and
premature. Citing Section 26[20] of Republic Act (R.A.) No. 2382 or the Medical Act
of 1959, the CA held that the plain, speedy and adequate remedy under the ordinary
course of law which petitioner should have availed herself of was to appeal to the
Office of the President.[21]
Hence, herein petition, assailing the decision of the CA on the following grounds:
1. THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING
THAT THE PROFESSIONAL REGULATION[S] COMMISSION (PRC) WAS
EXCLUDED AMONG THE QUASI-JUDICIAL AGENCIES CONTEMPLATED
UNDER RULE 43 OF THE RULES OF CIVIL PROCEDURE;
2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE
PURVIEW OF RULE 43 OF THE RULES OF CIVIL PROCEDURE, THE
PETITIONER WAS NOT PRECLUDED FROM FILING A PETITION FOR
CERTIORARI WHERE THE DECISION WAS ALSO ISSUED IN EXCESS OF OR
WITHOUT JURISDICTION, OR WHERE THE DECISION WAS A PATENT
NULLITY;
3. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO
APPEAL FROM THE DECISION OF THE BOARD OF MEDICINE TO THE
PROFESSIONAL REGULATION[S] COMMISSION;
4. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION
IN DENYING FOR IMPROPER FORUM THE PETITION FOR
REVIEW/PETITION FOR CERTIORARI WITHOUT GOING OVER THE MERITS
OF THE GROUNDS RELIED UPON BY THE PETITIONER;
5. PRCS GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE
TO BE HEARD ON APPEAL IS A CLEAR VIOLATION OF HER
CONSTITUTIONAL RIGHT TO DUE PROCESS AND HAS THE EFFECT OF
RENDERING THE JUDGMENT NULL AND VOID;
6. COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED
GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION,
IN ACCEPTING AND CONSIDERING THE MEMORANDUM ON APPEAL
WITHOUT PROOF OF SERVICE TO HEREIN PETITIONER, AND IN
VIOLATION OF ART. IV, SEC. 35 OF THE RULES AND REGULATIONS
GOVERNING THE REGULATION AND PRACTICE OF PROFESSIONALS;
7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING
PETITIONERS LICENSE TO PRACTICE MEDICINE WITHOUT AN EXPERT
TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF
RESPONDENT EDITHAT [SIC] RAMOLETES INJURY;
8. PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN
TOTALLY DISREGARDING THE FINDING OF THE BOARD OF MEDICINE,
WHICH HAD THE NECESSARY COMPETENCE AND EXPERTISE TO
ESTABLISH THE CAUSE OF RESPONDENT EDITHAS INJURY, AS WELL AS
THE TESTIMONY OF THE EXPERT WITNESS AUGUSTO MANALO, M.D.
;[and]
9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING
CONCLUSIONS OF FACTS THAT WERE NOT ONLY UNSUPPORTED BY
EVIDENCE BUT WERE ACTUALLY CONTRARY TO EVIDENCE ON
RECORD.[22]
The Court will first deal with the procedural issues.
Petitioner claims that the law does not allow complainants to appeal to the PRC from
the decision of the Board. She invokes Article IV, Section 35 of the Rules and
Regulations Governing the Regulation and Practice of Professionals, which provides:
Sec. 35. The respondent may appeal the decision of the Board within thirty days from
receipt thereof to the Commission whose decision shall be final. Complainant, when
allowed by law, may interpose an appeal from the Decision of the Board within the
same period. (Emphasis supplied)
Petitioner asserts that a careful reading of the above law indicates that while the
respondent, as a matter of right, may appeal the Decision of the Board to the
Commission, the complainant may interpose an appeal from the decision of the Board
only when so allowed by law.[23] Petitioner cited Section 26 of Republic Act No.
2382 or The Medical Act of 1959, to wit:
Section 26. Appeal from judgment. The decision of the Board of Medical Examiners
(now Medical Board) shall automatically become final thirty days after the date of its
promulgation unless the respondent, during the same period, has appealed to the
Commissioner of Civil Service (now Professional Regulations Commission) and later
to the Office of the President of the Philippines. If the final decision is not satisfactory,
the respondent may ask for a review of the case, or may file in court a petition for
certiorari.
Petitioner posits that the reason why the Medical Act of 1959 allows only the
respondent in an administrative case to file an appeal with the Commission while the
complainant is not allowed to do so is double jeopardy. Petitioner is of the belief that
the revocation of license to practice a profession is penal in nature.[24
The Court does not agree.
For one, the principle of double jeopardy finds no application in administrative cases.
Double jeopardy attaches only: (1) upon a valid indictment; (2) before a competent
court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the
defendant was acquitted or convicted, or the case was dismissed or otherwise
terminated without the express consent of the accused.[25] These elements were not
present in the proceedings before the Board of Medicine, as the proceedings involved
in the instant case were administrative and not criminal in nature. The Court has
already held that double jeopardy does not lie in administrative cases.[26]
Moreover, Section 35 of the Rules and Regulations Governing the Regulation and
Practice of Professionals cited by petitioner was subsequently amended to read:
Sec. 35. The complainant/respondent may appeal the order, the resolution or the
decision of the Board within thirty (30) days from receipt thereof to the Commission
whose decision shall be final and executory. Interlocutory order shall not be appealable
to the Commission. (Amended by Res. 174, Series of 1990).[27] (Emphasis supplied)
Whatever doubt was created by the previous provision was settled with said
amendment. It is axiomatic that the right to appeal is not a natural right or a part of due
process, but a mere statutory privilege that may be exercised only in the manner
prescribed by law.[28] In this case, the clear intent of the amendment is to render the
right to appeal from a decision of the Board available to both complainants and
respondents.
Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution No.
06-342(A), or the New Rules of Procedure in Administrative Investigations in the
Professional Regulations Commission and the Professional Regulatory Boards, which
provides for the method of appeal, to wit:
Sec. 1. Appeal; Period Non-Extendible.- The decision, order or resolution of the Board
shall be final and executory after the lapse of fifteen (15) days from receipt of the
decision, order or resolution without an appeal being perfected or taken by either the
respondent or the complainant. A party aggrieved by the decision, order or resolution
may file a notice of appeal from the decision, order or resolution of the Board to the
Commission within fifteen (15) days from receipt thereof, and serving upon the
adverse party a notice of appeal together with the appellants brief or memorandum on
appeal, and paying the appeal and legal research fees. x x x[29]
The above-stated provision does not qualify whether only the complainant or
respondent may file an appeal; rather, the new rules provide that a party aggrieved may
file a notice of appeal. Thus, either the complainant or the respondent who has been
aggrieved by the decision, order or resolution of the Board may appeal to the
Commission. It is an elementary rule that when the law speaks in clear and categorical
language, there is no need, in the absence of legislative intent to the contrary, for any
interpretation.[30] Words and phrases used in the statute should be given their plain,
ordinary, and common usage or meaning.[31]
Petitioner also submits that appeals from the decisions of the PRC should be with the
CA, as Rule 43[32] of the Rules of Court was precisely formulated and adopted to
provide for a uniform rule of appellate procedure for quasi-judicial agencies.[33]
Petitioner further contends that a quasi-judicial body is not excluded from the purview
of Rule 43 just because it is not mentioned therein.[34]
On this point, the Court agrees with the petitioner.
Sec. 1, Rule 43 of the Rules of Court provides:
Section 1. Scope. - This Rule shall apply to appeals from judgments or final orders of
the Court of Tax Appeals, and from awards, judgments, final orders or resolutions of
or authorized by any quasi-judicial agency in the exercise of its quasi-judicial
functions. Among these agencies are the Civil Service Commission, Central Board of
Assessment Appeals, Securities and Exchange Commission, Office of the President,
Land Registration Authority, Social Security Commission, Civil Aeronautics Board,
Bureau of Patents, Trademarks and Technology Transfer, National Electrification
Administration, Energy Regulatory Board, National Telecommunications
Commission, Department of Agrarian Reform under Republic Act No. 6657,
Government Service Insurance System, Employees Compensation Commission,
Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy
Commission, Board of Investments, Construction Industry Arbitration Commission,
and voluntary arbitrators authorized by law. (Emphasis supplied)
Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly
enumerated under Section 1, Rule 43 of the Rules of Court. However, its absence from
the enumeration does not, by this fact alone, imply its exclusion from the coverage of
said Rule.[35] The Rule expressly provides that it should be applied to appeals from
awards, judgments final orders or resolutions of any quasi-judicial agency in the
exercise of its quasi-judicial functions. The phrase among these agencies confirms that
the enumeration made in the Rule is not exclusive to the agencies therein listed.[36]
Specifically, the Court, in Yang v. Court of Appeals,[37] ruled that Batas Pambansa
(B.P.) Blg. 129[38] conferred upon the CA exclusive appellate jurisdiction over
appeals from decisions of the PRC. The Court held:
The law has since been changed, however, at least in the matter of the particular court
to which appeals from the Commission should be taken. On August 14, 1981, Batas
Pambansa Bilang 129 became effective and in its Section 29, conferred on the Court
of Appeals exclusive appellate jurisdiction over all final judgments, decisions,
resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies,
instrumentalities, boards or commissions except those falling under the appellate
jurisdiction of the Supreme Court. x x x. In virtue of BP 129, appeals from the
Professional Regulations Commission are now exclusively cognizable by the Court of
Appeals.[39] (Emphasis supplied)
Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil
Procedure,[40] lodged with the CA such jurisdiction over the appeals of decisions
made by the PRC.
Anent the substantive merits of the case, petitioner questions the PRC decision for
being without an expert testimony to support its conclusion and to establish the cause
of Edithas injury. Petitioner avers that in cases of medical malpractice, expert
testimony is necessary to support the conclusion as to the cause of the injury.[41]
Medical malpractice is a particular form of negligence which consists in the failure of
a physician or surgeon to apply to his practice of medicine that degree of care and skill
which is ordinarily employed by the profession generally, under similar conditions,
and in like surrounding circumstances.[42] In order to successfully pursue such a
claim, a patient must prove that the physician or surgeon either failed to do something
which a reasonably prudent physician or surgeon would not have done, and that the
failure or action caused injury to the patient.[43]
There are four elements involved in medical negligence cases: duty, breach, injury and
proximate causation.[44 ]
A physician-patient relationship was created when Editha employed the services of the
petitioner. As Edithas physician, petitioner was duty-bound to use at least the same
level of care that any reasonably competent doctor would use to treat a condition under
the same circumstances.[45] The breach of these professional duties of skill and care,
or their improper performance by a physician surgeon, whereby the patient is injured
in body or in health, constitutes actionable malpractice.[46] As to this aspect of
medical malpractice, the determination of the reasonable level of care and the breach
thereof, expert testimony is essential.[47] Further, inasmuch as the causes of the
injuries involved in malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually necessary to support
the conclusion as to causation.[48]
In the present case, respondents did not present any expert testimony to support their
claim that petitioner failed to do something which a reasonably prudent physician or
surgeon would have done.
Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who
was clearly an expert on the subject.
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.[49]
Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored various
publications on the subject, and is a professor at the University of the Philippines.[50]
According to him, his diagnosis of Edithas case was Ectopic Pregnancy Interstitial
(also referred to as Cornual), Ruptured.[51] In stating that the D&C procedure was not
the proximate cause of the rupture of Edithas uterus resulting in her hysterectomy, Dr.
Manalo testified as follows:
Atty. Hidalgo:
Q: Doctor, we want to be clarified on this matter. The complainant had testified here
that the D&C was the proximate cause of the rupture of the uterus. The condition which
she found herself in on the second admission. Will you please tell us whether that is
true or not?
A: Yah, I do not think so for two reasons. One, as I have said earlier, the instrument
cannot reach the site of the pregnancy, for it to further push the pregnancy outside the
uterus. And, No. 2, I was thinking a while ago about another reason- well, why I dont
think so, because it is the triggering factor for the rupture, it could havethe rupture
could have occurred much earlier, right after the D&C or a few days after the D&C.
Q: In this particular case, doctor, the rupture occurred to have happened minutes prior
to the hysterectomy or right upon admission on September 15, 1994 which is about 1
months after the patient was discharged, after the D&C was conducted. Would you tell
us whether there is any relation at all of the D&C and the rupture in this particular
instance?
A: I dont think so for the two reasons that I have just mentioned- that it would not be
possible for the instrument to reach the site of pregnancy. And, No. 2, if it is because
of the D&C that rupture could have occurred earlier.[52] (Emphases supplied)
Clearly, from the testimony of the expert witness and the reasons given by him, it is
evident that the D&C procedure was not the proximate cause of the rupture of Edithas
uterus
During his cross-examination, Dr. Manalo testified on how he would have addressed
Edithas condition should he be placed in a similar circumstance as the petitioner. He
stated:
Atty. Ragonton:
Q: Doctor, as a practicing OB-Gyne, when do you consider that you have done a good,
correct and ideal dilatation and curettage procedure?
A: Well, if the patient recovers. If the patient gets well. Because even after the
procedure, even after the procedure you may feel that you have scraped everything,
the patient stops bleeding, she feels well, I think you should still have some
reservations, and wait a little more time
Q: If you were the OB-Gyne who performed the procedure on patient Editha Ramolete,
would it be your standard practice to check the fetal parts or fetal tissues that were
allegedly removed?
A: From what I have removed, yes. But in this particular case, I think it was assumed
that it was part of the meaty mass which was expelled at the time she was urinating
and flushed in the toilet. So theres no way.
Q: There was [sic] some portions of the fetal parts that were removed?
A: No, it was described as scanty scraping if I remember it rightscanty.
Q: And you would not mind checking those scant or those little parts that were
removed?
A: Well, the fact that it was described means, I assume that it was checked, no. It was
described as scanty and the color also, I think was described. Because it would be very
unusual, even improbable that it would not be examined, because when you scrape,
the specimens are right there before your eyes. Its in front of you. You can touch it. In
fact, some of them will stick to the instrument and therefore to peel it off from the
instrument, you have to touch them. So, automatically they are examined closely.
Q: As a matter of fact, doctor, you also give telephone orders to your patients through
telephone?
A: Yes, yes, we do that, especially here in Manila because you know, sometimes a
doctor can also be tied-up somewhere and if you have to wait until he arrive at a certain
place before you give the order, then it would be a lot of time wasted. Because if you
know your patient, if you have handled your patient, some of the symptoms you can
interpret that comes with practice. And, I see no reason for not allowing telephone
orders unless it is the first time that you will be encountering the patient. That you have
no idea what the problem is.
Q: But, doctor, do you discharge patients without seeing them?
A: Sometimes yes, depending on how familiar I am with the patient. We are on the
question of telephone orders. I am not saying that that is the idle [sic] thing to do, but
I think the reality of present day practice somehow justifies telephone orders. I have
patients whom I have justified and then all of a sudden, late in the afternoon or late in
the evening, would suddenly call they have decided that they will go home inasmuch
as they anticipated that I will discharge them the following day. So, I just call and ask
our resident on duty or the nurse to allow them to go because I have seen that patient
and I think I have full grasp of her problems. So, thats when I make this telephone
orders. And, of course before giving that order I ask about how she feels.[53]
(Emphases supplied)
From the foregoing testimony, it is clear that the D&C procedure was conducted in
accordance with the standard practice, with the same level of care that any reasonably
competent doctor would use to treat a condition under the same circumstances, and
that there was nothing irregular in the way the petitioner dealt with Editha.

Medical malpractice, in our jurisdiction, is often brought as a civil action for damages
under Article 2176[54] of the Civil Code. The defenses in an action for damages,
provided for under Article 2179 of the Civil Code are:
Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause
of his injury, he cannot recover damages. But if his negligence was only contributory,
the immediate and proximate cause of the injury being the defendants lack of due care,
the plaintiff may recover damages, but the courts shall mitigate the damages to be
awarded.
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.[55] 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.[56]
In the present case, the Court notes the findings of the Board of Medicine:
When complainant was discharged on July 31, 1994, herein respondent advised her to
return on August 4, 1994 or four (4) days after the D&C. This advise was clear in
complainants Discharge Sheet. However, complainant failed to do so. This being the
case, the chain of continuity as required in order that the doctrine of proximate cause
can be validly invoked was interrupted. Had she returned, the respondent could have
examined her thoroughly.[57] x x x (Emphases supplied)
Also, in the testimony of Dr. Manalo, he stated further that assuming that there was in
fact a misdiagnosis, the same would have been rectified if Editha followed the
petitioners order to return for a check-up on August 4, 1994. Dr. Manalo stated:
Granting that the obstetrician-gynecologist has been misled (justifiably) up to thus
point that there would have been ample opportunity to rectify the misdiagnosis, had
the patient returned, as instructed for her follow-up evaluation. It was one and a half
months later that the patient sought consultation with another doctor. The continued
growth of an ectopic pregnancy, until its eventual rupture, is a dynamic process. Much
change in physical findings could be expected in 1 months, including the emergence
of suggestive ones.[58]
It is undisputed that Editha did not return for a follow-up evaluation, in defiance of the
petitioners advise. Editha omitted the diligence required by the circumstances which
could have avoided the injury. The omission in not returning for a follow-up evaluation
played a substantial part in bringing about Edithas own injury. Had Editha returned,
petitioner could have conducted the proper medical tests and procedure necessary to
determine Edithas health condition and applied the corresponding treatment which
could have prevented the rupture of Edithas uterus. The D&C procedure having been
conducted in accordance with the standard medical practice, it is clear that Edithas
omission was the proximate cause of her own injury and not merely a contributory
negligence on her part.
Contributory negligence is the act or omission amounting to want of ordinary care on
the part of the person injured, which, concurring with the defendants negligence, is the
proximate cause of the injury.[59] Difficulty seems to be apprehended in deciding
which acts of the injured party shall be considered immediate causes of the
accident.[60] Where the immediate cause of an accident resulting in an injury is the
plaintiffs own act, which contributed to the principal occurrence as one of its
determining factors, he cannot recover damages for the injury.[61] Again, based on
the evidence presented in the present case under review, in which no negligence can
be attributed to the petitioner, the immediate cause of the accident resulting in Edithas
injury was her own omission when she did not return for a follow-up check up, in
defiance of petitioners orders. The immediate cause of Edithas injury was her own act;
thus, she cannot recover damages from the injury
Lastly, petitioner asserts that her right to due process was violated because she was
never informed by either respondents or by the PRC that an appeal was pending before
the PRC.[62] Petitioner claims that a verification with the records section of the PRC
revealed that on April 15, 1999, respondents filed a Memorandum on Appeal before
the PRC, which did not attach the actual registry receipt but was merely indicated
therein.[63]
Respondents, on the other hand avers that if the original registry receipt was not
attached to the Memorandum on Appeal, PRC would not have entertained the appeal
or accepted such pleading for lack of notice or proof of service on the other party.[64]
Also, the registry receipt could not be appended to the copy furnished to petitioners
former counsel, because the registry receipt was already appended to the original copy
of the Memorandum of Appeal filed with PRC.[65]
It is a well-settled rule that when service of notice is an issue, the rule is that the person
alleging that the notice was served must prove the fact of service. The burden of
proving notice rests upon the party asserting its existence.[66] In the present case,
respondents did not present any proof that petitioner was served a copy of the
Memorandum on Appeal. Thus, respondents were not able to satisfy the burden of
proving that they had in fact informed the petitioner of the appeal proceedings before
the PRC.
In EDI-Staffbuilders International, Inc. v. National Labor Relations Commission,[67]
in which the National Labor Relations Commission failed to order the private
respondent to furnish the petitioner a copy of the Appeal Memorandum, the Court held
that said failure deprived the petitioner of procedural due process guaranteed by the
Constitution, which could have served as basis for the nullification of the proceedings
in the appeal. The same holds true in the case at bar. The Court finds that the failure
of the respondents to furnish the petitioner a copy of the Memorandum of Appeal
submitted to the PRC constitutes a violation of due process. Thus, the proceedings
before the PRC were null and void.

All told, doctors are protected by a special rule of law. They are not guarantors of care.
They are not insurers against mishaps or unusual consequences[68] specially so if the
patient herself did not exercise the proper diligence required to avoid the injury.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of

Appeals dated July 4, 2003 in CA-GR SP No. 62206 is hereby REVERSED and SET
ASIDE. The Decision of the Board of Medicine dated March 4, 1999 exonerating
petitioner is AFFIRMED. No pronouncement as to costs.

SO ORDERED.
 THIRD DIVISION
G. R. No. 178763 April 21, 2009
PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari[1] under Rule 45 of the Revised Rules of Court,
petitioners Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and
Gillian Lucas seek the reversal of the 27 September 2006 Decision[2] and 3 July 2007
Resolution,[3] both of the Court of Appeals in CA-G.R. CV No. 68666, entitled Peter
Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v.
Prospero Ma. C. Tuao.
In the questioned decision and resolution, the Court of Appeals affirmed the 14 July
2000 Decision of the Regional Trial Court (RTC), Branch 150, Makati City,
dismissing the complaint filed by petitioners in a civil case entitled, Peter Paul Patrick
Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C.
Tuao, docketed as Civil Case No. 92-2482.
From the record of the case, the established factual antecedents of the present petition
are:
Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted sore
eyes in his right eye.
On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made
use of his health care insurance issued by Philamcare Health Systems, Inc.
(Philamcare), for a possible consult. The Philamcare Coordinator, Dr. Edwin Oca,
M.D., referred Peter to respondent, Dr. Prospero Ma. C. Tuao, M.D. (Dr. Tuao), an
ophthalmologist at St. Lukes Medical Center, for an eye consult.
Upon consultation with Dr. Tuao, Peter narrated that it had been nine (9) days since
the problem with his right eye began; and that he was already taking Maxitrol to
address the problem in his eye. According to Dr. Tuao, he performed ocular routine
examination on Peters eyes, wherein: (1) a gross examination of Peters eyes and
their surrounding area was made; (2) Peters visual acuity were taken; (3) Peters eyes
were palpated to check the intraocular pressure of each; (4) the motility of Peters eyes
was observed; and (5) the ophthalmoscopy[4] on Peters eyes was used. On that
particular consultation, Dr. Tuao diagnosed that Peter was suffering from
conjunctivitis[5] or sore eyes. Dr. Tuao then prescribed Spersacet-C[6] eye drops
for Peter and told the latter to return for follow-up after one week.
As instructed, Peter went back to Dr. Tuao on 9 September 1988. Upon examination,
Dr. Tuao told Peter that the sore eyes in the latters right eye had already cleared
up and he could discontinue the Spersacet-C. However, the same eye developed
Epidemic Kerato Conjunctivitis (EKC),[7] a viral infection. To address the new
problem with Peters right eye, Dr. Tuao prescribed to the former a steroid-based eye
drop called Maxitrol,[8] a dosage of six (6) drops per day.[9] To recall, Peter had
already been using Maxitrol prior to his consult with Dr. Tuao.
On 21 September 1988, Peter saw Dr. Tuao for a follow-up consultation. After
examining both of Peters eyes, Dr. Tuao instructed the former to taper down[10] the
dosage of Maxitrol, because the EKC in his right eye had already resolved. Dr. Tuao
specifically cautioned Peter that, being a steroid, Maxitrol had to be withdrawn
gradually; otherwise, the EKC might recur.[11]
Complaining of feeling as if there was something in his eyes, Peter returned to Dr.
Tuao for another check-up on 6 October 1988. Dr. Tuao examined Peters eyes and
found that the right eye had once more developed EKC. So, Dr. Tuao instructed Peter
to resume the use of Maxitrol at six (6) drops per day.
On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock.
Consequently, Peter was told by Dr. Tuano to take, instead, Blephamide[12] another
steroid-based medication, but with a lower concentration, as substitute for the
unavailable Maxitrol, to be used three (3) times a day for five (5) days; two (2) times
a day for five (5) days; and then just once a day.[13]
Several days later, on 18 October 1988, Peter went to see Dr. Tuao at his clinic,
alleging severe eye pain, feeling as if his eyes were about to pop-out, a headache
and blurred vision. Dr. Tuao examined Peters eyes and discovered that the EKC was
again present in his right eye. As a result, Dr. Tuao told Peter to resume the maximum
dosage of Blephamide.
Dr. Tuao saw Peter once more at the formers clinic on 4 November 1988. Dr.
Tuaos examination showed that only the periphery of Peters right eye was positive
for EKC; hence, Dr. Tuao prescribed a lower dosage of Blephamide.
It was also about this time that Fatima Gladys Lucas (Fatima), Peters spouse, read the
accompanying literature of Maxitrol and found therein the following warning against
the prolonged use of such steroids:
WARNING:
Prolonged use may result in glaucoma, with damage to the optic nerve, defects in
visual acuity and fields of vision, and posterior, subcapsular cataract
formation. Prolonged use may suppress the host response and thus increase the hazard
of secondary ocular infractions, in those diseases causing thinning of the cornea or
sclera, perforations have been known to occur with the use of topical steroids. In acute
purulent conditions of the eye, steroids may mask infection or enhance existing
infection. If these products are used for 10 days or longer, intraocular pressure should
be routinely monitored even though it may be difficult in children and uncooperative
patients.
Employment of steroid medication in the treatment of herpes simplex requires great
caution.
xxxx
ADVERSE REACTIONS:
Adverse reactions have occurred with steroid/anti-infective combination drugs which
can be attributed to the steroid component, the anti-infective component, or the
combination. Exact incidence figures are not available since no denominator of treated
patients is available.
Reactions occurring most often from the presence of the anti-infective ingredients are
allergic sensitizations. The reactions due to the steroid component in decreasing order
to frequency are elevation of intra-ocular pressure (IOP) with possible development of
glaucoma, infrequent optic nerve damage; posterior subcapsular cataract formation;
and delayed wound healing.
Secondary infection: The development of secondary has occurred after use of
combination containing steroids and antimicrobials. Fungal infections of the correa
are particularly prone to develop coincidentally with long-term applications of
steroid. The possibility of fungal invasion must be considered in any persistent corneal
ulceration where steroid treatment has been used.
Secondary bacterial ocular infection following suppression of host responses also
occurs.
On 26 November 1988, Peter returned to Dr. Tuaos clinic, complaining of feeling of Diamox.[30
worse.[14] It appeared that the EKC had spread to the whole of Peters right eye yet
again. Thus, Dr. Tuao instructed Peter to resume the use of Maxitrol. Petitioners
averred that Peter already made mention to Dr. Tuao during said visit of the above-
quoted warning against the prolonged use of steroids, but Dr. Tuao supposedly
brushed aside Peters concern as mere paranoia, even assuring him that the former was
taking care of him (Peter).
Petitioners further alleged that after Peters 26 November 1988 visit to Dr. Tuao,
Peter continued to suffer pain in his right eye, which seemed to progress, with the
ache intensifying and becoming more frequent.
Upon waking in the morning of 13 December 1988, Peter had no vision in his right
eye. Fatima observed that Peters right eye appeared to be bloody and swollen.[15]
Thus, spouses Peter and Fatima rushed to the clinic of Dr. Tuao. Peter reported to Dr.
Tuao that he had been suffering from constant headache in the afternoon and blurring
of vision.
Upon examination, Dr. Tuao noted the hardness of Peters right eye. With the use of
a tonometer[16] to verify the exact intraocular pressure[17] (IOP) of Peters eyes, Dr.
Tuao discovered that the tension in Peters right eye was 39.0 Hg, while that of his
left was 17.0 Hg.[18] Since the tension in Peters right eye was way over the normal
IOP, which merely ranged from 10.0 Hg to 21.0 Hg,[19] Dr. Tuao ordered[20] him
to immediately discontinue the use of Maxitrol and prescribed to the latter Diamox[21]
and Normoglaucon, instead.[22] Dr. Tuao also required Peter to go for daily check-
up in order for the former to closely monitor the pressure of the latters eyes.
On 15 December 1988, the tonometer reading of Peters right eye yielded a high
normal level, i.e., 21.0 Hg. Hence, Dr. Tuao told Peter to continue using Diamox and
Normoglaucon. But upon Peters complaint of stomach pains and tingling sensation
in his fingers,[23] Dr. Tuao discontinued Peters use of Diamox.[24]
Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr.
Batungbacal), on 21 December 1988, who allegedly conducted a complete
ophthalmological examination of Peters eyes. Dr. Batungbacals diagnosis was
Glaucoma[25] O.D.[26] He recommended Laser Trabeculoplasty[27] for Peters right
eye.
When Peter returned to Dr. Tuao on 23 December 1988,[28] the tonometer measured
the IOP of Peters right eye to be 41.0 Hg,[29] again, way above normal. Dr. Tuao
addressed the problem by advising Peter to resume taking Diamox along with
Normoglaucon.
During the Christmas holidays, Peter supposedly stayed in bed most of the time and
was not able to celebrate the season with his family because of the debilitating effects
On 28 December 1988, during one of Peters regular follow-ups with Dr. Tuao, the
doctor conducted another ocular routine examination of Peters eyes. Dr. Tuao noted
the recurrence of EKC in Peters right eye. Considering, however, that the IOP of
Peters right eye was still quite high at 41.0 Hg, Dr. Tuao was at a loss as to how to
balance the treatment of Peters EKC vis--vis the presence of glaucoma in the same
eye. Dr. Tuao, thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto),
another ophthalmologist specializing in the treatment of glaucoma.[31] Dr. Tuaos
letter of referral to Dr. Agulto stated that:
Referring to you Mr. Peter Lucas for evaluation & possible management. I initially
saw him Sept. 2, 1988 because of conjunctivitis. The latter resolved and he developed
EKC for which I gave Maxitrol. The EKC was recurrent after stopping steroid drops.
Around 1 month of steroid treatment, he noted blurring of vision & pain on the R.
however, I continued the steroids for the sake of the EKC. A month ago, I noted iris
atrophy, so I took the IOP and it was definitely elevated. I stopped the steroids
immediately and has (sic) been treating him medically.
It seems that the IOP can be controlled only with oral Diamox, and at the moment, the
EKC has recurred and Im in a fix whether to resume the steroid or not considering
that the IOP is still uncontrolled.[32]
On 29 December 1988, Peter went to see Dr. Agulto at the latters clinic. Several tests
were conducted thereat to evaluate the extent of Peters condition. Dr. Agulto wrote
Dr. Tuao a letter containing the following findings and recommendations:
Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and
20/20L. Tension curve 19 R and 15 L at 1210 H while on Normoglaucon BID OD &
Diamox tab every 6h po.
Slit lamp evaluation[33] disclosed subepithelial corneal defect outer OD. There was
circumferential peripheral iris atrophy, OD. The lenses were clear.
Funduscopy[34] showed vertical cup disc of 0.85 R and 0.6 L with temporal slope
R>L.
Zeiss gonioscopy[35] revealed basically open angles both eyes with occasional
PAS,[36] OD.
Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I
suggest that we do a baseline visual fields and push medication to lowest possible
levels. If I may suggest further, I think we should prescribe Timolol[37] BID[38] OD
in lieu of Normoglaucon. If the IOP is still inadequate, we may try Depifrin[39] BID
OD (despite low PAS). Im in favor of retaining Diamox or similar CAI.[40]
If fields show further loss in say 3 mos. then we should consider trabeculoplasty.
I trust that this approach will prove reasonable for you and Peter.[41]
Peter went to see Dr. Tuao on 31 December 1988, bearing Dr. Agultos
aforementioned letter. Though Peters right and left eyes then had normal IOP of 21.0
Hg and 17.0 Hg, respectively, Dr. Tuao still gave him a prescription for Timolol
B.I.D. so Peter could immediately start using said medication. Regrettably, Timolol
B.I.D. was out of stock, so Dr. Tuao instructed Peter to just continue using Diamox
and Normoglaucon in the meantime.
Just two days later, on 2 January 1989, the IOP of Peters right eye remained elevated
at 21.0 Hg,[42] as he had been without Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuao conducted a visual field study[43] of Peters eyes,
which revealed that the latter had tubular vision[44] in his right eye, while that of his
left eye remained normal. Dr. Tuao directed Peter to religiously use the Diamox and
Normoglaucon, as the tension of the latters right eye went up even further to 41.0 Hg
in just a matter of two (2) days, in the meantime that Timolol B.I.D. and Depifrin
were still not available in the market. Again, Dr. Tuao advised Peter to come for
regular check-up so his IOP could be monitored.
Obediently, Peter went to see Dr. Tuao on the 7th, 13th, 16th and 20th of January
1989 for check-up and IOP monitoring.
In the interregnum, however, Peter was prodded by his friends to seek a second
medical opinion. On 13 January 1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr.
Lapuz), an ophthalmologist, who, in turn, referred Peter to Dr. Mario V. Aquino, M.D.
(Dr. Aquino), another ophthalmologist who specializes in the treatment of glaucoma
and who could undertake the long term care of Peters eyes.
According to petitioners, after Dr. Aquino conducted an extensive evaluation of
Peters eyes, the said doctor informed Peter that his eyes were relatively normal,
though the right one sometimes manifested maximum borderline tension. Dr. Aquino
also confirmed Dr. Tuaos diagnosis of tubular vision in Peters right eye. Petitioners
claimed that Dr. Aquino essentially told Peter that the latters condition would require
lifetime medication and follow-ups.
In May 1990 and June 1991, Peter underwent two (2) procedures of laser
trabeculoplasty to attempt to control the high IOP of his right eye.
Claiming to have steroid-induced glaucoma[45] and blaming Dr. Tuao for the same,
Peter, joined by: (1) Fatima, his spouse[46]; (2) Abbeygail, his natural child[47]; and
(3) Gillian, his legitimate child[48] with Fatima, instituted on 1 September 1992, a
civil complaint for damages against Dr. Tuao, before the RTC, Branch 150, Quezon
City. The case was docketed as Civil Case No. 92-2482.
In their Complaint, petitioners specifically averred that as the direct consequence of
[Peters] prolonged use of Maxitrol, [he] suffered from steroid induced glaucoma
which caused the elevation of his intra-ocular pressure. The elevation of the intra-
ocular pressure of [Peters right eye] caused the impairment of his vision which
impairment is not curable and may even lead to total blindness.[49]
Petitioners additionally alleged that the visual impairment of Peters right eye caused
him and his family so much grief. Because of his present condition, Peter now needed
close medical supervision forever; he had already undergone two (2) laser surgeries,
with the possibility that more surgeries were still needed in the future; his career in
sports casting had suffered and was continuing to suffer;[50] his anticipated income
had been greatly reduced as a result of his limited capacity; he continually suffered
from headaches, nausea, dizziness, heart palpitations, rashes, chronic rhinitis,
sinusitis,[51] etc.; Peters relationships with his spouse and children continued to be
strained, as his condition made him highly irritable and sensitive; his mobility and
social life had suffered; his spouse, Fatima, became the breadwinner in the family;[52]
and his two children had been deprived of the opportunity for a better life and
educational prospects. Collectively, petitioners lived in constant fear of Peter
becoming completely blind.[53]
In the end, petitioners sought pecuniary award for their supposed pain and suffering,
which were ultimately brought about by Dr. Tuaos grossly negligent conduct in
prescribing to Peter the medicine Maxitrol for a period of three (3) months, without
monitoring Peters IOP, as required in cases of prolonged use of said medicine, and
notwithstanding Peters constant complaint of intense eye pain while using the
same. Petitioners particularly prayed that Dr. Tuao be adjudged liable for the
following amounts:
1. The amount of P2,000,000.00 to plaintiff Peter Lucas as and by way of
compensation for his impaired vision.
2. The amount of P300,000.00 to spouses Lucas as and by way of actual damages
plus such additional amounts that may be proven during trial.
3. The amount of P1,000,000.00 as and by way of moral damages
4. The amount of P500,000.00 as and by way of exemplary damages.
5. The amount of P200,000.00 as and by way of attorneys fees plus costs of suit.[54]
In rebutting petitioners complaint, Dr. Tuao asserted that the treatment made by
[him] more than three years ago has no causal connection to [Peters] present glaucoma
or condition.[55] Dr. Tuao explained that [d]rug-induced glaucoma is temporary
and curable, steroids have the side effect of increasing intraocular pressure. Steroids
are prescribed to treat Epidemic Kerato Conjunctivitis or EKC which is an infiltration
of the cornea as a result of conjunctivitis or sore eyes.[56] Dr. Tuao also clarified
that (1) [c]ontrary to [petitioners] fallacious claim, [he] did NOT continually
prescribe the drug Maxitrol which contained steroids for any prolonged period[57]
and [t]he truth was the Maxitrol was discontinued x x x as soon as EKC disappeared
and was resumed only when EKC reappeared[58]; (2) the entire time he was treating
Peter, he continually monitored the intraocular pressure of [Peters eyes] by palpating
the eyes and by putting pressure on the eyeballs, and no hardening of the same could
be detected, which meant that there was no increase in the tension or IOP, a possible
side reaction to the use of steroid medications; and (3) it was only on 13 December
1988 that Peter complained of a headache and blurred vision in his right eye, and upon
measuring the IOP of said eye, it was determined for the first time that the IOP of the
right eye had an elevated value.
But granting for the sake of argument that the steroid treatment of [Peters] EKC
caused the steroid induced glaucoma,[59] Dr. Tuao argued that
[S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the
intake of steroids is discontinued, the intraocular pressure automatically is reduced.
Thus, [Peters] glaucoma can only be due to other causes not attributable to steroids,
certainly not attributable to [his] treatment of more than three years ago x x x.
From a medical point of view, as revealed by more current examination of [Peter], the
latters glaucoma can only be long standing glaucoma, open angle glaucoma, because
of the large C:D ratio. The steroids provoked the latest glaucoma to be revealed earlier
as [Peter] remained asymptomatic prior to steroid application. Hence, the steroid
treatment was in fact beneficial to [Peter] as it revealed the incipient open angle
glaucoma of [Peter] to allow earlier treatment of the same.[60]
In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 for
insufficiency of evidence.[61] The decretal part of said Decision reads:
Wherefore, premises considered, the instant complaint is dismissed for insufficiency
of evidence. The counter claim (sic) is likewise dismissed in the absence of bad faith
or malice on the part of plaintiff in filing the suit.[62]
The RTC opined that petitioners failed to prove by preponderance of evidence that Dr.
Tuao was negligent in his treatment of Peters condition. In particular, the record of
the case was bereft of any evidence to establish that the steroid medication and its
dosage, as prescribed by Dr. Tuao, caused Peters glaucoma. The trial court reasoned
that the recognized standards of the medical community has not been established in
this case, much less has causation been established to render [Tuao]
liable.[63] According to the RTC:
[Petitioners] failed to establish the duty required of a medical practitioner against
which Peter Pauls treatment by defendant can be compared with. They did not present
any medical expert or even a medical doctor to convince and expertly explain to the
court the established norm or duty required of a physician treating a patient, or whether
the non taking (sic) by Dr. Tuao of Peter Pauls pressure a deviation from the norm
or his non-discovery of the glaucoma in the course of treatment constitutes negligence.
It is important and indispensable to establish such a standard because once it is
established, a medical practitioner who departed thereof breaches his duty and
commits negligence rendering him liable. Without such testimony or enlightenment
from an expert, the court is at a loss as to what is then the established norm of duty of
a physician against which defendants conduct can be compared with to determine
negligence.[64]
The RTC added that in the absence of any medical evidence to the contrary, this
court cannot accept [petitioners] claim that the use of steroid is the proximate cause
of the damage sustained by [Peters] eye.[65]
Correspondingly, the RTC accepted Dr. Tuaos medical opinion that Peter Paul must
have been suffering from normal tension glaucoma, meaning, optic nerve damage was
happening but no elevation of the eye pressure is manifested, that the steroid treatment
actually unmasked the condition that resulted in the earlier treatment of the glaucoma.
There is nothing in the record to contradict such testimony. In fact, plaintiffs Exhibit
S even tends to support them.
Undaunted, petitioners appealed the foregoing RTC decision to the Court of
Appeals. Their appeal was docketed as CA-G.R. CV No. 68666.
On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No.
68666 denying petitioners recourse and affirming the appealed RTC Decision. The
fallo of the judgment of the appellate court states:
WHEREFORE, the Decision appealed from is AFFIRMED.[66]
The Court of Appeals faulted petitioners because they
[D]id not present any medical expert to testify that Dr. Tuanos prescription of
Maxitrol and Blephamide for the treatment of EKC on Peters right eye was not proper
and that his palpation of Peters right eye was not enough to detect adverse reaction to
steroid. Peter testified that Dr. Manuel Agulto told him that he should not have used
steroid for the treatment of EKC or that he should have used it only for two (2) weeks,
as EKC is only a viral infection which will cure by itself. However, Dr. Agulto was
not presented by [petitioners] as a witness to confirm what he allegedly told Peter and,
therefore, the latters testimony is hearsay. Under Rule 130, Section 36 of the Rules of
Court, a witness can testify only to those facts which he knows of his own personal
knowledge, x x x. Familiar and fundamental is the rule that hearsay testimony is
inadmissible as evidence.[67]
Like the RTC, the Court of Appeals gave great weight to Dr. Tuaos medical
judgment, specifically the latters explanation that:
[W]hen a doctor sees a patient, he cannot determine whether or not the latter would
react adversely to the use of steroids, that it was only on December 13, 1989, when
Peter complained for the first time of headache and blurred vision that he observed
that the pressure of the eye of Peter was elevated, and it was only then that he suspected
that Peter belongs to the 5% of the population who reacts adversely to steroids.[68]
Petitioners Motion for Reconsideration was denied by the Court of Appeals in a
Resolution dated 3 July 2007.
Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of
Court premised on the following assignment of errors:
I.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN
AFFIRMING THE DECISION OF THE TRIAL COURT DISMISSING THE
PETITIONERS COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT
ON THE GROUND OF INSUFFICIENCY OF EVIDENCE;
II.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN
DISMISSING THE PETITIONERS COMPLAINT FOR DAMAGES AGAINST
THE RESPONDENT ON THE GROUND THAT NO MEDICAL EXPERT WAS
PRESENTED BY THE PETITIONERS TO PROVE THEIR CLAIM FOR
MEDICAL NEGLIGENCE AGAINST THE RESPONDENT; AND
III.
THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN
NOT FINDING THE RESPONDENT LIABLE TO THE PETITIONERS FOR
ACTUAL, MORAL AND EXEMPLARY DAMAGES, ASIDE FROM
ATTORNEYS FEES, COSTS OF SUIT, AS A RESULT OF HIS GROSS
NEGLIGENCE.[69]
A reading of the afore-quoted reversible errors supposedly committed by the Court of
Appeals in its Decision and Resolution would reveal that petitioners are fundamentally
assailing the finding of the Court of Appeals that the evidence on record is insufficient
to establish petitioners entitlement to any kind of damage. Therefore, it could be said
that the sole issue for our resolution in the Petition at bar is whether the Court of
Appeals committed reversible error in affirming the judgment of the RTC that
petitioners failed to prove, by preponderance of evidence, their claim for damages
against Dr. Tuao.
Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the
factual findings of the Court of Appeals, as well as of the RTC. In effect, petitioners
would have us sift through the evidence on record and pass upon whether there is
sufficient basis to establish Dr. Tuaos negligence in his treatment of Peters eye
condition. This question clearly involves a factual inquiry, the determination of which
is not within the ambit of this Courts power of review under Rule 45 of the 1997 Rules
Civil Procedure, as amended.[70]
Elementary is the principle that this Court is not a trier of facts; only errors of law are
generally reviewed in petitions for review on certiorari criticizing decisions of the
Court of Appeals. Questions of fact are not entertained.[71]
Nonetheless, the general rule that only questions of law may be raised on appeal in a
petition for review under Rule 45 of the Rules of Court admits of certain exceptions,
including the circumstance when the finding of fact of the Court of Appeals is
premised on the supposed absence of evidence, but is contradicted by the evidence on
record. Although petitioners may not explicitly invoke said exception, it may be
gleaned from their allegations and arguments in the instant Petition.
Petitioners contend, that [c]ontrary to the findings of the Honorable Court of Appeals,
[they] were more than able to establish that: Dr. Tuao ignored the standard medical
procedure for ophthalmologists, administered medication with recklessness, and
exhibited an absence of competence and skills expected from him.[72] Petitioners
reject the necessity of presenting expert and/or medical testimony to establish (1) the
standard of care respecting the treatment of the disorder affecting Peters eye; and (2)
whether or not negligence attended Dr. Tuaos treatment of Peter, because, in their
words
That Dr. Tuao was grossly negligent in the treatment of Peters simple eye ailment is
a simple case of cause and effect. With mere documentary evidence and based on the
facts presented by the petitioners, respondent can readily be held liable for damages
even without any expert testimony. In any case, however, and contrary to the finding
of the trial court and the Court of Appeals, there was a medical expert presented by the
petitioner showing the recklessness committed by [Dr. Tuao] Dr. Tuao himself.
[Emphasis supplied.]
They insist that Dr. Tuao himself gave sufficient evidence to establish his gross
negligence that ultimately caused the impairment of the vision of Peters right eye,[73]
i.e., that [d]espite [Dr. Tuaos] knowledge that 5% of the population reacts adversely
to Maxitrol, [he] had no qualms whatsoever in prescribing said steroid to Peter without
first determining whether or not the (sic) Peter belongs to the 5%.[74]
We are not convinced. The judgments of both the Court of Appeals and the RTC are
in accord with the evidence on record, and we are accordingly bound by the findings
of fact made therein.
Petitioners position, in sum, is that Peters glaucoma is the direct result of Dr. Tuaos
negligence in his improper administration of the drug Maxitrol; thus, [the latter]
should be liable for all the damages suffered and to be suffered by [petitioners].[75]
Clearly, the present controversy is a classic illustration of a medical negligence case
against a physician based on the latters professional negligence. In this type of suit,
the patient or his heirs, in order to prevail, is required to prove by preponderance of
evidence that the physician failed to exercise that degree of skill, care, and learning
possessed by other persons in the same profession; and that as a proximate result of
such failure, the patient or his heirs suffered damages.
For lack of a specific law geared towards the type of negligence committed by
members of the medical profession, such claim for damages is almost always anchored
on the alleged violation of Article 2176 of the Civil Code, which states that:
ART. 2176. Whoever by act or omission causes damage to another, there being fault
or negligence, is obliged to pay for the damage done. Such fault or negligence, if there
is no pre-existing contractual relation between the parties, is called a quasi-delict and
is governed by the provisions of this Chapter.
In medical negligence cases, also called medical malpractice suits, there exist a
physician-patient relationship between the doctor and the victim. But just like any
other proceeding for damages, four essential (4) elements i.e., (1) duty; (2) breach; (3)
injury; and (4) proximate causation,[76] must be established by the plaintiff/s. All the
four (4) elements must co-exist in order to find the physician negligent and, thus, liable
for damages.
When a patient engages the services of a physician, a physician-patient relationship is
generated. And in accepting a case, the physician, for all intents and purposes,
represents that he has the needed training and skill possessed by physicians and
surgeons practicing in the same field; and that he will employ such training, care, and
skill in the treatment of the patient.[77] Thus, in treating his patient, a physician is
under a duty to [the former] to exercise that degree of care, skill and diligence which
physicians in the same general neighborhood and in the same general line of practice
ordinarily possess and exercise in like cases.[78] Stated otherwise, the physician has
the duty to use at least the same level of care that any other reasonably competent
physician would use to treat the condition under similar circumstances.
This standard level of care, skill and diligence is a matter best addressed by expert
medical testimony, because the standard of care in a medical malpractice case is a
matter peculiarly within the knowledge of experts in the field.[79]
There is breach of duty of care, skill and diligence, or the improper performance of
such duty, by the attending physician when the patient is injured in body or in health
[and this] constitutes the actionable malpractice.[80] Proof of such breach must
likewise rest upon the testimony of an expert witness that the treatment accorded to
the patient failed to meet the standard level of care, skill and diligence which
physicians in the same general neighborhood and in the same general line of practice
ordinarily possess and exercise in like cases.
Even so, proof of breach of duty on the part of the attending physician is insufficient,
for there must be a causal connection between said breach and the resulting injury
sustained by the patient. Put in another way, in order that there may be a recovery for
an injury, it must be shown that the injury for which recovery is sought must be the
legitimate consequence of the wrong done; the connection between the negligence and
the injury must be a direct and natural sequence of events, unbroken by intervening
efficient causes;[81] that is, the negligence must be the proximate cause of the injury.
And the proximate cause of an injury is that cause, which, in the natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury, and
without which the result would not have occurred.[82]
Just as with the elements of duty and breach of the same, in order to establish the
proximate cause [of the injury] by a preponderance of the evidence in a medical
malpractice action, [the patient] must similarly use expert testimony, because the
question of whether the alleged professional negligence caused [the patients] injury
is generally one for specialized expert knowledge beyond the ken of the average
layperson; using the specialized knowledge and training of his field, the experts role
is to present to the [court] a realistic assessment of the likelihood that [the physicians]
alleged negligence caused [the patients] injury.[83]
From the foregoing, it is apparent that medical negligence cases are best proved by
opinions of expert witnesses belonging in the same general neighborhood and in the
same general line of practice as defendant physician or surgeon. The deference of
courts to the expert opinion of qualified physicians [or surgeons] stems from the
formers realization that the latter possess unusual technical skills which laymen in
most instances are incapable of intelligently evaluating;[84] hence, the
indispensability of expert testimonies.
In the case at bar, there is no question that a physician-patient relationship developed
between Dr. Tuao and Peter when Peter went to see the doctor on 2 September 1988,
seeking a consult for the treatment of his sore eyes. Admittedly, Dr. Tuao, an
ophthalmologist, prescribed Maxitrol when Peter developed and had recurrent EKC.
Maxitrol or neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a
multiple-dose anti-infective steroid combination in sterile form for topical
application.[85] It is the drug which petitioners claim to have caused Peters
glaucoma.
However, as correctly pointed out by the Court of Appeals, [t]he onus probandi was
on the patient to establish before the trial court that the physicians ignored standard
medical procedure, prescribed and administered medication with recklessness and
exhibited an absence of the competence and skills expected of general practitioners
similarly situated.[86] Unfortunately, in this case, there was absolute failure on the
part of petitioners to present any expert testimony to establish: (1) the standard of care
to be implemented by competent physicians in treating the same condition as Peters
under similar circumstances; (2) that, in his treatment of Peter, Dr. Tuao failed in his
duty to exercise said standard of care that any other competent physician would use in
treating the same condition as Peters under similar circumstances; and (3) that the
injury or damage to Peters right eye, i.e., his glaucoma, was the result of his use of
Maxitrol, as prescribed by Dr. Tuao. Petitioners failure to prove the first element
alone is already fatal to their cause.
Petitioners maintain that Dr. Tuao failed to follow in Peters case the required
procedure for the prolonged use of Maxitrol. But what is actually the required
procedure in situations such as in the case at bar? To be precise, what is the standard
operating procedure when ophthalmologists prescribe steroid medications which,
admittedly, carry some modicum of risk?
Absent a definitive standard of care or diligence required of Dr. Tuao under the
circumstances, we have no means to determine whether he was able to comply with
the same in his diagnosis and treatment of Peter. This Court has no yardstick upon
which to evaluate or weigh the attendant facts of this case to be able to state with
confidence that the acts complained of, indeed, constituted negligence and, thus,
should be the subject of pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao should have determined
first whether Peter was a steroid responder.[87] Yet again, petitioners did not
present any convincing proof that such determination is actually part of the standard
operating procedure which ophthalmologists should unerringly follow prior to
prescribing steroid medications
In contrast, Dr. Tuao was able to clearly explain that what is only required of
ophthalmologists, in cases such as Peters, is the conduct of standard tests/procedures
known as ocular routine examination,[88] composed of five (5) tests/procedures
specifically, gross examination of the eyes and the surrounding area; taking of the
visual acuity of the patient; checking the intraocular pressure of the patient; checking
the motility of the eyes; and using ophthalmoscopy on the patients eye and he did
all those tests/procedures every time Peter went to see him for follow-up consultation
and/or check-up.
We cannot but agree with Dr. Tuaos assertion that when a doctor sees a patient, he
cannot determine immediately whether the latter would react adversely to the use of
steroids; all the doctor can do is map out a course of treatment recognized as correct
by the standards of the medical profession. It must be remembered that a physician is
not an insurer of the good result of treatment. The mere fact that the patient does not
get well or that a bad result occurs does not in itself indicate failure to exercise due
care.[89] The result is not determinative of the performance [of the physician] and he
is not required to be infallible.[90]
Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter was justified by the
fact that the latter was already using the same medication when he first came to see
Dr. Tuao on 2 September 1988 and had exhibited no previous untoward reaction to
that particular drug. [91]
Also, Dr. Tuao categorically denied petitioners claim that he never monitored the
tension of Peters eyes while the latter was on Maxitrol. Dr. Tuao testified that he
palpated Peters eyes every time the latter came for a check-up as part of the doctors
ocular routine examination, a fact which petitioners failed to rebut. Dr. Tuaos
regular conduct of examinations and tests to ascertain the state of Peters eyes negate
the very basis of petitioners complaint for damages. As to whether Dr. Tuaos
actuations conformed to the standard of care and diligence required in like
circumstances, it is presumed to have so conformed in the absence of evidence to the
contrary.
Even if we are to assume that Dr. Tuao committed negligent acts in his treatment of
Peters condition, the causal connection between Dr. Tuaos supposed negligence and
Peters injury still needed to be established. The critical and clinching factor in a
medical negligence case is proof of the causal connection between the negligence
which the evidence established and the plaintiffs injuries.[92] The plaintiff must
plead and prove not only that he has been injured and defendant has been at fault, but
also that the defendants fault caused the injury. A verdict in a malpractice action
cannot be based on speculation or conjecture. Causation must be proven within a
reasonable medical probability based upon competent expert testimony.[93]
The causation between the physicians negligence and the patients injury may only
be established by the presentation of proof that Peters glaucoma would not have
occurred but for Dr. Tuaos supposed negligent conduct. Once more, petitioners
failed in this regard.
Dr. Tuao does not deny that the use of Maxitrol involves the risk of increasing a
patients IOP. In fact, this was the reason why he made it a point to palpate Peters
eyes every time the latter went to see him -- so he could monitor the tension of Peters
eyes. But to say that said medication conclusively caused Peters glaucoma is purely
speculative. Peter was diagnosed with open-angle glaucoma. This kind of glaucoma is
characterized by an almost complete absence of symptoms and a chronic, insidious
course.[94] In open-angle glaucoma, halos around lights and blurring of vision do not
occur unless there has been a sudden increase in the intraocular vision.[95] Visual
acuity remains good until late in the course of the disease.[96] Hence, Dr. Tuao
claims that Peters glaucoma can only be long standing x x x because of the large
C:D[97] ratio, and that [t]he steroids provoked the latest glaucoma to be revealed
earlier was a blessing in disguise as [Peter] remained asymptomatic prior to steroid
application.
Who between petitioners and Dr. Tuao is in a better position to determine and
evaluate the necessity of using Maxitrol to cure Peters EKC vis--vis the attendant
risks of using the same?
That Dr. Tuao has the necessary training and skill to practice his chosen field is
beyond cavil. Petitioners do not dispute Dr. Tuaos qualifications that he has been
a physician for close to a decade and a half at the time Peter first came to see him; that
he has had various medical training; that he has authored numerous papers in the field
of ophthalmology, here and abroad; that he is a Diplomate of the Philippine Board of
Ophthalmology; that he occupies various teaching posts (at the time of the filing of the
present complaint, he was the Chair of the Department of Ophthalmology and an
Associate Professor at the University of the Philippines-Philippine General Hospital
and St. Lukes Medical Center, respectively); and that he held an assortment of
positions in numerous medical organizations like the Philippine Medical Association,
Philippine Academy of Ophthalmology, Philippine Board of Ophthalmology,
Philippine Society of Ophthalmic Plastic and Reconstructive Surgery, Philippine
Journal of Ophthalmology, Association of Philippine Ophthalmology Professors, et
al.
It must be remembered that when the qualifications of a physician are admitted, as in
the instant case, there is an inevitable presumption that in proper cases, he takes the
necessary precaution and employs the best of his knowledge and skill in attending to
his clients, unless the contrary is sufficiently established.[98] In making the judgment
call of treating Peters EKC with Maxitrol, Dr. Tuao took the necessary precaution
by palpating Peters eyes to monitor their IOP every time the latter went for a check-
up, and he employed the best of his knowledge and skill earned from years of training
and practice.
In contrast, without supporting expert medical opinions, petitioners bare assertions of
negligence on Dr. Tuaos part, which resulted in Peters glaucoma, deserve scant
credit.
Our disposition of the present controversy might have been vastly different had
petitioners presented a medical expert to establish their theory respecting Dr. Tuaos
so-called negligence. In fact, the record of the case reveals that petitioners counsel
recognized the necessity of presenting such evidence. Petitioners even gave an
undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would be presented. Alas,
no follow-through on said undertaking was made.
The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the
issue. However, in the course of trial in a civil case, once plaintiff makes out a prima
facie case in his favor, the duty or the burden of evidence shifts to defendant to
controvert plaintiffs prima facie case; otherwise, a verdict must be returned in favor
of plaintiff.[99] The party having the burden of proof must establish his case by a
preponderance of evidence.[100] The concept of preponderance of evidence refers
to evidence which is of greater weight or more convincing than that which is offered
in opposition to it;[101] in the last analysis, it means probability of truth. It is evidence
which is more convincing to the court as worthy of belief than that which is offered in
opposition thereto.[102] Rule 133, Section 1 of the Revised Rules of Court provides
the guidelines for determining preponderance of evidence, thus:

In civil cases, the party having the burden of proof must establish his case by a
preponderance of evidence. In determining where the preponderance or superior
weight of evidence on the issues involved lies the court may consider all the facts and
circumstances of the case, the witnesses manner of testifying, their intelligence, their
means and opportunity of knowing the facts to which they are testifying, the nature of
the facts to which they testify, the probability or improbability of their testimony, their
interest or want of interest, and also their personal credibility so far as the same
legitimately appear upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with the greater number.

Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower
court, to establish their case by a preponderance of evidence showing a reasonable
connection between Dr. Tuaos alleged breach of duty and the damage sustained by
Peters right eye. This, they did not do. In reality, petitioners complaint for damages
is merely anchored on a statement in the literature of Maxitrol identifying the risks of
its use, and the purported comment of Dr. Agulto another doctor not presented as
witness before the RTC concerning the prolonged use of Maxitrol for the treatment
of EKC.

It seems basic that what constitutes proper medical treatment is a medical question that
should have been presented to experts. If no standard is established through expert
medical witnesses, then courts have no standard by which to gauge the basic issue of
breach thereof by the physician or surgeon. The RTC and Court of Appeals, and even
this Court, could not be expected to determine on its own what medical technique
should have been utilized for a certain disease or injury. Absent expert medical
opinion, the courts would be dangerously engaging in speculations.

All told, we are hard pressed to find Dr. Tuao liable for any medical negligence or
malpractice where there is no evidence, in the nature of expert testimony, to establish
that in treating Peter, Dr. Tuao failed to exercise reasonable care, diligence and skill
generally required in medical practice. Dr. Tuaos testimony, that his treatment of
Peter conformed in all respects to standard medical practice in this locality, stands
unrefuted. Consequently, the RTC and the Court of Appeals correctly held that they
had no basis at all to rule that petitioners were deserving of the various damages prayed
for in their Complaint.

WHEREFORE, premises considered, the instant petition is DENIED for lack of

merit. The assailed Decision dated 27 September 2006 and Resolution dated 3 July
2007, both of the Court of Appeals in CA-G.R. CV No. 68666, are hereby
AFFIRMED. No cost.

SO ORDERED.
 EN BANC
G.R. No. 165279 June 7, 2011
DR. RUBI LI VS. SPOUSES REYNALDO and LINA SOLIMAN, as
parents/heirs of deceased Angelica Soliman,
DECISION
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the Decision[1] dated June 15,
2004 as well as the Resolution[2] dated September 1, 2004 of the Court of Appeals
(CA) in CA-G.R. CV No. 58013 which modified the Decision[3] dated September 5,
1997 of the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a
biopsy of the mass located in her lower extremity at the St. Lukes Medical Center
(SLMC). Results showed that Angelica was suffering from osteosarcoma, osteoblastic
type,[4] a high-grade (highly malignant) cancer of the bone which usually afflicts
teenage children. Following this diagnosis and as primary intervention, Angelicas right
leg was amputated by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant
treatment to eliminate any remaining cancer cells, and hence minimize the chances of
recurrence and prevent the disease from spreading to other parts of the patients body
(metastasis), chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo referred
Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical
oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she died on
September 1, 1993, just eleven (11) days after the (intravenous) administration of the
first cycle of the chemotherapy regimen. Because SLMC refused to release a death
certificate without full payment of their hospital bill, respondents brought the cadaver
of Angelica to the Philippine National Police (PNP) Crime Laboratory at Camp Crame
for post-mortem examination. The Medico-Legal Report issued by said institution
indicated the cause of death as Hypovolemic shock secondary to multiple organ
hemorrhages and Disseminated Intravascular Coagulation.[5]
On the other hand, the Certificate of Death[6] issued by SLMC stated the cause of
death as follows:
Immediate cause : a. Osteosarcoma, Status Post AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy
On February 21, 1994, respondents filed a damage suit[7] against petitioner, Dr. Leo
Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged
them with negligence and disregard of Angelicas safety, health and welfare by their
careless administration of the chemotherapy drugs, their failure to observe the essential
precautions in detecting early the symptoms of fatal blood platelet decrease and
stopping early on the chemotherapy, which bleeding led to hypovolemic shock that
caused Angelicas untimely demise. Further, it was specifically averred that petitioner
assured the respondents that Angelica would recover in view of 95% chance of healing
with chemotherapy (Magiging normal na ang anak nyo basta ma-chemo. 95% ang
healing) and when asked regarding the side effects, petitioner mentioned only slight
vomiting, hair loss and weakness (Magsusuka ng kaunti. Malulugas ang buhok.
Manghihina). Respondents thus claimed that they would not have given their consent
to chemotherapy had petitioner not falsely assured them of its side effects.
In her answer,[8] petitioner denied having been negligent in administering the
chemotherapy drugs to Angelica and asserted that she had fully explained to
respondents how the chemotherapy will affect not only the cancer cells but also the
patients normal body parts, including the lowering of white and red blood cells and
platelets. She claimed that what happened to Angelica can be attributed to malignant
tumor cells possibly left behind after surgery. Few as they may be, these have the
capacity to compete for nutrients such that the body becomes so weak structurally
(cachexia) and functionally in the form of lower resistance of the body to combat
infection. Such infection becomes uncontrollable and triggers a chain of events (sepsis
or septicemia) that may lead to bleeding in the form of Disseminated Intravascular
Coagulation (DIC), as what the autopsy report showed in the case of Angelica.
Since the medical records of Angelica were not produced in court, the trial and
appellate courts had to rely on testimonial evidence, principally the declarations of
petitioner and respondents themselves. The following chronology of events was
gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery
and discussed with them Angelicas condition. Petitioner told respondents that
Angelica should be given two to three weeks to recover from the operation before
starting chemotherapy. Respondents were apprehensive due to financial constraints as
Reynaldo earns only from P70,000.00 to P150,000.00 a year from his jewelry and
watch repairing business.[9] Petitioner, however, assured them not to worry about her
professional fee and told them to just save up for the medicines to be used.
Petitioner claimed that she explained to respondents that even when a tumor is
removed, there are still small lesions undetectable to the naked eye, and that adjuvant
chemotherapy is needed to clean out the small lesions in order to lessen the chance of
the cancer to recur. She did not give the respondents any assurance that chemotherapy
will cure Angelicas cancer. During these consultations with respondents, she explained
the following side effects of chemotherapy treatment to respondents: (1) falling hair;
(2) nausea and vomiting; (3) loss of appetite; (4) low count of white blood cells
[WBC], red blood cells [RBC] and platelets; (5) possible sterility due to the effects on
Angelicas ovary; (6) damage to the heart and kidneys; and (7) darkening of the skin
especially when exposed to sunlight. She actually talked with respondents four times,
once at the hospital after the surgery, twice at her clinic and the fourth time when
Angelicas mother called her through long distance.[10] This was disputed by
respondents who countered that petitioner gave them assurance that there is 95%
chance of healing for Angelica if she undergoes chemotherapy and that the only side
effects were nausea, vomiting and hair loss.[11] Those were the only side-effects of
chemotherapy treatment mentioned by petitioner.[12]
On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that
she be readmitted after two or three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy,
bringing with them the results of the laboratory tests requested by petitioner: Angelicas
chest x-ray, ultrasound of the liver, creatinine and complete liver function tests.[13]
Petitioner proceeded with the chemotherapy by first administering hydration fluids to
Angelica.[14]
The following day, August 19, petitioner began administering three chemotherapy
drugs Cisplatin,[15] Doxorubicin[16] and Cosmegen[17] intravenously. Petitioner
was supposedly assisted by her trainees Dr. Leo Marbella[18] and Dr. Grace
Arriete.[19] In his testimony, Dr. Marbella denied having any participation in
administering the said chemotherapy drugs.[20]
On the second day of chemotherapy, August 20, respondents noticed reddish
discoloration on Angelicas face.[21] They asked petitioner about it, but she merely
quipped, Wala yan. Epekto ng gamot.[22] Petitioner recalled noticing the skin rashes
on the nose and cheek area of Angelica. At that moment, she entertained the possibility
that Angelica also had systemic lupus and consulted Dr. Victoria Abesamis on the
matter.[23]
On the third day of chemotherapy, August 21, Angelica had difficulty breathing and
was thus provided with oxygen inhalation apparatus. This time, the reddish
discoloration on Angelicas face had extended to her neck, but petitioner dismissed it
again as merely the effect of medicines.[24] Petitioner testified that she did not see any
discoloration on Angelicas face, nor did she notice any difficulty in the childs
breathing. She claimed that Angelica merely complained of nausea and was given ice
chips.[25]
On August 22, 1993, at around ten oclock in the morning, upon seeing that their child
could not anymore bear the pain, respondents pleaded with petitioner to stop the
chemotherapy. Petitioner supposedly replied: Dapat 15 Cosmegen pa iyan. Okay, lets
observe. If pwede na, bigyan uli ng chemo. At this point, respondents asked petitioners
permission to bring their child home. Later in the evening, Angelica passed black stool
and reddish urine.[26] Petitioner countered that there was no record of blackening of
stools but only an episode of loose bowel movement (LBM). Petitioner also testified
that what Angelica complained of was carpo-pedal spasm, not convulsion or epileptic
attack, as respondents call it (petitioner described it in the vernacular as naninigas ang
kamay at paa). She then requested for a serum calcium determination and stopped the
chemotherapy. When Angelica was given calcium gluconate, the spasm and numbness
subsided.[27]
The following day, August 23, petitioner yielded to respondents request to take
Angelica home. But prior to discharging Angelica, petitioner requested for a repeat
serum calcium determination and explained to respondents that the chemotherapy will
be temporarily stopped while she observes Angelicas muscle twitching and serum
calcium level. Take-home medicines were also prescribed for Angelica, with
instructions to respondents that the serum calcium test will have to be repeated after
seven days. Petitioner told respondents that she will see Angelica again after two
weeks, but respondents can see her anytime if any immediate problem arises.[28]
However, Angelica remained in confinement because while still in the premises of
SLMC, her convulsions returned and she also had LBM. Angelica was given oxygen
and administration of calcium continued.[29]
The next day, August 24, respondents claimed that Angelica still suffered from
convulsions. They also noticed that she had a fever and had difficulty breathing.[30]
Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified that at
around 4:50 that afternoon, Angelica developed difficulty in breathing and had fever.
She then requested for an electrocardiogram analysis, and infused calcium gluconate
on the patient at a stat dose. She further ordered that Angelica be given Bactrim,[31] a
synthetic antibacterial combination drug,[32] to combat any infection on the childs
body.[33]
By August 26, Angelica was bleeding through the mouth. Respondents also saw blood
on her anus and urine. When Lina asked petitioner what was happening to her
daughter, petitioner replied, Bagsak ang platelets ng anak mo. Four units of platelet
concentrates were then transfused to Angelica. Petitioner prescribed Solucortef.
Considering that Angelicas fever was high and her white blood cell count was low,
petitioner prescribed Leucomax. About four to eight bags of blood, consisting of
packed red blood cells, fresh whole blood, or platelet concentrate, were transfused to
Angelica. For two days (August 27 to 28), Angelica continued bleeding, but petitioner
claimed it was lesser in amount and in frequency. Petitioner also denied that there were
gadgets attached to Angelica at that time.[34]
On August 29, Angelica developed ulcers in her mouth, which petitioner said were
blood clots that should not be removed. Respondents claimed that Angelica passed
about half a liter of blood through her anus at around seven oclock that evening, which
petitioner likewise denied.
On August 30, Angelica continued bleeding. She was restless as endotracheal and
nasogastric tubes were inserted into her weakened body. An aspiration of the
nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was
given more platelet concentrate and fresh whole blood, which petitioner claimed
improved her condition. Petitioner told Angelica not to remove the endotracheal tube
because this may induce further bleeding.[35] She was also transferred to the intensive
care unit to avoid infection.
The next day, respondents claimed that Angelica became hysterical, vomited blood
and her body turned black. Part of Angelicas skin was also noted to be shredding by
just rubbing cotton on it. Angelica was so restless she removed those gadgets attached
to her, saying Ayaw ko na; there were tears in her eyes and she kept turning her head.
Observing her daughter to be at the point of death, Lina asked for a doctor but the latter
could not answer her anymore.[36] At this time, the attending physician was Dr.
Marbella who was shaking his head saying that Angelicas platelets were down and
respondents should pray for their daughter. Reynaldo claimed that he was introduced
to a pediatrician who took over his daughters case, Dr. Abesamis who also told him to
pray for his daughter. Angelica continued to have difficulty in her breathing and blood
was being suctioned from her stomach. A nurse was posted inside Angelicas room to
assist her breathing and at one point they had to revive Angelica by pumping her chest.
Thereafter, Reynaldo claimed that Angelica already experienced difficulty in urinating
and her bowel consisted of blood-like fluid. Angelica requested for an electric fan as
she was in pain. Hospital staff attempted to take blood samples from Angelica but were
unsuccessful because they could not even locate her vein. Angelica asked for a fruit
but when it was given to her, she only smelled it. At this time, Reynaldo claimed he
could not find either petitioner or Dr. Marbella. That night, Angelica became hysterical
and started removing those gadgets attached to her. At three oclock in the morning of
September 1, a priest came and they prayed before Angelica expired. Petitioner finally
came back and supposedly told respondents that there was malfunction or bogged-
down machine.[37]
By petitioners own account, Angelica was merely irritable that day (August 31).
Petitioner noted though that Angelicas skin was indeed sloughing off.[38] She stressed
that at 9:30 in the evening, Angelica pulled out her endotracheal tube.[39] On
September 1, exactly two weeks after being admitted at SLMC for chemotherapy,
Angelica died.[40] The cause of death, according to petitioner, was septicemia, or
overwhelming infection, which caused Angelicas other organs to fail.[41] Petitioner
attributed this to the patients poor defense mechanism brought about by the cancer
itself.[42]
While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed
that petitioner acted arrogantly and called him names. He was asked to sign a
promissory note as he did not have cash to pay the hospital bill.[43]
Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal
Officer of the PNP-Crime Laboratory who conducted the autopsy on Angelicas
cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed
at the Department of Health (DOH) Operations and Management Services.
Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the
following: (1) there were fluids recovered from the abdominal cavity, which is not
normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was
hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas
adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and lower
portion, due to accumulation of fluids; (4) yellowish discoloration of the liver; (5)
kidneys showed appearance of facial shock on account of hemorrhages; and (6)
reddishness on external surface of the spleen. All these were the end result of
hypovolemic shock secondary to multiple organ hemorrhages and disseminated
intravascular coagulation. Dr. Vergara opined that this can be attributed to the
chemical agents in the drugs given to the victim, which caused platelet reduction
resulting to bleeding sufficient to cause the victims death. The time lapse for the
production of DIC in the case of Angelica (from the time of diagnosis of sarcoma) was
too short, considering the survival rate of about 3 years. The witness conceded that the
victim will also die of osteosarcoma even with amputation or chemotherapy, but in
this case Angelicas death was not caused by osteosarcoma. Dr. Vergara admitted that
she is not a pathologist but her statements were based on the opinion of an oncologist
whom she had interviewed. This oncologist supposedly said that if the victim already
had DIC prior to the chemotherapy, the hospital staff could have detected it.[44]
On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain
to the patient or his relatives every known side effect of the procedure or therapeutic
agents to be administered, before securing the consent of the patient or his relatives to
such procedure or therapy. The physician thus bases his assurance to the patient on his
personal assessment of the patients condition and his knowledge of the general effects
of the agents or procedure that will be allowed on the patient. Dr. Balmaceda stressed
that the patient or relatives must be informed of all known side effects based on studies
and observations, even if such will aggravate the patients condition.[45]
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower
extremity, testified for the defendants. He explained that in case of malignant tumors,
there is no guarantee that the ablation or removal of the amputated part will completely
cure the cancer. Thus, surgery is not enough. The mortality rate of osteosarcoma at the
time of modern chemotherapy and early diagnosis still remains at 80% to 90%.
Usually, deaths occur from metastasis, or spread of the cancer to other vital organs like
the liver, causing systemic complications. The modes of therapy available are the
removal of the primary source of the cancerous growth and then the residual cancer
cells or metastasis should be treated with chemotherapy. Dr. Tamayo further explained
that patients with osteosarcoma have poor defense mechanism due to the cancer cells
in the blood stream. In the case of Angelica, he had previously explained to her parents
that after the surgical procedure, chemotherapy is imperative so that metastasis of these
cancer cells will hopefully be addressed. He referred the patient to petitioner because
he felt that petitioner is a competent oncologist. Considering that this type of cancer is
very aggressive and will metastasize early, it will cause the demise of the patient
should there be no early intervention (in this case, the patient developed sepsis which
caused her death). Cancer cells in the blood cannot be seen by the naked eye nor
detected through bone scan. On cross-examination, Dr. Tamayo stated that of the more
than 50 child patients who had osteogenic sarcoma he had handled, he thought that
probably all of them died within six months from amputation because he did not see
them anymore after follow-up; it is either they died or had seen another doctor.[46]
In dismissing the complaint, the trial court held that petitioner was not liable for
damages as she observed the best known procedures and employed her highest skill
and knowledge in the administration of chemotherapy drugs on Angelica but despite
all efforts said patient died. It cited the testimony of Dr. Tamayo who testified that he
considered petitioner one of the most proficient in the treatment of cancer and that the
patient in this case was afflicted with a very aggressive type of cancer necessitating
chemotherapy as adjuvant treatment. Using the standard of negligence laid down in
Picart v. Smith,[47] the trial court declared that petitioner has taken the necessary
precaution against the adverse effect of chemotherapy on the patient, adding that a
wrong decision is not by itself negligence. Respondents were ordered to pay their
unpaid hospital bill in the amount of P139,064.43.[48]
Respondents appealed to the CA which, while concurring with the trial courts finding
that there was no negligence committed by the petitioner in the administration of
chemotherapy treatment to Angelica, found that petitioner as her attending physician
failed to fully explain to the respondents all the known side effects of chemotherapy.
The appellate court stressed that since the respondents have been told of only three
side effects of chemotherapy, they readily consented thereto. Had petitioner made
known to respondents those other side effects which gravely affected their child -- such
as carpo-pedal spasm, sepsis, decrease in the blood platelet count, bleeding, infections
and eventual death -- respondents could have decided differently or adopted a different
course of action which could have delayed or prevented the early death of their child.
The CA thus declared:
Plaintiffs-appellants child was suffering from a malignant disease. The attending
physician recommended that she undergo chemotherapy treatment after surgery in
order to increase her chances of survival. Appellants consented to the chemotherapy
treatment because they believed in Dr. Rubi Lis representation that the deceased would
have a strong chance of survival after chemotherapy and also because of the
representation of appellee Dr. Rubi Li that there were only three possible side-effects
of the treatment. However, all sorts of painful side-effects resulted from the treatment
including the premature death of Angelica. The appellants were clearly and totally
unaware of these other side-effects which manifested only during the chemotherapy
treatment. This was shown by the fact that every time a problem would take place
regarding Angelicas condition (like an unexpected side-effect manifesting itself), they
would immediately seek explanation from Dr. Rubi Li. Surely, those unexpected side-
effects culminating in the loss of a love[d] one caused the appellants so much trouble,
pain and suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which
would entitle plaintiffs-appellants to their claim for damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the
assailed decision is hereby modified to the extent that defendant-appellee Dr.
Rubi Li is ordered to pay the plaintiffs-appellants the following amounts:
1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;
2. Moral damages of P200,000.00;
3. Exemplary damages of P50,000.00;
4. Attorneys fee of P30,000.00.
SO ORDERED.[49] (Emphasis supplied.)
Petitioner filed a motion for partial reconsideration which the appellate court denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in not explaining to the
respondents all the possible side effects of the chemotherapy on their child, and in
holding her liable for actual, moral and exemplary damages and attorneys fees.
Petitioner emphasized that she was not negligent in the pre-chemotherapy procedures
and in the administration of chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects of chemotherapy, including
death, petitioner argues that it was foolhardy to imagine her to be all-
knowing/omnipotent. While the theoretical side effects of chemotherapy were
explained by her to the respondents, as these should be known to a competent doctor,
petitioner cannot possibly predict how a particular patients genetic make-up, state of
mind, general health and body constitution would respond to the treatment. These are
obviously dependent on too many known, unknown and immeasurable variables, thus
requiring that Angelica be, as she was, constantly and closely monitored during the
treatment. Petitioner asserts that she did everything within her professional
competence to attend to the medical needs of Angelica.
Citing numerous trainings, distinctions and achievements in her field and her current
position as co-director for clinical affairs of the Medical Oncology, Department of
Medicine of SLMC, petitioner contends that in the absence of any clear showing or
proof, she cannot be charged with negligence in not informing the respondents all the
side effects of chemotherapy or in the pre-treatment procedures done on Angelica.
As to the cause of death, petitioner insists that Angelica did not die of platelet depletion
but of sepsis which is a complication of the cancer itself. Sepsis itself leads to bleeding
and death. She explains that the response rate to chemotherapy of patients with
osteosarcoma is high, so much so that survival rate is favorable to the patient.
Petitioner then points to some probable consequences if Angelica had not undergone
chemotherapy. Thus, without chemotherapy, other medicines and supportive
treatment, the patient might have died the next day because of massive infection, or
the cancer cells might have spread to the brain and brought the patient into a coma, or
into the lungs that the patient could have been hooked to a respirator, or into her
kidneys that she would have to undergo dialysis. Indeed, respondents could have spent
as much because of these complications. The patient would have been deprived of the
chance to survive the ailment, of any hope for life and her quality of life surely
compromised. Since she had not been shown to be at fault, petitioner maintains that
the CA erred in holding her liable for the damages suffered by the respondents.[50]
The issue to be resolved is whether the petitioner can be held liable for failure to fully
disclose serious side effects to the parents of the child patient who died while
undergoing chemotherapy, despite the absence of finding that petitioner was negligent
in administering the said treatment.
The petition is meritorious.
The type of lawsuit which has been called medical malpractice or, more appropriately,
medical negligence, is that type of claim which a victim has available to him or her to
redress a wrong committed by a medical professional which has caused bodily harm.
In order to successfully pursue such a claim, a patient must prove that a health care
provider, in most cases a physician, either failed to do something which a reasonably
prudent health care provider would have done, or that he or she did something that a
reasonably prudent provider would not have done; and that that failure or action caused
injury to the patient.[51]
This Court has recognized that medical negligence cases are best proved by opinions
of expert witnesses belonging in the same general neighborhood and in the same
general line of practice as defendant physician or surgeon. The deference of courts to
the expert opinion of qualified physicians stems from the formers realization that the
latter possess unusual technical skills which laymen in most instances are incapable of
intelligently evaluating, hence the indispensability of expert testimonies.[52]
In this case, both the trial and appellate courts concurred in finding that the alleged
negligence of petitioner in the administration of chemotherapy drugs to respondents
child was not proven considering that Drs. Vergara and Balmaceda, not being
oncologists or cancer specialists, were not qualified to give expert opinion as to
whether petitioners lack of skill, knowledge and professional competence in failing to
observe the standard of care in her line of practice was the proximate cause of the
patients death. Furthermore, respondents case was not at all helped by the non-
production of medical records by the hospital (only the biopsy result and medical bills
were submitted to the court). Nevertheless, the CA found petitioner liable for her
failure to inform the respondents on all possible side effects of chemotherapy before
securing their consent to the said treatment.
The doctrine of informed consent within the context of physician-patient relationships
goes far back into English common law. As early as 1767, doctors were charged with
the tort of battery (i.e., an unauthorized physical contact with a patient) if they had not
gained the consent of their patients prior to performing a surgery or procedure. In the
United States, the seminal case was Schoendorff v. Society of New York Hospital[53]
which involved unwanted treatment performed by a doctor. Justice Benjamin
Cardozos oft-quoted opinion upheld the basic right of a patient to give consent to any
medical procedure or treatment: Every human being of adult years and sound mind
has a right to determine what shall be done with his own body; and a surgeon who
performs an operation without his patients consent, commits an assault, for which he
is liable in damages.[54] From a purely ethical norm, informed consent evolved into a
general principle of law that a physician has a duty to disclose what a reasonably
prudent physician in the medical community in the exercise of reasonable care would
disclose to his patient as to whatever grave risks of injury might be incurred from a
proposed course of treatment, so that a patient, exercising ordinary care for his own
welfare, and faced with a choice of undergoing the proposed treatment, or alternative
treatment, or none at all, may intelligently exercise his judgment by reasonably
balancing the probable risks against the probable benefits.[55]
Subsequently, in Canterbury v. Spence[56] the court observed that the duty to disclose
should not be limited to medical usage as to arrogate the decision on revelation to the
physician alone. Thus, respect for the patients right of self-determination on particular
therapy demands a standard set by law for physicians rather than one which physicians
may or may not impose upon themselves.[57] The scope of disclosure is premised on
the fact that patients ordinarily are persons unlearned in the medical sciences.
Proficiency in diagnosis and therapy is not the full measure of a physicians
responsibility. It is also his duty to warn of the dangers lurking in the proposed
treatment and to impart information which the patient has every right to expect. Indeed,
the patients reliance upon the physician is a trust of the kind which traditionally has
exacted obligations beyond those associated with armslength transactions.[58] The
physician is not expected to give the patient a short medical education, the disclosure
rule only requires of him a reasonable explanation, which means generally informing
the patient in nontechnical terms as to what is at stake; the therapy alternatives open
to him, the goals expectably to be achieved, and the risks that may ensue from
particular treatment or no treatment.[59] As to the issue of demonstrating what risks
are considered material necessitating disclosure, it was held that experts are
unnecessary to a showing of the materiality of a risk to a patients decision on treatment,
or to the reasonably, expectable effect of risk disclosure on the decision. Such
unrevealed risk that should have been made known must further materialize, for
otherwise the omission, however unpardonable, is without legal consequence. And, as
in malpractice actions generally, there must be a causal relationship between the
physicians failure to divulge and damage to the patient.[60]
Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral part
of physicians overall obligation to patient, the duty of reasonable disclosure of
available choices with respect to proposed therapy and of dangers inherently and
potentially involved in each. However, the physician is not obliged to discuss
relatively minor risks inherent in common procedures when it is common knowledge
that such risks inherent in procedure of very low incidence. Cited as exceptions to the
rule that the patient should not be denied the opportunity to weigh the risks of surgery
or treatment are emergency cases where it is evident he cannot evaluate data, and
where the patient is a child or incompetent.[62] The court thus concluded that the
patients right of self-decision can only be effectively exercised if the patient possesses
adequate information to enable him in making an intelligent choice. The scope of the
physicians communications to the patient, then must be measured by the patients need,
and that need is whatever information is material to the decision. The test therefore for
determining whether a potential peril must be divulged is its materiality to the patients
decision.[63]
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for
liability of the physician for failure to inform patient, there must be causal relationship
between physicians failure to inform and the injury to patient and such connection
arises only if it is established that, had revelation been made, consent to treatment
would not have been given.
There are four essential elements a plaintiff must prove in a malpractice action based
upon the doctrine of informed consent: (1) the physician had a duty to disclose material
risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and
proximate result of the failure to disclose, the patient consented to treatment she
otherwise would not have consented to; and (4) plaintiff was injured by the proposed
treatment. The gravamen in an informed consent case requires the plaintiff to point to
significant undisclosed information relating to the treatment which would have altered
her decision to undergo it.[64]
Examining the evidence on record, we hold that there was adequate disclosure of
material risks inherent in the chemotherapy procedure performed with the consent of
Angelicas parents. Respondents could not have been unaware in the course of initial
treatment and amputation of Angelicas lower extremity, that her immune system was
already weak on account of the malignant tumor in her knee. When petitioner informed
the respondents beforehand of the side effects of chemotherapy which includes
lowered counts of white and red blood cells, decrease in blood platelets, possible
kidney or heart damage and skin darkening, there is reasonable expectation on the part
of the doctor that the respondents understood very well that the severity of these side
effects will not be the same for all patients undergoing the procedure. In other words,
by the nature of the disease itself, each patients reaction to the chemical agents even
with pre-treatment laboratory tests cannot be precisely determined by the physician.
That death can possibly result from complications of the treatment or the underlying
cancer itself, immediately or sometime after the administration of chemotherapy
drugs, is a risk that cannot be ruled out, as with most other major medical procedures,
but such conclusion can be reasonably drawn from the general side effects of
chemotherapy already disclosed.
As a physician, petitioner can reasonably expect the respondents to have considered
the variables in the recommended treatment for their daughter afflicted with a life-
threatening illness. On the other hand, it is difficult to give credence to respondents
claim that petitioner told them of 95% chance of recovery for their daughter, as it was
unlikely for doctors like petitioner who were dealing with grave conditions such as
cancer to have falsely assured patients of chemotherapys success rate. Besides,
informed consent laws in other countries generally require only a reasonable
explanation of potential harms, so specific disclosures such as statistical data, may not
be legally necessary.[65]
The element of ethical duty to disclose material risks in the proposed medical treatment
cannot thus be reduced to one simplistic formula applicable in all instances. Further,
in a medical malpractice action based on lack of informed consent, the plaintiff must
prove both the duty and the breach of that duty through expert testimony.[66] Such
expert testimony must show the customary standard of care of physicians in the same
practice as that of the defendant doctor.[67]
In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical
Specialist of the DOHs Operational and Management Services charged with receiving
complaints against hospitals, does not qualify as expert testimony to establish the
standard of care in obtaining consent for chemotherapy treatment. In the absence of
expert testimony in this regard, the Court feels hesitant in defining the scope of
mandatory disclosure in cases of malpractice based on lack of informed consent, much
less set a standard of disclosure that, even in foreign jurisdictions, has been noted to
be an evolving one.
As society has grappled with the juxtaposition between personal autonomy and the
medical profession's intrinsic impetus to cure, the law defining adequate disclosure has
undergone a dynamic evolution. A standard once guided solely by the ruminations of
physicians is now dependent on what a reasonable person in the patients position
regards as significant. This change in perspective is especially important as medical
breakthroughs move practitioners to the cutting edge of technology, ever encountering
new and heretofore unimagined treatments for currently incurable diseases or ailments.
An adaptable standard is needed to account for this constant progression.
Reasonableness analyses permeate our legal system for the very reason that they are
determined by social norms, expanding and contracting with the ebb and flow of
societal evolution.

As we progress toward the twenty-first century, we now realize that the legal standard
of disclosure is not subject to construction as a categorical imperative. Whatever
formulae or processes we adopt are only useful as a foundational starting point; the
particular quality or quantity of disclosure will remain inextricably bound by the facts
of each case. Nevertheless, juries that ultimately determine whether a physician
properly informed a patient are inevitably guided by what they perceive as the common
expectation of the medical consumera reasonable person in the patients position when
deciding to accept or reject a recommended medical procedure.[68] (Emphasis
supplied.)

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision

dated June 15, 2004 and the Resolution dated September 1, 2004 of the Court of
Appeals in CA-G.R. CV No. 58013 are SET ASIDE.

The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City,
Branch 8, in Civil Case No. 8904 is REINSTATED and UPHELD.

No costs.

SO ORDERED.
 Republic of the Philippines
Supreme Court
Manila
SECOND DIVISION
G.R. No. 177407 February 9, 2011
RICO ROMMEL ATIENZA VS. BOARD OF MEDICINE and EDITHA
SIOSON
DECISION
NACHURA, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court,
assailing the Decision[1] dated September 22, 2006 of the Court of Appeals (CA) in
CA-G.R. SP No. 87755. The CA dismissed the petition for certiorari filed by petitioner
Rico Rommel Atienza (Atienza), which, in turn, assailed the Orders[2] issued by
public respondent Board of Medicine (BOM) in Administrative Case No. 1882.
The facts, fairly summarized by the appellate court, follow.
Due to her lumbar pains, private respondent Editha Sioson went to Rizal Medical
Center (RMC) for check-up on February 4, 1995. Sometime in 1999, due to the same
problem, she was referred to Dr. Pedro Lantin III of RMC who, accordingly, ordered
several diagnostic laboratory tests. The tests revealed that her right kidney is normal.
It was ascertained, however, that her left kidney is non-functioning and non-
visualizing. Thus, she underwent kidney operation in September, 1999.
On February 18, 2000, private respondents husband, Romeo Sioson (as complainant),
filed a complaint for gross negligence and/or incompetence before the [BOM] against
the doctors who allegedly participated in the fateful kidney operation, namely: Dr.
Judd dela Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio Florendo and petitioner
Rico Rommel Atienza.
It was alleged in the complaint that the gross negligence and/or incompetence
committed by the said doctors, including petitioner, consists of the removal of private
respondents fully functional right kidney, instead of the left non-functioning and non-
visualizing kidney
The complaint was heard by the [BOM]. After complainant Romeo Sioson presented
his evidence, private respondent Editha Sioson, also named as complainant there, filed
her formal offer of documentary evidence. Attached to the formal offer of
documentary evidence are her Exhibits A to D, which she offered for the purpose of
proving that her kidneys were both in their proper anatomical locations at the time she
was operated. She described her exhibits, as follows:
EXHIBIT A the certified photocopy of the X-ray Request form dated December 12,
1996, which is also marked as Annex 2 as it was actually originally the Annex to x x
x Dr. Pedro Lantin, IIIs counter affidavit filed with the City Prosecutor of Pasig City
in connection with the criminal complaint filed by [Romeo Sioson] with the said
office, on which are handwritten entries which are the interpretation of the results of
the ultrasound examination. Incidentally, this exhibit happens to be the same as or
identical to the certified photocopy of the document marked as Annex 2 to the Counter-
Affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III, on May 4, 2000,
with this Honorable Board in answer to this complaint;
EXHIBIT B the certified photo copy of the X-ray request form dated January 30,
1997, which is also marked as Annex 3 as it was actually likewise originally an Annex
to x x x Dr. Pedro Lantin, IIIs counter-affidavit filed with the Office of the City
Prosecutor of Pasig City in connection with the criminal complaint filed by the herein
complainant with the said office, on which are handwritten entries which are the
interpretation of the results of the examination. Incidentally, this exhibit happens to be
also the same as or identical to the certified photo copy of the document marked as
Annex 3 which is likewise dated January 30, 1997, which is appended as such Annex
3 to the counter-affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III on
May 4, 2000, with this Honorable Board in answer to this complaint.
EXHIBIT C the certified photocopy of the X-ray request form dated March 16, 1996,
which is also marked as Annex 4, on which are handwritten entries which are the
interpretation of the results of the examination.
EXHIBIT D the certified photocopy of the X-ray request form dated May 20, 1999,
which is also marked as Annex 16, on which are handwritten entries which are the
interpretation of the results of the examination. Incidentally, this exhibit appears to be
the draft of the typewritten final report of the same examination which is the document
appended as Annexes 4 and 1 respectively to the counter-affidavits filed by x x x Dr.
Judd dela Vega and Dr. Pedro Lantin, III in answer to the complaint. In the case of Dr.
dela Vega however, the document which is marked as Annex 4 is not a certified
photocopy, while in the case of Dr. Lantin, the document marked as Annex 1 is a
certified photocopy. Both documents are of the same date and typewritten contents are
the same as that which are written on Exhibit D.
Petitioner filed his comments/objections to private respondents [Editha Siosons]
formal offer of exhibits. He alleged that said exhibits are inadmissible because the
same are mere photocopies, not properly identified and authenticated, and intended to
establish matters which are hearsay. He added that the exhibits are incompetent to
prove the purpose for which they are offered.
Dispositions of the Board of Medicine
The formal offer of documentary exhibits of private respondent [Editha
Sioson] was admitted by the [BOM] per its Order dated May 26, 2004. It reads:
The Formal Offer of Documentary Evidence of [Romeo Sioson], the
Comments/Objections of [herein petitioner] Atienza, [therein respondents] De
la Vega and Lantin, and the Manifestation of [therein] respondent Florendo are
hereby ADMITTED by the [BOM] for whatever purpose they may serve in the
resolution of this case.
Let the hearing be set on July 19, 2004 all at 1:30 p.m. for the reception of the
evidence of the respondents.
SO ORDERED.
Petitioner moved for reconsideration of the abovementioned Order basically on the
same reasons stated in his comment/objections to the formal offer of exhibits.
The [BOM] denied the motion for reconsideration of petitioner in its Order dated
October 8, 2004. It concluded that it should first admit the evidence being offered so
that it can determine its probative value when it decides the case. According to the
Board, it can determine whether the evidence is relevant or not if it will take a look at
it through the process of admission. x x x.[3]
Disagreeing with the BOM, and as previously adverted to, Atienza filed a petition for
certiorari with the CA, assailing the BOMs Orders which admitted Editha Siosons
(Edithas) Formal Offer of Documentary Evidence. The CA dismissed the petition for
certiorari for lack of merit.
Hence, this recourse positing the following issues:
I. PROCEDURAL ISSUE:
WHETHER PETITIONER ATIENZA AVAILED OF THE PROPER REMEDY
WHEN HE FILED THE PETITION FOR CERTIORARI DATED 06 DECEMBER
2004 WITH THE COURT OF APPEALS UNDER RULE 65 OF THE RULES OF
COURT TO ASSAIL THE ORDERS DATED 26 MAY 2004 AND 08 OCTOBER
2004 OF RESPONDENT BOARD.
II. SUBSTANTIVE ISSUE:
WHETHER THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE
ERROR AND DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN
ACCORDANCE WITH LAW AND THE APPLICABLE DECISIONS OF THE
HONORABLE COURT WHEN IT UPHELD THE ADMISSION OF
INCOMPETENT AND INADMISSIBLE EVIDENCE BY RESPONDENT BOARD,
WHICH CAN RESULT IN THE DEPRIVATION OF PROFESSIONAL LICENSE
A PROPERTY RIGHT OR ONES LIVELIHOOD.[4]
We find no reason to depart from the ruling of the CA.
Petitioner is correct when he asserts that a petition for certiorari is the proper remedy
to assail the Orders of the BOM, admitting in evidence the exhibits of Editha. As the
assailed Orders were interlocutory, these cannot be the subject of an appeal separate
from the judgment that completely or finally disposes of the case.[5] At that stage,
where there is no appeal, or any plain, speedy, and adequate remedy in the ordinary
course of law, the only and remaining remedy left to petitioner is a petition for
certiorari under Rule 65 of the Rules of Court on the ground of grave abuse of
discretion amounting to lack or excess of jurisdiction.
However, the writ of certiorari will not issue absent a showing that the BOM has acted
without or in excess of jurisdiction or with grave abuse of discretion. Embedded in the
CAs finding that the BOM did not exceed its jurisdiction or act in grave abuse of
discretion is the issue of whether the exhibits of Editha contained in her Formal Offer
of Documentary Evidence are inadmissible.
Petitioner argues that the exhibits formally offered in evidence by Editha: (1) violate
the best evidence rule; (2) have not been properly identified and authenticated; (3) are
completely hearsay; and (4) are incompetent to prove their purpose. Thus, petitioner
contends that the exhibits are inadmissible evidence.
WE DISAGREE.
To begin with, it is well-settled that the rules of evidence are not strictly applied in
proceedings before administrative bodies such as the BOM.[6] Although trial courts
are enjoined to observe strict enforcement of the rules of evidence,[7] in connection
with evidence which may appear to be of doubtful relevancy, incompetency, or
admissibility, we have held that:
[I]t is the safest policy to be liberal, not rejecting them on doubtful or technical
grounds, but admitting them unless plainly irrelevant, immaterial or incompetent, for
the reason that their rejection places them beyond the consideration of the court, if they
are thereafter found relevant or competent; on the other hand, their admission, if they
turn out later to be irrelevant or incompetent, can easily be remedied by completely
discarding them or ignoring them.[8]
From the foregoing, we emphasize the distinction between the admissibility of
evidence and the probative weight to be accorded the same pieces of evidence. PNOC
Shipping and Transport Corporation v. Court of Appeals[9] teaches: Admissibility of
evidence refers to the question of whether or not the circumstance (or evidence) is to
be considered at all. On the other hand, the probative value of evidence refers to the
question of whether or not it proves an issue.
Second, petitioners insistence that the admission of Edithas exhibits violated his
substantive rights leading to the loss of his medical license is misplaced. Petitioner
mistakenly relies on Section 20, Article I of the Professional Regulation Commission
Rules of Procedure, which reads
Section 20. Administrative investigation shall be conducted in accordance with these
Rules. The Rules of Court shall only apply in these proceedings by analogy or on a
suppletory character and whenever practicable and convenient. Technical errors in the
admission of evidence which do not prejudice the substantive rights of either party
shall not vitiate the proceedings.[10]
As pointed out by the appellate court, the admission of the exhibits did not prejudice
the substantive rights of petitioner because, at any rate, the fact sought to be proved
thereby, that the two kidneys of Editha were in their proper anatomical locations at the
time she was operated on, is presumed under Section 3, Rule 131 of the Rules of Court:
Sec. 3. Disputable presumptions. The following presumptions are satisfactory if
uncontradicted, but may be contradicted and overcome by other evidence:
xxxx
(y) That things have happened according to the ordinary course of nature and the
ordinary habits of life.
The exhibits are certified photocopies of X-ray Request Forms dated December 12,
1996, January 30, 1997, March 16, 1996, and May 20, 1999, filed in connection with
Edithas medical case. The documents contain handwritten entries interpreting the
results of the examination. These exhibits were actually attached as annexes to Dr.
Pedro Lantin IIIs counter affidavit filed with the Office of the City Prosecutor of Pasig
City, which was investigating the criminal complaint for negligence filed by Editha
against the doctors of Rizal Medical Center (RMC) who handled her surgical
procedure. To lay the predicate for her case, Editha offered the exhibits in evidence to
prove that her kidneys were both in their proper anatomical locations at the time of her
operation.
The fact sought to be established by the admission of Edithas exhibits, that her kidneys
were both in their proper anatomical locations at the time of her operation, need not
be proved as it is covered by mandatory judicial notice.[11]
Unquestionably, the rules of evidence are merely the means for ascertaining the truth
respecting a matter of fact.[12] Thus, they likewise provide for some facts which are
established and need not be proved, such as those covered by judicial notice, both
mandatory and discretionary.[13] Laws of nature involving the physical sciences,
specifically biology,[14] include the structural make-up and composition of living
things such as human beings. In this case, we may take judicial notice that Edithas
kidneys before, and at the time of, her operation, as with most human beings, were in
their proper anatomical locations
Third, contrary to the assertion of petitioner, the best evidence rule is inapplicable.
Section 3 of Rule 130 provides:
1. Best Evidence Rule
Sec. 3. Original document must be produced; exceptions. When the subject of
inquiry is the contents of a document, no evidence shall be admissible other
than the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in
court, without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against
whom the evidence is offered, and the latter fails to produce it after reasonable
notice;
(c) When the original consists of numerous accounts or other documents which
cannot be examined in court without great loss of time and the fact sought to
be established from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is
recorded in a public office.
The subject of inquiry in this case is whether respondent doctors before the BOM are
liable for gross negligence in removing the right functioning kidney of Editha instead
of the left non-functioning kidney, not the proper anatomical locations of Edithas
kidneys. As previously discussed, the proper anatomical locations of Edithas kidneys
at the time of her operation at the RMC may be established not only through the
exhibits offered in evidence.
Finally, these exhibits do not constitute hearsay evidence of the anatomical locations
of Edithas kidneys. To further drive home the point, the anatomical positions, whether
left or right, of Edithas kidneys, and the removal of one or both, may still be established
through a belated ultrasound or x-ray of her abdominal area.
In fact, the introduction of secondary evidence, such as copies of the exhibits, is
allowed.[15] Witness Dr. Nancy Aquino testified that the Records Office of RMC no
longer had the originals of the exhibits because [it] transferred from the previous
building, x x x to the new building.[16] Ultimately, since the originals cannot be
produced, the BOM properly admitted Edithas formal offer of evidence and, thereafter,
the BOM shall determine the probative value thereof when it decides the case.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in
CA-G.R. SP No. 87755 is AFFIRMED. Costs against petitioner.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 163753 January 15, 2014
DR. ENCARNACION C. LUMANTAS, M.D., Petitioner, vs. HANZ CALAPIZ,
REPRESENTED BY HIS PARENTS, HILARIO CALAPIZ, JR. and HERLITA
CALAPIZ, Respondent.
DECISION
BERSAMIN, J.:
The acquittal of the accused does not necessarily mean his absolution from civil
liability.
The Case
In this appeal, an accused desires the reversal of the decision promulgated on February
20, 2003,1 whereby the Court of Appeals (CA) affirmed the judgment rendered on
August 6, 1999 by the Regional Trial Court (RTC), Branch 13, in Oroquieta City
ordering him to pay moral damages despite his acquittal of the crime of reckless
imprudence resulting in serious physical injuries charged against him.2
Antecedents
On January 16, 1995, Spouses Hilario Calapiz, Jr. and Herlita Calapiz brought their 8-
year-old son, Hanz Calapiz (Hanz), to the Misamis Occidental Provincial Hospital,
Oroquieta City, for an emergency appendectomy. Hanz was attended to by the
petitioner, who suggested to the parents that Hanz also undergo circumcision at no
added cost to spare him the pain. With the parents consent, the petitioner performed
the coronal type of circumcision on Hanz after his appendectomy. On the following
day, Hanz complained of pain in his penis, which exhibited blisters. His testicles were
swollen. The parents noticed that the child urinated abnormally after the petitioner
forcibly removed the catheter, but the petitioner dismissed the abnormality as normal.
On January 30, 1995, Hanz was discharged from the hospital over his parents
protestations, and was directed to continue taking antibiotics.
On February 8, 1995, Hanz was confined in a hospital because of the abscess formation
between the base and the shaft of his penis. Presuming that the ulceration was brought
about by Hanzs appendicitis, the petitioner referred him to Dr. Henry Go, an urologist,
who diagnosed the boy to have a damaged urethra. Thus, Hanz underwent cystostomy,
and thereafter was operated on three times to repair his damaged urethra.
When his damaged urethra could not be fully repaired and reconstructed, Hanzs
parents brought a criminal charge against the petitioner for reckless imprudence
resulting to serious physical injuries. On April 17, 1997, the information3 was filed in
the Municipal Trial Court in Cities of Oroquieta City (MTCC), to which the latter
pleaded not guilty on May 22, 1998.4 Under the order of April 30, 1999, the case was
transferred to the RTC pursuant to Supreme Court Circular No. 11-99.5
At the trial, the Prosecution presented several witnesses, including Dr. Rufino Agudera
as an expert witness and as the physician who had operated on Hanz twice to repair
the damaged urethra. Dr. Agudera testified that Hanz had been diagnosed to have
urethral stricture and cavernosal injury left secondary to trauma that had necessitated
the conduct of two operations to strengthen and to lengthen the urethra. Although
satisfactorily explaining that the injury to the urethra had been caused by trauma, Dr.
Agudera could not determine the kind of trauma that had caused the injury.
In his defense, the petitioner denied the charge. He contended that at the time of his
examination of Hanz on January 16, 1995, he had found an accumulation of pus at the
vicinity of the appendix two to three inches from the penis that had required immediate
surgical operation; that after performing the appendectomy, he had circumcised Hanz
with his parents consent by using a congo instrument, thereby debunking the parents
claim that their child had been cauterized; that he had then cleared Hanz on January
27, 1995 once his fever had subsided; that he had found no complications when Hanz
returned for his follow up check-up on February 2, 1995; and that the abscess
formation between the base and the shaft of the penis had been brought about by
Hanzs burst appendicitis.
Ruling of the RTC
In its decision rendered on August 6, 1999,6 the RTC acquitted the petitioner of the
crime charged for insufficiency of the evidence. It held that the Prosecutions evidence
did not show the required standard of care to be observed by other members of the
medical profession under similar circumstances. Nonetheless, the RTC ruled that the
petitioner was liable for moral damages because there was a preponderance of
evidence showing that Hanz had received the injurious trauma from his circumcision
by the petitioner. The decision disposed as follows:
WHEREFORE, for insufficiency of evidence, this court renders judgment
acquitting the accused, Dr. Encarnacion Lumantas, of reckless imprudence
resulting in serious physical injuries, but ordering him to pay Hanz Calapiz
P50,000.00 as moral damages. No costs.
SO ORDERED.
 Ruling of the CA
On appeal, the CA affirmed the RTC,7 sustaining the award of moral damages. It
opined that even if the petitioner had been acquitted of the crime charged, the acquittal
did not necessarily mean that he had not incurred civil liability considering that the
Prosecution had preponderantly established the sufferings of Hanz as the result of the
circumcision.
The petitioner moved for reconsideration, but the CA denied the motion on April 28,
2004.8 Hence, this appeal.
Issue
Whether the CA erred in affirming the petitioners civil liability despite his acquittal
of the crime of reckless imprudence resulting in serious physical injuries.
Ruling
The petition for review lacks merit.
It is axiomatic that every person criminally liable for a felony is also civilly liable.9
Nevertheless, the acquittal of an accused of the crime charged does not necessarily
extinguish his civil liability. In Manantan v. Court of Appeals,10 the Court elucidates
on the two kinds of acquittal recognized by our law as well as on the different effects
of acquittal on the civil liability of the accused, viz:
Our law recognizes two kinds of acquittal, with different effects on the civil liability
of the accused.1wphi1 First is an acquittal on the ground that the accused is not the
author of the act or omission complained of. This instance closes the door to civil
liability, for a person who has been found to be not the perpetrator of any act or
omission cannot and can never be held liable for such act or omission. There being no
delict, civil liability ex delicto is out of the question, and the civil action, if any, which
may be instituted must be based on grounds other than the delict complained of. This
is the situation contemplated in Rule 111 of the Rules of Court. The second instance
is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even
if the guilt of the accused has not been satisfactorily established, he is not exempt from
civil liability which may be proved by preponderance of evidence only.
The Rules of Court requires that in case of an acquittal, the judgment shall state
"whether the evidence of the prosecution absolutely failed to prove the guilt of the
accused or merely failed to prove his guilt beyond reasonable doubt. In either case, the
judgment shall determine if the act or omission from which the civil liability might
arise did not exist."11
Conformably with the foregoing, therefore, the acquittal of an accused does not
prevent a judgment from still being rendered against him on the civil aspect of the
criminal case unless the court finds and declares that the fact from which the civil
liability might arise did not exist.
Although it found the Prosecutions evidence insufficient to sustain a judgment of
conviction against the petitioner for the crime charged, the RTC did not err in
determining and adjudging his civil liability for the same act complained of based on
mere preponderance of evidence.12 In this connection, the Court reminds that the
acquittal for insufficiency of the evidence did not require that the complainants
recovery of civil liability should be through the institution of a separate civil action for
that purpose.13
The petitioners contention that he could not be held civilly liable because there was
no proof of his negligence deserves scant consideration. The failure of the Prosecution
to prove his criminal negligence with moral certainty did not forbid a finding against
him that there was preponderant evidence of his negligence to hold him civilly
liable.14 With the RTC and the CA both finding that Hanz had sustained the injurious
trauma from the hands of the petitioner on the occasion of or incidental to the
circumcision, and that the trauma could have been avoided, the Court must concur
with their uniform findings. In that regard, the Court need not analyze and weigh again
the evidence considered in the proceedings a quo. The Court, by virtue of its not being
a trier of facts, should now accord the highest respect to the factual findings of the trial
court as affirmed by the CA in the absence of a clear showing by the petitioner that
such findings were tainted with arbitrariness, capriciousness or palpable error.
Every person is entitled to the physical integrity of his body.1wphi1 Although we
have long advocated the view that any physical injury, like the loss or diminution of
the use of any part of ones body, is not equatable to a pecuniary loss, and is not
susceptible of exact monetary estimation, civil damages should be assessed once that
integrity has been violated. The assessment is but an imperfect estimation of the true
value of ones body. The usual practice is to award moral damages for the physical
injuries sustained.15 In Hanzs case, the undesirable outcome of the circumcision
performed by the petitioner forced the young child to endure several other procedures
on his penis in order to repair his damaged urethra. Surely, his physical and moral
sufferings properly warranted the amount of P50,000.00 awarded as moral damages.
Many years have gone by since Hanz suffered the injury. Interest of 6% per annum should then be imposed
on the award as a sincere means of adjusting the value of the award to a level that is not only reasonable but
just and commensurate. Unless we make the adjustment in the permissible manner by prescribing legal
interest on the award, his sufferings would be unduly compounded. For that purpose, the reckoning of
interest should be from the filing of the criminal information on April 17, 1997, the making of the judicial
demand for the liability of the petitioner.
WHEREFORE, the Court AFFIRMS the decision promulgated on February 20, 2003, with the
modification that legal interest of 6% per annum to start from April 17, 1997 is imposed on the award
of:P50,000.00 as moral damages; and ORDERS the petitioner to pay the costs of suit.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 163879 July 30, 2014
DR. ANTONIO P. CABUGAO, Petitioner, vs. PEOPLE OF THE PHILIPPINES
and SPOUSES RODOLFO M. PALMA and ROSARIO F. PALMA,
Respondents.
x-----------------------x
G.R. No. 165805
DR. CLENIO YNZON, Petitioner, vs. PEOPLE OF THE PHILIPPINES and
SPOUSES RODOLFO M. PALMA AND ROSARIO F. PALMA, Respondents.
DECISION
PERALTA, J.:
Before this Court are appeals via Rule 45 from the Decision1 dated June 4, 2004 of
the Court of Appeals in CA-G.R. CR No. 27293, affirming the Decision2 dated
February 28,2003 of the Regional Trial Court (RTC), convicting appellant Dr. Antonio
P. Cabugao (Dr. Cabugao) and Dr. Clenio Ynzon (Dr. Ynzon) of the crime of Reckless
Imprudence Resulting to Homicide.
The Information3 alleged
That on or about June 17, 2000in the City of Dagupan, Philippines, and within the
jurisdiction of this Honorable Court, the abovenamed accused, DR. ANTONIO
P.CABUGAO and DR. CLENIO YNZON, being then the attending physicians of one
RODOLFO PALMA, JR., a minor 10 years old, confederating and acting jointly with
one another, did, then and there, willfully, unlawfully and feloniously fail through
negligence, carelessness and imprudence to perform immediate operation upon their
patient, RODOLFO PALMA, JR. of acute appendicitis, when they, the said
physicians, should have been done so considering that examinations conducted upon
their patient Rodolfo Palma, Jr. seriously manifest to do so, causing by such
negligence, carelessness, and imprudence the victim, RODOLFO PALMA JR., to die
due to:
"CARDIORESPIRATORY ARREST, METABOLIC ENCEPHALOPATHY,
SEPTICEMIA (ACUTE APPENDICITIS), CEREBRAL ANEURYSM RUPTURED
(?)"
As per Certificate of Death issued by accused Dr. Antonio P. Cabugao, to the damage
and prejudice of the legal heirs of said deceased RODOLFO PALMA, JR. and other
consequential damages relative thereto.
CONTRARY to Article 365, 1st par. of the Revised Penal Code.
Dagupan City, Philippines, January 29, 2001.
Arising from the same events, the Court resolved to consolidate these cases.4 The
facts, as culled from the records, are as follows:
On June 14, 2000, at around 4 o'clock in the afternoon, ten (10)-year old Rodolfo F.
Palma, Jr. (JR) complained of abdominal pain to his mother, Rosario Palma. At 5
oclock that same afternoon, Palma's mother and father, Atty. Rodolfo Palma Sr.,
brought JR to the clinic of accused Dr. Cabugao. Dr. Cabugao, a general practitioner,
specializing in family medicine gave medicines for the pain and told Palma's parents
to call him up if his stomach pains continue. Due to persistent abdominal pains, at 4:30
in the early morning of June 15, 2000, they returned to Dr. Cabugao, who advised
them to bring JR to the Nazareth General Hospital in Dagupan City, for confinement.
JR was admitted at the said hospital at 5:30 in the morning.5
Blood samples were taken from JR for laboratory testing. The complete blood count
conveyed the following result: wbc 27.80 x 10 9/L; lymphocytes 0.10 and
neutrophils 0.90. Diagnostic ultrasound was likewise conducted on the patient's
lower abdomen by radiologist, Dr. Ricky V. Querubin, with the following findings:
Normal liver, bile ducts, gallbladder, pancreas, spleen, kidneys and urinary bladder.
There is no free peritoneal fluid.
There is localized tenderness in the paraumbilical region, more so in the supra and
right paraumbilical areas.
There is a vague elongated hypoechoic focus in the right periumbilical region roughly
about 47 x 18 mm surrounded by undistended gas-filled bowels. This is suggestive of
an inflammatory process wherein appendiceal or periappendiceal pathology cannot be
excluded. Clinical correlation is essential."6
Dr. Cabugao did a rectal examination noting the following: "rectal: good sphincter,
negative tenderness, negative mass." The initial impression was Acute Appendicitis,7
and hence, he referred the case to his co-accused, Dr. Ynzon, a surgeon.8 In the later
part of the morning of June 15, 2000, Dr. Ynzon went to the hospital and readthe CBC
and ultrasound results. The administration of massive antibiotics and pain reliever to
JR were ordered. Thereafter, JR was placed on observation for twenty-four (24) hours.
In the morning of June 16, 2000, JR complained again of abdominal pain and his
parents noticed a swelling in his scrotum. In the afternoon of the same day, JR vomited
out greenish stuff three (3) times and had watery bowels also three (3) times. The
nurses on-duty relayed JR's condition to Dr. Ynzon who merely gave orders via
telephone.9 Accused continued medications to alleviate JR's abdominal spasms and
diarrhea. By midnight, JR again vomited twice, had loose bowel movements and was
unable to sleep. The following morning, June 17,2000, JR's condition worsened, he
had a running fever of 38C. JR's fever remained uncontrolled and he became
unconscious, he was given Aeknil (1 ampule) and Valium (1 ampule). JR's condition
continued to deteriorate that by 2 o'clock in the afternoon, JR's temperature soared to
42C, had convulsions and finally died.
The Death Certificate10 dated June 19, 2000 prepared by Dr. Cabugao indicated the
following causes of death:
Immediate cause: CARDIORESPIRATORY ARREST
Antecedent cause: METABOLIC ENCEPHALOPATHY
Underlying cause: SEPTICEMIA (ACUTE APPENDICITIS)
Other significant conditions contributing to death:
CEREBRAL ANEURYSM RUPTURED (?)
No post-mortem examination was conducted on JR. On February 1, 2001, an
Information was filed against accused for reckless imprudence resulting to homicide.
At their arraignment, both accused, duly assisted by counsel, pleaded not guilty to the
charge.
On February 28, 2003, in convicting both the accused, the trial court found the
following circumstances as sufficient basis to conclude that accused were indeed
negligent in the performance of their duties:
It is unquestionable that JR was under the medical care of the accused from the time
of his admission for confinement at the Nazareth General Hospital until his death.
Upon his admission, the initial working diagnosis was to consider acute appendicitis.
To assist the accused in the consideration of acute appendicitis, Dr. Cabugao requested
for a complete blood count (CBC) and a diagnostic ultrasound on JR. The findings of
the CBC and ultrasound showed that an inflammatory process or infection was going
on inside the body of JR. Said inflammatory process was happening in the
periumbilical region where the appendix could be located. The initial diagnosis of
acute appendicitis appears to be a distinct possibility. x x x.
Dr. Ynzon ordered medications to treat the symptoms being manifested by JR.
Thereafter, he ordered that JR be observed for 24 hours. However, the accused, as the
attending physicians, did not personally monitor JR in order to check on subtle changes
that may occur. Rather, they left the monitoring and actual observation to resident
physicians who are just on residency training and in doing so, they substituted their
own expertise, skill and competence with those of physicians who are merely new
doctors still on training. Not having personally observed JR during this 24-hour critical
period of observation, the accused relinquished their duty and thereby were unable to
give the proper and correct evaluation as to the real condition of JR. In situations where
massive infection is going on as shown by the aggressive medication of antibiotics,
the condition of the patient is serious which necessitated personal, not delegated,
attention of attending physicians, namely JR and the accused in this case.
xxxx
Throughout the course of the hospitalization and treatment of JR, the accused failed to
address the acute appendicitis which was the initial diagnosis. They did not take steps
to find out if indeed acute appendicitis was what was causing the massive infection
that was ongoing inside the body of JR even when the inflammatory process was
located at the paraumbilical region where the appendix can be located. x x x
There may have been other diseases but the records do not show that the accused took
steps to find ou twhat disease exactly was plaguing JR. It was their duty to find out the
disease causing the health problem of JR, but they did not perform any process of
elimination. Appendicitis, according to expert testimonies, could be eliminated only
by surgery but no surgery was done by the accused. But the accused could not have
found out the real disease of JR because they were treating merely and exclusively the
symptoms by means of the different medications to arrest the manifested symptoms.
In fact, by treating the symptoms alone, the accused were recklessly and wantonly
ignoring the same as signs of the graver health problem of JR. This gross negligence
on the part of the accused allowed the infection to spread inside the body of JR
unabated. The infection obviously spread so fast and was so massive that within a
period of only two and a half (2 ) days from the day of admission to the hospital on
June 15, 2000, JR who was otherwise healthy died [of] Septicemia (Acute
Appendicitis) on June 17, 2000.11
On June 4, 2004, in affirming the accused' conviction, the Court of Appeals gave
similar observations, to wit:
The foregoing expert testimony clearly revealed such want of reasonable skill and care
on the part of JR's attending physicians, appellants Dr. Cabugao and Dr. Ynzon in
neglecting to monitor effectively and sufficiently the developments/changes during the
observation period and act upon the situation after said 24-hour period when his
abdominal pain subsisted, his condition even worsened with the appearance of more
serious symptoms of nausea, vomiting and diarrhea. Considering the brief visit only
made on regular rounds, the records clearly show such gross negligence in failing to
take appropriate steps to determine the real cause of JR's abdominal pain so that the
crucial decision to perform surgery (appendectomy) had even been ruled out precisely
because of the inexcusable neglect to undertake such efficient diagnosis by process of
elimination, as correctly pointed out by the trial court. As has been succinctly
emphasized by Dr. Mateo, acute appendicitis was the working diagnosis, and with the
emergence of symptoms after the 24-hour observation (high fever, vomiting, diarrhea)
still, appellants ruled out surgery, not even considering exploratory laparoscopy. Dr.
Mateo also expressed the opinion that the decision to operate could have been made
after the result of the ultrasound test, considering that acute appendicitis was the initial
diagnosis by Dr. Cabugao after he had conducted a rectal examination.
Medical records buttress the trial court's finding that in treating JR, appellants have
demonstrated indifference and neglect of the patient's condition as a serious case.
Indeed, appendicitis remains a clinical emergency and a surgical disease, as correctly
underscored by Dr. Mateo, a practicing surgeon who has already performed over a
thousand appendectomy. In fact, appendectomy is the only rational therapy for acute
appendicitis; it avoids clinical deterioration and may avoid chronic or recurrent
appendicitis. Although difficult, prompt recognition and immediate treatment of the
disease prevent complications. Under the factual circumstances, the inaction, neglect
and indifference of appellants who, after the day of admission and after being apprised
of the ongoing infection from the CBC and initial diagnosis as acute appendicitis from
rectal examination and ultrasound test and only briefly visited JR once during regular
rounds and gave medication orders by telephone constitutes gross negligence leading
to the continued deterioration of the patient, his infection having spread in so fast a
pace that he died within just two and a half (2 ) days stay in the hospital. Authorities
state that if the clinical picture is unclear a short period of 4 to 6 hours of watchful
waiting and a CT scan may improve diagnostic accuracy and help to hasten diagnosis.
Even assuming that JR's case had an atypical presentation in view of the location of
his appendix, laboratory tests could have helped to confirm diagnosis, as Dr. Mateo
opined that the possibility of JR having a retrocecal appendicitis should have been a
strong consideration. Lamentably, however, as found by the trial court, appellants had
not taken steps towards correct diagnosis and demonstrated laxity even when JR was
already running a high fever in the morning of June 17, 2000 and continued vomiting
with diarrhea, his abdominal pain becoming more intense. This is the reason why
private complainants were not even apprised of the progress of appellants' diagnosis
appellants have nothing to report because they did nothing towards the end and merely
gave medications to address the symptoms.12
Thus, these appeals brought before this Court raising the following arguments:
I
WHETHER THE CAUSE OF ACCUSATION AS CONTAINED IN THE
INFORMATION IS "FAILURE TO PERFORM IMMEDIATE OPERATION UPON
THE PATIENT ROFOLFO PALMA JR. OF ACUTE APPENDICITIS;
II
WHETHER THE SUBJECT INFORMATION APPEARS TO HAVE ACCUSED
BOTH ACCUSED DOCTORS OF CONSPIRACY AND THE APPEALED
DECISION SEEMS TO HAVE TREATED BOTH ACCUSED DOCTORS TO BE
IN CONSPIRACY;
III
WHETHER PETITIONER DR. CABUGAO IS A GENERAL PRACTITIONER
(NOT A SURGEON) AND HAVE EXCLUDED SURGERY FROM THE LIMITS
OFHIS PRACTICE, AND IT WAS NOT AND NEVER HIS DUTY TO OPERATE
THE PATIENT RODOLFO PALMA JR., THAT WAS WHY HE REFERRED
SUBJECT PATIENT TO A SURGEON, DR. CLENIO YNZON;
IV
WHETHER THE DEFENSE NEVER STATED THAT THERE IS GUARANTEE
THAT DOING SURGERY WOULD HAVE SAVED THE PATIENT;
V
WHETHER THE WITNESSES FOR THE PROSECUTION INCLUDING
PROSECUTION'S EXPERT WITNESSES EVER DECLARED/TESTIFIED THAT
PETITIONER DR. CABUGAO HAD THE DUTY TO PERFORM IMMEDIATE
OPERATION ON RODOLFO PALMA, JR., AND THEY FAILED TO
STATE/SHOW THAT THE PROXIMATE CAUSE OF DEATH OF JR WAS
ACUTE APPENDICITIS;
VI
WHETHER THE EXPERT WITNESSES PRESENTED BY THE PROSECUTION
EVER QUESTIONED THE MANAGEMENT AND CARE APPLIED BY
PETITIONER DR. CABUGAO;
VII
WHETHER THE EXPERT WITNESSES PRESENTED BY THE DEFENSE ARE
UNANIMOUS IN APPROVING THE METHOD OF TREATMENT APPLIED BY
BOTH ACCUSED DOCTORS ON SUBJECT PATIENT, AND THEY
DECLARED/AFFIRMED THAT THEY WOULD FIRST PLACE SUBJECT THE
PATIENT UNDER OBSERVATION, AND WOULD NOT PERFORM
IMMEDIATE OPERATION;
VIII
WHETHER THE CONVICTION OF PETITIONER DR. YNZON WAS
ESTABLISHED WITH THE REQUIRED QUANTUM OF PROOF BEYOND
REASONABLE DOUBT THAT THE PATIENT WAS SPECIFICALLY
SUFFERING FROM AND DIED OF ACUTE APPENDICITIS; and
 IX
WHETHER THE FAILURE TO CONDUCT THE SPECIFIC SURGICAL
OPERATION KNOWN AS APPENDECTOMY CONSTITUTED CRIMINAL
NEGLIGENCE.
In a nutshell, the petition brought before this Court raises the issue of whether or not
petitioners' conviction of the crime of reckless imprudence resulting in homicide,
arising from an alleged medical malpractice, is supported by the evidence on record.
Worth noting is that the assigned errors are actually factual in nature, which as a
general rule, findings of fact of the trial court and the Court of Appeals are binding
and conclusive upon this Court, and we will not normally disturb such factual findings
unless the findings of the court are palpably unsupported by the evidence on record or
unless the judgment itself is based on misapprehension of facts. In the instant case, we
find the need to make certain exception.
AS TO DR. YNZON'S LIABILITY:
Reckless imprudence consists of voluntarily doing or failing to do, without malice, an
act from which material damage results by reason of an inexcusable lack of precaution
on the part of the person performing or failing to perform such act.13 The elements of
reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the
doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that
material damage results from the reckless imprudence; and (5) that there is inexcusable
lack of precaution on the part of the offender, taking into consideration his
employment or occupation, degree of intelligence, physical condition, and other
circumstances regarding persons, time and place.14
With respect to Dr. Ynzon, all the requisites of the offense have been clearly
established by the evidence on record. The court a quo and the appellate court were
one in concluding that Dr. Ynzon failed to observe the required standard of care
expected from doctors.
In the instant case, it was sufficiently established that to prevent certain death, it was
necessary to perform surgery on JR immediately. Even the prosecutions own expert
witness, Dr. Antonio Mateo,15 testified during cross-examination that he would
perform surgery on JR:
ATTY. CASTRO:
Q. Given these data soft non-tender abdomen, ambulatory, watery diarrhea, Exhibit C
which is the ultrasound result, with that laboratory would you operate the patient?
A Yes, I would do surgery.
Q And you should have done surgery with this particular case?"
A Yes, sir.16
xxxx
COURT:
Q You stated a while ago doctor that you are going to [do] surgery to the patient, why
doctor, if you are not going to do surgery, what will happen?
A If this would be appendicitis, the usual progress would be that it would be ruptured
and generalized peritonitis and eventually septicemia, sir.
Q What do you mean by that doctor?
A That means that infection would spread throughout the body, sir.
Q If unchecked doctor, what will happen?
A It will result to death.17
xxxx
Q And what would have you done if you entertain other considerations from the time
the patient was admitted?
A From the time the patient was admitted until the report of the sonologist, I would
have made a decision by then.
Q And when to decide the surgery would it be a particular exact time, would it be the
same for all surgeons?
A If you are asking acute appendicitis, it would be about 24 hours because acute
appendicitis is a 24-hour disease, sir.
Q. And would it be correct to say that it depends on the changes on the condition of
the patient?
A. Yes, sir.
Q. So, are you saying more than 24 hours when there are changes?
A. If there are changes in the patient pointing towards appendicitis then you have to
decide right there and then, sir.
Q. So if there are changes in the patient pointing to appendicitis?
A. It depends now on what you are trying to wait for in the observation period, sir.
Q. So precisely if the change is a condition which bring you in doubt that there is
something else other than appendicitis, would you extend over a period of 24 hours?
A. It depends on the emergent development, sir.
Q. That is the point, if you are the attending physician and there is a change not
pointing to appendicitis, would you extend over a period of 24 hours?
A. In 24 hours you have to decide, sir.
xxxx
Q. And that is based on the assessment of the attending physician?
A. Yes, sir.18
Dr. Mateo further testified on cross-examination:
ATTY. CASTRO:
Q: So you will know yourself, as far as the record is concerned, because if you will
agree with me, you did not even touch the patient?
A. Yes, I based my opinion on what is put on record, sir. The records show that after
the observation period, the abdominal pain is still there plus there are already other
signs and symptoms which are not seen or noted.
Q. But insofar as you yourself not having touched the abdomen of the patient, would
you give a comment on that?
A. Yes, based on the record, after 24 hours of observation, the pain apparently was
still there and there was more vomiting and there was diarrhea. In my personal opinion,
I think the condition of the patient was deteriorating.
Q. Even though you have not touched the patient?
A. I based on what was on the record, sir.19
From the foregoing, it is clear that if JRs condition remained unchecked it would
ultimately result in his death, as what actually happened in the present case. Another
expert witness for the defense, Dr. Vivencio Villaflor, Jr. testified on direct
examination that he would perform a personal and thorough physical examination of
the patient as frequent as every 4 to 6 hours, to wit:
ATTY. CASTRO:
Q. As an expert doctor, if you were faced with a history of abdominal pain with nausea,
vomiting, fever, anurecia (sic), elevated white blood cell count, physical examination
of a positive psoas sign, observation of the sonologist of abdominal tenderness and the
ultrasound findings of the probability of appendiceal (sic) pathology, what will you do
if you have faced these problems, Doctor?
A. I will examine the patient thoroughly and it will depend on my physical examination
and that is probably every 4 to 6 hours, sir.20
On cross-examination, Dr. Villaflor affirmed:
Cross Exam. By Atty. Marteja:
Q. x x x However, there are corrections and admissions made at that time, your Honor,
do I understand that T/C does not mean ruled out but rather to consider the matter?
A. Yes, now that I have seen the records of the patient, it says here, impression and
T/C means to consider the appendicitis.
Q. Isn't it that it is worth then to say that the initial working diagnosis on Rodolfo
Palma, Jr., otherwise known as JR, to whom I shall now refer to as JR, the primary
consideration then is acute appendicitis, is that correct to say Doctor?
A. I think so, that is the impression.
Q. x x x Now if it is to be considered as the primary consideration in the initial working
diagnosis, isn't it a fact that it has to be ruled out in order to consider it as not the
disease of JR?
A. Yes. Sir.
Q. Isn't it a fact thatto rule out acute appendicitis as not the disease of JR, surgery or
operation must be done, isn't it Doctor?
A. You have to correlate all the findings.
Q. Is it yes or no, Doctor?
A. Yes.
Q. So, you are saying then that in order to rule out acute appendicitis there must be an
operation, that is right Doctor?
A. No, sir. If your diagnosis is to really determine if it is an acute appendicitis, you
have to operate.21
xxxx
Q. Now Doctor, considering the infection, considering that there was a [symptom] that
causes pain, considering that JR likewise was feverish and that he was vomiting, does
that not show a disease of acute appendicitis Doctor?
A. Its possible.
Q. So that if that is possible, are we getting the impression then Doctor what you have
earlier mentioned that the only way to rule out the suspect which is acute appendicitis
is by surgery, you have said that earlier Doctor, I just want any confirmation of it?
A. Yes, sir.22
Verily, whether a physician or surgeon has exercised the requisite degree of skill and
care in the treatment of his patient is, in the generality of cases, a matter of expert
opinion. The deference of courts to the expert opinions of qualified physicians stems
from its realization that the latter possess unusual technical skills which laymen in
most instances are incapable of intelligently evaluating.23 From the testimonies of the
expert witnesses presented, it was irrefutably proven that Dr. Ynzon failed to practice
that degree of skill and care required in the treatment of his patient.
As correctly observed by the appellate court, Dr. Ynzon revealed want of reasonable
skill and care in attending to the needs of JR by neglecting to monitor effectively the
developments and changes on JR's condition during the observation period, and to act
upon the situation after the 24-hour period when his abdominal pain persisted and his
condition worsened. Lamentable, Dr. Ynzon appeared to have visited JR briefly only
during regular rounds in the mornings. He was not there during the crucial times on
June 16, 2000 when JR's condition started to deteriorate until JR's death. As the
attending surgeon, he should be primarily responsible in monitoring the condition of
JR, as he is in the best position considering his skills and experience to know if the
patient's condition had deteriorated. While the resident-doctors-on duty could likewise
monitor the patients condition, he is the one directly responsible for the patient as the
attending surgeon. Indeed, it is reckless and gross negligence of duty to relegate his
personal responsibility to observe the condition of the patient. Again, acute
appendicitis was the working diagnosis, and with the emergence of graver symptoms
after the 24-hour observation, Dr. Ynzon ruled out surgery for no apparent reason. We,
likewise, note that the records are devoid of showing of any reasonable cause which
would lead Dr. Ynzon to overrule appendectomy despite the initial diagnosis of
appendicitis. Neitherwas there any showing that he was entertaining another diagnosis
nor he took appropriate steps towards another diagnosis.
Among the elements constitutive of reckless imprudence, what perhaps is most central
to a finding of guilt is the conclusive determination that the accused has exhibited, by
his voluntary act without malice, an inexcusable lack of precaution. It is that which
supplies the criminal intent so indispensable as to bring an act of mere negligence and
imprudence under the operation of the penal law. This is because a conscious
indifference to the consequences of the conduct is all that is required from the
standpoint of the frame of mind of the accused.24 Quasi offenses penalize the mental
attitude or condition behind the act, the dangerous recklessness, the lack of care or
foresight, the "imprudencia punible," unlike willful offenses which punish the
intentional criminal act.25 This is precisely where this Court found Dr. Ynzon to be
guilty of - his seemingly indifference to the deteriorating condition of JR that he as a
consequence, failed to exercise lack of precaution which eventually led to JR's death.
To be sure, whether or not a physician has committed an "inexcusable lack of
precaution" in the treatment of his patient is to be determined according to the standard
of care observed by other members of the profession in good standing under similar
circumstances bearing in mind the advanced state of the profession at the time of
treatment or the present state of medical science. In accepting a case, a doctor in effect
represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in
the treatment of his patients. He, therefore, has a duty to use at least the same level of
care that any other reasonably competent doctor would use to treat a condition under
the same circumstances.26 Sadly, Dr. Ynzon did not display that degree of care and
precaution demanded by the circumstances.
AS TO DR. CABUGAO'S LIABILITY:
Every criminal conviction requires of the prosecution to prove two things the fact
of the crime, i.e., the presence of all the elements of the crime for which the accused
stands charged, and the fact that the accused is the perpetrator of the crime. Based on
the above disquisitions, however, the prosecution failed to prove these two things. The
Court is not convinced with moral certainty that Dr. Cabugao is guilty of reckless
imprudence as the elements thereof were not proven by the prosecution beyond a
reasonable doubt.
Both the trial court and the appellate court bewail the failure to perform appendectomy
on JR, or the failure to determine the source of infection which caused the deterioration
of JR's condition. However, a review of the records fail to show that Dr. Cabugao is
in any position to perform the required appendectomy.
Immediately apparent from a review of the records of this case is the fact that Dr.
Cabugao is not a surgeon, but a general practitioner specializing in family medicine;27
thus, even if he wanted to, he cannot do an operation, much less an appendectomy on
JR. It is precisely for this reason why he referred JR to Dr. Ynzon after he suspected
appendicitis. Dr. Mateo, the prosecutions expert witness, emphasized the role of the
surgeon during direct examination, to wit:
ATTY. MARTEJA:
Q. You had mentioned that under this circumstances and condition, you have
mentioned that surgery is the solution, would you have allowed then a 24 hour
observation?
A. If there is a lingering doubt, in short period of observation of 18-24 hours can be
allowed provided that there would be close monitoring of the patient, sir.
Q. Would you please tell us who would be doing the monitoring doctor?
A. The best person should be the first examiner, the best surgeon, sir.
Q. So that would you say that it is incumbent on the surgeon attending to the case to
have been the one to observe within the period of observation?
A. Yes, because he will be in the best position to observe the sudden changes in the
condition of the patient, sir.
Q. And how often would in your experience doctor, how often would the surgeon re-
assist (sic) the condition of the patient during the period of observation?
A. Most foreign authors would recommend every four (4) hours, some centers will
recommend hourly or every two hours but here in the Philippines, would recommend
for 4 to 6 hours, sir.28
Dr. Cabugaos supervision does not cease upon his endorsement of his patient to the
surgeon. Here, Dr. Cabugao has shown to have exerted all efforts to monitor his patient
and under these circumstances he did not have any cause to doubt Dr. Ynzons
competence and diligence. Expert testimonies have been offered to prove the
circumstances surrounding the case of JR and the need to perform an operation.
Defense witness, Dr. Villaflor, on cross examination testified, to wit:
Q. Isn't it a fact that to rule out acute appendicitis as not the disease of JR, surgery or
operation must be done, isn't it Doctor?
A. You have to [correlate] all the findings.
Q. Is it yes or no, Doctor?
A. Yes.
Q. So, you are saying then that in order to rule out acute appendicitis there must be an
operation, that is right Doctor?
A. No, sir. If your diagnosis is to really determine if it is an acute appendicitis, you
have to operate.29
xxxx
Q. Now Doctor, considering the infection, considering that there was a [symptom] that
causes pain, considering that JR likewise was feverish and that he was vomiting, does
that not show a disease of acute appendicitis Doctor?
A. Its possible.
Q. So that if that is possible, are we getting the impression then Doctor what you have
earlier mentioned that the only way to rule out the suspect which is acute appendicitis
is by surgery, you have said that earlier Doctor, I just want any confirmation of it?
A. Yes, sir.30
Neither do we find evidence that Dr. Cabugao has been negligent or lacked the
necessary precaution in his performance of his duty as a family doctor. On the contrary,
a perusal of the medical records would show that during the 24-hour monitoring on
JR, it was Dr. Cabugao who frequently made orders on the administration of antibiotics
and pain relievers. There was also repetitive instructions from Dr. Cabugao to refer JR
to Dr. Ynzon as it appeared that he is suspecting appendicitis. The referral of JR to Dr.
Ynzon, a surgeon, is actually an exercise of precaution as he knew that appendicitis is
not within his scope of expertise. This clearly showed that he employed the best of his
knowledge and skill in attending to JR's condition, even after the referral of JR to Dr.
Ynzon. To be sure, the calculated assessment of Dr. Cabugao to refer JR to a surgeon
who has sufficient training and experience to handle JRs case belies the finding that
he displayed inexcusable lack of precaution in handling his patient.31
We likewise note that Dr. Cabugao was out of town when JR's condition began to
deteriorate. Even so, before he left, he made endorsement and notified the resident-
doctor and nurses-on-duty that he will be on leave.
Moreover, while both appeared to be the attending physicians of JR during his hospital
confinement, it cannot be said that the finding of guilt on Dr. Ynzon necessitates the
same finding on the co-accused Dr. Cabugao. Conspiracy is inconsistent with the idea
of a felony committed by means of culpa.32 Thus, the accused-doctors to be found
guilty of reckless imprudence resulting in homicide, it must be shown that both
accused-doctors demonstrated an act executed without malice or criminal intent but
with lack of foresight, carelessness, or negligence. Noteworthy, the evidence on record
clearly points to the reckless imprudence of Dr. Ynzon; however, the same cannot be
said in Dr. Cabugao's case.
AS TO CIVIL LIABILITY
While this case is pending appeal, counsel for petitioner Dr. Ynzon informed the Court
that the latter died on December 23, 2011 due to "multi organ failure" as evidenced by
a copy of death certificate.33 Thus, the effect of death, pending appeal of his
conviction of petitioner Dr. Ynzon with regard to his criminal and pecuniary liabilities
should be in accordance to People v. Bayotas,34 wherein the Court laid down the rules
in case the accused dies prior to final judgment:
1. Death of the accused pending appeal of his conviction extinguishes his criminal
liability as well as the civil liability based solely thereon. As opined by Justice
Regalado, in this regard, "the death of the accused prior to final judgment terminates
his criminal liability and only the civil liability directly arising from and based solely
on the offense committed, i.e.,civil liability ex delictoin senso strictiore."
2. Corollarily, the claim for civil liability survives notwithstanding the death of
accused, if the same may also be predicated on a source of obligation other than delict.
Article 1157 of the Civil Code enumerates these other sources of obligation from
which the civil liability may arise as a result of the same act or omission:
a) Law
b) Contracts
c) Quasi-contracts
d) x x x x x x x x x
e) Quasi-delicts
3. Where the civil liability survives, as explained in Number 2 above, an action for
recovery therefor may be pursued but only by way of filing a separate civil action and
subject to Section 1, Rule 111 of the 1985 Rules on Criminal Procedure as amended.
This separate civil action may be enforced either against the executor/administrator or
the estate of the accused, depending on the source of obligation upon which the same
is based as explained above.
4. Finally, the private offended party need not fear a forfeiture of his right to file this
separate civil action by prescription, in cases where during the prosecution of the
criminal action and prior to its extinction, the private-offended party instituted together
therewith the civil action. In such case, the statute of limitations on the civil liability
is deemed interrupted during the pendency of the criminal case, conformably with
provisions of Article 1155 of the Civil Code, that should thereby avoid any
apprehension on a possible privation of right by prescription.35
In view of the foregoing, it is clear that the death of the accused Dr. Ynzon pending
appeal of his conviction extinguishes his criminal liability. However, the recovery of
civil liability subsists as the same is not based on delict but by contract and the reckless
imprudence he was guilty of under Article 365 of the Revised Penal Code.1wphi1
For this reason, a separate civil action may be enforced either against the
executor/administrator or the estate of the accused, depending on the source of
obligation upon which the same is based,36 and in accordance with Section 4, Rule
111 of the Rules on Criminal Procedure, we quote:
Sec. 4. Effect of death on civil actions. The death of the accused after arraignment
and during the pendency of the criminal action shall extinguish the civil liability
arising from the delict. However, the independent civil action instituted under section
3 of this Rule or which thereafter is instituted to enforce liability arising from other
sources of obligation may be continued against the estate or legal representative of the
accused after proper substitution or against said estate, as the case may be. The heirs
of the accused may be substituted for the deceased without requiring the appointment
of an executor or administrator and the court may appoint a guardian ad litem for the
minor heirs.
The court shall forthwith order said legal representative or representatives to appear
and be substituted within a period of thirty (30) days from notice.
A final judgment entered in favor of the offended party shall be enforced in the manner
especially provided in these rules for prosecuting claims against the estate of the
deceased.
If the accused dies before arraignment, the case shall be dismissed without prejudice
to any civil action the offended party may file against the estate of the deceased.
(Emphases ours)
In sum, upon the extinction of the criminal liability and the offended party desires to
recover damages from the same act or omission complained of, the party may file a
separate civil action based on the other sources of obligation in accordance with
Section 4, Rule 111.37 If the same act or omission complained of arises from quasi-
delict, as in this case, a separate civil action must be filed against the executor or
administrator of the estate of the accused, pursuant to Section 1, Rule 87 of the Rules
of Court:38
Section 1. Actions which may and which may not be brought against executor or
administrator. No action upon a claim for the recovery of money or debtor interest
thereon shall be commenced against the executor or administrator; but to recover real
or personal property, or an interest therein, from the estate, or to enforce a lien thereon,
and actions to recover damages for an injury to person or property, real or personal,
may be commenced against him. (Emphases ours)
Conversely, if the offended party desires to recover damages from the same act or
omission complained of arising from contract, the filing of a separate civil action must
be filed against the estate, pursuant to Section 5, Rule 86 of the Rules of Court, to wit:
Section 5. Claims which must be filed under the notice. If not filed, barred; exceptions.
All claims for money against the decent, arising from contract, express or implied,
whether the same be due, not due, or contingent, all claims for funeral expenses and
expense for the last sickness of the decedent, and judgment for money against the
decent, must be filed within the time limited in the notice; otherwise they are barred
forever, except that they may be set forth as counterclaims in any action that the
executor or administrator may bring against the claimants. Where an executor or
administrator commences an action, or prosecutes an action already commenced by
the deceased in his lifetime, the debtor may set forth by answer the claims he has
against the decedent, instead of presenting them independently to the court as herein
provided, and mutual claims may be set off against each other in such action; and if
final judgment is rendered in favor of the defendant, the amount so determined shall
be considered the true balance against the estate, as though the claim had been
presented directly before the court in the administration proceedings. Claims not yet
due, or contingent, may be approved at their present value.

As a final note, we reiterate that the policy against double recovery requires that only
one action be maintained for the same act or omission whether the action is brought
against the executor or administrator, or the estate.39 The heirs of JR must choose
which of the available causes of action for damages they will bring.

WHEREFORE, premises considered, petitioner DR. ANTONIO P. CABUGAO is

hereby ACQUITTED of the crime of reckless imprudence resulting to homicide.

Due to the death of accused Dr. Clenio Ynzon prior to the disposition of this case, his
criminal liability is extinguished; however, his civil liability subsists. A separate civil
action may be filed either against the executor/administrator, or the estate of Dr.
Ynzon, depending on the source of obligation upon which the same are based.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 192973 September 29, 2014
PEDRITO DELA TORRE, Petitioner, vs. DR. ARTURO IMBUIDO, DRA.
NORMA IMBUIDO in their capacity as owners and operators of DIVINE
SPIRIT GENERAL HOSPITAL and/or DR. NESTOR PASAMBA, Respondents.
RESOLUTION
REYES, J.:
This resolves the petition for review on certiorari1 filed by petitioner Pedrito Dela
Torre (Pedrito) assailing the Decision2 dated December 15, 2009 and Resolution3
dated July 27, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 78534.
The case stemmed from a complaint4 for damages filed by Pedrito against herein
respondents Dr. ArturoImbuido and Dr. Norma Imbuido (Dr. Norma), in their capacity
as the ownersand operators of the Divine Spirit General Hospital in Olongapo City,
and Dr. Nestor Pasamba (Dr. Nestor) (respondents). Pedrito alleged in his complaint
that he was married to one Carmen Castillo Dela Torre(Carmen), who died while
admitted at the Divine Spirit General Hospital on February 13, 1992. Carmen was due
to give birth on February 2,1992 and was brought at around 11:30 p.m. on that day by
Pedrito to the Divine Spirit General Hospital. When Carmen still had not delivered her
baby at the expected time, Dr. Norma discussed with Pedrito the possibility of a
caesarean section operation.5
At around 3:00 p.m. on February 3, 1992, Carmen was brought to the hospitals
operating room for her caesarian section operation, which was to be performed by Dr.
Nestor. By 5:30 p.m. of the same day, Pedrito was informed of his wifes delivery of
a baby boy. In the early morning of February 4, 1992, Carmen experienced abdominal
pain and difficulty in urinating. She was diagnosed to be suffering from urinary tract
infection (UTI), and was prescribed medications by Dr. Norma. On February 10, 1992,
Pedrito noticed that Carmens stomach was getting bigger, but Dr. Norma dismissed
the patients condition as mere flatulence (kabag).6
When Carmens stomach still grewbigger despite medications, Dr. Norma advised
Pedrito of the possibility of a second operation on Carmen. Dr. Norma, however,
provided no detailson its purpose and the doctor who would perform it. At around 3:00
p.m. on February 12, 1992, Carmen had her second operation. Later in the evening,
Dr. Norma informed Pedrito that "everything was going on fine with [his] wife." 7
The condition of Carmen, however, did not improve. It instead worsened that on
February 13, 1992, she vomited dark red blood. At 9:30 p.m. on the same day, Carmen
died.8 Per her certificate of death upon information provided by the hospital,the
immediate cause of Carmens death was "cardio-respiratory arrest secondary to
cerebro vascular accident, hypertension and chronic nephritis induced by pregnancy." 9
An autopsy Report10 prepared by Dr. Richard Patilano(Dr. Patilano), Medico-Legal
Officer-Designate of Olongapo City, however, provided that the cause of Carmens
death was "shock due to peritonitis, severe, with multiple intestinal adhesions; Status
post C[a]esarian Section and Exploratory Laparotomy."
Pedrito claimed in his complaint that the respondents "failed to exercise the degree of
diligence required of them" as members of the medical profession, and were "negligent
for practicing surgery on [Carmen] in the most unskilled, ignorant and cruel manner,
x x x[.]"11
In their answer12 to the complaint, the respondents argued that they "observed the
required standard of medical care in attending to the needs of Carmen."13 The
respondents explained that Carmen was admitted in Divine Spirit General Hospital for
"pregnancy in labor and pre-eclampsia." Her condition was closely monitored during
her confinement. A caesarian section operation became necessary, as she manifested
no significant progress for the spontaneous delivery of her baby. 14 No unusual events
were observed during the course of Carmens caesarian section operation. The second
surgery, however, became necessary due to suspected intestinal obstruction and
adhesions. This procedure was fully explained to Carmen and Pedrito prior to its
conduct. During the second operation, the diagnosis of intestinal obstruction and
adhesion was confirmed but resolved by her doctors. Despite the observance of due
care by the doctors, however, Carmen died on February 13, 1992.15
The respondents included in their answer a counterclaim for P48,515.58 as unpaid
hospital charges, professional fees and medicines, P3,000,000.00 for moral damages,
P1,500,000.00 for exemplary damages, and attorneys fees. 16
After the pre-trial conference, trial proper ensued. To support his claim, Pedrito
presented the testimony of Dr. Patilano, the medicolegal officer who conducted an
autopsy on the body of Carmen upon a telephone request made by the City Health
Officer of Olongapo City, Dr. Generoso Espinosa. Among Dr. Patilanos observations,
as narrated in the lower courts decision, were as follows:
In the intestines, [Dr. Patilano] found outthat it was more reddish than the normal
condition which is supposed to bepinkish. There was presence of adhesions, meaning,
it sticks to each other and these areas were dilated. There were constricted areas. He
concluded that there might have been foreign organic matters in the intestines. He did
not see any swelling but assuming that there was, it would be concomitant to the
enlargement. x x x He came to the conclusion that the cause of death was peritonitis,
with the multiple adhesions status in the post caesarian section. In connection with
peritonitis, this is the inflammation of the abdomen. This peritonitis in the abdominal
cavity may be caused by several conditions which are supposed to be infections,
entrance of foreign bodies in the intestines in connection with ruptured peptic ulcer or
[may be] somewhere in the spleen. The entrance of foreign object in the abdominal
cavities may cause severe infections of the intra-abdominal cavities resulting [in]
multiple adhesions of the intestines. In cases of surgical operation, it [may be] due to
the conditions of the instruments used, the materials used in the operating room being
not aseptic and the ladies assisting the operation were not in uniform. x x x.17
Dr. Patilano claimed that peritonitis could have been prevented through proper medical
procedures and medicines. He also stated that if the cause of Carmens death was
actually cerebro-vascular accident, there would have been ruptured blood vessels and
blood clot in her head; but there were none in Carmens case. 18
Among those who testified to refutePedritos claim was Dr. Nestor. He claimed that
when Carmen was referred to him on February 3, 1992, she was in full term uterine
pregnancy, with pre-eclampsia, fetal distress and active labor pains. A caesarian
section operation became necessary to terminate the pregnancy for her safety. Carmen
was ready to go home four days after giving birth, but was advised by the doctors to
stay more because of her persistent hypertension.19
The second surgery performed on Carmen was necessary after she showed symptoms
of intestinal obstruction, which happens as the intestines get twisted due to adhesions
and the normal flow of intestinal contents are obstructed. For Dr. Nestor, this
occurrence was not preventable since any interference of the abdominal cavity would
irritate the serosa of the intestines, inviting adhesions that could cause obstruction.
Surgery could remedy the adhesions and obstruction.20 Both Carmen and Pedrito gave
their written consent to this second procedure.21
Dr. Bienvenido G. Torres (Dr. Torres), Chief of the Medico-Legal Division of the
Philippine National Police (PNP) Crime Laboratory Service, 22 also testified for the
respondents.He claimed that based on Dr. Patilanos report, vital internal organs of
Carmen, such as her brain, lungs, kidneys, liver and adrenal glands, were not examined
during the autopsy.23
On January 28, 2003, the Regional Trial Court (RTC) of Olongapo City, Branch 75,
rendered its Decision24 in favor of Pedrito. The trial court gave greater weight to the
testimony of Dr. Patilano and thus disposed of the case as follows:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the
plaintiff and against the defendants, ordering the latter to pay jointly and severally, the
former, the following sums of money, to wit:
1.) the sum of Php 28,759.46 as actual damages;
2.) the sum of Fifty Thousand (Php 50,000.00) Pesos as indemnity for the death
of Carmen dela Torre;
3.) the sum of Fifty Thousand (Php 50,000.00) Pesos as moral damages and the
further sum of Twenty Thousand (Php 20,000.00) Pesos as exemplary
damages;
4.) the sum of Twenty Thousand (Php 20,000.00) Pesos as attorneys fees; and
5.) the costs of [suit].
SO ORDERED.25
Dissatisfied with the RTC ruling, the respondents appealed to the CA. On December
15, 2009, the CA rendered its Decision reversing and setting aside the decision of the
RTC. For the appellate court, it was not established that the respondents failed to
exercisethe degree of diligence required of them by their profession as doctors. The
CA also granted the respondents counterclaim for the amount of P48,515.58, as it
held:
WHEREFORE, the Decision of the Regional Trial Court of Olongapo City dated
January 28, 2003 in Civil Case No. 165-0-92 is hereby REVERSED AND SET
ASIDE.
Plaintiff-appellee is directed to pay the unpaid balance for hospital bills, professional
fees and other expenses in the amount of [P]48,515.58.
SO ORDERED.26
Hence, this petition for review on certiorariin which Pedrito insists that the respondents
should be held liable for the death of Carmen.
The petition is denied.
"[M]edical malpractice or, more appropriately, medical negligence, is that type of
claim which a victim has available to him or her to redress a wrong committed by a
medical professionalwhich has caused bodily harm." In order to successfully pursue
such a claim, a patient, or his or her family as in this case, "must prove that a health
care provider, in most cases a physician, either failed to do something which a
reasonably prudent health care provider would have done, or that he or she did
something that a reasonably prudent provider would not have done; and that failure or
action caused injury to the patient." 27
The Court emphasized in Lucas, et al. v. Tuao28 that in medical negligence cases,
there is a physician-patient relationship between the doctor and the victim, but just like
in any other proceeding for damages, four essential elements must be established by
the plaintiff, namely: (1) duty; (2) breach; (3) injury; and (4) proximate causation. All
four elements must be present in order to find the physician negligent and, thus, liable
for damages.29
It is settled that a physicians duty tohis patient relates to his exercise of the degree of
care, skill and diligence which physicians in the same general neighborhood, and in
the same general line of practice, ordinarily possess and exercise in like cases. There
is breach of this duty when the patient is injured in body or in health. Proof of this
breach rests upon the testimony of an expert witness that the treatment accorded to the
patient failed to meet the standard level of care, skill and diligence. To justify an award
of damages, the negligence of the doctor must be established to be the proximate cause
of the injury.30
Through the instant petition, Pedritoseeks the reinstatement of the decision of the RTC
whose finding of the respondents medical negligence depended mainly on the
testimony of Dr. Patilano. Upon review, however, the Court agrees with the CA that
the report and testimony of Dr. Patilano failed to justify Pedritos entitlement to the
damages awarded by the RTC.
For the trial court to give weightto Dr. Patilanos report, it was necessary to show first
Dr. Patilanos specialization and competence to testify on the degree of care, skill and
diligence needed for the treatment of Carmens case. Considering that it was not duly
established that Dr. Patilano practiced and was an expert inthe fields that involved
Carmens condition, he could not have accurately identified the said degree of care,
skill, diligence and the medical procedures that should have been applied by her
attending physicians.
Similarly, such duty, degree of care, skill and diligence were not sufficiently
established in this case because the testimony of Dr. Patilano was based solely on the
results of his autopsy on the cadaver of Carmen. His study and assessment were
restrictedby limitations that denied his full evaluation of Carmens case. He could have
only deduced from the injuries apparent in Carmens body, and in the condition when
the body was examined. Judging from his testimony, Dr. Patilano did not even take
full consideration of the medical history of Carmen, her actual health condition at the
time of hospital admission, and her condition as it progressed while she was being
monitored and treated by the respondents. There was also no reference to the
respondents defense that the emergency caesarian section operation had to be
performed in order to protect the lives and safety of Carmen and her then unborn child.
For lack of sufficient information on Carmens health condition while still alive, Dr.
Patilano could not have fully evaluated the suitability of the respondents decisions in
handling Carmens medical condition as it turned critical.
On the other hand, the CA pointed out that Dr. Nestor, a surgeon, possessed the
reasonable degree of learning, skill and experience required by his profession for the
treatment ofCarmen. The respondents also emphasized in their pleadings beforethe
RTC that Dr. Nestor had his training and experience in surgery and obstetrics since
1970.1wphi1 Without sufficient proof from the claimant on a different degree of care,
skill and diligence that should be expected from the respondents, it could not be said
with certainty that a breachwas actually committed.
Moreover, while Dr. Patilano opined that Carmen died of peritonitis which could be
due to the poor state of the hospital equipment and medical supplies used during her
operation, there was no sufficient proof that any such fault actually attended the
surgery of Carmen, caused her illness and resulted in her death. It is also significant
that the Chief of the Medico-Legal Division of the PNP Crime Laboratory Service, Dr.
Torres, testified before the trial court that based on the autopsy report issued by Dr.
Patilano, the latter did not comply with the basic autopsy procedure when he examined
the cadaver of Carmen. Dr. Patilano did not appear to have thoroughly examined
Carmens vital organs such as her heart, lungs, uterus and brain during the autopsy.
His findings were then inconclusive on the issue of the actual cause of Carmen's death,
and the claim of negligence allegedly committed by the respondents.
As the Court held in Spouses Flores v. Spouses Pineda, et al.,31 the critical and
clinching factor in a medical negligence case is proof of the causal connection between
the negligence and the injuries. The claimant must prove not only the injury but also
the defendant's fault, and that such fault caused the injury. A verdict in a malpractice
action cannot be based on speculation or conjecture. Causation must be proven within
a reasonable medical probability based upon competent expert testimony,32 which the
Court finds absent in the case at bar. As regards the respondents' counterclaim, the
CA's award of P48,515.58 is sustained, considering that among the parties' stipulations
during the pre-trial indicated:
5. That at the time of the death of the patient Carmen C. dela Torrell there was an
unpaid balance for hospital bills, professional fees and other expenses in the amount
of P48,515.58, incurred by plaintiff when the patient was confined at said hospital
from February 3 to 13, 1992.33
WHEREFORE, the petition is DENIED. The Decision dated December 15, 2009 and
Resolution dated July 27, 2010 of the Court of Appeals in CA-G.R. CV No. 78534 are
AFFIRMED.
SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 192123 March 10, 2014
DR. FERNANDO P. SOLIDUM, Petitioner, vs. PEOPLE OF THE
PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
This appeal is taken by a physician-anesthesiologist who has been pronounced guilty
of reckless imprudence resulting in serious physical injuries by the Regional Trial
Court (RTC) and the Court of Appeals (CA). He had been part of the team of
anesthesiologists during the surgical pull-through operation conducted on a three-year
old patient born with an imperforate anus.1
The antecedents are as follows:
Gerald Albert Gercayo (Gerald) was born on June 2, 1992 2 with an imperforate anus.
Two days after his birth, Gerald underwent colostomy, a surgical procedure to bring
one end of the large intestine out through the abdominal wall, 3 enabling him to excrete
through a colostomy bag attached to the side of his body. 4
On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila
for a pull-through operation.5 Dr. Leandro Resurreccion headed the surgical team, and
was assisted by Dr. Joselito Luceo, Dr. Donatella Valea and Dr. Joseph Tibio. The
anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr.
Fernando Solidum (Dr. Solidum).6 During the operation, Gerald experienced
bradycardia,7 and went into a coma.8 His coma lasted for two weeks,9 but he regained
consciousness only after a month.10 He could no longer see, hear or move.11
Agitated by her sons helpless and unexpected condition, Ma. Luz Gercayo (Luz)
lodged a complaint for reckless imprudence resulting in serious physical injuries with
the City Prosecutors Office of Manila against the attending physicians. 12
Upon a finding of probable cause, the City Prosecutors Office filed an information
solely against Dr. Solidum,13 alleging:
That on or about May 17, 1995, in the City of Manila, Philippines, the said accused,
being then an anesthesiologist at the Ospital ng Maynila, Malate, this City, and as such
was tasked to administer the anesthesia on three-year old baby boy GERALD
ALBERT GERCAYO, represented by his mother, MA. LUZ GERCAYO, the former
having been born with an imperforate anus [no anal opening] and was to undergo an
operation for anal opening [pull through operation], did then and there willfully,
unlawfully and feloniously fail and neglect to use the care and diligence as the best of
his judgment would dictate under said circumstance, by failing to monitor and regulate
properly the levels of anesthesia administered to said GERALD ALBERT GERCAYO
and using 100% halothane and other anesthetic medications, causing as a consequence
of his said carelessness and negligence, said GERALD ALBERT GERCAYO suffered
a cardiac arrest and consequently a defect called hypoxic encephalopathy meaning
insufficient oxygen supply in the brain, thereby rendering said GERALD ALBERT
GERCAYO incapable of moving his body, seeing, speaking or hearing, to his damage
and prejudice.
Contrary to law.14
The case was initially filed in the Metropolitan Trial Court of Manila, but was
transferred to the RTC pursuant to Section 5 of Republic Act No. 8369 (The Family
Courts Act of 1997),15 where it was docketed as Criminal Case No. 01-190889.
Judgment of the RTC
On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond
reasonable doubt of reckless imprudence resulting to serious physical injuries, 16
decreeing:
WHEREFORE, premises considered, the Court finds accused DR.
FERNANDO P. SOLIDUM GUILTY beyond reasonable doubt as principal
of the crime charged and is hereby sentenced to suffer the indeterminate
penalty of TWO (2) MONTHS and ONE (1) DAY of arresto mayor as
minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of
prision correccional as maximum and to indemnify, jointly and severally
with the Ospital ng Maynila, Dr. Anita So and Dr. Marichu Abella, private
complainant Luz Gercayo, the amount of P500,000.00 as moral damages and
P100,000.00 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is
hereby CANCELLED.
SO ORDERED.17
Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary
liability,18 the RTC excluded them from solidary liability as to the damages, modifying
its decision as follows:
WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum,
guilty beyond reasonable doubt as principal of the crime charged and is hereby
sentenced to suffer the indeterminate penalty of two (2) months and one (1) day of
arresto mayor as minimum to one (1) year, one (1) month and ten (10) days of prision
correccional as maximum and to indemnify jointly and severally with Ospital ng
Maynila, private complainant Luz Gercayo the amount of P500,000.00 as moral
damages and P100,000 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is hereby
cancelled.19
Decision of the CA
On January 20, 2010, the CA affirmed the conviction of Dr. Solidum, 20 pertinently
stating and ruling:
The case appears to be a textbook example of res ipsa loquitur.
xxxx
x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major
operation. As noted by the OSG, the accused himself testified that pre-operation tests
were conducted to ensure that the child could withstand the surgery. Except for his
imperforate anus, the child was healthy. The tests and other procedures failed to reveal
that he was suffering from any known ailment or disability that could turn into a
significant risk. There was not a hint that the nature of the operation itself was a
causative factor in the events that finally led to hypoxia.
In short, the lower court has been left with no reasonable hypothesis except to attribute
the accident to a failure in the proper administration of anesthesia, the gravamen of the
charge in this case. The High Court elucidates in Ramos vs. Court of Appeals 321
SCRA 584
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.
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. 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.
The lower court has found that such a nexus exists between the act complained of and
the injury sustained, and in line with the hornbook rules on evidence, we will afford
the factual findings of a trial court the respect they deserve in the absence of a showing
of arbitrariness or disregard of material facts that might affect the disposition of the
case. People v. Paraiso 349 SCRA 335.
The res ipsa loquitur test has been known to be applied in criminal cases. Although it
creates a presumption of negligence, it need not offend due process, as long as the
accused is afforded the opportunity to go forward with his own evidence and prove
that he has no criminal intent. It is in this light not inconsistent with the constitutional
presumption of innocence of an accused.
IN VIEW OF THE FOREGOING, the modified decision of the lower court is
affirmed.
SO ORDERED.21
Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May
7, 2010.22
Hence, this appeal.
Issues
Dr. Solidum avers that:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
DECISION OF THE LOWER COURT IN UPHOLDING THE PETITIONERS
CONVICTION FOR THE CRIME CHARGED BASED ON THE TRIAL
COURTS OPINION, AND NOT ON THE BASIS OF THE FACTS
ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A CLEAR
MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT
TO THE ACQUITTAL OF THE PETITIONER. FURTHER, THE HONORABLE
COURT ERRED IN AFFIRMING THE SAID DECISION OF THE LOWER
COURT, AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT
 THE PROSECUTION MUST PROVE THE ALLEGATIONS OF THE
INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON THE
BASIS OF ITS PRESUMPTIVE CONCLUSION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE
PRINCIPLE OF RES IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE
TO PROVE THAT THERE IS NO NEGLIGENCE ON THE PART OF THE
PETITIONER, AND NO OVERDOSING IN THE APPLICATION OF THE
ANESTHETIC AGENT BECAUSE THERE WAS NO 100% HALOTHANE
ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND THE
APPLICATION THEREOF, WAS REGULATED BY AN ANESTHESIA
MACHINE. THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA
LOQUITOR (sic) CONTRADICTED THE ESTABLISHED FACTS AND THE
LAW APPLICABLE IN THE CASE.
III.
THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT
JUSTIFIED THERE BEING NO NEGLIGENCE ON THE PART OF THE
PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL
CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL ASSISTANCE,
BECAUSE THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF
ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE, AND
NO FACTUAL AND LEGAL BASIS.23
To simplify, the following are the issues for resolution, namely: (a) whether or not the
doctrine of res ipsa loquitur was applicable herein; and (b) whether or not Dr. Solidum
was liable for criminal negligence.
Ruling
The appeal is meritorious.
Applicability of the Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself."
The doctrine res ipsa loquitur means that "where the thing which causes injury is
shown to be under the management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care." 24 It 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. 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.
Hence, res ipsa loquitur is applied in conjunction with the doctrine of common
knowledge."25
Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law,
but merely a mode of proof or a mere procedural convenience. The doctrine, when
applicable to the facts and circumstances of a given case, is not meant to and does not
dispense with the requirement of proof of culpable negligence against the party
charged. It merely determines and regulates what shall be prima facie evidence thereof,
and helps the plaintiff in proving a breach of the duty. The doctrine can be invoked
when and only when, under the circumstances involved, direct evidence is absent and
not readily available.27
The applicability of the doctrine of res ipsa loquitur in medical negligence cases was
significantly and exhaustively explained in Ramos v. Court of Appeals, 28 where the
Court said
Medical malpractice 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. 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.
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. 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. 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. 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. 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. 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, injuries
sustained on a healthy part of the body which was not under, or in the area, of
treatment, removal of the wrong part of the body when another part was intended,
knocking out a tooth while a patients jaw was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, 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. 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. 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. Thus, res
ipsa loquitur is not available in a malpractice suit if the only showing is that the desired
result of an operation or treatment was not accomplished. 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. If there was such extraneous intervention, 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.
In order to allow resort to the doctrine, therefore, the following essential requisites
must first be satisfied, to wit: (1) the accident was of a kind that does not ordinarily
occur unless someone is negligent; (2) the instrumentality or agency that caused the
injury was under the exclusive control of the person charged; and (3) the injury
suffered must not have been due to any voluntary action or contribution of the person
injured.29
The Court considers the application here of the doctrine of res ipsa loquitur
inappropriate. Although it should be conceded without difficulty that the second and
third elements were present, considering that the anesthetic agent and the instruments
were exclusively within the control of Dr. Solidum, and that the patient, being then
unconscious during the operation, could not have been guilty of contributory
negligence, the first element was undeniably wanting. Luz delivered Gerald to the care,
custody and control of his physicians for a pull-through operation. Except for the
imperforate anus, Gerald was then of sound body and mind at the time of his
submission to the physicians. Yet, he experienced bradycardia during the operation,
causing loss of his senses and rendering him immobile. Hypoxia, or the insufficiency
of oxygen supply to the brain that caused the slowing of the heart rate, scientifically
termed as bradycardia, would not ordinarily occur in the process of a pull-through
operation, or during the administration of anesthesia to the patient, but such fact alone
did not prove that the negligence of any of his attending physicians, including the
anesthesiologists, had caused the injury. In fact, the anesthesiologists attending to him
had sensed in the course of the operation that the lack of oxygen could have been
triggered by the vago-vagal reflex, prompting them to administer atropine to the
patient.30
This conclusion is not unprecedented. It was similarly reached in Swanson v.
Brigham,31 relevant portions of the decision therein being as follows:
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital
for the treatment of infectious mononucleosis. The patient's symptoms had included a
swollen throat and some breathing difficulty. Early in the morning of January 9 the
patient was restless, and at 1:30 a.m. Dr. Brigham examined the patient. His inspection
of the patient's air passage revealed that it was in satisfactory condition. At 4:15 a.m.
Dr. Brigham received a telephone call from the hospital, advising him that the patient
was having respiratory difficulty. The doctor ordered that oxygen be administered and
he prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital called
a second time to advise the doctor that the patient was not responding. The doctor
ordered that a medicine be administered, and he departed for the hospital. When he
arrived, the physician who had been on call at the hospital had begun attempts to revive
the patient. Dr. Brigham joined him in the effort, but the patient died.
The doctor who performed the autopsy concluded that the patient died between 4:25
a.m. and 4:30 a.m. of asphyxia, as a result of a sudden, acute closing of the air passage.
He also found that the air passage had been adequate to maintain life up to 2 or 3
minutes prior to death. He did not know what caused the air passage to suddenly close.

xxxx
It is a rare occurrence when someone admitted to a hospital for the treatment of
infectious mononucleosis dies of asphyxiation. But that is not sufficient to invoke res
ipsa loquitur. The fact that the injury rarely occurs does not in itself prove that the
injury was probably caused by someone's negligence. Mason v. Ellsworth, 3 Wn. App.
298, 474 P.2d 909 (1970). Nor is a bad result by itself enough to warrant the
application of the doctrine. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953).
See 2 S. Speiser, The Negligence Case Res Ipsa Loquitur 24:10 (1972). The
evidence presented is insufficient to establish the first element necessary for
application of res ipsa loquitur doctrine. The acute closing of the patients air passage
and his resultant asphyxiation took place over a very short period of time. Under these
circumstances it would not be reasonable to infer that the physician was negligent.
There was no palpably negligent act. The common experience of mankind does not
suggest that death would not be expected without negligence. And there is no expert
medical testimony to create an inference that negligence caused the injury.
Negligence of Dr. Solidum
In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next
determines whether the CA correctly affirmed the conviction of Dr. Solidum for
criminal negligence.
Negligence is defined as the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigilance that the circumstances
justly demand, whereby such other person suffers injury. 32 Reckless imprudence, on
the other hand, consists of voluntarily doing or failing to do, without malice, an act
from which material damage results by reason of an inexcusable lack of precaution on
the part of the person performing or failing to perform such act.33
Dr. Solidums conviction by the RTC was primarily based on his failure to monitor
and properly regulate the level of anesthetic agent administered on Gerald by
overdosing at 100% halothane. In affirming the conviction, the CA observed:
On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the
findings and conclusions in his report except for an observation which, to all intents
and purposes, has become the storm center of this dispute. He wanted to correct one
piece of information regarding the dosage of the anesthetic agent administered to the
child. He declared that he made a mistake in reporting a 100% halothane and said that
based on the records it should have been 100% oxygen.
The records he was relying on, as he explains, are the following:
(a) the anesthesia record A portion of the chart in the record was marked as
Exhibit 1-A and 1-B to indicate the administration at intervals of the anesthetic
agent.
(b) the clinical abstract A portion of this record that reads as follows was
marked Exhibit 3A. 3B Approximately 1 hour and 45 minutes through the
operation, patient was noted to have bradycardia (CR = 70) and ATSO4 0.2 mg
was immediately administered. However, the bradycardia persisted, the
inhalational agent was shut off, and the patient was ventilated with 100% oxygen
and another dose of ATSO4 0.2 mg was given. However, the patient did not
respond until no cardiac rate can be auscultated and the surgeons were
immediately told to stop the operation. The patient was put on a supine position
and CPR was initiated. Patient was given 1 amp of epinephrine initially while
continuously doing cardiac massage still with no cardiac rate appreciated;
another ampule of epinephrine was given and after 45 secs, patients vital signs
returned to normal. The entire resuscitation lasted approximately 3-5 mins. The
surgeons were then told to proceed to the closure and the childs vital signs
throughout and until the end of surgery were: BP = 110/70; CR = 116/min and
RR = 20-22 cycles/min (on assisted ventilation).
Dr. Vertido points to the crucial passage in the clinical abstract that the patient was
ventilated with 100% oxygen and another dose of ATSO4 when the bradycardia
persisted, but for one reason or another, he read it as 100% halothane. He was asked
to read the anesthesia record on the percentage of the dosage indicated, but he could
only sheepishly note I cant understand the number. There are no clues in the clinical
abstract on the quantity of the anesthetic agent used. It only contains the information
that the anesthetic plan was to put the patient under general anesthesia using a
nonrebreathing system with halothane as the sole anesthetic agent and that 1 hour and
45 minutes after the operation began, bradycardia occurred after which the inhalational
agent was shut off and the patient administered with 100% oxygen. It would be
apparent that the 100% oxygen that Dr. Vertido said should be read in lieu of 100%
halothane was the pure oxygen introduced after something went amiss in the operation
and the halothane itself was reduced or shut off.
The key question remains what was the quantity of halothane used before
bradycardia set in?
The implication of Dr. Vertidos admission is that there was no overdose of the
anesthetic agent, and the accused Dr. Solidum stakes his liberty and reputation on this
conclusion. He made the assurance that he gave his patient the utmost medical care,
never leaving the operating room except for a few minutes to answer the call of nature
but leaving behind the other members of his team Drs. Abella and Razon to monitor
the operation. He insisted that he administered only a point 1% not 100% halothane,
receiving corroboration from Dr. Abella whose initial MA in the record should be
enough to show that she assisted in the operation and was therefore conversant of the
things that happened. She revealed that they were using a machine that closely
monitored the concentration of the agent during the operation.
But most compelling is Dr. Solidums interpretation of the anesthesia record itself, as
he takes the bull by the horns, so to speak. In his affidavit, he says, reading from the
record, that the quantity of halothane used in the operation is one percent (1%)
delivered at time intervals of 15 minutes. He studiedly mentions the concentration
of halothane as reflected in the anesthesia record (Annex D of the complaint-affidavit)
is only one percent (1%) The numbers indicated in 15 minute increments for
halothane is an indication that only 1% halothane is being delivered to the patient
Gerard Gercayo for his entire operation; The amount of halothane delivered in this
case which is only one percent cannot be summated because halothane is constantly
being rapidly eliminated by the body during the entire operation.
xxxx
In finding the accused guilty, despite these explanations, the RTC argued that the
volte-face of Dr. Vertido on the question of the dosage of the anesthetic used on the
child would not really validate the non-guilt of the anesthesiologist. Led to agree that
the halothane used was not 100% as initially believed, he was nonetheless unaware of
the implications of the change in his testimony. The court observed that Dr. Vertido
had described the condition of the child as hypoxia which is deprivation of oxygen, a
diagnosis supported by the results of the CT Scan. All the symptoms attributed to a
failing central nervous system such as stupor, loss of consciousness, decrease in heart
rate, loss of usual acuity and abnormal motor function, are manifestations of this
condition or syndrome. But why would there be deprivation of oxygen if 100% oxygen
to 1% halothane was used? Ultimately, to the court, whether oxygen or halothane was
the object of mistake, the detrimental effects of the operation are incontestable, and
they can only be led to one conclusion if the application of anesthesia was really
closely monitored, the event could not have happened.34
The Prosecution did not prove the elements of reckless imprudence beyond reasonable
doubt because the circumstances cited by the CA were insufficient to establish that Dr.
Solidum had been guilty of inexcusable lack of precaution in monitoring the
administration of the anesthetic agent to Gerald. The Court aptly explained in Cruz v.
Court of Appeals35 that:
Whether or not a physician has committed an "inexcusable lack of precaution" in the
treatment of his patient is to be determined according to the standard of care observed
by other members of the profession in good standing under similar circumstances
bearing in mind the advanced state of the profession at the time of treatment or the
present state of medical science. In the recent case of Leonila Garcia-Rueda v. Wilfred
L. Pacasio, et. al., this Court stated that in accepting a case, a doctor in effect represents
that, having the needed training and skill possessed by physicians and surgeons
practicing in the same field, he will employ such training, care and skill in the
treatment of his patients. He therefore has a duty to use at least the same level of care
that any other reasonably competent doctor would use to treat a condition under the
same circumstances. It is in this aspect of medical malpractice that expert testimony is
essential to establish not only the standard of care of the profession but also that the
physician's conduct in the treatment and care falls below such standard. Further,
inasmuch as the causes of the injuries involved in malpractice actions are determinable
only in the light of scientific knowledge, it has been recognized that expert testimony
is usually necessary to support the conclusion as to causation.
xxxx
In litigations involving medical negligence, the plaintiff has the burden of establishing
appellant's negligence and for a reasonable conclusion of negligence, there must be
proof of breach of duty on the part of the surgeon as well as a causal connection of
such breach and the resulting death of his patient. In Chan Lugay v. St Luke's Hospital,
Inc., where the attending physician was absolved of liability for the death of the
complainants wife and newborn baby, this Court held that:
"In order that there may be a recovery for an injury, however, it must be shown that
the injury for which recovery is sought must be the legitimate consequence of the
wrong done; the connection between the negligence and the injury must be a direct
and natural sequence of events, unbroken by intervening efficient causes. In other
words, the negligence must be the proximate cause of the injury. For, negligence, no
matter in what it consists, cannot create a right of action unless it is the proximate
cause of the injury complained of. And the proximate cause of an injury is that cause,
which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have occurred."
An action upon medical negligence whether criminal, civil or administrative calls
for the plaintiff to prove by competent evidence each of the following four elements,
namely: (a) the duty owed by the physician to the patient, as created by the physician-
patient relationship, to act in accordance with the specific norms or standards
established by his profession; (b) the breach of the duty by the physicians failing to
act in accordance with the applicable standard of care; (3) the causation, i.e., there
must be a reasonably close and causal connection between the negligent act or
omission and the resulting injury; and (4) the damages suffered by the patient. 36
In the medical profession, specific norms or standards to protect the patient against
unreasonable risk, commonly referred to as standards of care, set the duty of the
physician to act in respect of the patient. Unfortunately, no clear definition of the duty
of a particular physician in a particular case exists. Because most medical malpractice
cases are highly technical, witnesses with special medical qualifications must provide
guidance by giving the knowledge necessary to render a fair and just verdict. As a
result, the standard of medical care of a prudent physician must be determined from
expert testimony in most cases; and in the case of a specialist (like an anesthesiologist),
the standard of care by which the specialist is judged is the care and skill commonly
possessed and exercised by similar specialists under similar circumstances. The
specialty standard of care may be higher than that required of the general practitioner.37
The standard of care is an objective standard by which the conduct of a physician sued
for negligence or malpractice may be measured, and it does not depend, therefore, on
any individual physicians own knowledge either. In attempting to fix a standard by
which a court may determine whether the physician has properly performed the
requisite duty toward the patient, expert medical testimony from both plaintiff and
defense experts is required. The judge, as the trier of fact, ultimately determines the
standard of care, after listening to the testimony of all medical experts. 38
Here, the Prosecution presented no witnesses with special medical qualifications in
anesthesia to provide guidance to the trial court on what standard of care was
applicable. It would consequently be truly difficult, if not impossible, to determine
whether the first three elements of a negligence and malpractice action were attendant.
Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself
who served as the Chairman of the Committee on Ethics and Malpractice of the
Philippine Society of Anesthesiologists that investigated the complaint against Dr.
Solidum, his testimony mainly focused on how his Committee had conducted the
investigation.39 Even then, the report of his Committee was favorable to Dr. Solidum,40
to wit:
Presented for review by this committee is the case of a 3 year old male who underwent
a pull-thru operation and was administered general anesthesia by a team of anesthesia
residents. The patient, at the time when the surgeons was manipulating the recto-
sigmoid and pulling it down in preparation for the anastomosis, had bradycardia. The
anesthesiologists, sensing that the cause thereof was the triggering of the vago-vagal
reflex, administered atropine to block it but despite the administration of the drug in
two doses, cardiac arrest ensued. As the records show, prompt resuscitative measures
were administered and spontaneous cardiac function re-established in less than five
(5) minutes and that oxygen was continuously being administered throughout,
unfortunately, as later become manifest, patient suffered permanent irreversible brain
damage.
In view of the actuations of the anaesthesiologists and the administration of
anaesthesia, the committee find that the same were all in accordance with the
universally accepted standards of medical care and there is no evidence of any fault or
negligence on the part of the anaesthesiologists.
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of
Investigation, was also presented as a Prosecution witness, but his testimony
concentrated on the results of the physical examination he had conducted on Gerald,
as borne out by the following portions of his direct examination, to wit:
FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?
WITNESS General Anesthetic Agent is a substance used in the conduction of
Anesthesia and in this case, halothane was used as a sole anesthetic agent.
xxxx
Q Now under paragraph two of page 1 of your report you mentioned that after one
hour and 45 minutes after the operation, the patient experienced a bradycardia or
slowing of heart rate, now as a doctor, would you be able to tell this Honorable Court
as to what cause of the slowing of heart rate as to Gerald Gercayo?
WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia
of time because is some reason one way or another that might caused bradycardia.
FISCAL CABARON What could be the possible reason?
A Well bradycardia can be caused by anesthetic agent itself and that is a possibility,
were talking about possibility here.
Q What other possibility do you have in mind, doctor?
A Well, because it was an operation, anything can happen within that situation.
FISCAL CABARON Now, this representation would like to ask you about the slowing
of heart rate, now what is the immediate cause of the slowing of the heart rate of a
person?
WITNESS Well, one of the more practical reason why there is slowing of the heart
rate is when you do a vagal reflex in the neck wherein the vagal receptors are located
at the lateral part of the neck, when you press that, you produce the slowing of the
heart rate that produce bradycardia.
Q I am pro[p]ounding to you another question doctor, what about the deficiency in the
supply of oxygen by the patient, would that also cause the slowing of the heart rate?
A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a
hypoxia or there is a low oxygen level in the blood, the normal thing for the heart is to
pump or to do not a bradycardia but a to counter act the Hypoxia that is being
experienced by the patient (sic).
xxxx
Q Now, you made mention also doctor that the use of general anesthesia using 100%
halothane and other anesthetic medications probably were contributory to the
production of hypoxia.
A Yes, sir in general sir.41
On cross-examination, Dr. Vertido expounded more specifically on his interpretation
of the anesthesia record and the factors that could have caused Gerald to experience
bradycardia, viz:
ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly
read to this Honorable court your last paragraph and if you will affirm that as if it is
correct?
A "The use of General Anesthesia, that is using 100% Halothane probably will be
contributory to the production of Hypoxia and - - - -"
ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?
WITNESS Based on the records, I know the - - -
Q 100%?
A 100% based on the records.
Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will
you kindly look at this and tell me where is 100%, the word "one hundred" or 1-0-0,
will you kindly look at this Doctor, this Xerox copy if you can show to this Honorable
Court and even to this representation the word "one hundred" or 1-0-0 and then call
me.
xxxx
ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there
is, you just call me and even the attention of the Presiding Judge of this Court. Okay,
you read one by one.
WITNESS Well, are you only asking 100%, sir?
ATTY. COMIA Im asking you, just answer my question, did you see there 100% and
100 figures, tell me, yes or no?
WITNESS Im trying to look at the 100%, there is no 100% there sir.
ATTY. COMIA Okay, that was good, so you Honor please, may we request also
temporarily, because this is just a xerox copy presented by the fiscal, that the
percentage here that the Halothane administered by Dr. Solidum to the patient is 1%
only so may we request that this portion, temporarily your Honor, we are marking this
anesthesia record as our Exhibit 1 and then this 1% Halothane also be bracketed and
the same be marked as our Exhibit "1-A".
xxxx
ATTY. COMIA Doctor, my attention was called also when you said that there are so
many factors that contributed to Hypoxia is that correct?
WITNESS Yes, sir.
Q I remember doctor, according to you there are so many factors that contributed to
what you call hypoxia and according to you, when this Gerald suffered hypoxia, there
are other factors that might lead to this Hypoxia at the time of this operation is that
correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of such other, some or it might be
due to operations being conducted by the doctor at the time when the operation is being
done might also contribute to that hypoxia is that correct?
A That is a possibility also.
xxxx
ATTY. COMIA How will you classify now the operation conducted to this Gerald,
Doctor?
WITNESS Well, that is a major operation sir.
Q In other words, when you say major operation conducted to this Gerald, there is a
possibility that this Gerald might [be] exposed to some risk is that correct?
A That is a possibility sir.
Q And which according to you that Gerald suffered hypoxia is that correct?
A Yes, sir.
Q And that is one of the risk of that major operation is that correct?
A That is the risk sir.42
At the continuation of his cross-examination, Dr. Vertido maintained that Geralds
operation for his imperforate anus, considered a major operation, had exposed him to
the risk of suffering the same condition.43 He then corrected his earlier finding that
100% halothane had been administered on Gerald by saying that it should be 100%
oxygen.44
Dr. Solidum was criminally charged for "failing to monitor and regulate properly the
levels of anesthesia administered to said Gerald Albert Gercayo and using 100%
halothane and other anesthetic medications."45 However, the foregoing circumstances,
taken together, did not prove beyond reasonable doubt that Dr. Solidum had been
recklessly imprudent in administering the anesthetic agent to Gerald. Indeed, Dr.
Vertidos findings did not preclude the probability that other factors related to Geralds
major operation, which could or could not necessarily be attributed to the
administration of the anesthesia, had caused the hypoxia and had then led Gerald to
experience bradycardia. Dr. Vertido revealingly concluded in his report, instead, that
"although the anesthesiologist followed the normal routine and precautionary
procedures, still hypoxia and its corresponding side effects did occur." 46
The existence of the probability about other factors causing the hypoxia has
engendered in the mind of the Court a reasonable doubt as to Dr. Solidums guilt, and
moves us to acquit him of the crime of reckless imprudence resulting to serious
physical injuries. "A reasonable doubt of guilt," according to United States v.
Youthsey:47
x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious
doubt; not a doubt engendered merely by sympathy for the unfortunate position of the
defendant, or a dislike to accept the responsibility of convicting a fellow man. If,
having weighed the evidence on both sides, you reach the conclusion that the
defendant is guilty, to that degree of certainty as would lead you to act on the faith of
it in the most important and crucial affairs of your life, you may properly convict him.
Proof beyond reasonable doubt is not proof to a mathematical demonstration. It is not
proof beyond the possibility of mistake.
We have to clarify that the acquittal of Dr. Solidum would not immediately exempt
him from civil liability.1wphi1 But we cannot now find and declare him civilly liable
because the circumstances that have been established here do not present the factual
and legal bases for validly doing so. His acquittal did not derive only from reasonable
doubt. There was really no firm and competent showing how the injury to Gerard had
been caused. That meant that the manner of administration of the anesthesia by Dr.
Solidum was not necessarily the cause of the hypoxia that caused the bradycardia
experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly liable would be
to speculate on the cause of the hypoxia. We are not allowed to do so, for civil liability
must not rest on speculation but on competent evidence.
Liability of Ospital ng Maynila
Although the result now reached has resolved the issue of civil liability, we have to
address the unusual decree of the RTC, as affirmed by the CA, of expressly holding
Ospital ng Maynila civilly liable jointly and severally with Dr. Solidum. The decree
was flawed in logic and in law.
In criminal prosecutions, the civil action for the recovery of civil liability that is
deemed instituted with the criminal action refers only to that arising from the offense
charged.48 It is puzzling, therefore, how the RTC and the CA could have adjudged
Ospital ng Maynila jointly and severally liable with Dr. Solidum for the damages
despite the obvious fact that Ospital ng Maynila, being an artificial entity, had not been
charged along with Dr. Solidum. The lower courts thereby acted capriciously and
whimsically, which rendered their judgment against Ospital ng Maynila void as the
product of grave abuse of discretion amounting to lack of jurisdiction.
Not surprisingly, the flawed decree raises other material concerns that the RTC and
the CA overlooked. We deem it important, then, to express the following observations
for the instruction of the Bench and Bar.
For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its
fundamental right to be heard was not respected from the outset. The R TC and the CA
should have been alert to this fundamental defect. Verily, no person can be prejudiced
by a ruling rendered in an action or proceeding in which he was not made a party. Such
a rule would enforce the constitutional guarantee of due process of law.
Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary
liability would be properly enforceable pursuant to Article 103 of the Revised Penal
Code. But the subsidiary liability seems far-fetched here. The conditions for subsidiary
liability to attach to Ospital ng Maynila should first be complied with. Firstly, pursuant
to Article 103 of the Revised Penal Code, Ospital ng Maynila must be shown to be a
corporation "engaged in any kind of industry." The term industry means any
department or branch of art, occupation or business, especially one that employs labor
and capital, and is engaged in industry.49 However, Ospital ng Maynila, being a public
hospital, was not engaged in industry conducted for profit but purely in charitable and
humanitarian work.50 Secondly, assuming that Ospital ng Maynila was engaged in
industry for profit, Dr. Solidum must be shown to be an employee of Ospital ng
Maynila acting in the discharge of his duties during the operation on Gerald. Yet, he
definitely was not such employee but a consultant of the hospital. And, thirdly,
assuming that civil liability was adjudged against Dr. Solidum as an employee (which
did not happen here), the execution against him was unsatisfied due to his being
insolvent.
WHEREFORE, the Court GRANTS the petition for review on certiorari;
REVERSES AND SETS ASIDE the decision promulgated on January 20, 2010;
ACQUITS Dr. Fernando P. Solidum of the crime of reckless imprudence resulting to
serious physical injuries; and MAKES no pronouncement on costs of suit.
SO ORDERED.
 The RTC awarded Nelson Cortejo (respondent) damages in the total amount of
P595,000.00, for the wrongful death of his son allegedly due to the medical negligence
of the petitioning doctors and the hospital

Factual Antecedents

The common factual antecedents are briefly summarized below.

On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo brought her 11-
year old son, Edmer Cortejo (Edmer), to the Emergency Room of the San Juan de Dios
Hospital (SJDH) because of difficulty in breathing, chest pain, stomach pain, and
fever.

Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined Edmer. In her
testimony, Mrs. Cortejo narrated that in the morning of April 20, 1988, Edmer had
developed a slight fever that lasted for one day; a few hours upon discovery, she
brought Edmer to their family doctor; and two hours after administering medications,
Edmer's fever had subsided.

SECOND DIVISION
G.R. No. 171127, March 11, 2015
NOEL CASUMPANG, RUBY SANGA-MIRANDA AND SAN JUAN DE DIOS
HOSPITAL, Petitioners, v. NELSON CORTEJO, Respondent.
After taking Edmer's medical history, Dr. Livelo took his vital signs, body
temperature, and blood pressure.6 Based on these initial examinations and the chest x-
ray test that followed, Dr. Livelo diagnosed Edmer with "bronchopneumonia."7
Edmer's blood was also taken for testing, typing, and for purposes of administering
antibiotics. Afterwards, Dr. Livelo gave Edmer an antibiotic medication to lessen his
fever and to loosen his phlegm.

[G.R. No. 171217] Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care card and
DRA. RUBY SANGA-MIRANDA, Petitioner, v. NELSON CORTEJO, was referred to an accredited Fortune Care coordinator, who was then out of town. She
Respondent. was thereafter assigned to Dr. Noel Casumpang (Dr. Casumpang), a pediatrician also
accredited with Fortune Care.8
[G.R. No. 171228]
At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time examined
SAN JUAN DE DIOS HOSPITAL, Petitioner, v. NELSON CORTEJO,
Edmer in his room. Using only a stethoscope, he confirmed the initial diagnosis of
Respondent.
"Bronchopneumonia."9

DECISION
BRION, J.:
We resolve the three (3) consolidated petitions for review on certiorari1 involving
medical negligence, commonly assailing the October 29, 2004 decision2 and the
January 12, 2006 resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 56400.
This CA decision affirmed en toto the ruling of the Regional Trial Court (RTC),
Branch 134, Makati City
At that moment, Mrs. Cortejo recalled entertaining doubts on the doctor's diagnosis.
She immediately advised Dr. Casumpang that Edmer had a high fever, and had no
colds or cough10 but Dr. Casumpang merely told her that her son's "bloodpressure is
just being active,"11 and remarked that "that's the usual bronchopneumonia, no colds,
no phlegm."12
Dr. Casumpang next visited and examined Edmer at 9:00 in the morning the following
day.13 Still suspicious about his son's illness, Mrs. Cortejo again called Dr.
Casumpang's attention and stated that Edmer had a fever, throat irritation, as well as
chest and stomach pain. Mrs. Cortejo also alerted Dr. Casumpang about the traces of
blood in Edmer's sputum. Despite these pieces of information, however, Dr.
Casumpang simply nodded, inquired if Edmer has an asthma, and reassured Mrs.
Cortejo that Edmer's illness is bronchopneumonia.14
At around 11:30 in the morning of April 23, 1988, Edmer vomited "phlegm with blood
streak"15 prompting the respondent (Edmer's father) to request for a doctor at the
nurses' station.16
Forty-five minutes later, Dr. Ruby Sanga-Miranda (Dr. Miranda), one of the resident
physicians of SJDH, arrived. She claimed that although aware that Edmer had vomited
"phlegm with blood streak," she failed to examine the blood specimen because the
respondent washed it away. She then advised the respondent to preserve the specimen
for examination.
Thereafter, Dr. Miranda conducted a physical check-up covering Edmer's head, eyes,
nose, throat, lungs, skin and abdomen; and found that Edmer had a low-grade non-
continuing fever, and rashes that were not typical of dengue fever.17 Her medical
findings state:
the patient's rapid breathing and then the lung showed sibilant and the
patient's nose is flaring which is a sign that the patient is in respiratory
distress; the abdomen has negative finding; the patient has low grade fever
and not continuing; and the rashes in the patient's skin were not "Herman's
Rash" and not typical of dengue fever.18
At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing Dr. Miranda,
the respondent showed her Edmer's blood specimen, and reported that Edmer had
complained of severe stomach pain and difficulty in moving his right leg.19
Dr. Miranda then examined Edmer's "sputum with blood" and noted that he was
bleeding. Suspecting that he could be afflicted with dengue, she inserted a plastic tube
in his nose, drained the liquid from his stomach with ice cold normal saline solution,
and gave an instruction not to pull out the tube, or give the patient any oral medication.
Dr. Miranda thereafter conducted a tourniquet test, which turned out to be negative.20
She likewise ordered the monitoring of the patient's blood pressure and some blood
tests. Edmer's blood pressure was later found to be normal.21
At 4:40 in the afternoon, Dr. Miranda called up Dr. Casumpang at his clinic and told
him about Edmer's condition.22 Upon being informed, Dr. Casumpang ordered several
procedures done including: hematocrit, hemoglobin, blood typing, blood transfusion
and tourniquet tests.
The blood test results came at about 6:00 in the evening.
Dr. Miranda advised Edmer's parents that the blood test results showed that Edmer
was suffering from "Dengue Hemorrhagic Fever." One hour later, Dr. Casumpang
arrived at Edmer's room and he recommended his transfer to the Intensive Care Unit
(ICU), to which the respondent consented. Since the ICU was then full, Dr.
Casumpang suggested to the respondent that they hire a private nurse. The respondent,
however, insisted on transferring his son to Makati Medical Center.
After the respondent had signed the waiver, Dr. Casumpang, for the last time, checked
Edmer's condition, found that his blood pressure was stable, and noted that he was
"comfortable." The respondent requested for an ambulance but he was informed that
the driver was nowhere to be found. This prompted him to hire a private ambulance
that cost him P600.00.23
At 12:00 midnight, Edmer, accompanied by his parents and by Dr. Casumpang, was
transferred to Makati Medical Center.
Dr. Casumpang immediately gave the attending physician the patient's clinical history
and laboratory exam results. Upon examination, the attending physician diagnosed
"Dengue Fever Stage IV" that was already in its irreversible stage.
Edmer died at 4:00 in the morning of April 24, 1988.24 His Death Certificate indicated
the cause of death as "Hypovolemic Shock/hemorrhagic shock;" "Dengue
Hemorrhagic Fever Stage IV."
Believing that Edmer's death was caused by the negligent and erroneous diagnosis of
his doctors, the respondent instituted an action for damages against SJDH, and its
attending physicians: Dr. Casumpang and Dr. Miranda (collectively referred to as the
"petitioners") before the RTC of Makati City.
The Ruling of the Regional Trial Court
In a decision25 dated May 30, 1997, the RTC ruled in favor of the respondent, and
awarded actual and moral damages, plus attorney's fees and costs.
In ruling that the petitioning doctors were negligent, the RTC found untenable the
petitioning doctors' contention that Edmer's initial symptoms did not indicate dengue
fever. It faulted them for heavily relying on the chest x-ray result and for not
considering the other manifestations that Edmer's parents had relayed. It held that in
diagnosing and treating an illness, the physician's conduct should be judged not only
by what he/she saw and knew, but also by what he/she could have reasonably seen and
known. It also observed that based on Edmer's signs and symptoms, his medical history
and physical examination, and also the information that the petitioning doctors
gathered from his family members, dengue fever was a reasonably foreseeable illness;
yet, the petitioning doctors failed to take a second look, much less, consider these
indicators of dengue.
The trial court also found that aside from their self-serving testimonies, the petitioning
doctors did not present other evidence to prove that they exercised the proper medical
attention in diagnosing and treating the patient, leading it to conclude that they were
guilty of negligence.
The RTC also held SJDH solidarity liable with the petitioning doctors for damages
based on the following findings of facts: first, Dr. Casumpang, as consultant, is an
ostensible agent of SJDH because before the hospital engaged his medical services, it
scrutinized and determined his fitness, qualifications, and competence as a medical
practitioner; and second, Dr. Miranda, as resident physician, is an employee of SJDH
because like Dr. Casumpang, the hospital, through its screening committee, scrutinized
and determined her qualifications, fitness, and competence before engaging her
services; the hospital also exercised control over her work.
The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and
against the defendants, ordering the latter to pay solidarity and severally
plaintiff the following:
(1) Moral damages in the amount of P500,000.00;
(2) Costs of burial and funeral in the amount of P45,000.00;
(3) Attorney's fees of P50,000.00; and
(4) Cost of this suit.
SO ORDERED.
The petitioners appealed the decision to the CA.
The Ruling of the Court of Appeals
In its decision dated October 29, 2004, the CA affirmed en toto the RTC's ruling,
finding that SJDH and its attending physicians failed to exercise the minimum medical
care, attention, and treatment expected of an ordinary doctor under like circumstances.
The CA found the petitioning doctors' failure to read even the most basic signs of
"dengue fever" expected of an ordinary doctor as medical negligence. The CA also
considered the petitioning doctors' testimonies as self-serving, noting that they
presented no other evidence to prove that they exercised due diligence in diagnosing
Edmer's illness.
The CA likewise found Dr. Rodolfo Jaudian's (Dr. Jaudian) testimony admissible. It
gave credence to his opinion26 that: (1) given the exhibited symptoms of the patient,
dengue fever should definitely be considered, and bronchopneumonia could be
reasonably ruled out; and (2) dengue fever could have been detected earlier than 7:30
in the evening of April 23, 1988 because the symptoms were already evident; and
agreed with the RTC that the petitioning doctors should not have solely relied on the
chest-x-ray result, as it was not conclusive.
On SJDH's solidary liability, the CA ruled that the hospital's liability is based on
Article 2180 of the Civil Code. The CA opined that the control which the hospital
exercises over its consultants, the hospital's power to hire and terminate their services,
all fulfill the employer-employee relationship requirement under Article 2180.
Lastly, the CA held that SJDH failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the hiring and the supervision of its physicians.
The petitioners separately moved to reconsider the CA decision, but the CA denied
their motion in its resolution of January 12, 2006; hence, the present consolidated
petitions pursuant to Rule 45 of the Rules of Court.
The Petitions
I. Dr. Casumpang's Position (G.R. No. 171127)
Dr. Casumpang contends that he gave his patient medical treatment and care to the
best of his abilities, and within the proper standard of care required from physicians
under similar circumstances. He claims that his initial diagnosis of bronchopneumonia
was supported by the chest x-ray result.
Dr. Casumpang also contends that dengue fever occurs only after several days of
confinement. He alleged that when he had suspected that Edmer might be suffering
from dengue fever, he immediately attended and treated him.
Dr. Casumpang likewise raised serious doubjs on Dr. Jaudian's credibility, arguing that
the CA erred in appreciating his testimony as an expert witness since he lacked the
necessary training, skills, and experience as a specialist in dengue fever cases.
II. Dr. Miranda's Position (G.R. No. 171217)
In her petition, Dr. Miranda faults the CA for holding her responsible for Edmer's
wrong diagnosis, stressing that the function of making the diagnosis and undertaking
the medical treatment devolved upon Dr. Casumpang, the doctor assigned to Edmer,
and who confirmed "bronchopneumonia."
Dr. Miranda also alleged that she exercised prudence in performing her duties as a
physician, underscoring that it was her professional intervention that led to the correct
diagnosis of "Dengue Hemorrhagic Fever." Furthermore, Edmer's Complete Blood
Count (CBC) showed leukopenia and an increase in balance as shown by the
differential count, demonstrating that Edmer's infection, more or less, is of bacterial
and not viral in nature.
Dr. Miranda as well argued that there is no causal relation between the alleged
erroneous diagnosis and medication for "Bronchopneumonia," and Edmer's death due
to "Dengue Hemorrhagic Fever."
Lastly, she claimed that Dr. Jaudian is not a qualified expert witness since he never
presented any evidence of formal residency training and fellowship status in
Pediatrics.
III. SJDH's Position (G.R. No. 171228)
SJDH, on the other hand, disclaims liability by asserting that Dr. Casumpang and Dr.
Miranda are mere independent contractors and "consultants" (not employees) of the
hospital. SJDH alleges that since it did not exercise control or supervision over the
consultants' exercise of medical profession, there is no employer-employee
relationship between them, and consequently, Article 2180 of the Civil Code does not
apply.
SJDH likewise anchored the absence of, employer-employee relationship on the
following circumstances: (1) SJDH does not hire consultants; it only grants them
privileges to admit patients in the hospital through accreditation; (2) SJDH does not
pay the consultants wages similar to an ordinary employee; (3) the consultants earn
their own professional fees directly from their patients; SJDH does not fire or terminate
their services; and (4) SJDH does not control or interfere with the manner and the
means the consultants use in the treatment of their patients. It merely provides them
with adequate space in exchange for rental payment.
Furthermore, SJDH claims that the CA erroneously applied the control test when it
treated the hospital's practice of accrediting consultants as an exercise of control. It
explained that the control contemplated by law is that which the employer exercises
over the: (i) end result; and the (ii) manner and means to be used to reach this end, and
not any kind of control, however significant, in accrediting the consultants.
SJDH moreover contends that even if the petitioning doctors are considered employees
and not merely consultants of the hospital, SJDH cannot still be held solidarity liable
under Article 2180 of the Civil Code because it observed the diligence of a good father
of a family in their selection and supervision as shown by the following: (1) the
adequate measures that the hospital undertakes to ascertain the petitioning doctors'
qualifications and medical competence; and (2) the documentary evidence that the
petitioning doctors presented to prove their competence in the field of pediatrics.27
SJDH likewise faults the CA for ruling that the petitioning doctors are its agents,
claiming that this theory, aside from being inconsistent with the CA's finding of
employment relationship, is unfounded because: first, the petitioning doctors are
independent contractors, not agents of SJDH; and second, as a medical institution,
SJDH cannot practice medicine, much more, extend its personality to physicians to
practice medicine on its behalf.
Lastly, SJDH maintains that the petitioning doctors arrived at an intelligently deduced
and correct diagnosis. It claimed that based on Edmer's signs and symptoms at the time
of admission (i.e., one day fever,28bacterial infection,29 and lack of hemorrhagic
manifestations30), there was no reasonable indication yet that he was suffering from
dengue fever, and accordingly, their failure to diagnose dengue fever, does not
constitute negligence on their part.
The Case for the Respondent
In his comment, the respondent submits that the issues the petitioners raised are mainly
factual in nature, which a petition for review on certiorari under Rule 45 of the Rules
of Court does not allow.
In any case, he contends that the petitioning doctors were negligent in conducting their
medical examination and diagnosis based on the following: (1) the petitioning doctors
failed to timely diagnose Edmer's correct illness due to their non-observance of the
proper and acceptable standard of medical examination; (2) the petitioning doctors'
medical examination was not comprehensive, as they were always in a rush; and (3)
the petitioning doctors employed a guessing game in diagnosing bronchopneumonia.
The respondent also alleges that there is a causal connection between the petitioning
doctors' negligence and Edmer's untimely death, warranting the claim for damages.
The respondent, too, asserted that SJDH is also negligent because it was not equipped
with proper paging system, has no bronchoscope, and its doctors are not proportionate
to the number of its patients. He also pointed out that out of the seven resident
physicians in the hospital, only two resident physicians were doing rounds at the time
of his son's confinement.
The Issues
The case presents to us the following issues:
Whether or not the petitioning doctors had committed "inexcusable lack of precaution"
in diagnosing and in treating the patient;
Whether or not the petitioner hospital is solidarity liable with the petitioning doctors;
Whether or not there is a causal connection between the petitioners' negligent
act/omission and the patient's resulting death; and
Whether or not the lower courts erred in considering Dr. Rodolfo Tabangcora Jaudian
as an expert witness.

Our Ruling
We find the petition partly meritorious.
A Petition for Review on Certiorari under Rule 45 of the Rules of Court is Limited to
Questions of Law.
The settled rule is that the Court's jurisdiction in a petition for review on certiorari
under Rule 45 of the Rules of Court is limited only to the review of pure questions of
law. It is not the Court's function to inquire on the veracity of the appellate court's
factual findings and conclusions; this Court is not a trier of facts.31
A question of law arises when there is doubt as to what the law is on a certain state of
facts, while there is a question of fact when the doubt arises as to the truth or falsity of
the alleged facts.32
These consolidated petitions before us involve mixed questions of fact and law. As a
rule, we do not resolve questions of fact. However, in determining the legal question
of whether the respondent is entitled to claim damages under Article 2176 of the Civil
Code for the petitioners' alleged medical malpractice, the determination of the factual
issues - i.e., whether the petitioning doctors were grossly negligent in diagnosing the
patient's illness, whether there is causal relation between the petitioners' act/omission
and the patient's resulting death, and whether Dr. Jaudian is qualified as an expert
witness - must necessarily be resolved. We resolve these factual questions solely for
the purpose of determining the legal issues raised.
Medical Malpractice Suit as a Specialized Area of Tort Law
The claim for damages is based on the petitioning doctors' negligence in diagnosing
and treating the deceased Edmer, the child of the respondent. It is a medical
malpractice suit, an action available to victims to redress a wrong committed by
medical professionals who caused bodily harm to, or the death of, a patient.33 As the
term is used, the suit is brought whenever a medical practitioner or health care provider
fails to meet the standards demanded by his profession, or deviates from this standard,
and causes injury to the patient.
To successfully pursue a medical malpractice suit, the plaintiff (in this case, the
deceased patient's heir) must prove that the doctor either failed to do what a reasonably
prudent doctor would have done, or did what a reasonably prudent doctor would not
have done; and the act or omission had caused injury to the patient.34 The patient's
heir/s bears the burden of proving his/her cause of action.
The Elements of a Medical Malpractice Suit
The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4)
proximate causation.
Duty refers to the standard of behavior that imposes restrictions on one's conduct.35 It
requires proof of professional relationship between the physician and the patient.
Without the professional relationship, a physician owes no duty to the patient, and
cannot therefore incur any liability.
A physician-patient relationship is created when a patient engages the services of a
physician,36 and the latter accepts or agrees to provide care to the patient.37 The
establishment of this relationship is consensual,38 and the acceptance by the physician
essential. The mere fact that an individual approaches a physician and seeks diagnosis,
advice or treatment does not create the duty of care unless the physician agrees.39
The consent needed to create the relationship does not always need to be express.40
In the absence of an express agreement, a physician-patient relationship may be
implied from the physician's affirmative action to diagnose and/or treat a patient, or in
his participation in such diagnosis and/or treatment.41 The usual illustration would be
the case of a patient who goes to a hospital or a clinic, and is examined and treated by
the doctor. In this case, we can infer, based on the established and customary practice
in the medical community that a patient-physician relationship exists.
Once a physician-patient relationship is established, the legal duty of care follows. The
doctor accordingly becomes duty-bound to use at least the same standard of care that
a reasonably competent doctor would use to treat a medical condition under similar
circumstances.
Breach of duty occurs when the doctor fails to comply with, or improperly performs
his duties under professional standards. This determination is both factual and legal,
and is specific to each individual case.42
If the patient, as a result of the breach of duty, is injured in body or in health, actionable
malpractice is committed, entitling the patient to damages.43
To successfully claim damages, the patient must lastly prove the causal relation
between the negligence and the injury. This connection must be direct, natural, and
should be unbroken by any intervening efficient causes. In other words, the negligence
must be the proximate cause of the injury.44 The injury or damage is proximately
caused by the physician's negligence when it appears, based on the evidence and the
expert testimony, that the negligence played an integral part in causing the injury or
damage, and that the injury or damage was either a direct result, or a reasonably
probable consequence of the physician's negligence.45
a. The Relationship Between Dr. Casumpang and Edmer
In the present case, the physician-patient relationship between Dr. Casumpang and
Edmer was created when the latter's parents sought the medical services of Dr.
Casumpang, and the latter knowingly accepted Edmer as a patient. Dr. Casumpang's
acceptance is implied from his affirmative examination, diagnosis and treatment of
Edmer. On the other hand, Edmer's parents, on their son's behalf, manifested their
consent by availing of the benefits of their health care plan, and by accepting the
hospital's assigned doctor without objections.
b. The Relationship Between Dr. Miranda and Edmer
With respect to Dr. Miranda, her professional relationship with Edmer arose when she
assumed the obligation to provide resident supervision over the latter. As second year
resident doctor tasked to do rounds and assist other physicians, Dr. Miranda is deemed
to have agreed to the creation of physician-patient relationship with the hospital's
patients when she participated in the diagnosis and prescribed a course of treatment
for Edmer.
The undisputed evidence shows that Dr. Miranda examined Edmer twice (at around
12:00 and 3:30 in the afternoon of April 23, 1988), and in both instances, she
prescribed treatment and participated in the diagnosis of Edmer's medical condition.
Her affirmative acts amounted to her acceptance of the physician-patient relationship,
and incidentally, the legal duty of care that went with it.
In Jarcia, Jr. v. People of the Philippines,46 the Court found the doctors who merely
passed by and were requested to attend to the patient, liable for medical malpractice.
It held that a physician-patient relationship was established when they examined the
patient, and later assured the mother that everything was fine.
In the US case of Mead v. Legacy Health System,47 the Court also considered the
rendering of an opinion in the course of the patient's care as the doctor's assent to the
physician-patient relationship. It ruled that the relationship was formed because of the
doctor's affirmative action.
Likewise, in Wax v. Johnson,48 the court found that a physician-patient relationship
was formed between a physician who "contracts, agrees, undertakes, or otherwise
assumes" the obligation to provide resident supervision at a teaching hospital, and the
patient with whom the doctor had no direct or indirect contract.
Standard of Care and Breach of Duty
A determination of whether or not the petitioning doctors met the required standard of
care involves a question of mixed fact and law; it is factual as medical negligence cases
are highly technical in nature, requiring the presentation of expert witnesses to provide
guidance to the court on matters clearly falling within the domain of medical science,
and legal, insofar as the Court, after evaluating the expert testimonies, and guided by
medical literature, learned treatises, and its fund of common knowledge, ultimately
determines whether breach of duty took place.
Whether or not Dr. Casumpang and Dr. Miranda committed a breach of duty is to be
measured by the yardstick of professional standards observed by the other members of
the medical profession in good standing under similar circumstances.49 It is in this
aspect of medical malpractice that expert testimony is essential to establish not only
the professional standards observed in the medical community, but also that the
physician's conduct in the treatment of care falls below such standard.50
In the present case, expert testimony is crucial in determining first, the standard
medical examinations, tests, and procedures that the attending physicians should have
undertaken in the diagnosis and treatment of dengue fever; and second, the dengue
fever signs and symptoms that the attending physicians should have noticed and
considered.
Both the RTC and the CA relied largely on Dr. Jaudian's expert testimony on dengue
diagnosis and management to support their finding that the petitioning doctors were
guilty of breach of duty of care.
Dr. Jaudian testified that Edmer's rapid breathing, chest and stomach pain, fever, and
the presence of blood in his saliva are classic symptoms of dengue fever. According
to him, if the patient was admitted for chest pain, abdominal pain, and difficulty in
breathing coupled with fever, dengue fever should definitely be considered;51 if the
patient spits coffee ground with the presence of blood, and the patient's platelet count
drops to 47,000, it becomes a clear case of dengue fever, and bronchopneumonia can
be reasonably ruled out.52
Furthermore, the standard of care according to Dr. Jaudian is to administer oxygen
inhalation, analgesic, and fluid infusion or dextrose.53 If the patient had twice vomited
fresh blood and thrombocytopenia has already occurred, the doctor should order blood
transfusion, monitoring of the patient every 30 minutes, hemostatic to stop bleeding,
and oxygen if there is difficulty in breathing.54
We find that Dr. Casumpang, as Edmer's attending physician, did not act according to
these standards and, hence, was guilty of breach of duty. We do not find Dr. Miranda
liable for the reasons discussed below.
Dr. Casumpang's Negligence
a. Negligence in the Diagnosis A: And then, Dr. Casumpang answered "THAT'S THE USUAL BRONCHO
PNEUMONIA, NO COLDS, NO PHLEGM."
At the trial, Dr. Casumpang declared that a doctor's impression regarding a patient's
illness is 90% based on the physical examination, the information given by the patient Q: How long did Dr. Casumpang stay in your son's room?
or the latter's parents, and the patient's medical history.55 He testified that he did not
consider either dengue fever or dengue hemorrhagic fever because the patient's history A: He stayed for a minute or 2.
showed that Edmer had low breath and voluntary submission, and that he was up and xxxx
about playing basketball.56 He based his diagnosis of bronchopneumonia on the Q: When Dr. Casumpang arrived at 9:00 o'clock a.m. on April 23, what did you tell
following observations: "difficulty in breathing, clearing run nostril, harsh breath him, if any?
sound, tight air, and sivilant sound."57 xxxx
It will be recalled that during Dr. Casumpang's first and second visits to Edmer, he A: I told Dr. Casumpang... After examining my son using stethoscope and nothing
already had knowledge of Edmer's laboratory test result (CBC), medical history, and more, I told Dr. Casumpang about the traces of blood in my son's sputum and I told
symptoms (i.e., fever, rashes, rapid breathing, chest and stomach pain, throat irritation, him what is all about and he has throat irritation.
difficulty in breathing, and traces of blood in the sputum). However, these information Q: What did he tell you?
did not lead Dr. Casumpang to the possibility that Edmer could be suffering from either A: He just nodded his head but he did not take the initiative of looking at the throat of
dengue fever, or dengue hemorrhagic fever, as he clung to his diagnosis of broncho my son.
pneumonia. This means that given the symptoms exhibited, Dr. Casumpang already
ruled out the possibility of other diseases like dengue. Q: So what happened after that?

In other words, it was lost on Dr. Casumpang that the characteristic symptoms of A: I also told Dr. Casumpang about his chest pain and also stomach pain.
dengue (as Dr. Jaudian testified) are: patient's rapid breathing; chest and stomach pain;
Q: So what did Dr. Casumpang do after you have narrated all these complaints of your
fever; and the presence of blood in his saliva. All these manifestations were present
son?
and known to Dr. Casumpang at the time of his first and second visits to Edmer. While
he noted some of these symptoms in confirming bronchopneumonia, he did not seem A: Nothing. He also noticed the rapid breathing of my son and my son was almost
to have considered the patient's other manifestations in ruling out dengue fever or moving because of rapid breathing and he is swaying in the bed.
dengue hemorrhagic fever.58 To our mind, Dr. Casumpang selectively appreciated
some, and not all of the symptoms; worse, he casually ignored the pieces of Q: Do you know what action was taken by Dr. Casumpang when you told him that
information that could have been material in detecting dengue fever. This is evident your son is experiencing a rapid breathing?
from the testimony of Mrs. Cortejo:
A: No action. He just asked me if my son has an asthma but I said none.
TSN, Mrs. Cortejo, November 27, 1990
Q: So how long did Dr. Casumpang stay and attended your son on April 23?
Q: Now, when Dr. Casumpang visited your son for the first time at 5:30 p.m., what
A: More or less two (2) minutes then I followed him up to the door and I repeated
did he do, if any?
about the fever of my son.
A: He examined my son by using stethoscope and after that, he confirmed to me that
Q: What did he tell you, if any, regarding that information you gave him that your son
my son was suffering from broncho pneumonia.
had a fever?
Q: After he confirmed that your son was suffering broncho pneumonia, what did you
A: He said, that is broncho pneumonia, It's only being active now. [Emphasis supplied]
sayif any?
We also find it strange why Dr. Casumpang did not even bother to check Edmer's
A: Again, I told Dr. Casumpang, how come it was broncho pneumonia when my son
throat despite knowing that as early as 9:00 in the morning of April 23, 1988, Edmer
has no cough or colds.
had blood streaks in his sputum. Neither did Dr. Casumpang order confirmatory tests
Q: What was the answer of Dr. Casumpang to your statement? to confirm the source of bleeding. The Physician's Progress Notes59 stated: "Blood
streaks on phlegm can be due to bronchial irritation or congestion" which clearly
showed that Dr. Casumpang merely assumed, without confirmatory physical
examination, that bronchopneumonia caused the bleeding.
Dr. Jaudian likewise opined that Dr. Casumpang's medical examination was not
comprehensive enough to reasonably lead to a correct diagnosis.60 Dr. Casumpang
only used a stethoscope in coming up with the diagnosis that Edmer was suffering
from bronchopneumonia; he never confirmed this finding with the use of a
bronchoscope. Furthermore, Dr. Casumpang based his diagnosis largely on the chest
x-ray result that is generally inconclusive.61
Significantly, it was only at around 5:00 in the afternoon of April 23, 1988 (after
Edmer's third episode of bleeding) that Dr. Casumpang ordered the conduct of
hematocrit, hemoglobin, blood typing, blood transfusion and tourniquet tests. These
tests came too late, as proven by: (1) the blood test results that came at about 6:00 in
the evening, confirming that Edmer's illness had developed to "Dengue Hemorrhagic
Fever" and (2) Dr. Jaudian's testimony that "dengue fever could have been detected
earlier than 7:30 in the evening of April 23, 1988 because the symptoms were already
evident."62
In Spouses Flores v. Spouses Pineda,63 a case involving a medical malpractice suit,
the Court ruled that the petitioner doctors were negligent because they failed to
immediately order tests to confirm the patient's illness. Despite the doctors' suspicion
that the patient could be suffering from diabetes, the former still proceeded to the D&C
operation. In that case, expert testimony showed that tests should have been ordered
immediately on admission to the hospital in view of the symptoms presented. The
Court held:
When a patient exhibits symptoms typical of a particular disease, these symptoms
should, at the very least, alert the physician of the possibility that the patient may be
afflicted with the suspected disease.
The Court also ruled that reasonable prudence would have shown that diabetes and its
complications were foreseeable harm. However, the petitioner doctors failed to take
this into consideration and proceeded with the D&C operation. Thus, the Court ruled
that they failed to comply with their duty to observe the standard of care to be given
to hyperglycemic/diabetic patients.
Similarly, in Jarcia,64 involving the negligence of the doctors in failing to exercise
reasonable prudence in ascertaining the extent of the patient's injuries, this Court
declared that:
In failing to perform an extensive medical examination to determine the extent of Roy
Jr.'s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the
medical profession. Assuming for the sake of argument that they did not have the
capacity to make such thorough evaluation at that stage, they should have referred the
patient to another doctor with sufficient training and experience instead of assuring
him and his mother that everything was all right. [Emphasis supplied]
Even assuming that Edmer's symptoms completely coincided with the diagnosis of
bronchopneumonia (so that this diagnosis could not be considered "wrong"), we still
find Dr. Casumpang guilty of negligence.
First, we emphasize that we do not decide the correctness of a doctor's diagnosis, or
the accuracy of the medical findings and treatment. Our duty in medical malpractice
cases is to decide - based on the evidence adduced and expert opinion presented -
whether a breach of duty took place.
Second, we clarify that a wrong diagnosis is not by itself medical malpractice.65
Physicians are generally not liable for damages resulting from a bona fide error of
judgment. Nonetheless, when the physician's erroneous diagnosis was the result of
negligent conduct (e.g., neglect of medical history, failure to order the appropriate
tests, failure to recognize symptoms), it becomes an evidence of medical malpractice.
Third, we also note that medicine is not an exact science;66 and doctors, or even
specialists, are not expected to give a 100% accurate diagnosis in treating patients who
come to their clinic for consultations. Error is possible as the exercise of judgment is
called for in considering and reading the exhibited symptoms, the results of tests, and
in arriving at definitive conclusions. But in doing all these, the doctor must have acted
according to acceptable medical practice standards.
In the present case, evidence on record established that in confirming the diagnosis of
bronchopneumonia, Dr. Casumpang selectively appreciated some and not all of the
symptoms presented, and failed to promptly conduct the appropriate tests to confirm
his findings. In sum, Dr. Casumpang failed to timely detect dengue fever, which
failure, especially when reasonable prudence would have shown that indications of
dengue were evident and/or foreseeable, constitutes negligence.
a. Negligence in the Treatment and Management of Dengue
Apart from failing to promptly detect dengue fever, Dr. Casumpang also failed to
promptly undertake the proper medical management needed for this disease.
As Dr. Jaudian opined, the standard medical procedure once the patient had exhibited
the classic symptoms of dengue fever should have been: oxygen inhalation, use of
analgesic, and infusion of fluids or dextrose;67 and once the patient had twice vomited
fresh blood, the doctor should have ordered: blood transfusion, monitoring of the
patient every 30 minutes, hemostatic to stop bleeding, and oxygen if there is difficulty
in breathing.68
Dr. Casumpang failed to measure up to these standards. The evidence strongly
suggests that he ordered a transfusion of platelet concentrate instead of blood
transfusion. The tourniquet test was only conducted after Edmer's second episode of
bleeding, and the medical management (as reflected in the records) did not include
antibiotic therapy and complete physical examination.
Dr. Casumpang's testimony states:
Q:Now, after entertaining - After considering that the patient Edmer Cortero was
already suffering from dengue hemorrhagic fever, what did you do, if any?
A:We ordered close monitoring of the blood pressure, the cardiac rate and respiratory
rate of the patient.
Q:Now, was your instructions carried on?
A:Yes, sir.
Q: What was the blood pressure of the patient?
A: During those times, the blood pressure of the patient was even normal during those
times.
Q: How about the respiratory rate?
A: The respiratory rate was fast because the patient in the beginning since admission
had difficulty in breathing.
Q: Then, after that, what did you do with the patient? Doctor?
A: We transfused platelet concentrate and at the same time, we monitor [sic] the
patient.
Q: Then, who monitor [sic] the patient?
A: The pediatric resident on duty at that time.
Q: Now, what happened after that?
Q: While monitoring the patient, all his vital signs were ________; his blood pressure
was normal so we continued with the supportive management at that time.
Q: Now, after that?
A: In the evening of April 23, 1988,1 stayed in the hospital and I was informed by the
pediatric resident on duty at around 11:15 in the evening that the blood pressure of the
patient went down to .60 palpatory.
Q: What did you do upon receipt of that information?
A: I immediately went up to the room of the patient and we changed the IV fluid from
the present fluid which was D5 0.3 sodium chloride to lactated ringers solution.
Q: You mean to say you increased the dengue [sic] of the intervenus [sic] fluid?
A: We changed the IV fluid because lactated ringers was necessary to resume the
volume and to bring back the blood pressure, to increase the blood pressure. [Emphasis
supplied]
Although Dr. Casumpang presented the testimonies of Dr. Rodolfo Jagonap and Dr.
Ellewelyn Pasion (Dr. Pasion), Personnel Officer and Medical Director of SJDH,
respectively as well as the testimonies of Dr. Livelo and Dr. Reyes (the radiologist
who read Edmer's chest x-ray result), these witnesses failed to dispute the standard of
action that Dr. Jaudian established in his expert opinion. We cannot consider them
expert witnesses either for the sole reason that they did not testify on the standard of
care in dengue cases.69
On the whole, after examining the totality of the adduced evidence, we find that the
lower courts correctly did not rely on Dr. Casumpang's claim that he exercised
prudence and due diligence in handling Edmer's case. Aside from being self-serving,
his claim is not supported by competent evidence. As the lower courts did, we rely on
the uncontroverted fact that he failed, as a medical professional, to observe the most
prudent medical procedure under the circumstances in diagnosing and treating Edmer.
Dr. Miranda is Not Liable for Negligence
In considering the case of Dr. Miranda, the junior resident physician who was on-duty
at the time of Edmer's confinement, we see the need to draw distinctions between the
responsibilities and corresponding liability of Dr. Casumpang, as the attending
physician, and that of Dr. Miranda.
In his testimony, Dr. Pasion declared that resident applicants are generally doctors of
medicine licensed to practice in the Philippines and who would like to pursue a
particular specialty.70 They are usually the front line doctors responsible for the first
contact with the patient. During the scope of the residency program,71 resident
physicians (or "residents")72 function under the supervision of attending physicians73
or of the hospital's teaching staff. Under this arrangement, residents operate merely as
subordinates who usually defer to the attending physician on the decision to be made
and on the action to be taken.
The attending physician, on the other hand, is primarily responsible for managing the
resident's exercise of duties. While attending and resident physicians share the
collective responsibility to deliver safe and appropriate care to the patients,74 it is the
attending physician who assumes the principal responsibility of patient care.75
Because he/she exercises a supervisory role over the resident, and is ultimately
responsible for the diagnosis and treatment of the patient, the standards applicable to
and the liability of the resident for medical malpractice is theoretically less than that
of the attending physician. These relative burdens and distinctions, however, do not
translate to immunity from the legal duty of care for residents,76 or from the
responsibility arising from their own negligent act.
In Jenkins v. Clark,77 the Ohio Court of Appeals held that the applicable standard of
care in medical malpractice cases involving first-year residents was that of a
reasonably prudent physician and not that of interns. According to Jenkins:
It is clear that the standard of care required of physicians is not an individualized one
but of physicians in general in the community. In order to establish medical
malpractice, it must be shown by a preponderance of the evidence that a physician did
some particular thing or things that a physician or surgeon of ordinary skill, care and
diligence would not have done under like or similar conditions or circumstances, or
that he failed or omitted to do some particular thing or things that a physician or
surgeon of ordinary skill, care and diligence would have done under like or similar
conditions or circumstances, and that the inquiry complained of was the direct result
of such doing or failing to do such thing or things.
We note that the standard of instruction given by the court was indeed a proper one. It
clearly informed the jury that the medical care required is that of reasonably careful
physicians or hospital emergency room operators, not of interns or residents.
[Emphasis supplied]
A decade later, Centman v. Cobb,78 affirmed the Jenkins ruling and held that interns
and first-year residents are "practitioners of medicine required to exercise the same
standard of care applicable to physicians with unlimited licenses to practice." The
Indiana Court held that although a first-year resident practices under a temporary
medical permit, he/she impliedly contracts that he/she has the reasonable and ordinary
qualifications of her profession and that he/she will exercise reasonable skill,
diligence, and care in treating the patient.
We find that Dr. Miranda was not independently negligent. Although she had greater
patient exposure, and was' subject to the same standard of care applicable to attending
physicians, we believe that a finding of negligence should also depend on several
competing factors, among them, her authority to make her own diagnosis, the degree
of supervision of the attending physician over her, and the shared responsibility
between her and the attending physicians.
In this case, before Dr. Miranda attended to Edmer, both Dr. Livelo and Dr.
Casumpang had diagnosed Edmer with bronchopneumonia. In her testimony, Dr.
Miranda admitted that she had been briefed about Edmer's condition, his medical
history, and initial diagnosis;79 and based on these pieces of information, she
confirmed the, finding of bronchopneumonia.
Dr. Miranda likewise duly reported to Dr. Casumpang, who admitted receiving
updates regarding Edmer's condition.80 There is also evidence supporting Dr.
Miranda's claim that she extended diligent care to Edmer. In fact, when she suspected
- during Edmer's second episode of bleeding - that Edmer could be suffering from
dengue fever, she wasted no time in conducting the necessary tests, and promptly
notified Dr. Casumpang about the incident. Indubitably, her medical assistance led to
the finding of dengue fever.
We note however, that during Edmer's second episode of bleeding,81 Dr. Miranda
failed to immediately examine and note the cause of the blood specimen. Like Dr.
Casumpang, she merely assumed that the blood in Edmer's phlegm was caused by
bronchopneumonia. Her testimony states:
TSN, June 8, 1993:
Q: Let us get this clear, you said that the father told you the patient cocked [sic] out
phlegm.
A: With blood streak.
Q: Now, you stated specimen, were you not able to examine the specimen?
A: No, sir, I did not because according to the father he wash [sic] his hands
xxxx
Q: Now, from you knowledge, what does that indicate if the patient expels a phlegm
and blood streak?
A: If a patient cocked [sic] out phlegm then the specimen could have come from the
lung alone.82 [Emphasis supplied]
xxxx
TSN, June 17, 1993:
Q: Now, in the first meeting you had, when that was relayed to you by the father that
Edmer Cortejo had coughed out blood, what medical action did you take?
A: I examined the patient and I thought that, that coughed out phlegm was a product
of broncho pneumonia.
xxxx
Q: So what examination did you specifically conduct to see that there was no internal
bleeding?
A: At that time I did not do anything to determine the cause of coughing of the blood
because I presumed that it was a mucous (sic) produced by broncho pneumonia, And
besides the patient did not even show any signs of any other illness at that time.[83
Based on her statements we find that Dr. Miranda was not entirely faultless.
Nevertheless, her failure to discern the import of Edmer's second bleeding does not
necessarily amount to negligence as the respondent himself admitted that Dr. Miranda
failed to examine the blood specimen because he washed it away. In addition,
considering the diagnosis previously made by two doctors, and the uncontroverted fact
that the burden of final diagnosis pertains to the attending physician (in this case, Dr.
Casumpang), we believe that Dr. Miranda's error was merely an honest mistake of
judgment influenced in no small measure by her status in the hospital hierarchy; hence,
she should not be held liable for medical negligence.
Dr. Jaudian 's Professional Competence and Credibility
One of the critical issues the petitioners raised in the proceedings before the lower
court and before this Court was Dr. Jaudian's competence and credibility as an expert
witness. The petitioners tried to discredit his expert testimony on the ground that he
lacked the proper training and fellowship status in pediatrics.
Criteria in Qualifying as an Expert Witness
The competence of an expert witness is a matter for the trial court to decide upon in
the exercise of its discretion. The test of qualification is necessarily a relative one,
depending upon the subject matter of the investigation, and the fitness of the expert
witness.84 In our jurisdiction, the criterion remains to be the expert witness' special
knowledge experience and practical training that qualify him/her to explain highly
technical medical matters to the Court.
In Ramos v. Court of Appeals,85 the Court found the expert witness, who is a
pulmonologist, not qualified to testify on the field of anesthesiology. Similarly, in
Cereno v. Court of Appeals,86 a 2012 case involving medical negligence, the Court
excluded the testimony of an expert witness whose specialty was anesthesiology, and
concluded that an anesthesiologist cannot be considered an expert in the field of
surgery or even in surgical practices and diagnosis.
Interestingly in this case, Dr. Jaudian, the expert witness was admittedly not a
pediatrician but a practicing physician who specializes in pathology.87 He likewise
does not possess any formal residency training in pediatrics. Nonetheless, both the
lower courts found his knowledge acquired through study and practical experience
sufficient to advance an expert opinion on dengue-related cases.
WE AGREE WITH THE LOWER COURTS.
A close scrutiny of Ramos and Cereno reveals that the Court primarily based the
witnesses' disqualification to testify as an expert on their incapacity to shed light on
the standard of care that must be observed by the defendant-physicians. That the expert
witnesses' specialties do not match the physicians' practice area only constituted, at
most, one of the considerations that should not be taken out of context. After all, the
sole function of a medical expert witness, regardless of his/her specialty, is to afford
assistance to the courts on medical matters, and to explain the medical facts in issue.
Furthermore, there was no reasonable indication in Ramos and Cereno that the expert
witnesses possess a sufficient familiarity with the standard of care applicable to the
physicians' specialties.
US jurisprudence on medical malpractice demonstrated the trial courts' wide latitude
of discretion in allowing a specialist from another field to testify against a defendant
specialist.
In Brown v. Sims,88 a neurosurgeon was found competent to give expert testimony
regarding a gynecologist's standard of pre-surgical care. In that case, the court held
that since negligence was not predicated on the gynecologist's negligent performance
of the operation, but primarily on the claim that the pre-operative histories and
physicals were inadequate, the neurosurgeon was competent to testify as an expert.
Frost v. Mayo Clinic89 also allowed an orthopedic surgeon to testify against a
neurologist in a medical malpractice action. The court considered that the orthopedic
surgeon's opinion on the "immediate need for decompression" need not come from a
specialist in neurosurgery. The court held that:
It is well established that "the testimony of a qualified medical doctor cannot be
excluded simply because he is not a specialist x x x." The matter of "x x x training and
specialization of the witness goes to the weight rather than admissibility x x x."
xxxx
It did not appear to the court that a medical doctor had to be a specialist in neurosurgery
to express the opinions permitted to be expressed by plaintiffs' doctors, e.g., the
immediate need for a decompression in the light of certain neurological deficits in a
post-laminectomy patient. As stated above, there was no issue as to the proper
execution of the neurosurgery. The medical testimony supported plaintiffs' theory of
negligence and causation. (Citations omitted)
In another case,90 the court declared that it is the specialist's knowledge of the requisite
subject matter, rather than his/her specialty that determines his/her qualification to
testify.
Also in Evans v. Ohanesian,91 the court set a guideline in qualifying an expert witness:
To qualify a witness as a medical expert, it must be shown that the witness (1) has the
required professional knowledge, learning and skill of the subject under inquiry
sufficient to qualify him to speak with authority on the subject; and (2) is familiar with
the standard required of a physician under similar circumstances; where a witness has
disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury,
the question of the degree of his knowledge goes more to the weight of the evidence
than to its admissibility.
xxxx
Nor is it critical whether a medical expert is a general practitioner or a specialist so
long as he exhibits knowledge of the subject. Where a duly licensed and practicing
physician has gained knowledge of the standard of care applicable to a specialty in
which he is not directly engaged but as to which he has an opinion based on education,
experience, observation, or association wit that specialty, his opinion is competent.
(Emphasis supplied)
Finally, Brown v. Mladineo92 adhered to the principle that the witness' familiarity,
and not the classification by title or specialty, which should control issues regarding
the expert witness' qualifications:
The general rule as to expert testimony in medical malpractice actions is that "a
specialist in a particular branch within a profession will not be required." Most courts
allow a doctor to testify if they are satisfied of his familiarity with the standards of a
specialty, though he may not practice the specialty himself. One court explained that
"it is the scope of the witness' knowledge and not the artificial classification by title
that should govern the threshold question of admissibility. (Citations omitted)
Application to the Present Case
In the case and the facts before us, we find that Dr. Jaudian is competent to testify on
the standard of care in dengue fever cases.
Although he specializes in pathology, it was established during trial that he had
attended not less than 30 seminars held by the Pediatric Society, had exposure in
pediatrics, had been practicing medicine for 16 years, and had handled not less than
50 dengue related cases.
As a licensed medical practitioner specializing in pathology, who had practical and
relevant exposure in pediatrics and dengue related cases, we are convinced that Dr.
Jaudian demonstrated sufficient familiarity with the standard of care to be applied in
dengue fever cases. Furthermore, we agree that he possesses knowledge and
experience sufficient to qualify him to speak with authority on the subject.
The Causation Between Dr. Casumpang's Negligent Act/Omission, and the Patient's
Resulting Death was Adequately Proven
Dr. Jaudian's testimony strongly suggests that due to Dr. Casumpang's failure to timely
diagnose Edmer with dengue, the latter was not immediately given the proper
treatment. In fact, even after Dr. Casumpang had discovered Edmer's real illness, he
still failed to promptly perform the standard medical procedure. We agree with these
findings.
As the respondent had pointed out, dengue fever, if left untreated, could be a life
threatening disease. As in any fatal diseases, it requires immediate medical
attention.93 With the correct and timely diagnosis, coupled with the proper medical
management, dengue fever is not a life-threatening disease and could easily be
cured.94
Furthermore, as Dr. Jaudian testified, with adequate intensive care, the mortality rate
of dengue fever should fall to less than 2%. Hence, the survival of the patient is
directly related to early and proper management of the illness.95
To reiterate, Dr. Casumpang failed to timely diagnose Edmer with dengue fever
despite the presence of its characteristic symptoms; and as a consequence of the
delayed diagnosis, he also failed to promptly manage Edmer's illness. Had he
immediately conducted confirmatory tests, (i.e., tourniquet tests and series of blood
tests) and promptly administered the proper care and management needed for dengue
fever, the risk of complications or even death, could have been substantially reduced.
Furthermore, medical literature on dengue shows that early diagnosis and management
of dengue is critical in reducing the risk of complications and avoiding further spread
of the virus.96 That Edmer later died of "Hypovolemic Shock/hemorrhagic shock,"
"Dengue Hemorrhagic Fever Stage IV," a severe and fatal form of dengue fever,
established the causal link between Dr. Casumpang's negligence and the injury.
Based on these considerations, we rule that the respondent successfully proved the
element of causation.
Liability of SJDH
We now discuss the liability of the hospital.
The respondent submits that SJDH should not only be held vicariously liable for the
petitioning doctors' negligence but also for its own negligence. He claims that SJDH
fell short of its duty of providing its patients with the necessary facilities and
equipment as shown by the following circumstances:
(a) SJDH was not equipped with proper paging system;
(b) the number of its doctors is not proportionate to the number of patients;
(c) SJDH was not equipped with a bronchoscope;
(d) when Edmer's oxygen was removed, the medical staff did not immediately provide
him with portable oxygen;
(e) when Edmer was about to be transferred to another hospital, SJDH's was not ready
and had no driver; and
(f)despite Edmer's critical condition, there was no doctor attending to him from 5:30
p.m. of April 22, to 9:00 a.m. of April 23, 1988.
SJDH on the other hand disclaims liability by claiming that the petitioning doctors are
not its employees but are mere consultants and independent contractors.
We affirm the hospital's liability not on the basis of Article 2180 of the Civil Code, but
on the basis of the doctrine of apparent authority or agency by estoppel.
There is No Employer-Employee Relationship Between SJDH and the Petitioning
Doctors
In determining whether an employer-employee relationship exists between the parties,
the following elements must be present: (1) selection and engagement of services; (2)
payment of wages; (3) the power to hire and fire; and (4) the power to control not only
the end to be achieved, but the means to be used in reaching such an end.97
Control, which is the most crucial among the elements, is not present in this case.
Based on the records, no evidence exists showing that SJDH exercised any degree of
control over the means, methods of procedure and manner by which the petitioning
doctors conducted and performed their medical profession. SJDH did not control their
diagnosis and treatment. Likewise, no evidence was presented to show that SJDH
monitored, supervised, or directed the petitioning doctors in the treatment and
management of Edmer's case. In these lights, the petitioning doctors were not
employees of SJDH, but were mere independent contractors.
SJDH is Solidarity Liable Based on The Principle of Agency or Doctrine of
Apparent Authority
Despite the absence of employer-employee relationship between SJDH and the
petitioning doctors, SJDH is not free from liability.98
As a rule, hospitals are not liable for the negligence of its independent contractors.
However, it may be found liable if the physician or independent contractor acts as an
ostensible agent of the hospital. This exception is also known as the "doctrine of
apparent authority."99
The US case of Gilbert v. Sycamore Municipal Hospital100 abrogated the hospitals'
immunity to vicarious liability of independent contractor physicians. In that case, the
Illinois Supreme Court held that under the doctrine of apparent authority, hospitals
could be found vicariously liable for the negligence of an independent contractor:
Therefore, we hold that, under the doctrine of apparent authority, a hospital can be
held vicariously liable for the negligent acts of a physician providing care at the
hospital, regardless of whether the physician is an independent contractor, unless the
patient knows, or should have known, that the physician is an independent contractor.
The elements of the action have been set out as follows:
For a hospital to be liable under the doctrine of apparent authority, a plaintiff must
show that: (1) the hospital, or its agent, acted in a manner that would lead a reasonable
person to conclude that the individual who was alleged to be negligent was an
employee or agent of the hospital; (2) where the acts of the agent create the appearance
of authority, the plaintiff must also prove that the hospital had knowledge of and
acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary care and prudence. (Emphasis supplied)
The doctrine was applied in Nogales v. Capitol Medical Center101 where this Court,
through the ponencia of Associate Justice Antonio T. Carpio, discussed the two factors
in determining hospital liability as follows:
The first factor focuses on the hospital's manifestations and is sometimes described as
an inquiry whether the hospital acted in a manner which would lead a reasonable
person to conclude that the individual who was alleged to be negligent was an
employee or agent of the hospital. In this regard, the hospital need not make express
representations to the patient that the treating physician is an employee of the hospital;
rather a representation may be general and implied.
xxxx
The second factor focuses on the patient's reliance. It is sometimes characterized as an
inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or
its agent, consistent with ordinary care and prudence. (Citation omitted)
In sum, a hospital can be held vicariously liable for the negligent acts of a physician
(or an independent contractor) providing care at the hospital if the plaintiff can prove
these two factors: first, the hospital's manifestations; and second, the patient's reliance.
a. Hospital's manifestations
It involves an inquiry on whether the hospital acted in a manner that would lead a
reasonable person to conclude that the individual alleged to be negligent was an
employee or agent of the hospital. As pointed out in Nogales, the hospital need not
make express representations to the patient that the physician or independent
contractor is an employee of the hospital; representation may be general and
implied.102
In Pamperin v. Trinity Memorial Hospital,103 questions were raised on "what acts by
the hospital or its agent are sufficient to lead a reasonable person to conclude that the
individual was an agent of the hospital." In ruling that the hospital's manifestations can
be proven without the express representation by the hospital, the court relied on several
cases from other jurisdictions, and held that:
(1) the hospital, by providing emergency room care and by failing to advise patients
that they were being treated by the hospital's agent and not its employee, has created
the appearance of agency; and
(2) patients entering the hospital through the emergency room, could properly assume
that the treating doctors and staff of the hospital were acting on its behalf.
In this case, the court considered the act of the hospital of holding itself out as provider
of complete medical care, and considered the hospital to have impliedly created the
appearance of authority.
b. Patient's reliance
It involves an inquiry on whether the plaintiff acted in reliance on the conduct of the
hospital or its agent, consistent with ordinary care and prudence.104
In Pamperin, the court held that the important consideration in determining the
patient's reliance is: whether the plaintiff is seeking care from the hospital itself or
whether the plaintiff is looking to the hospital merely as a place for his/her personal
physician to provide medical care.105
Thus, this requirement is deemed satisfied if the plaintiff can prove that he/she relied
upon the hospital to provide care and treatment, rather than upon a specific physician.
In this case, we shall limit the determination of the hospital's apparent authority to Dr.
Casumpang, in view of our finding that Dr. Miranda is not liable for negligence.
SJDH Clothed Dr. Casumpang With Apparent Authority
SJDH impliedly held out and clothed Dr. Casumpang with apparent authority leading
the respondent to believe that he is an employee or agent of the hospital.
Based on the records, the respondent relied on SJDH rather than upon Dr. Casumpang,
to care and treat his son Edmer. His testimony during trial showed that he and his wife
did not know any doctors at SJDH; they also did not know that Dr. Casumpang was
an independent contractor. They brought their son to SJDH for diagnosis because of
their family doctor's referral. The referral did not specifically point to Dr. Casumpang
or even to Dr. Miranda, but to SJDH.
Significantly, the respondent had relied on SJDH's representation of Dr. Casumpang's
authority. To recall, when Mrs. Cortejo presented her Fortune Care card, she was
initially referred to the Fortune Care coordinator, who was then out of town. She was
thereafter referred to Dr. Casumpang, who is also accredited with Fortune Care. In
both instances, SJDH through its agent failed to advise Mrs. Cortejo that Dr.
Casumpang is an independent contractor.
Mrs. Cortejo accepted Dr. Casumpang's services on the reasonable belief that such
were being provided by SJDH or its employees, agents, or servants. By referring Dr.
Casumpang to care and treat for Edmer, SJDH impliedly held out Dr. Casumpang, not
only as an accredited member of Fortune Care, but also as a member of its medical
staff. SJDH cannot now disclaim liability since there is no showing that Mrs. Cortejo
or the respondent knew, or should have known, that Dr. Casumpang is only an
independent contractor of the hospital. In this case, estoppel has already set in.
We also stress that Mrs. Cortejo's use of health care plan (Fortune Care) did not affect
SJDH's liability. The only effect of the availment of her Fortune Care card benefits is
that her choice of physician is limited only to physicians who are accredited with
Fortune Care. Thus, her use of health care plan in this case only limited the choice of
doctors (or coverage of services, amount etc.) and not the liability of doctors or the
hospital.
WHEREFORE, premises considered, this Court PARTLY GRANTS the consolidated petitions. The
Court finds Dr. Noel Casumpang and San Juan de Dios Hospital solidarity liable for negligent medical
practice. We SET ASIDE the finding of liability as to Dr. Ruby Sanga-Miranda. The amounts of P45,000.00
as actual damages and P500,000.00 as moral damages should each earn legal interest at the rate of six percent
(6%) per annum computed from the date of the judgment of the trial court. The Court AFFIRMS the rest of
the Decision dated October 29, 2004 and the Resolution dated January 12, 2006 in CA-G.R. CV No. 56400.
SO ORDERED.
 Republic of the Philippines
Supreme Court
Manila
THIRD DIVISION
G.R. No. 187926 February 15, 2012
Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan, VS. PEOPLE OF THE
PHILIPPINES,
DECISION
MENDOZA, J.:
Even early on, patients have consigned their lives to the skill of their doctors. Time
and again, it can be said that the most important goal of the medical profession is the
preservation of life and health of the people. Corollarily, when a physician departs
from his sacred duty and endangers instead the life of his patient, he must be made
liable for the resulting injury. This Court, as this case would show, cannot and will not
let the act go unpunished.[1]
This is a petition for review under Rule 45 of the Rules of Court challenging the August
29, 2008 Decision[2] of the Court of Appeals (CA), and its May 19, 2009
Resolution[3] in CA-G.R. CR No. 29559, dismissing the appeal and affirming in toto
the June 14, 2005 Decision[4] of the Regional Trial Court, Branch 43, Manila (RTC),
finding the accused guilty beyond reasonable doubt of simple imprudence resulting to
serious physical injuries.
THE FACTS
Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of
Investigation (NBI) against the petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and
Dr. Marilou Bastan (Dr. Bastan), for their alleged neglect of professional duty which
caused her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical injuries.
Upon investigation, the NBI found that Roy Jr. was hit by a taxicab; that he was rushed
to the Manila Doctors Hospital for an emergency medical treatment; that an X-ray of
the victims ankle was ordered; that the X-ray result showed no fracture as read by Dr.
Jarcia; that Dr. Bastan entered the emergency room (ER) and, after conducting her
own examination of the victim, informed Mrs. Santiago that since it was only the ankle
that was hit, there was no need to examine the upper leg; that eleven (11) days later,
Roy Jr. developed fever, swelling of the right leg and misalignment of the right foot;
that Mrs. Santiago brought him back to the hospital; and that the X-ray revealed a right
mid-tibial fracture and a linear hairline fracture in the shaft of the bone.
The NBI indorsed the matter to the Office of the City Prosecutor of Manila for
preliminary investigation. Probable cause was found and a criminal case for reckless
imprudence resulting to serious physical injuries, was filed against Dr. Jarcia, Dr.
Bastan and Dr. Pamittan,[5] before the RTC, docketed as Criminal Case No. 01-
196646.
On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of
the crime of Simple Imprudence Resulting to Serious Physical Injuries. The decretal
portion of the RTC decision reads:
WHEREFORE, premises considered, the Court finds accused DR.
EMMANUEL JARCIA, JR. and DR. MARILOU BASTAN GUILTY
beyond reasonable doubt of the crime of SIMPLE IMPRUDENCE
RESULTING TO SERIOUS PHYSICAL INJURIES and are hereby
sentenced to suffer the penalty of ONE (1) MONTH and ONE (1) DAY to
TWO (2) MONTHS and to indemnify MRS. BELINDA SANTIAGO the
amount of 3,850.00 representing medical expenses without subsidiary
imprisonment in case of insolvency and to pay the costs.
It appearing that Dr. Pamittan has not been apprehended nor voluntarily
surrendered despite warrant issued for her arrest, let warrant be issued for
her arrest and the case against her be ARCHIVED, to be reinstated upon
her apprehension.
SO ORDERED.[6]
The RTC explained:
After a thorough and in depth evaluation of the evidence adduced by the prosecution
and the defense, this court finds that the evidence of the prosecution is the more
credible, concrete and sufficient to create that moral certainty in the mind of the Court
that accused herein [are] criminally responsible. The Court believes that accused are
negligent when both failed to exercise the necessary and reasonable prudence in
ascertaining the extent of injury of Alfonso Santiago, Jr.
However, the negligence exhibited by the two doctors does not approximate
negligence of a reckless nature but merely amounts to simple imprudence. Simple
imprudence consists in the lack of precaution displayed in those cases in which the
damage impending to be caused is not the immediate nor the danger clearly manifest.
The elements of simple imprudence are as follows.
1. that there is lack of precaution on the part of the offender; and
2. that the damage impending to be caused is not immediate of the danger is not
clearly manifest.
Considering all the evidence on record, The Court finds the accused guilty for simple
imprudence resulting to physical injuries. Under Article 365 of the Revised Penal
Code, the penalty provided for is arresto mayor in its minimum period.[7]
Dissatisfied, the petitioners appealed to the CA.
As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008
Decision of the CA pertinently reads:
This Court holds concurrently and finds the foregoing circumstances sufficient to
sustain a judgment of conviction against the accused-appellants for the crime of simple
imprudence resulting in serious physical injuries. The elements of imprudence are: (1)
that the offender does or fails to do an act; (2) that the doing or the failure to do that
act is voluntary; (3) that it be without malice; (4) that material damage results from the
imprudence; and (5) that there is inexcusable lack of precaution on the part of the
offender, taking into consideration his employment or occupation, degree of
intelligence, physical condition, and other circumstances regarding persons, time and
place.
Whether or not Dr. Jarcia and Dr. Bastan had committed an inexcusable lack of
precaution in the treatment of their patient is to be determined according to the standard
of care observed by other members of the profession in good standing under similar
circumstances, bearing in mind the advanced state of the profession at the time of
treatment or the present state of medical science. In the case of Leonila Garcia-Rueda
v. Pascasio, the Supreme Court stated that, in accepting a case, a doctor in effect
represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in
the treatment of his patients. He therefore has a duty to use at least the same level of
care that any other reasonably competent doctor would use to treat a condition under
the same circumstances.
In litigations involving medical negligence, the plaintiff has the burden of establishing
accused-appellants negligence, and for a reasonable conclusion of negligence, there
must be proof of breach of duty on the part of the physician as well as a causal
connection of such breach and the resulting injury of his patient. The connection
between the negligence and the injury must be a direct and natural sequence of events,
unbroken by intervening efficient causes. In other words, the negligence must be the
proximate cause of the injury. Negligence, no matter in what it consists, cannot create
a right of action unless it is the proximate cause of the injury complained of. The
proximate cause of an injury is that cause which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury and without which
the result would not have occurred.
In the case at bench, the accused-appellants questioned the imputation against them
and argued that there is no causal connection between their failure to diagnose the
fracture and the injury sustained by Roy.
WE ARE NOT CONVINCED.
The prosecution is however after the cause which prolonged the pain and suffering of
Roy and not on the failure of the accused-appellants to correctly diagnose the extent
of the injury sustained by Roy.
For a more logical presentation of the discussion, we shall first consider the
applicability of the doctrine of res ipsa loquitur to the instant case. Res ipsa loquitur is
a Latin phrase which literally means the thing or the transaction speaks for itself. 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 accused-
appellant who is charged with negligence. 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. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common
knowledge.
The specific acts of negligence was narrated by Mrs. Santiago who accompanied her
son during the latters ordeal at the hospital. She testified as follows
Fiscal Formoso:
Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra. Pamittan to
confirm whether you should go home or not?
A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go
home and you dont even clean the wounds of my son.
Q: And what did she [tell] you?
A: They told me they will call a resident doctor, sir.
xxxxxxxxx
Q: Was there a resident doctor [who] came?
A: Yes, Sir. Dra. Bastan arrived.
Q: Did you tell her what you want on you to be done?
A: Yes, sir.
Q: What did you [tell] her?
A: I told her, sir, while she was cleaning the wounds of my son, are you not going to
x-ray up to the knee because my son was complaining pain from his ankle up to the
middle part of the right leg.
Q: And what did she tell you?
A: According to Dra. Bastan, there is no need to x-ray because it was the ankle part
that was run over.
Q: What did you do or tell her?
A: I told her, sir, why is it that they did not examine[x] the whole leg. They just lifted
the pants of my son.
Q: So you mean to say there was no treatment made at all?
A: None, sir.
xxxxxxxxx
A: I just listened to them, sir. And I just asked if I will still return my son.
xxxxxxxxx
Q: And you were present when they were called?
A: Yes, sir.
Q: And what was discussed then by Sis. Retoria?
A: When they were there they admitted that they have mistakes, sir.
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.
In the above requisites, the fundamental element is the control of the instrumentality
which caused the damage. Such element of control must be shown to be within the
dominion of the accused-appellants. 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. The early treatment of the leg of Roy would have lessen his
suffering if not entirely relieve him from the fracture. A boy of tender age whose leg
was hit by a vehicle would engender a well-founded belief that his condition may
worsen without proper medical attention. As junior residents who only practice general
surgery and without specialization with the case consulted before them, they should
have referred the matter to a specialist. This omission alone constitutes simple
imprudence on their part. When Mrs. Santiago insisted on having another x-ray of her
child on the upper part of his leg, they refused to do so. The mother would not have
asked them if they had no exclusive control or prerogative to request an x-ray test.
Such is a fact because a radiologist would only conduct the x-ray test upon request of
a physician.
The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata. He
further testified based on his personal knowledge, and not as an expert, as he examined
himself the child Roy. He testified as follows:
Fiscal Macapagal:
Q: And was that the correct respon[se] to the medical problem that was presented to
Dr. Jarcia and Dra. Bastan?
A: I would say at that stage, yes. Because they have presented the patient and the
history. At sabi nila, nadaanan lang po ito. And then, considering their year of
residency they are still junior residents, and they are not also orthopedic residents but
general surgery residents, its entirely different thing. Because if you are an orthopedic
resident, I am not trying to saybut if I were an orthopedic resident, there would be
more precise and accurate decision compare to a general surgery resident in so far as
involved.
Q: You mean to say there is no supervisor attending the emergency room?
A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a
consultant that usually comes from a family medicine. They see where a certain patient
have to go and then if they cannot manage it, they refer it to the consultant on duty.
Now at that time, I dont [know] why they dont.Because at that time, I think, it is the
decision. Since the x-rays.
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, external appearances, and manifest conditions which are observable by any
one may be given by non-expert witnesses. 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. 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. In the case at bench, we give credence to the testimony of Mrs. Santiago by
applying the doctrine of res ipsa loquitur.
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. 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. The latter
circumstance is the primordial issue that confronted this Court and we find application
of the doctrine of res ipsa loquitur to be in order.
WHEREFORE, in view of the foregoing, the appeal in this case is hereby
DISMISSED and the assailed decision of the trial court finding accused-
appellants guilty beyond reasonable doubt of simple imprudence resulting in
serious physical injuries is hereby AFFIRMED in toto.
SO ORDERED.[8]
The petitioners filed a motion for reconsideration, but it was denied by the CA in its
May 19, 2009 Resolution.
Hence, this petition.
The petitioners pray for the reversal of the decision of both the RTC and the CA
anchored on the following
GROUNDS-
1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE COURT OF
APPEALS ERRED IN NOT HOLDING THAT THE ACTUAL, DIRECT,
IMMEDIATE, AND PROXIMATE CAUSE OF THE PHYSICAL INJURY OF THE
PATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICH REQUIRED
MEDICAL ATTENDANCE FOR MORE THAN THIRTY (30) DAYS AND
INCAPACITATED HIM FROM PERFORMING HIS CUSTOMARY DUTY
DURING THE SAME PERIOD OF TIME, WAS THE VEHICULAR ACCIDENT
WHERE THE PATIENTS RIGHT LEG WAS HIT BY A TAXI, NOT THE
FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT THE PATIENTS
WHOLE LEG TO AN X-RAY EXAMINATION.
2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED
FACTS CLEARLY NEGATING PETITIONERS ALLEGED NEGLIGENCE OR
IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS
UNJUSTIFIABLY DISREGARDED THE OPINION OF THE PROSECUTIONS
EXPERT WITNESS, DR. CIRILO TACATA, THAT PETITIONERS WERE NOT
GUILTY OF NEGLIGENCE OR IMPRUDENCE COMPLAINED OF.
3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF
PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY
EXAMINATION PROLONGED THE PAIN AND SUFFERING OF THE PATIENT,
SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN CONTRARY
TO, THE EVIDENCE ON RECORD.
4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED
PROLONGED PAIN AND SUFFERING, THE COURT OF APPEALS ERRED IN
NOT HOLDING THAT THE ALLEGED PAIN AND SUFFERING WERE DUE TO
THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A NURSE
HERSELF, TO IMMEDIATELY BRING THE PATIENT BACK TO THE
HOSPITAL, AS ADVISED BY THE PETITIONERS, AFTER HE COMPLAINED
OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE REACHED HOME AFTER HE
WAS SEEN BY PETITIONERS AT THE HOSPITAL. THUS, THE PATIENTS
ALLEGED INJURY (PROLONGED PAIN AND SUFFERING) WAS DUE TO HIS
OWN MOTHERS ACT OR OMISSION.
5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO
PHYSICIAN-PATIENT RELATIONSHIP EXISTED BETWEEN PETITIONERS
AND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS NOT BEING THE
LATTERS ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTED
BY THE EMERGENCY ROOM (ER) NURSE TO SEE THE PATIENT WHILE
THEY WERE PASSING BY THE ER FOR THEIR LUNCH.
6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING
ACCUSED-PETITIONERS OF THE CRIME CHARGED.[9]
The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine
of res ipsa loquitur is applicable in this case; and [2] whether or not the petitioners are
liable for criminal negligence.
THE COURTS RULING
The CA is correct in finding that there was negligence on the part of the petitioners.
After a perusal of the records, however, the Court is not convinced that the petitioners
are guilty of criminal negligence complained of. The Court is also of the view that the
CA erred in applying the doctrine of res ipsa loquitur in this particular case.
As to the Application of The Doctrine of Res Ipsa Loquitur
This doctrine of res ipsa loquitur means "Where the thing which causes injury is shown
to be under the management of the defendant, and the accident is such as in the
ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care." The Black's Law Dictionary
defines the said doctrine. Thus:
The thing speaks for itself. Rebuttable presumption or inference that defendant was
negligent, which arises upon proof that the instrumentality causing injury was in
defendant's exclusive control, and that the accident was one which ordinarily does not
happen in absence of negligence. Res ipsa loquitur is a rule of evidence whereby
negligence of the alleged wrongdoer may be inferred from the mere fact that the
accident happened provided the character of the accident and circumstances attending
it lead reasonably to belief that in the absence of negligence it would not have occurred
and that thing which caused injury is shown to have been under the management and
control of the alleged wrongdoer. Under this doctrine, the happening of an injury
permits an inference of negligence where plaintiff produces substantial evidence that
the injury was caused by an agency or instrumentality under the exclusive control and
management of defendant, and that the occurrence was such that in the ordinary course
of things would not happen if reasonable care had been used.[10]
The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of
negligence which recognizes that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of negligence. The doctrine,
however, is not a rule of substantive law, but merely a mode of proof or a mere
procedural convenience. The rule, when applicable to the facts and circumstances of a
given case, is not meant to and does not dispense with the requirement of proof of
culpable negligence on the party charged. It merely determines and regulates what
shall be prima facie evidence thereof and helps the plaintiff in proving a breach of the
duty. The doctrine can be invoked when and only when, under the circumstances
involved, direct evidence is absent and not readily available.[11]
The requisites for the application of the doctrine of res ipsa loquitur are: (1) the
accident was of a kind which does not ordinarily occur unless someone is negligent;
(2) the instrumentality or agency which caused the injury was under the exclusive
control of the person in charge; and (3) the injury suffered must not have been due to
any voluntary action or contribution of the person injured.[12]
In this case, the circumstances that caused patient Roy Jr.s injury and the series of tests
that were supposed to be undergone by him to determine the extent of the injury
suffered were not under the exclusive control of Drs. Jarcia and Bastan. It was
established that they are mere residents of the Manila Doctors Hospital at that time
who attended to the victim at the emergency room.[13] While it may be true that the
circumstances pointed out by the courts below seem doubtless to constitute reckless
imprudence on the part of the petitioners, this conclusion is still best achieved, not
through the scholarly assumptions of a layman like the patients mother, but by the
unquestionable knowledge of expert witness/es. As to whether the petitioners have
exercised the requisite degree of skill and care in treating patient Roy, Jr. is generally
a matter of expert opinion.
As to Dr. Jarcia and Dr. Bastans negligence
The totality of the evidence on record clearly points to the negligence of the petitioners.
At the risk of being repetitious, the Court, however, is not satisfied that Dr. Jarcia and
Dr. Bastan are criminally negligent in this case.
Negligence is defined as the failure to observe for the protection of the interests of
another person that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury.[14]
Reckless imprudence consists of voluntarily doing or failing to do, without malice, an
act from which material damage results by reason of an inexcusable lack of precaution
on the part of the person performing or failing to perform such act.[15]
The elements of simple negligence are: (1) that there is lack of precaution on the part
of the offender, and (2) that the damage impending to be caused is not immediate or
the danger is not clearly manifest.[16]
In this case, the Court is not convinced with moral certainty that the petitioners are
guilty of reckless imprudence or simple negligence. The elements thereof were not
proved by the prosecution beyond reasonable doubt.
The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric orthopedic,
although pointing to some medical procedures that could have been done by Dr. Jarcia
and Dr. Bastan, as physicians on duty, was not clear as to whether the injuries suffered
by patient Roy Jr. were indeed aggravated by the petitioners judgment call and their
diagnosis or appreciation of the condition of the victim at the time they assessed him.
Thus:
Q: Will you please tell us, for the record, doctor, what is your specialization?
A: At present I am the chairman department of orthopedic in UP-PGH and I had special
training in pediatric orthopedic for two (2) years.
Q: In June 1998, doctor, what was your position and what was your specialization at
that time?
A: Since 1980, I have been specialist in pediatric orthopedic.
Q: When Alfonso Santiago, Jr. was brought to you by his mother, what did you do by
way of physicians as first step?
A: As usual, I examined the patient physically and, at that time as I have said, the
patient could not walk so I [began] to suspect that probably he sustained a fracture as
a result of a vehicular accident. So I examined the patient at that time, the involved
leg, I dont know if that is left or right, the involved leg then was swollen and the patient
could not walk, so I requested for the x-ray of [the] lower leg.
Q: What part of the leg, doctor, did you request to be examined?
A: If we refer for an x-ray, usually, we suspect a fracture whether in approximal,
middle or lebistal tinial, we usually x-ray the entire extremity.
Q: And what was the result?
A: Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone of
the leg.
Q: And when you say spiral, doctor, how long was this fracture?
A: When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8)
centimeters.
Q: Mid-tibial, will you please point to us, doctor, where the tibial is?
(Witness pointing to his lower leg)
A: The tibial is here, there are two bones here, the bigger one is the tibial and the
smaller one is the fibula. The bigger one is the one that get fractured.
Q: And in the course of your examination of Alfonso Santiago, Jr. did you ask for the
history of such injury?
A: Yes, actually, that was a routine part of our examination that once a patient comes
in, before we actually examine the patient, we request for a detailed history. If it is an
accident, then, we request for the exact mechanism of injuries.
Q: And as far as you can recall, Doctor, what was the history of that injury that was
told to you?
A: The patient was sideswiped, I dont know if it is a car, but it is a vehicular accident.
Q: Who did you interview?
A: The mother.
Q: How about the child himself, Alfonso Santiago, Jr.?
A: Normally, we do not interview the child because, usually, at his age, the answers
are not accurate. So, it was the mother that I interviewed.
Q: And were you informed also of his early medication that was administered on
Alfonso Santiago, Jr.?
A: No, not actually medication. I was informed that this patient was seen initially at
the emergency room by the two (2) physicians that you just mentioned, Dr. Jarcia and
Dra. Bastan, that time who happened to be my residents who were [on] duty at the
emergency room.
xxxx
A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a
consultant that usually comes from a family medicine. They see where a certain patient
have to go and then if they cannot manage it, they refer it to the consultant on duty.
Now at that time, I dont why they dont Because at that time, I think, it is the decision.
Since the x-rays
xxx
Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic
specialist.
A: They are general surgeon residents. You have to man[x] the emergency room,
including neurology, orthopedic, general surgery, they see everything at the
emergency room.
xxx
Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the
emergency room, you would have subjected the entire foot to x-ray even if the history
that was given to Dr. Jarcia and Dra. Bastan is the same?
A: I could not directly say yes, because it would still depend on my examination, we
cannot subject the whole body for x-ray if we think that the damaged was only the leg.
Q: Not the entire body but the entire leg?
A: I think, if my examination requires it, I would.
Q: So, you would conduct first an examination?
A: Yes, sir.
Q: And do you think that with that examination that you would have conducted you
would discover the necessity subjecting the entire foot for x-ray?
A: It is also possible but according to them, the foot and the ankle were swollen and
not the leg, which sometimes normally happens that the actual fractured bone do not
get swollen.
xxxx
Q: Doctor, if you know that the patient sustained a fracture on the ankle and on the
foot and the history that was told to you is the region that was hit is the region of the
foot, will the doctor subject the entire leg for x-ray?
A: I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you
have to consider the kind of fracture that the patient sustained would you say the exact
mechanism of injury. For example spiral, paikot yung bale nya, so it was possible that
the leg was run over, the patient fell, and it got twisted. Thats why the leg seems to be
fractured.[17] [Emphases supplied]
It can be gleaned from the testimony of Dr. Tacata that a thorough examination was
not performed on Roy Jr. As residents on duty at the emergency room, Dr. Jarcia and
Dr. Bastan were expected to know the medical protocol in treating leg fractures and in
attending to victims of car accidents. There was, however, no precise evidence and
scientific explanation pointing to the fact that the delay in the application of the cast
to the patients fractured leg because of failure to immediately diagnose the specific
injury of the patient, prolonged the pain of the child or aggravated his condition or
even caused further complications. Any person may opine that had patient Roy Jr. been
treated properly and given the extensive X-ray examination, the extent and severity of
the injury, spiral fracture of the mid-tibial part or the bigger bone of the leg, could have
been detected early on and the prolonged pain and suffering of Roy Jr. could have been
prevented. But still, that opinion, even how logical it may seem would not, and could
not, be enough basis to hold one criminally liable; thus, a reasonable doubt as to the
petitioners guilt.
Although the Court sympathizes with the plight of the mother and the child in this
case, the Court is bound by the dictates of justice which hold inviolable the right of
the accused to be presumed innocent until proven guilty beyond reasonable doubt. The
Court, nevertheless, finds the petitioners civilly liable for their failure to sufficiently
attend to Roy Jr.s medical needs when the latter was rushed to the ER, for while a
criminal conviction requires proof beyond reasonable doubt, only a preponderance of
evidence is required to establish civil liability. Taken into account also was the fact
that there was no bad faith on their part.
Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the
victim. It may be true that the actual, direct, immediate, and proximate cause of the
injury (fracture of the leg bone or tibia) of Roy Jr. was the vehicular accident when he
was hit by a taxi. The petitioners, however, cannot simply invoke such fact alone to
excuse themselves from any liability. If this would be so, doctors would have a ready
defense should they fail to do their job in attending to victims of hit-and-run,
maltreatment, and other crimes of violence in which the actual, direct, immediate, and
proximate cause of the injury is indubitably the act of the perpetrator/s.
In failing to perform an extensive medical examination to determine the extent of Roy
Jr.s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the
medical profession. Assuming for the sake of argument that they did not have the
capacity to make such thorough evaluation at that stage, they should have referred the
patient to another doctor with sufficient training and experience instead of assuring
him and his mother that everything was all right.
This Court cannot also stamp its imprimatur on the petitioners contention that no
physician-patient relationship existed between them and patient Roy Jr., since they
were not his attending physicians at that time. They claim that they were merely
requested by the ER nurse to see the patient while they were passing by the ER for
their lunch. Firstly, this issue was never raised during the trial at the RTC or even
before the CA. The petitioners, therefore, raise the want of doctor-patient relationship
for the first time on appeal with this Court. It has been settled that issues raised for the
first time on appeal cannot be considered because a party is not permitted to change
his theory on appeal. To allow him to do so is unfair to the other party and offensive
to the rules of fair play, justice and due process.[18] Stated differently, basic
considerations of due process dictate that theories, issues and arguments not brought
to the attention of the trial court need not be, and ordinarily will not be, considered by
a reviewing court.[19]
Assuming again for the sake of argument that the petitioners may still raise this issue
of no physicianpatient relationship, the Court finds and so holds that there was a
physicianpatient relationship in this case.
In the case of Lucas v. Tuao,[20] the Court wrote that [w]hen a patient engages the
services of a physician, a physician-patient relationship is generated. And in accepting
a case, the physician, for all intents and purposes, represents that he has the needed
training and skill possessed by physicians and surgeons practicing in the same field;
and that he will employ such training, care, and skill in the treatment of the patient.
Thus, in treating his patient, a physician is under a duty to exercise that degree of care,
skill and diligence which physicians in the same general neighborhood and in the same
general line of practice ordinarily possess and exercise in like cases. Stated otherwise,
the physician has the obligation to use at least the same level of care that any other
reasonably competent physician would use to treat the condition under similar
circumstances.
Indubitably, a physician-patient relationship exists between the petitioners and patient
Roy Jr. Notably, the latter and his mother went to the ER for an immediate medical
attention. The petitioners allegedly passed by and were requested to attend to the
victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents
on duty at the ER).[21] They obliged and examined the victim, and later assured the
mother that everything was fine and that they could go home. Clearly, a physician-
patient relationship was established between the petitioners and the patient Roy Jr.
To repeat for clarity and emphasis, if these doctors knew from the start that they were
not in the position to attend to Roy Jr., a vehicular accident victim, with the degree of
diligence and commitment expected of every doctor in a case like this, they should
have not made a baseless assurance that everything was all right. By doing so, they
deprived Roy Jr. of adequate medical attention that placed him in a more dangerous
situation than he was already in. What petitioners should have done, and could have
done, was to refer Roy Jr. to another doctor who could competently and thoroughly
examine his injuries.
All told, the petitioners were, indeed, negligent but only civilly, and not criminally,
liable as the facts show.
Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the
Philippines states:
A physician should attend to his patients faithfully and conscientiously. He should
secure for them all possible benefits that may depend upon his professional skill and
care. As the sole tribunal to adjudge the physicians failure to fulfill his obligation to (2) 100,000.00 as moral damages;
his patients is, in most cases, his own conscience, violation of this rule on his part is (3) 50,000.00 as exemplary damages; and
discreditable and inexcusable.[22 (4) Costs of the suit.
with interest at the rate of 6% per annum from the date of the filing of the Information.
Established medical procedures and practices, though in constant instability, are The rate shall be 12% interest per annum from the finality of judgment until fully paid.
devised for the purpose of preventing complications. In this case, the petitioners failed
to observe the most prudent medical procedure under the circumstances to prevent the SO ORDERED.
complications suffered by a child of tender age.

As to the Award of Damages

While no criminal negligence was found in the petitioners failure to administer the
necessary medical attention to Roy Jr., the Court holds them civilly liable for the
resulting damages to their patient. While it was the taxi driver who ran over the foot
or leg of Roy Jr., their negligence was doubtless contributory.

It appears undisputed that the amount of 3,850.00, as expenses incurred by patient

Roy Jr., was adequately supported by receipts. The Court, therefore, finds the
petitioners liable to pay this amount by way of actual damages.

The Court is aware that no amount of compassion can suffice to ease the sorrow felt
by the family of the child at that time. Certainly, the award of moral and exemplary
damages in favor of Roy Jr. in the amount of 100,000.00 and 50,000.00,
respectively, is proper in this case.

It is settled that moral damages are not punitive in nature, but are designed to
compensate and alleviate in some way the physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, and similar injury unjustly inflicted on a person. Intended for the
restoration of the psychological or emotional status quo ante, the award of moral
damages is designed to compensate emotional injury suffered, not to impose a penalty
on the wrongdoer.[23]

The Court, likewise, finds the petitioners also liable for exemplary damages in the said
amount. Article 2229 of the Civil Code provides that exemplary damages may be
imposed by way of example or correction for the public good.

WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of

Appeals dated August 29, 2008 is REVERSED and SET ASIDE. A new judgment is
entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of the crime
of reckless imprudence resulting to serious physical injuries but declaring them civilly
liable in the amounts of:

(1) 3,850.00 as actual damages;

 THIRD DIVISION
G.R. No. 210445, December 07, 2015
NILO B. ROSIT, Petitioner, v. DAVAO DOCTORS HOSPITAL AND DR.
ROLANDO G. GESTUVO, Respondent.
DECISION
VELASCO JR., J.:
The Case
This is a petition filed under Rule 45 of the Rules of Court assailing the Decision and
Resolution dated January 22, 20131 and November 7, 2013,2 respectively, of the Court
of Appeals, Cagayan De Oro City (CA), in CA-G.R. CV No. 00911-MIN. The CA
Decision reversed the Decision dated September 14, 20043 of the Regional Trial
Court, Branch 33 in Davao City-(RTC) in Civil Case No. 27,354-99, a suit for damages
thereat which Nilo B. Rosit (Rosit) commenced against Dr. Rolando Gestuvo (Dr.
Gestuvo).
Factual Antecedents
On January 15, 1999, Rosit figured in a motorcycle accident. The X-ray soon taken
the next day at the Davao Doctors Hospital (DDH) showed that he fractured his jaw.
Rosit was then referred to Dr. Gestuvo, a specialist in mandibular injuries,4 who, on
January 19, 1999, operated on Rosit.
During the operation, Dr. Gestuvo used a metal plate fastened to the jaw with metal
screws to immobilize the mandible. As the operation required the smallest screws
available, Dr. Gestuvo cut the screws on hand to make them smaller. Dr. Gestuvo knew
that there were smaller titanium screws available in Manila, but did not so inform Rosit
supposing that the latter would not be able to afford the same.5
Following the procedure, Rosit could not properly open and close his mouth and was
in pain. X-rays done on Rosit two (2) days after the operation showed that the fracture
in his jaw was aligned but the screws used on him touched his molar. Given the X-ray
results, Dr. Gestuvo referred Rosit to a dentist. The dentist who checked Rosit, Dr.
Pangan, opined that another operation is necessary and that it is to be performed in
Cebu.6
Alleging that the dentist told him that the operation conducted on his mandible was
improperly done, Rosit went back to Dr. Gestuvo to demand a loan to defray the cost
of the additional operation as well as the expenses of the trip to Cebu. Dr. Gestuvo
gave Rosit P4,500.
Rosit went to Cebu on February 19, 1999, still suffering from pain and could hardly
open his mouth.
In Cebu, Dr. Pangan removed the plate and screws thus installed by Dr. Gestuvo and
replaced them with smaller titanium plate and screws. Dr. Pangan also extracted
Rosit's molar that was hit with a screw and some bone fragments. Three days after the
operation, Rosit was able to eat and speak well and could open and close his mouth
normally.7
On his return to Davao, Rosit demanded that Dr. Gestuvo reimburse him for the cost
of the operation and the expenses he incurred in Cebu amounting to P140,000, as well
as for the P50,000 that Rosit would have to spend for the removal of the plate and
screws that Dr. Pangan installed. Dr. Gestuvo refused to pay.8
Thus, Rosit filed a civil case for damages and attorney's fees with the RTC against Dr.
Gestuvo and DDH, the suit docketed as Civil Case No. 27,354-99.
The Ruling of the Regional Trial Court
The RTC freed DDH from liability on the ground that it exercised the proper diligence
in the selection and supervision of Dr. Gestuvo, but adjudged Dr. Gestuvo negligent
and ruled, thus:
FOR ALL THE FOREGOING, finding the plaintiff Nilo B. Rosit to have
preponderantly established his cause of action in the complaint against defendant Dr.
Rolando G. Gestuvo only, judgment is hereby rendered for the plaintiff and against
said defendant, ordering the defendant DR. ROLANDO G. GESTUVO to pay unto
plaintiff NILO B. ROSIT the following:chanRoblesvirtualLawlibrary
a) the sum of ONE HUNDRED FORTY THOUSAND ONE HUNDRED NINETY
NINE PESOS and 13/100 (P140,199.13) representing reimbursement of actual
expenses incurred by plaintiff in the operation and re-operation of his mandible;
b) the sum of TWENTY NINE THOUSAND AND SIXTY EIGHT PESOS
(P29,068.00) representing reimbursement of the filing fees and appearance fees;
c) the sum of ONE HUNDRED FIFTY THOUSAND PESOS (P150,000.00) as and
for attorney's fees;
d) the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages;
e) the amount of TEN THOUSAND PESOS (P10,000.00) as exemplary damages; and
f) the costs of the suit.
For lack of merit, the complaint against defendant DAVAO DOCTORS HOSPITAL
and the defendants' counterclaims are hereby ordered DISMISSED. Cost against Dr.
Rolando G. Gestuvo. SO ORDERED.
In so ruling, the trial court applied the res ipsa loquitur principle holding that "the need
for expert, medical testimony may be dispensed with because the injury itself provides
the proof of negligence."
Therefrom, both parties appealed to the CA.
The Ruling of the Court of Appeals
In its January 22, 2013 Decision, the CA modified the appealed judgment by deleting
the awards made by the trial court, disposing as follows:
WHEREFORE, the appeal filed by Gestuvo is GRANTED. The Decision
dated September 14, 2004 of the Regional Trial Court, Branch 33, Davao
City, rendered in Civil Case No. 27,354-99 is hereby MODIFIED. The
monetary awards adjudged in favor of Nilo B. Rosit are hereby DELETED
for lack of basis.
SO ORDERED.
Unlike the RTC, the CA ruled that the res ipsa loquitur principle is not applicable and
that the testimony of an expert witness is necessary for a finding of negligence. The
appellate court also gave credence to Dr. Pangan's letter stating the opinion that Dr.
Gestuvo did not commit gross negligence in his emergency management of Rosit's
fractured mandible.
Rosit's motion for reconsideration was denied in the CA's November 7, 2013
Resolution.
Hence, the instant appeal.
The Issue
The ultimate issue for our resolution is whether the appellate court correctly absolved
Dr. Gestuvo from liability.
The Court's Ruling
The petition is impressed with merit.
In Flores v. Pineda,9 the Court explained the concept of a medical negligence case and
the elements required for its prosecution.
A medical negligence case is a type of claim to redress a wrong committed by a
medical professional, that has caused bodily harm to or the death of a patient. There
are four elements involved in a medical negligence case, namely: duty, breach, injury,
and proximate causation.
Duty refers to the standard of behavior which imposes restrictions on one's conduct.
The standard in turn refers to the amount of competence associated with the proper
discharge of the profession. A physician is expected to use at least the same level of
care that any other reasonably competent doctor would use under the same
circumstances. Breach of duty occurs when the physician fails to comply with these
professional standards. If injury results to the patient as a result of this breach, the
physician is answerable for negligence. (Emphasis supplied)
An expert witness is not necessary as the res ipsa loquitur doctrine is applicable
To establish medical negligence, this Court has held that an expert testimony is
generally required to define the standard of behavior by which the court may determine
whether the physician has properly performed the requisite duty toward the patient.
This is so considering that the requisite degree of skill and care in the treatment of a
patient is usually a matter of expert opinion.10
Solidum v. People of the Philippines11 provides an exception. There, the Court
explained that where the application of the principle of res ipsa loquitur is warranted,
an expert testimony may be dispensed with in medical negligence cases:
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. 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. x x x
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, injuries
sustained on a healthy part of the body which was not under, or in the area, of
treatment, removal of the wrong part of the body when another part was intended,
knocking out a tooth while a patient's jaw was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, among others.
We have further held that resort to the doctrine of res ipsa loquitur as an exception to
the requirement of an expert testimony in medical negligence cases may be availed of
if the following essential requisites are satisfied: (1) the accident was of a kind that
does not ordinarily occur unless someone is negligent; (2) the instrumentality or
agency that caused the injury was under the exclusive control of the person charged;
and (3) the injury suffered must not have been due to any voluntary action or
contribution of the person injured.1
In its assailed Decision, the CA refused to acknowledge the application of the res ipsa
loquitur doctrine on the ground that the foregoing elements are absent. In particular,
the appellate court is of the position that post-operative pain is not unusual after
surgery and that there is no proof that the molar Dr. Pangan removed is the same molar
that was hit by the screw installed by Dr. Gestuvo in Rosit's mandible. Further, a
second operation was conducted within the 5-week usual healing period of the
mandibular fracture so that the second element cannot be considered present. Lastly,
the CA pointed out that the X-ray examination conducted on Rosit prior to his first
surgery suggests that he had "chronic inflammatory lung disease compatible,"
implying that the injury may have been due to Rosit's peculiar condition, thus
effectively negating the presence of the third element.1
After careful consideration, this Court cannot accede to the CA's findings as it is at
once apparent from the records that the essential requisites for the application of the
doctrine of res ipsa loquitur are present
The first element was sufficiently established when Rosit proved that one of the screws
installed by Dr. Gestuvo struck his molar. It was for this issue that Dr. Gestuvo himself
referred Rosit to Dr. Pangan. In fact, the affidavit of Dr. Pangan presented by Dr.
Gestuvo himself before the trial court narrated that the same molar struck with the
screw installed by Dr. Gestuvo was examined and eventually operated on by Dr.
Pangan. Dr. Gestuvo cannot now go back and say that Dr. Pangan treated a molar
different from that which was affected by the first operation
Clearly, had Dr. Gestuvo used the proper size and length of screws and placed the
same in the proper locations, these would not have struck Rosit's teeth causing him
pain and requiring him to undergo a corrective surgery
Dr. Gestuvo knew that the screws he used on Rosit were too large as, in fact, he cut
the same with a saw.14 He also stated during trial that common sense dictated that the
smallest screws available should be used. More importantly, he also knew that these
screws were available locally at the time of the operation.15 Yet, he did not avail of
such items and went ahead with the larger screws and merely sawed them off. Even
assuming that the screws were already at the proper length after Dr. Gestuvo cut the
same, it is apparent that he negligently placed one of the screws in the wrong area
thereby striking one of Rosit's teeth.
In any event, whether the screw hit Rosit's molar because it was too long or improperly
placed, both facts are the product of Dr. Gestuvo's negligence. An average man of
common intelligence would know that striking a tooth with any foreign object much
less a screw would cause severe pain. Thus, the first essential requisite is present in
this case
Anent the second element for the res ipsa loquitur doctrine application, it is sufficient
that the operation which resulted in the screw hitting Rosit's molar was, indeed,
performed by Dr. Gestuvo. No other doctor caused such fact
The CA finds that Rosit is guilty of contributory negligence in having Dr. Pangan
operate on him during the healing period of his fractured mandible. What the CA
overlooked is that it was Dr. Gestuvo himself who referred Rosit to Dr. Pangan.
Nevertheless, Dr. Pangan's participation could not have contributed to the reality that
the screw that Dr. Gestuvo installed hit Rosit's molar
Lastly, the third element that the injury suffered must not have been due to any
voluntary action or contribution of the person injured was satisfied in this case. It was
not shown that Rosit's lung disease could have contributed to the pain. What is clear
is that he suffered because one of the screws that Dr. Gestuvo installed hit Rosit's molar
Clearly then, the res ipsa loquitur doctrine finds application in the instant case and no
expert testimony is required to establish the negligence of defendant Dr. Gestuvo
Petitioner was deprived of the opportunity to make an "informed consent
What is more damning for Dr. Gestuvo is his failure to inform Rosit that such smaller
screws were available in Manila, albeit at a higher price.16 As testified to by Dr.
Gestuvo himself:
Court Alright.
This titanium materials according to you were already available in the Philippines
since the time of Rosit's accident?
Witness: Yes, your Honor.
xxxx
Court: Did you inform Rosit about the existence of titanium screws and plates which
according to you is the screws and plates of choice?
Witness: No, your Honor.
xxxx
Witness : The reason I did not inform him anymore Judge because what I thought he
was already hard up with the down payment. And if I will further introduce him this
screws, the more he will not be able to afford the operation.
xxxx
Court : This titanium screws and plates were available then it is up to Rosit to decide
whether to use it or not because after all the material you are using is paid by the patient
himscll, is it not?
Witness: Yes, that is true.
Li v. Soliman17 made the following disquisition on the relevant Doctrine of Informed
Consent in relation to medical negligence cases, to wit:
The doctrine of informed consent within the context of physician-patient relationships
goes far back into English common law. x x x From a purely ethical norm, informed
consent evolved into a general principle of law that a physician has a duty to disclose
what a reasonably prudent physician in the medical community in the exercise of
reasonable care would disclose to his patient as to whatever grave risks of injury might
be incurred from a proposed course of treatment, so that a patient, exercising ordinary
care for his own welfare, and faced with a choice of undergoing the proposed
treatment, or alternative treatment, or none at all, may intelligently exercise his
judgment by reasonably balancing the probable risks against the probable benefits.
xxxx
There are four essential elements a plaintiff must prove in a malpractice action based
upon the doctrine of informed consent: "(1) the physician had a duty to disclose
material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a
direct and proximate result of the failure to disclose, the patient consented to treatment
she otherwise would not have consented to; and (4) plaintiff was injured by the
proposed treatment." The gravamen in an informed consent case requires the plaintiff
to "point to significant undisclosed information relating to the treatment which would
have altered her decision to undergo it." (Emphasis supplied)
The four adverted essential elements above are present here.
First, Dr. Gestuvo clearly had the duty of disclosing to Rosit the risks of using the
larger screws for the operation. This was his obligation as the physician undertaking
the operation.
Second, Dr. Gestuvo failed to disclose these risks to Rosit, deciding by himself that
Rosit could not afford to get the more expensive titanium screws.
Third, had Rosit been informed that there was a risk that the larger screws are not
appropriate for the operation and that an additional operation replacing the screws
might be required to replace the same, as what happened in this case, Rosit would not
have agreed to the operation. It bears pointing out that Rosit was, in fact, able to afford
the use of the smaller titanium screws that were later used by Dr. Pangan to replace
the screws that were used by Dr. Gestuvo.
Fourth, as a result of using the larger screws, Rosit experienced pain and could not
heal properly because one of the screws hit his molar. This was evident from the fact
that just three (3) days after Dr. Pangan repeated the operation conducted by Dr.
Gestuvo, Rosit was pain-free and could already speak. This is compared to the one (1)
month that Rosit suffered pain and could not use his mouth after the operation
conducted by Dr. Gestuvo until the operation of Dr. Pangan.
Without a doubt, Dr. Gestuvo is guilty of withholding material information which
would have been vital in the decision of Rosit in going through with the operation with
the materials at hand. Thus, Dr. Gestuvo is also guilty of negligence on this ground.
Dr. Pangan's Affidavit is not admissible
The appellate court's Decision absolving Dr. Gestuvo of negligence was also anchored
on a letter signed by Dr. Pangan who stated the opinion that Dr. Gestuvo did not
commit gross negligence in his emergency management of Mr. Rosit's fractured
mandible.18 Clearly, the appellate court overlooked the elementary principle against
hearsay evidence.
In Dantis v. Maghinang, Jr.,19 the Court reiterated the oft-repeated rule that "an
affidavit is merely hearsay evidence where its affiant/maker did not take the witness
stand." Here, Dr. Pangan never took the witness stand to affirm the contents of his
affidavit. Thus, the affidavit is inadmissible and cannot be given any weight. The CA,
therefore, erred when it considered the affidavit of Dr. Pangan, mpreso for considering
the same as expert testimony.
Moreover, even if such affidavit is considered as admissible and the testimony of an
expert witness, the Court is not bound by such testimony. As ruled in Ilao-Quianay v.
Mapile:20
Indeed, courts are not bound by expert testimonies. They may place whatever weight
they choose upon such testimonies in accordance with the facts of the case. The
relative weight and sufficiency of expert testimony is peculiarly within the province
of the trial court to decide, considering the ability and character of the witness, his
actions upon the witness stand, the weight and process of the reasoning by which he
has supported his opinion, his possible bias in favor of the side for whom he testifies,
and any other matters which serve to illuminate his statements. The opinion of an
expert should be considered by the court in view of all the facts and circumstances of
the case. The problem of the evaluation of expert testimony is left to the discretion of
the trial court whose ruling thereupon is not revicwable in the absence of an abuse of
that discretion.
Thus, the belief of Dr. Pangan whether Dr. Gestuvo is guilty of negligence or not will
not bind the Court. The Court must weigh and examine such testimony and decide for
itself the merits thereof.
As discussed above, Dr. Gestuvo's negligence is clearly demonstrable by the doctrines
of res ipsa loquitur and informed consent.
Damages
For the foregoing, the trial court properly awarded Rosit actual damages after he was
able to prove the actual expenses that he incurred due to the negligence of Dr. Gestuvo.
In Mendoza v. Spouses Gomez,21 the Court explained that a claimant is entitled to
actual damages when the damage he sustained is the natural and probable
consequences of the negligent act and he adequately proved the amount of such
damage.
The three (3) requisites are met. Dr. Gestuvo's actions are clearly negligent. Likewise,
Dr. Gestuvo acted in bad faith or in a wanton, fraudulent, reckless, oppressive manner
when he was in breach of the doctrine of informed consent. Dr. Gestuvo had the duty
to fully explain to Rosit the risks of using large screws for the operation. More
importantly, he concealed the correct medical procedure of using the smaller titanium
screws mainly because of his erroneous belief that Rosit cannot afford to buy the
expensive titanium screws. Such concealment is clearly a valid basis for an award of
exemplary damages.
WHEREFORE, the instant petition is GRANTED. The CA Decision dated January
22, 2013 and Resolution dated November 7, 2013 in CA-G.R. CV No. 00911-MIN are
hereby REVERSED and SET ASIDE. Further, the Decision dated September 14, 2004
of the Regional Trial Court, Branch 33 in Davao City in Civil Case No. 27,345-99 is
hereby REINSTATED and AFFIRMED.
SO ORDERED.

Rosit is also entitled to moral damages as provided under Article 2217 of the Civil
Code,22 given the unnecessary physical suffering he endured as a consequence of
defendant's negligence.

To recall, from the time he was negligently operated upon by Dr. Gestuvo until three
(3) days from the corrective surgery performed by Dr. Pangan, or for a period of one
(1) month, Rosit suffered pain and could not properly use his jaw to speak or eat.

The trial court also properly awarded attorney's fees and costs of suit under Article
2208 of the Civil Code,23 since Rosit was compelled to litigate due to Dr. Gestuvo's
refusal to pay for Rosit's damages.

As to the award of exemplary damages, the same too has to be affirmed. In

Mendoza,24 the Court enumerated the requisites for the award of exemplary damages:

Our jurisprudence sets certain conditions when exemplary damages may be awarded:
First, they may be imposed by way of example or correction only in addition, among
others, to compensatory damages, and cannot be recovered as a matter of right, their
determination depending upon the amount of compensatory damages that may be
awarded to the claimant. Second, the claimant must first establish his right to moral,
temperate, liquidated or compensatory damages. Third, the wrongful act must be
accompanied by bad faith, and the award would be allowed only if the guilty party
acted in a wanton, fraudulent, reckless, oppressive or malevolent manner.