Page |1
dictates without such consent;
1. 1987 Consti. Art II Section 15. The State shall protect and
promote the right to health of the people and instill health
consciousness among them.
2. Art XII SECTION 14. The sustained development of a reservoir
of national talents consisting of Filipino scientists, entrepreneurs,
professionals, managers, high-level technical manpower and skilled
workers and craftsmen in all fields shall be promoted by the State.
The State shall encourage appropriate technology and regulate its
transfer for the national benefit.
The practice of all professions in the Philippines shall be limited to
Filipino citizens, save in cases prescribed by law.
3. Art XIII SECTION 11. The State shall adopt an integrated and
comprehensive approach to health development which shall
endeavor to make essential goods, health and other social services
available to all the people at affordable cost. There shall be priority
for the needs of the underprivileged sick, elderly, disabled, women,
and children. The State shall endeavor to provide free medical care
to paupers.
4. Patients Rights
1. Right to Appropriate Medical Care and Humane Treatment. -
Every person has a right to health and medical care corresponding to
his state of health, without any discrimination and within the limits
of the resources, manpowerand competence available for health and
medical care at the relevant time. The patient has the right to
appropriate health and medical care of good quality. In the course of
such, his human dignity, convictions, integrity, individual needs and
culture shall be respected. If any person cannot immediately be
given treatment that is medically necessary he shall, depending on
his state of health, either be directed to wait for care, or be reffered
or sent for treatment elsewhere, where the appropriate care can be
provided. If the patient has to wait for care, he shall be informed of
the reason for the delay. Patients in emergency shall be extended
immediate medical care and treatment without any deposit, pledge,
mortgage or any form of advance paymentfor treatment.
2. Right to Informed Consent. - The patient has a right to a clear,
truthful
and substantial explanation, in a manner and language understa the patient's record is not authorized to divulge any information to a
ndable to the patient, of all proposed procedures,
whether diagnostic, preventive, curative, rehabilitative or
therapeutic, wherein the person who will perform the said procedure consent, except: a) when such disclosure will benefit public health
shall provide his name and
credentials to the patient, possibilities of any risk of mortality or of a competent court; and c) when the patients waives in writing the
serious side effects, problems related to recuperation, and probability confidential nature of such information; d) when it
of
success and reasonable risks involved: Provided, That the patie medical science subject to de-identification of patient and shared
nt will not be subjected to any procedure without his written
informed consent, except in the following cases:
a) in emergency cases, when the patient is at imminent risk of
physical injury, decline Of death if treatment is withheld or
postponed. In such cases, the physician can perform any
diagnostic or treatment procedure as good practice of medicine
b) when the health of the population is dependent on the adoption of
a mass health program to control epidemic;
c) when the law makes it compulsory for everyone to submit a
procedure;
d) When the patient is either a minor, or legally incompetent, in
which case. a third party consent Is required;
e) when disclosure of material information to patient will jeopa
rdize the success of treatment, in which case, third party
disclosure and consent shall be in order;
f) When the patient waives his right in writing.
Informed consent shall be obtained from a patient concerned if he is
of legal age and of sound mind. In case the patient is incapable of
giving consent and a third
party consent is required. the following persons, in the order o
f priority stated hereunder, may give consent:
i. spouse;
ii. son or daughter of legal age;
iii. either parent;
iv. brother or sister of legal age, or
v. guardian
If a patient is a minor, consent shall be ottained from his parents or
legal guardian. If next of kin, parents or legal guardians refuse to
give consent to a medical or surgical proceoure necessary to save
the life or limb of a minor or a patient incapable of giving consent,
courts, upon the petition of the physician or any person interested in
the welfare of the patient, in a summary proceeding, may issue an
order giving consent.
3. Right to Privacy and Confidentiality. - The privacy of the
patients must be assured at all stages of his treatment. The patient
has the right to be free from unwarranted public exposure, except in
the foHowing cases: a) when his mental or physical condition is in
controversy and the appropriate court, in its discretion, order him to
submit to a physical or mental examination by a physician; b) when
the public health and safety so demand; and c) when the patient
waives this right in writing.
The patient has the right to demand that all information,
communication and records pertaining to his care be treated as
confidential. Any health care provider or practitioner involved in the
treatment of a patient and all those who have legitimate access to
third party who has no
concern with the care and welfare of the patient without his
and safety; b) when it is in the interest of justice and upon the order
is needed for continued medical treatment or advancement of
medical confidentiality for those who have access to the
information.
Informing the spouse or the family to the first degree of the patient's
medical condition may be allowed; Provided That the patient of
legal age shall have the right to choose on whom to inform. In case
the patient is not of legal age or is mentally incapacitated, such

information shall be given to the parents, legal guardian or his next
of kin.
4. Right to Information. - In the course of
his/her treatment and hospital care, the patient or his/her legal
guardian has a right to be informed of the result of the evaluation of
the nature and extent of his/her disease, any other additional or
further contemplated medical treatment on surgical procedure or
procedures, including any other additional medicines to be
administered and their generic counterpart including the possible
complications and other pertinent facts, statistics or
studies, regarding his/her illness, any change in
the plan of care before the
change is made, the person's participation in
the plan of care and necessary changes before its
implementation, the extent to which payment maybe expected
from Philhealth or any payor and any charges for which the patient
maybe liable, the disciplines of health care practitioners who will
fumish the care and the frequency of services that are proposed to be
furnished.
The patient or his legal guardian has the right to examine and be
given an itemized bill of the hospital and medical services rendered
in the facility or by his/her physician and other health care providers,
regardless of the manner and source of payment.He is entitled to a
thorough explanation of such bill.
The patient or hislher legal guardian has the right to be
informed by the physician or his/her delegate of hisJher continuing
health care requirements following discharge, including instructions
about home medications, diet, physical activity and all other
pertinent information to promote health and well-being.
At the end of his/her confinement, the patient is entitled to a brief,
written summary of the course of his/her illness
which shall include at least the history, physical examination,
diagnosis, medications, surgical procedure, ancillary and laboratory
procedures, and the plan of further treatment, and which shall be
provided by the attending physician. He/she is likewise entitled to
the explanation of, and to view, the contents of medical record of
his/her confinement but with the presence of
his/her attending physician or in the absence of the attending
physician, the hospital's representative. Notwithstanding
that he/she may not be able to settle his accounts by reason
of financial incapacity, he/she is entitled to reproduction,
at his/her expense, the pertinent part or parts of
the medical record the purpose or purposes of which he
shall indicate in
his/her written request for reproduction. The patient shall
likewise be entitled to medical certifICate,
free of charge, with respect to his/her previous confinement.
5. The Right to Choose Health Care Provider and Facility.
- The patient is free to choose the health care provider to serve him
as well as the facility except when he is under the care of a service
facility or when public health and safety so demands or when the
patient expressly waives this right in writing.
The patient has the right to discuss his condition with a consultant
specialist, at the patient's request and expense. He also has
Page |2
the right to seek for a second opinion and subsequent opinions, if
appropriate, from another health care provider/practitioner.
6. Right to Self-Determination. - The patient has the right to avail
himself/herself of any recommended diagnostic
and treatment procedures.Any person of legal age and of sound
mind may make an advance written directive for physicians to
administer terminal care when he/she suffers from the terminal phase
of a terminal illness: Provided That a) he is informed of the medical
consequences of his choice; b) he releases those involved in his care
from any obligation relative to the consequences of his decision; c)
his decision will not prejudice public health and safety.
7. Right to Religious Belief. - The patient has the right to refuse
medical treatment or procedures which may be contrary to his
religious beliefs, subject to the limitations described in the preceding
subsection: Provided, That such a right shall not be imposed by
parents upon their children who have not reached the legal age in a
life threatening situation as determined by the attending physician or
the medical director of the facility.
8. Right to Medical Records. - The patient is entitled to a summary
of his medical history and condition.He has the right to view the
contents of his medical records, except psychiatric notes and other
incriminatory information obtained about third parties, with the
attending physician explaining contents thereof. At his expense and
upon discharge of the patient, he may obtain from the health care
institution a reproduction of the same record whether or not he has
fully settled his financial obligation with the physician or institution
concerned.
The health care institution shall safeguard the confidentiality of
the medical records and to likewise ensure the integrity and
authenticity of the medical records and shall keep the
same within a reasonable time as may be determined by the
Department of Health.
The health care institution shall issue a medical certificate to the
patient upon request.Any other document that the patient may
require for insurance claims shall also be made available to him
within forty-fIVe (45) days from request.
9. Right to Leave. - The patient has the right to leave hospital or
any other health care institution regardless of his
physical condition: Provided. That a) he/she is informed of
the medical consequences of his/her decisionl b) helshe releases
those involved in his/her care from any obligation relative to the
consequences of his decision; c) hislher decision will not prejudice
public health and safety.
No patient shaD be detained against hi$/her will in any health care
institution on the sole basis of his failure
to fully settle his financial obligations. However, he/she shall
only be allowed to leave the hospital provided appropriate
arrangements have been made to settle the unpaid bills:
Provided. further, That unpaid bills of patients shall be considered
as loss income by the hospital and health care
provider/practitioner and shall be deducted from gross income as
income loss only on that particular year.

10. Right to Refuse Participation In Medical Research. - The
patient has the right to be advised if the health care provider plans
to involve him in medical research, including but not
limited to human experimentation which may be performed only
with the written informed consent of the patient: Provided, That, an
institutional review board or ethical review board in accordance with
the guidelines set in the Declaration of Helsinki be established for
research involving human experimentation: Provided, further, That
the Department of Health shall safeguard the continuing
training and education of fUture health care provider/practitioner
to ensure the development of the health care delivery in the country:
Provided, fUfthermore, That the patient involved in the human
experimentation shall be made aware of the provisions of the
Declaration of Helsinki and its respective guidelines.
11. RIght to Correspondence and to Receive Visitors. - The
patient has the right to communicate with relatives and
other persons and to receive visitors subject to reasonable limits
prescribed by the rules and regulations of the health care institution.
12. Right to Express Grievances. - The patient has the right
to express complaints and grievances about the care and services
received without fear of discrimination or reprisal and to know
about the disposition of such complaints.Such a system shall afford
all parties concerned with the opportunity to settle amicably all
grievances.
13. RIght to be Informed of His Rights and Obligations as a
Patient. - Every person has the right to be informed of his rights
and obligations as a patient.The Department of Health,in
coordination with heath care providers, professional and civic
groups, the media, health insurance corporations, people's
organizations,local government organizations, shall launch and
sustain a nationwide information
and education campaign to make known to people their
rights as patients, as declared in this Act Such rights and
obligations of patients shall be posted in a bulletin board
conspicuously placed in a health care institution.
It shall be the duty of health care institutions to inform of their rights
as well as of the institution's rules and regulations that apply to the
conduct of the patient while in the care of such institution.
5. REPUBLIC ACT No. 2382THE MEDICAL ACT OF
1959ARTICLE IV PENAL AND OTHER PROVISIONS
Section 28. Penalties. Any person found guilty of "illegal practice
of medicine" shall be punished by a fine of not less than one
thousand pesos nor more than ten thousand pesos with subsidiary
imprisonment in case of insolvency, or by imprisonment of not less
than one year nor more than five years, or by both such fine and
imprisonment, in the discretion of the court.
Section 29. Injunctions. The Board of Medical Examiners may file
an action to enjoin any person illegally practicing medicine
from the performance of any act constituting practice of
medicine if the case so warrants until the necessary certificate
therefore is secured. Any such person who, after having been so
enjoined, continues in the illegal practice of medicine shall be
punished for contempt of court. The said injunction shall not relieve
Page |3
the person practicing medicine without certificate of registration
from criminal prosecution and punishment as provided in the
preceding section.
G.R. No. L-22945 March 3, 1925
THE PEOPLE OF THE PHILIPPINE ISLANDS,
Plaintiff-Appellee, vs. JOVITA V. BUENVIAJE,
OSTRAND, J.:
The defendant is accused of the violation of the Medical Act, the
information alleging "that on or about the first day of June, 1923,
and for some time prior to said date, the said accused without having
obtained from the Board of Medical Examiners the corresponding
certificate of registration for the practice of medicine in the
Philippine Islands, voluntarily, illegally and criminally and for
compensation, practiced medicine in the City of Manila, Philippine
Islands, assisting, treating and manipulating the head and body of
Regino Noble for the purpose of curing him of the ailments,
diseases, pains and physical defects from which he pretended to
suffer, and advertising and offering her services as a physician, by
means of cards which she distributed and by letterheads and signs
which she exposed on the door of her office, situated at No. 712
Calle Asuncion, and in newspapers which are published and
circulated in the City of Manila, in which cards, letterheads, signs
and advertising she added and prefixed to her name the letters `Dra.,'
which is the abbreviation of the word `doctor,' for the purpose of
causing the public to believe that she, the said defendant, had
received the corresponding title of doctor."chanrobles virtual law
library
To this information the defendant demurred in the court below on
the grounds: (1) That it stated more than one offense, and (2) that it
was not drawn in accordance with the form prescribed by law. The
demurrer was overruled and the defendant pleaded not
guilty.chanroblesvirtualawlibrary chanrobles virtual law library
At the trial of the case the defendant made the following admissions:
"That on the first of June, 1923, she had no certificate from the
Board of Medical Examiners authorizing her to practice medicine in
the Philippine Islands; that on that day she treated and manipulated
the head and body of Regino Noble in order to cure him of ailments
from which he pretended to suffer, the treatment consisting in a
`thrust' by means of the application of the hand to the spinal column;
that she for such treatment received and collected from said Regino
Noble the sum of P1; that the said treatment took place in her office
situated at No. 712 Calle Asuncion, District of Binondo, City of
Manila, Philippine Islands; that she on or about the first day of June,
1923, and for some time prior to that date, advertised herself as a
`doctor of chiropractic,' in said City of Manila, said advertisement
appearing upon her business cards and in the newspaper `El Debate,'
in its issue of April 29, 1923, edited and published in Manila and in
which cards and newspaper advertisement the defendant prefixed the
abbreviation `Dra.' to her name; that she was graduated a doctor in
chiropractic on the 13th day of August, 1919, as evidenced by a
certificate marked Exhibit I and issued by the American University
School of Chiropractic of Chicago, Illinois."chanrobles virtual law
library
 Page |4

Upon this admission and some other evidence to the same effect, the It is not objectionable, when a single offense may be committed by
trial court found the defendant guilty as charged in the information the use of different means, to charge, in the alternative, the various
and, in accordance with section 2678 of the Administrative Code, means by which the crime may have been committed. (U.S. vs.
sentenced her to pay a fine of P300, with subsidiary imprisonment in Potter, 27 Fed. Cases, 604; Bishop's New Criminal Procedure, sec.
case of insolvency and to pay the costs. From this judgment the 434.)
defendant appeals to this court and presents four assignments of
error.chanroblesvirtualawlibrary chanrobles virtual law library The same rule was followed in the case of United States vs. Dorr (2
Phil., 332); United States vs. Tolentino (5 Phil., 682); and United
I. In the first assignment of error counsel contends that the demurrer States vs. Gustilo (19 Phil., 208) and is in harmony with the views of
to the information should have been sustained on the ground that the courts in other jurisdictions. That the various means of
said information charged more than one offense. The Medical Law is committing the offense is described in more than one section of the
contained in sections 758 to 783 of the Administrative Code and it is statute does not necessarily effect the general principle involved; the
argued that inasmuch as some of the illegal acts with which the subdivision of a statute into section is merely a matter of
defendant is charged are prohibited by section 770 of the Code and convenience and while it sometimes may be of some aid in
others by section 783, the defendant is in reality accused of two ascertaining the legislative intent, it is, of course, not conclusive
separate and distinct offenses, namely, illegal practice of medicine thereof.chanroblesvirtualawlibrary chanrobles virtual law library
and illegally representing oneself as a
doctor.chanroblesvirtualawlibrary chanrobles virtual law library II. Under the second assignment of error the appellant argues in
substance that chiropractic has nothing to do with medicine and that
We cannot accept this view. It may be noted that the Medical Law the practice of that profession can therefore not be regarded as
itself, as it appears in the Administrative Code, does not declare any practice of medicine. There is no merit whatever in this contention.
of the therein prohibited acts penal offenses. The penal provisions Assuming without conceding that chiropractic does not fall within
relating thereto are contained in section 2678 of the Code, which the term "practice of medicine" in its ordinary acceptation, we have
reads as follows: the statutory definition contained in section 770 of the
Administrative Code and which clearly includes the manipulations
SEC. 2678. Violation of Medical Law. - A person violating any employed in chiropractic. The statutory definition necessarily
provision of the Medical Law shall, upon conviction, be punished by prevails over the ordinary one.chanroblesvirtualawlibrary chanrobles
a fine of not more than three hundred pesos or by imprisonment for virtual law library
not more than ninety days, or both, in the discretion of the court.
Under the same assignment of error the defendant also argues that
The offense here penalized is "violation of the Medical Law." The the examination prescribed by section 776 of the Administrative
statute makes no distinction between illegal practice of medicine and Code for admission to the practice of medicine, embraces subjects
illegally advertising oneself as a doctor. Both are in violation of the which have no connection with chiropractic and that to require
Medical Law and carry the same penalty. They are merely different chiropractors to take that examination is unreasonable and, in effect
ways or means of committing the same offense and both of these amounts to prohibition of the practice of their profession and
means are closely related to each other and usually employed therefore violates the constitutional principle that all men have the
together.chanroblesvirtualawlibrary chanrobles virtual law library right to life, liberty and the pursuit of happiness and are entitled to
the equal protection of the law.chanroblesvirtualawlibrary
In these circumstances and where, as alleged in the information in chanrobles virtual law library
the present case, the various violations have taken place
simultaneously, we do not think it was the intention of the legislator There is very little force in this argument. The subjects in which an
that each single act should be regarded as a separate offense and examination is required by section 778 of the Administrative Code,
separate informations presented for each. The language of this court as amended by Act No. 3111, relate to matters of which a thorough
in the case of United States vs. Poh Chi (20 Phil., 140), in regard to knowledge seems necessary for the proper diagnosis of diseases of
the Opium Law, is opposite to the present case. the human body and it is within the police power of the State to
require that persons who devote themselves to the curing of human
ills should possess such knowledge. (State vs. Edmunds, 127 Iowa,
It is true that the Commission has provided a certain punishment for
333; 69 L.R.A., 504; Underwood vs. Scott, 43 Kan., 714; People vs.
the possession of a pipe used in the smoking of opium, for the
smoking of opium, as well as a punishment for the illegal possession Blue Mountain Joe, 129 Ill., 370; State vs. Mylod, 20 R. I., 632; 41
of opium, but it is not believed that it was the intention of the L.R.A., 428; Stewart vs. Raab, 55 Minn., 20; Matthei vs. Wooley, 69
Ill. App., 654; State vs. Buswell, 40 Neb., 158; 24 L.R.A., 68;
legislature to have separate complaints filed against a person who
O'Connor vs. State, 46 Neb., 157; U. S. vs. Gomez Jesus, 31 Phil.,
was found in the illegal possession of opium and a pipe at the same
218.)chanrobles virtual law library
time. If that were true then every person who was found to be
smoking opium could be charged in three different complaints: First,
with the illegal possession of the pipe; second, the illegal possession III. The third assignment of error is closely related to the foregoing.
of the opium; and third, for smoking the opium. Certainly the The appellant contends that the prohibition in section 783 against the
legislature did not intend any such consequences. unauthorized use of the title "doctor" must be understood to refer to
"Doctor of Medicine" and has no application to doctors of
chiropractic. Under different circumstances that might possibly be
In the case of United States vs. Douglass (2 Phil., 461), the court
said: so, but where, as here, chiropractic is by statute made a form of the
practice of medicine, it necessarily follows that a person holding

himself out as a doctor of chiropractic in legal effect represents
himself as a doctor of medicine.chanroblesvirtualawlibrary
chanrobles virtual law library
IV. In her fourth assignment of error the appellant attacks the
constitutionality of Act No. 3111, amending section 770 of the
Administrative Code, on the ground that the subject of the Act is not
sufficiently expressed in its title and that it embraces more than one
subject. There is no merit in this contention. The title of Act No.
3111 reads as follows:
An Act to amend sections seven hundred and fifty-nine, seven
hundred and sixty, seven hundred and sixty-one, seven hundred and
sixty-two, seven hundred and sixty-five, seven hundred and sixty-
seven, seven hundred and seventy, seven hundred and seventy-four,
seven hundred and seventy-five, seven hundred and seventy-six,
seven hundred and seventy-eight, seven hundred and eighty, seven
hundred and eighty-two, seven hundred and eighty-three, and
twenty-six hundred and seventy-eight of Act Numbered Twenty-
seven hundred and eleven, known as the Administrative Code,
increasing the number of the members of the Board of Medical
Examiners, conferring upon the same certain additional powers and
responsibilities and for other purposes.
All of the sections enumerated in the title quoted relate to the same
general subject, namely, defining and regulating the practice of
medicine, and section 770 is expressly mentioned as one of the
sections amended.chanroblesvirtualawlibrary chanrobles virtual law
library
This is sufficient. Under constitutional provisions similar to ours the
general rule is that a title which declares the amendatory statute to be
an act to amend a designated section or the like of a specified Code
is sufficient and the precise nature of the amendatory Act need not
be further stated. (Ross vs. Aguirre, 191 U.S., 60; Udell vs. Citizens
Street R. Co., 152 Ind., 507; McGuire vs. Chicago, etc., R. Co., 131
Iowa, 340; Lankford vs. County Commissioners of Somerset
County, 73 Md., 105; Tabor vs. State, 34 Tex. Crim., 631; Com. vs.
Brown, 91 Va., 762.) For a full and authoritative discussion of this
subject, see Note to Lewis vs. Dunne, 55 L.R.A., 833. See also
Government of the Philippine Islands vs. Municipality of Binalonan
and Roman Catholic Bishop of Nueva Segovia (32 Phil., 634) and
Yu Cong Eng vs. Trinidad (p. 385, ante).chanroblesvirtualawlibrary
chanrobles virtual law library We find no error in the judgment
appealed from and the same is therefore affirmed, with the costs
against the appellant. So ordered.
Separate Opinions ROMUALDEZ, J., dissenting:chanrobles
virtual law library I believe that the complaint charges more than one
offense, and that the demurrer interposed on that ground should have
been sustained. For that reason, I dissent from the opinion of the
majority.
G.R. No. L-14160 June 30, 1960 PEOPLE OF THE
PHILIPPINES, plaintiff-appellant, From the above order, the provincial fiscal appealed to this Court,
vs. ANUNCIACION VDA. DE GOLEZ, defendant- and, through the Solicitor General, urges that the court below erred
appellee. in dismissing the information for being fatally defective because the
REYES, J. B. L., J.:
Page |5
On October 2, 1957, the provincial fiscal of Negros Occidental filed
an information in the Court of First Instance of that province
charging Anunciacion Vda. de Golez with the crime of homicide
through reckless imprudence, as follows:
That on or about the period comprised from December 12,
1956 to December 24, 1956, in the municipality of San
Carlos, province of Negros Occidental, Philippines, and
within the jurisdiction of this Honorable Court, the herein
accused, without being duly licensed to practice medicine
and with reckless negligence and without taking due
precaution, did, then and there, wilfully, unlawfully, and
feloniosly diagnose, prescribe, and treat one Susana Tam,
who had been suffering for sometime with bodily ailment,
knowing fully well that she is incompetent and not
possessing the necessary technical or scientific knowledge
or skill, and as a consequence of such negligence and
carelessness and lack of medical skill, said Susana Tam
died thereafter.
The accused pleaded not guilty to the information.
When the case was called for trial, the assistant fiscal made a
manifestation that the accused had also been charged with the crime
of illegal practice of medicine before another sala of the same court.
In view of this manifestation, the trial court motu proprio dismissed
the information for being fatally defective, without prejudice to the
filing of the proper information against the same accused. The
grounds given for the dismissal were the following:
In view of the foregoing manifestation of the Fiscal, the
Court finds that the information is fatally defective and,
therefore, should be dismissed under Par. (a), Sec. 2 of Rule
113 of the Rules of Court inasmuch as the facts charged do
not constitute the offense of homicide thru reckless
imprudence because illegal practice of medicine is
malicious per se, and when the accused practiced medicine
without academical preparation and without a license to do
so, then she is per se committing a criminal act for which
the criminal intent is presumed. Although the crime of
homicide thru reckless imprudence can be committed by a
duly licensed physician when in the practice of his
profession he fails to exercise due care and diligence from
which the criminal act arises, this crime cannot be imputed
to a person who has no authority to practice this profession,
which act is malicious per se. The crime described in
Article 365 of the Revised Penal Code results from the
performance of a lawful act which was done without
exercising the care and diligence that is required by the
circumstances, and not from the performance of an
unlawful act which is the subject of the information in this
case because a quack doctor who practices medicine does
so against the law, and, therefore, his act is necessarily
malicious and criminal.
facts charged therein allegedly do not constitute the crime of
homicide thru reckless imprudence.

We agree with appellant that the order of dismissal is erroneous, in
that the crime of illegal practice of medicine is a statutory offense
wherein criminal intent is taken for granted, so that a person may be
convicted thereof irrespective of his intention and in spite of his
having acted in good faith and without malice; i.e., even if he was
not motivated by an evil desire to injure or hurt another, but by an
honest desire to cure or alleviate the pain of a patient. In fact, as
defined by Section 2678 of the Revised Administrative Code (the
law then in force), the offense consists in the mere act of practicing
medicine in violation of the Medical Law, even if no injury to
another, much less death, results from such malpractice. When,
therefore, the patient dies, the illegal practitioner should be equally
responsible for the death of his patient, an offense independent of
and distinct from the illegal practice of medicine.
The allegations in the information in this case that the accused acted
with reckless negligence in diagnosing, prescribing for, and treating
the deceased Susana Tam, knowing that she did not possess the
necessary technical knowledge or skill to do so, thus causing her
death, sufficiently charge the crime of homicide through reckless
imprudence, since ordinary diligence counsels one not to tamper
with human life by trying to treat a sick man when he knows that he
does not have the special skill, knowledge, and competence to
attempt such treatment and cure, and may consequently reasonably
foresee harm or injury to the latter, said accused was found guilty
and convicted by this Court of physical injuries through imprudence
under the old Penal Code (U. S. vs. Feliciano Divino, 12 Phil., 175).
However, in view of the error of the lower court in dismissing the
information, we cannot sustain this appeal for the reason that it
would place the accused in double jeopardy. The present information
being valid and sufficient in form and substance to sustain a
conviction, the dismissal thereof by the court after the accused had
pleaded not guilty to the charge and without his consent constitutes
jeopardy as to bar further proceedings upon the case (U. S vs. Yam
Tung Way, 21 Phil., 67; People vs. Hernandez, 94 Phil., 49; 49 Off.
Gaz. No. 12, 5342; People vs. Ferrer, 100 Phil., 124; 55 Off. Gaz. [4]
620). The failure of the accused to file a brief and raise the question
of double jeopardy in this appeal does not mean that section 2, Rule
118, providing that the People can not appeal if the defendant would
be placed in double jeopardy would no longer apply (People vs. Bao,
106 Phil., 243; 56 Off. Gaz. [51] 7768).
The unfortunate result in this case could have been avoided if the
trial court had proceeded more deliberately, without allowing its
judgment to be influenced by preconceived notions or undue haste in
dispatching cases. The appeal is, therefore, dismissed, with costs
de oficio.
6. REPUBLIC ACT No. 2382
THE MEDICAL ACT OF 1959
ARTICLE I
Objectives and Implementation
Section 1. Objectives. This Act provides for and shall govern (a) the
standardization and regulation of medical education; (b) the
examination for registration of physicians; and (c) the supervision,
control and regulation of the practice of medicine in the Philippines.
Page |6
Section 2. Enforcement. For the purpose of implementing the
provisions of this Act, there are created the following agencies: the
Board of Medical Education under the Department of Education, and
the Board of Medical Examiners under the Commissioner of Civil
Service.
ARTICLE II
The Board of Medical Education Its Functions
Section 3. Composition of Board of Medical Education. The Board
of Medical Education shall be composed of the Secretary of
Education or his duly authorized representative, as chairman, and the
Secretary of Health or his duly authorized representative, the
Director of the Bureau of Private Schools or his duly authorized
representative, the chairman of the Board of Medical Examiners or
his duly authorized representative, a representative of private
practitioners, upon recommendation of an acknowledged medical
association and a representative chosen by the Philippine
Association of Colleges and Universities, as members.
The officials acting as chairman and members of the Board of
Medical Education shall hold office during their incumbency in their
respective positions.
Section 4. Compensation and traveling expenses. The chairman and
members of the Board of Medical Education shall not be entitled to
any compensation except for traveling expenses in connection with
their official duties as herein provided.
For administrative purposes, the Board shall hold office in the office
of its chairman, who may designate a ranking official in the
Department of Education to serve as secretary of the Board.
Section 5. Functions. The functions of the Board of Medical
Education shall be:
(a) To determine and prescribe minimum requirements for
admission into a recognized college of medicine;
(b) To determine and prescribe requirements for minimum
physical facilities of colleges of medicine, to wit: buildings,
including hospitals, equipment and supplies, apparatus,
instruments, appliances, laboratories, bed capacity for
instruction purposes, operating and delivery rooms,
facilities for out-patient services, and others, used for
didactic and practical instructions in accordance with
modern trends;
(c) To determine and prescribe the minimum number and
the minimum qualifications of teaching personnel,
including student-teacher ratio and curriculum;
(d) To determine and prescribe the number of students who
should be allowed to take up the preparatory course taking
into account the capacity of the different recognized
colleges of medicine.
(e) To select, determine and approve hospitals or some
departments of the hospitals for training which comply with

the minimum specific physical facilities as provided in
subparagraph (b) hereof: and
(f) To promulgate and prescribe and enforce necessary rules
and regulations for the proper implementation of the
foregoing functions.
Section 6. Minimum required courses. Students seeking admission
to the medical course must have a bachelor of science or bachelor of
arts degree or their equivalent and must have taken in four years the
following subjects with their corresponding number of units:
Unit
English 12
Latin 3
Mathematics, including Accounting
9
and Statistics
Philosophy, including Psychology
12
and Logic
Zoology and Botany 15
Physics 8 Pediatrics
Chemistry 21
Library Science 1
Humanities and Social Sciences 12
Twelve units of Spanish shall be required pursuant to Republic Act
Numbered Seven hundred nine; but commencing with the academic
year nineteen hundred sixty to nineteen hundred sixty-one, twenty-
four units of Spanish shall be required pursuant to Republic Act
Numbered Eighteen hundred and eighty-one as cultural, social and
nationalistic studies.
Provided, That the following students may be permitted to complete
the aforesaid preparatory medical course in shorter periods as
follows:
(a) Students whose general average is below eighty-five per
cent but without any grade of failure or condition may be
allowed to pursue and finish the course in three academic
years and the intervening summer sessions; and
(b) Students whose general average is eighty-five per cent
or over may be permitted to finish the course in three
academic years by allowing them to take each semester the
overload permitted to bright students under existing
regulations of the Bureau of Private Schools.
Provided, That upon failure to maintain the general average of
eighty-five per cent, students under (b) shall automatically revert to
the category of students under (a) and those under (a), upon having
any grade of failure or condition, shall automatically revert to the
category of students required to pursue the preparatory course in
four years mentioned above.
Page |7
The medical course shall be at least five years, including not less
than eleven rotating internship in an approved hospital, and shall
consist of the following subjects:
Anatomy
Physiology
Biochemistry and Nutrition
Pharmacology
Microbiology
Parasitology
Medicine and Therapeutics
Genycology
Opthalmology, Otology, Rhinology and Laryngology
Obstetrics
Surgery
Preventive Medicine and Public Health
Legal Medicine, including Medical Jurisprudence and
Ethics.
Section 7. Admission requirements. The medical college may admit
any student to its first year class who has not been convicted by any
court of competent jurisdiction of any offense involving moral
turpitude, and who presents (a) a certificate showing completion of a
standard high school course, (b) a record showing completion of a
standard preparatory medical course as herein provided, (c) a
certificate of registration as medical student, (d) a certificate of good
moral character issued by two former professors in the pre-medicine
course, and (e) birth certificate and marriage certificate, if any.
Nothing in this Act shall be construed to inhibit any college of
medicine from establishing, in addition to the preceding, other
entrance requirements that may be deemed admissible.
For the purposes of this Act, the term "College of Medicine" shall
mean to include faculty of medicine, institute of medicine, school of
medicine or other similar institution offering a complete medical
course leading to the degree of Doctor of Medicine or its equivalent.
Every college of medicine must keep a complete record of
enrollment, grades and turnover, and must publish each year a
catalogue giving the following information:
1. Date of publication
2. Calendar for the academic year

3. Faculty roll indicating whether on full time part time
basis
4. Requirements of admission
5. Grading system
6. Requirements for promotion
7. Requirements for graduation
8. Medical hours per academic year by departments
9. Schedule hours per academic year by departments
10. Number of students enrolled in each class.
ARTICLE III
THE BOARD OF MEDICAL EXAMINERS; REGISTRATION
OF PHYSICIANS
Section 8. Prerequisite to the practice of medicine. No person shall
engage in the practice of medicine in the Philippines unless he is at
least twenty-one years of age, has satisfactorily passed the
corresponding Board Examination, and is a holder of a valid
Certificate of Registration duly issued to him by the Board of
Medical Examiners.
Section 9. Candidates for board examination. Candidates for Board
examinations shall have the following qualifications:
(1) He shall be a citizen of the Philippines or a citizen of
any foreign country who has submitted competent and
conclusive documentary evidence, confirmed by the
Department of Foreign Affairs, showing that his country's
existing laws permit citizens of the Philippines to practice
medicine under the same rules and regulations governing
citizens thereof;
(2) He shall be of good moral character, showing for this
purpose certificate of civil status;
(3) He shall be of sound mind;
(4) He shall not have been convicted by a court of
competent jurisdiction of any offense involving moral
turpitude; and
(5) He shall be a holder of the degree of Doctor of
Medicine or its equivalent, conferred by a college of
medicine duly recognized by the Department of Education.
Section 10. Acts constituting practice of medicine. A person shall be
considered as engaged in the practice of medicine (a) who shall, for
compensation, fee, salary or reward in any form, paid to him directly
or through another, or even without the same, physical examine any
person, and diagnose, treat, operate or prescribe any remedy for any
human disease, injury, deformity, physical, mental or physical
condition or any ailment, real or imaginary, regardless of the nature
Page |8
of the remedy or treatment administered, prescribed or
recommended; or (b) who shall, by means of signs, cards,
advertisements, written or printed matter, or through the radio,
television or any other means of communication, either offer or
undertake by any means or method to diagnose, treat, operate or
prescribe any remedy for any human disease, injury, deformity,
physical, mental or physical condition; or (c) who shall use the title
M.D. after his name.
Section 11. Exemptions. The preceding section shall not be
construed to affect (a) any medical student duly enrolled in an
approved medical college or school under training, serving without
any professional fee in any government or private hospital, provided
that he renders such service under the direct supervision and control
of a registered physician; (b) any legally registered dentist engaged
exclusively in the practice of dentistry; (c) any duly registered
masseur or physiotherapist, provided that he applies massage or
other physical means upon written order or prescription of a duly
registered physician, or provided that such application of massage or
physical means shall be limited to physical or muscular
development; (d) any duly registered optometrist who mechanically
fits or sells lenses, artificial eyes, limbs or other similar appliances or
who is engaged in the mechanical examination of eyes for the
purpose of constructing or adjusting eye glasses, spectacles and
lenses; (e) any person who renders any service gratuitously in cases
of emergency, or in places where the services of a duly registered
physician, nurse or midwife are not available; (f) any person who
administers or recommends any household remedy as per
classification of existing Pharmacy Laws; and (g) any psychologist
or mental hygienist in the performance of his duties, provided such
performance is done in conjunction with a duly registered physician.
Section 12. Limited practice without any certificate of registration.
Certificates of registration shall not be required of the following
persons:
(a) Physicians and surgeons from other countries called in
consultation only and exclusively in specific and definite
cases, or those attached to international bodies or
organization assigned to perform certain definite work in
the Philippines provided they shall limit their practice to the
specific work assigned to them and provided further they
shall secure a previous authorization from the Board of
Medical Examiners.
(b) Commissioned medical officers of the United States
armed forces stationed in the Philippines while rendering
service as such only for the members of the said armed
forces and within the limit of their own respective territorial
jurisdiction.
(c) Foreign physicians employed as exchange professors in
special branches of medicine or surgery whose service may
in the discretion of the Board of Medical Education, be
necessary.
(d) Medical students who have completed the first four
years of medical course, graduates of medicine and
registered nurses who may be given limited and special
authorization by the Secretary of Health to render medical
services during epidemics or national emergencies

whenever the services of duly registered physicians are not
available. Such authorization shall automatically cease
when the epidemic or national emergency is declared
terminated by the Secretary of Health.
Section 13. The Board of Medical Examiners, its composition and
duties. The Board of Medical Examiners shall be composed of six
members to be appointed by the President of the Philippines from a
confidential list of not more than twelve names approved and
submitted by the executive council of the Philippine Medical
Association, after due consultation with other medical associations,
during the months of April and October of each year. The chairman
of the Board shall be elected from among themselves by the member granted to him the degree or certificate of attendance upon clinic and
at a meeting called for the purpose. The President of the Philippines all lectures in medicine and surgery, and all other degrees granted to
shall fill any vacancy that may occur during any examination from
the list of names submitted by the Philippine Medical Association in registration book of all duly registered physicians in the Philippines.
accordance with the provisions of this Act.
No examiner shall handle the examinations in more than four
subjects or groups of subjects as hereinafter provided. The
distribution of subject to each member shall be agreed upon at a
meeting called by the chairman for the purpose. The examination
papers shall be under the custody of the Commissioner of Civil
Service or his duly authorized representative, and shall be distributed secretary of the Board shall likewise keep a record of all registered
to each member of the Board who shall correct, grade, and sign, and medical students. He shall keep all the records and proceedings, and
submit them to the said Commissioner within one hundred twenty
days from the date of the termination of the examinations.
A final meeting of the Board for the deliberation and approval of the
grades shall be called by the Commissioner of Civil Service
immediately after receipt of the records from the members of the
Board of Medical Examiners. The secretary of the Board shall
submit to the President of the Philippines for approval the names of
the successful candidates as having been duly qualified for licensure
in alphabetical order, without stating the ratings obtained by each.
Section 14. Qualifications of examiners. No person shall be
appointed a member of the Board of Medical Examiners unless he or
she (1) is a natural-born citizen of the Philippines, (2) is a duly
registered physician in the Philippines, (3) has been in the practice of
medicine for at least ten years, (4) is of good moral character and of
recognized standing in the medical profession, (5) is not a member
of the faculty of any medical school and has no pecuniary interest,
directly or indirectly, in any college of medicine or in any institution
where any branch of medicine is taught, at the time of his
appointment: Provided, That of the six members to be appointed, not
more than two shall be graduates of the same institution and not
more than three shall be government physicians.
Section 15. Tenure of office and compensation of members. The
members of the Board of Medical Examiners shall hold office for
one year: Provided, That any member may be reappointed for not
more than one year. Each member shall receive as compensation ten
pesos for each candidate examined for registration as physician, and
five pesos for each candidate examined in the preliminary or final
physician examination.
The President of the Philippines, upon the recommendation of the
Commissioner of Civil Service , after due investigation, may remove
any member of the Board of Medical Examiners for neglect of duty,
incompetency, or unprofessional or dishonorable conduct.
Page |9
Section 16. Executive Officer and Secretary of the Board. The
Secretary of the Boards of Examiners appointed in accordance with
section ten of Act Numbered Four thousand seven, as amended, shall
also be the secretary of the Board of Medical Examiners, who shall
keep all the records, including examination papers, and the minutes
of the deliberations of the Board. He shall also keep a register of all
persons to whom certificates of registration has been granted; set
forth the name, sec, age, and place of birth of each, place of
business, post office address, the name of the medical college or
university from which he graduated or in which he had studied,
together with time spent in the study of the profession elsewhere, the
name of the country where the institution is located which had
him from institutions of learning. He shall keep an up-to-date
He shall furnish copies of all examination questions and ratings in
each subject of the respective candidates in the physicians
examination, one month after the release of the list of successful
examinees, to the deans of the different colleges of medicine
exclusively for the information and guidance of the faculties thereof.
This report shall be considered as restricted information. Any school
which violates this rule shall be deprived of such privilege. The
issue and receive all papers in connection with any and all
complaints presented to the Board.
Section 17. Rules and regulations. The Board of Medical
Examiners, with the approval of the Commissioner of Civil Service,
shall promulgate such rules and regulations as may be necessary for
the proper conduct of the examinations, correction of examination
papers, and registration of physicians. The Commissioner shall
supervise each Board examination and enforce the said rules and
regulations. These rules and regulations shall take effect fifteen days
after the date of their publication in the Official Gazette and shall not
be changed within sixty days immediately before any examination.
Such rules and regulations shall be printed and distributed for the
information and guidance of all concerned.
Section 18. Dates of examinations. The Board of Medical Examiners
shall give examinations for the registration of physicians, one in
May and one in November every year, in the City of Manila or any
of its suburbs after giving not less than ten days' notice to each
candidate who had filed his name and address with the secretary of
the Board.
Section 19. Fees. The secretary of the Board, under the supervision
of the Commissioner of Civil Service, shall collect from each
candidate the following fees:
P
For registration as medical student
5.00
For complete physician
75.00
examination
For preliminary or final
40.00
examination
For registration as physician 20.00

All fees paid as provided herein shall accrue to the funds of the
Board of Medical Examiners and be expended for the payment of the
compensation of the members thereof. No fees other than those
provided herein shall be paid to the Board.
Section 20. Issuance of Certificate of Registration, grounds for
refusal of same. The Commissioner of Civil Service and the
secretary of the Board of Medical Examiners shall sign jointly and
issue certificates of registration to those who have satisfactorily
complied with the requirements of the Board. They shall not issue a
certificate of registration to any candidate who has been convicted
by a court of competent jurisdiction of any criminal offense
involving moral turpitude, or has been found guilty of immoral or
dishonorable conduct after he due investigation by the Board of
Medical Examiners, or has been declared to be of unsound mind.
Section 21. Scope of examination. The examination for the
registration of physicians shall consist of the following subjects: (1) reprimand erring physicians, or suspend or revoke registration
Anatomy and Histology, (2) Physiology, (3) Biochemistry, (4)
Microbiology and Parasitology, (5) Pharcology and Therapeutics, (6) investigations.
Pathology, (7) Medicine, (8) Obstetrics and Gynecology, (9)
Pediatrics and Nutrition, (10) Surgery and Opthalmology,
Otolaryngology and Rhinology, (11) Preventive Medicine and
Public Health, and (12) Legal Medicine, Ethics and Medical
Jurisprudence: Provided, however, That the examination questions in same, and the Board shall conduct the investigation within five days
each subject or group of subject shall at least be ten in number:
Provided, further, That the examination questions in Medicine shall shall be completed as soon as practicable.
include at least three from the following branches: Infectious
diseases, Neurology, Dermatology, Allergy, Endocrinology and
Cardio-Vascular diseases: Provided, finally, That the examination
questions in Surgery shall include at least four questions from the
following: Opthalmology, Otology, Rhinology, Laryngology,
Orthopedic Surgery and Anesthesiology.
The questions shall be the same for all applicants. All answers must
be written either in English or Spanish. No name of the examinee
shall appear in the examination paper but the examiners shall devise
a system whereby each applicant can be identified by number only.
In order that a candidate may be deemed to have passed his
examination successfully he must have obtained a general average of
seventy-five per cent without a grade lower than sixty-five per cent
in Medicine, Pediatrics and Nutrition, Obstetrics and Gynecology,
and Preventive Medicine and Public Health, and no grade lower than
fifty per cent in the rest of the subjects.
The preliminary examinations shall comprise of the following
subjects:
(1) Gross Anatomy and Histology
(2) Physiology
(3) Biochemistry
(4) Microbiology and Parasitology
Section 22. Administrative investigations. In addition to the
functions provided for in the preceding sections, the Board of
Medical Examiners shall perform the following duties: (1) to
P a g e | 10
administer oath to physicians who qualified in the examination; (2)
to study the conditions affecting the practice of medicine in all parts
of the Philippines; (3) to exercise the powers conferred upon it by
this article with the view of maintaining the ethical and professional
standards of the medical profession; (4) to subpoena or subpoena
duces tecum witnesses for all purposes required in the discharge of
its duties; and (5) to promulgate, with the approval of the
Commissioner of Civil Service, such rules and regulations as it may
deem necessary for the performance of its duties in harmony with
the provisions of this Act and necessary for the proper practice of
medicine in the Philippines.
Administrative investigations may be conducted by not less than
four members of the Board of Medical Examiners; otherwise the
proceedings shall be considered void. The existing rules of evidence
shall be observed during all administrative investigations. The Board
may disapprove applications for examination or registration,
certificates, if the respondents are found guilty after due
Section 23. Procedure and rules. Within five days after the filling of
written charges under oath, the respondent physician shall be
furnished a copy thereof, without requiring him or her to answer the
after the receipt of such copy by the respondent. The investigation
Section 24. Grounds for reprimand, suspension or revocation of
registration certificate. Any of the following shall be sufficient
ground for reprimanding a physician, or for suspending or revoking
a certificate of registration as physician:
(1) Conviction by a court of competent jurisdiction of any
criminal offense involving moral turpitude;
(2) Immoral or dishonorable conduct;
(3) Insanity;
(4) Fraud in the acquisition of the certificate of registration;
(5) Gross negligence, ignorance or incompetence in the
practice of his or her profession resulting in an injury to or
death of the patient;
(6) Addiction to alcoholic beverages or to any habit
forming drug rendering him or her incompetent to practice
his or her profession, or to any form of gambling;
(7) False or extravagant or unethical advertisements
wherein other things than his name, profession, limitation
of practice, clinic hours, office and home address, are
mentioned.
(8) Performance of or aiding in any criminal abortion;
(9) Knowingly issuing any false medical certificate;

(10) Issuing any statement or spreading any news or rumor
which is derogatory to the character and reputation of
another physician without justifiable motive;
(11) Aiding or acting as a dummy of an unqualified or
unregistered person to practice medicine;
(12) Violation of any provision of the Code of Ethics as
approved by the Philippine Medical Association.
Refusal of a physician to attend a patient in danger of death is not a
sufficient ground for revocation or suspension of his registration
certificate if there is a risk to the physician's life.
Section 25. Rights of respondents. The respondent physician shall be
entitled to be represented by counsel or be heard by himself or
herself, to have a speedy and public hearing, to confront and to
cross-examine witnesses against him or her, and to all other rights
guaranteed by the Constitution and provided for in the Rules of
Court.
Section 26. Appeal from judgment. The decision of the Board of
Medical Examiners 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 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.
Section 27. Reinstatement. After two years, the Board may order the
reinstatement of any physicians whose certificate of registration has
been revoked, if the respondent has acted in an exemplary manner in
the community wherein he resides and has not committed any
illegal, immoral or dishonorable act.
ARTICLE IV
PENAL AND OTHER PROVISIONS
Section 28. Penalties. Any person found guilty of "illegal practice of
medicine" shall be punished by a fine of not less than one thousand
pesos nor more than ten thousand pesos with subsidiary
imprisonment in case of insolvency, or by imprisonment of not less
than one year nor more than five years, or by both such fine and
imprisonment, in the discretion of the court.
Section 29. Injunctions. The Board of Medical Examiners may file
an action to enjoin any person illegally practicing medicine from the
performance of any act constituting practice of medicine if the case
so warrants until the necessary certificate therefore is secured. Any
such person who, after having been so enjoined, continues in the
illegal practice of medicine shall be punished for contempt of court.
The said injunction shall not relieve the person practicing medicine
without certificate of registration from criminal prosecution and
punishment as provided in the preceding section.
Section 30. Appropriation. To carry out the provisions of this Act,
there is hereby appropriated, out of any funds in the National
Treasury not otherwise appropriated, the sum of twenty thousand
pesos.
P a g e | 11
Section 31. Repealing clause. All Acts, executive orders,
administrative orders, rules and regulations, or parts thereof
inconsistent with the provisions of this Act are repealed or modified
accordingly.
Section 32. Effectivity. This Act shall take effect upon its approval:
Provided, That if it is approved during the time when examinations
for physicians are held, it shall take effect immediately after the said
examinations: Provided, further, That section six of this Act shall
take effect at the beginning of the academic year nineteen hundred
sixty to nineteen hundred sixty-one, and the first paragraph of
section seven shall take effect four years thereafter.
Approved: June 20, 1959
G.R. No. L-25135 September 21,
1968PHILIPPINE MEDICAL ASSOCIATION,
petitioner,vs.BOARD OF MEDICAL EXAMINERS and
JOSE MA. TORRES, respondents.
CONCEPCION, C.J.:Original action for certiorari and mandamus,
against the Board of Medical Examiners and Jose Ma. Torres, to
annul a resolution of the former and a certificate issued by the same
authorizing the latter to practice medicine in the Philippines without
examination.
The facts are not disputed. Jose Ma. Torres — hereinafter referred to
as respondent — is a Spanish subject and a member of the
Missionary Sons of the Immaculate Heart of Mary, otherwise known
as the Claretian Missionaries. Having graduated from the University
of Barcelona, Spain, with the degree of Licentiate in Medicine and
Surgery, he is entitled, under the laws of Spain, to practice medicine
and surgery throughout the territory thereof.
On January 21, 1955, respondent was granted special authority to
practice medicine in Lamitan, Basilan City, where he resides,
pursuant to Section 771(e) of the Revised Administrative Code
reading:
SEC. 771. Persons exempt from registration. —
Registration shall not be required of the following classes
of persons: . . .
(e) In cases of epidemic or in municipalities where there is
no legally qualified practicing physician, or when the
circumstances require it, in the interest of the public health,
the Director of Health may issue special authorizations, to
all medical students who have completed the first three
years of their studies, or to persons who have qualified in
medicine, and to graduate or registered nurses, who may
request it.
This authority was revoked, on November 8, 1960, by the then
Secretary of Health, upon the ground that "the conditions under
which it was granted no longer obtained in Lamitan Basilan City,
there being enough practising physicians in that locality." Said
officer restored the authority on December 19, 1960, to be revoked
again, on January 22, 1963. It was renewed once more, on
September 1, 1963, and, once again, it was revoked on February 10,
1964, upon the recommendation of the Board of Medical Examiners

— hereinafter referred to as the Board. On motion for
reconsideration filed by respondent, the Board issued, on April 6,
1965, its Resolution No. 25, series of 1965, which was approved by
the President, granting respondent a certificate to practice medicine
in the Philippines without the examination required in Republic Act
No. 2882, otherwise known as the Medical Act of 1959. The
resolution relied therefor upon The Treaty on the Validity of
Academic Degrees and The Exercise of the Professions between the
Republic of the Philippines and the Spanish State, signed at Manila
on March 4, 1949, and ratified on May 19, 1949. 1
Petitioner herein, Philippine Medical Association, is a domestic
corporation. On June 14, 1965, it addressed the Chairman of the
Board a communication requesting reconsideration of said resolution
No. 25, upon the ground that, pursuant to said Medical Act of 1959,
respondent has to take and pass the examination therein prescribed,
before he can be allowed to practice medicine in the Philippines.
This letter was followed by another, dated October 6, 1965, to which
said Chairman replied on October 8, 1965, stating "that the final
decision on the matter will have to come from the President of the
Philippines upon whose authority said resolution has been finally
approved and implemented."
Thereupon, or, on October 18, 1965, petitioner commenced the
present action, for the purpose stated at the beginning of this
decision, upon the theory that the Board had violated Republic Act
No. 2882 in granting respondent's certificate for the general practice
of medicine in the Philippines without the examination prescribed in
said Act; that the Board had exceeded its authority in passing said
Resolution, because of which the same is null and void; that the
Board should, therefore, be ordered to cancel the certificate issued in
pursuance of said resolution; and that petitioner has no other plain,
adequate and speedy remedy in the ordinary course of law.
In their respective answers, respondents admit the basic facts, but
not the conclusions drawn therefrom by the petitioner and allege that
the resolution in question is sanctioned by the provisions of the
Treaty above referred to; that petitioner has no cause of action; and
that the petition should be dismissed for failure of the petitioner to
exhaust the available administrative remedies.
Respondents cite the cases of Costas vs. Aldanese2 and Almario vs.
City Mayor 3 in support of the theory that petitioner herein has no
sufficient interest or "personality" to maintain the present case. In
the first case, it was held that the President of the Association of
Philippine (Marine) Engineers4 had no particular "individual"
interest, and, hence,no cause of action for mandamus to compel the
Collector of Customs to implement section 1203(j) of the
Administrative Code, providing that steamers making round trips of
more than 48 hours or travelling at night shall carry the complement
of marine engineers therein specified. In the second case, a citizen of
the Philippines, as such, who is not an Applicant for any stall or
booth, or the representative of any such applicant, stallholder or any
association of persons who are deprived of the right to occupy stalls
in said market, "is not the real party in interest who has the capacity,
right or personality" to bring an action for mandamus, to compel the
office of Pasay City to comply with the provisions of Republic Act
No. 37, by ejecting, from the public market of said City, stallholders
who are not nationals of the Philippines.
P a g e | 12
Said cases are not in point. To begin with, both are actions for
mandamus, whereas the case at bar is mainly one for certiorari.
Although, petitioner herein, likewise, seeks a writ of mandamus,
directing the Board to cancel the certificate of registration issued to
the respondent, this would be a necessary consequence of the writ of
certiorari annulling the disputed resolution. Moreover, said two (2)
cases were commenced by individuals, who, as such, had no special
interest in the relief therein prayed for. Indeed, in the Almario case it
was intimated that the result might have been otherwise had it been
brought by an "association" whose members have an interest in the
subject matter of the action.
This was confirmed by PHILCONSA vs. Gimenez,5 in which we
sustained the right of the Philippine Constitution Association to
assail the constitutionality of Republic Act No. 3836, insofar as it
allowed retirement gratuity and commutation of vacation and sick
leave to members of Congress and to elective officials thereof.
Further authority in favor of petitioner herein is supplied by
Nacionalista Party vs. F. Bautista Angelo 6 in which the Nacionalista
Party successfully impugned the validity of the designation of the
then Solicitor General as Acting Member of the Commission on
Elections.
It is our considered opinion that the view adopted in the last three (3)
cases should be maintained and that, in line therewith, petitioner
herein has sufficient interest to prosecute the case at bar and a cause
of action against respondents herein.
As regards their objection based upon petitioner's failure to appeal to
the President, suffice it to say that the rule requiring exhaustion of
administrative remedies is concededly subject to exceptions, among
which are cases involving only questions of law or when jurisdiction
is in issue7or the action complained of bears the approval of a
department secretary, as the disputed resolution, which was
approved by the Executive Secretary "by authority of the President,"
or as an alter ego of the Executive. 8 The case at bar falls under these
exceptions to said rule.1awphîl.nèt
The main issue herein hinges on the interpretation of Article I of the
Treaty aforementioned, reading as follows:
The nationals of both countries who shall have obtained
degrees or diplomas to practice the liberal professions in
either of the Contracting States, issued by competent
national authorities, shall be deemed competent to exercise
said professions in the territory of the Other, subject to the
laws and regulations of the latter. When the degree or
diploma of Bachelor, issued by competent national
authorities allows its holder without requiring further
evidence of proficiency to pursue normally higher courses
of study, he shall also be deemed qualified to continue his
studies in the territory of either Party in conformity with the
applicable laws and regulations of the State which
recognizes the validity of the title or diploma in question,
and with the rules and regulations of the particular
educational institution in which he intends to pursue his
studies.
This Treaty provision was the subject matter of our resolution of
August 15, 1961, in connection with the petition of Arturo Efren
Garcia for admission to the Philippine Bar without taking the Bar

Examinations. After completing, in Spain, the course prescribed
therefor, Garcia had been graduated from the College of Law of the
Universidad Central de Madrid with the degree of "Licenciado en
Derecho", which entitled him to practice law in Spain. Having
invoked the provisions of said treaty in support of his claim of
exemption from the requisite bar examinations, this Court denied his
petition upon the ground, among others ". . . that the privileges
provided in the Treaty invoked by the applicant are made expressly
subject to the laws and regulations of the contracting State in whose
territory it is desired to exercise the legal profession; and Section 1
of Rule 127, in connection with Sections 2, 9, and 16 thereof, which
have the force of law, require that before anyone can practice the
legal profession in the Philippines he must first successfully pass the
required bar examinations; . . ."
We find no plausible reason to depart from this view. On the
contrary, we reiterate the same, inasmuch as the theory of
respondent herein cannot be accepted without placing graduates
from our own educational institutions at a disadvantage vis-a-vis
Spanish graduates from Spanish schools, colleges or universities.
Indeed, the latter could — under respondent's pretense — engage in
the practice of medicine in the Philippines without taking the
examination prescribed in Republic Act No. 2882, whereas the
former would have to take and pass said examination. Worse still,
since — as we ruled in the Garcia case — the benefits of the
aforementioned Treaty cannot be availed of in the Philippines except
by Spanish subjects, the result would be — should respondent's
contention be sustained — that graduates from Spanish schools of
medicine would be entitled to practice medicine in the Philippines
without examination, if they were Spanish subjects, but not if they
are Filipinos.
Surely said treaty was not made to discriminate against Philippine
schools, colleges or universities, much less against nationals of the
Philippines.
WHEREFORE, we hold that said Treaty merely extended to
diplomas issued or degrees conferred by educational institutions of
Spain the same recognition and treatment that we accord to similar
diplomas or degrees from local institutions of learning; that holders
of said Spanish diplomas or degrees must take the examination
prescribed by our laws for holders of similar diplomas or degrees
from educational institutions in the Philippines; that resolution No.
25, series of 1965, of respondent Board is violative of Republic Act
No. 2882 and hence, null and void; and that, respondent Board of
Medical Examiners should be, as it is hereby ordered to cancel the
certificate of registration, for the practice of medicine in the
Philippines, issued in favor of respondent Jose Ma. Torres, without
special pronouncement as to costs. It is so ordered.
7. PMA COE RES0 2011-001 ???
8. REPUBLIC ACT NO. 8981
AN ACT MODERNIZING THE PROFESSIONAL REGULATION
COMMISSION, REPEALING FOR THE PURPOSE PRESIDENTIAL
DECREE NUMBERED TWO HUNDRED AND TWENTY-THREE,
P a g e | 13
ENTITLED "CREATING THE PROFESSIONAL REGULATION
COMMISSION AND PRESCRIBING ITS POWERS AND
FUNCTIONS," AND FOR OTHER PURPOSES
Section 1. Title – This Act shall be called the "PRC Modernization Act of
2000."
Section 2. Statement of Policy – The State recognizes the important role of
professionals in nation-building and, towards this end, promotes the
sustained development of a reservoir of professionals whose competence has
been determined by honest and credible licensure examinations and whose
standards of professional service and practice are internationally recognized
and considered world-class brought about the regulatory measures,
programs and activities that foster professional growth and advancement.
Section 3. Professional Regulation Commission – There is hereby created a
three-man commission to be known as the Professional Regulation
Commission, hereinafter referred to as the Commission, which shall be
attached to the office of the President for general direction and coordination.
Section 4. Composition – The Commission shall be headed by one (1) full-
time Chairperson and two (2) full-time Commissioners, all to be appointed
by the President for a term of seven (7) years without reappointment to start
from the time they assume office. Appointments to a vacancy that occurs
before the expiration of the term of a Commissioner shall cover only the
unexpired term of the immediate predecessor. At the expiration of the
Chairperson, the most senior of the Commissioners shall temporarily
assume and perform the duties and functions of the Chairperson until a
permanent Chairperson is appointed by the President.
The Chairperson or Commissioner shall be at least forty (40) years of age,
holding a valid certificate of registration/professional license and a valid
professional identification card or a valid certificate of competency issued
by the Commission or a valid professional license issued by any government
agency, familiar with the principles and methods of professional regulation
and/or licensing and has had at least five (5) years of executive or
management experience: Provided, That, one (1) of the Commissioners
must be a past Chairperson/member of a Professional Regulatory Board.
Section 5. Exercise of Powers and Functions of the Commission – The
Chairperson of the Commission, and the Commissioners as members thereof
shall sit and act as a body to exercise general administrative, executive and
policy-making functions of the Commission. The Commission shall
establish and maintain a high standard of admission to the practice of all
professions and at all times ensure and safeguard the integrity of all
licensure examinations.
The Chairperson shall act as the presiding and chief executive officer of the
Commission. As presiding officer, he/she shall preside over the meetings of
the Commission sitting as a collegial body. As chief executive officer of the
Commission, he/she shall be responsible for the implementation of the
policies and the programs adopted by the Commission for the general
administration of the Commission. He/she shall perform such other activities
which are necessary for the effective exercise of the powers, functions and
responsibilities of the Commission.
Section 6. Compensation and Other Benefits – The Chairperson shall
receive compensation and allowances equivalent to that of a Department
Secretary while the Commissioners shall receive compensation and
allowances equivalent to that of an Undersecretary. The Chairperson and the
members of the Commission shall be entitled to retirement benefits provided
under Republic Act Numbered Fifteen Hundred and Sixty Eight, as
amended by Republic Act Numbered Three Thousand Five Hundred and
Ninety Five.

Section 7. Powers, Functions and Responsibilities of the Commission – The
powers, functions, and responsibilities of the Commission are as follows:
(a) To administer, implement and enforce the regulatory policies
of the national government with respect to the regulation and
licensing of the various professions and occupations under its
jurisdiction including the enhancement and maintenance of
professional and occupational standards and ethics and the
enforcement of the rules and regulations relative thereto:
(b) To perform any and all acts, enter into contracts, make such
rules and regulations and issue such orders and other
administrative issuance as may be necessary in the execution and
implementation of its functions and the improvement of its
services;
(c) To review, revise, and approve resolutions, embodying policies
promulgated by the Professional Regulatory Boards in the exercise
of their powers and functions or in implementing the laws
regulating their respective professions and other official actions on
non-ministerial matters within their respective jurisdictions;
(d) To administer and conduct the licensure examinations of the
various regulatory boards in accordance with the rules and
regulations promulgated by the Commission; determine and fix
the places and dates of examinations; use publicly or privately
owned buildings and facilities for examination purposes; conduct
more than one (1) licensure examination: Provided, That, when
there are two (2) or more examinations given in a year, at least one
(1) examinations shall be held on weekdays (Monday to Friday):
Provided, further, That, if only one (1) examination is given in a
year, this shall be held only on weekdays: Provided, finally, That,
the Commission is also authorized to require the completion of a
refresher course where the examinee has failed to pass three (3)
times, except as otherwise provided by law; approve the results of
examinations and the release of the same; adopt measures to
preserve the integrity and inviolability of licensure examinations;
appoint supervisors and room watchers from among the
employees of the government and/or private individuals with
baccalaureate degrees, who have been trained by the Commission
for the purpose and who shall be entitled to a reasonable daily
allowance for every examination day actually attended, to be
determined and fixed by the Commission; publish the list of
successful examinees; provide schools, colleges and universities,
public and private, offering courses for licensure examinations,
with copies of sample test questions on examinations recently
conducted by the Commission and copies of the syllabi or terms of
specifications of subjects for licensure examinations; and impose
the penalty of suspension or prohibition from taking licensure
examinations to any examinee charged and found guilty of
violating the rules and regulations governing the conduct of
licensure examinations promulgated by the Commission;
(e) To admit the successful examinees to the practice of the
profession or occupation; cause the entry of their names on its
registry book and computerized database; issue certificates of
registration/professional license, bearing the registrant’s name,
picture, and registration number, signed by all the members of the
Board concerned and the Chairperson, with the official seal of the
Board and the Commission affixed thereto which certificate shall
be the authority to practice; and at the option of the professional
concerned, ministerially issue the professional identification card,
to be used solely for the purpose of identification, upon payment
of the appropriate amount: Provided, That, marine deck and
marine engineer officers shall also be issued endorsement
certificates exclusively by the Commission pursuant to the 1978
and 1995 Standards of Training, Certification and Watch-keeping
P a g e | 14
(STCW) Convention, to the exclusion of any other government
agency, Section 1(2) of Executive Order No. 149, Series of 1999
and provisions of other existing laws, executive orders,
administrative issuance/regulations to the contrary
notwithstanding: Provided, further, That, once a certificate of
registration/professional license, or certificate of competency, in
the case of marine deck and engine officers are issued, this cannot
be withdrawn, cancelled, revoked, or suspended except for just
cause as may be provided by law after due notice and hearing;
(f) To have custody of all the records of the various Boards,
including examination papers, minutes of deliberation, records of
administrative cases and investigations and examination results for
control and disposition;
(g) To determine and fix the amount of fees to be charged and
collected for examination, registration, registration without
examination, professional identification card, certification, docket,
appeal, replacement, accreditation, including surcharges and other
fees not specified under the provisions of Republic Act Numbered
Four Hundred Sixty Five as amended by Republic Act Numbered
Sixty Five Hundred and Eleven or to charge and collect reasonable
fees at the rates higher than the rates provided thereunder subject
to the approval by the Office of the President.
(h) To appoint subject to the Civil Service laws, rules, and
regulations, officials and employees of the Commission necessary
for the effective performance of its functions and responsibilities;
prescribe their duties and fix their compensation subject to the
provisions of Republic Act Numbered Six Thousand Seven
Hundred and Fifty Eight and allowances including other fringe
benefits; and to assign and/or reassign personnel as the exigency
of the service requires subject to the Civil Service laws, rules and
regulations; and to organize or reorganize the structure of the
Commission; and create or abolish positions or change the
designation of existing positions in accordance with a staffing
pattern prepared by it and approved by the Office of the President
upon the recommendation of the Department of Budget and
Management (DBM) to meet the changing conditions or as the
need arises: Provided, That, such changes shall not affect the
employment status of the incumbents, reduce their ranks and/or
salaries nor shall result in their separation from the service;
(i) To submit and recommend to the President of the Philippines
the names of licensed/registered professionals for appointment as
members of the various Professional Regulatory Boards from
among those nominated to fill up vacancies pursuant to the
provisions of Executive Order No. 496, Series of 1991;
(j) Upon recommendation of the Professional Regulatory Board
concerned, to approve the registration of and authorize the
issuance of a certificate of registration/license and professional
identification card with or without examination to a foreigner who
is registered under the laws of his state or country and whose
certificate of registration issued therein has not been suspended or
revoked: Provided, That, the requirements for the registration or
licensing in said foreign state or country are substantially the same
as those required and contemplated by the laws of the Philippines
and that the laws of such foreign state or country allow the citizens
of the Philippines to practice the profession on the same basis and
grant the same privileges as those enjoyed by the subjects or
citizens of such foreign state or country: Provided, further, That,
the Commission may, upon recommendation of the Board
concerned, authorize the issuance of a certificate of
registration/license or a special temporary permit to foreign
professionals who desire to practice their professions in the
country under reciprocity and other international agreements;

consultants in foreign-funded, joint venture or foreign-assisted
projects of the government, employees of Philippine or foreign
private firms or institutions pursuant to law, or health
professionals engaged in humanitarian mission for a limited period
of time: Provided, finally, That agencies, organizations or
individuals whether public or private, who secure he services of a
foreign professional authorized by law to practice in the
Philippines for reasons aforementioned, shall be responsible for
securing a special permit from the Professional Regulation
Commission (PRC) and the Department of Labor and
Employment (DOLE), pursuant to PRC and DOLE rules:
(k) To authorize any officer of the Commission to administer
oaths:
(l) To supervise foreign nations who are authorized by existing
laws to practice their professions either as holders of a certificate
of registration and a professional identification card or a
temporary special permit in the Philippines; to ensue that the terms
and conditions for their practice or of their employment are strictly
complied with; to require the hiring or employing government
agency or private entity/institution to secure a temporary special
permit from the concerned Board subject to approval by the
Commission and to file a criminal complaint against the head of
the government agency or officers of the said private
entity/institution, who shall be liable under the penalty provided
for in the concerned professional regulatory law or the penalty
imposed pursuant to this Act, when the professional was hired and
allowed to practice his/her profession without permit; to file upon
due process request for deportation with the Bureau of
Immigration and Deportation (BID); and to supervise
professionals who were former citizens of the Philippines and who
had been registered and issued a certificate of registration and a
professional identification card prior to their naturalization as
foreign citizens, who may, while in the country on a visit, sojourn
or permanent residence, practice their profession: Provided, That,
prior to the practice of their profession they shall have first been
issued a special permit and updated professional identification
card by the Board concerned subject to approval by the
Commission and upon payment of the permit and annual
registration fees;
(m) To monitor the performance of schools in licensure
examinations and publish the results thereof in a newspaper of
national circulation;
(n) To adopt and institute a comprehensive rating system for
universities, colleges, and training institutes based on the passing
ratio and overall performance of students in board examinations;
(o) To exercise administrative supervision over the various
professional regulatory boards and its members;
(p) To adopt and promulgate such rules and regulations as may be
necessary to effectively implement policies with respect to the
regulation and practice of the professions;
(q) To implement the program for the full computerization of all
licensure examinations given by the various professional
regulatory boards including the registration of professionals not
later than the year 2003 and other operations of the Commission;
(r) To investigate and decide administrative matters involving
officers and employees under the jurisdiction of the Commission;
P a g e | 15
(s) To investigate motu proprio or upon the filing of a verified
complaint, any member of the Professional Regulatory Boards for
neglect of duty, incompetence, unprofessional, unethical, immoral
or dishonorable conduct, commission of irregularities in the
licensure examinations which taint or impugn the integrity and
authenticity of the results of the said examinations and, if found
guilty, to revoke or suspend their certificates of registration and
professional licenses/identification cards and to recommend to the
President of the Philippines their suspension or removal from
office as the case may be;
(t) To issue summons, subpoena and subpoena duces tecum in
connection with the investigation of cases against officials and
employees of the Commission and the members of the
Professional Regulatory Boards;
(u) To hold in contempt in erring party or person only upon
application with a court of competent jurisdiction;
(v) To call upon or request any department, instrumentality, office,
bureau, institution or agency of the government including local
government units to render such assistance as it may require, or to
coordinate or cooperate in order to carry out, enforce or
implement the professional regulatory policies of the government
or any program or activity it may undertake pursuant to the
provisions of this Act;
(w) To initiate an investigation, upon complaint under oath by an
aggrieved party, of any person, whether a private individual or
professional, local or foreign, who practices the regulated
profession or occupation without being authorized by law, or
without being registered with and licensed by the concerned
regulatory board and issued the corresponding license/professional
identification card or temporary or special permit, or who commits
any of the prohibited acts provided in the regulatory laws of the
various professions, which acts are criminal in nature, and if the
evidence so warrants, to forward the records of the case to the
office of the city or provincial prosecutor for the filing of the
corresponding information in court by the lawyers of the legal
services of the Commission who may prosecute said case/s upon
being deputized by the Secretary of Justice;
(x) To prepare an annual report of accomplishments on the
programs, projects and activities of the Commission during the
year for submission to Congress after the close of its calendar year
and make appropriate recommendations on issues and/or problems
affecting the Commission, the Professional Regulatory Board, and
the various professions under its jurisdiction; and
(y) To perform such other functions and duties as may be
necessary to carry out the provisions of this Act, the various
professional regulatory laws, decrees, executive orders and other
administrative issuance.
Section 8. Regional Offices – The Commission is hereby authorized to
create regional offices as may be necessary to carry out their functions
mandated under this Act.
Section 9. Powers, Functions and Responsibilities of the Various
Professional Regulatory Boards – The various, professional regulatory
boards shall retain the following powers, functions and responsibilities:
(a) To regulate the practice of the professions in accordance with
the provisions of their respective professional regulatory laws;

(b) To monitor the conditions affecting the practice of the
profession or occupation under their respective jurisdictions and
whenever necessary, adopt such measures as may be deemed
proper for the enhancement of the profession or occupation and/or
the maintenance of high professional, ethical and technical
standards, and for this purpose the members of the Board duly
authorized by the Commission with deputized employees of the
Commission, may conduct ocular inspection in industrial,
mechanical, electrical or chemical plants or establishments,
hospitals, clinics, laboratories, testing facilities, mines and
quarries, other engineering facilities and in the case of schools, in
coordination with the Commission on Higher Education (CHED);
(c) To hear and investigate cases arising from violations of their
respective laws, the rules and regulations promulgated thereunder
and their Codes of Ethics and, for this purpose, may issue
summons, subpoena and subpoena duces tecum to alleged
violators and/or witnesses to compel their attendance in such
investigations or hearings: Provided, That, the decision of the
Professional Regulatory Board shall, unless appealed to the
Commission, become final and executory after fifteen (15) days
from receipt of notice of judgment or decision;
(d) To delegate the hearing or investigation of administrative cases appropriations of the Professional Regulation Commission. Thereafter, such
filed before them except in cases where the issue or question
involved strictly concerns the practice of the profession or
occupation, in which case, the hearing shall be presided over by at
least one (1) member of the Board concerned assisted by a Legal
or Hearing Officer of the Commission;
(e) To conduct, through the Legal Officers of the Commission,
summary proceedings on minor violations of their respective
regulatory laws, violations of the rules and regulations issued by
the boards to implement their respective laws, including violations Commission, subject to the usual accounting and auditing requirements.
of the general instructions to examinees committed by examinees,
and render summary judgment thereon which shall, unless
appealed to the Commission, become final and executory after
fifteen (15) days from receipt of notice of judgment or decision;
(f) Subject to final approval by the Commission, to recommend
registration without examination and the issuance of
corresponding certificate of registration and professional
identification card;
(g) After due process, to suspend, revoke or reissue, reinstate
certificate of registration or licenses for causes provided by law;
(h) To prepare, adopt and issue the syllabi or tables of
specifications of the subjects for examinations in consultation with
the academe; determine and prepare the questions for the licensure
examinations which shall strictly be within the scope of the
syllabus or table of specifications of the subject for examination;
score and rate the examination papers with the name and signature
of the Board member concerned appearing thereon and submit the
results in all subjects duly signed by the members of the Board to
the Commission within ten (10) days from the last day of
examination unless extended by the Commission for justifiable
cause/s; and subject to the approval by the Commission, determine
the appropriate passing general average rating in an examination if
not provided for in the law regulating the profession; and
(i) To prepare an annual report of accomplishments on programs,
projects and activities of the Board during the year for submission
to the Commission after the close of each calendar year and make
appropriate recommendations on issues or problems affecting the
profession to the Commission.
P a g e | 16
Section 10. Compensation of the Members of the Professional Regulatory
Boards – The members of the Professional Regulatory Boards shall receive
compensation equivalent to, at least, two salary grades lower than the salary
grade of the Commissioners: Provided, That the Chairperson of the
Regulatory Board shall receive a monthly compensation of two steps higher
than the members of the Board, and: Provided, further, That they shall be
entitled to other allowances and benefits provided under existing laws.
Section 11. Person to Teach Subjects for Licensure Examination on all
Professions – All subjects for licensure examinations shall be taught by
persons who are holders of valid certificates of registration and valid
professional licenses of the profession and who comply with the other
requirements of the CHED.
Section 12. Assistance of Law Enforcement Agency – Any law enforcement
agency shall, upon call or request of the Commission or of any Professional
Regulatory Board, render assistance in enforcing the regulatory law of the
profession including the rules and regulations promulgated thereunder by
prosecuting the violators thereof in accordance with law and the rules of
court.
Section 13. Appropriations – The amount necessary to carry out the initial
implementation of this Act shall be charged against the current year’s
sums as may be necessary for the continued implementation of this Act shall
be included in the succeeding General Appropriations Act.
Section 14. Authority to Use Income – In addition to the annual
appropriations of the Commission provided under the Annual General
Appropriations Act, the Commission is hereby authorized to use its income
not exceeding the amount of Forty-five million pesos (P45,000,000.00) a
year for a period of five (5) years after the effectivity of this Act to
implement the program for full computerization of the operations of the
Section 15. Penalties for Manipulation and Other Corrupt Practices in the
Conduct of Professional Examinations –
(a) Any person who manipulates or rigs licensure examination
results, secretly informs or makes known licensure examination
questions prior to the conduct of the examination or tampers with
the grades in professional licensure examinations shall, upon
conviction, be punished by imprisonment of not less than six (6)
years and one (1) day to not more than twelve (12) years or a fine
of not less than Fifty thousand pesos (P50,000.00) to not more
than One hundred thousand pesos (P100,000.00) or both such
imprisonment and fine at the discretion of the court.
(b) In case the offender is an officer or employee of the
Commission or a member of the regulatory board, he/she shall be
removed from office and shall suffer the penalty of perpetual
absolute disqualification from public office to addition to the
penalties prescribed in the preceding section of this Act;
(c) The penalty of imprisonment ranging from four (4) years and
one (1) day to six (6) years or a fine ranging from Twenty
thousand pesos (P20,000.00) to not more than Forty-nine thousand
pesos (P49,000.00), or both imprisonment and fine at the
discretion of the court, shall be imposed upon the accomplices.
The penalty of imprisonment ranging from two (2) years and one
(1) day to four (4) years or a fine ranging from Five thousand
pesos (P5,000.00) to not more than Nineteen thousand pesos
(P19,000.00), or both imprisonment and fine at the discretion of
the court, shall be imposed upon the accessories.

Section 16. Penalties for Violation of Section 7 – Subparagraph (1) by
Heads of Government Agencies or Officers of Private Entities/Institutions –
Any head of a government agency or officer(s) of a private firm/institution
who violates Section 7 – subpar. (1) of this Act shall be punished by
imprisonment of not less than six (6) months and one (1) day to not more
than six (6) years, or a fine of not less than Fifty thousand pesos
(P50,000.00) to not more than Five hundred thousand pesos (P500,000.00)
or both at the discretion of the court.
Section 17. Implementing Rules and Regulations – Within ninety (90) days
after the approval of this Act, the Professional Regulation Commission,
together with representatives of the various Professional Regulatory Boards
and accredited professional organizations, the DBM, and the CHED shall
prepare and promulgate the necessary rules and regulations needed to
implement the provisions of this Act.
Section 18. Transitory Provisions – The incumbent Commissioner and two
(2) incumbent Associate Commissioners shall serve as Chairperson and
Commissioners respectively under the terms for which they have been
appointed without need of new appointments. The incumbent Executive
Director shall likewise serve as Assistant Commissioner without need of
new appointment.
Section 19. Separability Clause – If any provision of this Act or the
application of such provision to any person or circumstances is declared
invalid or unconstitutional, the remainder of this Act or application of such
provisions to other persons or circumstance shall not be affected by such
declaration.
Section 20. Repealing Clause – Republic Act. No. 546, Presidential Decree
No. 223, as amended by Presidential Decree No. 657, Republic Act No.
5181, and Executive Order No. 266, Series of 1995 are hereby repealed.
Section 23 (h) of Republic Act No. 7836, Section 4 (m & s). Section 23 of
Republic Act No. 7920, and Section 29 of Republic Act No. 8050, insofar as
it requires completion of the requirements of the Continuing Professional
Education (CPE) as a condition for the renewal of the license are hereby
repealed. All other laws, orders, rules and regulations or resolutions and all
part/s thereof inconsistent with the provisions of this Act are hereby
repealed or amended accordingly.
Section 21. Effectivity – This Act shall take effect after fifteen (15) days
following its publication in the Official Gazette or in two (2) newspapers of
general circulation, whichever is earlier.Approved: December 05, 2000
9. HB 4955 (separate copy)
G.R. No. 166097 July 14, 2008 BOARD OF MEDICINE, DR.
RAUL FLORES (now DR. JOSE S. RAMIREZ), in his capacity
as Chairman of the Board, PROFESSIONAL REGULATION
COMMISSION, through its Chairman, HERMOGENES
POBRE (now DR. ALCESTIS M. GUIANG), Petitioners,
vs.YASUYUKI OTA, Respondent.
Before the Court is a Petition for Review on Certiorari assailing the
Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 849452
dated November 16, 2004 which affirmed the Decision3 of the
Regional Trial Court (RTC), Branch 22, Manila, dated October 19,
2003.4
The facts are as follows:
Yasuyuki Ota (respondent) is a Japanese national, married to a
Filipina, who has continuously resided in the Philippines for more
than 10 years. He graduated from Bicol Christian College of
P a g e | 17
Medicine on April 21, 1991 with a degree of Doctor of Medicine. 5
After successfully completing a one-year post graduate internship
training at the Jose Reyes Memorial Medical Center, he filed an
application to take the medical board examinations in order to obtain
a medical license. He was required by the Professional Regulation
Commission (PRC) to submit an affidavit of undertaking, stating
among others that should he successfully pass the same, he would
not practice medicine until he submits proof that reciprocity exists
between Japan and the Philippines in admitting foreigners into the
practice of medicine.6
Respondent submitted a duly notarized English translation of the
Medical Practitioners Law of Japan duly authenticated by the Consul
General of the Philippine Embassy to Japan, Jesus I. Yabes;7 thus, he
was allowed to take the Medical Board Examinations in August
1992, which he subsequently passed.8
In spite of all these, the Board of Medicine (Board) of the PRC, in a
letter dated March 8, 1993, denied respondent's request for a license
to
practice medicine in the Philippines on the ground that the Board
"believes that no genuine reciprocity can be found in the law of
Japan as there is no Filipino or foreigner who can possibly practice
there."9
Respondent then filed a Petition for Certiorari and Mandamus
against the Board before the RTC of Manila on June 24, 1993, which
petition was amended on February 14, 1994 to implead the PRC
through its Chairman.10
In his petition before the RTC, respondent alleged that the Board and
the PRC, in refusing to issue in his favor a Certificate of Registration
and/or license to practice medicine, had acted arbitrarily, in clear
contravention of the provision of Section 20 of Republic Act (R.A.)
No. 2382 (The Medical Act of 1959), depriving him of his legitimate
right to practice his profession in the Philippines to his great damage
and prejudice.11
On October 19, 2003, the RTC rendered its Decision finding that
respondent had adequately proved that the medical laws of Japan
allow foreigners like Filipinos to be granted license and be admitted
into the practice of medicine under the principle of reciprocity; and
that the Board had a ministerial duty of issuing the Certificate of
Registration and license to respondent, as it was shown that he had
substantially complied with the requirements under the law.12 The
RTC then ordered the Board to issue in favor of respondent the
corresponding Certificate of Registration and/or license to practice
medicine in the Philippines.13
The Board and the PRC (petitioners) appealed the case to the CA,
stating that while respondent submitted documents showing that
foreigners are allowed to practice medicine in Japan, it was not
shown that the conditions for the practice of medicine there are
practical and attainable by a foreign applicant, hence, reciprocity
was not established; also, the power of the PRC and the Board to
regulate and control the practice of medicine is discretionary and not
ministerial, hence, not compellable by a writ of mandamus.14
The CA denied the appeal and affirmed the ruling of the RTC.15

Hence, herein petition raising the following issue:
WHETHER THE COURT OF APPEALS COMMITTED
A REVERSIBLE ERROR IN FINDING THAT
RESPONDENT HAD ESTABLISHED THE EXISTENCE
OF RECIPROCITY IN THE PRACTICE OF MEDICINE
BETWEEN THE PHILIPPINES AND JAPAN.16
Petitioners claim that: respondent has not established by competent
and conclusive evidence that reciprocity in the practice of medicine
exists between the Philippines and Japan. While documents state that
foreigners are allowed to practice medicine in Japan, they do not
similarly show that the conditions for the practice of medicine in
said country are practical and attainable by a foreign applicant.
There is no reciprocity in this case, as the requirements to practice
medicine in Japan are practically impossible for a Filipino to comply
with. There are also ambiguities in the Medical Practitioners Law of
Japan, which were not clarified by respondent, i.e., what are the
provisions of the School Educations Laws, what are the criteria of
the Minister of Health and Welfare of Japan in determining whether
the academic and technical capability of foreign medical graduates
are the same or better than graduates of medical schools in Japan,
and who can actually qualify to take the preparatory test for the
National Medical Examination. Consul General Yabes also stated
that there had not been a single Filipino who was issued a license to
practice medicine by the Japanese Government. The publication
showing that there were foreigners practicing medicine in Japan,
which respondent presented before the Court, also did not
specifically show that Filipinos were among those listed as
practicing said profession.17 Furthermore, under Professional
Regulation Commission v. De Guzman,18 the power of the PRC and
the Board to regulate and control the practice of medicine includes
the power to regulate admission to the ranks of those authorized to
practice medicine, which power is discretionary and not ministerial,
hence, not compellable by a writ of mandamus.19
Petitioners pray that the CA Decision dated November 16, 2004 be
reversed and set aside, that a new one be rendered reinstating the
Board Order dated March 8, 1993 which disallows respondent to
practice medicine in the Philippines, and that respondent's petition
before the trial court be dismissed for lack of merit.20
In his Comment, respondent argues that: Articles 2 and 11 of the
Medical Practitioners Law of Japan and Section 9 of the Philippine
Medical Act of 1959 show that reciprocity exists between the
Philippines and Japan concerning the practice of medicine. Said laws
clearly state that both countries allow foreigners to practice medicine
in their respective jurisdictions as long as the applicant meets the
educational requirements, training or residency in hospitals and pass
the licensure examination given by either country. Consul General
Yabes in his letter dated January 28, 1992 stated that "the Japanese
Government allows a foreigner to practice medicine in Japan after
complying with the local requirements." The fact that there is no
reported Filipino who has successfully penetrated the medical
practice in Japan does not mean that there is no reciprocity between Board examinations shall have the following qualifications:
the two countries, since it does not follow that no Filipino will ever
be granted a medical license by the Japanese Government. It is not
the essence of reciprocity that before a citizen of one of the
contracting countries can demand its application, it is necessary that evidence, confirmed by the Department of Foreign Affairs, showing
the interested citizen’s country has previously granted the same
privilege to the citizens of the other contracting country. 21
P a g e | 18
Respondent further argues that Section 20 of the Medical Act of
195922 indicates the mandatory character of the statute and an
imperative obligation on the part of the Board inconsistent with the
idea of discretion. Thus, a foreigner, just like a Filipino citizen, who
successfully passes the examination and has all the qualifications
and none of the disqualifications, is entitled as a matter of right to
the issuance of a certificate of registration or a physician’s license,
which right is enforceable by mandamus.23
Petitioners filed a Reply24 and both parties filed their respective
memoranda25 reiterating their arguments.1avvphi1
The Court denies the petition for lack of merit.
There is no question that a license to practice medicine is a privilege
or franchise granted by the government.26 It is a right that is earned
through years of education and training, and which requires that one
must first secure a license from the state through professional board
examinations.27
Indeed,
[T]he regulation of the practice of medicine in all its branches has
long been recognized as a reasonable method of protecting the health
and safety of the public. That the power to regulate and control the
practice of medicine includes the power to regulate admission to the
ranks of those authorized to practice medicine, is also well
recognized. Thus, legislation and administrative regulations
requiring those who wish to practice medicine first to take and pass
medical board examinations have long ago been recognized as valid
exercises of governmental power. Similarly, the establishment of
minimum medical educational requirements – i.e., the completion of
prescribed courses in a recognized medical school – for admission to
the medical profession, has also been sustained as a legitimate
exercise of the regulatory authority of the state." 28
It must be stressed however that the power to regulate the exercise of
a profession or pursuit of an occupation cannot be exercised by the
State or its agents in an arbitrary, despotic, or oppressive manner. A
political body which regulates the exercise of a particular privilege
has the authority to both forbid and grant such privilege in
accordance with certain conditions. As the legislature cannot validly
bestow an arbitrary power to grant or refuse a license on a public
agency or officer, courts will generally strike down license
legislation that vests in public officials discretion to grant or refuse a
license to carry on some ordinarily lawful business, profession, or
activity without prescribing definite rules and conditions for the
guidance of said officials in the exercise of their power. 29
R.A. No. 2382 otherwise known as the Medical Act of 1959 states in
Section 9 thereof that:
Section 9. Candidates for Board Examinations.- Candidates for
1. He shall be a citizen of the Philippines or a citizen of any foreign
country who has submitted competent and conclusive documentary
that his country’s existing laws permit citizens of the Philippines to

practice medicine under the same rules and regulations governing
citizens thereof;
xxxx
Presidential Decree (P.D.) No. 22330 also provides in Section (j)
thereof that:
j) The [Professional Regulation] Commission may, upon the
recommendation of the Board concerned, approve the registration of
and authorize the issuance of a certificate of registration with or
without examination to a foreigner who is registered under the laws
of his country: Provided, That the requirement for the registration or
licensing in said foreign state or country are substantially the same
as those required and contemplated by the laws of the Philippines
and that the laws of such foreign state or country allow the citizens
of the Philippines to practice the profession on the same basis and
grant the same privileges as the subject or citizens of such foreign
state or country: Provided, finally, That the applicant shall submit
competent and conclusive documentary evidence, confirmed by the
Department of Foreign Affairs, showing that his country's existing
laws permit citizens of the Philippines to practice the profession
under the rules and regulations governing citizens thereof. The
Commission is also hereby authorized to prescribe additional
requirements or grant certain privileges to foreigners seeking
registration in the Philippines if the same privileges are granted to or
some additional requirements are required of citizens of the
Philippines in acquiring the same certificates in his country;
xxxx
As required by the said laws, respondent submitted a copy of the
Medical Practitioners Law of Japan, duly authenticated by the
Consul General of the Embassy of the Philippines in Japan, which
provides in Articles 2 and 11, thus:
Article 2. Anyone who wants to be medical practitioner must pass
the national examination for medical practitioner and get license
from the Minister of Health and Welfare.
xxxx
Article 11. No one can take the National Medical Examination
except persons who conform to one of the following items:
1. Persons who finished regular medical courses at a
university based on the School Education Laws (December
26, 1947) and graduated from said university.
2. Persons who passed the preparatory test for the National
Medical Examination and practiced clinics and public
sanitation more than one year after passing the said test.
3. Persons who graduated from a foreign medical school or
acquired medical practitioner license in a foreign country,
and also are recognized to have the same or more academic
ability and techniques as persons stated in item 1 and item 2 It is enough that the laws in the foreign country permit a Filipino to
of this article.31
P a g e | 19
Petitioners argue that while the Medical Practitioners Law of Japan
allows foreigners to practice medicine therein, said document does
not show that conditions for the practice of medicine in said country
are practical and attainable by a foreign applicant; and since the
requirements are practically impossible for a Filipino to comply
with, there is no reciprocity between the two countries, hence,
respondent may not be granted license to practice medicine in the
Philippines.
The Court does not agree.
R.A. No. 2382, which provides who may be candidates for the
medical board examinations, merely requires a foreign citizen to
submit competent and conclusive documentary evidence, confirmed
by the Department of Foreign Affairs (DFA), showing that his
country’s existing laws permit citizens of the Philippines to practice
medicine under the same rules and regulations governing citizens
thereof.
Section (j) of P.D. No. 223 also defines the extent of PRC's power to
grant licenses, i.e., it may, upon recommendation of the board,
approve the registration and authorize the issuance of a certificate of
registration with or without examination to a foreigner who is
registered under the laws of his country, provided the following
conditions are met: (1) that the requirement for the registration or
licensing in said foreign state or country are substantially the same
as those required and contemplated by the laws of the Philippines;
(2) that the laws of such foreign state or country allow the citizens of
the Philippines to practice the profession on the same basis and grant
the same privileges as the subject or citizens of such foreign state or
country; and (3) that the applicant shall submit competent and
conclusive documentary evidence, confirmed by the DFA, showing
that his country's existing laws permit citizens of the Philippines to
practice the profession under the rules and regulations governing
citizens thereof.
The said provision further states that the PRC is authorized to
prescribe additional requirements or grant certain privileges to
foreigners seeking registration in the Philippines if the same
privileges are granted to or some additional requirements are
required of citizens of the Philippines in acquiring the same
certificates in his country.
Nowhere in said statutes is it stated that the foreign applicant must
show that the conditions for the practice of medicine in said country
are practical and attainable by Filipinos. Neither is it stated that it
must first be proven that a Filipino has been granted license and
allowed to practice his profession in said country before a foreign
applicant may be given license to practice in the Philippines. Indeed,
the phrase used in both R.A. No. 2382 and P.D. No. 223 is that:
[T]he applicant shall submit] competent and conclusive documentary
evidence, confirmed by the Department of Foreign Affairs, showing
that his country's existing laws permit citizens of the Philippines to
practice the profession [of medicine] under the [same] rules and
regulations governing citizens thereof. x x x (Emphasis supplied)
get license and practice therein. Requiring respondent to prove first
that a Filipino has already been granted license and is actually
 P a g e | 20

practicing therein unduly expands the requirements provided for requirements are complied with, and that it is not the impossibility or
under R.A. No. 2382 and P.D. No. 223. the prohibition against Filipinos that would account for the absence
of Filipino physicians holding licenses and practicing medicine in
While it is true that respondent failed to give details as to the Japan, but the difficulty of passing the board examination in the
conditions stated in the Medical Practitioners Law of Japan -- i.e., Japanese language. Granting that there is still no Filipino who has
the provisions of the School Educations Laws, the criteria of the been given license to practice medicine in Japan, it does not mean
Minister of Health and Welfare of Japan in determining whether the that no Filipino will ever be able to be given one.
academic and technical capability of foreign medical graduates are
the same as or better than that of graduates of medical schools in Petitioners next argue that as held in De Guzman, its power to issue
Japan, and who can actually qualify to take the preparatory test for licenses is discretionary, hence, not compellable by mandamus.
the National Medical Examination – respondent, however, presented
proof that foreigners are actually practicing in Japan and that The Court finds that the factual circumstances of De Guzman are
Filipinos are not precluded from getting a license to practice there. different from those of the case at bar; hence, the principle applied
therein should be viewed differently in this case. In De Guzman,
Respondent presented before the trial court a Japanese Government there were doubts about the integrity and validity of the test results
publication, Physician-Dentist-Pharmaceutist Survey, showing that of the examinees from a particular school which garnered unusually
there are a number of foreign physicians practicing medicine in high scores in the two most difficult subjects. Said doubts called for
Japan.32 He also presented a letter dated January 28, 1992 from serious inquiry concerning the applicants’ satisfactory compliance
Consul General Yabes,33 which states: with the Board requirements.34 And as there was no definite showing
that the requirements and conditions to be granted license to practice
Sir: medicine had been satisfactorily met, the Court held that the writ of
mandamus may not be granted to secure said privilege without
35
With reference to your letter dated 12 January 1993, concerning your thwarting the legislative will.
request for a Certificate of Confirmation for the purpose of
establishing a reciprocity with Japan in the practice of medical Indeed, to be granted the privilege to practice medicine, the
profession relative to the case of Mr. Yasuyuki Ota, a Japanese applicant must show that he possesses all the qualifications and none
national, the Embassy wishes to inform you that inquiries from the of the disqualifications. It must also appear that he has fully
Japanese Ministry of Foreign Affairs, Ministry of Health and complied with all the conditions and requirements imposed by the
Welfare as well as Bureau of Immigration yielded the following law and the licensing authority.36
information:
In De Guzman itself, the Court explained that:
1. They are not aware of a Filipino physician who was
granted a license by the Japanese Government to practice A careful reading of Section 2037 of the Medical Act of 1959
medicine in Japan; discloses that the law uses the word "shall" with respect to the
issuance of certificates of registration. Thus, the petitioners [PRC]
2. However, the Japanese Government allows a foreigner to "shall sign and issue certificates of registration to those who have
practice medicine in Japan after complying with the local satisfactorily complied with the requirements of the Board." In
requirements such as holding a valid visa for the purpose of statutory construction the term "shall" is a word of command. It is
taking the medical board exam, checking the applicant's given imperative meaning. Thus, when an examinee satisfies the
qualifications to take the examination, taking the national requirements for the grant of his physician's license, the Board is
board examination in Japanese and filing an application for obliged to administer to him his oath and register him as a physician,
the issuance of the medical license. pursuant to Section 20 and par. (1) of Section 22 of the Medical Act
of 1959.38
Accordingly, the Embassy is not aware of a single Filipino physician
who was issued by the Japanese Government a license to practice In this case, there is no doubt as to the competence and qualifications
medicine, because it is extremely difficult to pass the medical board of respondent. He finished his medical degree from Bicol Christian
examination in the Japanese language. Filipino doctors here are only College of Medicine. He completed a one-year post graduate
allowed to work in Japanese hospitals as trainees under the internship training at the Jose Reyes Memorial Medical Center, a
supervision of a Japanese doctor. On certain occasions, they are government hospital. Then he passed the Medical Board
allowed to show their medical skills during seminars for Examinations which was given on August 8, 1992 with a general
demonstration purposes only. (Emphasis supplied) average of 81.83, with scores higher than 80 in 9 of the 12 subjects.

Very truly yours, In fine, the only matter being questioned by petitioners is the alleged
failure of respondent to prove that there is reciprocity between the
laws of Japan and the Philippines in admitting foreigners into the
Jesus I. Yabes
practice of medicine. Respondent has satisfactorily complied with
Minister Counsellor &
the said requirement and the CA has not committed any reversible
Consul General
error in rendering its Decision dated November 16, 2004 and
Resolution dated October 19, 2003.
From said letter, one can see that the Japanese Government allows
foreigners to practice medicine therein provided that the local

WHEREFORE, the petition is hereby DENIED for lack of merit.
316 S.W.2d 515 (1958) STATE of Missouri ex rel.
William A. COLLET, Prosecuting Attorney of
Jackson County, Missouri, Plaintiff-Appellant, v.
William SCOPEL, Defendant-Respondent.
Supreme Court of Missouri. Division No. 2.September 8,
1958.Motion for Rehearing or to Transfer Denied October 13,
1958.Motion for Rehearing or to Transfer to Court En Banc Denied
October 13, 1958.
BARRETT, Commissioner.
This is a civil action in equity instituted on behalf of the State by the
Prosecuting Attorney of Jackson County, acting in his official
capacity [Section 56.060],1 to enjoin the unlicensed practice of
medicine by defendant, William Scopel, on the ground that such
practice is "a continuing public nuisance detrimental to the public
welfare and dangerous to the public health, contrary to and against
the public policy of the State." Upon this appeal by the State from
the decree of the trial court dissolving the temporary restraining
order theretofore issued and dismissing plaintiff's petition, the fact
that the State is a party to the action [State ex rel. Thrash v. Lamb,
237 Mo. 437, 141 S.W. 665] invokes our appellate jurisdiction under drugless, that "everything that was prescribed from that clinic that
Article 5, Section 3, Mo.Const. of 1945, 2 V.A.M.S.
Defendant admittedly has neither sought nor obtained a license to
practice medicine in this State [see Sections 334.010, 334.030 and
334.040, as amended Laws of 1951, p. 727], but his contention is
"that he is a naturopath and as such does not practice medicine and
that his business is not subject to the licensing or control of any
board or agency under the laws of Missouri." Defendant's loose
definition of naturopathy is "a system of medicine that utilizes
properties required by the body to bring about a natural reaction—
that is as near as possible that we define ourselves." (All emphasis
herein is ours.) Illustrative of the statutory definitions of
naturopathy, in those states in which that system of medicine has
been recognized by legislative enactment, is the Florida definition in
Section 462.01, F.S.A.: "* * * (T)he use and practice of
psychological, mechanical and material health sciences to aid in
purifying, cleansing and normalizing human tissues for the
preservation or restoration of health, according to the fundamental
principles of anatomy, physiology and applied psychology, as may
be required. Naturopathic practice employs, among other agencies,
phytotherapy, dietetics, psychotherapy, suggesto-therapy,
hydrotherapy, zone therapy, bio-chemistry, external applications,
[316 S.W.2d 517]
electrotherapy, mechanotherapy, mechanical and electrical
appliances, hygiene, first aid, sanitation and heliotherapy * * *."
Although naturopathy is sometimes said to be a drugless system of
healing, the South Carolina Naturopathic Physicians Association
alleged, in an action for a declaratory judgment, "that it is essential
in the practice of their profession * * * to administer and prescribe
such drugs" as opium and its derivatives, aminopyrine, barbiturates
and penicillin [Dantzler v. Callison, 1955, 227 S.C. 317, 88 S.E.2d
64, 66], and licensed naturopaths in Florida stubbornly and
successfully sought the right to prescribe narcotic drugs. State Dept. defendant blandly assured his cross-examiner, "yes, a good physic
of Public Welfare v. Melser, Fla., 69 So.2d 347, 353; In re
P a g e | 21
Complaint of Melser, 160 Fla. 333, 32 So.2d 742. See also Perry v.
Larson, 5 Cir., 104 F.2d 728.
Defendant in the case at bar operates at 1410 Central in Kansas City,
Missouri, "a school of naturopathic medicine" which he calls the
American College of Naturopathic Medicine and Laboratory
Technic. At the same address, defendant has "my clinic" which, as
he says, "I must have" in connection with the "school." According to
defendant, his "institution is under the supervision of a medical
director" and "we have five doctors there all the time." Neither the
"medical director" nor any of the "five doctors" testified, but
defendant identified the medical director as M. A. Elstein, M.D., "an
old gentleman" who "spends most of the time there." Defendant is
"part of the clinic" and maintains a large office there, with his name
inscribed on the door as "Dr. William Scopel, N.D., Dean
Diagnosis." His office furnishings include "a standard examination
table * * * used by all physicians" and a number of glass cases
containing surgical instruments and what appear to be "pills and
other medicine." One witness, a practical nurse, recognized in
defendant's office specula for vaginal examinations and instruments
for swabbing wounds and pulling sterile gauze from containers, and
defendant readily admitted his use of a stethoscope and "a
cardiograph machine"— "I had the first one ever made."
The insistence of defendant, whose practice obviously was not
required the prescription by a physician, it was so done by said
physician" finds no independent support in the record. On the
contrary, the evidence persuasively indicates that defendant, in fact,
prescribed although he sometimes did so over the signature of his
"medical director." After one female patient (gathering evidence for
prosecution of this suit) had been examined by defendant, he gave
her a prescription for phenobarbital bearing Elstein's signature.
When cross-examined concerning this prescription (before the
patient had testified or had been identified), defendant first said that
"I handed it to him (the patient), but it was written by the medical
director; he was right there when I gave it," then surmised "I suppose
he was," and finally conceded "I don't recollect." When recalled to
the stand after the patient had testified, defendant remembered that
Elstein "was in the next room and, at the time I could not take him
before a patient, because he was unable to come * * * his urine and
his odor was unpresentable," so "I took the finding of the diagnosis
to Dr. Elstein, and he wrote this prescription which I handed to this
woman, according to the diagnosis that I gave to him."
When this same patient returned to defendant's office about ten days
later, "he asked me (the patient) some questions and took my blood
pressure and listened to my heart and told me I was in perfect
condition"; but, notwithstanding the patient's "perfect condition,"
defendant gave her a small box labeled "Caroid and Bile Salts with
Phenolphthalein"—"Physician's Sample," which contained three
brown tablets—"a laxative to take in the evening," and a dark bottle
filled with a liquid and bearing a label with the handwritten
direction, "(1) teaspofull after meal." Defendant said that the brown
tablets actually were "Feenamint, sent out by the company,
[316 S.W.2d 518]
and everyone that comes into my clinic I give them one"; and, in
response to the incredulous query, "whether they need it or not,"
doesn't hurt anyone." According to defendant, the bottle of liquid

was "merely a tonic made up of licorice and iron and stuff like that *
* * more or less of a fruit substance," which "anybody can take * * *
anytime" and which is beneficial "in general for everything." The
patient paid defendant $5 on each visit.
Defendant recognized, as having "been in my office," a small bottle
bearing the typewritten label "Acetanalid—3 Grain" which,
however, contained (so he said) "pure aspirin." He thought that he
had given the bottle and its contents to a female patient from
Independence, who "come in with migraine headaches, and the way
she acted and the line that she told me (defendant), I realized she
was someone who a thousand times a year were sent to me, and I
took the aspirin out of that bottle." Defendant also identified on
crossexamination an unsigned prescription blank on which he had
written "Permajute of Potassian Cristal." Insisting that "it is properly
spelled," he conceded that permanganate of potash crystals were
intended, agreed that "evidently I have given it to someone
(unidentified in the record) a long time ago," but could not say for
what purpose he might have recommended the use of such
crystals—"permanganate is used for a million and one things."
Clarence E. Holt, a naturopath called as a witness for defendant, had
occupied an office adjoining that of defendant. Holt bluntly stated
that "all naturopath doctors are specialists in the laws of nature to
take care of any disease in the human body," definitely asserted that
naturopaths "diagnose conditions of the human body and disease"—
"that is part of naturopathy," and readily agreed that it likewise is
"part of naturopathy, certainly," to prescribe treatment for any
condition found. Then, in response to an inquiry whether "you know
of your own knowledge, by reason of your office association with
him * * *, he (defendant) did do those things," Holt answered, "I
have reason to think so."
Among the exhibits, we find (1) defendant's "main book," a paper-
bound pamphlet of fifty-four pages titled "Scopel's Natural Antibody
Theory," written by defendant, "Degrre N.D., M.D.—Dean of the
American College of Natural Medicine and Laboratory Technic,
Kansas City, Missouri," and copyrighted, revised and reprinted in
1952, (2) an eight-page pamphlet bearing the same title, with an
author's foreword by "William Scopel, M.D." and (3) a tenpage
pamphlet of invective captioned "It Happened To Me" which
identifies the author as "Dr. Wm. Scopel * * * Discoverer of Natural
Immunization, Degree N.D., M.D., Registered to practice medicine
in the State of Oklahoma," and "Dean of the American College, etc."
Defendant caused the first two pamphlets to be distributed "to the
people engaged in the field of healing" and the last one "to the
public."
It is clear that, for protection of the public health and welfare, the
legislature is empowered to regulate the practice of medicine in such
manner as it reasonably may believe to be proper and wise. State v.
Smith, 233 Mo. 242, 265-268, 135 S.W. 465, 471-472, 33
L.R.A.,N.S., 179; State v. Davis, 194 Mo. 485, 499-501, 92 S.W.
484, 488-489, 4 L.R.A.,N.S., 1023; Dent v. State of West Virginia,
129 U.S. 114, 9 S.Ct. 231, 32 L.Ed. 623. In the valid exercise of
such authority, our general assembly has seen fit to require that "(a)ll
persons desiring to practice medicine or surgery in this state, or to
treat the sick or afflicted," shall furnish satisfactory evidence of
certain educational qualifications and shall attain a specified average
grade upon medical examination conducted by the State Board of
Medical Examiners [Section 334.040, as amended Laws of 1951, p.
P a g e | 22
727], and has made it unlawful for any person, other than a
registered physician (and those exempted by Section 334.150), "to
practice medicine or
[316 S.W.2d 519]
surgery in any of its departments, or to profess to cure and attempt to
treat the sick and others afflicted with bodily or mental infirmities."
Sections 334.010 and 334.030. The general assembly has recognized
and made appropriate provision for the licensing of chiropodists in
Chapter 330, chiropractors in Chapter 331, dentists in Chapter 332,
nurses in Chapter 335, optometrists in Chapter 336, osteopaths in
Chapter 337, and pharmacists in Chapter 338. None of the rights or
privileges of naturopaths have been infringed or denied by reason of
the fact that they have not been accorded similar legislative
recognition by name, for the general assembly is under no duty or
compulsion to recognize and deal with every school of medicine and
to provide for the licensing of the followers of each such school by
requiring of them only such education or knowledge as that
particular school may demand. Hahn v. State, Wyo., 322 P.2d 896,
901; Schlichting v. Texas State Board of Medical Examiners, Tex.,
310 S.W.2d 557, 563-564; Hitchcock v. Collenberg, D.C.Md., 140
F.Supp. 894, 899, affirmed 353 U.S. 919, 77 S.Ct. 679, 1 L.Ed.2d
718. Our statutes do not prohibit the practice of naturopathy, but the
general assembly has, in Chapter 334, established certain
requirements which must be met and satisfied by any person (not
exempted by Section 334.150) who undertakes the practice of
medicine. One so licensed to practice may, if he desires, apply the
tenets and principles of naturopathy in his practice. Dantzler v.
Callison, 230 S.C. 75, 94 S.E.2d 177, 187(16), appeal dismissed 352
U.S. 939, 77 S.Ct. 263, 1 L.Ed.2d 235; Davis v. Beeler, 185 Tenn.
638, 207 S.W.2d 343, 347, appeal dismissed 333 U.S. 859, 68 S.Ct.
745, 92 L.Ed. 1138; Louisiana State Board of Medical Examiners v.
Fife, 162 La. 681, 111 So. 58, 54 A.L.R. 594, affirmed 274 U.S. 720,
47 S.Ct. 590, 71 L.Ed. 1324.
In determining the initial question as to whether defendant is
engaged in the practice of medicine within the contemplation and
meaning of Chapter 334, we are interested in what he does, not what
he calls himself or his system of practice [State v. Smith, supra, 233
Mo. loc. cit. 260, 135 S.W. loc. cit. 469; State v. Blumenthal, 141
Mo. App. 502, 505, 125 S.W. 1188, 1189; Smith v. State Board of
Medicine of Idaho, 74 Idaho 191, 259 P.2d 1033, 1034-1035(2)];
and if, in fact, defendant is practicing medicine, he cannot escape the
consequences by cloaking his activities under the pseudonym of
naturopathy. For, since naturopathy has not been recognized by our
general assembly, it cannot be recognized by our courts. State v.
Howard, 216 Iowa 545, 245 N.W. 871, 873-874(2); 92 A.L.R. 174.
Contrast Williams v. Capital Life & Health Ins. Co., 209 S.C. 512,
41 S.E.2d 208, 210. And, it may be added that defendant's legal
position is not altered or improved by the fact (if so) that there was a
medical doctor in his clinic and that he (defendant) issued
prescriptions signed by such doctor. State v. Young, Mo.App., 215
S.W. 499, 501(7).
Without undertaking judicial definition of what constitutes the
practice of medicine in Missouri, it may be said that the obvious
intention of Chapter 334 is to embrace "`any person who habitually
holds himself out as a professor of the art of healing'" [State v.
Smith, 233 Mo. loc. cit. 263, 135 S.W. loc. cit. 470; Davidson v.
Bohlman, 37 Mo.App. 576, 579]; that the prescription of drugs is not
essential to the practice of medicine [Stribling v. Jolley, 241
Mo.App. 1123, 1136, 253 S.W.2d 519, 524; State v. Evertz,
 P a g e | 23

Mo.App., 202 S.W. 614; Davidson v. Bohlman, supra]; and, that 102, 92 A.L.R. 173; State ex rel. Marron v. Compere, 44 N.M. 414,
diagnosis (in which defendant purports to be especially qualified and 103 P.2d 273, 275.
particularly proficient) is an important and integral part of the
practice of medicine. State v. Smith, supra, 233 Mo. loc. cit. 258- Defendant's theory that his practice is not a public nuisance because
260, 263, 135 S.W. loc. cit. 468-470; State v. Howard, supra, 245 he is (as his counsel phrases it) "educated beyond the bare minimum
N.W. loc. cit. 874; State ex rel. Shenk v. State Board of Examiners prescribed by the statute he is accused of violating [Section
in Basic Sciences, 189 Minn. 1, 250 N.W. 353, 354. Defendant's 334.040(2)], and unchallenged and unimpeached in his competence
practice encompassing, as it does, diagnosis and treatment of the in the limited system (of naturopathy) which he admittedly
sick, we have no doubt but that it constitutes the practice of medicine practices" prompts a brief review of the evidence concerning his
within the contemplation and meaning of Chapter 334. State v. education and qualifications to treat the sick. Before coming to this
country in 1915, defendant went through the fifth or sixth grade in
[316 S.W.2d 520] school in his native land of Italy—"that is as far as we could go
Smith, supra; State v. Young, supra; State v. Fenter, Mo.App., 204 there" —and in a private school conducted by his brother took what
S.W. 733; State v. Evertz, Mo.App., 202 S.W. 614, 616; Davidson v. his counsel liberally construes to have been "a course of study * *
Bohlman, supra. Consult also O'Bannon v. Widick, 281 Mo. 478, equal to high school." After "a very short course" at the Palmer-
220 S.W. 853, affirming Mo.App., 198 S.W. 432. This conclusion as Gregory Chiropractic College in Oklahoma City, he received a
to naturopathic practice is in accord with the overwhelming weight diploma from that institution in 1922; and, on a date not fixed in the
of authority in other jurisdictions. See Hahn v. State, supra, 322 P.2d record, he became "the president of the school," a position still
loc. cit. 900-901, and cases there collected.
[316 S.W.2d 521]
However, defendant argues that, regardless of whether he is held by him at the time of trial. Although defendant thought that he
practicing medicine, injunctive relief should be denied because (so had been "licensed under the old Indian Territory Laws" in 1925 "to
he says) the State failed to prove that he is, in fact, a public nuisance. administer remedies under the Indian Laws," and that he was "a herb
Unlicensed medical or dental practitioners have been enjoined in doctor in Oklahoma"—"under the Territory Law, yes," and although
many jurisdictions, usually pursuant to statutory authorization he said that he had "my certificate of registration," he did not
[Schlichting v. Texas State Board of Medical Examiners, supra; produce it, and we are mindful that the Indian Territory had become
State ex rel. Board of Medical Registration & Examination v. Hayes, the State of Oklahoma in 1907, long before defendant landed in this
228 Ind. 286, 91 N.E.2d 913; Dean v. State, 233 Ind. 25, 116 N.E.2d country. But, if defendant's status as "a herb doctor in Oklahoma"
503; Nighohossian v. State, 75 Ariz. 162, 253 P.2d 344, 346; State v. remains cloudy and obscure, he established that he was " `a corn
Fray, 214 Iowa 53, 241 N.W. 663, 81 A.L.R. 286; State v. Howard, doctor' " [State ex rel. Flickinger v. Fisher, 119 Mo. 344, 353, 24
214 Iowa 60, 241 N.W. 682; State ex rel. Corley v. Leopold, 170 S.W. 167, 169, 22 L.R.A. 799] in that state by offering in evidence
Kan. 613, 228 P.2d 538; State ex rel. Beck v. Cooper, 147 Kan. 710, an Oklahoma license to practice chiropody, which had been issued to
78 P.2d 884, 888; Louisiana State Board of Medical Examiners v. him in 1935.
Lensgraf, La.App., 101 So.2d 734, 736; Board of Medical
Examiners of Utah v. Blair, 57 Utah. 516, 196 P. 221; State Board of In 1930, defendant obtained from The National College of Massage
Dental Examiners v. Rymer, Tenn., 303 S.W.2d 959; State v. Boren, and Physio-Therapy in Chicago a certificate that he had "completed
42 Wn.2d 155, 253 P.2d 939, 944] but sometimes as a public a prescribed course in Health Culture and (had) passed a creditable
nuisance per se without specific statutory declaration or examination in the art of Scientific Swedish Massage, Medical
authorization. Kentucky State Board of Dental Examiners v. Payne, Gymnastics, Electro-Therapy, Hydro-Therapy, Swedish Face and
213 Ky. 382, 281 S.W. 188; Commonwealth ex rel. Attorney Scalp Treatment, Hygiene and the underlying principles of Anatomy
General v. Pollitt, 258 Ky. 489, 80 S.W.2d 543; Curtis v. Registered and Physiology." And, after a one-year "night course" in "eclectic
Dentists of Oklahoma, 193 Old. 233, 143 P.2d 427. See also Taylor medica"—"a system of medicine utilizing all of the natural
v. State, Okl., 291 P.2d 1033, 1041, appeal dismissed 352 U.S. 805, substances * * * barring metallic substances"—the Dearborn College
77 S.Ct. 33, 1 L.Ed.2d 38; Board of Examiners in Veterinary of Physicians and Surgeons in Chicago issued a diploma to
Medicine of State v. Tubbs, Okl., 307 P.2d 830, 832; Weber v. defendant in 1941 purporting to confer on him the degree of Doctor
Florida State Board of Optometry, Fla., 73 So.2d 408. Other cases of Medicine. Having volunteered on direct examination that
support the contention of instant defendant that, since at common "Dearborn College is one of the oldest medical schools, perhaps, in
law the practice of medicine was open to any who desired to follow the United States," defendant conceded on cross-examination that "it
it, subject only to liability for damages resulting from lack of skill closed in 1947." There is no suggestion that defendant was licensed
and to the right of the government by quo warranto to prevent to practice any system or branch of medicine in Illinois.
incompetents from following the profession [Aitchison v. State, 204
Md. 538, 105 A.2d 495, 497-498 (2), certiorari denied 348 U.S. 880, Defendant said that, in 1941, he "spent nine months at the Gradwal
75 S.Ct. 116, 99 L.Ed. 692; Redmond v. State, 152 Miss. 54, 118 So.
School of Medical Technology in St. Louis" but no diploma or
360, 367; State v. Borah, 51 Ariz. 318, 76 P.2d 757, 758(1), 115
certificate from that institution was presented. At the conclusion of a
A.L.R. 254], unlicensed medical practice does not now constitute a
one-year "rotating internship," defendant obtained in 1943 a
nuisance per se, may not be restrained on a mere showing that the
Certificate of Internship from Corning Research Hospital in Corning,
practitioner has no license, but should be enjoined only upon the Arkansas, an institution which also had closed prior to the time of
further showing that such unlicensed practice, in fact, constitutes a trial. During this period of "internship," defendant lived in Kansas
public nuisance. People ex rel. Bennett v. Laman, 277 N.Y. 368, 14
City, Missouri, going to Corning "sometimes three and sometimes
N.E.2d 439; State ex rel. La Prade v. Smith, 43 Ariz. 131, 29 P.2d
four days a week" and at the same time caring for "my business here
718, 92 A.L.R. 168, modified on rehearing 43 Ariz. 343, 31 P.2d
(in Kansas City), making a living." He described his "business" as
 P a g e | 24

"taking care of displaced Japanese sent here from the West Coast to
be placed in industry" and as "general director * * * of the United
Shoe Workers." In August, 1948, the Missouri Naturopathic
Association was incorporated; and, during the same month, the
Board of Naturopathic Examiners of that Association issued to
defendant a certificate bearing, among others, the signature of
defendant, president of the Association, identified as "N.D., D.C.,
M.D." Compare Aitchison v. State, supra, 105 A.2d loc. cit. 496-
497, 500. Under date of January 15, 1952, the Booker T.
Washington Chiropractic College in Kansas City, an institute "for
the G. I. colored boys," issued a diploma to defendant certifying his
completion of "4,320 class hours." According to defendant, he
attended this institute "for four years in night school"—"they had
such wonderful instructors there, and I wanted to get all that I could
out of it." In March, 1955 (after institution of this suit), defendant
procured from the Georgia Board of Naturopathic Examiners a
license authorizing him to practice naturopathy in that State. But,
diligent as defendant obviously has been in the collection of
certificates and diplomas, certainly those produced by him neither
demonstrate his education "beyond the bare minimum" prescribed
by Section 334.040, subd. 2 nor indicate his competence to practice
medicine.
It is well-established that equity may enjoin acts or conduct
constituting a public nuisance [State ex rel. Crow v.
that term. So finding, we should not stay the strong arm of equity
because there is no specific statutory authorization for injunctive
relief against unlicensed medical practice [Burden v. Hoover, 9
Ill.2d 114, 137 N.E.2d 59, 62; State ex rel. Marron v. Compere,
supra, 103 P.2d loc. cit. 278(8)] or because defendant might be
prosecuted criminally [State ex rel. Crow v. Canty, supra, 207 Mo.
loc. cit. 454-459, 105 S.W. loc. cit. 1082-1084; People ex rel.
Bennett v. Laman, supra; Boggs v. Werner, 372 Pa. 312, 94 A.2d 50;
Heilman, Legal Control of Medical Charlatanism, 22 N.C.L. Rev.
23, 35-36], particularly where, as here, defendant has violated the
applicable statutes openly, arrogantly and persistently and also has
manifested contempt for the process of the court by examination and
treatment of patients while the temporary restraining order was in
effect.
The decree of the trial court is set aside and the cause is remanded
with directions to enter a decree finding the issues for plaintiff and
permanently enjoining defendant in accordance with the prayer of
plaintiff's petition.
BOHLING and STOCKARD, CC., concur.
PER CURIAM .the foregoing opinion by BARRETT, C., is adopted
as the opinion of the Court.All concur.

[316 S.W.2d 522]

Canty, 207 Mo. 439, 454-459, 105 S.W. 1078, 1082-1084, 15
L.R.A.,N.S. 747; State ex rel. Thrash v. Lamb, supra, 141 S.W. loc.
cit. 668(3), 670-671(7); State ex rel. Allai v. Thatch, 361 Mo. 190,
234 S.W.2d 1], defined as "an offense against the public order and
economy of the state by unlawfully doing any act or by omitting to
perform any duty which the common good, public decency, or
morals, or the public right to life, health, and the use of property
requires, and which at the same time annoys, injures, endangers,
renders insecure, interferes with, or obstructs the rights or property State v. Evertz, Mo., 190 S.W. 287"???
of the whole community, or neighborhood, or of any considerable
number of persons, even though the extent of the annoyance, injury,
or damage may be unequal or may vary in its effect upon
individuals." State ex rel. Crow v. Canty, supra, 105 S.W. loc. cit.
1080; State by Major ex rel. Hopkins v. Excelsior Powder Mfg. Co.,
259 Mo. 254, 278, 169 S.W. 267, 273, L.R.A.1915A 615; Joyce on
Nuisances, § 5, p. 10. See also State ex rel. Igoe v. Joynt, 341 Mo.
788, 795, 110 S.W.2d 737, 740(12); State ex rel. Jackson v. Lindsay,
85 Kan. 79, 116 P. 207, 208-209, 35 L.R.A.,N.S., 810; Pomeroy's
Equity Jurisprudence (2nd Ed.), Vol. 5, § 1893, p. 4296.

Defendant has arrogated to himself the right to diagnose and treat

human ailments and has undertaken the task of examining and caring 140 F. Supp. 894 (1956)
for that most delicate, intricate and mysterious of all mechanisms—
the human body. The live and continuing interest of the State in KENNETH C. HITCHCOCK, THE MARYLAND
guarding and protecting the sick and credulous from ignorant and NATUROPATHIC ASSOCIATION, INC., A BODY
incompetent practitioners is evidenced by the legislative enactments CORPORATE, DENA COHEN, HARRY E. WEST, MARY S.
in Chapter 334. Consult State v. Smith, supra, 233 Mo. loc. cit. 268,
GEBHARDT, LEWIS KERN
135 S.W. loc. cit. 472; State v. Davis, supra, 194 Mo. loc. cit. 499,
V.
92 S.W. loc cit. 488; State v. Fenter, supra, 204 S.W. loc. cit. 734-
735. Without holding that unlicensed medical practice constitutes a HENRY T. COLLENBERG ET AL., COMPRISING THE
public nuisance per se, we are satisfied that the record before us, BOARD OF MEDICAL EXAMINERS FOR THE STATE OF
taken in its totality, conclusively demonstrates defendant's utter MARYLAND ET AL.
inadequacy and incompetence for the role he has assumed and CIV. NO. 7866.
satisfactorily establishes that his extensive and unlicensed practice
is, in fact, a public nuisance within the above-quoted definition of

United States District Court D. Maryland, Civil Division.April
19, 1956.
*895 John J. O'Connor, Jr., Baltimore, Md., for plaintiffs.C.
Ferdinand Sybert, Atty. Gen. of Maryland, and Stedman Prescott,
Jr., Asst. Atty. Gen. of Maryland, for defendants.Before SOPER,
Circuit Judge, and CHESNUT and THOMSEN, District Judges.
THOMSEN, District Judge.The Court of Appeals of Maryland has
held that naturopathic practitioners are "practicing medicine", as that
term is defined in the State Medical Practice Act, Annotated Code of
Maryland, 1951 ed., Art. 43, Secs. 117-147, and that a person
desiring to engage in the healing art by the practice of naturopathy
may not do so without a license from one of the two State Boards of
Medical Examiners. Aitchison v. State, 204 Md. 538, 105 A.2d 495,
certiorari denied 348 U.S. 880, 75 S. Ct. 116, 99 L. Ed. 692.
The complaint in the instant case is filed by Dr. Kenneth C.
Hitchcock, a naturopathic practitioner; the Maryland Naturopathic
Association; and two Maryland residents, one Pennsylvania resident
and one Ohio resident, who regularly engage, and intend to continue
to engage, naturopathic practitioners of Maryland to assist them in
diagnosing and treating their physical ills and ailments. They seek a
ruling that the Act was improperly construed by the Maryland court,
or that, as so construed, it violates plaintiffs' rights under Articles 4
and 6 of the Constitution of the United States, the 14th Amendment
thereto, the anti-trust laws, the Maryland Declaration of Rights and
the State Constitution.
The defendants are the members of the two Maryland Boards of
Medical Examiners, the Attorney General of the *896 State, the
State's Attorney for Baltimore City and the Police Commissioner of 43, secs. 346-364; an osteopath from the Board of Osteopathic *897
that City. They have moved to dismiss the complaint.
Art. 43 of the Maryland Code is entitled "Health". The State Medical Board of Chiropractic Examiners, secs. 460-475; and a physical
Practice Act, sec. 117 et seq., was originally adopted in 1888 and has therapist from the State Board of Physical Therapy Examiners, secs.
been amended a number of times.[1] It provides for two Boards of
Medical Examiners authorized to issue licenses for the practice of
medicine and surgery. The members of one board are appointed by
the Medical and Chirurgical Faculty of Maryland, the members of
the other by the Maryland State Homeopathic Medical Society. Sec.
118. A person receiving a license from either board is directed to file No special provisions have been made for the licensing of
it with the Clerk of the Circuit Court, who registers the name of the
licensee and the name of the president of the board signing the
license. Anyone practicing medicine or surgery in Maryland without since 1939. After the decision of the Court of Appeals in the
having obtained a license from one of these boards is guilty of a
misdemeanor; so is a person who practices medicine or surgery
without being registered. Secs. 126, 127, 128, 131, 136.
Sec. 138 defines "practicing medicine" as follows:
"Any person shall be regarded as practicing medicine within the
meaning of this sub-title who shall append to his or her name the
words or letters `Dr.,' `Doctor,' `M.D.,' or any other title in
connection with his name, with the intent thereby to imply that he or
she is engaged in the art or science of healing, or in the practice of
medicine in any of its branches, or who shall operate on, profess to
heal, prescribe for, or otherwise treat any physical or mental ailment
P a g e | 25
or supposed mental ailment of another, or who shall for hire or for
any gratuity or compensation, either directly or indirectly to him or
her paid, undertake by any appliance, operation or treatment of
whatever nature, to cure, heal or treat any bodily or mental ailment
or supposed ailment of another; or who for any hire, gratuity or
compensation, either directly or indirectly to him or her paid, by or
for any patient, shall undertake to treat, heal, cure, drive away or
remove any physical or mental ailment, or supposed ailment of
another, by mental or other process, exercised or invoked on the part
of either the healer or the patient or both; * * *."
A proviso makes the following exceptions to the foregoing
definition: (1) gratuitous services; (2) resident and assistant resident
physicians and students at hospitals in the discharge of their hospital
or dispensary duties and in the offices of physicians; (3) physicians
and surgeons from another State when in actual consultation with a
practitioner of this State; (4) commissioned surgeons of the United
States Army, Navy or insane hospital service; (5) opticians; (6)
chiropodists; (7) midwives; (8) masseurs or other manual
manipulators who use no other means; (9) physicians and surgeons
residing on the border of a neighboring State and authorized to
practice medicine and surgery therein, whose practice extends into
this State; (10) dentists; and (11) the sale by druggists of proprietary
or patent medicines or any official or standard drug or medicine.
Before the passage of the Medical Practice Act, the Legislature had
adopted in 1884 special regulations for the practice of dentistry,
Code Art. 32; it has since prescribed special regulations for the
practice of optometry (1914), osteopathy (1914), chiropody (1916),
chiropractic (1920), and physical therapy (1947). An optometrist
obtains his license from the Board of Examiners of Optometry, Art.
Examiners, secs. 428-441; a chiropodist from the Board of
Chiropody Examiners, secs. 442-455; a chiropractor from the State
565-575. Art. 43 also contains provisions regulating funeral directors
and embalmers, pharmacists, barbers, registered nurses, plumbers,
practical nurses, midwives, hairdressers and beauty culturists,
including the practice of trichology.
naturopaths, naturopathic physicians or practitioners of naturopathy,
although numerous bills have been introduced in the Legislature
Aitchison case in 1954, a bill was introduced in the Maryland
Legislature in 1955, known as House Bill 129, which, if it had been
enacted, would have added twelve new sections to Art. 43, creating a
Board of Naturopathic Examiners, providing for the licensing of
naturopathic physicians, and relating generally to the practice of
naturopathy. That bill contained the following definition of
naturopathy:
"For the purposes of this sub-title naturopathy is hereby defined to
be one of the healing arts whose scope, purposes and methods of
practice are as follows: Naturopathy is a system of healing for the
prevention, diagnosis, care and treatment of injuries, deformities,
ailments, diseases and abnormalities of the human mind and body by

means of such arts, sciences, methods and agencies of healing as
make use of the healing properties and principles inherent in air,
sunshine, light, electricity, heat, cold, climate, water, earths,
exercise, work, rest, recreation, sweats, baths, packs, irrigations,
inhalations, manipulations, corrective gymnastics, psychology,
physics, mechanics, bio-chemistry, dietetics, enzymes, vitamins,
minerals, tissue salts and substances naturally found in or required
by the body, oxygen, ozone, herbs, external applications, apparatus,
appliances, mental hygiene, physical culture, first aid, hygiene and
sanitation; provided, however, that except as hereinbefore specified,
the practice of naturopathy shall not include the use of drugs,
surgery, destructively radioactive substances, or x-rays, except for
diagnostic purposes."
It is apparent from this definition that the practice of naturopathy
comes within the definition of "practicing medicine" in sec. 138,
quoted above.
Dr. Hitchcock holds a Bachelor of Arts degree from the University
of Florida (1918) and a Doctor of Naturopathy degree from the
Blumer College of Naturopathy, of Hartford, Connecticut (1921). He
was granted a license to practice naturopathy by the Connecticut
State Board of Naturopathic Examiners in 1923 and similar licenses
by the Florida State Board of Naturopathic Examiners in 1939 and
the South Carolina Board of Naturopathic Examiners in 1932. [2] He
has practiced naturopathy openly in Maryland since 1939. He is
president of the Maryland Naturopathic Association, which, in 1948,
filed a bill in equity against the Board of Medical Examiners in the
Circuit Court No. 2 of Baltimore City for an injunction and a decree
declaring that the system of healing known as naturopathy is not
included in the practice of medicine as regulated by the State
Medical Practice Act. A decree dismissing the bill was affirmed by
the Court of Appeals of Maryland on the ground that the association
had no property interests which might have been affected by any of
the alleged acts of the defendants. Maryland Naturopathic *898
Association v. Kloman, 191 Md. 626, 628, 62 A.2d 538.
Thereupon Dr. Hitchcock himself filed a bill in equity against the
Board of Medical Examiners, the Police Commissioner and the
State's Attorney for a declaratory decree and injunction. The decree
dismissing that bill was affirmed by the Court of Appeals because
"`the general rule is that equity will not interfere to prevent the
enforcement of a criminal statute even though unconstitutional. * * *
The mere existence of a criminal statute is not such a threat as to
present a justiciable controversy.'" Hitchcock v. Kloman, 196 Md.
351, 356, 76 A.2d 582, 584.
Dr. Hitchcock then applied in writing to the State Board of Medical
Examiners for a license to practice naturopathy. The Secretary of the
Board in a letter dated July 1, 1954, replied, in part, as follows:
"* * * We are informed by the office of the Attorney General that
the Court of Appeals did not mean to imply that the State Board of
Medical Examiners is authorized to license Naturopaths as such
without regard to the requirements of the Medical Practice Act. In
order to be licensed by this Board it is necessary that you meet the
requirements for the licensing of those who desire to practice
medicine."
P a g e | 26
An amendment to the complaint in the instant case alleges that since
the filing of the original complaint Dr. Hitchcock has been arrested
by officers of the Police Department of Baltimore City on the charge
of practicing medicine without a license. After waiving a
preliminary hearing, he was released on bail and held for the action
of the grand jury. The grand jury has returned a presentment, but the
State's Attorney has delayed preparing an indictment because of the
pendency of this case, and Dr. Hitchcock is now on bail. An
additional prayer has been added seeking an injunction against the
State's Attorney from proceeding with the prosecution on that
charge.
The complaint in this case contains forty-four numbered paragraphs,
with many sub-paragraphs, and twenty-five, now twenty-six,
separate prayers for relief. Aside from the matters set out above, it
contains an elaborate statement of the history and principles of
naturopathy, which amplifies the statement in House Bill No. 129,
quoted above, and makes it even more clear that the practice of
naturopathy comes within the definition of "practicing medicine" in
Art. 43, Sec. 138 of the Maryland Code.
The salvos fired by the plaintiffs against the Maryland Act raise a
great variety of points. Many of them deal with the proper
construction of the Act and with the contention that it violates the
Maryland Declaration of Rights and the State Constitution. Those
questions cannot be considered in this case. They do not involve
rights claimed under the Constitution and laws of the United States;
there is no requisite of diversity of citizenship to give this court
jurisdiction of non-Federal questions; and if there were, we would be
bound by the decision of the Court of Appeals of Maryland, which
has passed on all of them. Aitchison v. State, 204 Md. 538, 105 A.2d
495, certiorari denied 348 U.S. 880, 75 S. Ct. 116, 99 L. Ed. 692;
Watson v. State of Maryland, 218 U.S. 173, 175, 177, 30 S. Ct. 644,
54 L. Ed. 987.
We have jurisdiction, however, to consider plaintiffs' contentions
that fundamental rights guaranteed by the Federal Constitution are
violated. Watson v. State of Maryland, 218 U.S. 173, 175, 177, 30 S.
Ct. 644, 54 L. Ed. 987; Truax v. Raich, 239 U.S. 33, 36 S. Ct. 7, 60
L. Ed. 131; Crane v. Johnson, 242 U.S. 339, 37 S. Ct. 176, 61 L. Ed.
348; McNaughton v. Johnson, 242 U.S. 344, 37 S. Ct. 178, 61 L. Ed.
352. Cf. Watson v. Buck, 313 U.S. 387, 61 S. Ct. 962, 85 L. Ed.
1416. The disagreement between the parties is no longer nebulous or
contingent.
The individual plaintiffs, other than Dr. Hitchcock, contend that the
enforcement of the Maryland law is tantamount to a prohibition of
the practice *899 of naturopathy in Maryland by the only
practitioners properly trained to administer "this form of health
services", deprives them of the benefits of naturopathy in Maryland
which are enjoyed by the residents of other States, threatens their
health and happiness, causes them irreparable harm, injury and
damage, and violates their personal and civil rights by preventing
them from selecting the system of the healing art which they desire,
and from deriving "the benefits accruing from the non-medical and
non-surgical system known as naturopathy". But the Maryland
statute does not prevent plaintiffs from applying the tenets of
naturopathy in their treatment of themselves and their families, nor
from receiving any naturopathic treatment which is gratuitously
rendered, nor from receiving naturopathic treatment for a fee
provided the naturopath or naturopathic practitioner meets the

qualifications established by the State of Maryland as necessary for
anyone who undertakes to heal the public for a fee. The Maryland
law does not prohibit the practice of naturopathy. Any person who
has met the qualifications necessary to secure a license to practice
medicine, i. e. to engage in the art or science of healing, may apply
the principles of naturopathy in his practice. Maryland has simply
established certain requirements which must be met by any person
who undertakes to practice medicine, as that term is defined in Art.
43, sec. 138, which includes "not only the application of medicine to
patients, but any practice of the art of healing disease and preserving
the health other than those special branches of the art that were
expressly excepted." Aitchison v. State, supra, 204 Md. at page 538,
105 A.2d at page 499. The Maryland Court cited in support of this
decision Commonwealth v. Zimmerman, 221 Mass. 184, 108 N.E.
893, and Collins v. Texas, 223 U.S. 288, 32 S. Ct. 286, 56 L. Ed.
439, and might have cited others, e. g. State v. Henning, 83 Ohio
App. 445, 78 N.E.2d 588, appeal dismissed 150 Ohio St. 48, 80
N.E.2d 164; Louisiana State Bd. of Medical Examiners v. Fife, 162
La. 681, 111 So. 58, 54 A.L.R. 594, affirmed sub nom Fife v. State
of Louisiana, 274 U.S. 720, 47 S. Ct. 590, 71 L. Ed. 1324. Decisions
to the contrary in other states, cited by plaintiffs herein, cannot affect
our decision, since we are bound by the contruction of the statute
given by the Maryland court.
Requirements similar to the Maryland requirements have been
repeatedly approved, for the reasons stated in the leading case of
Dent v. State of West Virginia, 129 U.S. 114, at page 122, 9 S. Ct.
231, at page 233, 32 L.Ed. 623:
"Few professions require more careful preparation by one who seeks
to enter it than that of medicine. It has to deal with all those subtle
and mysterious influences upon which health and life depend, and
requires not only a knowledge of the properties of vegetable and
mineral substances, but of the human body in all its complicated
parts, and their relation to each other, as well as their influence upon
the mind. The physician must be able to detect readily the presence
of disease, and prescribe appropriate remedies for its removal. Every
one may have occasion to consult him, but comparatively few can
judge of the qualifications of learning and skill which he possesses.
Reliance must be placed upon the assurance given by his license,
issued by an authority competent to judge in that respect, that he
possesses the requisite qualifications. Due consideration, therefore,
for the protection of society may well induce the state to exclude
from practice those who have not such a license, or who are found
upon examination not to be fully qualified."
That some other states permit the licensing of naturopaths as such,
without requiring them to meet the qualifications which Maryland
requires, does not mean that the Maryland act abridges the rights of
anyone, whether a Maryland *900 resident or not, who would like to
be treated in Maryland by a naturopath who has not met the
Maryland requirements. The fact that one or more states may have
lowered the bars which protect the public from ill-trained
practitioners of the healing art does not render other states impotent
to protect their own residents. Regulations of a particular trade or
business essential to the public health and safety are within the
legislative capacity of the state in the exercise of its police power,
and unless such regulations are so unreasonable and extravagant as
to interfere with property and personal rights of citizens
P a g e | 27
unnecessarily and arbitrarily, they are within the power of the state.
Williams v. State of Arkansas, 217 U.S. 79, 30 S. Ct. 493, 54 L. Ed.
673. This principle was applied to the practice of medicine in a case
involving the Maryland Medical Practice Act. Watson v. State of
Maryland, 218 U.S. 173, 178, 30 S. Ct. 644, 54 L. Ed. 987. See also:
Dent v. State of West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 L. Ed.
623; Hawker v. People of State of New York, 170 U.S. 189, 18 S.
Ct. 573, 42 L. Ed. 1002; Graves v. State of Minnesota, 272 U.S. 425,
47 S. Ct. 122, 71 L. Ed. 331; Semler v. Oregon State Board of
Dental Examiners, 294 U.S. 608, 55 S. Ct. 570, 79 L. Ed. 1086;
Garner v. Board of Public Works of City of Los Angeles, 341 U.S.
716, 71 S. Ct. 909, 95 L. Ed. 1317.
Plaintiffs claim that the Maryland Medical Practice Act, as
interpreted and enforced by the Maryland courts and by the
defendants herein, abridges their privileges and immunities, deprives
them of property without due process of law, and denies them the
equal protection of the laws, in violation of Art. 4, Sec. 2, and Art. 6
of the Constitution of the United States, and Sec. 1 of the 14th
Amendment. They seek a declaratory decree and an injunction under
Title 28 U.S.C.A. §§ 1331, 1332, 1337, 1343, 2201 and 2202, and
under the civil rights acts, Title 42 U.S.C.A. §§ 1983-1985. They
contend that the act is an invalid exercise of the police power, and is
arbitrary, unreasonable and discriminatory in that (1) it arbitrarily
requires naturopaths to pass examinations in non-naturopathic
subjects, (2) prohibits the practice of naturopathy without showing it
to be detrimental to the public or inherently harmful, and (3) unfairly
discriminates against naturopaths by conferring exclusive
jurisdiction over them on their medical competitors.
They also claim that the Maryland law discriminates against
naturopaths in that it contains special provisions for the licensing of
osteopaths, physical therapists, chiropractors, optometrists and
chiropodists, and does not contain similar provisions for naturopaths.
These and similar contentions have been before the courts on many
occasions. In Watson v. State of Maryland, 218 U.S. 173, at page
176, 30 S. Ct. 644, at page 646, 54 L. Ed. 987, involving the very
statute at issue here, the Supreme Court said:
"It is too well settled to require discussion at this day that the police
power of the states extends to the regulation of certain trades and
callings, particularly those which closely concern the public health.
There is perhaps no profession more properly open to such
regulation than that which embraces the practitioners of medicine.
Dealing, as its followers do, with the lives and health of the people,
and requiring for its successful practice general education and
technical skill, as well as good character, it is obviously one of those
vocations where the power of the state may be exerted to see that
only properly qualified persons shall undertake its responsible and
difficult duties."
The plaintiff in that case argued that the Maryland statute denied him
the equal protection of the laws, in making unreasonable and
arbitrary distinctions in the classification of physicians, and in
making unreasonable omissions of certain classes from the
requirements of the act. The Supreme Court rejected this contention,
applying the rule that *901 "the classification of the subjects of such

legislation, so long as such classification has a reasonable basis, and
is not merely arbitrary selection without real difference between the
subjects included and those omitted from the law, does not deny to
the citizen the equal protection of the laws." 218 U.S. at page 178,
30 S.Ct. at page 646.
Discussing the exceptions in what is now Art. 43, Sec. 138 of the
Maryland Code, the Supreme Court said:
"* * * We shall not take occasion to consider each of these
exceptions. A reading of them makes it manifest that they are not
without reason. Before a law of this kind can be declared violative of
the 14th Amendment as an unreasonable classification of the
subjects of such legislation because of the omission of certain
classes, the court must be able to say that there is `no fair reason for
the law that would not require with equal force its extension to
others whom it leaves untouched.' Such was the expression of this
court in Missouri, Kansas & Texas R. Co. [of Texas] v. May, 194
U.S. [267] 269, 24 S. Ct. 638, 48 L.Ed. [971] 972, quoted with
approval in Williams v. [State of] Arkansas, supra." 218 U.S. at page
179, 30 S.Ct. at page 647.
Other cases have applied the same principles to complaints by
chiropractors and naturopaths, who complained because special
provisions were not made for them. Aitchison v. State, 204 Md. 538,
105 A.2d 495, certiorari denied 348 U.S. 880, 75 S. Ct. 116, 99 L.
Ed. 692; Louisiana State Bd. of Medical Examiners v. Fife, 162 La.
681, 111 So. 58, 54 A.L.R. 594, affirmed sub nom Fife v. State of
Louisiana, 274 U.S. 720, 47 S. Ct. 590, 71 L. Ed. 1324, and cases
cited therein.
In Louisiana State Board v. Fife, supra, defendant chiropractors
contended that they were deprived of liberty and property without
due process of law because they were required to stand an
examination in surgery and materia medica. They complained that
those who practice chiropractic have no need for those subjects,
which bear no relation to that system. The Louisiana court observed
that no person has a natural or absolute right to practice medicine or
surgery, but that it is a right granted upon conditions and that a state,
under its police power, may regulate within reasonable bounds, for
the protection of the public health, the practice of either, by defining
the qualifications which one must possess before being admitted to
practice. The court recognized that the legislature, in defining the
qualifications required, cannot prescribe, as a condition of the right
to practice, knowledge of a subject which bears no relation to the
practice of medicine; but the court held that this does not mean that
the legislature must make requirements such as to provide for every
school of medicine that may exist, by requiring of those belonging to
each particular school a knowledge only of those subjects which the
theory of healing advocated and put in operation by each school
requires. Were it otherwise, the legislature would be greatly
hampered in the exercise of its power to protect the general health
and the public from imposition and fraud. This is good law and good
sense in Maryland as well as Louisiana.
Another contention of defendants in the Louisiana case was that
since osteopaths, dentists, chiropodists and trained nurses were
exempted from the operation of the general law and were not
P a g e | 28
required to take a full course in materia medica, surgery, etc., the
general law was unconstitutional because it discriminated against
chiropractors by not granting them similar privileges. The Louisiana
court held, however, that since the legislature is not called upon to
recognize every school of medicine and to deal with it as such,
defendants could not complain, on the ground of being unjustly
discriminated against, that the legislature had not deemed it proper to
recognize their school of medicine and make special provision for
those desiring to practice that system by prescribing a *902 course of
study in accord with the theories which it holds for restoring health.
The court cited, inter alia, Johnson v. State, Tex.Civ.App., 267 S.W.
1057, and State v. Morrison, 98 W.Va. 289, 127 S.E. 75.
In Aitchison v. State, supra, the Maryland court said:
"It is beyond question that the State has the power to regulate any of
the special systems or branches of the medical art independent of the
general practice of medicine. The regulations adopted by the State,
in the exercise of the power to regulate the treatment of disease, need
not be uniform with respect to all methods and systems of practice,
but distinctions may be made and schools or methods of practice
may be exempted from the regulations or subjected to peculiar
regulations as long as the discrimination is not arbitrary or
unreasonable." 204 Md. at page 549, 105 A.2d at page 500, citing
Crane v. Johnson, 242 U.S. 339, 37 S. Ct. 176, 61 L. Ed. 348, and a
number of State court cases.
The special provisions of Art. 43 of the Maryland Code for the
practice of optometry, osteopathy, chiropody, chiropractic and
physical therapy limit in every case the type of treatment which the
practitioner is authorized to administer; with respect to optometry
and chiropody, the ills and diseased conditions which may be treated
are strictly limited; and physical therapists may treat under their
license only patients diagnosed and referred by licensed medical
doctors. The Maryland legislature had the right to provide special
regulations for these groups and to refuse to provide similar special
regulations for naturopaths, who undertake to treat any and all
diseases in a wide variety of fashions.
Plaintiffs contend that the Act is void because of vagueness in that it
does not stipulate which of the two State Boards of Medical
Examiners "shall have jurisdiction over this system of healing". The
Act provides for two boards, one appointed by the Medical and
Chirurgical Faculty and the other appointed by the Homeopathic
Society. Sec. 118. A person who wishes to obtain a license to
practice medicine in Maryland may apply to either board. The fact
that naturopaths, such as the plaintiff Hitchcock, along with all
others who desire to practice medicine in Maryland, are given the
choice of applying to either one of two boards does not deprive them
of any rights and privileges they would have if the statute designated
the particular board to which they must apply, or if the statute
provided for a single board.
Plaintiffs contend that the Maryland act, as interpreted by the
Maryland court, violates the anti-trust laws, Title 15 U.S.C.A. §§ 1-
27, 44, in that it grants the exclusive privilege of practicing medicine
and surgery to persons licensed by the State Board of Medical
Examiners, and thus establishes medicine as the preferred State
 P a g e | 29

system of healing, and curbs the progress of the art of maintaining
health in the fields not specially regulated by the statute. The
complete answer to this contention is that the anti-trust laws deal
with individual activity and not with State activity, Parker v. Brown,
317 U.S. 341, 350, 63 S. Ct. 307, 87 L. Ed. 315; whereas all of the
matters charged in the complaint as violative of the anti-trust laws
are regulations prescribed by the Maryland legislature.
The body of the Act reads as follows:
"Be it enacted by the General Assembly of the State of South
Carolina:
"Section 1. Sections 56-901 through 56-919, Code of Laws of South
Carolina, 1952, are hereby repealed.

The amended complaint alleges no facts entitling the plaintiffs to

any relief in this case, and must be dismissed, with cost
DR. M.S. DANTZLER, INDIVIDUALLY AND AS
PRESIDENT OF THE SOUTH CAROLINA NATUROPATHIC at the time of his graduation by the state in which it was located, and
PHYSICIANS ASSOCIATION, ET AL., PLAINTIFFS,
V.
T.C. CALLISON, ATTORNEY GENERAL AT SOUTH
CAROLINA, DEFENDANT.17200
Supreme Court of South Carolina.August 20, 1956.
*76 *77 *78 *79 Messrs. Price & Poag, of Greenville, for
Plaintiffs.Messrs. T.C. Callison, Attorney General, and James S.
Verner, Assistant Attorney General, of Columbia, for Defendant.*80
Messrs. Price & Poag, of Greenville, for Plaintiffs, in Reply.
COMPLAINTPlaintiffs complaining of the defendant allege:
"Section 2. It shall be unlawful for any person whether heretofore
licensed or not under the laws of this or any other state to practice
naturopathy in this State; Provided, however, that any person now
authorized to practice naturopathy in South Carolina who is a
graduate of an accredited college for pre-medical training and who
has, in addition thereto, graduated from a medical college recognized
who has heretofore for a period in excess of five years engaged in
the practice of medicine in the State of South Carolina under the
supervision of a licensed medical doctor by special request or by
special permission of the State Board of Medical Examiners, or
agents thereof, shall be examined by the State Board of Medical
Examiners on the same basis as other applicants to the Board are
examined, and upon the making of a passing grade on this
examination, shall be licensed to practice medicine in this State.
"Section 3. Any person violating the provisions of Section 2 of this
act shall, upon conviction, be guilty of a misdemeanor and be fined
not exceeding five hundred dollars *82 or be imprisoned for a period
of not exceeding one year or both in the discretion of the court.

1. Plaintiffs are citizens of the United States of America and the
State of South Carolina and are officers and members of the South
Carolian Naturopathic Association, Inc., a Corporation created under
the laws of the State of South Carolina. This action is brought by
plaintiffs in their official capacity, and also individually for the
benefit of themselves and all members of the Association and all
duly licensees who are practicing in the State under a duly issued
and lawful license. Membership in the Association is confined solely
and exclusively to regularly licensed Naturopathic Practitioners in
South Carolina. Doctors M.S. Dantzler and J.B. Branyon and W.T.
Bidwell are the Board of Examiners. All of the plaintiffs as
individuals have been naturopathic physicians under the law of
South Carolina since 1937. All of the licensed Naturopathic
Physicians in south Carolina, except the last ten licensees, were
admitted to practice in compliance with the law prior to June, 1946.
The last ten practitioners were admitted under the amended
Naturopathy Act of 1949, which greatly increased the education and
professional qualification of applicants.
2. The defendant, Honorable T.C. Callison, is Attorney General of
South Carolina, and is made a party defendant in *81 pursuance of
Section 10-2008 of the South Carolina Code of 1952, as this is an
action seeking a declaratory judgment as to the rights of the
plaintiffs and to declare unconstitutional the Act of the General
Assembly of South Carolina as follows:
"An Act To Repeal Sections 56-901 Through 56-919, Code Of Laws
Of South Carolina, 1952, Relating To The Practice of Naturopathy;
To Make It Unlawful For Certain Persons To Practice Naturopathy
In This State; And To Provide Penalties For Violating The
Provisions Of This Act."
"Section 4. All acts or parts of acts inconsistent herewith are hereby
repealed.
"Section 5. This act shall take effect upon its approval by the
Governor. [In the Senate House the 23rd day of February In the Year
of Our Lord One Thousand Nine Hundred and Fifty-six.]
3. Plaintiffs allege that the act in question is in violation of their
rights as citizens of the United States of America and of South
Carolina as provided in the Fifth and Fourteenth Amendments of the
United States Constitution in that it deprives the plaintiffs of their
property and property rights without due process of law, and denies
them of the equal protection of the laws and is arbitrary and
discriminatory in that it singles out naturopathy, one of a number of
special practitioners in the art of healing and abolishes their
profession only.
4. Plaintiffs further allege that the Act in question violiates the
following provisions of the Constitution of the State of South
Carolina: Article 1, Section 5; Article 1, Section 17, and Section 17,
Article 3 in that said Act deprives plaintiffs of their property and
property rights without due process of law and denies them of the
equal protection of the laws and is arbitrary and discriminatory in
that it singles out naturopathy, one of a number of special
practitioners in the art of healing and abolishes their profession only.
With reference to Section 17, Article 3 of the Constitution of South
Carolina of 1895 plaintiffs allege that the Act violates this Section in
that it relates to more than one subject which is not expressed in the
title. The proviso in the Act deals with a specific provision for the
licensing of medical doctors, which in no way has any connection

with the title of the Act and such proviso discriminates within the
Naturopathic Practitioners.
5. Plaintiffs further allege that all of the Naturopathic Physicians in
South Caarolina entered the practice as a *83 means of livelihood for
themselves and to support their families. They have invested much
time and great sums of money, more or less, in perfecting
themselves for the practice of their profession. Section 56-901 of the
South Carolina Code of 1952 defines Naturopathy as follows:
"`Naturopathy' is hereby defined to mean the use and practice of
phychological, mechanical and material health sciences to aid in
purifying, cleaning and normalizing human tissues for preservation
or restoration of health according to the fundamental principles of
anatomy, physiology and applied psychology, as may be required.
Naturopathic practice employs, among other agencies, heat, light,
water, electricity, psychology, diet, massage and other manipulative
methods."
Naturopathy has been recognized by the Legislative Law of South
Carolina since the Medical Practice Act of March 10, 1920, and to
do the things permitted under the Act of necessity requires the use of
equipment for the employment of such agencies as heat, light, water,
electricity, psychology, diet, massage and other manipulative
methods and all of the plaintiffs and those whom they represent have
spent large amounts of money, more or less, in the purchase of
necessary equipment, which they use in the practice of their
profession.
6. Plaintiffs recognize the right of the Legislature to regulate their
profession by the passage of any regulatory methods within the
constitutional limits. Plaintiffs allege, however, that the above
entitled Act destroys their profession and means of livelihood and
would make acts which are perfectly lawful to become criminal acts
subject to punishment by the court upon conviction. The Act in
question is prohibitory and not regulatory in a field of Medical
practice and/or art of healing that could be and can be properly
regulated.
7. That plaintiffs are entitled to have the Supreme Court declare their
rights and to pass upon the constitutionality of the above statute and
to further declare the same null and *84 void because of its violation
of plaintiffs' constitutional rights.
Wherefore, plaintiffs pray for relief as follows:
(1) A judgment of this Court declaring the aforesaid Act to be
unconstitutional and therefore null and void;
(2) For a judgment by the Court declaring the rights of the plaintiffs
and to order and command the Attorney General and all law
enforcement officers in the State of South Carolina not to in any
manner interfere with the plaintiffs in the practice of their lawful
profession;
(3) For such other and further relief as the plaintiffs may be entitled
to under the circumstances of this case.
ANSWER
P a g e | 30
The Defendant, T.C. Callison, Attorney General of the State of
South Carolina, answering the Complaint herein, respectfully shows
to the Court:
1. That he denies all allegations of the Complaint not hereinafter
admitted, qualified or explained.
2. That, upon information and belief, he admits the allegations of
Paragraph 1 of the Complaint.
3. That he admits the allegations of Paragraph 2 of the Complaint.
4. That he denies the allegations of Paragraphs 3 and 4 of the
Complaint.
5. Answering Paragraph 5 of the Complaint upon information and
belief, this [BAD TEXT] admits that the plaintiffs are claiming to be
[BAD TEXT] physicians practicing in South Carolina as a means of
[BAD TEXT] and as a means of support to their families. The
defendant admits that Sec. 56-901 of the 1952 Code of the State as
amended, reads as set out and that Naturopathy has been recognized
in various forms in the State since 1920; further, upon information
and belief, this defendant admits the use of such equipment, as is
referred to in Paragraph 5 of the Complaint, is employed by
Naturopaths but has no knowledge of the sums invested therein.
*85 6. This defendant admits so much of Paragraph 6 of the
Complaint as alleges that the Act in question destroys the practice of
Naturopathy as a separate cult, branch or profession of the healing
art, and admits that it makes unlawful certain acts by plaintiffs,
otherwise lawful, but lawful only to those qualified as general
medical prectitioners, or those qualified in specialized branches of
the healing arts under the requirements of our laws, but the
defendant alleges that the provisions of the said Act, the purpose of
which is to protect the public's health and welfare, are within the
police power of the State, are a valid exercise of said police power,
and are neither arbitrary nor discriminatory.
7. Further answering the Complaint, this defendant alleges that the
State has a vital concern in the health of everyone within its borders,
the practice of medicine and healing being one of the fields
peculiarly subject to control and regulation under the police powers
of this and every other government. That the practice of medicine
and of the healing arts can be lawfully prohibited by the State except
upon the conditions imposed by it, which said conditions are subject
to change from time to time to keep pace with the advance of
educational and scientific progress, the plaintiffs and no other
persons having any fundamental or property rights to engage in any
form of the healing arts free from regulation, such as is true of those
employments and trades not peculiarly within the concern of the
police power.
8. That the plaintiffs have no contractual or property right granted to
them by any pre-existing laws of this State allowing the practice of
Naturopathy or granting licenses to them which are not subject to
modification or denial in the proper exercise of the police power of
the State in its promotion of the public health, plaintiffs' licenses
creating in them no permanent or vested interest, such licenses not
being within the inhibition against impairment of contract, and being
revocable under the police power at the discretion of the sovereignty.

9. That the mere fact that the plaintiffs may suffer pecuniary injury
because of the proper exercise of the police *86 power of the State in
forbidding the practice of Naturopathy in South Carolina, does not
render the Act unconstitutional, because all private property is held
and all callings are exercised in this State subject to the proper
exercise of the police power of the State.
10. That the prohibition of the practice of Naturopathy as a separate
branch of the healing art is a proper application of the police power
of the State to a particular class practicing arts peculiar to
themselves, there being no means of any practical regulation due to
the close and confidential nature of the relationship between the
Naturopath and patient with the consequent impossibility of
supervising and confining such practice within lawful bounds.
11. That the Act in question does not prevent plaintiffs from
practicing any lawful branch or type of healing formerly open to
them as Naturopaths, as they may still, upon qualifying as medical
doctors under the laws of this State, practice all lawful forms of
healing and treatment, the Act making special provisions for those
who have had proper medical training to take the examinations
provided for medical doctors, with other laws leaving open the
taking of these examinations by those who qualify themselves
therefor hereafter.
12. That the Act attacked by the plaintiffs applies equally to all
persons now practicing Naturopathy and that said classification is
reasonable, operating alike on all within its provisions. That the Act
is not discriminatory and does not deny the equal protection of the
law to those within the class upon which it operates, there being no
duty upon the State to recognize all peculiar schools and groups of
those seeking to practice healing arts.
13. That the practice of medicine is not a Federal privilege or
immunity within the purview of the Fourteenth Amendment to the
Constitution of the United States, and is peculiarly within the control the Act is in violation of Article 1, § 5; Article 1, § 17; and Article 3,
of the State and not of the United States.
14. That the title of the Act clearly shows its purpose and discloses
to anyone interested that it is prohibiting the practice *87 of
Naturopathy in this State, relating to that one subject or matters fully title. It is further contended that the plaintiffs entered the practice of
germane thereto, in accordance with the provisions of Article III,
Section 17 of the Constitution of this State.
Wherefore, this defendant prays that the Honorable Court do adjudge
and decree that the Act in question is constitutional and valid in all
respects and binding upon the plaintiffs and all others seeking to
practice any form of the so-called Naturopathic Profession.
August 20, 1956.
T.B. GRENEKER, Acting Associate Justice.
This action was brought in the original jurisdiction of this Court, and contends that the purpose of the Act is to protect the public health
as the pleadings will be printed, we only state very briefly the
allegations thereof.
The plaintiffs allege that the individual plaintiffs are all licensed
naturopathic physicians and were admitted to practice in compliance
with the law prior to June, 1946, and that the last ten practitioners
P a g e | 31
admitted in the State were admitted under the amended act of 1949.
During the 1956 Session of the General Assembly of South Carolina,
the following act was adopted:
"Section 1. Sections 56-901 through 56-919, Code of Laws of South
Carolina, 1952, are hereby repealed.
"Section 2. It shall be unlawful for any person whether heretofore
licensed or not under the laws of this or any other state to practice
naturopathy in this State; Provided, however, that any person now
authorized to practice naturopathy in South Carolina who is a
graduate of an accredited college for pre-medical training and who
has, in addition thereto, graduated from a medical college recognized
at the time of his graduation by the state in which it was located, and
who has heretofore for a period in excess of five years engaged in
the practice of medicine in the State of South Carolina under the
supervision of a licensed medical doctor by special request or by
special permission of the State Board of Medical Examiners, or
agents thereof, shall be examined by the *88 State Board of Medical
Examiners on the same basis as other applicants to the Board are
examined, and upon the making of a passing grade on this
examination, shall be licensed to practice medicine in this State." 49
St. at Large, p. 1624.
Section 3 provides for the punishment of the violation of the Act.
Section 4 provides that all Act or parts of Acts inconsistent therewith
were repealed.
The plaintiffs seek a declaratory judgment as to their rights and
contend that the Act is unconstitutional in that it violates the Fifth
and Fourteenth Amendments of the Constitution of the United States
by depriving them of their property and property rights without due
process of law and denies them the equal protection of the law; is
arbitrary and discriminatory in that it singles out naturopathy, one of
the arts of healing, and abolishes its practice. They further allege that
§ 17, of the Constitution of South Carolina in that it deprives them of
their property and property rights without due process of law; denies
them equal protection; is arbitrary and discriminatory; and that the
Act relates to more than one subject which is not expressed in the
naturopathy as a means of a livelihood; they have invested much
time and great sums of money; and that naturopathy has been
recognized by the General Assembly of South Carolina since 1920;
and it is finally contended that the Act is prohibitory and asks that it
be declared null and void.
The answer admits that the individual plaintiffs have been practicing
naturopathy since their admission and admits the passage of the Act,
however, it denies that the Act is in violation of either the State or
Federal Constitutions. It is also admitted that by the Act the practice
of naturopathy, as a separate cult, is prohibited; and that it makes
unlawful certain acts by the plaintiffs, otherwise lawful, but lawful
only to those coming under the provisions of the law. Defendant *89
and welfare and is a valid exercise of the police power of the State,
and denies that it is either arbitrary or discriminatory.
We think it may be fairly stated that the questions involved are:

(A) Is the title of the act defective so as to render it unconstitutional
in view of Section 17 of Article 3 of the South Carolina
Constitution?
(B) Is the Act violative of either the Federal or State Constitutions?
(C) May the State, under the police power, so regulate?
The title of the Act in question is as follows:
"An Act To Repeal Sections 56-901 Through 56-919, Code Of Laws
Of South Carolina, 1952, Relating To The Practice Of Naturopathy;
To Make It Unlawful For Certain Persons To Practice Naturopathy
In This State; And To Provide Penalties For Violating The
Provisions Of This Act."
Section 17, Article 3 of the South Carolina Constitution reads as
follows:
"Every Act or Resolution having the force of law shall relate to but
one subject, and that shall be expressed in the title."
The purpose of this section is to prevent deception of the public and
to prevent insertion of matters not germane to the general subject.
Furman v. Willimon, 106 S.C. 159, 90 S.E. 700; Miles Laboratories
v. Seignious, D.C., 30 F. Supp. 549.
This section is to be construed with great liberality. Gasque v. Nates,
191 S.C. 271, 2 S.E. (2d) 36.
This requirement should not be enforced in any narrow or technical
spirit. It was adopted to prevent certain abuses and it should be
reasonably and liberally construed on the one hand so as to guard
against these abuses, and on the other hand so as not to embarrass or
obstruct *90 needed legislation. Alley v. Daniel, 153 S.C. 217, 150
S.E. 691.
There is no doubt in the mind of this Court as to the validity of the
title of the Act, but even if there were some doubt, a statute should
be upheld if possible, doubtful cases being resolved in its favor.
Alley v. Daniel, supra.
The plaintiffs certainly knew the purpose of the Act, for when the
bill was before the General Assembly, according to their brief, they
say: "We appeared before the House Judiciary Committee and the
Senate Medical Committee and filed a printed brief along the lines
followed herein."
Plaintiffs rely upon Ex parte Wachovia Bank & Trust Co. (Nettles v.
People's Bank of Darlington), 160 S.C. 104, 158 S.E. 214, however,
we think this authority affords the plaintiffs no comfort as a study of
that decision will reveal the difference between that and the instant
case.
The purpose of this provision is to prevent "log-rolling legislation";
to prevent surprise or fraud upon the legislature by means of
provisions in bills of which the title gave no indication, and which
may be, therefore, overlooked and unintentionally adopted; and to
apprise the people of the subject of the legislation in order that they
P a g e | 32
may have opportunity of being heard, if they so desire. McCollum v.
Snipes, 213 S.C. 254, 49 S.E. (2d) 12, and many other authorities
therein cited.
What subject, if we may ask, is embraced in the Act which is not
referred to in the title or not germane to the purposes of the Act? The
plaintiffs direct our attention to none, and none does an examination
thereof reveal. It is indeed the duty of this Court to sustain the
constitutionality of a sacred act of the legislature unless the contrary
most clearly appears from the language of the statute. This Court
still adheres to the doctrine that it was not established by the people
to assume the duties of legislation, and neither will it declare an act
of the legislature unconstitutional *91 unless the language of the Act
itself plainly and unmistakably reveals its conflict with the
Constitution.
The authorities seem to abundantly differ with plaintiffs' contention,
and we so hold.
The plaintiffs contend that the main question for consideration is:
"Does the Act deprive the plaintiffs of their property rights without
due process of law, and does the Act deny to them equal protection
of the law?"
"Naturopathy is one of a number of fields in the art of healing" * * *
and has been recognized "as accepted processes of preventive and
curative medicine," and every person so practicing, after being duly
licensed, "stands for all purposes in the position of a physician in the
orthodox fields of medicine * * *." Williams v. Capital Life &
Health Insurance Co., 209 S.C. 512, 41 S.E. (2d) 208, 210.
From the record, as well as from an independent examination, we
conclude that Naturopathy is of comparatively recent recognition, so
far as South Carolina is concerned. The area of its field of practice
seems to have increased much more rapidly than the required
educational qualifications of those who profess to practice. Indeed, it
is rather difficult for the ordinary layman to understand how one
may be permitted to practice "the use and practice of physotherapy,
minor surgery, obstetrics, gynecology, autotherapy and biologicals,"
or to "purifying, cleansing and normalizing human tissues for
preservation or restoration of health, according to the fundamental
principles of anatomy and physiology," without first satisfactorily
giving evidence of his unquestioned training and qualifications. Who
is to set the standard for such persons? Shall it be the afflicted in
mind and body, who plead day and night for relief, or shall it be
those who are suddenly stricken in and about their hearts, lungs,
stomachs or blood stream, when even the most perfect training,
experience and care may not be enough? or should it be the State?
The State may not say to its citizens what they must do or to whom
they must go in time of mental and physical distress, but we think
the State has the *92 right to say and direct what the qualifications
shall be of those persons to whom its citizens turn in their hour of
need.
Regardless of anything which may appear to a layman's mind as to
what should be the requirements of one who is to diagnose and find
out what is the cause and treatment of his illness, it is not a judicial
question. It is one of legislative authority. From the record, we find
that before the Bill became an Act, the General Assembly provided
for hearings before two of its standing committees, and we must
 P a g e | 33

assume that the Act is based upon bona fide, scientific grounds. State professional conduct extends beyond initial licensing. Without
v. Barnes, 119 S.C. 213, 112 S.E. 62. continuing supervision, initial examinations afford little protection."

There is no reasonable doubt that the rights of those who have been In Williamson v. Lee Optical of Okl., 348 U.S. 483, 75 S. Ct. 461, 99
duly licensed to practice medicine or other professions are property L. Ed. 563, there was an attempt to strike down a statute which
rights of value which are entitled to protection. Ezell v. Ritholz, 188 prohibited opticians from fitting or duplicating eye glasses without a
S.C. 39, 198 S.E. 419; and that the right of a person to practice his prescription. The contention was made that the Act violated the due
profession for which he has prepared himself is property of the very process clause of the Constitution. The Supreme Court of the nation
highest quality. Cavassa v. Off, 206 Cal. 307, 274 P. 523. However, denied this contention, holding that in matters of public health, the
it may be observed that no person has a natural or absolute right to power of the legislature is exceedingly broad and it was not for the
practice medicine, surgery, naturopathy or any of the various healing courts but for the legislature to determine the need for such
arts. It is a right granted upon condition. Allopathic State Board of regulation as a protection of the public.
Medical Examiners v. Fowler, 50 La. Ann. 1358, 24 So. 809;
Louisiana State Board of Medical Examiners v. Fife, 162 La. 681, We do not know what was the legislative mind. For good and
111 So. 58, 54 A.L.R. 594, affirmed 274 U.S. 720, 47 S. Ct. 590, 71 sufficient reasons, it may have concluded that "a little learning is a
L. Ed. 1324. dangerous thing" and that those who would undertake to treat or
manipulate the human body must "drink deep or touch not." We of
A state may not prohibit the practice of medicine or surgery, yet it is course must assume that it knew of the decisions of this Court
very generally held that a state, under its police power, may regulate, involving Naturopathy in Dantzler v. Callison, 227 S.C. 317, 88 S.E.
within reasonable bounds, for the protection of the public health the (2d) 64; Jacoby v. South Carolina State Board, 219 S.C. 66, 64, S.E.
practice of either by defining the qualifications which one must (2d) 138; and Williams v. Capital Life, supra, However, the right to
possess before being permitted to practice the same. Hawker v. practice medicine is a qualified one and is held in subordination to
People of State of New York, 170 U.S. 189, 18 S. Ct. 573, 42 L. Ed. the duty of the State under the police power to protect the public
1002; Dent v. State of West Virginia, 129 U.S. 114, 9 S. Ct. 231, 32 health. Lawrence v. Board of Registration, 239 Mass. 424, 132 N.E.
L. Ed. 623; and of course, it naturally follows that a legislature in 174. The police power can not be stipulated or bartered away. Gray
defining the required qualifications *93 cannot prescribe, as a v. State of Connecticut, 159 U.S. 74, 15 S. Ct. 985, 40 L. Ed. 80.
condition to the right to practice, knowledge which bears no relation
to the profession in question. However, this in no way means that the No person can acquire a vested right to continue, when once
legislature, in enforcing its required qualifications which one, in its licensed, in a business, trade or profession which is subject to
judgment, should possess to practice medicine, must make legislative control and regulation under the police power, as
requirements for every school of medicine or of the healing arts regulations prescribed for such may be changed or modified by the
which may exist, by requiring of those belonging to each particular legislature, in the public interest, without subjecting the action to the
school a knowledge only of those subjects which the theory of charge of interfering *95 with contract or vested rights. State v.
healing, advocated by each school, requires, as was said by the Hovorka, 100 Minn. 249, 110 N.W. 870, 871, 8 L.R.A., N.S., 1272,
Supreme Court of Louisiana in Medical Examiners v. Fowler, supra. 1273.
In Allopathic State Board of Louisiana v. Fowler, supra, the court
said, "We know of no constitutional right given to particular persons,
The granting of a license to practice certain professions is the
who, entertaining peculiar theories of medicine, group themselves
method taken by the State, in the exercise of its police power, to
together, and call themselves a special school of medicine under a
regulate and restrict the activity of the licensee. He takes the same,
selected name, to be recognized as and delt with as such." 50 La. subject to the right of the State, at any time, for the public good to
Ann. 1374, 24 So. 816.
make further restrictions and regulations. It is a matter of common
knowledge that derivatives of opium or similar drugs could be
Section 56-901, now repealed, sets forth the field of practice for purchased in former years at even a country store. The State has now
Naturopaths. Section 56-1354 defines the Practice of Medicine. prohibited this and a druggist may not sell morphine or drugs of that
There is nothing in the existing statutes which will prevent the nature without a prescription from a duly licensed authority. If the
practice of any subject covered in Section 56-901, now repealed, by restrictions are reasonable, they would be upheld even though they
any person who has been or may be admitted to practice in actually prohibit some people from further engaging in such
conformity with existing legal provisions. By the adoption of the Act occupations or professions under a license previously granted. See
complained of, the legislature in no way cut down the field of note 8 L.R.A., N.S., 1273.
practice but it did raise the standards of those who would operate in
such fields. It was not the profession but it was those who practice It is universally held that it is competent for the legislature to
the profession that the General Assembly was dealing with. This Act
prescribe qualifications for those who are to practice medicine and
should be treated and construed as imposing additional qualifications
thus to assure that they shall possess the requisite character and
upon persons already in the profession. It is an effort on the part of
learning, Dent v. State of West Virginia, 129 U.S. 114, 9 S. Ct. 231,
the legislature to regulate one phase of the healing arts and should be
32 L. Ed. 623, and the State may change the qualifications from time
construed in pari materia with other statutes relating to the subject. to time, making them more rigid. Dent v. State of West Virginia,
It is not for us to reason why or what prompted the legislature to supra. It lies within the police power to require educational
adopt the statute. It was not without the benefit of the actions of its
qualification of those already engaged in the practice of any
committees which initially considered the matter. As was said in
profession. Hawker v. People of State of New York, 170 U.S. 189, 18
Barsky v. Board of Regents of University *94 of State of New York,
S. Ct. 573, 42 L. Ed. 1002.
347 U.S. 442, 74 S. Ct. 650, 655, 98 L. Ed. 829, "It is equally clear
that a state's legitimate concern for maintaining high standards of

In Commonwealth v. Zimmerman, 221 Mass. 184, 108 N.E. 893,
895, and in State v. Smith, 233 Mo. 242, 135 S.W. 465, 33 L.R.A.,
N.S., 179, we find that statutes somewhat similar to the instant
statute were under attack along the same lines which the plaintiffs
herein argue. It was there held: "The protection of the public from
those who undertake to treat or manipulate the human body without
that degree of education, training and skill which the *96 Legislature
has prescribed as necessary to the general safety of the people is
within the police power of the state. * * * The protection of the
public health is an object of such vital importance to the welfare of
the state that any rational means to that end must be upheld."
Indeed we may assume that the Legislature, in its wisdom, may have
concluded that "the limited practitioner is likely to do a great deal of
harm, not only because he is not thoroughly educated as a physician,
but as he is only licensed to use a certain system of treatment, he is
apt to use it in cases to which it is not adapted."
In Williams v. Capital Life & Health Ins. Co., supra, Mr. Chief
Justice Baker, now retired, speaking for this Court, said: "While this
is not in any sense controlling, we may advert to the fact that it is a
matter of common knowledge that the people who purchase sick
benefit policies of the industrial type constitute a large proportion of
the patrons of practitioners of such branches of healing or medicine
as naturopathy, and that it is generally believed by such people that
they are dealing with licensed practitioners of medicine." May we
ask, after all, why should not persons who hold themselves out to be
doctors, regardless of what they may otherwise profess, be required
to have the training of a medical doctor?
In Davis v. Beeler, Tenn., 207 S.W. (2d) 343, 347, in which an
appeal was dismissed by the U.S. Supreme Court, 333 U.S. 859, 68
S. Ct. 745, 92 L. Ed. 1138, a statute strikingly similar to that here
was contested on practically the same grounds as in the instant
action. There the General Assembly adopted a statute which first
repealed the act authorizing the licensing of naturopaths, and second,
prohibited the practice of naturopathy. It appears that there were
some two hundred licensed naturopaths in Tennessee at the time.
Practically every question raised in the action before us was
presented to the Tennessee Court which held adversely to the
contentions of the plaintiffs there and here, the Court saying:
"Evidently, the Legislature thought there *97 was too much border-
lining in the practice of naturopathy and determined to stamp out the
evil that was not in the science but in the practicing of it, to the
definite injury of credulous sufferers."
Where the primary duty and responsibility for determining a
question rests with the Legislature, this Court will not substitute its
judgment for that of the legislative authority.
It is our opinion that the enactment in question is a valid exercise of
the police power of the State and that no unwarranted discrimination
appears in the Act, and
It is so ordered.
G.R. No. 163879 July 30, 2014
DR. ANTONIO P. CABUGAO, Petitioner,
vs.
P a g e | 34
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO
M. PALMA and ROSARIO F. PALMA, Respondents.G.R. No.
165805
DR. CLENIO YNZON, Petitioner, vs.
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO
M. PALMA AND ROSARIO F. PALMA, Respondents.
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 todo 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 o’clock that sameafternoon, 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 familymedicine 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 returnedto 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 resident physicians who are just on residency training and in doing
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 JRwere ordered. Thereafter, JR was
placed on observation for twenty-four (24) hours.
In the morning of June 16, 2000, JR complained again of abdominal shown by the aggressive medication of antibiotics, the condition of
pain and his parents noticeda swelling in his scrotum. In the
afternoon of the same day, JR vomitted 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 gaveorders via
telephone.9 Accused continued medications to alleviate JR's
abdominal spasms and diarrhea. By midnight, JR again vomitted
twice, had loose bowel movements and was unable to sleep. The
following morning, June 17,2000, JR's condition worsened, he had a Throughout the course of the hospitalization and treatment of JR, the
running fever of 38°C. 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 42°C, 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 conditionscontributing 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.
P a g e | 35
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
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
the patient is serious which necessitated personal, not delegated,
attention of attending physicians, namely JR and the accused in this
case.
xxxx
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 outwhat 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 fastand was so massive that within a period of
only two and a half (2 ½) 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 suchefficient 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 emergencyand 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 testand only briefly visited JR once during regular rounds
and gave medication orders by telephone – constitutes gross
negligenceleading to the continued deterioration of the patient, his
infection having spread in sofast a pace that he died within just two
and a half (2 ½) days’ stay inthe 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 thatthe
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
P a g e | 36
Thus, these appeals brought beforethis 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;
 P a g e | 37

VIII Q And you should have done surgery with this particular case?"

WHETHER THE CONVICTION OF PETITIONER DR. YNZON A Yes, sir.16

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
COURT:
Q You stated a while ago doctor thatyou are going to [do] surgery to
the patient, why doctor, if you are notgoing to do surgery, what will
happen?

WHETHER THE FAILURE TO CONDUCT THE SPECIFIC A If this would be appendicitis, the usual progress would be that it
SURGICAL OPERATION KNOWN AS APPENDECTOMY would be ruptured and generalized peritonitis and eventually
CONSTITUTED CRIMINAL NEGLIGENCE. septicemia, sir.

In a nutshell, the petition brought before this Court raises the issue of Q What do you mean by that doctor?
whether or not petitioners' conviction of the crime of reckless
imprudence resulting in homicide, arising from analleged medical A That means that infection would spread throughout the body, sir.
malpractice, is supported by the evidence on record.
Q If unchecked doctor, what will happen?
Worth noting is that the assigned errors are actually factual in nature,
which as a general rule, findings of factof the trial court and the A It will result to death.17
Court of Appeals are binding and conclusiveupon this Court, and we
will not normally disturb such factual findings unless the findings of xxxx
the court are palpably unsupported by the evidence on record or
unless the judgment itself is based on misapprehension of facts.
Q And what would have you doneif you entertain other considerations from
Inthe instant case, we find the need to make certain exception. the time the patient was admitted?

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 precautionon 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 bewithout 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 quoand
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 prosecution’s own expert witness, Dr.
Antonio Mateo,15 testified during cross-examination that he would
perform surgery on JR:
ATTY. CASTRO:
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. 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? 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 Yes, I would do surgery.


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 Q. Isn't it a fact thatto rule out acute appendicitis as not the disease
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 Q. So, you are saying then that in order to rule out acute appendicitis
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 JR’s 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 the suspect which is acute appendicitis is by surgery, you have said
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, A. Yes, sir.22
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 isprobably 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 thatT/C does not mean ruled out
but rather to consider the matter?
P a g e | 38
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 tobe ruled out
in order to consider it as not the disease of JR?
A. Yes. Sir.
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.
there must be an operation, that is right Doctor?
A. No, sir. If your diagnosis is toreally 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
that earlier Doctor, I just want any confirmation of it?
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 developmentsand 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 JRbriefly 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-onduty could likewise monitor the
patient’scondition, 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 tooverrule
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 tobring 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 Quasioffenses penalize the mental attitudeor
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
P a g e | 39
disquisitions, however, the prosecution failed to prove these two
things. The Court is not convinced with moral certainty that Dr.
Cabugao isguilty 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 prosecution’s 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, inshort 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. Cabugao’s 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. Ynzon’s
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 torule out acute appendicitis as notthe disease of
JR, surgery or operation mustbe 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 vomitting, does that not show a disease of
acute appendicitis Doctor?
A. It’s 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 ofthe 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 JRto a surgeon who
has sufficient training and experience to handle JR’s 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
P a g e | 40
shown that both accused-doctors demonstratedan 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
"multiorgan 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 fromwhich 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 againstthe 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 limitationson 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 delictbut by contract and the reckless imprudence he
was guilty of under Article 365 of the Revised Penal Code.1âwphi1
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
besubstituted for the deceased without requiring the appointment of
an executor or administrator and the court may appoint a guardian ad requires that only one action be maintained for the same act or
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
P a g e | 41
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
commencesan 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 beforethe court in the
administration proceedings. Claims not yet due, or contingent, may
be approved at their present value.
As a final note, we reiterate thatthe policy against double recovery
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 ACQUITTEDof 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 estateof Dr.
Ynzon, depending on the source of obligation upon which the same
are based.
SO ORDERED.
G.R. No. 192123
March 10, 2014
DR. FERNANDO P. SOLIDUM, Petitioner, vs.
PEOPLE OF THE PHILIPPINES, Respondent.
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, 19922 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 Luceño, Dr. Donatella Valeña 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 son’s helpless and unexpected condition, Ma. Luz
Gercayo (Luz) lodged a complaint for reckless imprudence resulting
in serious physical injuries with the City Prosecutor’s Office of
Manila against the attending physicians.12
Upon a finding of probable cause, the City Prosecutor’s 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
P a g e | 42
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 ₱500,000.00 as moral damages and ₱100,000.00 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 ₱500,000.00 as moral damages and ₱100,000 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 PETITIONER’S CONVICTION
FOR THE CRIME CHARGED BASED ON THE TRIAL
COURT’S 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.
P a g e | 43
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
 P a g e | 44

Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule body which was not under, or in the area, of treatment, removal of
of substantive law, but merely a mode of proof or a mere procedural the wrong part of the body when another part was intended,
convenience. The doctrine, when applicable to the facts and knocking out a tooth while a patient’s jaw was under anesthetic for
circumstances of a given case, is not meant to and does not dispense the removal of his tonsils, and loss of an eye while the patient
with the requirement of proof of culpable negligence against the plaintiff was under the influence of anesthetic, during or following
party charged. It merely determines and regulates what shall be an operation for appendicitis, among others.
prima facie evidence thereof, and helps the plaintiff in proving a
breach of the duty. The doctrine can be invoked when and only Nevertheless, despite the fact that the scope of res ipsa loquitur has
when, under the circumstances involved, direct evidence is absent been measurably enlarged, it does not automatically apply to all
and not readily available.27 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
The applicability of the doctrine of res ipsa loquitur in medical negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
negligence cases was significantly and exhaustively explained in perfunctorily used but a rule to be cautiously applied, depending
Ramos v. Court of Appeals,28 where the Court said – upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a
Medical malpractice cases do not escape the application of this matter of common knowledge and observation, that the
doctrine. Thus, res ipsa loquitur has been applied when the consequences of professional care were not as such as would
circumstances attendant upon the harm are themselves of such a ordinarily have followed if due care had been exercised. A
character as to justify an inference of negligence as the cause of that distinction must be made between the failure to secure results, and
harm. The application of res ipsa loquitur in medical negligence the occurrence of something more unusual and not ordinarily found
cases presents a question of law since it is a judicial function to if the service or treatment rendered followed the usual procedure of
determine whether a certain set of circumstances does, as a matter of those skilled in that particular practice. It must be conceded that the
law, permit a given inference. 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
Although generally, expert medical testimony is relied upon in
peril to explain why any particular diagnosis was not correct, or why
malpractice suits to prove that a physician has done a negligent act
any particular scientific treatment did not produce the desired result.
or that he has deviated from the standard medical procedure, when
Thus, res ipsa loquitur is not available in a malpractice suit if the
the doctrine of res ipsa loquitur is availed by the plaintiff, the need
for expert medical testimony is dispensed with because the injury only showing is that the desired result of an operation or treatment
itself provides the proof of negligence. The reason is that the general was not accomplished. The real question, therefore, is whether or not
in the process of the operation any extraordinary incident or unusual
rule on the necessity of expert testimony applies only to such matters
event outside of the routine performance occurred which is beyond
clearly within the domain of medical science, and not to matters that
the regular scope of customary professional activity in such
are within the common knowledge of mankind which may be
operations, which, if unexplained would themselves reasonably
testified to by anyone familiar with the facts. Ordinarily, only
physicians and surgeons of skill and experience are competent to speak to the average man as the negligent cause or causes of the
testify as to whether a patient has been treated or operated upon with untoward consequence. If there was such extraneous intervention,
the doctrine of res ipsa loquitur may be utilized and the defendant is
a reasonable degree of skill and care. However, testimony as to the
called upon to explain the matter, by evidence of exculpation, if he
statements and acts of physicians and surgeons, external
could.
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 In order to allow resort to the doctrine, therefore, the following
physician negligent upon proper proof of injury to the patient, essential requisites must first be satisfied, to wit: (1) the accident
without the aid of expert testimony, where the court from its fund of was of a kind that does not ordinarily occur unless someone is
common knowledge can determine the proper standard of care. negligent; (2) the instrumentality or agency that caused the injury
Where common knowledge and experience teach that a resulting was under the exclusive control of the person charged; and (3) the
injury would not have occurred to the patient if due care had been injury suffered must not have been due to any voluntary action or
exercised, an inference of negligence may be drawn giving rise to an contribution of the person injured.29
application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what The Court considers the application here of the doctrine of res ipsa
occurred but how and why it occurred. When the doctrine is loquitur inappropriate. Although it should be conceded without
appropriate, all that the patient must do is prove a nexus between the difficulty that the second and third elements were present,
particular act or omission complained of and the injury sustained considering that the anesthetic agent and the instruments were
while under the custody and management of the defendant without exclusively within the control of Dr. Solidum, and that the patient,
need to produce expert medical testimony to establish the standard being then unconscious during the operation, could not have been
of care. Resort to res ipsa loquitur is allowed because there is no guilty of contributory negligence, the first element was undeniably
other way, under usual and ordinary conditions, by which the patient wanting. Luz delivered Gerald to the care, custody and control of his
can obtain redress for injury suffered by him. physicians for a pull-through operation. Except for the imperforate
anus, Gerald was then of sound body and mind at the time of his
Thus, courts of other jurisdictions have applied the doctrine in the submission to the physicians. Yet, he experienced bradycardia
following situations: leaving of a foreign object in the body of the during the operation, causing loss of his senses and rendering him
patient after an operation, injuries sustained on a healthy part of the 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 patient’s 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
P a g e | 45
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. Solidum’s 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, patient’s 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
child’s 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 can’t understand the number. There are
no clues in the clinical abstract on the quantity of the anesthetic
 P a g e | 46

agent used. It only contains the information that the anesthetic plan conclusion – if the application of anesthesia was really closely
was to put the patient under general anesthesia using a monitored, the event could not have happened.34
nonrebreathing system with halothane as the sole anesthetic agent
and that 1 hour and 45 minutes after the operation began, The Prosecution did not prove the elements of reckless imprudence
bradycardia occurred after which the inhalational agent was shut off beyond reasonable doubt because the circumstances cited by the CA
and the patient administered with 100% oxygen. It would be were insufficient to establish that Dr. Solidum had been guilty of
apparent that the 100% oxygen that Dr. Vertido said should be read inexcusable lack of precaution in monitoring the administration of
in lieu of 100% halothane was the pure oxygen introduced after the anesthetic agent to Gerald. The Court aptly explained in Cruz v.
something went amiss in the operation and the halothane itself was Court of Appeals35 that:
reduced or shut off.
Whether or not a physician has committed an "inexcusable lack of
The key question remains – what was the quantity of halothane used precaution" in the treatment of his patient is to be determined
before bradycardia set in? according to the standard of care observed by other members of the
profession in good standing under similar circumstances bearing in
The implication of Dr. Vertido’s admission is that there was no mind the advanced state of the profession at the time of treatment or
overdose of the anesthetic agent, and the accused Dr. Solidum stakes the present state of medical science. In the recent case of Leonila
his liberty and reputation on this conclusion. He made the assurance Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in
that he gave his patient the utmost medical care, never leaving the accepting a case, a doctor in effect represents that, having the needed
operating room except for a few minutes to answer the call of nature training and skill possessed by physicians and surgeons practicing in
but leaving behind the other members of his team Drs. Abella and the same field, he will employ such training, care and skill in the
Razon to monitor the operation. He insisted that he administered treatment of his patients. He therefore has a duty to use at least the
only a point 1% not 100% halothane, receiving corroboration from same level of care that any other reasonably competent doctor would
Dr. Abella whose initial MA in the record should be enough to show use to treat a condition under the same circumstances. It is in this
that she assisted in the operation and was therefore conversant of the aspect of medical malpractice that expert testimony is essential to
things that happened. She revealed that they were using a machine establish not only the standard of care of the profession but also that
that closely monitored the concentration of the agent during the the physician's conduct in the treatment and care falls below such
operation. standard. Further, inasmuch as the causes of the injuries involved in
malpractice actions are determinable only in the light of scientific
But most compelling is Dr. Solidum’s interpretation of the knowledge, it has been recognized that expert testimony is usually
anesthesia record itself, as he takes the bull by the horns, so to speak. necessary to support the conclusion as to causation.
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 xxxx
intervals of 15 minutes. He studiedly mentions – the concentration of
halothane as reflected in the anesthesia record (Annex D of the In litigations involving medical negligence, the plaintiff has the
complaint-affidavit) is only one percent (1%) – The numbers burden of establishing appellant's negligence and for a reasonable
indicated in 15 minute increments for halothane is an indication that conclusion of negligence, there must be proof of breach of duty on
only 1% halothane is being delivered to the patient Gerard Gercayo the part of the surgeon as well as a causal connection of such breach
for his entire operation; The amount of halothane delivered in this and the resulting death of his patient. In Chan Lugay v. St Luke's
case which is only one percent cannot be summated because Hospital, Inc., where the attending physician was absolved of
halothane is constantly being rapidly eliminated by the body during liability for the death of the complainant’s wife and newborn baby,
the entire operation. this Court held that:

xxxx "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
In finding the accused guilty, despite these explanations, the RTC legitimate consequence of the wrong done; the connection between
argued that the volte-face of Dr. Vertido on the question of the the negligence and the injury must be a direct and natural sequence
dosage of the anesthetic used on the child would not really validate of events, unbroken by intervening efficient causes.’ In other words,
the non-guilt of the anesthesiologist. Led to agree that the halothane the negligence must be the proximate cause of the injury. For,
used was not 100% as initially believed, he was nonetheless unaware ‘negligence, no matter in what it consists, cannot create a right of
of the implications of the change in his testimony. The court action unless it is the proximate cause of the injury complained of.’
observed that Dr. Vertido had described the condition of the child as And ‘the proximate cause of an injury is that cause, which, in natural
hypoxia which is deprivation of oxygen, a diagnosis supported by and continuous sequence, unbroken by any efficient intervening
the results of the CT Scan. All the symptoms attributed to a failing cause, produces the injury, and without which the result would not
central nervous system such as stupor, loss of consciousness, have occurred.’"
decrease in heart rate, loss of usual acuity and abnormal motor
function, are manifestations of this condition or syndrome. But why An action upon medical negligence – whether criminal, civil or
would there be deprivation of oxygen if 100% oxygen to 1% administrative – calls for the plaintiff to prove by competent
halothane was used? Ultimately, to the court, whether oxygen or evidence each of the following four elements, namely: (a) the duty
halothane was the object of mistake, the detrimental effects of the owed by the physician to the patient, as created by the physician-
operation are incontestable, and they can only be led to one patient relationship, to act in accordance with the specific norms or
standards established by his profession; (b) the breach of the duty by

the physician’s 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 physician’s 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.
P a g e | 47
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, we’re 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 - - - - at the time when the operation is being done might also contribute to
" that hypoxia is that correct?
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 I’m asking you, just answer my question, did you
see there 100% and 100 figures, tell me, yes or no?
WITNESS I’m 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
P a g e | 48
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
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 Gerald’s 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. Vertido’s findings did not preclude the
probability that other factors related to Gerald’s 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. Solidum’s 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.1âwphi1 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
P a g e | 49
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.
G.R. No. 158996
November 14, 2008
SPOUSES FREDELICTO FLORES (deceased) and
FELICISIMA FLORES, petitioners, 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., respondents.
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 Decision1 of
the Court of Appeals (CA) in CA G.R. CV No. 63234, which
 P a g e | 50

affirmed with modification the Decision2 of the Regional Trial Court couch of the clinic while they waited for the doctor. When Dr.
(RTC) of Nueva Ecija, Branch 37 in Civil Case No. SD-1233. The Fredelicto arrived, he did a routine check-up and ordered Teresita's
dispositive portion of the assailed CA decision states: admission to the hospital. In the admission slip, he directed the
hospital staff to prepare the patient for an "on call" D&C5 operation
WHEREFORE, premises considered, the assailed Decision to be performed by his wife, Dr. Felicisima Flores (Dr. Felicisima).
of the Regional Trial Court of Baloc, Sto. Domingo, Nueva Teresita was brought to her hospital room at around 12 noon; the
Ecija, Branch 37 is hereby AFFIRMED but with hospital staff forthwith took her blood and urine samples for the
modifications as follows: laboratory tests6 which Dr. Fredelicto ordered.

1) Ordering defendant-appellants Dr. and Dra. At 2:40 p.m. of that same day, Teresita was taken to the operating
Fredelicto A. Flores and the United Doctors room. It was only then that she met Dr. Felicisima, an obstetrician
and gynecologist. The two doctors - Dr. Felicisima and Dr.
Medical Center, Inc. to jointly and severally pay
Fredelicto, conferred on the patient's medical condition, while the
the plaintiff-appellees - heirs of Teresita Pineda,
namely, Spouses Dominador Pineda and Virginia resident physician and the medical intern gave Dr. Felicisima their
Saclolo and Florencio, Candida, Marta, own briefings. She also interviewed and conducted an internal
Godofredo, Baltazar and Lucena, all surnamed vaginal examination of the patient which lasted for about 15
Pineda, the sum of P400,000.00 by way of moral minutes. Dr. Felicisima thereafter called up the laboratory for the
damages; 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. Teresita's BS count was
2) Ordering the above-named defendant-appellants
10.67mmol/l7 and her CBC was 109g/l.8
to jointly and severally pay the above-named
plaintiff-appellees the sum of P100,000.00 by way
of exemplary damages; 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.,
3) Ordering the above-named defendant-appellants
Teresita was wheeled back to her room.
to jointly and severally pay the above-named
plaintiff-appellees the sum of P36,000.00 by way
of actual and compensatory damages; and 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
4) Deleting the award of attorney's fees and costs
uteri.9 Dr. Felicisima, however, advised Teresita that she could
of suit.
spend her recovery period at home. Still feeling weak, Teresita opted
for hospital confinement.
SO ORDERED.
Teresita's complete laboratory examination results came only on that
While this case essentially involves questions of facts, we opted for day (April 29, 1987). Teresita's urinalysis showed a three plus sign
the requested review in light of questions we have on the findings of (+++) indicating that the sugar in her urine was very high. She was
negligence below, on the awarded damages and costs, and on the then placed under the care of Dr. Amado Jorge, an internist.
importance of this type of ruling on medical practice.3
By April 30, 1987, Teresita's condition had worsened. She
BACKGROUND FACTS experienced difficulty in breathing and was rushed to the intensive
care unit. Further tests confirmed that she was suffering from
Teresita Pineda (Teresita) was a 51-year old unmarried woman Diabetes Mellitus Type II.10 Insulin was administered on the
living in Sto. Domingo, Nueva Ecija. She consulted on April 17, patient, but the medication might have arrived too late. Due to
1987 her townmate, Dr. Fredelicto Flores, regarding her medical complications induced by diabetes, Teresita died in the morning of
condition. She complained of general body weakness, loss of May 6, 1987.11
appetite, frequent urination and thirst, and on-and-off vaginal
bleeding. Dr. Fredelicto initially interviewed the patient and asked Believing that Teresita's death resulted from the negligent handling
for the history of her monthly period to analyze the probable cause of her medical needs, her family (respondents) instituted an action
of the vaginal bleeding. He advised her to return the following week for damages against Dr. Fredelicto Flores and Dr. Felicisima Flores
or to go to the United Doctors Medical Center (UDMC) in Quezon (collectively referred to as the petitioner spouses) before the RTC of
City for a general check-up. As for her other symptoms, he Nueva Ecija.
suspected that Teresita might be suffering from diabetes and told her
to continue her medications.4
The RTC ruled in favor of Teresita's family and awarded actual,
moral, and exemplary damages, plus attorney's fees and costs. 12 The
Teresita did not return the next week as advised. However, when her CA affirmed the judgment, but modified the amount of damages
condition persisted, she went to further consult Dr. Flores at his awarded and deleted the award for attorney's fees and costs of suit. 13
UDMC clinic on April 28, 1987, travelling for at least two hours
from Nueva Ecija to Quezon City with her sister, Lucena Pineda.
Through this petition for review on certiorari, the petitioner spouses
They arrived at UDMC at around 11:15 a.m.. Lucena later testified
-Dr. Fredelicto (now deceased) and Dr. Felicisima Flores - allege
that her sister was then so weak that she had to lie down on the

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 COURT'S 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 Teresita's 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
one's 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
P a g e | 51
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 Teresita's 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 Teresita's
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 Teresita's 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 Teresita's 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 patient's
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- include the 3+ status of sugar in the patient's urine - a result highly
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 and-off vaginal bleeding. The presence of hyperglycemia in a
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 Teresita's
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. Tan35 and Dr. Mendoza36
both testified that the medical records of Teresita failed to indicate
P a g e | 52
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
dysfunction…The 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
40
confirmatory of diabetes.
Because the D&C was merely an elective procedure, the patient's
uncontrolled hyperglycemia presented a far greater risk than her on-
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 patient's 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 patient's 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
Teresita's 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 Teresita's 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 plaintiff's
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
defendant's 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 - Acute47
Stress, whether physical or emotional, is a factor that can aggravate
diabetes; a D&C operation is a form of physical stress. Dr. Mendoza
P a g e | 53
explained how surgical stress can aggravate the patient's
hyperglycemia: when stress occurs, the diabetic's 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 Teresita's 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 Teresita's death due to
aggravated diabetic condition is therefore sufficiently established.
The trial court and the appellate court pinned the liability for
Teresita's death on both the petitioner spouses and this Court finds
no reason to rule otherwise. However, we clarify that Dr.
Fredelicto's 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 patient's vaginal bleeding
complaint. Rather, it was his failure from the very start to identify
and confirm, despite the patient's 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 Teresita's 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 patient's 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
UDMC's petition for review on certiorari. Since UDMC's appeal has
been denied and they are not parties to this case, we find it
unnecessary to delve on the matter. Consequently, the RTC's
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 Teresita's 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
court's 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
P a g e | 54
offender.55 We therefore affirm the CA's 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 attorney's 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 attorney's 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 attorney's fees and costs and restoring the award of
P100,000.00 as attorney's 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 attorney's fees; and 6. Costs.
SO ORDERED.
G.R. No. 171127
March 11, 2015NOEL CASUMPANG, RUBY SANGA-
MIRANDA and SAN JUAN DEDIOS HOSPITAL, Petitioners,
vs.NELSON CORTEJO, Respondent.
G.R. No. 171217DRA. RUBY SANGA-MIRANDA, Petitioner, vs.NELSON
CORTEJO, Respondent.
G.R. No. 171228SAN JUAN DEDIOS HOSPITAL, Petitioner,
vs.NELSON CORTEJO, Respondent.
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 totothe ruling of the Regional Trial Court
(RTC), Branch 134, Makati City.
The RTC awarded Nelson Cortejo (respondent) damages in the total
amount of ₱595,000.00, 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.4
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.5
After taking Edmer’s medical history, Dr. Livelo took his vital signs, stomach pain and difficulty in moving his right leg.19
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.
Mrs. Cortejo did not know any doctor at SJDH. She used her
Fortune Care card and was referred to an accredited Fortune Care
coordinator, who was then out of town. She was thereafter assigned
to Dr. Noel Casumpang (Dr. Casumpang), a pediatrician also
accredited with Fortune Care.8
At 5:30 in the afternoon of the same day, Dr. Casumpang for the first At 4:40 in the afternoon, Dr. Sanga called up Dr. Casumpang at his
time examined Edmer in his room. Using only a stethoscope, he
confirmed the initial diagnosis of "Bronchopneumonia."9
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 "blood pressure 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, the respondent consented. Since the ICU was then full, Dr.
throat irritation, as well as chest and stomach pain. Mrs. Cortejo also Casumpang suggested to the respondent that they hire a private
alerted Dr. Casumpang about the traces of blood in Edmer’s sputum. nurse. The respondent, however, insisted on transferring his son to
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 Miranda-Sanga (Dr. Sanga), 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.
P a g e | 55
Thereafter, Dr. Sanga 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. Sanga, the respondent showed her Edmer’s blood
specimen, and reported that Edmer had complained of severe
Dr. Sanga 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. Sanga 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
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. Sanga 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
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 ₱600.00.23
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. Sanga (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 solidarily 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. Sanga, 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 solidarily and
severally plaintiff the following:
(1) Moral damages in the amount of ₱500,000.00;
Dr. Casumpang also contends that dengue fever occurs only after
(2) Costs of burial and funeral in the amount of ₱45,000.00; 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.
(3) Attorney’s fees of ₱50,000.00; and
P a g e | 56
(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 likewise raised serious doubts 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. Sanga’s Position (G.R. No. 171217)
In her petition, Dr. Sanga 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. Sanga 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. Sanga 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. Jaudianis 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. Sanga 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.
P a g e | 57
SJDH moreover contends that even if the petitioning doctors are
considered employees and not merely consultants of the hospital,
SJDH cannot still be held solidarily 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,28 bacterial 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 Courts 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:
1. Whether or not the petitioning doctors had committed
"inexcusable lack of precaution" in diagnosing and in
treating the patient;

2. Whether or not the petitioner hospital is solidarily liable
with the petitioning doctors;
3. Whether or not there is a causal connection between the
petitioners’ negligent act/omission and the patient’s
resulting death; and
4. 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 connection must be direct, natural, and should be unbroken by any
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, played an integral part in causing the injury or damage, and that the
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.
P a g e | 58
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
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
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. Sanga and Edmer
With respect to Dr. Sanga, 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. Sanga 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. Sanga 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. Furthermore, the standard of care according to Dr. Jaudian is to
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, hemostatic to stop bleeding, and oxygen if there is difficulty in
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. Sanga 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
P a g e | 59
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
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,
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. Sanga liable for the reasons discussed
below.
Dr. Casumpang’s Negligence
a. Negligence in the Diagnosis
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 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 showed that Edmer had low breath and
voluntary submission, and that he was up and about playing
basketball.56 He based his diagnosis of bronchopneumonia on the
following observations: "difficulty in breathing, clearing run nostril,
harsh breath sound, tight air, and sivilant sound."57
It will be recalled that during Dr. Casumpang’s first and second
visits to Edmer, he already had knowledge of Edmer’s laboratory
test result (CBC), medical history, and symptoms (i.e., fever, rashes,
rapid breathing, chest and stomach pain, throat irritation, difficulty
in breathing, and traces of blood in the sputum). However, these
information did not lead Dr. Casumpang to the possibility that
Edmer could be suffering from either dengue fever, or dengue
hemorrhagic fever, as he clung to his diagnosis of broncho
pneumonia. This means that given the symptoms exhibited, Dr.
Casumpang already ruled out the possibility of other diseases like
dengue.

In other words, it was lost on Dr. Casumpang that the characteristic
symptoms of dengue (as Dr. Jaudian testified) are: patient’s rapid
breathing; chest and stomach pain; fever; and the presence of blood
in his saliva. All these manifestations were present 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 to have considered the patient’s other manifestations
in ruling out dengue fever or 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 information
that could have been material in detecting dengue fever. This is
evident from the testimony of Mrs. Cortejo:
TSN, Mrs. Cortejo, November 27, 1990
Q: Now, when Dr. Casumpang visited your son for the first time at
5:30 p.m., what did he do, if any?
A: He examined my son by using stethoscope and after that, he
confirmed to me that my son was suffering from broncho
pneumonia.
Q: After he confirmed that your son was suffering broncho
pneumonia, what did you say if any?
A: Again, I told Dr. Casumpang, how come it was broncho
pneumonia when my son has no cough or colds.
Q: What was the answer of Dr. Casumpang to your statement?
xxxx
A: And then, Dr. Casumpang answered "THAT’S THE USUAL
BRONCHO PNEUMONIA, NO COLDS, NO PHLEGM."
Q: How long did Dr. Casumpang stay in your son’s room?
A: He stayed for a minute or 2.
xxxx
Q: When Dr. Casumpang arrived at 9:00 o’clock a.m. on April 23,
what did you tell him, if any?
xxxx
A: I told Dr. Casumpang… After examining my son using
stethoscope and nothing more, I told Dr. Casumpang about the traces
of blood in my son’s sputum and I told him what is all about and he
has throat irritation.
Q: What did he tell you?
A: He just nodded his head but he did not take the initiative of
looking at the throat of my son.
Q: So what happened after that?
P a g e | 60
A: I also told Dr. Casumpang about his chest pain and also stomach
pain.
Q: So what did Dr. Casumpang do after you have narrated all these
complaints of your son?
A: Nothing. He also noticed the rapid breathing of my son and my
son was almost moving because of rapid breathing and he is swaying
in the bed.
Q: Do you know what action was taken by Dr. Casumpang when
you told him that your son is experiencing a rapid breathing?
A: No action. He just asked me if my son has an asthma but I said
none.
Q: So how long did Dr. Casumpang stay and attended your son on
April 23?
A: More or less two (2) minutes then I followed him up to the door
and I repeated about the fever of my son.
Q: What did he tell you, if any, regarding that information you gave
him that your son had a fever?
A: He said, that is broncho pneumonia, It’s only being active now.
[Emphasis supplied]
We also find it strange why Dr. Casumpang did not even bother to
check Edmer’s throat despite knowing that as early as 9:00 in the
morning of April 23, 1988, Edmer had blood streaks in his sputum.
Neither did Dr. Casumpang order confirmatory tests 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
P a g e | 61
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, I 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. Sanga is Not Liable for Negligence
In considering the case of Dr. Sanga, 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. Sanga.
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
P a g e | 62
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. Sanga 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. Sanga attended to Edmer, both Dr. Livelo
and Dr. Casumpang had diagnosed Edmer with bronchopneumonia.
In her testimony, Dr. Sanga 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. Sanga likewise duly reported to Dr. Casumpang, who admitted
receiving updates regarding Edmer’s condition.80 There is also
evidence supporting Dr. Sanga’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. Sanga 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
P a g e | 63
Based on her statements we find that Dr. Sanga 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. Sanga failed to examine the
blood specimen because he wash edit 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. Sanga’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,
P a g e | 64
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.1avvphi1
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)
P a g e | 65
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 Solidarily 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 belief that such were being provided by SJDH or its employees,
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.1âwphi1
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
P a g e | 66
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. Sanga 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. Sanga, 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
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 solidarily liable for negligent medical
practice. We SET ASIDE the finding of liability as to Dr. Ruby
Miranda-Sanga. The amounts of ₱45,000.00 as actual damages and
₱500,000.00 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.
 P a g e | 67

G.R. NO. 191018 At around 3:45 P.M., Lilian was brought to the operating room
where Dr. Inso conducted the surgery. During the operation, Dr. Inso
CARLOS BORROMEO, PETITIONER, VS.FAMILY confirmed that Lilian was suffering from acute appendicitis. He
proceeded to remove her appendix which was already infected and
CARE HOSPITAL, INC. AND RAMON S. INSO, M.D., congested with pus.
RESPONDENTS.
The operation was successful. Lilian’s appearance and vital signs
BRION, J.:Carlos Borromeo lost his wife Lillian when she died improved. At around 7:30 P.M., Lilian was brought back to her
after undergoing a routine appendectomy. The hospital and the private room from the recovery room.
attending surgeon submit that Lillian bled to death due to a rare, life-
threatening condition that prevented her blood from clotting
At around 1:30 A.M. on July 16, 1999, roughly six hours after Lilian
normally. Carlos believes, however, that the hospital and the surgeon
were simply negligent in the care of his late wife. was brought back to her room, Dr. Inso was informed that her blood
pressure was low. After assessing her condition, he ordered the
infusion of more intravenous (IV) fluids which somehow raised her
On January 22, 2010, the Court of Appeals (CA) in CA-G.R CV No. blood pressure.
890961 dismissed Carlos' complaint and thus reversed the April 10,
2007 decision of the Regional Trial Court (RTC) in Civil Case No.
2000-603-MK2 which found the respondents liable for medical Despite the late hour, Dr. Inso remained in the hospital to monitor
negligence. Lilian’s condition. Subsequently, a nurse informed him that Lilian
was becoming restless. Dr. Inso immediately went to Lilian and saw
that she was quite pale. He immediately requested a blood
The present petition for review on certiorari seeks to reverse the transfusion.
CA’s January 22, 2010 decision.
Lilian did not respond to the blood transfusion even after receiving
ANTECEDENTS two 500 cc-units of blood. Various drugs, such as adrenaline or
epinephrine, were administered.
The petitioner, Carlos Borromeo, was the husband of the late Lilian
V. Borromeo (Lilian). Lilian was a patient of the respondent Family Eventually, an endotracheal tube connected to an oxygen tank was
Care Hospital, Inc. (Family Care) under the care of respondent Dr. inserted into Lilian to ensure her airway was clear and to compensate
Ramon Inso (Dr. Inso). for the lack of circulating oxygen in her body from the loss of red
blood cells. Nevertheless, her condition continued to deteriorate.
On July 13, 1999, the petitioner brought his wife to the Family Care
Hospital because she had been complaining of acute pain at the Dr. Inso observed that Lilian was developing petechiae in various
lower stomach area and fever for two days. She was admitted at the parts of her body. Petechiae are small bruises caused by bleeding
hospital and placed under the care of Dr. Inso. under the skin whose presence indicates a blood-coagulation
problem – a defect in the ability of blood to clot. At this point, Dr.
Dr. Inso suspected that Lilian might be suffering from acute Inso suspected that Lilian had Disseminated Intravascular
appendicitis. However, there was insufficient data to rule out other Coagulation (DIC), a blood disorder characterized by bleeding in
possible causes and to proceed with an appendectomy. Thus, he many parts of her body caused by the consumption or the loss of the
ordered Lilian’s confinement for testing and evaluation. clotting factors in the blood. However, Dr. Inso did not have the
luxury to conduct further tests because the immediate need was to
Over the next 48 hours, Lilian underwent multiple tests such as resuscitate Lilian.
complete blood count, urinalysis, stool exam, pelvic ultrasound, and
a pregnancy test. However, the tests were not conclusive enough to Dr. Inso and the nurses performed cardiopulmonary resuscitation
confirm that she had appendicitis. (CPR) on Lilian. Dr. Inso also informed her family that there may be
a need to re-operate on her, but she would have to be put in an
Meanwhile, Lilian’s condition did not improve. She suffered from Intensive Care Unit (ICU). Unfortunately, Family Care did not have
spiking fever and her abdominal pain worsened. The increasing an ICU because it was only a secondary hospital and was not
tenderness of her stomach, which was previously confined to her required by the Department of Health to have one. Dr. Inso informed
lower right side, had also extended to her lower left side. Lilian the petitioner that Lilian would have to be transferred to another
abruptly developed an acute surgical abdomen. hospital.

On July 15, 1999, Dr. Inso decided to conduct an exploratory
laparotomy on Lilian because of the findings on her abdomen and
his fear that she might have a ruptured appendix. Exploratory
laparotomy is a surgical procedure involving a large incision on the
abdominal wall that would enable Dr. Inso to examine the abdominal
cavity and identify the cause of Lilian’s symptoms. After explaining
the situation, Dr. Inso obtained the patient’s consent to the
laparotomy.
At around 3:30 A.M., Dr. Inso personally called the Perpetual Help
Medical Center to arrange Lilian’s transfer, but the latter had no
available bed in its ICU. Dr. Inso then personally coordinated with
the Muntinlupa Medical Center (MMC) which had an available bed.
At around 4:00 A.M., Lilian was taken to the MMC by ambulance
accompanied by the resident doctor on duty and a nurse. Dr. Inso
followed closely behind in his own vehicle.

Upon reaching the MMC, a medical team was on hand to resuscitate
Lilian. A nasogastric tube (NGT) was inserted and IV fluids were
immediately administered to her. Dr. Inso asked for a plasma
expander. Unfortunately, at around 10:00 A.M., Lilian passed away
despite efforts to resuscitate her.
At the request of the petitioner, Lilian’s body was autopsied at the
Philippine National Police (PNP) Camp Crame Crime Laboratory.
Dr. Emmanuel Reyes (Dr. Reyes), the medico-legal assigned to the
laboratory, conducted the autopsy. Dr. Reyes summarized his
notable findings as:
x x x I opened up the body and inside the abdominal cavity which
you call peritoneal cavity there were 3,000 ml of clot and unclot
blood accumulated thereat. The peritoneal cavity was also free from
any adhesion. Then, I opened up the head and the brain revealed
paper white in color and the heart revealed abundant petechial
hemorrhages from the surface and it was normal. The valvular
leaflets were soft and pliable, and of course, the normal color is
reddish brown as noted. And the coronary arteries which supply the
heart were normal and unremarkable. Next, the lungs appears [sic]
hemorrhagic. That was the right lung while the left lung was
collapsed and paled. For the intestines, I noted throughout the entire
lengths of the small and large intestine were hemorrhagic areas.
Noted absent is the appendix at the ileo-colic area but there were
continuous suture repair done thereat. However, there was a 0.5 x
0.5 cm opening or left unrepaired at that time. There was an opening
on that repair site. Meaning it was not repaired. There were also at
that time clot and unclot blood found adherent thereon. The liver and
the rest of the visceral organs were noted exhibit [sic] some degree
of pallor but were otherwise normal. The stomach contains one
glassful about 400 to 500 ml.3
Dr. Reyes concluded that the cause of Lilian’s death was
hemorrhage due to bleeding petechial blood vessels: internal
bleeding. He further concluded that the internal bleeding was caused
by the 0.5 x 0.5 cm opening in the repair site. He opined that the
bleeding could have been avoided if the site was repaired with
double suturing instead of the single continuous suture repair that he
found.
Based on the autopsy, the petitioner filed a complaint for damages
against Family Care and against Dr. Inso for medical negligence.
During the trial, the petitioner presented Dr. Reyes as his expert
witness. Dr. Reyes testified as to his findings during the autopsy and
his opinion that Lilian’s death could have been avoided if Dr. Inso
had repaired the site with double suture rather than a single suture.
However, Dr. Reyes admitted that he had very little experience in
the field of pathology and his only experience was an on-the-job
training at the V. Luna Hospital where he was only on observer
status. He further admitted that he had no experience in appendicitis
or appendectomy and that Lilian’s case was his first autopsy
involving a death from appendectomy.
Moreover, Dr. Reyes admitted that he was not intelligently guided
during the autopsy because he was not furnished with clinical,
physical, gross, histopath, and laboratory information that were
important for an accurate conclusion. Dr. Reyes also admitted that
an appendical stump is initially swollen when sutured and that the
P a g e | 68
stitches may loosen during the healing process when the initial
swelling subside.
In their defense, Dr. Inso and Family Care presented Dr. Inso, and
expert witnesses Dr. Celso Ramos (Dr. Ramos) and Dr. Herminio
Hernandez (Dr. Hernandez).
Dr. Ramos is a practicing pathologist with over 20 years of
experience. He is an associate professor at the Department of
Surgery of the Fatima Medical Center, the Manila Central
University, and the Perpetual Help Medical Center. He is a Fellow of
the Philippine College of Surgeons, a Diplomate of the Philippine
Board of Surgery, and a Fellow of the Philippine Society of General
Surgeons.
Dr. Ramos discredited Dr. Reyes’ theory that the 0.5 x 0.5 cm
opening at the repair site caused Lilian’s internal bleeding.
According to Dr. Ramos, appendical vessels measure only 0.1 to
0.15 cm, a claim that was not refuted by the petitioner. If the 0.5 x
0.5 cm opening had caused Lilian’s hemorrhage, she would not have
survived for over 16 hours; she would have died immediately, within
20 to 30 minutes, after surgery.
Dr. Ramos submitted that the cause of Lilian’s death was
hemorrhage due to DIC, a blood disorder that leads to the failure of
the blood to coagulate. Dr. Ramos considered the abundant petechial
hemorrhage in the myocardic sections and the hemorrhagic right
lung; the multiple bleeding points indicate that Lilian was afflicted
with DIC.
Meanwhile, Dr. Hernandez is a general surgeon and a hospital
administrator who had been practicing surgery for twenty years as of
the date of his testimony.
Dr. Hernandez testified that Lilian’s death could not be attributed to
the alleged wrong suturing. He submitted that the presence of blood
in the lungs, in the stomach, and in the entire length of the bowels
cannot be reconciled with Dr. Reyes’ theory that the hemorrhage
resulted from a single-sutured appendix.
Dr. Hernandez testified that Lilian had uncontrollable bleeding in the
microcirculation as a result of DIC. In DIC, blood oozes from very
small blood vessels because of a problem in the clotting factors of
the blood vessels. The microcirculation is too small to be seen by the
naked eye; the red cell is even smaller than the tip of a needle.
Therefore, the alleged wrong suturing could not have caused the
amount of hemorrhaging that caused Lilian’s death.
Dr. Hernandez further testified that the procedure that Dr. Inso
performed was consistent with the usual surgical procedure and he
would not have done anything differently.4
The petitioner presented Dr. Rudyard Avila III (Dr. Avila) as a
rebuttal witness. Dr. Avila, also a lawyer, was presented as an expert
in medical jurisprudence. Dr. Avila testified that between Dr. Reyes
who autopsied the patient and Dr. Ramos whose findings were based
on medical records, greater weight should be given to Dr. Reyes’
testimony.

On April 10, 2007, the RTC rendered its decision awarding the
petitioner P88,077.50 as compensatory damages; P50,000.00 as
death indemnity; P3,607,910.30 as loss of earnings; P50,000.00 as
moral damages; P30,000.00 as exemplary damages; P50,000.00 as
attorney’s fees, and the costs of the suit.
The RTC relied on Dr. Avila’s opinion and gave more weight to Dr.
Reyes’ findings regarding the cause of Lilian’s death. It held that Dr.
Inso was negligent in using a single suture on the repair site causing
Lilian’s death by internal hemorrhage. It applied the doctrine of res
ipsa loquitur, holding that a patient’s death does not ordinarily occur
during an appendectomy.
The respondents elevated the case to the CA and the appeal was
docketed as CA-G.R. CV No. 89096.
On January 22, 2010, the CA reversed the RTC’s decision and
dismissed the complaint. The CA gave greater weight to the
testimonies of Dr. Hernandez and Dr. Ramos over the findings of
Dr. Reyes because the latter was not an expert in pathology,
appendectomy, nor in surgery. It disregarded Dr. Avila’s opinion
because the basic premise of his testimony was that the doctor who
conducted the autopsy is a pathologist of equal or of greater
expertise than Dr. Ramos or Dr. Hernandez.
The CA held that there was no causal connection between the
alleged omission of Dr. Inso to use a double suture and the cause of
Lilian’s death. It also found that Dr. Inso did, in fact, use a double
suture ligation with a third silk reinforcement ligation on the repair
site which, as Dr. Reyes admitted on cross-examination, loosened up
after the initial swelling of the stump subsided.
The CA denied the applicability of the doctrine of res ipsa loquitur
because the element of causation between the instrumentality under
the control and management of Dr. Inso and the injury that caused
Lilian’s death was absent; the respondents sufficiently established
that the cause of Lilian’s death was DIC.
On March 18, 2010, the petitioner filed the present petition for
review on certiorari.
THE PETITION
The petitioner argues: (1) that Dr. Inso and Family Care were
negligent in caring for Lilian before, during, and after her
appendectomy and were responsible for her death; and (2) that the
doctrine of res ipsa loquitur is applicable to this case.
In their Comment, the respondents counter: (1) that the issues raised
by the petitioner are not pure questions of law; (2) that they
exercised utmost care and diligence in the treatment of Lilian; (3)
that Dr. Inso did not deviate from the standard of care observed
under similar circumstances by other members of the profession in
good standing; (4) that res ipsa loquitur is not applicable because
direct evidence as to the cause of Lilian’s death and the
presence/absence of negligence is available; and (5) that doctors are
not guarantors of care and cannot be held liable for the death of their
patients when they exercised diligence and did everything to save
the patient.
P a g e | 69
OUR RULING
The petition involves factual questions.
Under Section 1 of Rule 45, a petition for review on certiorari shall
only raise questions of law. The Supreme Court is not a trier of facts
and it is not our function to analyze and weigh evidence that the
lower courts had already passed upon.
The factual findings of the Court of Appeals are, as a general rule,
conclusive upon this Court. However, jurisprudence has also carved
out recognized exceptions 5 to this rule, to wit: (1) when the findings
are grounded entirely on speculation, surmises, or conjectures;6 (2)
when the inference made is manifestly mistaken, absurd, or
impossible;7 (3) when there is grave abuse of discretion;8 (4) when
the judgment is based on a misapprehension of facts;9 (5) when the
findings of facts are conflicting;10 (6) when in making its findings
the Court of Appeals went beyond the issues of the case, or its
findings are contrary to the admissions of both the appellant and the
appellee;11 (7) when the findings are contrary to those of the
trial court’s;12 (8) when the findings are conclusions without
citation of specific evidence on which they are based;13 (9) when
the facts set forth in the petition as well as in the petitioner’s main
and reply briefs are not disputed by the respondent;14 (10) when the
findings of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record;15 and (11) when the
Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify
a different conclusion.16
Considering that the CA’s findings with respect to the cause of
Lilian’s death contradict those of the RTC, this case falls under one
of the exceptions. The Court will thus give due course to the petition
to dispel any perception that we denied the petitioner justice.
The requisites of establishing medical malpractice
Whoever alleges a fact has the burden of proving it. This is a basic
legal principle that equally applies to civil and criminal cases. In a
medical malpractice case, the plaintiff has the duty of proving its
elements, namely: (1) a duty of the defendant to his patient; (2) the
defendant’s breach of this duty; (3) injury to the patient; and (4)
proximate causation between the breach and the injury suffered.17
In civil cases, the plaintiff must prove these elements by a
preponderance of evidence.
A medical professional has the duty to observe the standard of care
and exercise the degree of skill, knowledge, and training ordinarily
expected of other similarly trained medical professionals acting
under the same circumstances.18 A breach of the accepted standard
of care constitutes negligence or malpractice and renders the
defendant liable for the resulting injury to his patient.19
The standard is based on the norm observed by other reasonably
competent members of the profession practicing the same field of
medicine.20 Because medical malpractice cases are often highly
technical, expert testimony is usually essential to establish: (1) the
standard of care that the defendant was bound to observe under the
circumstances; (2) that the defendant’s conduct fell below the

acceptable standard; and (3) that the defendant’s failure to observe
the industry standard caused injury to his patient.21
The expert witness must be a similarly trained and experienced
physician. Thus, a pulmonologist is not qualified to testify as to the
standard of care required of an anesthesiologist22 and an autopsy
expert is not qualified to testify as a specialist in infectious
diseases.23
The petitioner failed to present an expert witness.
In ruling against the respondents, the RTC relied on the findings of
Dr. Reyes in the light of Dr. Avila’s opinion that the former’s
testimony should be given greater weight than the findings of Dr.
Ramos and Dr. Hernandez. On the other hand, the CA did not
consider Dr. Reyes or Dr. Avila as expert witnesses and disregarded
their testimonies in favor of Dr. Ramos and Dr. Hernandez. The
basic issue, therefore, is whose testimonies should carry greater
weight?
We join and affirm the ruling of the CA.
Other than their conclusion on the culpability of the respondents, the
CA and the RTC have similar factual findings. The RTC ruled
against the respondents based primarily on the following testimony
of Dr. Reyes.
Witness: Well, if I remember right during my residency in my
extensive training, during the operation of the appendix, your
Honor, it should really be sutured twice which we call double.
Court: What would be the result if there is only single?
Witness: We cannot guarranty [sic] the bleeding of the sutured blood
vessels, your Honor.
Court: So, the bleeding of the patient was caused by the single
suture?
Witness: It is possible.24
Dr. Reyes testified that he graduated from the Manila Central
University (MCU) College of Medicine and passed the medical
board exams in 1994.25 He established his personal practice at his
house clinic before being accepted as an on-the-job trainee in the
Department of Pathology at the V. Luna Hospital in 1994. In January
1996, he joined the PNP Medico-Legal Division and was assigned to
the Crime Laboratory in Camp Crame. He currently heads the
Southern Police District Medico-Legal division.26 His primary
duties are to examine victims of violent crimes and to conduct
traumatic autopsies to determine the cause of death.
After having conducted over a thousand traumatic autopsies, Dr.
Reyes can be considered an expert in traumatic autopsies or
autopsies involving violent deaths. However, his expertise in
traumatic autopsies does not necessarily make him an expert in
clinical and pathological autopsies or in surgery.
P a g e | 70
Moreover, Dr. Reyes’ cross-examination reveals that he was less
than candid about his qualifications during his initial testimony:
Atty. Castro: Dr. Reyes, you mentioned during your direct testimony
last March 5, 2002 that you graduated in March of 1994, is that
correct?
Witness: Yes, sir.
Atty. Castro: You were asked by Atty. Fajardo, the counsel for the
plaintiff, when did you finish your medical works, and you answered
the following year of your graduation which was in 1994?
Witness: Not in 1994, it was in 1984, sir.
Atty. Castro: And after you graduated Mr. Witness, were there
further study that you undergo after graduation? [sic]
Witness: It was during my service only at the police organization
that I was given the chance to attend the training, one year course.
Atty. Castro: Did you call that what you call a post graduate
internship?
Witness: Residency.
Atty. Castro: Since you call that a post graduate, you were not
undergo post graduate? [sic]
Witness: I did.
Atty. Castro: Where did you undergo a post graduate internship?
Witness: Before I took the board examination in the year 1984, sir.
Atty. Castro: That was where?
Witness: MCU Hospital, sir.
Atty. Castro: After the post graduate internship that was the time you
took the board examination?
Witness: Yes, sir.
Atty. Castro: And I supposed that you did it for the first take?
Witness: Yes, sir.
Atty. Castro: Are you sure of that?
Witness: Yes, sir.
Atty. Castro: After you took the board examination, did you pursue
any study?
Witness: During that time, no sir.

Atty. Castro: You also testified during the last hearing that "page 6
of March 5, 2002, answer of the witness: then I was accepted as on
the job training at the V. Luna Hospital at the Department of
Pathologist in 1994", could you explain briefly all of this Mr.
witness?
Witness: I was given an order that I could attend the training only as
a civilian not as a member of the AFP because at that time they were
already in the process of discharging civilian from undergoing
training.
Atty. Castro: So in the Department of Pathology, what were you
assigned to?
Witness: Only as an observer status.
Atty. Castro: So you only observed.
Witness: Yes, sir.
Atty. Castro: And on the same date during your direct testimony on
March 5, 2002, part of which reads "well if I remember right during
my residency in my extensive training during the operation of the
appendix," what do you mean by that Mr. witness?
Witness: I was referring to my internship, sir.
Atty. Castro: So this is not a residency training?
Witness: No, sir.
Atty. Castro: This is not a specialty training?
Witness: No, sir.
Atty. Castro: This was the time the year before you took the board
examination?
Witness: That’s right, sir. Yes, sir.
Atty. Castro: You were not then a license[d] doctor?
Witness: No, sir.
Atty. Castro: And you also mentioned during the last hearing shown
by page 8 of the same transcript of the stenographic notes, dated
March 5, 2002 and I quote "and that is your residence assignment?",
and you answered "yes, sir." What was the meaning of your answer?
What do you mean when you say yes, sir?
xxxx
Witness: Okay, I stayed at the barracks of the Southern Police
District Fort Bonifacio.
Atty. Castro: So this is not referring to any kind of training?
Witness: No, sir.
P a g e | 71
Atty. Castro: This is not in anyway related to appendicitis?
Witness: No, sir.27
Atty. Reyes appears to have inflated his qualifications during his
direct testimony. First, his "extensive training during [his]
residency" was neither extensive actual training, nor part of medical
residency. His assignment to the V. Luna Hospital was not as an on-
the-job trainee but as a mere observer. This assignment was also
before he was actually licensed as a doctor. Dr. Reyes also loosely
used the terms "residence" and "residency" – terms that carry a
technical meaning with respect to medical practice –during his initial
testimony28 to refer to (1) his physical place of dwelling and (2) his
internship before taking the medical board exams. This misled the
trial court into believing that he was more qualified to give his
opinion on the matter than he actually was.
Perhaps nothing is more telling about Dr. Reyes’ lack of expertise in
the subject matter than the petitioner’s counsel’s own admission
during Dr. Reyes’ cross examination.
Atty. Castro: How long were you assigned to observe with the
Department of Pathology?
Witness: Only 6 months, sir.
Atty. Castro: During your studies in the medical school, Mr.
Witness, do you recall attending or having participated or [sic] what
you call motivity mortality complex?
Atty. Fajardo: Your honor, what is the materiality?
Atty. Castro: That is according to his background, your honor. This
is a procedure which could more or less measure his knowledge in
autopsy proceedings when he was in medical school and compared
to what he is actually doing now.
Atty. Fajardo: The witness is not an expert witness, your honor.
Atty. Castro: He is being presented as an expert witness, your
honor.29
When Atty. Castro attempted to probe Dr. Reyes about his
knowledge on the subject of medical or pathological autopsies, Dr.
Fajardo objected on the ground that Dr. Reyes was not an expert in
the field. His testimony was offered to prove that Dr. Inso was
negligent during the surgery without necessarily offering him as an
expert witness.
Atty. Fajardo: x x x The purpose of this witness is to establish that
there was negligence on the surgical operation of the appendix or in
the conduct of the appendectomy by the defendant doctor on the
deceased Lilian Villaran Borromeo.30
Dr. Reyes is not an expert witness who could prove Dr. Inso’s
alleged negligence. His testimony could not have established the
standard of care that Dr. Inso was expected to observe nor assessed
Dr. Inso’s failure to observe this standard. His testimony cannot be
relied upon to determine if Dr. Inso committed errors during the

operation, the severity of these errors, their impact on Lilian’s
probability of survival, and the existence of other diseases/conditions Dr. Ramos carry far greater weight than that of Dr. Reyes. The
that might or might not have caused or contributed to Lilian’s death. petitioner’s failure to present expert witnesses resulted in his failure
The testimony of Dr. Avila also has no probative value in
determining whether Dr. Inso was at fault. Dr. Avila testified in his
capacity as an expert in medical jurisprudence, not as an expert in
medicine, surgery, or pathology. His testimony fails to shed any light due care is not immediately apparent to the layman.
on the actual cause of Lilian’s death.
On the other hand, the respondents presented testimonies from Dr.
Inso himself and from two expert witnesses in pathology and
surgery.
Dr. Ramos graduated from the Far Eastern University, Nicanor
Reyes Medical Foundation, in 1975. He took up his post-graduate
internship at the Quezon Memorial Hospital in Lucena City, before
taking the board exams. After obtaining his professional license, he
underwent residency training in pathology at the Jose R. Reyes
Memorial Center from 1977 to 1980. He passed the examination in
Anatomic, Clinical, and Physical Pathology in 1980 and was
inducted in 1981. He also took the examination in anatomic
pathology in 1981 and was inducted in 1982.31
At the time of his testimony, Dr. Ramos was an associate professor
in pathology at the Perpetual Help Medical School in Biñan, Laguna, knowledge. We have applied this doctrine in the following cases
and at the De La Salle University in Dasmariñas, Cavite. He was the involving medical practitioners:
head of the Batangas General Hospital Teaching and Training
Hospital where he also headed the Pathology Department. He also
headed the Perpetual Help General Hospital Pathology
department.32
Meanwhile, Dr. Hernandez at that time was a General Surgeon with
27 years of experience as a General Practitioner and 20 years of
experience as a General Surgeon.1âwphi1 He obtained his medical
degree from the University of Santo Tomas before undergoing five
years of residency training as a surgeon at the Veterans Memorial
Center hospital. He was certified as a surgeon in 1985. He also holds
a master’s degree in Hospital Administration from the Ateneo de
Manila University.33
He was a practicing surgeon at the: St. Luke’s Medical Center,
Fatima Medical Center, Unciano Medical Center in Antipolo,
Manila East Medical Center of Taytay, and Perpetual Help Medical
Center in Biñan.34 He was also an associate professor at the
Department of Surgery at the Fatima Medical Center, the Manila
Central University, and the Perpetual Help Medical Center. He also
chaired the Department of Surgery at the Fatima Medical Center.35 applicable to cases where the actual cause of the injury had been
Dr. Hernandez is a Fellow of the American College of Surgeons, the
Philippine College of Surgeons, and the Philippine Society of
General Surgeons. He is a Diplomate of the Philippine Board of
Surgery and a member of the Philippine Medical Association and the
Antipolo City Medical Society.36
Dr. Hernandez affirmed that Dr. Inso did not deviate from the usual
surgical procedure.37 Both experts agreed that Lilian could not have
died from bleeding of the appendical vessel. They identified Lilian’s
cause of death as massive blood loss resulting from DIC.
P a g e | 72
To our mind, the testimonies of expert witnesses Dr. Hernandez and
to prove the respondents’ negligence. The preponderance of
evidence clearly tilts in favor of the respondents.
Res ipsa loquitur is not applicable when the failure to observe
The petitioner cannot invoke the doctrine of res ipsa loquitur to shift
the burden of evidence onto the respondent. Res ipsa loquitur,
literally, "the thing speaks for itself;" is a rule of evidence that
presumes negligence from the very nature of the accident itself using
common human knowledge or experience.
The application of this rule requires: (1) that the accident was of a
kind which does not ordinarily occur unless someone is negligent;
(2) that the instrumentality or agency which caused the injury was
under the exclusive control of the person charged with negligence;
and (3) that the injury suffered must not have been due to any
voluntary action or contribution from the injured person.38 The
concurrence of these elements creates a presumption of negligence
that, if unrebutted, overcomes the plaintiff’s burden of proof.
This doctrine is used in conjunction with the doctrine of common
a. Where a patient who was scheduled for a
cholecystectomy (removal of gall stones) but was otherwise
healthy suffered irreparable brain damage after being
administered anesthesia prior to the operation.39
b. Where after giving birth, a woman woke up with a
gaping burn wound close to her left armpit;40
c. The removal of the wrong body part during the operation;
and
d. Where an operating surgeon left a foreign object (i.e.,
rubber gloves) inside the body of the patient.41
The rule is not applicable in cases such as the present one where the
defendant’s alleged failure to observe due care is not immediately
apparent to a layman.42 These instances require expert opinion to
establish the culpability of the defendant doctor. It is also not
identified or established.43
While this Court sympathizes with the petitioner’s loss, the
petitioner failed to present sufficient convincing evidence to
establish: (1) the standard of care expected of the respondent and (2)
the fact that Dr. Inso fell short of this expected standard. Considering
further that the respondents established that the cause of Lilian’s
uncontrollable bleeding (and, ultimately, her death) was a medical
disorder – Disseminated Intravascular Coagulation – we find no
reversible errors in the CA’s dismissal of the complaint on appeal.
WHEREFORE, we hereby DENY the petition for lack of merit. No
costs.

SO ORDERED.
G.R. NO. 210445, DECEMBER 07, 2015
NILO B. ROSIT, PETITIONER, V. DAVAO DOCTORS
HOSPITAL AND DR. ROLANDO G. GESTUVO,
RESPONDENT.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, 2013 1 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, 2004 3 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 hereby ordered DISMISSED.
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 dispensed with because the injury itself provides the proof of
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
P a g e | 73
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
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
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,
viz:chanRoblesvirtualLawlibrary
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 week usual healing period of the mandibular fracture so that the
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 surgery suggests that he had "chronic inflammatory lung disease
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 for this issue that Dr. Gestuvo himself referred Rosit to Dr. Pangan.
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 screw installed by Dr. Gestuvo was examined and eventually
of a patient is usually a matter of expert opinion.10
Solidum v. People of the Philippines11 provides an exception. There, affected by the first operation.
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
P a g e | 74
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. 12
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-
second element cannot be considered present. Lastly, the CA pointed
out that the X-ray examination conducted on Rosit prior to his first
compatible," implying that the injury may have been due to Rosit's
peculiar condition, thus effectively negating the presence of the third
element.13
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
In fact, the affidavit of Dr. Pangan presented by Dr. Gestuvo himself
before the trial court narrated that the same molar struck with the
operated on by Dr. Pangan. Dr. Gestuvo cannot now go back and say
that Dr. Pangan treated a molar different from that which was
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 This titanium materials according to you were already
Alright. available in the Philippines since the time of Rosit's
accident?
Witness Yes, your Honor.
xxxx
P a g e | 75
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
P a g e | 76
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.
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.
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. chanroblesvirtuallawlibrary
G.R. No. 178485
September 4, 2009PEOPLE OF THE PHILIPPINES,
Plaintiff-Appellee,
vs.MARIANO SAPIGAO, JR., Accused-Appellant.
QUISUMBING, J.:
For automatic review is the Decision1 dated July 19, 2006 of the
Court of Appeals, in CA-G.R. CR No. 01018, affirming with
modification the Decision2 dated July 28, 1999 of the Regional Trial
Court (RTC) of Urdaneta City, Branch 46, in Criminal Case No. U-
5035, finding appellant Mariano Sapigao, Jr. guilty beyond
reasonable doubt of the crime of murder.
The facts of the case, culled from the records, are as follows:
In an Information3 dated January 4, 1989, appellant Mariano
Sapigao, Jr. and Melvin Sublingo, who remains at large, were
accused of the crime of murder with the use of unlicensed firearms,
as follows:
That on or about the 22nd day of September 1987, in the afternoon,
at Barangay Carosucan Sur, municipality of Asingan, province of
Pangasinan, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then armed with Cal. .45 and
Cal. .38 Handguns, conspiring, confederating and mutually helping
each other, with deliberate intent to kill, and with treachery and
evident premeditation, did then and there wilfully, unlawfully and
feloniously, attack, assault and shoot one Alexander Turalba,
inflicting upon him, the following injuries: Gunshot wound – 3/4
cm. pt. of entrance passing between the 8th and 9th thorasaic
vertebrae, lacerating the right ventricle of the heart [bullet lodged
between the 6th left and right ribs, at the sternum]; Gunshot wound –
3/4 pt. of entrance, left parietal bone, traversing the brain with 1 inch
ill-defined edges pt. of exit, fracturing the right maxillary bone,
which caused the death of said Alexander Turalba, as a consequence,
to the damage and prejudice of his heirs.
CONTRARY to Art. 248, Revised Penal Code.
A Warrant of Arrest4 was issued against appellant and Sublingo on
October 12, 1987, but the two allegedly eluded arrest. An Alias
5 center of the school, forming a team to play basketball. While they
Warrant of Arrest was issued on December 1, 1987. Another
6 were in the process of forming the team, Melvin Sublingo arrived
Warrant of Arrest was issued on January 18, 1989 by the RTC of
Urdaneta, Pangasinan, Branch 46.
Appellant was arrested on February 8, 1993. 7 His lawyer filed a
petition for bail8 which was opposed by the government prosecutor.9 lying down. After the shooting, Sublingo ran towards the eastern
The RTC, acting on the opposition of the government prosecutor,
increased the bail bond from ₱30,000.00 to ₱50,000.00. 10 Thereafter, Sublingo and appellant left, Fabro lifted Turalba, placed the latter in
the government prosecutor, Atty. Monte P. Ignacio, filed a motion
for consolidation11 of the case which had been docketed as Criminal he was declared dead on arrival.16
P a g e | 77
Case No. U-5035 with another criminal case docketed as Criminal
Case No. U-4963 for illegal possession of firearms against the
appellant and Sublingo arising out of the same incident. The motion
was unacted upon and when called for arraignment, appellant was
absent and out on bail.12 Warrants of arrest were again issued against
him and he was finally arrested on January 27, 1999. During his
arraignment on February 9, 1999, appellant pleaded not guilty. 13
Previously, the RTC, on March 18, 1993, consolidated Criminal
Case No. U-5035 with Criminal Case No. U-4963 for illegal
possession of firearms against the same accused.14
The prosecution presented the testimonies of Dr. Leonardo Guerrero,
Cecilio Fabro, SPO4 Rodrigo Escaño, and Apolonia Turalba, the
victim’s grandmother. For its part, the defense presented the
testimonies of eyewitness Jesus Ballesteros, the appellant himself,
Ballistician and Chief of the Firearms and Explosives Unit of the
National Bureau of Investigation (NBI) Rogelio Munar, and NBI
Medico-Legal Officer Dr. Arturo Llavore.
The autopsy of the victim was conducted by Dr. Irenio G. Agapito,
Rural Health Physician of Asingan, Pangasinan. The autopsy report
states the following findings on the victim:
EXTERNAL:
Fairly developed, fairly nourished, adult male, weighing around 130
lbs., height – 5[’] 4"; Lon[g] black hair, brown complexion and
wearing maong long pants, green t-shirt, white brief[s] soaked with
blood.
INTERNAL:
GUNSHOT WOUNDS
1. 3/4 cm. Pt. of entrance passing between the 8th and 9th thorasaic
vertebrae lacerating the right ventricle of the heart and the bullet was
lodged between the 6th left and right ribs, at the sternum.
BLOOD AT THORACIC CAVITY 500 c.c.
2. 3/4 pt. of entrance – left parietal bone traversing the brain with 1
inch ill-defined edges of pt[.] of exit fracturing the right maxillary
bone.
CAUSE OF DEATH: Fatal gunshot wounds.15
Prosecution witness Cecilio Fabro claimed that on September 22,
1987, at about 3 p.m., he was with the victim Alexander Turalba at
the basketball court located at Carosucan Sur in front of the health
and immediately shot Alexander Turalba once at the back with a .38
caliber firearm. Turalba fell, face down. Melvin Sublingo fired once
more, hitting Henry Osias. Then appellant Mariano Sapigao, Jr., shot
Alexander Turalba with a .45 caliber firearm while the latter was
direction while appellant ran towards the western direction. After
a jeep and brought him to the Urdaneta Sacred Heart Hospital where

For the defense, Jesus Ballesteros, a resident of Carosucan Sur,
Asingan, Pangasinan, testified that on September 22, 1987, at about
3 p.m., he was with the appellant, who was his cousin, and several
other cousins near a basketball court at Carosucan Sur. Suddenly,
Melvin Sublingo appeared. Sublingo at first tried to shoot Cecilio
Fabro but a cousin of Fabro, Orlan Fabro, shouted "You run,
Manong, because Melvin is there already." Cecilio ran towards the
south. Alexander Turalba, who was at the midcourt, was then shot
by Melvin Sublingo with a .38 caliber firearm. Appellant was beside
Ballesteros at the time Sublingo shot Turalba twice hitting the back
and head of Turalba. Sublingo shot the head of Turalba first. When
Turalba fell down, he was shot again at the back by Sublingo.
Sublingo then ran towards the east where he met Osias. He also shot
Osias. Ballesteros denied that appellant shot Turalba. He attributed
the shooting by Sublingo to revenge because Turalba mauled
Sublingo in the morning of September 22, 1987 and while Sublingo
was being mauled by Alexander Turalba, Cecilio Fabro had poked a
knife at the head of Sublingo.17
Appellant denied shooting Alexander Turalba. He claimed that it
was Melvin Sublingo who shot Turalba twice, the first shot hitting
Turalba in the head and the second hitting Turalba at the back. 18
NBI Ballistician Rogelio Munar testified that based on the gunshot
wounds of Turalba described in the autopsy report, the wound was
produced by a .32 or .38 caliber pistol.19
Dr. Arturo Llavore testified that after examining the autopsy report,
he concluded that the gunshot wounds were inflicted by a .38 caliber
firearm.20
On July 28, 1999, the RTC rendered a decision finding appellant
guilty beyond reasonable doubt of murder. It, however, dismissed
the charges against him for illegal possession of firearms,
appreciating treachery as an aggravating circumstance in the crime
of murder. The dispositive portion of the RTC decision reads:
WHEREFORE, JUDGMENT of CONVICTION beyond reasonable
doubt is rendered against MARIANO SAPIGAO, JR. of the crime of
aggravated Murder (appreciating treachery as qualifying
circumstance) with the use of firearms and the Court sentences
Mariano Sapigao, Jr. to suffer the penalty of Reclusion Perpetua; to
indemnify the heirs of the victim the sum of ₱38,600.00 as actual
damages; plus ₱50,000.00 as moral damages and ₱20,000.00 as
exemplary damages.
Mariano Sapigao, Jr. is ACQUITTED in Crim. Case No. U-4963
(Illegal Possession of Firearm).
The Branch Clerk of Court is hereby ordered to prepare the
mittimus.
The Jail Warden, Bureau of Jail Management and Penology is
hereby ordered to deliver the person of Mariano Sapigao, Jr. to the
National Bilibid Prisons, Muntinlupa City, [within] 15 days from
receipt of this Decision.
SO ORDERED.21
P a g e | 78
Appellant appealed before this Court. Pursuant to the decision in
People v. Mateo,22 the case was transferred to the Court of Appeals
for intermediate review.
On July 19, 2006, the Court of Appeals affirmed with modification
the trial court’s decision, as follows:
WHEREFORE, in view of the foregoing, the [D]ecision dated July
28, 1999 of the Regional Trial Court of Urdaneta City, Branch 46, in
Criminal Case No. U-5035 is AFFIRMED with modification.
Accused-appellant MARIANO SAPIGAO, JR. is found GUILTY
beyond reasonable doubt of the crime of murder, qualified by
treachery, and is hereby sentenced to suffer the penalty of reclusion
perpetua, and ORDERED to pay the heirs of the victim Alexander
Turalba the following amounts: ₱50,000.00 as civil indemnity;
₱50,000.00 as moral damages; ₱25,000.00 as temperate damages
and ₱25,000.00 as exemplary damages.
SO ORDERED.23
Hence, this appeal where appellant raises the following issues in his
Supplemental Brief:
I.
THE COURT OF APPEALS ERRED IN AFFIRMING THE
FINDING OF THE TRIAL COURT THAT APPELLANT SHOT
THE VICTIM AND CAUSED HIS DEATH.
II.
THE COURT OF APPEALS ERRED IN AFFIRMING THE
FINDING OF THE TRIAL COURT THAT APPELLANT ACTED
IN CONSPIRACY WITH THE OTHER ACCUSED MELVIN
SUBLINGO.
III.
THE COURT OF APPEALS ERRED IN NOT HOLDING THAT
THE GUILT OF APPELLANT HAS NOT BEEN SHOWN
BEYOND REASONABLE DOUBT.24
The primordial issue is: Has appellant’s guilt for the crime of murder
been proven beyond reasonable doubt?
Appellant, in his Supplemental Brief,25 argues the prosecution failed
to prove that he shot the victim because: (1) Prosecution witness
Cecilio Fabro testified that the handgun used by him in shooting the
victim was a .45 caliber handgun, but the diameters at the point of
entry of the two wounds sustained by the victim were that of wounds
caused by a .38 caliber firearm;26 (2) Fabro testified that he shot the
victim at the back while the Autopsy Report stated that the wounds
of the victim were in the thoracic area and the left parietal area;27 (3)
The expert witnesses, Ballistician Munar and Dr. Llavore, are
impartial witnesses while Fabro had a motive to falsely testify
against him;28 (4) The reliance by the Court of Appeals on the rule
that the trial court is in the best position to assess the credibility of
witnesses is not applicable in this case;29 (5) Ballistician Munar and
Dr. Llavore are expert and impartial witnesses and their testimonies
are based on physical evidence and scientific fact;30 (6) The other
 P a g e | 79

accused, Melvin Sublingo, caused both wounds of the victim; 31 (7) A Yes, sir.
The path of the bullet wound that caused the wound on the head of
the victim belies the testimony of Fabro that he shot the victim while Q Where were you?
the latter was lying face down on the ground;32 (8) He had no motive
to shoot the victim;33 (9) For more than ten years, the authorities did
A We were at the basketball court, sir.
not arrest him;34 (10) The burden of proof that he shot the victim
with a .45 caliber handgun rests with the prosecution and he does not
have the burden to prove that he did not shoot the victim. 35 Q Where is that basketball court?

The prosecution, through the Office of the Solicitor General, opted A In front of the Health Center of the school, sir.
not to file a supplemental brief, explaining that its arguments on the
issues invoked had already been discussed in the brief it had Q Where is that school?
previously filed.36
A Caros[u]can Sur sir.
After review, we uphold the ruling of the Court of Appeals affirming
the guilty verdict of the trial court. Q Why were you there at that precise time and date in that
basketball court at Brgy. Caros[u]can Sur, Asingan,
Findings of facts of the trial court, its calibration of the testimonies Pangasinan?
of witnesses, its assessment of their credibility and the probative
weight of their testimonies, as well as its conclusions anchored on A Because we are going to play basketball sir.
the said findings, are accorded by the appellate court high respect if
not conclusive effect, unless the trial court ignored, misunderstood, Q Aside from you who are your companions or who are
or misconstrued facts and circumstances of substance which, if present in that basketball court?
considered, would warrant a reversal of the outcome of the case.37
A Our [t]eammate and our barangaymate but Melvin
In this case, the Court of Appeals and the RTC gave credence to the Sublingo arrived and [began shooting], sir.
testimony of prosecution witness Cecilio Fabro whose testimony
directly contradicts that of defense witness Jesus Ballesteros. We see
Q Who are [those] present at the basketball court?
no reason to deviate from this finding.

A Melvin Sublingo, Mariano Sapigao, Jr. and our

It is well settled that the evaluation of the credibility of witnesses
teammate, sir.
and their testimonies is a matter best undertaken by the trial court
because of its unique opportunity to observe the witnesses firsthand
and to note their demeanor, conduct, and attitude under grilling Q How about Alexander T[u]ralba?
examination. These are important in determining the truthfulness of
witnesses and in unearthing the truth, especially in the face of A He was there sir.
conflicting testimonies.38 For, indeed, the emphasis, gesture, and
inflection of the voice are potent aids in ascertaining the witness’ Q While you [were] forming that basketball team in the
credibility, and the trial court has the opportunity and can take afternoon of September 22, 1987, what happened Mr.
advantage of these aids. These cannot be incorporated in the record Witness?
so that all that the appellate court can see are the cold words of the
witness contained in transcript of testimonies with the risk that some A Melvin Sublingo drew a gun and shot Alexander
of what the witness actually said may have been lost in the process T[u]ralba sir.
of transcribing. As correctly stated by an American court, "There is
an inherent impossibility of determining with any degree of accuracy
what credit is justly due to a witness from merely reading the words Q How far were you then at that time when Melvin
spoken by him, even if there were no doubt as to the identity of the Sublingo [shot] Alexander T[u]ralba?
words. However artful a corrupt witness may be, there is generally,
under the pressure of a skillful cross-examination, something in his A Three (3) meters sir.
manner or bearing on the stand that betrays him, and thereby
destroys the force of his testimony. Many of the real tests of truth by Q [What] part of Alexander T[u]ralba’s body was hit?
which the artful witness is exposed in the very nature of things
cannot be transcribed upon the record, and hence they can never be A [The] heart sir.
considered by the appellate court." 39
Q Do you know what firearm was used by Melvin
Cecilio Fabro testified: Sublingo?

Q Mr. Witness, at about 3:00 o’clock in the afternoon of A .38 Calibre sir.
September 22, 1987, do you remember where you were?

Q What happened to Alexander T[u]ralba when he was hit
with a .38 Calibre?
A He died sir.
Q [After] Alexander T[u]ralba was hit, what happened
to Alexander T[u]ralba?
A He fell down on the ground, sir, facing down.
Q You mean when Alexander T[u]ralba fell down, his face
[was] facing down?
A Yes sir.
Q How about Melvin Sublingo, what did he do when
Alexander T[u]ralba was shot?
A He again fired his gun, sir.
Q Who fired that gun?
A Melvin Sublingo sir.
Q Was Alexander T[u]ralba hit?
A No more because the place where he fired the gun is the
place where he ran and Osias was hit, sir.
Q You said the first time that Melvin Sublingo shot
Alexander T[u]ralba, [the latter] fell down and was hit,
what did Melvin Sublingo do after that?
A Melvin Sublingo ran sir.
Q To what direction did Melvin Sublingo run?
A [Towards] the eastern direction sir.
Q When Melvin Sublingo ran and you saw Alexander
T[u]ralba [fall] down, what happened after that?
A I saw Mariano Sapigao, Jr. [shoot] Alexander
T[u]ralba while [the latter was] lying down facing the
ground sir.
Q You mean Mariano Sapigao, Jr. shot Alexander T[u]ralba appellant was never presented as evidence and no expert witness was
while the latter was lying down?
A Yes sir.
Q [What part of Alexander Turalba’s body] was hit
when Mariano Sapigao, Jr. shot him?
A Head sir.
Q How many times?
P a g e | 80
A Once only sir.
Q How far were you [from] the accused Mariano Sapigao,
Jr. when the latter fired towards Alexander T[u]ralba?
A Five (5) meters sir.
Q What kind of gun was used by Mariano Sapigao, Jr.?
A .45 Caliber sir.
Q How do you know that it was .45 caliber?
A Because I can identify guns sir.40 (Emphasis supplied.)
The RTC correctly ascertained that moved by common design and
unity of purpose, Melvin Sublingo first shot Alexander Turalba at
the back, and as a result thereof, Turalba fell to the ground, face
down. While Turalba was lying face down, wounded, and in order to
ensure that Turalba was dead, the appellant fired at him once using a
.45 caliber firearm and hit Turalba’s head. The autopsy report
conformed with the testimony of Fabro. The RTC noted that Fabro is
credible since he narrated in details and without hesitation. It was
not inclined to take seriously the defense’s assertion that Melvin
Sublingo alone, without the participation of the appellant, shot
Turalba, after finding that the testimony of Fabro is more credible
than the testimonies of Ballesteros and the appellant who are first
cousins. We affirm this finding. Ballesteros’ testimony that Sublingo
first shot the victim on the head and then afterwards on the back
appears illogical since the first shot on the head already ensured the
death of the victim. Fabro’s testimony that the victim was first shot
on the back and then afterwards on the head to ensure his demise,
appears more accurate.
The Court of Appeals, after carefully and assiduously examining the
records of the case, supported the conclusion reached by the RTC. It
ruled that although the accused sought to denigrate the testimony of
Fabro by alleging that they were previous rivals over the love of the
same woman, the defense failed to present compelling evidence to
support the imputation of ill motive. It further ruled that although the
defense capitalized on the testimony of Dr. Leonardo Guerrero, who
testified on the possibility that only one kind of firearm was used
since the wounds are of similar diameter, and the testimonies of NBI
Ballistics Expert Rogelio G. Munar and NBI Medico-Legal Officer
Dr. Arturo G. Llavore to prove that the diameter of the gunshot
wounds sustained by the victim, which is 3/4 or .75 centimeter,
could not have been produced by a .45 caliber pistol, the appellate
court held that the gun allegedly seen as held and used by the
able to physically examine the same. Hence, there was no way of
knowing the size of the wound it would have produced. The
appellate court also found that even the testimonies of the expert
witnesses of the defense were inconclusive. The NBI ballistics
expert, Munar, although admitting that he is not well versed on sizes
of wounds, testified that the difference in size of gunshot wounds
produced by .38 and .45 caliber guns is negligible. Dr. Llavore, the
NBI medico-legal expert, testified that the entrance of the wound
caused by a caliber .45 handgun is similar to that of a wound caused
by a .38 caliber handgun, except in the cross-diameter thereof where

the wound is smaller in case of a .38 caliber gun and larger in case of present receipts to prove the actual losses suffered, such actual
a .45 caliber.
To put to rest the question of whether the .45 caliber handgun
allegedly used by the appellant in shooting the victim on the head
could produce an entrance wound with a 3/4 or .75 centimeter
diameter, we have held that the diameter of the entrance of gunshot
wounds could be smaller or larger, depending on certain factors. The
factors which could make the wound of entrance bigger than the
caliber include: (1) shooting in contact or near fire; (2) deformity of
the bullet which entered; (3) a bullet which might have entered the
skin sidewise; and (4) an acute angular approach of the bullet.
Where the wound of entrance is smaller than the firearm’s caliber,
the same may be attributed to the fragmentation of the bullet before
entering the skin or to a contraction of the elastic tissues of the
skin.41 Thus, it is not impossible for a .45 caliber handgun to produce
an entrance wound smaller than expected. The appellant’s defense of
denial therefore crumbles. In the face of the positive testimony of
prosecution witness Fabro, as corroborated by the autopsy report,
there is no doubt that appellant is guilty of the crime charged. Truly,
what stands out from the evidence on record is the fact that to ensure
the death of the victim, the appellant shot him on the head while the
victim was already lying down.
In view of the foregoing, the Court is convinced that the prosecution
has established by proof beyond reasonable doubt the criminal
culpability of the appellant.1avvphi1
As for the penalty and civil liability, the Court of Appeals correctly
held:
Under Article 248 of the Revised Penal Code, the essential elements
of murder are: (1) a person was killed; (2) the accused killed him; (3)
the killing was attended by any of the qualifying circumstances
mentioned in Article 248; and (4) the killing is neither parricide nor
infanticide. All the elements of murder, as alleged in the
Information, have been sufficiently established by the prosecution in
the present case.
The offense in the present case was committed on September 22,
1987, prior to the enactment of Republic Act No. 7659 (The Death
Penalty Law) on December 13, 1993. The applicable penalty for
murder prior to the enactment of R.A. 7659 is reclusion temporal
maximum to death. There being no aggravating or mitigating
circumstances, the penalty imposable on accused-appellant in
accordance with Art. 64(1) of the Revised Penal Code should be the
medium period, which is, reclusion perpetua. The penalty of
reclusion perpetua being indivisible, the Indeterminate Sentence
Law does not apply.
Civil Liability
Before the Court is a Petition for Review on Certiorari under Rule
The trial court awarded the heirs of the victim Alexander Turalba the 45 of the Rules of Court filed by Dr. Fe Cayao-Lasam (petitioner)
sum of P38,600.00 as actual damages, P50,000.00 as moral damages seeking to annul the Decision1 dated July 4, 2003 of the Court of
and P20,000.00 as exemplary damages. Appeals (CA) in CA-G.R. SP No. 62206.
We delete the award of actual damages. To seek recovery of actual
damages, it is necessary to prove the actual amount of loss with
reasonable degree of certainty premised upon competent proof and
on the best evidence obtainable. Since the prosecution did not
P a g e | 81
damages cannot be awarded.
However, while no actual damages may be awarded because no
competent evidence in the form of receipts was presented, temperate
damages may be recovered under Article 2224 of the Civil Code as
the Court finds that some pecuniary loss has been suffered but its
amount cannot be proved with certainty. Consistent with current
jurisprudence, the amount of P25,000.00 is awarded to the victim’s
heirs as temperate damages considering that it is not disputed that
the family incurred expenses for the wake and burial of the victim.
Consistent with prevailing jurisprudence, We award P50,000.00 by
way of indemnity ex delicto to the heirs of Alexander Turalba. When
death occurs as a result of the crime, the heirs of the deceased are
entitled to such amount as civil indemnity for death without need of
any evidence or proof of damages.
The award of P50,000.00 as moral damages is sustained, being
consistent with recent cases. Moral damages are awarded without
further proof other than the death of the victim.1avvphi1
The victim’s heirs are likewise entitled to exemplary damages in the
amount of P25,000.00, given the presence of treachery which
qualified the killing to murder. Under Article 2230 of the Civil Code
which allows the award of exemplary damages as part of the civil
liability when the crime was committed with one or more
aggravating circumstances, the term aggravating circumstance as
used therein should be construed in its generic sense since it did not
specify otherwise.42
WHEREFORE, the assailed Decision dated July 19, 2006 of the
Court of Appeals in CA-G.R. CR No. 01018 affirming with
modification the judgment of conviction of the Regional Trial Court
of Urdaneta City, Branch 46 is AFFIRMED. Appellant Mariano
Sapigao, Jr. is hereby found GUILTY of the crime of murder,
qualified by treachery, and sentenced to suffer the penalty of
reclusion perpetua with the accessory penalties provided for by law.
He is further ORDERED to pay the heirs of the victim Alexander
Turalba ₱50,000 as civil indemnity, ₱50,000 as moral damages,
₱25,000 as temperate damages, and ₱25,000 as exemplary
damages.SO ORDERED.
G.R. No. 159132 December 18, 2008FE CAYAO-
LASAM, petitioner, vs.
SPOUSES CLARO and EDITHA RAMOLETE,
respondents.*
AUSTRIA-MARTINEZ, J.:
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 sonogram2 was then conducted on Editha
revealing the fetus’ weak cardiac pulsation.3 The following day,
Editha’s repeat pelvic sonogram4 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 latter’s 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 hysterectomy6 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 Complaint7 for Gross Negligence and
Malpractice against petitioner before the Professional Regulations
Commission (PRC).
Respondents alleged that Editha’s hysterectomy was caused by
petitioner’s unmitigated negligence and professional incompetence
in conducting the D&C procedure and the petitioner’s failure to
remove the fetus inside Editha’s womb.8 Among the alleged acts of
negligence were: first, petitioner’s 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 Editha’s
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 latter’s 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 latter’s 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
P a g e | 82
advised Editha to return for check-up on August 5, 1994, which the
latter failed to do.
Petitioner contended that it was Editha’s gross negligence and/or
omission in insisting to be discharged on July 31, 1994 against
doctor’s 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 Editha’s 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 Decision16 reversing the
findings of the Board and revoking petitioner’s 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 certiorari18 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
2620 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. PRC’S 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 PETITIONER’S LICENSE
TO PRACTICE MEDICINE WITHOUT AN EXPERT
TESTIMONY TO SUPPORT ITS CONCLUSION AS TO
THE CAUSE OF RESPONDENT EDITHAT [SIC]
RAMOLETE’S INJURY;
P a g e | 83
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 EDITHA’S 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
28
that may be exercised only in the manner prescribed by law. 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 The phrase "among these agencies" confirms that the enumeration
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 Batas Pambansa (B.P.) Blg. 129 conferred upon the CA exclusive
resolution may file a notice of appeal from the decision, appellate jurisdiction over appeals from decisions of the PRC. The
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
appellant’s brief or memorandum on appeal, and paying the
appeal and legal research fees. x x x29
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
30
legislative intent to the contrary, for any interpretation. 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 4332 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 PRC decision for being without an expert testimony to support its
of Rule 43 just because it is not mentioned therein.34
P a g e | 84
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.
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
38
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
conclusion and to establish the cause of Editha’s 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 Editha’s 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 Editha’s 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 Editha’s 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?
P a g e | 85
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 don’t think so, because it is the
triggering factor for the rupture, it could have–the 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 ½
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 don’t 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 Editha’s uterus.
During his cross-examination, Dr. Manalo testified on how he would
have addressed Editha’s 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 there’s 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 right–scanty.
Q: And you would not mind checking those scant or
those little parts that were removed?
 P a g e | 86

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. It’s 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 rectified if Editha followed the petitioner’s order to return for a
them?
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
complainant’s 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
check-up on August 4, 1994. Dr. Manalo stated:

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, that’s 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 applied the corresponding treatment which could have prevented the
nothing irregular in the way the petitioner dealt with Editha.
Medical malpractice, in our jurisdiction, is often brought as a civil
54
action for damages under Article 2176 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 plaintiff’s own negligence was the
immediate and proximate cause of his injury, he cannot injury. Difficulty seems to be apprehended in deciding which acts
recover damages. But if his negligence was only
contributory, the immediate and proximate cause of the
injury being the defendant’s lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the
damages to be awarded.
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 ½
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 petitioner’s 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 Editha’s own injury. Had Editha
returned, petitioner could have conducted the proper medical tests
and procedure necessary to determine Editha’s health condition and
rupture of Editha’s uterus. The D&C procedure having been
conducted in accordance with the standard medical practice, it is
clear that Editha’s 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 defendant’s negligence, is the proximate cause of the
59
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 plaintiff’s 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 Editha’s injury was her own omission when she did
not return for a follow-up check up, in defiance of petitioner’s
orders. The immediate cause of Editha’s 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 petitioner’s
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
consequences68 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.
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
P a g e | 87
RAMOS, petitioners,
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 a g e | 88
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
P a g e | 89
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
P a g e | 90
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
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 this, the
petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look
into the merits of the case. For a more logical presentation of the
discussion we shall first consider the issue on the applicability of the
doctrine of res ipsa loquitur to the instant case. Thereafter, the first
two assigned errors shall be tackled in relation to the res ipsa
loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing
or the transaction speaks for itself." The phrase "res ipsa loquitur'' is
a maxim for the rule that the fact of the occurrence of an injury,
taken with the surrounding circumstances, may permit an inference
or raise a presumption of negligence, or make out a 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
P a g e | 91
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 loquitur is not available in a malpractice suit if the only showing is
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 the process of the operation any extraordinary incident or unusual
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 interventions, the doctrine of res ipsa loquitur may be utilized and
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 Erlinda in her brain prior to a scheduled gall bladder operation
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 where the Kansas Supreme Court in applying the res ipsa loquitur
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
P a g e | 92
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
that the desired result of an operation or treatment was not
accomplished. 40 The real question, therefore, is whether or not in
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
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
presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs. Bridwell, 43
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.
 P a g e | 93

Upon all the facts, conditions and circumstances In sustaining the position of private respondents, the Court of
alleged in Count II it is held that a cause of action Appeals relied on the testimonies of Dra. Gutierrez, Dra. Calderon
is stated under the doctrine of res ipsa loquitur. 44 and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez,
the Court of Appeals rationalized that she was candid enough to
Indeed, the principles enunciated in the aforequoted case apply with admit that she experienced some difficulty in the endotracheal
equal force here. In the present case, Erlinda submitted herself for intubation 45 of the patient and thus, cannot be said to be covering
cholecystectomy and expected a routine general surgery to be her negligence with falsehood. The appellate court likewise opined
performed on her gall bladder. On that fateful day she delivered her that private respondents were able to show that the brain damage
person over to the care, custody and control of private respondents sustained by Erlinda was not caused by the alleged faulty intubation
who exercised complete and exclusive control over her. At the time but was due to the allergic reaction of the patient to the drug
of submission, Erlinda was neurologically sound and, except for a Thiopental Sodium (Pentothal), a short-acting barbiturate, as
few minor discomforts, was likewise physically fit in mind and testified on by their expert witness, Dr. Jamora. On the other hand,
body. However, during the administration of anesthesia and prior to the appellate court rejected the testimony of Dean Herminda Cruz
the performance of cholecystectomy she suffered irreparable damage offered in favor of petitioners that the cause of the brain injury was
to her brain. Thus, without undergoing surgery, she went out of the traceable to the wrongful insertion of the tube since the latter, being
operating room already decerebrate and totally incapacitated. a nurse, was allegedly not knowledgeable in the process of
Obviously, brain damage, which Erlinda sustained, is an injury intubation. In so holding, the appellate court returned a verdict in
which does not normally occur in the process of a gall bladder favor of respondents physicians and hospital and absolved them of
operation. In fact, this kind of situation does not in the absence of any liability towards Erlinda and her family.
negligence of someone in the administration of anesthesia and in the
use of endotracheal tube. Normally, a person being put under We disagree with the findings of the Court of Appeals. We hold that
anesthesia is not rendered decerebrate as a consequence of private respondents were unable to disprove the presumption of
administering such anesthesia if the proper procedure was followed. negligence on their part in the care of Erlinda and their negligence
Furthermore, the instruments used in the administration of was the proximate cause of her piteous condition.
anesthesia, including the endotracheal tube, were all under the
exclusive control of private respondents, who are the physicians-in- In the instant case, the records are helpful in furnishing not only the
charge. Likewise, petitioner Erlinda could not have been guilty of logical scientific evidence of the pathogenesis of the injury but also
contributory negligence because she was under the influence of in providing the Court the legal nexus upon which liability is based.
anesthetics which rendered her unconscious. As will be shown hereinafter, private respondents' own testimonies
which are reflected in the transcript of stenographic notes are replete
Considering that a sound and unaffected member of the body (the of signposts indicative of their negligence in the care and
brain) is injured or destroyed while the patient is unconscious and management of Erlinda.
under the immediate and exclusive control of the physicians, we
hold that a practical administration of justice dictates the application With regard to Dra. Gutierrez, we find her negligent in the care of
of res ipsa loquitur. Upon these facts and under these circumstances Erlinda during the anesthesia phase. As borne by the records,
the Court would be able to say, as a matter of common knowledge respondent Dra. Gutierrez failed to properly intubate the patient.
and observation, if negligence attended the management and care of This fact was attested to by Prof. Herminda Cruz, Dean of the
the patient. Moreover, the liability of the physicians and the hospital Capitol Medical Center School of Nursing and petitioner's sister-in-
in this case is not predicated upon an alleged failure to secure the law, who was in the operating room right beside the patient when the
desired results of an operation nor on an alleged lack of skill in the tragic event occurred. Witness Cruz testified to this effect:
diagnosis or treatment as in fact no operation or treatment was ever
performed on Erlinda. Thus, upon all these initial determination a
ATTY. PAJARES:
case is made out for the application of the doctrine of res ipsa
loquitur.
Q: In particular, what did Dra.
Perfecta Gutierrez do, if any on
Nonetheless, in holding that res ipsa loquitur is available to the
the patient?
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 A: In particular, I could see that
own light and scrutinized in order to be within the res ipsa loquitur she was intubating the patient.
coverage.
Q: Do you know what happened
Having in mind the applicability of the res ipsa loquitur doctrine and to that intubation process
the presumption of negligence allowed therein, the Court now comes administered by Dra. Gutierrez?
to the issue of whether the Court of Appeals erred in finding that
private respondents were not negligent in the care of Erlinda during ATTY. ALCERA:
the anesthesia phase of the operation and, if in the affirmative,
whether the alleged negligence was the proximate cause of Erlinda's She will be incompetent Your
comatose condition. Corollary thereto, we shall also determine if the Honor.
Court of Appeals erred in relying on the testimonies of the witnesses
for the private respondents. COURT:

Witness may answer if she
knows.
A: As have said, I was with the
patient, I was beside the
stretcher holding the left hand of
the patient and all of a sudden
heard some remarks coming
from Dra. Perfecta Gutierrez
herself. She was saying "Ang
hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki
ang tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear
those words "lumalaki ang
tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase
"lumalaki ang tiyan," what did
you notice on the person of the
patient?
A: I notice (sic) some bluish
discoloration on the nailbeds of
the left hand where I was at.
Q: Where was Dr. Orlino
Ho[s]aka then at that particular
time?
A: I saw him approaching the
patient during that time.
Q: When he approached the
patient, what did he do, if any?
A: He made an order to call on
the anesthesiologist in the person In other words, what the Court of Appeals is trying to impress is that
of Dr. Calderon.
Q: Did Dr. Calderon, upon being intubation was a success.
called, arrive inside the
operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the
patient.
P a g e | 94
Q: What happened to the
patient?
A: When Dr. Calderon try (sic)
to intubate the patient, after a
while the patient's nailbed
became bluish and I saw the
patient was placed in
trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why
the patient was placed in that
trendelenburg position?
A: As far as I know, when a
patient is in that position, there
is a decrease of blood supply to
the brain. 46
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's testimony in
the trial court by declaring that:
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 notice of the fact that
nurses do not, and cannot, intubate. Even on the
assumption that 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
being a nurse, and considered a layman in the process of intubation,
witness Cruz is not competent to testify on whether or not the
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 clinical procedure, hoping that she could get away with it.
in inserting the tube?
P a g e | 95
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
Respondent Dra. Gutierrez tried to muddle the difference between an
 P a g e | 96

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:
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).

A: As I said in my previous The inappropriateness and absurdity of accepting Dr. Jamora's

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
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:

However, the exact opposite is true. In an emergency procedure, Q: In your line of expertise on
there is hardly enough time available for the fastidious demands of pulmonology, did you have any
pre-operative procedure so that an anesthesiologist is able to see the occasion to use pentothal as a
patient only a few minutes before surgery, if at all. Elective method of management?
procedures, on the other hand, are operative procedures that can wait
for days, weeks or even months. Hence, in these cases, the DR. JAMORA:
anesthesiologist possesses the luxury of time to be at the patient's
beside to do a proper interview and clinical evaluation. There is A: We do it in conjunction with
ample time to explain the method of anesthesia, the drugs to be used, the anesthesiologist when they
and their possible hazards for purposes of informed consent. have to intubate our patient.
Usually, the pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed and Q: But not in particular when
cooperative.
you practice pulmonology?

Erlinda's case was elective and this was known to respondent Dra.
A: No.
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 Q: In other words, your
herself admitted that she had seen petitioner only in the operating knowledge about pentothal is
room, and only on the actual date of the cholecystectomy. She based only on what you have
negligently failed to take advantage of this important opportunity. read from books and not by your
As such, her attempt to exculpate herself must fail. own personal application of the
medicine pentothal?
Having established that respondent Dra. Gutierrez failed to perform
pre-operative evaluation of the patient which, in turn, resulted to a A: Based on my personal
wrongful intubation, we now determine if the faulty intubation is experience also on pentothal.
truly the proximate cause of Erlinda's comatose condition.
Q: How many times have you
Private respondents repeatedly hammered the view that the cerebral used pentothal?
anoxia which led to Erlinda's coma was due to bronchospasm 59
mediated by her allergic response to the drug, Thiopental Sodium, A: They used it on me. I went
introduced into her system. Towards this end, they presented Dr. into bronchospasm during my
Jamora, a Fellow of the Philippine College of Physicians and appendectomy.
Diplomate of the Philippine Specialty Board of Internal Medicine,
 P a g e | 97

Q: And because they have used In view of the evidence at hand, we are inclined to believe
it on you and on account of your petitioners' stand that it was the faulty intubation which was the
own personal experience you proximate cause of Erlinda's comatose condition.
feel that you can testify on
pentothal here with medical Proximate cause has been defined as that which, in natural and
authority? continuous sequence, unbroken by any efficient intervening cause,
produces injury, and without which the result would not have
A: No. That is why I used occurred. 64 An injury or damage is proximately caused by an act or
references to support my claims. a failure to act, whenever it appears from the evidence in the case,
61 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
An anesthetic accident caused by a rare drug-induced bronchospasm was either a direct result or a reasonably probable consequence of
properly falls within the fields of anesthesia, internal medicine- the act or omission. 65 It is the dominant, moving or producing
allergy, and clinical pharmacology. The resulting anoxic cause.
encephalopathy belongs to the field of neurology. While admittedly,
many bronchospastic-mediated pulmonary diseases are within the Applying the above definition in relation to the evidence at hand,
expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic faulty intubation is undeniably the proximate cause which triggered
drug-induced, allergic mediated bronchospasm alleged in this case is the chain of events leading to Erlinda's brain damage and, ultimately,
within the disciplines of anesthesiology, allergology and her comatosed condition.
pharmacology. On the basis of the foregoing transcript, in which the
pulmonologist himself admitted that he could not testify about the Private respondents themselves admitted in their testimony that the
drug with medical authority, it is clear that the appellate court erred first intubation was a failure. This fact was likewise observed by
in giving weight to Dr. Jamora's testimony as an expert in the witness Cruz when she heard respondent Dra. Gutierrez remarked,
administration of Thiopental Sodium. "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal
The provision in the rules of evidence 62 regarding expert witnesses distention on the body of Erlinda. The development of abdominal
states: distention, together with respiratory embarrassment indicates that the
endotracheal tube entered the esophagus instead of the respiratory
Sec. 49. Opinion of expert witness. — The opinion tree. In other words, instead of the intended endotracheal intubation
of a witness on a matter requiring special what actually took place was an esophageal intubation. During
knowledge, skill, experience or training which he intubation, such distention indicates that air has entered the
is shown to possess, may be received in evidence. gastrointestinal tract through the esophagus instead of the lungs
through the trachea. Entry into the esophagus would certainly cause
Generally, to qualify as an expert witness, one must have acquired some delay in oxygen delivery into the lungs as the tube which
carries oxygen is in the wrong place. That abdominal distention had
special knowledge of the subject matter about which he or she is to
been observed during the first intubation suggests that the length of
testify, either by the study of recognized authorities on the subject or
time utilized in inserting the endotracheal tube (up to the time the
by practical experience. 63 Clearly, Dr. Jamora does not qualify as
tube was withdrawn for the second attempt) was fairly significant.
an expert witness based on the above standard since he lacks the
necessary knowledge, skill, and training in the field of Due to the delay in the delivery of oxygen in her lungs Erlinda
anesthesiology. Oddly, apart from submitting testimony from a showed signs of cyanosis. 66 As stated in the testimony of Dr.
Hosaka, the lack of oxygen became apparent only after he noticed
specialist in the wrong field, private respondents' intentionally
that the nailbeds of Erlinda were already blue. 67 However, private
avoided providing testimony by competent and independent experts
respondents contend that a second intubation was executed on
in the proper areas.
Erlinda and this one was successfully done. We do not think so. No
evidence exists on record, beyond private respondents' bare claims,
Moreover, private respondents' theory, that Thiopental Sodium may which supports the contention that the second intubation was
have produced Erlinda's coma by triggering an allergic mediated successful. Assuming that the endotracheal tube finally found its
response, has no support in evidence. No evidence of stridor, skin way into the proper orifice of the trachea, the same gave no
reactions, or wheezing — some of the more common accompanying guarantee of oxygen delivery, the hallmark of a successful
signs of an allergic reaction — appears on record. No laboratory data intubation. In fact, cyanosis was again observed immediately after
were ever presented to the court. the second intubation. Proceeding from this event (cyanosis), it
could not be claimed, as private respondents insist, that the second
In any case, private respondents themselves admit that Thiopental intubation was accomplished. Even granting that the tube was
induced, allergic-mediated bronchospasm happens only very rarely. successfully inserted during the second attempt, it was obviously too
If courts were to accept private respondents' hypothesis without late. As aptly explained by the trial court, Erlinda already suffered
supporting medical proof, and against the weight of available brain damage as a result of the inadequate oxygenation of her brain
evidence, then every anesthetic accident would be an act of God. for about four to five minutes. 68
Evidently, the Thiopental-allergy theory vigorously asserted by
private respondents was a mere afterthought. Such an explanation The above conclusion is not without basis. Scientific studies point
was advanced in order to advanced in order to absolve them of any out that intubation problems are responsible for one-third (1/3) of
and all responsibility for the patient's condition. 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
P a g e | 98
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.
P a g e | 99
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
P a g e | 100
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.
[G.R. No. 118141. September 5, 1997]
LEONILA GARCIA-RUEDA, Petitioner, v. 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.
ROMERO, J.:May this Court review the findings of the Office of
the Ombudsman? The general rule has been enunciated in Ocampo
v. Ombudsman 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. chanroblesvirtuallawlibrary
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 against Prosecutors
Guerrero, Macaraeg, and Arizala for manifest partiality in favor of
Dr. Reyes before the Office of the Ombudsman. However, on July
P a g e | 101
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. chanroblesvirtuallawlibrary
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.
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. 6chanroblesvirtuallawlibrary
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. 7chanroblesvirtuallawlibrary
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.9chanroblesvirtuallawlibrary
 P a g e | 102

Probable cause is a reasonable ground of presumption that a matter Moreover, in malpractice or negligence cases involving the
is, or may be, well founded, such a state of facts in the mind of the administration of anaesthesia, the necessity of expert testimony and
prosecutor as would lead a person of ordinary caution and prudence the availability of the charge of res ipsa loquitur to the plaintiff,
to believe, or entertain an honest or strong suspicion, that a thing is have been applied in actions against anaesthesiologists to hold the
so. The term does not mean actual and positive cause nor does it defendant liable for the death or injury of a patient under excessive
import absolute certainty. It is merely based on opinion and or improper anaesthesia.16 Essentially, it requires two-pronged
reasonable belief. Thus, a finding of probable cause does not require evidence: evidence as to the recognized standards of the medical
an inquiry into whether there is sufficient evidence to procure a community in the particular kind of case, and a showing that the
conviction. It is enough that it is believed that the act or omission physician in question negligently departed from this standard in his
complained of constitutes the offense charged. Precisely, there is a treatment.17chanroblesvirtuallawlibrary
trial for the reception of evidence of the prosecution in support of the
charge.10chanroblesvirtuallawlibrary Another element in medical negligence cases is causation which is
divided into two inquiries: whether the doctors actions in fact caused
In the instant case, no less than the NBI pronounced after conducting the harm to the patient and whether these were the proximate cause
an autopsy that there was indeed negligence on the part of the of the patients injury. Indeed here, a causal connection is discernible
attending physicians in administering the anaesthesia. 11 The fact of from the occurrence of the victims death after the negligent act of
want of competence or diligence is evidentiary in nature, the veracity the anaesthesiologist in administering the anesthesia, a fact which, if
of which can best be passed upon after a full-blown trial for it is confirmed, should warrant the filing of the appropriate criminal case.
virtually impossible to ascertain the merits of a medical negligence To be sure, the allegation of negligence is not entirely baseless.
case without extensive investigation, research, evaluation and Moreover, the NBI deduced that the attending surgeons did not
consultations with medical experts. Clearly, the City Prosecutors are conduct the necessary interview of the patient prior to the operation.
not in a competent position to pass judgment on such a technical It appears that the cause of the death of the victim could have been
matter, especially when there are conflicting evidence and findings. averted had the proper drug been applied to cope with the symptoms
The bases of a partys accusation and defenses are better ventilated at of malignant hyperthermia. Also, we cannot ignore the fact that an
the trial proper than at the preliminary investigation. antidote was readily available to counteract whatever deleterious
effect the anaesthesia might produce. 19 Why these precautionary
A word on medical malpractice or negligence cases. measures were disregarded must be sufficiently explained.

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 2. The public officer committed the prohibited act during the
have done, or that he or she did something that a reasonably prudent performance of his official duty or in relation to his public position;
provider would not have done; and that that failure or action caused
injury to the patient.12chanroblesvirtuallawlibrary
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
14
malpractice. 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.15chanroblesvirtuallawlibrary
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;
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. 20chanroblesvirtuallawlibrary
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. 22chanroblesvirtuallawlibrary
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.
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.
DAVIDE, JR., J.:p 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 Hammurabi1 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." 2 Subsequently, Hippocrates3 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 if the preservation of life and maintenance of the health of
the people.4
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 decision5 of the Court of Appeals of
11 May 1994 in CA-G.R. CV No. 30851, which reversed the
decision6 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:
P a g e | 103
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 caesarean
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 that 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 despite the
medications administered by Dr. Batiquin. When
the pains became 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 results of all those
examinations impelled Dr. Kho to suggest that
Mrs. Villegas submit to another surgery to which
the latter agreed. All told, the trial court held in favor of the petitioners herein.
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 material 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, 1988.7
The piece of rubber allegedly found near private respondent Flotilde
Villegas's 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,8 it was not mentioned in the pathologist's Surgical
Pathology Report.9
Aside from Dr. Kho's testimony, the evidence which mentioned the
piece of rubber are a Medical Certificate,10 a Progress Record,11 an
Anesthesia Record,12 a Nurse's Record,13 and a Physician's
Discharge Summary.14 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 The appellate court then ruled:
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. . . ."15
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,16 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. 17
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."18 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
P a g e | 104
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.19
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's 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 caesarean 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 appellant; 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.20
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

caused infection, placed the life of appellant
Flotilde in jeopardy and caused appellant 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 costs of litigation.
SO ORDERED.21
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.22
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. 23
(emphasis 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
P a g e | 105
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. 24
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's abdomen, and that she sent it to a
laboratory and then to Cebu City for examination by a pathologist.25
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 first-hand 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. 26
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 admissible27 but it carries no
probative value.28 Nevertheless, assuming otherwise, Dr. Batiquin's
statement cannot belie the fact that Dr. Kho found a piece of rubber
near private respondent Villegas's 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's 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
 P a g e | 106

that the whole of his uncorroborated testimony be rejected, but such control, and that the accident
portions thereof deemed worthy of belief may be credited.29 was one which ordinary does not
happen in absence of negligence.
It is here worth noting that the trial court paid heed to the following Res ipsa loquitur is [a] rule of
portions of Dr. Batiquin's testimony: that no rubber drain was used evidence whereby negligence of
in the operation,30 and that there was neither any tear on Dr. [the] alleged wrongdoer may be
Batiquin's gloves after the operation nor blood smears on her hands inferred from [the] mere fact that
upon removing her gloves.31 Moreover, the trial court pointed out [the] accident happened
that the absence of a rubber drain was corroborated by Dr. Doris Sy, provided [the] character of [the]
Dr. Batiquin's assistant during the operation on private respondent accident and circumstances
Villegas.32 But the trial court failed to recognize that the assertions attending it lead reasonably to
of Drs. Batiquin and Sy were denials or negative testimonies. Well- belief that in [the] absence of
settled is the rule that positive testimony is stronger than negative negligence it would not have
testimony.33 Of course, as the petitioners advocate, such positive occurred and that thing which
testimony must come from a credible source, which leads us to the caused injury is shown to have
second assigned error. been under [the] management
and control of [the] alleged
wrongdoer. . . . Under [this]
While the petitioners claim that contradictions and falsities
punctured Dr. Kho's testimony, a regarding of the said testimony doctrine
. . . the happening of an injury
reveals no such infirmity and establishes Dr. Kho as a credible
permits an inference of
witness. Dr. Kho was frank throughout her turn on the witness stand.
negligence where plaintiff
Furthermore, no motive to state any untruth was ever imputed
produces substantial evidence
against Dr. Kho, leaving her trustworthiness unimpaired.34 The trial
court's following declaration shows that while it was critical of the that [the] injury was caused by
lack of care with which Dr. Kho handled the piece of rubber, it was an agency or instrumentality
under [the] exclusive control and
not prepared to doubt Dr. Kho's credibility, thus only supporting our
management of defendant, and
appraisal of Dr. Kho's trustworthiness:
that the occurrence [sic] was
such that in the ordinary course
This is not to say that she was less than honest of things would not happen if
when she testified about her findings, but it can reasonable care had been used.
also be said that she did not take the most
appropriate precaution to preserve that "piece of
xxx xxx xxx
rubber" as an eloquent evidence of what she would
reveal should there be a "legal problem" which she
claim[s] to have anticipated.35 The doctrine of [r]es ipsa
loquitur as a rule of evidence is
peculiar to the law of negligence
Considering that we have assessed Dr. Kho to be a credible witness,
which recognizes that prima
her positive testimony [that a piece of rubber was indeed found in
facie negligence may be
private respondent Villega's abdomen] prevails over the negative
testimony in favor of the petitioners. established without direct proof
and furnishes a substitute for
specific proof of negligence. The
As such, the rule of res ipsa loquitur comes to fore. This Court has doctrine is not a rule of
had occasion to delve into the nature and operation of this doctrine: substantive law, but merely a
mode of proof or a mere
This doctrine [res ipsa loquitur] is stated thus: procedural convenience. The
"Where the thing which causes injury is shown to rule, when applicable to the facts
be under the management of the defendant, and the and circumstances of a particular
accident is such as in the ordinary course of things case, is not intended to and does
does not happen in those who have the not dispense with the
management use proper care, it affords reasonable requirement of proof of culpable
evidence, in the absence of an explanation by the negligence on the party charged.
defendant, that the accident arose from want of It merely determines and
care." Or as Black's Law Dictionary puts it: regulates what shall be prima
facie evidence thereof and
Res ipsa loquitur. The thing facilitates the burden of plaintiff
speaks for itself. Rebuctable of proving a breach of the duty
presumption or inference that of due care. The doctrine can be
defendant was negligent, which invoked when and only when,
arises upon proof that [the] under the circumstances
instrumentality causing injury involved, direct evidence is
was in defendant's exclusive

absent and not readily
available.36
In the instant case, all the requisites for recourse to the doctrine are
present. First, the entire proceedings of the caesarean section were
under the exclusive control of Dr. Batiquin. In this light, the private
respondents were bereft of direct evidence as to the actual culprit or
the exact cause of the foreign object finding its way into private
respondent Villegas's body, which, needless to say, does not occur
unless through the intersection of negligence. Second, since aside
from the caesarean 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 caesarean 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's 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,3 7 and the
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."38 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."39 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 general,40 and members of
the medical profession,41 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.
[G.R. No. L-10126. October 22, 1957.]
SALUD VILLANUEVA VDA. DE BATACLAN and the minors
NORMA, LUZVIMINDA, ELENITA, OSCAR and ALFREDO
BATACLAN, represented by their Natural guardian, SALUD
VILLANUEVA VDA. DE BATACLAN, Plaintiffs-Appellants, v.
MARIANO MEDINA, Defendant-Appellant.
1. DAMAGES; CARRIER’S LIABILITY; WORDS AND
PHRASES; PROXIMATE CAUSE DEFINED. — "The proximate
legal cause is that the acting first and producing the injury, either
immediately or by setting other events in motion., all constituting a
natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the
chain immediately affecting the injury as a natural and probable
result of the cause which first acted, under such circumstances that
the person responsible for the first event should, as ordinarily
prudent and intelligent person, have reasonable ground to expect at
the moment of his act or default that an injury to some person might
be probably result therefrom."cralaw virtua1aw library
2. ID.; ID.; OVERTURNING OF BUS; PROXIMATE CAUSE OF
P a g e | 107
DEATH. — When a vehicle turned not only on its side but
completely on its back, the leaking of the gasoline from the tank was
not unnatural or unexpected; that the coming of the men with the
lighted torch was in response to the call for help, made not only by
the passengers, but most probably by the driver and the conductor
themselves, and that because it was very dark (about 2:30 in the
morning), the rescuers had to carry a light with them; and coming as
they did from a rural area where the lanterns and flashlights were not
available, they had to use a torch the most handy and available; and
what was more natural, that said rescuers should innocently
approached the overtuned vehicle to extend the aid and effect the
rescue requested from them. Held: That the proximate cause of the
death of B was overturning of the vehicle thru the negligence of
defendant and his agent.
3. ID.; ID.; CARRIER’S NEGLIGENCE; BURNING OF THE
BUS. — The burning of the bus wherein some of the passengers
were trapped can also be attributed to the negligence of the carrier,
through the driver and conductor who were on the road walking back
and forth. They should and must have known that in the position in
which the overtuned bus was, gasoline could and must have leaked
from the gasoline tank and soaked the area in and around the bus,
this aside from the fact that gasoline when spilled, especially over a
large area, can be smelt and detected even from a distance, Held:
That the failure of the driver and the conductor to have cautioned or
taken steps to warn the rescuers not to bring the lighted torch too
near the bus, constitute negligence on the part of the agents of the
carrier under the provisions of the Civil Code, particularly, Article
1733, 1759 and 1763 thereof.
MONTEMAYOR, J.Shortly after midnight, on September 13,
1952, bus No. 30 of the Medina Transportation, operated by its
owner, defendant Mariano Medina, under a certificate of public
convenience, left the town of Amadeo, Cavite, on its way to Pasay
City, driven by its regular chauffeur, Conrado Saylon. There were
about eighteen passengers, including the driver and conductor.
Among the passengers were Juan Bataclan, seated beside and to the
right of the driver, Felipe Lara, seated to the right of Bataclan,
another passenger apparently from the Visayan Islands whom the
witnesses just called Visaya, apparently not knowing his name,
seated on the left side of the driver, and a woman named Natalia
Villanueva, seated just behind the four last mentioned. At about 2
:00 o’clock that same morning, while the bus was running within the
jurisdiction of Imus, Cavite, one of the front tires burst and the
vehicle began to zig-zag until it fell into a canal or ditch on the right
side of the road and turned turtle. Some of the passengers managed
to leave the bus the best way they could, others had to be helped or
pulled out, while the three passengers seated beside the driver,
named Bataclan, Lara and the Visayan and the woman behind them
named Natalia Villanueva, could not get out of the overturned bus.
Some of the passengers, after they had clambered up to the road,
heard groans and moans from inside the bus, particularly, shouts for
help from Bataclan and Lara, who said that they could not get out of
the bus. There, is nothing in the evidence to show whether or not the
passengers already free from the wreck, including the driver and the
conductor, made any attempt to pull out or extricate and rescue the
four passengers trapped inside the vehicle, but calls or shouts for
help were made to the houses in the neighborhood. After half an
hour, came about ten men, one of them carrying a lighted torch made
of bamboo with a wick on one end, evidently fueled with petroleum.
These men presumably approached the overturned bus, and almost
immediately, a fierce fire started, burning and all but consuming the
bus, including the four passengers trapped inside it. It would appear

that as the bus overturned, gasoline began to leak and escape from
the gasoline tank on the side of the chassis, spreading over and
permeating the body of the bus and the ground under and around it,
and that the lighted torch brought by one of the men who answered
the call for help set it on fire.
That same day, the charred bodies of the four doomed passengers
inside the bus were removed and duly identified, specially that of
Juan Bataclan. By reason of his death, his widow, Salud Villanueva,
in her name and in behalf of her five minor children, brought the
present suit to recover from Mariano Medina compensatory, moral,
and exemplary damages and attorney’s fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded
P1,000 to the plaintiffs, plus P600 as attorney’s fee, plus P100, the
value of the merchandise being carried by Bataclan to Pasay City for
sale and which was lost in the fire. The plaintiffs and the defendants
appealed the decision to the Court of Appeals, but the latter court
endorsed the appeal to us because of the value involved in the claim
in the complaint.
Our New Civil Code amply provides for the responsibility of a
common carrier to its passengers and their goods. For purposes of
reference, we are reproducing the pertinent codal
provisions:jgc:chanrobles.com.ph
"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 all the circumstances
of each case.
Such extraordinary diligence in the vigilance over the goods is
further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7
while the extraordinary diligence for the safety of the passengers is
further set forth in articles 1755 and 1756."cralaw virtua1aw library
"ART. 1755. A common carrier is bound to carry the passengers
safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with a due regard for all
the circumstances."cralaw virtua1aw library
"ART. 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed in articles 1733 and 1755."cralaw virtua1aw
library
"ART. 1759. Common carriers are liable for the death of or injuries
to passengers through the negligence or wilful acts of the former’s
employees, although such employees may have acted beyond the
scope of their authority or in violation of the orders of the common
carriers.
This liability of the common carriers does not cease upon proof that
they exercised all the diligence of a good father of a family in the
selection and supervision of their employees."cralaw virtua1aw
library
"ART. 1763. A common carrier is responsible for injuries suffered
by a passenger on account of the wilful acts or negligence of other
passengers or of strangers, if the common carrier’s employees
through the exercise of the diligence of a good father of a family
P a g e | 108
could have prevented or stopped the act or omission."cralaw
virtua1aw library
We agree with the trial court that the case involves a breach of
contract of transportation for hire, the Medina Transportation having
undertaken to carry Bataclan safely to his destination, Pasay City.
We also agree with the trial court that there was negligence on the
part of the defendant, through his agent, the driver Saylon. There is
evidence to show that at the time of the blow out, the bus was
speeding, as testified to by one of the passengers, and as shown by
the fact that according to the testimony of the witnesses, including
that of the defense, from the point where one of the front tires burst
up to the canal where the bus overturned after zig-zagging, there was
a distance of about 150 meters. The chauffeur, after the blow-out,
must have applied the brakes in order to stop the bus, but because of
the velocity at which the bus must have been running, its momentum
carried it over a distance of 150 meters before it fell into the canal
and turned turtle.
There is no question that under the circumstances, the defendant
carrier is liable. The only question is to what degree. The trial court
was of the opinion that the proximate cause of the death of Bataclan
was not the overturning of the bus, but rather, the fire that burned the
bus, including himself and his co-passengers who were unable to
leave it; that at the time the fire started, Bataclan, though he must
have suffered physical injuries, perhaps serious, was still alive, and
so damages were awarded, not for his death, but for the physical
injuries suffered by him. We disagree. A satisfactory definition of
proximate cause is found in Volume 38, pages 695-696 of American
Jurisprudence, cited by plaintiffs-appellants in their brief. It is as
follows:jgc:chanrobles.com.ph
". . .’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.’ And more
comprehensively, ‘the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in
motion, all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the
injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first
event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that
an injury to some person might probably result therefrom."cralaw
virtua1aw library
It may be that ordinarily, when a passenger bus overturns, and pins
down a passenger, merely causing him physical injuries, if through
some event, unexpected and extraordinary, the overturned bus is set
on fire, say, by lightning, or if some highwaymen after looting the
vehicle sets it on fire, and the passenger is burned to death, one
might still contend that the proximate cause of his death was the fire
and not the overturning of the vehicle. But in the present case and
under the circumstances obtaining in the same, we do not hesitate to
hold that the proximate cause of the death of Bataclan was the
overturning of the bus, this for the reason that when the vehicle
turned not only on its side but completely on its back, the leaking of
the gasoline from the tank was not unnatural or unexpected; that the
coming of the men with a lighted torch was in response to the call
for help, made not only by the passengers, but most probably, by the
driver and the conductor themselves, and that because it was very

dark (about 2:30 in the morning), the rescuers had to carry a light
with them; and coming as they did from a rural area where lanterns
and flashlights were not available, they had to use a torch, the most
handy and available; and what was more natural than that said
rescuers should innocently approach the overturned vehicle to
extend the aid and effect the rescue requested from them. In other
words, the coming of the men with the torch was to be expected and
was a natural sequence of the overturning of the bus, the trapping of
some of its passengers and the call for outside help. What is more,
the burning of the bus can also in part be attributed to the negligence
of the carrier, through its driver and its conductor. According to the
witnesses, the driver and the conductor were on the road walking
back and forth. They, or at least, the driver should and must have
known that in the position in which the overturned bus was, gasoline
could and must have leaked from the gasoline tank and soaked the
area in and around the bus, this aside from the fact that gasoline
when spilled, specially over a large area, can be smelt and detected
even from a distance, and yet neither the driver nor the conductor
would appear to have cautioned or taken steps to warn the rescuers
not to bring the lighted torch too near the bus. Said negligence on the
part of the agents of the carrier come under the codal provisions
above- reproduced, particularly, Articles 1733, 1759 and 1763.
As regards the damages to which plaintiffs are entitled, considering
the earning capacity of the deceased, as well as the other elements
entering into a damage award, we are satisfied that the amount of
SIX THOUSAND (P6,000) PESOS would constitute satisfactory
compensation, this to include compensatory, moral, and other
damages. We also believe that plaintiffs are entitled to attorney’s
fees, and assessing the legal services rendered by plaintiffs’
attorneys not only in the trial court, but also in the course of the
appeal, and not losing sight of the able briefs prepared by them, the
attorney’s fees may well be fixed at EIGHT HUNDRED (P800)
PESOS. The award made by the trial court of ONE HUNDRED
(P100) PESOS for the loss of the merchandise carried by the
deceased in the bus, is adequate and will not be disturbed.
There is one phase of this case which disturbs if it does not shock us.
According to the evidence, one of the passengers who, because of
the injuries suffered by her, was hospitalized, and while in the
hospital, she was visited by the defendant Mariano Medina, and in
the course of his visit, she overheard him speaking to one of his bus
inspectors, telling said inspector to have the tires of the bus changed
immediately because they were already old, and that as a matter of
fact, he had been telling the driver to change the said tires, but that
the driver did not follow his instructions. If this be true, it goes to
prove that the driver had not been diligent and had not taken the
necessary precautions to insure the safety of his passengers. Had he
changed the tires, specially those in front, with new ones, as he had
been instructed to do, probably, despite his speeding, as we have
already stated, the blow out would not have occurred. All in all,
there is reason to believe that the driver operated and drove his
vehicle negligently, resulting in the death of four of his passengers,
physical injuries to others, and the complete loss and destruction of
their goods, and yet the criminal case against him, on motion of the
fiscal and with his consent, was provisionally dismissed, because
according to the fiscal, the witnesses on whose testimony he was
banking to support the complaint, either failed to appear or were
reluctant to testify. But the record of the case before us shows that
several witnesses, passengers in that bus, willingly and
unhesitatingly testified in court to the effect that the said driver was
negligent. In the public interest, the prosecution of said erring driver
P a g e | 109
should be pursued, this, not only as a matter of justice, but for the
promotion of the safety of passengers on public utility buses. Let a
copy of this decision be furnished the Department of Justice and the
Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages
awarded by the trial court are increased from ONE THOUSAND
(P1,000) PESOS to SIX THOUSAND (P6,000) PESOS, and from
SIX HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS,
for the death of Bataclan and for attorney’s fees, respectively, the
decision appealed from is hereby affirmed, with costs.
G.R. No. 168512 March 20, 2007
ORLANDO D. GARCIA, JR., doing business under the name
and style COMMUNITY DIAGNOSTIC CENTER and BU
CASTRO,1 Petitioners,
vs.
RANIDA D. SALVADOR and RAMON SALVADOR,
Respondents.
DECISION
YNARES-SANTIAGO, J.:
This is a petition for review2 under Rule 45 of the Rules of Court
assailing the February 27, 2004 Decision3 of the Court of Appeals in
CA-G.R. CV No. 58668 finding petitioner Orlando D. Garcia liable
for gross negligence; and its June 16, 2005 Resolution4 denying
petitioner’s motion for reconsideration.
On October 1, 1993, respondent Ranida D. Salvador started working
as a trainee in the Accounting Department of Limay Bulk Handling
Terminal, Inc. (the Company). As a prerequisite for regular
employment, she underwent a medical examination at the
Community Diagnostic Center (CDC). Garcia who is a medical
technologist, conducted the HBs Ag (Hepatitis B Surface Antigen)
test and on October 22, 1993, CDC issued the test result5 indicating
that Ranida was "HBs Ag: Reactive." The result bore the name and
signature of Garcia as examiner and the rubber stamp signature of
Castro as pathologist.
When Ranida submitted the test result to Dr. Sto. Domingo, the
Company physician, the latter apprised her that the findings
indicated that she is suffering from Hepatitis B, a liver disease. Thus,
based on the medical report6 submitted by Sto. Domingo, the
Company terminated Ranida’s employment for failing the physical
examination.7
When Ranida informed her father, Ramon, about her ailment, the
latter suffered a heart attack and was confined at the Bataan Doctors
Hospital. During Ramon’s confinement, Ranida underwent another
HBs Ag test at the said hospital and the result8 indicated that she is
non-reactive. She informed Sto. Domingo of this development but
was told that the test conducted by CDC was more reliable because
it used the Micro-Elisa Method.
Thus, Ranida went back to CDC for confirmatory testing, and this
time, the Anti-HBs test conducted on her indicated a "Negative"
result.9

Ranida also underwent another HBs Ag test at the Bataan Doctors
Hospital using the Micro-Elisa Method. The result indicated that she
was non-reactive.10
Ranida submitted the test results from Bataan Doctors Hospital and
CDC to the Executive Officer of the Company who requested her to
undergo another similar test before her re-employment would be
considered. Thus, CDC conducted another HBs Ag test on Ranida
which indicated a "Negative" result.11 Ma. Ruby G. Calderon, Med-
Tech Officer-in-Charge of CDC, issued a Certification correcting the
initial result and explaining that the examining medical technologist
(Garcia) interpreted the delayed reaction as positive or reactive. 12
Thereafter, the Company rehired Ranida.
On July 25, 1994, Ranida and Ramon filed a complaint13 for
damages against petitioner Garcia and a purportedly unknown
pathologist of CDC, claiming that, by reason of the erroneous
interpretation of the results of Ranida’s examination, she lost her job
and suffered serious mental anxiety, trauma and sleepless nights,
while Ramon was hospitalized and lost business opportunities.
On September 26, 1994, respondents amended their complaint 14 by
naming Castro as the "unknown pathologist."
Garcia denied the allegations of gross negligence and incompetence
and reiterated the scientific explanation for the "false positive" result
of the first HBs Ag test in his December 7, 1993 letter to the
respondents.15
For his part, Castro claimed that as pathologist, he rarely went to
CDC and only when a case was referred to him; that he did not
examine Ranida; and that the test results bore only his rubber-stamp
signature.
On September 1, 1997,16 the trial court dismissed the complaint for
failure of the respondents to present sufficient evidence to prove the
liability of Garcia and Castro. It held that respondents should have
presented Sto. Domingo because he was the one who interpreted the
test result issued by CDC. Likewise, respondents should have
presented a medical expert to refute the testimonies of Garcia and
Castro regarding the medical explanation behind the conflicting test
results on Ranida.17
Respondents appealed to the Court of Appeals which reversed the
trial court’s findings, the dispositive portion of which states:
WHEREFORE, the decision appealed from is REVERSED and SET
ASIDE and another one entered ORDERING defendant-appellee
Orlando D. Garcia, Jr. to pay plaintiff-appellant Ranida D. Salvador
moral damages in the amount of P50,000.00, exemplary damages in
the amount of P50,000.00 and attorney’s fees in the amount of
P25,000.00.
SO ORDERED.18
The appellate court found Garcia liable for damages for negligently
issuing an erroneous HBs Ag result. On the other hand, it exonerated Section 2 of Republic Act (R.A.) No. 4688, otherwise known as The
Castro for lack of participation in the issuance of the results. Clinical Laboratory Law, provides:
P a g e | 110
After the denial of his motion for reconsideration, Garcia filed the
instant petition.
The main issue for resolution is whether the Court of Appeals, in
reversing the decision of the trial court, correctly found petitioner
liable for damages to the respondents for issuing an incorrect
HBsAG test result.
Garcia maintains he is not negligent, thus not liable for damages,
because he followed the appropriate laboratory measures and
procedures as dictated by his training and experience; and that he did
everything within his professional competence to arrive at an
objective, impartial and impersonal result.
At the outset, we note that the issues raised are factual in nature.
Whether a person is negligent or not is a question of fact which we
cannot pass upon in a petition for review on certiorari which is
limited to reviewing errors of law.19
Negligence is the failure to observe for the protection of the interest
of another person that degree of care, precaution and vigilance which
the circumstances justly demand,20 whereby such other person
suffers injury. For health care providers, the test of the existence of
negligence is: did the health care provider either fail to do something
which a reasonably prudent health care provider would have done, or
that he or she did something that a reasonably prudent health care
provider would not have done; and that failure or action caused
injury to the patient;21 if yes, then he is guilty of negligence.
Thus, the elements of an actionable conduct are: 1) duty, 2) breach,
3) injury, and 4) proximate causation.
All the elements are present in the case at bar.
Owners and operators of clinical laboratories have the duty to
comply with statutes, as well as rules and regulations, purposely
promulgated to protect and promote the health of the people by
preventing the operation of substandard, improperly managed and
inadequately supported clinical laboratories and by improving the
quality of performance of clinical laboratory examinations.22 Their
business is impressed with public interest, as such, high standards of
performance are expected from them.
In F.F. Cruz and Co., Inc. v. Court of Appeals, we found the owner
of a furniture shop liable for the destruction of the plaintiff’s house
in a fire which started in his establishment in view of his failure to
comply with an ordinance which required the construction of a
firewall. In Teague v. Fernandez, we stated that where the very
injury which was intended to be prevented by the ordinance has
happened, non-compliance with the ordinance was not only an act of
negligence, but also the proximate cause of the death.23
In fine, violation of a statutory duty is negligence. Where the law
imposes upon a person the duty to do something, his omission or
non-performance will render him liable to whoever may be injured
thereby.

Sec. 2. It shall be unlawful for any person to be professionally in-
charge of a registered clinical laboratory unless he is a licensed
physician duly qualified in laboratory medicine and authorized by
the Secretary of Health, such authorization to be renewed annually.
No license shall be granted or renewed by the Secretary of Health
for the operation and maintenance of a clinical laboratory unless
such laboratory is under the administration, direction and
supervision of an authorized physician, as provided for in the
preceding paragraph.
Corollarily, Sections 9(9.1)(1), 11 and 25(25.1)(1) of the DOH
Administrative Order No. 49-B Series of 1988, otherwise known as
the Revised Rules and Regulations Governing the Registration,
Operation and Maintenance of Clinical Laboratories in the
Philippines, read:
Sec. 9. Management of the Clinical Laboratory:
9.1 Head of the Clinical Laboratory: The head is that person who
assumes technical and administrative supervision and control of the
activities in the laboratory.
For all categories of clinical laboratories, the head shall be a licensed results of any examination may be released only to the requesting
physician certified by the Philippine Board of Pathology in either
Anatomic or Clinical Pathology or both provided that:
(1) This shall be mandatory for all categories of free-standing
clinical laboratories; all tertiary category hospital laboratories and
for all secondary category hospital laboratories located in areas with
sufficient available pathologist.
xxxx
Sec. 11. Reporting: All laboratory requests shall be considered as
consultations between the requesting physician and pathologist of
the laboratory. As such all laboratory reports on various
examinations of human specimens shall be construed as consultation
report and shall bear the name of the pathologist or his associate. No
person in clinical laboratory shall issue a report, orally or in writing,
whole portions thereof without a directive from the pathologist or his
authorized associate and only to the requesting physician or his
authorized representative except in emergencies when the results
may be released as authorized by the pathologist.
xxxx
Sec. 25. Violations:
25.1 The license to operate a clinical laboratory may be suspended
or revoked by the Undersecretary of Health for Standards and
Regulation upon violation of R.A. 4688 or the rules and regulations
issued in pursuance thereto or the commission of the following acts
by the persons owning or operating a clinical laboratory and the
persons under their authority.
(1) Operation of a Clinical Laboratory without a certified pathologist are allowed to sign for and in behalf of the clinical laboratory. The
or qualified licensed physician authorized by the Undersecretary of
Health or without employing a registered medical technologist or a
person not registered as a medical technologist in such a position.
P a g e | 111
And Section 29(b) of R.A. No. 5527, otherwise known as The
Philippine Medical Technology Act of 1969, reads:
Section 29. Penal Provisions.- Without prejudice to the provision of
the Medical Act of 1959, as amended relating to illegal practice of
Medicine, the following shall be punished by a fine of not less than
two thousand pesos nor more than five thousand pesos, or
imprisonment for not less than six months nor more than two years,
or both, in the discretion of the court:
xxxx
(b) Any medical technologist, even if duly registered, who shall
practice medical technology in the Philippines without the necessary
supervision of a qualified pathologist or physician authorized by the
Department of Health;
From the foregoing laws and rules, it is clear that a clinical
laboratory must be administered, directed and supervised by a
licensed physician authorized by the Secretary of Health, like a
pathologist who is specially trained in methods of laboratory
medicine; that the medical technologist must be under the
supervision of the pathologist or a licensed physician; and that the
physician or his authorized representative upon the direction of the
laboratory pathologist.
These rules are intended for the protection of the public by
preventing performance of substandard clinical examinations by
laboratories whose personnel are not properly supervised. The public
demands no less than an effective and efficient performance of
clinical laboratory examinations through compliance with the quality
standards set by laws and regulations.
We find that petitioner Garcia failed to comply with these standards.
First, CDC is not administered, directed and supervised by a
licensed physician as required by law, but by Ma. Ruby C. Calderon,
a licensed Medical Technologist.24 In the License to Open and
Operate a Clinical Laboratory for the years 1993 and 1996 issued by
Dr. Juan R. Nañagas, M.D., Undersecretary for Health Facilities,
Standards and Regulation, defendant-appellee Castro was named as
the head of CDC.25 However, in his Answer with Counterclaim, he
stated:
3. By way of affirmative and special defenses, defendant pathologist
further avers and plead as follows:
Defendant pathologist is not the owner of the Community Diagnostic
Center nor an employee of the same nor the employer of its
employees. Defendant pathologist comes to the Community
Diagnostic Center when and where a problem is referred to him. Its
employees are licensed under the Medical Technology Law
(Republic Act No. 5527) and are certified by, and registered with,
the Professional Regulation Commission after having passed their
Board Examinations. They are competent within the sphere of their
own profession in so far as conducting laboratory examinations and
defendant pathologist, and all pathologists in general, are hired by
laboratories for purposes of complying with the rules and regulations

and orders issued by the Department of Health through the Bureau of
Research and Laboratories. Defendant pathologist does not stay that
long period of time at the Community Diagnostic Center but only
periodically or whenever a case is referred to him by the laboratory.
Defendant pathologist does not appoint or select the employees of
the laboratory nor does he arrange or approve their schedules of
duty.26
Castro’s infrequent visit to the clinical laboratory barely qualifies as
an effective administrative supervision and control over the activities
in the laboratory. "Supervision and control" means the authority to
act directly whenever a specific function is entrusted by law or
regulation to a subordinate; direct the performance of duty; restrain
the commission of acts; review, approve, revise or modify acts and
decisions of subordinate officials or units.27
Second, Garcia conducted the HBsAG test of respondent Ranida
without the supervision of defendant-appellee Castro, who admitted
that:
[He] does not know, and has never known or met, the plaintiff-
patient even up to this time nor has he personally examined any
specimen, blood, urine or any other tissue, from the plaintiff-patient
otherwise his own handwritten signature would have appeared in the
result and not merely stamped as shown in Annex "B" of the
Amended Complaint.28
Last, the disputed HBsAG test result was released to respondent
Ranida without the authorization of defendant-appellee Castro.29
Garcia may not have intended to cause the consequences which
followed after the release of the HBsAG test result. However, his
failure to comply with the laws and rules promulgated and issued for
the protection of public safety and interest is failure to observe that
care which a reasonably prudent health care provider would observe.
Thus, his act or omission constitutes a breach of duty.
Indubitably, Ranida suffered injury as a direct consequence of
Garcia’s failure to comply with the mandate of the laws and rules
aforequoted. She was terminated from the service for failing the
physical examination; suffered anxiety because of the diagnosis; and
was compelled to undergo several more tests. All these could have
been avoided had the proper safeguards been scrupulously followed
in conducting the clinical examination and releasing the clinical
report.
Article 20 of the New Civil Code provides:
Art. 20. Every person who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the latter for the same.
The foregoing provision provides the legal basis for the award of
damages to a party who suffers damage whenever one commits an
act in violation of some legal provision.30 This was incorporated by
the Code Commission to provide relief to a person who suffers
damage because another has violated some legal provision.31
We find the Court of Appeals’ award of moral damages reasonable
under the circumstances bearing in mind the mental trauma suffered
by respondent Ranida who thought she was afflicted by Hepatitis B,
P a g e | 112
making her "unfit or unsafe for any type of employment." 32 Having
established her right to moral damages, we see no reason to disturb
the award of exemplary damages and attorney’s fees. Exemplary
damages are imposed, by way of example or correction for the
public good, in addition to moral, temperate, liquidated or
compensatory damages,33 and attorney’s fees may be recovered
when, as in the instant case, exemplary damages are awarded. 34
WHEREFORE, the Decision of the Court of Appeals in CA-G.R.
CV No. 58668 dated February 27, 2004 finding petitioner Orlando
D. Garcia, Jr. guilty of gross negligence and liable to pay to
respondents ₱50,000.00 as moral damages, ₱50,000.00 as exemplary
damages, and ₱25,000.00 as attorney’s fees, is AFFIRMED.
SO ORDERED.
G.R. No. 160889
April 27, 2007
DR. MILAGROS L. CANTRE, Petitioner, vs.SPS. JOHN
DAVID Z. GO and NORA S. GO, Respondents.
QUISUMBING, J.:For review on certiorari are the Decision1 dated
October 3, 2002 and Resolution2 dated November 19, 2003 of the
Court of Appeals in CA-G.R. CV No. 58184, which affirmed with
modification the Decision3 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 Nora’s blood pressure. Her blood pressure
was frequently monitored with the use of a sphygmomanometer.
While petitioner was massaging Nora’s 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 ½) by three and a
half (3 ½) 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 Nora’s 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, Nora’s 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 Nora’s 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, Nora’s arm would never be the same.1a\^/phi1.net
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 complaint13 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
attorney’s 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:
P a g e | 113
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, attorney’s
fees and expenses of litigation;1awphi1.nét
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
Petitioner’s 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 RESPONDENT’S 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 injured a right to reparation for the damage caused.17
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 instrument causing the injury, provided that the following requisites
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
Nora’s body. She maintains the injury was due to the constant taking
of Nora’s 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 respondent’s 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 As to the first requirement, the gaping wound on Nora’s arm is
by petitioner’s counsel. Respondents point out that petitioner’s blood certainly not an ordinary occurrence in the act of delivering a baby,
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
P a g e | 114
about by the blood pressure cuff, petitioner was still negligent in her
duties as Nora’s 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 Nora’s medical records, which were
produced by the hospital during trial pursuant to a subpoena duces
tecum. Petitioner’s 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.
Petitioner’s contention that the medico-legal officer who conducted
Nora’s 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
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
concur:
1. The accident is of a kind which ordinarily does not occur
in the absence of someone’s negligence;
2. It is caused by an instrumentality within the exclusive
control of the defendant or defendants; and
3. The possibility of contributing conduct which would
make the plaintiff responsible is eliminated.18
far removed as the arm is from the organs involved in the process of
giving birth. Such injury could not have happened unless negligence
had set in somewhere.

Second, whether the injury was caused by the droplight or by the
blood pressure cuff is of no moment. Both instruments are deemed
within the exclusive control of the physician in charge under the
"captain of the ship" doctrine. This doctrine holds the surgeon in
charge of an operation liable for the negligence of his assistants
during the time when those assistants are under the surgeon’s
control.19 In this particular case, it can be logically inferred that
petitioner, the senior consultant in charge during the delivery of
Nora’s baby, exercised control over the assistants assigned to both
the use of the droplight and the taking of Nora’s blood pressure.
Hence, the use of the droplight and the blood pressure cuff is also
within petitioner’s exclusive control.
Third, the gaping wound on Nora’s 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.
Petitioner’s defense that Nora’s 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
Nora’s wound was caused by the blood pressure cuff, then the taking
of Nora’s 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, petitioner’s argument that the failed plastic surgery was not 11, 2008 which affirmed its vicarious and direct liability for
intended as a cosmetic procedure, but rather as a measure to prevent damages to respondents Enrique Agana and the heirs of Natividad
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 defendant’s
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 petitioner’s
negligence.
We note, however, that petitioner has served well as Nora’s
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 Nora’s wound before infection and other complications set in
P a g e | 115
is also indicative of petitioner’s 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 petitioner’s
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 (₱200,000) 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.
[G.R. No. 126297 : February 02, 2010]
PROFESSIONAL SERVICES, INC., PETITIONER, VS. THE
COURT OF APPEALS AND NATIVIDAD AND ENRIQUE
AGANA, RESPONDENTS.
[G.R. NO. 126467]
CORONA, J.:With prior leave of court,[1] petitioner Professional
Services, Inc. (PSI) filed a second motion for reconsideration[2]
urging referral thereof to the Court en banc and seeking modification
of the decision dated January 31, 2007 and resolution dated February
Agana (Aganas).
Manila Medical Services, Inc. (MMSI),[3] Asian Hospital, Inc.
(AHI),[4] and Private Hospital Association of the Philippines
(PHAP)[5] all sought to intervene in these cases invoking the
common ground that, unless modified, the assailed decision and
resolution will jeopardize the financial viability of private hospitals
and jack up the cost of health care.
The Special First Division of the Court granted the motions for
intervention of MMSI, AHI and PHAP (hereafter intervenors), [6] and
referred en consulta to the Court en banc the motion for prior leave
of court and the second motion for reconsideration of PSI. [7]
Due to paramount public interest, the Court en banc accepted the
referral[8] and heard the parties on oral arguments on one particular
issue: whether a hospital may be held liable for the negligence of
physicians-consultants allowed to practice in its premises.[9]
To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr.
Ampil) and Dr. Juan Fuentes (Dr. Fuentes), was impleaded by
Enrique Agana and Natividad Agana (later substituted by her heirs),
in a complaint[10] for damages filed in the Regional Trial Court
(RTC) of Quezon City, Branch 96, for the injuries suffered by
Natividad when Dr. Ampil and Dr. Fuentes neglected to remove
from her body two gauzes[11] which were used in the surgery they
performed on her on April 11, 1984 at the Medical City General
Hospital. PSI was impleaded as owner, operator and manager of the
 P a g e | 116

hospital. Ampil and PSI proved that it has no control over Dr. Ampil. In fact,
the trial court has found that there is no employer-employee
In a decision[12] dated March 17, 1993, the RTC held PSI solidarily relationship in this case and that the doctor's are independent
liable with Dr. Ampil and Dr. Fuentes for damages. [13] On appeal, contractors.
the Court of Appeals (CA), absolved Dr. Fuentes but affirmed the
liability of Dr. Ampil and PSI, subject to the right of PSI to claim II
reimbursement from Dr. Ampil.[14]
Respondents Aganas engaged Dr. Miguel Ampil as their doctor and
On petition for review, this Court, in its January 31, 2007 decision, did not primarily and specifically look to the Medical City Hospital
affirmed the CA decision.[15] PSI filed a motion for (PSI) for medical care and support; otherwise stated, respondents
reconsideration[16] but the Court denied it in a resolution dated Aganas did not select Medical City Hospital (PSI) to provide
February 11, 2008.[17] medical care because of any apparent authority of Dr. Miguel Ampil
as its agent since the latter was chosen primarily and specifically
The Court premised the direct liability of PSI to the Aganas on the based on his qualifications and being friend and neighbor.
following facts and law:
III
First, there existed between PSI and Dr. Ampil an employer-
employee relationship as contemplated in the December 29, 1999 PSI cannot be liable under doctrine of corporate negligence since the
decision in Ramos v. Court of Appeals[18] that "for purposes of proximate cause of Mrs. Agana's injury was the negligence of Dr.
allocating responsibility in medical negligence cases, an employer- Ampil, which is an element of the principle of corporate
employee relationship exists between hospitals and their negligence.[29]
consultants."[19] Although the Court in Ramos later issued a
Resolution dated April 11, 2002[20] reversing its earlier finding on
In their respective memoranda, intervenors raise parallel arguments
the existence of an employment relationship between hospital and
that the Court's ruling on the existence of an employer-employee
doctor, a similar reversal was not warranted in the present case
relationship between private hospitals and consultants will force a
because the defense raised by PSI consisted of a mere general denial
drastic and complex alteration in the long-established and currently
of control or responsibility over the actions of Dr. Ampil. [21]
prevailing relationships among patient, physician and hospital, with
burdensome operational and financial consequences and adverse
Second, by accrediting Dr. Ampil and advertising his qualifications,
effects on all three parties.[30]
PSI created the public impression that he was its agent.[22] Enrique
testified that it was on account of Dr. Ampil's accreditation with PSI
The Aganas comment that the arguments of PSI need no longer be
that he conferred with said doctor about his wife's (Natividad's)
entertained for they have all been traversed in the assailed decision
condition.[23] After his meeting with Dr. Ampil, Enrique asked
and resolution.[31]
Natividad to personally consult Dr. Ampil.[24] In effect, when
Enrigue and Natividad engaged the services of Dr. Ampil, at the
After gathering its thoughts on the issues, this Court holds that PSI is
back of their minds was that the latter was a staff member of a
liable to the Aganas, not under the principle of respondeat superior
prestigious hospital. Thus, under the doctrine of apparent authority
for lack of evidence of an employment relationship with Dr. Ampil
applied in Nogales, et al. v. Capitol Medical Center, et al.,[25] PSI
but under the principle of ostensible agency for the negligence of Dr.
was liable for the negligence of Dr. Ampil.
Ampil and, pro hac vice, under the principle of corporate negligence
for its failure to perform its duties as a hospital.
Finally, as owner and operator of Medical City General Hospital,
PSI was bound by its duty to provide comprehensive medical
While in theory a hospital as a juridical entity cannot practice
services to Natividad Agana, to exercise reasonable care to protect
medicine,[32] in reality it utilizes doctors, surgeons and medical
her from harm,[26] to oversee or supervise all persons who practiced
practitioners in the conduct of its business of facilitating medical and
medicine within its walls, and to take active steps in fixing any form
surgical treatment.[33] Within that reality, three legal relationships
of negligence committed within its premises.[27] PSI committed a
crisscross: (1) between the hospital and the doctor practicing within
serious breach of its corporate duty when it failed to conduct an
its premises; (2) between the hospital and the patient being treated or
immediate investigation into the reported missing gauzes.[28]
examined within its premises and (3) between the patient and the
doctor. The exact nature of each relationship determines the basis
PSI is now asking this Court to reconsider the foregoing rulings for
and extent of the liability of the hospital for the negligence of the
these reasons:
doctor.
I
Where an employment relationship exists, the hospital may be held
The declaration in the 31 January 2007 Decision vis-a-vis the 11
vicariously liable under Article 2176[34] in relation to Article 2180[35]
February 2009 Resolution that the ruling in Ramos vs. Court of
of the Civil Code or the principle of respondeat superior. Even when
Appeals (G.R. No. 134354, December 29, 1999) that "an employer-
no employment relationship exists but it is shown that the hospital
employee relations exists between hospital and their consultants"
holds out to the patient that the doctor is its agent, the hospital may
stays should be set aside for being inconsistent with or contrary to
still be vicariously liable under Article 2176 in relation to Article
the import of the resolution granting the hospital's motion for
1431[36] and Article 1869[37] of the Civil Code or the principle of
reconsideration in Ramos vs. Court of Appeals (G.R. No. 134354,
apparent authority.[38] Moreover, regardless of its relationship with
April 11, 2002), which is applicable to PSI since the Aganas failed
the doctor, the hospital may be held directly liable to the patient for
to prove an employer-employee relationship between PSI and Dr.
its own negligence or failure to follow established standard of

conduct to which it should conform as a corporation. [39]
This Court still employs the "control test" to determine the existence
of an employer-employee relationship between hospital and doctor.
In Calamba Medical Center, Inc. v. National Labor Relations
Commission, et al.[40] it held:
Under the "control test", an employment relationship exists between
a physician and a hospital if the hospital controls both the means and
the details of the process by which the physician is to accomplish his
task.
xx xx xx
As priorly stated, private respondents maintained specific work-
schedules, as determined by petitioner through its medical director,
which consisted of 24-hour shifts totaling forty-eight hours each
week and which were strictly to be observed under pain of
administrative sanctions.
That petitioner exercised control over respondents gains light
from the undisputed fact that in the emergency room, the
operating room, or any department or ward for that matter,
respondents' work is monitored through its nursing supervisors,
charge nurses and orderlies. Without the approval or consent of
petitioner or its medical director, no operations can be
undertaken in those areas. For control test to apply, it is not
essential for the employer to actually supervise the performance
of duties of the employee, it being enough that it has the right to
wield the power. (emphasis supplied)
Even in its December 29, 1999 decision[41] and April 11, 2002
resolution[42] in Ramos, the Court found the control test decisive.
In the present case, it appears to have escaped the Court's attention
that both the RTC and the CA found no employment relationship
between PSI and Dr. Ampil, and that the Aganas did not question
such finding. In its March 17, 1993 decision, the RTC found "that
defendant doctors were not employees of PSI in its hospital, they
being merely consultants without any employer-employee
relationship and in the capacity of independent contractors."[43] The
Aganas never questioned such finding.
PSI, Dr. Ampil and Dr. Fuentes appealed [44] from the RTC decision
but only on the issues of negligence, agency and corporate liability.
In its September 6, 1996 decision, the CA mistakenly referred to PSI
and Dr. Ampil as employer-employee, but it was clear in its
discussion on the matter that it viewed their relationship as one of
mere apparent agency.[45]
The Aganas appealed from the CA decision, but only to question the
exoneration of Dr. Fuentes.[46] PSI also appealed from the CA
decision, and it was then that the issue of employment, though long
settled, was unwittingly resurrected.
In fine, as there was no dispute over the RTC finding that PSI and
Dr. Ampil had no employer-employee relationship, such finding
became final and conclusive even to this Court.[47] There was no
reason for PSI to have raised it as an issue in its petition. Thus,
whatever discussion on the matter that may have ensued was purely
academic.
P a g e | 117
Nonetheless, to allay the anxiety of the intervenors, the Court holds
that, in this particular instance, the concurrent finding of the RTC
and the CA that PSI was not the employer of Dr. Ampil is correct.
Control as a determinative factor in testing the employer-employee
relationship between doctor and hospital under which the hospital
could be held vicariously liable to a patient in medical negligence
cases is a requisite fact to be established by preponderance of
evidence. Here, there was insufficient evidence that PSI exercised
the power of control or wielded such power over the means and the
details of the specific process by which Dr. Ampil applied his skills
in the treatment of Natividad. Consequently, PSI cannot be held
vicariously liable for the negligence of Dr. Ampil under the principle
of respondeat superior.
There is, however, ample evidence that the hospital (PSI) held out to
the patient (Natividad)[48] that the doctor (Dr. Ampil) was its agent.
Present are the two factors that determine apparent authority: first,
the hospital's implied manifestation to the patient which led the latter
to conclude that the doctor was the hospital's agent; and second, the
patient's reliance upon the conduct of the hospital and the doctor,
consistent with ordinary care and prudence.[49]
Enrique testified that on April 2, 1984, he consulted Dr. Ampil
regarding the condition of his wife; that after the meeting and as
advised by Dr. Ampil, he "asked [his] wife to go to Medical City to
be examined by [Dr. Ampil]"; and that the next day, April 3, he told
his daughter to take her mother to Dr. Ampil.[50] This timeline
indicates that it was Enrique who actually made the decision on
whom Natividad should consult and where, and that the latter merely
acceded to it. It explains the testimony of Natividad that she
consulted Dr. Ampil at the instigation of her daughter. [51]
Moreover, when asked what impelled him to choose Dr. Ampil,
Enrique testified:
Atty. Agcaoili
On that particular occasion, April 2, 1984, what was your reason for
choosing Dr. Ampil to contact with in connection with your wife's
illness?
A. First, before that, I have known him to be a specialist on that part
of the body as a surgeon, second, I have known him to be a staff
member of the Medical City which is a prominent and known
hospital. And third, because he is a neighbor, I expect more than the
usual medical service to be given to us, than his ordinary patients. [52]
(emphasis supplied)
Clearly, the decision made by Enrique for Natividad to consult Dr.
Ampil was significantly influenced by the impression that Dr. Ampil
was a staff member of Medical City General Hospital, and that said
hospital was well known and prominent. Enrique looked upon Dr.
Ampil not as independent of but as integrally related to Medical
City.
PSI's acts tended to confirm and reinforce, rather than negate,
Enrique's view. It is of record that PSI required a "consent for
hospital care"[53] to be signed preparatory to the surgery of
Natividad. The form reads:
Permission is hereby given to the medical, nursing and laboratory
staff of the Medical City General Hospital to perform such

diagnostic procedures and to administer such medications and
treatments as may be deemed necessary or advisable by the
physicians of this hospital for and during the confinement of xxx.
(emphasis supplied)
By such statement, PSI virtually reinforced the public impression
that Dr. Ampil was a physician of its hospital, rather than one
independently practicing in it; that the medications and treatments he
prescribed were necessary and desirable; and that the hospital staff
was prepared to carry them out.
PSI pointed out in its memorandum that Dr. Ampil's hospital
affiliation was not the exclusive basis of the Aganas' decision to
have Natividad treated in Medical City General Hospital, meaning
that, had Dr. Ampil been affiliated with another hospital, he would
still have been chosen by the Aganas as Natividad's surgeon.[54]
The Court cannot speculate on what could have been behind the
Aganas' decision but would rather adhere strictly to the fact that,
under the circumstances at that time, Enrique decided to consult Dr.
Ampil for he believed him to be a staff member of a prominent and
known hospital. After his meeting with Dr. Ampil, Enrique advised
his wife Natividad to go to the Medical City General Hospital to be
examined by said doctor, and the hospital acted in a way that
fortified Enrique's belief.
This Court must therefore maintain the ruling that PSI is vicariously
liable for the negligence of Dr. Ampil as its ostensible agent.
Moving on to the next issue, the Court notes that PSI made the
following admission in its Motion for Reconsideration:
51. Clearly, not being an agent or employee of petitioner PSI, PSI
[sic] is not liable for Dr. Ampil's acts during the operation.
Considering further that Dr. Ampil was personally engaged as a
doctor by Mrs. Agana, it is incumbent upon Dr. Ampil, as "Captain
of the Ship", and as the Agana's doctor to advise her on what to do
with her situation vis-a-vis the two missing gauzes. In addition to
noting the missing gauzes, regular check-ups were made and no
signs of complications were exhibited during her stay at the
hospital, which could have alerted petitioner PSI's hospital to
render and provide post-operation services to and tread on Dr.
Ampil's role as the doctor of Mrs. Agana. The absence of
negligence of PSI from the patient's admission up to her
discharge is borne by the finding of facts in this case. Likewise
evident therefrom is the absence of any complaint from Mrs.
Agana after her discharge from the hospital which had she
brought to the hospital's attention, could have alerted petitioner
PSI to act accordingly and bring the matter to Dr. Ampil's
attention. But this was not the case. Ms. Agana complained
ONLY to Drs. Ampil and Fuentes, not the hospital. How then
could PSI possibly do something to fix the negligence committed
by Dr. Ampil when it was not informed about it at
all.[55](emphasis supplied)
PSI reiterated its admission when it stated that had Natividad Agana
"informed the hospital of her discomfort and pain, the hospital
would have been obliged to act on it."[56]
The significance of the foregoing statements is critical.
P a g e | 118
First, they constitute judicial admission by PSI that while it had no
power to control the means or method by which Dr. Ampil
conducted the surgery on Natividad Agana, it had the power to
review or cause the review of what may have irregularly transpired
within its walls strictly for the purpose of determining whether some
form of negligence may have attended any procedure done inside its
premises, with the ultimate end of protecting its patients.
Second, it is a judicial admission that, by virtue of the nature of its
business as well as its prominence[57] in the hospital industry, it
assumed a duty to "tread on" the "captain of the ship" role of any
doctor rendering services within its premises for the purpose of
ensuring the safety of the patients availing themselves of its services
and facilities.
Third, by such admission, PSI defined the standards of its corporate
conduct under the circumstances of this case, specifically: (a) that it
had a corporate duty to Natividad even after her operation to ensure
her safety as a patient; (b) that its corporate duty was not limited to
having its nursing staff note or record the two missing gauzes and (c)
that its corporate duty extended to determining Dr. Ampil's role in it,
bringing the matter to his attention, and correcting his negligence.
And finally, by such admission, PSI barred itself from arguing in its
second motion for reconsideration that the concept of corporate
responsibility was not yet in existence at the time Natividad
underwent treatment;[58] and that if it had any corporate
responsibility, the same was limited to reporting the missing gauzes
and did not include "taking an active step in fixing the negligence
committed."[59] An admission made in the pleading cannot be
controverted by the party making such admission and is conclusive
as to him, and all proofs submitted by him contrary thereto or
inconsistent therewith should be ignored, whether or not objection is
interposed by a party.[60]
Given the standard of conduct that PSI defined for itself, the next
relevant inquiry is whether the hospital measured up to it.
PSI excuses itself from fulfilling its corporate duty on the ground
that Dr. Ampil assumed the personal responsibility of informing
Natividad about the two missing gauzes.[61] Dr. Ricardo Jocson, who
was part of the group of doctors that attended to Natividad, testified
that toward the end of the surgery, their group talked about the
missing gauzes but Dr. Ampil assured them that he would personally
notify the patient about it.[62] Furthermore, PSI claimed that there
was no reason for it to act on the report on the two missing gauzes
because Natividad Agana showed no signs of complications. She did
not even inform the hospital about her discomfort.[63]
The excuses proffered by PSI are totally unacceptable.
To begin with, PSI could not simply wave off the problem and
nonchalantly delegate to Dr. Ampil the duty to review what
transpired during the operation. The purpose of such review would
have been to pinpoint when, how and by whom two surgical gauzes
were mislaid so that necessary remedial measures could be taken to
avert any jeopardy to Natividad's recovery. Certainly, PSI could not
have expected that purpose to be achieved by merely hoping that the
person likely to have mislaid the gauzes might be able to retrace his
own steps. By its own standard of corporate conduct, PSI's duty to
initiate the review was non-delegable.

While Dr. Ampil may have had the primary responsibility of
notifying Natividad about the missing gauzes, PSI imposed upon
itself the separate and independent responsibility of initiating the
inquiry into the missing gauzes. The purpose of the first would have
been to apprise Natividad of what transpired during her surgery,
while the purpose of the second would have been to pinpoint any
lapse in procedure that led to the gauze count discrepancy, so as to
prevent a recurrence thereof and to determine corrective measures
that would ensure the safety of Natividad. That Dr. Ampil
negligently failed to notify Natividad did not release PSI from its
self-imposed separate responsibility.
Corollary to its non-delegable undertaking to review potential
incidents of negligence committed within its premises, PSI had the
duty to take notice of medical records prepared by its own staff and
submitted to its custody, especially when these bear earmarks of a
surgery gone awry. Thus, the record taken during the operation of
Natividad which reported a gauze count discrepancy should have
given PSI sufficient reason to initiate a review. It should not have
waited for Natividad to complain.
As it happened, PSI took no heed of the record of operation and
consequently did not initiate a review of what transpired during
Natividad's operation. Rather, it shirked its responsibility and passed
it on to others - to Dr. Ampil whom it expected to inform Natividad,
and to Natividad herself to complain before it took any meaningful
step. By its inaction, therefore, PSI failed its own standard of
hospital care. It committed corporate negligence.
It should be borne in mind that the corporate negligence ascribed to
PSI is different from the medical negligence attributed to Dr. Ampil.
The duties of the hospital are distinct from those of the doctor-
consultant practicing within its premises in relation to the patient;
hence, the failure of PSI to fulfill its duties as a hospital corporation
gave rise to a direct liability to the Aganas distinct from that of Dr.
Ampil.
All this notwithstanding, we make it clear that PSI's hospital liability
based on ostensible agency and corporate negligence applies only to
this case, pro hac vice. It is not intended to set a precedent and
should not serve as a basis to hold hospitals liable for every form of
negligence of their doctors-consultants under any and all
circumstances. The ruling is unique to this case, for the liability of
PSI arose from an implied agency with Dr. Ampil and an admitted
corporate duty to Natividad.[64]
Other circumstances peculiar to this case warrant this ruling, [65] not
the least of which being that the agony wrought upon the Aganas has
gone on for 26 long years, with Natividad coming to the end of her
days racked in pain and agony. Such wretchedness could have been
avoided had PSI simply done what was logical: heed the report of a
guaze count discrepancy, initiate a review of what went wrong and
take corrective measures to ensure the safety of Nativad. Rather, for
26 years, PSI hemmed and hawed at every turn, disowning any such
responsibility to its patient. Meanwhile, the options left to the
Aganas have all but dwindled, for the status of Dr. Ampil can no
longer be ascertained.[66]
Therefore, taking all the equities of this case into consideration, this
Court believes P15 million would be a fair and reasonable liability of The anesthesia given was a general anesthesia with the use of an
PSI, subject to 12% p.a. interest from the finality of this resolution to endotracheal tube. Dr. Carozza supervised the procedure, with Nurse
full satisfaction.
P a g e | 119
WHEREFORE, the second motion for reconsideration is DENIED
and the motions for intervention are NOTED.
Professional Services, Inc. is ORDERED pro hac vice to pay
Natividad (substituted by her children Marcelino Agana III, Enrique
Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund
Agana) and Enrique Agana the total amount of P15 million, subject
to 12% p.a. interest from the finality of this resolution to full
satisfaction.
No further pleadings by any party shall be entertained in this case.
Let the long-delayed entry of judgment be made in this case upon
receipt by all concerned parties of this resolution.
DAVID E. THOMAS V. RALEIGH GENERAL HOSPITAL, A
CORPORATION, AND DR. JOSEPH J. CAROZZA AND DR.
ELIAS H. ISAAC.NO. 17495
SUPREME COURT OF APPEALS OF WEST
VIRGINIA.MAY 27, 1987.
*223 TIMOTHY R. RUCKMAN, CALLAGHAN &
RUCKMAN, SUMMERSVILLE, FOR
APPELLANT.WILLIAM H. FILE, JR., BECKLEY, FOR
RALEIGH GEN. HOSP.EDGAR A. POE, JR., SHUMAN,
ANNAND & POE, CHARLESTON, FOR DR. ELIAS ISAAC.
BROTHERTON, Justice:This is an appeal by David E. Thomas from
two summary judgments of the Circuit Court of Raleigh County.
Thomas filed an action against Raleigh General Hospital, Dr. Joseph
J. Carozza, and Dr. Elias H. Isaac for medical malpractice. The
allegations by Thomas alleged active negligence only by Dr.
Carozza, but none by Raleigh General Hospital or Dr. Isaac. Instead,
Thomas relied on theories of vicarious liability for these defendants.
Nevertheless, the trial court found no vicarious liability and
dismissed the two defendants, from which ruling Thomas appeals.
David Thomas arrived at the emergency room of Raleigh General
Hospital at 10:06 p.m. on December 18, 1981, for a strain on his
right side. The next day he was examined by Dr. Isaac. Thomas told
Isaac that he had been operated on four times for an incisional hernia
with a mesh repair. The patient was then admitted to the hospital for
possible repair of another hernia.
On December 30, 1981, Dr. Isaac performed an exploration of the
incisional area called a mini-laparotomy. The anesthesia was given
under the direction and control of Dr. Joseph Carozza, a board
certified anesthesiologist, and a certified registered nurse-anesthetist,
Larry Rupe.
The exploration revealed no evidence of a hernia and revealed that
the previous hernia repair was strong. All findings of the surgery
were good, and Thomas appeared to tolerate the procedures well
with no complications.
Rupe actually giving the anesthesia.

The patient was released on January 2, 1982, with no apparent
complications. However, on a follow-up visit to Dr. Isaac's office on
January 6, 1982, Thomas complained of being hoarse. His voice was
weak and breathy. For this condition Thomas went to see Dr. Romeo
Lim in Charleston. According to a May 13, 1982, letter by Lim,
Thomas' voice was restored to near normal following steroid
injections.
This law suit was filed in the Circuit Court of Raleigh County
against Raleigh General Hospital and Dr. Joseph Carozza. The
complaint was later amended to add Dr. Elias Isaac as a defendant.
Motions were made to dismiss the hospital and Dr. Isaac. In ruling
on these motions, the trial court noted that there was no claim that
the injury occurred directly from Dr. Isaac's surgery, but that the
injury allegedly occurred when an endotracheal tube was inserted or
removed by the nurse-anesthetist. The insertion and removal of the
tube was done under the direction of Dr. Carozza and his employee,
Larry Rupe. Since the allegations against Isaac and the hospital
alleged no active negligence, and *224 the court decided that there
was no vicarious liability, the court dismissed the hospital and Isaac.
From this ruling Thomas appeals.
I.
We agree with the trial court in dismissing Dr. Isaac. The only
allegations against Dr. Isaac were based on theories of vicarious
liability. Thomas was not claiming that Isaac injured him through an
act of negligence which Isaac committed, but rather that Isaac's
supposed agents, whom he was supervising and controlling, injured
Thomas. The theory alleged by Thomas would support a finding of
vicarious liability against Isaac if proved. Where a defendant has
control over the negligent actor, he may be vicariously liable for that
actor's negligence. See generally, 5 F. Harper, F. James and O. Gray,
The Law of Torts, § 26.1 (2d ed. 1986). Nevertheless, depositions
and interrogatories were taken of all the principal actors in the case,
including the anesthetist, Larry Rupe, the anesthesiologist, Dr.
Carozza, the surgeon, Dr. Isaac, and the assistant surgeon, Dr. Patel.
All of the deposition testimony made it clear that Dr. Isaac had
nothing to do with the anesthesia procedure. Most of the witnesses
were unsure whether or not Isaac was even in the room when the
tube was inserted, but all were quite clear that he exercised no
control whatsoever over Carozza or Rupe.
Thus, Dr. Isaac, in support of his motion for summary judgment, has
pointed to evidence in the record which proves that he had no
control over the anesthesia procedure. This evidence rebuts Thomas'
allegation that Isaac had some control over Carozza and Rupe. In
order to resist this motion for summary judgment, Thomas must then
have presented to the trial court evidence showing that these facts
were in dispute. We noted in syllabus point 2 of Guthrie v.
Northwestern Mut. Life Ins. Co., 158 W.Va. 1, 208 S.E.2d 60
(1974), that "[u]nder the provisions of Rule 56 of the West Virginia
Rules of Civil Procedure, when the moving party presents
depositions, interrogatories, affidavits or otherwise indicates that
there is no genuine issue as to any material fact, the resisting party to
avoid summary judgment must present some evidence that the facts
are in dispute." See also syllabus point 5, McCullough Oil, Inc. v.
Rezek, ___ W.Va. ___, 346 S.E.2d 788 (1986). In the present case
Thomas presented no evidence to dispute the finding that Dr. Isaac
had no control over the anesthesia procedure, and therefore the trial
court's ruling on this matter was correct.
P a g e | 120
Thomas also argues the "captain of the ship" doctrine set out in
McConnell v. Williams, 361 Pa. 355, 362, 65 A.2d 243, 246 (1949).
Under this doctrine, a surgeon is likened to the captain of a ship, in
that it is his duty to control everything going on in the operating
room. Thus, liability is imposed by virtue of the surgeon's status and
without any showing of actual control by the surgeon. We have not
yet touched on this issue in West Virginia. See Farrell, The Law of
Medical Malpractice in West Virginia, 82 W.Va.L.Rev. 251, 278
(1979).
In looking to the history of this doctrine, Pennsylvania originally
adopted the captain of the ship doctrine to get around charitable
immunity for hospitals:
... [I]f operating surgeons were not to be held liable for the negligent
performance of the duties of those working under them, the law
would fail in large measure to afford a means of redress for
preventable injury sustained during the course of such operations.
361 Pa. at 364, 65 A.2d at 247. Most states have now abolished the
hospital charitable immunity doctrine, as did West Virginia in
syllabus point 1 of Adkins v. St. Francis Hosp., 149 W.Va. 705, 143
S.E.2d 154 (1965). The need for the doctrine gone, the majority of
states which are now considering the captain of the ship doctrine are
rejecting it. See, e.g., May v. Broun, 261 Or. 28, 37-38, 492 P.2d
776, 780-781 (1972); Sparger v. Worley Hosp., Inc., 547 S.W.2d
582, 584 (Tex.1977).[1]
*225 We reject the captain of the ship doctrine. The trend toward
specialization in medicine has created situations where surgeons do
not always have the right to control all personnel within the
operating room. See Thompson v. Lillehei, 164 F. Supp. 716, 721
(D.Minn.1958), aff'd., 273 F.2d 376 (8th cir.1959). An assignment
of liability based on a theory of actual control more realistically
reflects the actual relationship which exists in a modern operating
room. See May v. Broun, 261 Or. 28, 37-38, 492 P.2d 776, 781
(1972); see also Bria v. St. Joseph's Hosp., 153 Conn. 626, 629-630,
220 A.2d 29, 31 (1966).[2]
II.
The question before the Court concerning the dismissal of Raleigh
General Hospital is whether Carozza was an independent contractor
or an agent of the hospital. If he is found to be an independent
contractor, then the hospital is not liable for his negligence. See, e.g.,
Cross v. Trapp, ___ W.Va. ___, 294 S.E.2d 446, 459 (1982); see
generally, Annotation, Liability of Hospital or Sanitorium for
Negligence of Physician or Surgeon, 51 A.L.R.4th 235, § 5 (1987).
If, however, he is found to be an agent of the hospital, then the
hospital may be vicariously liable for his negligence. See, e.g.,
Jenkins v. Charleston General Hosp. & Training School, 90 W.Va.
230, 235, 110 S.E. 560, 562 (1922); Cross v. Trapp, ___ W.Va. ___,
294 S.E.2d 446, 459 (1982) (implied); see generally, Annotation, 51
A.L.R.4th 235, § 3 (1987).
While there was no evidence which would support a holding of
vicarious liability as to Dr. Isaac, this cannot be said of Raleigh
General Hospital.

Dr. Carozza held the positions of Director of Respiratory Services
and Chief of Anesthesiology at the hospital. The hospital gave him
an office and a stipend for these duties. There is a factual question as
to whether these duties and compensation would create a
relationship where Dr. Carozza was the "manager" of anesthesiology
at the hospital. A hospital cannot absolve itself from liability of a
treating physician where that physician was a "manager" of the
hospital. See Vaughan v. Memorial Hosp., 100 W.Va. 290, 293, 130
S.E. 481, 482 later app., 103 W.Va. 156, 136 S.E. 837 (1925).
Further, Dr. Carozza and his associate were the only
anesthesiologists used by the hospital. A patient had no choice in
choosing an anesthesiologist. This was assigned to him by the
hospital. Where a patient goes to a hospital seeking medical services
and is forced to rely on the hospital's choice of physician to render
those services, the hospital may be found vicariously liable for the
physician's negligence. See, e.g., Paintsville Hospital Co. v. Rose,
683 S.W.2d 255, 256-258 (Ky.1985). See also Annotation, 51
A.L.R.4th 235, § 13(a) (1987).
"A motion for summary judgment may only be granted where there
is no genuine issue as to any material fact and the moving party is
entitled to a judgment as a matter of law." Syllabus point 2,
Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 246 S.E.2d 907
(1978). Because there are material facts at issue in the dismissal of
Raleigh General Hospital, we find that the grant of summary
judgment *226 by the trial court was improper and therefore reverse
on this issue.
For the reasons set forth above, the dismissal of Dr. Isaac is
affirmed, and the dismissal of Raleigh General Hospital is reversed
and the case is remanded.
Affirmed in part, reversed in part, and remanded.
NOTES
[1] The court in Sparger noted that the "captain of the ship" doctrine
had spread further than its drafters intended:
Similes sometimes help to explain a factual situation, but in legal
writing, phrases have a way of being canonized and of growing until
they can stand and walk independently of the usual general rules.
Mr. Justice Frankfurter once wrote concerning such phrase-making
in judicial opinions: "The phrase ... is an excellent illustration of the
extent to which uncritical use of words bedevils the law. A phrase
begins life as a literary expression; its felicity leads to its lazy
repetition; and repetition soon establishes it as a legal formula,
undiscriminatingly used to express different and sometimes
contradictory ideas." Tiller v. Atlantic Coast Line R. Co., 318 U.S.
54, 68, 63 S. Ct. 444, 452, 87 L. Ed. 610 (1942). The result in the
use of the captain of the ship is that a surgeon or physician may be
held liable, not as others upon the basis of the general rule of
borrowed servant, but as captain of the ship.
547 S.W.2d at 584.
[2] Even Pennsylvania has suggested that the captain of the ship
doctrine may no longer be a viable theory of vicarious liability under
Pennsylvania law. See Grubb v. Albert Einstein Medical Center, 255
Pa.Super. 381, 402, 387 A.2d 480, 491 (1978).
P a g e | 121
Dan S. THOMPSON, Plaintiff,
v.
C. Walton LILLEHEI, Richard Varco, Herbert Warden, Earl
Schultz, Joseph Buckley, James Matthews, University of
Minnesota, and The Regents of the University of Minnesota,
Defendants.
Geraldine B. THOMPSON, Plaintiff,
v.
C. Walton LILLEHEI et al., Defendants.
Civ. Nos. 5538, 5539.
United States District Court D. Minnesota, Fourth Division.
September 3, 1958.
DEVITT, District Judge.This is an action for malpractice against the
University of Minnesota, its Board of Regents, and six medical
doctors, all members or former members of the University of
Minnesota Medical School faculty. The plaintiff, Geraldine
Thompson, suffered injuries to her person allegedly as the result of
negligence in the performance of certain medical procedures. She
and her husband, the other plaintiff, sue to recover damages. There is
diversity of citizenship between the parties.
In recent years members of the University of Minnesota Medical
School faculty have specialized in the performance of so-called
"open heart" surgery, principally upon small children born with
ventricular septal defects. This defect is described in layman's
language as a hole between the two pumping chambers of the heart.
Until recently such a birth defect was viewed as being fatal. These
doctors have established a "controlled cross circulation" procedure
for successfully operating upon such defects. This method
contemplates that the patient will be temporarily sustained by a
"donor", who occupies an adjoining table during the operation, and
who, through a system of connecting tubes, furnishes heart and lung
facilities to the patient while the heart is operated upon to cure the
defect.
The defendants Lillehei and Varco, both surgeons, have established
reputations as experts in this field. They have performed many such
operations and have conducted lectures and written professional
papers explanatory of the procedure. The operation here involved
was to be the 17th of its kind.
The plaintiffs' 8-year-old daughter, Leslie Ann, was born with a
ventricular septal defect. Plaintiffs arranged, principally through
defendant Lillehei, for the performance of a controlled cross
circulation operation upon her. The opertion was started on the
morning of October 5, 1954. The patient's mother, Mrs. Geraldine
Thompson, was to serve as the donor. Medical procedures
preparatory to the actual heart operation took several hours. The
patient and the donor were placed on adjoining operating tables
about four feet apart. Both were anesthetized. All of the defendants
here named were in the operating room. Others, mostly medical
students and nurses, were also in the room. Drs. Lillehei and Varco
were at the patient's operating table in the capacity of surgeons. Dr.
Buckley was there as an anesthesiologist.[1] Dr. Warden was at the
donor's operating table as a surgeon. One Dr. X, not a defendant,
was at this table as an anesthesiologist.

Prior to the contemplated commencement of the actual heart surgery
on the girl, and before the cross joinder with the mother had been
effected, an inordinate event took place at the donor's table. It was
reported by those present there that it was impossible to detect the
donor's heartbeat or blood pressure. There was evidence that a bottle
of glucose and water hanging overhead, from which a tube entered
her veins, had become *719 empty. Such a device, called an "i. v."
(intravenous), is commonly used in surgical procedures. First aid
methods were employed. She was restored. An operating diagnosis
of air embolism was made. This is described as bubbles of air getting
into the veins. The contemplated operation on Leslie Ann was
abandoned. Allegedly as a result of the air embolism, the donor,
Mrs. Thompson, suffered a brain injury. She was hospitalized at the
University of Minnesota Hospital for five months. She has been
partially incapacitated since. There was evidence that Mrs.
Thompson has undergone substantial physical and mental change,
and that her injuries will be permanent.
The plaintiffs' theory is that the defendants were negligent in the
manner in which they conducted the surgical procedures, specifically
in permitting the glucose and water container to become empty and
thus to cause an air embolism to get into the blood stream, and that
this negligence was the cause of the injuries suffered. Defendants
deny negligence and deny any causal connection between the events
transpiring in the operating room and the brain injury.
Prior to trial, the Court dismissed the lawsuit as to the University of
Minnesota and the Regents of the University of Minnesota. Plaintiffs
had no objections to this. Each is a state governmental body,
immune from suit.
The Court granted motions for directed verdicts as to the defendants defendants is vicariously liable for the alleged negligence of
Schultz and Matthews upon the close of plaintiffs' case. They are
medical doctors, but were essentially bystanders to the events.
The issues went to the jury as to the defendants Lillehei, Varco,
Warden and Buckley, after the Court had denied their motions for
directed verdicts at the close of the testimony. Denial of such
motions is in accordance with recommended policy and is a common In support of their theory as to the vicarious liability of Lillehei,
procedure in the Federal Courts. See Montgomery Ward & Co. v.
Duncan, 1941, 311 U.S. 243, 61 S. Ct. 189, 85 L. Ed. 147; Fratta v.
Grace Lines, 2 Cir., 1943, 139 F.2d 743; Craighead v. Missouri Pac. operation on his daughter, and had several subsequent visits with
Transp. Co., 8 Cir., 1952, 195 F.2d 652. The jury was unable to
agree upon a verdict and was discharged.
For consideration now are the motions of these four defendant-
doctors for orders directing the entry of judgment in their favor
notwithstanding the failure of the jury to agree, as is authorized by
Rule 50(b) of the Rules of Civil Procedure, 28 U.S.C.A. In effect, I
am asked again to rule on the motions for directed verdicts.
The Court has power to enter judgment for the defendants
notwithstanding the inability of the jury to agree, if there is an
absence of any substantial evidence to prove liability and damages. I Indemnity Co. v. St. Joseph's Hospital, 1942, 212 Minn. 558, 4
may not weigh the evidence. I may not grant the motion if a jury
question is present. The issue is a legal one as to whether the
plaintiffs, under all the evidence and reasonable inferences to be
drawn therefrom, considered in the light most favorable to the
plaintiffs, have made out a case as to each defendant. Schad v.
Twentieth Century-Fox Film Corp., 3 Cir., 1943, 136 F.2d 991; see 2 on the patient. It appears from the evidence, without contradiction,
Barron & Holtzoff, Fed. Prac. & Proc. § 1079, and cases cited.
P a g e | 122
I have no hesitation in concluding that the plaintiffs have presented
no evidence of actual negligence on the part of any of of the
defendants. Each performed his assigned duties in accordance with
accepted medical standards. None of them omitted to do that which
they should have done. Briefly examining the conduct of each, as
reflected in the evidence, it appears that:
Dr. Lillehei was the surgeon at the patient's table. He performed no
surgical procedure upon the donor. He was solely occupied with the
preparatory operation upon the patient. Of necessity his back was to
the donor's table. There was no showing that he failed in any
responsibility following the emergency when it became impossible
to detect *720 the donor's pulse, or at any other time.
Dr. Varco served as an assistant surgeon to Dr. Lillehei at the
patient's table. He had no responsibility in connection with the
surgical procedures or anesthetics on the donor.
Dr. Buckley was the anesthesiologist at the patient's table. He had no
responsibility in connection with any procedures at the donor's table.
Dr. Warden was assigned as surgeon at the donor's table. There was
no evidence that he negligently performed or failed to discharge any
of his responsibilities. One Dr. X, not a defendant in this lawsuit,
was anesthesiologist at this table and, it would appear, was solely
responsible for the administration of anesthetics and the operation of
the "i. v." of glucose and water which allegedly became empty.
There was no evidence indicating that this was Dr. Warden's duty.
It thus appears that there is no evidence of any negligence on the part
of these four defendants. But the plaintiffs argue that each of these
somebody in the operating room who did something wrong to cause
the air embolism which, it is said, brought about the brain injury.
This argument is pressed only as to Dr. Lillehei. Although asserted
as to the others, there is no plausible ground for considering it as to
them.
plaintiffs point to evidence which shows that plaintiff, Dan S.
Thompson, made first contact with Lillehei concerning the proposed
Lillehei about it; correspondence between the two was exchanged;
they arranged a date for the operation, and Lillehei allegedly assured
Thompson that there was very little danger involved to the donor and
that precautions would be taken to prevent an air embolism. Later
Lillehei visited Mrs. Thompson in the hospital on several occasions
and communicated with her husband as to the diagnosis of air
embolism, and recommended needful physical therapy.
From this, plaintiffs urge that Lillehei was the surgeon in charge of
the operation, exercised supervision over others participating in it, or
should have done so, and is responsible for their conduct and liable
for their acts of negligence, citing principally St. Paul-Mercury
N.W.2d 637.
Lillehei denies that he was in responsible charge of the entire
operation. He claims he was responsible only for the heart operation
that Lillehei and the other doctor-defendants are salaried members of
 P a g e | 123

the University of Minnesota Medical School faculty, engaged in
teaching duties and surgical practice as members of a "team", by
assignment of their respective superiors. Thus, one Dr.
Wangensteen, head of the Department of Surgery, University of
Minnesota Medical School, assigns the surgeons to scheduled
operations, as he did in this case, and the corresponding head of the
Anesthesiology Department assigns the anesthesiologists. Each of
the doctors thus assigned is responsible to his respective Department
Head, and subject to his direction. The defendants do not receive the
fees paid for medical services. These fees go to the University.
liability, where several doctors are engaged in an operation, in this
language:
"* * * If any doctor or nurse is negligent in any act or omission
connected with an operation, it is right and just that such an one be
held responsible; but, where several have distinct and separate parts
to take, which require the undivided attention of each, only the one
who fails to use due care in the performance of the part assigned to
him should be held responsible. * * *"

Lillehei claims that he therefore had no power of direction over, or To extend the doctrine of respondeat superior to a situation such as
responsibility for, Dr. X in the discharge of his duties as that reflected in the evidence would be to strain the doctrine beyond
anesthesiologist to the donor, and is not liable for his negligence, ifthe basis for its creation. See Prosser, Torts, 2d Ed. 1955, Sec. 62.
any there be. There is no evidence that Lillehei engaged or directed Dr. X or any
of the others in the operating room, or that he had the authority to do
so. The evidence is to the contrary. The only evidence is that
This recital summarizes the respective contentions of the parties on
Lellehei was the one through whom the operation was arranged —
this issue. I am satisfied that the evidence supports Lillehei's
the one who dealt with the plaintiffs in connection with it. This
position. There is no evidence to the contrary. There was no showing
relationship does not spell out responsibility by Lillehei for every
that Lillehei appointed or employed Dr. X or others in the operating
event which transpired in the operating room. It is manifest from the
room, or that he had any supervision or control over Dr. X or others
evidence, and especially from one of the exhibits received in
*721 at the donor's table, or that he had any knowledge of any
evidence, that the plaintiffs contracted that the operation be
negligent act being taken by others. Absent this, the doctrine of
performed, not by Lillehei, but by the "staff of the University
"respondeat superior" is inapplicable and Lillehei has no vicarious
Hospital". In granting permission for the operation, the plaintiff, Dan
responsibility. Compare Morey v. Thybo, 7 Cir., 1912, 199 F. 760,
S. Thompson, signed a statement reading:
42 L.R.A.,N. S., 785 with St. Paul-Mercury Indemnity Co. v. St.
Joseph's Hospital, supra.
"I, the undersigned, hereby grant permission for an operation upon
my daughter, Leslie Ann, such operation to be performed by the staff
And even assuming that Lillehei was "surgeon-in-charge" or
"captain of the ship", as urged, does it follow that he is responsible of the University Hospitals." [Emphasis supplied.]
for the negligence, if any, of an anesthesiologist such as Dr. X,
assigned to the case by his own superior, exercising his own The case of St. Paul-Mercury Indemnity Co. v. St. Joseph's Hospital,
independent special medical knowledge in performing his duties supra, strongly relied upon by the plaintiffs, involved *722 a fact
without any specific directions from Lillehei? I don't think so. The situation different from that presented here, and enunciated a
cases so indicate. See, among others, Morey v. Thybo, 7 Cir., 1912, principle of law inapplicable to this situation. There the Minnesota
199 F. 760; Brossard v. Koop, 1937, 200 Minn. 410, 274 N.W. 241; Supreme Court held that responsibility for injuries to a patient,
Nelson v. Sandell, 1926, 202 Iowa 109, 209 N.W. 440, 46 A.L.R. inflicted by a hospital nurse, is not to be shared by the hospital in an
1447; Runyan v. Goodrum, 1921, 147 Ark. 481, 228 S.W. 397, 13 action for contribution after the entry of the judgment against the
A.L.R. 1403; Richardson v. Denneen, 1947, 192 Misc. 871, 82 doctor who performed the operation, where the nurse in question
N.Y.S.2d 623; Woodson v. Huey, Okl.1953, 261 P.2d 199; Meyer v. was assigned by the hospital to the supervision and direction of the
St. Paul-Mercury Indemnity Co., La. App., 61 So. 2d 901 and Huber operating surgeon.
v. Protestant Deaconess Hospital Ass'n, Ind.App. 1956, 133 N.E.2d
864. Finally, we consider the evidence of proximate causation between
the negligence of the defendants, assuming it to be shown, and the
In the case of Meyer v. St. Paul-Mercury Indemnity Co., supra [61 brain damage suffered by Mrs. Thompson. The law as to the proof
So. 2d 910], the Court, in holding that ordinarily a surgeon cannot be required to show proximate causation in a malpractice case is clear
held liable for the negligent acts of an anesthetist, quoted from and exacting.
Regan, Doctor and Patient and the Law, 103 (2d Ed. 1949), as
follows: The mere fact that an accident happened and that injuries are
suffered does not establish liability as a matter of course. Doctors are
"* * * if the anesthetist is a licensed physician, qualified in not insurers of their patients' welfare or of the success of an
anesthesia, and if the entire charge of the administration of the operation. They are only required to possess the skill and learning
anesthetic is placed in his hands, the operating surgeon is not, and it possessed by the average member of their branch of the profession in
is submitted that he cannot reasonably be, liable for the anesthetist's good standing in that locality, and to apply that skill and learning
negligence — except, of course, as such negligence * * * is observed with due care. Yates v. Gamble, 1936, 198 Minn. 7, 268 N.W. 670.
* * * and nothing done about it."
Plaintiffs here had the burden of proving that there was negligence,
and that such negligence was the cause of the injury. It is well
In Brossard v. Koop, supra [200 Minn. 410, 274 N.W. 243], in a
established that this proof must be something more than that which
similar situation, the Minnesota Supreme Court outlined the scope of
is consistent with their theory of how it happened. Plaintiffs must
show that it is more probable that the harm resulted from some

negligence for which the defendants were responsible than in
consequence of something for which they were not responsible.
Yates v. Gamble, supra; Williamson v. Andrews, 1936, 198 Minn.
349, 270 N.W. 6 and Simon v. Larson, 1941, 210 Minn. 317, 298
N.W. 33.
The doctrine of res ipsa loquitur does not apply to a case of this kind. respondents of any liability. The Court of Appeals denied petitioners'
The plaintiffs concede this. (Albeit much of their argument is based motion for reconsideration.
on the theory that it is applicable.) The law establishes it, and
requires that plaintiffs prove their case through the testimony of
medical experts. Yates v. Gamble, supra; Wallstedt v. Swedish
Hospital, 1945, 220 Minn. 274, 19 N.W.2d 426.
Two medical experts testified. Dr. Robert Jeub testified for the
plaintiffs. He said he was unable to say what caused Mrs.
Thompson's lesion of the brain. He did say that air embolism can
cause this type of brain lesion, but he also said that there are many
other possible causes, such as congenital anomaly, traumatic
congenital vascular anomaly, hemorrhage, embolism or thrombosis.
Dr. H. B. Hannah, expert for the defendants, categorically stated that mild labor pains prompting Corazon and Rogelio Nogales ("Spouses
an air embolism could not cause a brain lesion. He recited reasons
for his opinion. In essense he said that an air embolism, in order to
reach the brain, would have to pass through the heart. He said this
was medically impossible, and was unknown to the profession. It
would cause death upon reaching the heart.
It is thus apparent that plaintiffs have not proved, in accordance with Estrada. Upon Corazon's admission at the CMC, Rogelio Nogales
the standards required by the Minnesota Supreme Court, that the
injury was caused by the negligence of any of these defendants
either directly or vicariously. A jury may not be permitted to
speculate on the matter. A verdict must be founded on proof. Here
there was no proof that the injury was caused by malpractice of the
named defendants. Even the plaintiffs' medical expert could not say
so. It may be that liability, if it exists, lies elsewhere. These
defendants have not been shown to be at fault.
The motions of each of the defendants under Rule 50(b) are granted.
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
P a g e | 124
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
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
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.
("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 damages 15 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.
P a g e | 125
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 In its Decision of 6 February 1998, the Court of Appeals upheld the
P100,000.00 and to pay the costs of suit.
For failure of the plaintiffs to adduce evidence to support its Hospital27 applies to this case. According to the Court of Appeals,
[sic] allegations against the other defendants, the complaint the present case differs from the Darling case since Dr. Estrada is an
is hereby ordered dismissed. While the Court looks with
disfavor the filing of the present complaint against the other a physician and a nurse who were employees of the hospital.
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
P a g e | 126
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 2002 21
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 2002 24 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
trial court's ruling. The Court of Appeals rejected petitioners' view
that the doctrine in Darling v. Charleston Community Memorial
independent contractor-physician whereas the Darling case involved
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
P a g e | 127
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 Agreement 37 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.
P a g e | 128
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 Significantly, no one from CMC informed the Spouses Nogales that
medical staff and facilities to Dr. Estrada. Upon Dr. Estrada's request Dr. Estrada was an independent contractor. On the contrary, Dr.
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)
P a g e | 129
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.
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
59
Despite this Court's pronouncement in its 9 September 2002
Resolution that the filing of petitioners' Manifestation confined
petitioners' claim only against CMC, Dr. Espinola, Dr. Lacson, and
P a g e | 130
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 upon
such observation.
d) Dr. Perpetua Lacson

Petitioners fault Dr. Perpetua Lacson for her purported delay in the
delivery of blood Corazon needed.64 Petitioners claim that Dr.
Lacson was remiss in her duty of supervising the blood bank staff.
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.
e) Dr. Noe Espinola
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
hemacel administration was introduced. Therefore, there is no basis
to hold Nurse Dumlao liable for negligence.
On the Award of Interest on Damages
The award of interest on damages is proper and allowed under
Article 2211 of the Civil Code, which states that in crimes and quasi- However, the operation appeared to be flawed. In the corresponding
delicts, interest as a part of the damages may, in a proper case, be
adjudicated in the discretion of the court. 68
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
P a g e | 131
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.
SO ORDERED.
G.R. No. 126297 January 31, 2007
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankind’s 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 hospital’s 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 discharge. After a series of
medical examinations, Dr. Miguel Ampil, petitioner in G.R. No.
127590, diagnosed her to be suffering from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff 4 of the
Medical City Hospital, performed an anterior resection surgery on
Natividad. He found that the 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 Natividad’s
husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in
G.R. No. 126467, to perform hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took
over, completed the operation and closed the incision.
Record of Operation dated April 11, 1984, the attending nurses
entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no avail continue
for closure."

On April 24, 1984, Natividad was released from the hospital. Her
hospital and medical bills, including the doctors’ fees, amounted to ordering the defendants PROFESSIONAL SERVICES, INC., DR.
P60,000.00.
After a couple of days, Natividad complained of excruciating pain in damages and the interest thereon which are the liabilities of
her anal region. She consulted both Dr. Ampil and Dr. Fuentes about defendants Dr. Ampil and Dr. Fuentes only, as follows:
it. They told her that the pain was the natural consequence of the
surgery. Dr. Ampil then recommended that she consult an oncologist
to examine the cancerous nodes which were not removed during the
operation.
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. Ampil’s 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 Natividad’s 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:
P a g e | 132
WHEREFORE, judgment is hereby rendered for the plaintiffs
MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs,
jointly and severally, except in respect of the award for exemplary
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 attorney’s 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 Natividad’s 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 Natividad’s
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.
P a g e | 133
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 Court’s
attention to other possible causes of Natividad’s detriment. He
argues that the Court should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in Natividad’s 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 Natividad’s body.
Dr. Ampil’s 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
Natividad’s 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 patient’s 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 patient’s 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. Zeagler 10 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 patient’s 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 patient’s 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
Natividad’s 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. Ampil’s negligence is the proximate
cause12 of Natividad’s 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 Natividad’s vagina established the causal link
between Dr. Ampil’s 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 Natividad’s body is a prima facie evidence
of Dr. Fuentes’ negligence.
P a g e | 134
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 plaintiff’s 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 defendant’s 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
Natividad’s body. Clearly, the control and management of the thing
which caused the injury was in the hands of Dr. Ampil, not Dr.
Fuentes.
 P a g e | 135

In this jurisdiction, res ipsa loquitur is not a rule of substantive law, The responsibility treated of in this article shall cease when the
hence, does not per se create or constitute an independent or separate persons herein mentioned prove that they observed all the diligence
ground of liability, being a mere evidentiary rule. 17 In other words, of a good father of a family to prevent damage.
mere invocation and application of the doctrine does not dispense
with the requirement of proof of negligence. Here, the negligence A prominent civilist commented that professionals engaged by an
was proven to have been committed by Dr. Ampil and not by Dr. employer, such as physicians, dentists, and pharmacists, are not
Fuentes. "employees" under this article because the manner in which they
perform their work is not within the control of the latter (employer).
III - G.R. No. 126297 In other words, professionals are considered personally liable for the
fault or negligence they commit in the discharge of their duties, and
Whether PSI Is Liable for the Negligence of Dr. Ampil 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 third issue necessitates a glimpse at the historical development the fault or negligence of a physician or surgeon in the treatment or
operation of patients."21
of hospitals and the resulting theories concerning their liability for
the negligence of physicians.
The foregoing view is grounded on the traditional notion that the
Until the mid-nineteenth century, hospitals were generally charitable professional status and the very nature of the physician’s calling
institutions, providing medical services to the lowest classes of preclude him from being classed as an agent or employee of a
hospital, whenever he acts in a professional capacity. 22 It has been
society, without regard for a patient’s ability to pay. 18 Those who
said that medical practice strictly involves highly developed and
could afford medical treatment were usually treated at home by their
specialized knowledge,23 such that physicians are generally free to
doctors.19 However, the days of house calls and philanthropic health
care are over. The modern health care industry continues to distance exercise their own skill and judgment in rendering medical services
itself from its charitable past and has experienced a significant sans interference.24 Hence, when a doctor practices medicine in a
hospital setting, the hospital and its employees are deemed to
conversion from a not-for-profit health care to for-profit hospital
subserve him in his ministrations to the patient and his actions are of
businesses. Consequently, significant changes in health law have
his own responsibility.25
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 The case of Schloendorff v. Society of New York Hospital 26 was
vicarious liability under the theories of respondeat superior, apparent then considered an authority for this view. The "Schloendorff
authority, ostensible authority, or agency by estoppel. 20 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
In this jurisdiction, the statute governing liability for negligent acts is
Article 2176 of the Civil Code, which reads: exempt from the application of the respondeat superior principle for
fault or negligence committed by physicians in the discharge of their
profession.
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
However, the efficacy of the foregoing doctrine has weakened with
done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed the significant developments in medical care. Courts came to realize
by the provisions of this Chapter. that modern hospitals are increasingly taking active role in supplying
and regulating medical care to patients. No longer were a hospital’s
functions limited to furnishing room, food, facilities for treatment
A derivative of this provision is Article 2180, the rule governing and operation, and attendants for its patients. Thus, in Bing v.
vicarious liability under the doctrine of respondeat superior, thus: Thunig,27 the New York Court of Appeals deviated from the
Schloendorff doctrine, noting that modern hospitals actually do far
ART. 2180. The obligation imposed by Article 2176 is demandable more than provide facilities for treatment. Rather, they regularly
not only for one’s own acts or omissions, but also for those of employ, on a salaried basis, a large staff of physicians, interns,
persons for whom one is responsible. nurses, administrative and manual workers. They charge patients for
medical care and treatment, even collecting for such services
x x x x x x through legal action, if necessary. The court then concluded that
there is no reason to exempt hospitals from the universal rule of
The owners and managers of an establishment or enterprise are respondeat superior.
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the In our shores, the nature of the relationship between the hospital and
occasion of their functions. the physicians is rendered inconsequential in view of our categorical
pronouncement in Ramos v. Court of Appeals28 that for purposes of
Employers shall be liable for the damages caused by their employees apportioning responsibility in medical negligence cases, an
and household helpers acting within the scope of their assigned tasks employer-employee relationship in effect exists between hospitals
even though the former are not engaged in any business or industry. and their attending and visiting physicians. This Court held:

x x x x x x "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 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, x x x, the control
exercised, the hiring, and the right to terminate consultants all fulfill it proudly paraded in the public directory leading the public to
the important hallmarks of an employer-employee relationship, with believe that it vouched for their skill and competence." Indeed, PSI’s
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
PSI’s liability. Its liability is also anchored upon the agency principle servants. The trial court correctly pointed out:
of apparent authority or agency by estoppel and the doctrine of
corporate negligence which have gained acceptance in the
determination of a hospital’s 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 medical and health care should at least exact on the hospital greater,
out" theory, or doctrine of ostensible agency or agency by estoppel, 29 surgery within its facility by its accredited physician or surgeon,
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:
P a g e | 136
"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 physician’s 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 his silence or lack of action, or his failure to
repudiate the agency, knowing that another 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
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
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 hospital’s act of listing him and his specialty in
its lobby directory, as in the case herein. The high costs of today’s
if not broader, legal responsibility for the conduct of treatment and
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 from harm all patients admitted into its facility for medical
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." Premised on the doctrine through their members like defendant surgeons, and their institutions
34
of corporate negligence, the trial court held that PSI is directly liable like PSI’s hospital facility, can callously turn their backs on and
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 hospital’s 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 judiciary’s 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
hospital’s 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
P a g e | 137
treatment. Unfortunately, PSI failed to perform such duty. The
findings of the trial court are convincing, thus:
x x x PSI’s 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 PSI’s 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,
disregard even a mere probability of mistake or negligence by
refusing or failing to investigate a report of such seriousness as the
one in Natividad’s case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on
Natividad with the assistance of the Medical City Hospital’s 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:
x x x In recent years, however, the duty of care owed to the patient
by the hospital has expanded. The emerging trend is to hold the
hospital responsible where the hospital has failed to monitor and
review medical services being provided within its walls. See Kahn
Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977).
Among the cases indicative of the ‘emerging trend’ is Purcell v.
Zimbelman, 18 Ariz. 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
 P a g e | 138

undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App. 165, respondent So Un Chua (Chua), who was confined for hypertension,
500 P. 2d 1153 (1972). This court has confirmed the rulings of the diabetes, and related illnesses.
Court of Appeals that a hospital has the duty of supervising the
competence of the doctors on its staff. x x x. The antecedents of the case follow:

x x x x x x On December 13, 1993, respondents filed a Complaint averring that

on October 30, 1990, respondent Chua, the mother of respondent
In the amended complaint, the plaintiffs did plead that the operation Vicky Ty, was admitted in petitioner's hospital for hypertension and
was performed at the hospital with its knowledge, aid, and diabetes; that while respondent Chua was confined, Judith Chua, the
assistance, and that the negligence of the defendants was the sister of respondent Ty, had been likewise confined for injuries
proximate cause of the patient’s injuries. We find that such general suffered in a vehicular accident; that partial payments of the hospital
allegations of negligence, along with the evidence produced at the bills were made, totaling P435,800.00; that after the discharge of
trial of this case, are sufficient to support the hospital’s liability Judith Chua, respondent Chua remained in confinement and the
based on the theory of negligent supervision." hospital bills for both patients accumulated; that respondent Chua
was pressured by the petitioner, through its Credit and Collection
Anent the corollary issue of whether PSI is solidarily liable with Dr. Department, to settle the unpaid bills; that respondent Ty represented
Ampil for damages, let it be emphasized that PSI, apart from a that she will settle the bills as soon as the funds become available;
general denial of its responsibility, failed to adduce evidence that respondent Ty pleaded to the management that in view of the
showing that it exercised the diligence of a good father of a family in physical condition of her mother, respondent Chua, the
the accreditation and supervision of the latter. In neglecting to offer correspondences relating to the settlement of the unpaid hospital
such proof, PSI failed to discharge its burden under the last bills should be relayed to the former; that these pleas were unheeded
paragraph of Article 2180 cited earlier, and, therefore, must be by the petitioner; that petitioner threatened to implement unpleasant
adjudged solidarily liable with Dr. Ampil. Moreover, as we have measures unless respondent Ty undertakes her mother's obligation as
discussed, PSI is also directly liable to the Aganas. well as the obligation of her sister, Judith Chua, to pay the
hospitalization expenses; that petitioner made good its threat and
employed unethical, unpleasant and unlawful methods which
One final word. Once a physician undertakes the treatment and care
allegedly worsened the condition of respondent Chua, particularly,
of a patient, the law imposes on him certain obligations. In order to
escape liability, he must possess that reasonable degree of learning, by (i) cutting off the telephone line in her room and removing the
skill and experience required by his profession. At the same time, he air-conditioning unit, television set, and refrigerator, (ii) refusing to
render medical attendance and to change the hospital gown and bed
must apply reasonable care and diligence in the exercise of his skill
sheets, and (iii) barring the private nurses or midwives from assisting
and the application of his knowledge, and exert his best judgment.
the patient. Respondents thus prayed for the award of moral
damages, exemplary damages, and attorney's fees.
WHEREFORE, we DENY all the petitions and AFFIRM the
challenged Decision of the Court of Appeals in CA-G.R. CV No.
In its Answer, Amended Answer, and Rejoinder, petitioner
42062 and CA-G.R. SP No. 32198.
specifically denied the material averments of the Complaint and
Reply, and interposed its counterclaims arguing that as early as one
Costs against petitioners PSI and Dr. Miguel Ampil. week after respondent Chua had been admitted to its hospital, Dr.
Rody Sy, her attending physician, had already given instructions for
SO ORDERED. her to be discharged, but respondents insisted that Chua remain in
confinement; that, through its staff, petitioner accordingly
G.R. No. 150355 July 31, 2006 administered medical examinations, all of which yielded negative
results; that respondent Ty voluntarily undertook, jointly and
MANILA DOCTORS HOSPITAL, petitioner, severally, to pay the hospital bills for both patients; that although
vs. respondent Ty paid up to P435,000.00, more or less, she reneged on
SO UN CHUA and VICKY TY, respondents. her commitment to pay the balance in violation of the Contract for
Admission and Acknowledgment of Responsibility for Payment
dated October 30, 1990 which she voluntarily executed; that she
AUSTRIA-MARTINEZ, J.:
signed a Promissory Note on June 5, 1992 for the unpaid balance of
P1,075,592.95 and issued postdated checks to cover the same; that
Before this Court is a Petition for Review on Certiorari under Rule no such undue pressure had been imposed upon respondent Chua to
45 questioning the Decision1 dated October 2, 2001 promulgated by settle the bills, the truth being that, as a matter of standard procedure,
the Court of Appeals (CA) in CA-G.R. CV No. 61581, which the reminders to settle the bills were transmitted not to the patients
affirmed the Decision dated September 30, 1997 of the Regional but to their relatives who usually undertook to pay the same; that
Trial Court (RTC), Branch 159, Pasig City, but which reduced the respondent Ty deliberately evaded the staff of the Credit and
award of damages. Collection Department; that the cutting-off of the telephone line and
removal of the air-conditioning unit, television set, and refrigerator
This case originated from an action for damages filed with the RTC cannot constitute unwarranted actuations, for the same were resorted
by respondents So Un Chua and Vicky Ty against petitioner Manila to as cost-cutting measures and to minimize respondents' charges
Doctors Hospital.2 The complaint is premised on the alleged that were already piling up, especially after respondent Ty refused to
unwarranted actuations of the petitioner towards its patient, settle the balance notwithstanding frequent demands; that respondent
Ty evaded the staff when the latter attempted to inform her that the

room facilities will be cut off to minimize the rising charges; and
that respondents instituted the present civil case purposely as
leverage against the petitioner after the latter had filed criminal
charges for violation of Batas Pambansa (B.P.) Blg. 22 against
respondent Ty for issuing checks, later dishonored, totaling
P1,075,592.95, the amount referring to the unpaid hospital bills. In
its compulsory counterclaim, petitioner prayed, among other items,
for the award of no less than P1,000,000.00 as compensatory
damages due to the filing of a malicious and unfounded suit, and, in
its permissive counterclaim, petitioner prayed for respondents to pay
P1,075,592.95, the amount representing the due and demandable
obligation under the Promissory Note dated June 5, 1992, including
the stipulated interest therein and the 25 percent of the total amount
due as attorney's fees.
During pre-trial, the parties stipulated on the following issues: First,
whether the respondents are liable to the petitioner to pay the
hospital bills arising from the hospitalization of respondent Chua and
Judith Chua; and second, whether the parties are entitled to their
respective claims for damages.3 Furthermore, the parties stipulated
on the following facts: a) Judith Chua was confined from June 14,
1991 to May 2, 1992; b) respondents failed to pay the balance
despite repeated reminders; c) the said reminders referred to the
hospital bills of respondent Chua and Judith Chua; d) one of the
attending physicians of respondent Chua was Dr. Rody Sy; and e)
the petitioner ordered the removal of the facilities in question from
the room of its patient, respondent Chua, with the qualification that
they were constrained to discontinue the same after the
representative of respondent Chua refused to update the hospital bills
or refused to transfer her to semi-deluxe room or ward to lessen
costs.4
On September 30, 1997, the RTC rendered its Decision in favor of
the respondents, the dispositive portion of which states:
WHEREFORE, premises considered, judgment on the
complaint is hereby rendered in favor of the [respondents]
as against the [petitioner] as follows:
[O]rdering the [petitioner] to pay the [respondents] the
following, to wit:
a) P200,000.00 as moral damages;
b) P100,000.00 as exemplary damages; and
c) P50,000.00 as attorney's fees and the amount of
P50,000.00 as litigation costs.
SO ORDERED.5
In brief, the RTC held that the removal of the facilities of the room
triggered the hypertension of respondent Chua; that the petitioner
acted in bad faith in removing the facilities without prior notice; that
her condition was aggravated by the pressure employed by the
administration upon her to pay the hospital bills; that the food
always came late as compared to the other patients; that the beddings
and clothes of respondent Chua were no longer changed and, as a
result, bed sores emerged on her body; that there was an utter lack of
medical attendance; that, because of these, respondent Chua suffered
P a g e | 139
from self-pity and depression; that petitioner clearly discriminated
against the respondents; that respondent Ty had no choice but to sign
the promissory notes in order to secure the release of her mother,
respondent Chua; that the foregoing actuations constitute an abuse of
rights; that petitioner failed to establish the pecuniary loss it suffered
and, hence, it is not entitled to compensatory damages; and that,
since the promissory note is a contract of adhesion, the petitioner is
not entitled to the award of attorney's fees as stipulated thereon.
On appeal to the CA, the petitioner assigned the following errors:
A.
THE HONORABLE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY FINDING THE
ACTUATIONS OF THE ADMINISTRATION OF
DEFENDANT-APPELLANT TO BE IN BAD FAITH,
OPPRESSIVE AND UNNECESSARY AS TO MAKE IT
LIABLE TO PLAINTIFFS-APPELLEES FOR
DAMAGES AND ATTORNEY'S FEES.
B.
THE HONORABLE TRIAL COURT COMMITTED
REVERSIBLE ERROR BY NOT RULING UPON THE
PERMISSIVE COUNTERCLAIM OF DEFENDANT-
APPELLANT WITH RESPECT TO THE P1,075,592.95
REPRESENTING THE HOSPITAL BILL OF
PLAINTIFFS-APPELLEES, WHICH OBLIGATION IS
NOT DISPUTED AND WHICH AMOUNT WAS NEVER
CONTROVERTED BY PLAINTIFFS-APPELLEES.6
On October 2, 2001, the CA promulgated its Decision the dispositive
portion of which reads:
IN VIEW OF ALL THE FOREGOING, the appealed
Decision is hereby AFFIRMED with the modification that
the award of moral damages, exemplary damages as well as
attorney's fees is reduced to Seventy Five Thousand Pesos
(P75,000.00), Thirty Thousand Pesos (P30,000.00) and
Twenty Thousand Pesos (P20,000.00), respectively.
Litigation costs are hereby deleted. Costs against appellant.
SO ORDERED.7
Apart from the reduction in the award of damages, the CA affirmed
all salient portions of the RTC Decision and declined to disturb the
findings of fact.
Petitioner is now before this Court raising essentially the same
grounds heard by the CA.
Incidentally, with respect to the related criminal case against
respondent Ty, this Court, on September 27, 2004, promulgated its
Decision entitled Ty v. People of the Philippines,8 which affirmed
the decisions of the lower courts finding respondent Ty guilty of
violating B.P. Blg. 22 and ordering her to pay the private
complainant, herein petitioner, the total amount of the dishonored
checks.

The petition is impressed with merit.
While, as a rule, only questions of law may be raised in a petition for conclusions from the self-serving and uncorroborated testimonies of
review on certiorari under Rule 45, under certain exceptions, the
Court may re-examine the evidence presented by the parties during
the trial. At least four exceptions exist in this case, namely: (a) when damages so claimed.
the conclusion is a finding grounded entirely on speculation,
surmises, or conjectures; (b) when the judgment is based on a
misapprehension of facts; (c) when the findings of fact are premised petitioner took proactive steps to inform the relatives of respondent
on the supposed absence of evidence and contradicted by the
evidence on record; and (d) when the courts a quo manifestly
overlooked certain relevant facts not disputed by the parties and
which, if properly considered, would justify a different conclusion. 9 after her admission on October 30, 1990, to the time when the
The principal questions are, first, whether the actuations of the
petitioner amount to actionable wrongs, and second, whether the
counterclaims of the petitioner can be backed up by the measure of
preponderant evidence.
In brief, the courts a quo concurred in the holding that the petitioner
and its staff failed to take into consideration the physical condition
of its patient, respondent Chua, when it removed the facilities
10
provided in her room; that the removal of these facilities, namely,
the air-conditioner, telephone lines, television, and refrigerator,
aggravated the condition of the patient, triggered her hypertension,
and caused her blood pressure to fluctuate,11 considering that there
was no proper ventilation in the room.12 In view of the foregoing, the
courts a quo concluded that the actuations of the petitioner were
oppressive, unnecessary,13 and anti-social,14 done in bad faith
without proper notice,15 with no intention other than to harass or
irritate the respondents,16 all of which constitute an abuse of rights.17
We do not agree. The conclusions of the courts a quo are either
haphazard conjectures, or founded on a misapprehension of facts.
The record is replete with evidence that justifies a different
conclusion.
Indeed the operation of private pay hospitals and medical clinics is
impressed with public interest and imbued with a heavy social
responsibility. But the hospital is also a business, and, as a business, controlled and within acceptable limits,42 "not that critical to
it has a right to institute all measures of efficiency commensurate to precipitate any acute attack,"43 nor likely to fall into any
the ends for which it is designed, especially to ensure its economic
viability and survival. And in the legitimate pursuit of economic
considerations, the extent to which the public may be served and
cured is expanded, the pulse and life of the medical sector quickens, to exercise and avoid resting all the
and the regeneration of the people as a whole becomes more visibly
attainable. In the institution of cost-cutting measures, the hospital
has a right to reduce the facilities and services that are deemed to be
non-essential, such that their reduction or removal would not be
detrimental to the medical condition of the patient.18 For the
moment, the question to be considered is whether the subject
facilities are indeed non-essential – the air-conditioner, telephone,
television, and refrigerator – the removal of which would cause the
adverse health effects and emotional trauma the respondents so
claimed. Corollary to this question is whether the petitioner observed
the diligence of a good father of the family19 in the course of
ascertaining the possible repercussions of the removal of the
facilities prior to the removal itself and for a reasonable time
thereafter, with a view to prevent damage. 20
P a g e | 140
After an extensive analysis of the record, it becomes rather
worrisome to this Court that the courts a quo unreservedly drew their
the respondents the probative value of which is highly
questionable.21 We hold that the respondents failed to prove the
The evidence in the record firmly establishes that the staff of the
Chua of the removal of facilities prior thereto, and to carry out the
necessary precautionary measures to ensure that her health and well-
being would not be adversely affected: as early as around two weeks
facilities had been removed sometime in the middle of May 1992,22
and even up to the point when she actually left the premises of the
hospital three weeks later, or during the first week of June 1992, 23
the medical condition of respondent Chua, as consistently and
indisputably confirmed by her attending physician, Dr. Rody Sy, a
cardiologist, who was called as witness for both parties,24 whom
even respondent Chua repeatedly praised to be "my doctor" and "a
very good doctor"25 at that, and whose statements at times had been
corroborated as well by Sister Mary Philip Galeno, SPC, the
Administrator of the hospital and who also happens to be a
registered nurse, had been "relatively well," 26 "ambulatory,"27
"walking around in the room," 28 and that she was "able to leave the
hospital on her own without any assistance;" 29 that although she
complained of symptoms such as dizziness, weakness,30 and
abdominal discomfort,31 Dr. Sy requested several medical
examinations, such as the laboratory tests, renal tests, MRI,
ultrasound, and CT scan,32 all of which were administered after
procuring the consent of respondent Chua's family33 as admitted by
respondent Ty herself,34 and even called on other specialists, such as
a neurologist, endocrinologist, and gastroenterologist, to look into
her condition35 and conduct other tests as well36 according to their
fields of specialty, all of which yielded no serious finding; 37 that her
illnesses were "lifelong illnesses"38 at a stage where they cannot be
totally removed or abolished,39 making it clear to her family that
"one hundred percent recovery is not possible" despite being given
daily medication in the hospital;40 but that her condition,
nonetheless, is not serious,41 as the blood pressure is more or less
emergency,44 nor yet does she require continuous or prolonged
hospitalization45 since she was stable enough to be treated at home
and on an "out-patient" basis, so much so that Dr. Sy encouraged her
time,46 and recommended that "anytime she may be discharged" 47
even in just "two weeks after confinement," 48 the propriety of his
order of discharge concurred upon by the other specialists as well, 49
had it not been for respondents' insistence to stay in the hospital in
view of their hope for absolute recovery50 despite the admission of
respondent Chua herself that she cannot anymore be totally cured. 51
It is also undisputed that the hospital administrator, Sister Galeno,
prior to the removal of the facilities, consulted the attending
physician, Dr. Sy.52 To Sister Galeno, also a registered nurse, the
matter of removal and its possible repercussions on the health of the
patient, as a matter of hospital policy, is a critical and sensitive
maneuver, and, hence, it is carried out only after discussing with the

doctors to evaluate all important factors.53 The fact of prior
consultation54 as well as the medical determination to the effect that
it was safe to remove the facilities and would cause no harmful
effect55 had been amply corroborated by respondent Chua's own
doctor himself.56 When Dr. Sy testified as rebuttal witness for the
respondents themselves and whose credibility respondents failed to
impeach, he categorically stated that he consented to the removal
since the removal of the said facilities would not by itself be
detrimental to the health of his patient, respondent Chua. 57 And in
this respect, he had been advising respondent Ty, the daughter of the
patient, that the facilities, such as the air-conditioner, television,
refrigerator, and telephone, are not absolutely necessary, and, that
although they may add to the comfort of the patient, if absent, they
will not cause any significant deterioration of her condition, 58 given
that, in his experience as a cardiologist, and after personally
attending respondent Chua on a daily basis before, during, and after
the removal and even up to the time of her actual discharge, 59 he
concluded that many hypertensive and diabetic patients, as in her
case, do not at all need in particular an air-conditioning unit, among
the other facilities aforementioned.60 And, contrary to the findings of
the courts a quo and the self-serving testimonies of respondents that
the lack of ventilation, after the removal of the air-conditioner,
triggered her hypertension, Dr. Sy categorically stated that during his
daily rounds with the patient he was certain that, although admittedly
the blood pressure in general would fluctuate daily, there had been
no adverse effect on her, and that her blood pressure were within
acceptable limits,61 especially considering that he treated the patient
on a daily basis up to the point of actual discharge, 62 and
accordingly, as confirmed by the medical records, he made no
change in the medications thereafter.63 In support of Dr. Sy's
findings, Sister Galeno, testified that she knew the condition of the
ventilation of the patient's deluxe room, located at the fifth floor,
even without the air-conditioning, notably in times of brownout, and
that there had been enough ventilation since the grilled window of
that room was large enough which, if opened, would permit
sufficient ventilation.64 The Court finds that the premise of the RTC
judgment refers merely to hypothetical statements which fail to
establish any clear and direct link to the injury allegedly suffered by
the patient:
Q — You found it safe to remove these facilities from the
room of the patient suffering from diabetes and
hypertension?
A — Yes, Sir. Many hypertensive, diabetic patients do not
need air-conditioning, or T.V. or refrigerator.
Q — Do you agree with me that hypertension is triggered
sometimes by excitement, anger or (sic) a person suffering
from such illness?
A — Hypertension can be triggered by anything.
Court:
Q — And even in other words the discomfort can also
trigger?
A — Sometimes mental stress can trigger.
P a g e | 141
xxxx
Court:
Q — You mentioned earlier that this hypertension may be
triggered mentally?
A — Yes, Your Honor.
Court:
Q — Will the removal of these facilities not affect the
patient including the relatives?
A — It may to a certain extent. And well, maybe the days
after the removal would prove that fluctuation in blood
pressure are within acceptable limits.65
With respect to the findings of the courts a quo that bed sores
appeared on the body of respondent Chua, that she suffered from
depression after the disconnection of the said facilities, that her
private midwives were barred, and that the delivery of food was
delayed, this Court holds, as above, that these conclusions are bereft
of sound evidentiary basis, self-serving and uncorroborated as they
are. Again, Dr. Sy affirmed that during the daily rounds he would
make on the patient, he did not detect any skin lesion or any other
abnormality up to the time she was actually discharged. 66 Nor did he
find any sign of depression, although, admittedly, he observed that
she had been "very angry" because of the removal of the facilities.67
All the while he did not receive any complaint from respondent
Chua indicating that she suffered from the foregoing infirmities,68
considering that it is the responsibility of the family of the patient to
specifically inform the attending physician or the nurses during their
rounds whatever they feel is important, or if there were any new
developments since the last visit.69 As corroborated by Sister
Galeno, throughout respondent Chua's confinement, she never
received any complaint from the latter or her relatives that she had
not been attended to by the nursing staff.70 Worth noting again is the
fact that the nursing staff and the attending physicians, which
included Dr. Sy, in accordance with hospital policy, would routinely
make their rounds on a daily basis, or would visit the patient
whenever they are called for any problem,71 and, in the case of the
specialists other than the attending physician, they would visit the
patient about once a week.72 The nurses, on the other hand, would
make their rounds more frequently, that is, at least once per shift, or
every eight hours.73 Apart from the self-serving statements of
respondents, which by now have become rather indicative of being
mere afterthoughts, there is no clear showing from the record that
the petitioner and its medical staff deviated from the foregoing
policy and practice, nor had they been called upon to look into the
alleged physical reactions or emotional trauma respondent Chua
claims to have suffered during and after the removal of the facilities.
It must be emphasized that, as stated above, respondent Chua herself
explicitly found Dr. Sy to be a "very good doctor" because he
personally attended to her "almost every hour." 74 And throughout her
confinement, Dr. Sy positively stated that her family employed a
private midwife who attended to her all the time.75
The evidence in the record overwhelmingly demonstrates that
respondent Chua had been adequately attended to, and this Court

cannot understand why the courts a quo had declared that there was
an "utter lack of medical attendance," or that her health suffered
during the period after the removal of the facilities. The Court finds
that the facilities in question are non-essential for the care of
respondent Chua and, hence, they may be lessened or removed by
the petitioner for the sake of economic necessity and survival.
Though human experience would show that the deactivation of the
air-conditioner may cause a temperature differential that may trigger
some physical discomfort, or that the removal of entertainment
facilities such as the television set, or the disconnection of
communication devices such as the telephone, may cause some
exasperation on the part of the one who benefits from these,
nevertheless, all things considered, and given the degree of diligence
the petitioner duly exerted, not every suppression of the things that
one has grown accustomed to enjoy amounts to an actionable wrong,
nor does every physical or emotional discomfort amount to the kind
of anguish that warrants the award of moral damages under the
general principles of tort. The underlying basis for the award of tort
damages is the premise that an individual was injured in
contemplation of law. Thus, there must first be the breach of some
duty and the imposition of liability for that breach before damages
may be awarded; it is not sufficient to state that there should be tort
liability merely because the plaintiff suffered some pain and
suffering.76
Moreover, this Court must reiterate the standard of tort to arrive at a
proper award for damages premised on matters that suggest the
application of medical knowledge, especially in the description of
the causal link between external or environmental factors, on one
hand, and their effect unto the physical or emotional health of the
patient, on the other, expert opinion, as discussed in Cruz v. Court of
Appeals,77 is generally required:
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. 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. 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
P a g e | 142
precaution and employs the best of his knowledge and skill
in attending to his clients, unless the contrary is sufficiently
established. This presumption is rebuttable by expert
opinion which is so sadly lacking in the case at bench.78
With respect to the propriety of the notice of removal of facilities,
the evidence shows that the hospital staff, accompanied by Sister
Gladys Lim, SPC, Finance Administrative Assistant of the
hospital,79 through written and verbal notices as per hospital policy,
forewarned the respondents, through respondent Ty and her sister,
Judith Chua, of the impending removal of the facilities over a week
beforehand80 in view of their obstinate refusal to vacate and transfer
to a lower rate room81 or to update the mounting hospital bills82
which, by then, had swollen to approximately one million pesos. 83
Respondent Ty refused to read many of the written notices sent by
the Credit
Department.84 After repeated attempts to contact respondent Ty85
and before the actual removal of the facilities, the staff of the
petitioner tried to personally serve the final notice dated April 23,
1992,86 signed by Sister Gladys Lim, addressed to respondent Ty,
which adopted the tenor of the prior verbal warnings, and which
expressly and sternly warned the respondents that the hospital shall
be constrained to take legal action and that they shall be compelled
to transfer the patient, respondent Chua, to a lower rate room unless
the balance could be satisfied.87 Respondent Ty, for no justifiable
reason, and sticking to her inclination to avoid the staff, refused to
receive or acknowledge this letter as well.88 Worth noting is that
Sister Galeno, testified that, as a matter of hospital policy the tenor
of which respondents, by virtue of the Contract for Admission dated
October 30, 1990, agreed to comply with, 89 the hospital can only cut
off the non-essential facilities – and only in extreme cases90 – if the
patient occupies a private room all to herself; had the room been
semi-private shared by other patients, or had it been the ward, the
hospital cannot disconnect the facilities since this would unduly
prejudice the other patients. But respondent Chua herself insisted on
staying in a private room despite her being fully aware of the
ballooning charges,91 and even if she could have freely gone home
anytime to her condominium unit which, as admitted, was equipped
with an air-conditioner.92 With respect to the "pressure" and
"harassment" respondents allegedly suffered daily whenever the
hospital staff would follow up the billing during odd hours, or at
10pm, 11pm, 12 midnight, 1am, or 2am, 93 this averment had been
convincingly refuted by the witnesses for the petitioner, namely,
Editha L. Vecino, the Head of Credit and Collection, and Sister
Galeno, in that the Credit and Collection Department would only
hold office hours from 8am to 5pm and, hence, it is impossible to
"harass" the respondents during the times they so claimed. 94
The courts a quo found that respondent Ty had "no choice but to
sign the promissory note in order for her mother to be released from
the hospital,"95 thus suggesting that the hospital refused to actually
discharge or bodily release its patient, respondent Chua, until
arrangements had been made to settle the charges.
While there are portions of the testimonies of the witnesses for the
petitioner which state that although, as per standard procedure, the
patient "cannot leave"96 the hospital without the "discharge,"97
"clearance" or "gate pass" issued only after

arrangements on the settlement of bills had been made, 98 still, it must
be understood that these are only demonstrative of the precondition
that a patient cannot step out of the premises "without the consent"
of the hospital, or, in other words, that the "clearance" merely
indicates that the hospital expressly consented to the actual release
of the patient,99 but, even without its consent, the patient is still free
to leave "anytime" as a matter of policy, in spite of the refusal to
issue a "clearance" or "gate pass,"100 or even in cases where the
accounts have not yet been liquidated or settled,101 or yet even if no
promissory note or post-dated check were executed in favor of the
petitioner, as testified by no less than Sister Galeno,102 and
corroborated by Editha Vecino;103 and that, petitioner, a private
hospital established for profit,104 being also a business, by warning
respondents that it shall withhold clearance, is simply exercising its
right to protest against an absconding patient as a precursor to avail
of other appropriate legal remedies; that, on the contrary, the
respondents opted not to leave because of their own promise not to
leave unless the hospital bills were fully settled;105 that the
accusations found in the Demand Letter dated May 19, 1992, and
signed by the counsel for the respondents,106 particularly, that the
petitioner "refused to discharge the patient, [respondent Chua,]
despite orders from the attending physician, Dr. Rody Sy," had all
been refuted by Sister Galeno when she read its contents in front of
the counsel for respondents, emphatically telling him that "we are
not detaining his clients;" that "[respondent Ty] was the one who
told us that they are not going to leave the hospital unless they have
fully paid the hospital;"107 and that, most importantly, no physical
restraint upon the person of respondent Chua or upon the person of
her relatives had been imposed by the staff.
Authorities, including those of common law origin, explicitly
declare that a patient cannot be detained in a hospital for non-
payment of the hospital bill. If the patient cannot pay the hospital or
physician's bill, the law provides a remedy for them to pursue, that
is, by filing the necessary suit in court for the recovery of such fee or
bill.108 If the patient is prevented from leaving the hospital for his
inability to pay the bill, any person who can act on his behalf can
apply in court for the issuance of the writ of habeas corpus.109
The form of restraint must be total; movement must be restrained in
all directions. If restraint is partial, e.g., in a particular direction with
freedom to proceed in another, the restraint on the person's liberty is
not total.110 However, the hospital may legally detain a patient
against his will when he is a detained or convicted prisoner, or when
the patient is suffering from a very contagious disease where his
release will be prejudicial to public health, or when the patient is
mentally ill such that his release will endanger public safety, 111 or in
other exigent cases as may be provided by law. Moreover, under the
common law doctrines on tort, it does not constitute a trespass to the
person to momentarily prevent him from leaving the premises or any
part thereof because he refuses to comply with some reasonable
condition subject to which he entered them. In all cases, the
condition of this kind of restraint must be reasonable in the light of
the circumstances.112 At any rate, as stated above, the patient is free
to leave the premises, even in the ostensible violation of these
conditions, after being momentarily interrupted by the hospital staff
for purposes of informing him of those reasonable conditions, such
as the assessment of whether the patient is fit to leave, insane, or
suffering from a contagious disease, etc., or simply for purposes of
making a demand to settle the bill. If the patient chooses to abscond
or leave without the consent of the hospital in violation of any of the
conditions deemed to be reasonable under the circumstances, the
P a g e | 143
hospital may nonetheless register its protest and may choose to
pursue the legal remedies available under law, provided that the
hospital may not physically detain the patient, unless the case falls
under the exceptions abovestated.
Authorities are of the view that, ordinarily, a hospital, especially if it
is a private pay hospital,113 is entitled to be compensated for its
services, by either an express or an implied contract, and if no
express contract exists, there is generally an implied agreement that
the patient will pay the reasonable value of the services rendered;114
when a hospital treats a patient's injuries, it has an enforceable claim
for full payment for its services, regardless of the patient's financial
status.115 At this juncture, it must be noted that there is testimony,
though to a degree disputable, to the effect that the execution of the
promissory note and the issuance of postdated checks were
conditions imposed not by the petitioner but voluntarily offered by
the counsel for respondents.116 At any rate, however, this Court
holds, in view of the foregoing authorities, that the requirement to
have the relative of respondent Chua to execute a promissory note as
part of the arrangement to settle the unpaid obligations is a formality
that converts any implied contract into written form and, moreover,
amounts to a reasonable condition, the non-fulfillment of which, in
itself, however, as discussed, cannot allow the hospital to detain the
patient. It must also be stressed, contrary to the findings of the courts
a quo, that such an agreement embodied in a promissory note, as
well as the Contract for Admission and Acknowledgment of
Responsibility for Payment dated October 30, 1990, do not become
contracts of adhesion simply because the person signing it was under
stress that was not the result of the actions of the hospital,117
especially taking into account that there is testimony to the effect
that respondent Ty signed the Promissory Note dated June 5, 1992 in
the presence of counsel and acting under his advise. 118
But as to the propriety of the circumstances surrounding the issuance
of the postdated checks to cover the amount stated in the Promissory
Note dated June 5, 1992, this Court must refer to the discussion of
the recent case of Ty v. People of the Philippines119 where this Court
affirmed the conviction of respondent Ty for the issuance of
bouncing checks addressed to the petitioner herein. While the instant
case is to be distinguished from the Ty case in nature, applicable
law, the standards of evidence, and in the defenses available to the
parties, hence, the judgment of conviction in that case should not at
all prejudice the disposition of this case, even if the facts coincide,
nonetheless, for purposes of convenience and instructive utility, the
Court quotes the relevant portions:
In this case, far from it, the fear, if any, harbored by Ty was
not real and imminent. Ty claims that she was compelled to
issue the checks a condition the hospital allegedly
demanded of her before her mother could be discharged for
fear that her mother's health might deteriorate further due to
the inhumane treatment of the hospital or worse, her mother
might commit suicide. This is speculative fear; it is not the
uncontrollable fear contemplated by law.
To begin with, there was no showing that the mother's
illness was so life-threatening such that her continued stay
in the hospital suffering all its alleged unethical treatment
would induce a well-grounded apprehension of her death.
Secondly, it is not the law's intent to say that any fear
exempts one from criminal liability much less petitioner's

flimsy fear that her mother might commit suicide. In other
words, the fear she invokes was not impending or
insuperable as to deprive her of all volition and to make her
a mere instrument without will, moved exclusively by the
hospital's threats or demands.
Ty has also failed to convince the Court that she was left
with no choice but to commit a crime. She did not take
advantage of the many opportunities available to her to
avoid committing one. By her very own words, she
admitted that the collateral or security the hospital required
prior to the discharge of her mother may be in the form of
postdated checks or jewelry. And if indeed she was coerced
to open an account with the bank and issue the checks, she
had all the opportunity to leave the scene to avoid
involvement.
Moreover, petitioner had sufficient knowledge that the
issuance of checks without funds may result in a violation
of B.P. 22. She even testified that her counsel advised her
not to open a current account nor issue postdated checks
"because the moment I will not have funds it will be a big
problem." Besides, apart from petitioner's bare assertion,
the record is bereft of any evidence to corroborate and
bolster her claim that she was compelled or coerced to
cooperate with and give in to the hospital's demands.
Ty likewise suggests . . . that the justifying circumstance of
state of necessity under par. 4, Art. 11 of the Revised Penal
Code may find application in this case.
We do not agree. The law prescribes the presence of three
requisites to exempt the actor from liability under this
paragraph: (1) that the evil sought to be avoided actually
exists; (2) that the injury feared be greater than the one
done to avoid it; (3) that there be no other practical and less
harmful means of preventing it.
In the instant case, the evil sought to be avoided is merely
expected or anticipated. If the evil sought to be avoided is
merely expected or anticipated or may happen in the future,
this defense is not applicable. Ty could have taken
advantage of an available option to avoid committing a
crime. By her own admission, she had the choice to give
jewelry or other forms of security instead of postdated
checks to secure her obligation.
Moreover, for the defense of state of necessity to be
availing, the greater injury feared should not have been
brought about by the negligence or imprudence, more so,
the willful inaction of the actor. In this case, the issuance of
the bounced checks was brought about by Ty's own failure
to pay her mother's hospital bills.
The Court also thinks it rather odd that Ty has chosen the
exempting circumstance of uncontrollable fear and the
justifying circumstance of state of necessity to absolve her
of liability. It would not have been half as bizarre had Ty
been able to prove that the issuance of the bounced checks
was done without her full volition. Under the
circumstances, however, it is quite clear that neither
P a g e | 144
uncontrollable fear nor avoidance of a greater evil or injury
prompted the issuance of the bounced checks.
Parenthetically, the findings of fact in the Decision of the
trial court in the Civil Case for damages filed by Ty's
mother against the hospital is wholly irrelevant for purposes
of disposing the case at bench. While the findings therein
may establish a claim for damages which, we may add,
need only be supported by a preponderance of evidence, it
does not necessarily engender reasonable doubt as to free
Ty from liability.120
In view of the foregoing, the Court therefore holds that the courts a
quo committed serious errors in finding that the petitioner was
"biased,"121 "discriminated" against the respondents,122 and
"purposely intended to irritate" 123 or "harass"124 them; that it "acted
in bad faith in removing the facilities without prior notice;" 125 and
that its acts were "anti-social."126 The aforequoted declarations of the
witnesses, significant portions of which this Court considers as
expert testimony, are reliable and remain considerably trustworthy to
controvert respondents' assertions as well as to reverse the
conclusions of fact and law of the CA and the RTC that respondent
Chua suffered the physical and emotional anguish so claimed, and
so, for these reasons, the Court holds that the petitioner inflicted no
actionable wrong.
This Court observes that the courts a quo awarded both respondents
moral damages. But it is well-settled that in case of physical injuries,
with some exceptions,127 moral damages are recoverable only by the
party injured and not by her spouse, next of kin, or relative who
happened to sympathize with the injured party.128 Hence, even if the
courts a quo were correct in their basis for damages, they should
have declined to award damages to respondent Ty.
The last issue to be resolved is the question whether the
counterclaims of the petitioner are supported by a preponderance of
evidence.
We agree with the petitioner that the courts a quo seriously erred in
mistaking the case of its compulsory counterclaim for its permissive
counterclaim and for failing to consider the evidence which
impressively supports the latter. First, for failure without justifiable
cause of respondents' counsel to comment on the Partial Formal
Offer of Evidence dated February 14, 1996 129 filed by the petitioner,
the RTC issued an order during the course of the trial, which counsel
for respondents neither contested nor raised on appeal, admitting
Exhibits "1" to "16", together with their submarkings and the
purposes for which the same were offered,130 all of which had also
been previously authenticated and their contents verified by the
witnesses for the petitioner.131 These documents include the Contract
for Admission of respondent Chua dated October 30, 1990, duly
executed by respondent Ty, incorporating therein the rules and
regulations of the hospital, including the duty to understand the
same132 as well as the undertaking of respondent Ty to be jointly and
severally liable for the payment of the hospital bills of respondent
Chua;133 the Promissory Note dated June 5, 1992 in the amount of
P1,075,592.95 duly executed by respondent Ty in favor of the
petitioner agreeing to be jointly and severally liable to pay the
unpaid obligations of respondent Chua and Judith Chua, including
interest and attorney's fees in case of default;134 the Undertakings
signed by respondent Ty dated March 3, 1992 and April 7, 1992 to
 P a g e | 145

maintain regular deposits;135 and the credit memos and statements of
account that support the amount referring to the unpaid obligation.136
Second, the parties stipulated during pre-trial that respondents failed
to pay the balance despite repeated reminders.137 And third,
respondent Ty in open court identified and admitted that she signed
the Contract of Admission dated October 30, 1990 as well as the
Undertakings dated March 3, 1992 and April 7, 1992 but which, for
no justifiable reason, she "did not bother to read," 138 and, what is
more, she repeatedly admitted during the course of the trial that she
failed to fully settle the foregoing hospital bills.139 In fact, while the
Ty case cannot control the incidents of the instant case as heretofore
stated, it is still worth mentioning, at least for informative purposes,
the findings of this Court in Ty with respect to respondents'
obligations to the petitioner:
Ty's mother and sister availed of the services and the
facilities of the hospital. For the care given to her kin, Ty
had a legitimate obligation to pay the hospital by virtue of
her relationship with them and by force of her signature on
her mother's Contract of Admission acknowledging
responsibility for payment, and on the promissory note she
executed in favor of the hospital.140
may adjust with the times, or that the bill itself may fail to pass,
according to the dynamism of the legislative process, especially in
light of the objections interposed by interest groups to date. 147
WHEREFORE, the petition is GRANTED. The Decision of the
Court of Appeals dated October 2, 2001, together with the Decision
dated September 30, 1997 of the Regional Trial Court in Civil Case
No. 63958, is REVERSED and SET ASIDE. Another judgment is
entered dismissing the Complaint and ordering respondents, jointly
and severally, to pay the petitioner the amount of P865,592.95, with
stipulated interest of 12 percent reckoned from the date of
extrajudicial demand until full payment, and 12 percent of the total
amount due as attorney's fees.
No pronouncement as to costs.SO ORDERED.
Supreme Court of Minnesota.
Jocelyn DICKHOFF by her parents and natural guardians
Joseph DICKHOFF and Kayla Dickhoff, Respondents, v. Rachel
GREEN, M.D., et al., Appellants.

In view of all these findings, the Court earnestly disagrees with the
sweeping conclusion of the CA that "[Petitioner] failed to present
any iota of evidence to prove his claim," 141 a statement apparently
referring to the permissive counterclaim of P1,075,592.95. However,
with respect to the compulsory counterclaim predicated on the filing
of a baseless suit and injury to its reputation, petitioner did not raise
this matter on appeal and, hence, is deemed to have waived the
same.
But the Court in Ty made a partial finding on the civil liability of
respondent Ty with respect to the amount covered by seven of the
several dishonored checks she issued equivalent to
P210,000.00.142 Since this amount forms a fraction of her total civil
liability, then this amount, in deference to Ty, should be deducted
therefrom.
Syllabus by the Court
A medical-malpractice claim based on a physician's failure to
diagnose cancer is not barred as a mere “loss of chance” (or reduced-
chance) claim when the misdiagnosis resulted in a delay in treatment
that makes it more likely than not that the patient will not survive the
cancer. Kay Nord Hunt, Stephen C. Rathke, Lommen, Abdo, Cole,
King & Stageberg, P.A., Minneapolis, MN, for appellants. William
M. Hart, Meagher & Geer, P.L.L.P., Minneapolis, MN, and Steven
R. Schwegman, James S. McAlpine, Quinlivan & Hughes, P.A., St.
Cloud, MN, for respondents.
Considered and decided by KALITOWSKI, Presiding Judge;
MINGE, Judge; and ROSS, Judge.
OPINION
ROSS, Judge.

The claim for attorney's fees, as stipulated under the Promissory This medical-malpractice case involves a delayed diagnosis of
Note dated June 5, 1992, should be reduced for being unreasonable potentially terminal cancer in a newborn. The baby's mother alleges
under the circumstances, from 25 percent to 12 percent of the total that she showed the pediatrician a bump on the newborn shortly after
amount due.143 the birth and at multiple appointments in the year that followed. The
physician did not note the bump on the child's medical chart until her
As a final word, the Court takes judicial notice of the pending Senate one-year checkup, after which the bump was diagnosed to be
Bill No. 337, entitled "An Act Prohibiting the Detention of Patients alveolar rhabdomyosarcoma, a rare form of childhood cancer. Kayla
in Hospitals and Medical Clinics on Grounds of Non-Payment of and Joseph Dickhoff sued their daughter Jocelyn's physician, Dr.
Hospital Bills or Medical Expenses," which declares, among others, Tollefsrud, and Family Practice Medical Center of Willmar, alleging
that it shall be unlawful for any hospital or medical clinic to cause that reasonable care would have led to an earlier diagnosis while the
directly or indirectly the detention of patients for non-payment, in disease was curable. The district court dismissed the medical-
part or in full, of their hospital bills,144 and, furthermore, requires malpractice claim as a reduced-chance claim barred in Minnesota. It
patients who have fully recovered and are financially incapable to also denied damages based on the recurrence of the cancer, holding
settle the hospitalization expenses to execute a promissory note, co- that the parents' expert's affidavit did not establish that it was more
signed by another individual, to the extent of the unpaid obligation probable than not that the recurrence was the result of negligence.
before leaving the hospital.145 While this Court may have touched We reverse because the medical-malpractice claim is not a claim for
upon these matters in the adjudication of the instant case, it must be reduced chance and the expert affidavit supports the allegation that
stated that this decision should in no way preempt any constitutional the physician's negligence caused the child's chances of recurrence
challenge to the provisions of Senate Bill No. 337 if passed into law, to move from unlikely to probable.
bearing in mind the standards for the exercise of the power of
judicial review146 as well as the recognition that the tenor of the bill

FACTS
Jocelyn Dickhoff was born on June 12, 2006, to Kayla and Joseph
Dickhoff. Jocelyn came home two weeks later and on that day Kayla
alleges that she noticed a bump on Jocelyn's buttocks. The next day,
Kayla and Joseph brought Jocelyn to Dr. Rachel Tollefsrud
(formerly Dr. Rachel Green) at Family Practice Medical Center of
Willmar for her two-week well-baby checkup. Kayla alleges that
during the checkup she showed Dr. Tollefsrud the bump. The bump
was moveable under the skin and Jocelyn was not sensitive to it.
Kayla alleges that Dr. Tollefsrud told her to keep an eye on it, but
not to worry because it may be just a cyst.
The parties dispute when and how often Kayla and Dr. Tollefsrud
discussed Jocelyn's bump over the next year. Kayla testified that she
pointed out the bump to Dr. Tollefsrud at numerous appointments
and that, as the year progressed, the bump grew in size and became
less moveable. Dr. Tollefsrud recalled having a conversation about
Jocelyn's bump before Jocelyn's one-year checkup. She also recalled
examining the buttocks area and observing a bump that was about
0.6 centimeters in size and moveable under the skin, but she could
not recall at which visit that had occurred. Dr. Tollefsrud did not
document the bump in Jocelyn's medical file until Jocelyn's one-year
checkup on June 14, 2007. She then noted that Jocelyn “[h]as had
small lump on left buttock, which had been unchanged, now has
gotten larger.” The bump had grown to four centimeters wide.
Kayla took Jocelyn to other doctors, and eventually to Dr. Brenda
Weigel at the end of July 2007. Dr. Weigel is a pediatric oncologist.
The next month Dr. Weigel diagnosed Jocelyn with stage IV
alveolar rhabdomyosarcoma (RMS), a cancer of the muscle, and
concluded that the cancer had metastasized. Doctors at Sloan–
Kettering in New York later opined that Jocelyn's cancer was at
stage III.
About 350 children are diagnosed annually with RMS, and children
under age one generally have a worse prognosis than others. The site
of Jocelyn's cancer, the perianal area, is unfavorable. Jocelyn
underwent six months of chemotherapy, had the tumor surgically
removed, and underwent additional chemotherapy and radiation.
The Dickhoffs brought this lawsuit on behalf of Jocelyn in April
2009. They asserted that Dr. Tollefsrud and Family Practice Medical
Center negligently failed to diagnose Jocelyn's symptoms or refer
them to a specialist. They alleged that the cancer would have been
curable under a proper, timely diagnosis. They also alleged that Dr.
Tollefsrud's and Family Practice's negligence resulted in injuries to
Jocelyn that are permanent or fatal and will result in future expenses,
pain, disability, and disfigurement.
The Dickhoffs planned to have two experts testify at trial. Dr. James
Gelbmann, a family-practice physician at the Brainerd Medical
Center, would have testified on the standard of care and opined that
Dr. Tollefsrud deviated from it. Dr. Edwin Forman, a pediatric
hematology and oncology physician, would have opined on the
element of causation. This appeal focuses mainly on Dr. Forman's
opinion.
Dr. Forman averred in affidavits that, had the diagnosis occurred at
or shortly after the bump was noticed while Jocelyn was a neonate,
her cancer more likely than not would have been curable. But
P a g e | 146
because Jocelyn's cancer progressed to stage III or IV without a
diagnosis and treatment, now it is more likely than not that she will
not survive the cancer. Dr. Forman opined that because the cancer
had progressed to stage III, she has a 60–percent chance of cancer
recurrence and death, or a 40–percent chance of survival. But he
believes that she would have had a better-than 60–percent chance of
survival if the cancer had been timely diagnosed.
A jury trial was scheduled for May 10, 2010, but in April 2010,
Jocelyn's cancer recurred and she again underwent chemotherapy.
Dr. Tollefsrud and Family Practice moved the district court to
preclude Jocelyn's claim for damages, characterizing it as a claim for
reduced chance of life or decreased life expectancy. The district
court ruled that claims for past and future medical expenses were
precluded because Jocelyn needed the same care and treatment
regardless of whether she had been diagnosed earlier. The remaining
claim for damages focused on the Dickhoffs' expenses arising from
the recurrence of Jocelyn's cancer in April 2010.
Jocelyn's deteriorated medical condition delayed the trial. In June
2010, the respondents moved to dismiss the Dickhoffs' claim for
reduced chance of life and for medical expenses based on the
cancer's recurrence. They argued that the malpractice claim is
essentially a claim for reduced chance of life because the allegations
refer to a “shortened life expectancy” and “deprivation of normal life
expectancy,” and reduced chance is not recognized in Minnesota
under Fabio v. Bellomo, 504 N.W.2d 758 (Minn.1993). They also
argued that the claim for medical expenses is not supported by any
admissible expert evidence proving that Dr. Tollefsrud caused the
damages. The Dickhoffs responded to the motion to dismiss as a
summary judgment motion and, relying on their expert's affidavits,
argued that the claim is not barred as a reduced-chance claim
because a medical-malpractice cause of action exists in Minnesota
when a physician's negligence causes a patient's chances of survival
to fall below 50 percent.
The district court granted Dr. Tollefsrud and Family Practice's
motion. It held that claims for reduced chance of life, like the
Dickhoffs', have been consistently rejected by the supreme court. It
also dismissed their claim for medical expenses because the expert
testimony did not establish that it was more probable than not that
the respondents' alleged negligence, rather than the existence of the
cancer itself, caused Jocelyn's damages.
The Dickhoffs appeal.
ISSUES
I. Did the district court err by dismissing the Dickhoffs' claim as a
claim for reduced chance?
II. Did the district court err by dismissing the Dickhoffs' claim for
damages arising from the recurrence of Jocelyn's cancer?
ANALYSIS
The Dickhoffs challenge the district court's dismissal of their
medical-malpractice claim as a claim for reduced chance and their
claim for damages arising from the recurrence of Jocelyn's cancer as
unsupported by evidence. Because the district court relied on
 P a g e | 147

information in Dr. Forman's affidavits not originally included in the as dictum, we still give the analysis some weight because it may
pleadings, we will treat the respondents' motion as one for summary foreshadow the supreme court's direction. See In re Estate of Bush,
judgment. See Minn. R. Civ. P. 12.03. “Summary judgment is 302 Minn. 188, 207, 224 N.W.2d 489, 501 (1974) (“Even dictum, if
appropriate when the evidence, viewed in the light most favorable to it contains an expression of the opinion of the [supreme] court, is
the nonmoving party, shows that there is no genuine issue of entitled to considerable weight.”). This is not to say that we are
material fact and the moving party is entitled to judgment as a matter bound by the supreme court's remarks that are not essential to its
of law.” Anderson v. State, Dep't of Natural Res., 693 N.W.2d 181, holdings; but where clear precedent is lacking, dicta offers at least
186 (Minn.2005). We review the grant of summary judgment de some insight into how the court might address a question later
novo. Zip Sort, Inc. v. Comm'r of Rev., 567 N.W.2d 34, 37 presented.
(Minn.1997).
Leubner v. Sterner also provides support for our understanding of
I MacRae. In Leubner, the appellant brought a medical-malpractice
claim against her doctor for failing to diagnose breast cancer after
The Dickhoffs argue that the district court dismissed their medical- she found two lumps. 493 N.W.2d at 120. The appellant asserted that
malpractice claim inappropriately by mischaracterizing it as a claim the failure to diagnose the cancer reduced her chances of survival.
for “loss of chance.” To establish a prima facie case of medical Id. The district court granted summary judgment in favor of the
malpractice, a plaintiff must demonstrate by expert testimony (1) the defendant. Id. On appeal, this court affirmed on the reduced-chance
applicable standard of care, (2) that the defendant breached that theory but remanded the case on the theory of negligent aggravation
standard of care, and (3) that the breach was a direct cause of the of a pre-existing condition. Id. at 120–21. The supreme court granted
plaintiff's injuries. Fabio v. Bellomo, 504 N.W.2d at 762. Both review and held that negligent aggravation of a preexisting condition
aspects of the third issue—causation and injury—are contested on is not a theory of liability. Id. at 122. In the course of discussing
appeal. A malpractice plaintiff must prove by expert testimony that it causation and the appellant's injury, it stated that the appellant's
is more probable than not that the alleged tortfeasor's negligence claimed injury of “increased risks of recurrence and metastases
caused her injuries. Leubner v. Sterner, 493 N.W.2d 119, 121 along with a decreased likelihood of survival as a direct result of the
(Minn.1992). Causation is generally a fact question for the jury, but tumor's unchecked growth” was not a viable theory because “there
where reasonable minds can arrive at only one conclusion, causation [was] no proof [that] it [was] more probable than not that plaintiff
is a question of law. Lubbers v. Anderson, 539 N.W.2d 398, 402 will not survive her cancer” and, in that case, “death was
(Minn.1995). overwhelmingly improbable.” Id. at 121. Leubner therefore
foreshadowed the cause of action that was expressly articulated in
MacRae, which is that a patient states a malpractice claim based on a
Regarding injury, the Dickhoffs maintain that Jocelyn has stated a
failure to diagnose if the misdiagnosis makes it more probable than
medical-malpractice claim for failure to diagnose, relying on
not that she will not survive her cancer.
MacRae v. Group Health Plan, Inc., 753 N.W.2d 711 (Minn.2008).
MacRae addressed the issue of when the statute of limitations
accrues in a medical-malpractice claim for cancer misdiagnosis. Id. Respondents assert that Fabio v. Bellomo, which expressly rejected
at 717. More specifically, it addressed when a negligent the reduced-chance theory of liability, is controlling and dispositive.
misdiagnosis causes a patient to suffer a compensable injury. Id. The See 504 N.W.2d at 762. We are not persuaded. The appellant in
supreme court reasoned that “a court must determine when a cause Fabio sued her doctor for failing to diagnose a lump in her breast as
of action accrues in cases of misdiagnosis of cancer by looking at the cancer. Id. at 760. The appellant claimed that the delay in diagnosis
unique circumstances of the particular case to determine when some “resulted in a ‘loss of chance’ of life expectancy and a greater risk of
compensable damage occurred as a result of the alleged negligent recurrence of cancer.” Id. at 761. Her expert opined that her risk of
misdiagnosis.” Id. at 721–22. It rejected the argument that the only cancer recurrence was about 30 percent and her chance to survive at
compensable damage that “can occur in a cancer misdiagnosis case least 20 years was 50–50. Id. at 763. The supreme court held that it
[is when it] is more likely than not that the patient will not survive had “never recognized loss of chance in the context of a medical
the disease,” and held that this was one of several theories of malpractice action” and it declined to do so in that case. Id. at 762.
recovery. Id. at 722. It emphasized that, by contrast, “ ‘loss of The court also stated that even if it recognized reduced chance as a
chance’ due to reduced life expectancy and increased risk of theory of recovery, the appellant would not prevail because she
recurrence” is not a compensable injury. Id. (Throughout this failed to present evidence that it was more probable than not that the
opinion, we mostly use the term reduced chance rather than the cancer would recur or that she would have a diminished life
more common term loss of chance to avoid confusion between the expectancy. Id. at 763 (emphasis added). Fabio's holding does not
two potential claims compared and discussed here—a mere foreclose the action here because MacRae succeeded Fabio and
reduction in chance of survival ( loss-of-chance or reduced-chance expressed a cause of action not discussed or contemplated in Fabio.
claim ) and a reduction in chance that drops the prognosis of survival And in Fabio, it was not more probable than not that the appellant
below 50 percent ( improbable-survival claim)). would not survive.

The Dickhoffs argue that because Jocelyn's chances of surviving the
cancer dropped from more likely than not that she will survive, to
more likely than not that she will not survive, they have stated a
cause of action under MacRae. The respondents counter that the
MacRae statement is merely dictum. But it was not dictum because
it was necessary to MacRae's holding declaring when a cause of
action accrues in a cancer misdiagnosis case. And even if we read it
If a cause of action does not exist based on improbable survival as
expressed by MacRae, some patients whose cancer has been
negligently misdiagnosed might have no legal recourse under
Fabio's reduced-chance holding. A patient would theoretically have
to wait until death before her malpractice claim would ripen under
Fabio while MacRae holds that the claim accrued earlier for statute-
of-limitations purposes. So if that patient's death occurred after the
statute-of-limitations period ended, she might be barred from

bringing a malpractice action altogether. We believe that the
supreme court did not intend to completely foreclose the possibility
of malpractice actions for negligent cancer-misdiagnosis cases
involving a lengthy illness with a potentially fatal outcome. Instead,
we read the caselaw only to limit those actions to circumstances in
which it has become more probable than not that the patient will not
survive the cancer. See MacRae, 753 N.W.2d at 722.
We are mindful of the practical difficulties this presents, particularly
over disputes in which a physician's contribution to an already bleak
prognosis is not large but just enough to make death most likely.
And we also recognize the difficulty in determining damages in an
improbable-survival case. But we are bound to interpret and apply
precedent, which appears to us to allow an improbable-survival
theory of recovery but not a reduced-chance theory. Other
jurisdictions have avoided the difficulty by recognizing reduced
chance as an actionable event in itself. See, e.g., Roberts v. Ohio
Permanente Med. Group, Inc., 76 Ohio St.3d 483, 668 N.E.2d 480,
484 (1996) (holding that “[i]n order to maintain an action for the loss
of a less-than-even chance of recovery or survival, the plaintiff must
present expert medical testimony showing that the health care
provider's negligent act or omission increased the risk of harm to the
plaintiff. It then becomes a jury question as to whether the
defendant's negligence was a cause of the plaintiff's injury or
death.”); Alberts v. Schultz, 126 N.M. 807, 975 P.2d 1279, 1285
(1999) (recognizing reduced chance and holding that because it can
be hard to distinguish between the underlying injury and the
reduced-chance injury “[t]he deterioration of the presenting problem
is evidence that the chance of a better result has been diminished or
lost”); DeBurkarte v. Louvar, 393 N.W.2d 131, 137 (Iowa 1986)
(recognizing claim for reduced chance to survive cancer). Minnesota
is more restrictive toward actions for medical conditions with
uncertain ends after negligent misdiagnoses, but we believe MacRae
and Leubner still provide for a cause of action.
Respondents also assert that Dr. Tollefsrud is not liable because
there is only a 20–percent difference between Jocelyn's chances of
survival with a timely diagnosis than without a timely diagnosis,
based on Dr. Forman's opinion. But it is clear that Dr. Forman was
simply giving a general range, not a precise estimate of Jocelyn's
chances of survival. He stated that because he believed that Jocelyn's
cancer was in stage III she has no better than a 40–percent chance of
survival, but had she been timely diagnosed, her chances of survival
“would have been much higher than 60–percent.” Because the
Dickhoffs must prove only that Jocelyn's chances of death from her
cancer moved from unlikely to likely and the jury could find that this
change was more probably than not the result of Dr. Tollefsrud's
negligence, we believe the district court erred by dismissing the
medical-malpractice claim as a claim for reduced chance.
II
The Dickhoffs also argue that the district court erred by dismissing
their claim for medical expenses based on the recurrence of Jocelyn's his diagnosis or treatment. Dr. Frank set his own fees, billed
cancer because Dr. Forman's affidavits support their claim for
damages. A medical-malpractice plaintiff must produce an expert
affidavit that expresses opinions establishing that the defendant
deviated from the standard of care and caused injury to the plaintiff.
Minn.Stat. § 145.682, subd. 2–3 (2010). And a plaintiff must prove
by expert testimony that it is more probable than not that the
respondents' negligence caused her injuries. Leubner, 493 N.W.2d at medical treatment generally. (E.g., an emergency room committee,
P a g e | 148
121. Because Dr. Forman's affidavits state that it was Dr.
Tollefsrud's failure to timely diagnose and treat Jocelyn's cancer that
raised the likelihood of the cancer's recurrence and her need for
additional care from unlikely to probable, a jury could also find that
it is more probable than not that the recurrence was caused by Dr.
Tollefsrud's negligence. The district court therefore erred by
granting summary judgment. We are aware of the evidentiary
challenges the Dickhoffs will face, as the respondents emphasize.
But we are convinced that material fact disputes here require a trial
on the merits.
DECISION
The district court erred by granting summary judgment to the
respondents because the Dickhoffs' medical-malpractice claim is not
one for reduced chance. The district court also erred by granting
summary judgment for medical expenses based on Jocelyn's
recurrence of cancer because the Dickhoffs' expert affidavit asserts
that Dr. Tollefsrud's negligence elevated Jocelyn's chances of
recurrence from unlikely to probable.
Reversed.
Supreme Court of Illinois.October 21, 1993.
Gilbert v. Sycamore Mun. Hosp.
Justice FREEMAN delivered the opinion of the court:
The question presented for review is whether a hospital can be found
vicariously liable for the negligence of a physician who is not a
hospital employee, but rather an independent contractor. We hold
that a hospital may be vicariously liable in such a case under the
doctrine of apparent authority.
*791 BACKGROUND
The record contains the following pertinent evidence. On April 8,
1981, defendant, Sycamore Municipal Hospital (hospital), in
Sycamore, Illinois, was a full service, acute care facility. The
hospital's active staff consisted of 14 to 20 physicians including
Irving Frank, M.D. Dr. Frank was a general practitioner.
Many of the hospital's active staff physicians practiced through
professional associations. Dr. Frank was the founder and president of
one such group, Kishwaukee Medical Associates, Ltd. (KMA). Five
to eight physicians practiced through KMA.
The hospital considered its active staff physicians to be independent
contractors. The hospital did not pay them any salary. The record
shows, for example, that the hospital did not pay Dr. Frank any
business expense, or pay his social security taxes, or provide him
with insurance, vacation, or sick leave. The hospital did not control
separately for services rendered, kept the profits and bore the losses
from his practice, and determined his own work schedule, salary,
vacations, and maximum absences.
Various practice areas in the hospital had a quality assurance review
committee that would meet regularly to review cases, statistics, and

an operating room committee, etc.) Committee members included
active staff physicians, hospital employees, and a representative of
hospital administration. If the hospital did not approve of a
physician's conduct, a hospital representative would speak to the
physician.
The hospital had a "call roster," but a physician association could
have its own call roster. For example, if a patient asked for a KMA
physician who was unavailable, then another KMA-designated
physician would respond.
The hospital emergency room was not managed or operated by an
outside independent contractor or a particular medical association.
Rather, the emergency room was considered a hospital function. The
hospital employed emergency room nurses and owned emergency
room equipment. The hospital's emergency room committee
reviewed emergency room treatment rendered by physicians.
Active staff physicians were scheduled to be on call in the
emergency room. However, an assigned physician could arrange for
a substitute. As with their relationship generally, the hospital
considered active staff physicians assigned to the emergency room to
be independent contractors. The physicians billed emergency room
patients separately for their services. The hospital also billed
emergency room patients, but not for the physician's services. Marty
Losoff, the hospital administrator in April 1981, testified in a
deposition that the behavior of emergency room physicians could
affect the hospital's public relations. Losoff also testified that, to his
knowledge, the hospital did not advise emergency room patients that
emergency room physicians were not hospital employees but rather
independent contractors.
On the morning of April 8, 1981, Jack Gilbert (decedent) suffered
pain in his chest and left arm while lifting weights. At approximately 169 N.E.2d 73; Barkhausen v. Naugher (1946), 395 Ill. 562, 566, 70
2:30 p.m., decedent arrived by ambulance at the hospital's
emergency room. Upon arrival, decedent signed a consent form,
prepared by the hospital, which stated in pertinent part:
"The undersigned has been informed of the emergency treatment
considered necessary for the patient whose name appears above and disposition of a lawsuit. However, it is a drastic means of disposing
that the treatment and procedures will be performed by physicians
and employees of the hospital. Authorization is hereby granted for
such treatment and procedures."
Dr. Wassner, a KMA physician who was on call that day, asked Dr.
Frank to cover the emergency room for that day. Decedent asked for
Dr. Stromberg, a KMA physician. Since Wassner and not Stromberg
was on call, an emergency room nurse telephoned Dr. Frank, who
arrived a few minutes later. Dr. Frank had never met decedent before
that day.
*792 Dr. Frank gave decedent several tests, which did not reveal any
sign of heart disease or a heart problem. Dr. Frank prescribed pain
medication for decedent and discharged him at 4:20 p.m. Later that
evening, decedent died as a result of a myocardial infarction. An
autopsy revealed the presence of heart disease at the time of his
death.
Plaintiff, Dimple Gilbert, as special administrator of decedent's
estate, brought a medical malpractice and wrongful death action
P a g e | 149
against Dr. Frank (count I) and the hospital (count II). In count II,
plaintiff alleged that the hospital, by its agents or employees,
including Dr. Frank, negligently failed to perform various acts in
relation to the diagnosis and treatment of decedent. Plaintiff
subsequently settled with Dr. Frank, who is not a party to this
appeal, but reserved her causes of action against the hospital.
The hospital moved for summary judgment. The hospital contended,
inter alia, that it was not vicariously liable for Dr. Frank's alleged
negligence because he was not the hospital's agent or employee. The
circuit court of De Kalb County granted summary judgment in favor
of the hospital. The appellate court, with one justice dissenting,
affirmed. (233 Ill.App.3d 372, 174 Ill. Dec. 597, 599 N.E.2d 143.)
We allowed plaintiff's petition for leave to appeal (134 Ill.2d R.
315(a)), and now reverse and remand for further proceedings.
DISCUSSION
The purpose of summary judgment is not to try a question of fact,
but to determine whether one exists. (Ray v. City of Chicago (1960),
19 Ill. 2d 593, 599, 169 N.E.2d 73.) Summary judgment is
appropriate only where "the pleadings, depositions, and admissions
on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law." Ill.Rev. Stat.1989, ch.
110, par. 2-1005(c).
In determining whether a genuine issue as to any material fact exists,
a court must construe the pleadings, depositions, admissions, and
affidavits strictly against the movant and liberally in favor of the
opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 95 Ill. Dec.
305, 489 N.E.2d 867.) A triable issue precluding summary judgment
exists where the material facts are disputed (Ray, 19 Ill. 2d at 599,
N.E.2d 565), or where, the material facts being undisputed,
reasonable persons might draw different inferences from the
undisputed facts (Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 135
Ill. Dec. 557, 543 N.E.2d 1304). The use of the summary judgment
procedure is to be encouraged as an aid in the expeditious
of litigation and, therefore, should be allowed only when the right of
the moving party is clear and free from doubt. Pyne, 129 Ill. 2d at
358, 135 Ill. Dec. 557, 543 N.E.2d 1304; Purtill, 111 Ill. 2d at 240,
95 Ill. Dec. 305, 489 N.E.2d 867.
Vicarious Liability
In its motion for summary judgment, the hospital argued that it could
not be vicariously liable for the alleged negligence of Dr. Frank
because he was not an agent or employee of the hospital. In Illinois,
a hospital may be liable in a medical malpractice case on two
distinct theories. First, the hospital may be liable based upon a
principal-agent relationship between the hospital and the physician.
Second, the hospital may owe a duty, independent of any
relationship between physician and patient, to review and supervise
the medical care administered to a patient. (Rohe v. Shivde (1990),
203 Ill.App.3d 181, 198, 148 Ill. Dec. 516, 560 N.E.2d 1113;
Hansbrough v. Kosyak (1986), 141 Ill.App.3d 538, 550, 95 Ill. Dec.
708, 490 N.E.2d 181, citing Darling v. Charleston Community
Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253.) In the

present case, the appellate court correctly noted that the parties raise
only the first of these theories on appeal.
In some decisions, the appellate court has held that a hospital is
vicariously liable for the negligence of a physician who is the *793
apparent agent of the hospital. (Northern Trust Co. v. St. Francis
Hospital (1988), 168 Ill.App.3d 270, 278-79, 119 Ill. Dec. 37, 522
N.E.2d 699; Sztorc v. Northwest Hospital (1986), 146 Ill.App.3d
275, 278-79, 100 Ill. Dec. 135, 496 N.E.2d 1200.) In other decisions,
however, the appellate court has refused to hold a hospital
vicariously liable based on an agency relationship unless the
physician was an actual agent of the hospital. Johnson v. Sumner
(1987), 160 Ill. App.3d 173, 175, 111 Ill. Dec. 903, 513 N.E.2d 149;
Greene v. Rogers (1986), 147 Ill.App.3d 1009, 1015-16, 101 Ill.
Dec. 543, 498 N.E.2d 867.
In the present case, the appellate court acknowledged that the
Northern Trust and Sztorc decisions and decisions from the courts of
several other States have held hospitals vicariously liable for the
negligence of treating physicians based on the doctrine of apparent
agency. However, relying on Greene and Johnson, the court was of
the opinion "that the cases recognizing apparent agency in this
context fail to take into account the unique nature of the
relationships between physicians and patients and between
physicians and hospitals especially in emergency situations." 233
Ill.App.3d at 378, 174 Ill. Dec. 597, 599 N.E.2d 143.
The appellate court noted that the treating physician controls and
directs an emergency room patient's treatment. The court reasoned
that it was not realistic to expect hospital staff or administration to
direct or control treatment of an emergency room patient, especially
when split-second decisions are required. This factor, to the court,
"demands recognition of the independent relationship between a
hospital and an emergency room physician and militates strongly
against extension of a hospital's vicarious liability to physicians who
are not actual agents or employees of the hospital." The court also
noted that the application of the doctrine of apparent authority in this
situation would violate the fundamental precept of tort law that the
tortfeasor be liable to the injured party for damages resulting only
from his or her conduct. (233 Ill.App.3d at 378, 174 Ill. Dec. 597,
599 N.E.2d 143 (citing Johnson, 160 Ill.App.3d at 175, 111 Ill. Dec.
903, 513 N.E.2d 149, and Greene, 147 Ill.App.3d at 1015, 101 Ill.
Dec. 543, 498 N.E.2d 867).) Based on this reasoning, the appellate
court concluded "that a hospital may be held vicariously liable for
the negligence of an emergency room physician only if the physician
was an actual agent or employee of the hospital." 233 Ill.App.3d at
378-79, 174 Ill. Dec. 597, 599 N.E.2d 143.
The decisions in Greene, Johnson, and the present case overlook two
realities of modern hospital care. One reality involves the business of
a modern hospital. In Kashishian v. Port (1992), 167 Wis. 2d 24, 481
N.W.2d 277, the Wisconsin Supreme Court observed:
"[H]ospitals increasingly hold themselves out to the public in
expensive advertising campaigns as offering and rendering quality
health services. One need only pick up a daily newspaper to see full
and half page advertisements extolling the medical virtues of an
individual hospital and the quality health care that the hospital is
prepared to deliver in any number of medical areas. Modern
hospitals have spent billions of dollars marketing themselves,
nurturing the image with the consuming public that they are full-care
P a g e | 150
modern health facilities. All of these expenditures have but one
purpose: to persuade those in need of medical services to obtain
those services at a specific hospital. In essence, hospitals have
become big business, competing with each other for health care
dollars." Kashishian, 167 Wis.2d at 38, 481 N.W.2d at 282.
Further, a major component of modern hospital business is the
emergency room. As the Mississippi Supreme Court observed:
"If they [emergency room physicians] do their job well, the hospital
succeeds in its chosen mission, profiting financially and otherwise
from the quality of emergency care so delivered. On such facts,
anomaly would attend the hospital's escape from liability where the
quality of care so delivered was below minimally acceptable *794
standards." Hardy v. Brantley (Miss.1985), 471 So. 2d 358, 371.
Another reality of modern hospital care involves the reasonable
expectations of the public. It has been observed:
"[G]enerally people who seek medical help through the emergency
room facilities of modern-day hospitals are unaware of the status of
the various professionals working there. Absent a situation where the
patient is directed by his own physician or where the patient makes
an independent selection as to which physicians he will use while
there, it is the reputation of the hospital itself upon which he would
rely. Also, unless the patient is in some manner put on notice of the
independent status of the professionals with whom it might be
expected to come into contact, it would be natural for him to assume
that these people are employees of the hospital." (Arthur v. St. Peters
Hospital (1979), 169 N.J.Super. 575, 583, 405 A.2d 443, 447.)
(Accord Hardy, 471 So. 2d at 371.) Further:
"Such appearances speak much louder than the words of whatever
private contractual arrangements the physicians and the hospital may
have entered into, unbeknownst to the public, in an attempt to
insulate the hospital from liability for the negligence, if any, of the
physicians." Brown v. Coastal Emergency Services, Inc. (1987), 181
Ga. App. 893, 898, 354 S.E.2d 632, 637, aff'd (1987), 257 Ga. 507,
361 S.E.2d 164.
We fully agree with these observations, which have been made by
several courts. See, e.g., Paintsville Hospital Co. v. Rose (Ky.1985),
683 S.W.2d 255, 257-58; Capan v. Divine Providence Hospital
(1981), 287 Pa. Super. 364, 369, 430 A.2d 647, 649; Mehlman v.
Powell (1977), 281 Md. 269, 274-75, 378 A.2d 1121, 1124.
The realities of modern hospital care raise a serious question
regarding the responsibility of a hospital when a physician who is an
independent contractor renders negligent health care. Can a hospital
always escape liability for the rendering of negligent health care
because the person rendering the care was an independent
contractor, regardless of how the hospital holds itself out to the
public, regardless of how the treating physician held himself or
herself out to the public with the knowledge of the hospital, and
regardless of the perception created in the mind of the public? We
agree with the court in Kashishian that a hospital cannot always
escape liability in such a case. Kashishian, 167 Wis.2d at 39, 481
N.W.2d at 282.

The Wisconsin Supreme Court has concluded:
"Consistent with this concept of the modern-day hospital facilities, a
patient who is unaware that the person providing treatment is not the
employee or agent of the hospital should have a right to look to the
hospital in seeking compensation for any negligence in providing
emergency room care. The fact that, unbeknownst to the patient, the
physician was an independent contractor should not prohibit a
patient from seeking compensation from the hospital which offers
the emergency room care." (Pamperin v. Trinity Memorial Hospital
(1988), 144 Wis. 2d 188, 207, 423 N.W.2d 848, 855.)
We join the many courts that have reached this conclusion. For lists
of decisions, see Kashishian, 167 Wis.2d at 40, 481 N.W.2d at 283;
Brown, 181 Ga.App. at 896-97, 354 S.E.2d at 636; Martell v. St.
Charles Hospital (1987), 137 Misc. 2d 980, 991-92, 523 N.Y.S.2d
342, 350.
We stress that liability attaches to the hospital only where the
treating physician is the apparent or ostensible agent of the hospital.
If a patient knows, or should have known, that the treating physician
is an independent contractor, then the hospital will not be liable. See
Pamperin, 144 Wis.2d at 207 n. 7, 423 N.W.2d at 855 n. 7.
Apparent Authority
We now discuss the theory under which a hospital may be held
vicariously liable, in a proper case, for the negligence of
independent-contractor physicians. The parties in the present case,
and other courts that *795 have addressed this issue, have relied on
either section 429 of the Restatement (Second) of Torts (Restatement
(Second) of Torts § 429 (1965)) or section 267 of the Restatement
(Second) of Agency (Restatement (Second) of Agency § 267 (1958))
or both. See Pamperin, 144 Wis.2d at 205-06, 423 N.W.2d at 854-
55; Martell, 137 Misc.2d at 992, 523 N.Y.S.2d at 350.
We do not deem it necessary at this time to adopt a special rule in
this area. Rather, we conclude that Illinois case law sufficiently
recognizes the realities of modern hospital care and defines the
limits of a hospital's liability.
Illinois has long recognized the doctrine of apparent authority, which
refers to a type of agency relationship. (2A C.J.S. Agency §§ 19, 20
(1972); 1 F. Mechem, Agency §§ 56, 57 (2d ed. 1914).) A principal
will be bound by not only that authority which he actually gives to
another, but also by the authority which he appears to give. Apparent
authority in an agent is the authority which the principal knowingly
permits the agent to assume, or the authority which the principal
holds the agent out as possessing. It is the authority which a
reasonably prudent person, exercising diligence and discretion, in
view of the principal's conduct, would naturally suppose the agent to
possess. (State Security Insurance Co. v. Burgos (1991), 145 Ill. 2d
423, 431-32, 164 Ill. Dec. 631, 583 N.E.2d 547; Faber-Musser Co. v.
William E. Dee Clay Manufacturing Co. (1920), 291 Ill. 240, 244,
126 N.E. 186.) Where the principal creates the appearance of
authority, the principal "will not be heard to deny the agency to the
prejudice of an innocent party, who has been led to rely upon the
appearance of authority in the agent." Union Stock Yard & Transit
Co. v. Mallory, Son & Zimmerman Co. (1895), 157 Ill. 554, 565, 41
N.E. 888; accord State Security Insurance Co., 145 Ill. 2d at 432,
P a g e | 151
164 Ill. Dec. 631, 583 N.E.2d 547; Faber-Musser Co., 291 Ill. at
244-45, 126 N.E. 186; 1 F. Mechem, Agency § 246 (2d ed. 1914).
Whether an agent is authorized to act is a question of fact.
(Barkhausen, 395 Ill. at 566, 70 N.E.2d 565.) Whether a person has
notice of the lack of an agent's authority, or is put on notice by
circumstances, is likewise a question of fact. Schoenberger v.
Chicago Transit Authority (1980), 84 Ill.App.3d 1132, 1138, 39 Ill.
Dec. 941, 405 N.E.2d 1076, citing Paine v. Sheridan Trust &
Savings Bank (1930), 342 Ill. 342, 174 N.E. 368.
It is true that the doctrine of apparent authority is more commonly
applied in contract cases. (Lynch v. Board of Education of
Collinsville Community Unit District No. 10 (1980), 82 Ill. 2d 415,
439, 45 Ill. Dec. 96, 412 N.E.2d 447 (Ryan, J., dissenting).)
However, it is settled that an apparent agency gives rise to tort
liability where the injury would not have occurred but for the injured
party's justifiable reliance on the apparent agency. Brown, 181
Ga.App. at 897, 354 S.E.2d at 636, aff'd, 257 Ga. at 508-09, 361
S.E.2d at 166; Restatement (Second) of Agency §§ 265 through 267
(1958); W. Seavey, Law of Agency § 90 (1964).
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." Pamperin, 144
Wis.2d at 207-08, 423 N.W.2d at 855-56.
*796 Accord Brown, 257 Ga. at 509-10, 361 S.E.2d at 166-67;
Mehlman, 281 Md. at 274-75, 378 A.2d at 1124.
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. Pamperin, 144 Wis.2d at 209-10, 423
N.W.2d at 856-57.
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
Pamperin court explained:
"We agree with these decisions that the critical distinction 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 or her
personal physician to provide medical care. Except for one who

seeks care from a specific physician, if a person voluntarily enters a
hospital without objecting to his or her admission to the hospital,
then that person is seeking care from the hospital itself. An
individual who seeks care from a hospital itself, as opposed to care
from his or her personal physician, accepts care from the hospital in
reliance upon the fact that complete emergency room carefrom blood
testing to radiological readings to the endless medical support
serviceswill be provided by the hospital through its staff." Pamperin,
144 Wis.2d at 211-12, 423 N.W.2d at 857.
We now apply these principles to the record before us. Construing
the evidence strictly against the hospital and liberally in favor of
plaintiff, we conclude that a genuine issue of material fact exists as
to whether Dr. Frank was an apparent agent of the hospital. When
the decedent was brought to the hospital emergency room, he asked
for Dr. Stromberg, a KMA physician. Decedent did not ask for Dr.
Frank, who was not decedent's physician and who had never before
met decedent. Rather, Dr. Frank was another KMA physician who
merely happened to be covering the emergency room the day
decedent was taken there. The hospital did not inform emergency
room patients that emergency room physicians were independent
contractors. Also, the hospital's treatment consent form, which
decedent signed, stated that he would be treated "by physicians and
employees of the hospital."
The record contains conflicting evidence as to both the hospital's
"holding out" of emergency room care, and decedent's justifiable
reliance that the emergency room care was provided by the hospital
rather than by Dr. Frank or KMA specifically. At the least,
reasonable persons might draw different inferences from the facts of
record. Based on the record before us, we cannot say that the
hospital's right to summary judgment is clear and free from doubt.
Thus, we reverse the trial court's entry of summary judgment in
favor of the hospital.
Miscellaneous Issues
We note two additional arguments of the hospital. The hospital
argues that we should not consider the issue of apparent agency
because plaintiff did not plead it. In her complaint, plaintiff alleged extinguished the principal's vicarious liability. Bristow, 140
simply that Dr. Frank was an agent or employee of the hospital,
rather than alleging specifically that Dr. Frank was an apparent agent
of the hospital.
The appellate court rejected this argument. We agree with the
appellate court's reasoning and result on this issue. 233 Ill.App.3d at National Bank, 154 Ill. 2d at 355, 181 Ill. Dec. 917, 609 N.E.2d 285)
376-77, 174 Ill. Dec. 597, 599 N.E.2d 143.
We lastly note the hospital's argument that, even if Dr. Frank was an the principal. Cases holding to the contrary, such as Edgar County
apparent agent of the hospital, plaintiff's settlement with him
extinguished her claim against the hospital. Defendant relies on this
court's recent decision in American National Bank & Trust Co. v.
Columbus-Cuneo-Cabrini Medical Center (1992), 154 Ill. 2d 347,
181 Ill. Dec. 917, 609 N.E.2d 285. In that case, this court held that
where a plaintiff brings a respondeat superior *797 claim against a
principal, "any settlement between the agent and the plaintiff must
also extinguish the principal's vicarious liability." American National this court has the inherent power to make its rulings prospective. A
Bank, 154 Ill. 2d at 355, 181 Ill. Dec. 917, 609 N.E.2d 285.
The rule announced in American National Bank creates an
inconsistency with this court's decision in Edgar County Bank &
P a g e | 152
Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 312 N.E.2d
259. In Edgar County Bank, this court held that a covenant not to sue
an employee or agent that expressly reserves a plaintiff's right to
seek recovery from a principal does not bar the plaintiff's respondeat
superior action against the principal. Edgar County Bank, 57 Ill. 2d
at 302, 312 N.E.2d 259, relied on in Stewart v. Village of Summit
(1986), 114 Ill. 2d 23, 29-30, 101 Ill. Dec. 862, 499 N.E.2d 450.
Although American National Bank holds that a plaintiff's settlement
with an agent extinguishes the principal's vicarious liability, Edgar
County Bank renews the principal's liability if the plaintiff's
covenant not to sue the agent expressly reserves the plaintiff's right
to seek recovery from the principal. Under such a rule, it is fair to
surmise that no covenant not to sue an agent will ever lack such an
express reservation of rights against the principal.
In Bristow v. Griffitts Construction Co. (1986), 140 Ill.App.3d 191,
94 Ill. Dec. 506, 488 N.E.2d 332, the appellate court acknowledged
that this result appears to deny the employee the benefit of his
covenant because he would remain liable to the employer for
indemnification. However, the court concluded that such a result is
permissible because the employee expressly agreed. (Bristow, 140
Ill.App.3d at 193, 94 Ill. Dec. 506, 488 N.E.2d 332.) Thus, the rule
announced in Bristow was that where a plaintiff brings a respondeat
superior claim against a principal, the settlement of the plaintiff's
claim against the agent extinguishes the plaintiff's claim against the
principal, if the agreement does not expressly reserve the plaintiff's
action against the principal. See Kandaras & Kelley, New
Developments in the Illinois Law of Contribution Among Joint
Tortfeasors, 23 Loy.U.Chi.L.J. 407, 425 (1992).
We cannot allow this "catch 22" to remain unreconciled. It is
axiomatic that the settlement of disputes is to be encouraged.
However, this court held in American National Bank that common
law implied indemnity remains viable in quasi-contractual
relationships involving vicarious liability. (American National Bank,
154 Ill. 2d at 354, 181 Ill. Dec. 917, 609 N.E.2d 285.) Thus, as the
Bristow court observed, an agent would gain nothing for settling
with a plaintiff unless the covenant not to sue the agent also
Ill.App.3d at 198, 94 Ill. Dec. 506, 488 N.E.2d 332.
Accordingly, we hold that the rule announced in American National
Bank that "any settlement between the agent and the plaintiff must
also extinguish the principal's vicarious liability" (American
stands regardless of whether the plaintiff's covenant not to sue the
agent expressly reserves the plaintiff's right to seek recovery from
Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill. 2d 298, 312
N.E.2d 259, and Stewart v. Village of Summit (1986), 114 Ill. 2d 23,
29-30, 101 Ill. Dec. 862, 499 N.E.2d 450, are hereby overruled on
this point.
We further conclude that the rule we announce today shall apply
prospectively from the date of the filing of this opinion. Of course,
new rule or decision will be given prospective operation whenever
injustice or hardship, due to justifiable reliance on the overruled
decisions, would thereby be averted. Elg v. Whittington (1987), 119

Ill. 2d 344, 356-57, 116 Ill. Dec. 252, 518 N.E.2d 1232 (and cases
cited therein).
We find that the facts in the present case meet the general test for
prospective application. (Elg, 119 Ill. 2d at 359, 116 Ill. Dec. 252,
518 N.E.2d 1232.) Initially, today's *798 decision overruled clear
past precedent, e.g., Edgar County Bank. Also, the rule we announce
today would not be thwarted by a prospective application. The
purpose of the rule in American National Bank is to encourage
settlements on the part of agents. In the present case, however, Dr.
Frank has already settled. He agreed to plaintiff's reservation of
rights against the hospital while he knew or should have known of
the hospital's right of implied indemnity against him.
Finally, a balance of the equities clearly favors prospective
application. Retroactive application of the rule we announce today
would not greatly improve the hospital's position. Under the rule we
announce today, Dr. Frank settles with plaintiff, which extinguishes
the hospital's liability. Under the rule expressed in cases such as
Edgar County Bank, Dr. Frank settles with plaintiff but the hospital
remains liable due to the reservation of rights clause in the covenant
not to sue Dr. Frank. However, the hospital is indemnified by Dr.
Frank. In either case, the hospital does not have to pay.
In contrast, retroactive application of the rule we announce today
would be unfair to plaintiff and cause her a great hardship. In her
covenant not to sue Dr. Frank, plaintiff expressly reserved her right
to seek recovery from the hospital. A retroactive application would
deprive plaintiff of a right which she purposely and legally retained.
A balance of the equities clearly weighs in favor of a prospective
application. See Elg, 119 Ill. 2d at 359, 116 Ill. Dec. 252, 518
N.E.2d 1232.
We conclude that a prospective operation in this case will avert
injustice and hardship on plaintiff's part, who justifiably relied on the
law expressed in cases such as Edgar County Bank. Therefore, we
hold that this decision will apply prospectively from the date of the
filing of this opinion.
For the foregoing reasons, the judgments of the appellate court and
the circuit court of De Kalb County are reversed, and the cause
remanded to the trial court for further proceedings not inconsistent
with this opinion.
Judgments reversed; cause remanded.
G.R. No. L-21549 October 22, 1924
TEODORO VEGA, plaintiff-appellee, vs.
THE SAN CARLOS MILLING CO., LTD., defendant-
appellant.ROMUALDEZ, J.:
This action is for the recovery of 32,959 kilos of centrifugal sugar,
or its value, P6,252, plus the payment of P500 damages and the
costs.
The defendants filed an answer, and set up two special defenses, the
first of which is at the same time a counterclaim.
P a g e | 153
The Court of First Instance of Occidental Negros that tried the case,
rendered judgment, the dispositive part of which is as follows:
By virtue of these considerations, the court is of opinion
that with respect to the complaint, the plaintiff must be held
to have a better right to the possession of the 32,959 kilos
of centrifugal sugar manufactured in the defendants' central
and the latter is sentenced to deliver them to the plaintiff,
and in default, the selling price thereof, amounting to
P5,981.06 deposited in the office of the clerk of the court.
Plaintiff's claim for damages is denied, because it has not
been shown that the defendant caused the plaintiff any
damages. Plaintiff is absolved from defendant's
counterclaim and declared not bound to pay the such
claimed therein. Plaintiff is also absolved from the
counterclaim of P1,000, for damages, it not having been
proved that any damages were caused and suffered by
defendant, since the writ of attachment issued in this case
was legal and proper. Without pronouncement as to costs.
So ordered.
The defendant company appealed from this judgment, and alleges
that the lower court erred in having held itself with jurisdiction to
take cognizance of and render judgment in the cause; in holding that
the defendant was bound to supply cars gratuitously to the plaintiff
for the cane; in not ordering the plaintiff to pay to the defendant the
sum of P2,866 for the cars used by him, with illegal interest on said
sum from the filing of the counterclaim, and the costs, and that said
judgment is contrary to the weight of the evidence and the law.
The first assignment of error is based on clause 23 of the Mill's
covenants and clause 14 of the Planter's Covenant as they appear in
Exhibit A, which is the same instrument as Exhibit 1.
Said clauses are as follows:
23. That it (the Mill — Party of the first part) will submit
and all differences that may arise between the Mill and the
Planters to the decision of arbitrators, two of whom shall be
chosen by the Mill and two by the Planters, who in case of
inability to agree shall select a fifth arbitrator, and to
respect and abide by the decision of said arbitrators, or any
three of them, as the case may be.
xxx xxx xxx
14. That they (the Planters--Parties of the second part) will
submit any and all differences that may arise between the
parties of the first part and the parties of the second part of
the decision of arbitrators, two of whom shall be chosen by
the said parties of the first part and two by the said party of
the second part, who in case of inability to agree, shall
select a fifth arbitrator, and will respect and abide by the
decision of said arbitrators, or any three of them, as the case
may be.
It is an admitted fact that the differences which arose between the
parties, and which are the subject of the present litigation have not

been submitted to the arbitration provided for in the above quoted
clauses.
Defendant contends that as such stipulations on arbitration are valid,
they constitute a condition precedent, to which the plaintiff should
have resorted before applying to the courts, as he prematurely did.
The defendant is right in contending that such covenants on
arbitration are valid, but they are not for the reason a bar to judicial
action, in view of the way they are expressed:
An agreement to submit to arbitration, not consummated by
an award, is no bar to suit at law or in equity concerning the
subject matter submitted. And the rule applies both in
respect of agreements to submit existing differences and
agreements to submit differences which may arise in the
future. (5 C. J., 42.)
And in view of the terms in which the said covenants on arbitration
are expressed, it cannot be held that in agreeing on this point, the
parties proposed to establish the arbitration as a condition precedent
to judicial action, because these clauses quoted do not create such a
condition either expressly or by necessary inference.
Submission as Condition Precedent to Suit. — Clauses in
insurance and other contracts providing for arbitration in
case of disagreement are very similar, and the question
whether submission to arbitration is a condition precedent
to a suit upon the contract depends upon the language
employed in each particular stipulation. Where by the same
agreement which creates the liability, the ascertainment of
certain facts by arbitrators is expressly made a condition
precedent to a right of action thereon, suit cannot be
brought until the award is made. But the courts generally
will not construe an arbitration clause as ousting them of
their jurisdiction unless such construction is inevitable, and
consequently when the arbitration clause is not made a
condition precedent by express words or necessary
implication, it will be construed as merely collateral to the
liability clause, and so no bar to an action in the courts
without an award. (2 R. C. L., 362, 363.)
Neither does not reciprocal covenant No. 7 of said contract Exhibit
A expressly or impliedly establish the arbitration as a condition
precedent. Said reciprocal covenant No. 7 reads:
7. Subject to the provisions as to arbitration, hereinbefore
appearing, it is mutually agreed that the courts of the City
of Iloilo shall have jurisdiction of any and all judicial
proceedings that may arise out of the contractual relations
herein between the party of the first and the part is of the
second part.
The expression "subject to the provisions as to arbitration,
hereinbefore appearing" does not declare such to be a condition
precedent. This phrase does not read "subject to the arbitration," but
"subject to the provisions as to arbitration hereinbefore appearing."
And, which are these "provisions as to arbitration hereinbefore
appearing?" Undoubtedly clauses 23 and 14 quoted above, which do
not make arbitration a condition precedent.
P a g e | 154
We find no merit in the first assignment of error.
The second raises the most important question in this controversy, to
wit: Whether or not the defendant was obliged to supply the plaintiff
which cars gratuitously for cane.
The Central, of course, bound itself according to the contract exhibit
A in clause 3 of the "Covenant by Mill," as follows:
3. That it will construct and thereafter maintain and operate
during the term of this agreement a steam or motor railway,
or both, for plantation use in transporting sugar cane, sugar
and fertilizer, as near the center of the can ands as to
contour of the lands will permit paying due attention to
grades and curves; that it will also construct branch lines at
such points as may be necessary where the present
plantations are of such shape that the main line cannot run
approximately through the center of said plantations, free of
charge to the Planters, and will properly equip said railway
with locomotives or motors and cars, and will further
construct a branch line from the main railway line, mill and
warehouses to the before mentioned wharf and will further
construct yard accomodations near the sugar mill. All steam
locomotives shall be provided which effective spark
arresters. The railway shall be constructed upon suitable
and properly located right-of-way, through all plantations
so as to give, as far as practicable, to each plantations equal
benefit thereof; said right-of-way to b two and one-half
meters in width on either said from the center of track on
both main line and switches and branches.
By this covenant, the defendant, the defendant bound itself to
construct branch lines of the railway at such points on the estate as
might be necessary, but said clause No. 3 can hardly be construed to
bind the defendant to gratuitously supply the plaintiff with cars to
transport cane from his fields to the branch lines agreed upon on its
estate.
But on March 18, 1916, the defendant company, through its manager
Mr. F. J. Bell, addressed the following communication to the
plaintiff:
DEAR SIR: In reply to yours of March 15th.
Yesterday I tried to come out to San Antonio to
see you but the railway was full of cars of San Jose
and I could not get by with my car. I will try again
as soon as I finish shipping sugar. The steamer is
expected today.
I had a switch built in the big cut on San Antonio
for loading your cane near the boundary of Santa
Cruz. will not this sufficient? We have no another
switch here and I hope you can get along with the
3 you now have.
Some of the planters are now using short switches
made of 16-lb. portable track. These can be placed
on the main line at any place and cars run off into

the field and loaded. I think one on your hacienda
would repay you in one season.
The rain record can wait.
Sincerely yours,
SAN CARLOS MILLING CO., LTD. (Sgd.)
F.J. BELL
The judgment appealed from is hereby affirmed with the costs of this
"Manager"
instance against the appellant. So ordered.
It is suggested to the plaintiff in this letter that he install a 16-lb. rail
portable track switch, to be used in connection with the main line, so
the cars may run on it. It is not suggested that he purchase cars, and
the letter implies that the cars mentioned therein belong to the
defendant.
As a result of this suggestion, the plaintiff bought a portable track
which cost him about P10,000, and after the track was laid, the
defendant began to use it without comment or objection from the
latter, nor payment of any indemnity for over four years.
With this letter Exhibit D, and its conduct in regard to the same, the
defendant deliberately and intentionally induced the plaintiff to
believe that by the latter purchasing the said portable track, the
defendant would allow the free use of its cars upon said track, thus
inducing the plaintiff to act in reliance on such belief, that is, to
purchase such portable track, as in fact he did and laid it and used it
without payment, the cars belonging to the defendant.
This is an estoppel, and defendant cannot be permitted to gainsay its
own acts and agreement.
The defendant cannot now demand payment of the plaintiff for such
use of the cars. And this is so, not because the fact of having
supplied them was an act of pure liberality, to which having once
started it, the defendant was forever bound, which would be
unreasonable, but because the act of providing such cars was, under
the circumstances of the case, of compliance of an obligation to
which defendant is bound on account of having induced the plaintiff
to believe, and to act and incur expenses on the strenght of this
belief.
The question of whether or not the plaintiff was under the necessity
of first showing a cooperative spirit and conduct, does not affect the
right which he thus acquired of using the cars in question
gratuitously.
We do not find sufficient reason to support the second assignment of
error.
The point raised in the third assignment of error is a consequence of
the second. If the plaintiff was entitled, as we have said, to use the
cars gratuitously, the defendant has no right to demand any payment
from him for the use of said cars.
The other assignments of error are consequences of the preceding
ones.
P a g e | 155
We find nothing in the record to serve as a legal and sufficient bar to
plaintiff's action against the defendant for the delivery of the sugar in
question, or its value. A discussion as to the retention of this deposit
to apply upon what is due by reason thereof made in the judgment
appealed from, is here necessary. The parties do not raise this
question in the present instance. Furthermore, it has not been proven
that the plaintiff owes the defendant anything by reason of such
deposit.
Johnson, Street and Villamor, JJ., concur.
Separate Opinions
AVANCEÑA, J., concurring:
I concur in the majority opinion, but desire to state, however, that
my vote on the first error is based upon the fact that inasmuch as
clause 23 of the Mill's Covenants, and clause 14 of the Planter's
Covenants provide that the parties should respect and abide by the
decision of the arbitrators, they bar judicial intervention and
consequently are null and void in accordance with the ruling of this
court in the case of Wahl and Wahl vs. Donaldson, Sims & Co. (2
Phil., 301). Clause 7 of the Mutual Covenants, naming the Court of
First Instance of Iloilo as the one with jurisdiction to try such cases
as might arise from the parties' contractual relations, by the very fact
that it was made subject to the arbitration clauses previously
mentioned, does not render such arbitration merely a condition
precedent to judicial action, nor does it change its scope, as clearly
indicated by its wording and the intention of the parties. Said clause
7 was doubtless added in case it became necessary to resort to the
courts for the purpose of compelling the parties to accept the
arbitrator's decision in accordance with the contract, and not in order
to submit anew to the courts what had already been decided by the
arbitrators, whose decision the contracting parties had bound
themselves to abide by and respect.
MALCOLM, J., dissenting:
I join with Mr. Justice Ostrand in his dissent based on the
proposition that the defendant is not bound to furnish cars free of
charge for use on the plaintiff's portable railway tracks, in relation
with its corollary, that the letter written by the manager of the
defendant's mill on March 18, 1916, does not estop the defendant
from demanding compensation for the future use of the cars. I
dissent also on another ground, which is, that the parties having
formally agreed submit their differences to arbitrators, while
recognizing the jurisdiction of the courts, arbitration has been made
a condition precedent to litigation, and should be held valid and
enforceable.
Lamentable, to say the least, is the chaotic condition which exists
with reference to the efficacy of arbitration agreements. While the

variety of reasons advanced by the courts for refusing to compel
parties to abide by their arbitration contracts are not always
convincing, and while research discloses that the rules have mounted
on antiquity rather than on reason, yet we presume that, with or
without reason, the general principles must be accepted. A light is,
however, breaking through the clouds of obscurity and courts which
formerly showed hostility to arbitration are now looking upon it with
reluctant favor. The possibly inevitable jealousy of the courts toward
anything which deprives them of jurisdiction and the idea which
once prevailed that since there are courts, therefore everybody must
go to the courts, is, as Federal Judge Hough declares in the case of
United States Asphalt Refining Co. vs. Trinidad Lake Petroleum Co.
([1915], 222 Fed., 1006), "A singular view of juridical sanctity."
In the Philippines fortunately, the attitude of the courts toward
arbitration agreements is slowly crystallizing into definite and
workable form. The doctrine announced in Wahl and Wahl vs.
Donaldson, Sims & Co. ([1903], 2 Phil., 301), was that a clause in a
contract providing that all matters in dispute shall be referred to
arbitrators and to them alone, is contrary to public policy and cannot
oust the courts of jurisdiction. But even this conservative expression
of the doctrine has been modernized by the subsequent cases of
Chang vs. Royal Exchange Assurance Corporation of London
([1907], 8 Phil., 399); Allen vs. Province of Tayabas ([1918], 38
Phil., 356); and Chan Linte vs. Law Union and Rock Ins. Co.
([1921], 42 Phil., 548). The rule now is that unless the agreement is
such as absolutely to close the doors of the courts against the parties,
which agreement would be void, the courts will look with favor
upon such amicable arrangement and will only with great reluctance
interfere to anticipate or nullify the action of the arbitrator.
The new point of the judiciary in the progressive jurisdiction of
Pennsylvania, in England, and under the Civil Law, is also worthy of
our serious consideration. It is the rule in Pennsylvania that when the
persons making an executory contract stipulate in it that all disputes
and differences between them, present or prospective, in reference to
such contract or any sum payable under it, shall be submitted to the
arbitrament of a named individual, or specifically designated
persons, they are effectually bound irrevocaby by that stipulation,
and precluded from seeking redress elsewhere until the arbiter or
arbiters agreed upon have rendered an award or otherwise been
discharged. The courts there, however, make distinction between
agreements for a general reference to arbitration and designating a
particular individual or tribunal to arbitrate. The former may be
waived or revoked, and is no obstacle to a suit or action for the same
matter; the latter is irrevocable and until the designated arbiter or
arbiters have decided, no right of action arises which can be
enforced in law or in equity. (Snodgrass vs. Gavit [1857], 28 Pa.,
221; Commercial Union Assur. Co. vs. Hocking [1886], 115 Pa.,
407; 2 Am St. Rep., 562; Page vs. Vankirk, 1 Brewst. [Pa.], 282; 47
L. R. A. [N. S.], note, pp. 399, 400.)
In England, the view seems now to prevail that a contractual
stipulation for a general arbitration, constitutes a condition precedent was speedier and less expensive for all concerned and less likely to
to the institution of judicial proceedings for the enforcement of the
contract. (Compagnie de Commerce etc. vs. Hamburg Amerika etc.
[1917], 36 Phil., 590, 635.) Law Watson in Hamlyn vs. Talisker
Distillery ([1894], App. Cas., 202), said: "The rule that a reference to justice might guide them and possible differences by quickly
arbiters not named cannot be enforced does not appear to me to rest
upon any essential considerations of public policy. Even if an
opposite inference were deducible from the authorities by which it
was established, the rule has been so largely trenched upon by the
P a g e | 156
legislation of the last 50 years, . . . that I should hesitate to affirm
that the policy upon which it was originally based could now be
regarded as of cardinal importance.
Finally, it is within our knowledge that the Spanish civil law wisely
contains elaborate provisions looking to the amicable adjustment of
controversies out of court. Litigation by means of friendly adjusters
was formerly well known. The procedure in this kind of litigation
was minutely outlined in the Ley de Enjuiciamiento to Civil. Two
articles of the Civil Code, namely articles 1820 and 1821, were
given up to the subject of arbitration, and expressly confirmed this
method of settling differences. (See Cordoba vs. Conde [1903], 2
Phil., 445.)
Now, with all these legal views to the forefront, let us notice the
facts to which they should be applied. 1awph!l.net
Clause 23 of the Mill's Covenants, clause 14 of the Planter's
Covenants, and clause 7 of the Mutual Covenants, read as follows:
23. That it (the Mill — Party of the First Part) will submit
any and all differences that may arise between the Mill and
the Planters to the decision of arbitrators, two of whom
shall be chosen by the Mill and two by Planters, who in
case of inability to agree shall select a fifth arbitrator, and
to respect and abide by the decision of said arbitrators, or
any three of them, as the case may be.
xxx xxx xxx
14. That they (the Planters--Parties of the Second Part) will
submit any and all differences that may arise between the
parties of the first part and the parties of the second part to
the decision of arbitrators, two of whom shall be chosen by
the said parties of the first part and two by the said party of
the second part, who in case of inability to agree, shall
select a fifth arbitrator, and will respect and abide by the
decision of said arbitrators, or any three of them, as the case
may be.
xxx xxx xxx
7. Subject to the provisions as to arbitration, hereinbefore
appearing, it is mutually agreed that the courts of the City
of Iloilo shall have jurisdiction of any all judicial
proceedings that may arise out of the contractual relations
herein between the party of the first and the parties of the
second part.
It was plainly the solemn purpose of the parties to settle their
controversies amicably if possible before resorting to the courts.
They provided for themselves by mutual consent a method which
breed that ill-feeling which is often the consequence of hotly
contested litigation. All this was done by the Planters on the one
hand and by the Milling Company on the other, to the end that
adjusted.
 P a g e | 157

It is clear, by paragraph 7 of the Mutual Covenants, that these parties
did not intend that the decision of the arbitrators should prevent
resort to the courts, for they expressly agreed to carry litigation
between them to the courts of Iloilo. Acting under legal rules, even
in their most restrictive form, disputes arising out of the contract,
were to be referred to arbitration so that the damages sustained by a
breach of the contract, could be ascertained by specified arbitrators
before any right of action arose; but the matters in dispute were not
to be referred to arbitrators and to them alone, to the utter exclusion
of the courts. It is exactly correct to state that the clauses of the
Covenants hereinbefore quoted, were meant as a condition precedent
to litigation, which accordingly should be given effect.
For the two reasons above explained, I vote for reversal.
OSTRAND, J., dissenting:
Nothing in said about cars. The plaintiff acted on this advice and
purchased and installed portable railroad tracks. He was allowed to
use the defendant's cars on the tracks free of charge for over four
years. It is not suggested that defendant's estimate of the saving to be
effected through this installation of the portable railway system was
misleading as we can therefore assume that the system has paid for
itself several times over. If so, in what respect can it be said that the
plaintiff has been mislead to his prejudice? As we have seen, if he
has not been so mislead the doctrine of equitable estoppel will not
apply. It is evident that in this case the doctrine is invoked for-
positive gain, a purpose which is entirely beyond the scope of the
doctrine. In Lindsay vs. Cooper (94 Ala., 170), the court, speaking of
equitable estoppels, says: "Their operation should be limited to
saving harmless, or making whole, the person in whose they arise,
and they should never be made the instrument of gain or profit."
(See also 10 R. C. L., 698 and the other authorities there cited.)

I must dissent from the conclusion of the court that the defendant is The principles stated are elementary and should become obvious to
any lawyer upon a moment's reflection. But I may, perhaps, suggest
bound to furnish cars free of charge for use on the plaintiff's portable
a homely illustration bearing on the application of these principles:
railway tracks.
A advises his neighbor B to buy a saddle-horse. B has no saddle but,
in view of their good neighborly relations, expects to be able to
It is admitted that the written contract between the parties does not borrow one from A. B buys the horse, borrows A's saddle and keeps
impose this obligation upon the defendant, but it is argued that the it for several years. He does not regret the purchase of the horse but
letter of March 18, 1916, written by the manager of the defendant's asserts that he would not have bought it but for the fact that the
mill, taken in connection with the fact many of the defendant's expected to use A's saddle and that this expectation was justified by
patrons were permitted to use its cars on their portable railroads, the further fact that A appeared to be an easy man to borrow from
without charge, now estops the defendant from demanding and was in the habit of extending similar assistance to all of his
compensation for the future use of the cars. neighbors. It seems to me that as far as the principles involved are
concerned, the example given is a close parallel to the present case,
That the court has here misapplied that doctrine of equitable estoppel but I hope that this court would not hold A estoppel from asserting
or estoppel in pais seems clear. The definitions of such estoppel may his title to the saddle and from demanding its return.
vary somewhat but all authorities agree that the party invoking the
doctrine must have been mislead to his prejudice. That is the final In the present case the relations between the parties are governed by
and, in reality, most important of the elements of equitable estoppel. contracts in writing which are presumed to contain all the terms of
These elements are thus stated in 3 Words and Phrases, 2498: their agreement. (Sec. 285, Code of Civ. Proc.) It is not alleged that
the written agreement fails to express the true intent and agreement
To constitute an estoppel, the following elements are of the parties. Yet the court through what clearly is a misapplication
essential: (1) There must be conduct, acts, language, or of the doctrine of equitable estoppel in effect varies that written
silence amounting to a representation or a concealment of agreement and proceeds to create a new contract between the parties.
material facts. (2) These facts must be known to the party The decision of the court upon this point is, as far as I can find,
estoppel at the time of his said conduct, or, at least, the unique and I suppose that most men who have occasion to enter into
circumstances must be such that knowledge of them is written business agreements will fervently hope that it will so
necessarily imputed to him. (3) The truth concerning these remain.
facts must be known to the other part claiming the benefit
of the estoppel at the time when such conduct was done,
and at the time when it was acted upon him. (4) The
G.R. No. 187926 February 15, 2012
conduct must be done with the intention, or, at east, with
the expectation, that it will be acted upon by the other party, Dr. EMMANUEL JARCIA, Jr. and Dr. MARILOU
or under such circumstances that it is both natural and BASTAN, Petitioners,
probable that it will be so acted upon. (5) The conduct must vs.PEOPLE OF THE PHILIPPINES, Respondent.
be relied upon by the other party, and, thus relying he must
be led to act upon it. (6) He must in fact act upon it in such
a manner as to change his position for the worse. (First Nat. MENDOZA, J.:
Bank vs. Dean, 17 N. Y. Supp., 375, 377; 60 N. Y. Super.
Ct. 299 [citing Pom. Eq. Jur.]; Grange vs. Palmer. 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
Bearing in mind the principles stated, let us now analyze the facts in of the medical profession is the preservation of life and health of the
the case. The letter of March 18, 1916, is quoted in the decision. It people. Corollarily, when a physician departs from his sacred duty
contains a suggestions that the plaintiff install short switches made and endangers instead the life of his patient, he must be made liable
of 16-lb. rail portable track on his hacienda and expresses the for the resulting injury. This Court, as this case would show, cannot
opinion that the installation would pay for itself in one season. 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 Decision2 of the Court of Appeals
(CA), and its May 19, 2009 Resolution3 in CA-G.R. CR No. 29559,
dismissing the appeal and affirming in toto the June 14, 2005
Decision4 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 victim’s 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
P a g e | 158
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
 P a g e | 159

between the negligence and the injury must be a direct and natural Q: Did you tell her what you want on you to be done?
sequence of events, unbroken by intervening efficient causes. In
other words, the negligence must be the proximate cause of the A: Yes, sir.
injury. Negligence, no matter in what it consists, cannot create a
right of action unless it is the proximate cause of the injury
Q: What did you [tell] her?
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 A: I told her, sir, while she was cleaning the wounds of my son, are
would not have occurred. 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.
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 Q: And what did she tell you?
injury sustained by Roy.
A: According to Dra. Bastan, there is no need to x-ray because it was
We are not convinced. the ankle part that was run over.

The prosecution is however after the cause which prolonged the pain Q: What did you do or tell her?
and suffering of Roy and not on the failure of the accused-appellants
to correctly diagnose the extent of the injury sustained by Roy. 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.
For a more logical presentation of the discussion, we shall first
consider the applicability of the doctrine of res ipsa loquitur to the Q: So you mean to say there was no treatment made at all?
instant case. Res ipsa loquitur is a Latin phrase which literally means
"the thing or the transaction speaks for itself. The doctrine of res A: None, sir.
ipsa loquitur is simply a recognition of the postulate that, as a matter
of common knowledge and experience, the very nature of certain xxx xxx xxx
types of occurrences may justify an inference of negligence on the
part of the person who controls the instrumentality causing the injury
xxx xxx xxx
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 A: I just listened to them, sir. And I just asked if I will still return my
common knowledge, negligence may be deduced from the mere son.
occurrence of the accident itself. Hence, res ipsa loquitur is applied
in conjunction with the doctrine of common knowledge. xxx xxx xxx

The specific acts of negligence was narrated by Mrs. Santiago who xxx xxx xxx
accompanied her son during the latter’s ordeal at the hospital. She
testified as follows: Q: And you were present when they were called?

Fiscal Formoso: A: Yes, sir.

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 don’t even clean the wounds of my
son.
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:

Q: And what did she [tell] you? 1. The accident is of a kind which ordinarily does not occur
in the absence of someone’s negligence;
A: They told me they will call a resident doctor, sir.
2. It is caused by an instrumentality within the exclusive
xxx xxx xxx control of the defendant or defendants; and

Q: Was there a resident doctor [who] came? 3. The possibility of contributing conduct which would
make the plaintiff responsible is eliminated.
A: Yes, Sir. Dra. Bastan arrived.

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, it’s entirely different thing. Because if you are an
orthopedic resident, I am not trying to say…but 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 Doctor’s 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 don’t [know] why they don’t….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
P a g e | 160
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
PATIENT’S RIGHT LEG WAS HIT BY A TAXI, NOT
THE FAILURE OF THE ACCUSED-PETITIONERS
TO SUBJECT THE PATIENT’S 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 PROSECUTION’S 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 PATIENT’S 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 PATIENT’S 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
PATIENT’S ALLEGED INJURY (PROLONGED
PAIN AND SUFFERING) WAS DUE TO HIS OWN
MOTHER’S 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
LATTER’S 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 COURT’S 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
P a g e | 161
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 patient’s 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. Bastan’s 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 don’t 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?
P a g e | 162
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 don’t 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 Doctor’s 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 don’t why they don’t … 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.
xxxx
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. That’s why the leg seems to be fractured.17 [Emphases
supplied]
P a g e | 163
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 patient’s 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 physician–patient relationship," the Court
finds and so holds that there was a "physician–patient" relationship
in this case.
In the case of Lucas v. Tuaño,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 physician’s 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.22
Established medical procedures and practices, though in constant
instability, are devised for the purpose of preventing complications.
P a g e | 164
In this case, the petitioners failed to observe the most prudent
medical procedure under the circumstances to prevent the
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.1âwphi1 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;
(2) ₱ 100,000.00 as moral damages;
(3) ₱ 50,000.00 as exemplary damages; and
(4) Costs of the suit.
with interest at the rate of 6% per annum from the date of the filing
of the Information. The rate shall be 12% interest per annum from
the finality of judgment until fully paid.
SO ORDERED.
G.R. No. 178763 April 21, 2009

PETER PAUL PATRICK LUCAS, FATIMA
GLADYS LUCAS, ABBEYGAIL LUCAS AND
GILLIAN LUCAS, Petitioners,
vs.
DR. PROSPERO MA. C. TUAÑO, Respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari under Rule 45 of the Revised returned to Dr. Tuaño for another check-up on 6 October 1988. Dr.
1
Rules of Court, petitioners Peter Paul Patrick Lucas, Fatima Gladys
Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the
2 3
27 September 2006 Decision and 3 July 2007 Resolution, 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. Tuaño."
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. Tuaño," 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. Tuaño, M.D. (Dr. Tuaño),
an ophthalmologist at St. Luke’s Medical Center, for an eye consult.
Upon consultation with Dr. Tuaño, 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. Tuaño, he performed "ocular routine examination"
on Peter’s eyes, wherein: (1) a gross examination of Peter’s eyes and
their surrounding area was made; (2) Peter’s visual acuity were
taken; (3) Peter’s eyes were palpated to check the intraocular
pressure of each; (4) the motility of Peter’s eyes was observed; and
(5) the ophthalmoscopy4 on Peter’s eyes was used. On that particular
consultation, Dr. Tuaño diagnosed that Peter was suffering from
conjunctivitis5 or "sore eyes." Dr. Tuaño then prescribed Spersacet-
C6 eye drops for Peter and told the latter to return for follow-up after
one week.
As instructed, Peter went back to Dr. Tuaño on 9 September 1988.
Upon examination, Dr. Tuaño told Peter that the "sore eyes" in the
latter’s 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 Peter’s right eye, Dr. Tuaño prescribed to the former a steroid-
based eye drop called Maxitrol,8 a dosage of six (6) drops per day.9
P a g e | 165
To recall, Peter had already been using Maxitrol prior to his consult
with Dr. Tuaño.
On 21 September 1988, Peter saw Dr. Tuaño for a follow-up
consultation. After examining both of Peter’s eyes, Dr. Tuaño
instructed the former to taper down10 the dosage of Maxitrol,
because the EKC in his right eye had already resolved. Dr. Tuaño
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
Tuaño examined Peter’s eyes and found that the right eye had once
more developed EKC. So, Dr. Tuaño 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, Blephamide12 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. Tuaño
at his clinic, alleging severe eye pain, feeling as if his eyes were
about to "pop-out," a headache and blurred vision. Dr. Tuaño
examined Peter’s eyes and discovered that the EKC was again
present in his right eye. As a result, Dr. Tuaño told Peter to resume
the maximum dosage of Blephamide.
Dr. Tuaño saw Peter once more at the former’s clinic on 4
November 1988. Dr. Tuaño’s examination showed that only the
periphery of Peter’s right eye was positive for EKC; hence, Dr.
Tuaño prescribed a lower dosage of Blephamide.
It was also about this time that Fatima Gladys Lucas (Fatima),
Peter’s 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. Tuaño’s clinic,
complaining of "feeling worse." 14 It appeared that the EKC had
spread to the whole of Peter’s right eye yet again. Thus, Dr. Tuaño
instructed Peter to resume the use of Maxitrol. Petitioners averred
that Peter already made mention to Dr. Tuaño during said visit of the
above-quoted warning against the prolonged use of steroids, but Dr.
Tuaño supposedly brushed aside Peter’s concern as mere paranoia,
even assuring him that the former was taking care of him (Peter).
Petitioners further alleged that after Peter’s 26 November 1988 visit
to Dr. Tuaño, 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 Peter’s right eye
appeared to be bloody and swollen.15 Thus, spouses Peter and
Fatima rushed to the clinic of Dr. Tuaño. Peter reported to Dr. Tuaño
that he had been suffering from constant headache in the afternoon
and blurring of vision.
Upon examination, Dr. Tuaño noted the hardness of Peter’s right
eye. With the use of a tonometer16 to verify the exact intraocular
pressure17 (IOP) of Peter’s eyes, Dr. Tuaño discovered that the
tension in Peter’s right eye was 39.0 Hg, while that of his left was
17.0 Hg.18 Since the tension in Peter’s right eye was way over the
normal IOP, which merely ranged from 10.0 Hg to 21.0 Hg,19 Dr.
Tuaño ordered20 him to immediately discontinue the use of Maxitrol
and prescribed to the latter Diamox21 and Normoglaucon, instead.22
Dr. Tuaño also required Peter to go for daily check-up in order for
the former to closely monitor the pressure of the latter’s eyes.
On 15 December 1988, the tonometer reading of Peter’s right eye
yielded a high normal level, i.e., 21.0 Hg. Hence, Dr. Tuaño told
Peter to continue using Diamox and Normoglaucon. But upon
Peter’s complaint of "stomach pains and tingling sensation in his
fingers,"23 Dr. Tuaño discontinued Peter’s use of Diamox.24
P a g e | 166
Peter went to see another ophthalmologist, Dr. Ramon T.
Batungbacal (Dr. Batungbacal), on 21 December 1988, who
allegedly conducted a complete ophthalmological examination of
Peter’s eyes. Dr. Batungbacal’s diagnosis was Glaucoma25 O.D.26 He
recommended Laser Trabeculoplasty27 for Peter’s right eye.
When Peter returned to Dr. Tuaño on 23 December 1988, 28 the
tonometer measured the IOP of Peter’s right eye to be 41.0 Hg,29
again, way above normal. Dr. Tuaño 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 of Diamox.30
On 28 December 1988, during one of Peter’s regular follow-ups with
Dr. Tuaño, the doctor conducted another ocular routine examination
of Peter’s eyes. Dr. Tuaño noted the recurrence of EKC in Peter’s
right eye. Considering, however, that the IOP of Peter’s right eye
was still quite high at 41.0 Hg, Dr. Tuaño was at a loss as to how to
balance the treatment of Peter’s EKC vis-à-vis the presence of
glaucoma in the same eye. Dr. Tuaño, thus, referred Peter to Dr.
Manuel B. Agulto, M.D. (Dr. Agulto), another ophthalmologist
specializing in the treatment of glaucoma.31 Dr. Tuaño’s 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 I’m 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 latter’s
clinic. Several tests were conducted thereat to evaluate the extent of
Peter’s condition. Dr. Agulto wrote Dr. Tuaño 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 ½ tab every 6h po.
Slit lamp evaluation33 disclosed subepithelial corneal defect outer
OD. There was circumferential peripheral iris atrophy, OD. The
lenses were clear.
Funduscopy34 showed vertical cup disc of 0.85 R and 0.6 L with
temporal slope R>L.
Zeiss gonioscopy35 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 Timolol37 BID38 OD in lieu of
Normoglaucon. If the IOP is still inadequate, we may try D’epifrin39
BID OD (despite low PAS). I’m 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. Tuaño on 31 December 1988, bearing Dr.
Agulto’s aforementioned letter. Though Peter’s right and left eyes
then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr.
Tuaño 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. Tuaño instructed Peter to just continue using
Diamox and Normoglaucon in the meantime.
Just two days later, on 2 January 1989, the IOP of Peter’s 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. Tuaño conducted a visual field study43 of
Peter’s eyes, which revealed that the latter had tubular vision44 in his
right eye, while that of his left eye remained normal. Dr. Tuaño
directed Peter to religiously use the Diamox and Normoglaucon, as
the tension of the latter’s 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 D’epifrin were still not available in the market. Again, Dr.
Tuaño advised Peter to come for regular check-up so his IOP could
be monitored.
Obediently, Peter went to see Dr. Tuaño 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 Peter’s
eyes.
According to petitioners, after Dr. Aquino conducted an extensive
evaluation of Peter’s 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. Tuaño’s diagnosis of tubular vision in Peter’s right eye.
Petitioners claimed that Dr. Aquino essentially told Peter that the
latter’s 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 glaucoma45 and blaming Dr.
Tuaño for the same, Peter, joined by: (1) Fatima, his spouse 46; (2)
P a g e | 167
Abbeygail, his natural child47; and (3) Gillian, his legitimate child48
with Fatima, instituted on 1 September 1992, a civil complaint for
damages against Dr. Tuaño, 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 [Peter’s] 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
[Peter’s 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 Peter’s
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.;
Peter’s 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.
Tuaño’s grossly negligent conduct in prescribing to Peter the
medicine Maxitrol for a period of three (3) months, without
monitoring Peter’s IOP, as required in cases of prolonged use of said
medicine, and notwithstanding Peter’s constant complaint of intense
eye pain while using the same. Petitioners particularly prayed that
Dr. Tuaño be adjudged liable for the following amounts:
1. The amount of ₱2,000,000.00 to plaintiff Peter Lucas as
and by way of compensation for his impaired vision.
2. The amount of ₱300,000.00 to spouses Lucas as and by
way of actual damages plus such additional amounts that
may be proven during trial.
3. The amount of ₱1,000,000.00 as and by way of moral
damages.
4. The amount of ₱500,000.00 as and by way of exemplary
damages.
5. The amount of ₱200,000.00 as and by way of attorney’s
fees plus costs of suit.54
In rebutting petitioners’ complaint, Dr. Tuaño asserted that the
"treatment made by [him] more than three years ago has no causal
connection to [Peter’s] present glaucoma or condition." 55 Dr. Tuaño
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. Tuaño 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 [Peter’s
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
[Peter’s] EKC caused the steroid induced glaucoma," 59 Dr. Tuaño
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, [Peter’s] glaucoma can only Undaunted, petitioners appealed the foregoing RTC decision to the
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 latter’s 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. Tuaño was negligent in his treatment of Peter’s
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. Tuaño, caused Peter’s 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 [Tuaño] liable." 63 According to the RTC:
[Petitioners] failed to establish the duty required of a medical
practitioner against which Peter Paul’s 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. Tuaño of Peter Paul’s pressure a
deviation from the norm or his non-discovery of the glaucoma in the
P a g e | 168
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 defendant’s 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 [Peter’s]
eye."65
Correspondingly, the RTC accepted Dr. Tuaño’s 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, plaintiff’s Exhibit ‘S’ even tends to support
them."
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. Tuano’s
prescription of Maxitrol and Blephamide for the treatment of EKC
on Peter’s right eye was not proper and that his palpation of Peter’s
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 latter’s 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.
Tuaño’s medical judgment, specifically the latter’s 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 ATTORNEY’S 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.
Tuaño.
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. Tuaño’s negligence in his treatment of Peter’s eye
condition. This question clearly involves a factual inquiry, the
determination of which is not within the ambit of this Court’s 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
P a g e | 169
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.1avvphi1.zw+
Petitioners contend, that "[c]ontrary to the findings of the Honorable
Court of Appeals, [they] were more than able to establish that: Dr.
Tuaño 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 Peter’s eye; and (2) whether or not negligence attended Dr.
Tuaño’s treatment of Peter, because, in their words –
That Dr. Tuaño was grossly negligent in the treatment of Peter’s
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. Tuaño] – Dr. Tuaño himself. [Emphasis
supplied.]
They insist that Dr. Tuaño himself gave sufficient evidence to
establish his gross negligence that ultimately caused the impairment
of the vision of Peter’s right eye,73 i.e., that "[d]espite [Dr. Tuaño’s]
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 Peter’s glaucoma is the direct
result of Dr. Tuaño’s 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 latter’s 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
P a g e | 170
alleged professional negligence caused [the patient’s] 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 expert’s role is to present to the [court] a realistic
assessment of the likelihood that [the physician’s] alleged
negligence caused [the patient’s] 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
former’s 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. Tuaño 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. Tuaño, 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 Peter’s
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 Peter’s under
similar circumstances; (2) that, in his treatment of Peter, Dr. Tuaño
failed in his duty to exercise said standard of care that any other
competent physician would use in treating the same condition as
Peter’s under similar circumstances; and (3) that the injury or
damage to Peter’s right eye, i.e., his glaucoma, was the result of his
use of Maxitrol, as prescribed by Dr. Tuaño. Petitioners’ failure to
prove the first element alone is already fatal to their cause.
Petitioners maintain that Dr. Tuaño failed to follow in Peter’s 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.
Tuaño 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. Tuaño
should have determined first whether Peter was a "steroid
 P a g e | 171

responder."87 Yet again, petitioners did not present any convincing supposed negligent conduct. Once more, petitioners failed in this
proof that such determination is actually part of the standard regard.
operating procedure which ophthalmologists should unerringly
follow prior to prescribing steroid medications. Dr. Tuaño does not deny that the use of Maxitrol involves the risk of
increasing a patient’s IOP. In fact, this was the reason why he made
In contrast, Dr. Tuaño was able to clearly explain that what is only it a point to palpate Peter’s eyes every time the latter went to see him
required of ophthalmologists, in cases such as Peter’s, is the conduct -- so he could monitor the tension of Peter’s eyes. But to say that
of standard tests/procedures known as "ocular routine said medication conclusively caused Peter’s glaucoma is purely
examination,"88 composed of five (5) tests/procedures – specifically, speculative. Peter was diagnosed with open-angle glaucoma. This
gross examination of the eyes and the surrounding area; taking of the kind of glaucoma is characterized by an almost complete absence of
visual acuity of the patient; checking the intraocular pressure of the symptoms and a chronic, insidious course.94 In open-angle
patient; checking the motility of the eyes; and using ophthalmoscopy glaucoma, halos around lights and blurring of vision do not occur
on the patient’s eye – and he did all those tests/procedures every unless there has been a sudden increase in the intraocular vision. 95
time Peter went to see him for follow-up consultation and/or check- Visual acuity remains good until late in the course of the disease. 96
up. Hence, Dr. Tuaño claims that Peter’s glaucoma "can only be long
standing x x x because of the large C:D97 ratio," and that "[t]he
We cannot but agree with Dr. Tuaño’s assertion that when a doctor steroids provoked the latest glaucoma to be revealed earlier" was a
sees a patient, he cannot determine immediately whether the latter blessing in disguise "as [Peter] remained asymptomatic prior to
would react adversely to the use of steroids; all the doctor can do is steroid application."
map out a course of treatment recognized as correct by the standards
of the medical profession. It must be remembered that a physician is Who between petitioners and Dr. Tuaño is in a better position to
not an insurer of the good result of treatment. The mere fact that the determine and evaluate the necessity of using Maxitrol to cure
patient does not get well or that a bad result occurs does not in itself Peter’s EKC vis-à-vis the attendant risks of using the same?
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 That Dr. Tuaño has the necessary training and skill to practice his
infallible.90 chosen field is beyond cavil. Petitioners do not dispute Dr. Tuaño’s
qualifications – that he has been a physician for close to a decade
Moreover, that Dr. Tuaño saw it fit to prescribe Maxitrol to Peter and a half at the time Peter first came to see him; that he has had
was justified by the fact that the latter was already using the same various medical training; that he has authored numerous papers in
medication when he first came to see Dr. Tuaño on 2 September the field of ophthalmology, here and abroad; that he is a Diplomate
1988 and had exhibited no previous untoward reaction to that of the Philippine Board of Ophthalmology; that he occupies various
particular drug. 91 teaching posts (at the time of the filing of the present complaint, he
was the Chair of the Department of Ophthalmology and an Associate
Also, Dr. Tuaño categorically denied petitioners’ claim that he never Professor at the University of the Philippines-Philippine General
monitored the tension of Peter’s eyes while the latter was on Hospital and St. Luke’s Medical Center, respectively); and that he
Maxitrol. Dr. Tuaño testified that he palpated Peter’s eyes every held an assortment of positions in numerous medical organizations
time the latter came for a check-up as part of the doctor’s ocular like the Philippine Medical Association, Philippine Academy of
routine examination, a fact which petitioners failed to rebut. Dr. Ophthalmology, Philippine Board of Ophthalmology, Philippine
Tuaño’s regular conduct of examinations and tests to ascertain the Society of Ophthalmic Plastic and Reconstructive Surgery,
state of Peter’s eyes negate the very basis of petitioners’ complaint Philippine Journal of Ophthalmology, Association of Philippine
for damages. As to whether Dr. Tuaño’s actuations conformed to the Ophthalmology Professors, et al.
standard of care and diligence required in like circumstances, it is
presumed to have so conformed in the absence of evidence to the It must be remembered that when the qualifications of a physician
contrary. are admitted, as in the instant case, there is an inevitable
presumption that in proper cases, he takes the necessary precaution
Even if we are to assume that Dr. Tuaño committed negligent acts in and employs the best of his knowledge and skill in attending to his
98
his treatment of Peter’s condition, the causal connection between Dr. clients, unless the contrary is sufficiently established. In making
Tuaño’s supposed negligence and Peter’s injury still needed to be the judgment call of treating Peter’s EKC with Maxitrol, Dr. Tuaño
established. The critical and clinching factor in a medical negligence took the necessary precaution by palpating Peter’s eyes to monitor
case is proof of the causal connection between the negligence which their IOP every time the latter went for a check-up, and he employed
the evidence established and the plaintiff’s injuries.92 The plaintiff the best of his knowledge and skill earned from years of training and
must plead and prove not only that he has been injured and practice.
defendant has been at fault, but also that the defendant’s fault caused
the injury. A verdict in a malpractice action cannot be based on In contrast, without supporting expert medical opinions, petitioners’
speculation or conjecture. Causation must be proven within a bare assertions of negligence on Dr. Tuaño’s part, which resulted in
reasonable medical probability based upon competent expert Peter’s glaucoma, deserve scant credit.
testimony.93
Our disposition of the present controversy might have been vastly
The causation between the physician’s negligence and the patient’s different had petitioners presented a medical expert to establish their
injury may only be established by the presentation of proof that theory respecting Dr. Tuaño’s so-called negligence. In fact, the
Peter’s glaucoma would not have occurred but for Dr. Tuaño’s record of the case reveals that petitioners’ counsel recognized the
 P a g e | 172

necessity of presenting such evidence. Petitioners even gave an and the Court of Appeals correctly held that they had no basis at all
undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would to rule that petitioners were deserving of the various damages prayed
be presented. Alas, no follow-through on said undertaking was for in their Complaint.
made.1avvphi1
WHEREFORE, premises considered, the instant petition is
The plaintiff in a civil case has the burden of proof as he alleges the DENIED for lack of merit. The assailed Decision dated 27
affirmative of the issue. However, in the course of trial in a civil September 2006 and Resolution dated 3 July 2007, both of the Court
case, once plaintiff makes out a prima facie case in his favor, the of Appeals in CA-G.R. CV No. 68666, are hereby AFFIRMED. No
duty or the burden of evidence shifts to defendant to controvert cost.
plaintiff’s prima facie case; otherwise, a verdict must be returned in
favor of plaintiff.99 The party having the burden of proof must SO ORDERED.
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 Richard P. MOGENSEN, Appellee,
to it;101 in the last analysis, it means probability of truth. It is v.
evidence which is more convincing to the court as worthy of belief Wayland K. HICKS and Dwayne Howard,
than that which is offered in opposition thereto.102 Rule 133, Section
1 of the Revised Rules of Court provides the guidelines for
Individually and as Hicks and Howard, a
determining preponderance of evidence, thus: partnership; Ciba Pharmaceutical Products, Inc., a
corporation; Lutheran Hospital, a corporation; Toller
In civil cases, the party having the burden of proof must establish his Drug Company, a corporation, Appellants.
case by a preponderance of evidence. In determining where the
No. 50347.
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 Supreme Court of Iowa.
means and opportunity of knowing the facts to which they are
testifying, the nature of the facts to which they testify, the September 19, 1961.
probability or improbability of their testimony, their interest or want
of interest, and also their personal credibility so far as the same Rehearing Denied November 14, 1961.
legitimately appear upon the trial. The court may also consider the
number of witnesses, though the preponderance is not necessarily *564 Sifford & Wadden, and Harper, Gleysteen & Nelson, Sioux
with the greater number. City, for appellants, Wayland K. Hicks and Dwayne Howard
individually and as Hicks and Howard a partnership.
Herein, the burden of proof was clearly upon petitioners, as plaintiffs
in the lower court, to establish their case by a preponderance of Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for
evidence showing a reasonable connection between Dr. Tuaño’s appellant, Ciba Pharmaceutical Products, Inc.
alleged breach of duty and the damage sustained by Peter’s right
eye. This, they did not do. In reality, petitioners’ complaint for Hess, Pendleton & Thompson, Sioux City, for appellee.
damages is merely anchored on a statement in the literature of
Maxitrol identifying the risks of its use, and the purported comment
PETERSON, Justice.
of Dr. Agulto – another doctor not presented as witness before the
RTC – concerning the prolonged use of Maxitrol for the treatment of
EKC. This is an action seeking damages for malpractice. Plaintiff sued not
only his physicians, Drs. Hicks & Howard, but Ciba Pharmaceutical
Products, Inc., who produced the anesthesia under question,
It seems basic that what constitutes proper medical treatment is a
Lutheran Hospital, where the medical services were rendered, and
medical question that should have been presented to experts. If no
Toller Drug Company from whom the anesthesia was purchased.
standard is established through expert medical witnesses, then courts
The trial court sustained motion to direct verdict in favor of Toller
have no standard by which to gauge the basic issue of breach thereof
Drug Company. The jury failed to return a verdict against Lutheran
by the physician or surgeon. The RTC and Court of Appeals, and
Hospital. A verdict of $8,000 was returned against Drs. Hicks &
even this Court, could not be expected to determine on its own what
Howard, and Ciba. They have appealed.
medical technique should have been utilized for a certain disease or
injury. Absent expert medical opinion, the courts would be
dangerously engaging in speculations. Plaintiff's petition contained two counts. Count I was based on the
doctrine of res ipsa loquitur. Count II alleged specific negligence.
The court sustained motion to strike Count II. Plaintiff has not
All told, we are hard pressed to find Dr. Tuaño liable for any
appealed from the adverse orders of the court, nor from the failure of
medical negligence or malpractice where there is no evidence, in the
the jury to return verdict against Lutheran Hospital.
nature of expert testimony, to establish that in treating Peter, Dr.
Tuaño failed to exercise reasonable care, diligence and skill
generally required in medical practice. Dr. Tuaño’s testimony, that Plaintiff is a young man 28 years of age. He had experienced some
his treatment of Peter conformed in all respects to standard medical bleeding when he urinated. His family physician, Dr. Vangsness,
practice in this locality, stands unrefuted. Consequently, the RTC arranged with Dr. Hicks, a specialist in urology, to make a
 P a g e | 173

cystoscopic examination on the morning of September 27, 1957, at yet it did not appear to be very severe as I saw it. He had no
Lutheran Hospital in Sioux City. difficulty passing urine. * * * we put him on steriod therapy
internally, which was used to help control allergic reactions * * *
Plaintiff was brought into a room known as the cystoscopic room, and wet packs locally." Dr. Frank was asked as to what, in his
and placed on a table near the center of the room. Elfrieda Aljets, an opinion, caused the condition described by plaintiff. His answer was:
experienced and registered nurse, was on duty and made all the "My opinion was that he had an allergic reaction to pyribenzamine
preliminary arrangements as to complete cleanliness and sterility. which was used as a local anesthetic."
Walter M. Trizala was Dr. Hicks anesthetist. He was a technical
sergeant during the war, working in the urology department in a Plaintiff was away from work two weeks. His employer was kind
hospital in Germany, administering topical anesthesia. Since his and paid him his wages for the time off. When he returned he had to
discharge from the army he had worked for Dr. Hicks about ten do light work for three or four weeks. In February of 1958 Dr. Hicks
years. He had administered between four and five thousand made the examination which had been contemplated in September
anesthetic applications. under a general anesthetic. Plaintiff was in the hospital two or three
days. He said thereafter the pain persisted for six or eight weeks. He
The only persons in the room were plaintiff, the nurse, Mr. Trizala said that at the time of trial he still had a little pain, and was still
and Dr. Hicks. While Mr. Trizala was preparing plaintiff for the having some "spraying" action when urinating.
examination Dr. Hicks was talking with Dr. Vangsness, the family
physician, immediately outside the door of the room, a few feet from I. The only question in the case is whether the doctrine of res ipsa
the examination table. loquitur is applicable. If not, the motion by defendants, for judgment
notwithstanding verdict, should be sustained.
The anesthesia which Dr. Hicks was using was known as
pyribenzamine, manufactured by defendant Ciba. After several *565 The essential component parts of res ipsa (as we will denominate the
years of research and after approval of the Federal Food and Drug doctrine) are: a. The instrumentalities causing the injury must have
Administration in October, 1954, the drug was placed on the market been under the exclusive control of defendants, and b. The
in the spring of 1955. happening of the injury must be such that in the ordinary course of
events it would not occur without lack of due care on the part of
Dr. Hicks had used it for several months. Mr. Trizala had defendants.
administered it successfully as a topical anesthesia between 30 and
40 times. Topical administration means it is used on the skin as a II. The doctor was not in full control of the instrumentalities
local anesthesia for the part of the body affected. involved. He controlled the surgical instruments and the medicine,
but he had no control over the condition and reactions of his patient.
Mr. Trizala brought a new bottle of the anesthesia with him, which The allergic reaction of plaintiff in the instant case was an element
Dr. Hicks had purchased a few days earlier at Toller Drug Company. beyond his control.
The seal was broken in the presence of the nurse, and each read the
name of pyribensamine on the label, out loud, as a double check. The doctrine of res ipsa loquitur should be used sparingly. Shinofield
v. *566 Curtis, 245 Iowa 1352, 66 N.W.2d 465, 471, 50 A.L.R. 2d
The nature of the examination was through the penis, in order to 964; 65 C.J.S. Negligence § 220(10).
examine the bladder, kidneys and prostate gland, for the purpose of
finding the basis of the bleeding. A doctor's constant contact are with the frailties, idiosyncrasies,
physical and mental weaknesses, and allergies, of human nature.
To do this without pain or discomfort to the patient, it was necessary They may affect the condition, and yet are beyond his control.
to anesthetize the penis.
It is for this reason that in many medical cases the doctrine of res
Mr. Trizala and the nurse placed 5 c.c.'s of pyribensamine in a ipsa has been rejected. Berg v. Willett, 212 Iowa 1109, 232 N.W.
sterilized syringe, and Mr. Trizala applied the anesthesia. He had 821; Gebhardt v. McQuillen, 230 Iowa 181, 297 N.W. 301; Lippard
injected from 1 to 1 ½ c.c.'s when plaintiff said he felt a burning v. Johnson, 215 N.C. 384, 1 S.E.2d 889; Prewitt v. Higgins, 231 Ky.
sharp pain. Mr. Trizala at that time said he noticed the skin around 678, 22 S.W.2d 115; Hawkins v. McCain, 239 N.C. 160, 79 S.E.2d
the urethra became white. He ceased further injection and called Dr. 493, 494; 53 A.L.R. 2d 148; Groce v. Myers, 224 N.C. 165, 29
Hicks, who was standing close by. Dr. Hicks immediately decided S.E.2d 553; Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425.
not to proceed with the examination that morning, and thoroughly
washed out the penis with sterile water. The Doctor testified: "It was In Gebhardt v. McQuillen, supra, [230 Iowa 181, 297 N.W. 303] the
a good anesthesia. I had no trouble using it with other patients. My court refused to apply the doctrine, and said: "In fact the rule of res
opinion is that plaintiff had an allergic reaction." ipsa loquitur is seldom applied to cases of malpractice by physicians
or surgeons. * * * The physical condition of the patient, the nature of
Plaintiff was removed to a hospital room, and was in the hospital the injury—many things over which the physician has no control—
four days. may enter into the case and affect the result * * * the rule of res ipsa
loquitur does not apply, because one of its essentials is lacking—the
Dr. Louis J. Frank, an experienced dermatologist was called. He said physician or surgeon does not have complete and exclusive control
over the instrumentality with which he is working."
he saw plaintiff and "observed some swelling in the head of the
glans surrounding the urethea. There was some inflamation there,

Lippard v. Johnson, supra, involved a circumcision operation; a
blister arose at the site, and decay set in. The court refused to apply
the doctrine of res ipsa, and said: "Therefore, to say that an
unexpected, unanticipated and unfavorable result of a treatment by a
physician invokes the application of the doctrine of res ipsa loquitur,
would be * * * to destroy its recognized usefulness in proper cases. *
* * "Practical application of the medical science is necessarily to a
large degree experimental. Due to the varying conditions of human
systems the result of the use of any medicine cannot be predicted
with any degree of certainty. What is beneficial to many sometimes
proves to be highly injurious to others." Moreover, a physician is not
a warrantor of cures nor an insurer.
In Hawkins v. McCain, supra [239 N.C. 160, 79 S.E.2d 500], the
doctor prescribed a treatment which had an adverse effect, and the
patient sued. The court said: "* * * Furthermore, if it was an
approved and acceptable treatment and the dosage as prescribed
proper, the mere fact that she had an unfavorable reaction from its
use would not make the doctrine of res ipsa loquitur applicable."
The evidence does not sustain plaintiff's claim that defendants were
subject to the first requisite as to res ipsa loquitur.
III. The other element in res ipsa is that the occurrence is such as in
the ordinary course of events would not happen if reasonable care
had been used. The latin phrase "res ipsa loquitur" means "the thing
speaks for itself."
We have already held in Division II that res ipsa is not applicable.
Under the facts and circumstances of the case at bar and under
previous decisions of this court pertaining to such element, the
second element of res ipsa is also absent. Orr v. Des Moines Electric
Light Co., 207 Iowa 1149, 222 N.W. 560; Bonowski v. Revlon, Inc.
et al., 251 Iowa 141, 100 N.W.2d 5; Shinofield v. Curtis, supra;
Eaves v. City of Ottumwa, 240 Iowa 956, 38 N.W.2d 761, 11 A.L.R.
2d 1164; Pearson v. Butts, 224 Iowa 376, 276 N.W. 65; Highland
Golf Club v. Sinclair Refining Co., D.C.Iowa, 59 F. Supp. 911,
Judge Graven, see also 38 Am.Jur., Negligence, Section 95.
We have recently held, by unanimous action, that a manufacturing
company is not liable for damages where the basis of the injury is an
allergy on the part of the user. Bonowski v. Revlon, Inc. et al., 251
*567 Iowa 141, 100 N.W.2d 5, 7. Mrs. Bonowski used Revlon "Sun
Bath, for Normal Skin." It caused blotches and blisters on her face,
arms and legs, and she was sick for about 5 weeks. Drs. Leiter and
Frank, dermatologists, both testified her injury was due to allergic
reaction to the sun tan. A witness for Revlon testified 5,304,272
bottles had been sold at the time of trial, without receiving any
complaint. The trial court directed a verdict for defendants, and we
affirmed.
A somewhat analogous situation arose in Shinofield v. Curtis, supra
[245 Iowa 1352, 66 N.W.2d 470]. Plaintiffs' decedent was brought to
her hotel in defendant's truck. She said good-night and alighted in
the street. Defendant looked back and did not see her on the curb, so
stopped his truck and walked back to investigate. He found her in the
street, so seriously injured that she died in a few moments.
Apparently his truck had passed over her face and body. We held the
case should go to the jury on the specific negligence count, but not
on the count alleging res ipsa loquitur. As to res ipsa the court said:
"The res ipsa rule should not be confused with the proposition that
P a g e | 174
the negligence, like other facts, may be proven by circumstantial
evidence. * * * It is true the truck which ran over decedent was in
defendant's exclusive control and management. Thus the first of the
two foundation facts on which the res ipsa doctrine rests is present
here. But we think it cannot be said such an occurrence as caused
decedent's injury does not, in the ordinary course of things, happen if
reasonable care is used by the motorist. As we have indicated,
evidence which may show negligence in this particular case is not to
be considered in determining the presence of this second foundation
fact. The question is to be determined from common experience.
Annotations, 59 A.L.R. 468, 78 A.L.R. 731, 141 A.L.R. 1016."
The clearest, and perhaps most lucid analysis, of this element of the
doctrine of res ipsa appears in Eaves v. City of Ottumwa, 240 Iowa
956, 38 N.W.2d 761, 769: "In considering the applicability of res
ipsa loquitur, the question whether the particular occurrence is such
as would not happen if reasonable care had been used rests on
common experience and not at all on evidence in the particular case
that tends in itself to show such occurrence was in fact the result of
negligence."
Appellee leans heavily on Frost v. Des Moines Still College, 248
Iowa 294, 79 N.W.2d 306, to support his contention as to res ipsa.
The case is not applicable. The operation was on Mrs. Frost's back,
as the result of an automobile accident. The injury at the hospital, for
which the verdict was returned, consisted of first, second, and third
degree burns on her stomach, apparently through overusage or
spilling of ether as she was being prepared for the operation. She
was unconscious from a general anesthetic, and could not testify as
to what happened. Res ipsa was applicable in her case.
IV. Plaintiff's Count II as to specific negligence was dismissed by
the court. Plaintiff did not appeal, nor did he present any errors,
propositions or argument as to the question, in his brief and
argument. R.C.P. 344(4) Third (a), 58 I.C.A., provides: "Errors or
propositions not stated or argued shall be deemed waived."
In view of our decision as to res ipsa, discussion of general rules of
malpractice in Iowa are not material nor necessary.
The case is reversed, with instructions to the trial court to sustain
defendants' motions for judgment, notwithstanding verdict.
The printing cost of the record and defendants' two briefs and two
reply briefs totals $683.20. The record and briefs total 250 pages.
Under our rules we have placed a maximum of $1.50 per page for
printing. It can be secured in Iowa for that amount, or less. Only
$375 shall therefor be taxed to appellee for appellants' printing cost.
*568 The balance of $308.20 shall be assumed by appellants.
Reversed.
GARFIELD, C. J., and BLISS, HAYS, LARSON, THOMPSON and
THORNTON, JJ., concur.
SNELL, J., concurs specially.
OLIVER, J., takes no part.
SNELL, Justice (concurring specially).

I concur in the result and agree that the verdict must be set aside. We
do not have before us any issue based on allegations of specific
negligence. The sole question is the sufficiency of the evidence to
generate a jury question under the doctrine of res ipsa loquitur. The
evidence shows that immediately following a partial administration
of a topical anesthetic the plaintiff suffered an unfortunate and
unexpected reaction. Nothing further appears to sustain the plaintiff's
claim.
What is commonly called the second foundation fact necessary to
support the res ipsa loquitur inference is that the happening of the
injury was such as in the ordinary course of events would not have
occurred without negligence on the part of defendant.
This requirement rests on common experience. It is a rule of
evidence, not of substantive law. Thompson v. Burke Engineering
Sales Co., Iowa, 106 N.W.2d 351, 355.
The doctrine does not create liability without fault. The doctrine
does not assume that there is necessarily negligence preceding
misfortune.
Orr v. Des Moines Electric Light Co., 207 Iowa 1149, at 1155, 222
N.W. 560, 562, quotes Corpus Juris as follows: "`* * * the doctrine
is applicable only where the physical cause of the injury and the
attendant circumstances indicate such an unusual occurrence that in
their very nature they carry a strong inherent probability of
negligence and in the light of ordinary experience would presumably
not have happened if those who had the management or control
exercised proper care. Accordingly the mere occurrence of an
unusual or unexplained accident or injury, if not such as necessarily
to involve negligence, does not warrant the application of the
doctrine, * * *' 45 Corpus Juris 1211."
The only evidence for plaintiff related to his unfortunate reaction to
medication. That evidence alone will not "carry a strong inherent
probability of negligence." From that evidence alone it cannot be
said that "in the light of ordinary experience" the reaction would not
have occurred with proper care.
Doubt, if any, (or curiosity) as to what happened is removed by the
uncontradicted evidence of defendants.
The anesthetic used had been previously, and was subsequently,
tested by the manufacturer. It was extensively used in the medical
profession. The application to the plaintiff was by approved
procedure in an amount well below recognized and recommended
tolerances.
The plaintiff suffered an allergic reaction. The doctor acted promptly
to relieve the distress. An allergic reaction will not support a right to
recover damages. Bonowski v. Revlon, Inc., 251 Iowa 141, 100
N.W.2d 5.
G.R. No. 191018
CARLOS BORROMEO, Petitioner,
vs.
P a g e | 175
FAMILY CARE HOSPITAL, INC. and RAMON S.
INSO, M.D., Respondents.
BRION, J.Carlos Borromeo lost his wife Lillian when she died after
undergoing a routine appendectomy. The hospital and the attending
surgeon submit that Lillian bled to death due to a rare, life-
threatening condition that prevented her blood from clotting
normally. Carlos believes, however, that the hospital and the surgeon
were simply negligent in the care of his late wife.
On January 22, 2010, the Court of Appeals (CA) in CA-G.R CV No.
890961 dismissed Carlos' complaint and thus reversed the April 10,
2007 decision of the Regional Trial Court (RTC) in Civil Case No.
2000-603-MK2 which found the respondents liable for medical
negligence.
The present petition for review on certiorari seeks to reverse the
CA’s January 22, 2010 decision.
ANTECEDENTS
The petitioner, Carlos Borromeo, was the husband of the late Lilian
V. Borromeo (Lilian). Lilian was a patient of the respondent Family
Care Hospital, Inc. (Family Care) under the care of respondent Dr.
Ramon Inso (Dr. Inso).
On July 13, 1999, the petitioner brought his wife to the Family Care
Hospital because she had been complaining of acute pain at the
lower stomach area and fever for two days. She was admitted at the
hospital and placed under the care of Dr. Inso.
Dr. Inso suspected that Lilian might be suffering from acute
appendicitis. However, there was insufficient data to rule out other
possible causes and to proceed with an appendectomy. Thus, he
ordered Lilian’s confinement for testing and evaluation.
Over the next 48 hours, Lilian underwent multiple tests such as
complete blood count, urinalysis, stool exam, pelvic ultrasound, and
a pregnancy test. However, the tests were not conclusive enough to
confirm that she had appendicitis.
Meanwhile, Lilian’s condition did not improve. She suffered from
spiking fever and her abdominal pain worsened. The increasing
tenderness of her stomach, which was previously confined to her
lower right side, had also extended to her lower left side. Lilian
abruptly developed an acute surgical abdomen.
On July 15, 1999, Dr. Inso decided to conduct an exploratory
laparotomy on Lilian because of the findings on her abdomen and
his fear that she might have a ruptured appendix. Exploratory
laparotomy is a surgical procedure involving a large incision on the
abdominal wall that would enable Dr. Inso to examine the abdominal
cavity and identify the cause of Lilian’s symptoms. After explaining
the situation, Dr. Inso obtained the patient’s consent to the
laparotomy.
At around 3:45 P.M., Lilian was brought to the operating room
where Dr. Inso conducted the surgery. During the operation, Dr. Inso
confirmed that Lilian was suffering from acute appendicitis. He

proceeded to remove her appendix which was already infected and
congested with pus.
The operation was successful. Lilian’s appearance and vital signs
improved. At around 7:30 P.M., Lilian was brought back to her
private room from the recovery room.
At around 1:30 A.M. on July 16, 1999, roughly six hours after Lilian notable findings as:
was brought back to her room, Dr. Inso was informed that her blood
pressure was low. After assessing her condition, he ordered the
infusion of more intravenous (IV) fluids which somehow raised her
blood pressure.
Despite the late hour, Dr. Inso remained in the hospital to monitor
Lilian’s condition. Subsequently, a nurse informed him that Lilian
was becoming restless. Dr. Inso immediately went to Lilian and saw leaflets were soft and pliable, and of course, the normal color is
that she was quite pale. He immediately requested a blood
transfusion.
Lilian did not respond to the blood transfusion even after receiving
two 500 cc-units of blood. Various drugs, such as adrenaline or
epinephrine, were administered.
Eventually, an endotracheal tube connected to an oxygen tank was
inserted into Lilian to ensure her airway was clear and to compensate that time clot and unclot blood found adherent thereon. The liver and
for the lack of circulating oxygen in her body from the loss of red
blood cells. Nevertheless, her condition continued to deteriorate.
Dr. Inso observed that Lilian was developing petechiae in various
parts of her body. Petechiae are small bruises caused by bleeding
under the skin whose presence indicates a blood-coagulation
problem – a defect in the ability of blood to clot. At this point, Dr. bleeding. He further concluded that the internal bleeding was caused
Inso suspected that Lilian had Disseminated Intravascular
Coagulation (DIC), a blood disorder characterized by bleeding in
many parts of her body caused by the consumption or the loss of the double suturing instead of the single continuous suture repair that he
clotting factors in the blood. However, Dr. Inso did not have the
luxury to conduct further tests because the immediate need was to
resuscitate Lilian.
Dr. Inso and the nurses performed cardiopulmonary resuscitation
(CPR) on Lilian. Dr. Inso also informed her family that there may be
a need to re-operate on her, but she would have to be put in an
Intensive Care Unit (ICU). Unfortunately, Family Care did not have witness. Dr. Reyes testified as to his findings during the autopsy and
an ICU because it was only a secondary hospital and was not
required by the Department of Health to have one. Dr. Inso informed
the petitioner that Lilian would have to be transferred to another
hospital.
At around 3:30 A.M., Dr. Inso personally called the Perpetual Help
Medical Center to arrange Lilian’s transfer, but the latter had no
available bed in its ICU. Dr. Inso then personally coordinated with
the Muntinlupa Medical Center (MMC) which had an available bed.
At around 4:00 A.M., Lilian was taken to the MMC by ambulance
accompanied by the resident doctor on duty and a nurse. Dr. Inso
followed closely behind in his own vehicle.
Upon reaching the MMC, a medical team was on hand to resuscitate
Lilian. A nasogastric tube (NGT) was inserted and IV fluids were
immediately administered to her. Dr. Inso asked for a plasma
P a g e | 176
expander. Unfortunately, at around 10:00 A.M., Lilian passed away
despite efforts to resuscitate her.
At the request of the petitioner, Lilian’s body was autopsied at the
Philippine National Police (PNP) Camp Crame Crime Laboratory.
Dr. Emmanuel Reyes (Dr. Reyes), the medico-legal assigned to the
laboratory, conducted the autopsy. Dr. Reyes summarized his
x x x I opened up the body and inside the abdominal cavity which
you call peritoneal cavity there were 3,000 ml of clot and unclot
blood accumulated thereat. The peritoneal cavity was also free from
any adhesion. Then, I opened up the head and the brain revealed
paper white in color and the heart revealed abundant petechial
hemorrhages from the surface and it was normal. The valvular
reddish brown as noted. And the coronary arteries which supply the
heart were normal and unremarkable. Next, the lungs appears [sic]
hemorrhagic. That was the right lung while the left lung was
collapsed and paled. For the intestines, I noted throughout the entire
lengths of the small and large intestine were hemorrhagic areas.
Noted absent is the appendix at the ileo-colic area but there were
continuous suture repair done thereat. However, there was a 0.5 x
0.5 cm opening or left unrepaired at that time. There was an opening
on that repair site. Meaning it was not repaired. There were also at
the rest of the visceral organs were noted exhibit [sic] some degree
of pallor but were otherwise normal. The stomach contains one
glassful about 400 to 500 ml.3
Dr. Reyes concluded that the cause of Lilian’s death was
hemorrhage due to bleeding petechial blood vessels: internal
by the 0.5 x 0.5 cm opening in the repair site. He opined that the
bleeding could have been avoided if the site was repaired with
found.
Based on the autopsy, the petitioner filed a complaint for damages
against Family Care and against Dr. Inso for medical negligence.
During the trial, the petitioner presented Dr. Reyes as his expert
his opinion that Lilian’s death could have been avoided if Dr. Inso
had repaired the site with double suture rather than a single suture.
However, Dr. Reyes admitted that he had very little experience in
the field of pathology and his only experience was an on-the-job
training at the V. Luna Hospital where he was only on observer
status. He further admitted that he had no experience in appendicitis
or appendectomy and that Lilian’s case was his first autopsy
involving a death from appendectomy.
Moreover, Dr. Reyes admitted that he was not intelligently guided
during the autopsy because he was not furnished with clinical,
physical, gross, histopath, and laboratory information that were
important for an accurate conclusion. Dr. Reyes also admitted that
an appendical stump is initially swollen when sutured and that the
stitches may loosen during the healing process when the initial
swelling subside.

In their defense, Dr. Inso and Family Care presented Dr. Inso, and
expert witnesses Dr. Celso Ramos (Dr. Ramos) and Dr. Herminio
Hernandez (Dr. Hernandez).
Dr. Ramos is a practicing pathologist with over 20 years of
experience. He is an associate professor at the Department of
Surgery of the Fatima Medical Center, the Manila Central
University, and the Perpetual Help Medical Center. He is a Fellow of
the Philippine College of Surgeons, a Diplomate of the Philippine
Board of Surgery, and a Fellow of the Philippine Society of General
Surgeons.
Dr. Ramos discredited Dr. Reyes’ theory that the 0.5 x 0.5 cm
opening at the repair site caused Lilian’s internal bleeding.
According to Dr. Ramos, appendical vessels measure only 0.1 to
0.15 cm, a claim that was not refuted by the petitioner. If the 0.5 x
0.5 cm opening had caused Lilian’s hemorrhage, she would not have
survived for over 16 hours; she would have died immediately, within
20 to 30 minutes, after surgery.
Dr. Ramos submitted that the cause of Lilian’s death was
hemorrhage due to DIC, a blood disorder that leads to the failure of
the blood to coagulate. Dr. Ramos considered the abundant petechial
hemorrhage in the myocardic sections and the hemorrhagic right
lung; the multiple bleeding points indicate that Lilian was afflicted
with DIC.
Meanwhile, Dr. Hernandez is a general surgeon and a hospital
administrator who had been practicing surgery for twenty years as of
the date of his testimony.
Dr. Hernandez testified that Lilian’s death could not be attributed to
the alleged wrong suturing. He submitted that the presence of blood
in the lungs, in the stomach, and in the entire length of the bowels
cannot be reconciled with Dr. Reyes’ theory that the hemorrhage
resulted from a single-sutured appendix.
Dr. Hernandez testified that Lilian had uncontrollable bleeding in the
microcirculation as a result of DIC. In DIC, blood oozes from very
small blood vessels because of a problem in the clotting factors of
the blood vessels. The microcirculation is too small to be seen by the
naked eye; the red cell is even smaller than the tip of a needle.
Therefore, the alleged wrong suturing could not have caused the
amount of hemorrhaging that caused Lilian’s death.
Dr. Hernandez further testified that the procedure that Dr. Inso
performed was consistent with the usual surgical procedure and he
would not have done anything differently.4
The petitioner presented Dr. Rudyard Avila III (Dr. Avila) as a
rebuttal witness. Dr. Avila, also a lawyer, was presented as an expert good standing; (4) that res ipsa loquitur is not applicable because
in medical jurisprudence. Dr. Avila testified that between Dr. Reyes direct evidence as to the cause of Lilian’s death and the
who autopsied the patient and Dr. Ramos whose findings were based presence/absence of negligence is available; and (5) that doctors are
on medical records, greater weight should be given to Dr. Reyes’
testimony.
On April 10, 2007, the RTC rendered its decision awarding the
petitioner P88,077.50 as compensatory damages; P50,000.00 as
death indemnity; P3,607,910.30 as loss of earnings; P50,000.00 as
P a g e | 177
moral damages; P30,000.00 as exemplary damages; P50,000.00 as
attorney’s fees, and the costs of the suit.
The RTC relied on Dr. Avila’s opinion and gave more weight to Dr.
Reyes’ findings regarding the cause of Lilian’s death. It held that Dr.
Inso was negligent in using a single suture on the repair site causing
Lilian’s death by internal hemorrhage. It applied the doctrine of res
ipsa loquitur, holding that a patient’s death does not ordinarily occur
during an appendectomy.
The respondents elevated the case to the CA and the appeal was
docketed as CA-G.R. CV No. 89096.
On January 22, 2010, the CA reversed the RTC’s decision and
dismissed the complaint. The CA gave greater weight to the
testimonies of Dr. Hernandez and Dr. Ramos over the findings of
Dr. Reyes because the latter was not an expert in pathology,
appendectomy, nor in surgery. It disregarded Dr. Avila’s opinion
because the basic premise of his testimony was that the doctor who
conducted the autopsy is a pathologist of equal or of greater
expertise than Dr. Ramos or Dr. Hernandez.
The CA held that there was no causal connection between the
alleged omission of Dr. Inso to use a double suture and the cause of
Lilian’s death. It also found that Dr. Inso did, in fact, use a double
suture ligation with a third silk reinforcement ligation on the repair
site which, as Dr. Reyes admitted on cross-examination, loosened up
after the initial swelling of the stump subsided.
The CA denied the applicability of the doctrine of res ipsa loquitur
because the element of causation between the instrumentality under
the control and management of Dr. Inso and the injury that caused
Lilian’s death was absent; the respondents sufficiently established
that the cause of Lilian’s death was DIC.
On March 18, 2010, the petitioner filed the present petition for
review on certiorari.
THE PETITION
The petitioner argues: (1) that Dr. Inso and Family Care were
negligent in caring for Lilian before, during, and after her
appendectomy and were responsible for her death; and (2) that the
doctrine of res ipsa loquitur is applicable to this case.
In their Comment, the respondents counter: (1) that the issues raised
by the petitioner are not pure questions of law; (2) that they
exercised utmost care and diligence in the treatment of Lilian; (3)
that Dr. Inso did not deviate from the standard of care observed
under similar circumstances by other members of the profession in
not guarantors of care and cannot be held liable for the death of their
patients when they exercised diligence and did everything to save
the patient.
OUR RULING
The petition involves factual questions.

Under Section 1 of Rule 45, a petition for review on certiorari shall
only raise questions of law. The Supreme Court is not a trier of facts
and it is not our function to analyze and weigh evidence that the
lower courts had already passed upon.
The factual findings of the Court of Appeals are, as a general rule,
conclusive upon this Court. However, jurisprudence has also carved
out recognized exceptions 5 to this rule, to wit: (1) when the findings
are grounded entirely on speculation, surmises, or conjectures;6 (2)
when the inference made is manifestly mistaken, absurd, or
impossible;7 (3) when there is grave abuse of discretion;8 (4) when
the judgment is based on a misapprehension of facts;9 (5) when the
findings of facts are conflicting;10 (6) when in making its findings
the Court of Appeals went beyond the issues of the case, or its
findings are contrary to the admissions of both the appellant and the
appellee;11 (7) when the findings are contrary to those of the
trial court’s;12 (8) when the findings are conclusions without
citation of specific evidence on which they are based;13 (9) when
the facts set forth in the petition as well as in the petitioner’s main
and reply briefs are not disputed by the respondent;14 (10) when the
findings of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record;15 and (11) when the
Court of Appeals manifestly overlooked certain relevant facts not
disputed by the parties, which, if properly considered, would justify
a different conclusion.16
Considering that the CA’s findings with respect to the cause of
Lilian’s death contradict those of the RTC, this case falls under one
of the exceptions. The Court will thus give due course to the petition
to dispel any perception that we denied the petitioner justice.
The requisites of establishing medical malpractice
Whoever alleges a fact has the burden of proving it. This is a basic
legal principle that equally applies to civil and criminal cases. In a
medical malpractice case, the plaintiff has the duty of proving its
elements, namely: (1) a duty of the defendant to his patient; (2) the
defendant’s breach of this duty; (3) injury to the patient; and (4)
proximate causation between the breach and the injury suffered.17
In civil cases, the plaintiff must prove these elements by a
preponderance of evidence.
A medical professional has the duty to observe the standard of care
and exercise the degree of skill, knowledge, and training ordinarily
expected of other similarly trained medical professionals acting
under the same circumstances.18 A breach of the accepted standard
of care constitutes negligence or malpractice and renders the
defendant liable for the resulting injury to his patient.19
The standard is based on the norm observed by other reasonably
competent members of the profession practicing the same field of
medicine.20 Because medical malpractice cases are often highly
technical, expert testimony is usually essential to establish: (1) the
standard of care that the defendant was bound to observe under the
circumstances; (2) that the defendant’s conduct fell below the
acceptable standard; and (3) that the defendant’s failure to observe
the industry standard caused injury to his patient.21
The expert witness must be a similarly trained and experienced
physician. Thus, a pulmonologist is not qualified to testify as to the
standard of care required of an anesthesiologist22 and an autopsy
P a g e | 178
expert is not qualified to testify as a specialist in infectious
diseases.23
The petitioner failed to present an expert witness.
In ruling against the respondents, the RTC relied on the findings of
Dr. Reyes in the light of Dr. Avila’s opinion that the former’s
testimony should be given greater weight than the findings of Dr.
Ramos and Dr. Hernandez. On the other hand, the CA did not
consider Dr. Reyes or Dr. Avila as expert witnesses and disregarded
their testimonies in favor of Dr. Ramos and Dr. Hernandez. The
basic issue, therefore, is whose testimonies should carry greater
weight?
We join and affirm the ruling of the CA.
Other than their conclusion on the culpability of the respondents, the
CA and the RTC have similar factual findings. The RTC ruled
against the respondents based primarily on the following testimony
of Dr. Reyes.
Witness: Well, if I remember right during my residency in my
extensive training, during the operation of the appendix, your
Honor, it should really be sutured twice which we call double.
Court: What would be the result if there is only single?
Witness: We cannot guarranty [sic] the bleeding of the sutured blood
vessels, your Honor.
Court: So, the bleeding of the patient was caused by the single
suture?
Witness: It is possible.24
Dr. Reyes testified that he graduated from the Manila Central
University (MCU) College of Medicine and passed the medical
board exams in 1994.25 He established his personal practice at his
house clinic before being accepted as an on-the-job trainee in the
Department of Pathology at the V. Luna Hospital in 1994. In January
1996, he joined the PNP Medico-Legal Division and was assigned to
the Crime Laboratory in Camp Crame. He currently heads the
Southern Police District Medico-Legal division.26 His primary
duties are to examine victims of violent crimes and to conduct
traumatic autopsies to determine the cause of death.
After having conducted over a thousand traumatic autopsies, Dr.
Reyes can be considered an expert in traumatic autopsies or
autopsies involving violent deaths. However, his expertise in
traumatic autopsies does not necessarily make him an expert in
clinical and pathological autopsies or in surgery.
Moreover, Dr. Reyes’ cross-examination reveals that he was less
than candid about his qualifications during his initial testimony:
Atty. Castro: Dr. Reyes, you mentioned during your direct testimony
last March 5, 2002 that you graduated in March of 1994, is that
correct?
 P a g e | 179

Witness: Yes, sir. Witness: I was given an order that I could attend the training only as
a civilian not as a member of the AFP because at that time they were
Atty. Castro: You were asked by Atty. Fajardo, the counsel for the already in the process of discharging civilian from undergoing
plaintiff, when did you finish your medical works, and you answered training.
the following year of your graduation which was in 1994?
Atty. Castro: So in the Department of Pathology, what were you
Witness: Not in 1994, it was in 1984, sir. assigned to?

Atty. Castro: And after you graduated Mr. Witness, were there Witness: Only as an observer status.
further study that you undergo after graduation? [sic]
Atty. Castro: So you only observed.
Witness: It was during my service only at the police organization
that I was given the chance to attend the training, one year course. Witness: Yes, sir.

Atty. Castro: Did you call that what you call a post graduate Atty. Castro: And on the same date during your direct testimony on
internship? March 5, 2002, part of which reads "well if I remember right during
my residency in my extensive training during the operation of the
Witness: Residency. appendix," what do you mean by that Mr. witness?

Atty. Castro: Since you call that a post graduate, you were not Witness: I was referring to my internship, sir.
undergo post graduate? [sic]
Atty. Castro: So this is not a residency training?
Witness: I did.
Witness: No, sir.
Atty. Castro: Where did you undergo a post graduate internship?
Atty. Castro: This is not a specialty training?
Witness: Before I took the board examination in the year 1984, sir.
Witness: No, sir.
Atty. Castro: That was where?
Atty. Castro: This was the time the year before you took the board
Witness: MCU Hospital, sir. examination?

Atty. Castro: After the post graduate internship that was the time you Witness: That’s right, sir. Yes, sir.
took the board examination?
Atty. Castro: You were not then a license[d] doctor?
Witness: Yes, sir.
Witness: No, sir.
Atty. Castro: And I supposed that you did it for the first take?
Atty. Castro: And you also mentioned during the last hearing shown
Witness: Yes, sir. by page 8 of the same transcript of the stenographic notes, dated
March 5, 2002 and I quote "and that is your residence assignment?",
and you answered "yes, sir." What was the meaning of your answer?
Atty. Castro: Are you sure of that?
What do you mean when you say yes, sir?
Witness: Yes, sir.
xxxx
Atty. Castro: After you took the board examination, did you pursue
Witness: Okay, I stayed at the barracks of the Southern Police
any study?
District Fort Bonifacio.
Witness: During that time, no sir.
Atty. Castro: So this is not referring to any kind of training?
Atty. Castro: You also testified during the last hearing that "page 6
Witness: No, sir.
of March 5, 2002, answer of the witness: then I was accepted as on
the job training at the V. Luna Hospital at the Department of
Pathologist in 1994", could you explain briefly all of this Mr. Atty. Castro: This is not in anyway related to appendicitis?
witness?
Witness: No, sir.27

Atty. Reyes appears to have inflated his qualifications during his
direct testimony. First, his "extensive training during [his]
residency" was neither extensive actual training, nor part of medical
residency. His assignment to the V. Luna Hospital was not as an on-
the-job trainee but as a mere observer. This assignment was also
before he was actually licensed as a doctor. Dr. Reyes also loosely
used the terms "residence" and "residency" – terms that carry a
technical meaning with respect to medical practice –during his initial
testimony28 to refer to (1) his physical place of dwelling and (2) his
internship before taking the medical board exams. This misled the
trial court into believing that he was more qualified to give his
opinion on the matter than he actually was.
Perhaps nothing is more telling about Dr. Reyes’ lack of expertise in
the subject matter than the petitioner’s counsel’s own admission
during Dr. Reyes’ cross examination.
Atty. Castro: How long were you assigned to observe with the
Department of Pathology?
Witness: Only 6 months, sir.
Atty. Castro: During your studies in the medical school, Mr.
Witness, do you recall attending or having participated or [sic] what
you call motivity mortality complex?
Atty. Fajardo: Your honor, what is the materiality?
Atty. Castro: That is according to his background, your honor. This
is a procedure which could more or less measure his knowledge in
autopsy proceedings when he was in medical school and compared
to what he is actually doing now.
Atty. Fajardo: The witness is not an expert witness, your honor.
Atty. Castro: He is being presented as an expert witness, your
honor.29
When Atty. Castro attempted to probe Dr. Reyes about his
knowledge on the subject of medical or pathological autopsies, Dr.
Fajardo objected on the ground that Dr. Reyes was not an expert in
the field. His testimony was offered to prove that Dr. Inso was
negligent during the surgery without necessarily offering him as an
expert witness.
Atty. Fajardo: x x x The purpose of this witness is to establish that
there was negligence on the surgical operation of the appendix or in
the conduct of the appendectomy by the defendant doctor on the
deceased Lilian Villaran Borromeo.30
Dr. Reyes is not an expert witness who could prove Dr. Inso’s
alleged negligence. His testimony could not have established the
standard of care that Dr. Inso was expected to observe nor assessed
Dr. Inso’s failure to observe this standard. His testimony cannot be
relied upon to determine if Dr. Inso committed errors during the
operation, the severity of these errors, their impact on Lilian’s
probability of survival, and the existence of other diseases/conditions
that might or might not have caused or contributed to Lilian’s death.
P a g e | 180
The testimony of Dr. Avila also has no probative value in
determining whether Dr. Inso was at fault. Dr. Avila testified in his
capacity as an expert in medical jurisprudence, not as an expert in
medicine, surgery, or pathology. His testimony fails to shed any light
on the actual cause of Lilian’s death.
On the other hand, the respondents presented testimonies from Dr.
Inso himself and from two expert witnesses in pathology and
surgery.
Dr. Ramos graduated from the Far Eastern University, Nicanor
Reyes Medical Foundation, in 1975. He took up his post-graduate
internship at the Quezon Memorial Hospital in Lucena City, before
taking the board exams. After obtaining his professional license, he
underwent residency training in pathology at the Jose R. Reyes
Memorial Center from 1977 to 1980. He passed the examination in
Anatomic, Clinical, and Physical Pathology in 1980 and was
inducted in 1981. He also took the examination in anatomic
pathology in 1981 and was inducted in 1982.31
At the time of his testimony, Dr. Ramos was an associate professor
in pathology at the Perpetual Help Medical School in Biñan, Laguna,
and at the De La Salle University in Dasmariñas, Cavite. He was the
head of the Batangas General Hospital Teaching and Training
Hospital where he also headed the Pathology Department. He also
headed the Perpetual Help General Hospital Pathology
department.32
Meanwhile, Dr. Hernandez at that time was a General Surgeon with
27 years of experience as a General Practitioner and 20 years of
experience as a General Surgeon.1âwphi1 He obtained his medical
degree from the University of Santo Tomas before undergoing five
years of residency training as a surgeon at the Veterans Memorial
Center hospital. He was certified as a surgeon in 1985. He also holds
a master’s degree in Hospital Administration from the Ateneo de
Manila University.33
He was a practicing surgeon at the: St. Luke’s Medical Center,
Fatima Medical Center, Unciano Medical Center in Antipolo,
Manila East Medical Center of Taytay, and Perpetual Help Medical
Center in Biñan.34 He was also an associate professor at the
Department of Surgery at the Fatima Medical Center, the Manila
Central University, and the Perpetual Help Medical Center. He also
chaired the Department of Surgery at the Fatima Medical Center.35
Dr. Hernandez is a Fellow of the American College of Surgeons, the
Philippine College of Surgeons, and the Philippine Society of
General Surgeons. He is a Diplomate of the Philippine Board of
Surgery and a member of the Philippine Medical Association and the
Antipolo City Medical Society.36
Dr. Hernandez affirmed that Dr. Inso did not deviate from the usual
surgical procedure.37 Both experts agreed that Lilian could not have
died from bleeding of the appendical vessel. They identified Lilian’s
cause of death as massive blood loss resulting from DIC.
To our mind, the testimonies of expert witnesses Dr. Hernandez and
Dr. Ramos carry far greater weight than that of Dr. Reyes. The
petitioner’s failure to present expert witnesses resulted in his failure
 P a g e | 181

to prove the respondents’ negligence. The preponderance of G.R. No. 130547 October 3, 2000
evidence clearly tilts in favor of the respondents.
LEAH ALESNA REYES, ROSE NAHDJA,
Res ipsa loquitur is not applicable when the failure to observe
due care is not immediately apparent to the layman.
JOHNNY, and minors LLOYD and KRISTINE, all
surnamed REYES, represented by their mother,
The petitioner cannot invoke the doctrine of res ipsa loquitur to shift LEAH ALESNA REYES, petitioners,
the burden of evidence onto the respondent. Res ipsa loquitur, vs.
literally, "the thing speaks for itself;" is a rule of evidence that SISTERS OF MERCY HOSPITAL, SISTER ROSE
presumes negligence from the very nature of the accident itself using PALACIO, DR. MARVIE BLANES, and DR.
common human knowledge or experience.
MARLYN RICO, respondents.
The application of this rule requires: (1) that the accident was of a
kind which does not ordinarily occur unless someone is negligent; MENDOZA, J.:This is a petition for review of the decision1 of the
(2) that the instrumentality or agency which caused the injury was Court of Appeals in CA-G.R. CV No. 36551 affirming the decision
under the exclusive control of the person charged with negligence; of the Regional Trial Court, Branch IX, Cebu City which dismissed
and (3) that the injury suffered must not have been due to any a complaint for damages filed by petitioners against respondents.
voluntary action or contribution from the injured person.38 The
concurrence of these elements creates a presumption of negligence The facts are as follows:
that, if unrebutted, overcomes the plaintiff’s burden of proof.
Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The
This doctrine is used in conjunction with the doctrine of common other petitioners, namely, Rose Nahdja, Johnny, Lloyd, and Kristine,
knowledge. We have applied this doctrine in the following cases all surnamed Reyes, were their children. Five days before his death
involving medical practitioners: on January 8, 1987, Jorge had been suffering from a recurring fever
with chills. After he failed to get relief from some home medication
a. Where a patient who was scheduled for a he was taking, which consisted of analgesic, antipyretic, and
cholecystectomy (removal of gall stones) but was otherwise antibiotics, he decided to see the doctor.
healthy suffered irreparable brain damage after being
administered anesthesia prior to the operation.39 On January 8, 1987, he was taken to the Mercy Community Clinic
by his wife. He was attended to by respondent Dr. Marlyn Rico,
b. Where after giving birth, a woman woke up with a resident physician and admitting physician on duty, who gave Jorge
gaping burn wound close to her left armpit;40 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
c. The removal of the wrong body part during the operation; then prevalent in the locality, as the clinic had been getting from 15
and to 20 cases of typhoid per month.3 Suspecting that Jorge could be
suffering from this disease, Dr. Rico ordered a Widal Test, a
d. Where an operating surgeon left a foreign object (i.e., standard test for typhoid fever, to be performed on Jorge. Blood
rubber gloves) inside the body of the patient.41 count, routine urinalysis, stool examination, and malarial smear were
also made.4 After about an hour, the medical technician submitted
The rule is not applicable in cases such as the present one where the the results of the test from which Dr. Rico concluded that Jorge was
defendant’s alleged failure to observe due care is not immediately positive for typhoid fever. As her shift was only up to 5:00 p.m., Dr.
apparent to a layman.42 These instances require expert opinion to Rico indorsed Jorge to respondent Dr. Marvie Blanes.
establish the culpability of the defendant doctor. It is also not
applicable to cases where the actual cause of the injury had been Dr. Marvie Blanes attended to Jorge at around six in the evening.
identified or established.43 She also took Jorge’s history and gave him a physical examination.
Like Dr. Rico, her impression was that Jorge had typhoid fever.
While this Court sympathizes with the petitioner’s loss, the Antibiotics being the accepted treatment for typhoid fever, she
petitioner failed to present sufficient convincing evidence to ordered that a compatibility test with the antibiotic chloromycetin be
establish: (1) the standard of care expected of the respondent and (2) done on Jorge. Said test was administered by nurse Josephine
the fact that Dr. Inso fell short of this expected standard. Considering Pagente who also gave the patient a dose of triglobe. As she did not
further that the respondents established that the cause of Lilian’s observe any adverse reaction by the patient to chloromycetin, Dr.
uncontrollable bleeding (and, ultimately, her death) was a medical Blanes ordered the first five hundred milligrams of said antibiotic to
disorder – Disseminated Intravascular Coagulation – we find no be administered on Jorge at around 9:00 p.m. A second dose was
reversible errors in the CA’s dismissal of the complaint on appeal. administered on Jorge about three hours later just before midnight.

WHEREFORE, we hereby DENY the petition for lack of merit. No At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as
costs. Jorge’s temperature rose to 41°C. The patient also experienced chills
and exhibited respiratory distress, nausea, vomiting, and
SO ORDERED. convulsions. Dr. Blanes put him under oxygen, used a suction
machine, and administered hydrocortisone, temporarily easing the

patient’s 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 complaint6 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 patient’s 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 findings9 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 patient’s
history and positive Widal Test results ratio of 1:320 would make
him suspect that the patient had typhoid fever. As to Dr. Vacalares’
P a g e | 182
observation regarding the absence of ulceration in Jorge’s 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 Jorge’s 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 Jorge’s death was due to the latter’s 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 DOCTOR’S NEGLIGENCE IN
THE TREATMENT OF JORGE REYES.
Petitioner’s 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.
P a g e | 183
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 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 Jorge’s 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?
P a g e | 184
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 bronchospasms24 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 Rico’s 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 patient’s 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 41 oC,
and then about 40 minutes later the temperature rose to 100 oF,
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
deceased’s gastro-intestinal tract was normal, Dr. Rico explained
that, while hyperplasia31 in the payer’s 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
P a g e | 185
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. Gotiong’s 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 payer’s 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
patient’s 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 shock38 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 Harrison’s
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 o’clock 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, O’Nick, 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 administration of a drug, is the skin test of which,
however, it has been observed: "Skin testing with haptenic drugs is
generally not reliable. Certain drugs cause nonspecific histamine
release, producing a weal-and-flare reaction in normal individuals.
Immunologic activation of mast cells requires a polyvalent allergen,
so a negative skin test to a univalent haptenic drug does not rule out
anaphylactic sensitivity to that drug." (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 intervention, Angelica’s right leg was amputated by Dr. Jaime
individuals.1âwphi1 It is a right earned through years of education, Tamayo in order to remove the tumor. As adjuvant treatment to
training, and by first obtaining a license from the state through
professional board examinations. Such license may, at any time and chances of recurrence and prevent the disease from spreading to
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
P a g e | 186
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 called it, the reasonable "skill and competence . . .
that a physician in the same or similar locality . . . should apply."
WHEREFORE, the instant petition is DENIED and the decision of
the Court of Appeals is AFFIRMED.
SO ORDERED.
G.R. No. 171127 March 11, 2015
NOEL CASUMPANG, RUBY SANGA-MIRANDA
and SAN JUAN DEDIOS HOSPITAL, Petitioners,
vs.
NELSON CORTEJO, Respondent. (repeated case,
please go back to pg. 3 of syllabus!!!)
G.R. No. 165279 June 7, 2011
DR. RUBI LI, Petitioner,
vs.
SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs
of deceased Angelica Soliman, Respondents.
DECISION
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the Decision1
dated June 15, 2004 as well as the Resolution2 dated September 1,
2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which
modified the Decision3 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. Luke’s 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
eliminate any remaining cancer cells, and hence minimize the
other parts of the patient’s 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 Death6 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 when Angelica’s mother called her through long distance. 10 This was
and SLMC. Respondents charged them with negligence and
disregard of Angelica’s 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 Angelica’s
untimely demise. Further, it was specifically averred that petitioner
assured the respondents that Angelica would recover in view of 95% petitioner that she be readmitted after two or three weeks for the
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 patient’s 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
Angelica’s surgery and discussed with them Angelica’s condition.
P a g e | 187
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 ₱70,000.00 to ₱150,000.00
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 Angelica’s 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 Angelica’s 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
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
chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for
chemotherapy, bringing with them the results of the laboratory tests
requested by petitioner: Angelica’s 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 Doxorubicin16 and Cosmegen17 –
intravenously. Petitioner was supposedly assisted by her trainees Dr.
Leo Marbella18 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 Angelica’s 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 Angelica’s 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 Angelica’s face, nor did she notice any difficulty in

the child’s breathing. She claimed that Angelica merely complained
of nausea and was given ice chips.251avvphi1
On August 22, 1993, at around ten o’clock 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, let’s
observe. If pwede na, bigyan uli ng chemo." At this point,
respondents asked petitioner’s 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 Angelica’s 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 child’s 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 fail. Petitioner attributed this to the patient’s 42 poor defense
Solucortef. Considering that Angelica’s 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 Reynaldo claimed that petitioner acted arrogantly and called him
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.
P a g e | 188
Respondents claimed that Angelica passed about half a liter of blood
through her anus at around seven o’clock 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 Angelica’s 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 Angelica’s platelets were down and respondents
should pray for their daughter. Reynaldo claimed that he was
introduced to a pediatrician who took over his daughter’s 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 Angelica’s
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 o’clock 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 petitioner’s own account, Angelica was merely irritable that day
(August 31). Petitioner noted though that Angelica’s 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 Angelica’s other organs to
41
mechanism brought about by the cancer itself.
While he was seeking the release of Angelica’s cadaver from SLMC,
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 Angelica’s 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 victim’s 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 Angelica’s 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 physician’s 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 patient’s 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 patient’s
condition.45
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on
Angelica’s 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
P a g e | 189
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 ₱139,064.43.48
Respondents appealed to the CA which, while concurring with the
trial court’s 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 Li’s 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
Angelica’s 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. Attorney’s 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 attorney’s 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 expert opinion of qualified physicians stems from the former’s
respondents, as these should be known to a competent doctor,
petitioner cannot possibly predict how a particular patient’s 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 chemotherapy drugs to respondents’ child was not proven
her professional competence to attend to the medical needs of
Angelica.
Citing numerous trainings, distinctions and achievements in her field competence in failing to observe the standard of care in her line of
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 bills were submitted to the court). Nevertheless, the CA found
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,
P a g e | 190
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
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
considering that Drs. Vergara and Balmaceda, not being oncologists
or cancer specialists, were not qualified to give expert opinion as to
whether petitioner’s lack of skill, knowledge and professional
practice was the proximate cause of the patient’s 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
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.
 P a g e | 191

Society of New York Hospital53 which involved unwanted treatment physician’s communications to the patient, then must be measured
performed by a doctor. Justice Benjamin Cardozo’s oft-quoted by the patient’s need, and that need is whatever information is
opinion upheld the basic right of a patient to give consent to any material to the decision. The test therefore for determining whether a
medical procedure or treatment: "Every human being of adult years potential peril must be divulged is its materiality to the patient’s
and sound mind has a right to determine what shall be done with his decision.63
own body; and a surgeon who performs an operation without his
patient’s consent, commits an assault, for which he is liable in Cobbs v. Grant further reiterated the pronouncement in Canterbury
damages."54 From a purely ethical norm, informed consent evolved v. Spence that for liability of the physician for failure to inform
into a general principle of law that a physician has a duty to disclose patient, there must be causal relationship between physician’s failure
what a reasonably prudent physician in the medical community in to inform and the injury to patient and such connection arises only if
the exercise of reasonable care would disclose to his patient as to it is established that, had revelation been made, consent to treatment
whatever grave risks of injury might be incurred from a proposed would not have been given.
course of treatment, so that a patient, exercising ordinary care for his
own welfare, and faced with a choice of undergoing the proposed There are four essential elements a plaintiff must prove in a
treatment, or alternative treatment, or none at all, may intelligently
malpractice action based upon the doctrine of informed consent: "(1)
exercise his judgment by reasonably balancing the probable risks
the physician had a duty to disclose material risks; (2) he failed to
against the probable benefits.55
disclose or inadequately disclosed those risks; (3) as a direct and
proximate result of the failure to disclose, the patient consented to
Subsequently, in Canterbury v. Spence56 the court observed that the treatment she otherwise would not have consented to; and (4)
duty to disclose should not be limited to medical usage as to arrogate plaintiff was injured by the proposed treatment." The gravamen in an
the decision on revelation to the physician alone. Thus, respect for informed consent case requires the plaintiff to "point to significant
the patient’s right of self-determination on particular therapy undisclosed information relating to the treatment which would have
demands a standard set by law for physicians rather than one which altered her decision to undergo it.64
physicians may or may not impose upon themselves.57 The scope of
disclosure is premised on the fact that patients ordinarily are persons
Examining the evidence on record, we hold that there was adequate
unlearned in the medical sciences. Proficiency in diagnosis and
disclosure of material risks inherent in the chemotherapy procedure
therapy is not the full measure of a physician’s responsibility. It is
performed with the consent of Angelica’s parents. Respondents
also his duty to warn of the dangers lurking in the proposed
could not have been unaware in the course of initial treatment and
treatment and to impart information which the patient has every right amputation of Angelica’s lower extremity, that her immune system
to expect. Indeed, the patient’s reliance upon the physician is a trust was already weak on account of the malignant tumor in her knee.
of the kind which traditionally has exacted obligations beyond those
When petitioner informed the respondents beforehand of the side
associated with armslength transactions.58 The physician is not
effects of chemotherapy which includes lowered counts of white and
expected to give the patient a short medical education, the disclosure
red blood cells, decrease in blood platelets, possible kidney or heart
rule only requires of him a reasonable explanation, which means
damage and skin darkening, there is reasonable expectation on the
generally informing the patient in nontechnical terms as to what is at part of the doctor that the respondents understood very well that the
stake; the therapy alternatives open to him, the goals expectably to severity of these side effects will not be the same for all patients
be achieved, and the risks that may ensue from particular treatment
59 undergoing the procedure. In other words, by the nature of the
or no treatment. As to the issue of demonstrating what risks are
disease itself, each patient’s reaction to the chemical agents even
considered material necessitating disclosure, it was held that experts
with pre-treatment laboratory tests cannot be precisely determined
are unnecessary to a showing of the materiality of a risk to a
by the physician. That death can possibly result from complications
patient’s decision on treatment, or to the reasonably, expectable of the treatment or the underlying cancer itself, immediately or
effect of risk disclosure on the decision. Such unrevealed risk that
sometime after the administration of chemotherapy drugs, is a risk
should have been made known must further materialize, for
that cannot be ruled out, as with most other major medical
otherwise the omission, however unpardonable, is without legal
procedures, but such conclusion can be reasonably drawn from the
consequence. And, as in malpractice actions generally, there must be
general side effects of chemotherapy already disclosed.
a causal relationship between the physician’s failure to divulge and
60
damage to the patient.
As a physician, petitioner can reasonably expect the respondents to
have considered the variables in the recommended treatment for
Reiterating the foregoing considerations, Cobbs v. Grant61 deemed it
their daughter afflicted with a life-threatening illness. On the other
as integral part of physician’s overall obligation to patient, the duty
hand, it is difficult to give credence to respondents’ claim that
of reasonable disclosure of available choices with respect to petitioner told them of 95% chance of recovery for their daughter, as
proposed therapy and of dangers inherently and potentially involved it was unlikely for doctors like petitioner who were dealing with
in each. However, the physician is not obliged to discuss relatively
grave conditions such as cancer to have falsely assured patients of
minor risks inherent in common procedures when it is common
chemotherapy’s success rate. Besides, informed consent laws in
knowledge that such risks inherent in procedure of very low
other countries generally require only a reasonable explanation of
incidence. Cited as exceptions to the rule that the patient should not
potential harms, so specific disclosures such as statistical data, may
be denied the opportunity to weigh the risks of surgery or treatment not be legally necessary.65
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 patient’s right of self-decision can only be The element of ethical duty to disclose material risks in the proposed
effectively exercised if the patient possesses adequate information to medical treatment cannot thus be reduced to one simplistic formula
enable him in making an intelligent choice. The scope of the 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 DOH’s 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
patient’s 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 and treatment to the company-designated physician, to whom he
the legal standard of disclosure is not subject to construction as a
categorical imperative. Whatever formulae or processes we adopt are care of an orthopedic surgeon, who found
only useful as a foundational starting point; the particular quality or "compression
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 consumer—
"a reasonable person in the patient’s 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
G.R. No. 211111, September 25, 2017
C.F. SHARP CREW MANAGEMENT, INC., ITS PRESIDENT, FINAL DIAGNOSIS
AND GULF ENERGY MARITIME, Petitioners, v. NOEL N.
ORBETA, Respondent. > COMPRESSION FRACTURE, L1
> LUMBAR SPONDYLOSIS
DECISION
P a g e | 192
DEL CASTILLO, J.:
Assailed in this Petition for Review on Certiorari1 are the October
18, 2013 Decision2 and January 28, 2014 Resolution3 of the Court of
Appeals (CA) denying the Petition for Certiorari in CA-G.R. SP No.
125046 and affirming in toto the December 29, 2011 Decision4 and
April 30, 2012 Resolution5 of the National Labor Relations
Commission (NLRC) in NLRC LAC (OFW-M) No. 05-000371-11.
Factual Antecedents
On June 11, 2009, respondent Noel N. Orbeta was hired by
petitioner C.F. Sharp Crew Management, Inc. (CF Sharp), on
behalf of its foreign principal and co-petitioner herein, Gulf
Energy Maritime (GEM), as Able Seaman on board the vessel
"M/T Gulf Coral". He boarded on September 9, 2009 and
thereupon commenced his work.
It appears that on January 3, 2010, while on duty, respondent, as
he was closing the vessel's air valve, slipped and fell on his back,
and landed on the vessel's metal floor.6
On February 8, 2010, while the vessel was docked in the United
Arab Emirates, respondent was referred for medical examination
after complaining of pain in his lower right abdomen, difficulty in
passing urine, and slight irritation in the urinal area. After
examination by a physician, he was diagnosed with acute lumbago
and recommended for immediate repatriation.7
On February 10, 2010, respondent was repatriated and, upon
arrival, he immediately reported for post-employment examination
disclosed the January 3, 2010 accident. He was placed under the
8
him to be suffering from
fracture, L1, minimal." As a result, respondent
underwent physical therapy to rehabilitate his back, and was
advised to wear a lumbar corset and undergo magnetic resonance
imaging (MRI) of the lumbosacral spine. For medication, he was
9
given neuron enhancers and pain relievers.
On June 16, 2010, after the MRI results came out, respondent was
temporarily diagnosed with "lumbosacral muscular spasm with
mild spondylosis L3-L4;"10 the company-designated physician also
concluded that there was no compression fracture, contrary to
what was initially suspected. Respondent was thus given a Grade
10 partial disability rating pertaining to moderate rigidity of the
truncal area.11 He was scheduled to undergo a bone scan on July
16, 2010.
On July 16, 2010, respondent failed to appear before the company
physician for the scheduled bone scan;12 instead, it appears that he
consulted with an independent orthopedic surgeon, Dr. Nicanor
Escutin (Dr. Escutin), who prepared and signed a "Disability
Report"13 dated September 8, 2010 stating as follows:
DISABILITY RATING:

Based on the physical examination and supported by laboratory
examination, he had his injury on his LOW BACK while working.
He fell on the deck when their ship swayed. The fall was strong
enough which resulted in some injury on his lumbar spine. He had
several months of physical therapy but his back pain persisted, so
he had MRI studies. His MRI showed that there is a [sic] some
defect on his L3 vertebra. He was advised to have Bone scanning
test to determine what is causing the abnormality at L3. The
spondylosis at L3/L4 showed that there is some structural defect at
L3 which is maybe due to the fall he sustained last Jan '10. He
should undergo Bone Scan and EMG-NCV to determine the exact
problem on his lumbar spine. If nothing is done, his condition
might worsen which can incapacitate him. He will [sic] is not
capable of returning to his former job as a seaman since he has
still on and off back pain.
He is given a PERMANENT DISABILITY. He is UNFIT FOR
SEADUTY in whatever capacity as a SEAMAN.14
Notably, Dr. Escutin's findings included a recommendation for
respondent to undergo Bone Scan and EMG-NCV15 to determine
the exact problem on his lumbar spine, which is consistent with the
recommendations of the company-designated physician.
Ruling of the Labor Arbiter
Instead of following the respective medical opinions of his and the
company-designated physician, as well as subjecting himself to the
required bone scan and other tests to fully determine and treat his
condition, respondent filed on July 20, 2010 a complaint for
payment of permanent and total disability benefits, medical
expenses, damages, and attorney's fees against petitioners before
the NLRC NCR, Quezon City, docketed as NLRC-NCR Case No.
(M) 07-09911-10.
16 17
In his Position Paper and other pleadings, respondent claimed
that his work-related spinal injury entitles him to permanent and
total disability and other benefits afforded him under his
Philippine Overseas Employment Administration (POEA)
Standard Employment Contract, as well as damages for the anxiety
and stress he suffered as a result of petitioners' refusal to pay his
claims. Thus, he prayed that petitioners be ordered to pay him a)
permanent total disability benefits in the amount of US$89,000.00 was noted that from the disability rating issued by Dr. Nicanor F.
or its peso equivalent; b) sickness benefit allowance of
US$3,070.00; c) moral and exemplary damages at P500,000.00
each; and d) 10% attorney's fees.
In their joint Position Paper18 and other pleadings,19 petitioners
sought dismissal of the complaint, arguing that respondent is not
entitled to his claim of permanent total disability benefits, in view
of the company designated physician's final and binding Grade 10
assessment; that respondent abandoned his treatment, which was
still ongoing when he filed the labor case; that respondent is
entitled only to US$17,954.00 as compensation for his Grade 10
disability rating; yet by abandoning his treatment and violating the
POEA contract, respondent should be held responsible and is not
entitled to disability and other benefits, damages, and all other
claims, and for this reason, respondent's case should be dismissed;
that respondent's resort to an independent physician who arrived
at a contrary finding entitled petitioners to secure the opinion of a
third doctor, pursuant to Section 20-B(3) of the POEA contract,20
which could no longer be done in view of the filing of the labor
case, and for this reason, the opinion of the company-designated
P a g e | 193
physician should instead prevail; that respondent's back pain does
not deserve a Grade 1 rating under Section 32 of the POEA
contract,21 as it is not severe and did not render him completely
immobile or paralyzed; and, that respondent's other claims are
thereby rendered unfounded and baseless. Petitioners prayed that
they be held liable only for the total amount of US$17,954.00
which is equivalent to the Grade 10 disability rating given by the
company-designated physician.
On February 23, 2011, a Decision22 was rendered by Labor Arbiter
Catalino R. Laderas granting disability benefits and attorney's fees
in favor of respondent. The Decision decrees as follows:
It appears from the foregoing facts, circumstances and arguments
advanced by the opposing parties, the only issue is that of disability
rating.
After [a] careful evaluation of the positions of complainant and
[respondents,] this Office finds the disability gradings issued by the
company designated doctor and the independent Physician to be
inappropriate.
It was established that the complainant suffered injury of [the]
lumbar spine due to [an] accident while on board [the] MV Gulf
Coral on January 3, 2010. He was subjected to [a] series of
Medical examination and treatment for almost five (5) months by
the company doctor and later on by an independent physician for
having suffered intermiheat [sic] pains at the back.
On June 16, 2010 the [sic] Dra. Susannah Ong-Salvador,
[respondents'] Medical Coordinator prematurely issued a disability
assessment of Grade 10 to the complainant x x x though the
complainant has yet to undergo Bone Scan xx x. This to our mind
is [an] inappropriate assessment of the disability grade of [the]
complainant because he has not fully recovered. While it may be
true that the assessment of the company designated physician has
great probative value, it could not be said as [binding] and
conclusive as the assessment issued to complainant was done prior
to the termination of Medical examinations.
Independent Doctor assessment of complainant's disability grading
is likewise inappropriate as it was merely based on presumption. It
Escutin x x x is not yet certain to warrant issuance of disability
rating. x x x
xxxx
Considering therefore the degree of the injury suffered and the
duration of complainant's Medical treatment this Office finds the
disability rating stated in paragraph 4, Chest-Trunk-Spine, Section
32 of Standard Terms and Conditions Governing the Employment
of Filipino Seafarers on Board Ocean-Going Vessel applicable
which states:
'CHEST-TRUNK-SPINE
xxxx
4. Fracture of the dorsal or lumbar spines resulting to [severe] or
total rigidity of the trunk or total loss of lifting power of heavy
objects ------- GR. 6

xxxx
The [claim] for payment of Medical expenses and damages has no such he is expected to be physically fit because agility and
legal and factual bases hence the same must fail.
The claim for payment of attorney's fees is warranted in the light
of the legal services rendered by the counsel for the complainant in on the joints. According to medical literature, deterioration
protecting the rights and interest of his client by way of recovery of involves the cartilages and bones in either the cervical spine (joints
the disability benefits of the latter.
WHEREFORE, premised on the foregoing considerations,
judgment is hereby rendered ordering the respondents
To pay complainant his disability benefits equivalent to Disability
Grade 6 in the amount of US$44,550 or its peso equivalent at the
time of payment.
To pay attorney's fee of ten (10%) percent of complainant's
monetary award.
Other claims dismissed.
SO ORDERED.23
Ruling of the National Labor Relations Commission
Petitioners took the matter before the NLRC, via appeal docketed
as NLRC LAC (OFW-M) No. 05-000371-11.
On December 29, 2011, the NLRC issued its Decision, declaring as
follows:
The appeal has no merit.
It is an undisputed fact that complainant-appellee's work-related
injury has not been resolved despite the extensive medical
management undertaken by the company-designated physician for
a period of more than 120 days or from February 11 to June 16,
2010. By reason thereof, both the company-designated physician
and Dr. Escutin found it imperative for the complainant-appellee
to undergo a Bone Scan for the purpose of determining the cause
of the abnormality in his lumbar spine. As it remains unresolved,
complainant-appellee continues to suffer intermittent pain on his
back. Undeniably, this unstable condition of the complainant-
appellee gave rise to the varying assessments on the extent of his
disability by the two (2) doctors based on their own medical
perspectives. It is worthy to underscore that both doctors are
Orthopedic Surgeons, whose competence and expertise to address
the medical condition of the complainant-appellee are definitely
beyond question.
We analyzed the disability ratings of the company-designated
physician and Dr. Escutin for the purpose of resolving the issue
pertaining to the extent of disability compensation and We are
persuaded that the former had thoroughly examined complainant-
appellee. Dr. Escutin however only saw him once and the basis of
his disability report was not revealed, thus making his finding
inconclusive. However, We cannot ignore the fact that the
company doctor merely gave a provisional rating. Additionally,
complainant-appellee was advised to undergo bone scan. We are
convinced that these facts are articulate indicators that
complainant-appellee's illness has not been resolved even after the
lapse of 120 days.
It bears to stress that it is not the medical significance of the illness 2) The award of attorney's fees is DELETED.
that solely determines whether a seafarer is permanently or totally
P a g e | 194
disabled. The nature of his job vis-a-vis his illness should also
considered. Complainant-Appellee worked as an Able Seaman. As
[strength] are requirements of his job. Complainant-Appellee has
been found to be suffering from spondylosis, which has been
described as the degeneration of the spine caused by wear and tear
of the neck) sometimes referred to as cervical spondylosis or the
lumbar spine sometimes referred to as lumbar degenerative disc
disease x x x. With this kind of ailment, it is plain to see that
complainant-appellee's seafaring career as an able seaman has
come to an untimely end. It is for this reason that We resolve to
grant him total and permanent disability benefit.
The concept of total and permanent disability has been expounded
by the Supreme Court in this wise:
'To be entitled to Grade 1 disability benefits, the employee 's
disability must not only be total but also permanent.
Permanent disability is the inability of a worker to perform his job
for more than 120 days, regardless of whether or not he loses the
use of any of his body.
Total disability, on the other hand, does not mean absolute
helplessness. In disability compensation, it is not the injury which
is compensated, but rather the incapacity to work resulting in the
impairment of one's earning capacity. Total disability does not
require that the employee be absolutely disabled, or totally
[paralyzed] What is necessary is that the injury must be such that
the employee cannot pursue his usual work and earn therefrom.' x
xx
With regard to the amount of total and permanent disability benefit
due complainant-appellee, the sum of US$89,100.00 is hereby
awarded to him based on the benevolent provisions of the CBA and
not on the POEA Standard Employment Contract x x x.
Finally, the award of attorney's fees to the complainant-appellee is
hereby deleted considering the apparent lack of bad faith on the
part of the respondents-appellants in dealing with the predicament
of the complainant-appellee. Respondents-Appellants' disclaimer
of liability for total and permanent disability benefits to the
complainant-appellee is primarily anchored on their honest
reliance on the assessment rendered by the company-designated
physician. It is a well-settled principle that even if a claimant is
compelled to litigate with third persons or to incur expenses to
protect his rights, attorney's fees may still not be awarded where no
sufficient showing of bad faith could be reflected in a party's
persistence in a case other than an erroneous conviction of the
righteousness of his cause x x x.
WHEREFORE, premises considered, the appeal is DENIED. The
Decision of Labor Arbiter Catalino R. Laderas dated February 23,
2011 is hereby MODIFIED as follows:
1) Complainant-Appellee is hereby awarded the sum of
US$89,100.00 or its equivalent in Philippine Peso at the time of
payment, representing his total and permanent disability benefits
under the Collective Bargaining Agreement (CBA); and

SO ORDERED.24 (Citations omitted)
Respondent moved to reconsider, but in its April 30, 2012
Resolution, the NLRC held its ground.
Ruling of the Court of Appeals
Petitioners thus filed a Petition for Certiorari, docketed as CA-G.R. injury or illness must have existed during the term of the seafarer's
SP No. 125046, questioning the NLRC's pronouncements and
arguing that the award of permanent and total disability benefits
was unwarranted; that the NLRC should have limited itself to
determining which of the two medical opinions, that of the
company-designated physician or the independent doctor, should
prevail; and that mere incapacity to return to work after 120 days
does not automatically entitle respondent to a Grade 1 disability
rating, as his injury is specifically governed by the provisions of
the POEA contract.
On October 18, 2013, the CA issued the assailed Decision which
contains the following pronouncement:
In the case of floreta vs. Philippine Transmarine Carriers, Inc., the
Supreme Court has applied the Labor Code concept of permanent
total disability to Filipino seafarers in keeping with the avowed
policy of the State to give maximum aid and full protection to
labor, it holding that the notion of disability is intimately related to hereby DENIED md the assailed Decision dated 29 December
the worker's capacity to earn, what is compensated being not his
injury or illness but his inability to work resulting in the
impairment of his earning capacity, hence, disability should be
understood less on its medical significance but more on the loss of Petitioners moved to consider, but the CA was unmoved. Hence,
earning capacity.
Expounding on the matter, the Supreme Court has pronounced
that permanent total disability means disablement of an employee
to earn wages in the same kind of work, or work of similar nature
that he was trained for or accustomed to perforn1, or any kind of
work which a person of his mentality and attainment could do. It
does not mean absolute helplessness. Verily, permanent disability
has been defined as the inability of a worker to perforn1 his job for
more than 120 days, regardless of whether or not he loses the use
of any part of his body.
To be sure, in the case of Valenzona vs. Fair Shipping
Corporation, the Supreme Court minced no words in ruling that
the inability of a seafarer to perform any gainful occupation for a
continuous period exceeding 120 days renders his disability total
and permanent. x x x
xxxx
In the case at bench, private respondent was medically repatriated
on 10 February 2010 and yet, at the time of the filing of the present
complaint on 20 July 2010, he has yet to obtain employment as a
seafarer in any capacity. Evidently, more than 120 days had
already lapsed form the time of his repatriation and the filing of
the complaint. He was subjected to continued medical treatment
and rehabilitation without any development.
Suffering from such illness as a result of his accident on-board,
which illness has yet to be cured or medically resolved, private
respondent is rendered unfit to work and resume his duties as an
able seaman, a job that requires heavy lifting and involves
strenuous tasks. Rightly so, the NLRC modified the Labor Arbiter
P a g e | 195
Decision, considering that private respondent deserves a Grade 1
disability rating having failed to obtain employment for more than
120 days from his repatriation.
Emphatically, under the [POEA-SEC], two elements must concur
for an injury or illness to be compensable: First, that the injury or
illness must be work-related; and Second, that the work-related
employment contract. Both elements are availing in the present
case as the injury sustained by private respondent had been a
direct result of his work-related accident onboard and while on-
duty as a seafarer.
So viewed, private respondent's impediment is deemed total and
permanent and thus warrants the award of disability benefits
amounting to US$89,100.00 in accordance with the prevailing
CBA between the parties. Petitioners' arguments being devoid of
factual and legal basis, there is no cogent reason to warrant the
issuance of a writ of certiorari and to deviate from the settled rule
that findings of facts of the NLRC are deemed binding and
conclusive upon the Court, when supported by substantial
evidence, as in the case at bench.
WHEREFORE, the foregoing considered, the present petition is
2011 and Resolution dated 30 April2012 [are] AFFIRMED in toto.
SO ORDERED.25 (Citations omitted)
the present Petition
Issues
Petitioners submit that -
x x x THE COURT OF APPEALS COMMITTED SERIOUS
ERROR WHEN IT HELD THAT RESPONDENT IS ENTITLED
TO PERMANENT TOTAL DISABILITY BENEFITS,
CONSIDERING THAT:
RESPONDENT IS NOT AUTOMATICALLY ENTITLED TO
TOTAL PERMANENT DISABILITY BENEFITS SIMPLY
BECAUSE, THRU HIS OWN FAULT, HIS BACK CONDITION
WAS NOT RESOLVED AFTER ONE HUNDRED AND
TWENTY (120) DAYS.
RESPONDENT VIOLATED HIS OBLIGATIONS UNDER THE
POEA-SEC BECAUSE HE INEXPLICABLY ABANDONED HIS
TREATMENT WITH THE COMPANY-DESIGNATED
DOCTORS.
IN THE ABSENCE OF A MEDICAL FINDING BY A THIRD
DOCTOR, THE ASSESSMENT OF THE COMPANY-
DESIGNATED ORTHOPEDIC SURGEON IS
CONTROLLING.26
Petitioners' Arguments
Praying that the assailed CA pronouncements be set aside and
respondent's labor complaint be dismissed, petitioners maintain in
their Petition and Reply27 that the respondent's inability to work
for more than 120 days is not tantamount to permanent total
disability; that in fact, there was as yet no declaration with respect
to his fitness to work or permanent total disability, as he required
 P a g e | 196

further medical treatment and yet he abandoned the same; that
instead of undergoing the required treatment, respondent
discontinued his medical visits to the company physician and thus
prevented petitioners from resolving his condition; that by his own
actions, respondent intentionally prevented his condition from
being cured and caused the aggravation thereof, if any, in express
violation of his POEA contract which requires him to submit
himself to treatment by the company physician; that respondent
was finally diagnosed by the company-designated physician with a
Grade 10 disability rating, which diagnosis should prevail over that
of respondent's appointed physician, especially in the absence of
the required opinion from a third doctor chosen mutually by the
parties; and, that respondent's claim for disability benefits is thus
limited to the Schedule of Disability Allowances under Section 32
of the POEA standard contract.
company-designated physician. On June 16, 2010, he was partially
diagnosed with "lumbosacral muscular spasm with mild spondylosis
L3-L4;"30 the company physician also concluded that there was no
compression fracture, and respondent was told to return for a
scheduled bone scan. However, instead of returning for further
diagnosis and treatment, respondent opted to secure the opinion of
an independent physician of his own choosing who, although
arriving at a finding of permanent total disability, nonetheless
required respondent to subject himself to further Bone Scan and
Electromyography and Nerve Conduction Velocity tests "to
determine the exact problem on his lumbar spine." 31
Instead of heeding the recommendations of his own doctor,
respondent went on to file the subject labor complaint. In point of
law, respondent's filing of the case was premature.

Respondent's Arguments The company-designated physician and Dr. Escutin are one in
recommending that respondent undergo at least a bone scan to
In his Comment,28 respondent counters that as between the determine his current condition while undergoing treatment, thus
diagnosis of the company physician and that of his appointed indicating that respondent's condition needed further attention. In
physician, Dr. Escutin, the latter prevails; that the evidence does this regard, petitioners are correct in arguing that respondent
not indicate that further medication or additional treatment was abandoned treatment, as under the law and the POEA contract of the
required for his condition, and as a matter of fact, no further parties, the company physician is given up to 240 days to treat him.
medical treatment was advised for his case after June 16, 2010; On the other hand, the fact that Dr. Escutin required the conduct of
that there was no declaration of fitness for work by the company further tests on respondent is an admission that his diagnosis of
physician after more than 120 days of treatment, his illness was permanent total disability is incomplete and inconclusive, and thus
not cured, and he could not return to work as a seaman on account unreliable. It can only corroborate the company-designated
of his injury; that petitioners' claim that he abandoned his ongoing physician's finding that further tests and treatment are required.
treatment deserves no consideration, as in fact he was never told of
such further treatment after his last consultation on June 16, In New Filipino Maritime Agencies, Inc. v. Despabeladeras,32 this
2010; that petitioners' claim of further required treatment is a ploy Court held that a seafarer is guilty of medical abandonment for his
to discredit him by precisely making it appear that he refused to failure to complete his treatment before the lapse of the 240-day
undergo treatment with the company physician; that petitioners' period, which prevents the company physician from declaring him
claim that he called to inform them that he could not appear on fit to work or assessing his disability. Thus:
July 16, 2010 for his scheduled bone scan is a lie; and that the As recited earlier, upon Michael's return to the country, he
opinion of a third physician is not mandatory, the labor tribunals underwent medical treatment in accordance with the terms of the
may simply determine which of the conflicting medical opinions [POEA SEC]. Upon his repatriation x x x, he was given medical
(company physician and independent physician) should prevail attention supervised by x x x the company-designated physician. He
based on the evidence and circumstances. was later on endorsed to an orthopedic surgeon. The company-
designated specialist recommended that he continue with his
Our Ruling physical therapy sessions. During his visit on February 10, 2010, he
was required to return for a follow up checkup x x x. For unknown
The Court grants the Petition in part. reasons, he failed to return on the said date.
'An employee's disability becomes permanent and total [only 1)]
when so declared by the company-designated physician, or, [2)] in It should be noted that on February 10, 2010 when Michael last
case of absence of such a declaration either of fitness or permanent visited the company-designated orthopedic surgeon, it had been 166
total disability, upon the lapse of the 120- or 240-day treatment days since he was referred to the company-designated physician
periods, while the employee's disability continues and he is unable to upon his repatriation x x x. During this time, Michael was under
engage in gainful employment during such period, and the company- temporary total disability inasmuch as the 240-day period provided
designated physician fails to arrive at a definite assessment of the under the aforecited Rules had not yet lapsed. The CA, therefore,
employee's fitness or disability.' The 'mere lapse of the 120-day erred when it ruled that Michael's disability was permanent and total.
period itself does not automatically warrant the payment of
permanent total disability benefits.' 'If the 120 days initial period is xxxx
exceeded and no such declaration is made because the seafarer
requires further medical attention, then the temporary total disability On the issue of abandonment, the Court agrees with petitioners'
period may be extended up to a maximum of 240 days, subject to the stance that Michael was indeed guilty of medical abandonment for
right of the employer to declare within this period that a permanent his failure to complete his treatment even before the lapse of the 240
partial or total disability already exists. The seaman may of course days period. Due to his willful discontinuance of medical treatment
also be declared fit to work at any time such declaration is justified with Dr. Cruz, the latter could not declare him fit to work or assess
by his medical condition.'29 his disability.
For a little over 120 days, or from February 10, 2010 to June 16,
Michael's claim that requiring him to await the medical assessment
2010, 126 days to be exact, respondent underwent treatment by the
 P a g e | 197

of Dr. Cruz would mean that his fate would unduly rest in the hands
of the company doctor does not persuade. Worthy of note is that the
company designated physician is mandated under the law to issue a
medical assessment within 240 days from the seafarer's repatriation.
It is, therefore, incorrect to conclude that a seafarer is at the mercy of
the company doctor.
Thus, without any disability assessment from Dr. Cruz, Michael's
claim for disability compensation cannot prosper. Section 20(D) of
the POEA-SEC instructs that no compensation and benefits shall be
payable in respect of any injury, incapacity, disability or death of the
seafarer resulting from his willful or criminal act or intentional
breach of his duties. Michael was duty-bound to complete his
medical treatment until declared fit to work or assessed with a
permanent disability grading. It is undisputed that Michael did not
undergo further treatment. x x x [S]uch a refusal negated the
payment of disability benefits.
equivalent to or commensurate with his injury. In this regard, the
Court finds the Labor Arbiter's findings to be correct and in point,
even with respect to his ruling on respondent's entitlement to
attorney's fees. As far as respondent is concerned, his work-related
condition was serious enough to require further medical care, yet it
could have been resolved if he had undergone the procedure
prescribed by the company-designated physician and his own
appointed doctor. For his omissions, he is only entitled to disability
benefits consistent with his injury suffered.
WHEREFORE, the Petition is GRANTED IN PART. The assailed
October 18, 2013 Decision and January 28, 2014 Resolution of the
Court of Appeals in CA-G.R. SP No. 125046 are REVERSED and
SET ASIDE. The February 23, 2011 Decision of Labor Arbiter
Catalino R. Laderas is REINSTATED and AFFIRMED.
SO ORDERED.

Michael's breach of his duties under the POEA-SEC was aggravated G.R. No. 159132 December 18, 2008
by the fact [that] he filed his complaint for permanent total disability
benefits while he was under the care of the company-designated
specialist and without waiting for the latter's assessment of his FE CAYAO-LASAM, petitioner,
condition. x x x33 (Citations omitted) vs.
Identical rulings were arrived at in Magsaysay Maritime SPOUSES CLARO and EDITHA RAMOLETE,
Corporation v. National Labor Relations Commission 34 and, more respondents.*
recently, in Wallem Maritime Services, Inc. v. Quillao35 where this
ponente made the following pronouncement: AUSTRIA-MARTINEZ, J.:
We agree with petitioners' contention that at the time of filing of the
Complaint, respondent has no cause of action because the company- Before the Court is a Petition for Review on Certiorari under Rule
designated physician has not yet issued an assessment on
45 of the Rules of Court filed by Dr. Fe Cayao-Lasam (petitioner)
respondent's medical condition; moreover, the 240-day maximum
seeking to annul the Decision1 dated July 4, 2003 of the Court of
period for treatment has not yet lapsed. x x x
Appeals (CA) in CA-G.R. SP No. 62206.
The records clearly show that respondent was still undergoing
treatment when he filed the complaint. On November 12, 2009, the The antecedent facts:
physiatrist even advised respondent to seek the opinion of an
orthopedic specialist. Respondent, however, did not heed the On July 28, 1994, respondent, three months pregnant Editha
advice[;] instead, he proceeded to file a Complaint on November 23, Ramolete (Editha) was brought to the Lorma Medical Center (LMC)
in San Fernando, La Union due to vaginal bleeding. Upon advice of
2009 for disability benefits. And, it was only a day after its filing x x
x that respondent requested from the company-designated doctor the petitioner relayed via telephone, Editha was admitted to the LMC on
latter's assessment on his medical condition. the same day. A pelvic sonogram2 was then conducted on Editha
revealing the fetus’ weak cardiac pulsation.3 The following day,
Stated differently, respondent filed the Complaint within the 240-day Editha’s repeat pelvic sonogram4 showed that aside from the fetus’
period while he was still under the care of the company-designated weak cardiac pulsation, no fetal movement was also appreciated.
doctor. x x x Due to persistent and profuse vaginal bleeding, petitioner advised
Editha to undergo a Dilatation and Curettage Procedure (D&C) or
Clearly, the Complaint was premature. Respondent has no cause of "raspa."
action yet at the time of its filing as the company-designated doctor
has no opportunity to definitely assess his condition because he was On July 30, 1994, petitioner performed the D&C procedure. Editha
still undergoing treatment; and the 240-day period had not lapsed. x was discharged from the hospital the following day.
x x36
Nevertheless, respondent might have treated the company- On September 16, 1994, Editha was once again brought at the LMC,
designated physician's June 16, 2010 temporary diagnosis as the as she was suffering from vomiting and severe abdominal pains.
final assessment of his condition, which prompted him to secure the Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo
opinion of Dr. Escutin and thereafter file the case prematurely. For and Dr. Juan V. Komiya. Dr. Mayo allegedly informed Editha that
this he cannot be completely blamed; indeed, he might have there was a dead fetus in the latter’s womb. After, Editha underwent
proceeded under the impression that he was being shortchanged. laparotomy,5 she was found to have a massive intra-abdominal
Given his position in the employment relation, his distrust for the hemorrhage and a ruptured uterus. Thus, Editha had to undergo a
petitioners is not completely unwarranted. procedure for hysterectomy6 and as a result, she has no more chance
to bear a child.
Consequently, respondent is entitled only to compensation

On November 7, 1994, Editha and her husband Claro Ramolete
(respondents) filed a Complaint7 for Gross Negligence and
Malpractice against petitioner before the Professional Regulations
Commission (PRC).
Respondents alleged that Editha’s hysterectomy was caused by
petitioner’s unmitigated negligence and professional incompetence
in conducting the D&C procedure and the petitioner’s failure to
remove the fetus inside Editha’s womb.8 Among the alleged acts of
negligence were: first, petitioner’s 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 Editha’s
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 latter’s 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 latter’s 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 Editha’s gross negligence and/or
omission in insisting to be discharged on July 31, 1994 against
doctor’s 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 Editha’s 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
P a g e | 198
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 Decision16 reversing the
findings of the Board and revoking petitioner’s 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 certiorari18 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
2620 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. PRC’S 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 PETITIONER’S LICENSE
TO PRACTICE MEDICINE WITHOUT AN EXPERT
TESTIMONY TO SUPPORT ITS CONCLUSION AS TO
THE CAUSE OF RESPONDENT EDITHAT [SIC]
RAMOLETE’S 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 EDITHA’S 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:
P a g e | 199
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 quasi-judicial agency in the exercise of its quasi-judicial functions.
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 Specifically, the Court, in Yang v. Court of Appeals,37 ruled that
resolution may file a notice of appeal from the decision, Batas Pambansa (B.P.) Blg. 12938 conferred upon the CA exclusive
order or resolution of the Board to the Commission
within fifteen (15) days from receipt thereof, and serving Court held:
upon the adverse party a notice of appeal together with the
appellant’s brief or memorandum on appeal, and paying the
appeal and legal research fees. x x x29
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
31
common usage or meaning.
Petitioner also submits that appeals from the decisions of the PRC
should be with the CA, as Rule 4332 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
P a g e | 200
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
The phrase "among these agencies" confirms that the enumeration
made in the Rule is not exclusive to the agencies therein listed.36
appellate jurisdiction over appeals from decisions of the PRC. The
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 Editha’s 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 Editha’s 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 Editha’s 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 Editha’s 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 don’t think so, because it is the
triggering factor for the rupture, it could have–the 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 ½
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 don’t 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)
P a g e | 201
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 Editha’s uterus.
During his cross-examination, Dr. Manalo testified on how he would
have addressed Editha’s 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 there’s 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 right–scanty.
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. It’s 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, that’s 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 returned, petitioner could have conducted the proper medical tests
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 217654 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 plaintiff’s 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 defendant’s 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
Respondents, on the other hand avers that if the original registry
complainant’s Discharge Sheet. However, complainant
failed to do so. This being the case, the chain of continuity receipt was not attached to the Memorandum on Appeal, PRC would
as required in order that the doctrine of proximate cause can not have entertained the appeal or accepted such
notice or proof of service on the other party. 64 Also, the registry
P a g e | 202
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 petitioner’s 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 ½
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 petitioner’s 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 Editha’s own injury. Had Editha
and procedure necessary to determine Editha’s health condition and
applied the corresponding treatment which could have prevented the
rupture of Editha’s uterus. The D&C procedure having been
conducted in accordance with the standard medical practice, it is
clear that Editha’s 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 defendant’s 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 plaintiff’s 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 Editha’s injury was her own omission when she did
not return for a follow-up check up, in defiance of petitioner’s
orders. The immediate cause of Editha’s 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
pleading for lack of
 P a g e | 203

receipt could not be appended to the copy furnished to petitioner’s
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.
HARRISON, Justice.
This is an appeal of summary judgment granted in favor of
defendant John Batson, M.D. Plaintiff/appellant Karen McCain
(McCain) brought this action in the District Court of the Eighth
Judicial District, Gallatin County, Montana, the Honorable Joseph B.
Gary presiding. McCain sought to recover damages for the negligent
treatment of her injuries by the defendant/respondent, John Batson,
M.D. (Dr. Batson). Dr. Batson sought summary judgment by
invoking immunity of the Montana Good Samaritan Statute § 27-1-
714, MCA. On February 4, 1988 the District Court granted Dr.
Batson's motion for summary judgment. McCain now appeals.

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.
McCain and two friends, Sherry Warner (Warner) and Rosemary
Checketts, (Checketts) spent a weekend in West Yellowstone,
Montana, arriving the morning of September 25, 1982, from Ogden,
Utah. They planned to stay with Warner in her condominium. That
evening, after preparing and eating supper at home, the three friends
decided to go into the town of West Yellowstone. The three decided
to walk into town as Warner's truck battery was dead. The
condominium was not far from town so they walked to the nearby
Stagecoach Inn. After spending some time at the Inn, the women
became separated and about 11:00 p.m. McCain decided to return
alone to the condominium.

All told, doctors are protected by a special rule of law. They are not
McCain was unfamiliar with the area and while walking back in the
guarantors of care. They are not insurers against mishaps or unusual
dark fell into an eight-foot deep excavation pit. The pit contained
consequences68 specially so if the patient herself did not exercise the
rebar set in concrete at six inch intervals. As a result of the fall she
proper diligence required to avoid the injury. severely *726 impaled her upper left leg on a piece of rebar. After
extracting herself off the rebar, McCain crawled out of the pit and
WHEREFORE, the petition is GRANTED. The assailed Decision crawled to a lighted doorway of a nearby condominium. McCain
of the Court of Appeals dated July 4, 2003 in CA-GR SP No. 62206 rapped on the door of a condominium occupied by Dr. James
is hereby REVERSED and SET ASIDE. The Decision of the Board Grindley, a Bozeman radiologist, and his wife. Mrs. Grindley
of Medicine dated March 4, 1999 exonerating petitioner is answered the knock on the door. After McCain told Mrs. Grindley
AFFIRMED. No pronouncement as to costs. about her accident and injury, Dr. Grindley went to the Stagecoach
Inn to retrieve her two friends. Throughout this time, Dr. Grindley
did not mention he was a physician and McCain remained on the
SO ORDERED.
patio or lawn outside of the condominium. Dr. Grindley is a
radiologist with extensive surgical and emergency room experience.
Karen McCAIN, Plaintiff and Appellant, He did not initially examine McCain's injury, and in a deposition Dr.
Grindley admitted that he did not have any medical equipment at the
v. condominium.

John BATSON, M.D., Defendant and McCain's friends returned with Dr. Grindley and attempted to assist
her. Warner, a surgical assistant had gotten her box of medical
Respondent. supplies and removed McCain's pant-leg with a pair of bandage
No. 88-134. scissors. At that time Dr. Grindley informed them that he was a
physician. Dr. Grindley examined the wound and advised all present
Supreme Court of Montana. that while technically he could repair the wound, he had no desire to
do so without being able to "debride it and clean it."
Decided August 18, 1988.
At deposition Dr. Grindley testified he then offered to drive McCain
Submitted on Briefs June 30, 1988. and her friends to the nearest hospital in Ashton, Idaho. They refused
his offer and informed Dr. Grindley that they believed there was a
James J. Screnar, Nash, Guenther, Zimmer & Screnar, Bozeman, for doctor staying in town who could help them and that if they needed
plaintiff and appellant. Dr. Grindley's services later, they would contact him.

Richard F. Cebull, Anderson, Brown Law Firm, Billings, for Dr. Grindley further testified that at that time the wound may have
defendant and respondent. "been bleeding a tiny bit ... and that her panty hose seemed to be
holding the tissues all in good position so that it was minimizing any
bleeding." McCain testified that at that time she had little pain and

the leg was "dead, numb, dead." After taking McCain back to
Warner's condominium, and some three hours after the accident,
Warner was able to locate where defendant/respondent Dr. Batson
was staying. Dr. Batson got up out of bed, left the condominium
where he was staying and agreed to come to the Warner
condominium to see what could be done. Dr. Batson testified that
McCain was lying on a couch and that when he examined the wound
he could see considerable dirt and mud in the wound. With the help
of Warner and her surgical kit which contained instruments, suture,
IV solutions, and other items that could be used to clean the wound,
Dr. Batson debrided the wound as best he could. He then loosely
sutured the wound and dressed it with bandages from the medical
kit. All of this was done under the light of a lamp in the Warner
condominium.
Dr. Grindley testified at deposition that he informed all three women
soon after the accident that the wound had to be treated at a hospital
and under a general anesthesia and that the wound needed to be
treated surgically. Dr. Batson's evaluation of the injury mirrored Dr.
Grindley's that this was not an emergency situation but that McCain
should go to a hospital as soon as possible. Dr. Batson informed the
women that he would call the hospital in Ashton, Idaho and order
pain and antibiotic medication and a tetanus shot to be available to
McCain the next morning.
It should be noted that the reason McCain did not immediately go to
a hospital was that the ambulance at West Yellowstone was not
available as it had taken someone to Bozeman, Montana, just before
she was injured and would not return until the next morning. As
previously noted, the truck used by the parties to travel to West
Yellowstone had a dead battery but would be repaired by the next
morning. As the hour was very late, the three spent the rest of the
night at the Warner condominium and planned on returning to
Ogden later that morning/early afternoon via Ashton, Idaho.
Dr. Batson testified that later that morning about 11:00 a.m., he
returned to check on the three women. He found them still packing
and preparing to return to Ogden. Dr. Batson said he advised them
again that *727 his suturing of the wound was a first-aid type
procedure and it was necessary that they go to a hospital and have
the wound properly treated.
According to the deposition of Checketts, they did stop at the
Ashton, Idaho hospital where they got some pain medication and
antibiotics which served as treatment until McCain returned to
Ogden. They then drove on into Ogden arriving at approximately
7:00 p.m. and took McCain to her apartment where it was their
understanding that McCain would go to the hospital and see a doctor
the next morning. However, McCain did not go to the hospital or see
a doctor until about one week later. By this time her wound had
become infected and required considerable surgery and medical
treatment.
On September 25, 1985, three years to the date of the injury, Dr.
Batson was sued by McCain for suturing the wound without
adequate debriding, or cleansing of the contaminated wound and for
failing to inform anyone that the procedures that he followed were
not final procedures. In other words, McCain claims he failed to
inform her that the wound would have to be opened up, recleansed,
debrided, and resutered. McCain alleges that this is a case of
malpractice which has caused her serious injury.
P a g e | 204
This case was presented to the District Court on depositions of
Sherry Clarey Warner, Karen McCain (plaintiff and appellant),
Rosemary Checketts, Dr. Wesley G. Harline, Dr. Lee J. Malan (a
surgeon who later operated on her at Ogden, Utah), Dr. John Batson
(defendant and respondent), and Dr. James S. Grindley (the
radiologist who first saw the injured McCane at his door). Based on
the information contained in the depositions, the District Court
granted Dr. Batson's motion for summary judgment. Attached to said
summary judgment was a memorandum of Judge Joseph Gary
concerning the reasons for his granting of summary judgment.
Several questions are presented for our consideration:
1. Did the District Court improperly find that the provisions of the
Montana Good Samaritan Statute, § 27-1-714, MCA, were
applicable to an instance where the negligent care rendered was
remote in time and location to the scene of the accident or
emergency, and was otherwise without the purpose of the act?
2. Did the District Court improperly usurp the function of the jury by
resolving questions of fact in its grant of summary judgment?
The first issue concerns the Montana Good Samaritan Statute, § 27-
1-714, MCA, which reads:
(1) Any person licensed as a physician and surgeon under the laws
of the state of Montana, any volunteer firefighter or officer of any
nonprofit volunteer fire company, or any other person who in good
faith renders emergency care or assistance without compensation
except as provided in subsection (2) at the scene of an emergency or
accident is not liable for any civil damages for acts or omissions
other than damages occasioned by gross negligence or by willful or
wanton acts or omissions by such person in rendering such
emergency care or assistance.
(2) Subsection (1) includes a person properly trained under the laws
of this state who operates an ambulance to and from the scene of an
emergency or renders emergency medical treatment on a volunteer
basis so long as the total reimbursement received for such volunteer
services does not exceed 25% of his gross annual income or $3,000 a
calendar year, whichever is greater.
(3) If a nonprofit subscription fire company refuses to fight a fire on
nonsubscriber property, such refusal does not constitute gross
negligence or willful or wanton act or omission.
According to the legislative history of § 27-1-714, MCA, (Good
Samaritan Statute) it was passed by the Legislature in 1963,
amended by § 1, Chapter 390, Laws of Montana 1979, and § 1,
Chapter 330, Law of Montana 1985, and § 1, Chapter 133, Laws of
Montana 1987. Reference is made to the legislative history of the
Good Samaritan Statute because this is a first *728 impression case
in this state on the interpretation of the Good Samaritan Statute.
This Court has considered appellant McCain's initial brief and reply
brief and her argument appears to be that the Good Samaritan Statute
has no application to her situation. McCain alleges that Dr. Batson
was not a good samaritan and recognizes that the Good Samaritan
Statute provides immunity from his malpractice. McCain first argues
that a physician must demonstrate that he is a member of a protected

class. Dr. Batson was not a licensed physician in the state of
Montana, although he is licensed to practice in Wyoming and Idaho.
McCain argues he is, therefore, any person within the meaning of the
statute. While she agrees with the fact that the doctor here is
protected under the act, she alleges that immunity only attaches to
malpractice which is committed at the scene of the accident or
emergency.
She argues that after falling into the excavation pit, McCain crawled
to Dr. Grindley's condominium and she was later carried to Warner's
condominium. Therefore Dr. Batson's care, such as it was, was too
remote in time and location to the scene of the accident. She alleges
with this result Dr. Batson could not demonstrate that this was an
"emergency" situation. McCain further argues that Dr. Batson's
negligent care was performed when he made a "housecall" and he
did not happen upon an emergency. McCain argues that because Dr.
Batson's negligent care was not during an emergency situation,
though her injuries were serious, they were not life threatening and
therefore the best course of action would have been to postpone care
until she reached a hospital.
We, as the District Court did, have difficulty with this argument. The
central question presented to the District Court and one which is
subject to our review is whether the Good Samaritan Statute applies.
We find, as the District Court did, that it does. Thus, the standard of
review is gross negligence and willful or wanton acts or omissions
rather than ordinary negligence — medical malpractice. We agree
with the District Court's finding that after reviewing all of the
deposition testimony, there is no evidence whatsoever that there was
such a serious level of negligence exhibited by Dr. Batson to warrant
any action in this case.
The District Court noted the problem here was not that there were
differing versions of the facts but that the facts were not ultimately
pertinent to the decision. Only two of the depositions indicate a fact
variance. One is the deposition of the appellant, McCain, which is to
say the least self-serving; second is the deposition of Dr. Grindley
who testified that he disagreed with the decision of Dr. Batson in
suturing the wound. Dr. Grindley added that the manner of Dr.
Batson's suturing indicated to him some permanence of treatment.
However, on cross-examination it should be noted that it was Dr.
Grindley's opinion that there was neither gross negligence nor gross
malpractice in this. During the cross-examination Dr. Grindley was
asked a number of questions which are illustrative of his position.
Q. I get the impression that your biggest criticism is the fact that he
sutured it.
A. Yes. I just don't know what the need for it was, you know, if he
was intending for her to go to the hospital right away and having it,
you know, treated further.
Q. Now do you know what gross negligence is on the part of a
doctor as opposed to ordinary malpractice or ordinary negligence?
.....
THE WITNESS: No, I guess I really couldn't give you a real good
definition of that. I imagine it's where you had some idea maybe that
you were operating out of the boundaries that you should be
operating in or working in as a physician.
P a g e | 205
BY MR. CEBULL [respondent's attorney]:
Q. Well are you critical of anything that Dr. Batson did other than
suturing the wound?
A. I'm not sure, you know, really what he did. You've told me what
he did and, *729 no, I couldn't say that I could be critical because I
really don't know what else he did. I haven't read those depositions
or anything so I don't know.
Q. But you are critical of the suturing, right?
A. Right. I really just don't know why you would put sutures in and
then send someone off to the emergency room to have the wound
treated further.
Q. And then as I understand it, you arrived at this opinion, or you
arrived at this criticism of Dr. Batson for him placing the sutures in
the wound before you came here today, didn't you?
A. Yes.
Q. Okay. Now in your opinion, was the placement of those sutures in
the wound by Dr. Batson gross negligence?
A. I don't know where he placed them. Do you mean just putting
them in there?
Q. I mean just the fact that he sutured the wound. That's my
understanding of your criticism of Dr. Batson.
A. I don't know that I would call it gross negligence, but it's just —
it's not the customary thing that a physician would do in treating —
giving first aid to a wound, in other words.
Q. Well, generally, you know that if a physician violates an
acceptable standard of care, that's malpractice, negligence, you know
that, don't you?
A. Uh huh.
Q. Okay. And I get the impression that you are saying that Dr.
Batson's suturing this wound was a violation of an acceptable
standard of care.
A. I would think so. I think if he intended to — had thought that he
had debrided it and cleaned it out thoroughly and had done the
primary care of the wound and sutured it then, I wouldn't have much
argument with that. But from what you tell me, where he puts just a
few sutures in it and then sent her off to the emergency room to have
it further treated, I say why? Why subject a patient to sticking them
with a needle and whatever you do to put sutures in just to have
them taken out in an hour or so, so it can be cleaned out?
Q. Well, what have you been told about whether this was temporary
or permanent, final suturing?
A. Well, you just alluded to it a while ago.
Q. I know, but have you been told anything before that?
A. I'm not sure that I have.

Q. Well, if Dr. Batson had intended this to be a final repair job and
he had debrided it and cleansed it, at least in his judgment as good as follows:
he could, would the fact that an infection occurred later on indicate
to you that he committed malpractice?
A. No. Because a certain percentage of wounds, like I said, would
get infected regardless of how thorough a job you do of cleaning
them.
Q. Even if they are done in a hospital in an OR suite with general
anesthesia and everything, right?
A. Right.
Q. Well, in your opinion, if this was a temporary suturing job by Dr. thing, you know, I don't know actually what he did do, I didn't see
Batson, did that, in your opinion, constitute gross negligence, gross
malpractice?
A. Well, you see you really haven't told me what gross malpractice
is yet or gross negligence.
Q. Well, it's a heck of a lot worse than ordinary malpractice.
A. I guess in my opinion I still would say — I would say it's what
most people, most physicians would not do that if they expected the
patient, within an hour or so, to be at a facility where they would
have it done and so why do it?
Q. Okay.
A. When a dressing will do the same thing.
Q. Are you going to testify in this case that Dr. Batson committed
gross malpractice, gross negligence, in suturing that wound if it was
a temporary repair?
A. From your description of gross negligence, I would probably say
no. You see, I might change my mind. You've made a lot of this
hypothetical and you said that if he had all of the equipment
available, if everything was in that box *730 and he had some other
things available, you know, could he have done it. And I said yes
but, you know, it was my opinion that I was not about to sew up that
kind of a wound, you know, with the equipment I could see in the
box there and feel like I was doing a service to the patient.
Dr. Grindley later testified in deposition:
Q. Well, apparently before today you had formulated an opinion that
Dr. Batson had committed at least ordinary malpractice, ordinary
negligence, right?
A. I wouldn't say that. I just think he's braver than I was to try to —
you know, if he was going to try to do primary care of that wound
there in some condominium or in his wherever he was staying, you
know, he was braver than I was to attack that kind of situation
without what I would like to have available, you know, to do it, and
if he was doing it just kind of as a first aid thing, then I really have
no idea why he would put sutures in the patient's leg.
When questioned later regarding deposition testimony from
McCain's treating physicians in Utah, one being a plastic surgeon
P a g e | 206
and the other being a general practitioner, Dr. Grindley answered as
Q. Now these physicians down in Utah, their depositions have been
taken — the one a plastic surgeon and another I'm not really sure
what his specialty was, but you don't know what they have said
about this?
A. No, I don't.
Q. If they said that, in their opinion, Dr. Batson didn't commit
malpractice in any way, you would disagree with them then, I guess.
A. I couldn't really — you know, it just comes back to the same
what he did work with, whether he was doing a primary closure with
it. And if I could see what he had used and if I felt it was
appropriate, then I would say, you know, it probably was appropriate
treatment for her. But, you know, just to put stitches into a wound
like this and send someone off to the hospital to have it further
repaired, I just don't think that's customary practice.
When asked if he offered to treat McCain's wound, Dr. Grindley
stated:
No. Just like I said earlier, I just told her that I technically could
repair the wound with what she had there [Warner's medical kit], but
that I just felt that I would not want to do it without having a better
circumstance to debride the wound thoroughly and thoroughly
cleanse it and irrigate it before it was sewn up.
.....
Well, what I was basically saying was that I wouldn't do it and I felt
like they ought to go to the nearest hospital, which was in Ashton,
Idaho, and their car wasn't starting and I told them that I would be
glad to take them over there to Ashton if they wanted me to.
It is interesting to note that from the time the first Good Samaritan
Statute was passed in 1959, up until 1981, only fourteen reported
cases in other jurisdictions dealt with those jurisdictions' statutes,
and only five cases where the statute was found applicable. See,
Good Samaritan Laws — Who Needs Them?: The Current State of
Good Samaritan Protection in the United States, 21 S.Tex.L.J. 341
at 350 (1981).
A review of Good Samaritan statutes of other states indicates that the
medical situation must be an emergency situation before immunity
can be invoked, yet few states have defined the term "emergency" in
their statutes, 21 S.Tex.L.J. at 346. In Colby v. Schwartz (1978), 78
Cal. App. 3d 885, 144 Cal. Rptr. 624, the California Court of
Appeals addressed the competing interest in numerous other states'
statutes. In Colby that court set forth the reason for the enactment of
the Good Samaritan statutes. That court noted:
The enactment of Good Samaritan legislation represents the
resolution of competing interests. On the one hand, there is an
interest in the vindication of the rights of the malpractice victim. On
the other hand, there is the need to encourage physicians to render
 P a g e | 207

emergency medical care when they otherwise might *731 not. The District Court carefully noted the plaintiff's contention, that Dr.
Where applicable, the legislation favors the latter over the former. Batson offered care gratuitously and for no compensation, the
plaintiff's concession that Dr. Batson was in a protected and immune
Colby, 78 Cal. App.3d at 893-894, 144 Cal. Rptr. at 628-629. We class, the plaintiff's denial that there was an emergency at the scene
find that that is the central reason for the legislation here in Montana of the accident and the plaintiff's conclusion, therefore, that the act
and that the standard of review is one of gross negligence and willful does not apply in this case.
or wanton acts or omissions, rather than ordinary negligence/medical
malpractice. The court carefully analyzed the testimony that was given and finds
that there was an "emergency" situation and no gross negligence or
Here Dr. Batson rendered temporary first-aid with limited medical willful or wanton acts were committed. The court further found that
equipment having been awakened early in the morning to do this for all of the elements of the Good Samaritan Statute were met and that
McCain and thereafter having warned her and her two companions its standard of gross negligence applied to the facts in this case.
that it was necessary to obtain immediate care both in Ashton, Idaho While this Court generally prefers a trial on the merits of a case to
and when she got home to Ogden, Utah. As previously noted all dismissal by *732 summary judgment, we affirm the District Court
parties agree, except McCain and Dr. Grindley, that what was done in its findings. We are willing to look at the facts presented and not
under the circumstances was a first-aid treatment by Dr. Batson with force a defendant to go through a prolonged, expensive and
directions to immediately seek help when she got home and the fact emotionally debilitating trial for such well intended and medically
that she waited over a week before seeking further medical treatment accepted deeds as Dr. Batson performed at West Yellowstone,
resulted in infection and the necessary surgery that followed. Montana. The relevant and material facts point to this conclusion
McCain's treating physician and treating surgeon both testified that and the ultimate question is a matter of law. We further agree with
under the circumstances what Dr. Batson did was neither negligent the District Court in this case that Dr. Batson was a good samaritan,
nor malpractice. that he acted in an emergency, and since there has been no showing
of gross negligence, the decision of the District Court to grant
summary judgment is affirmed.
As we have previously noted in the testimony of Dr. Grindley, he
did not and could not testify that Dr. Batson was guilty of gross
negligence or willful or wanton acts or omissions. Absent any proof TURNAGE, C.J., and HUNT and GULBRANDSON, JJ., concur.
of gross negligence on the part of Dr. Batson, McCain claims that
the Good Samaritan Statute did not apply to the facts of this case, SHEEHY, Justice, dissenting:
and that therefore proof of ordinary negligence is all that she had to
prove in her claim against Dr. Batson. She does this by arguing that The recent penchant of this Court to approve summary judgments
summary judgment was improper. The general rule surrounding from the District Court where genuine issues of material fact exist is
summary judgment and whether it should or should not be granted shown again in this case. There are two genuine issues of material
has been well set forth in the decisions of this Court. As respondent fact presented here: (1) whether an emergency existed requiring, as a
noted we need not go to the Eighth Circuit, the states of Indiana, good samaritan, the assistance of Dr. Batson; and (2) if the answer to
Louisiana and Hawaii for decisions regarding the appropriateness of the first query is affirmative, whether Batson was guilty of gross
summary judgment. negligence; and if the answer is no to the first query, whether he was
guilty of ordinary negligence.
Rule 56(c), M.R.Civ.P. provides for a case of this type. In Shimsky v.
Valley Credit (1984), 208 Mont. 186, 676 P.2d 1308, this Court held We said in Kronen v. Richter (Mont. 1984), 683 P.2d 1315:
that when a case is disposed of below on a motion for summary
judgment before a judge sitting without a jury and no testimony is Summary judgment is never to be used as a substitute for trial if a
taken as the facts are relatively uncontested, the scope of review is factual controversy exists (citing a case). Summary judgment is only
much broader than in other appeals and the Supreme Court is free to
proper if the pleadings, depositions, answers to interrogatories and
make its own examination of the entire case and reach a conclusion
admissions on file show that there is no genuine issue of material
in accordance with its findings. Shimsky, 676 P.2d at 1310.
Furthermore, the Court will uphold the result below if it is correct, fact (citing a case) ...
regardless of the reasons given below for the result. See, Montana
Department of Natural Resources and Conservation v. Clark Fork 683 P.2d at 1317.
Logging Co., Inc. (1982), 198 Mont. 494, 646 P.2d 1207.
In granting a motion for summary judgment, the discretion of the
Here the District Court very carefully noted the elements contained District Court, and of this Court in reviewing documents is limited.
in § 27-1-714, MCA, Montana's Good Samaritan Statute:
A discussion of discretion divides into two parts: Discretion in
Any person licensed as a physician and surgeon under the laws of granting and in denying a motion for summary judgment. As we
the State of Montana, ... or any other person who in good faith shall see, the Court cannot draw upon any discretionary power to
renders emergency care or assistance without compensation ... at the grant summary judgment; the Court may however exercise its sound
scene of an emergency or accident is not liable for any civil damages discretion in denying a motion of summary judgment although on
for acts or omissions other than damages occasioned by gross the record the movant has made out a case therefor.
negligence or by willful or wanton acts or omissions by such person
in rendering such emergency care or assistance. 6 Moore's Federal Practice (Part II), page 56-601, ¶ 56.15[6] (1987).
 P a g e | 208

The plaintiff has lost this appeal because the facts are not appealing.
The District Court expressed the problem:
The court would admit to some problems of keeping an impartial
perspective in this case, but is satisfied, when all is said and done,
that this is a fair decision based on thorough research, sufficient
facts, and clear rules of law. Nonetheless, the court cannot help but
wonder where our society is taking itself by bringing cases like this
to the courtroom. We may be well on our way to making an
endangered species out of good samaritans who are forced to stifle
their good impulses out of fear of being taken to court. If this is the
trend, it is indeed unfortunate.
The other side of that coin is that if Karen McCain has sustained
serious and permanent damages to her leg because Dr. Batson,
instead of rendering aid sufficient for the moment, in effect,
"overtreated" her, she is entitled to have her case heard in court, even
though Dr. Batson acted from the best of impulses.
If any District Court in Montana had given a jury an instruction that
so defined gross negligence, we would in high dudgeon reject it as
inadequate. Here, the majority, without otherwise defining gross
negligence as it applies under the Good Samaritan statute,
undertakes no other definition to resolve the fact issue of gross
negligence.
We might entertain in ourselves a serious doubt that the plaintiff
would prevail if she had been permitted to take her case to a jury to
resolve the fact issues. Our personal feelings about the propriety of a
case have no place in deciding questions on summary judgment. If
issues of fact exist, as Professor Moore notes, supra, there is no
discretion, in our Court or in the District Court, to grant summary
judgment.
I would reverse and remand for further proceedings.
G.R. No. L-55300 March 15, 1990

The first issue here was whether an emergency existed at the time of FRANKLIN G. GACAL and CORAZON M. GACAL, the
Dr. Batson's treatment. The District Court balanced those issues of
fact and decided that an emergency existed. In doing so, it
determined a question of fact, an improper procedure where
summary judgment is concerned.
First, the District Court ticked off the facts which contended for no PRESIDING JUDGE of the COURT OF FIRST
emergency: There was no major blood loss; her life was not in
danger and she was not going to die; she would not lose the limb; the respondents.
leg had a numb sensation and there was an absence of pain
immediately following the injury; and she was neurologically intact.
*733 Opposing that, said the court, was that the witnesses agreed the
cut was extremely serious, possibly bone deep; there was no hospital
in town; the Ashton hospital had no anesthesia facilities; there was
no available ambulance; no police officer or other friends to provide
transportation to a hospital; and reason to believe the "limb was at
risk." Not mentioned by the District Court was the testimony of Dr.
Grindley that a simple dressing would suffice under the
circumstances, and that suturing the wound presented a case of final
repair.
Since there existed a genuine issue of material fact, one that should
have been decided by a trier of fact, such as a jury, the issue should
not have been decided on summary judgment.
The second issue of fact was whether the attendance by the doctor in
this case constituted either ordinary or gross negligence. The
majority, without defining gross negligence in this instance, has
determined that there was no gross negligence on the part of the
defendant doctor. None of the witnesses defined what was meant by
gross negligence. The only definition on which this Court relies is
the following:
Q. Well, in your opinion, if this was a temporary suturing job by Dr.
Batson, did that, in your opinion, constitute gross negligence, gross
malpractice?
A. Well, you see you really haven't told me what gross malpractice
is yet or gross negligence.
Q. Well, it's a heck of a lot worse than ordinary malpractice.
latter assisted by her husband, FRANKLIN G.
GACAL, petitioners,
vs.
PHILIPPINE AIR LINES, INC., and THE HONORABLE
PEDRO SAMSON C. ANIMAS, in his capacity as
INSTANCE OF SOUTH COTABATO, BRANCH I,
PARAS, J.:This is a, petition for review on certiorari of the
decision of the Court of First Instance of South Cotabato, Branch 1,
* promulgated on August 26, 1980 dismissing three (3) consolidated
cases for damages: Civil Case No. 1701, Civil Case No. 1773 and
Civil Case No. 1797 (Rollo, p. 35).
The facts, as found by respondent court, are as follows:
Plaintiffs Franklin G. Gacal and his wife, Corazon
M. Gacal, Bonifacio S. Anislag and his wife,
Mansueta L. Anislag, and the late Elma de
Guzman, were then passengers boarding
defendant's BAC 1-11 at Davao Airport for a flight
to Manila, not knowing that on the same flight,
Macalinog, Taurac Pendatum known as
Commander Zapata, Nasser Omar, Liling Pusuan
Radia, Dimantong Dimarosing and Mike Randa,
all of Marawi City and members of the Moro
National Liberation Front (MNLF), were their co-
passengers, three (3) armed with grenades, two (2)
with .45 caliber pistols, and one with a .22 caliber
pistol. Ten (10) minutes after take off at about 2:30
in the afternoon, the hijackers brandishing their
respective firearms announced the hijacking of the
aircraft and directed its pilot to fly to Libya. With
the pilot explaining to them especially to its leader,
Commander Zapata, of the inherent fuel
limitations of the plane and that they are not rated
for international flights, the hijackers directed the
pilot to fly to Sabah. With the same explanation,
they relented and directed the aircraft to land at
 P a g e | 209

Zamboanga Airport, Zamboanga City for Civil Case No. 1773 —

refueling. The aircraft landed at 3:00 o'clock in the
afternoon of May 21, 1976 at Zamboanga Airport. xxx xxx xxx
When the plane began to taxi at the runway, it was
met by two armored cars of the military with
Civil Case No. 1797 —
machine guns pointed at the plane, and it stopped
there. The rebels thru its commander demanded
that a DC-aircraft take them to Libya with the xxx xxx xxx
President of the defendant company as hostage and
that they be given $375,000 and six (6) armalites, The trial court, on August 26, 1980, dismissed the complaints
otherwise they will blow up the plane if their finding that all the damages sustained in the premises were attributed
demands will not be met by the government and to force majeure.
Philippine Air Lines. Meanwhile, the passengers
were not served any food nor water and it was only On September 12, 1980 the spouses Franklin G. Gacal and Corazon
on May 23, a Sunday, at about 1:00 o'clock in the M. Gacal, plaintiffs in Civil Case No. 1701, filed a notice of appeal
afternoon that they were served 1/4 slice of a with the lower court on pure questions of law (Rollo, p. 55) and the
sandwich and 1/10 cup of PAL water. After that, petition for review on certiorari was filed with this Court on October
relatives of the hijackers were allowed to board the 20, 1980 (Rollo, p. 30).
plane but immediately after they alighted
therefrom, an armored car bumped the stairs. That The Court gave due course to the petition (Rollo, p. 147) and both
commenced the battle between the military and the parties filed their respective briefs but petitioner failed to file reply
hijackers which led ultimately to the liberation of brief which was noted by the Court in the resolution dated May 3,
the surviving crew and the passengers, with the 1982 (Rollo, p. 183).
final score of ten (10) passengers and three (3)
hijackers dead on the spot and three (3) hijackers
Petitioners alleged that the main cause of the unfortunate incident is
captured.
the gross, wanton and inexcusable negligence of respondent Airline
personnel in their failure to frisk the passengers adequately in order
City Fiscal Franklin G. Gacal was unhurt. Mrs. to discover hidden weapons in the bodies of the six (6) hijackers.
Corazon M. Gacal suffered injuries in the course They claimed that despite the prevalence of skyjacking, PAL did not
of her jumping out of the plane when it was use a metal detector which is the most effective means of
peppered with bullets by the army and after two discovering potential skyjackers among the passengers (Rollo, pp. 6-
(2) hand grenades exploded inside the plane. She 7).
was hospitalized at General Santos Doctors
Hospital, General Santos City, for two (2) days,
Respondent Airline averred that in the performance of its obligation
spending P245.60 for hospital and medical
to safely transport passengers as far as human care and foresight can
expenses, Assistant City Fiscal Bonifacio S.
provide, it has exercised the utmost diligence of a very cautious
Anislag also escaped unhurt but Mrs. Anislag
person with due regard to all circumstances, but the security checks
suffered a fracture at the radial bone of her left
and measures and surveillance precautions in all flights, including
elbow for which she was hospitalized and operated
the inspection of baggages and cargo and frisking of passengers at
on at the San Pedro Hospital, Davao City, and
the Davao Airport were performed and rendered solely by military
therefore, at Davao Regional Hospital, Davao
personnel who under appropriate authority had assumed exclusive
City, spending P4,500.00. Elma de Guzman died
jurisdiction over the same in all airports in the Philippines.
because of that battle. Hence, the action of
damages instituted by the plaintiffs demanding the
following damages, to wit: Similarly, the negotiations with the hijackers were a purely
government matter and a military operation, handled by and subject
to the absolute and exclusive jurisdiction of the military authorities.
Civil Case No. 1701 —
Hence, it concluded that the accident that befell RP-C1161 was
caused by fortuitous event, force majeure and other causes beyond
City Fiscal Franklin G. Gacal the control of the respondent Airline.
and Mrs. Corazon M. Gacal —
actual damages: P245.60 for
The determinative issue in this case is whether or not hijacking or air
hospital and medical expenses of
piracy during martial law and under the circumstances obtaining
Mrs Gacal; P8,995.00 for their
herein, is a caso fortuito or force majeure which would exempt an
personal belongings which were
aircraft from payment of damages to its passengers whose lives were
lost and not recovered;
put in jeopardy and whose personal belongings were lost during the
P50,000.00 each for moral
incident.
damages; and P5,000.00 for
attorney's fees, apart from the
prayer for an award of Under the Civil Code, common carriers are required to exercise
exemplary damages (Record, pp. extraordinary diligence in their vigilance over the goods and for the
4-6, Civil Case No. 1701). safety of passengers transported by them, according to all the
circumstances of each case (Article 1733). They are presumed at

fault or to have acted negligently whenever a passenger dies or is
injured (Philippine Airlines, Inc. v. National Labor Relations
Commission, 124 SCRA 583 [1983]) or for the loss, destruction or
deterioration of goods in cases other than those enumerated in
Article 1734 of the Civil Code (Eastern Shipping Lines, Inc. v.
Intermediate Appellate Court, 150 SCRA 463 [1987]).
The source of a common carrier's legal liability is the contract of
carriage, and by entering into said contract, it binds itself to carry the incident of May 21, 1976 by Letter of Instruction No. 399 issued on
passengers safely as far as human care and foresight can provide.
There is breach of this obligation if it fails to exert extraordinary
diligence according to all the circumstances of the case in exercise of Otherwise stated, these events rendered it impossible for PAL to
the utmost diligence of a very cautious person (Isaac v. Ammen
Transportation Co., 101 Phil. 1046 [1957]; Juntilla v. Fontanar, 136 be faulted with negligence in the performance of duty taken over by
SCRA 624 [1985]).
It is the duty of a common carrier to overcome the presumption of
negligence (Philippine National Railways v. Court of Appeals, 139
SCRA 87 [1985]) and it must be shown that the carrier had observed
the required extraordinary diligence of a very cautious person as far
as human care and foresight can provide or that the accident was
caused by a fortuitous event (Estrada v. Consolacion, 71 SCRA 523
[1976]). Thus, as ruled by this Court, no person shall be responsible
for those "events which could not be foreseen or which though
foreseen were inevitable. (Article 1174, Civil Code). The term is
synonymous with caso fortuito (Lasam v. Smith, 45 Phil. 657
[1924]) which is of the same sense as "force majeure" (Words and
Phrases Permanent Edition, Vol. 17, p. 362).
In order to constitute a caso fortuito or force majeure that would
exempt a person from liability under Article 1174 of the Civil Code,
it is necessary that the following elements must concur: (a) the cause
of the breach of the obligation must be independent of the human
will (the will of the debtor or the obligor); (b) the event must be
either unforeseeable or unavoidable; (c) the event must be such as to
render it impossible for the debtor to fulfill his obligation in a
normal manner; and (d) the debtor must be free from any
participation in, or aggravation of the injury to the creditor (Lasam v.
Smith, 45 Phil. 657 [1924]; Austria v. Court of Appeals, 39 SCRA
527 [1971]; Estrada v. Consolacion, supra; Vasquez v. Court of
Appeals, 138 SCRA 553 [1985]; Juan F. Nakpil & Sons v. Court of
Appeals, 144 SCRA 596 [1986]). Caso fortuito or force majeure, by
definition, are extraordinary events not foreseeable or avoidable,
events that could not be foreseen, or which, though foreseen, are
inevitable. It is, therefore, not enough that the event should not have
been foreseen or anticipated, as is commonly believed, but it must be
one impossible to foresee or to avoid. The mere difficulty to foresee
the happening is not impossibility to foresee the same (Republic v.
Luzon Stevedoring Corporation, 21 SCRA 279 [1967]).
Applying the above guidelines to the case at bar, the failure to
transport petitioners safely from Davao to Manila was due to the
skyjacking incident staged by six (6) passengers of the same plane,
all members of the Moro National Liberation Front (MNLF),
without any connection with private respondent, hence, independent
of the will of either the PAL or of its passengers.
Under normal circumstances, PAL might have foreseen the
skyjacking incident which could have been avoided had there been a
more thorough frisking of passengers and inspection of baggages as
authorized by R.A. No. 6235. But the incident in question occurred
P a g e | 210
during Martial Law where there was a military take-over of airport
security including the frisking of passengers and the inspection of
their luggage preparatory to boarding domestic and international
flights. In fact military take-over was specifically announced on
October 20, 1973 by General Jose L. Rancudo, Commanding
General of the Philippine Air Force in a letter to Brig. Gen. Jesus
Singson, then Director of the Civil Aeronautics Administration
(Rollo, pp. 71-72) later confirmed shortly before the hijacking
April 28, 1976 (Rollo, p. 72).
perform its obligations in a nominal manner and obviously it cannot
the Armed Forces of the Philippines to the exclusion of the former.
Finally, there is no dispute that the fourth element has also been
satisfied. Consequently the existence of force majeure has been
established exempting respondent PAL from the payment of
damages to its passengers who suffered death or injuries in their
persons and for loss of their baggages.
PREMISES CONSIDERED, the petition is hereby DISMISSED for
lack of merit and the decision of the Court of First Instance of South
Cotabato, Branch I is hereby AFFIRMED.
SO ORDERED.
G.R. No. 122445 November 18, 1997
DR. NINEVETCH CRUZ, petitioner,
vs.
COURT OF APPEALS and LYDIA UMALI, respondents.
FRANCISCO, J.:
Doctors are protected by a special rule of law. They are not
guarantors of care. They do not even warrant a good result. They are
not insurers against mishaps or unusual consequences. Furthermore
they are not liable for honest mistakes of judgment . . . 1
The present case against petitioner is in the nature of a medical
malpractice suit, which in simplest terms 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 caused 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 above named, 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 room. After the lapse of a few hours, the petitioner informed them
a decision, the dispositive portion of which is hereunder quoted as
follows:
WHEREFORE, the court finds the accused Dra.
Lina Ercillo not guilty of the offense charged for blood for Lydia. Unfortunately, they were not able to comply with
insufficiency of evidence while her co-accused
Dra. Ninevetch Cruz is hereby held responsible for the blood bank. Thereafter, a person arrived to donate blood which
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 driver of the accused had to go to the San Pablo District Hospital to
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 abdominal incision. 19 The attending physicians summoned Dr.
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 negligent in the performance of the operation:
March 22, 1991 as the latter was to be operated on the next day at
P a g e | 211
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
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
petitioner's order as there was no more type "A" blood available in
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
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 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
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 the 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

. . . , 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 Dra. 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 "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:
. . . 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
P a g e | 212
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 a
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. Pascasio, 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.
 P a g e | 213

It is in this aspect of medical malpractice that expert testimony is the part of the surgeon as well as a causal connection of such breach
essential to establish not only the standard of care of the profession and the resulting death of his patient. 33 In Chan Lugay v. St. Luke's
but also that the physician's conduct in the treatment and care falls Hospital, Inc., 34 where the attending physician was absolved of
below such standard. 28 Further, inasmuch as the causes of the liability for the death of the complainant's wife and newborn baby,
injuries involved in malpractice actions are determinable only in the this Court held that:
light of scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as to In order that there may be a recovery for an injury,
causation. 29 however, it must be shown that the "injury for
which recovery is sought must be the legitimate
Immediately apparent from a review of the records of this case is the consequence of the wrong done; the connection
absence of any expert testimony on the matter of the standard of care between the negligence and the injury must be a
employed by other physicians of good standing in the conduct of direct and natural sequence of events, unbroken by
similar operations. The prosecution's expert witnesses in the persons intervening efficient causes." In other words, the
of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National negligence must be the proximate cause of the
Bureau of Investigation (NBI) only testified as to the possible cause injury. For, "negligence, no matter in what it
of death but did not venture to illuminate the court on the matter of consists, cannot create a right of action unless it is
the standard of care that petitioner should have exercised. the proximate cause of the injury complained of ."
And "the proximate cause of an injury is that
All three courts below bewail the inadequacy of the facilities of the cause, which, in natural and continuous sequence,
clinic and its untidiness; the lack of provisions such as blood, unbroken by any efficient intervening cause,
oxygen, and certain medicines; the failure to subject the patient to a produces the injury, and without which the result
cardio-pulmonary test prior to the operation; the omission of any would not have occurred." 35 (Emphasis
form of blood typing before transfusion; and even the subsequent supplied.)
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 Dr. Arizala who conducted an autopsy on the body of the deceased
circumstances pointed out by the courts below seemed beyond cavil summarized his findings as follows:
to constitute reckless imprudence on the part of the surgeon, this
conclusion is still best arrived at not through the educated surmises Atty. Cachero:
nor conjectures of laymen, including judges, but by the
unquestionable knowledge of expert witnesses. For whether a
Q. You mentioned about your
physician or surgeon has exercised the requisite degree of skill and
Autopsy Report which has been
care in the treatment of his patient is, in the generality of cases, a
marked as Exh. "A-1-b". There
matter of expert opinion. 30 The deference of courts to the expert
appears here a signature above
opinion of qualified physicians stems from its realization that the the typewritten name Floresto
latter possess unusual technical skills which laymen in most Arizala, Jr., whose signature is
instances are incapable of intelligently evaluating. 31 Expert
that?
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 A. That is my signature, sir.
when performing the same operation. It must be remembered that
when the qualifications of a physician are admitted, as in the instant Q. Do you affirm the truth of all
case, there is an inevitable presumption that in proper cases he takes the contents of Exh. "A-1-b"?
the necessary precaution and employs the best of his knowledge and
skill in attending to his clients, unless the contrary is sufficiently A. Only as to the autopsy report
established. 32 This presumption is rebuttable by expert opinion no. 91-09, the time and place
which is so sadly lacking in the case at bench. and everything after the post
mortem findings, sir.
Even granting arguendo that the inadequacy of the facilities and
untidiness of the clinic; the lack of provisions; the failure to conduct Q. You mentioned on your "Post
pre-operation tests on the patient; and the subsequent transfer of Mortem Findings" about surgical
Lydia to the San Pablo Hospital and the reoperation performed on incision, 14:0 cm.,
her by the petitioner do indicate, even without expert testimony, that infraumbilical area, anterior
petitioner was recklessly imprudent in the exercise of her duties as a abdominal area, midline, will
surgeon, no cogent proof exists that any of these circumstances you please explain that in your
caused petitioner's death. Thus, the absence of the fourth element of own language?
reckless imprudence: that the injury to the person or property was a
consequence of the reckless imprudence. A. There was incision wound
(sic) the area just below the
In litigations involving medical negligence, the plaintiff has the navel, sir.
burden of establishing appellant's negligence and for a reasonable
conclusion of negligence, there must be proof of breach of duty on

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.
Hemoperitone
um: 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?
P a g e | 214
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 (Emphasis 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.
 P a g e | 215

Q. Have you also examined the hemorrhagic shock during surgery may be caused by several
post mortem of Dr. Arizala? different factors. Thus, Dr. Salvador's elaboration on the matter:

A. Yes, sir, and by virtue of the Atty. Pascual:

autopsy report in connection
with your pathology report. Q. Doctor, among the causes of
hemorrhage that you mentioned
Q. What could have caused the you said that it could be at the
death of the victim? moment of operation when one
losses (sic) control of the
A. This pathologic examination presence, is that correct? During
are (sic) compatible with the the operation there is lost (sic) of
person who died, sir. control of the cut vessel?

Q. Will you explain to us the A. Yes, sir.

meaning of hemorrhagic
compatible? Q. Or there is a failure to ligate a
vessel of considerable size?
A. It means that a person died of
blood loss. Meaning a person A. Yes, sir.
died of non-replacement of
blood and so the victim before Q. Or even if the vessel were
she died there was shock of ligated the knot may have
diminish of blood of the slipped later on?
circulation. She died most
probably before the actual A. Yes, sir.
complete blood loss, sir.
Q. And you also mentioned that
Court: Is it possible doctor that
it may be possible also to some
the loss of the blood was due on clotting defect, is that correct?
(sic) operation?
A. May be (sic). 38 (Emphasis
A. Based on my pathologist
supplied).
finding, sir.
Defense witness, Dr. Bu C. Castro also gave the following expert
Q. What could have caused this
opinion:
loss of blood?
Q. Doctor even a patient after
A. Many, sir. A patient who have an operations (sic) would suffer
undergone surgery. Another may hemorrage what would be the
be a blood vessel may be cut
possible causes of such
while on operation and this
hemorrage (sic)?
cause (sic) bleeding, or may be
set in the course of operation, or
may be (sic) he died after the A. Among those would be what
operation. Of course there are we call Intravascular
other cause (sic). Coagulation and this is the
reason for the bleeding, sir,
which cannot be prevented by
Atty. Cachero:
anyone, it will happen to
anyone, anytime and to any
Q. Especially so doctor when persons (sic), sir.
there was no blood replacement?
COURT:
A. Yes, sir. 37 (Emphasis
supplied.)
What do you think of the cause
of the bleeding, the cutting or
The testimonies of both doctors establish hemorrhage or the operations done in the body?
hemorrhagic shock as the cause of death. However, as likewise
testified to by the expert witnesses in open court, hemorrhage or

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..
xxx xxx xxx
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 (Emphasis
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
P a g e | 216
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 that circumstance
one of the possibility as you
mentioned in (sic) DIC?
A. Yes, sir.
Q. And you mentioned that this
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
 P a g e | 217

less says (sic) what part are (sic) Nevertheless, this Court finds the petitioner civilly liable for the
concerned could have been the death of Lydia Umali, for while a conviction of a crime requires
caused (sic) of death of this proof beyond reasonable doubt, only a preponderance of evidence is
Lydia Umali? required to establish civil liability. 45

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?
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 ordered to pay the heirs of the deceased
We will moved (sic) to strike out
the (sic) based on finding they Lydia Umali the amount of FIFTY THOUSAND PESOS
just read the chart as well as the (P50,000.00) as civil liability, ONE HUNDRED THOUSAND
PESOS (P100,000.00) as moral damages, and FIFTY THOUSAND
other record.
PESOS (P50,000.00) as exemplary damages.
ATTY. PASCUAL:
Let a copy of this decision be furnished to the Professional
Regulation Commission (PRC) for appropriate action.
Precisely based on this
examination.
SO ORDERED.
ATTY. MALVEDA:

Not finding, there was no

finding made.

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.
P a g e | 218