G.R. No.

86890 January 21, 1994

LEANDRO CARILLO vs. PEOPLE OF THE PHIL.
THIRD DIVISION
[G.R. No. 86890. January 21, 1994.]
LEANDRO CARILLO, petitioner, vs. PEOPLE OF THE PHILIPPINES,
respondent.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; PETITION FOR REVIEW ON
CERTIORARI; ONLY QUESTIONS OF LAW MAY BE RAISED THEREOF. Two
(2) related issues are thus posed for the Court's consideration. The first is
whether the Court of Appeals so drastically "misapprehended" the relevant,
operative facts in this case as to compel this Court to examine and resolve
question(s) of fact which would have a decisive significance for the
disposition of this case. The rule is too firmly settled to require much
documentation that only questions of law may be raised before this Court in a
petition for review on certiorari, subject to certain well-known exceptions.
After careful scrutiny of petitioner's contentions before us and the record of
this case, we do not believe that petitioner has shown "misapprehension of
facts" on the part of the Court of Appeals which would require this Court to
overturn the judgment reached by the former.
2. CRIMINAL LAW; SIMPLE NEGLIGENCE; DEFINED; APPLICATION IN
CASE AT BAR. As early as in People v. Vistan, the Court defined simple
negligence, penalized under what is now Article 365 of the Revised Penal
Code, as "a mere lack of prevision in a situation where either the threatened
harm is not immediate or the danger not openly visible." Put in a slightly
different way, the gravamen of the offense of simple negligence is the failure
to exercise the diligence necessitated or called for by the situation which was
not immediately life-destructive but which culminated, in the present case, in
the death of a human being three (3) days later. Such failure to exercise the
necessary degree of care and diligence is a negative ingredient of the offense
charged. The rule in such cases is that while the prosecution must prove the
negative ingredient of the offense, it needs only to present the best evidence
procurable under the circumstances, in order to shift the burden of
disproving or countering the proof of the negative ingredient to the accused,
provided that such initial evidence establishes at least on a prima facie basis
the guilt of the accused. This rule is particularly applicable where the
negative ingredient of the offense is of such a nature or character as, under
the circumstances, to be specially within the knowledge or control of the
accused. In the instant case, the Court is bound to observe that the events
which occurred during the surgical procedure (including whether or not
Nubain had in fact been administered as an anaesthesia immediately before
or during the surgery) were peculiarly within the knowledge and control of
Dr. Carillo and Dr. Madrid. It was, therefore, incumbent upon the two (2)
accused to overturn the prima facie case which the prosecution had
established, by reciting the measures which they had actually taken to
prevent or to counter the obviously serious condition of Catherine Acosta
which was evident right after surgery. This they failed or refused to do. Still
another circumstance of which account must be taken is that both petitioner
and Dr. Madrid failed to inform the parents of their minor patient of the
nature of her illness, or to explain to them either during the surgery (if
feasible) or at any time after the surgery, the events which comprised the
dramatic deterioration of her condition immediately after surgery as
compared with her pre-surgery condition. To give a truthful explanation to
the parents was a duty imposed upon them by the canons of their profession.
Petitioner should have explained to Catherine's parents the actual
circumstances surrounding Catherine's death, how, in other words, a simple
appendectomy procedure upon an ambulatory patient could have led to such
fatal consequences. By way of resume, in the case at bar, we consider that the
chain of circumstances above noted, namely: (1) the failure of petitioner and
Dr. Madrid to appreciate the serious post-surgery condition of their patient
and to monitor her condition and provide close patient care to her; (2) the
summons of petitioner by Dr. Madrid and the cardiologist after the patient's
heart attack on the very evening that the surgery was completed; (3) the low
level of care and diligence exhibited by petitioner in failing to correct Dr.
Madrid's prescription of Nubain for post-operative pain; (4) the
extraordinary failure or refusal of petitioner and Dr. Madrid to inform the
parents of Catherine Acosta of her true condition after surgery, in disregard
of the requirements of the Code of Medical Ethics; and (5) the failure of
petitioner and Dr. Madrid to prove that they had in fact exercised the
necessary and appropriate degree of care and diligence to prevent the
sudden decline in the condition of Catherine Acosta and her death three (3)
days later, leads the Court to the conclusion, with moral certainty, that
petitioner and Dr. Madrid were guilty of simple negligence resulting in
homicide.
3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF DUE PROCESS
OF LAW AND RIGHT TO COUNSEL; OBSERVED IN CASE AT BAR. In
addition to the main arguments raised by petitioner earlier, he also raised an
ancillary, constitutional claim of denial of due process. He contends that he
was deprived of his right to have competent representation at trial, and to
have his cause adequately heard, because his counsel of record, Atty. Jose B.
Puerto, was "incompetent" and exhibited "gross negligence" by manifesting
an intent to file a demurrer to the evidence, in failing to present evidence in
his behalf and in omitting to file a defense memorandum for the benefit of
Judge Yuzon, after the latter took over the case at the end of trial and before
the Judge rendered his decision. Petitioner submits he is entitled to a new
trial. These contentions do not persuade. An examination of the record
indicates that Atty. Puerto represented petitioner during trial with
reasonable competence. Except for the two hearing sessions when witnesses
Domingo Acosta was cross-examined and recross-examined by Atty. Puerto,
petitioner was present during all the sessions when the other prosecution
witnesses were presented and during which Atty. Puerto extensively cross-
examined them in behalf of petitioner and Dr. Madrid. This counsel elicited
from the two (2) expert witnesses for the prosecution testimony favorable to
petitioner and which was relied upon by the latter in this proceeding. The
record further indicates that if petitioner indeed entertained substantial
doubts about the capability of Atty. Puerto, he could have easily terminated
the services of that counsel and retained a new one, or sought from the trial
court the appointment of counsel de oficio, during the ample opportunity
given him from the time Atty. Puerto manifested his intent to file a demurrer
on 16 October 1985, to the submission of the case for decision on 25 June
1986 and before the promulgation of judgment on 19 September 1986.
During all this time, petitioner could have obtained leave of court to present
evidence in his behalf in lieu of a demurrer, or to submit a memorandum for
the defense. After promulgation of the judgment of conviction, petitioner did
not seek a new trial, but permitted Atty. Puerto to obtain leave from the trial
court to continue on bail during the pendency of the proceedings before the
Court of Appeals. Indeed, petitioner replaced Atty. Puerto as counsel only
upon institution of the present petition.
D E C I S I O N
FELICIANO, J p:
Petitioner Dr. Leandro Carillo, an anesthetist, seeks review of the Decision of
the Court of Appeals dated 28 November 1988, which affirmed his conviction
by the Regional Trial Court of the crime of simple negligence resulting in
homicide, for the death of his thirteen (13) year old patient Catherine Acosta.
The trial court had sentenced him to suffer the penalty of arresto mayor in its
medium period (four [4] months' imprisonment), as well as to pay the heirs
of his patient an indemnity of P30,000.00 for her death, P10,000.00 as
reimbursement for actual expenses incurred, P50,000.00 as moral damages
and to pay the costs of the suit.
The information filed against petitioner and his co-accused, the surgeon Dr.
Emilio Madrid, alleged the following: Cdpr
"That on or about the 31st day of May 1981, in the municipality of Paraaque,
Metro Manila, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together and
mutually helping and aiding with one another, without taking the necessary
care and precaution to avoid injury to person, did then and there willfully,
unlawfully and feloniously operate, in a reckless, careless and imprudent
manner and neglected to exercise their respective medical knowhow and
tasks and/or departed from the recognized standard in their treatment,
diagnosis of the condition, and operation of the patient, one Catherine Acosta,
13 years old, which negligence caused the death of the said Catherine Acosta."
Petitioner and Dr. Emilio Madrid entered pleas of not guilty at arraignment
and the case proceeded to trial with Judge Job B. Madayag presiding.
The prosecution presented as its principal evidence the testimony of four (4)
witnesses, namely : 1) Yolanda Acosta, Catherine's mother, who was able to
observe the conduct of the accused outside the operating theater before,
during and after the appendectomy procedure carried out on her daughter; 4
2) Domingo Acosta, Catherine's father, who corroborated some parts of his
wife's testimony; 3) Dr. Horacio Buendia, an expert witness who described
before the trial court the relationship between a surgeon and an anesthetist
in the course of a surgical operation, as well as define the likelihood of
cardiac arrest as a post operative complication; and 4) Dr. Nieto Salvador, an
expert witness who analyzed and explained the significance of the results of
the pathological study and autopsy conducted on Catherine's body by one Dr.
Alberto Reyes.
After the prosecution had rested its case, the defense was granted leave to file
a demurrer to the evidence. 8 After failing to file the demurrer within the
reglementary period, Judge Manuel Yuzon, who had in the meantime taken
over as presiding judge of the sala where this case was pending, denied the
defense motion for extension of time to file demurrer and declared the case
submitted for decision.
On 19 September 1985, the trial court promulgated its decision convicting
both accused of the crime charged.
On appeal, the Court of Appeals affirmed the judgment of conviction, and
specified that the civil liability of the two (2) accused was solidary in nature.
Petitioner Dr. Carillo alone filed the present Petition for Review with the
Court, seeking reversal of his conviction, or in the alternative, the grant of a
new trial. Dr. Madrid did not try to appeal further the Court of Appeals
Decision. Accordingly, the judgment of conviction became final insofar as the
accused surgeon Dr. Madrid is concerned.
The facts of the case as established by the Court of Appeals are as follows:
"The deceased, Catherine Acosta, a 13 year old girl, daughter of spouses
Domingo and Yolanda Acosta, complained to her father at about 10:30 o'clock
in the morning of May 31, 1981 of pains in the lower part of her abdomen.
Catherine was then brought to Dr. Elva Pea. Dra. Pea called for Dr. Emilio
Madrid and the latter examined Catherine Acosta. According to Dr. Madrid,
his findings might be appendicitis. Then Dr. Pea told Catherine's parents to
bring the child to the hospital in Baclaran so that the child will be observed.
At the Baclaran General Hospital, a nurse took blood sample from the child.
The findings became known at around 3:00 o'clock in the afternoon and the
child was scheduled for operation at 5:00 o'clock in the afternoon. The
operation took place at 5:45 P.M. because Dr. Madrid arrived only at that
time.
When brought inside the operating room, the child was feeling very well and
they did not subject the child to ECG (electrocardiogram) and X-ray.
The appellant Dr. Emilio Madrid, a surgeon, operated on Catherine. He was
assisted by appellant, Dr. Leandro Carillo, an anesthesiologist.
During the operation, while Yolanda Acosta, Catherine's mother, was staying
outside the operating room, she 'noticed something very unfamiliar.' The
three nurses who assisted in the operation were going in and out of the
operating room, they were not carrying anything, but in going out of the
operating room, they were already holding something.
Yolanda asked one of the nurses if she could enter the operating room but she
was refused. Cdpr
At around 6:30 P.M., Dr. Emilio Madrid went outside the operating room and
Yolanda Acosta was allowed to enter the first door.
The appendicitis (sic) was shown to them by Dr. Madrid, because, according
to Dr. Madrid, they might be wondering because he was going to install
drainage near the operating (sic) portion of the child.
When asked, the doctor told them the child is already out of danger but the
operation was not yet finished.
It has also been established that the deceased was not weighed before the
administration of anesthesia on her.
The operation was finished at 7:00 o'clock in the evening and when the child
was brought out from the operating room, she was observed to be shivering
(nanginginig); her heart beat was not normal; she was asleep and did not
wake up; she was pale; and as if she had difficulty in breathing and Dr. Emilio
Madrid suggested that she be placed under oxygen tank; that oxygen was
administered to the child when she was already in the room.
Witness Yolanda Acosta further testified that shortly before her child was
transferred from the operating room to her room, she (witness) was
requested by the anesthesiologist to go home and get a blanket. A portion of
Yolanda Acosta's testimony on what happened when she returned to the
hospital are reproduced hereunder as follows:
'Q. What happened afterward?
A. When I arrived in the hospital, my child was being transferred to her
bed.
Q. What else happened?
A. I noticed that the heartbeat of my daughter was not normal. And I
noticed that her hospital gown was rising up and down.
Q. What transpired after that?
A. I asked Dr. Madrid why it was like that, that the heartbeat of my
daughter is not normal.
Q. And did the doctor make any reply?
A. The doctor said because of the lesion of the child.
Q. What else happened?
A. After they have revived the heartbeat of the child, Dr. Carillo and Dr.
Madrid left.
Q. Now do you remember what time was it when Dr. Carillo stepped
out?
A. Only a minute after they have transferred the child to the bed.
Q. What happened later on after Dr. Carillo and Dr. Madrid stepped out
of the hospital?
A. After 15 or 30 minutes has lapsed at about 7:15 or 7:30, the child
developed convulsion and stiffening of the body.
Q. When you observed convulsion and stiffening of the body, did you do
anything?
A. We requested the nurse who was attending to her to call for a doctor.
cdphil
Q. And the nurse who was attending to the patient called for a doctor?
A. They called for Dra. Pea, their family physician.
Q. What transpired afterwards?
A. What Dra. Pea did was to call for Dr. Madrid and the cardiologist.
Q. Did this doctor arrive?
A. Yes.
Q. What transpired after the doctor arrived?
A. They examined the child.
Q. After they examined the child, did they inform you of the result of the
examination?
A. The cardiologist was the one who informed us after he stepped out of
the room when we followed him. The doctor told us that she suffered severe
infection which went up to her head.
Q. After you were informed of the result of his examination, what
transpired next?
A. According to them, they will do their best for the child and that they
will call for Dr. Carillo.
Q. Did Dr. Carillo arrive?
A. At around 10:30 in the evening.
Q. Did Dr. Carillo do anything when he arrived on 31 May 1981?
A. When he arrived, he noticed that there were two small bottles and
big bottles of dextrose which were hanging above the bed of the child. Then
he said, 'What is this? Christmas tree or what?' He told us that one bottle of
dextrose be removed. And the big one will remain.
Q. What happened after that?
A. After that we talked to Dr. Carillo and asked him how did this happen
to the child.
Q. What did Dr. Carillo reply (sic) to you?
A. He answered 'that is nothing, the child will regain consciousness and
if the child will not regain consciousness, I will resigned (sic) as a doctor.'"
12
(Underscoring supplied).
When Catherine remained unconscious until noontime the next day, a
neurologist examined her and she was diagnosed as comatose. 13 Three (3)
days later, Catherine died without regaining consciousness. 14
The Court of Appeals held that Catherine had suffered from an overdose of, or
an adverse reaction to, anaesthesia, particularly the arbitrary administration
of Nubain, a pain killer, without benefit of prior weighing of the patient's
body mass, which weight determines the dosage of Nubain which can safely
be given to a patient. 15 The Court of Appeals held that this condition
triggered off a heart attack as a post-operative complication, depriving
Catherine's brain of oxygen, leading to the brain's hemorrhage. 16 The Court
of Appeals identified such cardiac arrest as the immediate cause of
Catherine's death.
The Court of Appeals found criminal negligence on the part of petitioner Dr.
Carillo and his co-accused Dr. Madrid, holding that both had failed to observe
the required standard of diligence in the examination of Catherine prior to
the actual administration of anaesthesia; 18 that it was "a bit rash" on the
part of the accused Dr. Carillo "to have administered Nubain without first
weighing Catherine"; 19 and that it was an act of negligence on the part of
both doctors when, (a) they failed to monitor Catherine's heartbeat after the
operation and (b) they left the hospital immediately after reviving
Catherine's heartbeat, depriving the latter of immediate and expert medical
assistance when she suffered a heart attack approximately fifteen (15) to
thirty (30) minutes later.
Since neither petitioner nor his co-accused presented evidence in their own
behalf, the present Petition seeks to question the soundness of the factual
conclusions drawn by the Court of Appeals, upon which the affirmance of
petitioner's conviction was based. LibLex
Close examination of the instant Petition for Review shows that petitioner's
main arguments are two-fold : (1) the Court of Appeals "completely brushed
aside" and "misapprehended" Catherine's death certificate and biopsy report
which allegedly showed that the cause of death was a ruptured appendix,
which led to blood poisoning, rather than faulty anaesthetic treatment; and
(2) there was no direct evidence of record showing that Nubain was
administered to Catherine either during the appendectomy procedure or
after such operation.
Two (2) related issues are thus posed for the Court's consideration. The first
is whether the Court of Appeals so drastically "misapprehended" the
relevant, operative facts in this case as to compel this Court to examine and
resolve question(s) of fact which would have a decisive significance for the
disposition of this case. The rule is too firmly settled to require much
documentation that only questions of law may be raised before this Court in a
petition for review on certiorari, subject to certain well-known exceptions.
23 After careful scrutiny of petitioner's contentions before us and the record
of this case, we do not believe that petitioner has shown "misapprehension of
facts" on the part of the Court of Appeals which would require this Court to
overturn the judgment reached by the former.
The second issue is whether or not the findings of fact of the Court of Appeals
adequately support the conclusion that petitioner Dr. Carillo was, along with
Dr. Madrid, guilty of simple negligence which resulted in homicide. Our
review of the record leads us to an affirmative answer.
Petitioner contends that the Court of Appeals seriously erred in finding that
an overdose of, or an allergic reaction to, the anaesthetic drug Nubain had led
to the death of Catherine Acosta and that the true cause of Catherine's death
was that set out in the death certificate of Catherine : "Septicemia (or blood
poisoning) due to perforated appendix with peritonitis." 24 The concept of
causation in general, and of the cause of death in human beings in particular,
are complex and difficult notions. What is fairly clear is that death,
understood as a physical condition involving cessation of vital signs in the
brain and heart, is preceded by a series of physiological events, any one of
which events can, with equal cogency, be described as a "cause of death." The
Court of Appeals found that an overdose of, or an adverse reaction to, Nubain,
an anaesthetic or pain-killing drug the appropriate dose of which depends on
the body weight or mass of the patient, had generated or triggered off cardiac
arrest, which in turn led to lack of oxygen in Catherine's brain, which then
brought about hemorrhaging in the brain. Vital activity in the brain
thereupon ceased. The medical evidence presented at the trial was quite
consistent with the findings of the Court of Appeals which concluded that
cardiac arrest was the cause of Catherine's death.
For his part, petitioner insists that cardiac arrest is not the only cause of
oxygen-starvation of the brain, that septicemia with peritonitis or severe
infection which had "gone up to the head" of Catherine was an equally
efficient cause of deprivation of the brain of oxygen and hence of brain
hemorrhage. The medical testimony of the expert witnesses for the
prosecution on which petitioner relies is also consistent with petitioner's
theory that septicemia with peritonitis was, or at least could have been, the
cause of Catherine's death.
Indeed, it appears to the Court that there was no medical proof submitted to
the trial court to show that one or the other "cause" was necessarily an
exclusive cause of death in the case of Catherine Acosta; that an overdose of
or allergic reaction to Nubain could not have combined with septicemia and
peritonitis in bringing about Catherine's death. Cdpr
What is of critical importance for present purposes is not so much the
identification of the "true cause" or "real cause" of Catherine's death but
rather the set of circumstances which both the trial court and the Court of
Appeals found constituted simple (as distinguished from reckless) negligence
on the part of the two accused Dr. Madrid and Dr. Carillo leading to the death
of Catherine.
When the patient was wheeled out of the operating room after completion of
surgery, she manifested signs of medical instability (i.e., shivering, paleness,
irregular breathing and weak heart beat). She was not brought to a properly
equipped recovery room, or intensive care unit which the hospital lacked.
Such facilities and their professional staffs, of which an anaesthetist is
commonly a part, are essential for providing close observation and patient
care while a post-surgery patient is recovering from the effects of anaesthesia
and while the normal protective mechanisms are still dull or obtunded.
Instead, the patient was merely brought to her assigned hospital bed and was
provided oxygen on the instructions of Dr. Madrid and where both petitioner
and Dr. Madrid then "revived" her heartbeat. 30 Both doctors then left their
patient and the hospital; approximately fifteen minutes later, she suffered
convulsions and cardiac arrest.
The conduct of Dr. Madrid and of the petitioner constituted inadequate care
of their patient in view of her vulnerable condition. Both doctors failed to
appreciate the serious condition of their patient whose adverse physical signs
were quite manifest right after surgery. And after reviving her heartbeat,
both doctors failed to monitor their patient closely or extend further medical
care to her; such conduct was especially necessary in view of the inadequate,
post-operative facilities of the hospital. We do not, of course, seek to hold
petitioner responsible for the inadequate facilities of the Baclaran General
Hospital. We consider, however, that the inadequate nature of those facilities
did impose a somewhat higher standard of professional diligence upon the
accused surgeon and anaesthetist personally than would have been called for
in a modern fully-equipped hospital.
While Dr. Madrid and a cardiologist were containing the patient's
convulsions, and after the latter had diagnosed that infection had reached the
patient's head, these two (2) apparently after consultation, decided to call-in
the petitioner. 32 There is here a strong implication that the patient's post-
operative condition must have been considered by the two (2) doctors as in
some way related to the anaesthetic treatment she had received from the
petitioner either during or after the surgical procedure.
Once summoned, petitioner anaesthesiologist could not be readily found.
When he finally appeared at 10:30 in the evening, he was evidently in a bad
temper, commenting critically on the dextrose bottles before ordering their
removal. 33 This circumstance indicated he was not disposed to attend to
this unexpected call, in violation of the canons of his profession that as a
physician, he should serve the interest of his patient "with the greatest of
solicitude, giving them always his best talent and skill." 34 Indeed, when
petitioner finally saw his patient, he offered the unprofessional bluster to the
parents of Catherine that he would resign if the patient will not regain
consciousness. 35 The canons of medical ethics require a physician to "attend
to his patients faithfully and conscientiously." He should secure for them all
possible benefits that may depend upon his professional skill and care. As the
sole tribunal to adjudge the physician's failure to fulfill his obligation to his
patient is, in most cases, his own conscience, violation of this rule on his part
is "discreditable and inexcusable."
Nubain was an experimental drug for anaesthesia and post-operative pain
and the medical literature required that a patient be weighed first before it is
administered and warned that there was no (or inadequate) experience
relating to the administration thereof to a patient less than eighteen (18)
years of age. 37 Yet, the doctor's order sheet (Exhibit "C") did not contain this
precaution but instead directed a reader to apply the drug only when
warranted by the circumstances. 38 During the offer of Exhibit "C" by the
prosecution, Dr. Madrid admitted that this prescription, which was unsigned,
was made in his own handwriting. 39 It must be observed that the instruction
was open-ended in that some other individual still had to determine if
circumstances existed warranting administration of the drug to the patient.
The document thus indicated the abdication of medical responsibility on an
extremely critical matter. Since petitioner anaesthesiologist entered
subsequent prescriptions or orders in the same order sheet, which were
signed by him, at 7:15 P.M. on the same evening of 31 May 1981, he was in a
position to appreciate the dangers inherent in the prior prescription, which
was within his (petitioner's) area of specialization, and to order measures to
correct this anomaly and protect his patient's well-being. So far as the
condition of the evidence shows, he failed to do so. In sum, only a low level of
diligence was exhibited by petitioner and Dr. Madrid in the prescription of
medication for their patient.
As noted earlier, petitioner relied heavily in this proceeding on the testimony
on cross-examination of the expert witnesses for the prosecution to show
that blood poisoning resulting from a ruptured appendix could also be
responsible for the patient's death.
No suggestion has been made that the rupture of the patient's occurred prior
to surgery. After her blood sample was examined, the patient was merely
diagnosed as a case of appendicitis, without further elaboration. 40 No
intensive preoperative preparations, like the immediate administration of
antibiotics, was thereafter undertaken on the patient. This is a standard
procedure for patients who are, after being diagnosed, suspected of suffering
from a perforated appendix and consequent peritonitis. The mother also
testified that petitioner anaesthesiologist merely injected a drug, "pre-
anaesthesia" intended to put the patient to sleep, into the container of fluids
being administered to her daughter intravenously at her room, prior to
surgery. We note further that the surgeon Dr. Madrid was forty-five minutes
late in arriving at the operating theater. Considering that delay in treatment
of appendicitis increases the morbidity of the patient, Dr. Madrid's conduct
can only be explained by a pre-operative diagnosis on his part that the
condition of appendicitis was not yet attended by complications (i.e., a
ruptured appendix and peritonitis).
The above circumstances do strongly indicate that the rupture of the
patient's appendix occurred during the appendectomy procedure, that is, at a
time and place the operating room where the two (2) accused were in
full control of the situation and could determine decisively what needed to be
done in respect of the patient. 45 This circumstance must be considered in
conjunction with other related circumstances which the prosecution had
proven: that the patient was ambulatory when brought to the operating
room; 46 that she left the operating room two (2) hours later in obviously
serious condition; and that an appendectomy accompanied or followed by
sustained antibiotic treatment is a fairly common and generally accepted
medical procedure for dealing with ruptured appendix and peritonitis, a fact
of which judicial notice may be taken.
As early as in People v. Vistan, the Court defined simple negligence,
penalized under what is now Article 365 of the Revised Penal Code, as "a
mere lack of prevision in a situation where either the threatened harm is not
immediate or the danger not openly visible." Put in a slightly different way,
the gravamen of the offense of simple negligence is the failure to exercise the
diligence necessitated or called for by the situation which was not
immediately life-destructive but which culminated, in the present case, in the
death of a human being three (3) days later. Such failure to exercise the
necessary degree of care and diligence is a negative ingredient of the offense
charged. The rule in such cases is that while the prosecution must prove the
negative ingredient of the offense, it needs only to present the best evidence
procurable under the circumstances, in order to shift the burden of
disproving or countering the proof of the negative ingredient to the accused,
provided that such initial evidence establishes at least on a prima facie basis
the guilt of the accused. This rule is particularly applicable where the
negative ingredient of the offense is of such a nature or character as, under
the circumstances, to be specially within the knowledge or control of the
accused. In the instant case, the Court is bound to observe that the events
which occurred during the surgical procedure (including whether or not
Nubain had in fact been administered as an anaesthesia immediately before
or during the surgery) were peculiarly within the knowledge and control of
Dr. Carillo and Dr. Madrid. It was, therefore, incumbent upon the two (2)
accused to overturn the prima facie case which the prosecution had
established, by reciting the measures which they had actually taken to
prevent or to counter the obviously serious condition of Catherine Acosta
which was evident right after surgery. This they failed or refused to do.
Still another circumstance of which account must be taken is that both
petitioner and Dr. Madrid failed to inform the parents of their minor patient
of the nature of her illness, or to explain to them either during the surgery (if
feasible) or at any time after the surgery, the events which comprised the
dramatic deterioration of her condition immediately after surgery as
compared with her pre-surgery condition. To give a truthful explanation to
the parents was a duty imposed upon them by the canons of their profession.
Petitioner should have explained to Catherine's parents the actual
circumstances surrounding Catherine's death, how, in other words, a simple
appendectomy procedure upon an ambulatory patient could have led to such
fatal consequences.
By way of resume, in the case at bar, we consider that the chain of
circumstances above noted, namely: (1) the failure of petitioner and Dr.
Madrid to appreciate the serious post-surgery condition of their patient and
to monitor her condition and provide close patient care to her; (2) the
summons of petitioner by Dr. Madrid and the cardiologist after the patient's
heart attack on the very evening that the surgery was completed; (3) the low
level of care and diligence exhibited by petitioner in failing to correct Dr.
Madrid's prescription of Nubain for post-operative pain; (4) the
extraordinary failure or refusal of petitioner and Dr. Madrid to inform the
parents of Catherine Acosta of her true condition after surgery, in disregard
of the requirements of the Code of Medical Ethics; and (5) the failure of
petitioner and Dr. Madrid to prove that they had in fact exercised the
necessary and appropriate degree of care and diligence to prevent the
sudden decline in the condition of Catherine Acosta and her death three (3)
days later, leads the Court to the conclusion, with moral certainty, that
petitioner and Dr. Madrid were guilty of simple negligence resulting in
homicide.
In addition to the main arguments raised by petitioner earlier, he also raised
an ancillary, constitutional claim of denial of due process. He contends that he
was deprived of his right to have competent representation at trial, and to
have his cause adequately heard, because his counsel of record, Atty. Jose B.
Puerto, was "incompetent" and exhibited "gross negligence" by manifesting
an intent to file a demurrer to the evidence, in failing to present evidence in
his behalf and in omitting to file a defense memorandum for the benefit of
Judge Yuzon, after the latter took over the case at the end of trial and before
the Judge rendered his decision. Petitioner submits he is entitled to a new
trial.
These contentions do not persuade. An examination of the record indicates
that Atty. Puerto represented petitioner during trial with reasonable
competence. Except for the two hearing sessions when witnesses Domingo
Acosta was cross-examined and recross-examined by Atty. Puerto, petitioner
was present during all the sessions when the other prosecution witnesses
were presented and during which Atty. Puerto extensively cross-examined
them in behalf of petitioner and Dr. Madrid. This counsel elicited from the
two (2) expert witnesses for the prosecution testimony favorable to
petitioner and which was relied upon by the latter in this proceeding. 54 The
record further indicates that if petitioner indeed entertained substantial
doubts about the capability of Atty. Puerto, he could have easily terminated
the services of that counsel and retained a new one, or sought from the trial
court the appointment of counsel de oficio, during the ample opportunity
given him from the time Atty. Puerto manifested his intent to file a demurrer
on 16 October 1985, to the submission of the case for decision on 25 June
1986 and before the promulgation of judgment on 19 September 1986. 55
During all this time, petitioner could have obtained leave of court to present
evidence in his behalf in lieu of a demurrer, or to submit a memorandum for
the defense. After promulgation of the judgment of conviction, petitioner did
not seek a new trial, but permitted Atty. Puerto to obtain leave from the trial
court to continue on bail during the pendency of the proceedings before the
Court of Appeals. 56 Indeed, petitioner replaced Atty. Puerto as counsel only
upon institution of the present petition.
Petitioner's constitutional objection is plainly an afterthought. prcd
WHEREFORE, the Decision of the Court of Appeals dated 28 November 1988
is hereby AFFIRMED, subject only to the modification that the indemnity for
the death of Catherine Acosta is hereby increased to P50,000.00, in line with
current jurisprudence.
SO ORDERED.







































































G.R. No. 118231 July 5, 1996
VICTORIA L. BATIQUIN, ET AL. vs. COURT OF APPEALS
THIRD DIVISION

Throughout history, patients have consigned their fates and lives to the skill
of their doctors. For a breach of this trust, men have been quick to demand
retribution. Some 4,000 years ago, the Code of Hammurabi 1 then already
provided: "If a physician make a deep incision upon a man with his bronze
lancet and cause the man's death, or operate on the eye socket of a man with
his bronze lancet and destroy the man's eyes, they shall cut off his hand."
Subsequently, Hippocrates wrote what was to become part of the healer's
oath: "I will follow that method of treatment which according to my ability
and judgment, I consider for the benefit of my patents, and abstain from
whatever is deleterious and mischievous . . . While I continue to keep this
oath unviolated may it be granted me to enjoy life and practice the art,
respected by all men at all times but should I trespass and violate this oath,
may the reverse be my lot." At present, the primary objective of the medical
profession is the preservation of life and maintenance of the health of the
people.
Needless to say then, when a physician strays from his sacred duty and
endangers instead the life of his patient, he must be made to answer therefor.
Although society today cannot and will not tolerate the punishment meted
out by the ancients, neither will it and this Court, as this case would show, let
the act go uncondemned.
The petitioners appeal from the decision of the Court of Appeals of 11 May
1994 in CA-G.R. CV No. 30851, which reversed the decision 6 of 21 December
1990 of Branch 30 of the Regional Trial Court (RTC) of Negros Oriental in
Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial
Hospital, Dumaguete City from January 9, 1978 to September 1989. Between
1987 and September, 1989 she was also the Actg. Head of the Department of
Obstetrics and Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal
care as the latter's private patient sometime before September 21, 1988.
In the morning of September 21, 1988 Dr. Batiquin with the assistance of Dr.
Doris Teresita Sy who was also a Resident Physician at the same Hospital, C.I.
and O.R. Nurse Arlene Diones and some student nurses performed a simple
cesarean section on Mrs. Villegas at the Negros Oriental Provincial Hospital
and after 45 minutes Mrs. Villegas delivered her first Child, Rachel Acogido, at
about 11:45 that morning. Thereafter, Plaintiff remained confined at the
Hospital until September 27, 1988 during which period of confinement she
was regularly visited by Dr. Batiquin. On September 28, 1988 Mrs. Villegas
checked out of the Hospital . . . and on the same day she paid Dr. Batiquin,
thru the latter's secretary, the amount of P1,500.00 as "professional fee" . . .
Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains
and complained of being feverish. She also gradually lost her appetite, so she
consulted Dr. Batiquin at the latter's polyclinic who prescribed for her certain
medicines . . . which she had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr. Batiquin
on October 31, 1988 . . . certifying to her physical fitness to return to her
work on November 7, 1988. So on the second week of November, 1988 Mrs.
Villegas returned to her work at the Rural Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs. Villegas
no end and despite the medications administered by Dr. Batiquin. When the
pains become unbearable and she was rapidly losing weight she consulted
Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on January
20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs.
Villegas at the Holy Child's Hospital on January 20, 1989 she found Mrs.
Villegas to be feverish, pale and was breathing fast. Upon examination she felt
an abdominal mass one finger below the umbilicus which she suspected to be
either a tumor of the uterus or an ovarian cyst, either of which could be
cancerous. She had an x-ray taken of Mrs. Villegas ' chest, abdomen and
kidney. She also took blood tests of Plaintiff. A blood count showed that Mrs.
Villegas had [an] infection inside her abdominal cavity. The results of all
those examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to
another surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow
discharge inside, an ovarian cyst on each of the left and right ovaries which
gave out pus, dirt and pus behind the uterus, and a piece of rubber materials
on the right side of the uterus embedded on [sic] the ovarian cyst. 2 inches by
3/4 inch in size. This piece of rubber material which Dr. Kho described as a
"foreign body" looked like a piece of a "rubber glove" . . . and which is [sic]
also "rubber-drain like . . . It could have been a torn section of a surgeon's
gloves or could have come from other sources. And this foreign body was the
cause of the infection of the ovaries and consequently of all the discomfort
suffered by Mrs. Villegas after her delivery on September 21, 1988.
The piece of rubber allegedly found near private respondent Flotilde
Villegas'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.
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 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] say [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 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
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and, even
without admitting the private respondents' documentary evidence, deemed
Dr. Kho's positive testimony to definitely establish that a piece of rubber was
found near private respondent Villegas'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 cesarean operation made by appellee doctor . . .
After the second operation, appellant Flotilde became well and healthy.
Appellant Flotilde's troubles were caused by the infection due to the "rubber"
that was left inside her abdomen. Both appellants testified that after the
operation made by appellee doctor, they did not go to any other doctor until
they finally decided to see another doctor in January, 1989 when she was not
getting any better under the care of appellee Dr. Batiquin . . . Appellee Dr.
Batiquin admitted on the witness stand that she alone decided when to close
the operating area; that she examined the portion she operated on before
closing the some . . . Had she exercised due diligence, appellee Dr. Batiquin
would have found the rubber and removed it before closing the operating
area.
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit of
P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with
doctor's fees in the total amount P9,900.00 (Exhs. G and G-2)] for the second
operation that saved her life.
For the miseries appellants endured for more than three (3) months, due to
the negligence of appellee Dr. Batiquin, they are entitled to moral damages in
the amount of P100,000.00; exemplary damages in the amount of P20,000.00
and attorney's fees in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children because her
uterus and ovaries were removed by Dr. Kho is not taken into consideration
as it is not shown that the removal of said organs were the direct result of the
rubber left by appellee Dr. Batiquin near the uterus. What is established is
that the rubber left by appellee cause infection, placed the life of appellant
Flotilde in jeopardy and caused appellants fear, worry and anxiety . . .
WHEREFORE, the appealed judgment, dismissing the complaint for damages
is REVERSED and SET ASIDE. Another judgment is hereby entered ordering
defendants-appellees to pay plaintiffs-appellants the amount of P17,000.00
as and for actual damages; P100,000.00 as and for moral damages;
P20,000.00 as and for exemplary damages; and P25,000.00 as and for
attorney's fees plus the cost of litigation.
SO ORDERED.
From the above judgment, the petitioners appealed to this Court claiming
that the appellate court; (1) committed grave abuse of discretion by resorting
to findings of fact not supported by the evidence on record, and (2) exceeded
its discretion, amounting to lack or excess of jurisdiction, when it gave
credence to testimonies punctured with contradictions and falsities.
The private respondents commented that the petition raised only questions
of fact, which were not proper for review by this Court.
While the rule is that only questions of law may be raised in a petition for
review on certiorari, there are exceptions, among which are when the factual
findings of the trial court and the appellate court conflict, when the appealed
decision is clearly contradicted by the evidence on record, or when the
appellate court misapprehended the facts.
After deciphering the cryptic petition, we find that the focal point of the
instant appeal is the appreciation of Dr. Kho's testimony. The petitioner
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 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
the, 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 admissible 27
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 it
found to have deliberately falsified in some material particulars, it is not
required that the whole of his uncorroborated testimony be rejected, but
such portions thereof deemed worthy of belief may be credited. 29
It is here worth nothing that the trial court paid heed to the following
portions of Dr. Batiquin's testimony: that no rubber drain was used in the
operation, and that there was neither any tear on Dr. Batiquin's gloves after
the operation nor blood smears on her hands upon removing her gloves.
Moreover, the trial court pointed out that the absence of a rubber drain was
corroborated by Dr. Doris Sy, Dr. Batiquin's assistant during the operation on
private respondent Villegas. But the trial court failed to recognize that the
assertions of Drs. Batiquin and Sy were denials or negative testimonies. Well-
settled is the rule that positive testimony is stronger than negative testimony.
33 Of course, as the petitioners advocate, such positive testimony must come
from a credible source, which leads us to the second assigned error.
While the petitioners claim that contradictions and falsities punctured Dr.
Kho's testimony, a reading of the said testimony reveals no such infirmity and
establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout her
turn on the witness stand. Furthermore, no motive to state any untruth was
ever imputed against Dr. Kho, leaving her trustworthiness unimpaired. 34
The trial court's following declaration shows that while it was critical of the
lack of care with which Dr. Kho handled the piece of rubber, it was not
prepared to doubt Dr. Kho's credibility, thus only supporting out appraisal of
Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about her
findings, but it can also be said that she did not take the most appropriate
precaution to preserve that "piece of rubber" as an eloquent evidence of what
she would reveal should there be a "legal problem" which she claim[s] to
have anticipated.
Considering that we have assessed Dr. Kho to be a credible witness, her
positive testimony [that a piece of rubber was indeed found in private
respondent Villegas's abdomen] prevails over the negative testimony in favor
of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had
occasion to delve into the nature and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which
causes injury is shown to be under the management of the defendant, and the
accident is such as in the ordinary course of things does not happen if those
who have the management use proper care, it affords reasonable evidence, in
the absence of an explanation by the defendant, that the accident arose from
want of care." Or as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption
or inference that defendant was negligent, which arises upon proof that [the]
instrumentality causing injury was in defendant's exclusive control, and that
the accident was one which ordinary does not happen in absence of
negligence. Res ipsa loquitur is [a] rule of evidence whereby negligence of
[the] alleged wrongdoer may be inferred from [the] mere fact that [the]
accident happened provided [the] character of [the] accident and
circumstances attending it lead reasonably to belief that in [the] absence of
negligence it would not have occurred and that thing which caused injury is
shown to have been under [the] management and control of [the] alleged
wrongdoer . . . Under [this] doctrine . . . the happening of an injury permits an
inference of negligence where the plaintiff produces substantial evidence that
[the] injury was caused by an agency or instrumentality under [the] exclusive
control and management of defendant, and that the occurrence [sic] was such
that in the ordinary course of things would not happen if reasonable care had
been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law
of negligence which recognizes that prima facie negligence may be
established without direct proof and furnishes a substitute for specific proof
of negligence. The doctrine is not a rule of substantive law, but merely a mode
of proof or a mere procedural convenience. The rule, when applicable to the
facts and circumstances of a particular case, is not intended to and does not
dispense with the requirement of proof of culpable negligence on the party
charged. It merely determines and regulates what shall the prima facie
evidence thereof and facilitates the burden of plaintiff of proving a breach of
the duty of due care. The doctrine can be invoked when and only when, under
the circumstances involved direct evidence is absent and not readily
available. 36
In the instant case, all the requisites for recourse to the doctrine are present.
First, the entire proceedings of the cesarean section were under the exclusive
control of Dr. Batiquin. In this light, the private respondents were bereft of
direct evidence as to the 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 intervention of negligence. Second,
since aside from the cesarean section, private respondent Villegas underwent
no other operation which could have caused the offending piece of rubber to
appear in her uterus, it stands to reason that such could only have been a by-
product of the cesarean section performed by Dr. Batiquin. The petitioners, in
this regard, failed to overcome the presumption of negligence arising from
resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for
negligently leaving behind a piece of rubber in private respondent Villegas'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, 37 and State's compelling
interest to enact measures to protect the public from " the potentially deadly
effects of incompetence and ignorance in those who would undertake to treat
our bodies and minds for disease or trauma." 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 the 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. 118141 September 5, 1997
LEONILA GARCIA-RUEDA vs. WILFRED L. PASCASIO, ET AL.
SECOND DIVISION
May this Court review the findings of the Office of the Ombudsman? The
general rule has been enunciated in Ocampo v. Ombudsman 1 which states:
LLjur
"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.
Not satisfied with the findings of the hospital, petitioner requested the
National Bureau of Investigation (NBI) to conduct an autopsy on her
husband's body. Consequently, the NBI ruled that Florencio's 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 petitioner's motion for reconsideration regarding
Prosecutor Dimagiba's resolution, the investigative "pingpong" continued
when the case was again assigned to another prosecutor, Eudoxia T.
Gualberto, who recommended that Dr. Reyes be included in the criminal
information of Homicide through Reckless Imprudence. While the
recommendation of Prosecutor Gualberto was pending, the case was
transferred to Senior State Prosecutor Gregorio A. Arizala, who resolved to
exonerate Dr. Reyes from any wrongdoing, a resolution which was approved
by both City Prosecutor Porfirio G. Macaraeg and City Prosecutor Jesus F.
Guerrero.
Aggrieved, petitioner filed graft charges specifically for violation of Section
3(e) of Republic Act No. 3019 3 against Prosecutors Guerrero, Macaraeg, and
Arizala for manifest partiality in favor of Dr. Reyes before the Office of the
Ombudsman. However, on July 11, 1994, the Ombudsman issued the assailed
resolution dismissing the complaint for lack of evidence.
In fine, petitioner assails the exercise of the discretionary power of the
Ombudsman to review the recommendations of the government prosecutors
and to approve and disapprove the same. Petitioner faults the Ombudsman
for, allegedly in grave abuse of discretion, refusing to find that there exists
probable cause to hold public respondent City Prosecutors liable for violation
of Section 3(e) of R.A. No. 3019.
Preliminarily, the powers and functions of the Ombudsman have generally
been categorized into the following: investigatory powers, prosecutory
power, public assistance function, authority to inquire and obtain
information, and function to adopt, institute and implement preventive
measures.
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
Ombudsman's action when there is an abuse of discretion, in which case Rule
65 of the Rules of Court may exceptionally be invoked pursuant to Section I,
Article VIII of the 1987 Constitution. 6
In this regard, "grave abuse of discretion" has been defined as "where a
power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility so patent and gross as to amount to evasion of positive
duty or virtual refusal to perform a duty enjoined by, or in contemplation of
law. 7
From a procedural standpoint, it is certainly odd why the successive transfers
from one prosecutor to another were not sufficiently explained in the
Resolution of the Ombudsman. Being the proper investigating authority with
respect to misfeasance, non-feasance and malfeasance of public officials, the
Ombudsman should have been more vigilant and assiduous in determining
the reasons behind the "buck passing" to ensure that no irregularity took
place.
Whether such transfers were due to any outside pressure or ulterior motive
is a matter of evidence. One would have expected the Ombudsman, however,
to inquire into what could hardly qualify as "standard operating procedure,"
given the surrounding circumstances of the case.
While it is true that a preliminary investigation is essentially inquisitorial,
and is often the only means to discover who may be charged with a crime, its
function is merely to determine the existence of probable cause. 8 Probable
cause has been defined as "the existence of such fact and circumstances as
would excite the belief, in a reasonable mind, acting on the facts within the
knowledge of the prosecution, that the person charged was guilty of the
crime for which he was prosecuted." 9
"Probable cause is a reasonable ground of presumption that a matter is, or
may be, well founded, such a state of facts in the mind of the prosecutor as
would lead a person of ordinary caution and prudence to believe, or entertain
an honest or strong suspicion, that a thing is so." The term does not mean
actual and positive cause nor does it import absolute certainty. It is merely
based on opinion and reasonable belief. Thus, a finding of probable cause
does not require an inquiry into whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for
the reception of evidence of the prosecution in support of the charge. 10
In the instant case, no less than the NBI pronounced after conducting an
autopsy that there was indeed negligence on the part of the attending
physicians in administering the anaesthesia. 11 The fact of want of
competence or diligence is evidentiary in nature, the veracity of which can
best be passed upon after a full-blown trial for it is virtually impossible to
ascertain the merits of a medical negligence case without extensive
investigation, research, evaluation and consultations with medical experts.
Clearly, the City Prosecutors are not in a competent position to pass judgment
on such a technical matter, especially when there are conflicting evidence and
findings. The bases of a party's accusation and defenses are better ventilated
at the trial proper than at the preliminary investigation.
A word on medical malpractice or negligence cases.
"In its simplest terms, the type of lawsuit which has been called medical
malpractice or, more appropriately, medical negligence, is that type of claim
which a victim has available to him or her to redress a wrong committed by a
medical professional which has caused bodily harm.
In order to successfully pursue such a claim, a patient must prove that a
health care provider, in most cases a physician, either failed to do something
which a reasonably prudent health care provider would have done, or that he
or she did something that a reasonably prudent provider would not have
done; and that failure or action caused injury to the patient." 12
Hence, there are four elements involved in medical negligence cases: duty,
breach, injury and proximate causation.
Evidently, when the victim employed the services of Dr. Antonio and Dr.
Reyes, a physician-patient relationship was created. In accepting the case, Dr.
Antonio and Dr. Reyes in effect represented that, having the needed training
and skill possessed by physicians and surgeons practicing in the same field,
they will employ such training, care and skill in the treatment of their
patients. 13 They have a duty to use at least the same level of care that any
other reasonably competent doctor would use to treat a condition under the
same circumstances. The breach of these professional duties of skill and care,
or their improper performance, by a physician surgeon whereby the patient
is injured in body or in health, constitutes actionable malpractice. 14
Consequently, in the event that any injury results to the patient from want of
due care or skill during the operation, the surgeons may be held answerable
in damages for negligence. 15
Moreover, in malpractice or negligence cases involving the administration of
anaesthesia, the necessity of expert testimony and the availability of the
charge of res ipsa loquitur to the plaintiff, have been applied in actions
against anaesthesiologists to hold the defendant liable for the death or injury
of a patient under excessive or improper anaesthesia. 16 Essentially, it
requires two-pronged evidence: evidence as to the recognized standards of
the medical community in the particular kind of case, and a showing that the
physician in question negligently departed from this standard in his
treatment. 17
Another element in medical negligence cases is causation which is divided
into two inquiries: whether the doctor's actions in fact caused the harm to the
patient and whether these were the proximate cause of the patient's injury.
18 Indeed here, a causal connection is discernible from the occurrence of the
victim's death after the negligent act of the anaesthesiologist in administering
the anesthesia, a fact which, if confirmed, should warrant the filing of the
appropriate criminal case. To be sure, the allegation of negligence is not
entirely baseless. Moreover, the NBI deduced that the attending surgeons did
not conduct the necessary interview of the patient prior to the operation. It
appears that the cause of the death of the victim could have been averted had
the proper drug been applied to cope with the symptoms of malignant
hyperthermia. Also, we cannot ignore the fact that an antidote was readily
available to counteract whatever deleterious effect the anaesthesia might
produce. 19 Why these precautionary measures were disregarded must be
sufficiently explained.
The City Prosecutors were charged with violating Section 3(e) of the Anti-
Graft and Corrupt Practices Act which requires the following facts:
"1. The accused is a public officer discharging administrative or official
functions or private persons charged in conspiracy with them;
2. The public officer committed the prohibited act during the
performance of his official duty or in relation to his public position;
3. The public officer acted with manifest partiality, evident bad faith or
gross, inexcusable negligence; and
4. His action caused undue injury to the Government or any private
party, or gave any party any unwarranted benefit, advantage or preference to
such parties." 20
Why did the complainant, petitioner in instant case, elect to charge
respondents under the above law?
While a party who feels himself aggrieved is at liberty to choose the
appropriate "weapon from the armory," it is with no little surprise that this
Court views the choice made by the complainant widow.
To our mind, the better and more logical remedy under the circumstances
would have been to appeal the resolution of the City Prosecutors dismissing
the criminal complaint to the Secretary of Justice under the Department of
Justice's 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 propio or on
motion of the appellee, dismiss outright the appeal on specified grounds." 22
In exercising his discretion under the circumstances, the Ombudsman acted
within his power and authority in dismissing the complaint against the
Prosecutors and this Court will not interfere with the same. cdlex
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. 122445 November 18, 1997
NINEVETCH CRUZ vs. COURT OF APPEALS, ET AL.
THIRD DIVISION

"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
abovenamed, being then the attending anaesthesiologist and surgeon,
respectively, did then and there, in a negligence (sic), careless, imprudent,
and incompetent manner, and failing to supply or store sufficient provisions
and facilities necessary to meet any and all exigencies apt to arise before,
during and/or after a surgical operation causing by such negligence,
carelessness, imprudence, and incompetence, and causing by such failure,
including the lack of preparation and foresight needed to avert a tragedy, the
untimely death of said Lydia Umali on the day following said surgical
operation." 5
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty
to the above-mentioned charge. On March 4, 1994, the Municipal Trial Court
in Cities (MTCC) of San Pablo City rendered a decision, the dispositive portion
of which is hereunder quoted as follows:
"WHEREFORE, the court finds the accused Dra. Lina Ercillo not guilty of the
offense charged for insufficiency of evidence while her co-accused Dra.
Ninevetch Cruz is hereby held responsible for the death of Lydia Umali on
March 24, 1991, and therefore guilty under Art. 365 of the Revised Penal
Code, and she is hereby sentenced to suffer the penalty of 2 months and 1 day
imprisonment of arresto mayor with costs." 6
The petitioner appealed her conviction to the Regional Trial Court (RTC)
which affirmed in toto the decision of the MTCC 7 prompting the petitioner to
file a petition for review with the Court of Appeals but to no avail. Hence this
petition for review on certiorari assailing the decision promulgated by the
Court of Appeals on October 24, 1995 affirming petitioner's conviction with
modification that she is further directed to pay the heirs of Lydia Umali
P50,000.00 as indemnity for her death. 8
In substance, the petition brought before this Court raises the issue of
whether or not petitioner's conviction of the crime of reckless imprudence
resulting in homicide, arising from an alleged medical malpractice, is
supported by the evidence on record. dctai
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De Ocampo,
accompanied her mother to the Perpetual Help Clinic and General Hospital
situated in Balagtas Street, San Pablo City, Laguna. They arrived at the said
hospital at around 4:30 in the afternoon of the same day. 9 Prior to March 22,
1991, Lydia was examined by the petitioner who found a "myoma" 10 in her
uterus, and scheduled her for a hysterectomy operation on March 23, 1991.
11 Rowena and her mother slept in the clinic on the evening of March 22,
1991 as the latter was to be operated on the next day at 1:00 o'clock in the
afternoon. 12 According to Rowena, she noticed that the clinic was untidy
and the window and the floor were very dusty prompting her to ask the
attendant for a rag to wipe the window and the floor with. 13 Because of the
untidy state of the clinic, Rowena tried to persuade her mother not to
proceed with the operation. 14 The following day, before her mother was
wheeled into the operating room, Rowena asked the petitioner if the
operation could be postponed. The petitioner called Lydia into her office and
the two had a conversation. Lydia then informed Rowena that the petitioner
told her that she must be operated on as scheduled. 15
Rowena and her other relatives, namely her husband, her sister and two
aunts waited outside the operating room while Lydia underwent operation.
While they were waiting, Dr. Ercillo went out of the operating room and
instructed them to buy tagamet ampules which Rowena's sister immediately
bought. About one hour had passed when Dr. Ercillo came out again this time
to ask them to buy blood for Lydia. They bought type "A" blood from the St.
Gerald Blood Bank and the same was brought by the attendant into the
operating room. After the lapse of a few hours, the petitioner informed them
that the operation was finished. The operating staff then went inside the
petitioner's clinic to take their snacks. Some thirty minutes after, Lydia was
brought out of the operating room in a stretcher and the petitioner asked
Rowena and the other relatives to buy additional blood for Lydia.
Unfortunately, they were not able to comply with petitioner's order as there
was no more type "A" blood available in the blood bank. Thereafter, a person
arrived to donate blood which was later transfused to Lydia. Rowena then
noticed her mother, who was attached to an oxygen tank, gasping for breath.
Apparently the oxygen supply had run out and Rowena's husband together
with the driver of the accused had to go to the San Pablo District Hospital to
get oxygen. Lydia was given the fresh supply of oxygen as soon as it arrived.
16 But at around 10:00 o'clock P.M. she went into shock and her blood
pressure dropped to 60/50. Lydia's unstable condition necessitated her
transfer to the San Pablo District Hospital so she could be connected to a
respirator and further examined. 17 The transfer to the San Pablo District
Hospital was without the prior consent of Rowena nor of the other relatives
present who found out about the intended transfer only when an ambulance
arrived to take Lydia to the San Pablo District Hospital. Rowena and her other
relatives then boarded a tricycle and followed the ambulance. 18
Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into
the operating room and the petitioner and Dr. Ercillo re-operated on her
because there was blood oozing from the abdominal incision. 19 The
attending physicians summoned Dr. Bartolome Angeles, head of the
Obstetrics and Gynecology Department of the San Pablo District Hospital.
However, when Dr. Angeles arrived, Lydia was already in shock and possibly
dead as her blood pressure was already 0/0. Dr. Angeles then informed
petitioner and Dr. Ercillo that there was nothing he could do to help save the
patient. 20 While 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 negligent in the performance
of the operation:
". . . , 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 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. Cdpr
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. It is in this
aspect of medical malpractice that expert testimony is essential to establish
not only the standard of care of the profession but also that the physician's
conduct in the treatment and care falls below such standard. 28 Further,
inasmuch as the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been recognized
that expert testimony is usually necessary to support the conclusion as to
causation. 29
Immediately apparent from a review of the records of this case is the absence
of any expert testimony on the matter of the standard of care employed by
other physicians of good standing in the conduct of similar operations. The
prosecution's expert witnesses in the persons of Dr. Floresto Arizala and Dr.
Nieto Salvador, Jr. of the National Bureau of Investigation (NBI) only testified
as to the possible cause of death but did not venture to illuminate the court
on the matter of the standard of care that petitioner should have exercised.
All three courts below bewail the inadequacy of the facilities of the clinic and
its untidiness; the lack of provisions such as blood, oxygen, and certain
medicines; the failure to subject the patient to a cardio-pulmonary test prior
to the operation; the omission of any form of blood typing before transfusion;
and even the subsequent transfer of Lydia to the San Pablo Hospital and the
reoperation performed on her by the petitioner. But while it may be true that
the circumstances pointed out by the courts below seemed beyond cavil to
constitute reckless imprudence on the part of the surgeon, this conclusion is
still best arrived at not through the educated surmises nor conjectures of
laymen, including judges, but by the unquestionable knowledge of expert
witnesses. For whether a physician or surgeon has exercised the requisite
degree of skill and care in the treatment of his patient is, in the generality of
cases, a matter of expert opinion. 30 The deference of courts to the expert
opinion of qualified physicians stems from its realization that the latter
possess unusual technical skills which laymen in most instances are
incapable of intelligently evaluating. 31 Expert testimony should have been
offered to prove that the circumstances cited by the courts below are
constitutive of conduct falling below the standard of care employed by other
physicians in good standing when performing the same operation. It must be
remembered that when the qualifications of a physician are admitted, as in
the instant case, there is an inevitable presumption that in proper cases he
takes the necessary precaution and employs the best of his knowledge and
skill in attending to his clients, unless the contrary is sufficiently established.
32 This presumption is rebuttable by expert opinion which is so sadly lacking
in the case at bench.
Even granting arguendo that the inadequacy of the facilities and untidiness of
the clinic; the lack of provisions; the failure to conduct pre-operation tests on
the patient; and the subsequent transfer of Lydia to the San Pablo Hospital
and the reoperation performed on her by the petitioner do indicate, even
without expert testimony, that petitioner was recklessly imprudent in the
exercise of her duties as a surgeon, no cogent proof exists that any of these
circumstances caused petitioner's death. Thus, the absence of the fourth
element of reckless imprudence: that the injury to the person or property
was a consequence of the reckless imprudence.
In litigations involving medical negligence, the plaintiff has the burden of
establishing appellant's negligence and for a reasonable conclusion of
negligence, there must be proof of breach of duty on the part of the surgeon
as well as a causal connection of such breach and the resulting death of his
patient. 33 In Chan Lugay v. St. Luke's Hospital, Inc., 34 where the attending
physician was absolved of liability for the death of the complainant's wife and
newborn baby, this Court held that:
"In order that there may be a recovery for an injury, however, it must be
shown that the 'injury for which recovery is sought must be the legitimate
consequence of the wrong done; the connection between the negligence and
the injury must be a direct and natural sequence of events, unbroken by
intervening efficient causes.' In other words, the negligence must be the
proximate cause of the injury. For, 'negligence, no matter in what it consists
cannot create a right of action unless it is the proximate cause of the injury
complained of .' And 'the proximate cause of an injury is that cause, which, in
natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury, and without which the result would not have
occurred.'" 35 (Emphasis supplied.)
Dr. Arizala who conducted an autopsy on the body of the deceased
summarized his findings as follows:
"Atty. Cachero:
Q. You mentioned about your Autopsy Report which has been marked
as Exh. "A-1-b". There appears here a signature above the typewritten name
Floresto Arizala, Jr., whose signature is that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?
A. Only as to the autopsy report no. 91-09, the time and place and
everything after the post mortem findings, sir.
Q. You mentioned on your "Post Mortem Findings" about surgical
incision, 14:0 cm., infraumbilical area, anterior abdominal area, midline, will
you please explain that in your own language?
A. There was incision wound (sic) the area just below the navel, sir.
Q. And the last paragraph of the postmortem findings which I read:
Uterus, pear-shaped and pale measuring 7.5 x 5.5 x 5.0 cm. with some surface
nodulation of the fundic area posteriorly. Cut-section shows diffusely pale
myometrium with areas of streak induration. The ovaries and adnexal
structures are missing with the raw surfaces patched with clotted blood.
Surgical sutures were noted on the operative site.
Intestines and mesenteries are pale with blood clots noted between
the mesentric folds.
Hemoperitoneum: 300 s.s.,
right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.',
will you please explain that on (sic) your own language or in ordinary. . . .
A. There was a uterus which was not attached to the adnexal structures
namely ovaries which were not present and also sign of previous surgical
operation and there were (sic) clotted blood, sir.
Q. How about the ovaries and adnexal structures?
A. They are missing, sir.
Q. You mean to say there are no ovaries?
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical sutures?
A. Yes, sir.
Q. How about the intestines and mesenteries are place (sic) with blood
clots noted between the mesenteric folds, will you please explain on (sic)
this?
A. In the peritoneal cavity, they are mostly perritonial blood . . .
Q. And what could have caused this blood?
A. Well, ordinarily blood is found inside the blood vessel. Blood were
(sic) outside as a result of the injuries which destroyed the integrity of the
vessel allowing blood to sip (sic) out, sir.
Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can
you tell the court the cause of death?
A. Yes, sir. The cause of death is: Gross findings are compatible with
hemorrhagic shock.
Q. Can you tell the us what could have caused this hemorrhagic shock?
A. Well hemorrhagic shock is the result of blood loss.
Q. What could have the effect of that loss of blood?
A. Unattended hemorrhage, sir. 36 (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.
Q. Have you also examined the post mortem of Dr. Arizala?
A. Yes, sir, and by virtue of the autopsy report in connection with your
pathology report.
Q. What could have caused the death of the victim?
A. This pathologic examination are (sic) compatible with the person
who died, sir.
Q. Will you explain to us the meaning of hemorrhagic compatible?
A. It means that a person died of blood loss. Meaning a person died of
non-replacement of blood and so the victim before she died there was shock
of diminish of blood of the circulation. She died most probably before the
actual complete blood loss, sir.
Court:
Is it possible doctor that the loss of the blood was due on (sic)
operation?
A. Based on my pathologist finding, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone surgery. Another may be a
blood vessel may be cut while on operation and this cause (sic) bleeding, or
may be set in the course of operation, or may be (sic) he died after the
operation. Of course there are other cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood replacement?
A. Yes, sir." 37 (Emphasis supplied.)
The testimonies of both doctors establish hemorrhage or hemorrhagic shock
as the cause of death. However, as likewise testified to by the expert
witnesses in open court, hemorrhage or hemorrhagic shock during surgery
may be caused by several different factors. Thus, Dr. Salvador's elaboration
on the matter:
"Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that you mentioned you
said that it could be at the moment of operation when one losses (sic) control
of the presence, is that correct? During the operation there is lost (sic) of
control of the cut vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may have slipped later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible also to some clotting
defect, is that correct?
A. May be (sic)." 38 (Emphasis supplied).
Defense witness, Dr. Bu C. Castro also gave the following expert opinion:
"Q. Doctor even a patient after an operations (sic) would suffer
hemorrhage what would be the possible causes of such hemorrhage (sic)?
A. Among those would be what we call Intravascular Coagulation and
this is the reason for the bleeding, sir, which cannot be prevented by anyone,
it will happen to anyone, anytime and to any persons (sic), sir.
COURT:
What do you think of the cause of the bleeding, the cutting or the
operations done in the body?
A. Not related to this one, the bleeding here is not related to any cutting
or operation that I (sic) have done.
Q. Aside from the DIC what could another causes (sic) that could be the
cause for the hemorrhage or bleeding in a patient by an operations (sic)?
A. In general sir, if there was an operations (sic) and it is possible that
the ligature in the suture was (sic) become (sic) loose, it is (sic) becomes
loose if proven.
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 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 less says (sic) what part are
(sic) concerned could have been the caused (sic) of death of this Lydia Umali?
A. As far as the medical record is concern (sic) the caused (sic) of death
is dessimulated (sic) Intra Vascular Coagulation or the DIC which resulted to
hemorrhage or bleedings, sir.
Q. Doctor based on your findings then there is knowing (sic) the doctor
would say whether the doctor her (sic) has been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on finding they just
read the chart as well as the other record.
ATTY. PASCUAL:
Precisely based on this examination.
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. Nevertheless, this
Court finds the petitioner civilly liable for the death of Lydia Umali, for while
a conviction of a crime requires proof beyond reasonable doubt, only a
preponderance of evidence is required to establish civil liability. 45
The petitioner is a doctor in whose hands a patient puts his life and limb. For
insufficiency of evidence this Court was not able to render a sentence of
conviction but it is not blind to the reckless and imprudent manner in which
the petitioner carried out her duties. A precious life has been lost and the
circumstances leading thereto exacerbated the grief of those left behind. The
heirs of the deceased continue to feel the loss of their mother up to the
present time 46 and this Court is aware that no amount of compassion and
commiseration nor words of bereavement can suffice to assuage the sorrow
felt for the loss of a loved one. Certainly, the award of moral and exemplary
damages in favor of the heirs of Lydia Umali are proper in the instant case.
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 Lydia Umali the
amount of FIFTY THOUSAND PESOS (P50,000.00) as civil liability, ONE
HUNDRED THOUSAND PESOS (P100,000.00) as moral damages, and FIFTY
THOUSAND PESOS (P50,000.00) as exemplary damages. LLpr
Let a copy of this decision be furnished to the Professional Regulation
Commission (PRC) for appropriate action.
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 RAMOS,petitioners, vs. COURT OF APPEALS,
DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA.
PERFECTA GUTIERREZ, respondents.
D E C I S I O N
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial
consideration to the health and welfare of their patients. If a doctor fails to
live up to this precept, he is made accountable for his acts. A mistake,
through gross negligence or incompetence or plain human error, may spell
the difference between life and death. In this sense, the doctor plays God on
his patients fate.
[1]

In the case at bar, the Court is called upon to rule whether a surgeon, an
anesthesiologist and a hospital should be made liable for the unfortunate
comatose condition of a patient scheduled for cholecystectomy.
[2]

Petitioners seek the reversal of the decision
[3]
of the Court of Appeals,
dated 29 May 1995, which overturned the decision
[4]
of the Regional Trial
Court, dated 30 January 1992, finding private respondents liable for damages
arising from negligence in the performance of their professional duties
towards petitioner Erlinda Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are reproduced
hereunder:
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 anesthesiologists 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
patients husband, Rogelio, that the doctor was not yet around (id., p.
13). When she returned to the operating room, the patient told her, Mindy,
inip na inip na ako, ikuha mo ako ng ibang Doctor. So, she went out again and
told Rogelio about what the patient said (id., p. 15). Thereafter, she returned
to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was already dying [and] waiting for
the arrival of the doctor even as he did his best to find somebody who will
allow him to pull out his wife from the operating room (TSN, October 19,
1989, pp. 19-20). He also thought of the feeling of his wife, who was inside
the operating room waiting for the doctor to arrive (ibid.). At almost 12:00
noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of
waiting for Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at
around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse
remarked, Nandiyan na si Dr. Hosaka, dumating na raw. Upon hearing
those words, he went down to the lobby and waited for the operation to be
completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room with
the patient, heard somebody say that Dr. Hosaka is already here. She then
saw people inside the operating room moving, doing this and that, [and]
preparing the patient for the operation (TSN, January 13, 1988, p. 16). As
she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the
hapless patient. She thereafter heard Dr. Gutierrez say, ang hirap ma-
intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan (id., p.
17). Because of the remarks of Dra. Gutierrez, she focused her attention on
what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration of
the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka issue an order for someone to
call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon
arrived at the operating room, she saw this anesthesiologist trying to
intubate the patient. The patients 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 patients brain (Id., pp. 19-20). Immediately
thereafter, she went out of the operating room, and she told Rogelio E. Ramos
that something wrong was x x x 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 toP93,542.25 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 Erlindas injury. Plaintiff presented the testimonies of Dean Herminda
Cruz and Dr. Mariano Gavino to prove that the damage sustained by Erlinda
was due to lack of oxygen in her brain caused by the faulty management of
her airway by private respondents during the anesthesia phase. On the other
hand, private respondents primarily relied on the expert testimony of Dr.
Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage
was Erlindas allergic reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from both sides, the Regional Trial Court
rendered judgment in favor of petitioners, to wit:
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.
x x x
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
ofP200,000.00 by way of exemplary damages; and,
4) the costs of the suit.
SO ORDERED.
[7]

Private respondents seasonably interposed an appeal to the Court of
Appeals. The appellate court rendered a Decision, dated 29 May 1995,
reversing the findings of the trial court. The decretal portion of the decision
of the appellate court reads:
WHEREFORE, for the foregoing premises the appealed decision is hereby
REVERSED, and the complaint below against the appellants is hereby ordered
DISMISSED. The counterclaim of appellant De Los Santos Medical Center is
GRANTED but only insofar as appellees are hereby ordered to pay the unpaid
hospital bills amounting to P93,542.25, plus legal interest for justice must be
tempered with mercy.
SO ORDERED.
[8]

The decision of the Court of Appeals was received on 9 June 1995 by
petitioner Rogelio Ramos who was mistakenly addressed as Atty. Rogelio
Ramos. No copy of the decision, however, was sent nor received by the
Coronel Law Office, then counsel on record of petitioners. Rogelio referred
the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20
June 1995, or four (4) days before the expiration of the reglementary period
for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed
with the appellate court a motion for extension of time to file a motion for
reconsideration. The motion for reconsideration was submitted on 4 July
1995. However, the appellate court denied the motion for extension of time
in its Resolution dated 25 July 1995.
[9]
Meanwhile petitioners engaged the
services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano
filed on 7 August 1995 a motion to admit the motion for reconsideration
contending that the period to file the appropriate pleading on the assailed
decision had not yet commenced to run as the Division Clerk of Court of the
Court of Appeals had not yet served a copy thereof to the counsel on
record. Despite this explanation, the appellate court still denied the motion
to admit the motion for reconsideration of petitioners in its Resolution, dated
29 March 1996, primarily on the ground that the fifteen-day (15) period for
filing a motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a Motion for
Reconsideration cannot be extended; precisely, the Motion for Extension
(Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter
Motion that plaintiffs/appellees received a copy of the decision as early as
June 9, 1995. Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for Reconsideration, in turn,
was received by the Court of Appeals already on July 4, necessarily, the 15-
day period already passed. For that alone, the latter should be denied.
Even assuming admissibility of the Motion for 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 appellate court was furnished to
the counsel on record. Petitioner, not being a lawyer and unaware of the
prescriptive period for filing a motion for reconsideration, referred the same
to a legal counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all notices
should be sent to the partys lawyer at his given address. With a few
exceptions, notice to a litigant without notice to his counsel on record is no
notice at all. In the present case, since a copy of the decision of the appellate
court was not sent to the counsel on record of petitioner, there can be no
sufficient notice to speak of. Hence, the delay in the filing of the motion for
reconsideration cannot be taken against petitioner. Moreover, since the Court
of Appeals already issued a second Resolution, dated 29 March 1996, which
superseded the earlier resolution issued on 25 July 1995, and denied the
motion for reconsideration of petitioner, we believe that the receipt of the
former should be considered in determining the timeliness of the filing of the
present petition. Based on this, the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now look into
the merits of the case. For a more logical presentation of the discussion we
shall first consider the issue on the applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter, the first two assigned errors shall be
tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means the thing or the
transaction speaks for itself. The phrase res ipsa loquitur is a maxim for the
rule that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence,
or make out a plaintiffsprima facie case, and present a question of fact for
defendant to meet with an explanation.
[13]
Where the thing which caused the
injury complained of is shown to be under the management of the defendant
or his servants and the accident is such as in ordinary course of things does
not happen if those who have its management or control use proper care, it
affords reasonable evidence, in the absence of explanation by the defendant,
that the accident arose from or was caused by the defendants want of
care.
[14]

The doctrine of res ipsa loquitur is simply a recognition of the postulate
that, as a matter of common knowledge and experience, the very nature of
certain types of occurrences may justify an inference of negligence on the
part of the person who controls the instrumentality causing the injury in the
absence of some explanation by the defendant who is charged with
negligence.
[15]
It is grounded in the superior logic of ordinary human
experience and on the basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence of the accident
itself.
[16]
Hence, res ipsa loquitur is applied in conjunction with the doctrine of
common knowledge.
However, much has been said that res ipsa loquitur is not a rule of
substantive law and, as such, does not create or constitute an independent or
separate ground of liability.
[17]
Instead, it is considered as merely evidentiary
or in the nature of a procedural rule.
[18]
It is regarded as a mode of proof, or a
mere procedural convenience since it furnishes a substitute for, and relieves
a plaintiff of, the burden of producing specific proof of negligence.
[19]
In other
words, mere invocation and application of the doctrine does not dispense
with the requirement of proof of negligence. It is simply a step in the process
of such proof, permitting the plaintiff to present along with the proof of the
accident, enough of the attending circumstances to invoke the doctrine,
creating an inference or presumption of negligence, and to thereby place on
the defendant the burden of going forward with the proof.
[20]
Still, before
resort to the doctrine may be allowed, the following requisites must be
satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the
absence of someones negligence;
2. It is caused by an instrumentality within the exclusive control of
the defendant or defendants; and
3. The possibility of contributing conduct which would make the
plaintiff responsible is eliminated.
[21]

In the above requisites, the fundamental element is the control of the
instrumentality which caused the damage.
[22]
Such element of control must
be shown to be within the dominion of the defendant. In order to have the
benefit of the rule, a plaintiff, in addition to proving injury or damage, must
show a situation where it is applicable, and must establish that the essential
elements of the doctrine were present in a particular incident.
[23]

Medical malpractice
[24]
cases do not escape the application of this
doctrine. Thus, res ipsa loquitur has been applied when the circumstances
attendant upon the harm are themselves of such a character as to justify an
inference of negligence as the cause of that harm.
[25]
The application of res
ipsa loquitur in medical negligence cases presents a question of law since it is
a judicial function to determine whether a certain set of circumstances does,
as a matter of law, permit a given inference.
[26]

Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a negligent act or that he
has deviated from the standard medical procedure, when the doctrine of res
ipsa loquitur is availed by the plaintiff, the need for expert medical testimony
is dispensed with because the injury itself provides the proof of
negligence.
[27]
The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the domain of medical
science, and not to matters that are within the common knowledge of
mankind which may be testified to by anyone familiar with the
facts.
[28]
Ordinarily, only physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been treated or operated
upon with a reasonable degree of skill and care. However, testimony as to
the statements and acts of physicians and surgeons, external appearances,
and manifest conditions which are observable by any one may be given by
non-expert witnesses.
[29]
Hence, in cases where the res ipsa loquitur is
applicable, the court is permitted to find a physician negligent upon proper
proof of injury to the patient, without the aid of expert testimony, where the
court from its fund of common knowledge can determine the proper standard
of care.
[30]
Where common knowledge and experience teach that a resulting
injury would not have occurred to the patient if due care had been exercised,
an inference of negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it
occurred.
[31]
When the doctrine is appropriate, all that the patient must do is
prove a nexus between the particular act or omission complained of and the
injury sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the standard
of care. Resort to res ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can obtain redress
for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the
following situations: leaving of a foreign object in the body of the patient
after an operation,
[32]
injuries sustained on a healthy part of the body which
was not under, or in the area, of treatment,
[33]
removal of the wrong part of
the body when another part was intended,
[34]
knocking out a tooth while a
patients jaw was under anesthetic for the removal of his tonsils,
[35]
and loss
of an eye while the patient plaintiff was under the influence of anesthetic,
during or following an operation for appendicitis,
[36]
among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been
measurably enlarged, it does not automatically apply to all cases of medical
negligence as to mechanically shift the burden of proof to the defendant to
show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a
rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each case. It is generally
restricted to situations in malpractice cases where a layman is able to say, as
a matter of common knowledge and observation, that the consequences of
professional care were not as such as would ordinarily have followed if due
care had been exercised.
[37]
A distinction must be made between the failure to
secure results, and the occurrence of something more unusual and not
ordinarily found if the service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It must be conceded
that the doctrine of res ipsa loquitur can have no application in a suit against a
physician or surgeon which involves the merits of a diagnosis or of a
scientific treatment.
[38]
The physician or surgeon is not required at his peril to
explain why any particular diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result.
[39]
Thus, res ipsa
loquitur is not available in a malpractice suit if the only showing is that the
desired result of an operation or treatment was not accomplished.
[40]
The real
question, therefore, is whether or not in the process of the operation any
extraordinary incident or unusual event outside of the routine performance
occurred which is beyond the regular scope of customary professional
activity in such operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent cause or causes of the
untoward consequence.
[41]
If there was such extraneous interventions, the
doctrine of res ipsa loquitur may be utilized and the defendant is called upon
to explain the matter, by evidence of exculpation, if he could.
[42]

We find the doctrine of res ipsa loquitur appropriate in the case at
bar. As will hereinafter be explained, the damage sustained by Erlinda in her
brain prior to a scheduled gall bladder operation presents a case for the
application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs.
Bridwell,
[43]
where the Kansas Supreme Court in applying the res ipsa
loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and delivered
his person over to the care, custody and control of his physician who had
complete and exclusive control over him, but the operation was never
performed. At the time of submission he was neurologically sound and
physically fit in mind and body, but he suffered irreparable damage and
injury rendering him decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of a mastoid operation or
in the absence of negligence in the administration of an anesthetic, and in the
use and employment of an endoctracheal tube. Ordinarily a person being put
under anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia in the absence of negligence. Upon these facts
and under these circumstances a layman would be able to say, as a matter of
common knowledge and observation, that the consequences of professional
treatment were not as such as would ordinarily have followed if due care had
been exercised.
Here the plaintiff could not have been guilty of contributory negligence
because he was under the influence of anesthetics and unconscious, and the
circumstances are such that the true explanation of event is more accessible
to the defendants than to the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held
that a cause of action is stated under the doctrine of res ipsa loquitur.
[44]

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

x x x
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]

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

Curiously in the case at bar, respondent Dra. Gutierrez made the
haphazard defense that she encountered hardship in the insertion of the tube
in the trachea of Erlinda because it was positioned more anteriorly (slightly
deviated from the normal anatomy of a person)
[52]
making it harder to locate
and, since Erlinda is obese and has a short neck and protruding teeth, it made
intubation even more difficult.
The argument does not convince us. If this was indeed observed, private
respondents adduced no evidence demonstrating that they proceeded to
make a thorough assessment of Erlindas airway, prior to the induction of
anesthesia, even if this would mean postponing the procedure. From their
testimonies, it appears that the observation was made only as an
afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of
anesthesia is universally observed to lessen the possibility of anesthetic
accidents. Pre-operative evaluation and preparation for anesthesia begins
when the anesthesiologist reviews the patients medical records and visits
with the patient, traditionally, the day before elective surgery.
[53]
It includes
taking the patients medical history, review of current drug therapy, physical
examination and interpretation of laboratory data.
[54]
The physical
examination performed by the anesthesiologist is directed primarily toward
the central nervous system, cardiovascular system, lungs and upper
airway.
[55]
A thorough analysis of the patient's airway normally involves
investigating the following: cervical spine mobility, temporomandibular
mobility, prominent central incisors, diseased or artificial teeth, ability to
visualize uvula and the thyromental distance.
[56]
Thus, physical
characteristics of the patients upper airway that could make tracheal
intubation difficult should be studied.
[57]
Where the need arises, as when
initial assessment indicates possible problems (such as the alleged short neck
and protruding teeth of Erlinda) a thorough examination of the patients
airway would go a long way towards decreasing patient morbidity and
mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw
Erlinda for the first time on the day of the operation itself, on 17 June
1985. Before this date, no prior consultations with, or pre-operative
evaluation of Erlinda was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the physiological make-up and
needs of Erlinda. She was likewise not properly informed of the possible
difficulties she would face during the administration of anesthesia to
Erlinda. Respondent Dra. Gutierrez act of seeing her patient for the first time
only an hour before the scheduled operative procedure was, therefore, an act
of exceptional negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives lie at the core
of the physicians centuries-old Hippocratic Oath. Her failure to follow this
medical procedure is, therefore, a clearindicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this
omission by playing around with the trial court's ignorance of clinical
procedure, hoping that she could get away with it. Respondent Dra. Gutierrez
tried to muddle the difference between an elective surgery and an emergency
surgery just so her failure to perform the required pre-operative evaluation
would escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the patient
a day before so you can introduce yourself to establish good doctor-patient
relationship and gain the trust and confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure
of the anesthesiologist and in my case, with elective cases and normal cardio-
pulmonary clearance like that, I usually don't do it except on emergency and
on cases that have an abnormalities (sic).
[58]

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

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

The above conclusion is not without basis. Scientific studies point out
that intubation problems are responsible for one-third (1/3) of deaths and
serious injuries associated with anesthesia.
[69]
Nevertheless, ninety-eight
percent (98%) or the vast majority of difficult intubations may be anticipated
by performing a thorough evaluation of the patients airway prior to the
operation.
[70]
As stated beforehand, respondent Dra. Gutierrez failed to
observe the proper pre-operative protocol which could have prevented this
unfortunate incident. Had appropriate diligence and reasonable care been
used in the pre-operative evaluation, respondent physician could have been
much more prepared to meet the contingency brought about by the
perceived anatomic variations in the patients neck and oral area, defects
which would have been easily overcome by a prior knowledge of those
variations together with a change in technique.
[71]
In other words, an
experienced anesthesiologist, adequately alerted by a thorough pre-operative
evaluation, would have had little difficulty going around the short neck and
protruding teeth.
[72]
Having failed to observe common medical standards in
pre-operative management and intubation, respondent Dra. Gutierrez
negligence resulted in cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka
as the head of the surgical team. As the so-called captain of the ship,
[73]
it is
the surgeons responsibility to see to it that those under him perform their
task in the proper manner. Respondent Dr. Hosakas negligence can be found
in his failure to exercise the proper authority (as the captain of the
operative team) in not determining if his anesthesiologist observed proper
anesthesia protocols. In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly
intubated the patient. Furthermore, it does not escape us that respondent Dr.
Hosaka had scheduled another procedure in a different hospital at the same
time as Erlindas cholecystectomy, and was in fact over three hours late for
the latters operation. Because of this, he had little or no time to confer with
his anesthesiologist regarding the anesthesia delivery. This indicates that he
was remiss in his professional duties towards his patient. Thus, he shares
equal responsibility for the events which resulted in Erlindas condition.
We now discuss the responsibility of the hospital in this particular
incident. The unique practice (among private hospitals) of filling up
specialist staff with attending and visiting consultants,
[74]
who are allegedly
not hospital employees, presents problems in apportioning responsibility for
negligence in medical malpractice cases. However, the difficulty is only more
apparent than real.
In the first place, hospitals exercise significant control in the hiring and
firing of consultants and in the conduct of their work within the hospital
premises. Doctors who apply for consultant slots, visiting or attending, are
required to submit proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and references. These
requirements are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital who either
accept or reject the application.
[75]
This is particularly true with respondent
hospital.
After a physician is accepted, either as a visiting or attending consultant,
he is normally required to attend clinico-pathological conferences, conduct
bedside rounds for clerks, interns and residents, moderate grand rounds and
patient audits and perform other tasks and responsibilities, for the privilege
of being able to maintain a clinic in the hospital, and/or for the privilege of
admitting patients into the hospital. In addition to these, the physicians
performance as a specialist is generally evaluated by a peer review
committee on the basis of mortality and morbidity statistics, and feedback
from patients, nurses, interns and residents. A consultant remiss in his
duties, or a consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise real control over
their attending and visiting consultant staff. While consultants are not,
technically employees, a point which respondent hospital asserts in denying
all responsibility for the patients condition, the control exercised, the hiring,
and the right to terminate consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the payment of
wages. In assessing whether such a relationship in fact exists, the control test
is determining. Accordingly, on the basis of the foregoing, we rule that for the
purpose of allocating responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and their attending
and visiting physicians. This being the case, the question now arises as to
whether or not respondent hospital is solidarily liable with respondent
doctors for petitioners condition.
[76]

The basis for holding an employer solidarily responsible for the
negligence of its employee is found in Article 2180 of the Civil Code which
considers a person accountable not only for his own acts but also for those of
others based on the formers responsibility under a relationship of patria
potestas.
[77]
Such responsibility ceases when the persons or entity concerned
prove that they have observed the diligence of a good father of the family to
prevent damage.
[78]
In other words, while the burden of proving negligence
rests on the plaintiffs, once negligence is shown, the burden shifts to the
respondents (parent, guardian, teacher or employer) who should prove that
they observed the diligence of a good father of a family to prevent damage.
In the instant case, respondent hospital, apart from a general denial of
its responsibility over respondent physicians, failed to adduce evidence
showing that it exercised the diligence of a good father of a family in the
hiring and supervision of the latter. It failed to adduce evidence with regard
to the degree of supervision which it exercised over its physicians. In
neglecting to offer such proof, or proof of a similar nature, respondent
hospital thereby failed to discharge its burden under the last paragraph of
Article 2180. Having failed to do this, respondent hospital is consequently
solidarily responsible with its physicians for Erlindas condition.
Based on the foregoing, we hold that the Court of Appeals erred in
accepting and relying on the testimonies of the witnesses for the private
respondents. Indeed, as shown by the above discussions, private
respondents were unable to rebut the presumption of negligence. Upon
these disquisitions we hold that private respondents are solidarily liable for
damages under Article 2176
[79]
of the Civil Code.
We now come to the amount of damages due petitioners. The trial court
awarded a total of P632,000.00 pesos (should be P616,000.00) in
compensatory damages to the plaintiff, subject to its being updated
covering the period from 15 November 1985 up to 15 April 1992, based on
monthly expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by the trial
court at the time of its decision would be grossly inadequate to cover the
actual costs of home-based care for a comatose individual. The calculated
amount was not even arrived at by looking at the actual cost of proper
hospice care for the patient. What it reflected were the actual expenses
incurred and proved by the petitioners after they were forced to bring home
the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital or be
transferred to a hospice specializing in the care of the chronically ill for the
purpose of providing a proper milieu adequate to meet minimum standards
of care. In the instant case for instance, Erlinda has to be constantly turned
from side to side to prevent bedsores and hypostatic pneumonia. Feeding is
done by nasogastric tube. Food preparation should be normally made by a
dietitian to provide her with the correct daily caloric requirements and
vitamin supplements. Furthermore, she has to be seen on a regular basis by a
physical therapist to avoid muscle atrophy, and by a pulmonary therapist to
prevent the accumulation of secretions which can lead to respiratory
complications.
Given these considerations, the amount of actual damages recoverable
in suits arising from negligence should at least reflect the correct minimum
cost of proper care, not the cost of the care the family is usually compelled to
undertake at home to avoid bankruptcy. However, the provisions of the Civil
Code on actual or compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the
plaintiff are those suffered by him as he has duly proved. The Civil Code
provides:
Art. 2199. - Except as provided by law or by stipulation, one is entitled to an
adequate compensation only for such pecuniary loss suffered by him as he
has duly proved. Such compensation is referred to as actual or compensatory
damages.
Our rules on actual or compensatory damages generally assume that at
the time of litigation, the injury suffered as a consequence of an act of
negligence has been completed and that the cost can be liquidated. However,
these provisions neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible future
complications directly arising from the injury, while certain to occur, are
difficult to predict.
In these cases, the amount of damages which should be awarded, if they
are to adequately and correctly respond to the injury caused, should be one
which compensates for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be suffered but
which could not, from the nature of the case, be made with certainty.
[80]
In
other words, temperate damages can and should be awarded on top of actual
or compensatory damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate damages are provided
for. The reason is that these damages cover two distinct phases.
As it would not be equitable - and certainly not in the best interests of
the administration of justice - for the victim in such cases to constantly come
before the courts and invoke their aid in seeking adjustments to the
compensatory damages previously awarded - temperate damages are
appropriate. The amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based
nursing care for a comatose patient who has remained in that condition for
over a decade. Having premised our award for compensatory damages on
the amount provided by petitioners at the onset of litigation, it would be now
much more in step with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide optimal care for their
loved one in a facility which generally specializes in such care. They should
not be compelled by dire circumstances to provide substandard care at home
without the aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of P1,500,000.00 in
temperate damages would therefore be reasonable.
[81]

In Valenzuela vs. Court of Appeals,
[82]
this Court was confronted with a
situation where the injury suffered by the plaintiff would have led to
expenses which were difficult to estimate because while they would have
been a direct result of the injury (amputation), and were certain to be
incurred by the plaintiff, they were likely to arise only in the future. We
awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a
traumatic amputation of her left lower extremity at the distal left
thigh just above the knee. Because of this, Valenzuela will forever
be deprived of the full ambulatory functions of her left extremity,
even with the use of state of the art prosthetic technology. Well
beyond the period of hospitalization (which was paid for by Li), she
will be required to undergo adjustments in her prosthetic devise
due to the shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and months
of physical and occupational rehabilitation and therapy. During her
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.
x x x.
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 petitioners condition
remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victims actual
injury would not even scratch the surface of the resulting moral damage
because it would be highly speculative to estimate the amount of emotional
and moral pain, psychological damage and injury suffered by the victim or
those actually affected by the victims condition.
[84]
The husband and the
children, all petitioners in this case, will have to live with the day to day
uncertainty of the patients illness, knowing any hope of recovery is close to
nil. They have fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged with the moral
responsibility of the care of the victim. The familys moral injury and
suffering in this case is clearly a real one. For the foregoing reasons, an
award of P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount
of P100,000.00 are hereby awarded. Considering the length and nature of the
instant suit we are of the opinion that attorneys fees valued at P100,000.00
are likewise proper.
Our courts face unique difficulty in adjudicating medical negligence
cases because physicians are not insurers of life and, they rarely set out to
intentionally cause injury or death to their patients. However, intent is
immaterial in negligence cases because where negligence exists and is
proven, the same automatically gives the injured a right to reparation for the
damage caused.
Established medical procedures and practices, though in constant flux
are devised for the purpose of preventing complications. A physicians
experience with his patients would sometimes tempt him to deviate from
established community practices, and he may end a distinguished career
using unorthodox methods without incident. However, when failure to follow
established procedure results in the evil precisely sought to be averted by
observance of the procedure and a nexus is made between the deviation and
the injury or damage, the physician would necessarily be called to account for
it. In the case at bar, the failure to observe pre-operative assessment protocol
which would have influenced the intubation in a salutary way was fatal to
private respondents case.
WHEREFORE, the decision and resolution of the appellate court
appealed from are hereby modified so as to award in favor of petitioners, and
solidarily against private respondents the following: 1) P1,352,000.00 as
actual damages computed as of the date of promulgation of this decision plus
a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos
expires or miraculously survives; 2)P2,000,000.00 as moral damages,
3) P1,500,000.00 as temperate damages; 4)P100,000.00 each as exemplary
damages and attorneys fees; and, 5) the costs of the suit.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo and Ynares-Santiago, JJ., concur.



[1]
In the United States alone, a great number of people die every year as a
result of medical mishaps. The 13 December 1999 issue of TIME MAGAZINE
featured an article on medical negligence entitled Doctors Deadly Mistakes
which is quoted in part: It is hardly news that medical professionals make
mistakes even dumb, deadly mistakes. What is shocking is how often it
happens. Depending on which statistics you believe, the number of
Americans killed by medical screw-ups is somewhere between 44,000 and
98,000 every year the eighth leading cause of death even by the more
conservative figure, ahead of car crashes, breast cancer and AIDS. More
astonishing than the huge numbers themselves, though, is the fact that public
health officials had known about the problem for years and hadnt made a
concerted effort to do something about it.
































G.R. No. 130547 October 3, 2000
LEAH ALESNA REYES, ET AL. vs. SISTERS OF MERCY HOSPITAL, ET AL.
SECOND DIVISION
This is a petition for review of the decision 1 of the Court of Appeals in CA-
G.R. CV No. 36551 affirming the decision of the Regional Trial Court, Branch
IX, Cebu City which dismissed a complaint for damages filed by petitioners
against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The other
petitioners, namely, Rose Nahdja, Johnny, Lloyd, and Kristine, all surnamed
Reyes, were their children. Five days before his death on January 8, 1987,
Jorge had been suffering from a recurring fever with chills. After he failed to
get relief from some home medication he was taking, which consisted of
analgesic, antipyretic, and antibiotics, he decided to see the doctor.
On January 8, 1987, he was taken to the Mercy Community Clinic by his wife.
He was attended to by respondent Dr. Marlyn Rico, resident physician and
admitting physician on duty, who gave Jorge a physical examination and took
his medical history. She noted that at the time of his admission, Jorge was
conscious, ambulatory, oriented, coherent, and with respiratory distress. 2
Typhoid fever was then prevalent in the locality, as the clinic had been
getting from 15 to 20 cases of typhoid per month. 3 Suspecting that Jorge
could be suffering from this disease, Dr. Rico ordered a Widal Test, a standard
test for typhoid fever, to be performed on Jorge. Blood count, routine
urinalysis, stool examination, and malarial smear were also made. 4 After
about an hour, the medical technician submitted the results of the test from
which Dr. Rico concluded that Jorge was positive for typhoid fever. As her
shift was only up to 5:00 p.m., Dr. Rico indorsed Jorge to respondent Dr.
Marvie Blanes.
Dr. Marvie Blanes attended to Jorge at around six in the evening. She also
took Jorge's history and gave him a physical examination. Like Dr. Rico, her
impression was that Jorge had typhoid fever. Antibiotics being the accepted
treatment for typhoid fever, she ordered that a compatibility test with the
antibiotic chloromycetin be done on Jorge. Said test was administered by
nurse Josephine Pagente who also gave the patient a dose of triglobe. As she
did not observe any adverse reaction by the patient to chloromycetin, Dr.
Blanes ordered the first five hundred milligrams of said antibiotic to be
administered on Jorge at around 9:00 p.m. A second dose was administered
on Jorge about three hours later just before midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as Jorge's
temperature rose to 41C. The patient also experienced chills and exhibited
respiratory distress, nausea, vomiting, and convulsions. Dr. Blanes put him
under oxygen, used a suction machine, and administered hydrocortisone,
temporarily easing the 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 complaint 6 for damages against respondents Sisters of Mercy, Sister Rose
Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine Pagente. On
September 24, 1987, petitioners amended their complaint to implead
respondent Mercy Community Clinic as additional defendant and to drop the
name of Josephine Pagente as defendant since she was no longer connected
with respondent hospital Their principal contention was that Jorge did not
die of typhoid fever. 7 Instead, his death was due to the wrongful
administration of chloromycetin. They contended that had respondent
doctors exercised due care and diligence, they would not have recommended
and rushed the performance of the Widal Test, hastily concluded that Jorge
was suffering from typhoid fever, and administered chloromycetin without
first conducting sufficient tests on the 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 findings 9 showed that the gastro-intestinal tract was normal and without
any ulceration or enlargement of the nodules. Dr. Vacalares testified that
Jorge did not die of typhoid fever. He also stated that he had not seen a
patient die of typhoid fever within five days from the onset of the disease.
For their part, respondents offered the testimonies of Dr. Peter Gotiong and
Dr. Ibarra Panopio. Dr. Gotiong is a diplomate in internal medicine whose
expertise is microbiology and infectious diseases. He is also a consultant at
the Cebu City Medical Center and an associate professor of medicine at the
South Western University College of Medicine in Cebu City. He had treated
over a thousand cases of typhoid patients. According to Dr. Gotiong, the
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'
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
loquitur is availed by the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the proof of negligence. The
reason is that the general rule on the necessity of expert testimony applies
only to such matters clearly within the domain of medical science, and not to
matters that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. Ordinarily, only physicians and
surgeons of skill and experience are competent to testify as to whether a
patient has been treated or operated upon with a reasonable degree of skill
and care. However, testimony as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses. Hence, in cases
where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the
aid of expert testimony. where the court from its fund of common knowledge
can determine the proper standard of care. Where common knowledge and
experience teach that a resulting injury would not have occurred to the
patient if due care had been exercised, an inference of negligence may be
drawn giving rise to an application of the doctrine of res ipsa loquitur
without medical evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. When the doctrine is appropriate, all
that the patient must do is prove a nexus between the particular act or
omission complained of and the injury sustained while under the custody and
management of the defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and ordinary conditions,
by which the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an
operation, injuries sustained on a healthy part of the body which was not
under, or in the area, of treatment, removal of the wrong part of the body
when another part was intended, knocking out a tooth while a 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 gallbladder 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?
A In our case we had no widal test that time so we cannot consider that
the typhoid fever is like this and like that. And the widal test does not specify
the time of the typhoid fever.
Q The question is: how many typhoid fever cases had you seen in your
general practice regardless of the cases now you practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis.
Both lower courts were therefore correct in discarding his testimony, which
is really inadmissible.
In Ramos, the defendants presented the testimony of a pulmonologist to
prove that brain injury was due to oxygen deprivation after the patient had
bronchospasms 24 triggered by her allergic response to a drug, 25 and not
due to faulty intubation by the anesthesiologist. As the issue was whether the
intubation was properly performed by an anesthesiologist, we rejected the
opinion of the pulmonologist on the ground that he was not: (1) an
anesthesiologist who could enlighten the court about anesthesia practice,
procedure, and their complications; nor (2) an allergologist who could
properly advance expert opinion on allergic mediated processes; nor (3) a
pharmacologist who could explain the pharmacologic and toxic effects of the
drug allegedly responsible for the bronchospasms.
Second. On the other hand, the two doctors presented by respondents clearly
were experts on the subject. They vouched for the correctness of Dr. Marlyn
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 chloramphenicol. EHSTcC
Q Doctor, if given the same patient and after you have administered
chloramphenicol about 3 1/2 hours later, the patient associated with chills,
temperature 41C, what could possibly come to your mind? aETASc
A Well, when it is change in the clinical finding, you have to think of
complication. STcaDI
Q And what will you consider on the complication of typhoid? TCaEIc
A One must first understand that typhoid fever is toxemia. 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 milligrams, 3 hours later, the patient
developed chills . . . rise in temperature to 41C, and then about 40 minutes
later the temperature rose to 100F, 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 vomiting . . . 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 hyperplasia
31 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 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 shock 38 or
possibly from overdose as the second dose should have been administered
five to six hours after the first, per instruction of Dr. Marlyn Rico. As held by
the Court of Appeals, however:
That chloromycetin was likewise a proper prescription is best established by
medical authority. Wilson, et. al., in Harrison's Principle of Internal Medicine,
12th ed. write that chloramphenicol (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.
xxx xxx xxx
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
individuals. It is a right earned through years of education, training, and by
first obtaining a license from the state through professional board
examinations. Such license may, at any time and for cause, be revoked by the
government. In addition to state regulation, the conduct of doctors is also
strictly governed by the Hippocratic Oath, an ancient code of discipline and
ethical rules which doctors have imposed upon themselves in recognition and
acceptance of their great responsibility to society. Given these safeguards,
there is no need to expressly require of doctors the observance of
"extraordinary" diligence. As it is now, the practice of medicine is already
conditioned upon the highest degree of diligence. And, as we have already
noted, the standard contemplated for doctors is simply the reasonable
average merit among ordinarily good physicians. That is reasonable diligence
for doctors or, as the Court of Appeals 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. 124354 April 11, 2002
ROGELIO E. RAMOS, ET AL. vs. COURT OF APPEALS, ET AL.
FIRST DIVISION
Private respondents De Los Santos Medical Center, Dr. Orlino Hosaka and Dr.
Perfecta Gutierrez move for a reconsideration of the Decision, dated
December 29, 1999, of this Court holding them civilly liable for petitioner
Erlinda Ramos' comatose condition after she delivered herself to them for
their professional care and management. EICDSA
For better understanding of the issues raised in private respondents'
respective motions, we will briefly restate the facts of the case as follows:
Sometime in 1985, petitioner Erlinda Ramos, after seeking professional
medical help, was advised to undergo an operation for the removal of a stone
in her gall bladder (cholecystectomy). She was referred to Dr. Hosaka, a
surgeon, who agreed to perform the operation on her. The operation was
scheduled for June 17, 1985 at 9:00 in the morning at private respondent De
Los Santos Medical Center (DLSMC). Since neither petitioner Erlinda nor her
husband, petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka
recommended to them the services of Dr. Gutierrez. CHmPco
Petitioner Erlinda was admitted to the DLSMC the day before the scheduled
operation. By 7:30 in the morning of the following day, petitioner Erlinda was
already being prepared for operation. Upon the request of petitioner Erlinda,
her sister-in-law, Herminda Cruz, who was then Dean of the College of
Nursing at the Capitol Medical Center, was allowed to accompany her inside
the operating room.
At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr.
Gutierrez tried to get in touch with him by phone. Thereafter, Dr. Gutierrez
informed Cruz that the operation might be delayed due to the late arrival of
Dr. Hosaka. In the meantime, the patient, petitioner Erlinda said to Cruz,
"Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor."
By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner
Rogelio already wanted to pull out his wife from the operating room. He met
Dr. Garcia, who remarked that he was also tired of waiting for Dr. Hosaka. Dr.
Hosaka finally arrived at the hospital at around 12:10 in the afternoon, or
more than three (3) hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard about Dr. Hosaka's
arrival. While she held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to
intubate the patient. Cruz heard Dr. Gutierrez utter: "ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan." Cruz noticed a bluish
discoloration of Erlinda's nailbeds on her left hand. She (Cruz) then heard Dr.
Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When
he arrived, Dr. Calderon attempted to intubate the patient. The nailbeds of
the patient remained bluish, thus, she was placed in a trendelenburg position
a position where the head of the patient is placed in a position lower than
her feet. At this point, Cruz went out of the operating room to express her
concern to petitioner Rogelio that Erlinda's operation was not going well.
Cruz quickly rushed back to the operating room and saw that the patient was
still in trendelenburg position. At almost 3:00 in the afternoon, she saw
Erlinda being wheeled to the Intensive Care Unit (ICU). The doctors explained
to petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the
ICU for a month. She was released from the hospital only four months later or
on November 15, 1985. Since the ill-fated operation, Erlinda remained in
comatose condition until she died on August 3, 1999. 1
Petitioners filed with the Regional Trial Court of Quezon City a civil case for
damages against private respondents. After due trial, the court a quo
rendered judgment in favor of petitioners. Essentially, the trial court found
that private respondents were negligent in the performance of their duties to
Erlinda. On appeal by private respondents, the Court of Appeals reversed the
trial court's decision and directed petitioners to pay their "unpaid medical
bills" to private respondents.
Petitioners filed with this Court a petition for review on certiorari. The
private respondents were then required to submit their respective comments
thereon. On December 29, 1999, this Court promulgated the decision which
private respondents now seek to be reconsidered. The dispositive portion of
said Decision states:
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 exemplary
damages and attorney's fees; and 5) the costs of the suit. 2
In his Motion for Reconsideration, private respondent Dr. Hosaka submits the
following as grounds therefor:
I
THE HONORABLE SUPREME COURT COMMITTED REVERSIBLE ERROR
WHEN IT HELD RESPONDENT DR. HOSAKA LIABLE ON THE BASIS OF THE
"CAPTAIN-OF-THE-SHIP" DOCTRINE.
II
THE HONORABLE SUPREME COURT ERRED IN HOLDING RESPONDENT DR.
HOSAKA LIABLE DESPITE THE FACT THAT NO NEGLIGENCE CAN BE
ATTRIBUTABLE TO HIM.
III
ASSUMING WITHOUT ADMITTING THAT RESPONDENT DR. HOSAKA IS
LIABLE, THE HONORABLE SUPREME COURT ERRED IN AWARDING
DAMAGES THAT WERE CLEARLY EXCESSIVE AND WITHOUT LEGAL BASIS. 3
Private respondent Dr. Gutierrez, for her part, avers that:
A. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY
OVERLOOKED THE FACT THAT THE COURT OF APPEAL'S DECISION DATED
29 MAY 1995 HAD ALREADY BECOME FINAL AND EXECUTORY AS OF 25
JUNE 1995, THEREBY DEPRIVING THIS HONORABLE COURT OF
JURISDICTION OVER THE INSTANT PETITION;
B. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY
OVERLOOKED SEVERAL MATERIAL FACTUAL CIRCUMSTANCES WHICH, IF
PROPERLY CONSIDERED, WOULD INDUBITABLY LEAD TO NO OTHER
CONCLUSION BUT THAT PRIVATE RESPONDENT DOCTORS WERE NOT
GUILTY OF ANY NEGLIGENCE IN RESPECT OF THE INSTANT CASE;
B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY
DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER
COMPLIANCE WITH THE STANDARDS OF DUE CARE EXPECTED IN HER
RESPECTIVE FIELD OF MEDICAL SPECIALIZATION.
B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ HAS SUFFICIENTLY
DISCHARGED THE BURDEN OF EVIDENCE BY SUBSTANTIAL PROOF OF HER
HAVING SUCCESSFULLY INTUBATED PATIENT ERLINDA RAMOS
C. THE SUPREME COURT MAY HAVE INADVERTENTLY PLACED TOO
MUCH RELIANCE ON THE TESTIMONY OF PETITIONER'S WITNESS
HERMINDA CRUZ, DESPITE THE EXISTENCE OF SEVERAL FACTUAL
CIRCUMSTANCES WHICH RENDERS DOUBT ON HER CREDIBILITY
D. THE SUPREME COURT MAY HAVE INADVERTENTLY DISREGARDED
THE EXPERT TESTIMONY OF DR. JAMORA AND DRA. CALDERON
E. THE HONORABLE SUPREME COURT MAY HAVE INADVERTENTLY
AWARDED DAMAGES TO PETITIONERS DESPITE THE FACT THAT THERE
WAS NO NEGLIGENCE ON THE PART OF RESPONDENT DOCTOR. 4
Private respondent De Los Santos Medical Center likewise moves for
reconsideration on the following grounds:
I
THE HONORABLE COURT ERRED IN GIVING DUE COURSE TO THE INSTANT
PETITION AS THE DECISION OF THE HONORABLE COURT OF APPEALS HAD
ALREADY BECOME FINAL AND EXECUTORY
II
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT AN
EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS BETWEEN RESPONDENT
DE LOS SANTOS MEDICAL CENTER AND DRS. ORLINO HOSAKA AND
PERFECTA GUTIERREZ
III
THE HONORABLE SUPREME COURT ERRED IN FINDING THAT RESPONDENT
DE LOS SANTOS MEDICAL CENTER IS SOLIDARILY LIABLE WITH
RESPONDENT DOCTORS
IV
THE HONORABLE SUPREME COURT ERRED IN INCREASING THE AWARD OF
DAMAGES IN FAVOR OF PETITIONERS. 5
In the Resolution of February 21, 2000, this Court denied the motions for
reconsideration of private respondents Drs. Hosaka and Gutierrez. They then
filed their respective second motions for reconsideration. The Philippine
College of Surgeons filed its Petition-in-Intervention contending in the main
that this Court erred in holding private respondent Dr. Hosaka liable under
the captain of the ship doctrine. According to the intervenor, said doctrine
had long been abandoned in the United States in recognition of the
developments in modern medical and hospital practice. 6 The Court noted
these pleadings, in the Resolution of July 17, 2000. 7 CHmPco
On March 19, 2001, the Court heard the oral arguments of the parties,
including the intervenor. Also present during the hearing were the amici
curiae: Dr. Felipe A. Estrella, Jr., Consultant of the Philippine Charity
Sweepstakes, former Director of the Philippine General Hospital and former
Secretary of Health; Dr. Iluminada T. Camagay, President of the Philippine
Society of Anesthesiologists, Inc. and Professor and Vice-Chair for Research,
Department of Anesthesiology, College of Medicine-Philippine General
Hospital, University of the Philippines; and Dr. Lydia M. Egay, Professor and
Vice-Chair for Academics, Department of Anesthesiology, College of Medicine-
Philippine General Hospital, University of the Philippines.
The Court enumerated the issues to be resolved in this case as follows:
1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR
NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ
(ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL
CENTER) IS LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED BY THEIR
VISITING CONSULTANT SURGEON AND ANESTHESIOLOGIST. 8
We shall first resolve the issue pertaining to private respondent Dr. Gutierrez.
She maintains that the Court erred in finding her negligent and in holding
that it was the faulty intubation which was the proximate cause of Erlinda's
comatose condition. The following objective facts allegedly negate a finding of
negligence on her part: 1) That the outcome of the procedure was a comatose
patient and not a dead one; 2) That the patient had a cardiac arrest; and 3)
That the patient was revived from that cardiac arrest. 9 In effect, Dr.
Gutierrez insists that, contrary to the finding of this Court, the intubation she
performed on Erlinda was successful.
Unfortunately, Dr. Gutierrez' claim of lack of negligence on her part is belied
by the records of the case. It has been sufficiently established that she failed
to exercise the standards of care in the administration of anesthesia on a
patient. Dr. Egay enlightened the Court on what these standards are:
. . . What are the standards of care that an anesthesiologist should do before
we administer anesthesia? The initial step is the preparation of the patient
for surgery and this is a pre-operative evaluation because the
anesthesiologist is responsible for determining the medical status of the
patient, developing the anesthesia plan and acquainting the patient or the
responsible adult particularly if we are referring with the patient or to adult
patient who may not have, who may have some mental handicaps of the
proposed plans. We do pre-operative evaluation because this provides for an
opportunity for us to establish identification and personal acquaintance with
the patient. It also makes us have an opportunity to alleviate anxiety, explain
techniques and risks to the patient, given the patient the choice and
establishing consent to proceed with the plan. And lastly, once this has been
agreed upon by all parties concerned the ordering of pre-operative
medications. And following this line at the end of the evaluation we usually
come up on writing, documentation is very important as far as when we train
an anesthesiologist we always emphasize this because we need records for
our protection, well, records. And it entails having brief summary of patient
history and physical findings pertinent to anesthesia, plan, organize as a
problem list, the plan anesthesia technique, the plan post operative, pain
management if appropriate, special issues for this particular patient. There
are needs for special care after surgery and if it so it must be written down
there and a request must be made known to proper authorities that such and
such care is necessary. And the request for medical evaluation if there is an
indication. When we ask for a cardio-pulmonary clearance it is not in fact to
tell them if this patient is going to be fit for anesthesia, the decision to give
anesthesia rests on the anesthesiologist. What we ask them is actually to give
us the functional capacity of certain systems which may be affected by the
anesthetic agent or the technique that we are going to use. But the burden of
responsibility in terms of selection of agent and how to administer it rest on
the anesthesiologist. 10
The conduct of a preanesthetic/preoperative evaluation prior to an
operation, whether elective or emergency, cannot be dispensed with. 11 Such
evaluation is necessary for the formulation of a plan of anesthesia care suited
to the needs of the patient concerned.
Pre-evaluation for anesthesia involves taking the patient's medical history,
reviewing his current drug therapy, conducting physical examination,
interpreting laboratory data, and determining the appropriate prescription of
preoperative medications as necessary to the conduct of anesthesia. 12
Physical examination of the patient entails not only evaluating the patient's
central nervous system, cardiovascular system and lungs but also the upper
airway. Examination of the upper airway would in turn include an analysis of
the patient's cervical spine mobility, temporomandibular mobility, prominent
central incisors, deceased or artificial teeth, ability to visualize uvula and the
thyromental distance. 13
Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative
evaluation on Erlinda. As she herself admitted, she saw Erlinda for the first
time on the day of the operation itself, one hour before the scheduled
operation. She auscultated 14 the patient's heart and lungs and checked the
latter's blood pressure to determine if Erlinda was indeed fit for operation.
15 However, she did not proceed to examine the patient's airway. Had she
been able to check petitioner Erlinda's airway prior to the operation, Dr.
Gutierrez would most probably not have experienced difficulty in intubating
the former, and thus the resultant injury could have been avoided. As we
have stated in our Decision:
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. 16
Further, there is no cogent reason for the Court to reverse its finding that it
was the faulty intubation on Erlinda that caused her comatose condition.
There is no question that Erlinda became comatose after Dr. Gutierrez
performed a medical procedure on her. Even the counsel of Dr. Gutierrez
admitted to this fact during the oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this involves a comatose
patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
How do you mean by that, a comatose, a comatose after any other acts were
done by Dr. Gutierrez or comatose before any act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after some intervention,
professional acts have been done by Dr. Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a consequence of some acts
performed by D. Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.
What is left to be determined therefore is whether Erlinda's hapless
condition was due to any fault or negligence on the part of Dr. Gutierrez while
she (Erlinda) was under the latter's care. Dr. Gutierrez maintains that the
bronchospasm and cardiac arrest resulting in the patient's comatose
condition was brought about by the anaphylactic reaction of the patient to
Thiopental Sodium (pentothal). In the Decision, we explained why we found
Dr. Gutierrez' theory unacceptable. In the first place, Dr. Eduardo Jamora, the
witness who was presented to support her (Dr. Gutierrez) theory, was a
pulmonologist. Thus, he could not be considered an authority on anesthesia
practice and procedure and their complications.
Secondly, there was no evidence on record to support the theory that Erlinda
developed an allergic reaction to pentothal. Dr. Camagay enlightened the
Court as to the manifestations of an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical terminology an allergic
reaction is something which is not usual response and it is further qualified
by the release of a hormone called histamine and histamine has an effect on
all the organs of the body generally release because the substance that
entered the body reacts with the particular cell, the mass cell, and the mass
cell secretes this histamine. In a way it is some form of response to take away
that which is not mine, which is not part of the body. So, histamine has
multiple effects on the body. So, one of the effects as you will see you will
have redness, if you have an allergy you will have tearing of the eyes, you will
have swelling, very crucial swelling sometimes of the larynges which is your
voice box main airway, that swelling may be enough to obstruct the entry of
air to the trachea and you could also have contraction, constriction of the
smaller airways beyond the trachea, you see you have the trachea this way,
we brought some visual aids but unfortunately we do not have a projector.
And then you have the smaller airways, the bronchi and then eventually into
the mass of the lungs you have the bronchus. The difference is that these
tubes have also in their walls muscles and this particular kind of muscles is
smooth muscle so, when histamine is released they close up like this and that
phenomenon is known as bronco spasm. However, the effects of histamine
also on blood vessels are different. They dilate blood vessel open up and the
patient or whoever has this histamine release has hypertension or low blood
pressure to a point that the patient may have decrease blood supply to the
brain and may collapse so, you may have people who have this. 20
These symptoms of an allergic reaction were not shown to have been extant
in Erlinda's case. As we held in our Decision, "no evidence of stridor, skin
reactions, or wheezing some of the more common accompanying signs of
an allergic reaction appears on record. No laboratory data were ever
presented to the court."
Dr. Gutierrez, however, insists that she successfully intubated Erlinda as
evidenced by the fact that she was revived after suffering from cardiac arrest.
Dr. Gutierrez faults the Court for giving credence to the testimony of Cruz on
the matter of the administration of anesthesia when she (Cruz), being a
nurse, was allegedly not qualified to testify thereon. Rather, Dr. Gutierrez
invites the Court's attention to her synopsis on what transpired during
Erlinda's intubation:
12:15 p.m. Patient was inducted with sodium pentothal 2.5% (250 mg)
given by slow IV. 02 was started by mask. After pentothal injection this was
followed by IV injection of Norcuron 4 mg. After 2 minutes 02 was given by
positive pressure for about one minute. Intubation with endotracheal tube
7.5 m. in diameter was done with slight difficulty (short neck & slightly
prominent upper teeth) chest was examined for breath sounds & checked if
equal on both sides. The tube was then anchored to the mouth by plaster &
cuff inflated. Ethrane 2% with 02 4 liters was given. Blood pressure was
checked 120/80 & heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was cyanotic. Ethrane was
discontinued & 02 given alone. Cyanosis disappeared. Blood pressure and
heart beats stable.
12:30 p.m. Cyanosis again reappeared this time with sibilant and
sonorous rales all over the chest. D_5%_H2O & 1 ampule of aminophyline by
fast drip was started. Still the cyanosis was persistent. Patient was connected
to a cardiac monitor. Another ampule of of [sic] aminophyline was given and
solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra cardiac massage and
intercardiac injection of adrenalin was given & heart beat reappeared in less
than one minute. Sodium bicarbonate & another dose of solu cortef was given
by IV. Cyanosis slowly disappeared & 02 continuously given & assisted
positive pressure. Laboratory exams done (see results in chart).
Patient was transferred to ICU for further management. 22
From the foregoing, it can be allegedly seen that there was no withdrawal
(extubation) of the tube. And the fact that the cyanosis allegedly disappeared
after pure oxygen was supplied through the tube proved that it was properly
placed.
The Court has reservations on giving evidentiary weight to the entries
purportedly contained in Dr. Gutierrez' synopsis. It is significant to note that
the said record prepared by Dr. Gutierrez was made only after Erlinda was
taken out of the operating room. The standard practice in anesthesia is that
every single act that the anesthesiologist performs must be recorded. In Dr.
Gutierrez' case, she could not account for at least ten (10) minutes of what
happened during the administration of anesthesia on Erlinda. The following
exchange between Dr. Estrella, one of the amici curiae, and Dr. Gutierrez is
instructive:
DR. ESTRELLA
Q. You mentioned that there were two (2) attempts in the intubation
period?
DR. GUTIERREZ
Yes.
Q There were two attempts. In the first attempt was the tube inserted
or was the laryngoscope only inserted, which was inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember right somewhere in the re-
direct, a certain lawyer, you were asked that you did a first attempt and the
question was did you withdraw the tube? And you said you never
withdrew the tube, is that right?
A Yes.
Q Yes. And so if you never withdrew the tube then there was no, there
was no insertion of the tube during that first attempt. Now, the other thing
that we have to settle here is when cyanosis occurred, is it recorded in the
anesthesia record when the cyanosis, in your recording when did the
cyanosis occur?
A (sic)
Q Is it a standard practice of anesthesia that whatever you do during
that period or from the time of induction to the time that you probably get
the patient out of the operating room that every single action that you do is
so recorded in your anesthesia record?
A I was not able to record everything I did not have time anymore
because I did that after the, when the patient was about to leave the
operating room. When there was second cyanosis already that was the
(interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started induction at 12:15?
A Yes, Your Honor.
Q And the first medication you gave was what?
A The first medication, no, first the patient was oxygenated for around
one to two minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the resident physician to start giving the
pentothal very slowly and that was around one minute.
Q So, that is about 12:13 no, 12:15, 12:17?
A Yes, and then, after one minute another oxygenation was given and
after (interrupted)
Q 12:18?
A Yes, and then after giving the oxygen we start the menorcure which
is a relaxant. After that relaxant (interrupted)
Q After that relaxant, how long do you wait before you do any
manipulation?
A Usually you wait for two minutes or three minutes.
Q So, if our estimate of the time is accurate we are now more or less
12:19, is that right?
A May be.
Q 12:19. And at that time, what would have been done to this patient?
A After that time you examine the, if there is relaxation of the jaw
which you push it downwards and when I saw that the patient was relax
because that monorcure is a relaxant, you cannot intubate the patient or
insert the laryngoscope if it is not keeping him relax. So, my first attempt
when I put the laryngoscope on I saw the trachea was deeply interiorly. So,
what I did ask "mahirap ata ito ah." So, I removed the laryngoscope and
oxygenated again the patient.
Q So, more or less you attempted to do an intubation after the first
attempt as you claimed that it was only the laryngoscope that was inserted.
A Yes.
Q And in the second attempt you inserted the laryngoscope and now
possible intubation?
A Yes.
Q And at that point, you made a remark, what remark did you make?
A I said "mahirap ata ito" when the first attempt I did not see the
trachea right away. That was when I (interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able to intubate right away within two
to three seconds.
Q At what point, for purposes of discussion without accepting it, at
what point did you make the comment "na mahirap ata to intubate, mali ata
ang pinasukan"
A I did not say "mali ata ang pinasukan" I never said that.
Q Well, just for the information of the group here the remarks I am
making is based on the documents that were forwarded to me by the
Supreme Court. That is why for purposes of discussion I am trying to clarify
this for the sake of enlightenment. So, at what point did you ever make that
comment?
A Which one, sir?
Q The "mahirap intubate ito" assuming that you (interrupted)
A Iyon lang, that is what I only said "mahirap intubate (interrupted)
Q At what point?
A When the first attempt when I inserted the laryngoscope for the first
time.
Q So, when you claim that at the first attempt you inserted the
laryngoscope, right?
A Yes.
Q But in one of the recordings somewhere at the, somewhere in the
transcript of records that when the lawyer of the other party try to inquire
from you during the first attempt that was the time when "mayroon ba
kayong hinugot sa tube, I do not remember the page now, but it seems to me
it is there. So, that it was on the second attempt that (interrupted)
A I was able to intubate.
Q And this is more or less about what time 12:21?
A May be, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21 and looking at the
anesthesia records from 12:20 to 12:30 there was no recording of the vital
signs. And can we presume that at this stage there was already some
problems in handling the patient?
A Not yet.
Q But why are there no recordings in the anesthesia record?
A I did not have time.
Q Ah, you did not have time, why did you not have time?
A Because it was so fast, I really (at this juncture the witness is
laughing)
Q No, I am just asking. Remember I am not here not to pin point on
anybody I am here just to more or less clarify certainty more or less on the
record.
A Yes, Sir.
Q And so it seems that there were no recording during that span of ten
(10) minutes. From 12:20 to 12:30, and going over your narration, it seems to
me that the cyanosis appeared ten (10) minutes after induction, is that right?
A Yes.
Q And that is after induction 12:15 that is 12:25 that was the first
cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just trying to enlighten, I am just
going over the record ano, kung mali ito kuwan eh di ano. So, ganoon po ano,
that it seems to me that there is no recording from 12:20 to 12:30, so, I am
just wondering why there were no recordings during the period and then of
course the second cyanosis, after the first cyanosis. I think that was the time
Dr. Hosaka came in?
A No, the first cyanosis (interrupted). 23
We cannot thus give full credence to Dr. Gutierrez' synopsis in light of her
admission that it does not fully reflect the events that transpired during the
administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there
was a ten-minute gap in Dr. Gutierrez' synopsis, i.e., the vital signs of Erlinda
were not recorded during that time. The absence of these data is particularly
significant because, as found by the trial court, it was the absence of oxygen
supply for four (4) to five (5) minutes that caused Erlinda's comatose
condition.
On the other hand, the Court has no reason to disbelieve the testimony of
Cruz. As we stated in the Decision, she is competent to testify on matters
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. 24 Cruz, Erlinda's sister-in-law, was with her
inside the operating room. Moreover, being a nurse and Dean of the Capitol
Medical Center School of Nursing at that, she is not entirely ignorant of
anesthetic procedure. Cruz narrated that she heard Dr. Gutierrez remark,
"Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan." She observed that the nailbeds of Erlinda became bluish and
thereafter Erlinda was placed in trendelenburg position. 25 Cruz further
averred that she noticed that the abdomen of Erlinda became distended. 26
The cyanosis (bluish discoloration of the skin or mucous membranes caused
by lack of oxygen or abnormal hemoglobin in the blood) and enlargement of
the stomach of Erlinda indicate that the endotracheal tube was improperly
inserted into the esophagus instead of the trachea. Consequently, oxygen was
delivered not to the lungs but to the gastrointestinal tract. This conclusion is
supported by the fact that Erlinda was placed in trendelenburg position. This
indicates that there was a decrease of blood supply to the patient's brain. The
brain was thus temporarily deprived of oxygen supply causing Erlinda to go
into coma.
The injury incurred by petitioner Erlinda does not normally happen absent
any negligence in the administration of anesthesia and in the use of an
endotracheal tube. As was noted in our Decision, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under
the exclusive control of private respondents Dr. Gutierrez and Dr. Hosaka. 27
In Voss vs. Bridwell, 28 which involved a patient who suffered brain damage
due to the wrongful administration of anesthesia, and even before the
scheduled mastoid operation could be performed, the Kansas Supreme Court
applied the doctrine of res ipsa loquitur, reasoning that the injury to the
patient therein was one which does not ordinarily take place in the absence
of negligence in the administration of an anesthetic, and in the use and
employment of an endotracheal tube. The court went on to say that
"[o]rdinarily 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. 29
Considering the application of the doctrine of res ipsa loquitur, the testimony
of Cruz was properly given credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court erred in finding him
negligent as a surgeon by applying the Captain-of-the-Ship doctrine. 30 Dr.
Hosaka argues that the trend in United States jurisprudence has been to
reject said doctrine in light of the developments in medical practice. He
points out that anesthesiology and surgery are two distinct and specialized
fields in medicine and as a surgeon, he is not deemed to have control over the
acts of Dr. Gutierrez. As anesthesiologist, Dr. Gutierrez is a specialist in her
field and has acquired skills and knowledge in the course of her training
which Dr. Hosaka, as a surgeon, does not possess. 31 He states further that
current American jurisprudence on the matter recognizes that the trend
towards specialization in medicine has created situations where surgeons do
not always have the right to control all personnel within the operating room,
32 especially a fellow specialist. 33
Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital, 34 which
involved a suit filed by a patient who lost his voice due to the wrongful
insertion of the endotracheal tube preparatory to the administration of
anesthesia in connection with the laparotomy to be conducted on him. The
patient sued both the anesthesiologist and the surgeon for the injury suffered
by him. The Supreme Court of Appeals of West Virginia held that the surgeon
could not be held liable for the loss of the patient's voice, considering that the
surgeon did not have a hand in the intubation of the patient. The court
rejected the application of the "Captain-of-the-Ship Doctrine," citing the fact
that the field of medicine has become specialized such that surgeons can no
longer be deemed as having control over the other personnel in the operating
room. It held that "[a]n assignment of liability based on actual control more
realistically reflects the actual relationship which exists in a modern
operating room." 35 Hence, only the anesthesiologist who inserted the
endotracheal tube into the patient's throat was held liable for the injury
suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away with the Captain-
of-the-Ship doctrine does not mean that this Court will ipso facto follow said
trend. Due regard for the peculiar factual circumstances obtaining in this case
justify the application of the Captain-of-the-Ship doctrine. From the facts on
record it can be logically inferred that Dr. Hosaka exercised a certain degree
of, at the very least, supervision over the procedure then being performed on
Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the services of Dr.
Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez possessed
the necessary competence and skills. Drs. Hosaka and Gutierrez had worked
together since 1977. Whenever Dr. Hosaka performed a surgery, he would
always engage the services of Dr. Gutierrez to administer the anesthesia on
his patient. 36
Second, Dr. Hosaka himself admitted that he was the attending physician of
Erlinda. Thus, when Erlinda showed signs of cyanosis, it was Dr. Hosaka who
gave instructions to call for another anesthesiologist and cardiologist to help
resuscitate Erlinda. 37

Third, it is conceded that in performing their responsibilities to the patient,
Drs. Hosaka and Gutierrez worked as a team. Their work cannot be placed in
separate watertight compartments because their duties intersect with each
other. 38
While the professional services of Dr. Hosaka and Dr. Gutierrez were secured
primarily for their performance of acts within their respective fields of
expertise for the treatment of petitioner Erlinda, and that one does not
exercise control over the other, they were certainly not completely
independent of each other so as to absolve one from the negligent acts of the
other physician.
That they were working as a medical team is evident from the fact that Dr.
Hosaka was keeping an eye on the intubation of the patient by Dr. Gutierrez,
and while doing so, he observed that the patient's nails had become dusky
and had to call Dr. Gutierrez's attention thereto. The Court also notes that the
counsel for Dr. Hosaka admitted that in practice, the anesthesiologist would
also have to observe the surgeon's acts during the surgical process and calls
the attention of the surgeon whenever necessary 39 in the course of the
treatment. The duties of Dr. Hosaka and those of Dr. Gutierrez in the
treatment of petitioner Erlinda are therefore not as clear-cut as respondents
claim them to be. On the contrary, it is quite apparent that they have a
common responsibility to treat the patient, which responsibility necessitates
that they call each other's attention to the condition of the patient while the
other physician is performing the necessary medical procedures.
It is equally important to point out that Dr. Hosaka was remiss in his duty of
attending to petitioner Erlinda promptly, for he arrived more than three (3)
hours late for the scheduled operation. The cholecystectomy was set for June
17, 1985 at 9:00 a.m., but he arrived at DLSMC only at around 12:10 p.m. In
reckless disregard for his patient's well being, Dr. Hosaka scheduled two
procedures on the same day, just thirty minutes apart from each other, at
different hospitals. Thus, when the first procedure (protoscopy) at the Sta.
Teresita Hospital did not proceed on time, Erlinda was kept in a state of
uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlinda's scheduled operation subjected
her to continued starvation and consequently, to the risk of acidosis, 40 or
the condition of decreased alkalinity of the blood and tissues, marked by
sickly sweet breath, headache, nausea and vomiting, and visual disturbances.
41 The long period that Dr. Hosaka made Erlinda wait for him certainly
aggravated the anxiety that she must have been feeling at the time. It could be
safely said that her anxiety adversely affected the administration of
anesthesia on her. As explained by Dr. Camagay, the patient's anxiety usually
causes the outpouring of adrenaline which in turn results in high blood
pressure or disturbances in the heart rhythm:
DR. CAMAGAY:
. . . Pre-operative medication has three main functions: One is to alleviate
anxiety. Second is to dry up the secretions and Third is to relieve pain. Now, it
is very important to alleviate anxiety because anxiety is associated with the
outpouring of certain substances formed in the body called adrenalin. When a
patient is anxious there is an outpouring of adrenalin which would have
adverse effect on the patient. One of it is high blood pressure, the other is that
he opens himself to disturbances in the heart rhythm, which would have
adverse implications. So, we would like to alleviate patient's anxiety mainly
because he will not be in control of his body there could be adverse results to
surgery and he will be opened up; a knife is going to open up his body. . . . 42
Dr. Hosaka cannot now claim that he was entirely blameless of what
happened to Erlinda. His conduct clearly constituted a breach of his
professional duties to Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor, you were talking about anxiety, would
you consider a patient's stay on the operating table for three hours sufficient
enough to aggravate or magnify his or her anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
In other words, I understand that in this particular case that was the case,
three hours waiting and the patient was already on the operating table
(interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon contributed to the
aggravation of the anxiety of the patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is already a source of
anxiety and most operating tables are very narrow and that patients are
usually at risk of falling on the floor so there are restraints that are placed on
them and they are never, never left alone in the operating room by
themselves specially if they are already pre-medicated because they may not
be aware of some of their movement that they make which would contribute
to their injury.
CHIEF JUSTICE:
In other words due diligence would require a surgeon to come on time?
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:
Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor. 43
Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled
operation of petitioner Erlinda is violative, not only of his duty as a physician
"to serve the interest of his patients with the greatest solicitude, giving them
always his best talent and skill," 44 but also of Article 19 of the Civil Code
which requires a person, in the performance of his duties, to act with justice
and give everyone his due. EaCDAT
Anent private respondent DLSMC's liability for the resulting injury to
petitioner Erlinda, we held that respondent hospital is solidarily liable with
respondent doctors therefor under Article 2180 of the Civil Code 45 since
there exists an employer-employee relationship between private respondent
DLSMC and Drs. Gutierrez and Hosaka:
In other words, private hospitals, hire, fire and exercise real control over
their attending and visiting "consultant" staff. While "consultants" are not,
technically employees, . . . 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 . . . 46
DLSMC however contends that applying the four-fold test in determining
whether such a relationship exists between it and the respondent doctors,
the inescapable conclusion is that DLSMC cannot be considered an employer
of the respondent doctors.
It has been consistently held that in determining whether an employer-
employee relationship exists between the parties, the following elements
must be present: (1) selection and engagement of services; (2) payment of
wages; (3) the power to hire and fire; and (4) the power to control not only
the end to be achieved, but the means to be used in reaching such an end. 47
DLSMC maintains that first, a hospital does not hire or engage the services of
a consultant, but rather, accredits the latter and grants him or her the
privilege of maintaining a clinic and/or admitting patients in the hospital
upon a showing by the consultant that he or she possesses the necessary
qualifications, such as accreditation by the appropriate board (diplomate),
evidence of fellowship and references . 48 Second, it is not the hospital but
the patient who pays the consultant's fee for services rendered by the latter.
49 Third, a hospital does not dismiss a consultant; instead, the latter may lose
his or her accreditation or privileges granted by the hospital. 50 Lastly,
DLSMC argues that when a doctor refers a patient for admission in a hospital,
it is the doctor who prescribes the treatment to be given to said patient. The
hospital's obligation is limited to providing the patient with the preferred
room accommodation, the nutritional diet and medications prescribed by the
doctor, the equipment and facilities necessary for the treatment of the
patient, as well as the services of the hospital staff who perform the
ministerial tasks of ensuring that the doctor's orders are carried out strictly.
51
After a careful consideration of the arguments raised by DLSMC, the Court
finds that respondent hospital's position on this issue is meritorious. There is
no employer-employee relationship between DLSMC and Drs. Gutierrez and
Hosaka which would hold DLSMC solidarily liable for the injury suffered by
petitioner Erlinda under Article 2180 of the Civil Code.
As explained by respondent hospital, that the admission of a physician to
membership in DLSMC's medical staff as active or visiting consultant is first
decided upon by the Credentials Committee thereof, which is composed of
the heads of the various specialty departments such as the Department of
Obstetrics and Gynecology, Pediatrics, Surgery with the department head of
the particular specialty applied for as chairman. The Credentials Committee
then recommends to DLSMC's Medical Director or Hospital Administrator the
acceptance or rejection of the applicant physician, and said director or
administrator validates the committee's recommendation. 52 Similarly, in
cases where a disciplinary action is lodged against a consultant, the same is
initiated by the department to whom the consultant concerned belongs and
filed with the Ethics Committee consisting of the department specialty heads.
The medical director/hospital administrator merely acts as ex-officio
member of said committee. IESTcD
Neither is there any showing that it is DLSMC which pays any of its
consultants for medical services rendered by the latter to their respective
patients. Moreover, the contract between the consultant in respondent
hospital and his patient is separate and distinct from the contract between
respondent hospital and said patient. The first has for its object the rendition
of medical services by the consultant to the patient, while the second
concerns the provision by the hospital of facilities and services by its staff
such as nurses and laboratory personnel necessary for the proper treatment
of the patient.
Further, no evidence was adduced to show that the injury suffered by
petitioner Erlinda was due to a failure on the part of respondent DLSMC to
provide for hospital facilities and staff necessary for her treatment.
For these reasons, we reverse the finding of liability on the part of DLSMC for
the injury suffered by petitioner Erlinda.
Finally, the Court also deems it necessary to modify the award of damages to
petitioners in view of the supervening event of petitioner Erlinda's death. In
the assailed Decision, the Court awarded actual damages of One Million Three
Hundred Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses
for petitioner Erlinda's treatment and care from the date of promulgation of
the Decision up to the time the patient expires or survives. 53 In addition
thereto, the Court awarded temperate damages of One Million Five Hundred
Thousand Pesos (P1,500,000.00) in view of the chronic and continuing
nature of petitioner Erlinda's injury and the certainty of further pecuniary
loss by petitioners as a result of said injury, the amount of which, however,
could not be made with certainty at the time of the promulgation of the
decision. The Court justified such award in this manner: TCcDaE
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. In other
words, temperate damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate damages are provided
for. The reason is that these damages cover two distinct phases.
As it would not be equitable and certainly not in the best interests of the
administration of justice for the victim in such cases to constantly come
before the courts and invoke their aid in seeking adjustments to the
compensatory damages previously awarded temperate damages are
appropriate. The amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing
care for a comatose patient who has remained in that condition for over a
decade. Having premised our award for compensatory damages on the
amount provided by petitioners at the onset of litigation, it would be now
much more in step with the interests of justice if the value awarded for
temperate damages would allow petitioners to provide optimal care for their
loved one in a facility which generally specializes in such care. They should
not be compelled by dire circumstances to provide substandard care at home
without the aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of P1,500,000.00 in
temperate damages would therefore be reasonable. 54
However, subsequent to the promulgation of the Decision, the Court was
informed by petitioner Rogelio that petitioner Erlinda died on August 3,
1999. 55 In view of this supervening event, the award of temperate damages
in addition to the actual or compensatory damages would no longer be
justified since the actual damages awarded in the Decision are sufficient to
cover the medical expenses incurred by petitioners for the patient. Hence,
only the amounts representing actual, moral and exemplary damages,
attorney's fees and costs of suit should be awarded to petitioners. HScCEa
WHEREFORE, the assailed Decision is hereby modified as follows:
(1) Private respondent De Los Santos Medical Center is hereby absolved
from liability arising from the injury suffered by petitioner Erlinda Ramos on
June 17, 1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are
hereby declared to be solidarily liable for the injury suffered by petitioner
Erlinda on June 17, 1985 and are ordered to pay petitioners
(a) P1,352,000.00 as actual damages;
(b) P2,000,000.00 as moral damages;
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorney's fees; and
(e) the costs of the suit. EcICSA
SO ORDERED.




























































[A.M. No. 2005-08-SC, December 09, 2005]

SAMUEL R. RUEZ, JR., COMPLAINANT, VS. MARYBETH V. JURADO,
RESPONDENT.

D E C I S I O N

AZCUNA, J.:

It is unfortunate that this administrative case involves co-workers in this
Court. Complainant, Samuel R. Ruez, Jr. (Ruez, Jr.), is Chief of the Clearance
Section, Checks Disbursement Division of the FMO-OCA and is the son of the
aggrieved party, Samuel V. Ruez, Sr. (Ruez, Sr.), Driver I for the Motorpool,
Property Division of the OCA. Respondent is Dr. Marybeth V. Jurado (Dr.
Jurado), Medical Officer IV of the Medical and Dental Services. All three were
working for the Court at the time of the incident in issue.

The parties agree that on January 12, 2005, at around 4:20 p.m., Ruez, Sr.
arrived by himself at this Court's clinic complaining of dizziness. His blood
pressure and pulse rate were taken by the reception nurse and were
registered at 210/100 mmHg and 112 beats a minute, respectively. What
transpired next is disputed. Ruez, Jr. alleged that despite his father's medical
condition, he was merely advised to go to a hospital and then allowed to walk
out of the clinic on his own. Dr. Jurado, on the other hand, maintained that
after being informed of Ruez, Sr.'s blood pressure and heart rate, she
instructed the nurse to administer one tablet of Capoten 25mg, an emergency
drug that quickly lowers a patient's blood pressure. She then informed Ruez,
Sr. that he will be taken to the hospital, after which she immediately
instructed the ambulance driver, Mr. Jacinto, to stand by for hospital
conduction. Minutes later, after having taken Capoten and being given a
chance to rest, Ruez, Sr. stood up and walked out saying, "Doktora, hanap
lang ho ako ng kasama." Dr. Jurado said she waited for him to return but he
failed to show up. She asked Mr. Almarza, a nurse at the clinic, to look for
Ruez, Sr. but he was unable to locate him.

According to Ruez, Jr., after being informed of his father's condition, he
rushed him to the Manila Doctors Hospital. There, Ruez, Sr. was treated in
the emergency room for approximately four hours before he was discharged
at around 8:30 p.m. and allowed to go home. However, prior to reaching their
house in Balintawak, Caloocan City, Ruez, Sr. began experiencing nausea,
abnormal palpitation and uneasiness and had to be brought back to the
hospital.

Ruez, Sr. and Ruez, Jr.
[1]
arrived at the emergency room of the Manila
Doctors Hospital at around 10:00 p.m. after which Ruez, Sr. underwent a
C.T. Scan. The C.T. Scan revealed a blood clot necessitating him to be admitted
for treatment and observation. The following morning he suffered a stroke
and for a moment was on flat line. The doctors were able to revive him and
thereafter he was transferred to the intensive care unit. Unfortunately, Ruez
Sr. never recovered from his ailment and, on September 12, 2005, he passed
away due to medical complications.
[2]


On February 15, 2005, Ruez, Jr. filed a letter-complaint with the Office of the
Chief Justice regarding the alleged lack of attention given to his father by Dr.
Jurado. Specifically, he claims that Dr. Jurado merely advised his father to go
to the hospital and then allowed him to travel to Manila Doctors Hospital
despite the availability of an ambulance at the disposal of the clinic. Ruez, Jr.
submits that his father would not have suffered a stroke if not for the neglect
of Dr. Jurado.

The letter-complaint was referred to Atty. Eden T. Candelaria, Deputy Clerk of
Court and Chief of Administrative Services, for investigation. Atty. Candelaria
required Dr. Jurado to submit her comment to the letter-complaint. The
comment was submitted on March 18, 2005, together with supporting
affidavits from respondent's witnesses. This was followed by Ruez, Jr.'s
reply to the comment on April 12, 2005 and Dr. Jurado's rejoinder on April
22, 2005.
[3]


Atty. Candelaria submitted her report on June 17, 2005. The report gave
credence to the account of Dr. Jurado that Ruez, Sr. was
given Capoten, informed that he should be hospitalized and that the
ambulance was placed on standby to take him there. These factual findings of
Atty. Candelaria appear to be supported by the affidavits of the clinic's
personnel, including the ambulance driver, who witnessed the events that
happened between Ruez, Sr. and Dr. Jurado.

The issue now for the Court to resolve is whether, given the accepted facts,
there is cause to hold Dr. Jurado administratively liable. Atty. Candelaria is
satisfied that Dr. Jurado provided Ruez, Sr. proper treatment inside the
clinic. However, in her opinion, Dr. Jurado's actions after Ruez, Sr. had left
were less than the required diligence of a good father of a family. We quote
below the analysis of Atty. Candelaria:
. . . Records will clearly show that minutes after Mr. Ruez, Sr. left the clinic,
Dr. Jurado also left the clinic to go home. This is shown by her time out
registered in the Chronolog Machine on the said date which was 4:31 p.m.
and her inclusion in the list of passengers of Shuttle Bus No. 6. As an efficient
and intelligent doctor, Dr. Jurado should have at least personally exerted all
her efforts to determine the whereabouts of Mr. Ruez, Sr. because of his
condition and again at the very least informed his relatives in the Court in
order that they too take the necessary action that very moment. Or in the
alternative, if indeed, Dr. Jurado may have been in a hurry at that time to do
some errands, she should have at least[,] again, turned Mr. Ruez over the a
[d]octor who was willing to be left behind after office hours. These however
never happened. All that she relied on was the fact that there was an
emergency treatment and an order for hospital conduction but [the same]
didn't materialize and [she] put [the] blame on Mr. Ruez, Sr. As admitted by
complainant, Mr. Ruez, Sr., is a mere "driver" and perhaps may have no
knowledge at all of the consequences of his 210/100 blood pressure and
since he sought refuge from the [c]linic, the clinic, particularly Dr. Jurado[,]
should have made him feel safe and secure in the said place. . . .
Atty. Candelaria recommends that Dr. Jurado be held liable for simple neglect
of duty and suspended for one (1) month and (1) day. She further
recommends that, in light of what happened, Dr. Prudencio Banzon, SC Senior
Staff Officer, Medical and Dental Services, be directed to prepare a flexi-time
schedule (until 5:30 p.m.) for all doctors and nurses in the clinic to enable it
to provide immediate and proper attention in case of any emergency medical
situation.

The Court does not agree that the acts or omission of Dr. Jurado amount to
simple neglect of duty. Simple neglect of duty is defined as failure to give
proper attention to a task expected of an employee resulting from either
carelessness or indifference
[4]
or signifies a disregard of duty resulting from
carelessness or indifference.
[5]
InPhilippine Retirement Authority,
[6]
it was
stated, "The Court has decided the following,inter alia, as constituting the less
grave offense of Simple Neglect of Duty: delay in the transmittal of court
records, delay in responding to written queries, and delay of more than one
(1) year and seven (7) months in furnishing a party with a copy of the court's
decision." In all the instances cited by the Court, respondents had the duty or
were expected to do certain acts which they failed to do. How do we
determine what acts are expected of Dr. Jurado? Atty. Candelaria's report
cites the applicable yardstick: a physician or surgeon is expected to apply in
his practice of medicine that degree of care and skill which is ordinarily
employed by the profession, generally, and under similar
conditions.
[7]
Therefore, to find Dr. Jurado liable for simple neglect of duty the
Court has to be convinced that those in the medical profession were also
expected to act in the manner illustrated by Atty. Candelaria, i.e., to exert all
efforts to determine the whereabouts of Ruez, Sr., inform his relatives or
turn his case over to a doctor who was available after office hours.

Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in
the Philippines states:
"A physician should attend to his patients faithfully and conscientiously. He
should secure for them all possible benefits that may depend upon his
professional skill and care. As the sole tribunal to adjudge the 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."
A doctor's duty to his patient is not required to be extraordinary.
[8]
The
standard contemplated for doctors is simply the reasonable average merit
among ordinarily good physicians, i.e. reasonable skill and competence.
[9]
We
are persuaded that Dr. Jurado fulfilled such a standard when she treated
Ruez, Sr. inside the clinic. But what of Dr. Jurado's conduct after Ruez, Sr.
left the clinic and failed to return?

It has been held that a patient cannot attribute to a physician damages
resulting from his own failure to follow his advice, even though he was
ignorant of the consequences which would result from his failure.
[10]
If a
patient leaves the hospital contrary to instructions, the physician is not liable
for subsequent events.
[11]
There is no expectation from doctors that they
track down each patient who apparently missed their appointments or force
them to comply with their directives. After all, a person is still the master of
his own body.
[12]


Dr. Jurado may have allowed Ruez, Sr. to walk out of the clinic despite her
earlier diagnosis of his condition. By that time Ruez, Sr.'s condition had
temporarily stabilized and she did not have the authority to stop him just as
other doctors have no power, save in certain instances (such as when the law
makes treatment compulsory due to some communicable disease
[13]
or when
consent is withheld by a minor but non-treatment would be detrimental or
when the court of competent jurisdiction orders the treatment), to force
patients into staying under their care. Dr. Jurado relied on Ruez, Sr.'s
representation that he would return in order to be brought to the hospital
but made no undertaking to wait for him beyond the clinic hours or to look
for him if he did not return. Thus, when Ruez, Sr. failed to show up as of
closing time, and could not be found by the male nurse who looked for him at
her instructions, Dr. Jurado had reason to think that he had decided to
disregard her medical advice, which he in fact did when he and Ruez, Jr.
decided to go to the hospital on their own. Ruez, Sr., still of sound mind, had
the right to accept or ignore his doctor's recommendation. Dr. Jurado was
obligated to care for Ruez, Sr. when the latter asked for medical treatment,
which she did, but when he left on his own accord Dr. Jurado was not
expected, much less duty-bound, to seek out her patient and continue being
his doctor.

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

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

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

SO ORDERED.























































G.R. No. 142625 December 19, 2006
ROGELIO P. NOGALES, ET AL. vs. CAPITOL MEDICAL CENTER, ET AL.
THIRD DIVISION

D E C I S I O N
CARPIO, J p:
The Case
This petition for review 1 assails the 6 February 1998 Decision 2 and 21
March 2000 Resolution 3 of the Court of Appeals in CA-G.R. CV No. 45641.
The Court of Appeals affirmed in toto the 22 November 1993 Decision 4 of
the Regional Trial Court of Manila, Branch 33, finding Dr. Oscar Estrada solely
liable for damages for the death of his patient, Corazon Nogales, while
absolving the remaining respondents of any liability. The Court of Appeals
denied petitioners' motion for reconsideration. IDTHcA
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
edema 5 indicating preeclampsia, 6 which is a dangerous complication of
pregnancy. 7
Around midnight of 25 May 1976, Corazon started to experience mild labor
pains prompting Corazon and Rogelio Nogales ("Spouses Nogales") to see Dr.
Estrada at his home. After examining Corazon, Dr. Estrada advised her
immediate admission to the Capitol Medical Center ("CMC").
On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff
nurse noted the written admission request 8 of Dr. Estrada. Upon Corazon's
admission at the CMC, Rogelio Nogales ("Rogelio") executed and signed the
"Consent on Admission and Agreement" 9 and "Admission Agreement." 10
Corazon was then brought to the labor room of the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of CMC, conducted
an internal examination of Corazon. Dr. Uy then called up Dr. Estrada to
notify him of her findings.
Based on the Doctor's Order Sheet, 11 around 3:00 a.m., Dr. Estrada ordered
for 10 mg. of valium to be administered immediately by intramuscular
injection. Dr. Estrada later ordered the start of intravenous administration of
syntocinon admixed with dextrose, 5%, in lactated Ringers' solution, at the
rate of eight to ten micro-drops per minute. cCSDTI
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. EASCDH

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 Court 16 of Manila against CMC, Dr. Estrada, Dr. Villaflor, Dr.
Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for
the death of Corazon. Petitioners mainly contended that defendant physicians
and CMC personnel were negligent in the treatment and management of
Corazon's condition. Petitioners charged CMC with negligence in the selection
and supervision of defendant physicians and hospital staff.
For failing to file their answer to the complaint despite service of summons,
the trial court declared Dr. Estrada, Dr. Enriquez, and Nurse Dumlao in
default. 17 CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their
respective answers denying and opposing the allegations in the complaint.
Subsequently, trial ensued.
After more than 11 years of trial, the trial court rendered judgment on 22
November 1993 finding Dr. Estrada solely liable for damages. The trial court
ruled as follows:
The victim was under his pre-natal care, apparently, his fault began from his
incorrect and inadequate management and lack of treatment of the pre-
eclamptic condition of his patient. It is not disputed that he misapplied the
forceps in causing the delivery because it resulted in a large cervical tear
which had caused the profuse bleeding which he also failed to control with
the application of inadequate injection of magnesium sulfate by his assistant
Dra. Ely Villaflor. Dr. Estrada even failed to notice the erroneous
administration by nurse Dumlao of hemacel by way of side drip, instead of
direct intravenous injection, and his failure to consult a senior obstetrician at
an early stage of the problem. TaDSCA
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. TDAHCS
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". aSTECA
WHEREFORE, premises considered, judgment is hereby rendered finding
defendant Dr. Estrada of Number 13 Pitimini St. San Francisco del Monte,
Quezon City civilly liable to pay plaintiffs: 1) By way of actual damages in the
amount of P105,000.00; 2) By way of moral damages in the amount of
P700,000.00; 3) Attorney's fees in the amount of P100,000.00 and to pay the
costs of suit.
For failure of the plaintiffs to adduce evidence to support its [sic] allegations
against the other defendants, the complaint is hereby ordered dismissed.
While the Court looks with disfavor the filing of the present complaint against
the other defendants by the herein plaintiffs, as in a way it has caused them
personal inconvenience and slight damage on their name and reputation, the
Court cannot accepts [sic] however, the theory of the remaining defendants
that plaintiffs were motivated in bad faith in the filing of this complaint. For
this reason defendants' counterclaims are hereby ordered dismissed.
SO ORDERED. 18
Petitioners appealed the trial court's decision. Petitioners claimed that aside
from Dr. Estrada, the remaining respondents should be held equally liable for
negligence. Petitioners pointed out the extent of each respondent's alleged
liability.
On 6 February 1998, the Court of Appeals affirmed the decision of the trial
court. 19 Petitioners filed a motion for reconsideration which the Court of
Appeals denied in its Resolution of 21 March 2000. 20
Hence, this petition.
Meanwhile, petitioners filed a Manifestation dated 12 April 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. HCacDE
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 reconsideration 25 of the Court's 9 September
2002 Resolution claiming that Dr. Enriquez, Dr. Villaflor and Nurse Dumlao
were notified of the petition at their counsels' last known addresses.
Petitioners reiterated their imputation of negligence on these respondents.
The Court denied petitioners' Motion for Reconsideration in its 18 February
2004 Resolution. 26
The Court of Appeals' Ruling
In its Decision of 6 February 1998, the Court of Appeals upheld the trial
court's ruling. The Court of Appeals rejected petitioners' view that the
doctrine in Darling v. Charleston Community Memorial Hospital 27 applies to
this case. According to the Court of Appeals, the present case differs from the
Darling case since Dr. Estrada is an independent contractor-physician
whereas the Darling case involved a physician and a nurse who were
employees of the hospital.
Citing other American cases, the Court of Appeals further held that the mere
fact that a hospital permitted a physician to practice medicine and use its
facilities is not sufficient to render the hospital liable for the physician's
negligence. 28 A hospital is not responsible for the negligence of a physician
who is an independent contractor. 29
The Court of Appeals found the cases of Davidson v. Conole 30 and Campbell
v. Emma Laing Stevens Hospital 31 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. EDATSC
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. cCESaH
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.
xxx xxx xxx
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.
xxx xxx xxx
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. TCaADS
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. IaDTES
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. .
. . 40 (Emphasis supplied)
While the Court in Ramos did not expound on the control test, such test
essentially determines whether an employment relationship exists between a
physician and a hospital based on the exercise of control over the physician
as to details. Specifically, the employer (or the hospital) must have the right
to control both the means and the details of the process by which the
employee (or the physician) is to accomplish his task. 41
After a thorough examination of the voluminous records of this case, the
Court finds no single evidence pointing to CMC's exercise of control over Dr.
Estrada's treatment and management of Corazon's condition. It is undisputed
that throughout Corazon's pregnancy, she was under the exclusive prenatal
care of Dr. Estrada. At the time of Corazon's admission at CMC and during her
delivery, it was Dr. Estrada, assisted by Dr. Villaflor, who attended to Corazon.
There was no showing that CMC had a part in diagnosing Corazon's condition.
While Dr. Estrada enjoyed staff privileges at CMC, such fact alone did not
make him an employee of CMC. 42 CMC merely allowed Dr. Estrada to use its
facilities 43 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. CHIScD
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. ECSaAc
The doctrine of apparent authority essentially involves two factors to
determine the liability of an independent-contractor physician.
The first factor focuses on the hospital's manifestations and is sometimes
described as an inquiry whether the hospital acted in a manner which would
lead a reasonable person to conclude that the individual who was alleged to
be negligent was an employee or agent of the hospital. 47 In this regard, the
hospital need not make express representations to the patient that the
treating physician is an employee of the hospital; rather a representation may
be general and implied. 48
The doctrine of apparent authority is a species of the doctrine of estoppel.
Article 1431 of the Civil Code provides that "[t]hrough estoppel, an admission
or representation is rendered conclusive upon the person making it, and
cannot be denied or disproved as against the person relying thereon."
Estoppel rests on this rule: "Whenever a party has, by his own declaration,
act, or omission, intentionally and deliberately led another to believe a
particular thing true, and to act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission, be permitted to falsify it." 49
In the instant case, CMC impliedly held out Dr. Estrada as a member of its
medical staff. Through CMC's acts, CMC clothed Dr. Estrada with apparent
authority thereby leading the Spouses Nogales to believe that Dr. Estrada was
an employee or agent of CMC. CMC cannot now repudiate such authority.
First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical
staff and facilities to Dr. Estrada. Upon Dr. Estrada's request for Corazon's
admission, CMC, through its personnel, readily accommodated Corazon and
updated Dr. Estrada of her condition.
Second, CMC made Rogelio sign consent forms printed on CMC letterhead.
Prior to Corazon's admission and supposed hysterectomy, CMC asked Rogelio
to sign release forms, the contents of which reinforced Rogelio's belief that
Dr. Estrada was a member of CMC's medical staff. 50 The Consent on
Admission and Agreement explicitly provides:
KNOW ALL MEN BY THESE PRESENTS:
I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar St., Malate
Mla., being the father/mother/brother/sister/spouse/relative/guardian/or
person in custody of Ma. Corazon, and representing his/her family, of my own
volition and free will, do consent and submit said Ma. Corazon to Dr. Oscar
Estrada (hereinafter referred to as Physician) for cure, treatment,
retreatment, or emergency measures, that the Physician, personally or by and
through the Capitol Medical Center and/or its staff, may use, adapt, or employ
such means, forms or methods of cure, treatment, retreatment, or emergency
measures as he may see best and most expedient; that Ma. Corazon and I will
comply with any and all rules, regulations, directions, and instructions of the
Physician, the Capitol Medical Center and/or its staff; and, that I will not hold
liable or responsible and hereby waive and forever discharge and hold free
the Physician, the Capitol Medical Center and/or its staff, from any and all
claims of whatever kind of nature, arising from directly or indirectly, or by
reason of said cure, treatment, or retreatment, or emergency measures or
intervention of said physician, the Capitol Medical Center and/or its staff.
TDCAHE
xxx xxx xxx 51 (Emphasis supplied)
While the Consent to Operation pertinently reads, thus:
I, ROGELIO NOGALES, . . ., of my own volition and free will, do consent and
submit said CORAZON NOGALES to Hysterectomy, by the Surgical Staff and
Anesthesiologists of Capitol Medical Center and/or whatever succeeding
operations, treatment, or emergency measures as may be necessary and most
expedient; and, that I will not hold liable or responsible and hereby waive
and forever discharge and hold free the Surgeon, his assistants,
anesthesiologists, the Capitol Medical Center and/or its staff, from any and all
claims of whatever kind of nature, arising from directly or indirectly, or by
reason of said operation or operations, treatment, or emergency measures, or
intervention of the Surgeon, his assistants, anesthesiologists, the Capitol
Medical Center and/or its staff. 52 (Emphasis supplied)
Without any indication in these consent forms that Dr. Estrada was an
independent contractor-physician, the Spouses Nogales could not have
known that Dr. Estrada was an independent contractor. Significantly, no one
from CMC informed the Spouses Nogales that Dr. Estrada was an independent
contractor. On the contrary, Dr. Atencio, who was then a member of CMC
Board of Directors, testified that Dr. Estrada was part of CMC's surgical staff.
53
Third, Dr. Estrada's referral of Corazon's profuse vaginal bleeding to Dr.
Espinola, who was then the Head of the Obstetrics and Gynecology
Department of CMC, gave the impression that Dr. Estrada as a member of
CMC's medical staff was collaborating with other CMC-employed specialists
in treating Corazon. caHASI
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." . . .
(Emphasis supplied) CHIEDS
Likewise unconvincing is CMC's argument that petitioners are estopped from
claiming damages based on the Consent on Admission and Consent to
Operation. Both release forms consist of two parts. The first part gave CMC
permission to administer to Corazon any form of recognized medical
treatment which the CMC medical staff deemed advisable. The second part of
the documents, which may properly be described as the releasing part,
releases CMC and its employees "from any and all claims" arising from or by
reason of the treatment and operation.
The documents do not expressly release CMC from liability for injury to
Corazon due to negligence during her treatment or operation. Neither do the
consent forms expressly exempt CMC from liability for Corazon's death due
to negligence during such treatment or operation. Such release forms, being
in the nature of contracts of adhesion, are construed strictly against hospitals.
Besides, a blanket release in favor of hospitals "from any and all claims,"
which includes claims due to bad faith or gross negligence, would be contrary
to public policy and thus void.
Even simple negligence is not subject to blanket release in favor of
establishments like hospitals but may only mitigate liability depending on the
circumstances. 58 When a person needing urgent medical attention rushes to
a hospital, he cannot bargain on equal footing with the hospital on the terms
of admission and operation. Such a person is literally at the mercy of the
hospital. There can be no clearer example of a contract of adhesion than one
arising from such a dire situation. Thus, the release forms of CMC cannot
relieve CMC from liability for the negligent medical treatment of Corazon.
On the Liability of the Other Respondents
Despite this Court's pronouncement in its 9 September 2002 59 Resolution
that the filing of petitioners' Manifestation confined petitioners' claim only
against CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy, who have filed their
comments, the Court deems it proper to resolve the individual liability of the
remaining respondents to put an end finally to this more than two-decade old
controversy. IDTcHa
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. HAaDTI
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.
DTAaCE
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-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 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.
SETAcC
SO ORDERED.





































































G.R. No. 126297 January 31, 2007
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
D E C I S I O N
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankinds most important and delicate
endeavors, must assume the grave responsibility of pursuing it with
appropriate care. The care and service dispensed through this high trust,
however technical, complex and esoteric its character may be, must meet
standards of responsibility commensurate with the undertaking to preserve
and protect the health, and indeed, the very lives of those placed in the
hospitals keeping.
1

Assailed in these three consolidated petitions for review on certiorari is the
Court of Appeals Decision
2
dated September 6, 1996 in CA-G.R. CV No. 42062
and CA-G.R. SP No. 32198 affirming with modification the Decision
3
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 Natividads 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.
However, the operation appeared to be flawed. In the corresponding 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 P60,000.00.
After a couple of days, Natividad complained of excruciating pain in her anal
region. She consulted both Dr. Ampil and Dr. Fuentes about it. They told her
that the pain was the natural consequence of the surgery. Dr. Ampil then
recommended that she consult 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. Ampils assurance did not come true. Instead, the pains intensified,
prompting Natividad to seek treatment at the Polymedic General Hospital.
While confined there, Dr. Ramon Gutierrez detected the presence of another
foreign object in her vagina -- a foul-smelling gauze measuring 1.5 inches in
width which badly infected her vaginal vault. A recto-vaginal fistula had
formed in her reproductive organs which forced stool to excrete through the
vagina. Another surgical operation was needed to remedy the damage. Thus,
in October 1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the RTC,
Branch 96, Quezon City a complaint for damages against the Professional
Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr.
Fuentes, docketed as Civil Case No. Q-43322. They alleged that the latter are
liable for negligence for leaving two pieces of gauze inside Natividads body
and malpractice for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional Regulation
Commission (PRC) an administrative complaint for gross negligence and
malpractice against Dr. Ampil and Dr. Fuentes, docketed as Administrative
Case No. 1690. The PRC Board of Medicine heard the case only with respect
to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who
was then in the United States.
On February 16, 1986, pending the outcome of the above cases, Natividad
died and was duly substituted by her above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas,
finding PSI, Dr. Ampil and Dr. Fuentes liable for negligence and malpractice,
the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the
defendants PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR.
JUAN FUENTES to pay to the plaintiffs, jointly and severally, except in respect
of the award for exemplary damages and the interest thereon which are the
liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of
US$19,900.00 at the rate of P21.60-US$1.00, as
reimbursement of actual expenses incurred in the United
States of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and their
physician daughter;
c. The total sum of P45,802.50, representing the cost of
hospitalization at Polymedic Hospital, medical fees, and cost
of the saline solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorneys fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove,
from date of filing of the complaint until full payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of
Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a
partial execution of its Decision, which was granted in an Order dated May
11, 1993. Thereafter, the sheriff levied upon certain properties of Dr. Ampil
and sold them for P451,275.00 and delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into an agreement
with PSI and Dr. Fuentes to indefinitely suspend any further execution of the
RTC Decision. However, not long thereafter, the Aganas again filed a motion
for an alias writ of execution against the properties of PSI and Dr. Fuentes. On
September 21, 1993, the RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a
petition for certiorari and prohibition, with prayer for preliminary injunction,
docketed as CA-G.R. SP No. 32198. During its pendency, the Court of Appeals
issued a Resolution
5
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
Decision
6
in Administrative Case No. 1690 dismissing the case against Dr.
Fuentes. The Board held that the prosecution failed to show that Dr. Fuentes
was the one who left the two pieces of gauze inside Natividads body; and that
he concealed such fact from Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision jointly
disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case against defendant-
appellant Dr. Juan Fuentes is hereby DISMISSED, and with the
pronouncement that defendant-appellant Dr. Miguel Ampil is liable to
reimburse defendant-appellant Professional Services, Inc., whatever amount
the latter will pay or had paid to the plaintiffs-appellees, the decision
appealed from is hereby AFFIRMED and the instant appeal DISMISSED.
Concomitant with the above, the petition for certiorari and prohibition filed
by herein defendant-appellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is
hereby GRANTED and the challenged order of the respondent judge dated
September 21, 1993, as well as the alias writ of execution issued pursuant
thereto are hereby NULLIFIED and SET ASIDE. The bond posted by the
petitioner in connection with the writ of preliminary injunction issued by this
Court on November 29, 1993 is hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and Professional
Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied in a
Resolution
7
dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred
in holding that: (1) it is estopped from raising the defense that Dr. Ampil is
not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is not
entitled to its counterclaim against the Aganas. PSI contends that Dr. Ampil is
not its employee, but a mere consultant or independent contractor. As such,
he alone should answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in
finding that Dr. Fuentes is not guilty of negligence or medical malpractice,
invoking the doctrine of res ipsa loquitur. They contend that the pieces of
gauze are prima facie proofs that the operating surgeons have been negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred
in finding him liable for negligence and malpractice sans evidence that he left
the two pieces of gauze in Natividads vagina. He pointed to other probable
causes, such as: (1) it was Dr. Fuentes who used gauzes in performing the
hysterectomy; (2) the attending nurses failure to properly count the gauzes
used during surgery; and (3) the medical intervention of the American
doctors who examined Natividad in the United States of America.
For our resolution are these three vital issues: first, whether the Court of
Appeals erred in holding Dr. Ampil liable for negligence and malpractice;
second, whether the Court of Appeals erred in absolving Dr. Fuentes of any
liability; and third, whether PSI may be held solidarily liable for the
negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Courts attention to
other possible causes of Natividads detriment. He argues that the Court
should not discount either of the following possibilities: first, Dr. Fuentes left
the gauzes in Natividads body after performing hysterectomy; second, the
attending nurses erred in counting the gauzes; and third, the American
doctors were the ones who placed the gauzes in Natividads body.
Dr. Ampils arguments are purely conjectural and without basis. Records
show that he did not present any evidence to prove that the American
doctors were the ones who put or left the gauzes in Natividads body. Neither
did he submit evidence to rebut the correctness of the record of operation,
particularly the number of gauzes used. As to the alleged negligence of Dr.
Fuentes, we are mindful that Dr. Ampil examined his (Dr. Fuentes) work and
found it in order.
The glaring truth is that all the major circumstances, taken together, as
specified by the Court of Appeals, directly point to Dr. Ampil as the negligent
party, thus:
First, it is not disputed that the surgeons used gauzes as sponges to
control the bleeding of the patient during the surgical operation.
Second, immediately after the operation, the nurses who assisted in
the surgery noted in their report that the sponge count (was) lacking
2; that such anomaly was announced to surgeon and that a search
was done but to no avail prompting Dr. Ampil to continue for
closure x x x.
Third, after the operation, two (2) gauzes were extracted from the
same spot of the body of Mrs. Agana where the surgery was
performed.
An operation requiring the placing of sponges in the incision is not complete
until the sponges are properly removed, and it is settled that the leaving of
sponges or other foreign substances in the wound after the incision has been
closed is at least prima facie negligence by the operating surgeon.
8
To put it
simply, such act is considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of authorities to the effect that
such act is negligence per se.
9

Of course, the Court is not blind to the reality that there are times when
danger to a patients life precludes a surgeon from further searching missing
sponges or foreign objects left in the body. But this does not leave him free
from any obligation. Even if it has been shown that a surgeon was required by
the urgent necessities of the case to leave a sponge in his patients abdomen,
because of the dangers attendant upon delay, still, it is his legal duty to so
inform his patient within a reasonable time thereafter by advising her of
what he had been compelled to do. This is in order that she might seek relief
from the effects of the foreign object left in her body as her condition might
permit. The ruling in Smith v. 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 patients
body that should be removed as part of the operation, he thereby leaves his
operation uncompleted and creates a new condition which imposes upon him
the legal duty of calling the new condition to his patients attention, and
endeavoring with the means he has at hand to minimize and avoid untoward
results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing two pieces of
gauze. Worse, he even misled her that the pain she was experiencing was the
ordinary consequence of her operation. Had he been more candid, Natividad
could have taken the immediate and appropriate medical remedy to remove
the gauzes from her body. To our mind, what was initially an act of negligence
by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his
patient.
This is a clear case of medical malpractice or more appropriately, medical
negligence. To successfully pursue this kind of case, a patient must only prove
that a health care provider either failed to do something which a reasonably
prudent health care provider would have done, or that he did something that
a reasonably prudent provider would not have done; and that failure or
action caused injury to the patient.
11
Simply put, the elements are duty,
breach, injury and proximate causation. Dr, Ampil, as the lead surgeon, had
the duty to remove all foreign objects, such as gauzes, from Natividads body
before closure of the incision. When he failed to do so, it was his duty to
inform Natividad about it. Dr. Ampil breached both duties. Such breach
caused injury to Natividad, necessitating her further examination by
American doctors and another surgery. That Dr. Ampils negligence is the
proximate cause
12
of Natividads injury could be traced from his act of closing
the incision despite the information given by the attending nurses that two
pieces of gauze were still missing. That they were later on extracted from
Natividads vagina established the causal link between Dr. Ampils negligence
and the injury. And what further aggravated such injury was his deliberate
concealment of the missing gauzes from the knowledge of Natividad and her
family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case against Dr.
Fuentes on the ground that it is contrary to the doctrine of res ipsa loquitur.
According to them, the fact that the two pieces of gauze were left inside
Natividads body is a prima facie evidence of Dr. Fuentes negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule
that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence,
or make out a plaintiffs prima facie case, and present a question of fact for
defendant to meet with an explanation.
13
Stated differently, where the thing
which caused the injury, without the fault of the injured, is under the
exclusive control of the defendant and the injury is such that it should not
have occurred if he, having such control used proper care, it affords
reasonable evidence, in the absence of explanation that the injury arose from
the defendants want of care, and the burden of proof is shifted to him to
establish that he has observed due care and diligence.
14

From the foregoing statements of the rule, the requisites for the applicability
of the doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the
thing which caused the injury was under the control and management of the
defendant; (3) the occurrence was such that in the ordinary course of things,
would not have happened if those who had control or management used
proper care; and (4) the absence of explanation by the defendant. Of the
foregoing requisites, the most instrumental is the "control and management
of the thing which caused the injury."
15

We find the element of "control and management of the thing which caused
the injury" to be wanting. Hence, the doctrine of res ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead surgeon during the
operation of Natividad. He requested the assistance of Dr. Fuentes only to
perform hysterectomy when he (Dr. Ampil) found that the malignancy in her
sigmoid area had spread to her left ovary. Dr. Fuentes performed the surgery
and thereafter reported and showed his work to Dr. Ampil. The latter
examined it and finding everything to be in order, allowed Dr. Fuentes to
leave the operating room. Dr. Ampil then resumed operating on Natividad. He
was about to finish the procedure when the attending nurses informed him
that two pieces of gauze were missing. A "diligent search" was conducted, but
the misplaced gauzes were not found. Dr. Ampil then directed that the
incision be closed. During this entire period, Dr. Fuentes was no longer in the
operating room and had, in fact, left the hospital.
Under the "Captain of the Ship" rule, the operating surgeon is the person in
complete charge of the surgery room and all personnel connected with the
operation. Their duty is to obey his orders.
16
As stated before, Dr. Ampil was
the lead surgeon. In other words, he was the "Captain of the Ship." That he
discharged such role is evident from his following conduct: (1) calling Dr.
Fuentes to perform a hysterectomy; (2) examining the work of Dr. Fuentes
and finding it in order; (3) granting Dr. Fuentes permission to leave; and (4)
ordering the closure of the incision. To our mind, it was this act of ordering
the closure of the incision notwithstanding that two pieces of gauze remained
unaccounted for, that caused injury to Natividads body. Clearly, the control
and management of the thing which caused the injury was in the hands of Dr.
Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence,
does not per se create or constitute an independent or separate ground of
liability, being a mere evidentiary rule.
17
In other words, mere invocation and
application of the doctrine does not dispense with the requirement of proof
of negligence. Here, the negligence was proven to have been committed by
Dr. Ampil and not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical development of
hospitals and the resulting theories concerning their liability for the
negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable
institutions, providing medical services to the lowest classes of society,
without regard for a patients ability to pay.
18
Those who could afford medical
treatment were usually treated at home by their doctors.
19
However, the days
of house calls and philanthropic health care are over. The modern health care
industry continues to distance itself from its charitable past and has
experienced a significant conversion from a not-for-profit health care to for-
profit hospital businesses. Consequently, significant changes in health law
have accompanied the business-related changes in the hospital industry. One
important legal change is an increase in hospital liability for medical
malpractice. Many courts now allow claims for hospital vicarious liability
under the theories of respondeat superior, apparent authority, ostensible
authority, or agency by estoppel.
20

In this jurisdiction, the statute governing liability for negligent acts is Article
2176 of the Civil Code, which reads:
Art. 2176. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
A derivative of this provision is Article 2180, the rule governing vicarious
liability under the doctrine of respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is demandable not only
for ones own acts or omissions, but also for those of persons for whom one is
responsible.
x x x x x x
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks even
though the former are not engaged in any business or industry.
x x x x x x
The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father
of a family to prevent damage.
A prominent civilist commented that professionals engaged by an employer,
such as physicians, dentists, and pharmacists, are not "employees" under this
article because the manner in which they perform their work is not within
the control of the latter (employer). In other words, professionals are
considered personally liable for the fault or negligence they commit in the
discharge of their duties, and their employer cannot be held liable for such
fault or negligence. In the context of the present case, "a hospital cannot be
held liable for the fault or negligence of a physician or surgeon in the
treatment or operation of patients."
21

The foregoing view is grounded on the traditional notion that the
professional status and the very nature of the physicians calling preclude
him from being classed as an agent or employee of a hospital, whenever he
acts in a professional capacity.
22
It has been said that medical practice strictly
involves highly developed and specialized knowledge,
23
such that physicians
are generally free to exercise their own skill and judgment in rendering
medical services sans interference.
24
Hence, when a doctor practices
medicine in a hospital setting, the hospital and its employees are deemed to
subserve him in his ministrations to the patient and his actions are of his own
responsibility.
25

The case of Schloendorff v. Society of New York Hospital
26
was then
considered an authority for this view. The "Schloendorff doctrine" regards a
physician, even if employed by a hospital, as an independent contractor
because of the skill he exercises and the lack of control exerted over his work.
Under this doctrine, hospitals are exempt from the application of the
respondeat superior principle for fault or negligence committed by
physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened with the
significant developments in medical care. Courts came to realize that modern
hospitals are increasingly taking active role in supplying and regulating
medical care to patients. No longer were a hospitals functions limited to
furnishing room, food, facilities for treatment and operation, and attendants
for its patients. Thus, in Bing v. Thunig,
27
the New York Court of Appeals
deviated from the Schloendorff doctrine, noting that modern hospitals
actually do far more than provide facilities for treatment. Rather, they
regularly employ, on a salaried basis, a large staff of physicians, interns,
nurses, administrative and manual workers. They charge patients for medical
care and treatment, even collecting for such services through legal action, if
necessary. The court then concluded that there is no reason to exempt
hospitals from the universal rule of respondeat superior.
In our shores, the nature of the relationship between the hospital and the
physicians is rendered inconsequential in view of our categorical
pronouncement in Ramos v. Court of Appeals
28
that for purposes of
apportioning responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and their attending
and visiting physicians. This Court held:
"We now discuss the responsibility of the hospital in this particular incident.
The unique practice (among private hospitals) of filling up specialist staff
with attending and visiting "consultants," who are allegedly not hospital
employees, presents problems in apportioning responsibility for negligence
in medical malpractice cases. However, the difficulty is more apparent than
real.
In the first place, hospitals exercise significant control in the hiring and firing
of consultants and in the conduct of their work within the hospital premises.
Doctors who apply for consultant slots, visiting or attending, are required to
submit proof of completion of residency, their educational qualifications,
generally, evidence of accreditation by the appropriate board (diplomate),
evidence of fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or by a
review committee set up by the hospital who either accept or reject the
application. x x x.
After a physician is accepted, either as a visiting or attending consultant, he is
normally required to attend clinico-pathological conferences, conduct
bedside rounds for clerks, interns and residents, moderate grand rounds and
patient audits and perform other tasks and responsibilities, for the privilege
of being able to maintain a clinic in the hospital, and/or for the privilege of
admitting patients into the hospital. In addition to these, the physicians
performance as a specialist is generally evaluated by a peer review
committee on the basis of mortality and morbidity statistics, and feedback
from patients, nurses, interns and residents. A consultant remiss in his duties,
or a consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise real control over
their attending and visiting consultant staff. While consultants are not,
technically employees, x x x, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of an employer-
employee relationship, with the exception of the payment of wages. In
assessing whether such a relationship in fact exists, the control test is
determining. Accordingly, on the basis of the foregoing, we rule that for the
purpose of allocating responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and their attending
and visiting physicians. "
But the Ramos pronouncement is not our only basis in sustaining PSIs
liability. Its liability is also anchored upon the agency principle of apparent
authority or agency by estoppel and the doctrine of corporate negligence
which have gained acceptance in the determination of a hospitals liability for
negligent acts of health professionals. The present case serves as a perfect
platform to test the applicability of these doctrines, thus, enriching our
jurisprudence.
Apparent authority, or what is sometimes referred to as the "holding
out" theory, or doctrine of ostensible agency or agency by estoppel,
29
has its
origin from the law of agency. It imposes liability, not as the result of the
reality of a contractual relationship, but rather because of the actions of a
principal or an employer in somehow misleading the public into believing
that the relationship or the authority exists.
30
The concept is essentially one
of estoppel and has been explained in this manner:
"The principal is bound by the acts of his agent with the apparent authority
which he knowingly permits the agent to assume, or which he holds the agent
out to the public as possessing. The question in every case is whether the
principal has by his voluntary act placed the agent in such a situation that a
person of ordinary prudence, conversant with business usages and the nature
of the particular business, is justified in presuming that such agent has
authority to perform the particular act in question.
31

The applicability of apparent authority in the field of hospital liability was
upheld long time ago in Irving v. Doctor Hospital of Lake Worth, Inc.
32
There,
it was explicitly stated that "there does not appear to be any rational basis for
excluding the concept of apparent authority from the field of hospital
liability." Thus, in cases where it can be shown that a hospital, by its actions,
has held out a particular physician as its agent and/or employee and that a
patient has accepted treatment from that physician in the reasonable belief
that it is being rendered in behalf of the hospital, then the hospital will be
liable for the physicians negligence.
Our jurisdiction recognizes the concept of an agency by implication or
estoppel. Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of the principal,
from 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 it proudly paraded in the public directory leading
the public to believe that it vouched for their skill and competence." Indeed,
PSIs act is tantamount to holding out to the public that Medical City Hospital,
through its accredited physicians, offers quality health care services. By
accrediting Dr. Ampil and Dr. Fuentes and publicly advertising their
qualifications, the hospital created the impression that they were its agents,
authorized to perform medical or surgical services for its patients. As
expected, these patients, Natividad being one of them, accepted the services
on the reasonable belief that such were being rendered by the hospital or its
employees, agents, or servants. The trial court correctly pointed out:
x x x regardless of the education and status in life of the patient, he ought not
be burdened with the defense of absence of employer-employee relationship
between the hospital and the independent physician whose name and
competence are certainly certified to the general public by the hospitals act
of listing him and his specialty in its lobby directory, as in the case herein.
The high costs of todays medical and health care should at least exact on the
hospital greater, if not broader, legal responsibility for the conduct of
treatment and surgery within its facility by its accredited physician or
surgeon, regardless of whether he is independent or employed."
33

The wisdom of the foregoing ratiocination is easy to discern. Corporate
entities, like PSI, are capable of acting only through other individuals, such as
physicians. If these accredited physicians do their job well, the hospital
succeeds in its mission of offering quality medical services and thus profits
financially. Logically, where negligence mars the quality of its services, the
hospital should not be allowed to escape liability for the acts of its ostensible
agents.
We now proceed to the doctrine of corporate negligence or corporate
responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence and
malpractice is that PSI as owner, operator and manager of Medical City
Hospital, "did not perform the necessary supervision nor exercise diligent
efforts in the supervision of Drs. Ampil and Fuentes and its nursing staff,
resident doctors, and medical interns who assisted Drs. Ampil and Fuentes in
the performance of their duties as surgeons."
34
Premised on the doctrine of
corporate negligence, the trial court held that PSI is directly liable for such
breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the judicial
answer to the problem of allocating hospitals liability for the negligent acts
of health practitioners, absent facts to support the application of respondeat
superior or apparent authority. Its formulation proceeds from the judiciarys
acknowledgment that in these modern times, the duty of providing quality
medical service is no longer the sole prerogative and responsibility of the
physician. The modern hospitals have changed structure. Hospitals now tend
to organize a highly professional medical staff whose competence and
performance need to be monitored by the hospitals commensurate with their
inherent responsibility to provide quality medical care.
35

The doctrine has its genesis in Darling v. Charleston Community
Hospital.
36
There, the Supreme Court of Illinois held that "the jury could have
found a hospital negligent, inter alia, in failing to have a sufficient number of
trained nurses attending the patient; failing to require a consultation with or
examination by members of the hospital staff; and failing to review the
treatment rendered to the patient." On the basis of Darling, other
jurisdictions held that a hospitals corporate negligence extends to permitting
a physician known to be incompetent to practice at the hospital.
37
With the
passage of time, more duties were expected from hospitals, among them: (1)
the use of reasonable care in the maintenance of safe and adequate facilities
and equipment; (2) the selection and retention of competent physicians; (3)
the overseeing or supervision of all persons who practice medicine within its
walls; and (4) the formulation, adoption and enforcement of adequate rules
and policies that ensure quality care for its patients.
38
Thus, in Tucson
Medical Center, Inc. v. Misevich,
39
it was held that a hospital, following the
doctrine of corporate responsibility, has the duty to see that it meets the
standards of responsibilities for the care of patients. Such duty includes the
proper supervision of the members of its medical staff. And in Bost v.
Riley,
40
the court concluded that a patient who enters a hospital does so with
the reasonable expectation that it will attempt to cure him. The hospital
accordingly has the duty to make a reasonable effort to monitor and oversee
the treatment prescribed and administered by the physicians practicing in its
premises.
In the present case, it was duly established that PSI operates the Medical City
Hospital for the purpose and under the concept of providing comprehensive
medical services to the public. Accordingly, it has the duty to exercise
reasonable care to protect from harm all patients admitted into its facility for
medical treatment. Unfortunately, PSI failed to perform such duty. The
findings of the trial court are convincing, thus:
x x x PSIs liability is traceable to its failure to conduct an investigation of the
matter reported in the nota bene of the count nurse. Such failure established
PSIs part in the dark conspiracy of silence and concealment about the gauzes.
Ethical considerations, if not also legal, dictated the holding of an immediate
inquiry into the events, if not for the benefit of the patient to whom the duty
is primarily owed, then in the interest of arriving at the truth. The Court
cannot accept that the medical and the healing professions, through their
members like defendant surgeons, and their institutions like PSIs hospital
facility, can callously turn their backs on and disregard even a mere
probability of mistake or negligence by refusing or failing to investigate a
report of such seriousness as the one in Natividads case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad
with the assistance of the Medical City Hospitals staff, composed of resident
doctors, nurses, and interns. As such, it is reasonable to conclude that PSI, as
the operator of the hospital, has actual or constructive knowledge of the
procedures carried out, particularly the report of the attending nurses that
the two pieces of gauze were missing. In Fridena v. Evans,
41
it was held that a
corporation is bound by the knowledge acquired by or notice given to its
agents or officers within the scope of their authority and in reference to a
matter to which their authority extends. This means that the knowledge of
any of the staff of Medical City Hospital constitutes knowledge of PSI. Now,
the failure of PSI, despite the attending nurses report, to investigate and
inform Natividad regarding the missing gauzes amounts to callous
negligence. Not only did PSI breach its duties to oversee or supervise all
persons who practice medicine within its walls, it also failed to take an active
step in fixing the negligence committed. This renders PSI, not only vicariously
liable for the negligence of Dr. Ampil under Article 2180 of the Civil Code, but
also directly liable for its own negligence under Article 2176. In Fridena, the
Supreme Court of Arizona held:
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 undertaking. Beeck v. Tucson General
Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed
the rulings of the Court of Appeals that a hospital has the duty of supervising
the competence of the doctors on its staff. x x x.
x x x x x x
In the amended complaint, the plaintiffs did plead that the operation was
performed at the hospital with its knowledge, aid, and assistance, and that
the negligence of the defendants was the proximate cause of the patients
injuries. We find that such general allegations of negligence, along with the
evidence produced at the trial of this case, are sufficient to support the
hospitals liability based on the theory of negligent supervision."
Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for
damages, let it be emphasized that PSI, apart from a general denial of its
responsibility, failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the accreditation and supervision of
the latter. In neglecting to offer such proof, PSI failed to discharge its burden
under the last paragraph of Article 2180 cited earlier, and, therefore, must be
adjudged solidarily liable with Dr. Ampil. Moreover, as we have discussed, PSI
is also directly liable to the Aganas.
One final word. Once a physician undertakes the treatment and care of a
patient, the law imposes on him certain obligations. In order to escape
liability, he must possess that reasonable degree of learning, skill and
experience required by his profession. At the same time, he must apply
reasonable care and diligence in the exercise of his skill and the application of
his knowledge, and exert his best judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision
of the Court of Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
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.
D E C I S I O N
QUISUMBING, J.:
For review on certiorari are the Decision
1
dated October 3, 2002 and
Resolution
2
dated November 19, 2003 of the Court of Appeals in CA-G.R. CV
No. 58184, which affirmed with modification the Decision
3
dated March 3,
1997 of the Regional Trial Court of Quezon City, Branch 98, in Civil Case No.
Q-93-16562.
The facts, culled from the records, are as follows:
Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology
at the Dr. Jesus Delgado Memorial Hospital. She was the attending physician
of respondent Nora S. Go, who was admitted at the said hospital on April 19,
1992.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy.
However, at around 3:30 a.m., Nora suffered profuse bleeding inside her
womb due to some parts of the placenta which were not completely expelled
from her womb after delivery. Consequently, Nora suffered hypovolemic
shock, resulting in a drop in her blood pressure to "40" over "0." Petitioner
and the assisting resident physician performed various medical procedures
to stop the bleeding and to restore Noras blood pressure. Her blood pressure
was frequently monitored with the use of a sphygmomanometer. While
petitioner was massaging Noras uterus for it to contract and stop bleeding,
she ordered a droplight to warm Nora and her baby.
4
Nora remained
unconscious until she recovered.
While in the recovery room, her husband, respondent John David Z. Go
noticed a fresh gaping wound two and a half (2 ) by three and a half (3 )
inches in the inner portion of her left arm, close to the armpit.
5
He asked the
nurses what caused the injury. He was informed it was a burn. Forthwith, on
April 22, 1992, John David filed a request for investigation.
6
In response, Dr.
Rainerio S. Abad, the medical director of the hospital, called petitioner and
the assisting resident physician to explain what happened. Petitioner said the
blood pressure cuff caused the injury.
On May 7, 1992, John David brought Nora to the National Bureau of
Investigation for a physical examination, which was conducted by medico-
legal officer Dr. Floresto Arizala, Jr.
7
The medico-legal officer later testified
that Noras injury appeared to be a burn and that a droplight when placed
near the skin for about 10 minutes could cause such burn.
8
He dismissed the
likelihood that the wound was caused by a blood pressure cuff as the scar
was not around the arm, but just on one side of the arm.
9

On May 22, 1992, Noras injury was referred to a plastic surgeon at the Dr.
Jesus Delgado Memorial Hospital for skin grafting.
10
Her wound was covered
with skin sourced from her abdomen, which consequently bore a scar as well.
About a year after, on April 30, 1993, scar revision had to be performed at the
same hospital.
11
The surgical operation left a healed linear scar in Noras left
arm about three inches in length, the thickest portion rising about one-fourth
(1/4) of an inch from the surface of the skin. The costs of the skin grafting
and the scar revision were shouldered by the hospital.
12

Unfortunately, Noras arm would never be the same.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 complaint
13
for damages
against petitioner, Dr. Abad, and the hospital. Finding in favor of respondent
spouses, the trial court decreed:
In view of the foregoing consideration, judgment is hereby rendered in favor
of the plaintiffs and against the defendants, directing the latters, (sic) jointly
and severally
(a) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in
moral damages;
(b) to pay the sum of One Hundred Fifty Thousand Pesos
(P150,000.00) exemplary damages;
(c) to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal
damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for and as attorneys
fees; and
(e) to pay Six Thousand Pesos (P6,000.00) litigation expenses.
SO ORDERED.
14

Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals,
which affirmed with modification the trial court decision, thus:
WHEREFORE, in view of all the foregoing, and finding no reversible error in
the appealed Decision dated March 3, 1997 of Branch 98 of the Regional Trial
Court of Quezon City in Civil Case No. Q-93-16562, the same is hereby
AFFIRMED, with the following MODIFICATIONS:
1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay
plaintiffs-appellees John David Go and Nora S. Go the sum of
P200,000.00 as moral damages;
2. Deleting the award [of] exemplary damages, attorneys fees and
expenses of litigation;1awphi1.nt
3. Dismissing the complaint with respect to defendants-appellants
Dr. Rainerio S. Abad and Delgado Clinic, Inc.;
4. Dismissing the counterclaims of defendants-appellants for lack of
merit; and
5. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay
the costs.
SO ORDERED.
15

Petitioners motion for reconsideration was denied by the Court of Appeals.
Hence, the instant petition assigning the following as errors and issues:
I.
WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS
COMMITTED GRAVE ABUSE OF THEIR DISCRETION WHEN,
NOTWITHSTANDING THAT BOTH PARTIES HAVE RESTED THEIR
RESPECTIVE CASES, THE LOWER COURT ADMITTED THE ADDITIONAL
EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO BY
ANY WITNESS AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY
THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF
DISCRETION;
II.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS
DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE
PRESENTED BY THE PETITIONER, IT RULED THAT THE PETITIONER HAS
NOT AMPLY SHOWED THAT THE DROPLIGHT DID NOT TOUCH THE BODY
OF MRS. NORA GO, AND THIS DECISION OF THE LOWER COURT WAS
UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE
ABUSE OF DISCRETION;
III.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS
DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE
PRESENTED BY THE PETITIONER, IT RULED THAT PETITIONER DRA.
CANTRE WAS NOT ABLE TO AMPLY EXPLAIN HOW THE INJURY (BLISTERS)
IN THE LEFT INNER ARM OF RESPONDENT MRS. GO CAME ABOUT;
IV.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF
ITS DISCRETION WHEN IT MADE A RULING ON THE RESPONDENTS INJURY
QUOTING THE TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND
HAS NOT SEEN THE ORIGINAL, FRESH INJURY OF RESPONDENT MRS. NORA
GO;
V.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS
DISCRETION RULED THAT PETITIONER DRA. CANTRE SHOULD HAVE
INTENDED TO INFLICT THE INJURY TO SAVE THE LIFE OF RESPONDENT
MRS. GO;
VI.
WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS
COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE
DETAILED PROCEDURES DONE BY PETITIONER, BOTH RULED THAT THE
RESPONDENT WAS LEFT TO THE CARE OF THE NURSING STAFF;
VII.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF
DISCRETION WHEN, CONTRARY TO THE MEDICAL PURPOSES OF COSMETIC
SURGERY, IT RULED THAT THE COSMETIC SURGERY MADE THE SCARS
EVEN MORE UGLY AND DECLARED THE COSMETIC SURGERY A FAILURE;
VIII.
WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC)
DISCRETION WHEN, CONTRARY TO RESPONDENTS CONTRARY
TESTIMONIES AND THE ABSENCE OF ANY TESTIMONY, IT RULED THAT
THEY ARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD, ALTHOUGH
MODIFIED, BY THE COURT OF APPEALS LIKEWISE ABUSING ITS
DISCRETION.
16

Petitioner contends that additional documentary exhibits not testified to by
any witness are inadmissible in evidence because they deprived her of her
constitutional right to confront the witnesses against her. Petitioner insists
the droplight could not have touched Noras body. She maintains the injury
was due to the constant taking of Noras blood pressure. Petitioner also
insinuates the Court of Appeals was misled by the testimony of the medico-
legal officer who never saw the original injury before plastic surgery was
performed. Finally, petitioner stresses that plastic surgery was not intended
to restore respondents injury to its original state but rather to prevent
further complication.
Respondents, however, counter that the genuineness and due execution of
the additional documentary exhibits were duly admitted by petitioners
counsel. Respondents point out that petitioners blood pressure cuff theory is
highly improbable, being unprecedented in medical history and that the
injury was definitely caused by the droplight. At any rate, they argue, even if
the injury was brought about by the blood pressure cuff, petitioner was still
negligent in her duties as Noras attending physician.
Simply put, the threshold issues for resolution are: (1) Are the questioned
additional exhibits admissible in evidence? (2) Is petitioner liable for the
injury suffered by respondent Nora Go? Thereafter, the inquiry is whether
the appellate court committed grave abuse of discretion in its assailed
issuances.
As to the first issue, we agree with the Court of Appeals that said exhibits are
admissible in evidence. We note that the questioned exhibits consist mostly
of Noras medical records, which were produced by the hospital during trial
pursuant to a subpoena duces tecum. Petitioners counsel admitted the
existence of the same when they were formally offered for admission by the
trial court. In any case, given the particular circumstances of this case, a
ruling on the negligence of petitioner may be made based on the res ipsa
loquitur doctrine even in the absence of such additional exhibits.
Petitioners contention that the medico-legal officer who conducted Noras
physical examination never saw her original injury before plastic surgery was
performed is without basis and contradicted by the records. Records show
that the medico-legal officer conducted the physical examination on May 7,
1992, while the skin grafting and the scar revision were performed on Nora
on May 22, 1992 and April 30, 1993, respectively.
Coming now to the substantive matter, is petitioner liable for the injury
suffered by respondent Nora Go?
The Hippocratic Oath mandates physicians to give primordial consideration
to the well-being of their patients. If a doctor fails to live up to this precept, he
is accountable for his acts. This notwithstanding, courts face a unique
restraint in adjudicating medical negligence cases because physicians are not
guarantors of care and, they never set out to intentionally cause injury to
their patients. However, intent is immaterial in negligence cases because
where negligence exists and is proven, it automatically gives the injured a
right to reparation for the damage caused.
17

In cases involving medical negligence, the doctrine of res ipsa loquitur allows
the mere existence of an injury to justify a presumption of negligence on the
part of the person who controls the instrument causing the injury, provided
that the following requisites concur:
1. The accident is of a kind which ordinarily does not occur in the
absence of someones negligence;
2. It is caused by an instrumentality within the exclusive control of
the defendant or defendants; and
3. The possibility of contributing conduct which would make the
plaintiff responsible is eliminated.
18

As to the first requirement, the gaping wound on Noras arm is certainly not
an ordinary occurrence in the act of delivering a baby, far removed as the arm
is from the organs involved in the process of giving birth. Such injury could
not have happened unless negligence had set in somewhere.
Second, whether the injury was caused by the droplight or by the blood
pressure cuff is of no moment. Both instruments are deemed within the
exclusive control of the physician in charge under the "captain of the ship"
doctrine. This doctrine holds the surgeon in charge of an operation liable for
the negligence of his assistants during the time when those assistants are
under the surgeons control.
19
In this particular case, it can be logically
inferred that petitioner, the senior consultant in charge during the delivery of
Noras baby, exercised control over the assistants assigned to both the use of
the droplight and the taking of Noras blood pressure. Hence, the use of the
droplight and the blood pressure cuff is also within petitioners exclusive
control.
Third, the gaping wound on Noras left arm, by its very nature and
considering her condition, could only be caused by something external to her
and outside her control as she was unconscious while in hypovolemic shock.
Hence, Nora could not, by any stretch of the imagination, have contributed to
her own injury.
Petitioners defense that Noras wound was caused not by the droplight but
by the constant taking of her blood pressure, even if the latter was necessary
given her condition, does not absolve her from liability. As testified to by the
medico-legal officer, Dr. Arizala, Jr., the medical practice is to deflate the
blood pressure cuff immediately after each use. Otherwise, the inflated band
can cause injury to the patient similar to what could have happened in this
case. Thus, if Noras wound was caused by the blood pressure cuff, then the
taking of Noras blood pressure must have been done so negligently as to
have inflicted a gaping wound on her arm,
20
for which petitioner cannot
escape liability under the "captain of the ship" doctrine.
Further, petitioners argument that the failed plastic surgery was not
intended as a cosmetic procedure, but rather as a measure to prevent
complication does not help her case. It does not negate negligence on her
part.
Based on the foregoing, the presumption that petitioner was negligent in the
exercise of her profession stands unrebutted. In this connection, the Civil
Code provides:
ART. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done.
ART. 2217. Moral damages include physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury. Though incapable of pecuniary
computation, moral damages may be recovered if they are the proximate
result of the defendants wrongful act or omission.
Clearly, under the law, petitioner is obliged to pay Nora for moral damages
suffered by the latter as a proximate result of petitioners negligence.
We note, however, that petitioner has served well as Noras obstetrician for
her past three successful deliveries. This is the first time petitioner is being
held liable for damages due to negligence in the practice of her profession.
The fact that petitioner promptly took care of Noras wound before infection
and other complications set in is also indicative of petitioners good
intentions. We also take note of the fact that Nora was suffering from a
critical condition when the injury happened, such that saving her life became
petitioners elemental concern. Nonetheless, it should be stressed that all
these could not justify negligence on the part of petitioner.
Hence, considering the specific circumstances in the instant case, we find no
grave abuse of discretion in the assailed decision and resolution of the Court
of Appeals. Further, we rule that the Court of Appeals award of Two Hundred
Thousand Pesos (P200,000) as moral damages in favor of respondents and
against petitioner is just and equitable.
21

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










Ilao-Oreta vs. Sps. Ronquillo G.R No. 172406 Oct. 11, 2007
D E C I S I O N

CARPIO MORALES, J.:
Respondents, spouses Eva Marie Ronquillo (Eva Marie) and Noel
Benedicto (Noel) Ronquillo (the Ronquillo spouses or the spouses), had not
been blessed with a child despite several years of marriage. They thus
consulted petitioner, Dr. Concepcion Ilao-Oreta (Dr. Ilao-Oreta), an
obstetrician-gynecologist-consultant at the St. Lukes Medical Center where
she was, at the time material to the case, the chief of the Reproductive
Endocrinology and Infertility Section.

Upon Dr. Ilao-Oretas advice, Eva Marie agreed to undergo a
laparoscopic procedure whereby a laparascope would be inserted through
the patients abdominal wall to get a direct view of her internal reproductive
organ in order to determine the real cause of her infertility.
The procedure was scheduled on April 5, 1999 at 2:00 p.m., to be
performed by Dr. Ilao-Oreta. At around 7:00 a.m. of said date, Eva Marie,
accompanied by her husband Noel, checked in at the St.
Lukes Medical Center and underwent pre-operative procedures including
the administration of intravenous fluid and enema.

Dr. Ilao-Oreta did not arrive at the scheduled time for the procedure,
however, and no prior notice of its cancellation was received. It turned out
that the doctor was on a return flight from Hawaii to, and arrived at 10:00
p.m. of April 5, 1999 in, Manila.

On May 18, 1999, the Ronquillo spouses filed a complaint
[1]
against
Dr. Ilao-Oreta and the St. Lukes Medical Center for breach of professional and
service contract and for damages before the Regional Trial Court (RTC)
of Batangas City. They prayed for the award of actual damages including
alleged loss of income of Noel while accompanying his wife to the hospital,
moral damages, exemplary damages, the costs of litigation, attorneys fees,
and other available reliefs and remedies.
[2]


In her Answer,
[3]
Dr. Ilao-Oreta gave her side of the case as
follows: She went on a honeymoon to Hawaii and was scheduled to
leaveHawaii at 3:00 p.m. of April 4, 1999 for Manila. Aware that her trip
from Hawaii to Manila would take about 12 hours, inclusive of a stop-over at
the Narita Airport in Japan, she estimated that she would arrive in Manila in
the early morning of April 5, 1999. She thus believed in utmost good faith
that she would be back in Manila in time for the scheduled conduct of the
laparoscopic procedure. She failed to consider the time difference
between Hawaii and the Philippines, however.

In its Answer,
[4]
the St. Lukes Medical Center contended that the
spouses have no cause of action against it since it performed the pre-
operative procedures without delay, and any cause of action they have would
be against Dr. Ilao-Oreta.

By Decision
[5]
of March 9, 2001, Branch 84 of the Batangas RTC,
finding that the failure of the doctor to arrive on time was not intentional,
awarded Eva Marie only actual damages in the total amount of P9,939 and
costs of suit. It found no adequate proof that Noel had been deprived of any
job contract while attending to his wife in the hospital.

On appeal by the spouses, the Court of Appeals, by Decision
[6]
of April
21, 2006, finding Dr. Ilao-Oreta grossly negligent,
[7]
modified the trial courts
decision as follows:

WHEREFORE, the trial Courts decision dated March
9, 2001 is affirmed, subject to the modification that the
amount of actual damages, for which both defendants-
appellees are jointly and severally liable to plaintiffs-
appellants, is increased to P16,069.40. Furthermore,
defendant-appellee Dr. Ilao-Oreta is also held liable to pay
plaintiff-appellants the following:

(a) P50,000.00 as moral damages;

(b) P25,000.00 as exemplary damages; and

(c) P20,000.00 as attorneys fees.

SO ORDERED.
[8]
(Underscoring supplied)



Hence, the present Petition for Review
[9]
of Dr. Ilao-Oreta raising the
following arguments:

THE COURT A QUO ERRED IN FINDING
PETITIONER TO HAVE ACTED WITH GROSS NEGLIGENCE
AND AWARDING MORAL DAMAGES TO RESPONDENTS.
[10]


THE COURT A QUO ERRED IN AWARDING
EXEMPLARY DAMAGES TO RESPONDENTS.
[11]


THE COURT A QUO [ERRED] IN AWARDING
ATTORNEYS FEES TO RESPONDENTS.
[12]


THE COURT A QUO ERRED IN INCREASING THE
AWARD OF ACTUAL DAMAGES IN FAVOR OF
RESPONDENTS.
[13]



Gross negligence implies a want or absence of or failure to exercise
slight care or diligence, or the entire absence of care. It evinces a thoughtless
disregard of consequences without exerting any effort to avoid them.
[14]
It is
characterized by want of even slight care, acting or omitting to act in a
situation where there is a duty to act, not inadvertently but willfully and
intentionally with a conscious indifference to consequences in so far as other
persons may be affected.
[15]


The records show that before leaving for Hawaii, Dr. Ilao-Oreta left
an admitting order with her secretary for one of the spouses to pick up,
apprised Eva Marie of the necessary preparations for the procedure, and
instructed the hospital staff to perform pre-operative treatments.
[16]
These
acts of the doctor reflect an earnest intention to perform the procedure on
the day and time scheduled.

The records also show that on realizing that she missed the
scheduled procedure, Dr. Ilao-Oreta, upon arrival in Manila, immediately
sought to rectify the same, thus:

[ATTY SINJAN] Q: So, can you tell us the reason why you
missed that operation?

[DR. ILAO-ORETA] A: When I scheduled her for the surgery,
I looked at my ticket and so I was to leave Hawaii on
April 4 at around 4:00 oclock in the afternoon, so I
was computing 12 hours of travel including stop-
over, then probably I would be in Manila early
morning of April 5, then I have so much time and I
can easily do the case at 2:00 oclock, you know it
skipped my mind the change in time.

Q: So when you arrived at 10:00 [PM] in Manila, what did
you do?

A: I called immediately the hospital and I talked with the
nurses, I asked about the patient, Mrs. Ronquillo,
and they told me that she has already left at
around 7:00.

Q: And after calling the hospital, what happened?

A: I wanted to call the plaintiffs, but I didnt have their
number at that time, so in the morning I went to my
office early at 8:00 and looked for her chart, because
her telephone number was written in the
chart. So, I called them right away.

Q: Were you able to contact them?

A: I was able to reach Mr. Ronquillo.

Q: In the course of your conversation, what did you tell
Mr. Ronquillo?

A: I apologized to him, I said I was sorry about the time
that I missed the surgery, and I told him that I can
do the case right that same day without Mrs.
Ronquillo having to undergo another
[b]arium enema.

Q: What else did you tell him, if any?

A: I asked him whether I can talk with Mrs. Ronquillo
because I wanted to apologize to her personally.

Q: And what did he say?

A: I could hear on the background that Mrs. Ronquillo
was shouting angrily that she didnt want to talk to
me, and that she didnt want re-scheduling of the
surgery . . .

ATTY LONTOK: May we move, your Honor, for the striking
out of the answer, this is purely hearsay.

COURT: Remain on the record.
WITNESS [DR. ILAO-ORETA]: . . . and then Mr. Ronquillo
told me Im sorry, Dra., we cannot re-schedule the
surgery.
[17]
(Underscoring supplied)


Noel admitted that indeed Dr. Ilao-Oreta called him up after she arrived
in Manila as related by her.
[18]


The evidence then shows that Dr. Ilao-Oreta, who had traveled more
than twice to the United States where she obtained a fellowship in
Reproductive Endocrinology and Infertility was indeed negligent when she
scheduled to perform professional service at 2:00 p.m. on April 5,
1999 without considering the time difference between
the Philippines and Hawaii.

The doctors act did not, however, reflect gross negligence as defined
above. Her argument that

Although petitioner failed to take into consideration
the time difference between the Philippines and Hawaii, the
situation then did not present any clear and apparent harm
or injury that even a careless person may perceive. Unlike in
situations where the Supreme Court had found gross
negligence to exist, petitioner could not have been conscious
of any foreseeable danger that may occur since she actually
believed that she would make it to theoperation that was
elective in nature, the only purpose of which was to
determine the real cause of infertility and not to treat and
cure a life threatening disease. Thus, in merely fixing the
date of her appointment with respondent Eva Marie
Ronquillo, petitioner was not in the pursuit or performance
of conduct which any ordinary person may deem to
probably and naturally result in injury,
[19]
(Underscoring in
original)


thus persuades.

It bears noting that when she was scheduling the date of her
performance of the procedure, Dr. Ilao-Oreta had just gotten married and was
preparing for her honeymoon,
[20]
and it is of common human knowledge that
excitement attends its preparations. Her negligence could then be partly
attributed to human frailty which rules out its characterization as gross.

The doctors negligence not being gross, the spouses are not entitled
to recover moral damages.

Neither are the spouses entitled to recover exemplary damages in
the absence of a showing that Dr. Ilao-Oreta acted in a wanton, fraudulent,
reckless, oppressive or malevolent manner,
[21]
nor to award of attorneys fees
as, contrary to the finding of the Court of Appeals that the spouses were
compelled to litigate and incur expenses to protect their interest,
[22]
the
records show that they did not exert enough efforts to settle the matter
before going to court. Eva Marie herself testified:

ATTY. SINJIAN:
Q: Isnt it true that before instituting this present case,
you did not make any demand on Dr. Ilao-Oreta
regarding the claims which you have allegedly
incurred, because of the failed laparoscopic surgery
operation?

A [EVA MARIE]: I will tell the truth. Dr. Augusto Reyes of
St. Lukes . . .

Q: But did you demand?

A: No, I did not demand because

ATTY. SINJIAN: That will be all, your Honor.

ATTY. LONTOK: The witness is still explaining.

WITNESS: Im explaining first. Dr. Augusto Reyes told me
that he will hold the meeting for me and Dr. Oreta to
settle things and reimburse all the money that I
spent from the hospital, and he even suggested Dr.
Oreta to personally talk to me.

ATTY. SINJIAN:
Q: So it was to Dr. Augusto Reyes that you talked?
A: Yes.

Q: But you did not demand anything or write to Dr.
Oreta?

A: No.

Q: Before instituting this case?

A: No.
[23]
(Underscoring supplied)


Finally, Dr. Ilao-Oretas prayer for the reduction of actual damages is
well-taken. Article 2201 of the Civil Code provides:

In contracts and quasi-contracts, the damages for
which the obligor who acted in good faith is liable shall be
those which are the natural and probable consequences of
the breach of the obligation, and which the parties have
foreseen or could have reasonably foreseen at the time the
obligation was constituted.


In fixing the amount of actual damages, the Court of Appeals and the trial
court included expenses which the spouses incurred prior to April 5,
1999 when the breach of contract complained of occurred.
[24]
The Court of
Appeals also included the alleged P300 spent on fuel consumption from the
spouses residence at San Pascual, Batangas to the St.
Lukes Medical Center in Quezon City and the alleged P500 spent on food in
the hospital canteen, both of which are unsubstantiated by independent or
competent proof.
[25]
The only piece of documentary evidence supporting the
food and fuel expenses is an unsigned listing.
[26]
As the fuel and food expenses
are not adequately substantiated, they cannot be included in the computation
of the amount of actual damages. So Premiere Development Bank v. Court of
Appeals
[27]
instructs:

In the instant case, the actual damages were proven
through the sole testimony of Themistocles Ruguero, the
vice president for administration ofPanacor. In his
testimony, the witness affirmed that Panacor incurred
losses, specifically, in terms of training and seminars,
leasehold acquisition, procurement of vehicles and office
equipment without, however, adducing receipts to
substantiate the same. The documentary evidence marked
as Exhibit W, which was an ordinary private writing
allegedly itemizing the capital expenditures and losses from
the failed operation of Panacor, was not testified to by any
witness to ascertain the veracity of its content. Although the
lower court fixed the sum of P4,520,000.00 as the total
expenditures incurred by Panacor, it failed to show how and
in what manner the same were substantiated by the
claimant with reasonable certainty. Hence, the claim for
actual damages should be received with extreme caution
since it is only based on bare assertion without support from
independent evidence. Premieres failure to prove actual
expenditure consequently conduces to a failure of its
claim. In determining actual damages, the court cannot rely
on mere assertions, speculations, conjectures or guesswork
but must depend on competent proof and on the best
evidence obtainable regarding the actual amount of
loss.
[28]
(Underscoring supplied)


The list of expenses cannot replace receipts when they should have been
issued as a matter of course in business transactions
[29]
as in the case of
purchase of gasoline and of food.

The documented claim for hospital and medical expenses of the
spouses is detailed in the Statement of Account issued by the hospital, the
pertinent entries of which read:

x x x x

GROSS HOSPITAL CHARGES 2,416.
50
4/5/1999 1699460 DEPOSITOFFICIAL
RECEIPT (5,000
.00)
(5,
000.00)

________

4/5/1999 SECOND 0284893 UNUSED MED 0439534
(65.55)
FLOOR HINOX 500 MG CAP
SECOND 0284894 UNUSED MED 0439893 (62.25)
FLOOR PHENERGAN 2 ML
50MG ______ (127.8
0)
BALANCE
DUE (2,711.30)
[30]

=====
==

As extrapolated from the above-quoted entries in the Statement of
Account, P2,288.70 (the gross hospital charges of P2,416.50 less the unused
medicine in the amount of P127.80) was debited from the P5,000 deposit
[31]
to
thus leave a balance of the deposit in the amount of P2,711.30, which the trial
court erroneously denominated as confinement fee. The remaining balance
of P2,711.30 was the amount refundable to the spouses.

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

WHEREFORE, the petition is GRANTED. The decision appealed
from is MODIFIED in that

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

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

SO ORDERED.
































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.
D E C I S I O N
BRION, J.:
This petition involves a medical negligence case that was elevated to this
Court through an appeal by certiorari under Rule 45 of the Rules of Court.
The petition assails the Decision
1
of the Court of Appeals (CA) in CA G.R. CV
No. 63234, which affirmed with modification the Decision
2
of the Regional
Trial Court (RTC) of Nueva Ecija, Branch 37 in Civil Case No. SD-1233. The
dispositive portion of the assailed CA decision states:
WHEREFORE, premises considered, the assailed Decision of the Regional
Trial Court of Baloc, Sto. Domingo, Nueva Ecija, Branch 37 is hereby
AFFIRMED but with modifications as follows:
1) Ordering defendant-appellants Dr. and Dra. Fredelicto A. Flores and the
United Doctors Medical Center, Inc. to jointly and severally pay the plaintiff-
appellees - heirs of Teresita Pineda, namely, Spouses Dominador Pineda and
Virginia Saclolo and Florencio, Candida, Marta, Godofredo, Baltazar and
Lucena, all surnamed Pineda, the sum ofP400,000.00 by way of moral
damages;
2) Ordering the above-named defendant-appellants to jointly and severally
pay the above-named plaintiff-appellees the sum of P100,000.00 by way of
exemplary damages;
3) Ordering the above-named defendant-appellants to jointly and severally
pay the above-named plaintiff-appellees the sum of P36,000.00 by way of
actual and compensatory damages; and
4) Deleting the award of attorney's fees and costs of suit.
SO ORDERED.
While this case essentially involves questions of facts, we opted for the
requested review in light of questions we have on the findings of negligence
below, on the awarded damages and costs, and on the importance of this type
of ruling on medical practice.
3

BACKGROUND FACTS
Teresita Pineda (Teresita) was a 51-year old unmarried woman living in Sto.
Domingo, Nueva Ecija. She consulted on April 17, 1987 her townmate, Dr.
Fredelicto Flores, regarding her medical condition. She complained of general
body weakness, loss of appetite, frequent urination and thirst, and on-and-off
vaginal bleeding. Dr. Fredelicto initially interviewed the patient and asked for
the history of her monthly period to analyze the probable cause of the vaginal
bleeding. He advised her to return the following week or to go to the United
Doctors Medical Center (UDMC) in Quezon City for a general check-up. As for
her other symptoms, he suspected that Teresita might be suffering from
diabetes and told her to continue her medications.
4

Teresita did not return the next week as advised. However, when her
condition persisted, she went to further consult Dr. Flores at his UDMC clinic
on April 28, 1987, travelling for at least two hours from Nueva Ecija to
Quezon City with her sister, Lucena Pineda. They arrived at UDMC at around
11:15 a.m.. Lucena later testified that her sister was then so weak that she
had to lie down on the couch of the clinic while they waited for the doctor.
When Dr. Fredelicto arrived, he did a routine check-up and ordered Teresita's
admission to the hospital. In the admission slip, he directed the hospital staff
to prepare the patient for an "on call" D&C
5
operation to be performed by his
wife, Dr. Felicisima Flores (Dr. Felicisima). Teresita was brought to her
hospital room at around 12 noon; the hospital staff forthwith took her blood
and urine samples for the laboratory tests
6
which Dr. Fredelicto ordered.
At 2:40 p.m. of that same day, Teresita was taken to the operating room. It
was only then that she met Dr. Felicisima, an obstetrician and gynecologist.
The two doctors - Dr. Felicisima and Dr. Fredelicto, conferred on the patient's
medical condition, while the resident physician and the medical intern gave
Dr. Felicisima their own briefings. She also interviewed and conducted an
internal vaginal examination of the patient which lasted for about 15
minutes. Dr. Felicisima thereafter called up the laboratory for the results of
the tests. At that time, only the results for the blood sugar (BS), uric acid
determination, cholesterol determination, and complete blood count (CBC)
were available. Teresita's BS count was 10.67mmol/l
7
and her CBC was
109g/l.
8

Based on these preparations, Dr. Felicisima proceeded with the D&C
operation with Dr. Fredelicto administering the general anesthesia. The D&C
operation lasted for about 10 to 15 minutes. By 3:40 p.m., Teresita was
wheeled back to her room.
A day after the operation (or on April 29, 1987), Teresita was subjected to an
ultrasound examination as a confirmatory procedure. The results showed
that she had an enlarged uterus and myoma uteri.
9
Dr. Felicisima, however,
advised Teresita that she could spend her recovery period at home. Still
feeling weak, Teresita opted for hospital confinement.
Teresita's complete laboratory examination results came only on that day
(April 29, 1987). Teresita's urinalysis showed a three plus sign (+++)
indicating that the sugar in her urine was very high. She was then placed
under the care of Dr. Amado Jorge, an internist.
By April 30, 1987, Teresita's condition had worsened. She experienced
difficulty in breathing and was rushed to the intensive care unit. Further tests
confirmed that she was suffering from Diabetes Mellitus Type II.
10
Insulin
was administered on the patient, but the medication might have arrived too
late. Due to complications induced by diabetes, Teresita died in the morning
of May 6, 1987.
11

Believing that Teresita's death resulted from the negligent handling of her
medical needs, her family (respondents) instituted an action for damages
against Dr. Fredelicto Flores and Dr. Felicisima Flores (collectively referred to
as the petitioner spouses) before the RTC of Nueva Ecija.
The RTC ruled in favor of Teresita's family and awarded actual, moral, and
exemplary damages, plus attorney's fees and costs.
12
The CA affirmed the
judgment, but modified the amount of damages awarded and deleted the
award for attorney's fees and costs of suit.
13

Through this petition for review on certiorari, the petitioner spouses -Dr.
Fredelicto (now deceased) and Dr. Felicisima Flores - allege that the RTC and
CA committed a reversible error in finding them liable through negligence for
the death of Teresita Pineda.
ASSIGNMENT OF ERRORS
The petitioner spouses contend that they exercised due care and prudence in
the performance of their duties as medical professionals. They had attended
to the patient to the best of their abilities and undertook the management of
her case based on her complaint of an on-and-off vaginal bleeding. In
addition, they claim that nothing on record shows that the death of Teresita
could have been averted had they employed means other than what they had
adopted in the ministration of the patient.
THE 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
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.
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 aroseright 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-aid measures are
required.
32
Indeed, the expert witnesses declared that a D&C operation on a
hyperglycemic patient may be justified only when it is an emergency case -
when there is profuse vaginal bleeding. In this case, we choose not to rely on
the assertions of the petitioner spouses that there was profuse bleeding, not
only because the statements were self-serving, but also because the
petitioner spouses were inconsistent in their testimonies. Dr. Fredelicto
testified earlier that on April 28, he personally saw the bleeding,
33
but later
on said that he did not see it and relied only on 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. Tan
35
and Dr. Mendoza
36
both testified that the
medical records of Teresita failed to indicate that there was profuse vaginal
bleeding. The claim that there was profuse vaginal bleeding although this was
not reflected in the medical records strikes us as odd since the main
complaint is vaginal bleeding. A medical record is the only document that
maintains a long-term transcription of patient care and as such, its
maintenance is considered a priority in hospital practice. Optimal record-
keeping includes all patient inter-actions. The records should always be clear,
objective, and up-to-date.
37
Thus, a medical record that does not indicate
profuse medical bleeding speaks loudly and clearly of what it does not
contain.
That the D&C operation was conducted principally to diagnose the cause of
the vaginal bleeding further leads us to conclude that it was merely an
elective procedure, not an emergency case. In an elective procedure, the
physician must conduct a thorough pre-operative evaluation of the patient in
order to adequately prepare her for the operation and minimize possible
risks and complications. The internist is responsible for generating a
comprehensive evaluation of all medical problems during the pre-operative
evaluation.
38

The aim of pre-operative evaluation is not to screen broadly for
undiagnosed disease, but rather to identify and quantify comorbidity
that may impact on the operative outcome. This evaluation is driven
by findings on history and physical examination suggestive of organ
system dysfunctionThe goal is to uncover problem areas that
may require further investigation or be amenable to
preoperative optimization.
If the preoperative evaluation uncovers significant comorbidity or
evidence of poor control of an underlying disease process,
consultation with an internist or medical specialist may be required
to facilitate the work-up and direct management. In this process,
communication between the surgeons and the consultants is
essential to define realistic goals for this optimization process and to
expedite surgical management.
39
[Emphasis supplied.]
Significantly, the evidence strongly suggests that the pre-operative evaluation
was less than complete as the laboratory results were fully reported only on
the day following the D&C operation. Dr. Felicisima only secured a telephone
report of the preliminary laboratory result prior to the D&C. This preliminary
report did not include the 3+ status of sugar in the patient's urine
40
- a result
highly 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-and-off
vaginal bleeding. The presence of hyperglycemia in a surgical patient is
associated with poor clinical outcomes, and aggressive glycemic control
positively impacts on morbidity and mortality.
41
Elective surgery in people
with uncontrolled diabetes

should preferably be scheduled after acceptable
glycemic control

has been achieved.
42
According to Dr. Mercado, this is done
by administering insulin on the patient.
43

The management approach in

this kind of patients always includes
insulin therapy

in combination with dextrose and potassium
infusion. Insulin xxx promotes glucose uptake by the muscle and fat
cells

while decreasing glucose production by the liver xxx. The net
effect is to lower blood glucose levels.
44

The prudent move is to address the 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 thecausal 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 - Acute
47

Stress, whether physical or emotional, is a factor that can aggravate diabetes;
a D&C operation is a form of physical stress. Dr. Mendoza explained how
surgical stress can aggravate the 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
ananaesthesiologist 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 oncertiorari.
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 toP50,000.00 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 ofP400,000.00 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
ofP100,000.00. Public policy requires such imposition to suppress the
wanton acts of an 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 ofP100,000.00 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 ofP100,000.00 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.





























































FE CAYAO-LASAM, G.R. No. 159132
Petitioner,
Present:

YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
REYES, JJ.
SPOUSES CLARO and
EDITHA RAMOLETE, Promulgated:
Respondents.
*
December 18, 2008
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D E C I S I O N


AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court filed by Dr. Fe Cayao-Lasam (petitioner) seeking to annul the
Decision
[1]
dated July 4, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 62206.

The antecedent facts:

On July 28, 1994, respondent, three months
pregnant Editha Ramolete (Editha) was brought to the Lorma Medical Center (LMC)
in San Fernando, La Union due to vaginal bleeding. Upon advice of petitioner
relayed via telephone, Editha was admitted to the LMC on the same day. A pelvic
sonogram
[2]
was then conducted on Editha revealing the fetus weak cardiac
pulsation.
[3]
The following day, Edithas repeat pelvic sonogram
[4]
showed that aside
from the fetus weak cardiac pulsation, no fetal movement was also appreciated. Due to
persistent and profuse vaginal bleeding, petitioner advised Editha to undergo a
Dilatation and Curettage Procedure (D&C) or raspa.

On July 30, 1994, petitioner performed the D&C procedure. Editha was
discharged from the hospital the following day.

On September 16, 1994, Editha was once again brought at the LMC, as she was
suffering from vomiting and severe abdominal pains. Editha was attended by Dr.
Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly
informed Editha that there was a dead fetus in the latters
womb. After, Editha underwent laparotomy,
[5]
she was found to have a massive intra-
abdominal hemorrhage and a ruptured uterus. Thus, Editha had to undergo a
procedure for hysterectomy
[6]
and as a result, she has no more chance to bear a child.

On November 7, 1994, Editha and her
husband Claro Ramolete (respondents) filed a Complaint
[7]
for Gross Negligence and
Malpractice against petitioner before the Professional Regulations Commission (PRC).

Respondents alleged that Edithas hysterectomy was caused by petitioners
unmitigated negligence and professional incompetence in conducting the D&C
procedure and the petitioners failure to remove the fetus
inside Edithas womb.
[8]
Among the alleged acts of negligence were: first, petitioners
failure to check up, visit or administer medication on Editha during her first day of
confinement at the LMC;
[9]
second, petitioner recommended that a D&C procedure be
performed on Editha without conducting any internal examination prior to the
procedure;
[10]
third, petitioner immediately suggested a D&C procedure instead of
closely monitoring the state of pregnancy of Editha.
[11]


In her Answer,
[12]
petitioner denied the allegations of negligence and
incompetence with the following explanations: upon Edithasconfirmation that she
would seek admission at the LMC, petitioner immediately called the hospital to
anticipate the arrival of Editha and ordered through the telephone the
medicines Editha needed to take, which the nurses carried out; petitioner
visited Editha on the morning of July 28, 1994 during her rounds; on July 29, 1994, she
performed an internal examination on Editha and she discovered that the latters cervix
was already open, thus, petitioner discussed the possible D&C procedure, should the
bleeding become more profuse; on July 30 1994, she conducted another internal
examination on Editha, which revealed that the latters cervix was still
open; Editha persistently complained of her vaginal bleeding and her passing out of
some meaty mass in the process of urination and bowel movement; thus, petitioner
advised Editha to undergo D&C procedure which the respondents consented to;
petitioner was very vocal in the operating room about not being able to see
anabortus;
[13]
taking the words of Editha to mean that she was passing out some meaty
mass and clotted blood, she assumed that the abortusmust have been expelled in the
process of bleeding; it was Editha who insisted that she wanted to be discharged;
petitioner agreed, but she advised Editha to return for check-up on August 5, 1994,
which the latter failed to do.
Petitioner contended that it was Edithas gross negligence and/or omission in
insisting to be discharged on July 31, 1994 against doctors advice and her unjustified
failure to return for check-up as directed by petitioner that contributed to her life-
threatening condition on September 16, 1994; that Edithas hysterectomy was brought
about by her very abnormal pregnancy known as placenta increta, which was an
extremely rare and very unusual case of abdominal placental implantation. Petitioner
argued that whether or not a D&C procedure was done by her or any other doctor,
there would be no difference at all because at any stage of gestation before term, the
uterus would rupture just the same.

On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a
Decision,
[14]
exonerating petitioner from the charges filed against her. The Board held:

Based on the findings of the doctors who conducted
the laparotomy on Editha, hers is a case
of Ectopic Pregnancy Interstitial. This type
ofectopic 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, sinceectopic pregnancy is pregnancy
conceived outside the uterus and curettage is done only
within the uterus. Therefore, a more extensive operation
needed in this case of pregnancy in order to remove the
fetus.
[15]


Feeling aggrieved, respondents went to the PRC on appeal. On November 22,
2000, the PRC rendered a Decision
[16]
reversing the findings of the Board and revoking
petitioners authority or license to practice her profession as a physician.
[17]

Petitioner brought the matter to the CA in a Petition for Review under Rule 43
of the Rules of Court. Petitioner also dubbed her petition as one for certiorari
[18]
under
Rule 65 of the Rules of Court.

In the Decision dated July 4, 2003, the CA held that the Petition for Review
under Rule 43 of the Rules of Court was an improper remedy, as the enumeration of
the quasi-judicial agencies in Rule 43 is exclusive.
[19]
PRC is not among the quasi-judicial
bodies whose judgment or final orders are subject of a petition for review to the CA,
thus, the petition for review of the PRC Decision, filed at the CA, was improper. The CA
further held that should the petition be treated as a petition for certiorari under Rule 65,
the same would still be dismissed for being improper and premature. Citing Section
26
[20]
of Republic Act (R.A.) No. 2382 or the Medical Act of 1959, the CA held that the
plain, speedy and adequate remedy under the ordinary course of law which petitioner
should have availed herself of was to appeal to the Office of the President.
[21]


Hence, herein petition, assailing the decision of the CA on the
following grounds:

1. THE COURT OF APPEALS ERRED ON A
QUESTION OF LAW IN HOLDING THAT THE
PROFESSIONAL REGULATION[S] COMMISSION (PRC)
WAS EXCLUDED AMONG THE QUASI-JUDICIAL
AGENCIES CONTEMPLATED UNDER RULE 43 OF THE
RULES OF CIVIL PROCEDURE;

2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS
EXCLUDED FROM THE PURVIEW OF RULE 43 OF THE
RULES OF CIVIL PROCEDURE, THE PETITIONER WAS
NOT PRECLUDED FROM FILING A PETITION FOR
CERTIORARI WHERE THE DECISION WAS ALSO ISSUED
IN EXCESS OF OR WITHOUT JURISDICTION, OR WHERE
THE DECISION WAS A PATENT NULLITY;

3. HEREIN RESPONDENTS-SPOUSES ARE NOT
ALLOWED BY LAW TO APPEAL FROM THE DECISION OF
THE BOARD OF MEDICINE TO THE PROFESSIONAL
REGULATION[S] COMMISSION;

4. THE COURT OF APPEALS COMMITTED GRAVE
ABUSE OF DISCRETION IN DENYING FOR IMPROPER
FORUM THE PETITION FOR REVIEW/PETITION FOR
CERTIORARI WITHOUT GOING OVER THE MERITS OF
THE GROUNDS RELIED UPON BY THE PETITIONER;

5. PRCS GRAVE OMISSION TO AFFORD HEREIN
PETITONER A CHANCE TO BE HEARD ON APPEAL IS A
CLEAR VIOLATION OF HER CONSTITUTIONAL RIGHT TO
DUE PROCESS AND HAS THE EFFECT OF RENDERING
THE JUDGMENT NULL AND VOID;

6. COROLLARY TO THE FOURTH ASSIGNED
ERROR, PRC COMMITTED GRAVE ABUSE OF
DISCRETION, AMOUNTING TO LACK OF JURISDICTION,
IN ACCEPTING AND CONSIDERING THE MEMORANDUM
ON APPEAL WITHOUT PROOF OF SERVICE TO HEREIN
PETITIONER, AND IN VIOLATION OF ART. IV, SEC. 35 OF
THE RULES AND REGULATIONS GOVERNING THE
REGULATION AND PRACTICE OF PROFESSIONALS;

7. PRC COMMITTED GRAVE ABUSE OF
DISCRETION IN REVOKING PETITIONERS LICENSE TO
PRACTICE MEDICINE WITHOUT AN EXPERT
TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE
CAUSE OF RESPONDENT EDITHAT [SIC] RAMOLETES
INJURY;

8. PRC COMMITTED AN EVEN GRAVER ABUSE OF
DISCRETION IN TOTALLY DISREGARDING THE FINDING
OF THE BOARD OF MEDICINE, WHICH HAD THE
NECESSARY COMPETENCE AND EXPERTISE TO
ESTABLISH THE CAUSE OF RESPONDENT EDITHAS
INJURY, AS WELL AS THE TESTIMONY OF THE EXPERT
WITNESS AUGUSTO MANALO, M.D. ;[AND]

9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN
MAKING CONCLUSIONS OF FACTS THAT WERE NOT ONLY
UNSUPPORTED BY EVIDENCE BUT WERE ACTUALLY
CONTRARY TO EVIDENCE ON RECORD.
[22]


The Court will first deal with the procedural issues.

Petitioner claims that the law does not allow complainants to appeal to the PRC
from the decision of the Board. She invokes Article IV, Section 35 of the Rules and
Regulations Governing the Regulation and Practice of Professionals, which provides:

Sec. 35. The respondent may appeal the decision of the
Board within thirty days from receipt thereof to the Commission
whose decision shall be final. Complainant, when allowed by law,
may interpose an appeal from the Decision of the Board within
the same period. (Emphasis supplied)

Petitioner asserts that a careful reading of the above law indicates that while
the respondent, as a matter of right, may appeal the Decision of the Board to the
Commission, the complainant may interpose an appeal from the decision of the Board
only when so allowed by law.
[23]
Petitioner cited Section 26 of Republic Act No. 2382 or
The Medical Act of 1959, to wit:

Section 26. Appeal from judgment. The decision of the
Board of Medical Examiners (now Medical Board) shall
automatically become final thirty days after the date of its
promulgation unless the respondent, during the same
period, has appealed to the Commissioner of Civil Service
(now Professional Regulations Commission) and later to the
Office of the President of the Philippines. If the final decision
is not satisfactory, the respondent may ask for a review of
the case, or may file in court a petition for certiorari.

Petitioner posits that the reason why the Medical Act of 1959 allows only the
respondent in an administrative case to file an appeal with the Commission while the
complainant is not allowed to do so is double jeopardy. Petitioner is of the belief that
the revocation of license to practice a profession is penal in nature.
[24]


The Court does not agree.

For one, the principle of double jeopardy finds no application in administrative
cases. Double jeopardy attaches only: (1) upon a valid indictment; (2) before a
competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5)
when the defendant was acquitted or convicted, or the case was dismissed or otherwise
terminated without the express consent of the accused.
[25]
These elements were not
present in the proceedings before the Board of Medicine, as the proceedings involved in
the instant case were administrative and not criminal in nature. The Court has already
held that double jeopardy does not lie in administrative cases.
[26]


Moreover, Section 35 of the Rules and Regulations Governing the Regulation and
Practice of Professionals cited by petitioner was subsequently amended to read:

Sec. 35. The complainant/respondent may appeal
the order, the resolution or the decision of the Board within
thirty (30) days from receipt thereof to the Commission
whose decision shall be final and executory. Interlocutory
order shall not be appealable to the Commission. (Amended
by Res. 174, Series of 1990).
[27]
(Emphasis supplied)

Whatever doubt was created by the previous provision was settled
with said amendment. It is axiomatic that the right to appeal is not a natural
right or a part of due process, but a mere statutory privilege that may be
exercised only in the manner prescribed by law.
[28]
In this case, the clear
intent of the amendment is to render the right to appeal from a decision of
the Board available to both complainants and respondents.

Such conclusion is bolstered by the fact that in 2006, the PRC issued
Resolution No. 06-342(A), or the New Rules of Procedure in Administrative
Investigations in the Professional Regulations Commission and the Professional
Regulatory Boards, which provides for the method of appeal, to wit:

Sec. 1. Appeal; Period Non-Extendible.- The
decision, order or resolution of the Board shall be final
and executory after the lapse of fifteen (15) days from
receipt of the decision, order or resolution without an
appeal being perfected or taken by either the respondent or
the complainant. A party aggrieved by the decision, order
or resolution may file a notice of appeal from the
decision, order or resolution of the Board to the
Commission within fifteen (15) days from receipt
thereof, and serving upon the adverse party a notice of
appeal together with the appellants brief or memorandum
on appeal, and paying the appeal and legal research fees.
x x x
[29]


The above-stated provision does not qualify whether only the complainant or
respondent may file an appeal; rather, the new rules provide that a party aggrieved
may file a notice of appeal. Thus, either the complainant or the respondent who has
been aggrieved by the decision, order or resolution of the Board may appeal to the
Commission. It is an elementary rule that when the law speaks in clear and categorical
language, there is no need, in the absence of legislative intent to the contrary, for any
interpretation.
[30]
Words and phrases used in the statute should be given their plain,
ordinary, and common usage or meaning.
[31]


Petitioner also submits that appeals from the decisions of the PRC should be
with the CA, as Rule 43
[32]
of the Rules of Court was precisely formulated and adopted to
provide for a uniform rule of appellate procedure for quasi-judicial
agencies.
[33]
Petitioner further contends that a quasi-judicial body is not excluded from
the purview of Rule 43 just because it is not mentioned therein.
[34]


On this point, the Court agrees with the petitioner.

Sec. 1, Rule 43 of the Rules of Court provides:

Section 1. Scope. - This Rule shall apply to appeals from
judgments or final orders of the Court of Tax Appeals, and from
awards, judgments, final orders or resolutions of or authorized
by any quasi-judicial agency in the exercise of its quasi-judicial
functions. Among these agencies are the Civil Service Commission,
Central Board of Assessment Appeals, Securities and Exchange
Commission, Office of the President, Land Registration Authority,
Social Security Commission, Civil Aeronautics Board, Bureau of
Patents, Trademarks and Technology Transfer, National
Electrification Administration, Energy Regulatory Board, National
Telecommunications Commission, Department of Agrarian Reform
under Republic Act No. 6657, Government Service Insurance
System, Employees Compensation Commission, Agricultural
Inventions Board, Insurance Commission, Philippine Atomic Energy
Commission, Board of Investments, Construction Industry
Arbitration Commission, and voluntary arbitrators authorized by
law. (Emphasis supplied)

Indeed, the PRC is not expressly mentioned as one of the agencies which are
expressly enumerated under Section 1, Rule 43 of the Rules of Court. However, its
absence from the enumeration does not, by this fact alone, imply its exclusion from the
coverage of said Rule.
[35]
The Rule expressly provides that it should be applied to
appeals from awards, judgments final orders or resolutions of any quasi-judicial agency
in the exercise of its quasi-judicial functions. The phrase among these agencies
confirms that the enumeration made in the Rule is not exclusive to the agencies therein
listed.
[36]


Specifically, the Court, in Yang v. Court of Appeals,
[37]
ruled
that Batas Pambansa (B.P.) Blg. 129
[38]
conferred upon the CA exclusive appellate
jurisdiction over appeals from decisions of the PRC. The Court held:

The law has since been changed, however, at least in the
matter of the particular court to which appeals from the
Commission should be taken. On August 14, 1981,
Batas Pambansa Bilang 129 became effective and in its Section 29,
conferred on the Court of Appeals exclusive appellate jurisdiction
over all final judgments, decisions, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial agencies, instrumentalities,
boards or commissions except those falling under the appellate
jurisdiction of the Supreme Court. x x x. In virtue of BP 129,
appeals from the Professional Regulations Commission are
now exclusively cognizable by the Court of
Appeals.
[39]
(Emphasis supplied)

Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of
Civil Procedure,
[40]
lodged with the CA such jurisdiction over the appeals of decisions
made by the PRC.

Anent the substantive merits of the case, petitioner questions the PRC decision for
being without an expert testimony to support its conclusion and to establish the cause
of Edithas injury. Petitioner avers that in cases of medical malpractice, expert
testimony is necessary to support the conclusion as to the cause of the injury.
[41]


Medical malpractice is a particular form of negligence which consists in the failure
of a physician or surgeon to apply to his practice of medicine that degree of care and
skill which is ordinarily employed by the profession generally, under similar conditions,
and in like surrounding circumstances.
[42]
In order to successfully pursue such a claim, a
patient must prove that the physician or surgeon either failed to do something which a
reasonably prudent physician or surgeon would not have done, and that the failure or
action caused injury to the patient.
[43]


There are four elements involved in medical negligence cases: duty, breach, injury
and proximate causation.
[44]


A physician-patient relationship was created when Editha employed the services
of the petitioner. As Edithas physician, petitioner was duty-bound to use at least the
same level of care that any reasonably competent doctor would use to treat a condition
under the same circumstances.
[45]
The breach of these professional duties of skill and
care, or their improper performance by a physician surgeon, whereby the patient is
injured in body or in health, constitutes actionable malpractice.
[46]
As to this aspect of
medical malpractice, the determination of the reasonable level of care and the breach
thereof, expert testimony is essential.
[47]
Further, inasmuch as the causes of the injuries
involved in malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually necessary to support
the conclusion as to causation.
[48]


In the present case, respondents did not present any expert testimony to support
their claim that petitioner failed to do something which a reasonably prudent physician
or surgeon would have done.

Petitioner, on the other hand, presented the testimony of
Dr. Augusto M. Manalo, who was clearly an expert on the subject.

Generally, to qualify as an expert witness, one must have acquired special
knowledge of the subject matter about which he or she is to testify, either by the study
of recognized authorities on the subject or by practical experience.
[49]


Dr. Manalo specializes in gynecology and obstetrics, authored and co-
authored various publications on the subject, and is a professor at the University of
the Philippines.
[50]
According to him, his diagnosis of Edithas case was
Ectopic Pregnancy Interstitial (also referred to asCornual), Ruptured.
[51]
In stating
that the D&C procedure was not the proximate cause of the rupture of Edithas uterus
resulting in her hysterectomy, Dr. Manalo testified as follows:

Atty. Hidalgo:
Q: Doctor, we want to be clarified on this matter. The
complainant had testified here that the D&C was the
proximate cause of the rupture of the uterus. The
condition which she found herself in on the second
admission. Will you please tell us whether that is true or
not?
A: Yah, I do not think so for two reasons. One, as I have said
earlier, the instrument cannot reach the site of the
pregnancy, for it to further push the pregnancy outside the
uterus. And, No. 2, I was thinking a while ago about
another reason- well, why I dont think so, because it is the
triggering factor for the rupture, it could havethe
rupture could have occurred much earlier, right after the
D&C or a few days after the D&C.

Q: In this particular case, doctor, the rupture occurred to have
happened minutes prior to the hysterectomy or right upon
admission on September 15, 1994 which is about 1
months after the patient was discharged, after the D&C
was conducted. Would you tell us whether there is any
relation at all of the D&C and the rupture in this particular
instance?
A: I dont think so for the two reasons that I have just
mentioned- that it would not be possible for the
instrument to reach the site of pregnancy. And, No. 2, if
it is because of the D&C that rupture could have occurred
earlier.
[52]
(Emphases supplied)

Clearly, from the testimony of the expert witness and the reasons given by
him, it is evident that the D&C procedure was not the proximate cause of the rupture
of Edithas uterus.

During his cross-examination, Dr. Manalo testified on how he would have
addressed Edithas condition should he be placed in a similar circumstance as the
petitioner. He stated:

Atty. Ragonton:
Q: Doctor, as a practicing OB-Gyne, when do you consider that
you have done a good, correct and ideal dilatation and
curettage procedure?
A: Well, if the patient recovers. If the patient gets well. Because
even after the procedure, even after the procedure you
may feel that you have scraped everything, the patient
stops bleeding, she feels well, I think you should still have
some reservations, and wait a little more time.

Q: If you were the OB-Gyne who performed the procedure on
patient Editha Ramolete, would it be your standard
practice to check the fetal parts or fetal tissues that were
allegedly removed?
A: From what I have removed, yes. But in this particular case, I
think it was assumed that it was part of the meaty mass
which was expelled at the time she was urinating and
flushed in the toilet. So theres no way.

Q: There was [sic] some portions of the fetal parts that were
removed?
A: No, it was described as scanty scraping if I remember it
rightscanty.

Q: And you would not mind checking those scant or those little
parts that were removed?
A: Well, the fact that it was described means, I assume that
it was checked, no. It was described as scanty and the
color also, I think was described. Because it would be
very unusual, even improbable that it would not be
examined, because when you scrape, the specimens
are right there before your eyes. Its in front of
you. You can touch it. In fact, some of them will stick
to the instrument and therefore to peel it off from the
instrument, you have to touch them. So, automatically
they are examined closely.
Q: As a matter of fact, doctor, you also give telephone orders to
your patients through telephone?
A: Yes, yes, we do that, especially here in Manila because you
know, sometimes a doctor can also be tied-up somewhere
and if you have to wait until he arrive at a certain place
before you give the order, then it would be a lot of time
wasted. Because if you know your patient, if you have
handled your patient, some of the symptoms you can
interpret that comes with practice. And, I see no reason
for not allowing telephone orders unless it is the first
time that you will be encountering the patient. That
you have no idea what the problem is.

Q: But, doctor, do you discharge patients without seeing them?
A: Sometimes yes, depending on how familiar I am with the
patient. We are on the question of telephone orders. I am
not saying that that is the idle [sic] thing to do, but I think
the reality of present day practice somehow justifies
telephone orders. I have patients whom I have justified
and then all of a sudden, late in the afternoon or late in the
evening, would suddenly call they have decided that they
will go home inasmuch as they anticipated that I will
discharge them the following day. So, I just call and ask our
resident on duty or the nurse to allow them to go because I
have seen that patient and I think I have full grasp of her
problems. So, thats when I make this telephone orders.
And, of course before giving that order I ask about how she
feels.
[53]
(Emphases supplied)

From the foregoing testimony, it is clear that the D&C procedure was
conducted in accordance with the standard practice, with the same level of care that
any reasonably competent doctor would use to treat a condition under the same
circumstances, and that there was nothing irregular in the way the petitioner dealt
with Editha.

Medical malpractice, in our jurisdiction, is often brought as a civil action for
damages under Article 2176
[54]
of the Civil Code. The defenses in an action for damages,
provided for under Article 2179 of the Civil Code are:

Art. 2179. When the plaintiffs own negligence was the
immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only contributory, the
immediate and proximate cause of the injury being the defendants
lack of due care, the plaintiff may recover damages, but the courts
shall mitigate the damages to be awarded.

Proximate cause has been defined as that which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces injury, and without
which the result would not have occurred.
[55]
An injury or damage is proximately
caused by an act or a failure to act, whenever it appears from the evidence in the case
that the act or omission played a substantial part in bringing about or actually causing
the injury or damage; and that the injury or damage was either a direct result or a
reasonably probable consequence of the act or omission.
[56]


In the present case, the Court notes the findings of the Board of Medicine:

When complainant was discharged on July 31, 1994,
herein respondent advised her to return on August 4, 1994 or
four (4) days after the D&C. This advise was clear in
complainants Discharge Sheet. However, complainant failed to
do so. This being the case, the chain of continuity as required in
order that the doctrine of proximate cause can be validly invoked
was interrupted. Had she returned, the respondent could have
examined her thoroughly.
[57]
x x x (Emphases supplied)

Also, in the testimony of Dr. Manalo, he stated further that assuming that there
was in fact a misdiagnosis, the same would have been rectified if Editha followed the
petitioners order to return for a check-up on August 4, 1994. Dr. Manalo stated:

Granting that the obstetrician-gynecologist has been
misled (justifiably) up to thus point that there would have been
ample opportunity to rectify the misdiagnosis, had the patient
returned, as instructed for her follow-up evaluation. It was one
and a half months later that the patient sought consultation
with another doctor. The continued growth of
an ectopic pregnancy, until its eventual rupture, is a dynamic
process. Much change in physical findings could be expected in 1
months, including the emergence of suggestive ones.
[58]


It is undisputed that Editha did not return for a follow-up evaluation, in
defiance of the petitioners advise. Editha omitted the diligence required by the
circumstances which could have avoided the injury. The omission in not returning for a
follow-up evaluation played a substantial part in bringing about Edithas own
injury. Had Editha returned, petitioner could have conducted the proper medical tests
and procedure necessary to determine Edithas health condition and applied the
corresponding treatment which could have prevented the rupture of Edithas uterus.
The D&C procedure having been conducted in accordance with the standard medical
practice, it is clear that Edithasomission was the proximate cause of her own injury and
not merely a contributory negligence on her part.

Contributory negligence is the act or omission amounting to want of ordinary
care on the part of the person injured, which, concurring with the defendants
negligence, is the proximate cause of the injury.
[59]
Difficulty seems to be apprehended
in deciding which acts of the injured party shall be considered immediate causes of the
accident.
[60]
Where the immediate cause of an accident resulting in an injury is the
plaintiffs own act, which contributed to the principal occurrence as one of its
determining factors, he cannot recover damages for the injury.
[61]
Again, based on the
evidence presented in the present case under review, in which no negligence can
be attributed to the petitioner, the immediate cause of the accident resulting
in Edithas injury was her own omission when she did not return for a follow-up
check up, in defiance of petitioners orders. The immediate cause
of Edithas injury was her own act; thus, she cannot recover damages from the
injury.

Lastly, petitioner asserts that her right to due process was violated because she
was never informed by either respondents or by the PRC that an appeal was pending
before the PRC.
[62]
Petitioner claims that a verification with the records section of the
PRC revealed that onApril 15, 1999, respondents filed a Memorandum on Appeal
before the PRC, which did not attach the actual registry receipt but was merely
indicated therein.
[63]

Respondents, on the other hand avers that if the original registry receipt was not
attached to the Memorandum on Appeal, PRC would not have entertained the appeal or
accepted such pleading for lack of notice or proof of service on the other party.
[64]
Also,
the registry receipt could not be appended to the copy furnished to petitioners former
counsel, because the registry receipt was already appended to the original copy of the
Memorandum of Appeal filed with PRC.
[65]


It is a well-settled rule that when service of notice is an issue, the rule is that the
person alleging that the notice was served must prove the fact of service. The burden of
proving notice rests upon the party asserting its existence.
[66]
In the present case,
respondents did not present any proof that petitioner was served a copy of the
Memorandum on Appeal. Thus, respondents were not able to satisfy the burden of
proving that they had in fact informed the petitioner of the appeal proceedings before
the PRC.

In EDI-Staffbuilders International, Inc. v. National Labor Relations
Commission,
[67]
in which the National Labor Relations Commission failed to order the
private respondent to furnish the petitioner a copy of the Appeal Memorandum, the
Court held that said failure deprived the petitioner of procedural due process
guaranteed by the Constitution, which could have served as basis for the nullification of
the proceedings in the appeal. The same holds true in the case at bar. The Court finds
that the failure of the respondents to furnish the petitioner a copy of the Memorandum
of Appeal submitted to the PRC constitutes a violation of due process. Thus, the
proceedings before the PRC were null and void.

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

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

SO ORDERED.

PETER PAUL PATRICK LUCAS,
FATIMA GLADYS LUCAS,
ABBEYGAIL LUCAS AND GILLIAN
LUCAS,
Petitioners,




- versus -




DR. PROSPERO MA. C. TUAO,
Respondent.
G. R. No. 178763


Present:

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA, and
PERALTA, JJ.



Promulgated:

April 21, 2009
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N


CHICO-NAZARIO, J.:


In this petition for review on certiorari
[1]
under Rule 45 of the
Revised Rules of Court, petitioners Peter Paul Patrick Lucas, Fatima Gladys
Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the 27
September 2006 Decision
[2]
and 3 July 2007 Resolution,
[3]
both of the Court of
Appeals in CA-G.R. CV No. 68666, entitled Peter Paul Patrick Lucas, Fatima
Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao.
In the questioned decision and resolution, the Court of Appeals
affirmed the 14 July 2000 Decision of the Regional Trial Court (RTC), Branch
150, Makati City, dismissing the complaint filed by petitioners in a civil case
entitled, Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and
Gillian Lucas v. Prospero Ma. C. Tuao, docketed as Civil Case No. 92-2482.

From the record of the case, the established factual antecedents of
the present petition are:

Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter)
contracted sore eyes in his right eye.

On 2 September 1988, complaining of a red right eye and swollen
eyelid, Peter made use of his health care insurance issued by Philamcare
Health Systems, Inc. (Philamcare), for a possible consult. The Philamcare
Coordinator, Dr. Edwin Oca, M.D., referred Peter to respondent, Dr. Prospero
Ma. C. Tuao, M.D. (Dr. Tuao), an ophthalmologist at St.
Lukes Medical Center, for an eye consult.

Upon consultation with Dr. Tuao, Peter narrated that it had been
nine (9) days since the problem with his right eye began; and that he was
already taking Maxitrol to address the problem in his eye. According to Dr.
Tuao, he performed ocular routine examination on Peters eyes, wherein:
(1) a gross examination of Peters eyes and their surrounding area was
made; (2) Peters visual acuity were taken; (3) Peters eyes were palpated to
check the intraocular pressure of each; (4) the motility of Peters eyes was
observed; and (5) the ophthalmoscopy
[4]
on Peters eyes was used. On that
particular consultation, Dr. Tuao diagnosed that Peter was suffering
from conjunctivitis
[5]
or sore eyes. Dr. Tuao then prescribed Spersacet-
C
[6]
eye drops for Peter and told the latter to return for follow-up after one
week.

As instructed, Peter went back to Dr. Tuao on 9 September
1988. Upon examination, Dr. Tuao told Peter that the sore eyes in the
latters right eye had already cleared up and he could discontinue
the Spersacet-C. However, the same eye
developed Epidemic KeratoConjunctivitis (EKC),
[7]
a viral infection. To address
the new problem with Peters right eye, Dr. Tuao prescribed to the former a
steroid-based eye drop called Maxitrol,
[8]
a dosage of six (6) drops per
day.
[9]
To recall, Peter had already been using Maxitrol prior to his consult
with Dr. Tuao.

On 21 September 1988, Peter saw Dr. Tuao for a follow-up
consultation. After examining both of Peters eyes, Dr. Tuao instructed the
former to taper down
[10]
the dosage of Maxitrol, because the EKC in his right
eye had already resolved. Dr. Tuao specifically cautioned Peter that, being a
steroid, Maxitrol had to be withdrawn gradually; otherwise, the EKC might
recur.
[11]


Complaining of feeling as if there was something in his eyes, Peter
returned to Dr. Tuao for another check-up on 6 October 1988. Dr. Tuao
examined Peters eyes and found that the right eye had once more developed
EKC. So, Dr. Tuao instructed Peter to resume the use ofMaxitrol at six (6)
drops per day.

On his way home, Peter was unable to get a hold of Maxitrol, as it was
out of stock. Consequently, Peter was told by Dr. Tuano to take,
instead, Blephamide
[12]
another steroid-based medication, but with a lower
concentration, as substitute for the unavailable Maxitrol, to be used three (3)
times a day for five (5) days; two (2) times a day for five (5) days; and then
just once a day.
[13]


Several days later, on 18 October 1988, Peter went to see Dr. Tuao
at his clinic, alleging severe eye pain, feeling as if his eyes were about to pop-
out, a headache and blurred vision. Dr. Tuao examined Peters eyes and
discovered that the EKC was again present in his right eye. As a result, Dr.
Tuao told Peter to resume the maximum dosage of Blephamide.

Dr. Tuao saw Peter once more at the formers clinic on 4 November
1988. Dr. Tuaos examination showed that only the periphery of Peters
right eye was positive for EKC; hence, Dr. Tuao prescribed a lower dosage
of Blephamide.

It was also about this time that Fatima Gladys Lucas (Fatima), Peters
spouse, read the accompanying literature of Maxitrol and found therein the
following warning against the prolonged use of such steroids:
WARNING:

Prolonged use may result in glaucoma, with damage
to the optic nerve, defects in visual acuity and fields of
vision, and posterior, subcapsular cataract
formation. Prolonged use may suppress the host response
and thus increase the hazard of secondary ocular infractions,
in those diseases causing thinning of the cornea or sclera,
perforations have been known to occur with the use of
topical steroids. In acute purulent conditions of the eye,
steroids may mask infection or enhance existing infection. If
these products are used for 10 days or longer, intraocular
pressure should be routinely monitored even though it may
be difficult in children and uncooperative patients.

Employment of steroid medication in the treatment
of herpes simplex requires great caution.

x x x x

ADVERSE REACTIONS:

Adverse reactions have occurred with steroid/anti-
infective combination drugs which can be attributed to the
steroid component, the anti-infective component, or the
combination. Exact incidence figures are not available since
no denominator of treated patients is available.
Reactions occurring most often from the presence
of the anti-infective ingredients are allergic
sensitizations. The reactions due to the steroid component
in decreasing order to frequency are elevation of intra-
ocular pressure (IOP) with possible development of
glaucoma, infrequent optic nerve damage; posterior
subcapsular cataract formation; and delayed wound healing.
Secondary infection: The development of
secondary has occurred after use of combination containing
steroids and antimicrobials. Fungal infections of the correa
are particularly prone to develop coincidentally with long-
term applications of steroid. The possibility of fungal
invasion must be considered in any persistent corneal
ulceration where steroid treatment has been used.
Secondary bacterial ocular infection following
suppression of host responses also occurs.

On 26 November 1988, Peter returned to Dr. Tuaos clinic,
complaining of feeling worse.
[14]
It appeared that the EKC had spread to the
whole of Peters right eye yet again. Thus, Dr. Tuao instructed Peter to
resume the use of Maxitrol. Petitioners averred that Peter already made
mention to Dr. Tuao during said visit of the above-quoted warning against
the prolonged use of steroids, but Dr. Tuao supposedly brushed aside
Peters concern as mere paranoia, even assuring him that the former was
taking care of him (Peter).

Petitioners further alleged that after Peters 26 November 1988 visit
to Dr. Tuao, Peter continued to suffer pain in his right eye, which seemed to
progress, with the ache intensifying and becoming more frequent.

Upon waking in the morning of 13 December 1988, Peter had no
vision in his right eye. Fatima observed that Peters right eye appeared to be
bloody and swollen.
[15]
Thus, spouses Peter and Fatima rushed to the clinic of
Dr. Tuao. Peter reported to Dr. Tuao that he had been suffering from
constant headache in the afternoon and blurring of vision.

Upon examination, Dr. Tuao noted the hardness of Peters right eye.
With the use of a tonometer
[16]
to verify the exact intraocularpressure
[17]
(IOP)
of Peters eyes, Dr. Tuao discovered that the tension in Peters right eye
was 39.0 Hg, while that of his left was 17.0 Hg.
[18]
Since the tension in Peters
right eye was way over the normal IOP, which merely ranged from 10.0 Hg
to 21.0 Hg,
[19]
Dr. Tuao ordered
[20]
him to immediately discontinue the use
of Maxitrol and prescribed to the latter Diamox
[21]
and Normoglaucon,
instead.
[22]
Dr. Tuao also required Peter to go for daily check-up in order for
the former to closely monitor the pressure of the latters eyes.
On 15 December 1988, the tonometer reading of Peters right eye
yielded a high normal level, i.e., 21.0 Hg. Hence, Dr. Tuao told Peter to
continue using Diamox and Normoglaucon. But upon Peters complaint of
stomach pains and tingling sensation in his fingers,
[23]
Dr. Tuao
discontinued Peters use of Diamox.
[24]


Peter went to see another ophthalmologist, Dr. Ramon T.
Batungbacal (Dr. Batungbacal), on 21 December 1988, who allegedly
conducted a complete ophthalmological examination of Peters eyes. Dr.
Batungbacals diagnosis was Glaucoma
[25]
O.D.
[26]
He
recommended Laser Trabeculoplasty
[27]
for Peters right eye.

When Peter returned to Dr. Tuao on 23 December 1988,
[28]
the
tonometer measured the IOP of Peters right eye to be 41.0 Hg,
[29]
again, way
above normal. Dr. Tuao addressed the problem by advising Peter to resume
taking Diamox along with Normoglaucon.

During the Christmas holidays, Peter supposedly stayed in bed most
of the time and was not able to celebrate the season with his family because
of the debilitating effects of Diamox.
[30]


On 28 December 1988, during one of Peters regular follow-ups with
Dr. Tuao, the doctor conducted another ocular routine examination
of Peters eyes. Dr. Tuao noted the recurrence of EKC in Peters right eye.
Considering, however, that the IOP of Peters right eye was still quite high
at 41.0 Hg, Dr. Tuao was at a loss as to how to balance the treatment of
Peters EKC vis--vis the presence ofglaucoma in the same eye. Dr. Tuao,
thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another
ophthalmologist specializing in the treatment of glaucoma.
[31]
Dr. Tuaos
letter of referral to Dr. Agulto stated that:

Referring to you Mr. Peter Lucas for evaluation &
possible management. I initially saw him Sept. 2,
1988 because of conjunctivitis. The latter resolved and he
developed EKC for which I gave Maxitrol. The EKC was
recurrent after stopping steroid drops. Around 1 month of
steroid treatment, he noted blurring of vision & pain on the
R. however, I continued the steroids for the sake of the EKC.
A month ago, I noted iris atrophy, so I took the IOP and it
was definitely elevated. I stopped the steroids immediately
and has (sic) been treating him medically.

It seems that the IOP can be controlled only with
oral Diamox, and at the moment, the EKC has recurred and
Im in a fix whether to resume the steroid or not considering
that the IOP is still uncontrolled.
[32]



On 29 December 1988, Peter went to see Dr. Agulto at the latters
clinic. Several tests were conducted thereat to evaluate the extent of Peters
condition. Dr. Agulto wrote Dr. Tuao a letter containing the following
findings and recommendations:

Thanks for sending Peter Lucas. On examination
conducted vision was 20/25 R and 20/20L. Tension curve
19 R and 15 L at 1210 H while on Normoglaucon BID OD &
Diamox tab every 6h po.

Slit lamp evaluation
[33]
disclosed subepithelial
corneal defect outer OD. There was circumferential
peripheral iris atrophy, OD. The lenses were clear.
Funduscopy
[34]
showed vertical cup disc of 0.85 R
and 0.6 L with temporal slope R>L.

Zeiss gonioscopy
[35]
revealed basically open angles
both eyes with occasional PAS,
[36]
OD.

Rolly, I feel that Peter Lucas has really sustained
significant glaucoma damage. I suggest that we do a baseline
visual fields and push medication to lowest possible levels. If
I may suggest further, I think we should prescribe
Timolol
[37]
BID
[38]
OD in lieu of Normoglaucon. If the IOP is
still inadequate, we may try Depifrin
[39]
BID OD (despite low
PAS). Im in favor of retaining Diamox or similar CAI.
[40]


If fields show further loss in say 3 mos. then we
should consider trabeculoplasty.

I trust that this approach will prove reasonable for
you and Peter.
[41]



Peter went to see Dr. Tuao on 31 December 1988, bearing Dr.
Agultos aforementioned letter. Though Peters right and left eyes then had
normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuao still gave him a
prescription for Timolol B.I.D. so Peter could immediately start using said
medication. Regrettably, Timolol B.I.D. was out of stock, so Dr. Tuao
instructed Peter to just continue using Diamox andNormoglaucon in the
meantime.

Just two days later, on 2 January 1989, the IOP of Peters right eye
remained elevated at 21.0 Hg,
[42]
as he had been without Diamoxfor the past
three (3) days.

On 4 January 1989, Dr. Tuao conducted a visual field study
[43]
of
Peters eyes, which revealed that the latter had tubular vision
[44]
in his right
eye, while that of his left eye remained normal. Dr. Tuao directed Peter to
religiously use the Diamox and Normoglaucon, as the tension of the latters
right eye went up even further to 41.0 Hg in just a matter of two (2) days, in
the meantime that Timolol B.I.D. andDepifrin were still not available in the
market. Again, Dr. Tuao advised Peter to come for regular check-up so his
IOP could be monitored.

Obediently, Peter went to see Dr. Tuao on the 7
th
,

13
th
, 16
th
and
20
th
of January 1989 for check-up and IOP monitoring.

In the interregnum, however, Peter was prodded by his friends to
seek a second medical opinion. On 13 January 1989, Peter consulted Dr. Jaime
Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in turn, referred Peter to
Dr. Mario V. Aquino, M.D. (Dr. Aquino), another ophthalmologist who
specializes in the treatment of glaucoma and who could undertake the long
term care of Peters eyes.

According to petitioners, after Dr. Aquino conducted an extensive
evaluation of Peters eyes, the said doctor informed Peter that his eyes were
relatively normal, though the right one sometimes manifested maximum
borderline tension. Dr. Aquino also confirmed Dr. Tuaos diagnosis of
tubular vision in Peters right eye. Petitioners claimed that Dr. Aquino
essentially told Peter that the latters condition would require lifetime
medication and follow-ups.

In May 1990 and June 1991, Peter underwent two (2) procedures of
laser trabeculoplasty to attempt to control the high IOP of his right eye.

Claiming to have steroid-induced glaucoma
[45]
and blaming Dr. Tuao
for the same, Peter, joined by: (1) Fatima, his spouse
[46]
; (2) Abbeygail, his
natural child
[47]
; and (3) Gillian, his legitimate child
[48]
with Fatima, instituted
on 1 September 1992, a civil complaint for damages against Dr. Tuao, before
the RTC, Branch 150, Quezon City. The case was docketed as Civil Case No.
92-2482.

In their Complaint, petitioners specifically averred that as the direct
consequence of [Peters] prolonged use of Maxitrol, [he] suffered from steroid
induced glaucoma which caused the elevation of his intra-ocular pressure.
The elevation of the intra-ocular pressure of [Peters right eye] caused the
impairment of his vision which impairment is not curable and may even lead
to total blindness.
[49]


Petitioners additionally alleged that the visual impairment of Peters
right eye caused him and his family so much grief. Because of his present
condition, Peter now needed close medical supervision forever; he had
already undergone two (2) laser surgeries, with the possibility that more
surgeries were still needed in the future; his career in sports casting had
suffered and was continuing to suffer;
[50]
his anticipated income had been
greatly reduced as a result of his limited capacity; he continually suffered
from headaches, nausea, dizziness, heart palpitations, rashes, chronic
rhinitis, sinusitis,
[51]
etc.; Peters relationships with his spouse and children
continued to be strained, as his condition made him highly irritable and
sensitive; his mobility and social life had suffered; his spouse, Fatima, became
the breadwinner in the family;
[52]
and his two children had been deprived of
the opportunity for a better life and educational prospects. Collectively,
petitioners lived in constant fear of Peter becoming completely blind.
[53]


In the end, petitioners sought pecuniary award for their supposed
pain and suffering, which were ultimately brought about by Dr.
Tuaos grossly negligent conduct in prescribing to Peter the
medicine Maxitrol for a period of three (3) months, without monitoring
Peters IOP, as required in cases of prolonged use of said medicine, and
notwithstanding Peters constant complaint of intense eye pain while using
the same. Petitioners particularly prayed that Dr. Tuao be adjudged liable
for the following amounts:

1. The amount of P2,000,000.00 to plaintiff
Peter Lucas as and by way of compensation
for his impaired vision.

2. The amount of P300,000.00 to spouses
Lucas as and by way of actual damages plus
such additional amounts that may be proven
during trial.

3. The amount of P1,000,000.00 as and by
way of moral damages.

4. The amount of P500,000.00 as and by
way of exemplary damages.


5. The amount of P200,000.00 as and by
way of attorneys fees plus costs of suit.
[54]



In rebutting petitioners complaint, Dr. Tuao asserted that the
treatment made by [him] more than three years ago has no causal
connection to [Peters] present glaucoma or condition.
[55]
Dr. Tuao
explained that [d]rug-induced glaucoma is temporary and curable, steroids
have the side effect of increasing intraocular pressure. Steroids are
prescribed to treat Epidemic Kerato Conjunctivitis or EKC which is an
infiltration of the cornea as a result of conjunctivitis or sore eyes.
[56]
Dr.
Tuao also clarified that (1) [c]ontrary to [petitioners] fallacious claim, [he]
did NOT continually prescribe the drug Maxitrol which contained steroids for
any prolonged period
[57]
and [t]he truth was the Maxitrol was discontinued
x x x as soon as EKC disappeared and was resumed only when EKC
reappeared
[58]
; (2) the entire time he was treating Peter, he continually
monitored the intraocular pressure of [Peters eyes] by palpating the eyes
and by putting pressure on the eyeballs, and no hardening of the same could
be detected, which meant that there was no increase in the tension or IOP, a
possible side reaction to the use of steroid medications; and (3) it was only
on 13 December 1988 that Peter complained of a headache and blurred
vision in his right eye, and upon measuring the IOP of said eye, it was
determined for the first time that the IOP of the right eye had an elevated
value.

But granting for the sake of argument that the steroid treatment of
[Peters] EKC caused the steroid induced glaucoma,
[59]
Dr. Tuao argued
that:

[S]uch condition, i.e., elevated intraocular pressure, is
temporary. As soon as the intake of steroids is discontinued,
the intraocular pressure automatically is reduced. Thus,
[Peters] glaucoma can only be due to other causes not
attributable to steroids, certainly not attributable to [his]
treatment of more than three years ago x x x.

From a medical point of view, as revealed by more
current examination of [Peter], the latters glaucoma can
only be long standing glaucoma, open angle glaucoma,
because of the large C:D ratio. The steroids provoked the
latest glaucoma to be revealed earlier as [Peter] remained
asymptomatic prior to steroid application. Hence, the
steroid treatment was in fact beneficial to [Peter] as it
revealed the incipient open angle glaucoma of [Peter] to
allow earlier treatment of the same.
[60]


In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-
2482 for insufficiency of evidence.
[61]
The decretal part of
said Decision reads:

Wherefore, premises considered, the instant
complaint is dismissed for insufficiency of evidence. The
counter claim (sic) is likewise dismissed in the absence of
bad faith or malice on the part of plaintiff in filing the suit.
[62]


The RTC opined that petitioners failed to prove by preponderance of
evidence that Dr. Tuao was negligent in his treatment of Peters condition.
In particular, the record of the case was bereft of any evidence to establish
that the steroid medication and its dosage, as prescribed by Dr. Tuao,
caused Peters glaucoma. The trial court reasoned that the recognized
standards of the medical community has not been established in this case,
much less has causation been established to render [Tuao]
liable.
[63]
According to the RTC:

[Petitioners] failed to establish the duty required of
a medical practitioner against which Peter Pauls treatment
by defendant can be compared with. They did not present
any medical expert or even a medical doctor to convince and
expertly explain to the court the established norm or duty
required of a physician treating a patient, or whether the
non taking (sic) by Dr. Tuao of Peter Pauls pressure a
deviation from the norm or his non-discovery of the
glaucoma in the course of treatment constitutes negligence.
It is important and indispensable to establish such a
standard because once it is established, a medical
practitioner who departed thereof breaches his duty and
commits negligence rendering him liable. Without such
testimony or enlightenment from an expert, the court is at a
loss as to what is then the established norm of duty of a
physician against which defendants conduct can be
compared with to determine negligence.
[64]


The RTC added that in the absence of any medical evidence to the
contrary, this court cannot accept [petitioners] claim that the use of steroid
is the proximate cause of the damage sustained by [Peters] eye.
[65]


Correspondingly, the RTC accepted Dr. Tuaos medical opinion that
Peter Paul must have been suffering from normal tension glaucoma,
meaning, optic nerve damage was happening but no elevation of the eye
pressure is manifested, that the steroid treatment actually unmasked the
condition that resulted in the earlier treatment of the glaucoma. There is
nothing in the record to contradict such testimony. In fact, plaintiffs Exhibit
S even tends to support them.

Undaunted, petitioners appealed the foregoing RTC decision to the
Court of Appeals. Their appeal was docketed as CA-G.R. CV No. 68666.

On 27 September 2006, the Court of Appeals rendered a decision in
CA-G.R. CV No. 68666 denying petitioners recourse and affirming the
appealed RTC Decision. The fallo of the judgment of the appellate court
states:

WHEREFORE, the Decision appealed from is
AFFIRMED.
[66]


The Court of Appeals faulted petitioners because they

[D]id not present any medical expert to testify that Dr.
Tuanos prescription of Maxitrol and Blephamide for the
treatment of EKC on Peters right eye was not proper and
that his palpation of Peters right eye was not enough to
detect adverse reaction to steroid. Peter testified that Dr.
Manuel Agulto told him that he should not have used steroid
for the treatment of EKC or that he should have used it only
for two (2) weeks, as EKC is only a viral infection which will
cure by itself. However, Dr. Agulto was not presented by
[petitioners] as a witness to confirm what he allegedly told
Peter and, therefore, the latters testimony is hearsay. Under
Rule 130, Section 36 of the Rules of Court, a witness can
testify only to those facts which he knows of his own
personal knowledge, x x x. Familiar and fundamental is the
rule that hearsay testimony is inadmissible as evidence.
[67]


Like the RTC, the Court of Appeals gave great weight to Dr. Tuaos
medical judgment, specifically the latters explanation that:

[W]hen a doctor sees a patient, he cannot determine
whether or not the latter would react adversely to the use of
steroids, that it was only on December 13, 1989, when Peter
complained for the first time of headache and blurred vision
that he observed that the pressure of the eye of Peter was
elevated, and it was only then that he suspected that Peter
belongs to the 5% of the population who reacts adversely to
steroids.
[68]



Petitioners Motion for Reconsideration was denied by the Court of
Appeals in a Resolution dated 3 July 2007.

Hence, this Petition for Review on Certiorari under Rule 45 of the
Revised Rules of Court premised on the following assignment of errors:

I.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE
ERROR IN AFFIRMING THE DECISION OF THE TRIAL COURT
DISMISSING THE PETITIONERS COMPLAINT FOR
DAMAGES AGAINST THE RESPONDENT ON THE GROUND
OF INSUFFICIENCY OF EVIDENCE;

II.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE
ERROR IN DISMISSING THE PETITIONERS COMPLAINT FOR
DAMAGES AGAINST THE RESPONDENT ON THE GROUND
THAT NO MEDICAL EXPERT WAS PRESENTED BY THE
PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL
NEGLIGENCE AGAINST THE RESPONDENT; AND

III.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE
ERROR IN NOT FINDING THE RESPONDENT LIABLE TO THE
PETITIONERS FOR ACTUAL, MORAL AND EXEMPLARY
DAMAGES, ASIDE FROM ATTORNEYS FEES, COSTS OF SUIT,
AS A RESULT OF HIS GROSS NEGLIGENCE.
[69]



A reading of the afore-quoted reversible errors supposedly
committed by the Court of Appeals in its Decision and Resolution would reveal
that petitioners are fundamentally assailing the finding of the Court of
Appeals that the evidence on record is insufficient to establish petitioners
entitlement to any kind of damage. Therefore, it could be said that the sole
issue for our resolution in the Petition at bar is whether the Court of Appeals
committed reversible error in affirming the judgment of the RTC that
petitioners failed to prove, by preponderance of evidence, their claim for
damages against Dr. Tuao.

Evidently, said issue constitutes a question of fact, as we are asked to
revisit anew the factual findings of the Court of Appeals, as well as of the
RTC. In effect, petitioners would have us sift through the evidence on record
and pass upon whether there is sufficient basis to establish Dr. Tuaos
negligence in his treatment of Peters eye condition. This question clearly
involves a factual inquiry, the determination of which is not within the ambit
of this Courts power of review under Rule 45 of the 1997 Rules Civil
Procedure, as amended.
[70]


Elementary is the principle that this Court is not a trier of facts; only
errors of law are generally reviewed in petitions for review
oncertiorari criticizing decisions of the Court of Appeals. Questions of fact are
not entertained.
[71]


Nonetheless, the general rule that only questions of law may be
raised on appeal in a petition for review under Rule 45 of the Rules of Court
admits of certain exceptions, including the circumstance when the finding of
fact of the Court of Appeals is premised on the supposed absence of evidence,
but is contradicted by the evidence on record. Although petitioners may not
explicitly invoke said exception, it may be gleaned from their allegations and
arguments in the instant Petition.

Petitioners contend, that [c]ontrary to the findings of the Honorable
Court of Appeals, [they] were more than able to establish that: Dr. Tuao
ignored the standard medical procedure for ophthalmologists, administered
medication with recklessness, and exhibited an absence of competence and
skills expected from him.
[72]
Petitioners reject the necessity of presenting
expert and/or medical testimony to establish (1) the standard of care
respecting the treatment of the disorder affecting Peters eye; and (2)
whether or not negligence attended Dr. Tuaos treatment of Peter, because,
in their words

That Dr. Tuao was grossly negligent in the
treatment of Peters simple eye ailment is a simple case of
cause and effect. With mere documentary evidence and
based on the facts presented by the petitioners, respondent
can readily be held liable for damages even without any
expert testimony. In any case, however, and contrary to the
finding of the trial court and the Court of Appeals, there was
a medical expert presented by the petitioner showing the
recklessness committed by [Dr. Tuao] Dr. Tuao himself.
[Emphasis supplied.]

They insist that Dr. Tuao himself gave sufficient evidence to
establish his gross negligence that ultimately caused the impairment of the
vision of Peters right eye,
[73]
i.e., that [d]espite [Dr. Tuaos] knowledge that
5% of the population reacts adversely to Maxitrol, [he] had no qualms
whatsoever in prescribing said steroid to Peter without first determining
whether or not the (sic) Peter belongs to the 5%.
[74]


We are not convinced. The judgments of both the Court of Appeals
and the RTC are in accord with the evidence on record, and we are
accordingly bound by the findings of fact made therein.

Petitioners position, in sum, is that Peters glaucoma is the direct
result of Dr. Tuaos negligence in his improper administration of the
drug Maxitrol; thus, [the latter] should be liable for all the damages suffered
and to be suffered by [petitioners].
[75]
Clearly, the present controversy is a
classic illustration of a medical negligence case against a physician based on
the latters professional negligence. In this type of suit, the patient or his
heirs, in order to prevail, is required to prove by preponderance of evidence
that the physician failed to exercise that degree of skill, care, and learning
possessed by other persons in the same profession; and that as a proximate
result of such failure, the patient or his heirs suffered damages.

For lack of a specific law geared towards the type of negligence
committed by members of the medical profession, such claim for damages is
almost always anchored on the alleged violation of Article 2176 of the Civil
Code, which states that:

ART. 2176. Whoever by act or omission causes
damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence,
if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the
provisions of this Chapter.


In medical negligence cases, also called medical malpractice suits,
there exist a physician-patient relationship between the doctor and the
victim. But just like any other proceeding for damages, four essential (4)
elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate
causation,
[76]
must be established by the plaintiff/s. All the four (4) elements
must co-exist in order to find the physician negligent and, thus, liable for
damages.

When a patient engages the services of a physician, a physician-
patient relationship is generated. And in accepting a case, the physician, for
all intents and purposes, represents that he has the needed training and skill
possessed by physicians and surgeons practicing in the same field; and that
he will employ such training, care, and skill in the treatment of the
patient.
[77]
Thus, in treating his patient, a physician is under a duty to [the
former] to exercise that degree of care, skill and diligence which physicians in
the same general neighborhood and in the same general line of practice
ordinarily possess and exercise in like cases.
[78]
Stated otherwise, the
physician has the duty to use at least the same level of care that any other
reasonably competent physician would use to treat the condition under
similar circumstances.

This standard level of care, skill and diligence is a matter best
addressed by expert medical testimony, because the standard of care in a
medical malpractice case is a matter peculiarly within the knowledge of
experts in the field.
[79]


There is breach of duty of care, skill and diligence, or the improper
performance of such duty, by the attending physician when thepatient
is injured in body or in health [and this] constitutes the actionable
malpractice.
[80]
Proof of such breach must likewise rest upon the testimony
of an expert witness that the treatment accorded to the patient failed to meet
the standard level of care, skill and diligence which physicians in the same
general neighborhood and in the same general line of practice ordinarily
possess and exercise in like cases.

Even so, proof of breach of duty on the part of the attending
physician is insufficient, for there must be a causal connection between said
breach and the resulting injury sustained by the patient. Put in another way,
in order that there may be a recovery for an injury, it must be shown that the
injury for which recovery is sought must be the legitimate consequence of
the wrong done; the connection between the negligence and the injury must
be a direct and natural sequence of events, unbroken by intervening efficient
causes;
[81]
that is, the negligence must be the proximate cause of the injury.
And the proximate cause of an injury is that cause, which, in the natural and
continuous sequence, unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have occurred.
[82]


Just as with the elements of duty and breach of the same, in order to
establish the proximate cause [of the injury] by a preponderance of the
evidence in a medical malpractice action, [the patient] must similarly use
expert testimony, because the question of whether the alleged professional
negligence caused [the patients] injury is generally one for specialized expert
knowledge beyond the ken of the average layperson; using the specialized
knowledge and training of his field, the experts role is to present to the
[court] a realistic assessment of the likelihood that [the physicians] alleged
negligence caused [the patients] injury.
[83]


From the foregoing, it is apparent that medical negligence cases are
best proved by opinions of expert witnesses belonging in the same general
neighborhood and in the same general line of practice as defendant physician
or surgeon. The deference of courts to the expert opinion of qualified
physicians [or surgeons] stems from the formers realization that the latter
possess unusual technical skills which laymen in most instances are
incapable of intelligently evaluating;
[84]
hence, the indispensability of expert
testimonies.

In the case at bar, there is no question that a physician-patient
relationship developed between Dr. Tuao and Peter when Peter went to see
the doctor on 2 September 1988, seeking a consult for the treatment of his
sore eyes. Admittedly, Dr. Tuao, an ophthalmologist,
prescribed Maxitrol when Peter developed and had recurrent
EKC. Maxitrol or neomycin/polymyxin B
sulfates/dexamethasone ophthalmicointment is a multiple-dose anti-infective
steroid combination in sterile form for topical application.
[85]
It is the drug
which petitioners claim to have caused Peters glaucoma.

However, as correctly pointed out by the Court of Appeals,
[t]he onus probandi was on the patient to establish before the trial court
that the physicians ignored standard medical procedure, prescribed and
administered medication with recklessness and exhibited an absence of the
competence and skills expected of general practitioners similarly
situated.
[86]
Unfortunately, in this case, there was absolute failure on the
part of petitioners to present any expert testimony to establish: (1) the
standard of care to be implemented by competent physicians in treating the
same condition as Peters under similar circumstances; (2) that, in his
treatment of Peter, Dr. Tuao failed in his duty to exercise said standard of
care that any other competent physician would use in treating the same
condition as Peters under similar circumstances; and (3) that the injury or
damage to Peters right eye, i.e., his glaucoma, was the result of his use
of Maxitrol, as prescribed by Dr. Tuao. Petitioners failure to prove the first
element alone is already fatal to their cause.

Petitioners maintain that Dr. Tuao failed to follow in Peters case
the required procedure for the prolonged use of Maxitrol. But what is
actually the required procedure in situations such as in the case at bar? To be
precise, what is the standard operating procedure when ophthalmologists
prescribe steroid medications which, admittedly, carry some modicum of
risk?

Absent a definitive standard of care or diligence required of Dr.
Tuao under the circumstances, we have no means to determine whether he
was able to comply with the same in his diagnosis and treatment of
Peter. This Court has no yardstick upon which to evaluate or weigh the
attendant facts of this case to be able to state with confidence that the acts
complained of, indeed, constituted negligence and, thus, should be the subject
of pecuniary reparation.

Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao
should have determined first whether Peter was a steroid
responder.
[87]
Yet again, petitioners did not present any convincing proof
that such determination is actually part of the standard operating procedure
which ophthalmologists should unerringly follow prior to prescribing steroid
medications.

In contrast, Dr. Tuao was able to clearly explain that what is only
required of ophthalmologists, in cases such as Peters, is the conduct of
standard tests/procedures known as ocular routine
examination,
[88]
composed of five (5) tests/procedures specifically, gross
examination of the eyes and the surrounding area; taking of the visual acuity
of the patient; checking the intraocular pressure of the patient; checking the
motility of the eyes; and using ophthalmoscopy on the patients eye and he
did all those tests/procedures every time Peter went to see him for follow-up
consultation and/or check-up.

We cannot but agree with Dr. Tuaos assertion that when a doctor
sees a patient, he cannot determine immediately whether the latter would
react adversely to the use of steroids; all the doctor can do is map out a
course of treatment recognized as correct by the standards of the medical
profession. It must be remembered that a physician is not an insurer of the
good result of treatment. The mere fact that the patient does not get well or
that a bad result occurs does not in itself indicate failure to exercise due
care.
[89]
The result is not determinative of the performance [of the physician]
and he is not required to be infallible.
[90]


Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter was
justified by the fact that the latter was already using the same medication
when he first came to see Dr. Tuao on 2 September 1988 and had exhibited
no previous untoward reaction to that particular drug.
[91]


Also, Dr. Tuao categorically denied petitioners claim that he never
monitored the tension of Peters eyes while the latter was onMaxitrol. Dr.
Tuao testified that he palpated Peters eyes every time the latter came for a
check-up as part of the doctors ocular routine examination, a fact which
petitioners failed to rebut. Dr. Tuaos regular conduct of examinations and
tests to ascertain the state of Peters eyes negate the very basis of petitioners
complaint for damages. As to whether Dr. Tuaos actuations conformed to
the standard of care and diligence required in like circumstances, it is
presumed to have so conformed in the absence of evidence to the contrary.

Even if we are to assume that Dr. Tuao committed negligent acts in
his treatment of Peters condition, the causal connection between Dr. Tuaos
supposed negligence and Peters injury still needed to be established. The
critical and clinching factor in a medical negligence case is proof of the causal
connection between the negligence which the evidence established and the
plaintiffs injuries.
[92]
The plaintiff must plead and prove not only that he has
been injured and defendant has been at fault, but also that the defendants
fault caused the injury. A verdict in a malpractice action cannot be based on
speculation or conjecture. Causation must be proven within a reasonable
medical probability based upon competent expert testimony.
[93]


The causation between the physicians negligence and the patients
injury may only be established by the presentation of proof that Peters
glaucoma would not have occurred but for Dr. Tuaos supposed negligent
conduct. Once more, petitioners failed in this regard.

Dr. Tuao does not deny that the use of Maxitrol involves the risk of
increasing a patients IOP. In fact, this was the reason why he made it a point
to palpate Peters eyes every time the latter went to see him -- so he could
monitor the tension of Peters eyes. But to say that said medication
conclusively caused Peters glaucoma is purely speculative. Peter was
diagnosed with open-angle glaucoma. This kind of glaucoma is characterized
by an almost complete absence of symptoms and a chronic, insidious
course.
[94]
In open-angle glaucoma, halos around lights and blurring of vision
do not occur unless there has been a sudden increase in the intraocular
vision.
[95]
Visual acuity remains good until late in the course of the
disease.
[96]
Hence, Dr. Tuao claims that Peters glaucoma can only be long
standing x x x because of the large C:D
[97]
ratio, and that [t]he steroids
provoked the latest glaucoma to be revealed earlier was a blessing in
disguise as [Peter] remained asymptomatic prior to steroid application.

Who between petitioners and Dr. Tuao is in a better position to
determine and evaluate the necessity of using Maxitrol to cure Peters
EKC vis--vis the attendant risks of using the same?

That Dr. Tuao has the necessary training and skill to practice his
chosen field is beyond cavil. Petitioners do not dispute Dr. Tuaos
qualifications that he has been a physician for close to a decade and a half at
the time Peter first came to see him; that he has had various medical training;
that he has authored numerous papers in the field of ophthalmology, here
and abroad; that he is a Diplomate of the Philippine Board of Ophthalmology;
that he occupies various teaching posts (at the time of the filing of the present
complaint, he was the Chair of the Department of Ophthalmology and an
Associate Professor at the University of the Philippines-Philippine General
Hospital and St. Lukes Medical Center, respectively); and that he held an
assortment of positions in numerous medical organizations like the
Philippine Medical Association, Philippine Academy of Ophthalmology,
Philippine Board of Ophthalmology, Philippine Society of Ophthalmic Plastic
and Reconstructive Surgery, Philippine Journal of Ophthalmology,
Association of Philippine Ophthalmology Professors, et al.

It must be remembered that when the qualifications of a physician
are admitted, as in the instant case, there is an inevitable presumption that in
proper cases, he takes the necessary precaution and employs the best of his
knowledge and skill in attending to his clients, unless the contrary is
sufficiently established.
[98]
In making the judgment call of treating Peters
EKC with Maxitrol, Dr. Tuao took the necessary precaution by palpating
Peters eyes to monitor their IOP every time the latter went for a check-up,
and he employed the best of his knowledge and skill earned from years of
training and practice.

In contrast, without supporting expert medical opinions, petitioners
bare assertions of negligence on Dr. Tuaos part, which resulted in Peters
glaucoma, deserve scant credit.

Our disposition of the present controversy might have been vastly
different had petitioners presented a medical expert to establish their theory
respecting Dr. Tuaos so-called negligence. In fact, the record of the case
reveals that petitioners counsel recognized the necessity of presenting such
evidence. Petitioners even gave an undertaking to the RTC judge that Dr.
Agulto or Dr. Aquino would be presented. Alas, no follow-through on said
undertaking was made.

The plaintiff in a civil case has the burden of proof as he alleges the
affirmative of the issue. However, in the course of trial in a civil case, once
plaintiff makes out a prima facie case in his favor, the duty or the burden of
evidence shifts to defendant to controvert plaintiffsprima facie case;
otherwise, a verdict must be returned in favor of plaintiff.
[99]
The party having
the burden of proof must establish his case by a preponderance of
evidence.
[100]
The concept of preponderance of evidence refers to evidence
which is of greater weight or more convincing than that which is offered in
opposition to it;
[101]
in the last analysis, it means probability of truth. It is
evidence which is more convincing to the court as worthy of belief than that
which is offered in opposition thereto.
[102]
Rule 133, Section 1 of the Revised
Rules of Court provides the guidelines for determining preponderance of
evidence, thus:

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

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

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

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

WHEREFORE, premises considered, the instant petition
is DENIED for lack of merit. The assailed Decision dated 27 September
2006and Resolution dated 3 July 2007, both of the Court of Appeals in CA-G.R.
CV No. 68666, are hereby AFFIRMED. No cost.

SO ORDERED.

































































[G.R. No. 165279, June 07, 2011]

DR. RUBI LI, PETITIONER, VS. SPOUSES REYNALDO AND LINA SOLIMAN,
AS PARENTS/HEIRS OF DECEASED ANGELICA SOLIMAN, RESPONDENTS.


Challenged in this petition for review on certiorari is the Decision
[1]
dated
June 15, 2004 as well as the Resolution
[2]
dated September 1, 2004 of the
Court of Appeals (CA) in CA-G.R. CV No. 58013 which modified the
Decision
[3]
dated September 5, 1997 of the Regional Trial Court of Legazpi
City, Branch 8 in Civil Case No. 8904.

The factual antecedents:

On July 7, 1993, respondents' 11-year old daughter, Angelica Soliman,
underwent a biopsy of the mass located in her lower extremity at the St.
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 intervention, Angelica's right leg was amputated by
Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment to
eliminate any remaining cancer cells, and hence minimize the chances of
recurrence and prevent the disease from spreading to other parts of the
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 Death
[6]
issued by SLMC stated the cause
of death as follows:
Immediate cause : a. Osteosarcoma, Status Post AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy

On February 21, 1994, respondents filed a damage suit
[7]
against petitioner,
Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC.
Respondents charged them with negligence and disregard of 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% 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. Petitioner
told respondents that Angelica should be given two to three weeks to recover
from the operation before starting chemotherapy. Respondents were
apprehensive due to financial constraints as Reynaldo earns only from
P70,000.00 to P150,000.00 a year from his jewelry and watch repairing
business.
[9]
Petitioner, however, assured them not to worry about her
professional fee and told them to just save up for the medicines to be used.

Petitioner claimed that she explained to respondents that even when a tumor
is removed, there are still small lesions undetectable to the naked eye, and
that adjuvant chemotherapy is needed to clean out the small lesions in order
to lessen the chance of the cancer to recur. She did not give the respondents
any assurance that chemotherapy will cure 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 when Angelica's mother called her through long
distance.
[10]
This was disputed by respondents who countered that petitioner
gave them assurance that there is 95% chance of healing for Angelica if she
undergoes chemotherapy and that the only side effects were nausea,
vomiting and hair loss.
[11]
Those were the only side-effects of chemotherapy
treatment mentioned by petitioner.
[12]


On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner
that she be readmitted after two or three weeks for the chemotherapy.

On August 18, 1993, respondents brought Angelica to SLMC for
chemotherapy, bringing with them the results of the laboratory tests
requested by petitioner: 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]
Doxorubicin
[16]
and Cosmegen
[17]
-
intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo
Marbella
[18]
and Dr. Grace Arriete.
[19]
In his testimony, Dr. Marbella denied
having any participation in administering the said chemotherapy drugs.
[20]


On the second day of chemotherapy, August 20, respondents noticed reddish
discoloration on 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.
[25]


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 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
Angelica. For two days (August 27 to 28), Angelica continued bleeding, but
petitioner claimed it was lesser in amount and in frequency. Petitioner also
denied that there were gadgets attached to Angelica at that time.
[34]


On August 29, Angelica developed ulcers in her mouth, which petitioner said
were blood clots that should not be removed. Respondents claimed that
Angelica passed about half a liter of blood through her anus at around seven
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 fail.
[41]
Petitioner attributed this to the
patient's poor defense mechanism brought about by the cancer itself.
[42]


While he was seeking the release of Angelica's cadaver from SLMC, Reynaldo
claimed that petitioner acted arrogantly and called him names. He was asked
to sign a promissory note as he did not have cash to pay the hospital bill.
[43]


Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-
Legal Officer of the PNP-Crime Laboratory who conducted the autopsy on
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 nor detected through bone scan. On
cross-examination, Dr. Tamayo stated that of the more than 50 child patients
who had osteogenic sarcoma he had handled, he thought that probably all of
them died within six months from amputation because he did not see them
anymore after follow-up; it is either they died or had seen another doctor.
[46]


In dismissing the complaint, the trial court held that petitioner was not liable
for damages as she observed the best known procedures and employed her
highest skill and knowledge in the administration of chemotherapy drugs on
Angelica but despite all efforts said patient died. It cited the testimony of Dr.
Tamayo who testified that he considered petitioner one of the most proficient
in the treatment of cancer and that the patient in this case was afflicted with a
very aggressive type of cancer necessitating chemotherapy as adjuvant
treatment. Using the standard of negligence laid down in Picart v.
Smith,
[47]
the trial court declared that petitioner has taken the necessary
precaution against the adverse effect of chemotherapy on the patient, adding
that a wrong decision is not by itself negligence. Respondents were ordered
to pay their unpaid hospital bill in the amount of P139,064.43.
[48]


Respondents appealed to the CA which, while concurring with the trial
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.

x x x x

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 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 her professional
competence to attend to the medical needs of Angelica.

Citing numerous trainings, distinctions and achievements in her field and her
current position as co-director for clinical affairs of the Medical Oncology,
Department of Medicine of SLMC, petitioner contends that in the absence of
any clear showing or proof, she cannot be charged with negligence in not
informing the respondents all the side effects of chemotherapy or in the pre-
treatment procedures done on Angelica.

As to the cause of death, petitioner insists that Angelica did not die of platelet
depletion but of sepsis which is a complication of the cancer itself. Sepsis
itself leads to bleeding and death. She explains that the response rate to
chemotherapy of patients with osteosarcoma is high, so much so that survival
rate is favorable to the patient. Petitioner then points to some probable
consequences if Angelica had not undergone chemotherapy. Thus, without
chemotherapy, other medicines and supportive treatment, the patient might
have died the next day because of massive infection, or the cancer cells might
have spread to the brain and brought the patient into a coma, or into the
lungs that the patient could have been hooked to a respirator, or into her
kidneys that she would have to undergo dialysis. Indeed, respondents could
have spent as much because of these complications. The patient would have
been deprived of the chance to survive the ailment, of any hope for life and
her "quality of life" surely compromised. Since she had not been shown to be
at fault, petitioner maintains that the CA erred in holding her liable for the
damages suffered by the respondents.[50]

The issue to be resolved is whether the petitioner can be held liable for
failure to fully disclose serious side effects to the parents of the child patient
who died while undergoing chemotherapy, despite the absence of finding
that petitioner was negligent in administering the said treatment.

The petition is meritorious.

The type of lawsuit which has been called medical malpractice or, more
appropriately, medical negligence, is that type of claim which a victim has
available to him or her to redress a wrong committed by a medical
professional which has caused bodily harm. In order to successfully pursue
such a claim, a patient must prove that a health care provider, in most cases a
physician, either failed to do something which a reasonably prudent health
care provider would have done, or that he or she did something that a
reasonably prudent provider would not have done; and that that failure or
action caused injury to the patient.[51]

This Court has recognized that medical negligence cases are best proved by
opinions of expert witnesses belonging in the same general neighborhood
and in the same general line of practice as defendant physician or surgeon.
The deference of courts to the expert opinion of qualified physicians stems
from the former's realization that the latter possess unusual technical skills
which laymen in most instances are incapable of intelligently evaluating,
hence the indispensability of expert testimonies.[52]

In this case, both the trial and appellate courts concurred in finding that the
alleged negligence of petitioner in the administration of chemotherapy drugs
to respondents' child was not proven considering that Drs. Vergara and
Balmaceda, not being oncologists or cancer specialists, were not qualified to
give expert opinion as to whether petitioner's lack of skill, knowledge and
professional competence in failing to observe the standard of care in her line
of practice was the proximate cause of the 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 bills were
submitted to the court). Nevertheless, the CA found petitioner liable for her
failure to inform the respondents on all possible side effects of chemotherapy
before securing their consent to the said treatment.

The doctrine of informed consent within the context of physician-patient
relationships goes far back into English common law. As early as 1767,
doctors were charged with the tort of "battery" (i.e., an unauthorized physical
contact with a patient) if they had not gained the consent of their patients
prior to performing a surgery or procedure. In the United States, the seminal
case was Schoendorff v. Society of New York Hospital[53] which involved
unwanted treatment performed by a doctor. Justice Benjamin Cardozo's oft-
quoted opinion upheld the basic right of a patient to give consent to any
medical procedure or treatment: "Every human being of adult years and
sound mind has a right to determine what shall be done with his own body;
and a surgeon who performs an operation without his patient's consent,
commits an assault, for which he is liable in damages."[54] From a purely
ethical norm, informed consent evolved into a general principle of law that a
physician has a duty to disclose what a reasonably prudent physician in the
medical community in the exercise of reasonable care would disclose to his
patient as to whatever grave risks of injury might be incurred from a
proposed course of treatment, so that a patient, exercising ordinary care for
his own welfare, and faced with a choice of undergoing the proposed
treatment, or alternative treatment, or none at all, may intelligently exercise
his judgment by reasonably balancing the probable risks against the probable
benefits.[55]

Subsequently, in Canterbury v. Spence[56] the court observed that the duty
to disclose should not be limited to medical usage as to arrogate the decision
on revelation to the physician alone. Thus, respect for the patient's right of
self-determination on particular therapy demands a standard set by law for
physicians rather than one which physicians may or may not impose upon
themselves.[57] The scope of disclosure is premised on the fact that patients
ordinarily are persons unlearned in the medical sciences. Proficiency in
diagnosis and therapy is not the full measure of a physician's
responsibility. It is also his duty to warn of the dangers lurking in the
proposed treatment and to impart information which the patient has every
right to expect. Indeed, the patient's reliance upon the physician is a trust of
the kind which traditionally has exacted obligations beyond those associated
with armslength transactions.[58] The physician is not expected to give the
patient a short medical education, the disclosure rule only requires of him a
reasonable explanation, which means generally informing the patient in
nontechnical terms as to what is at stake; the therapy alternatives open to
him, the goals expectably to be achieved, and the risks that may ensue from
particular treatment or no treatment.[59] As to the issue of demonstrating
what risks are considered material necessitating disclosure, it was held that
experts are unnecessary to a showing of the materiality of a risk to a patient's
decision on treatment, or to the reasonably, expectable effect of risk
disclosure on the decision. Such unrevealed risk that should have been made
known must further materialize, for otherwise the omission, however
unpardonable, is without legal consequence. And, as in malpractice actions
generally, there must be a causal relationship between the physician's failure
to divulge and damage to the patient.[60]

Reiterating the foregoing considerations, Cobbs v. Grant
[61]
deemed it as
integral part of physician's overall obligation to patient, the duty of
reasonable disclosure of available choices with respect to proposed therapy
and of dangers inherently and potentially involved in each. However, the
physician is not obliged to discuss relatively minor risks inherent in common
procedures when it is common knowledge that such risks inherent in
procedure of very low incidence. Cited as exceptions to the rule that the
patient should not be denied the opportunity to weigh the risks of surgery or
treatment are emergency cases where it is evident he cannot evaluate data,
and where the patient is a child or incompetent.
[62]
The court thus concluded
that the patient's right of self-decision can only be effectively exercised if the
patient possesses adequate information to enable him in making an
intelligent choice. The scope of the physician's communications to the
patient, then must be measured by the patient's need, and that need is
whatever information is material to the decision. The test therefore for
determining whether a potential peril must be divulged is its materiality to
the patient's decision.
[63]


Cobbs v. Grant further reiterated the pronouncement in Canterbury v.
Spence that for liability of the physician for failure to inform patient, there
must be causal relationship between physician's failure to inform and the
injury to patient and such connection arises only if it is established that, had
revelation been made, consent to treatment would not have been given.

There are four essential elements a plaintiff must prove in a malpractice
action based upon the doctrine of informed consent: "(1) the physician had a
duty to disclose material risks; (2) he failed to disclose or inadequately
disclosed those risks; (3) as a direct and proximate result of the failure to
disclose, the patient consented to treatment she otherwise would not have
consented to; and (4) plaintiff was injured by the proposed treatment." The
gravamen in an informed consent case requires the plaintiff to "point to
significant undisclosed information relating to the treatment which would
have altered her decision to undergo it.
[64]


Examining the evidence on record, we hold that there was adequate
disclosure of material risks inherent in the chemotherapy procedure
performed with the consent of Angelica's parents. Respondents could not
have been unaware in the course of initial treatment and amputation of
Angelica's lower extremity, that her immune system was already weak on
account of the malignant tumor in her knee. When petitioner informed the
respondents beforehand of the side effects of chemotherapy which includes
lowered counts of white and red blood cells, decrease in blood platelets,
possible kidney or heart damage and skin darkening, there is reasonable
expectation on the part of the doctor that the respondents understood very
well that the severity of these side effects will not be the same for all patients
undergoing the procedure. In other words, by the nature of the disease itself,
each patient's reaction to the chemical agents even with pre-treatment
laboratory tests cannot be precisely determined by the physician. That
death can possibly result from complications of the treatment or the
underlying cancer itself, immediately or sometime after the administration of
chemotherapy drugs, is a risk that cannot be ruled out, as with most other
major medical procedures, but such conclusion can be reasonably drawn
from the general side effects of chemotherapy already disclosed.

As a physician, petitioner can reasonably expect the respondents to have
considered the variables in the recommended treatment for their daughter
afflicted with a life-threatening illness. On the other hand, it is difficult to
give credence to respondents' claim that petitioner told them of 95% chance
of recovery for their daughter, as it was unlikely for doctors like petitioner
who were dealing with grave conditions such as cancer to have falsely
assured patients of chemotherapy's success rate. Besides, informed consent
laws in other countries generally require only a reasonable explanation of
potential harms, so specific disclosures such as statistical data, may not be
legally necessary.
[65]


The element of ethical duty to disclose material risks in the proposed medical
treatment cannot thus be reduced to one simplistic formula applicable in all
instances. Further, in a medical malpractice action based on lack of informed
consent, "the plaintiff must prove both the duty and the breach of that duty
through expert testimony.
[66]
Such expert testimony must show the
customary standard of care of physicians in the same practice as that of the
defendant doctor.
[67]


In this case, the testimony of Dr. Balmaceda who is not an oncologist but a
Medical Specialist of the 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 the
legal standard of disclosure is not subject to construction as a
categorical imperative. Whatever formulae or processes we adopt are only
useful as a foundational starting point; the particular quality or quantity of
disclosure will remain inextricably bound by the facts of each
case. Nevertheless, juries that ultimately determine whether a physician
properly informed a patient are inevitably guided by what they perceive as
the common expectation of the medical 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.




DR. EMMANUEL JARCIA, JR.and DR. MARILOU
BASTAN,
Petitioners,




- versus -





PEOPLE OF THEPHILIPPINES,
Respondent.
G.R. No. 187926

Present:

CARPIO,
*
J.,
PERALTA,
**
Acting Chairperson,
ABAD,
PEREZ,
***
and
MENDOZA, JJ.


Promulgated:

February 15, 2012

x --------------------------------------------------------------------------------------- x

D E C I S I O N

MENDOZA, J.:


Even early on, patients have consigned their lives to
the skill of their doctors. Time and again, it can be said that
the most important goal of the medical profession is the
preservation of life and health of the people. Corollarily, when
a physician departs from his sacred duty and endangers
instead the life of his patient, he must be made liable for the
resulting injury. This Court, as this case would show, cannot
and will not let the act go unpunished.
[1]


This is a petition for review under Rule 45 of the Rules of Court
challenging the August 29, 2008 Decision
[2]
of the Court of Appeals(CA), and
its May 19, 2009 Resolution
[3]
in CA-G.R. CR No. 29559, dismissing the appeal
and affirming in toto the June 14, 2005 Decision
[4]
of the Regional Trial Court,
Branch 43, Manila (RTC), finding the accused guilty beyond reasonable doubt
of simple imprudence resulting to serious physical injuries.


THE FACTS


Belinda Santiago (Mrs. Santiago) lodged a complaint with the
National Bureau of Investigation (NBI) against the petitioners, Dr. Emmanuel
Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr. Bastan), for their alleged
neglect of professional duty which caused her son, Roy Alfonso Santiago (Roy
Jr.), to suffer serious physical injuries. Upon investigation, the NBI found that
Roy Jr. was hit by a taxicab; that he was rushed to the Manila Doctors
Hospital for an emergency medical treatment; that an X-ray of the victims
ankle was ordered; that the X-ray result showed no fracture as read by Dr.
Jarcia; that Dr. Bastan entered the emergency room (ER) and, after
conducting her own examination of the victim, informed Mrs. Santiago that
since it was only the ankle that was hit, there was no need to examine the
upper leg; that eleven (11) days later, Roy Jr. developed fever, swelling of the
right leg and misalignment of the right foot; that Mrs. Santiago brought him
back to the hospital; and that the X-ray revealed a right mid-tibial fracture
and a linear hairline fracture in the shaft of the bone.

The NBI indorsed the matter to the Office of the City Prosecutor of
Manila for preliminary investigation. Probable cause was found and a
criminal case for reckless imprudence resulting to serious physical injuries,
was filed against Dr. Jarcia, Dr. Bastan and Dr. Pamittan,
[5]
before the RTC,
docketed as Criminal Case No. 01-196646.

On June 14, 2005, the RTC found the petitioners guilty beyond
reasonable doubt of the crime of Simple Imprudence Resulting to Serious
Physical Injuries. The decretal portion of the RTC decision reads:

WHEREFORE, premises considered, the Court finds
accused DR. EMMANUEL JARCIA, JR. and DR. MARILOU
BASTANGUILTY beyond reasonable doubt of the crime of
SIMPLE IMPRUDENCE RESULTING TO SERIOUS PHYSICAL
INJURIES and are hereby sentenced to suffer the penalty
of ONE (1) MONTH and ONE (1) DAY to TWO (2)
MONTHS and to indemnify MRS. BELINDA SANTIAGO the
amount of 3,850.00 representing medical expenses without
subsidiary imprisonment in case of insolvency and to pay
the costs.

It appearing that Dr. Pamittan has not been
apprehended nor voluntarily surrendered despite warrant
issued for her arrest, let warrant be issued for her arrest and
the case against her be ARCHIVED, to be reinstated upon her
apprehension.

SO ORDERED.
[6]


The RTC explained:

After a thorough and in depth evaluation of the
evidence adduced by the prosecution and the defense, this
court finds that the evidence of the prosecution is the more
credible, concrete and sufficient to create that moral
certainty in the mind of the Court that accused herein [are]
criminally responsible. The Court believes that accused are
negligent when both failed to exercise the necessary and
reasonable prudence in ascertaining the extent of injury of
Alfonso Santiago, Jr.


However, the negligence exhibited by the two doctors
does not approximate negligence of a reckless nature but
merely amounts to simple imprudence. Simple imprudence
consists in the lack of precaution displayed in those cases in
which the damage impending to be caused is not the
immediate nor the danger clearly manifest. The elements of
simple imprudence are as follows.

1. that there is lack of precaution on the
part of the offender; and

2. that the damage impending to be
caused is not immediate of the danger
is not clearly manifest.

Considering all the evidence on record, The Court
finds the accused guilty for simple imprudence resulting to
physical injuries. Under Article 365 of the Revised Penal
Code, the penalty provided for is arresto mayor in its
minimum period.
[7]



Dissatisfied, the petitioners appealed to the CA.

As earlier stated, the CA affirmed the RTC decision in toto.
The August 29, 2008 Decision of the CA pertinently reads:

This Court holds concurrently and finds the
foregoing circumstances sufficient to sustain a judgment of
conviction against the accused-appellants for the crime of
simple imprudence resulting in serious physical
injuries. The elements of imprudence are: (1) that the
offender does or fails to do an act; (2) that the doing or the
failure to do that act is voluntary; (3) that it be without
malice; (4) that material damage results from the
imprudence; and (5) that there is inexcusable lack of
precaution on the part of the offender, taking into
consideration his employment or occupation, degree of
intelligence, physical condition, and other circumstances
regarding persons, time and place.

Whether or not Dr. Jarcia and Dr. Bastan had
committed an inexcusable lack of precaution in the
treatment of their patient is to be determined according to
the standard of care observed by other members of the
profession in good standing under similar circumstances,
bearing in mind the advanced state of the profession at the
time of treatment or the present state of medical science. In
the case of Leonila Garcia-Rueda v. Pascasio, the Supreme
Court stated that, in accepting a case, a doctor in effect
represents that, having the needed training and skill
possessed by physicians and surgeons practicing in the same
field, he will employ such training, care and skill in the
treatment of his patients. He therefore has a duty to use at
least the same level of care that any other reasonably
competent doctor would use to treat a condition under the
same circumstances.

In litigations involving medical negligence, the
plaintiff has the burden of establishing accused-appellants
negligence, and for a reasonable conclusion of negligence,
there must be proof of breach of duty on the part of the
physician as well as a causal connection of such breach and
the resulting injury of his patient. The connection between
the negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient
causes. In other words, the negligence must be the
proximate cause of the injury. Negligence, no matter in what
it consists, cannot create a right of action unless it is the
proximate cause of the injury complained of. The proximate
cause of an injury is that cause which, in natural and
continuous sequence, unbroken by any efficient intervening
cause, produces the injury and without which the result
would not have occurred.

In the case at bench, the accused-appellants
questioned the imputation against them and argued that
there is no causal connection between their failure to
diagnose the fracture and the injury sustained by Roy.

We are not convinced.

The prosecution is however after the cause which
prolonged the pain and suffering of Roy and not on the
failure of the accused-appellants to correctly diagnose the
extent of the injury sustained by Roy.

For a more logical presentation of the discussion, we
shall first consider the applicability of the doctrine of res
ipsa loquitur to the instant case. Res ipsa loquitur is a Latin
phrase which literally means the thing or the transaction
speaks for itself. The doctrine of res ipsa loquitur is simply a
recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types
of occurrences may justify an inference of negligence on the
part of the person who controls the instrumentality causing
the injury in the absence of some explanation by the
accused-appellant who is charged with negligence. It is
grounded in the superior logic of ordinary human
experience and, on the basis of such experience or common
knowledge, negligence may be deduced from the mere
occurrence of the accident itself. Hence, res ipsa loquitur is
applied in conjunction with the doctrine of common
knowledge.

The specific acts of negligence was narrated by Mrs.
Santiago who accompanied her son during the latters
ordeal at the hospital. She testified as follows:

Fiscal Formoso:

Q: Now, he is an intern did you not
consult the doctors, Dr. Jarcia or
Dra. Pamittan to confirm whether
you should go home or not?
A: Dra. Pamittan was inside the cubicle
of the nurses and I asked her, you
let us go home and you dont even
clean the wounds of my son.

Q: And what did she [tell] you?
A: They told me they will call a resident
doctor, sir.

x x x x x x x x x

Q: Was there a resident doctor [who]
came?
A: Yes, Sir. Dra. Bastan arrived.
Q: Did you tell her what you want on
you to be done?
A: Yes, sir.

Q: What did you [tell] her?
A: I told her, sir, while she was cleaning
the wounds of my son, are you not
going to x-ray up to the knee
because my son was complaining
pain from his ankle up to the
middle part of the right leg.

Q: And what did she tell you?
A: According to Dra. Bastan, there is no
need to x-ray because it was the
ankle part that was run over.

Q: What did you do or tell her?
A: I told her, sir, why is it that they did
not examine[x] the whole
leg. They just lifted the pants of my
son.

Q: So you mean to say there was no
treatment made at all?
A: None, sir.

x x x x x x x x x

A: I just listened to them, sir. And I just
asked if I will still return my son.

x x x x x x x x x

Q: And you were present when they
were called?
A: Yes, sir.

Q: And what was discussed then by
Sis. Retoria?
A: When they were there they admitted
that they have mistakes, sir.

Still, before resort to the doctrine may be allowed, the
following requisites must be satisfactorily shown:

1. The accident is of a kind which
ordinarily does not occur in the
absence of someones negligence;

2. It is caused by an instrumentality
within the exclusive control of the
defendant or defendants; and

3. The possibility of contributing conduct
which would make the plaintiff
responsible is eliminated.

In the above requisites, the fundamental element is
the control of the instrumentality which caused the
damage. Such element of control must be shown to be
within the dominion of the accused-appellants. In order to
have the benefit of the rule, a plaintiff, in addition to proving
injury or damage, must show a situation where it is
applicable and must establish that the essential elements of
the doctrine were present in a particular incident. The early
treatment of the leg of Roy would have lessen his suffering if
not entirely relieve him from the fracture. A boy of tender
age whose leg was hit by a vehicle would engender a well-
founded belief that his condition may worsen without
proper medical attention. As junior residents who only
practice general surgery and without specialization with the
case consulted before them, they should have referred the
matter to a specialist. This omission alone constitutes
simple imprudence on their part. When Mrs. Santiago
insisted on having another x-ray of her child on the upper
part of his leg, they refused to do so. The mother would not
have asked them if they had no exclusive control or
prerogative to request an x-ray test. Such is a fact because a
radiologist would only conduct the x-ray test upon request
of a physician.

The testimony of Mrs. Santiago was corroborated by a
bone specialist Dr. Tacata. He further testified based on his
personal knowledge, and not as an expert, as he examined
himself the child Roy. He testified as follows:

Fiscal Macapagal:

Q: And was that the correct respon[se]
to the medical problem that was
presented to Dr. Jarcia and Dra.
Bastan?
A: I would say at that stage, yes.
Because they have presented the
patient and the history. At sabi
nila, nadaanan lang po ito. And
then, considering their year of
residency they are still junior
residents, and they are not also
orthopedic residents but general
surgery residents, its entirely
different thing. Because if you are
an orthopedic resident, I am not
trying to saybut if I were an
orthopedic resident, there would
be more precise and accurate
decision compare to a general
surgery resident in so far as
involved.

Q: You mean to say there is no
supervisor attending the
emergency room?
A: At the emergency room, at the Manila
Doctors Hospital, the supervisor
there is a consultant that usually
comes from a family medicine.
They see where a certain patient
have to go and then if they cannot
manage it, they refer it to the
consultant on duty. Now at that
time, I dont [know] why they
dont.Because at that time, I
think, it is the decision. Since the
x-rays.


Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient
has been treated or operated upon with a reasonable degree
of skill and care. However, testimony as to the statements
and acts of physicians, external appearances, and manifest
conditions which are observable by any one may be given by
non-expert witnesses. Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the court
from its fund of common knowledge can determine the
proper standard of care. Where common knowledge and
experience teach that a resulting injury would not have
occurred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not
only what occurred but how and why it occurred. In the
case at bench, we give credence to the testimony of Mrs.
Santiago by applying the doctrine of res ipsa loquitur.

Res ipsa loquitur is not a rigid or ordinary doctrine to
be perfunctorily used but a rule to be cautiously applied,
depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases where
a layman is able to say, as a matter of common knowledge
and observation, that the consequences of professional care
were not as such as would ordinarily have followed if due
care had been exercised. A distinction must be made
between the failure to secure results and the occurrence of
something more unusual and not ordinarily found if the
service or treatment rendered followed the usual procedure
of those skilled in that particular practice. The latter
circumstance is the primordial issue that confronted this
Court and we find application of the doctrine of res ipsa
loquitur to be in order.

WHEREFORE, in view of the foregoing, the appeal in
this case is hereby DISMISSED and the assailed decision of
the trial court finding accused-appellants guilty beyond
reasonable doubt of simple imprudence resulting in serious
physical injuries is herebyAFFIRMED in toto.

SO ORDERED.
[8]



The petitioners filed a motion for reconsideration, but it was
denied by the CA in its May 19, 2009 Resolution.

Hence, this petition.

The petitioners pray for the reversal of the decision of both the
RTC and the CA anchored on the following
GROUNDS-

1. IN AFFIRMING ACCUSED-PETITIONERS
CONVICTION, THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, AND
PROXIMATE CAUSE OF THE PHYSICAL INJURY OF THE
PATIENT (FRACTURE OF THE LEG BONE OR TIBIA),
WHICH REQUIRED MEDICAL ATTENDANCE FOR MORE
THAN THIRTY (30) DAYS AND INCAPACITATED HIM
FROM PERFORMING HIS CUSTOMARY DUTY DURING
THE SAME PERIOD OF TIME, WAS THE VEHICULAR
ACCIDENT WHERE THE PATIENTS RIGHT LEG WAS HIT
BY A TAXI, NOT THE FAILURE OF THE ACCUSED-
PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG
TO AN X-RAY EXAMINATION.

2. THE COURT OF APPEALS ERRED IN
DISREGARDING ESTABLISHED FACTS CLEARLY
NEGATING PETITIONERS ALLEGED NEGLIGENCE OR
IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS
UNJUSTIFIABLY DISREGARDED THE OPINION OF THE
PROSECUTIONS EXPERT WITNESS, DR. CIRILO TACATA,
THAT PETITIONERS WERE NOT GUILTY OF NEGLIGENCE
OR IMPRUDENCE COMPLAINED OF.

3. THE COURT OF APPEALS ERRED IN
HOLDING THAT THE FAILURE OF PETITIONERS TO
SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY
EXAMINATION PROLONGED THE PAIN AND SUFFERING
OF THE PATIENT, SUCH CONCLUSION BEING
UNSUPPORTED BY, AND EVEN CONTRARY TO, THE
EVIDENCE ON RECORD.

4. ASSUMING ARGUENDO THAT THE
PATIENT EXPERIENCED PROLONGED PAIN AND
SUFFERING, THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT THE ALLEGED PAIN AND SUFFERING
WERE DUE TO THE UNJUSTIFIED FAILURE OF THE
PATIENTS MOTHER, A NURSE HERSELF, TO
IMMEDIATELY BRING THE PATIENT BACK TO THE
HOSPITAL, AS ADVISED BY THE PETITIONERS, AFTER HE
COMPLAINED OF SEVERE PAIN IN HIS RIGHT LEG WHEN
HE REACHED HOME AFTER HE WAS SEEN BY
PETITIONERS AT THE HOSPITAL. THUS, THE PATIENTS
ALLEGED INJURY (PROLONGED PAIN AND SUFFERING)
WAS DUE TO HIS OWN MOTHERS ACT OR OMISSION.

5. THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT NO PHYSICIAN-PATIENT RELATIONSHIP
EXISTED BETWEEN PETITIONERS AND PATIENT
ALFONSO SANTIAGO, JR., PETITIONERS NOT BEING THE
LATTERS ATTENDING PHYSICIAN AS THEY WERE
MERELY REQUESTED BY THE EMERGENCY ROOM (ER)
NURSE TO SEE THE PATIENT WHILE THEY WERE
PASSING BY THE ER FOR THEIR LUNCH.

6. THE COURT OF APPEALS GRAVELY ERRED
IN NOT ACQUITTING ACCUSED-PETITIONERS OF THE
CRIME CHARGED.
[9]



The foregoing can be synthesized into two basic issues: [1]
whether or not the doctrine of res ipsa loquitur is applicable in this case;
and [2] whether or not the petitioners are liable for criminal negligence.

THE COURTS RULING

The CA is correct in finding that there was negligence on the part of
the petitioners. After a perusal of the records, however, the Court is not
convinced that the petitioners are guilty of criminal negligence complained
of. The Court is also of the view that the CA erred in applying the doctrine
of res ipsa loquitur in this particular case.

As to the Application of
The Doctrine of Res Ipsa Loquitur

This doctrine of res ipsa loquitur means "Where the thing which
causes injury is shown to be under the management of the defendant, and the
accident is such as in the ordinary course of things does not happen if those
who have the management use proper care, it affords reasonable evidence, in
the absence of an explanation by the defendant, that the accident arose from
want of care." The Black's Law Dictionary defines the said doctrine. Thus:

The thing speaks for itself. Rebuttable presumption
or inference that defendant was negligent, which arises
upon proof that the instrumentality causing injury was in
defendant's exclusive control, and that the accident was one
which ordinarily does not happen in absence of
negligence. Res ipsa loquitur is a rule of evidence whereby
negligence of the alleged wrongdoer may be inferred from
the mere fact that the accident happened provided the
character of the accident and circumstances attending it lead
reasonably to belief that in the absence of negligence it
would not have occurred and that thing which caused injury
is shown to have been under the management and control of
the alleged wrongdoer. Under this doctrine, the happening
of an injury permits an inference of negligence where
plaintiff produces substantial evidence that the injury was
caused by an agency or instrumentality under the exclusive
control and management of defendant, and that the
occurrence was such that in the ordinary course of things
would not happen if reasonable care had been used.
[10]



The doctrine of res ipsa loquitur as a rule of evidence is unusual to
the law of negligence which recognizes that prima facie negligencemay be
established without direct proof and furnishes a substitute for specific proof
of negligence. The doctrine, however, is not a rule of substantive law, but
merely a mode of proof or a mere procedural convenience. The rule, when
applicable to the facts and circumstances of a given case, is not meant to and
does not dispense with the requirement of proof of culpable negligence on
the party charged. It merely determines and regulates what shall
be prima facie evidence thereof and helps the plaintiff in proving a breach of
the duty. The doctrine can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not readily available.
[11]


The requisites for the application of the doctrine of res ipsa
loquitur are: (1) the accident was of a kind which does not ordinarily occur
unless someone is negligent; (2) the instrumentality or agency which caused
the injury was under the exclusive control of the person in charge;
and (3) the injury suffered must not have been due to any voluntary action or
contribution of the person injured.
[12]


In this case, the circumstances that caused patient Roy Jr.s injury
and the series of tests that were supposed to be undergone by him to
determine the extent of the injury suffered were not under the exclusive
control of Drs. Jarcia and Bastan. It was established that they are mere
residents of the Manila Doctors Hospital at that time who attended to the
victim at the emergency room.
[13]
While it may be true that the circumstances
pointed out by the courts below seem doubtless to constitute reckless
imprudence on the part of the petitioners, this conclusion is still best
achieved, not through the scholarly assumptions of a layman like the patients
mother, but by the unquestionable knowledge of expert witness/es. As to
whether the petitioners have exercised the requisite degree of skill and care
in treating patient Roy, Jr. is generally a matter of expert opinion.

As to Dr. Jarcia and
Dr. Bastans negligence

The totality of the evidence on record clearly points to the negligence
of the petitioners. At the risk of being repetitious, the Court, however, is not
satisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this case.

Negligence is defined as the failure to observe for the protection of
the interests of another person that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby such other person suffers
injury.
[14]


Reckless imprudence consists of voluntarily doing or failing to do,
without malice, an act from which material damage results by reason of
an inexcusable lack of precaution on the part of the person performing or
failing to perform such act.
[15]


The elements of simple negligence are: (1) that there is lack of
precaution on the part of the offender, and (2) that the damage impending to
be caused is not immediate or the danger is not clearly manifest.
[16]


In this case, the Court is not convinced with moral certainty that the
petitioners are guilty of reckless imprudence or simple negligence. The
elements thereof were not proved by the prosecution beyond reasonable
doubt.

The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in
pediatric orthopedic, although pointing to some medical procedures that
could have been done by Dr. Jarcia and Dr. Bastan, as physicians on duty, was
not clear as to whether the injuries suffered by patient Roy Jr. were indeed
aggravated by the petitioners judgment call and their diagnosis or
appreciation of the condition of the victim at the time they assessed him.
Thus:

Q: Will you please tell us, for the record, doctor, what is
your specialization?
A: At present I am the chairman department of orthopedic
in UP-PGH and I had special training in pediatric
orthopedic for two (2) years.

Q: In June 1998, doctor, what was your position and what
was your specialization at that time?
A: Since 1980, I have been specialist in pediatric
orthopedic.

Q: When Alfonso Santiago, Jr. was brought to you by his
mother, what did you do by way of physicians as first
step?
A: As usual, I examined the patient physically and, at that
time as I have said, the patient could not walk so I
[began] to suspect that probably he sustained a
fracture as a result of a vehicular accident. So I
examined the patient at that time, the involved leg, I
dont know if that is left or right, the involved leg then
was swollen and the patient could not walk, so I
requested for the x-ray of [the] lower leg.

Q: What part of the leg, doctor, did you request to be
examined?
A: If we refer for an x-ray, usually, we suspect a
fracture whether in approximal, middle or lebistal
tinial, we usually x-ray the entire extremity.

Q: And what was the result?
A: Well, I can say that it was a spiral fracture of the mid-
tibial, it is the bigger bone of the leg.

Q: And when you say spiral, doctor, how long was this
fracture?
A: When we say spiral, it is a sort of letter S, the length was
about six (6) to eight (8) centimeters.

Q: Mid-tibial, will you please point to us, doctor, where the
tibial is?
(Witness pointing to his lower leg)
A: The tibial is here, there are two bones here, the bigger
one is the tibial and the smaller one is the fibula. The
bigger one is the one that get fractured.

Q: And in the course of your examination of Alfonso
Santiago, Jr. did you ask for the history of such injury?
A: Yes, actually, that was a routine part of our examination
that once a patient comes in, before we actually
examine the patient, we request for a detailed history.
If it is an accident, then, we request for the exact
mechanism of injuries.

Q: And as far as you can recall, Doctor, what was the
history of that injury that was told to you?
A: The patient was sideswiped, I dont know if it is a car,
but it is a vehicular accident.

Q: Who did you interview?
A: The mother.

Q: How about the child himself, Alfonso Santiago, Jr.?
A: Normally, we do not interview the child because,
usually, at his age, the answers are not accurate. So, it
was the mother that I interviewed.

Q: And were you informed also of his early medication
that was administered on Alfonso Santiago, Jr.?
A: No, not actually medication. I was informed that this
patient was seen initially at the emergency room by
the two (2) physicians that you just mentioned, Dr.
Jarcia and Dra. Bastan, that time who happened to be
my residents who were [on] duty at the emergency
room.

x x x x

A: At the emergency room, at the Manila Doctors Hospital,
the supervisor there is a consultant that usually
comes from a family medicine. They see where a
certain patient have to go and then if they cannot
manage it, they refer it to the consultant on duty. Now
at that time, I dont why they dont Because at that
time, I think, it is the decision. Since the x-rays

x x x

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.

x x x x

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.

x x x x

Q: Doctor, if you know that the patient sustained a
fracture on the ankle and on the foot and the
history that was told to you is the region that was
hit is the region of the foot, will the doctor subject
the entire leg for x-ray?
A: I am an orthopedic surgeon, you have to subject an
x-ray of the leg. Because you have to consider the
kind of fracture that the patient sustained would
you say the exact mechanism of injury. For
example spiral, paikot yung bale nya, so it was
possible that the leg was run over, the patient fell,
and it got twisted. Thats why the leg seems to be
fractured.
[17]
[Emphases supplied]

It can be gleaned from the testimony of Dr. Tacata that a thorough
examination was not performed on Roy Jr. As residents on duty at the
emergency room, Dr. Jarcia and Dr. Bastan were expected to know the
medical protocol in treating leg fractures and in attending to victims of car
accidents. There was, however, no precise evidence and scientific explanation
pointing to the fact that the delay in the application of the cast to the patients
fractured leg because of failure to immediately diagnose the specific injury of
the patient, prolonged the pain of the child or aggravated his condition or
even caused further complications. Any person may opine that had patient
Roy Jr. been treated properly and given the extensive X-ray examination, the
extent and severity of the injury, spiral fracture of the mid-tibial part or the
bigger bone of the leg, could have been detected early on and the prolonged
pain and suffering of Roy Jr. could have been prevented. But still, that
opinion, even how logical it may seem would not, and could not, be enough
basis to hold one criminally liable; thus, a reasonable doubt as to the
petitioners guilt.

Although the Court sympathizes with the plight of the mother and
the child in this case, the Court is bound by the dictates of justice which hold
inviolable the right of the accused to be presumed innocent until proven
guilty beyond reasonable doubt. The Court, nevertheless, finds the
petitioners civilly liable for their failure to sufficiently attend to Roy Jr.s
medical needs when the latter was rushed to the ER, for while a criminal
conviction requires proof beyond reasonable doubt, only a preponderance of
evidence is required to establish civil liability. Taken into account also was
the fact that there was no bad faith on their part.

Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver
who hit the victim. It may be true that the actual, direct, immediate, and
proximate cause of the injury (fracture of the leg bone or tibia) of Roy Jr. was
the vehicular accident when he was hit by a taxi. The petitioners, however,
cannot simply invoke such fact alone to excuse themselves from any liability.
If this would be so, doctors would have a ready defense should they fail to do
their job in attending to victims of hit-and-run, maltreatment, and other
crimes of violence in which the actual, direct, immediate, and proximate
cause of the injury is indubitably the act of the perpetrator/s.

In failing to perform an extensive medical examination to determine
the extent of Roy Jr.s injuries, Dr. Jarcia and Dr. Bastan were remiss of their
duties as members of the medical profession. Assuming for the sake of
argument that they did not have the capacity to make such thorough
evaluation at that stage, they should have referred the patient to another
doctor with sufficient training and experience instead of assuring him and his
mother that everything was all right.

This Court cannot also stamp its imprimatur on the petitioners
contention that no physician-patient relationship existed between them and
patient Roy Jr., since they were not his attending physicians at that time. They
claim that they were merely requested by the ER nurse to see the patient
while they were passing by the ER for their lunch. Firstly, this issue was never
raised during the trial at the RTC or even before the CA. The petitioners,
therefore, raise the want of doctor-patient relationship for the first time on
appeal with this Court. It has been settled that issues raised for the first time
on appeal cannot be considered because a party is not permitted to change
his theory on appeal. To allow him to do so is unfair to the other party and
offensive to the rules of fair play, justice and due process.
[18]
Stated
differently, basic considerations of due process dictate that theories, issues
and arguments not brought to the attention of the trial court need not be, and
ordinarily will not be, considered by a reviewing court.
[19]


Assuming again for the sake of argument that the petitioners may
still raise this issue of no physicianpatient relationship, the Court finds and
so holds that there was a physicianpatient relationship in this case.

In the case of Lucas v. Tuao,
[20]
the Court wrote that [w]hen a
patient engages the services of a physician, a physician-patient relationship is
generated. And in accepting a case, the physician, for all intents and purposes,
represents that he has the needed training and skill possessed by physicians
and surgeons practicing in the same field; and that he will employ such
training, care, and skill in the treatment of the patient. Thus, in treating his
patient, a physician is under a duty to exercise that degree of care, skill and
diligence which physicians in the same general neighborhood and in the same
general line of practice ordinarily possess and exercise in like cases. Stated
otherwise, the physician has the obligation to use at least the same level of
care that any other reasonably competent physician would use to treat the
condition under similar circumstances.

Indubitably, a physician-patient relationship exists between the
petitioners and patient Roy Jr. Notably, the latter and his mother went to the
ER for an immediate medical attention. The petitioners allegedly passed by
and were requested to attend to the victim (contrary to the testimony of Dr.
Tacata that they were, at that time, residents on duty at the ER).
[21]
They
obliged and examined the victim, and later assured the mother that
everything was fine and that they could go home. Clearly, a physician-patient
relationship was established between the petitioners and the patient Roy Jr.

To repeat for clarity and emphasis, if these doctors knew from the
start that they were not in the position to attend to Roy Jr., a vehicular
accident victim, with the degree of diligence and commitment expected of
every doctor in a case like this, they should have not made a baseless
assurance that everything was all right. By doing so, they deprived Roy Jr. of
adequate medical attention that placed him in a more dangerous situation
than he was already in. What petitioners should have done, and could have
done, was to refer Roy Jr. to another doctor who could competently and
thoroughly examine his injuries.

All told, the petitioners were, indeed, negligent but only civilly, and
not criminally, liable as the facts show.

Article II, Section 1 of the Code of Medical Ethics of the Medical
Profession in the Philippines states:

A physician should attend to his patients faithfully
and conscientiously. He should secure for them all possible
benefits that may depend upon his professional skill and
care. As the sole tribunal to adjudge the physicians failure to
fulfill his obligation to 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. 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. 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. 158461, August 22, 2012]

DR. EDUARDO AQUINO, PETITIONER, VS. HEIRS OF RAYMUNDA
CALAYAG, NAMELY: RODRIGO, WILMA, WILLIE, WILLIAM, WILSON,
WENDY, WHITNEY AND WARREN, ALL SURNAMED CALAYAG,
REPRESENTED BY RODRIGO CALAYAG, RESPONDENTS.

These cases involve the liability of the surgeon, the anesthesiologist, and the
hospital owner arising from a botched caesarean section that resulted in the
patient going into a coma.
The Facts and the Case

When his wife Raymunda went into labor pains and began bleeding on
November 13, 1990, respondent Rodrigo Calayag (Rodrigo)
[1]
brought her to
St. Michael's Clinic of petitioner Dr. Divinia Unite (Dr. Unite) at Malolos,
Bulacan. After initial examination, the doctor told Rodrigo that Raymunda
had to have a caesarean section for her baby but this had to be done at the
better-equipped Sacred Heart Hospital (SHH), owned and operated by
petitioner Dr. Alberto Reyes (Dr. Reyes).

SHH admitted Raymunda at 2:16 p.m. of the same day.
[2]
To prepare her, the
attending anesthesiologist, petitioner Dr. Eduardo Aquino (Dr. Aquino),
injected her at about 2:30 p.m. with a preliminary "Hipnotic."
[3]
At 2:48 p.m.,
he administered an anesthesia on her spine.
[4]
A few minutes later, at 2:53
p.m.,
[5]
Dr. Unite delivered a stillborn eight-month-old baby.
[6]


A few minutes later or at around 3:00 p.m., the operating team
[7]
noticed that
Raymunda had become cyanotic.
[8]
Her blood darkened for lack of oxygen
and, all of a sudden, her vital signs were gone.
[9]
The team worked on her for
about 5 to 7 minutes until these were restored.
[10]


Rodrigo claimed that when he saw Raymunda after the operation, her skin
appeared dark ("nangingitim ang katawan") and the white of her eyes
showed ("nakatirik ang mata"). When he asked Dr. Unite why his wife did not
look well, she replied that this was merely the effect of the anesthesia and
that she would regain consciousness in about eight hours.

When Raymunda's condition did not improve after a day, Dr. Unite referred
her to Dr. Farinas, an internist, who found that she suffered a cardiac arrest
during the operation, which explained her comatose state. Dr. Farinas
referred Raymunda to a neurologist who advised Rodrigo to move her to a
better-equipped hospital.
[11]
SHH discharged her on November 16, 1990, four
days after her admission.

Raymunda was directly moved to Medical Center Manila (MCM) where Dr.
Rogelio Libarnes (Dr. Libarnes), a neurologist, examined her. He found
Raymunda in a "vegetative state," having suffered from an anoxic injury due
to cardio-respiratory arrest during operation. Dr. Libarnes was reluctant,
however, to further proceed without consulting Dr. Unite, Raymunda's
surgeon, and Dr. Aquino, the anesthesiologist.

On November 23, 1990 Dr. Unite went to MCM to remove the stitches from
Raymunda's surgical wound. Dr. Unite noted that the wound had dried with
slight lochial discharge.
[15]
Later that day, however, Raymunda's wound split
open, causing part of her intestines to jut out. MCM's Dr. Benito Chua re-
sutured the wound.
[16]


Raymunda never regained consciousness, prompting her MCM doctors to
advise Rodrigo to take her home since they could do no more to improve her
condition. MCM discharged her on November 30, 1990 and she died 15 days
later on December 14, 1990.

Rodrigo filed, together with his seven children, a complaint
[17]
for damages
against Dr. Unite, Dr. Aquino, and Dr. Reyes before the Regional Trial Court
(RTC) of Malolos. Rodrigo claimed that Dr. Unite and Dr. Aquino failed to
exercise the diligence required for operating on Raymunda. As for Dr. Reyes,
Rodrigo averred that he was negligent in supervising the .work of Dr. Unite
and Dr. Aquino.

Defendant doctors uniformly denied the charge of negligence against them.
They claimed that they exercised the diligence required of them and that
causes other than negligence brought about Raymunda's condition.

On August 22, 1994, after hearing the parties on their evidence, the RTC
rendered a decision, finding the three doctors liable for negligence. The
proximate cause of Raymunda's cardiac arrest, said the RTC, was an
anesthetic accident, occasioned by injecting her with a high spinal anesthesia.
The operating doctors failed to correctly monitor her condition, resulting in a
critical delay in resuscitating her after the cardiac arrest. The RTC ordered
the doctors to pay Raymunda's heirs P153,270.80 as actual damages,
P300,000.00 as moral damages, and P80,000.00 as attorney's fees and cost of
suit.

On appeal,
[18]
the Court of Appeals entirely affirmed the findings of the
RTC.
[19]
Undaunted, Dr. Unite, Dr. Aquino, and Dr. Reyes filed separate
petitions for review that the Court subsequently consolidated.

In her petition, Dr. Unite washed her hands of any responsibility in
Raymunda's operation. She claimed that it was not her suturing that caused
the splitting open of the patient's surgical wound. Further, although some
negligence may have attende'd the operation, this could be traced to the
anesthesiologist, Dr. Aquino.

Dr. Aquino claims, on the other hand, that the evidence was insufficient to
support the conclusion that anesthetic accident caused the cardio-respiratory
arrest since, as testified, other factors may have caused the same.

Finally, Dr. Reyes claims that he cannot be held liable for Raymunda's death
since Dr. Unite and Dr. Aquino were not his employees. Based on the control
test, he did not exercise control and supervision over their work. They merely
used his hospital's facilities for the operation.
The Issues Presented

The cases present two issues:

1. Whether or not Dr. Unite (the surgeon) and Dr. Aquino (the
anesthesiologist) acted negligently in handling Raymunda's operation,
resulting in her death; and

2. Whether or not Dr. Reyes is liable, as hospital owner, for the negligence of
Dr. Unite and Dr. Aquino.
The Court's Rulings

The cause of action against the doctors in these cases is commonly known as
medical malpractice. It is a form of negligence which consists in the physician
or surgeon's failure to apply to his practice that degree of care and skill that
the profession generally and ordinarily employs under similar conditions and
circumstances.
[20]


For this reason, the Court always seeks guidance from expert testimonies in
determining whether or not the defendant in a medical malpractice case
exercised the degree of care and diligence required of him.
[21]
The Court has
to face up to the fact that physicians have extraordinary technical skills that
laymen do not have.
[22]


To successfully mount a medical malpractice action, the plaintiff should
establish four basic things: (1) duty; (2) breach; (3) injury; and (4) proximate
causation.
[23]
The evidence should show 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.
[24]


Here, to prove Dr. Unite and Dr. Aquino's negligence, Rodrigo presented Dr.
Libarnes, Raymunda's attending neurologist, and Dr. Chua, the general
surgeon who re-stitched her wound.

Dr. Libarnes- explained that it was cyanosis or lack of oxygen in the brain that
caused Raymunda's vegetative state. Her brain began to starve for oxygen
from the moment she suffered cardio-respiratory arrest during caesarean
section. That arrest, said Dr. Libarnes, could in turn be traced to the
anesthetic accident that resulted when Dr. Aquino placed her under
anesthesia.
[25]


Dr. Libarnes also blamed the doctors who operated on Raymunda for not
properly keeping track of her vital signs during the caesarean procedure
resulting in their failure to promptly address the cyanosis when it set
in.
[26]
Dr. Chua, on the other hand, testified that Raymunda's surgical wound
would not have split open if it had been properly closed.
[27]


For their defense, Dr. Unite and Dr. Aquino presented Dr. Reyes, their co-
defendant, who practiced general surgery. Dr. Reyes testified that
Raymunda's cardio-respiratory arrest could have been caused by factors
other than high spinal anesthesia, like sudden release of intra-abdominal
pressure and amniotic fluid embolism.
[28]
Insofar as Raymunda's dehiscence
or splitting open of wound was concerned, Dr. Reyes testified that
Raymunda's poor nutrition as well as the medication contributed to the
dehiscence.

While the Court cannot question the expertise of Dr. Reyes as a general
surgeon, it cannot regard him as a neutral witness. Given that he himself was
a defendant in the case, he had a natural bias for testifying to favor his co-
defendants. Further, since he had no opportunity to actually examine
Raymunda, Dr. Reyes could only invoke textbook medical principles that he
could not clearly and directly relate to the patient's specific condition.

In contrast, as a neurologist with expertise in the human nervous system,
including the brain, Dr. Libarnes was in a better position to explain
Raymunda's "vegetative" condition and its cause. In his opinion, an anesthetic
accident .during her caesarean section caused a cardio-respiratory arrest that
deprived her brain of oxygen, severely damaging it. That damage could have
been averted had the attending doctors promptly detected the situation and
resuscitated her on time. Thus, Dr. Libarnes said:
Atty. Lazaro:
What could have been the probable cause of this cardio-respiratory
arrest now Doctor?
Dr. Libarnes:
Well, most common cause of intra-operative cardio-respiratory arrest
is anesthesia, an anesthetic accident.
Q: Will you kindly explain that in layman's language now Doctor?
A: The spinal anesthesia can re [suit] in depression of respiratory
function. Respiratory arrest if significantly prolonged] can lead to
cardiac arrest. Cardiac arrest of significant duration can res[ult] in
brain injury.
[30]

x x x x
Q: Now, when you refer to anoxic injury Doctor, you are referring to the
lack of supply of oxygen going to the brain that is what you mean?
A: Yes.
Q: And this is due to the weak pumping of the heart, that is correct Doctor?
A: Yes.
Q: And. the weak pumping of the heart under the events indicated by you could
have been due to anesthesia accident, that is correct?
A: Hypoxia meaning lobe of the lung not providing oxygen, the heart has been
stressed under hypoxic condition eventually giving out. Yes, that is correct.
[31]


Dr. Aquino administered to Raymunda a high spinal anesthesia when he
should have given her only a low or mid-spinal anesthesia.
[32]


Notably, Dr. Unite corroborated the fact that Raymunda suffered from
cyanosis due to deprivation of oxygen. This was Dr. Unite's explanation when
Rodrigo, seeing his wife after the operation, asked why she had a bluish color.
Moreover, Dr. Unite admitted in her petition, that the proximate cause of
Raymunda's brain injury was Dr. Aquino's acts as anesthesiologist.
[33]


But Dr. Unite cannot exempt herself from liability. Dr. Aquino was not feeling
well on the day of the operation as he was in fact on sick leave.
[34]
As surgeon
in charge, Dr. Unite should not have allowed Dr. Aquino to take part in the
operation.

Besides, as the RTC found; the record of the operation contained no notation
just when Raymunda had a cardio-respiratory arrest and ceased to take in
oxygen. This notation played a critical role since the surgeons had between 6
to 8 minutes from the time of arrest, called the golden period of reversibility,
within which to save her from becoming a vegetable. The absence of the
notation on record, an important entry because the absence of which is itself
a ground for malpractice,
[35]
implies that the surgeons had no inkling when
the cardio-respiratory arrest occurred and how much time they had left to
revive their patient. Indeed, it took a subsequent examination by an internist
for them to realize that Raymunda had suffered a cardio-respiratory arrest.

As for Dr. Reyes, the hospital owner, there appears no concrete proof to show
that Dr. Unite and Dr. Aquino were under the hospital's payroll. Indeed, Dr.
Aquino appeared to be a government physician connected with the
Integrated Provincial Health Office of Bulacan.
[36]
Dr. Unite appeared to be a
self-employed doctor. The hospital allowed these doctors to operate on their
patients, using its operating room and assisting staffs for a fee. No evidence
has been presented that Raymunda suffered her fate because of defective
hospital facilities or poor staff support to the surgeons.

That Dr. Reyes and his wife rushed to the operating room the moment they
heard that Raymunda's vital signs had ceased is not an evidence that they
exercised supervision over the conduct of the operation. They evidently came
to see what was happening possibly to provide help if needed. Their showing
up after the operation is not a proof that they had control and supervision
over the work of the two doctors.

Nor would the doctrine of ostensible agency or doctrine of apparent
authority make Dr. Reyes liable to Raymunda's heirs for her death. Two
factors must be present under this doctrine: 1) the hospital acted in a manner
which would lead a reasonable person to believe that the person claimed to
be negligent was its agent or employee; and 2) the patient relied on such
belief.

Here, there is no evidence that the hospital acted in a way that made
Raymunda and her husband believe that the two doctors were in the
hospital's employ. Indeed, the couple had been consulting Dr. Unite at St.
Michael's Clinic, which she owned and operated in Malolos, Bulacan. She
convinced them that the caesarean section had to be performed at the SHH
because it had the facilities that such operation required. If the Court were to
allow damages against the hospital under this arrangement, independently
licensed surgeons would be unreasonably denied access to properly-
equipped operating rooms in big hospitals.

As to the award of damages, following precedents set in Flores v.
Pineda
[37]
respondent heirs of Raymunda are entitled to P50,000.00 as death
indemnity pursuant to Article 2206 of the Civil Code.

WHEREFORE, premises considered, this Court DENIES the petitions
and AFFIRMSthe decision of the Court of Appeals dated November 28, 2002
and resolution dated May 27, 2003 subject to MODIFICATION directing
petitioners, Dr. Divinia Unite and Dr. Eduardo Aquino to pay the heirs of
Raymunda Calayag, in addition to the damages that the Court of Appeals
awarded them, P50,000.00 as death indemnity.

SO ORDERED.