Kindred Torts Digests

GARCIA-RUEDA vs. PASCASIO

FACTS:
Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent
surgicaloperation at the UST hospital for the removal of a stone blocking his ureter.
He was attended byDr. Domingo Antonio, Jr. who was the surgeon, while Dr. Erlinda
Balatbat-Reyes was
thea n a e s t h e s i o l o g i s t . S i x h o u r s a f t e r t h e s u r g e r y , h o w e v e r , F l o r e n c
i o d i e d o f c o m p l i c a t i o n s o f "unknown cause," according to officials of the UST
Hospital.Not satisfied with the findings of the hospital, petitioner requested the
National Bureau ofInvestigation (NBI) to conduct an autopsy on her husband's body.
Consequently, the NBI ruled thatFlorencio'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 Offi ce of
the CityProsecutor.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
motionof 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 resolutionrecommending 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 Josefi na Santos Sioson, in the "interest of justice and
peace of mind of the parties," recommended that the case bere-raffled on the
ground that Prosecutor Carisma was partial to the petitioner. Thus, the case
wastransferred to Prosecutor Leoncia R. Dimagiba, where a
volte face
o c c u r r e d a g a i n w i t h t h e endorsement that the complaint against Dr.
Reyes be dismissed and instead, a correspondinginformation be filed against
Dr. Antonio. Petitioner filed a motion for reconsideration, questioningthe findings
of Prosecutor
Dimagiba.Pending the resolution of petitioner's motion for reconsideration r
egarding ProsecutorDimagiba's resolution, the investigative "pingpong" continued
when the case was again assigned toanother prosecutor, Eudoxia T. Gualberto,
who recommended that Dr. Reyes be included in
thecriminal information of Homicide through Reckless Imprudence. While
the recommendation ofProsecutor Gualberto was pending, the case was
transferred to Senior State Prosecutor GregorioA. 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 fi led graft charges specifi cally for violation
of Section 3(e) ofRepublic Act No. 30193against Prosecutors Guerrero, Macaraeg,
and Arizala for manifest
partialityin favor of Dr. Reyes before the Office of the Ombudsman. However, on July
11, 1994, theOmbudsman issued the assailed resolution dismissing the complaint

for lack of evidence.In fi ne, petitioner assails the exercise of the

discretionary power of the Ombudsman toreview 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 findthat there exists probable cause to hold public respondent City Prosecutors
liable for violation ofSection 3(e) of R.A. No. 3019.
ISSUE:
Whether or not expert testimony is necessary to prove the negligent act of the
respondent.
RULING:
In accepting a case, a doctor in eff ect represents that,
having the needed training andskill possessed by physicians and
surgeons practicing in the same fi eld, 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 acondition under
the same circumstances.
It is in this aspect of medical malpractice that experttestimony is essential to
establish not only the standard of care of the profession but also that thephysician's
conduct in the treatment and care falls below such standard. Further, inasmuch as
thecauses of the injuries involved in malpractice actions are determinable only in
the light of scientificknowledge, it has been recognized that
expert testimony is usually necessary to support the conclusion as to
causation.
Immediately apparent from a review of the records of this case is the
absence of anyexpert 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 ofDr. Floresto Arizala
and Dr. Nieto Salvador, Jr. of the National Bureau of Investigation (NBI) onlytestified
as to the possible cause of death but did not venture to illuminate the court on
the matterof the standard of care that petitioner should have exercised.The better
and more logical remedy under the circumstances would have been to appeal
theresolution of the City Prosecutors dismissing the criminal complaint to
the Secretary of Justiceunder the Department of Justice's Order No.
223, otherwise known as the "1993 Revised Rules onAppeals From Resolutions In
Preliminary Investigations/Reinvestigations," as amended byDepartment Order
No. 359, Section 1 of which provides:Sec. 1.
What May Be Appealed
. Only resolutions of the Chief
StateProsecutor/Regional State Prosecutor/Provincial or City Prosecutor dis
missing acriminal complaint may be the subject of an appeal to the
Secretary of Justiceexcept as otherwise provided in Section 4 hereof.What action
may the Secretary of Justice take on the appeal? Section 9 of Order No. 223states:
"The Secretary of Justice may reverse, affirm or modify the appealed resolution." On
theother hand, "He may
motu proprio

or on motion of the appellee, dismiss outright the appeal on specified

grounds."In exercising his discretion under the circumstances, the
Ombudsman acted within hispower and authority in dismissing the
complaint against the Prosecutors and this Court will not interfere with the
same.Petition is dismissed.

Reyes vs. Sisters of Mercy Hospital

Legal Issue:Whether or not Sisters of Mercy Hospital is liable for the death of Jorge
Reyes.B.
Facts:
Petitioner, Leah Alesna Reyes, is the wife of the deceased patient, Jorge Reyes. Five
days
before the latters
death, Jorge has been suffering from recurring fever with chills. The doctors
confirmed through the Widal test that Jorge has typhoid fever. However, he did not
respond tothe treatment and
died. The cause of his death was Ventric
ular Arrythemia Secondary to
Hyperpyrexia and typhoid fever.
Consequently, petitioner filed the instant case for damages before the Regional
Trial Court of Cebu City, which dismissed the case and was affirmed by theCourt of
Appeals.The contention was that Jorge did not die of typhoid fever. Instead, his
death was due tothe wrongful administration of chloromycetin. They contended that
had respondent doctorsexercised due care and diligence, they would not have
recommended and rushed the performanceof the Widal Test, hastily concluded that
Jorge was suffering from typhoid fever, and
administered chloromycetin without first conducting sufficient tests on the patients
compatibility with said drug.C.
Ruling:
Sisters of Mercy Hospital is not liable for the death of Jorge Reyes.D.
Reasoning of the Court:
There is no showing that the attending physician in this case deviated from the
usualcourse of treatment with respect to typhoid fever. Jorge was given antibiotic
choloromycetin andsome dose of triglobe after compatibility test was made by the
doctor and found that no adversereactions manifested which would necessitate
replacement of the medicines. Indeed, the standardcontemplated 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 reasonabl
e average meritamong the ordinarily good physicians. Here, the doctors did not
depart from the reasonablestandard recommended by the experts as they in fact
observed the due care required under thecircumstances.E.
Policy:

In Medical Negligence cases, it is incumbent upon the plaintiff to establish that the
usual procedure in treating the illness is not followed by the doctor. Failure to
prove this, the doctor isnot liable. Physicians are not insurers of the success of
every procedure undertaken and if
the procedure was shown to be properly done but did not work, they cannot be fault
ed for suchresult.
Reyes vs. Sisters of Mercy Hospital, G.R. No. 130547, Oct. 3, 2000
CONCEPT:
Petitioners action is for medical malpractice. This is a particular form of negligence
which consists in the failure of a physician or surgeon to apply to his practice of
medicine that degree of care and skill which is ordinarily employed by
theprofession generally, under similar conditions, and in like
surrounding circumstances. 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. There are thus four
elements involved in medical negligence cases, namely: duty, breach, injury, and
proximate causation.
Elements of Medical Malpractice
1. duty the existence of a physician-patient relationship
2. breach of duty
3. injury caused
4. causal connection between the breach of duty and the injury caused
Evidentiary Rule
TWO-PRONGED EVIDENCE:
1. evidence of the recognized standards
2. the physician negligently departed from these standards
EXPERT TESTIMONY ESSENTIAL:
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. 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. (Reyes vs. Sisters of Mercy Hospital, supra)
EXCEPTION:
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:
Although generally, expert medical testimony is relied upon in malpractice suits to
prove that a physician has done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res ipsa loquitor is availed by the
plaintiff, the need for expert medical testimony is dispensed with because the injury
itself provides the proof of negligence. The reason is that the general rule on the
necessity of expert testimony applies only to such matters clearly within the
domain of medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone familiar with the facts.
Ordinarily, only physicians and surgeons of skill and experience are competent to
testify as to whether a patient has been treated or operated upon with a reasonable
degree of skill and care. However, testimony as to the statements and acts of
physicians and surgeons, external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses. Hence, in cases
where the res ipsa loquitur is applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the
proper standard of care. Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had been
exercised, an inference of negligence may be drawn giving rise to an application of
the doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred. When
the doctrine is appropriate, all that the patient must do is prove a nexus between
the particular act or omission complained of and the injury sustained while under
the custody and management of the defendant without need to produce expert
medical testimony to establish the standard of care. Resort to res ipsa loquitor is
allowed because there is no other way, under usual and ordinary conditions, by
which the patient can obtain redress for injury suffered by him. (Reyes vs. Sisters
of Mercy Hospital, supra)
Standard of Diligence Required
- the standard of care in the locality (Locality Rule)
- a physician is not liable for error in judgment (Error in Judgment Rule), provided
he applied reasonable skill and care

STANDARD OF DILIGENCE REQUIRED:

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.
STANDARD IS NOT EXTRAORDINARY DILIGENCE:
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 circumstancesof 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. (Reyes vs. Sisters
of Mercy Hospital, supra)

RAMOS vs. COURT OF APPEALS

G.R. No. 124354. December 29, 1999.
Ponente: Kapunan
FACTS:
Erlinda Ramos underwent a surgical procedure to remove stone from her gall
bladder (cholecystectomy). They hired Dr. Hosaka, a surgeon, to conduct the
surgery at the De Los Santos Medical Center (DLSMC). Hosaka assured them that he
would find a good anesthesiologist. But the operation did not go as planned, Dr.
Hosaka arrived 3 hours late for the operation, Dra. Gutierrez, the anesthesiologist
botched the administration of the anesthesia causing Erlinda to go into a coma
and suffer brain damage. The botched operation was witnessed by Herminda Cruz,
sister in law of Erlinda and Dean of College of Nursing of Capitol Medical Center.
The family of Ramos (petitioners) sued the hospital, the surgeon and the
anesthesiologist for damages. The petitioners showed expert testimony showing

that Erlinda's condition was caused by the anesthesiologist in not exercising

reasonable care in intubating Erlinda. Eyewitnesses heard the anesthesiologist
saying Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan.
Diagnostic tests prior to surgery showed that Erlinda was robust and fit to undergo
surgery.
The RTC held that the anesthesiologist ommitted to exercise due care in intubating
the patient, the surgeon was remiss in his obligation to provide a good
anesthesiologist and for arriving 3 hours late and the hospital is liable for the
negligence of the doctors and for not cancelling the operation after the surgeon
failed to arrive on time. The surgeon, anesthesiologist and the DLSMC were all held
jointly and severally liable for damages to petitioners. The CA reversed the decision
of the Trial Court.
ISSUES: Whether or not the private respondents were negligent and thereby
caused the comatose condition of Ramos.
HELD:
Yes, private respondents were all negligent and are solidarily liable for the damages.
RATIO:
Res ipsa loquitur a procedural or evidentiary rule which means the thing or the
transaction speaks for itself. It is a maxim for the rule that the fact of the
occurrence of an injury, taken with the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or make out a plaintiffs prima facie
case, and present a question of fact for defendant to meet with an explanation,
where ordinarily in a medical malpractice case, the complaining party must present
expert testimony to prove that the attending physician was negligent.
This doctrine finds application in this case. On the day of the operation, Erlinda
Ramos already surrendered her person to the private respondents who had
complete and exclusive control over her. Apart from the gallstone problem, she was
neurologically sound and fit. Then, after the procedure, she was comatose and brain
damagedres ipsa loquitur!the thing speaks for itself!
Negligence Private respondents were not able to disprove the presumption of
negligence on their part in the care of Erlinda and their negligence was the
proximate cause of her condition. One need not be an anesthesiologist in order to
tell whether or not the intubation was a success. [res ipsa loquitur applies here].
The Supreme Court also found that the anesthesiologist only saw Erlinda for the first
time on the day of the operation which indicates unfamiliarity with the patient and
which is an act of negligence and irresponsibility.
The head surgeon, Dr. Hosaka was also negligent. He failed to exercise the proper
authority as the captain of the ship in determining if the anesthesiologist
observed the proper protocols. Also, because he was late, he did not have time to
confer with the anesthesiologist regarding the anesthesia delivery.

The hospital failed to adduce evidence showing that it exercised the diligence of a
good father of the family in hiring and supervision of its doctors (Art. 2180). The
hospital was negligent since they are the one in control of the hiring and firing of
their consultants. While these consultants are not employees, hospitals still exert
significant controls on the selection and termination of doctors who work there
which is one of the hallmarks of an employer-employee reationship. Thus, the
hospital was allocated a share in the liability.
Damages temperate damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and continuing.
Ramos v. CA
Facts:
Erlinda Ramos, a 47-year old robust woman, was normal except for her experiencing
occasional pain due to the presence of stone in her gall bladder. She was advised to
undergo an operation for its removal. The results in the examinations she
underwent indicate that she was fit for the operation. She and her husband Rogelio
met Dr. Hosaka, one of the defendants, who advised that she should undergo
cholecystectomy. Dr. Hosaka assured them that he will get a good anaesthesiologist.
At 7:30 a.m. on the day of the operation at Delos Santos Medical Center, Herminda
Cruz, Erlindas sister-in-law and the dean of the College of Nursing in Capitol Medical
Center, was there to provide moral support. Dr. Perfecta Gutierrez was to administer
the anaesthesia. Dr. Hosaka arrived only at 12:15 p. m. Herminda saw Dr. Gutierrez
intubating the patient, and heard the latter say Ang hirap ma-intubate nito, mali
yata ang pagkakapasok. O, lumalaki ang tiyan. Herminda saw bluish discoloration
of the nailbeds of the patient. She heard Dr. Hosaka issue an order for someone to
call Dr. Calderon. The doctor arrived and placed the patient in trendelenburg
position, wherein the head of the patient is positioned lower than the feet, which
indicates a decrease of blood supply in the brain. Herminda knew and told Rogelio
that something wrong was happening. Dr. Calderon was able to intubate the patient.
Erlinda was taken to the ICU and became comatose.
Rogelio filed a civil case for damages. The trial court ruled in his favor, finding Dr.
Gutierrez, Dr. Hosaka, and the hospital, guilty of negligence, but the Court of
Appeals reversed the decision. Hence, petitioner filed a Motion for Reconsideration,
which the Court of Appeals denied for having been filed beyond the reglementary
period. However, it was found that the notice of the decision was never sent to the
petitioners counsel. Rather, it was sent to the petitioner, addressing him as Atty.
Rogelio Ramos, as if he was the legal counsel. The petitioner filed the instant
petition for certiorari. On the procedural issue, the Supreme Court rules that since
the notice did not reach the petitioners then legal counsel, the motion was filed on
time.
Issue:

Whether a surgeon, an anaesthesiologist, and a hospital, should be made liable for

the unfortunate comatose condition of a patient scheduled for cholecystectomy
Held:
Res Ipsa Loquitor
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction
speaks for itself." The phrase "res ipsa loquitur'' is a maxim for the rule that the fact
of the occurrence of an injury, taken with the surrounding circumstances, may
permit an inference or raise a presumption of negligence, or make out a
plaintiff's prima facie case, and present a question of fact for defendant to meet
with an explanation. Where the thing which caused the injury complained of is
shown to be under the management of the defendant or his servants and the
accident is such as in ordinary course of things does not happen if those who have
its management or control use proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the accident arose from or was
caused by the defendant's want of care. 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. However, much has been said thatres ipsa loquitur is not a rule of substantive
law and, as such, does not create or constitute an independent or separate ground
of liability. 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. Still, before resort to the doctrine may be allowed, the
following requisites must be satisfactorily shown.
(1) The accident is of a kind which ordinarily does not occur in the absence of
someone's negligence;
(2) It is caused by an instrumentality within the exclusive control of the defendant
or defendants; and
(3) The possibility of contributing conduct which would make the plaintiff
responsible is eliminated.
Medical malpractice cases do not escape the application of this doctrine. Thus, res
ipsa loquitur has been applied when the circumstances attendant upon the harm
are themselves of such a character as to justify an inference of negligence as the
cause of that harm. 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. 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. 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.
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. 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 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.
We find the doctrine of res ipsa loquitur appropriate in the case at bar. Erlinda
submitted herself for cholecystectomy and expected a routine general surgery to be
performed on her gall bladder. On that fateful day she delivered her person over to
the care, custody and control of private respondents who exercised complete and
exclusive control over her. At the time of submission, Erlinda was neurologically
sound and, except for a few minor discomforts, was likewise physically fit in mind
and body. However, during the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable damage to her brain.
Thus, without undergoing surgery, she went out of the operating room already
decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in the process of a gall bladder
operation. In fact, this kind of situation does not in the absence of negligence of
someone in the administration of anesthesia and in the use of endotracheal tube.
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.
Negligence of the Anaesthesiologist
The pre-operative evaluation of a patient prior to the administration of anesthesia is
universally observed to lessen the possibility of anesthetic accidents. 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. Her failure to follow this medical procedure is, therefore,
a clear indicia of her negligence. Erlinda's case was elective and this was known to
respondent Dra. Gutierrez. Thus, she had all the time to make a thorough evaluation
of Erlinda's case prior to the operation and prepare her for anesthesia. However, she
never saw the patient at the bedside. She herself admitted that she had seen

petitioner only in the operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take advantage of this important
opportunity. As such, her attempt to exculpate herself must fail.
Opinion of Expert Witness
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls
within the fields of anesthesia, internal medicine-allergy, and clinical pharmacology.
The resulting anoxic encephalopathy belongs to the field of neurology. While
admittedly, many bronchospastic-mediated pulmonary diseases are within the
expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced,
allergic mediated bronchospasm alleged in this case is within the disciplines of
anesthesiology, allergology and pharmacology. On the basis of the foregoing
transcript, in which the pulmonologist himself admitted that he could not testify
about the drug with medical authority, it is clear that the appellate court erred in
giving weight to Dr. Jamora's testimony as an expert in the administration of
Thiopental Sodium. 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. 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.
Proximate Cause
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. 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. 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.
Responsibility of the Surgeon
As the so-called "captain of the ship," it is the surgeon's responsibility to see to it
that those under him perform their task in the proper manner. Respondent Dr.
Hosaka's negligence can be found in his failure to exercise the proper authority in
not determining if his anesthesiologist observed proper anesthesia protocols. In

fact, no evidence on record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not
escape us that respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as Erlinda's cholecystectomy, and was in fact
over three hours late for the latter's operation. Because of this, he had little or no
time to confer with his anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties towards his patient. Thus, he
shares equal responsibility for the events which resulted in Erlinda's condition.
Responsibility of the Hospital
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.
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. 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. In the instant case,
respondent hospital, apart from a general denial of its responsibility over
respondent physicians, failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the hiring and supervision of the latter. It
failed to adduce evidence with regard to the degree of supervision which it
exercised over its physicians. In neglecting to offer such proof, or proof of a similar
nature, respondent hospital thereby failed to discharge its burden under the last
paragraph of Article 2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlinda's condition.
Damages
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 homebased 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. 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.
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. 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 homebased 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.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has
been in a comatose state for over fourteen years now. The burden of care has so far
been heroically shouldered by her husband and children, who, in the intervening
years have been deprived of the love of a wife and a mother. Meanwhile, the actual
physical, emotional and financial cost of the care of petitioner would be virtually
impossible to quantify. Even the temperate damages herein awarded would be
inadequate if petitioner's condition remains unchanged for the next ten years. The
husband and the children, all petitioners in this case, will have to live with the day
to day uncertainty of the patient's illness, knowing any hope of recovery is close to
nil. They have fashioned their daily lives around the nursing care of petitioner,
altering their long term goals to take into account their life with a comatose patient.
They, not the respondents, are charged with the moral responsibility of the care of
the victim. The family's moral injury and suffering in this case is clearly a real one.
For the foregoing reasons, an award of P2,000,000.00 in moral damages would be
appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are
hereby awarded. Considering the length and nature of the instant suit we are of the
opinion that attorney's fees valued at P100,000.00 are likewise proper.

WHEREFORE, the decision and resolution of the appellate court appealed from are
hereby modified so as to award in favor of petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00 as actual damages computed as of the
date of promulgation of this decision plus a monthly payment of P8,000.00 up to the
time that petitioner Erlinda Ramos expires or miraculously survives; 2)
P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4)
P100,000.00 each as exemplary damages and attorney's fees; and, 5) the costs of
the suit.
LEONARD W. RICHARDS, Complainantvs.PATRICIO A. ASOY,
FACTS:
Respondent Asoy received from Complainant Richards, his client, compensation to
handle his case in thetrial court, but the same was dismissed for lack of interest and
failure to prosecute. Asoy abandoned his client inviolation of his contract
ignoring the most elementary principles of professional ethics. Furthermore, Asoy
ignoredthe processes of this Court and it was only after he was suspended from the
practice of law of that he surfaced. OnJuly 9, 1987, the Court resolved to DISBAR
him and order him to reimburse Richards the sum of P16,300 within 30days from
notice. On November 11,1987, the Court received a letter dated November 3,1987,
complained thatrespondent had not reimbursed him the P16,300. Hence, the Court
issued a resolution requiring Asoy to showcause why he failed to reimburse,
however, Asoy still failed to comply. Complainant filed another letter informingthe
Court that Asoy still failed to comply with the order of reimbursement.
Thirteen years after the promulgation, Asoy filed a Petition for readmission to the
practice of law stating, among
other things, that on January 2,1996 or about nine years after his disbarment and
directive to reimbursement
complainant made, he effected payment of P16,300 via consignation with the
Courts Office of the Cashier. The
Court denied the petition for lack of merit.
On August 2, 2010, Asoy filed another petition for Reinstatement to the Bar
stating that he effected payment ofP16,300 before the Office of the Cashier of the
Supreme Court as complainant could no longer be found or
located; that he had already suffered and agonized shortcomings; and that as
positive evidence of his repentanceand rehabilitation he attached testimonials
of credible institutions and personalities.
ISSUE: Whether or not Asoy violated the Code of Professional Responsibility.
HELD:
Yes. Respondent Asoy violated Canon 10 of the Code of Professional Responsibility
. Canon 10 states that Alawyer owes candor, fairness and good faith to the court.
Respondent denigrated the dignity of his calling by
displaying a lack of candor towards this Court. By taking his sweet time to effect
reimbursement

and throughconsignation with this Court at that

he sent out a strong message that the legal processes and orders of this

Court could be treated with disdain or impunity. Respondents consignation could

not even be deemed compliancewith the Courts directive to
reimburse beca
use the Court does not represent the complainant; the latters address
was readily ascertainable had respondent wished to communicate with the
complainant for the purpose of making
amends. Hence, respondents petition for reinstatements in the Roll of Atto
rneys is DENIED.