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Hurley v.

Eddingfield
4 April 1901
156 Ind. 416 | 59 N.E. 1058
COURT
Supreme Court of Indiana
JUDICIAL HISTORY
George D. Hurley ( Plaintiff ) estate administrator brought suit against George W.
Eddingfield ( Defendant ) in Indianas Montgomery Circuit Court pertaining to Defendant
refusal to enter Employment Contract in tending Plaintiff medical treatment, thus resulting
in Wrongful Death of his Intestate, and sought $10,000 damages ( modern era value circa
over $260,000 ). Trial Court favored Defendant. Plaintiff appealed to Supreme Court of
Indiana.
FACTS
George W. Eddingfield was a practicing medical doctor licensed by State of Indiana, and
previously served as family physician to George D. Hurley. When Hurley became seriously
ill, he sent a messenger to Eddingfield informing him of his violent sickness, requested his
medical attendance, prepared to tender proper fees for his service, and stated that no
other physician was procurable in time, hence Hurley relied on him for immediate medical
attention. Without providing any reason, Eddingfield declined Hurleys medical
attendance request even though he was not attending other patients at the time. Hurley
subsequently died of his sickness, whereby his estate administrator filed Wrongful Act
suite against Eddingfield for his refusal to enter employment contract in facilitating
Hurleys medical treatment.

Licenses to qualified individuals, along with Penalties for practicing without medical
license.
Court viewed this Act to be preventive, not a compulsive, measure, thus in obtaining
State license to practice medicine, the state does not require, and the licensee does not
engage, that he will practice at all or on other terms than he may choose to accept. This
freedom to engage in licensed medical profession and freedom to enter into medical
contract is vested onto the duly granted physician. Therefore, the Appellee ( Eddingfield )
physician was not required to have entered into a contract of employment with the
decedent ( Appellant Hurley ).
Moral prerogative and dilemma aside, Court decided the issue was not whether Appellee
should have abided by traditional legacy of rendering medical aid to every one who
applied as part of professional code. Rather, the alleged wrongful act of Appellee refusal
to enter into medical employment contract with Appellant. State statutory licensing
regime grants explicit right to contract to Appellee.
DECISION
Judgment affirmed
Appeal from circuit court, Montgomery county; Jere West, Judge.
Action by George D. Hurley, as administrator, against George W. Eddingfield. From
a judgment in favor of the defendant, the plaintiff appeals. Affirmed.
BAKER, J.

ISSUES :
1) Can State-licensed Physician be compelled to engage in contract with Patients ondemand ?

The appellant sued appellee for $10,000 damages for wrongfully causing the death of his
intestate. The court sustained appellee's demurrer to the complaint, and this ruling is
assigned as error.

2) Is there Affirmative Duty to be a Good Citizen in helping others in peril if one did not
cause their predicament ?

The material facts alleged may be summarized thus: At and for years before decedent's
death appellee was a practicing physician at Mace, in Montgomery county, duly licensed
under the laws of the state. He held himself out to the public as a general practitioner of
medicine. He had been decedent's family physician. Decedent became dangerously ill,
and sent for appellee. The messenger informed appellee of decedent's violent sickness,
tendered him his fee for his services, and stated to him that no other physician was
procurable in time, and that decedent relied on him for attention. No other physician was
procurable in time to be of any use, and decedent did rely on appellee for medical
assistance.

HOLDINGS :
1) No. Via a States statutory regime in granting medical licenses, a Physician is entitled
discretion and not required to enter contract agreement on Patients demand.
2) No. Good Citizen is a moral prerogative, but not a statutory mandate. One need not
be compelled to help others if one did not cause their predicament.
REASONING
Court balanced its rationale between societal Moral Prerogative versus Statutory Mandate
established by State Legislative body. As a matter of jurisprudence, the Legislature is the
elected body of the State, thus directly represent the Will of the People and Consent of the
Governed. Hence, duties and privileges can be expressed granted via this statutory
regime.
The 1897 Act of regulating practice of medicine established by the State provided for a
Board of Examiners, Standards of Qualifications, Examination of Expertise, and granting of

Without any reason whatever, appellee refused to render aid to decedent. No other
patients were requiring appellee's immediate service, and he could have gone to the relief
of decedent if he had been willing to do so. Death ensued, without decedent's fault, and
wholly from appellee's wrongful act. The alleged wrongful
act was appellee's refusal to enter into a contract of employment. Counsel do not contend
that, before the enactment of the law regulating the practice of medicine, physicians were
bound to render professional service to every one who applied. Whart. Neg. s 731. The act
regulating the practice of medicine provides for a board of examiners, standards of
qualification, examinations, licenses to those found qualified, and penalties for practicing
without license. Acts 1897, p. 255; Acts 1899, p. 247. The act is a preventive, not a

compulsive, measure. In obtaining the state's license (permission) to practice medicine,


the state does not require, and the licensee does not engage, that he will practice at all or
on other terms than he may choose to accept. Counsel's analogies, drawn from the
obligations to the public on the part of innkeepers, common carriers, and the like, are
beside the mark. Judgment affirmed.
Ind. 1901. Hurley v. Eddingfield 53 L.R.A. 135, 156 Ind. 416, 59 N.E. 1058, 83 Am.St.Rep.
198

G.R. No. 108854

June 14, 1994

MA. PAZ FERNANDEZ KROHN, petitioner,


vs.
COURT OF APPEALS and EDGAR KROHN, JR., respondents.

communication rule," 5 and thereafter submitted a Statement for the Record asserting
among others that "there is no factual or legal basis whatsoever for petitioner (Edgar) to
claim 'psychological incapacity' to annul their marriage, such ground being completely
false, fabricated and merely an afterthought." 6 Before leaving for Spain where she has
since resided after their separation, Ma. Paz also authorized and instructed her counsel to
oppose the suit and pursue her counterclaim even during her absence.

Cruz, Durian, Agabin, Atienza, Alday and Tuason for petitioner.


Oscar F. Martinez for private respondent.

BELLOSILLO, J.:
A confidential psychiatric evaluation report is being presented in evidence before the trial
court in a petition for annulment of marriage grounded on psychological incapacity. The
witness testifying on the report is the husband who initiated the annulment proceedings,
not the physician who prepared the report.
The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the rule on
privileged communication between physician and patient, seeks to enjoin her husband
from disclosing the contents of the report. After failing to convince the trial court and the
appellate court, she is now before us on a petition for review on certiorari.
On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at the Saint
Vincent de Paul Church in San Marcelino, Manila. The union produced three children,
Edgar Johannes, Karl Wilhelm and Alexandra. Their blessings notwithstanding, the
relationship between the couple developed into a stormy one. In 1971, Ma. Paz underwent
psychological testing purportedly in an effort to ease the marital strain. The effort
however proved futile. In 1973, they finally separated in fact.
In 1975, Edgar was able to secure a copy of the confidential psychiatric report on Ma. Paz
prepared and signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. On 2 November
1978, presenting the report among others, he obtained a decree ("Conclusion") from the
Tribunal Metropolitanum Matrimoniale in Manila nullifying his church marriage with Ma.
Paz on the ground of "incapacitas assumendi onera conjugalia due to lack of due
discretion existent at the time of the wedding and thereafter." 1 On 10 July 1979, the
decree was confirmed and pronounced "Final and Definite." 2
Meanwhile, on 30 July 1982, the then Court of First Instance (now Regional Trial Court) of
Pasig, Br. II, issued an order granting the voluntary dissolution of the conjugal partnership.
On 23 October 1990, Edgar filed a petition for the annulment of his marriage with Ma. Paz
before the trial court. 3 In his petition, he cited the Confidential Psychiatric Evaluation
Report which Ma. Paz merely denied in her Answer as "either unfounded or irrelevant." 4
At the hearing on 8 May 1991, Edgar took the witness stand and tried to testify on the
contents of the Confidential Psychiatric Evaluation Report. This was objected to on the
ground that it violated the rule on privileged communication between physician and
patient. Subsequently, Ma. Paz filed a Manifestation expressing her "continuing objection"
to any evidence, oral or documentary, "that would thwart the physician-patient privileged

On 29 May 1991, Edgar opposed Ma. Paz' motion to disallow the introduction of the
confidential psychiatric report as evidence, 7 and afterwards moved to strike out Ma. Paz'
Statement for the Record. 8
On 4 June 1991, the trial court issued an Order admitting the Confidential Psychiatric
Evaluation Report in evidence and ruling that
. . . the Court resolves to overrule the objection and to sustain the Opposition to the
respondent's Motion; first, because the very issue in this case is whether or not the
respondent had been suffering from psychological incapacity; and secondly, when the
said psychiatric report was referred to in the complaint, the respondent did not object
thereto on the ground of the supposed privileged communication between patient and
physician. What was raised by the respondent was that the said psychiatric report was
irrelevant. So, the Court feels that in the interest of justice and for the purpose of
determining whether the respondent as alleged in the petition was suffering from
psychological incapacity, the said psychiatric report is very material and may be testified
to by petitioner (Edgar Krohn, Jr.) without prejudice on the part of the respondent to
dispute the said report or to cross-examination first the petitioner and later the
psychiatrist who prepared the same if the latter will be presented. 9
On 27 November 1991, the trial court denied the Motion to Reconsider Order dated June
4, 1991, and directed that the Statement for the Record filed by Ma. Paz be stricken off
the record. A subsequent motion for reconsideration filed by her counsel was likewise
denied.
Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals. In a Decision
promulgated 30 October 1992, the appellate court dismissed the petition for certiorari. 10
On 5 February 1993, the motion to reconsider the dismissal was likewise denied. Hence,
the instant petition for review.
Petitioner now seeks to enjoin the presentation and disclosure of the contents of the
psychiatric report and prays for the admission of her Statement for the Record to form
part of the records of the case. She argues that since
Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician from testifying on
matters which he may have acquired in attending to a patient in a professional capacity,
"WITH MORE REASON should be third person (like respondent-husband in this particular
instance) be PROHIBITED from testifying on privileged matters between a physician and
patient or from submitting any medical report, findings or evaluation prepared by a
physician which the latter has acquired as a result of his confidential and privileged
relation with a patient." 12 She says that the reason behind the prohibition is
. . . to facilitate and make safe, full and confidential disclosure by a patient to his
physician of all facts, circumstances and symptoms, untrammeled by apprehension of
their subsequent and enforced disclosure and publication on the witness stand, to the end

that the physician may form a correct opinion, and be enabled safely and efficaciously to
treat his patient. 13
She further argues that to allow her husband to testify on the contents of the psychiatric
evaluation report "will set a very bad and dangerous precedent because it abets
circumvention of the rule's intent in preserving the sanctity, security and confidence to
the relation of physician and his patient." 14 Her thesis is that what cannot be done
directly should not be allowed to be done indirectly.
Petitioner submits that her Statement for the Record simply reiterates under oath what
she asserted in her Answer, which she failed to verify as she had already left for Spain
when her Answer was filed. She maintains that her "Statement for the Record is a plain
and simple pleading and is not as it has never been intended to take the place of her
testimony;" 15 hence, there is no factual and legal basis whatsoever to expunge it from
the records.
Private respondent Edgar Krohn, Jr., however contends that "the rules are very explicit:
the prohibition applies only to a physician. Thus . . . the legal prohibition to testify is not
applicable to the case at bar where the person sought to be barred from testifying on the
privileged communication is the husband and not the physician of the petitioner." 16 In
fact, according to him, the Rules sanction his testimony considering that a husband may
testify against his wife in a civil case filed by one against the other.

the constitutionally protected zone of privacy, 20 including a patient's interest in keeping


his mental health records confidential. 21 Thus, it has been observed that the
psychotherapist-patient privilege is founded upon the notion that certain forms of
antisocial behavior may be prevented by encouraging those in need of treatment for
emotional problems to secure the services of a psychotherapist.
Petitioner's discourse while exhaustive is however misplaced. Lim v. Court of Appeals 22
clearly lays down the requisites in order that the privilege may be successfully invoked:
(a) the privilege is claimed in a civil case; (b) the person against whom the privilege is
claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person
acquired the information while he was attending to the patient in his professional
capacity; (d) the information was necessary to enable him to act in that capacity; and, (e)
the information was confidential and, if disclosed, would blacken the reputation (formerly
character) of the patient.
In the instant case, the person against whom the privilege is claimed is not one duly
authorized to practice medicine, surgery or obstetrics. He is simply the patient's husband
who wishes to testify on a document executed by medical practitioners. Plainly and
clearly, this does not fall within the claimed prohibition. Neither can his testimony be
considered a circumvention of the prohibition because his testimony cannot have the
force and effect of the testimony of the physician who examined the patient and executed
the report.

Besides, private respondent submits that privileged communication may be waived by the
person entitled thereto, and this petitioner expressly did when she gave her unconditional
consent to the use of the psychiatric evaluation report when it was presented to the
Tribunal Metropolitanum Matrimoniale which took it into account among others in deciding
the case and declaring their marriage null and void. Private respondent further argues
that petitioner also gave her implied consent when she failed to specifically object to the
admissibility of the report in her Answer where she merely described the evaluation report
as "either unfounded or irrelevant." At any rate, failure to interpose a timely objection at
the earliest opportunity to the evidence presented on privileged matters may be
construed as an implied waiver.

Counsel for petitioner indulged heavily in objecting to the testimony of private respondent
on the ground that it was privileged. In his Manifestation before the trial court dated 10
May 1991, he invoked the rule on privileged communications but never questioned the
testimony as hearsay. It was a fatal mistake. For, in failing to object to the testimony on
the ground that it was hearsay, counsel waived his right to make such objection and,
consequently, the evidence offered may be admitted.

With regard to the Statement for the Record filed by petitioner, private respondent posits
that this in reality is an amendment of her Answer and thus should comply with pertinent
provisions of the Rules of Court, hence, its exclusion from the records for failure to comply
with the Rules is proper.

The instant appeal has taken its toll on the petition for annulment. Three years have
already lapsed and private respondent herein, as petitioner before the trial court, has yet
to conclude his testimony thereat. We thus enjoin the trial judge and the parties'
respective counsel to act with deliberate speed in resolving the main action, and avoid
any and all stratagems that may further delay this case. If all lawyers are allowed to
appeal every perceived indiscretion of a judge in the course of trial and include in their
appeals depthless issues, there will be no end to litigations, and the docket of appellate
courts will forever be clogged with inconsequential cases. Hence, counsel should exercise
prudence in appealing lower court rulings and raise only legitimate issues so as not to
retard the resolution of cases. Indeed, there is no point in unreasonably delaying the
resolution of the petition and prolonging the agony of the wedded couple who after
coming out from a storm still have the right to a renewed blissful life either alone or in the
company of each other. 23

The treatise presented by petitioner on the privileged nature of the communication


between physician and patient, as well as the reasons therefor, is not doubted. Indeed,
statutes making communications between physician and patient privileged are intended
to inspire confidence in the patient and encourage him to make a full disclosure to his
physician of his symptoms and condition. 17 Consequently, this prevents the physician
from making public information that will result in humiliation, embarrassment, or disgrace
to the patient. 18 For, the patient should rest assured with the knowledge that the law
recognizes the communication as confidential, and guards against the possibility of his
feelings being shocked or his reputation tarnished by their subsequent disclosure. 19 The
physician-patient privilege creates a zone of privacy, intended to preclude the humiliation
of the patient that may follow the disclosure of his ailments. Indeed, certain types of
information communicated in the context of the physician-patient relationship fall within

The other issue raised by petitioner is too trivial to merit the full attention of this Court.
The allegations contained in the Statement for the Records are but refutations of private
respondent's declarations which may be denied or disproved during the trial.

WHEREFORE, the instant petition for review is DENIED for lack of merit. The assailed
Decision of respondent Court of Appeals promulgated on 30 October 1992 is AFFIRMED.

SO ORDERED.

[G.R. No. 91114. September 25, 1992.]


NELLY LIM, Petitioner, v. THE COURT OF APPEALS, HON. MANUEL D. VICTORIO, as Presiding
Judge of RTC-Rosales, Pangasinan, Branch 53, and JUAN SIM, Respondents.
Quisumbing, Torres & Evangelista for Petitioner.

the date of a consultation and the number of consultations, are therefore not privileged
from disclosure, so long as the subject communicated is not stated."cralaw virtua1aw
library
6.
ID.; ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; ONE WHO CLAIMS
PRIVILEGED COMMUNICATIONS MUST PROVE REQUISITES THEREOF. One who claims
this privilege must prove the presence of these aforementioned requisites.

Bince, Oficiana & Dancel for Private Respondent.


SYLLABUS
1.
REMEDIAL LAW; ACTIONS; EVIDENCE; PRIVILEGED COMMUNICATIONS; PHYSICIANPATIENT PRIVILEGE; RATIONAL BEHIND THE RULE. This rule on the physician-patient
privilege is intended to facilitate and make safe full and confidential disclosure by the
patient to the physician of all facts, circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure and publication on the witness
stand, to the end that the physician may form a correct opinion, and be enabled safely
and efficaciously to treat his patient. It rests in public policy and is for the general interest
of the community.
2.
ID.; ID.; ID.; ID.; ID.; SUBJECT TO WAIVER. Since the object of the privilege is to
protect the patient, it may be waived if no timely objection is made to the physicians
testimony.
3.
ID.; ID.; ID.; ID.; ID.; REQUISITES. In order that the privilege may be successfully
claimed, the following requisites must concur: "1. the privilege is claimed in a civil case; 2.
the person against whom the privilege is claimed is one duly authorized to practice
medicine, surgery or obstetrics; 3. such person acquired the information while he was
attending to the patient in his professional capacity; 4. the information was necessary to
enable him to act in that capacity; and 5. the information was confidential, and, if
disclosed, would blacken the reputation (formerly character) of the patient."cralaw
virtua1aw library

7.
ID.; ID.; ID.; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT PRIVILEGE;
INFORMATION GATHERED IN PRESENCE OF THIRD PARTIES, NOT PRIVILEGED. There is
authority to the effect that information elicited during consultation with a physician in the
presence of third parties removes such information from the mantle of the privilege:
"Some courts have held that the casual presence of a third person destroys the
confidential nature of the communication between doctor and patient and thus destroys
the privilege, and that under such circumstances the doctor may testify. Other courts
have reached a contrary result."cralaw virtua1aw library
8.
ID.; ID.; ID.; ID.; ID.; PRIVILEGED, WAIVED IN CASE AT BAR. while it may be true
that counsel for the petitioner opposed the oral request for the issuance of a subpoena ad
testificandum to Dr. Acampado and filed a formal motion for the quashal of the said
subpoena a day before the witness was to testify, the petitioner makes no claim in any of
her pleadings that her counsel had objected to any question asked of the witness on the
ground that it elicited an answer that would violate the privilege, despite the trial courts
advise that said counsel may interpose his objection to the testimony "once it becomes
apparent that the testimony, sought to be elicited is covered by the privileged
communication rule." The particular portions of the stenographic notes of the testimony of
Dr. Acampado quoted in the petitioners Petition and Memorandum, and in the private
respondents Memorandum, do not at all show that any objections were interposed. Even
granting ex gratia that the testimony of Dr. Acampado could be covered by the privilege,
the failure to seasonably object thereto amounted to a waiver thereof.
DECISION

4.
ID.; ID.; ID.; ID.; CONDITIONS. These requisites conform with the four (4)
fundamental conditions necessary for the establishment of a privilege against the
disclosure of certain communications, to wit: "1. The communications must originate in a
confidence that they will not be disclosed. 2. This element of confidentiality must be
essential to the full and satisfactory maintenance of the relation between the parties. 3.
The relation must be one which in the opinion of the community ought to be sedulously
fostered 4. The injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for the correct disposal
of litigation."cralaw virtua1aw library

DAVIDE, JR., J.:

5.
ID.; ID.; ID.; ID.; PHYSICIAN-PATIENT PRIVILEGE; SCOPE. The physician may be
considered to be acting in his professional capacity when he attends to the patient for
curative, preventive, or palliative treatment. Thus, only disclosures which would have
been made to the physician to enable him "safely and efficaciously to treat his patient"
are covered by the privilege. It is to be emphasized that "it is the tenor only of the
communication that is privileged. The mere fact of making a communication, as well as

The parties are in agreement as to the following facts:chanrob1es virtual 1aw library

This petition brings into focus the rule on the confidentiality of the physician-patient
relationship. Petitioner urges this Court to strike down as being violative thereof the
resolution of public respondent Court of Appeals in C.A.-G.R. SP No. 16991 denying due
course to a petition to annul the order of the trial court allowing a Psychiatrist of the
National Mental Hospital to testify as an expert witness and not as an attending physician
of petitioner.

Petitioner and private respondent are lawfully married to each other.


On 25 November 1987, private respondent filed with Branch 53 of the Regional Trial Court
(RTC) of Pangasinan a petition for annulment of such marriage on the ground that

petitioner has been allegedly suffering from a mental illness called schizophrenia "before,
during and after the marriage and until the present." After the issues were joined and the
pre-trial was terminated, trial on the merits ensued. Private respondent presented three
(3) witnesses before taking the witness stand himself to testify on his own behalf. On 11
January 1989, private respondents counsel announced that he would present as his next
witness the Chief of the Female Services of the National Mental Hospital, Dr. Lydia
Acampado, a Doctor of Medicine who specializes in Psychiatry. Said counsel forthwith
orally applied for the issuance of a subpoena ad testificandum requiring Dr. Acampado to
testify on 25 January 1989. Petitioners counsel opposed the motion on the ground that
the testimony sought to be elicited from the witness is privileged since the latter had
examined the petitioner in a professional capacity and had diagnosed her to be suffering
from schizophrenia. Over such opposition, the subpoena was issued on 12 January
1989.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
On 24 January 1989, petitioners counsel filed an urgent omnibus motion to quash the
subpoena and suspend the proceedings pending resolution of the motion.
Before Dr. Acampado took the witness stand on 25 January 1989, the court heard this
urgent motion. Movant argued that having seen and examined the petitioner in a
professional capacity, Dr. Acampado is barred from testifying under the rule on the
confidentiality of a physician-patient relationship. Counsel for private respondent
contended, however, that Dr. Acampado would be presented as an expert witness and
would not testify on any information acquired while attending to the petitioner in a
professional capacity. The trial court, per respondent Judge, denied the motion and
allowed the witness to testify. Dr. Acampado thus took the witness stand, was qualified by
counsel for private respondent as an expert witness and was asked hypothetical questions
related to her field of expertise. She neither revealed the illness she examined and
treated the petitioner for nor disclosed the results of her examination and the medicines
she had prescribed.
Since petitioners counsel insisted that the ruling of the court on the motion be reduced to
writing, respondent Judge issued the following Order on the same
date:jgc:chanrobles.com.ph
"In his omnibus motion filed with the Court only yesterday, January 24, 1989, petitioner
seeks to prevent Dr. Lydia Acampado from testifying because she saw and examined
respondent Nelly Lim in her professional capacity perforce her testimony is covered by the
privileged (sic) communication rule.
Petitioner contends that Dr. Acampado is being presented as an expert witness and that
she will not testify on any information she acquired in (sic) attending to Nelly Lim in her
professional capacity.
Based on the foregoing manifestation of counsel for petitioner, the Court denied the
respondents motion and forthwith allowed Dr. Acampado to testify. However, the Court
advised counsel for respondent to interpose his objection once it becomes apparent that
the testimony sought to be elicited is covered by the privileged communication rule.
On the witness box, Dr. Acampado answered routinary (sic) questions to qualify her as an
expert in psychiatry; she was asked to render an opinion as to what kind of illness (sic) are
stelazine tablets applied to; she was asked to render an opinion on a (sic) hypothetical

facts respecting certain behaviours of a person; and finally she admitted she saw and
treated Nelly Lim but she never revealed what illness she examined and treated her (sic);
nor (sic) the result of her examination of Nelly Lim, nor (sic) the medicines she prescribed.
WHEREFORE, the omnibus motion dated January 19, 1989 is hereby DENIED." 1
On 3 March 1989, petitioner filed with the public respondent Court of Appeals a petition 2
for certiorari and prohibition, docketed therein as C.A.-G.R. SP No. 16991, to annul the
aforesaid order of respondent Judge on the ground that the same was issued with grave
abuse of discretion amounting to lack of jurisdiction, and to prohibit him from proceeding
with the reception of Dr. Acampados testimony.chanrobles.com : virtual law library
On 18 September 1989, the Court of Appeals promulgated a resolution 3 denying due
course to the petition on the ground that "the petitioner failed in establishing the
confidential nature of the testimony given by or obtained from Dr. Acampado when she
testified on January 25, 1989." Hence, the respondent Judge committed no grave abuse of
discretion. In support thereof, the respondent Court discussed the conditions which would
render as inadmissible testimonial evidence between a physician and his patient under
paragraph (c), Section 24, Rule 130 of the Revised Rules of Court and made the following
findings:jgc:chanrobles.com.ph
"The present suit is a civil case for annulment of marriage and the person whose
testimony is sought to be stopped as a privileged communication is a physician, who was
summoned by the patient in her professional capacity for curative remedy or treatment.
The divergence in views is whether the information given by the physician in her
testimony in open court on January 25, 1989 was a privileged communication. We are of
the opinion that they do not fall within the realm of a privileged communication because
the information were (sic) not obtained from the patient while attending her in her
professional capacity and neither were (sic) the information necessary to enable the
physician to prescribe or give treatment to the patient Nelly Lim. And neither does the
information obtained from the physician tend to blacken the character of the patient or
bring disgrace to her or invite reproach. Dr. Acampado is a Medical Specialist II and incharge (sic) of the Female Service of the National Center for Mental Health a fellow of the
Philippine Psychiatrist Association and a Diplomate of the Philippine Board of Psychiatrists.
She was summoned to testify as an expert witness and not as an attending physician of
petitioner.
After a careful scrutiny of the transcript of Dr. Acampados testimony, We find no
declaration that touched (sic) or disclosed any information which she has acquired from
her patient, Nelly Lim, during the period she attended her patient in a professional
capacity. Although she testified that she examined and interviewed the patient, she did
not disclose anything she obtained in the course of her examination, interview and
treatment of her patient. Given a set of facts and asked a hypothetical question, Dr.
Acampado rendered an opinion regarding the history and behaviour of the fictitious
character in the hypothetical problem. The facts and conditions alleged in the
hypothetical problem did not refer and (sic) had no bearing to (sic) whatever information
or findings the doctor obtained from attending the (sic) patient. A physician is not
disqualified to testify as an expert concerning a patients ailment, when he can disregard
knowledge acquired in attending such patient and make answer solely on facts related in
(sic) the hypothetical question. (Butler v. Role, 242 Pac. 436; Supreme Court of Arizona
Jan. 7, 1926). Expert testimony of a physician based on hypothetical question (sic) as to

cause of illness of a person whom he has attended is not privileged, provided the
physician does not give testimony tending to disclose confidential information related to
him in his professional capacity while attending to the patient. (Crago v. City of Cedar
Rapids, 98 NW 354, see Jones on Evidence, Vol. 3, p. 843, 3rd Ed.).
The rule on privilege (sic) communication in the relation of physician and patient proceeds
from the fundamental assumption that the communication to deserve protection must be
confidential in their origin. Confidentiality is not to be blindly implied from the mere
relation of physician and patient. It might be implied according to circumstances of each
case, taking into consideration the nature of the ailment and the occasion of the
consultation. The claimant of the privilege has the burden of establishing in each instance
all the facts necessary to create the privilege, including the confidential nature of the
information given." 4
Her motion to reconsider the resolution having been denied, petitioner took this recourse
under Rule 45 of the Rules of Court. In her view, the respondent Court of Appeals
"seriously erred" :chanrob1es virtual 1aw library
"I.
. . . in not finding that all the essential elements of the rule on physician-patient privileged
communication under Section 21, Rule 130 of the Rules of Court (Section 24, Rule 130 of
the Revised Rules of Evidence) exist in the case at bar.
II.
. . . in believing that Dr. Acampado was summoned as an expert witness and not as an
attending physician of petitioner.
III.
. . . in concluding that Dr. Acampado made no declaration that touched (sic) or disclosed
any information which she has acquired from her patient, Nelly Lim, during the period she
attended her patient in a professional capacity.
IV.

The law in point is paragraph (c), Section 24 of the Revised Rules on Evidence which
reads:jgc:chanrobles.com.ph
"SECTION 24. Disqualification by reason of privileged communication. The following
persons cannot testify as to matters learned in confidence in the following
cases:chanrob1es virtual 1aw library
x

(c)
A person authorized to practice medicine, surgery or obstetrics cannot in a civil
case, without the consent of the patient, be examined as to any advice or treatment given
by him or any information which he may have acquired in attending such patient in a
professional capacity, which information was necessary to enable him to act in that
capacity, and which would blacken the reputation of the patient." chanrobles virtual
lawlibrary
This is a reproduction of paragraph (c), Section 21, Rule 130 of the 1964 Revised Rules of
Court with two (2) modifications, namely: (a) the inclusion of the phrase "advice or
treatment given by him," and (b) substitution of the word reputation for the word
character. Said Section 21 in turn is a reproduction of paragraph (f), Section 26, Rule 123
of the 1940 Rules of Court with a modification consisting in the change of the phrase
"which would tend to blacken" in the latter to "would blacken." 9 Verily, these changes
affected the meaning of the provision. Under the 1940 Rules of Court, it was sufficient if
the information would tend to blacken the character of the patient. In the 1964 Rules of
Court, a stricter requirement was imposed; it was imperative that the information would
blacken such character. With the advent of the Revised Rules on Evidence on 1 July 1989,
the rule was relaxed once more by the substitution of the word character with the word
reputation. There is a distinction between these two concepts." Character is what a man
is, and reputation is what he is supposed to be in what people say he is.Character
depends on attributes possessed, and reputation on attributes which others believe one
to possess. The former signifies reality and the latter merely what is accepted to be reality
at present." 10
This rule on the physician-patient privilege is intended to facilitate and make safe full and
confidential disclosure by the patient to the physician of all facts, circumstances and
symptoms, untrammeled by apprehension of their subsequent and enforced disclosure
and publication on the witness stand, to the end that the physician may form a correct
opinion, and be enabled safely and efficaciously to treat his patient. 11 It rests in public
policy and is for the general interest of the community. 12

. . . in declaring that the petitioner failed in establishing the confidential nature of the
testimony given by or obtained from Dr. Acampado." 5

Since the object of the privilege is to protect the patient, it may be waived if no timely
objection is made to the physicians testimony. 13

We gave due course to the petition and required the parties to submit their respective
Memoranda 6 after the private respondent filed his Comment 7 and the petitioner
submitted her reply 8 thereto. The parties subsequently filed their separate Memoranda.

In order that the privilege may be successfully claimed, the following requisites must
concur:jgc:chanrobles.com.ph
"1.

The petition is devoid of any merit. Respondent Court of Appeals committed no reversible
error in its challenged resolution.

the privilege is claimed in a civil case;

2.
the person against whom the privilege is claimed is one duly authorized to
practice medicine, surgery or obstetrics;

3.
such person acquired the information while he was attending to the patient in his
professional capacity;
4.

the information was necessary to enable him to act in that capacity; and

5.
the information was confidential, and, if disclosed, would blacken the reputation
(formerly character) of the patient." 14
These requisites conform with the four (4) fundamental conditions necessary for the
establishment of a privilege against the disclosure of certain communications, to
wit:jgc:chanrobles.com.ph
"1.
The communications must originate in a confidence that they will not be
disclosed.
2.
This element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties.
3.
The relation must be one which in the opinion of the community ought to be
sedulously fostered
4.
The injury that would inure to the relation by the disclosure of the
communications must be greater than the benefit thereby gained for the correct disposal
of litigation." 15

her testimony before the trial court cannot then be excluded. The rule on this point is
summarized as follows:chanrobles virtual lawlibrary
"The predominating view, with some scant authority otherwise, is that the statutory
physician-patient privilege, though duly claimed, is not violated by permitting a physician
to give expert opinion testimony in response to a strictly hypothetical question in a
lawsuit involving the physical mental condition of a patient whom he has attended
professionally, where his opinion is based strictly upon the hypothetical facts stated,
excluding and disregarding any personal professional knowledge he may have concerning
such patient. But in order to avoid the bar of the physician-patient privilege where it is
asserted in such a case, the physician must base his opinion solely upon the facts
hypothesized in the question, excluding from consideration his personal knowledge of the
patient acquired through the physician and patient relationship. If he cannot or does not
exclude from consideration his personal professional knowledge of the patients condition
he should not be permitted to testify as to his expert opinion." 19
Secondly, it is quite clear from Dr. Acampados testimony that the petitioner was never
interviewed alone. Said interviews were always conducted in the presence of a third party,
thus:jgc:chanrobles.com.ph
"Q

A
I interviewed the husband first, then the father and after having the history, I
interviewed the patient, Nelly.
Q

The physician may be considered to be acting in his professional capacity when he


attends to the patient for curative, preventive, or palliative treatment. Thus, only
disclosures which would have been made to the physician to enable him "safely and
efficaciously to treat his patient" are covered by the privilege. 16 It is to be emphasized
that "it is the tenor only of the communication that is privileged. The mere fact of making
a communication, as well as the date of a consultation and the number of consultations,
are therefore not privileged from disclosure, so long as the subject communicated is not
stated." 17
One who claims this privilege must prove the presence of these aforementioned
requisites. 18
Our careful evaluation of the submitted pleadings leads Us to no other course of action
but to agree with the respondent Courts observation that the petitioner failed to
discharge that burden. In the first place, Dr. Acampado was presented and qualified as an
expert witness. As correctly held by the Court of Appeals, she did not disclose anything
obtained in the course of her examination, interview and treatment of the petitioner;
moreover, the facts and conditions alleged in the hypothetical problem did not refer to
and had no bearing on whatever information or findings the doctor obtained while
attending to the patient. There is, as well, no showing that Dr. Acampados answers to the
questions propounded to her relating to the hypothetical problem were influenced by the
information obtained from the petitioner. Otherwise stated, her expert opinion excluded
whatever information or knowledge she had about the petitioner which was acquired by
reason of the physician-patient relationship existing between them. As an expert witness,

I am asking you, doctor, whom did you interview?

How many times did Juan Sim and Nelly Lim go to your office?

A
Now, the two (2) of them came three (3) times. As I have stated before, once in
the month of April of 1987 and two (2) times for the month of June 1987, and after that,
since July of 1987, it was the father of Nelly, Dr. Lim, who was bringing Nelly to me until
November of 1987.
Q

Now, Dr. Lim is a fellow physician?

Yes, I understand.

Was there anything that he told you when he visited with you in a clinic?

A
I would say that there was none. Even if I asked information about Nelly, I could
not get anything from Dr. Lim.
Q
Now, when Dr. Lim and his daughter went to your clinic, was there any doctor who
was also present during that interview?
A

No, sir, I dont remember any." 20

There is authority to the effect that information elicited during consultation with a
physician in the presence of third parties removes such information from the mantle of
the privilege:jgc:chanrobles.com.ph

"Some courts have held that the casual presence of a third person destroys the
confidential nature of the communication between doctor and patient and thus destroys
the privilege, and that under such circumstances the doctor may testify. Other courts
have reached a contrary result." 21
Thirdly, except for the petitioners sweeping claim that" (T)he information given by Dr.
Acampado brings disgrace and invite (sic) reproach to petitioner by falsely making it
appear in the eyes of the trial court and the public that the latter was suffering from a
mental disturbance called schizophrenia which caused, and continues to cause,
irreparable injury to the name and reputation of petitioner and her family," 22 which is
based on a wrong premise, nothing specific or concrete was offered to show that indeed,
the information obtained from Dr. Acampado would blacken the formers "character" (or
"reputation"). Dr. Acampado never disclosed any information obtained from the petitioner
regarding the latters ailment and the treatment recommended therefor.chanrobles.com :
virtual law library
Finally, while it may be true that counsel for the petitioner opposed the oral request for
the issuance of a subpoena ad testificandum to Dr. Acampado and filed a formal motion
for the quashal of the said subpoena a day before the witness was to testify, the
petitioner makes no claim in any of her pleadings that her counsel had objected to any
question asked of the witness on the ground that it elicited an answer that would violate
the privilege, despite the trial courts advise that said counsel may interpose his objection
to the testimony "once it becomes apparent that the testimony, sought to be elicited is
covered by the privileged communication rule." The particular portions of the
stenographic notes of the testimony of Dr. Acampado quoted in the petitioners Petition 23
and Memorandum, 24 and in the private respondents Memorandum, 25 do not at all
show that any objections were interposed. Even granting ex gratia that the testimony of
Dr. Acampado could be covered by the privilege, the failure to seasonably object thereto
amounted to a waiver thereof.
WHEREFORE, the instant petition is DENIED for lack of merit.
Costs against petitioner.
SO ORDERED.

G.R. No. 165279

June 7, 2011

DR. RUBI LI, Petitioner,


vs.
SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of deceased Angelica Soliman,
Respondents.
DECISION

precautions in detecting early the symptoms of fatal blood platelet decrease and stopping
early on the chemotherapy, which bleeding led to hypovolemic shock that caused
Angelicas untimely demise. Further, it was specifically averred that petitioner assured the
respondents that Angelica would recover in view of 95% chance of healing with
chemotherapy ("Magiging normal na ang anak nyo basta ma-chemo. 95% ang healing")
and when asked regarding the side effects, petitioner mentioned only slight vomiting, hair
loss and weakness ("Magsusuka ng kaunti. Malulugas ang buhok. Manghihina").
Respondents thus claimed that they would not have given their consent to chemotherapy
had petitioner not falsely assured them of its side effects.

VILLARAMA, JR., J.:


Challenged in this petition for review on certiorari is the Decision1 dated June 15, 2004 as
well as the Resolution2 dated September 1, 2004 of the Court of Appeals (CA) in CA-G.R.
CV No. 58013 which modified the Decision3 dated September 5, 1997 of the Regional Trial
Court of Legazpi City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a biopsy
of the mass located in her lower extremity at the St. Lukes Medical Center (SLMC).
Results showed that Angelica was suffering from osteosarcoma, osteoblastic type,4 a
high-grade (highly malignant) cancer of the bone which usually afflicts teenage children.
Following this diagnosis and as primary intervention, Angelicas right leg was amputated
by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment to eliminate any
remaining cancer cells, and hence minimize the chances of recurrence and prevent the
disease from spreading to other parts of the patients body (metastasis), chemotherapy
was suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another doctor at SLMC,
herein petitioner Dr. Rubi Li, a medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1,
1993, just eleven (11) days after the (intravenous) administration of the first cycle of the
chemotherapy regimen. Because SLMC refused to release a death certificate without full
payment of their hospital bill, respondents brought the cadaver of Angelica to the
Philippine National Police (PNP) Crime Laboratory at Camp Crame for post-mortem
examination. The Medico-Legal Report issued by said institution indicated the cause of
death as "Hypovolemic shock secondary to multiple organ hemorrhages and
Disseminated Intravascular Coagulation."5
On the other hand, the Certificate of Death6 issued by SLMC stated the cause of death as
follows:
Immediate cause : a. Osteosarcoma, Status Post AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy
On February 21, 1994, respondents filed a damage suit7 against petitioner, Dr. Leo
Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged them
with negligence and disregard of Angelicas safety, health and welfare by their careless
administration of the chemotherapy drugs, their failure to observe the essential

In her answer,8 petitioner denied having been negligent in administering the


chemotherapy drugs to Angelica and asserted that she had fully explained to respondents
how the chemotherapy will affect not only the cancer cells but also the patients normal
body parts, including the lowering of white and red blood cells and platelets. She claimed
that what happened to Angelica can be attributed to malignant tumor cells possibly left
behind after surgery. Few as they may be, these have the capacity to compete for
nutrients such that the body becomes so weak structurally (cachexia) and functionally in
the form of lower resistance of the body to combat infection. Such infection becomes
uncontrollable and triggers a chain of events (sepsis or septicemia) that may lead to
bleeding in the form of Disseminated Intravascular Coagulation (DIC), as what the autopsy
report showed in the case of Angelica.
Since the medical records of Angelica were not produced in court, the trial and appellate
courts had to rely on testimonial evidence, principally the declarations of petitioner and
respondents themselves. The following chronology of events was gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery
and discussed with them Angelicas condition. Petitioner told respondents that Angelica
should be given two to three weeks to recover from the operation before starting
chemotherapy. Respondents were apprehensive due to financial constraints as Reynaldo
earns only from P70,000.00 to P150,000.00 a year from his jewelry and watch repairing
business.9 Petitioner, however, assured them not to worry about her professional fee and
told them to just save up for the medicines to be used.
Petitioner claimed that she explained to respondents that even when a tumor is removed,
there are still small lesions undetectable to the naked eye, and that adjuvant
chemotherapy is needed to clean out the small lesions in order to lessen the chance of
the cancer to recur. She did not give the respondents any assurance that chemotherapy
will cure Angelicas cancer. During these consultations with respondents, she explained
the following side effects of chemotherapy treatment to respondents: (1) falling hair; (2)
nausea and vomiting; (3) loss of appetite; (4) low count of white blood cells [WBC], red
blood cells [RBC] and platelets; (5) possible sterility due to the effects on Angelicas
ovary; (6) damage to the heart and kidneys; and (7) darkening of the skin especially when
exposed to sunlight. She actually talked with respondents four times, once at the hospital
after the surgery, twice at her clinic and the fourth time when Angelicas mother called
her through long distance.10 This was disputed by respondents who countered that
petitioner gave them assurance that there is 95% chance of healing for Angelica if she
undergoes chemotherapy and that the only side effects were nausea, vomiting and hair
loss.11 Those were the only side-effects of chemotherapy treatment mentioned by
petitioner.12

On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be
readmitted after two or three weeks for the chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing
with them the results of the laboratory tests requested by petitioner: Angelicas chest xray, ultrasound of the liver, creatinine and complete liver function tests.13 Petitioner
proceeded with the chemotherapy by first administering hydration fluids to Angelica.14
The following day, August 19, petitioner began administering three chemotherapy drugs
Cisplatin,15 Doxorubicin16 and Cosmegen17 intravenously. Petitioner was supposedly
assisted by her trainees Dr. Leo Marbella18 and Dr. Grace Arriete.19 In his testimony, Dr.
Marbella denied having any participation in administering the said chemotherapy
drugs.20
On the second day of chemotherapy, August 20, respondents noticed reddish
discoloration on Angelicas face.21 They asked petitioner about it, but she merely
quipped, "Wala yan. Epekto ng gamot."22 Petitioner recalled noticing the skin rashes on
the nose and cheek area of Angelica. At that moment, she entertained the possibility that
Angelica also had systemic lupus and consulted Dr. Victoria Abesamis on the matter.23
On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was
thus provided with oxygen inhalation apparatus. This time, the reddish discoloration on
Angelicas face had extended to her neck, but petitioner dismissed it again as merely the
effect of medicines.24 Petitioner testified that she did not see any discoloration on
Angelicas face, nor did she notice any difficulty in the childs breathing. She claimed that
Angelica merely complained of nausea and was given ice chips.251avvphi1
On August 22, 1993, at around ten oclock in the morning, upon seeing that their child
could not anymore bear the pain, respondents pleaded with petitioner to stop the
chemotherapy. Petitioner supposedly replied: "Dapat 15 Cosmegen pa iyan. Okay, lets
observe. If pwede na, bigyan uli ng chemo." At this point, respondents asked petitioners
permission to bring their child home. Later in the evening, Angelica passed black stool
and reddish urine.26 Petitioner countered that there was no record of blackening of stools
but only an episode of loose bowel movement (LBM). Petitioner also testified that what
Angelica complained of was carpo-pedal spasm, not convulsion or epileptic attack, as
respondents call it (petitioner described it in the vernacular as "naninigas ang kamay at
paa"). She then requested for a serum calcium determination and stopped the
chemotherapy. When Angelica was given calcium gluconate, the spasm and numbness
subsided.27
The following day, August 23, petitioner yielded to respondents request to take Angelica
home. But prior to discharging Angelica, petitioner requested for a repeat serum calcium
determination and explained to respondents that the chemotherapy will be temporarily
stopped while she observes Angelicas muscle twitching and serum calcium level. Takehome medicines were also prescribed for Angelica, with instructions to respondents that
the serum calcium test will have to be repeated after seven days. Petitioner told
respondents that she will see Angelica again after two weeks, but respondents can see
her anytime if any immediate problem arises.28

However, Angelica remained in confinement because while still in the premises of SLMC,
her "convulsions" returned and she also had LBM. Angelica was given oxygen and
administration of calcium continued.29
The next day, August 24, respondents claimed that Angelica still suffered from
convulsions. They also noticed that she had a fever and had difficulty breathing.30
Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified that at around
4:50 that afternoon, Angelica developed difficulty in breathing and had fever. She then
requested for an electrocardiogram analysis, and infused calcium gluconate on the patient
at a "stat dose." She further ordered that Angelica be given Bactrim,31 a synthetic
antibacterial combination drug,32 to combat any infection on the childs body.33
By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on
her anus and urine. When Lina asked petitioner what was happening to her daughter,
petitioner replied, "Bagsak ang platelets ng anak mo." Four units of platelet concentrates
were then transfused to Angelica. Petitioner prescribed Solucortef. Considering that
Angelicas fever was high and her white blood cell count was low, petitioner prescribed
Leucomax. About four to eight bags of blood, consisting of packed red blood cells, fresh
whole blood, or platelet concentrate, were transfused to Angelica. For two days (August
27 to 28), Angelica continued bleeding, but petitioner claimed it was lesser in amount and
in frequency. Petitioner also denied that there were gadgets attached to Angelica at that
time.34
On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood
clots that should not be removed. Respondents claimed that Angelica passed about half a
liter of blood through her anus at around seven oclock that evening, which petitioner
likewise denied.
On August 30, Angelica continued bleeding. She was restless as endotracheal and
nasogastric tubes were inserted into her weakened body. An aspiration of the nasogastric
tube inserted to Angelica also revealed a bloody content. Angelica was given more
platelet concentrate and fresh whole blood, which petitioner claimed improved her
condition. Petitioner told Angelica not to remove the endotracheal tube because this may
induce further bleeding.35 She was also transferred to the intensive care unit to avoid
infection.
The next day, respondents claimed that Angelica became hysterical, vomited blood and
her body turned black. Part of Angelicas skin was also noted to be shredding by just
rubbing cotton on it. Angelica was so restless she removed those gadgets attached to her,
saying "Ayaw ko na"; there were tears in her eyes and she kept turning her head.
Observing her daughter to be at the point of death, Lina asked for a doctor but the latter
could not answer her anymore.36 At this time, the attending physician was Dr. Marbella
who was shaking his head saying that Angelicas platelets were down and respondents
should pray for their daughter. Reynaldo claimed that he was introduced to a pediatrician
who took over his daughters case, Dr. Abesamis who also told him to pray for his
daughter. Angelica continued to have difficulty in her breathing and blood was being
suctioned from her stomach. A nurse was posted inside Angelicas room to assist her
breathing and at one point they had to revive Angelica by pumping her chest. Thereafter,
Reynaldo claimed that Angelica already experienced difficulty in urinating and her bowel
consisted of blood-like fluid. Angelica requested for an electric fan as she was in pain.
Hospital staff attempted to take blood samples from Angelica but were unsuccessful

because they could not even locate her vein. Angelica asked for a fruit but when it was
given to her, she only smelled it. At this time, Reynaldo claimed he could not find either
petitioner or Dr. Marbella. That night, Angelica became hysterical and started removing
those gadgets attached to her. At three oclock in the morning of September 1, a priest
came and they prayed before Angelica expired. Petitioner finally came back and
supposedly told respondents that there was "malfunction" or bogged-down machine.37
By petitioners own account, Angelica was merely irritable that day (August 31). Petitioner
noted though that Angelicas skin was indeed sloughing off.38 She stressed that at 9:30 in
the evening, Angelica pulled out her endotracheal tube.39 On September 1, exactly two
weeks after being admitted at SLMC for chemotherapy, Angelica died.40 The cause of
death, according to petitioner, was septicemia, or overwhelming infection, which caused
Angelicas other organs to fail.41 Petitioner attributed this to the patients poor defense
mechanism brought about by the cancer itself.42
While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed that
petitioner acted arrogantly and called him names. He was asked to sign a promissory note
as he did not have cash to pay the hospital bill.43
Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer
of the PNP-Crime Laboratory who conducted the autopsy on Angelicas cadaver, and Dr.
Melinda Vergara Balmaceda who is a Medical Specialist employed at the Department of
Health (DOH) Operations and Management Services.
Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the
following: (1) there were fluids recovered from the abdominal cavity, which is not normal,
and was due to hemorrhagic shock secondary to bleeding; (2) there was hemorrhage at
the left side of the heart; (3) bleeding at the upper portion of and areas adjacent to, the
esophagus; (4) lungs were heavy with bleeding at the back and lower portion, due to
accumulation of fluids; (4) yellowish discoloration of the liver; (5) kidneys showed
appearance of facial shock on account of hemorrhages; and (6) reddishness on external
surface of the spleen. All these were the end result of "hypovolemic shock secondary to
multiple organ hemorrhages and disseminated intravascular coagulation." Dr. Vergara
opined that this can be attributed to the chemical agents in the drugs given to the victim,
which caused platelet reduction resulting to bleeding sufficient to cause the victims
death. The time lapse for the production of DIC in the case of Angelica (from the time of
diagnosis of sarcoma) was too short, considering the survival rate of about 3 years. The
witness conceded that the victim will also die of osteosarcoma even with amputation or
chemotherapy, but in this case Angelicas death was not caused by osteosarcoma. Dr.
Vergara admitted that she is not a pathologist but her statements were based on the
opinion of an oncologist whom she had interviewed. This oncologist supposedly said that
if the victim already had DIC prior to the chemotherapy, the hospital staff could have
detected it.44
On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain
to the patient or his relatives every known side effect of the procedure or therapeutic
agents to be administered, before securing the consent of the patient or his relatives to
such procedure or therapy. The physician thus bases his assurance to the patient on his
personal assessment of the patients condition and his knowledge of the general effects of
the agents or procedure that will be allowed on the patient. Dr. Balmaceda stressed that

the patient or relatives must be informed of all known side effects based on studies and
observations, even if such will aggravate the patients condition.45
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity,
testified for the defendants. He explained that in case of malignant tumors, there is no
guarantee that the ablation or removal of the amputated part will completely cure the
cancer. Thus, surgery is not enough. The mortality rate of osteosarcoma at the time of
modern chemotherapy and early diagnosis still remains at 80% to 90%. Usually, deaths
occur from metastasis, or spread of the cancer to other vital organs like the liver, causing
systemic complications. The modes of therapy available are the removal of the primary
source of the cancerous growth and then the residual cancer cells or metastasis should be
treated with chemotherapy. Dr. Tamayo further explained that patients with osteosarcoma
have poor defense mechanism due to the cancer cells in the blood stream. In the case of
Angelica, he had previously explained to her parents that after the surgical procedure,
chemotherapy is imperative so that metastasis of these cancer cells will hopefully be
addressed. He referred the patient to petitioner because he felt that petitioner is a
competent oncologist. Considering that this type of cancer is very aggressive and will
metastasize early, it will cause the demise of the patient should there be no early
intervention (in this case, the patient developed sepsis which caused her death). Cancer
cells in the blood cannot be seen by the naked eye nor detected through bone scan. On
cross-examination, Dr. Tamayo stated that of the more than 50 child patients who had
osteogenic sarcoma he had handled, he thought that probably all of them died within six
months from amputation because he did not see them anymore after follow-up; it is either
they died or had seen another doctor.46
In dismissing the complaint, the trial court held that petitioner was not liable for damages
as she observed the best known procedures and employed her highest skill and
knowledge in the administration of chemotherapy drugs on Angelica but despite all efforts
said patient died. It cited the testimony of Dr. Tamayo who testified that he considered
petitioner one of the most proficient in the treatment of cancer and that the patient in this
case was afflicted with a very aggressive type of cancer necessitating chemotherapy as
adjuvant treatment. Using the standard of negligence laid down in Picart v. Smith,47 the
trial court declared that petitioner has taken the necessary precaution against the adverse
effect of chemotherapy on the patient, adding that a wrong decision is not by itself
negligence. Respondents were ordered to pay their unpaid hospital bill in the amount of
P139,064.43.48
Respondents appealed to the CA which, while concurring with the trial courts finding that
there was no negligence committed by the petitioner in the administration of
chemotherapy treatment to Angelica, found that petitioner as her attending physician
failed to fully explain to the respondents all the known side effects of chemotherapy. The
appellate court stressed that since the respondents have been told of only three side
effects of chemotherapy, they readily consented thereto. Had petitioner made known to
respondents those other side effects which gravely affected their child -- such as carpopedal spasm, sepsis, decrease in the blood platelet count, bleeding, infections and
eventual death -- respondents could have decided differently or adopted a different
course of action which could have delayed or prevented the early death of their child.
The CA thus declared:

Plaintiffs-appellants child was suffering from a malignant disease. The attending


physician recommended that she undergo chemotherapy treatment after surgery in order
to increase her chances of survival. Appellants consented to the chemotherapy treatment
because they believed in Dr. Rubi Lis representation that the deceased would have a
strong chance of survival after chemotherapy and also because of the representation of
appellee Dr. Rubi Li that there were only three possible side-effects of the treatment.
However, all sorts of painful side-effects resulted from the treatment including the
premature death of Angelica. The appellants were clearly and totally unaware of these
other side-effects which manifested only during the chemotherapy treatment. This was
shown by the fact that every time a problem would take place regarding Angelicas
condition (like an unexpected side-effect manifesting itself), they would immediately seek
explanation from Dr. Rubi Li. Surely, those unexpected side-effects culminating in the loss
of a love[d] one caused the appellants so much trouble, pain and suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would
entitle plaintiffs-appellants to their claim for damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is
hereby modified to the extent that defendant-appellee Dr. Rubi Li is ordered to pay the
plaintiffs-appellants the following amounts:

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

1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;

3. Exemplary damages of P50,000.00;

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.

4. Attorneys fee of P30,000.00.

The petition is meritorious.

SO ORDERED.49 (Emphasis supplied.)

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

2. Moral damages of P200,000.00;

Petitioner filed a motion for partial reconsideration which the appellate court denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in not explaining to the
respondents all the possible side effects of the chemotherapy on their child, and in
holding her liable for actual, moral and exemplary damages and attorneys fees. Petitioner
emphasized that she was not negligent in the pre-chemotherapy procedures and in the
administration of chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects of chemotherapy, including
death, petitioner argues that it was foolhardy to imagine her to be allknowing/omnipotent. While the theoretical side effects of chemotherapy were explained
by her to the respondents, as these should be known to a competent doctor, petitioner
cannot possibly predict how a particular patients genetic make-up, state of mind, general
health and body constitution would respond to the treatment. These are obviously
dependent on too many known, unknown and immeasurable variables, thus requiring that
Angelica be, as she was, constantly and closely monitored during the treatment. Petitioner

This Court has recognized that medical negligence cases are best proved by opinions of
expert witnesses belonging in the same general neighborhood and in the same general
line of practice as defendant physician or surgeon. The deference of courts to the expert
opinion of qualified physicians stems from the formers realization that the latter possess
unusual technical skills which laymen in most instances are incapable of intelligently
evaluating, hence the indispensability of expert testimonies.52
In this case, both the trial and appellate courts concurred in finding that the alleged
negligence of petitioner in the administration of chemotherapy drugs to respondents
child was not proven considering that Drs. Vergara and Balmaceda, not being oncologists
or cancer specialists, were not qualified to give expert opinion as to whether petitioners

lack of skill, knowledge and professional competence in failing to observe the standard of
care in her line of practice was the proximate cause of the patients death. Furthermore,
respondents case was not at all helped by the non-production of medical records by the
hospital (only the biopsy result and medical bills were submitted to the court).
Nevertheless, the CA found petitioner liable for her failure to inform the respondents on all
possible side effects of chemotherapy before securing their consent to the said treatment.
The doctrine of informed consent within the context of physician-patient relationships
goes far back into English common law. As early as 1767, doctors were charged with the
tort of "battery" (i.e., an unauthorized physical contact with a patient) if they had not
gained the consent of their patients prior to performing a surgery or procedure. In the
United States, the seminal case was Schoendorff v. Society of New York Hospital53 which
involved unwanted treatment performed by a doctor. Justice Benjamin Cardozos oftquoted opinion upheld the basic right of a patient to give consent to any medical
procedure or treatment: "Every human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a surgeon who performs an
operation without his patients consent, commits an assault, for which he is liable in
damages."54 From a purely ethical norm, informed consent evolved into a general
principle of law that a physician has a duty to disclose what a reasonably prudent
physician in the medical community in the exercise of reasonable care would disclose to
his patient as to whatever grave risks of injury might be incurred from a proposed course
of treatment, so that a patient, exercising ordinary care for his own welfare, and faced
with a choice of undergoing the proposed treatment, or alternative treatment, or none at
all, may intelligently exercise his judgment by reasonably balancing the probable risks
against the probable benefits.55
Subsequently, in Canterbury v. Spence56 the court observed that the duty to disclose
should not be limited to medical usage as to arrogate the decision on revelation to the
physician alone. Thus, respect for the patients right of self-determination on particular
therapy demands a standard set by law for physicians rather than one which physicians
may or may not impose upon themselves.57 The scope of disclosure is premised on the
fact that patients ordinarily are persons unlearned in the medical sciences. Proficiency in
diagnosis and therapy is not the full measure of a physicians responsibility. It is also his
duty to warn of the dangers lurking in the proposed treatment and to impart information
which the patient has every right to expect. Indeed, the patients reliance upon the
physician is a trust of the kind which traditionally has exacted obligations beyond those
associated with armslength transactions.58 The physician is not expected to give the
patient a short medical education, the disclosure rule only requires of him a reasonable
explanation, which means generally informing the patient in nontechnical terms as to
what is at stake; the therapy alternatives open to him, the goals expectably to be
achieved, and the risks that may ensue from particular treatment or no treatment.59 As
to the issue of demonstrating what risks are considered material necessitating disclosure,
it was held that experts are unnecessary to a showing of the materiality of a risk to a
patients decision on treatment, or to the reasonably, expectable effect of risk disclosure
on the decision. Such unrevealed risk that should have been made known must further
materialize, for otherwise the omission, however unpardonable, is without legal
consequence. And, as in malpractice actions generally, there must be a causal
relationship between the physicians failure to divulge and damage to the patient.60
Reiterating the foregoing considerations, Cobbs v. Grant61 deemed it as integral part of
physicians overall obligation to patient, the duty of reasonable disclosure of available

choices with respect to proposed therapy and of dangers inherently and potentially
involved in each. However, the physician is not obliged to discuss relatively minor risks
inherent in common procedures when it is common knowledge that such risks inherent in
procedure of very low incidence. Cited as exceptions to the rule that the patient should
not be denied the opportunity to weigh the risks of surgery or treatment are emergency
cases where it is evident he cannot evaluate data, and where the patient is a child or
incompetent.62 The court thus concluded that the patients right of self-decision can only
be effectively exercised if the patient possesses adequate information to enable him in
making an intelligent choice. The scope of the physicians communications to the patient,
then must be measured by the patients need, and that need is whatever information is
material to the decision. The test therefore for determining whether a potential peril must
be divulged is its materiality to the patients decision.63
Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for
liability of the physician for failure to inform patient, there must be causal relationship
between physicians failure to inform and the injury to patient and such connection arises
only if it is established that, had revelation been made, consent to treatment would not
have been given.
There are four essential elements a plaintiff must prove in a malpractice action based
upon the doctrine of informed consent: "(1) the physician had a duty to disclose material
risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and
proximate result of the failure to disclose, the patient consented to treatment she
otherwise would not have consented to; and (4) plaintiff was injured by the proposed
treatment." The gravamen in an informed consent case requires the plaintiff to "point to
significant undisclosed information relating to the treatment which would have altered her
decision to undergo it.64
Examining the evidence on record, we hold that there was adequate disclosure of material
risks inherent in the chemotherapy procedure performed with the consent of Angelicas
parents. Respondents could not have been unaware in the course of initial treatment and
amputation of Angelicas lower extremity, that her immune system was already weak on
account of the malignant tumor in her knee. When petitioner informed the respondents
beforehand of the side effects of chemotherapy which includes lowered counts of white
and red blood cells, decrease in blood platelets, possible kidney or heart damage and skin
darkening, there is reasonable expectation on the part of the doctor that the respondents
understood very well that the severity of these side effects will not be the same for all
patients undergoing the procedure. In other words, by the nature of the disease itself,
each patients reaction to the chemical agents even with pre-treatment laboratory tests
cannot be precisely determined by the physician. That death can possibly result from
complications of the treatment or the underlying cancer itself, immediately or sometime
after the administration of chemotherapy drugs, is a risk that cannot be ruled out, as with
most other major medical procedures, but such conclusion can be reasonably drawn from
the general side effects of chemotherapy already disclosed.
As a physician, petitioner can reasonably expect the respondents to have considered the
variables in the recommended treatment for their daughter afflicted with a lifethreatening illness. On the other hand, it is difficult to give credence to respondents claim
that petitioner told them of 95% chance of recovery for their daughter, as it was unlikely
for doctors like petitioner who were dealing with grave conditions such as cancer to have
falsely assured patients of chemotherapys success rate. Besides, informed consent laws

in other countries generally require only a reasonable explanation of potential harms, so


specific disclosures such as statistical data, may not be legally necessary.65
The element of ethical duty to disclose material risks in the proposed medical treatment
cannot thus be reduced to one simplistic formula applicable in all instances. Further, in a
medical malpractice action based on lack of informed consent, "the plaintiff must prove
both the duty and the breach of that duty through expert testimony.66 Such expert
testimony must show the customary standard of care of physicians in the same practice
as that of the defendant doctor.67
In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical
Specialist of the DOHs Operational and Management Services charged with receiving
complaints against hospitals, does not qualify as expert testimony to establish the
standard of care in obtaining consent for chemotherapy treatment. In the absence of
expert testimony in this regard, the Court feels hesitant in defining the scope of
mandatory disclosure in cases of malpractice based on lack of informed consent, much
less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be
an evolving one.
As society has grappled with the juxtaposition between personal autonomy and the
medical profession's intrinsic impetus to cure, the law defining "adequate" disclosure has
undergone a dynamic evolution. A standard once guided solely by the ruminations of
physicians is now dependent on what a reasonable person in the patients position
regards as significant. This change in perspective is especially important as medical
breakthroughs move practitioners to the cutting edge of technology, ever encountering

new and heretofore unimagined treatments for currently incurable diseases or ailments.
An adaptable standard is needed to account for this constant progression.
Reasonableness analyses permeate our legal system for the very reason that they are
determined by social norms, expanding and contracting with the ebb and flow of societal
evolution.
As we progress toward the twenty-first century, we now realize that the legal standard of
disclosure is not subject to construction as a categorical imperative. Whatever formulae or
processes we adopt are only useful as a foundational starting point; the particular quality
or quantity of disclosure will remain inextricably bound by the facts of each case.
Nevertheless, juries that ultimately determine whether a physician properly informed a
patient are inevitably guided by what they perceive as the common expectation of the
medical consumer"a reasonable person in the patients position when deciding to
accept or reject a recommended medical procedure."68 (Emphasis supplied.)
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June
15, 2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R.
CV No. 58013 are SET ASIDE.
The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch
8, in Civil Case No. 8904 is REINSTATED and UPHELD.
No costs.
SO ORDERED.