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G.R. No. 73998 November 14, 1988


PEDRO
T.
LAYUGAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO
ISIDRO,
and
TRAVELLERS
MULTI-INDEMNITY
CORPORATION, respondents.
Edralin S. Mateo for petitioner.
Orlando L. Espinas
Indemnity Corp.

for

respondent

Travellers

Multi-

Roberto T. Vallarta for respondent Godofredo Isidro.


Assailed in this petition for review on certiorari are 1) the
decision 1 of the then Intermediate Appellate Court 2 in ACG.R. CV No. 01055, entitled "Pedro T. Layugan, PlaintiffAppellee, versus Godofredo Isidro, Defendant-Appellant
and Third-Party Plaintiff-Appellee, versus Travellers MultiIndemnity Corporation, Third Party Defendant- Appellant,
"which reversed and set aside the decision 3 of the
Regional Trial Court, Third Judicial Region, Branch XXVI,
Cabanatuan City, and also dismissed the complaint, third
party complaint, and the counter claims of the parties and
2) the resolution 4 denying the plaintiff-appellee's (herein
petitioner) motion for reconsideration, for lack of merit.
The findings of fact by the trial court which were adopted
by the appellate court are as follows: 5
Pedro T. Layugan filed an action for damages against
Godofredo Isidro, alleging that on May 15, 1979 while at
Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a
companion were repairing the tire of their cargo truck with
Plate No. SU-730 which was parked along the right side of
the National Highway; that defendant's truck bearing Plate
No. PW-583, driven recklessly by Daniel Serrano bumped
the plaintiff, that as a result, plaintiff was injured and
hospitalized at Dr. Paulino J. Garcia Research and Medical
Center and the Our Lady of Lourdes Hospital; that he
spent TEN THOUSAND PESOS (Pl0,000.00) and will incur
more expenses as he recuperates from said injuries; that
because of said injuries he would be deprived of a lifetime
income in the sum of SEVENTY THOUSAND PESOS
(P70,000.00); and that he agreed to pay his lawyer the
sum of TEN THOUSAND PESOS (Pl0,000.00).
As prayed for by the plaintiffs counsel, the Court declared
the defendant in default on October 12, 1979, and
plaintiff's evidence was received ex-parte on January 11,
1978 and February 19, 1980. The decision on behalf of the
plaintiff was set aside to give a chance to the defendant to
file his answer and later on, a third-party complaint.
Defendant admitted his ownership of the vehicle involved
in the accident driven by Daniel Serrano. Defendant
countered that the plaintiff was merely a bystander, not a
truck helper being a brother-in-law law of the driver of said
truck; that the truck allegedly being repaired was parked,
occupying almost half of the right lane towards Solano,
Nueva Vizcaya, right after the curve; that the proximate
cause of the incident was the failure of the driver of the
parked truck in installing the early warning device, hence
the driver of the parked car should be liable for damages
sustained by the truck of the herein defendant in the
amount of more than P20,000.00; that plaintiff being a
mere bystander and hitchhiker must suffer all the
damages he incurred. By way of counterclaim defendant
alleged that due to plaintiffs baseless complaint he was
constrained to engage the services of counsel for
P5,000.00 and P200.00 per court appearance; that he

suffered sleepless nights, humiliation, wounded feelings


which may be estimated at P30.000.00.
On May 29, 1981, a third-party complaint was filed by the
defendant against his insurer, the Travellers Multi
Indemnity Corporation; that the third-party plaintiff,
without admitting his liability to the plaintiff, claimed that
the third-party defendant is liable to the former for
contribution, indemnity and subrogation by virtue of their
contract under Insurance Policy No. 11723 which covers
the insurer's liability for damages arising from death,
bodily injuries and damage to property.
Third-party defendant answered that, even assuming that
the subject matter of the complaint is covered by a valid
and existing insurance policy, its liability shall in no case
exceed the limit defined under the terms and conditions
stated therein; that the complaint is premature as no
claim has been submitted to the third party defendant as
prescribed under the Insurance Code; that the accident in
question was approximately caused by the carelessness
and gross negligence of the plaintiff-, that by reason of the
third-party
complaint,
third-party
defendant
was
constrained to engage the services of counsel for a fee of
P3,000.00.
Pedro Layugan declared that he is a married man with one
(1) child. He was employed as security guard in
Mandaluyong, Metro Manila, with a salary of SIX HUNDRED
PESOS (600.00) a month. When he is off-duty, he worked
as a truck helper and while working as such, he sustained
injuries as a result of the bumping of the cargo truck they
were repairing at Baretbet, Bagabag, Nueva Vizcaya by
the driver of the defendant. He used to earn TWO
HUNDRED PESOS (P200.00) to THREE HUNDRED PESOS
(P300.00) monthly, at the rate of ONE HUNDRED PESOS
(Pl00.00) per trip. Due to said injuries, his left leg was
amputated so he had to use crutches to walk. Prior to the
incident, he supported his family sufficiently, but after
getting injured, his family is now being supported by his
parents and brother.
GODOFREDO ISIDRO, defendant/third-party plaintiff,
testified that his truck involved in this vehicular accident
is insured with the Travellers Multi Indemnity Corporation
covering own damage and third-party liability, under
vehicle policy No. 11723 (Exh. "1") dated May 30, 1978;
that after he filed the insurance claim the insurance
company paid him the sum of P18,000.00 for the damages
sustained by this truck but not the third party liability.
DANIEL SERRANO, defendant driver, declared that he gave
a statement before the municipal police of Bagabag,
Nueva Vizcaya on May 16, 1979; that he knew the
responsibilities of a driver; that before leaving, he checked
the truck. The truck owner used to instruct him to be
careful in driving. He bumped the truck being repaired by
Pedro Layugan, plaintiff, while the same was at a stop
position. From the evidence presented, it has been
established clearly that the injuries sustained by the
plaintiff was caused by defendant's driver, Daniel Serrano.
The police report confirmed the allegation of the plaintiff
and admitted by Daniel Serrano on cross-examination. The
collision dislodged the jack from the parked truck and
pinned the plaintiff to the ground. As a result thereof,
plaintiff sustained injuries on his left forearm and left foot.
The left leg of the plaintiff from below the knee was later
on amputated (Exh. "C") when gangrene had set in,
thereby rendering him incapacitated for work depriving
him of his income. (pp. 118 to 120, Record on Appeal.)

2
Upon such findings, amply supported by the evidence on
record, the trial court rendered its decision, the dispositive
part of which reads as follows: 6
WHEREFORE, premises considered, the defendant is
hereby ordered:
a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00)
PESOS actual and compensatory damages;
b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;
c) FIVE THOUSAND (P5,000.00) PESOS for moral damages;
and
d) To pay the costs of this suit. On the third-party
complaint, the third-party defendant is ordered to
indemnify the defendant/third party plaintiff-.
a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for
actual and compensatory damages; and
b) The costs of this suit.
The Intermediate Appellate Court as earlier stated
reversed the decision of the trial court and dismissed the
complaint, the third-party complaint, and the counterclaims of both appellants. 7
Hence, this petition.
The petitioner alleges the following errors. 8
1. WHETHER UPON THE GIVEN FACTS, THE INTERMEDIATE
APPELLATE COURT ACTED CORRECTLY IN REVERSING AND
SETTING ASIDE AND DISMISSING THE PLAINTIFFAPPELLEE'S COMPLAINT.
2. WHETHER THE INTERMEDIATE APPELLATE COURT
ACTED CORRECTLY IN APPLYING THE DOCTRINE OF "RES
IPSA LOQUITUR" WITH PROPER JURIS- PRUDENTIAL (sic)
BASIS.
The crux of the controversy lies in the correctness or error
of the decision of the respondent court finding the
petitioner negligent under the doctrine of Res ipsa
loquitur (The
thing
speaks
for
itself).<re||
an1w> Corollary thereto, is the question as to who is
negligent, if the doctrine is inapplicable.
The respondent corporation stresses that the issues raised
in the petition being factual, the same is not reviewable by
this Court in a petition for review by certiorari. 9
Indeed, it is an elementary rule in the review of decisions
of the Court of Appeals that its findings of fact are entitled
to great respect and will not ordinarily be disturbed by this
Court. 10 For if we have to review every question of fact
elevated to us, we would hardly have any more time left
for the weightier issues compelling and deserving our
preferential attention. 11 Be that as it may, this rule is not
inflexible. Surely there are established exceptions 12
when the Court should review and rectify the findings of
fact of the lower court, such as:
1) when the conclusion is a finding grounded entirely on
speculation, surmise, or conjecture; 2) the inference made
is manifestly mistaken; 3) there is grave abuse of
discretion; 4) the judgment is based on misapprehension
of facts; 5) the Court of Appeals went beyond the issues of
the case if the findings are contrary to the admission of
both the appellant and the appellee; 6) the findings of the
Court of Appeals are contrary to those of the trial court; 7)
the said findings of fact are conclusions without citation of
specific evidence on which they are based; 8) the facts set
forth in the petition as well as in the petitioner's main and
reply briefs are not disputed by the respondents; and 9)
when the findings of fact of the Court of Appeals are
premised on the absence of evidence and are contradicted
on record.
Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to
warrant a deviation from the general rule.
From its finding that the parked truck was loaded with ten
(10) big round logs 13 the Court of Appeals inferred that
because of its weight the truck could not have been driven

to the shoulder of the road and concluded that the same


was parked on a portion of the road 14 at the time of the
accident. Consequently, the respondent court inferred that
the mishap was due to the negligence of the driver of the
parked truck. 15 The inference or conclusion is manifestly
erroneous. In a large measure, it is grounded on
speculation, surmise, or conjecture. How the respondent
court could have reversed the finding of the trial court
that a warning device was installed 16 escapes us because
it is evident from the record that really such a device, in
the form of a lighted kerosene lamp, was installed by the
driver of the parked truck three to four meters from the
rear of his parked truck. 17 We see this negative finding of
the respondent appellate court as a misreading of the
facts and the evidence on record and directly
contravening the positive finding of the trial court that an
early warning device was in proper place when the
accident happened and that the driver of the private
respondent was the one negligent. On the other hand, the
respondent court, in refusing to give its "imprimatur to the
trial court's finding and conclusion that Daniel Serrano
(private respondent Isidro's driver) was negligent in
driving the truck that bumped the parked truck", did not
cite specific evidence to support its conclusion. In cavalier
fashion, it simply and nebulously adverted to unspecified
"scanty evidence on record." 18
On the technical aspect of the case, the respondent
corporation would want us to dismiss this petition on the
ground that it was filed out of time. It must be noted that
there was a motion for extension, 19 albeit filed
erroneously with the respondent court, dated March 19,
1986, requesting for 30 days from March 20, 1986, to file
the necessary petition or pleading before the Supreme
Court". Also, on April 1, 1986, an appearance of a new
lawyer for the petitioner before the Supreme Court" with
motion 20 was filed, again erroneously, with the Court of
Appeals, requesting for 20 days extension "to file the
Petition for Review on Certiorari." Likewise a similar
motion 21 was filed with this Court also on April 1, 1986.
On the other hand, the instant petition for review was filed
on April 17, 1986 22 but it was only after three months, on
August 1, 1986, in its comment 23 that the respondent
corporation raised the issue of tardiness. The respondent
corporation should not have waited in ambush before the
comment was required and before due course was given.
In any event, to exact its "a pound of flesh", so to speak,
at this very late stage, would cause a grave miscarriage of
justice. Parenthetically, it must be noted that private
respondent Isidro did not raise this issue of late filing.
We now come to the merits of this petition.
The question before us is who was negligent? Negligence
is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate
the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not
do 24 or as Judge Cooley defines it, "(T)he failure to
observe for the protection of the interests of another
person, that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby such
other person suffers injury. 25
In Picart vs. Smith, 26 decided more than seventy years
ago but still a sound rule, we held:
The test by which to determine the existence of
negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act use
that reasonable care and caution which an ordinarily

3
prudent person would have used in the same situation? If
not, then he is guilty of negligence. The law here in effect
adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is
not determined by reference to the personal judgment of
the actor in the situation before him. The Law considers
what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines
liability by that.
Respondent Isidro posits that any immobile object along
the highway, like a parked truck, poses serious danger to
a moving vehicle which has the right to be on the highway.
He argues that since the parked cargo truck in this case
was a threat to life and limb and property, it was
incumbent upon the driver as well as the petitioner, who
claims to be a helper of the truck driver, to exercise
extreme care so that the motorist negotiating the road
would be properly forewarned of the peril of a parked
vehicle. Isidro submits that the burden of proving that care
and diligence were observed is shifted to the petitioner,
for, as previously claimed, his (Isidro's) Isuzu truck had a
right to be on the road, while the immobile cargo truck
had no business, so to speak, to be there. Likewise, Isidro
proffers that the petitioner must show to the satisfaction
of a reasonable mind that the driver and he (petitioner)
himself, provided an early warning device, like that
required by law, or, by some other adequate means that
would properly forewarn vehicles of the impending danger
that the parked vehicle posed considering the time, place,
and other peculiar circumstances of the occasion. Absent
such proof of care, as in the case at bar, Isidro concludes,
would, under the doctrine of Res ipsa loquitur, evoke the
presumption of negligence on the part of the driver of the
parked cargo truck as well as his helper, the petitioner
herein, who was fixing the flat tire of the said truck. 27
Respondent Isidro's contention is untenable.
The evidence on record discloses that three or four meters
from the rear of the parked truck, a lighted kerosene lamp
was placed. 28 Moreover, there is the admission of
respondent Isidro's driver, Daniel Serrano, to Wit: 29
Question No. 8 (by Patrolman Josefino Velasco)Will you
narrate to me in brief how the accident happens (sic) if
you can still remember?
Answer: (by Daniel Serrano)
That on or about 10:40 p.m., 15 May 1979 while driving
Isuzu truck at Baretbet, Bagabag, Nueva Vizcaya and at
KM 285, I met another vehicle who (sic) did not dim his
(sic) lights which cause (sic) me to be blinded with intense
glare of the light that's why I did not notice a parked truck
who (sic) was repairing a front flat tire. When I was a few
meters away, I saw the truck which was loaded with round
logs. I step (sic) on my foot brakes but it did not function
with my many attempts. I have (sic) found out later that
the fluid pipe on the rear right was cut that's why the
breaks did not function. (Emphasis supplied).
Whether the cargo truck was parked along the road or on
half the shoulder of the right side of the road would be of
no moment taking into account the warning device
consisting of the lighted kerosene lamp placed three or
four meters from the back of the truck. 30 But despite this
warning which we rule as sufficient, the Isuzu truck driven
by Daniel Serrano, an employee of the private respondent,
still bumped the rear of the parked cargo truck. As a direct

consequence of such accident the petitioner sustained


injuries on his left forearm and left foot. His left leg was
later amputated from below the knee when gangrene had
set in. 31
It is clear from the foregoing disquisition that the absence
or want of care of Daniel Serrano has been established by
clear and convincing evidence. It follows that in stamping
its imprimatur upon the invocation by respondent Isidro of
the doctrine of Res ipsa loquitur to escape liability for the
negligence of his employee, the respondent court
committed reversible error.
The respondent court ruled:

32

In addition to this, we agree with the following arguments


of appellant Godofredo Isidro which would show that the
accident was caused due to the negligence of the driver of
the cargo truck:
... In the case at bar the burden of proving that care and
diligence was (sic) observed is shifted evidently to the
plaintiff, for, as adverted to, the motorists have the right
to be on the road, while the immobile truck has no
business, so to speak, to be there. It is thus for the
plaintiff to show to the satisfaction of a reasonable mind
that the driver and he himself did employ early warning
device such as that required by law or by some other
adequate means or device that would properly forewarn
vehicles of the impending danger that the parked vehicle
posed considering the time, place and other peculiar
circumstances of the occasion. Absent such proof of care,
as in the case at bar, will evoke the presumption of
negligence under the doctrine of res ipsa loquitur, on the
part of the driver of the parked cargo truck as well as
plaintiff who was fixing the flat tire of said truck. (pp. 1417, Appellant's Brief). (Emphasis supplied).
At this juncture, it may be enlightening and helpful in the
proper resolution of the issue of negligence to examine
the doctrine of Res ipsa loquitur.
This doctrine is stated thus: "Where the thing which
causes injury is shown to be under the management of
the defendant, and the accident is such as in the ordinary
course of things does not happen if those who have the
management use proper care, it affords reasonable
evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care. 33 Or
as Black's Law Dictionary 34 puts it:
Res ipsa loquitur. The thing speaks for itself Rebuttable
presumption or inference that defendant was negligent,
which arises upon proof that instrumentality causing injury
was in defendant's exclusive control, and that the accident
was one which ordinarily does not happen in absence of
negligence. Res ipsa loquitur is rule of evidence whereby
negligence of alleged wrongdoer may be inferred from
mere fact that accident happened provided character of
accident and circumstances attending it lead reasonably
to belief that in absence of negligence it would not have
occurred and that thing which caused injury is shown to
have been under management and control of alleged
wrongdoer. Hillen v. Hooker Const. Co., Tex. Civ. App., 484
S.W. 2d 133, 155. Under doctrine of "res ipsa loquitur" the
happening of an injury permits an inference of negligence
where plaintiff produces substantial evidence that injury
was caused by an agency or instrumentality under
exclusive control and management of defendant, and that
the occurrence was such that in the ordinary course of

4
things would not happen if reasonable care had been
used.
In this jurisdiction we have applied this doctrine in quite a
number of cases, notably in Africa et al. vs. Caltex, Inc., et
al., 35 and the latest is in the case of F.F. Cruz and Co., Inc.
vs. CA. 36
The doctrine of Res ipsa loquitur as a rule of evidence is
peculiar to the law of negligence which recognizes that
prima facie negligence may be established without direct
proof and furnishes a substitute for specific proof of
negligence. 37 The doctrine is not a rule of substantive
law 38 but merely a mode of proof or a mere procedural
convenience. 39 The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and
does not dispense with the requirement of proof of
culpable negligence on the part of the party charged. 40 It
merely determines and regulates what shall be prima facie
evidence thereof and facilitates the burden of plaintiff of
proving a breach of the duty of due care. 41 The doctrine
can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not
readily available. 42 Hence, it has generally been held that
the presumption of inference arising from the doctrine
cannot be availed of, or is overcome, where plaintiff has
knowledge and testifies or presents evidence as to the
specific act of negligence which is the cause of the injury
complained of or where there is direct evidence as to the
precise cause of the accident and all the facts and
circumstances attendant on the occurrence clearly
appear. 43 Finally, once the actual cause of injury is
established beyond controversy, whether by the plaintiff
or by the defendant, no presumptions will be involved and
the
doctrine
becomes
inapplicable
when
the
circumstances have been so completely eludicated that no
inference of defendant's liability can reasonably be made,
whatever the source of the evidence, 44 as in this case.
The private respondent is sued under Art. 2176 in relation
to Art. 2180, paragraph 5, of the Civil Code. In the latter,
when an injury is caused by the negligence of a servant or
employee there instantly arises a presumption of law that
there was negligence on the part of the master or
employer either in the selection of the servant or
employee, or in supervision over him after selection, or
both. Such presumption is juris tantum and not juris et de
jure and consequently, may be rebutted. If follows
necessarily that if the employer shows to the satisfaction
of the court that in the selection and in the supervision he
has exercised the care and diligence of a good father of a
family, the presumption is overcome and he is relieved
from liability. 45 In disclaiming liability for the incident, the
private respondent stresses that the negligence of his
employee has already been adequately overcome by his
driver's statement that he knew his responsibilities as a
driver and that the truck owner used to instruct him to be
careful in driving. 46
We do not agree with the private respondent in his
submission. In the first place, it is clear that the driver did
not know his responsibilities because he apparently did
not check his vehicle before he took it on the road. If he
did he could have discovered earlier that the brake fluid
pipe on the right was cut, and could have repaired it and
thus the accident could have been avoided. Moveover, to
our mind, the fact that the private respondent used to
intruct his driver to be careful in his driving, that the driver
was licensed, and the fact that he had no record of any
accident, as found by the respondent court, are not
sufficient to destroy the finding of negligence of the

Regional Trial Court given the facts established at the


trial 47 The private respondent or his mechanic, who must
be competent, should have conducted a thorough
inspection of his vehicle before allowing his driver to drive
it. In the light of the circumstances obtaining in the case,
we hold that Isidro failed to prove that the diligence of a
good father of a family in the supervision of his employees
which would exculpate him from solidary liability with his
driver to the petitioner. But even if we concede that the
diligence of a good father of a family was observed by
Isidro in the supervision of his driver, there is not an iota
of evidence on record of the observance by Isidro of the
same quantum of diligence in the supervision of his
mechanic, if any, who would be directly in charge in
maintaining the road worthiness of his (Isidro's) truck. But
that is not all. There is paucity of proof that Isidro
exercised the diligence of a good father of a family in the
selection of his driver, Daniel Serrano, as well as in the
selection of his mechanic, if any, in order to insure the
safe operation of his truck and thus prevent damage to
others. Accordingly, the responsibility of Isidro as
employer treated in Article 2180, paragraph 5, of the Civil
Code has not ceased.
WHEREFORE, the petition is hereby GRANTED. The
Decision of the respondent court as well as its Resolution
denying the petitioner's motion for reconsideration are
hereby SET ASIDE and the decision of the trial court, dated
January 20, 1983, is hereby REINSTATED in toto. With
costs against the private respondents.
ROGELIO E. RAMOS and ERLINDA RAMOS, in their
own behalf and as natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK RAMOS and RON
RAYMOND RAMOS, petitioners, vs. COURT OF
APPEALS, DELOS SANTOS MEDICAL CENTER, DR.
ORLINO
HOSAKA
and
DRA.
PERFECTA
GUTIERREZ, respondents.
The Hippocratic Oath mandates physicians to give
primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is
made accountable for his acts. A mistake, through gross
negligence or incompetence or plain human error, may
spell the difference between life and death. In this sense,
the doctor plays God on his patients fate.[1]
In the case at bar, the Court is called upon to rule whether
a surgeon, an anesthesiologist and a hospital should be
made liable for the unfortunate comatose condition of a
patient scheduled for cholecystectomy.[2]
Petitioners seek the reversal of the decision [3] of the Court
of Appeals, dated 29 May 1995, which overturned the
decision[4]of the Regional Trial Court, dated 30 January
1992, finding private respondents liable for damages
arising from negligence in the performance of their
professional duties towards petitioner Erlinda Ramos
resulting in her comatose condition.
The antecedent facts as summarized by the trial court are
reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17,
1985, a 47-year old (Exh. A) robust woman (TSN, October
19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence
of a stone in her gall bladder (TSN, January 13, 1988, pp.
4-5), she was as normal as any other woman. Married to
Rogelio E. Ramos, an executive of Philippine Long Distance
Telephone Company, she has three children whose names

5
are Rommel Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her
normal ways, she sought professional advice. She was
advised to undergo an operation for the removal of a
stone in her gall bladder (TSN, January 13, 1988, p. 5). She
underwent a series of examinations which included blood
and urine tests (Exhs. A and C) which indicated she was fit
for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje
(TSN, January 13, 1988, p. 7), she and her husband
Rogelio met for the first time Dr. Orlino Hozaka (should be
Hosaka; see TSN, February 20, 1990, p. 3), one of the
defendants in this case, on June 10, 1985. They agreed
that their date at the operating table at the DLSMC
(another defendant), would be on June 17, 1985 at 9:00
A.M.. Dr. Hosaka decided that she should undergo a
cholecystectomy
operation
after
examining
the
documents (findings from the Capitol Medical Center, FEU
Hospital and DLSMC) presented to him. Rogelio E. Ramos,
however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that
he will get a good anesthesiologist. Dr. Hosaka charged a
fee
of P16,000.00,
which
was
to
include
the
anesthesiologists fee and which was to be paid after the
operation (TSN, October 19, 1989, pp. 14-15, 22-23, 3133; TSN, February 27, 1990, p. 13; and TSN, November 9,
1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was
admitted at one of the rooms of the DLSMC, located along
E. Rodriguez Avenue, Quezon City (TSN, October 19, 1989,
p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her
room, she was prepared for the operation by the hospital
staff. Her sister-in-law, Herminda Cruz, who was the Dean
of the College of Nursing at the Capitol Medical Center,
was also there for moral support. She reiterated her
previous request for Herminda to be with her even during
the operation. After praying, she was given injections. Her
hands were held by Herminda as they went down from her
room to the operating room (TSN, January 13, 1988, pp. 911). Her husband, Rogelio, was also with her (TSN,
October 19, 1989, p. 18). At the operating room, Herminda
saw about two or three nurses and Dr. Perfecta Gutierrez,
the
other
defendant,
who
was
to
administer
anesthesia. Although not a member of the hospital staff,
Herminda introduced herself as Dean of the College of
Nursing at the Capitol Medical Center who was to provide
moral support to the patient, to them. Herminda was
allowed to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone
to look for Dr. Hosaka who was not yet in (TSN, January 13,
1988, pp. 11-12). Dr. Gutierrez thereafter informed
Herminda Cruz about the prospect of a delay in the arrival
of Dr. Hosaka. Herminda then went back to the patient
who asked, Mindy, wala pa ba ang Doctor? The former
replied, Huwag kang mag-alaala, darating na iyon (ibid.).
Thereafter, Herminda went out of the operating room and
informed the patients husband, Rogelio, that the doctor
was not yet around (id., p. 13). When she returned to the
operating room, the patient told her, Mindy, inip na inip na
ako, ikuha mo ako ng ibang Doctor. So, she went out again
and told Rogelio about what the patient said (id., p.
15). Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was already dying


[and] waiting for the arrival of the doctor even as he did
his best to find somebody who will allow him to pull out
his wife from the operating room (TSN, October 19, 1989,
pp. 19-20). He also thought of the feeling of his wife, who
was inside the operating room waiting for the doctor to
arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who
remarked that he (Dr. Garcia) was also tired of waiting for
Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia
at around 12:10 P.M., he came to know that Dr. Hosaka
arrived as a nurse remarked, Nandiyan na si Dr. Hosaka,
dumating na raw. Upon hearing those words, he went
down to the lobby and waited for the operation to be
completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the
operating room with the patient, heard somebody say that
Dr. Hosaka is already here. She then saw people inside the
operating room moving, doing this and that, [and]
preparing the patient for the operation (TSN, January 13,
1988, p. 16). As she held the hand of Erlinda Ramos, she
then saw Dr. Gutierrez intubating the hapless patient. She
thereafter heard Dr. Gutierrez say, ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan
(id., p. 17). Because of the remarks of Dra. Gutierrez, she
focused her attention on what Dr. Gutierrez was
doing. She thereafter noticed bluish discoloration of the
nailbeds of the left hand of the hapless Erlinda even as Dr.
Hosaka approached her. She then heard Dr. Hosaka issue
an order for someone to call Dr. Calderon, another
anesthesiologist (id., p. 19). After Dr. Calderon arrived at
the operating room, she saw this anesthesiologist trying to
intubate the patient. The patients nailbed became bluish
and the patient was placed in a trendelenburg position - a
position where the head of the patient is placed in a
position lower than her feet which is an indication that
there is a decrease of blood supply to the patients brain
(Id., pp. 19-20). Immediately thereafter, she went out of
the operating room, and she told Rogelio E. Ramos that
something wrong was x x x happening (Ibid.). Dr. Calderon
was then able to intubate the patient (TSN, July 25, 1991,
p. 9).
Meanwhile, Rogelio, who was outside the operating room,
saw a respiratory machine being rushed towards the door
of the operating room. He also saw several doctors
rushing towards the operating room.When informed by
Herminda Cruz that something wrong was happening, he
told her (Herminda) to be back with the patient inside the
operating room (TSN, October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the
patient was still in trendelenburg position (TSN, January
13, 1988, p. 20). At almost 3:00 P.M. of that fateful day,
she saw the patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to
talk to Dr. Hosaka. The latter informed the former that
something went wrong during the intubation. Reacting to
what was told to him, Rogelio reminded the doctor that
the condition of his wife would not have happened, had he
(Dr. Hosaka) looked for a good anesthesiologist (TSN,
October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the
hospital to explain what happened to the patient. The
doctors explained that the patient had bronchospasm
(TSN, November 15, 1990, pp. 26-27).

6
Erlinda Ramos stayed at the ICU for a month. About four
months thereafter or on November 15, 1985, the patient
was released from the hospital.
During the whole period of her confinement, she incurred
hospital bills amounting to P93,542.25 which is the subject
of a promissory note and affidavit of undertaking executed
by Rogelio E. Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a comatose
condition. She cannot do anything. She cannot move any
part of her body. She cannot see or hear. She is living on
mechanical means. She suffered brain damage as a result
of the absence of oxygen in her brain for four to five
minutes (TSN, November 9, 1989, pp. 21-22). After being
discharged from the hospital, she has been staying in their
residence, still needing constant medical attention, with
her husband Rogelio incurring a monthly expense ranging
from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp.
32-34). She was also diagnosed to be suffering from
diffuse cerebral parenchymal damage (Exh. G; see also
TSN, December 21, 1989, p. 6).[5]
Thus, on 8 January 1986, petitioners filed a civil case [6] for
damages with the Regional Trial Court of Quezon City
against herein private respondents alleging negligence in
the management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the
possible cause of Erlindas injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano
Gavino to prove that the damage sustained by Erlinda was
due to lack of oxygen in her brain caused by the faulty
management of her airway by private respondents during
the anesthesia phase. On the other hand, private
respondents primarily relied on the expert testimony of Dr.
Eduardo Jamora, a pulmonologist, to the effect that the
cause of brain damage was Erlindas allergic reaction to
the anesthetic agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the
Regional Trial Court rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown in the finding of
facts set forth earlier, and applying the aforecited
provisions of law and jurisprudence to the case at bar, this
Court finds and so holds that defendants are liable to
plaintiffs for damages. The defendants were guilty of, at
the very least, negligence in the performance of their duty
to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that
she omitted to exercise reasonable care in not only
intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 510), without due regard to the fact that the patient was
inside the operating room for almost three (3) hours. For
after she committed a mistake in intubating [the] patient,
the patient's nailbed became bluish and the patient,
thereafter, was placed in trendelenburg position, because
of the decrease of blood supply to the patient's brain. The
evidence further shows that the hapless patient suffered
brain damage because of the absence of oxygen in her
(patient's) brain for approximately four to five minutes
which, in turn, caused the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is
liable for the acts of Dr. Perfecta Gutierrez whom he had
chosen to administer anesthesia on the patient as part of
his obligation to provide the patient a `good

anesthesiologist', and for arriving for the scheduled


operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it
is liable for the acts of negligence of the doctors in their
`practice of medicine' in the operating room. Moreover,
the hospital is liable for failing through its responsible
officials, to cancel the scheduled operation after Dr.
Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised
by defendants that they have acted with due care and
prudence in rendering medical services to plaintiffpatient. For if the patient was properly intubated as
claimed by them, the patient would not have become
comatose. And, the fact that another anesthesiologist was
called to try to intubate the patient after her (the
patient's)
nailbed
turned
bluish,
belie
their
claim. Furthermore,
the
defendants
should
have
rescheduled the operation to a later date. This, they
should have done, if defendants acted with due care and
prudence as the patient's case was an elective, not an
emergency case.
WHEREFORE, and in view of the foregoing, judgment is
rendered in favor of the plaintiffs and against the
defendants. Accordingly, the latter are ordered to pay,
jointly and severally, the former the following sums of
money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for
the plaintiff Erlinda Ramos reckoned from November 15,
1985 or in the total sum of P632,000.00 as of April 15,
1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and
the further sum of P200,000.00 by way of exemplary
damages; and,
4) the costs of the suit.
Private respondents seasonably interposed an appeal to
the Court of Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing the findings of the
trial court. The decretal portion of the decision of the
appellate court reads:
WHEREFORE, for the foregoing premises the appealed
decision is hereby REVERSED, and the complaint below
against the appellants is hereby ordered DISMISSED. The
counterclaim of appellant De Los Santos Medical Center is
GRANTED but only insofar as appellees are hereby ordered
to pay the unpaid hospital bills amounting to P93,542.25,
plus legal interest for justice must be tempered with
mercy.
The decision of the Court of Appeals was received on 9
June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as Atty. Rogelio Ramos. No copy of
the decision, however, was sent nor received by the
Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the appellate
court to a new lawyer, Atty. Ligsay, only on 20 June 1995,
or four (4) days before the expiration of the reglementary
period for filing a motion for reconsideration. On the same
day, Atty. Ligsay, filed with the appellate court a motion
for
extension
of
time
to
file
a
motion
for
reconsideration.The motion for reconsideration was
submitted on 4 July 1995. However, the appellate court
denied the motion for extension of time in its Resolution
dated 25 July 1995.[9] Meanwhile petitioners engaged the
services of another counsel, Atty. Sillano, to replace Atty.
Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the
period to file the appropriate pleading on the assailed
decision had not yet commenced to run as the Division

7
Clerk of Court of the Court of Appeals had not yet served a
copy thereof to the counsel on record. Despite this
explanation, the appellate court still denied the motion to
admit the motion for reconsideration of petitioners in its
Resolution, dated 29 March 1996, primarily on the ground
that the fifteen-day (15) period for filing a motion for
reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing
of a Motion for Reconsideration cannot be extended;
precisely, the Motion for Extension (Rollo, p. 12) was
denied. It is, on the other hand, admitted in the latter
Motion that plaintiffs/appellees received a copy of the
decision as early as June 9, 1995. Computation wise, the
period to file a Motion for Reconsideration expired on June
24. The Motion for Reconsideration, in turn, was received
by the Court of Appeals already on July 4, necessarily, the
15-day period already passed. For that alone, the latter
should be denied.
Even assuming admissibility of the Motion for
Reconsideration,
but
after
considering
the
Comment/Opposition, the former, for lack of merit, is
hereby DENIED.
A copy of the above resolution was received by Atty.
Sillano on 11 April 1996. The next day, or on 12 April
1996, Atty. Sillano filed before this Court a motion for
extension of time to file the present petition
for certiorari under Rule 45. The Court granted the motion
for extension of time and gave petitioners additional thirty
(30) days after the expiration of the fifteen-day (15) period
counted from the receipt of the resolution of the Court of
Appeals within which to submit the petition. The due date
fell on 27 May 1996. The petition was filed on 9 May 1996,
well within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on
the following grounds:
I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF
RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND
DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS
DID NOT CAUSE THE UNFORTUNATE COMATOSE
CONDITION OF PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.
[11]

Before we discuss the merits of the case, we shall first


dispose of the procedural issue on the timeliness of the
petition in relation to the motion for reconsideration filed
by petitioners with the Court of Appeals. In their
Comment,[12] private respondents contend that the
petition should not be given due course since the motion
for reconsideration of the petitioners on the decision of
the Court of Appeals was validly dismissed by the
appellate court for having been filed beyond the
reglementary period. We do not agree.
A careful review of the records reveals that the reason
behind the delay in filing the motion for reconsideration is
attributable to the fact that the decision of the Court of
Appeals was not sent to then counsel on record of
petitioners, the Coronel Law Office. In fact, a copy of the
decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995
wherein he was mistakenly addressed as Atty. Rogelio
Ramos. Based on the other communications received by
petitioner Rogelio Ramos, the appellate court apparently
mistook him for the counsel on record. Thus, no copy of

the decision of the appellate court was furnished to the


counsel on record. Petitioner, not being a lawyer and
unaware of the prescriptive period for filing a motion for
reconsideration, referred the same to a legal counsel only
on 20 June 1995.
It is elementary that when a party is represented by
counsel, all notices should be sent to the partys lawyer at
his given address. With a few exceptions, notice to a
litigant without notice to his counsel on record is no notice
at all. In the present case, since a copy of the decision of
the appellate court was not sent to the counsel on record
of petitioner, there can be no sufficient notice to speak
of. Hence, the delay in the filing of the motion for
reconsideration
cannot
be
taken
against
petitioner. Moreover, since the Court of Appeals already
issued a second Resolution, dated 29 March 1996, which
superseded the earlier resolution issued on 25 July 1995,
and denied the motion for reconsideration of petitioner,
we believe that the receipt of the former should be
considered in determining the timeliness of the filing of
the present petition. Based on this, the petition before us
was submitted on time.
After resolving the foregoing procedural issue, we shall
now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the
issue on the applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter, the first two
assigned errors shall be tackled in relation to the res ipsa
loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means
the thing or the transaction speaks for itself. The
phrase res ipsa loquitur is a maxim for the rule that the
fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or
raise a presumption of negligence, or make out a
plaintiffs prima facie case, and present a question of fact
for defendant to meet with an explanation. [13] Where the
thing which caused the injury complained of is shown to
be under the management of the defendant or his
servants and the accident is such as in ordinary course of
things does not happen if those who have its management
or control use proper care, it affords reasonable evidence,
in the absence of explanation by the defendant, that the
accident arose from or was caused by the defendants
want of care.[14]
The doctrine of res ipsa loquitur is simply a recognition of
the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of
occurrences may justify an inference of negligence on the
part of the person who controls the instrumentality
causing the injury in the absence of some explanation by
the defendant who is charged with negligence. [15] It is
grounded in the superior logic of ordinary human
experience and on the basis of such experience or
common knowledge, negligence may be deduced from the
mere occurrence of the accident itself. [16] Hence, res ipsa
loquitur isapplied in conjunction with the doctrine of
common knowledge.
However, much has been said that res ipsa loquitur is not
a rule of substantive law and, as such, does not create or
constitute an independent or separate ground of liability.
[17]
Instead, it is considered as merely evidentiary or in the
nature of a procedural rule.[18] It is regarded as a mode of
proof, or a mere procedural convenience since it furnishes
a substitute for, and relieves a plaintiff of, the burden of
producing specific proof of negligence. [19] In other words,

8
mere invocation and application of the doctrine does not
dispense with the requirement of proof of negligence. It is
simply a step in the process of such proof, permitting the
plaintiff to present along with the proof of the accident,
enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of
negligence, and to thereby place on the defendant the
burden of going forward with the proof. [20] Still, before
resort to the doctrine may be allowed, the following
requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur
in the absence of someones negligence;
2. It is caused by an instrumentality within the exclusive
control of the defendant or defendants; and
3. The possibility of contributing conduct which would
make the plaintiff responsible is eliminated.[21]
In the above requisites, the fundamental element is the
control of the instrumentality which caused the damage.
[22]
Such element of control must be shown to be within
the dominion of the defendant. In order to have the
benefit of the rule, a plaintiff, in addition to proving injury
or damage, must show a situation where it is applicable,
and must establish that the essential elements of the
doctrine were present in a particular incident.[23]
Medical malpractice[24]cases do not escape the application
of this doctrine. Thus, res ipsa loquitur has been applied
when the circumstances attendant upon the harm are
themselves of such a character as to justify an inference
of negligence as the cause of that harm. [25] The application
of res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to determine
whether a certain set of circumstances does, as a matter
of law, permit a given inference.[26]
Although generally, expert medical testimony is relied
upon in malpractice suits to prove that a physician has
done a negligent act or that he has deviated from the
standard medical procedure, when the doctrine of res ipsa
loquitur is availed by the plaintiff, the need for expert
medical testimony is dispensed with because the injury
itself provides the proof of negligence. [27] The reason is
that the general rule on the necessity of expert testimony
applies only to such matters clearly within the domain of
medical science, and not to matters that are within the
common knowledge of mankind which may be testified to
by anyone familiar with the facts.[28] Ordinarily, only
physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been
treated or operated upon with a reasonable degree of skill
and care. However, testimony as to the statements and
acts of physicians and surgeons, external appearances,
and manifest conditions which are observable by any one
may be given by non-expert witnesses.[29] Hence, in cases
where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof
of injury to the patient, without the aid of expert
testimony, where the court from its fund of common
knowledge can determine the proper standard of care.
[30]
Where common knowledge and experience teach that
a resulting injury would not have occurred to the patient if
due care had been exercised, an inference of negligence
may be drawn giving rise to an application of the doctrine
of res ipsa loquitur without medical evidence, which is
ordinarily required to show not only what occurred but
how and why it occurred.[31] When the doctrine is
appropriate, all that the patient must do is prove a nexus

between the particular act or omission complained of and


the injury sustained while under the custody and
management of the defendant without need to produce
expert medical testimony to establish the standard of
care. Resort to res ipsa loquitur is allowed because there
is no other way, under usual and ordinary conditions, by
which the patient can obtain redress for injury suffered by
him.
Thus, courts of other jurisdictions have applied the
doctrine in the following situations: leaving of a foreign
object in the body of the patient after an operation,
[32]
injuries sustained on a healthy part of the body which
was not under, or in the area, of treatment,[33] removal of
the wrong part of the body when another part was
intended,[34] knocking out a tooth while a patients jaw was
under anesthetic for the removal of his tonsils,[35] and loss
of an eye while the patient plaintiff was under the
influence of anesthetic, during or following an operation
for appendicitis,[36] among others.
Nevertheless, despite the fact that the scope of res ipsa
loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as
to mechanically shift the burden of proof to the defendant
to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances of
each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the
consequences of professional care were not as such as
would ordinarily have followed if due care had been
exercised.[37] A distinction must be made between the
failure to secure results, and the occurrence of something
more unusual and not ordinarily found if the service or
treatment rendered followed the usual procedure of those
skilled in that particular practice. It must be conceded that
the doctrine of res ipsa loquitur can have no application in
a suit against a physician or surgeon which involves the
merits of a diagnosis or of a scientific treatment. [38] The
physician or surgeon is not required at his peril to explain
why any particular diagnosis was not correct, or why any
particular scientific treatment did not produce the desired
result.[39] Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired
result of an operation or treatment was not accomplished.
[40]
The real question, therefore, is whether or not in the
process of the operation any extraordinary incident or
unusual event outside of the routine performance
occurred which is beyond the regular scope of customary
professional activity in such operations, which, if
unexplained would themselves reasonably speak to the
average man as the negligent cause or causes of the
untoward consequence.[41] If there was such extraneous
interventions, the doctrine of res ipsa loquitur may be
utilized and the defendant is called upon to explain the
matter, by evidence of exculpation, if he could.[42]
We find the doctrine of res ipsa loquitur appropriate in the
case at bar. As will hereinafter be explained, the damage
sustained by Erlinda in her brain prior to a scheduled gall
bladder operation presents a case for the application
of res ipsa loquitur.
A case strikingly similar to the one before us is Voss vs.
Bridwell,[43] where the Kansas Supreme Court in applying
the res ipsa loquitur stated:

9
The plaintiff herein submitted himself for a mastoid
operation and delivered his person over to the care,
custody and control of his physician who had complete
and exclusive control over him, but the operation was
never performed. At the time of submission he was
neurologically sound and physically fit in mind and body,
but he suffered irreparable damage and injury rendering
him decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of a
mastoid operation or in the absence of negligence in the
administration of an anesthetic, and in the use and
employment of an endoctracheal tube. Ordinarily a person
being put under anesthesia is not rendered decerebrate as
a consequence of administering such anesthesia in the
absence of negligence. Upon these facts and under these
circumstances a layman would be able to say, as a matter
of common knowledge and observation, that the
consequences of professional treatment were not as such
as would ordinarily have followed if due care had been
exercised.
Here the plaintiff could not have been guilty of
contributory negligence because he was under the
influence of anesthetics and unconscious, and the
circumstances are such that the true explanation of event
is more accessible to the defendants than to the plaintiff
for they had the exclusive control of the instrumentalities
of anesthesia.
Upon all the facts, conditions and circumstances alleged in
Count II it is held that a cause of action is stated under the
doctrine of res ipsa loquitur.[44]
Indeed, the principles enunciated in the aforequoted case
apply with equal force here. In the present case, Erlinda
submitted herself for cholecystectomy and expected a
routine general surgery to be performed on her gall
bladder. On that fateful day she delivered her person over
to the care, custody and control of private respondents
who exercised complete and exclusive control over her. At
the time of submission, Erlinda was neurologically sound
and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the
administration of anesthesia and prior to the performance
of cholecystectomy she suffered irreparable damage to
her brain. Thus, without undergoing surgery, she went out
of the operating room already decerebrate and totally
incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in
the process of a gall bladder operation. In fact, this kind of
situation does not happen in the absence of negligence of
someone in the administration of anesthesia and in the
use of endotracheal tube. Normally, a person being put
under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the
proper
procedure
was
followed. Furthermore,
the
instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the
exclusive control of private respondents, who are the
physicians-in-charge. Likewise, petitioner Erlinda could not
have been guilty of contributory negligence because she
was under the influence of anesthetics which rendered her
unconscious.
Considering that a sound and unaffected member of the
body (the brain) is injured or destroyed while the patient is
unconscious and under the immediate and exclusive
control of the physicians, we hold that a practical
administration of justice dictates the application of res
ipsa loquitur. Upon these facts and under these
circumstances the Court would be able to say, as a matter

of common knowledge and observation, if negligence


attended
the
management
and
care
of
the
patient. Moreover, the liability of the physicians and the
hospital in this case is not predicated upon an alleged
failure to secure the desired results of an operation nor on
an alleged lack of skill in the diagnosis or treatment as in
fact no operation or treatment was ever performed on
Erlinda. Thus, upon all these initial determination a case is
made out for the application of the doctrine of res ipsa
loquitur.
Nonetheless, in holding that res ipsa loquitur is available
to the present case we are not saying that the doctrine is
applicable in any and all cases where injury occurs to a
patient while under anesthesia, or to any and all
anesthesia cases. Each case must be viewed in its own
light and scrutinized in order to be within the res ipsa
loquitur coverage.
Having in mind the applicability of the res ipsa
loquitur doctrine and the presumption of negligence
allowed therein, the Court now comes to the issue of
whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda
during the anesthesia phase of the operation and, if in the
affirmative, whether the alleged negligence was the
proximate cause of Erlindas comatose condition. Corollary
thereto, we shall also determine if the Court of Appeals
erred in relying on the testimonies of the witnesses for the
private respondents.
In sustaining the position of private respondents, the
Court of Appeals relied on the testimonies of Dra.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight
to the testimony of Dra. Gutierrez, the Court of Appeals
rationalized that she was candid enough to admit that she
experienced some difficulty in the endotracheal
intubation[45]of the patient and thus, cannot be said to be
covering her negligence with falsehood. The appellate
court likewise opined that private respondents were able
to show that the brain damage sustained by Erlinda was
not caused by the alleged faulty intubation but was due to
the allergic reaction of the patient to the drug Thiopental
Sodium (Pentothal), a short-acting barbiturate, as testified
on by their expert witness, Dr. Jamora. On the other hand,
the appellate court rejected the testimony of Dean
Herminda Cruz offered in favor of petitioners that the
cause of the brain injury was traceable to the wrongful
insertion of the tube since the latter, being a nurse, was
allegedly not knowledgeable in the process of
intubation. In so holding, the appellate court returned a
verdict in favor of respondents physicians and hospital
and absolved them of any liability towards Erlinda and her
family.
We disagree with the findings of the Court of Appeals. We
hold that private respondents were unable to disprove the
presumption of negligence on their part in the care of
Erlinda and their negligence was the proximate cause of
her piteous condition.
In the instant case, the records are helpful in furnishing
not only the logical scientific evidence of the pathogenesis
of the injury but also in providing the Court the legal
nexus upon which liability is based. As will be shown
hereinafter, private respondents own testimonies which
are reflected in the transcript of stenographic notes are
replete of signposts indicative of their negligence in the
care and management of Erlinda.

10
With regard to Dra. Gutierrez, we find her negligent in the
care of Erlinda during the anesthesia phase. As borne by
the records, respondent Dra. Gutierrez failed to properly
intubate the patient. This fact was attested to by Prof.
Herminda Cruz, Dean of the Capitol Medical Center School
of Nursing and petitioner's sister-in-law, who was in the
operating room right beside the patient when the tragic
event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any
on the patient?
A: In particular, I could see that she was intubating the
patient.
Q: Do you know what happened to that intubation process
administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As I have said, I was with the patient, I was beside the
stretcher holding the left hand of the patient and all of a
sudden I heard some remarks coming from Dra. Perfecta
Gutierrez herself. She was saying Ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
xxx
ATTY. PAJARES:
Q: From whom did you hear those words lumalaki ang
tiyan?
A: From Dra. Perfecta Gutierrez.
xxx
After hearing the phrase lumalaki ang tiyan, what did you
notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds
of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that particular
time?
A: I saw him approaching the patient during that time.
Q: When he approached the patient, what did he do, if
any?
A: He made an order to call on the anesthesiologist in the
person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside the
operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the patient, after
a while the patients nailbed became bluish and I saw the
patient was placed in trendelenburg position.
xxx
Q: Do you know the reason why the patient was placed in
that trendelenburg position?
A: As far as I know, when a patient is in that position,
there is a decrease of blood supply to the brain.[46]
xxx
The appellate court, however, disbelieved Dean Cruz's
testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our
country will show that intubation is not taught as part of
nursing procedures and techniques. Indeed, we take
judicial notice of the fact that nurses do not, and cannot,
intubate. Even on the assumption that she is fully capable
of determining whether or not a patient is properly
intubated, witness Herminda Cruz, admittedly, did not
peep into the throat of the patient. (TSN, July 25, 1991, p.
13). More importantly, there is no evidence that she ever
auscultated the patient or that she conducted any type of
examination to check if the endotracheal tube was in its
proper place, and to determine the condition of the heart,
lungs, and other organs. Thus, witness Cruz's categorical
statements that appellant Dra. Gutierrez failed to intubate
the appellee Erlinda Ramos and that it was Dra. Calderon
who succeeded in doing so clearly suffer from lack of
sufficient factual bases.[47]
In other words, what the Court of Appeals is trying to
impress is that being a nurse, and considered a layman in

the process of intubation, witness Cruz is not competent


to testify on whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate
court. Although witness Cruz is not an anesthesiologist,
she can very well testify upon matters on which she is
capable of observing such as, the statements and acts of
the physician and surgeon, external appearances, and
manifest conditions which are observable by any one.
[48]
This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not
required. It is the accepted rule that expert testimony is
not necessary for the proof of negligence in non-technical
matters or those of which an ordinary person may be
expected to have knowledge, or where the lack of skill or
want of care is so obvious as to render expert testimony
unnecessary.[49] We take judicial notice of the fact that
anesthesia procedures have become so common, that
even an ordinary person can tell if it was administered
properly. As such, it would not be too difficult to tell if the
tube was properly inserted. This kind of observation, we
believe, does not require a medical degree to be
acceptable.
At any rate, without doubt, petitioner's witness, an
experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol
Medical Center School of Nursing, was fully capable of
determining whether or not the intubation was a
success. She had extensive clinical experience starting as
a staff nurse in Chicago, Illinois; staff nurse and clinical
instructor in a teaching hospital, the FEU-NRMF; Dean of
the Laguna College of Nursing in San Pablo City; and then
Dean of the Capitol Medical Center School of Nursing.
[50]
Reviewing witness Cruz' statements, we find that the
same were delivered in a straightforward manner, with the
kind of detail, clarity, consistency and spontaneity which
would have been difficult to fabricate. With her clinical
background as a nurse, the Court is satisfied that she was
able to demonstrate through her testimony what truly
transpired on that fateful day.
Most of all, her testimony was affirmed by no less than
respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlindas
trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were
intubating at your first attempt (sic), you did not
immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the ...
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said mahirap yata ito, what were you
referring to?
A: Mahirap yata itong i-intubate, that was the patient.
Q: So, you found some difficulty in inserting the tube?
A: Yes, because of (sic) my first attempt, I did not see right
away.[51]
Curiously in the case at bar, respondent Dra. Gutierrez
made the haphazard defense that she encountered
hardship in the insertion of the tube in the trachea of
Erlinda because it was positioned more anteriorly (slightly
deviated from the normal anatomy of a person) [52] making
it harder to locate and, since Erlinda is obese and has a
short neck and protruding teeth, it made intubation even
more difficult.

11
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlindas airway, prior to the induction of
anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a
means of defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to
lessen the possibility of anesthetic accidents. Preoperative evaluation and preparation for anesthesia
begins when the anesthesiologist reviews the patients
medical records and visits with the patient, traditionally,
the day before elective surgery.[53] It includes taking the
patients medical history, review of current drug therapy,
physical examination and interpretation of laboratory
data.[54] The physical examination performed by the
anesthesiologist is directed primarily toward the central
nervous system, cardiovascular system, lungs and upper
airway.[55] A thorough analysis of the patient's airway
normally involves investigating the following: cervical
spine mobility, temporomandibular mobility, prominent
central incisors, diseased or artificial teeth, ability to
visualize uvula and the thyromental distance. [56] Thus,
physical characteristics of the patients upper airway that
could make tracheal intubation difficult should be studied.
[57]
Where the need arises, as when initial assessment
indicates possible problems (such as the alleged short
neck and protruding teeth of Erlinda) a thorough
examination of the patients airway would go a long way
towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted
that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no prior
consultations with, or pre-operative evaluation of Erlinda
was done by her. Until the day of the operation,
respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was
likewise not properly informed of the possible difficulties
she would face during the administration of anesthesia to
Erlinda. Respondent Dra. Gutierrez act of seeing her
patient for the first time only an hour before the scheduled
operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human
lives lie at the core of the physicians centuries-old
Hippocratic Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss
over this omission by playing around with the trial court's
ignorance of clinical procedure, hoping that she could get
away with it. Respondent Dra. Gutierrez tried to muddle
the difference between an elective surgery and an
emergency surgery just so her failure to perform the
required
pre-operative
evaluation
would
escape
unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical
practice to see the patient a day before so you can
introduce yourself to establish good doctor-patient
relationship and gain the trust and confidence of the
patient?
DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the


operative procedure of the anesthesiologist and in my
case, with elective cases and normal cardio-pulmonary
clearance like that, I usually don't do it except on
emergency and on cases that have an abnormalities (sic).
[58]

However, the exact opposite is true. In an emergency


procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an
anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on
the other hand, are operative procedures that can wait for
days, weeks or even months. Hence, in these cases, the
anesthesiologist possesses the luxury of time to make a
proper assessment, including the time to be at the
patient's bedside to do a proper interview and clinical
evaluation. There is ample time to explain the method of
anesthesia, the drugs to be used, and their possible
hazards for purposes of informed consent. Usually, the
pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed
and cooperative.
Erlindas case was elective and this was known to
respondent Dra. Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlindas case prior to the
operation and prepare her for anesthesia.However, she
never saw the patient at the bedside. She herself
admitted that she had seen petitioner only in the
operating room, and only on the actual date of
the cholecystectomy. She negligently failed to take
advantage of this important opportunity. As such, her
attempt to exculpate herself must fail.
Having established that respondent Dra. Gutierrez failed
to perform pre-operative evaluation of the patient which,
in turn, resulted to a wrongful intubation, we now
determine if the faulty intubation is truly the proximate
cause of Erlindas comatose condition.
Private respondents repeatedly hammered the view that
the cerebral anoxia which led to Erlindas coma was due to
bronchospasm[59] mediated by her allergic response to the
drug,
Thiopental
Sodium,
introduced
into
her
system. Towards this end, they presented Dr. Jamora, a
Fellow of the Philippine College of Physicians and
Diplomate of the Philippine Specialty Board of Internal
Medicine, who advanced private respondents' theory that
the
oxygen
deprivation
which
led
to
anoxic
encephalopathy,[60] was due to an unpredictable drug
reaction to the short-acting barbiturate. We find the theory
of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in
the field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he
could not have been capable of properly enlightening the
court about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist
and could not therefore properly advance expert opinion
on allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit,
Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr.
Jamoras testimony as an expert witness in the anesthetic
practice of Pentothal administration is further supported
by his own admission that he formulated his opinions on

12
the drug not from the practical experience gained by a
specialist or expert in the administration and use of
Sodium Pentothal on patients, but only from reading
certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have
any occasion to use pentothal as a method of
management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when
they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is
based only on what you have read from books and not by
your own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during
my appendectomy.
Q: And because they have used it on you and on account
of your own personal experience you feel that you can
testify on pentothal here with medical authority?
A: No. That is why I used references to support my claims.
[61]

An anesthetic accident caused by a rare drug-induced


bronchospasm properly falls within the fields of
anesthesia,
internal
medicine-allergy,
and
clinical
pharmacology. The resulting anoxic encephalopathy
belongs to the field of neurology. While admittedly, many
bronchospastic-mediated pulmonary diseases are within
the expertise of pulmonary medicine, Dr. Jamora's field,
the
anesthetic
drug-induced,
allergic
mediated
bronchospasm alleged in this case is within the disciplines
of anesthesiology, allergology and pharmacology. On the
basis of the foregoing transcript, in which the
pulmonologist himself admitted that he could not testify
about the drug with medical authority, it is clear that the
appellate court erred in giving weight to Dr. Jamoras
testimony as an expert in the administration of Thiopental
Sodium.
The provision in the rules of evidence [62]regarding expert
witnesses states:
Sec. 49. Opinion of expert witness. - The opinion of a
witness on a matter requiring special knowledge, skill,
experience or training which he is shown to possess, may
be received in evidence.
Generally, to qualify as an expert witness, one must have
acquired special knowledge of the subject matter about
which he or she is to testify, either by the study of
recognized authorities on the subject or by practical
experience.[63] Clearly, Dr. Jamora does not qualify as an
expert witness based on the above standard since he
lacks the necessary knowledge, skill, and training in the
field of anesthesiology.Oddly, apart from submitting
testimony from a specialist in the wrong field, private
respondents intentionally avoided providing testimony by
competent and independent experts in the proper areas.
Moreover, private respondents theory, that Thiopental
Sodium may have produced Erlinda's coma by triggering
an allergic mediated response, has no support in
evidence. No evidence of stridor, skin reactions, or
wheezing - some of the more common accompanying
signs of an allergic reaction - appears on record. No
laboratory data were ever presented to the court.
In any case, private respondents themselves admit that
Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept private

respondents' hypothesis without supporting medical proof,


and against the weight of available evidence, then every
anesthetic accident would be an act of God. Evidently, the
Thiopental-allergy theory vigorously asserted by private
respondents
was
a
mere
afterthought. Such
an
explanation was advanced in order to absolve them of any
and all responsibility for the patients condition.
In view of the evidence at hand, we are inclined to believe
petitioners stand that it was the faulty intubation which
was the proximate cause of Erlindas comatose condition.
Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and without
which the result would not have occurred.[64] An injury or
damage is proximately caused by an act or a failure to act,
whenever it appears from the evidence in the case, that
the act or omission played a substantial part in bringing
about or actually causing the injury or damage; and that
the injury or damage was either a direct result or a
reasonably probable consequence of the act or omission.
[65]
It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at
hand, faulty intubation is undeniably the proximate cause
which triggered the chain of events leading to Erlindas
brain damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their
testimony that the first intubation was a failure. This fact
was likewise observed by witness Cruz when she heard
respondent Dra. Gutierrez remarked, Ang hirap maintubate nito, mali yata ang pagkakapasok. O lumalaki
ang tiyan. Thereafter, witness Cruz noticed abdominal
distention on the body of Erlinda. The development of
abdominal
distention,
together
with
respiratory
embarrassment indicates that the endotracheal tube
entered the esophagus instead of the respiratory tree. In
other words, instead of the intended endotracheal
intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates
that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry
into the esophagus would certainly cause some delay in
oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention
had been observed during the first intubation suggests
that the length of time utilized in inserting the
endotracheal tube (up to the time the tube was withdrawn
for the second attempt) was fairly significant. Due to the
delay in the delivery of oxygen in her lungs Erlinda
showed signs of cyanosis.[66] As stated in the testimony of
Dr. Hosaka, the lack of oxygen became apparent only after
he noticed that the nailbeds of Erlinda were already blue.
[67]
However, private respondents contend that a second
intubation was executed on Erlinda and this one was
successfully done. We do not think so. No evidence exists
on record, beyond private respondents' bare claims, which
supports the contention that the second intubation was
successful. Assuming that the endotracheal tube finally
found its way into the proper orifice of the trachea, the
same gave no guarantee of oxygen delivery, the hallmark
of a successful intubation. In fact, cyanosis was again
observed
immediately
after
the
second
intubation. Proceeding from this event (cyanosis), it could
not be claimed, as private respondents insist, that the
second intubation was accomplished. Even granting that
the tube was successfully inserted during the second
attempt, it was obviously too late. As aptly explained by
the trial court, Erlinda already suffered brain damage as a

13
result of the inadequate oxygenation of her brain for about
four to five minutes.[68]
The above conclusion is not without basis. Scientific
studies point out that intubation problems are responsible
for one-third (1/3) of deaths and serious injuries
associated with anesthesia.[69]Nevertheless, ninety-eight
percent (98%) or the vast majority of difficult intubations
may be anticipated by performing a thorough evaluation
of the patients airway prior to the operation.[70] As stated
beforehand, respondent Dra. Gutierrez failed to observe
the proper pre-operative protocol which could have
prevented this unfortunate incident. Had appropriate
diligence and reasonable care been used in the preoperative evaluation, respondent physician could have
been much more prepared to meet the contingency
brought about by the perceived anatomic variations in the
patients neck and oral area, defects which would have
been easily overcome by a prior knowledge of those
variations together with a change in technique. [71] In other
words, an experienced anesthesiologist, adequately
alerted by a thorough pre-operative evaluation, would
have had little difficulty going around the short neck and
protruding teeth.[72] Having failed to observe common
medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez negligence resulted
in cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr.
Orlino Hosaka as the head of the surgical team. As the socalled captain of the ship,[73] it is the surgeons
responsibility to see to it that those under him perform
their task in the proper manner. Respondent Dr. Hosakas
negligence can be found in his failure to exercise the
proper authority (as the captain of the operative team) in
not determining if his anesthesiologist observed proper
anesthesia protocols. In fact, no evidence on record exists
to show that respondent Dr. Hosaka verified if respondent
Dra. Gutierrez properly intubated the patient.Furthermore,
it does not escape us that respondent Dr. Hosaka had
scheduled another procedure in a different hospital at the
same time as Erlindas cholecystectomy, and was in fact
over three hours late for the latters operation. Because of
this, he had little or no time to confer with his
anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties
towards his patient.Thus, he shares equal responsibility for
the events which resulted in Erlindas condition.
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting consultants,[74] who are allegedly not hospital
employees,
presents
problems
in
apportioning
responsibility for negligence in medical malpractice
cases. However, the difficulty is only more apparent than
real.
In the first place, hospitals exercise significant control in
the hiring and firing of consultants and in the conduct of
their work within the hospital premises. Doctors who apply
for consultant slots, visiting or attending, are required to
submit proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are
carefully scrutinized by members of the hospital
administration or by a review committee set up by the
hospital who either accept or reject the application. [75]This
is particularly true with respondent hospital.

After a physician is accepted, either as a visiting or


attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds
for clerks, interns and residents, moderate grand rounds
and patient audits and perform other tasks and
responsibilities, for the privilege of being able to maintain
a clinic in the hospital, and/or for the privilege of admitting
patients into the hospital. In addition to these, the
physicians performance as a specialist is generally
evaluated by a peer review committee on the basis of
mortality and morbidity statistics, and feedback from
patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls
short of the minimum standards acceptable to the hospital
or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise
real control over their attending and visiting consultant
staff. While consultants are not, technically employees, a
point which respondent hospital asserts in denying all
responsibility for the patients condition, the control
exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the
payment of wages. In assessing whether such a
relationship in fact exists, the control test is
determining. Accordingly, on the basis of the foregoing,
we rule that for the purpose of allocating responsibility in
medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their
attending and visiting physicians. This being the case, the
question now arises as to whether or not respondent
hospital is solidarily liable with respondent doctors for
petitioners condition.[76]
The basis for holding an employer solidarily responsible
for the negligence of its employee is found in Article 2180
of the Civil Code which considers a person accountable
not only for his own acts but also for those of others based
on the formers responsibility under a relationship of patria
potestas.[77] Such responsibility ceases when the persons
or entity concerned prove that they have observed the
diligence of a good father of the family to prevent
damage.[78] In other words, while the burden of proving
negligence rests on the plaintiffs, once negligence is
shown, the burden shifts to the respondents (parent,
guardian, teacher or employer) who should prove that
they observed the diligence of a good father of a family to
prevent damage.
In the instant case, respondent hospital, apart from a
general denial of its responsibility over respondent
physicians, failed to adduce evidence showing that it
exercised the diligence of a good father of a family in the
hiring and supervision of the latter. It failed to adduce
evidence with regard to the degree of supervision which it
exercised over its physicians. In neglecting to offer such
proof, or proof of a similar nature, respondent hospital
thereby failed to discharge its burden under the last
paragraph of Article 2180. Having failed to do this,
respondent hospital is consequently solidarily responsible
with its physicians for Erlindas condition.
Based on the foregoing, we hold that the Court of Appeals
erred in accepting and relying on the testimonies of the
witnesses for the private respondents. Indeed, as shown
by the above discussions, private respondents were
unable to rebut the presumption of negligence. Upon
these disquisitions we hold that private respondents are

14
solidarily liable for damages under Article 2176 [79] of the
Civil Code.
We now come to the amount of damages due
petitioners. The trial court awarded a total of P632,000.00
pesos (should be P616,000.00) in compensatory damages
to the plaintiff, subject to its being updated covering the
period from 15 November 1985 up to 15 April 1992, based
on monthly expenses for the care of the patient estimated
at P8,000.00.
At current levels, the P8000/monthly amount established
by the trial court at the time of its decision would be
grossly inadequate to cover the actual costs of 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. In the instant case for instance, Erlinda has to be
constantly turned from side to side to prevent bedsores
and hypostatic pneumonia. Feeding is done by nasogastric
tube. Food preparation should be normally made by a
dietitian to provide her with the correct daily caloric
requirements and vitamin supplements. Furthermore, she
has to be seen on a regular basis by a physical therapist
to avoid muscle atrophy, and by a pulmonary therapist to
prevent the accumulation of secretions which can lead to
respiratory complications.
Given these considerations, the amount of actual
damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of proper
care, not the cost of the care the family is usually
compelled
to
undertake
at
home
to
avoid
bankruptcy. However, the provisions of the Civil Code on
actual or compensatory damages present us with some
difficulties.
Well-settled is the rule that actual damages which may be
claimed by the plaintiff are those suffered by him as he
has duly proved. The Civil Code provides:
Art. 2199. - Except as provided by law or by stipulation,
one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual or
compensatory damages.
Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as
a consequence of an act of negligence has been
completed and that the cost can be liquidated. However,
these provisions neglect to take into account those
situations, as in this case, where the resulting injury might
be continuing and possible future complications directly
arising from the injury, while certain to occur, are difficult
to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond
to the injury caused, should be one which compensates
for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to
be suffered but which could not, from the nature of the
case, be made with certainty. [80] In other words, temperate

damages can and should be awarded on top of actual or


compensatory damages in instances where the injury is
chronic and continuing. And because of the unique nature
of such cases, no incompatibility arises when both actual
and temperate damages are provided for. The reason is
that these damages cover two distinct phases.
As it would not be equitable - and certainly not in the best
interests of the administration of justice - for the victim in
such cases to constantly come before the courts and
invoke their aid in seeking adjustments to the
compensatory damages previously awarded - temperate
damages are appropriate. The amount given as temperate
damages, though to a certain extent speculative, should
take into account the cost of proper care.
In the instant case, petitioners were able to provide only
home-based nursing care for a comatose patient who has
remained in that condition for over a decade. Having
premised our award for compensatory damages on the
amount provided by petitioners at the onset of litigation, it
would be now much more in step with the interests of
justice if the value awarded for temperate damages would
allow petitioners to provide optimal care for their loved
one in a facility which generally specializes in such
care. They should not be compelled by dire circumstances
to provide substandard care at home without the aid of
professionals, for anything less would be grossly
inadequate. Under
the
circumstances,
an
award
of P1,500,000.00 in temperate damages would therefore
be reasonable.[81]
In Valenzuela vs. Court of Appeals,[82] this Court was
confronted with a situation where the injury suffered by
the plaintiff would have led to expenses which were
difficult to estimate because while they would have been a
direct result of the injury (amputation), and were certain
to be incurred by the plaintiff, they were likely to arise
only in the future. We awarded P1,000,000.00 in moral
damages in that case.
Describing the nature of the injury, the Court therein
stated:
As a result of the accident, Ma. Lourdes Valenzuela
underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the
knee. Because of this, Valenzuela will forever be deprived
of the full ambulatory functions of her left extremity, even
with the use of state of the art prosthetic technology. Well
beyond the period of hospitalization (which was paid for
by Li), she will be required to undergo adjustments in her
prosthetic devise due to the shrinkage of the stump from
the process of healing.
These adjustments entail costs, prosthetic replacements
and months of physical and occupational rehabilitation
and therapy. During her lifetime, the prosthetic devise will
have to be replaced and readjusted to changes in the size
of her lower limb effected by the biological changes of
middle-age, menopause and aging. Assuming she reaches
menopause, for example, the prosthetic will have to be
adjusted to respond to the changes in bone resulting from
a precipitate decrease in calcium levels observed in the
bones of all post-menopausal women. In other words, the
damage done to her would not only be permanent and
lasting, it would also be permanently changing and
adjusting to the physiologic changes which her body
would normally undergo
through
the
years. The
replacements, changes, and adjustments will require
corresponding adjustive physical and occupational

15
therapy. All of these
documented, are painful.

adjustments,

it

has

been

A prosthetic devise, however technologically advanced,


will only allow a reasonable amount of functional
restoration of the motor functions of the lower limb. The
sensory functions are forever lost.The resultant anxiety,
sleeplessness, psychological injury, mental and physical
pain are inestimable.[83]
The injury suffered by Erlinda as a consequence of private
respondents negligence is certainly much more serious
than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the
incident occurred. She has been in a comatose state for
over fourteen years now. The burden of care has so far
been heroically shouldered by her husband and children,
who, in the intervening years have been deprived of the
love of a wife and a mother.

intubation in a salutary
respondents case.

way

was

fatal

to

private

WHEREFORE, the decision and resolution of the appellate


court appealed from are hereby modified so as to award in
favor of petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00 as actual
damages computed as of the date of promulgation of this
decision plus a monthly payment of P8,000.00 up to the
time that petitioner Erlinda Ramos expires or miraculously
survives;
2) P2,000,000.00
as
moral
damages,
3) P1,500,000.00 as temperate damages; 4) P100,000.00
each as exemplary damages and attorneys fees; and, 5)
the costs of the suit.
G.R. No. 137873

April 20, 2001

D.
M.
CONSUNJI,
INC., petitioner,
vs.
COURT OF APPEALS and MARIA J. JUEGO, respondents.

Meanwhile, the actual physical, emotional and financial


cost of the care of petitioner would be virtually impossible
to quantify. Even the temperate damages herein awarded
would be inadequate if petitioners condition remains
unchanged for the next ten years.

KAPUNAN, J.:

We recognized, in Valenzuela that a discussion of the


victims actual injury would not even scratch the surface of
the resulting moral damage because it would be highly
speculative to estimate the amount of emotional and
moral pain, psychological damage and injury suffered by
the victim or those actually affected by the victims
condition.[84] The husband and the children, all petitioners
in this case, will have to live with the day to day
uncertainty of the patients illness, knowing any hope of
recovery is close to nil. They have fashioned their daily
lives around the nursing care of petitioner, altering their
long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged
with the moral responsibility of the care of the victim. The
familys moral injury and suffering in this case is clearly a
real one. For the foregoing reasons, an award
of P2,000,000.00 in moral damages would be appropriate.

PO3 Rogelio Villanueva of the Eastern Police District


investigated the tragedy and filed a report dated
November 25, 1990, stating that:

Finally, by way of example, exemplary damages in the


amount of P100,000.00 are hereby awarded. Considering
the length and nature of the instant suit we are of the
opinion that attorneys fees valued at P100,000.00 are
likewise proper.
Our courts face unique difficulty in adjudicating medical
negligence cases because physicians are not insurers of
life and, they rarely set out to intentionally cause injury or
death to their patients.However, intent is immaterial in
negligence cases because where negligence exists and is
proven, the same automatically gives the injured a right to
reparation for the damage caused.
Established medical procedures and practices, though in
constant flux are devised for the purpose of preventing
complications. A physicians experience with his patients
would sometimes tempt him to deviate from established
community practices, and he may end a distinguished
career
using
unorthodox
methods
without
incident. However, when failure to follow established
procedure results in the evil precisely sought to be
averted by observance of the procedure and a nexus is
made between the deviation and the injury or damage,
the physician would necessarily be called to account for
it. In the case at bar, the failure to observe pre-operative
assessment protocol which would have influenced the

At around 1:30 p.m., November 2, 1990, Jose Juego, a


construction worker of D. M. Consunji, Inc., fell 14 floors
from the Renaissance Tower, Pasig City to his death.

x x x. [The] [v]ictim was rushed to [the] Rizal Medical


Center in Pasig, Metro Manila where he was pronounced
dead on arrival (DOA) by the attending physician, Dr. Errol
de Yzo[,] at around 2:15 p.m. of the same date.
Investigation disclosed that at the given time, date and
place, while victim Jose A. Juego together with Jessie
Jaluag and Delso Destajo [were] performing their work as
carpenter[s] at the elevator core of the 14 th floor of the
Tower D, Renaissance Tower Building on board a [p]latform
made of channel beam (steel) measuring 4.8 meters by 2
meters wide with pinulid plywood flooring and cable wires
attached to its four corners and hooked at the 5 ton chain
block, when suddenly, the bolt or pin which was merely
inserted to connect the chain block with the [p]latform,
got loose xxx causing the whole [p]latform assembly and
the victim to fall down to the basement of the elevator
core, Tower D of the building under construction thereby
crushing the victim of death, save his two (2) companions
who luckily jumped out for safety.
It is thus manifest that Jose A. Juego was crushed to death
when the [p]latform he was then on board and performing
work, fell. And the falling of the [p]latform was due to the
removal or getting loose of the pin which was merely
inserted to the connecting points of the chain block and
[p]latform but without a safety lock.1
On May 9, 1991, Jose Juegos widow, Maria, filed in the
Regional Trial Court (RTC) of Pasig a complaint for
damages against the deceaseds employer, D.M. Consunji,
Inc. The employer raised, among other defenses, the
widows prior availment of the benefits from the State
Insurance Fund.
After trial, the RTC rendered a decision in favor of the
widow Maria Juego. The dispositive portion of the RTC
decision reads:
WHEREFORE, judgment is hereby rendered ordering
defendant to pay plaintiff, as follows:
1. P50,000.00 for the death of Jose A. Juego.
2. P10,000.00 as actual and compensatory damages.

16
3. P464,000.00 for the loss of Jose A. Juegos earning
capacity.
4. P100,000.00 as moral damages.
5. P20,000.00 as attorneys fees, plus the costs of suit.
SO ORDERED.2
On appeal by D. M. Consunji, the Court of Appeals (CA)
affirmed the decision of the RTC in toto.
D. M. Consunji now seeks the reversal of the CA decision
on the following grounds:

THE APPELLATE COURT ERRED IN HOLDING THAT


THE POLICE REPORT WAS ADMISSIBLE EVIDENCE
OF THE ALLEGED NEGLIGENCE OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT


THE DOCTRINE OF RES IPSA LOQUITOR [sic] IS
APPLICABLE TO PROVE NEGLIGENCE ON THE PART
OF PETITIONER.

THE APPELLATE COURT ERRED IN HOLDING THAT


PETITIONER IS PRESUMED NEGLIGENT UNDER
ARTICLE 2180 OF THE CIVIL CODE, AND

THE APPELLATE COURT ERRED IN HOLDING THAT


RESPONDENT
IS
NOT
PRECLUDED
FROM
RECOVERING DAMAGES UNDER THE CIVIL CODE.3

Petitioner maintains that the police report reproduced


above is hearsay and, therefore, inadmissible. The CA
ruled otherwise. It held that said report, being an entry in
official records, is an exception to the hearsay rule.
The Rules of Court provide that a witness can testify only
to those facts which he knows of his personal knowledge,
that is, which are derived from his perception. 4 A witness,
therefore, may not testify as what he merely learned from
others either because he was told or read or heard the
same. Such testimony is considered hearsay and may not
be received as proof of the truth of what he has
learned.5 This is known as the hearsay rule.
Hearsay is not limited to oral testimony or statements; the
general rule that excludes hearsay as evidence applies to
written, as well as oral statements.6
The theory of the hearsay rule is that the many possible
deficiencies, suppressions, sources of error and
untrustworthiness, which lie underneath the bare untested
assertion of a witness, may be best brought to light and
exposed by the test of cross-examiantion.7 The hearsay
rule, therefore, excludes evidence that cannot be tested
by cross-examination.8
The Rules of Court allow several exceptions to the
rule,9 among which are entries in official records. Section
44, Rule 130 provides:
Entries in official records made in the performance of his
duty made in the performance of his duty by a public
officer of the Philippines, or by a person in the
performance of a duty specially enjoined by law are prima
facie evidence of the facts therein stated.
In Africa, et al. vs. Caltex (Phil.), Inc., et al.,10 this Court,
citing the work of Chief Justice Moran, enumerated the
requisites for admissibility under the above rule:
(a) that the entry was made by a public officer or by
another person specially enjoined by law to do so;
(b) that it was made by the public officer in the
performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and

(c) that the public officer or other person had sufficient


knowledge of the facts by him stated, which must have
been acquired by him personally or through official
information.
The CA held that the police report meets all these
requisites. Petitioner contends that the last requisite is not
present.
The Court notes that PO3 Villanueva, who signed the
report in question, also testified before the trial court.
In Rodriguez vs. Court of Appeals,11 which involved a Fire
Investigation Report, the officer who signed the fire report
also testified before the trial court. This Court held that
the report was inadmissible for the purpose of proving the
truth of the statements contained in the report but
admissible insofar as it constitutes part of the testimony
of the officer who executed the report.
x x x. Since Major Enriquez himself took the witness stand
and was available for cross-examination, the portions of
the report which were of his personal knowledge or which
consisted of his perceptions and conclusions were not
hearsay. The rest of the report, such as the summary of
the statements of the parties based on their sworn
statements (which were annexed to the Report) as well as
the latter, having been included in the first purpose of the
offer [as part of the testimony of Major Enriquez], may
then
be
considered
as independently
relevant
statements which were gathered in the course of the
investigation and may thus be admitted as such, but not
necessarily to prove the truth thereof. It has been said
that:
"Where regardless of the truth or falsity of a statement,
the fact that it has been made is relevant, the hearsay
rule does not apply, but the statement may be shown.
Evidence as to the making of such statement is not
secondary but primary, for the statement itself may
constitute a fact in issue, or be circumstantially relevant
as to the existence of such a fact."
When Major Enriquez took the witness stand, testified for
petitioners on his Report and made himself available for
cross-examination by the adverse party, the Report,
insofar as it proved that certain utterances were made
(but not their truth), was effectively removed from the
ambit of the aforementioned Section 44 of Rule 130.
Properly understood, this section does away with the
testimony in open court of the officer who made the
official record, considers the matter as an exception to the
hearsay rule and makes the entries in said official record
admissible in evidence as prima facie evidence of the
facts therein stated. The underlying reasons for this
exceptionary rule are necessity and trustworthiness, as
explained in Antillon v. Barcelon.
The litigation is unlimited in which testimony by officials is
daily needed; the occasions in which the officials would be
summoned from his ordinary duties to declare as a
witness are numberless. The public officers are few in
whose daily work something is not done in which
testimony is not needed from official sources. Were there
no exception for official statements, hosts of officials
would be found devoting the greater part of their time to
attending as witnesses in court or delivering deposition
before an officer. The work of administration of
government and the interest of the public having business
with officials would alike suffer in consequence. For these
reasons, and for many others, a certain verity is accorded

17
such documents, which is not extended to private
documents. (3 Wigmore on Evidence, Sec. 1631).

negligence on the part of the defendant, or some other


person who is charged with negligence.

The law reposes a particular confidence in public officers


that it presumes they will discharge their several trusts
with accuracy and fidelity; and, therefore, whatever acts
they do in discharge of their duty may be given in
evidence and shall be taken to be true under such a
degree of caution as to the nature and circumstances of
each case may appear to require.

x x x where it is shown that the thing or instrumentality


which caused the injury complained of was under the
control or management of the defendant, and that the
occurrence resulting in the injury was such as in the
ordinary course of things would not happen if those who
had its control or management used proper care, there is
sufficient evidence, or, as sometimes stated, reasonable
evidence, in the absence of explanation by the defendant,
that the injury arose from or was caused by the
defendants want of care.21

It would have been an entirely different matter if Major


Enriquez was not presented to testify on his report. In that
case the applicability of Section 44 of Rule 143 would have
been ripe for determination, and this Court would have
agreed with the Court of Appeals that said report was
inadmissible since the aforementioned third requisite was
not satisfied. The statements given by the sources of
information of Major Enriquez failed to qualify as "official
information," there being no showing that, at the very
least, they were under a duty to give the statements for
record.
Similarly, the police report in this case is inadmissible for
the purpose of proving the truth of the statements
contained therein but is admissible insofar as it
constitutes part of the testimony of PO3 Villanueva.
In any case, the Court holds that portions of PO3
Villanuevas testimony which were of his personal
knowledge suffice to prove that Jose Juego indeed died as
a result of the elevator crash. PO3 Villanueva had seen
Juegos remains at the morgue, 12 making the latters death
beyond dispute. PO3 Villanueva also conducted an ocular
inspection of the premises of the building the day after the
incident13 and saw the platform for himself. 14 He observed
that the platform was crushed15 and that it was totally
damaged.16 PO3 Villanueva also required Garcia and Fabro
to bring the chain block to the police headquarters. Upon
inspection, he noticed that the chain was detached from
the lifting machine, without any pin or bolt.17
What petitioner takes particular exception to is PO3
Villanuevas testimony that the cause of the fall of the
platform was the loosening of the bolt from the chain
block. It is claimed that such portion of the testimony is
mere opinion. Subject to certain exceptions,18 the opinion
of a witness is generally not admissible.19
Petitioners contention, however, loses relevance in the
face of the application of res ipsa loquitur by the CA. The
effect of the doctrine is to warrant a presumption or
inference that the mere fall of the elevator was a result of
the person having charge of the instrumentality was
negligent. As a rule of evidence, the doctrine of res ipsa
loquitur is peculiar to the law of negligence which
recognizes
that prima
facie negligence
may
be
established without direct proof and furnishes a substitute
for specific proof of negligence.20
The concept of res ipsa loquitur has been explained in this
wise:
While negligence is not ordinarily inferred or presumed,
and while the mere happening of an accident or injury will
not generally give rise to an inference or presumption that
it was due to negligence on defendants part, under the
doctrine of res ipsa loquitur, which means, literally, the
thing or transaction speaks for itself, or in one jurisdiction,
that the thing or instrumentality speaks for itself, the facts
or circumstances accompanying an injury may be such as
to raise a presumption, or at least permit an inference of

One of the theoretical based for the doctrine is its


necessity, i.e., that necessary evidence is absent or not
available.22
The res ipsa loquitur doctrine is based in part upon the
theory that the defendant in charge of the instrumentality
which causes the injury either knows the cause of the
accident or has the best opportunity of ascertaining it and
that the plaintiff has no such knowledge, and therefore is
compelled to allege negligence in general terms and to
rely upon the proof of the happening of the accident in
order to establish negligence. The inference which the
doctrine permits is grounded upon the fact that the chief
evidence of the true cause, whether culpable or innocent,
is practically accessible to the defendant but inaccessible
to the injured person.
It has been said that the doctrine of res ipsa loquitur
furnishes a bridge by which a plaintiff, without knowledge
of the cause, reaches over to defendant who knows or
should know the cause, for any explanation of care
exercised by the defendant in respect of the matter of
which the plaintiff complains. The res ipsa loquitur
doctrine, another court has said, is a rule of necessity, in
that it proceeds on the theory that under the peculiar
circumstances in which the doctrine is applicable, it is
within the power of the defendant to show that there was
no negligence on his part, and direct proof of defendants
negligence is beyond plaintiffs power. Accordingly, some
court add to the three prerequisites for the application of
the res ipsa loquitur doctrine the further requirement that
for the res ipsa loquitur doctrine to apply, it must appear
that the injured party had no knowledge or means of
knowledge as to the cause of the accident, or that the
party to be charged with negligence has superior
knowledge or opportunity for explanation of the
accident.23
The CA held that all the requisites of res ipsa loquitur are
present in the case at bar:
There is no dispute that appellees husband fell down from
the 14th floor of a building to the basement while he was
working with appellants construction project, resulting to
his death. The construction site is within the exclusive
control and management of appellant. It has a safety
engineer, a project superintendent, a carpenter leadman
and others who are in complete control of the situation
therein. The circumstances of any accident that would
occur therein are peculiarly within the knowledge of the
appellant or its employees. On the other hand, the
appellee is not in a position to know what caused the
accident. Res ipsa loquitur is a rule of necessity and it
applies where evidence is absent or not readily available,
provided the following requisites are present: (1) the
accident was of a kind which does not ordinarily occur
unless someone is negligent; (2) the instrumentality or

18
agency which caused the injury was under the exclusive
control of the person charged with negligence; and (3) the
injury suffered must not have been due to any voluntary
action or contribution on the part of the person injured. x x
x.
No worker is going to fall from the 14th floor of a building
to the basement while performing work in a construction
site unless someone is negligent[;] thus, the first requisite
for the application of the rule of res ipsa loquitur is
present. As explained earlier, the construction site with all
its paraphernalia and human resources that likely caused
the injury is under the exclusive control and management
of appellant[;] thus[,] the second requisite is also present.
No contributory negligence was attributed to the
appellees deceased husband[;] thus[,] the last requisite is
also present. All the requisites for the application of the
rule of res ipsa loquitur are present, thus a reasonable
presumption or inference of appellants negligence arises.
x x x.24
Petitioner does not dispute the existence of the requisites
for the application of res ipsa loquitur, but argues that the
presumption or inference that it was negligent did not
arise since it "proved that it exercised due care to avoid
the accident which befell respondents husband."
Petitioner apparently misapprehends the procedural effect
of the doctrine. As stated earlier, the defendants
negligence is presumed or inferred25 when the plaintiff
establishes the requisites for the application of res ipsa
loquitur. Once the plaintiff makes out a prima facie case of
all the elements, the burden then shifts to defendant to
explain.26 The presumption or inference may be rebutted
or overcome by other evidence and, under appropriate
circumstances disputable presumption, such as that of
due care or innocence, may outweigh the inference.27 It is
not for the defendant to explain or prove its defense to
prevent the presumption or inference from arising.
Evidence by the defendant of say, due care, comes into
play only after the circumstances for the application of the
doctrine has been established.1wphi1.nt
In any case, petitioner cites the sworn statement of its
leadman Ferdinand Fabro executed before the police
investigator as evidence of its due care. According to
Fabros sworn statement, the company enacted rules and
regulations for the safety and security of its workers.
Moreover, the leadman and the bodegero inspect the
chain block before allowing its use.
It is ironic that petitioner relies on Fabros sworn
statement as proof of its due care but, in arguing that
private respondent failed to prove negligence on the part
of petitioners employees, also assails the same statement
for being hearsay.
Petitioner is correct. Fabros sworn statement is hearsay
and inadmissible. Affidavits are inadmissible as evidence
under the hearsay rule, unless the affiant is placed on the
witness stand to testify thereon.28 The inadmissibility of
this sort of evidence is based not only on the lack of
opportunity on the part of the adverse party to crossexamine the affiant, but also on the commonly known fact
that, generally, an affidavit is not prepared by the affiant
himself but by another who uses his own language in
writing the affiants statements which may either be
omitted or misunderstood by
the one
writing
them.29 Petitioner, therefore, cannot use said statement as
proof of its due care any more than private respondent
can use it to prove the cause of her husbands death.

Regrettably, petitioner does not cite any other evidence to


rebut the inference or presumption of negligence arising
from the application of res ipsa loquitur, or to establish
any defense relating to the incident.
Next, petitioner argues that private respondent had
previously availed of the death benefits provided under
the Labor Code and is, therefore, precluded from claiming
from the deceaseds employer damages under the Civil
Code.
Article 173 of the Labor Code states:
Article 173. Extent of liability. Unless otherwise provided,
the liability of the State Insurance Fund under this Title
shall be exclusive and in place of all other liabilities of the
employer to the employee, his dependents or anyone
otherwise entitled to receive damages on behalf of the
employee or his dependents. The payment of
compensation under this Title shall not bar the recovery of
benefits as provided for in Section 699 of the Revised
Administrative Code, Republic Act Numbered Eleven
hundred sixty-one, as amended, Republic Act Numbered
Six hundred ten, as amended, Republic Act Numbered
Forty-eight hundred sixty-four as amended, and other laws
whose benefits are administered by the System or by
other agencies of the government.
The precursor of Article 173 of the Labor Code, Section 5
of the Workmens Compensation Act, provided that:
Section 5. Exclusive right to compensation. The rights
and remedies granted by this Act to an employee by
reason of a personal injury entitling him to compensation
shall exclude all other rights and remedies accruing to the
employee, his personal representatives, dependents or
nearest of kin against the employer under the Civil Code
and other laws because of said injury x x x.
Whether Section 5 of the Workmens Compensation Act
allowed recovery under said Act as well as under the Civil
Code used to be the subject of conflicting decisions. The
Court finally settled the matter in Floresca vs.Philex
Mining Corporation,30 which involved a cave-in resulting in
the death of the employees of the Philex Mining
Corporation. Alleging that the mining corporation, in
violation of government rules and regulations, failed to
take the required precautions for the protection of the
employees, the heirs of the deceased employees filed a
complaint against Philex Mining in the Court of First
Instance (CFI). Upon motion of Philex Mining, the CFI
dismissed the complaint for lack of jurisdiction. The heirs
sought relief from this Court.
Addressing the issue of whether the heirs had a choice of
remedies, majority of the Court En Banc,31 following the
rule in Pacaa vs. Cebu Autobus Company, held in the
affirmative.
WE now come to the query as to whether or not the
injured employee or his heirs in case of death have a right
of selection or choice of action between availing
themselves of the workers right under the Workmens
Compensation Act and suing in the regular courts under
the Civil Code for higher damages (actual, moral and
exemplary) from the employers by virtue of the
negligence or fault of the employers or whether they may
avail themselves cumulatively of both actions, i.e., collect
the limited compensation under the Workmens
Compensation Act and sue in addition for damages in the
regular courts.

19
In disposing of a similar issue, this Court in Pacaa vs.
Cebu Autobus Company, 32 SCRA 442, ruled that an
injured worker has a choice of either to recover from the
employer the fixed amounts set by the Workmens
Compensation Act or to prosecute an ordinary civil action
against the tortfeasor for higher damages but he cannot
pursue
both
courses
of
action
simultaneously.
[Underscoring supplied.]

remedy will exclude the other and that the acceptance of


compensation under the remedy chosen will preclude a
claim for additional benefits under the other remedy. The
exception is where a claimant who has already been paid
under the Workmens Compensation Act may still sue for
damages under the Civil Code on the basis of supervening
facts or developments occurring after he opted for the first
remedy. (Underscoring supplied.)

Nevertheless, the Court allowed some of the petitioners in


said case to proceed with their suit under the Civil Code
despite having availed of the benefits provided under the
Workmens Compensation Act. The Court reasoned:

Here, the CA held that private respondents case came


under the exception because private respondent was
unaware of petitioners negligence when she filed her
claim for death benefits from the State Insurance Fund.
Private respondent filed the civil complaint for damages
after she received a copy of the police investigation report
and the Prosecutors Memorandum dismissing the criminal
complaint against petitioners personnel. While stating
that there was no negligence attributable to the
respondents in the complaint, the prosecutor nevertheless
noted in the Memorandum that, "if at all," the "case is civil
in nature." The CA thus applied the exception in Floresca:

With regard to the other petitioners, it was alleged by


Philex in its motion to dismiss dated May 14, 1968 before
the court a quo, that the heirs of the deceased employees,
namely Emerito Obra, Larry Villar, Jr., Aurelio Lanuza,
Lorenzo Isla and Saturnino submitted notices and claims
for compensation to the Regional Office No. 1 of the then
Department of Labor and all of them have been paid in full
as of August 25, 1967, except Saturnino Martinez whose
heirs decided that they be paid in installments x x x. Such
allegation was admitted by herein petitioners in their
opposition to the motion to dismiss dated may 27, 1968 x
x x in the lower court, but they set up the defense that the
claims were filed under the Workmens Compensation Act
before they learned of the official report of the committee
created to investigate the accident which established the
criminal negligence and violation of law by Philex, and
which report was forwarded by the Director of Mines to
then Executive Secretary Rafael Salas in a letter dated
October 19, 1967 only x x x.
WE hold that although the other petitioners had received
the benefits under the Workmens Compensation Act, such
my not preclude them from bringing an action before the
regular court because they became cognizant of the fact
that Philex has been remiss in its contractual obligations
with the deceased miners only after receiving
compensation under the Act. Had petitioners been aware
of said violation of government rules and regulations by
Philex, and of its negligence, they would not have sought
redress under the Workmens Compensation Commission
which awarded a lesser amount for compensation. The
choice of the first remedy was based on ignorance or a
mistake of fact, which nullifies the choice as it was not an
intelligent choice. The case should therefore be remanded
to the lower court for further proceedings. However,
should the petitioners be successful in their bid before the
lower court, the payments made under the Workmens
Compensation Act should be deducted from the damages
that may be decreed in their favor. [Underscoring
supplied.]
The ruling in Floresca providing the claimant a choice of
remedies was reiterated in Ysmael Maritime Corporation
vs.
Avelino,32 Vda.
De
Severo
vs.
FelicianoGo,33 and Marcopper Mining Corp. vs. Abeleda.34 In the last
case, the Court again recognized that a claimant who had
been paid under the Act could still sue under the Civil
Code. The Court said:
In the Robles case, it was held that claims for damages
sustained by workers in the course of their employment
could be filed only under the Workmens Compensation
Law, to the exclusion of all further claims under other
laws. In Floresca, this doctrine was abrogated in favor of
the new rule that the claimants may invoke either the
Workmens Compensation Act or the provisions of the Civil
Code, subject to the consequence that the choice of one

x x x We do not agree that appellee has knowledge of the


alleged negligence of appellant as early as November 25,
1990, the date of the police investigators report. The
appellee merely executed her sworn statement before the
police investigator concerning her personal circumstances,
her relation to the victim, and her knowledge of the
accident. She did not file the complaint for "Simple
Negligence Resulting to Homicide" against appellants
employees. It was the investigator who recommended the
filing of said case and his supervisor referred the same to
the prosecutors office. This is a standard operating
procedure for police investigators which appellee may not
have even known. This may explain why no complainant is
mentioned in the preliminary statement of the public
prosecutor in her memorandum dated February 6, 1991,
to wit: "Respondent Ferdinand Fabro x x x are being
charged by complainant of "Simple Negligence Resulting
to Homicide." It is also possible that the appellee did not
have a chance to appear before the public prosecutor as
can be inferred from the following statement in said
memorandum: "Respondents who were notified pursuant
to Law waived their rights to present controverting
evidence," thus there was no reason for the public
prosecutor to summon the appellee. Hence, notice of
appellants negligence cannot be imputed on appellee
before she applied for death benefits under ECC or before
she received the first payment therefrom. Her using the
police investigation report to support her complaint filed
on May 9, 1991 may just be an afterthought after
receiving a copy of the February 6, 1991 Memorandum of
the Prosecutors Office dismissing the criminal complaint
for insufficiency of evidence, stating therein that: "The
death of the victim is not attributable to any negligence
on the part of the respondents. If at all and as shown by
the records this case is civil in nature." (Underscoring
supplied.) Considering the foregoing, We are more inclined
to believe appellees allegation that she learned about
appellants negligence only after she applied for and
received the benefits under ECC. This is a mistake of fact
that will make this case fall under the exception held in
the Floresca ruling.35
The CA further held that not only was private respondent
ignorant of the facts, but of her rights as well:
x x x. Appellee [Maria Juego] testified that she has
reached only elementary school for her educational
attainment; that she did not know what damages could be
recovered from the death of her husband; and that she did

20
not know that she may also recover more from the Civil
Code than from the ECC. x x x.36

It is in light of the foregoing principles that we address


petitioners contentions.

Petitioner impugns the foregoing rulings. It contends that


private respondent "failed to allege in her complaint that
her application and receipt of benefits from the ECC were
attended by ignorance or mistake of fact. Not being an
issue submitted during the trial, the trial court had no
authority to hear or adjudicate that issue."

Waiver is a defense, and it was not incumbent upon


private respondent, as plaintiff, to allege in her complaint
that she had availed of benefits from the ECC. It is, thus,
erroneous for petitioner to burden private respondent with
raising waiver as an issue. On the contrary, it is the
defendant who ought to plead waiver, as petitioner did in
pages 2-3 of its Answer;41 otherwise, the defense is
waived. It is, therefore, perplexing for petitioner to now
contend that the trial court had no jurisdiction over the
issue when petitioner itself pleaded waiver in the
proceedings before the trial court.

Petitioner also claims that private respondent could not


have been ignorant of the facts because as early as
November 28, 1990, private respondent was the
complainant in a criminal complaint for "Simple
Negligence Resulting to Homicide" against petitioners
employees. On February 6, 1991, two months before the
filing of the action in the lower court, Prosecutor Lorna Lee
issued a resolution finding that, although there was
insufficient evidence against petitioners employees, the
case was "civil in nature." These purportedly show that
prior to her receipt of death benefits from the ECC on
January 2, 1991 and every month thereafter, private
respondent also knew of the two choices of remedies
available to her and yet she chose to claim and receive
the benefits from the ECC.
When a party having knowledge of the facts makes an
election between inconsistent remedies, the election is
final and bars any action, suit, or proceeding inconsistent
with the elected remedy, in the absence of fraud by the
other party. The first act of election acts as a
bar.37 Equitable in nature, the doctrine of election of
remedies is designed to mitigate possible unfairness to
both parties. It rests on the moral premise that it is fair to
hold people responsible for their choices. The purpose of
the doctrine is not to prevent any recourse to any remedy,
but to prevent a double redress for a single wrong.38
The choice of a party between inconsistent remedies
results in a waiver by election. Hence, the rule
in Floresca that a claimant cannot simultaneously pursue
recovery under the Labor Code and prosecute an ordinary
course of action under the Civil Code. The claimant, by his
choice of one remedy, is deemed to have waived the
other.
Waiver is the intentional relinquishment of a known right.39
[It] is an act of understanding that presupposes that a
party has knowledge of its rights, but chooses not to
assert them. It must be generally shown by the party
claiming a waiver that the person against whom the
waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the partys rights or of all
material facts upon which they depended. Where one
lacks knowledge of a right, there is no basis upon which
waiver of it can rest. Ignorance of a material fact negates
waiver, and waiver cannot be established by a consent
given under a mistake or misapprehension of fact.
A person makes a knowing and intelligent waiver when
that person knows that a right exists and has adequate
knowledge upon which to make an intelligent decision.
Waiver requires a knowledge of the facts basic to the
exercise of the right waived, with an awareness of its
consequences. That a waiver is made knowingly and
intelligently must be illustrated on the record or by the
evidence.40
That lack of knowledge of a fact that nullifies the election
of a remedy is the basis for the exception in Floresca.

Does the evidence show that private respondent knew of


the facts that led to her husbands death and the rights
pertaining to a choice of remedies?
It bears stressing that what negates waiver is lack of
knowledge or a mistake of fact. In this case, the "fact" that
served as a basis for nullifying the waiver is
the negligence of petitioners employees, of which private
respondent purportedly learned only after the prosecutor
issued a resolution stating that there may be civil liability.
In Floresca, it was the negligence of the mining
corporation and its violation of government rules and
regulations. Negligence, or violation of government rules
and regulations, for that matter, however, is not a fact,
but a conclusion of law, over which only the courts have
the final say. Such a conclusion binds no one until the
courts have decreed so. It appears, therefore, that the
principle that ignorance or mistake of fact nullifies a
waiver has been misapplied in Floresca and in the case at
bar.
In any event, there is no proof that private respondent
knew that her husband died in the elevator crash when on
November 15, 1990 she accomplished her application for
benefits from the ECC. The police investigation report is
dated November 25, 1990, 10 days after the
accomplishment of the form. Petitioner filed the
application in her behalf on November 27, 1990.
There is also no showing that private respondent knew of
the remedies available to her when the claim before the
ECC was filed. On the contrary, private respondent
testified that she was not aware of her rights.
Petitioner, though, argues that under Article 3 of the Civil
Code, ignorance of the law excuses no one from
compliance therewith. As judicial decisions applying or
interpreting the laws or the Constitution form part of the
Philippine legal system (Article 8, Civil Code), private
respondent cannot claim ignorance of this Courts ruling
in Floresca allowing a choice of remedies.
The argument has no merit. The application of Article 3 is
limited to mandatory and prohibitory laws. 42 This may be
deduced from the language of the provision, which,
notwithstanding a persons ignorance, does not excuse his
or
her compliance with
the
laws.
The
rule
in Floresca allowing private respondent a choice of
remedies
is
neither
mandatory
nor
prohibitory.
Accordingly, her ignorance thereof cannot be held against
her.
Finally, the Court modifies the affirmance of the award of
damages. The records do not indicate the total amount
private respondent ought to receive from the ECC,
although it appears from Exhibit "K"43 that she received
P3,581.85 as initial payment representing the accrued

21
pension from November 1990 to March 1991. Her initial
monthly pension, according to the same Exhibit "K," was
P596.97 and present total monthly pension was P716.40.
Whether the total amount she will eventually receive from
the ECC is less than the sum of P644,000.00 in total
damages awarded by the trial court is subject to
speculation, and the case is remanded to the trial court for
such determination. Should the trial court find that its
award is greater than that of the ECC, payments already
received by private respondent under the Labor Code shall
be deducted from the trial court' award of damages.
Consistent with our ruling in Floresca, this adjudication
aims to prevent double compensation.
WHEREFORE, the case is REMANDED to the Regional Trial
Court of Pasig City to determine whether the award
decreed in its decision is more than that of the ECC.
Should the award decreed by the trial court be greater
than that awarded by the ECC, payments already made to
private respondent pursuant to the Labor Code shall be
deducted therefrom. In all other respects, the Decision of
the Court of Appeals is AFFIRMED.
FAR
EASTERN
SHIPPING
COMPANY, petitioner,
vs. COURT OF APPELAS and PHILIPPINE PORTS
AUTHORITY, respondents.
[G.R. No. 130150. October 1, 1998]
MANILA
PILOTS
ASSOCIATION, petitioner,
vs. PHILIPPINE PORTS AUTHORITY and FAR EASTERN
SHIPPING COMPANY, respondents.
DECISION
REGALADO, J.:
These consolidated petitions for review on certiorari seek
in unison to annul and set aside the decision [1] of
respondent Court of Appeals of November 15, 1996 and
its resolution[2]dated July 31, 1997 in CA-G.R. CV No.
24072, entitled Philippine Ports Authority, PlaintiffAppellee vs. Far Eastern Shipping Company, Senen C.
Gavino
and
Manila
Pilots
Association.DefendantsAppellants, which affirmed with modification the judgment
of the trial court holding the defendants-appellants therein
solidarily liable for damages in favor of herein private
respondent.
There is no dispute about the facts as found by the
appellate court, thus -x x x On June 20, 1980, the M/V PAVLODAR, flying under
the flagship of the USSR, owned and operated by the Far
Eastern Shipping Company (FESC for brevitys sake),
arrived at the Port of Manila from Vancouver, British
Columbia at about 7:00 oclock in the morning. The vessel
was assigned Berth 4 of the Manila International Port, as
its berthing space. Captain Roberto Abellana was tasked
by the Philippine Port Authority to supervise the berthing
of the vessel. Appellant Senen Gavino was assigned by the
appellant Manila Pilots Association (MPA for brevitys sake)
to conduct docking maneuvers for the safe berthing of the
vessel to Berth No. 4.
Gavino boarded the vessel at the quarantine anchorage
and stationed himself in the bridge, with the master of the
vessel, Victor Kavankov, beside him. After a briefing of
Gavino by Kavankov of the particulars of the vessel and its
cargo, the vessel lifted anchor from the quarantine
anchorage and proceeded to the Manila International

Port. The sea was calm and the wind was ideal for docking
maneuvers.
When the vessel reached the landmark (the big church by
the Tondo North Harbor) one-half mile from the pier,
Gavino ordered the engine stopped. When the vessel was
already about 2,000 feet from the pier, Gavino ordered the
anchor dropped. Kavankov relayed the orders to the crew
of the vessel on the bow. The left anchor, with two (2)
shackles were dropped.However, the anchor did not take
hold as expected. The speed of the vessel did not
slacken. A commotion ensued between the crew
members. A brief conference ensued between Kavankov
and the crew members. When Gavino inquired what was
all the commotion about, Kavankov assured Gavino that
there was nothing of it.
After Gavino noticed that the anchor did not take hold, he
ordered the engines half-astern. Abellana, who was then
on the pier apron, noticed that the vessel was approaching
the pier fast.Kavankov likewise noticed that the anchor did
not take hold. Gavino thereafter gave the full-astern
code. Before the right anchor and additional shackles
could be dropped, the bow of the vessel rammed into the
apron of the pier causing considerable damage to the
pier. The vessel sustained damage too. (Exhibit 7-Far
Eastern Shipping). Kavankov filed his sea protest
(Exhibit 1-Vessel). Gavino submitted his report to the Chief
Pilot (Exhibit 1-Pilot) who referred the report to the
Philippine Ports Authority (Exhibit 2-Pilot) Abellana likewise
submitted his report of the incident (Exhibit B).
Per contract and supplemental contract of the Philippine
Ports Authority and the contractor for the rehabilitation of
the damaged pier, the same cost the Philippine Ports
Authority the amount of P1,126,132.25 (Exhibits D and E).
[3]

On January 10, 1983, the Philippine Ports Authority (PPA,


for brevity), through the Solicitor General, filed before the
Regional Trial Court of Manila, Branch 39, a complaint for a
sum of money against Far Eastern Shipping Co., Capt.
Senen C. Gavino and the Manila Pilots Association,
docketed as Civil Case No. 83-14958, [4] praying that the
defendants therein be held jointly and severally liable to
pay the plaintiff actual and exemplary damages plus costs
of suit. In a decision dated August 1, 1985, the trial court
ordered the defendants therein jointly and severally to pay
the PPA the amount of P1,053,300.00 representing actual
damages and the cost of suit.[5]
The defendants appealed to the Court of Appeals and
raised the following issues: (1) Is the pilot of a commercial
vessel, under compulsory pilotage, solely liable for the
damage caused by the vessel to the pier, at the port of
destination, for his negligence? And (2) Would the owner
of the vessel be liable likewise if the damage is caused by
the concurrent negligence of the master of vessel and the
pilot under a compulsory pilotage?
As stated at the outset, respondent appellate court
affirmed the findings of the court a quo except that it
found no employer-employee relationship existing
between herein private respondents Manila Pilots
Association (MPA, for short) and Capt. Gavino. [6] This being
so, it ruled instead that the liability of MPA is anchored,
not on Article 2180 of the Civil Code, but on the provisions
of Customs Administrative Order No. 15-65, [7] and
accordingly modified said decision of the trial court by
holding MPA, along with its co-defendants therein, still
solidarily liable to PPA but entitled MPA to reimbursement

22
from Capt. Gavino for such amount of the adjudged
pecuniary liability in excess of the amount equivalent to
seventy-five percent (75%) of its prescribed reserve fund.
[8]

Neither Far Eastern Shipping Co. (briefly, FESC) nor MPA


was happy with the decision of the Court of Appeals and
both of them elevated their respective plaints to us via
separate petitions for review on certiorari.
In G.R. No. 130068, which was assigned to the Second
Division of this Court, FESC imputed that the Court of
Appeals seriously erred:
1. in not holding Senen C. Gavino and the Manila Pilots
Association as the parties solely responsible for the
resulting damages sustained by the pier deliberately
ignoring the established jurisprudence on the matter.
2. in holding that the master had not exercised the
required
diligence
demanded
from
him by
the
circumstances at the time the incident happened;
3. in affirming the amount of damages sustained by the
respondent Philippine Ports Authority despite a strong and
convincing evidence that the amount is clearly exorbitant
and unreasonable;
4. in not awarding any amount of counterclaim prayed for
by the petitioner in its answer; and
5. in not granting herein petitioner's claim against pilot
Senen C. Gavino and Manila Pilots' Association in the
event that it be held liable.[9]
Petitioner asserts that since the MV PAVLODAR was under
compulsory pilotage at the time of the incident, it was a
compulsory pilot, Capt. Gavino, who was in command and
had complete control in the navigation and docking of the
vessel. It is the pilot who supersedes the master for the
time being in the command and navigation of a ship and
his orders must be obeyed in all respects connected with
her navigation. Consequently, he was solely responsible
for the damage caused upon the pier apron, and not the
owners of the vessel. It claims that the master of the boat
did not commit any act of negligence when he failed to
countermand or overrule the orders of the pilot because
he did not see any justifiable reason to do so. In other
words, the master cannot be faulted for relying absolutely
on the competence of the compulsory pilot. If the master
does not observe that a compulsory pilot is incompetent
or physically incapacitated, the master is justified in
relying on the pilot.[10]
Respondent PPA, in its comment, predictably in full
agreement with the ruling of respondent court on the
solidary liability of FESC, MPA and Capt. Gavino, stresses
the concurrent negligence of Capt. Gavino, the harbor
pilot, and Capt. Viktor Kabankov,* shipmaster of MV
Pavlodar, as the basis of their solidary liability for
damages sustained by PPA. It posits that the vessel was
being piloted by Capt. Gavino with Capt. Kabankov beside
him all the while on the bridge of the vessel, as the former
took over the helm of MV Pavlodar when it rammed and
damaged the apron of the pier of Berth No. 4 of the Manila
International Port. Their concurrent negligence was the
immediate and proximate cause of the collision between
the vessel and the pier - Capt. Gavino, for his negligence
in the conduct of docking maneuvers for the safe berthing
of the vessel; and Capt. Kabankov, for failing to
countermand the orders of the harbor pilot and to take
over and steer the vessel himself in the face of imminent

danger, as well as for merely relying on Capt. Gavino


during the berthing procedure.[11]
On the other hand, in G.R. No. 130150, originally assigned
to the Court's First Division and later transferred to the
Third Division, MPA, now as petitioner in this case, avers
the respondent court's errors consisted in disregarding
and misinterpreting Customs Administrative Order No. 1565 which limits the liability of MPA. Said pilots' association
asseverates that it should not be held solidarily liable with
Capt. Gavino who, as held by respondent court, is only a
member, not an employee, thereof. There being no
employer-employee relationship, neither can MPA be held
liable for any vicarious liability for the respective exercise
of profession by its members nor be considered a joint
tortfeasor as to be held jointly and severally liable. [12] It
further argues that there was erroneous reliance on
Customs Administrative Order No. 15-65 and the
constitution and by-laws of MPA, instead of the provisions
of the Civil Code on damages which, being a substantive
law, is higher in category than the aforesaid constitution
and by-laws of a professional organization or an
administrative order which bears no provision classifying
the nature of the liability of MPA for the negligence its
member pilots.[13]
As for Capt. Gavino, counsel for MPA states that the
former had retired from active pilotage services since July
28, 1994 and has ceased to be a member of petitioner
pilots' association. He is not joined as a petitioner in this
case since his whereabouts are unknown.[14]
FESC's comment thereto relied on the competence of the
Court of Appeals in construing provisions of law or
administrative orders as basis for ascertaining the liability
of MPA, and expressed full accord with the appellate
court's holding of solidary liability among itself, MPA and
Capt. Gavino. It further avers that the disputed provisions
of Customs Administrative Order No. 15-65 clearly
established MPA's solidary liability.[15]
On the other hand, public respondent PPA, likewise
through representations by the Solicitor General, assumes
the same supportive stance it took in G.R. No. 130068 in
declaring its total accord with the ruling of the Court of
Appeals that MPA is solidarily liable with Capt. Gavino and
FESC for damages, and in its application to the fullest
extent of the provisions of Customs Administrative Order
No. 15-65 in relation to MPA's constitution and by-laws
which spell out the conditions of and govern their
respective liabilities. These provisions are clear and
ambiguous as regards MPA's liability without need for
interpretation
or
construction. Although
Customs
Administrative Order No. 15-65 is a mere regulation issued
by an administrative agency pursuant to delegated
legislative authority to fix details to implement the law, it
is legally binding and has the same statutory force as any
valid statute.[16]
Upon motion[17] by FESC dated April 24, 1998 in G.R. No.
130150, said case was consolidated with G.R. No. 130068.
[18]

Prefatorily, on matters of compliance with procedural


requirements, it must be mentioned that the conduct of
the respective counsel for FESC and PPA leaves much to
be desired, to the displeasure and disappointment of this
Court.
Section 2, Rule 42 of the 1997 Rules of Civil
Procedure[19] incorporates the former Circular No. 28-91

23
which provided for what has come to be known as the
certification against forum shopping as an additional
requisite for petitions filed with the Supreme Court and
the Court of Appeals, aside from the other requirements
contained in pertinent provisions of the Rules of Court
therefor, with the end in view of preventing the filing of
multiple complaints involving the same issues in the
Supreme Court, Court of Appeals or different divisions
thereof or any other tribunal or agency.
More particularly, the second paragraph of Section 2, Rule
42 provides:
The petitioner shall also submit together with the petition
a certification under oath that he has not therefore
commenced any other action involving the same issues in
the Supreme Court, the Court of Appeals or different
divisions thereof, or any other tribunal or agency; if there
is such other action or proceeding, he must state the
status of the same; and if he should thereafter learn that
a similar action or proceeding has been filed or is pending
before the Supreme Court, the Court of Appeals or
different divisions thereof, or any other tribunal or agency,
he undertakes to promptly inform the aforesaid courts
and other tribunal or agency thereof within five (5) days
therefrom. (Italics supplied.)
For petitions for review filed before the Supreme Court,
Section 4(e), Rule 45 specifically requires that such
petition shall contain a sworn certification against forum
shopping as provided in the last paragraph of Section 2,
Rule 42.
The records show that the law firm of Del Rosario and Del
Rosario through its associate, Atty. Herbert A. Tria, is the
counsel of record for FESC in both G.R. No. 130068 and
G.R. No. 130150.
G.R. No. 130068, which is assigned to the Court's Second
Division, commenced with the filing by FESC through
counsel on August 22, 1997 of a verified motion for
extension of time to file its petition for thirty (30) days
from August 28, 1997 or until September 27, 1997. [20] Said
motion contained the following certification against forum
shopping[21] signed by Atty. Herbert A. Tria as affiant:
CERTIFICATION
AGAINST FORUM SHOPPING
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
in compliance with Section 4(e), Rule 45 in relation to
Section 2, Rule 42 of the Revised Rules of Civil Procedure
I, Teodoro P. Lopez, of legal age, after being duly sworn,
depose and state:
1. That I am the Manager, Claims Department of Filsov
Shipping Company, the local agent of petitioner in this
case.
2. That I have caused the preparation of this Petition for
Review on Certiorari.
3. That I have read the same and the allegations therein
contained are true and correct based on the records of
this case.
4. That I certify that petitioner has not commenced any
other action or proceeding involving the same issues in

the Supreme Court or Court of Appeals, or any other


tribunal or agency, that to the best of my own knowledge,
no such action or proceeding is pending in the Supreme
Court, the Court of Appeals or any other tribunal or
agency, that I should thereafter learn that a similar action
or proceeding has been filed or is pending before the
Supreme Court, the Court of Appeals, or any other tribunal
or agency, I undertake to report the fact within five (5)
days therefrom to this Honorable Court. (Italics supplied
for emphasis.)
Reviewing the records, we find that the petition filed by
MPA in G.R. No. 130150 then pending with the Third
Division was duly filed on August 29, 1997 with a copy
thereof furnished on the same date by registered mail to
counsel for FESC.[23] Counsel of record for MPA, Atty. Jesus
P. Amparo, in his verification accompanying said petition
dutifully revealed to the Court that-3. Petitioner has not commenced any other action or
proceeding involving the same issues in his Honorable
Court, the Court of Appeals or different Divisions thereof,
or any other tribunal or agency, but to the best of his
knowledge, there is an action or proceeding pending in
this Honorable Court, entitled Far Eastern Shipping Co.,
Petitioner, vs. Philippine Ports Authority and Court of
Appeals with a Motion for Extension of time to file Petition
for Review by Certiorari filed sometime on August 18,
1997. If undersigned counsel will come to know of any
other pending action or claim filed or pending he
undertakes to report such fact within five (5) days to this
Honorable Court.[24] (Italics supplied.)
Inasmuch as MPA's petition in G.R. No. 130150 was posted
by registered mail on August 29, 1997 and taking judicial
notice of the average period of time it takes local mail to
reach its destination, by reasonable estimation it would be
fair to conclude that when FESC filed its petition in G.R.
No. 130068 on September 26, 1997, it would already have
received a copy of the former and would then have
knowledge of the pendency of the other petition initially
filed with the First Division. It was therefore incumbent
upon FESC to inform the Court of that fact through its
certification against forum shopping. For failure to make
such disclosure, it would appear that the aforequoted
certification accompanying the petition in G.R. No. 130068
is defective and could have been a ground for dismissal
thereof.
Even assuming that FESC has not yet received its copy of
MPA's petition at the time it filed its own petition and
executed said certification, its signatory did state "that if I
should thereafter learn that a similar action or proceeding
has been filed or is pending before the Supreme Court, the
Court of Appeals or any other tribunal or agency, I
undertake to report the fact within five (5) days therefrom
in this Honorable Court."[25] Scouring the records page by
page in this case, we find that no manifestation
concordant with such undertaking was then or at any
other time thereafter ever filed by FESC nor was there any
attempt to bring such matter to the attention of the
Court. Moreover, it cannot feign non-knowledge of the
existence of such other petition because FESC itself filed
the motion for consolidation in G.R. No. 130150 of these
two cases on April 24, 1998.
It is disturbing to note that counsel for FESC, the law firm
of Del Rosario and Del Rosario, displays an unprofessional
tendency of taking the Rules for granted, in this instance
exemplified by its pro forma compliance therewith but
apparently without full comprehension of and with less

24
than faithful commitment to its undertakings to this Court
in the interest of just, speedy and orderly administration
of court proceedings.
As between the lawyer and the courts, a lawyer owes
candor, fairness and good faith to the court. [26] He is an
officer of the court exercising a privilege which is
indispensable
in
the
administration
of
justice.
[27]
Candidness, especially towards the courts, is essential
for the expeditious administration of justice. Courts are
entitled to expect only complete honesty from lawyers
appearing and pleading before them. [28] Candor in all
dealings is the very essence of honorable membership in
the legal profession.[29] More specifically, a lawyer is
obliged to observe the rules of procedure and not to
misuse them to defeat the ends of justice. [30] It behooves a
lawyer, therefore, to exert every effort and consider it his
duty to assist in the speedy and efficient administration of
justice.[31] Being an officer of the court, a lawyer has a
responsibility in the proper administration of justice. Like
the court itself, he is an instrument to advance its ends -the speedy, efficient, impartial, correct and inexpensive
adjudication of cases and the prompt satisfaction of final
judgments. A lawyer should not only help attain these
objectives but should likewise avoid any unethical or
improper practices that impede, obstruct or prevent their
realization, charged as he is with the primary task of
assisting in the speedy and efficient administration of
justice.[32]
Sad to say, the members of said law firm sorely failed to
observe their duties as responsible members of the
Bar. Their actuations are indicative of their predisposition
to take lightly the avowed duties of officers of the Court to
promote respect for law and for legal processes. [33] We
cannot allow this state of things to pass judicial muster.
In view of the fact that at around the time these petitions
were commenced, the 1997 Rules of Civil Procedure had
just taken effect, the Court treated infractions of the new
Rules then with relative liberality in evaluating full
compliance therewith. Nevertheless, it would do well to
remind all concerned that the penal provisions of Circular
No. 28-91 which remain operative provides, inter alia:
3. Penalties.xxxxxxxxx
(c) The submission of a false certification under Par. 2 of
the Circular shall likewise constitute contempt of court,
without prejudice to the filing of criminal action against
the guilty party. The lawyer may also be subjected to
disciplinary proceedings.
It must be stressed that the certification against forum
shopping ordained under the Rules is to be executed by
the petitioner, and not by counsel. Obviously it is the
petitioner, and not always the counsel whose professional
services have been retained for a particular case, who is in
the best position to know whether he or it actually filed or
caused the filing of a petition in that case. Hence, a
certification against forum shopping by counsel is a
defective certification. It is clearly equivalent to noncompliance with the requirement under Section 2, Rule 42
in relation to Section 4, Rule 45, and constitutes a valid
cause for dismissal of the petition.
Hence, the initial certification appended to the motion for
extension of time to file petition n G.R. No. 130068
executed in behalf of FESC by Atty. Tria is procedurally
deficient. But considering that it was a superfluity at that

stage of the proceeding, it being unnecessary to file such


a certification with a mere motion for extension, we shall
disregard
such
error.
Besides,
the
certification
subsequently executed by Teodoro P. Lopez in behalf of
FESC cures that defect to a certain extent, despite the
inaccuracies earlier pointed out. In the same vein, we shall
consider the verification signed in behalf of MPA by its
counsel, Atty. Amparo, in G.R. No. 130150 as substantial
compliance inasmuch as it served the purpose of the
Rules of informing the Court of the pendency of another
action or proceeding involving the same issues.
It bears stressing that procedural rules are instruments in
the speedy and efficient administration of justice. They
should be used to achieve such end and not to derail it. [34]
Counsel for PPA did not make matters any better. Despite
the fact that, save for the Solicitor General at the time, the
same legal team of the Office of the Solicitor General
(OSG, for short) composed of Assistant Solicitor General
Roman G. Del Rosario and Solicitor Luis F. Simon, with the
addition of Assistant Solicitor General Pio C. Guerrero very
much later in the proceedings, represented PPA
throughout the appellate proceedings in both G.R. No.
130068 and G.R. No. 130150 and was presumably fully
acquainted with the facts and issues of the case, it took
the OSG an inordinately and almost unreasonably long
period of time to file its comment, thus unduly delaying
the resolution of these cases. It took several changes of
leadership in the OSG -- from Silvestre H. Bello III to
Romeo C. dela Cruz and, finally, Ricardo P. Galvez -- before
the comment in behalf of PPA was finally filed.
In G.R. No. 130068, it took eight (8) motions for extension
of time totaling 210 days, a warning that no further
extensions shall be granted, and personal service on the
Solicitor General himself of the resolution requiring the
filing of such comment before the OSG indulged the Court
with the long required comment on July 10, 1998. [35] This,
despite the fact that said office was required to file its
comment way back on November 12, 1997. [36] A closer
scrutiny of the records likewise indicates that petitioner
FESC was not even furnished a copy of said comment as
required by Section 5, Rule 42. Instead, a copy thereof
was inadvertently furnished to MPA which, from the point
of view of G.R. No. 130068, was a non-party. [37] The OSG
fared slightly better in G.R. No. 130150 in that it took only
six (6) extensions, or a total of 180 days, before the
comment was finally filed.[38] And while it properly
furnished petitioner MPA with a copy of its comment, it
would have been more desirable and expedient in this
case to have furnished its therein co-respondent FESC
with a copy thereof, if only as a matter of professional
courtesy.[39]
This undeniably dilatory disinclination of the OSG to
seasonably file required pleadings constitutes deplorable
disservice to the tax-paying public and can only be
categorized as censurable inefficiency on the part of the
government
law
office. This
is
most
certainly
professionally unbecoming of the OSG.
Another thing that baffles the Court is why the OSG did
not take the initiative of filing a motion for consolidation in
either G.R. No. 130068 or G.R. No. 130150, considering its
familiarity with the background of the case and if only to
make its job easier by having to prepare and file only one
comment. It could not have been unaware of the
pendency of one or the other petition because, being
counsel for respondent in both cases, petitioner is

25
required to furnish it with a copy of the petition under pain
of dismissal of the petition for failure otherwise. [40]

another, every vessel engaged in coastwise and foreign


trade shall be under compulsory pilotage. x x x

Besides, in G.R. 130068, it prefaces its discussions thus --

In case of compulsory pilotage, the respective duties and


responsibilities of the compulsory pilot and the master
have been specified by the same regulation in this wise:

Incidentally, the Manila Pilots' Association (MPA), one of


the defendants-appellants in the case before the
respondent Court of Appeals, has taken a separate appeal
from the said decision to this Honorable Court, which was
docketed as G.R. No. 130150 and entitled "Manila Pilots'
Association, Petitioner, versus Philippine Ports Authority
and Far Eastern Shipping Co., Respondents.[41]
Similarly, in G.R. No. 130150, it states Incidentally, respondent Far Eastern Shipping Co. (FESC)
had also taken an appeal from the said decision to this
Honorable Court, docketed as G.R. No. 130068, entitled
"Far Eastern Shipping Co. vs. Court of Appeals and
Philippine Ports Authority."[42]
We find here a lackadaisical attitude and complacency on
the part of the OSG in the handling of its cases and an
almost reflexive propensity to move for countless
extensions, as if to test the patience of the Court, before
favoring it with the timely submission of required
pleadings.
It must be emphasized that the Court can resolve cases
only as fast as the respective parties in a case file the
necessary pleadings. The OSG, be needlessly extending
the pendency of these cases through its numerous
motions for extension, came very close to exhausting this
Court's forbearance and has regrettably fallen short of its
duties as the People's Tribune.
The OSG is reminded that just like other members of the
Bar, the canons under the Code of Professional
Responsibility apply with equal force on lawyers in
government service in the discharge of their official tasks.
[43]
These ethical duties are rendered even more exacting
as to them because, as government counsel, they have
the added duty to abide by the policy of the State to
promote a high standard of ethics in public service.
[44]
Furthermore, it is incumbent upon the OSG, as part of
the government bureaucracy, to perform and discharge its
duties with the highest degree of professionalism,
intelligence and skill[45] and to extend prompt, courteous
and adequate service to the public.[46]
Now, on the merits of the case. After a judicious
examination of the records of this case, the pleadings
filed, and the evidence presented by the parties in the two
petitions, we find no cogent reason to reverse and set
aside the questioned decision. While not entirely a case of
first impression, we shall discuss the issues seriatim and,
correlatively by way of a judicial once-over, inasmuch as
the matters raised in both petitions beg for validation and
updating of well worn maritime jurisprudence. Thereby,
we shall write finis to the endless finger-pointing in this
shipping mishap which has been stretched beyond the
limits of judicial tolerance.
The Port of Manila is within the Manila Pilotage District
which is under compulsory pilotage pursuant to Section 8,
Article III of Philippine Ports Authority Administrative Order
No. 03-85,[47] which provides that:
SEC. 8. Compulsory Pilotage Service.- For entering a
harbor and anchoring thereat, or passing through rivers or
straits within a pilotage district, as well as docking and
undocking at any pier/wharf, or shifting from one berth or

SEC. 11. Control of vessels and liability for damage. - On


compulsory pilotage grounds, the Harbor Pilot, providing
the service to a vessel shall be responsible for the damage
caused to a vessel or to life and property at ports due to
his negligence or fault. He can only be absolved from
liability if the accident is caused by force majeure or
natural calamities provided he has exercised prudence
and extra diligence to prevent or minimize damage.
The Master shall retain overall command of the vessel
even on pilotage grounds whereby he can countermand or
overrule the order or command of the Harbor Pilot on
board. In such event, any damage caused to a vessel or to
life and property at ports by reason of the fault or
negligence of the Master shall be the responsibility and
liability of the registered owner of the vessel concerned
without prejudice to recourse against said Master.
Such liability of the owner or Master of the vessel or its
pilots shall be determined by competent authority in
appropriate proceedings in the light of the facts and
circumstances of each particular case.
SEC. 32. Duties and responsibilities of the Pilot or Pilots'
Association. - The duties and responsibilities of the Harbor
Pilot shall be as follows:
f) a pilot shall be held responsible for the direction of a
vessel from the time he assumes his work as a pilot
thereof until he leaves it anchored or berthed safely;
Provided, however, that his responsibility shall cease at
the moment the Master neglects or refuses to carry out
his order.
Customs Administrative Order No. 15-65 issued twenty
years earlier likewise provided in Chapter I thereof for the
responsibilities of pilots:
Par. XXXIX. - A Pilot shall be held responsible for the
direction of a vessel from the time he assumes control
thereof until he leaves it anchored free from shoal;
Provided, That his responsibility shall cease at the
moment the master neglects or refuses to carry out his
instructions.
Par. XLIV. - Pilots shall properly and safely secure or anchor
vessels under their control when requested to do so by the
master of such vessels.
I. G.R. No. 130068
Petitioner FESC faults the respondent court with serious
error in not holding MPA and Capt. Gavino solely
responsible for the damages caused to the pier. It avers
that since the vessel was under compulsory pilotage at
the time with Capt. Gavino in command and having
exclusive control of the vessel during the docking
maneuvers, then the latter should be responsible for
damages caused to the pier. [48] It likewise holds the
appellate court in error for holding that the master of the
ship, Capt. Kabankov, did not exercise the required
diligence demanded by the circumstances.[49]
We start our discussion of the successive issues bearing in
mind the evidentiary rule in American jurisprudence that

26
there is a presumption of fault against a moving vessel
that strikes a stationary object such as a dock or
navigational aid. In admiralty, this presumption does more
than merely require the ship to go forward and produce
some evidence on the presumptive matter. The moving
vessel must show that it was without fault or that the
collision was occasioned by the fault of the stationary
object or was the result of inevitable accident. It has been
held that such vessel must exhaust every reasonable
possibility which the circumstances admit and show that
in each, they did all that reasonable care required. [50] In
the absence of sufficient proof in rebuttal, the
presumption of fault attaches to a moving vessel which
collides with a fixed object and makes a prima facie case
of fault against the vessel.[51] Logic and experience
support this presumption:
The common sense behind the rule makes the burden a
heavy one. Such accidents simply do not occur in the
ordinary course of things unless the vessel has been
mismanaged in some way. It is not sufficient for the
respondent to produce witnesses who testify that as soon
as the danger became apparent everything possible was
done to avoid an accident. The question remains, How
then did the collision occur? The answer must be either
that, in spite of the testimony of the witnesses, what was
done was too little or too late or, if not, then the vessel
was at fault for being in a position in which an unavoidable
collision would occur.[52]
The task, therefore, in these cases is to pinpoint who was
negligent - the master of the ship, the harbor pilot or both.
A pilot, in maritime law, is a person duly qualified, and
licensed, to conduct a vessel into or out of ports, or in
certain waters. In a broad sense, the term "pilot" includes
both (1) those whose duty it is to guide vessels into or out
of ports, or in particular waters and (2) those entrusted
with the navigation of vessels on the high seas.
[53]
However, the term "pilot" is more generally understood
as a person taken on board at a particular place for the
purpose of conducting a ship through a river, road or
channel, or from a port.[54]
Under English and American authorities, generally
speaking, the pilot supersedes the master for the time
being in the command and navigation of the ship, and his
orders must be obeyed in all matters connected with her
navigation. He becomes the master pro hac vice and
should give all directions as to speed, course, stopping
and reversing, anchoring, towing and the like. And when a
licensed pilot is employed in a place where pilotage is
compulsory, it is his duty to insist on having effective
control of the vessel, or to decline to act as pilot. Under
certain systems of foreign law, the pilot does not take
entire charge of the vessel, but is deemed merely the
adviser of the master, who retains command and control
of the navigation even on localities where pilotage is
compulsory.[55]
It is quite common for states and localities to provide for
compulsory pilotage, and safety laws have been enacted
requiring vessels approaching their ports, with certain
exceptions, to take on board pilots duly licensed under
local law. The purpose of these laws is to create a body of
seamen thoroughly acquainted with the harbor, to pilot
vessels seeking to enter or depart, and thus protect life
and property from the dangers of navigation.[56]
In line with such established doctrines, Chapter II of
Customs Administrative Order No. 15-65 prescribes the

rules of compulsory pilotage in the covered pilotage


districts, among which is the Manila Pilotage District, viz.
-PARAGRAPH I. - Pilotage for entering a harbor and
anchoring thereat, as well as docking and undocking in
any pier or shifting from one berth to another shall be
compulsory, except Government vessels and vessels of
foreign governments entitled to courtesy, and other
vessels engaged solely in river or harbor work, or in a
daily ferry service between ports which shall be exempt
from compulsory pilotage provisions of these regulations:
provided, however, that compulsory pilotage shall not
apply in pilotage districts whose optional pilotage is
allowed under these regulations.
Pursuant thereto, Capt. Gavino was assigned to pilot MV
Pavlodar into Berth 4 of the Manila International
Port. Upon assuming such office as compulsory pilot, Capt.
Gavino is held to the universally accepted high standards
of care and diligence required of a pilot, whereby he
assumes to have skill and knowledge in respect to
navigation in the particular waters over which his license
extends superior to and more to be trusted than that of
the master.[57] A pilot should have a thorough knowledge
of general and local regulations and physical conditions
affecting the vessel in his charge and the waters for which
he is licensed, such as a particular harbor or river. He is
not held to the highest possible degree of skill and care,
but must have and exercise the ordinary skill and care
demanded by the circumstances, and usually shown by an
expert
in
his
profession. Under
extraordinary
circumstances, a pilot must exercise extraordinary care. [58]
In Atlee vs. The Northwestern Union Packet Company,
[59]
Mr. Justice Miller spelled out in great detail the duties of
a pilot:
x x x (T)he pilot of a river steamer, like the harbor pilot, is
selected for his personal knowledge of the topography
through which he steers his vessel. In the long course of a
thousand miles in one of these rivers, he must be familiar
with the appearance of the shore on each side of the river
as he goes along. Its banks, towns, its landings, its houses
and trees, are all landmarks by which he steers his
vessel. The compass is of little use to him. He must know
where the navigable channel is, in its relation to all these
external objects, especially in the night. He must also be
familiar with all dangers that are permanently located in
the course of the river, as sand-bars, snags, sunken rocks
or trees or abandoned vessels or barges. All this he must
know and remember and avoid. To do this, he must be
constantly informed of the changes in the current of the
river, of the sand-bars newly made, of logs or snags, or
other objects newly presented, against which his vessel
might be injured.
xxxxxxxxx
It may be said that this is exacting a very high order of
ability in a pilot. But when we consider the value of the
lives and property committed to their control, for in this
they are absolute masters, the high compensation they
receive, the care which Congress has taken to secure by
rigid and frequent examinations and renewal of licenses,
this very class of skill, we do not think we fix the standard
too high.
Tested thereby, we affirm respondent court's finding that
Capt. Gavino failed to measure up to such strict standard

27
of care and diligence required of pilots in the performance
of their duties. Witness this testimony of Capt. Gavino:
Court:
You have testified before that the reason why the vessel
bumped the pier was because the anchor was not
released immediately or as soon as you have given the
order. Do you remember having stated that?
A Yes, your Honor.
Q And you gave this order to the captain of the vessel?
A Yes, your Honor.
Q By that testimony, you are leading the Court to
understand that is that anchor was released immediately
at the time you gave the order, the incident would not
have happened. Is that correct?
A Yes, sir, but actually it was only a presumption on my
part because there was a commotion between the officers
who are in charge of the dropping of the anchor and the
captain. I could not understand their language, it was in
Russian, so I presumed the anchor was not dropped on
time.
Q So, you are not sure whether it was really dropped on
time or not?
A I am not sure, your Honor.
Q You are not even sure what could have caused the
incident. What factor could have caused the incident?
A Well, in this case now, because either the anchor was
not dropped on time or the anchor did not hold, that was
the cause of the incident, your Honor.[60]
It is disconcertingly riddled with too much incertitude and
manifests a seeming indifference for the possibly injurious
consequences his commands as pilot may have. Prudence
required that he, as pilot, should have made sure that his
directions were promptly and strictly followed. As correctly
noted by the trial court Moreover, assuming that he did indeed give the command
to drop the anchor on time, as pilot he should have seen
to it that the order was carried out, and he could have
done this in a number of ways, one of which was to
inspect the bow of the vessel where the anchor
mechanism was installed. Of course, Captain Gavino
makes reference to a commotion among the crew
members which supposedly caused the delay in the
execution of the command. This account was reflected in
the pilot's report prepared four hours later, but Capt.
Kavankov, while not admitting whether or not such a
commotion occurred, maintained that the command to
drop
anchor
was
followed
"immediately
and
precisely." Hence, the Court cannot give much weight or
consideration to this portion of Gavino's testimony."[61]
An act may be negligent if it is done without the
competence that a reasonable person in the position of
the actor would recognize as necessary to prevent it from
creating an unreasonable risk of harm to another. [62] Those
who undertake any work calling for special skills are
required not only to exercise reasonable care in what they
do but also possess a standard minimum of special
knowledge and ability.[63]

Every man who offers his services to another, and is


employed, assumes to exercise in the employment such
skills he possesses, with a reasonable degree of
diligence. In all these employments where peculiar skill is
requisite, if one offers his services he is understood as
holding himself out to the public as possessing the degree
of skill commonly possessed by others in the same
employment, and if his pretensions are unfounded he
commits a species of fraud on every man who employs
him in reliance on his public profession.[64]
Furthermore, there is an obligation on all persons to take
the care which, under ordinary circumstances of the case,
a reasonable and prudent man would take, and the
omission of that care constitutes negligence.[65] Generally,
the degree of care required is graduated according to the
danger a person or property attendant upon the activity
which the actor pursues or the instrumentality which he
uses. The greater the danger the greater the degree of
care required. What is ordinary under extraordinary of
conditions is dictated by those conditions; extraordinary
risk demands extraordinary care. Similarly, the more
imminent the danger, the higher the degree of care.[66]
We give our imprimatur to the bases for the conclusion of
the Court of Appeals that Capt. Gavino was indeed
negligent in the performance of his duties:
xxxxxxxxx
x x x As can be gleaned from the logbook, Gavino ordered
the left anchor and two (2) shackles dropped at 8:30
o'clock in the morning. He ordered the engines of the
vessel stopped at 8:31 o'clock. By then, Gavino must have
realized that the anchor did not hit a hard object and was
not clawed so as to reduce the momentum of the
vessel. In point of fact, the vessel continued travelling
towards the pier at the same speed. Gavino failed to
react. At 8:32 o'clock, the two (2) tugboats began to push
the stern part of the vessel from the port side but the
momentum of the vessel was not contained. Still, Gavino
did not react. He did not even order the other anchor and
two (2) more shackles dropped to arrest the momentum of
the vessel. Neither did he order full-astern. It was only at
8:34 o'clock, or four (4) minutes, after the anchor was
dropped that Gavino reacted. But his reaction was even
(haphazard) because instead of arresting fully the
momentum of the vessel with the help of the tugboats,
Gavino ordered merely "half-astern". It took Gavino
another minute to order a "full-astern". By then, it was too
late.The vessel's momentum could no longer be arrested
and, barely a minute thereafter, the bow of the vessel hit
the apron of the pier. Patently, Gavino miscalculated. He
failed to react and undertake adequate measures to arrest
fully the momentum of the vessel after the anchor failed
to claw to the seabed. When he reacted, the same was
even (haphazard). Gavino failed to reckon the bulk of the
vessel, its size and its cargo. He erroneously believed that
only one (1) anchor would suffice and even when the
anchor failed to claw into the seabed or against a hard
object in the seabed, Gavino failed to order the other
anchor dropped immediately. His claim that the anchor
was dropped when the vessel was only 1,000 feet from
the pier is but a belated attempt to extricate himself from
the quagmire of his own insouciance and negligence. In
sum, then, Appellants' claim that the incident was caused
by "force majeure" is barren of factual basis.
xxxxxxxxx

28
The harbor pilots are especially trained for this job. In the
Philippines, one may not be a harbor pilot unless he
passed the required examination and training conducted
then by the Bureau of Custom, under Customs
Administrative Order No. 15-65, now under the Philippine
Ports Authority under PPA Administrative Order 6385. Paragraph XXXIX of the Customs Administrative Order
No. 15-65 provides that "the pilot shall be held responsible
for the direction of the vessel from the time he assumes
control thereof, until he leaves it anchored free from shoal:
Provided, that his responsibility shall cease at the moment
the master neglects or refuse(s) to carry out his
instructions." The overall direction regarding the
procedure for docking and undocking the vessel emanates
from the harbor pilot. In the present recourse, Gavino
failed to live up to his responsibilities and exercise
reasonable care or that degree of care required by the
exigencies of the occasion. Failure on his part to exercise
the degree of care demanded by the circumstances is
negligence (Reese versus Philadelphia & RR Co. 239 US
463, 60 L ed. 384, 57 Am Jur. 2d 12age 418).[67]
This affirms the findings of the trial court regarding
Capt. Gavino's negligence:
This discussion should not however, divert the court from
the fact that negligence in manuevering the vessel must
be attributed to Capt. Senen Gavino. He was an
experienced pilot and by this time should have long
familiarized himself with the depth of the port and the
distance he could keep between the vessel and port in
order to berth safely.[68]
The negligence on the part of Capt. Gavino is evident; but
Capt. Kabankov is no less responsible for the allision. His
unconcerned lethargy as master of the ship in the face of
troublous exigence constitutes negligence.
While it is indubitable that in exercising his functions a
pilot-is in sole command of the ship[69] and supersedes the
master for the time being in the command and navigation
of a ship and that he becomes master pro hac vice of a
vessel piloted by him,[70] there is overwhelming authority
to the effect that the master does not surrender his vessel
to the pilot and the pilot is not the master. The master is
still in command of the vessel notwithstanding the
presence of a pilot. There are occasions when the master
may and should interfere and even displace the pilot, as
when the pilot is obviously incompetent or intoxicated and
the circumstances may require the master to displace a
compulsory pilot because of incompetency or physical
incapacity. If, however, the master does not observe that a
compulsory
pilot
is
incompetent
or
physically
incapacitated, the master is justified in relying on the
pilot, but not blindly.[71]
The master is not wholly absolved from his duties while a
pilot is on board his vessel, and may advise with or offer
suggestions to him. He is still in command of the vessel,
except so far as her navigation is concerned, and must
cause the ordinary work of the vessel to be properly
carried on and the usual precaution taken. Thus, in
particular, he is bound to see that there is sufficient watch
on deck, and that the men are attentive to their duties,
also that engines are stopped, towlines cast off, and the
anchors clear and ready to go at the pilot's order. [72]
A perusal of Capt. Kabankov's testimony makes it
apparent that he was remiss in the discharge of his duties
as master of the ship, leaving the entire docking

procedure up to the pilot, instead of maintaining watchful


vigilance over this risky maneuver:
Q Will you please tell us whether you have the right to
intervene in docking of your ship in the harbor?
A No sir, I have no right to intervene in time of docking,
only in case there is imminent danger to the vessel and to
the pier.
Q Did you ever intervene during the time that your ship
was being docked by Capt. Gavino?
A No sir, I did not intervene at the time when the pilot was
docking my ship.
Q Up to the time it was actually docked at the pier, is that
correct'?
A No sir, I did not intervene up to the very moment when
the vessel was docked.
Atty. Del Rosario (to the witness)
Q Mr. Witness, what happened, if any, or was there
anything unusual that happened during the docking?
A Yes sir, our ship touched the pier and the pier was
damaged.
Court (to the witness)
Q When you said touched the pier, are you leading the
court to understand that your ship bumped the pier?
A I believe that my vessel only touched the pier but the
impact was very weak.
Q Do you know whether the pier was damaged as a result
of that slight or weak impact?
A Yes sir, after the pier was damaged.
Q Being most concerned with the safety of your vessel, in
the maneuvering of your vessel, to the port, did you
observe anything irregular in the maneuvering by
Capt. Gavino at the time he was trying to cause the vessel
to be docked at the pier?
A You mean the action of Capt. Gavino or his condition?
Court:
Q Not the actuation that conform to the safety maneuver
of the ship to the harbor?
A No sir, it was a usual docking.
Q By that statement of yours, you are leading the court to
understand that there was nothing irregular in the docking
of the ship?
A Yes sir, during the initial period, of the docking, there
was nothing unusual that happened.
Q What about in the last portion of the docking of the ship,
was there anything unusual or abnormal that happened?
A None Your Honor, I believe that Capt. Gavino thought
that the anchor could keep or hold the vessel.
Q You want us to understand, Mr. Witness, that the
dropping of the anchor of the vessel was not timely?
A I don't know the depth of this port but I think, if the
anchor was dropped earlier and with more shackles, there
could not have been an incident.
Q So you could not precisely tell the court that the
dropping of the anchor was timely because you are not
well aware of the seabed, is that correct?
A Yes sir, that, is right.
xxxxxxxxx
Q Alright, Capt. Kavankov, did you come to know later
whether the anchor held its ground so much so that the
vessel could not travel?
A It is difficult for me to say definitely. I believe that the
anchor did not hold the ship.
Q You mean you don't know whether the anchor blades
stuck to the ground to stop the ship from further moving?

29
A Yes sir, it is possible.
Q What is possible?
A I think, the 2 shackles were not enough to hold the
vessel.
Q Did you know that the 2 shackles were dropped?
A Yes sir, I knew that.
Q If you knew that the shackles were not enough to hold
the ship, did you not make any protest to the pilot?
A No sir, after the incident, that was my assumption.
Q Did you come to know later whether that presumption is
correct?
A I still don't know the ground in the harbor or the depths.
Q So from the beginning, you were not competent
whether the 2 shackles were also dropped to hold the
ship?
A No sir, at the beginning, I did not doubt it because I
believe Capt. Gavino to be an experienced pilot and he
should be more aware as to the depths of the harbor and
the ground and I was confident in his actions.
xxxxxxxxx
Solicitor Abad (to the witness)
Q Now, you were standing with the pilot on the bridge of
the vessel before the incident happened, were you not?
A Yes sir, all the time, I was standing with the pilot.
Q And so whatever the pilot saw, you could also see from
that point of view?
A That is right.
Q Whatever the pilot can read from the panel of the
bridge, you also could read, is that correct?
A What is the meaning of panel'?
Q All indications necessary for men on the bridge to be
informed of the movements of the ship?
A That is right.
Q And whatever sound the captain... Capt. Gavino would
hear from the bridge, you could also hear?
A That is right.
Q Now, you said that when the command to lower the
anchor was given, it was obeyed, is that right?
A This command was executed by the third mate and
boatswain.
Court (to the witness)
Q Mr. Witness, earlier in today's hearing, you said that you
did not intervene with the duties of the pilot and that, in
your opinion, you can only intervene if the ship is placed
in imminent danger, is that correct?
A That is right, I did say that.
Q In your observation before the incident actually
happened, did you observe whether or not the ship,
before the actual incident, the ship was placed in
imminent danger?.
A No sir, I did not observe.
Q By that answer, are you leading the court to understand
that because you did not intervene and because you
believed that it was your duty to intervene when the
vessel is placed in imminent danger to which you did not
observe any imminent danger thereof, you have not
intervened in any manner to the command of the pilot?
A That is right, sir.
xxxxxxxxx
Q Assuming that you disagreed with the pilot regarding
the step being taken by the pilot in maneuvering the
vessel. whose command will prevail, in case of imminent
danger to the vessel?
A I did not consider the situation as having an imminent
danger. I believed that the vessel will dock alongside the
pier.
Q You want us to understand that you did not see an
imminent danger to your ship, is that what you mean?
A Yes sir, up to the very last moment, I believed that there
was no imminent danger.
Q Because of that, did you ever intervene in the command
of the pilot?
A Yes sir, I did not intervene because I believed that the
command of the pilot to be correct.
Solicitor Abad (to the witness)
Q As a captain of M/V Pavlodar, you consider docking
maneuvers a serious matter, is it not?
A Yes sir, that is right.
Q Since it affects not only the safety of the port or pier,
but also the safety of the vessel and the cargo, is it not?
A That is right.

Q So that, I assume that you were watching Capt. Gavino


very closely at the time he was making his commands?
A I was close to him, I was hearing his command and
being executed.
Q And that you were also alert for any possible mistakes
he might commit in the maneuvering of the vessel?
A Yes sir, that is right.
Q But at no time during the maneuver did you issue order
contrary to the orders Capt. Gavino made?
A No sir.
Q So that you were in full accord with all of Capt. Gavino's
orders?
A Yes sir.
Q Because, otherwise, you would have issued order that
would supersede his own order?
A In that case, I should take him away from his command
or remove the command from him.
Court (to the witness)
Q You were in full accord with the steps being taken by
Capt. Gavino because you relied on his knowledge, on his
familiarity of the seabed and shoals and other
surroundings or conditions under the sea, is that correct?
A Yes sir, that is right.
xxxxxxxxx
Solicitor Abad (to the witness)
Q And so after the anchors were ordered dropped and
they did not take hold of the seabed, you were alerted
that there was danger already on hand?
A No sir, there was no imminent danger to the vessel.
Q Do you mean to tell us that even if the anchor was
supposed to take hold of the bottom and it did not, there
was no danger to the ship?
A Yes sir, because the anchor dragged on the ground later.
Q And after a few moments when the anchor should have
taken hold the seabed but not done (sic), as you expected,
you already were alerted that there was danger to the
ship, is that correct?
A Yes sir, I was alerted but there was no danger.
Q And you were alerted that somebody was wrong?
A Yes sir, I was alerted.
Q And this alert you assumed was the ordinary alertness
that you have for normal docking?
A Yes sir, I mean that it was usual condition of any man in
time of docking to be alert.
Q And that is the same alertness when the anchor did not
hold onto the ground, is that correct?
A Yes sir, me and Capt. Gavino (thought) that the anchor
will hold the ground.
Q Since, as you said that you agreed all the while with the
orders of Capt. Gavino, you also therefore agreed with him
in his failure to take necessary precaution against the
eventuality that the anchor will not hold as expected?
Atty. Del Rosario:
May I ask that the question ...
Solicitor Abad:
Never mind, I will reform the question.
xxxxxxxxx
Solicitor Abad (to the witness)
Q Is it not a fact that the vessel bumped the pier?
A That is right, it bumped the pier.
Q For the main reason that the anchor of the vessel did
not hold the ground as expected?
A Yes sir, that is my opinion.[73]
Further, on redirect examination, Capt. Kabankov fortified
his apathetic assessment of the situation:
Q Now, after the anchor was dropped, was there any point
in time that you felt that the vessel was in imminent
danger.
A No, at that time, the vessel was not in imminent danger,
sir."[74]
This cavalier appraisal of the event by Capt. Kabankov is
disturbingly
antipodal
to
Capt. Gavino's
anxious
assessment of the situation:
Q When a pilot is on board a vessel, it is the pilot's
command which should be followed-at that moment until
the vessel is, or goes to port or reaches port?
A Yes, your Honor, but it does not take away from the
Captain his prerogative to countermand the pilot.
Q In what way?

30
A In any case, which he thinks the pilot is not
maneuvering correctly, the Captain always has the
prerogative to countermand the pilot's order.
Q But insofar as competence, efficiency and functional
knowledge of the seabed which are vital or decisive in the
safety (sic) bringing of a vessel to the port, he is not
competent?
A Yes, your Honor. That is why they hire a pilot in an
advisory capacity, but still, the safety of the vessel rest(s)
upon the Captain, the Master of the vessel.
Q In this case, there was not a disagreement between you
and the Captain of the vessel in the bringing of the vessel
to port?
A No, your Honor.
Court:
May proceed.
Atty. Catris:
In fact, the Master of the vessel testified here that he was
all along in conformity with the orders you gave to him,
and, as matter of fact, as he said, he obeyed all your
orders. Can you tell, if in the course of giving such normal
orders for the saf(e) docking of the MV Pavlodar, do you
remember of any instance that the Master of the vessel
did not obey your command for the safety docking of the
MV Pavlodar?
Atty. del Rosario:
Already answered, he already said yes sir.
Court:
Yes, he has just answered yes sir to the Court that there
was no disagreement insofar as the bringing of the vessel
safely to the port.
Atty. Catris:
But in this instance of docking of the MV Pavlodar, do you
remember of a time during the course of the docking that
the MV Pavlodar was in imminent danger of bumping the
pier?
A When we were about more than one thousand meters
from the pier. I think, the anchor was not holding, so I
immediately ordered to push the bow at a fourth quarter,
at the back of the vessel in order to swing the bow away
from the pier and at the same time, I ordered for a full
astern of the engine."[75]
These conflicting reactions can only imply, at the very
least,
unmindful disregard or,
worse,
neglectful
relinquishment of duty by the shipmaster, tantamount to
negligence.
The findings of the trial court on this aspect is noteworthy:
For, while the pilot Gavino may indeed have been charged
with the task of docking the vessel in the berthing space,
it is undisputed that the master of the vessel had the
corresponding duty to countermand any of the orders
made by the pilot, aid even maneuver the vessel himself,
in case of imminent danger to the vessel and the port.
In fact, in his testimony, Capt. Kavankov admitted that all
throughout the man(eu)vering procedures he did not
notice anything was going wrong, and even observed that
the order given to drop the anchor, was done at the
proper time. He even ventured the opinion that the
accident occurred because the anchor failed to take hold
but that this did not alarm him because there was still
time to drop a second anchor.
Under normal circumstances, the above-mentioned facts
would have caused the master of a vessel to take charge
of the situation and see to the man(eu)vering of the vessel
himself.Instead, Capt. Kavankov chose to rely blindly upon

his pilot, who by this time was proven ill-equipped to cope


with the situation.
It is apparent that Gavino was negligent but Far Eastern's
employee Capt. Kavankov was no less responsible for as
master of the vessel he stood by the pilot during the
man(eu)vering procedures and was privy to every move
the latter made, as well as the vessel's response to each
of the commands. His choice to rely blindly upon the
pilot's skills, to the point that despite being appraised of a
notice of alert he continued to relinquish control of the
vessel to Gavino, shows indubitably that he was not
performing his duties with the diligence required of him
and therefore may be charged with negligence along with
defendant Gavino.[76]
As correctly affirmed by the Court of Appeals We are in full accord with the findings and disquisitions of
the Court a quo.
In the present recourse, Captain Viktor Kavankov had been
a mariner for thirty-two years before the incident. When
Gavino was (in) the command of the vessel, Kavankov was
beside Gavino, relaying the commands or orders of Gavino
to the crewmembers-officers of the vessel concerned. He
was thus fully aware of the docking maneuvers and
procedure
Gavino
undertook
to
dock
the
vessel. Irrefragably, Kavankov was fully aware of the bulk
and size of the vessel and its cargo as well as the weight
of the vessel. Kavankov categorically admitted that, when
the anchor and two (2) shackles were dropped to the sea
floor, the claws of the anchor did not hitch on to any hard
object in the seabed. The momentum of the vessel was
not arrested. The use of the two (2) tugboats was
insufficient. The momentum of the vessel, although a little
bit
arrested,
continued
(sic)
the
vessel
going
straightforward with its bow towards the port (Exhibit "A1"). There was thus a need for the vessel to move "fullastern" and to drop the other anchor with another shackle
or two '(2), for the vessel to avoid hitting the
pier.Kavankov refused to act even as Gavino failed to
act. Even as Gavino gave mere "half-astern" order,
Kavankov supinely stood by. The vessel was already about
twenty (20) meters away from the pier when Gavino gave
the 'full-astern" order. Even then, Kavankov did nothing to
prevent the vessel from hitting the pier simply because he
relied on the competence and plan of Gavino. While the
"full-astern"
maneuver
momentarily
arrested
the
momentum of the vessel, it was, by then, too late. All
along, Kavankov stood supinely beside Gavino, doing
nothing but relay the commands of Gavino. Inscrutably,
then, Kavankov was negligent.
The stark incompetence of Kavankov is competent
evidence to prove the unseaworthiness of the vessel. It
has been held that the incompetence of the navigator, the
master of the vessel or its crew makes the vessel
unseaworthy (Tug Ocean Prince versus United States of
America, 584 F. 2nd, page 1151). Hence, the Appellant
FESC is likewise liable for the damage sustained by the
Appellee."[77]
We find strong and well-reasoned support in time-tested
American maritime jurisprudence, on which much of our
laws and jurisprudence on the matter are based, for the
conclusions of the Court of Appeals adjudging both
Capt. Gavino and Capt. Kabankov negligent.
As early as 1869, the U.S. Supreme Court declared,
through Mr. Justice Swayne, in The Steamship China vs.

31
Walsh,[78] that it is the duty of the master to interfere in
cases of the pilot's intoxication or manifest incapacity, in
cases of danger which he does not foresee, and in all
cases of great necessity. The master has the same power
to displace the pilot that he has to remove any
subordinate officer of the vessel, at his discretion.
In 1895, the U.S. Supreme Court, this time through Mr.
Justice Brown, emphatically ruled that:
Nor are we satisfied with the conduct of the master in
leaving the pilot in sole charge of the vessel. While the
pilot doubtless supersedes the master for the time being
in the command and navigation of the ship, and his orders
must be obeyed in all matters connected with her
navigation, the master is not wholly absolved from his
duties while the pilot is on board, and may advise with
him, and even displace him in case he is intoxicated or
manifestly incompetent. He is still in command of the
vessel, except so far as her navigation is concerned, and
bound to see that there is a sufficient watch on deck, and
that the men are attentive to their duties.
xxx (N)otwithstanding the pilot has charge, it is the duty
of the master to prevent accident, and not to abandon the
vessel entirely to the pilot; but that there are certain
duties he has to discharge (notwithstanding there is a pilot
on board) for the benefit of the owners. x x x that in well
conducted ships the master does not regard the presence
of a duly licensed pilot in compulsory pilot waters as
freeing him from every obligation to attend to the safety
of the vessel; but that, while the master sees that his
officers and crew duly attend to the pilot's orders, he
himself is bound to keep a vigilant eye on the navigation
of the vessel, and, when exceptional circumstances exist,
not only to urge upon the pilot to use every precaution,
but to insist upon, such being taken."[79] (Italics for
emphasis.)
In Jure vs. United Fruit Co.,[80] which, like the present
petitions, involved compulsory pilotage, with a similar
scenario where at and prior to the time of injury, the
vessel was in the charge of a pilot with the master on the
bridge of the vessel beside said pilot, the court therein
ruled:
The authority of the master of a vessel is not in complete
abeyance while a pilot, who is required by law to be
accepted, is in discharge of his functions. x x x It is the
duty of the master to interfere in cases of the pilot's
intoxication or manifest incapacity, in cases of danger
which he does not foresee, and in all cases of great
necessity . The master has the same power to displace the
pilot that he has to remove any subordinate officer of the
vessel. He may exercise it, or not, according to his
discretion. There was evidence to support findings that
plaintiff's injury was due to the negligent operation of the
Atenas, and that the master of that vessel was negligent
in failing to take action to avoid endangering a vessel
situated as the City of Canton was and persons or
property thereon.
A phase of the evidence furnished support for the
inferences x x x that he negligently failed to suggest to
the pilot the danger which was disclosed, and means of
avoiding such danger; and that the master's negligence in
failing to give timely admonition to the pilot proximately
contributed to the injury complained of. We are of opinion
that the evidence mentioned tended to prove conduct of
the pilot, known to the master, giving rise to a case of
danger or great necessity, calling for the intervention of

the master. A master of a vessel is not Without fault in


acquiescing in conduct of a pilot which involves apparent
and avoidable danger, whether such danger is to the
vessel upon which the pilot is, or to another vessel, or
persons or property thereon or on shore. (Italics ours.)
Still in another case involving a nearly identical setting,
the captain of a vessel alongside the compulsory pilot was
deemed to be negligent, since, in the words of the court,
"he was in a position to exercise his superior authority if
he had deemed the speed excessive on the occasion in
question. I think it was clearly negligent of him not to
have recognized the danger to any craft moored at Gravell
Dock and that he should have directed the pilot to reduce
his speed as required by the local governmental
regulations. His failure amounted to negligence and
renders
the
respondent
liable."[81] (Italics
supplied.) Though a compulsory pilot might be regarded
as an independent contractor, he is at all times subject to
the ultimate control of the ship's master.[82]
In sum, where a compulsory pilot is in charge of a ship,
the master being required to permit him to navigate it, if
the master observes that the pilot is incompetent or
physically incapable, then it is the duty of the master to
refuse to permit the pilot to act. But if no such reasons are
present, then the master is justified in relying upon the
pilot, but not blindly. Under the circumstances of this case,
if a situation arose where the master, exercising that
reasonable vigilance which the master of a ship should
exercise, observed, or should have observed, that the pilot
was so navigating the vessel that she was going, or was
likely to go, into danger, and there was in the exercise of
reasonable care and vigilance an opportunity for the
master to intervene so as to save the ship from danger,
the master should have acted accordingly. [83] The master
of a vessel must exercise a degree of vigilance
commensurate with the circumstances.[84]
Inasmuch as the matter of negligence is a question of fact,
[85]
we defer to the findings of the trial court, especially as
this is affirmed by the Court of Appeals.[86] But even
beyond that, our own evaluation is that Capt. Kabankov's
shared liability is due mainly to the fact that he failed to
act when the perilous situation should have spurred him
into quick and decisive action as master of the ship. In the
face of imminent or actual danger, he did not have to wait
for the happenstance to occur before countermanding or
overruling the pilot. By his own admission, Capt. Kabankov
concurred with Capt. Gavino's decisions, and this is
precisely the reason why he decided not to countermand
any of the latter's orders. Inasmuch as both lower courts
found Capt. Gavino negligent, by expressing full
agreement therewith Capt. Kabankov was just as
negligent as Capt. Gavino.
In general, a pilot is personally liable for damages caused
by his own negligence or default to the owners of the
vessel, and to third parties for damages sustained in a
collision. Such negligence of the pilot in the performance
of duty constitutes a maritime tort. [87] At common law, a
shipowner is not liable for injuries inflicted exclusively by
the negligence of a pilot accepted by a vessel
compulsorily.[88] The exemption from liability for such
negligence shall apply if the pilot is actually in charge and
solely in fault. Since, a pilot is responsible only for his own
personal negligence, he cannot be held accountable for
damages proximately caused by the default of others,
[89]
or, if there be anything which concurred with the fault
of the pilot in producing the accident, the vessel master
and owners are liable.

32
Since the colliding vessel is prima facie responsible, the
burden of proof is upon the party claiming benefit of the
exemption from liability. It must be shown affirmatively
that the pilot was at fault, and that there was no fault on
the part of the officers or crew, which might have been
conducive to the damage. The fact that the law compelled
the master to take the pilot does not exonerate the vessel
from liability. The parties who suffer are entitled to have
their remedy against the vessel that occasioned the
damage, and are not under necessity to look to the pilot
from
whom
redress
is
not
always
had
for
compensation. The owners of the vessel are responsible to
the injured party for the acts of the pilot, and they must
be left to recover the amount as well as they can against
him. It cannot be maintained that the circumstance of
having a pilot on board, and acting in conformity to his
directions operate as a discharge of responsibility of the
owners.[90] Except insofar as their liability is limited or
exempted by statute, the vessel or her owner are liable for
all damages caused by the negligence or other wrongs of
the owners or those in charge of the vessel. Where the
pilot of a vessel is not a compulsory one in the sense that
the owner or master of the vessel are bound to accept
him, but is employed voluntarily, the owners of the vessel
are, all the more, liable for his negligent act.[91]
In the United States, the owners of a vessel are not
personally liable for the negligent acts of a compulsory
pilot, but by admiralty law, the fault or negligence of a
compulsory pilot is imputable to the vessel and it may be
held liable therefor in rem. Where, however, by the
provisions of the statute the pilot is compulsory only in the
sense that his fee must be paid, and is not in compulsory
charge of the vessel, there is no exemption from
liability. Even though the pilot is compulsory, if his
negligence was not the sole cause of the injury, but the
negligence of the master or crew contributed thereto, the
owners are liable.[92] But the liability of the ship in
rem does not release the pilot from the consequences of
his own negligence.[93] The rationale for this rule is that the
master is not entirely absolved of responsibility with
respect to navigation when a compulsory pilot is in
charge.[94]
By way of validation and in light of the aforecited
guidepost rulings in American maritime cases, we declare
that our rulings during the early years of this century in
City of Manila vs.Gambe, [95] China Navigation Co., Ltd.
vs. Vidal,[96] and Yap Tico & Co. vs. Anderson, et al. [97] have
withstood the proverbial test of time and remain good and
relevant case law to this day.
City of Manila stands for the doctrine that the pilot who
was in command and complete control of a vessel, and
not the owners, must be held responsible for an accident
which was solely the result of the mistake of the pilot in
not giving proper orders, and which did not result from the
failure of the owners to equip the vessel with the most
modern and improved machinery. In China Navigation Co.,
the pilot deviated from the ordinary and safe course,
without heeding the warnings of the ship captain. It was
this careless deviation that caused the vessel to collide
with a pinnacle rock which, though uncharted, was known
to pilots and local navigators. Obviously, the captain was
blameless. It was the negligence of the pilot alone which
was the proximate cause of the collision. The Court could
not but then rule that The pilot in the case at bar having deviated from the usual
and ordinary course followed by navigators in passing
through the strait in question, without a substantial

reason, was guilty of negligence, and that negligence


having been the proximate cause of the damages, he is
liable for such damages as usually and naturally flow
therefrom. x x x.
x x x (T)he defendant should have known of the existence
and location of the rock upon which the vessel struck
while under his control and management. x x x.
Consistent with the pronouncements in these two earlier
cases, but on a slightly different tack, the Court in Yap Tico
& Co. exonerated the pilot from liability for the accident
where the order's of the pilot in the handling of the ship
were disregarded by the officers and crew of the
ship. According to the Court, a pilot is "x x x responsible
for a full knowledge of the channel and the navigation
only so far as he can accomplish it through the officers
and crew of the ship, and I don't see that he can be held
responsible for damage when the evidence shows, as it
does in this case, that the officers and crew of the ship
failed to obey his orders." Nonetheless, it is possible for a
compulsory pilot and the master of the vessel to be
concurrently negligent and thus share the blame for the
resulting damage as Joint tortfeasors, [98] but only under
the circumstances obtaining in and demonstrated by the
instant petitions.
It may be said, as a general rule, that negligence in order
to render a person liable need not be the sole cause of an
injury. It is sufficient that his negligence, concurring with
one or more efficient causes other than plaintiff's, is the
proximate cause of the injury. Accordingly, where several
causes combine to produce injuries, a person is not
relieved from liability because he is responsible for only
one of them, it being sufficient that the negligence of the
person charged with injury is an efficient cause without
which the injury would not have resulted to as great an
extent, and that such cause is not attributable to the
person injured. It is no defense to one of the concurrent
tortfeasors that the injury would not have resulted from
his negligence alone, without the negligence or wrongful
acts of the other concurrent tortfeasor. [99] Where several
causes producing an injury are concurrent and each is an
efficient cause without which the injury would not have
happened, the injury may be attributed to all or any of the
causes and recovery may be had against any or all of the
responsible persons although under the circumstances of
the case, it may appear that one of them was more
culpable, and that the duty owed by them to the injured
person was not the same. No actor's negligence ceases to
be a proximate cause merely because it does not exceed
the negligence of other actors. Each wrongdoer is
responsible for the entire result and is liable as though his
acts were the sole cause of the injury.[100]
There is no contribution between joint tortfeasors whose
liability is solidary since both of them are liable for the
total damage. Where the concurrent or successive
negligent acts or omissions of two or more persons,
although acting independently, are in combination the
direct and proximate cause of a single injury to a third
person, it is impossible to determine in what proportion
each contributed to the injury and either of them is
responsible for the whole injury. Where their concurring
negligence resulted in injury or damage to a third party,
they become joint tortfeasors and are solidarity liable for
the resulting damage under Article 2194[101] of the Civil
Code.[102]
As for the amount of damages awarded by the trial court,
we find the same to be reasonable. The testimony of Mr.

33
Pascual Barral, witness for PPA, on cross and redirect
examination, appears to be grounded on practical
considerations:
Q So that the cost of the two additional piles as well as the
(two) square meters is already included in this
-P1,300,999.77.
A Yes sir, everything. It is (the) final cost already.
Q For the eight piles.
A Including the reduced areas and other reductions.
Q (A)nd the two square meters.
A Yes sir.
Q In other words, this P1,300,999.77 does not represent
only for the six piles that was damaged as well as the
corresponding two piles.
A The area was corresponding, was increased by almost
two in the actual payment. That was why the contract was
decreased, the real amount was P1,124,627.40 and the
final one is P1300,999.77.
Q Yes, but that P1,300,999.77 included the additional two
new posts.
A It was increased.
Q Why was it increased?
A The original was 48 and the actual was 46.
Q Now, the damage was somewhere in 1980. It took place
in 1980 and you started the repair and reconstruction in
1982, that took almost two years?
A Yes sir.
Q May it not happen that by natural factors, the existing
damage in 1980 was aggravated for the 2 year period that
the damage portion was not repaired?
A I don't think so because that area was at once marked
and no vehicles can park, it was closed.
Q Even if or even natural elements cannot affect the
damage?
A Cannot, sir.
xxxxxxxxx
Q You said in the cross-examination that there were six
piles damaged by the accident, but that in the
reconstruction of the pier, PPA drove and constructed 8
piles. Will you explain to us why there was change in the
number of piles from the original number?
A In piers where the piles are withdrawn or pulled out, you
cannot re-drive or drive piles at the same point. You have
to redesign the driving of the piles. We cannot drive the
piles at the same point where the piles are broken or
damaged or pulled out. We have to redesign, and you will
note that in the reconstruction, we redesigned such that it
necessitated 8 piles.
Q Why not, why could you not drive the same number of
piles and on the same spot?
A The original location was already disturbed. We cannot
get required bearing capacity. The area is already
disturbed.
Q Nonetheless, if you drove the original number of piles,
six, on different places, would not that have sustained the
same load?
A It will not suffice, sir."[103]
We quote the findings of the lower court with approval:
With regards to the amount of damages that is to be
awarded to plaintiff, the Court finds that the amount
of P1,053,300.00 is justified. Firstly, the doctrine of res
ipsa loquitur best expounded upon in the landmark case of
Republic vs. Luzon Stevedoring Corp. (21 SCRA 279)
establishes the presumption that in the ordinary course of
events the ramming of the dock would not have occurred
if proper care was used.
Secondly, the various estimates and plans justify the cost
of the port construction price. The new structure
constructed not only replaced the damaged one but was
built of stronger materials to forestall the possibility of any
similar accidents in the future.
The Court inevitably finds that the plaintiff is entitled to an
award of P1,053,300.00 which represents actual damages
caused by the damage to Berth 4 of the Manila
International Port. Co-defendants Far Eastern Shipping,

Capt. Senen Gavino and Manila Pilots Association are


solidarity liable to pay this amount to plaintiff.[104]
The Solicitor General rightly commented that the
adjudicated amount of damages represents the
proportional cost of repair and rehabilitation of the
damaged section of the pier.[105]
Except insofar as their liability is limited or exempted by
statute, the vessel or her owners are liable for all damages
caused by the negligence or other wrongs of the owners
or those in charge of the vessel. As a general rule, the
owners or those in possession and control of a vessel and
the vessel are liable for all natural and proximate
damages caused to persons or property by reason of her
negligent management or navigation.[106]
FESC's imputation of PPA's failure to provide a safe and
reliable berthing place is obtuse, not only because it
appears to be a mere afterthought, being tardily raised
only in this petition, but also because there is no
allegation or evidence on record about Berth No. 4 being
unsafe and unreliable, although perhaps it is a modest
pier by international standards. There was, therefore, no
error on the part of the Court of Appeals in dismissing
FESC's counterclaim.
II. G.R. No. 130150
This consolidated case treats on whether the Court of
Appeals erred in holding MPA jointly and solidarity liable
with its member pilot, Capt. Gavino, in the absence of
employer-employee relationship and in applying Customs
Administrative Order No. 15-65, as basis for the adjudged
solidary liability of MPA and Capt. Gavino.
The pertinent provisions in Chapter
Administrative Order No. 15-65 are:

of

Customs

"PAR. XXVII.-- In all pilotage districts where pilotage is


compulsory, there shall be created and maintained by the
pilots or pilots' association, in the manner hereinafter
prescribed, a reserve fund equal to P1,000.00 for each
pilot thereof for the purpose of paying claims for damages
to vessels or property caused through acts or omissions of
its members while rendered in compulsory pilotage
service. In Manila, the reserve fund shall be P2,000.00 for
each pilot.
PAR. XXVIII.-- A pilots' association shall not be liable under
these regulations for damage to any vessel, or other
property, resulting from acts of a member of an
association in the actual performance of his duty for a
greater amount than seventy-five per centum (75%) of its
prescribed reserve fund; it being understood that if the
association is held liable for an amount greater than the
amount above-stated, the excess shall be paid by the
personal funds of the member concerned.
PAR. XXXI.-- If a payment is made from the reserve fund of
an association on account of damages caused by a
member thereof, and he shall have been found at fault,
such member shall reimburse the association in the
amount so paid as soon as practicable; and for this
purpose, not less than twenty-five per centum of his
dividends shall be retained each month until the full
amount has been returned to the reserve fund.
PAR. XXXIV. - Nothing in these regulations shall relieve any
pilots' association or members thereof, individually or
collectively, from civil responsibility for damages to life or

34
property resulting from the acts of members in the
performance of their duties.
Correlatively, the relevant provisions of PPA Administrative
Order No. 03-85, which timely amended this applicable
maritime regulation, state:
Article IV
SEC. 17. Pilots' Association -- The Pilots in a Pilotage
District shall organize themselves into a Pilots' Association
or firm, the members of which shall promulgate their own
By-Laws not in conflict with the rules and regulations
promulgated by the Authority. These By-Laws shall be
submitted not later than one (1) month after the
organization of the Pilots' Association for approval by the
General
Manager
of
the
Authority. Subsequent
amendments thereto shall likewise be submitted for
approval.
SEC. 25. Indemnity Insurance and Reserve Fund-a) Each Pilots' Association shall collectively insure its
membership at the rate of P50,000.00 each member to
cover in whole or in part any liability arising from any
accident resulting in damage to vessel(s), port facilities
and other properties and/or injury to persons or death
which any member may have caused in the course of his
performance of pilotage duties. x x x.
b) The Pilotage Association shall likewise set up and
maintain a reserve fund which shall answer for any part of
the liability referred to in the immediately preceding
paragraph which is left unsatisfied by the insurance
proceeds, in the following manner:
1) Each pilot in the Association shall contribute from his
own account an amount of P4,000.00 (P6,000.00 in the
Manila Pilotage District) to the reserve fund. This fund
shall not be considered part of the capital of the
Association nor charged as an expense thereof.
2) Seventy-five percent (75%) of the reserve fund shall be
set aside for use, in the payment of damages referred to
above incurred in the actual performance of pilots' duties
and the excess shall be paid from the personal funds of
the member concerned.

The Court of Appeals, while affirming the trial court's


finding of solidary liability on the part of FESC, MPA and
Capt. Gavino, correctly based MPA's liability not on the
concept of employer-employee relationship between
Capt. Gavino and itself, but on the provisions of Customs
Administrative Order No. 15-65:
The Appellant MPA avers that, contrary to the findings and
disquisitions of the Court a quo, the Appellant Gavino was
not and has never been an employee of the MPA but was
only a member thereof. The Court a quo, it is noteworthy,,
did not state the factual basis on which it anchored its
finding that Gavino was the employee of MPA. We are in
accord with MPA's pose.Case law teaches Us that, for an
employer-employee relationship to exist the confluence of
the following elements must be established: (1) selection
and engagement of employees; (2) the payment of wages;
(3) the power of dismissal; (4) the employer's power to
control the employees with respect to the means and
method by which the work is to be performed (Ruga
versus NLRC, 181SCRA 266).
xxxxxxxxx
The liability of MPA for damages is not anchored on Article
2180 of the New Civil Code as erroneously found and
declared by the Court a quo but under the provisions of
Customs Administrative Order No. 15-65, supra, in tandem
with the by-laws of the MPA."[107]
There being no employer-employee relationship, clearly
Article 2180[108] of the Civil Code is inapplicable since there
is no vicarious liability of an employer to speak of. It is so
stated in American law, as follows:
The well-established rule is that pilot associations are
immune to vicarious liability for the tort of their
members. They are not the employer of their members
and exercise no control over them once they take the
helm of the vessel. They are also not partnerships
because the members do not function as agents for the
association or for each other. Pilots' associations are also
not liable for negligently assuring, the competence of their
members because as professional associations they made
no guarantee of the professional conduct of their
members to the general public.[109]

6) When the reimbursement has been completed as


prescribed in the preceding paragraph, the ten percentum
(10%) and the interest withheld from the shares of the
other pilots in accordance with paragraph (4) hereof shall
be returned to them.

Where under local statutes and regulations, pilot


associations lack the necessary legal incidents of
responsibility, they have been held not liable for damages
caused by the default of a member pilot. [110] Whether or
not the members of a pilots' association are in legal effect
a copartnership depends wholly on the powers and duties
of the members in relation to one another under the
provisions of the governing statutes and regulations. The
relation of a pilot to his association is not that of a servant
to the master, but of an associate assisting and
participating in a common purpose. Ultimately, the rights
and liabilities between a pilots' association and an
individual member depend largely upon the constitution,
articles or by-laws of the association, subject to
appropriate government regulations.[111]

c) Liability of Pilots' Association -- Nothing in these


regulations shall relieve any Pilots' Association or
members thereof, individually or collectively, from any
civil, administrative and/or criminal responsibility for
damages to life or property resulting from the individual
acts of its members as well as those of the Association's
employees and crew in the performance of their duties.

No reliance can be placed by MPA on the cited American


rulings as to immunity from liability of a pilots' association
in light of existing positive regulation under Philippine
law. The Court of Appeals properly applied the clear and
unequivocal provisions of Customs Administrative Order
No. 15-65. In doing so, it was just being consistent with its
finding of the non-existence of employer-employee

5) If payment is made from the reserve fund of an


Association on account of damage caused by a member
thereof who is found at fault, he shall reimburse the
Association in the amount so paid as soon as practicable;
and for this purpose, not less than twenty-five percentum
(25%) of his dividend shall be retained each month until
the full amount has been returned to the reserve fund.
Thereafter, the pilot involved shall be entitled to his full
dividend.

35
relationship between MPA and Capt. Gavino precludes the
application of Article 2180 of the Civil Code.
True, Customs Administrative Order No. 15-65 does not
categorically characterize or label MPA's liability as
solidary in nature. Nevertheless, a careful reading and
proper analysis of the correlated provisions lead to the
conclusion that MPA is solidarity liable for the negligence
of its member pilots, without prejudice to subsequent
reimbursement from the pilot at fault.
Article 1207 of the Civil Code provides that there is
solidary liability only when the obligation expressly so
states, or when the law or the nature of the obligation
requires solidarity.Plainly, Customs Administrative Order
No. 15-65, which as an implementing rule has the force
and effect of law, can validly provide for solidary
liability. We note the Solicitor General's comment hereon,
to wit:
x x x Customs Administrative Order No. 15-65 may be a
mere rule and regulation issued by an administrative
agency pursuant to a delegated authority to fix "the
details" in the execution or enforcement of a policy set out
in the law itself. Nonetheless, said administrative order,
which adds to the procedural or enforcing provisions of
substantive law, is legally binding and receives the same
statutory force upon going into effect. In that sense, it has
equal, not lower, statutory force and effect as a regular
statute passed by the legislature."[112]
MPA's prayer for modification of the appellate court's
decision under review by exculpating petitioner MPA "from
liability beyond seventy-five percent (75%) of Reserve
Fund" is unnecessary because the liability of MPA under
Par. XXVIII of Customs Administrative Order No. 15-65 is in
fact limited to seventy-five percent (75%) of its prescribed
reserve fund, any amount of liability beyond that being for
the personal account of the erring pilot and subject to
reimbursement in case of a finding of fault by the member
concerned. This is clarified by the Solicitor General:
Moreover, contrary to petitioners pretensions, the
provisions of Customs Administrative Order No. 15-65 do
not limit the liability of petitioner as a pilots' association to
an absurdly small amount of seventy-five per centum
(75%) of the member pilots' contribution of P2,000.00 to
the reserve fund. The law speaks of the entire reserve
fund required to be maintained by the pilots' association
to answer (for) whatever liability arising from the tortious
act of its members. And even if the association is held
liable for an amount greater than the reserve fund, the
association may not resist the liability by claiming to be
liable only up to seventy-five per centum (75%) of the
reserve fund because in such instance it has the right to
be reimbursed by the offending member pilot for the
excess."[113]
WHEREFORE, in view of all of the foregoing, the
consolidated petitions for review are DENIED and the
assailed decision of the Court of Appeals is AFFIRMED in
toto.
Counsel for FESC, the law firm of Del Rosario and Del
Rosario, specifically its associate, Atty. Herbert A. Tria, is
REPRIMANDED and WARNED that a repetition of the same
or similar acts of heedless disregard of its undertakings
under the Rules shall be dealt with more severely.
The original members of the legal team of the Office of the
Solicitor General assigned to this case, namely, Assistant
Solicitor General Roman G. Del Rosario and Solicitor Luis F.

Simon, are ADMONISHED and WARNED that a repetition of


the same or similar acts of unduly delaying proceedings
due to delayed filing of required pleadings shall also be
dealt with more stringently.
The Solicitor General is DIRECTED to look into the
circumstances of this case and to adopt provident
measures to avoid a repetition of this incident and which
would ensure prompt compliance with orders of this Court
regarding the timely filing of requisite pleadings, in the
interest of just, speedy and orderly administration of
justice.
Let copies of this decision be spread upon the personal
records of the lawyers named herein in the Office of the
Bar Confidant.
DR.
VICTORIA
L.
BATIQUIN
and
ALLAN
BATIQUIN, petitioners, vs. COURT OF APPEALS,
SPOUSES QUEDO D. ACOGIDO and FLOTILDE G.
VILLEGAS, respondents.
DECISION
DAVIDE, JR., J.:
Throughout history, patients have consigned their fates
and lives to the skill of their doctors. For a breach of this
trust, men have been quick to demand retribution. Some
4,000 years ago, the Code of Hammurabi[1] then already
provided: "If a physician make a deep incision upon a man
with his bronze lancet and cause the man's death, or
operate on the eye socket of a man with his bronze lancet
and destroy the man's eyes, they shall cut off his
hand."[2] Subsequently, Hippocrates[3] wrote what was to
become part of the healer's oath: "I will follow that
method of treatment which according to my ability and
judgment, I consider for the benefit of my patients, and
abstain
from
whatever
is
deleterious
and
mischievous . . . . While I continue to keep this oath
unviolated may it be granted me to enjoy life and practice
the art, respected by all men at all times but should I
trespass and violate this oath, may the reverse be my lot."
At present, the primary objective of the medical profession
is the preservation of life and maintenance of the health of
the people.[4]
Needless to say then, when a physician strays from his
sacred duty and endangers instead the life of his patient,
he must be made to answer therefor. Although society
today cannot and will not tolerate the punishment meted
out by the ancients, neither will it and this Court, as this
case would show, let the act go uncondemned.
The petitioners appeal from the decision[5] of the Court of
Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which
reversed the decision[6] of 21 December 1990 of Branch 30
of the Regional Trial Court (RTC) of Negros Oriental in Civil
Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros
Oriental Provincial Hospital, Dumaguete City from January
9, 1978 to September 1989. Between 1987 and
September, 1989 she was also the Actg. Head of the
Department of Obstetrics and Gynecology at the said
Hospital.
Mrs. Villegas is a married woman who submitted to Dr.
Batiquin for prenatal care as the latter's private patient
sometime before September 21, 1988.

36
In the morning of September 21, 1988 Dr. Batiquin, with
the assistance of Dr. Doris Teresita Sy who was also a
Resident Physician at the same Hospital, C.I. and O.R.
Nurse Arlene Diones and some student nurses performed
a simple cesarean section on Mrs. Villegas at the Negros
Oriental Provincial Hospital and after 45 minutes Mrs.
Villegas delivered her first child, Rachel Acogido, at about
11:45 that morning. Thereafter, Plaintiff remained
confined at the Hospital until September 27, 1988 during
which period of confinement she was regularly visited by
Dr. Batiquin. On September 28, 1988, Mrs. Villegas
checked out of the Hospital . . . and on the same day she
paid Dr. Batiquin, thru the latter's secretary, the amount of
P1,500.00 as "professional fee" . . . .
Soon after leaving the Hospital Mrs. Villegas began to
suffer abdominal pains and complained of being
feverish. She also gradually lost her appetite, so she
consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines . . . which she had
been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a Medical
Certificate by Dr. Batiquin on October 31, 1988 . . .
certifying to her physical fitness to return to her work on
November 7, 1988. So, on the second week of November,
1988 Mrs. Villegas returned to her work at the Rural Bank
of Ayungon, Negros Oriental.
The abdominal pains and fever kept on recurring and
bothered Mrs. Villegas no end and despite the medications
administered by Dr. Batiquin. When the pains become
unbearable and she was rapidly losing weight she
consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in
Dumaguete City on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud
Kho examined Mrs. Villegas at the Holy Child's Hospital on
January 20, 1989 she found Mrs. Villegas to be feverish,
pale and was breathing fast. Upon examination she felt an
abdominal mass one finger below the umbilicus which she
suspected to be either a tumor of the uterus or an ovarian
cyst, either of which could be cancerous. She had an x-ray
taken of Mrs. Villegas' chest, abdomen and kidney. She
also took blood tests of Plaintiff. A blood count showed
that Mrs. Villegas had [an] infection inside her abdominal
cavity. The result of all those examinations impelled Dr.
Kho to suggest that Mrs. Villegas submit to another
surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she
found whitish-yellow discharge inside, an ovarian cyst on
each of the left and right ovaries which gave out pus, dirt
and pus behind the uterus, and a piece of rubber
materials on the right side of the uterus embedded on
[sic] the ovarian cyst, 2 inches by 3/4 inch in size. This
piece of rubber material which Dr. Kho described as a
"foreign body" looked like a piece of a "rubber glove" . . .
and which is [sic] also "rubber-drain like . . . . It could have
been a torn section of a surgeon's gloves or could have
come from other sources. And this foreign body was the
cause of the infection of the ovaries and consequently of
all the discomfort suffered by Mrs. Villegas after her
delivery on September 21, 1988.[7]
The piece of rubber allegedly found near private
respondent Flotilde Villegas' uterus was not presented in
court, and although Dr. Ma. Salud Kho testified that she
sent it to a pathologist in Cebu City for examination, [8] it
was not mentioned in the pathologist's Surgical Pathology
Report.[9]

Aside from Dr. Kho's testimony, the evidence which


mentioned the piece of rubber are a Medical Certificate,
[10]
a Progress Record,[11] an Anesthesia Record,[12] a
Nurse's Record,[13] and a Physician's Discharge Summary.
[14]
The trial court, however, regarded these documentary
evidence as mere hearsay, "there being no showing that
the person or persons who prepared them are deceased or
unable to testify on the facts therein stated . . . . Except
for the Medical Certificate (Exhibit "F"), all the above
documents were allegedly prepared by persons other than
Dr. Kho, and she merely affixed her signature on some of
them to express her agreement thereto . . . ." [15] The trial
court also refused to give weight to Dr. Kho's testimony
regarding the subject piece of rubber as Dr. Kho "may not
have had first-hand knowledge" thereof,[16] as could be
gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says [sic] there is
[sic] a foreign body that goes with the tissues but
unluckily I don't know where the rubber was.[17]
The trial court deemed vital Dr. Victoria Batiquin's
testimony that when she confronted Dr. Kho regarding the
piece of rubber, "Dr. Kho answered that there was rubber
indeed but that she threw it away."[18] This statement, the
trial court noted, was never denied nor disputed by Dr.
Kho, leading it to conclude:
There are now two different versions on the whereabouts
of that offending "rubber" (1) that it was sent to the
Pathologist in Cebu as testified to in Court by Dr. Kho and
(2) that Dr. Kho threw it away as told by her to
Defendant. The failure of the Plaintiffs to reconcile these
two different versions serve only to weaken their claim
against Defendant Batiquin.[19]
All told, the trial court held in favor of the petitioners
herein.
The Court of Appeals reviewed the entirety of Dr. Kho's
testimony and, even without admitting the private
respondents' documentary evidence, deemed Dr. Kho's
positive testimony to definitely establish that a piece of
rubber was found near private respondent Villegas'
uterus. Thus, the Court of Appeals reversed the decision of
the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is
established by preponderance of evidence. The trial court
itself had narrated what happened to appellant Flotilde
after the cesarean operation made by appellee
doctor . . . . After the second operation, appellant Flotilde
became well and healthy. Appellant Flotilde's troubles
were caused by the infection due to the "rubber" that was
left inside her abdomen.Both appellants testified that after
the operation made by appellee doctor, they did not go to
any other doctor until they finally decided to see another
doctor in January, 1989 when she was not getting any
better
under
the
care
of
appellee
Dr.
Batiquin . . . . Appellee Dr. Batiquin admitted on the
witness stand that she alone decided when to close the
operating area; that she examined the portion she
operated on before closing the same . . . . Had she
exercised due diligence, appellee Dr. Batiquin would have
found the rubber and removed it before closing the
operating area.[20]
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of
P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus
hospital and medical expenses together with doctor's fees

37
in the total amount P9,900.00 (Exhs. G and G-2)] for the
second operation that saved her life.
For the miseries appellants endured for more than three
(3) months, due to the negligence of appellee Dr. Batiquin,
they are entitled to moral damages in the amount of
P100,000.00; exemplary damages in the amount of
P20,000.00 and attorney's fees in the amount of
P25,000.00.
The fact that appellant Flotilde can no longer bear children
because her uterus and ovaries were removed by Dr. Kho
is not taken into consideration as it is not shown that the
removal of said organs were the direct result of the rubber
left by appellee Dr. Batiquin near the uterus. What is
established is that the rubber left by appellee cause
infection, placed the life of appellant Flotilde in jeopardy
and caused appellants fear, worry and anxiety . . . .
WHEREFORE, the appealed judgment, dismissing the
complaint for damages is REVERSED and SET
ASIDE. Another judgment is hereby entered ordering
defendants-appellees to pay plaintiffs-appellants the
amounts of P17,000.00 as and for actual damages;
P100,000.00 as and for moral damages; P20,000.00 as
and for exemplary damages; and P25,000.00 as and for
attorney's fees plus the cost of litigation.
SO ORDERED.[21]
From the above judgment, the petitioners appealed to this
Court claiming that the appellate court; (1) committed
grave abuse of discretion by resorting to findings of fact
not supported by the evidence on record, and (2)
exceeded its discretion, amounting to lack or excess of
jurisdiction, when it gave credence to testimonies
punctured with contradictions and falsities.
The private respondents commented that the petition
raised only questions of fact, which were not proper for
review by this Court.
While the rule is that only questions of law may be raised
in a petition for review on certiorari, there are exceptions,
among which are when the factual findings of the trial
court and the appellate court conflict, when the appealed
decision is clearly contradicted by the evidence on record,
or when the appellate court misapprehended the facts. [22]
After deciphering the cryptic petition, we find that the
focal point of the instant appeal is the appreciation of Dr.
Kho's testimony. The petitioners contend that the Court of
Appeals misappreciated the following portion of Dr. Kho's
testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind,
just in case this would turn out to be a medico-legal case,
I have heard somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but unluckily I
don't know where the rubber was. It was not in the Lab, it
was not in Cebu.[23] (Italics supplied)
The petitioners prefer the trial court's interpretation of the
above testimony, i.e., that Dr. Kho's knowledge of the
piece of rubber was based on hearsay. The Court of
Appeals, on the other hand, concluded that the
underscored phrase was taken out of context by the trial
court. According to the Court of Appeals, the trial court
should have likewise considered the other portions of Dr.
Kho's testimony, especially the following:

Q So you did actually conduct the operation on her?


A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow
discharge inside the abdomen, there was an ovarian cyst
on the left and side and there was also an ovarian cyst on
the right which, on opening up or freeing it up from the
uterus, turned out to be pus. Both ovaries turned out . . .
to have pus. And then, cleaning up the uterus, at the back
of the uterus it was very dirty, it was full of pus. And there
was a [piece of] rubber, we found a [piece of] rubber on
the right side.[24]
We agree with the Court of Appeals. The phrase relied
upon by the trial court does not negate the fact that Dr.
Kho saw a piece of rubber in private respondent Villegas'
abdomen, and that she sent it to a laboratory and then to
Cebu City for examination by a pathologist. [25] Not even
the Pathologist's Report, although devoid of any mention
of a piece of rubber, could alter what Dr. Kho
saw. Furthermore, Dr. Kho's knowledge of the piece of
rubber could not be based on other than first hand
knowledge for, as she asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it.[26]
The petitioners emphasize that the private respondents
never reconciled Dr. Kho's testimony with Dr. Batiquin's
claim on the witness stand that when Dr. Batiquin
confronted Dr. Kho about the foreign body, the latter said
that there was a piece of rubber but that she threw it
away. Although hearsay, Dr. Batiquin's claim was not
objected to, and hence, the same is admissible [27] but it
carries no probative value.[28] Nevertheless, assuming
otherwise, Dr. Batiquin's statement cannot belie the fact
that Dr. Kho found a piece of rubber near private
respondent Villegas' uterus. And even if we were to doubt
Dr. Kho as to what she did to the piece of
rubber, i.e., whether she threw it away or sent it to Cebu
City, we are not justified in distrusting her as to her
recovery of a piece of rubber from private respondent
Villegas' abdomen. On this score, it is perfectly reasonable
to believe the testimony of a witness with respect to some
facts and disbelieve his testimony with respect to other
facts. And it has been aptly said that even when a witness
is found to have deliberately falsified in some material
particulars, it is not required that the whole of his
uncorroborated testimony be rejected, but such portions
thereof deemed worthy of belief may be credited. [29]
It is here worth nothing that the trial court paid heed to
the following portions of Dr. Batiquin's testimony: that no
rubber drain was used in the operation, [30] and that there
was neither any tear on Dr. Batiquin's gloves after the
operation nor blood smears on her hands upon removing
her gloves.[31] Moreover, the trial court pointed out that
the absence of a rubber drain was corroborated by Dr.
Doris Sy, Dr. Batiquin's assistant during the operation on
private respondent Villegas.[32] But the trial court failed to
recognize that the assertions of Drs. Batiquin and Sy were
denials or negative testimonies. Well-settled is the rule
that positive testimony is stronger than negative
testimony.[33] Of course, as the petitioners advocate, such
positive testimony must come from a credible source,
which leads us to the second assigned error.

38
While the petitioners claim that contradictions and
falsities punctured Dr. Kho's testimony, a reading of the
said testimony reveals no such infirmity and establishes
Dr. Kho as a credible witness. Dr. Kho was frank
throughout her turn on the witness stand. Furthermore, no
motive to state any untruth was ever imputed against Dr.
Kho, leaving her trustworthiness unimpaired.[34] The trial
court's following declaration shows that while it was
critical of the lack of care with which Dr. Kho handled the
piece of rubber, it was not prepared to doubt Dr. Kho's
credibility, thus only supporting out appraisal of Dr. Kho's
trustworthiness:
This is not to say that she was less than honest when she
testified about her findings, but it can also be said that
she did not take the most appropriate precaution to
preserve that "piece of rubber" as an eloquent evidence of
what she would reveal should there be a "legal problem"
which she claim[s] to have anticipated.[35]
Considering that we have assessed Dr. Kho to be a
credible witness, her positive testimony [that a piece of
rubber was indeed found in private respondent Villegas'
abdomen] prevails over the negative testimony in favor of
the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This
Court has had occasion to delve into the nature and
operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the
thing which causes injury is shown to be under the
management of the defendant, and the accident is such
as in the ordinary course of things does not happen if
those who have the management use proper care, it
affords reasonable evidence, in the absence of an
explanation by the defendant, that the accident arose
from want of care." Or as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuttable
presumption or inference that defendant was negligent,
which arises upon proof that [the] instrumentality causing
injury was in defendant's exclusive control, and that the
accident was one which ordinary does not happen in
absence of negligence. Res ipsa loquitur is [a] rule of
evidence whereby negligence of [the] alleged wrongdoer
may be inferred from [the] mere fact that [the] accident
happened provided [the] character of [the] accident and
circumstances attending it lead reasonably to belief that
in [the] absence of negligence it would not have occurred
and that thing which caused injury is shown to have been
under [the] management and control of [the] alleged
wrongdoer . . . . Under [this] doctrine . . . the happening of
an injury permits an inference of negligence where
plaintiff produces substantial evidence that [the] injury
was caused by an agency or instrumentality under [the]
exclusive control and management of defendant, and that
the occurrence [sic] was such that in the ordinary course
of things would not happen if reasonable care had been
used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is
peculiar to the law of negligence which recognizes
that prima facie negligence may be established without
direct proof and furnishes a substitute for specific proof of
negligence. The doctrine is not a rule of substantive law,
but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and

does not dispense with the requirement of proof of


culpable negligence on the party charged. It merely
determines
and
regulates
what
shall
be prima facie evidence thereof and facilitates the burden
of plaintiff of proving a breach of the duty of due care. The
doctrine can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not
readily available.[36]
In the instant case, all the requisites for recourse to the
doctrine are present. First, the entire proceedings of the
cesarean section were under the exclusive control of Dr.
Batiquin. In this light, the private respondents were bereft
of direct evidence as to the actual culprit or the exact
cause of the foreign object finding its way into private
respondent Villegas' body, which, needless to say, does
not
occur
unless
through
the
intervention
of
negligence. Second, since aside from the cesarean
section, private respondent Villegas underwent no other
operation which could have caused the offending piece of
rubber to appear in her uterus, it stands to reason that
such could only have been a by-product of the cesarean
section performed by Dr. Batiquin. The petitioners, in this
regard, failed to overcome the presumption of negligence
arising from resort to the doctrine of res ipsa loquitur. Dr.
Batiquin is therefore liable for negligently leaving behind a
piece of rubber in private respondent Villegas' abdomen
and for all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the
vital role the medical profession plays in the lives of the
people,[37] and State's compelling interest to enact
measures to protect the public from "the potentially
deadly effects of incompetence and ignorance in those
who would undertake to treat our bodies and minds for
disease or trauma."[38] Indeed, a physician is bound to
serve the interest of his patients "with the greatest of
solicitude, giving them always his best talent and
skill."[39] Through her tortious conduct, the petitioner
endangered the life of Flotilde Villegas, in violation of her
profession's rigid ethical code and in contravention of the
legal standards set forth for professionals, in the general,
[40]
and members of the medical profession,[41] in particular.
WHEREFORE, the challenged decision of 11 May 1994 of
the Court of Appeals in CA-G.R. CV No. 30851 is hereby
AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.
G.R. No. 126297

January 31, 2007

PROFESSIONAL
SERVICES,
INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467

January 31, 2007

NATIVIDAD (Substituted by her children MARCELINO


AGANA III, ENRIQUE AGANA, JR., EMMA AGANA
ANDAYA, JESUS AGANA, and RAYMUND AGANA) and
ENRIQUE
AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590

January 31, 2007

39
MIGUEL
vs.
NATIVIDAD
AGANA
AGANA, Respondents.

AMPIL, Petitioner,
and

ENRIQUE

DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankinds most
important and delicate endeavors, must assume the grave
responsibility of pursuing it with appropriate care. The
care and service dispensed through this high trust,
however technical, complex and esoteric its character
may be, must meet standards of responsibility
commensurate with the undertaking to preserve and
protect the health, and indeed, the very lives of those
placed in the hospitals keeping.1
Assailed in these three consolidated petitions for review
on certiorari is the Court of Appeals Decision 2 dated
September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R.
SP
No.
32198
affirming
with
modification
the
Decision3 dated March 17, 1993 of the Regional Trial Court
(RTC), Branch 96, Quezon City in Civil Case No. Q-43322
and nullifying its Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the
Medical City General Hospital (Medical City Hospital)
because of difficulty of bowel movement and bloody anal
discharge. After a series of medical examinations, Dr.
Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her
to be suffering from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical
staff4 of the Medical City Hospital, performed an anterior
resection surgery on Natividad. He found that the
malignancy in her sigmoid area had spread on her left
ovary, necessitating the removal of certain portions of it.
Thus, Dr. Ampil obtained the consent of Natividads
husband, Enrique Agana, to permit Dr. Juan Fuentes,
respondent in G.R. No. 126467, to perform hysterectomy
on her.
After Dr. Fuentes had completed the hysterectomy, Dr.
Ampil took over, completed the operation and closed the
incision.
However, the operation appeared to be flawed. In the
corresponding Record of Operation dated April 11, 1984,
the attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no avail
continue for closure."
On April 24, 1984, Natividad was released from the
hospital. Her hospital and medical bills, including the
doctors fees, amounted to P60,000.00.
After a couple of days, Natividad complained of
excruciating pain in her anal region. She consulted both
Dr. Ampil and Dr. Fuentes about it. They told her that the
pain was the natural consequence of the surgery. Dr.
Ampil then recommended that she consult an oncologist
to examine the cancerous nodes which were not removed
during the operation.
On May 9, 1984, Natividad, accompanied by her husband,
went to the United States to seek further treatment. After

four months of consultations and laboratory examinations,


Natividad was told she was free of cancer. Hence, she was
advised to return to the Philippines.
On August 31, 1984, Natividad flew back to the
Philippines, still suffering from pains. Two weeks
thereafter, her daughter found a piece of gauze protruding
from her vagina. Upon being informed about it, Dr. Ampil
proceeded to her house where he managed to extract by
hand a piece of gauze measuring 1.5 inches in width. He
then assured her that the pains would soon vanish.
Dr. Ampils assurance did not come true. Instead, the
pains intensified, prompting Natividad to seek treatment
at the Polymedic General Hospital. While confined there,
Dr. Ramon Gutierrez detected the presence of another
foreign object in her vagina -- a foul-smelling gauze
measuring 1.5 inches in width which badly infected her
vaginal vault. A recto-vaginal fistula had formed in her
reproductive organs which forced stool to excrete through
the vagina. Another surgical operation was needed to
remedy the damage. Thus, in October 1984, Natividad
underwent another surgery.
On November 12, 1984, Natividad and her husband filed
with the RTC, Branch 96, Quezon City a complaint for
damages against the Professional Services, Inc. (PSI),
owner of the Medical City Hospital, Dr. Ampil, and Dr.
Fuentes, docketed as Civil Case No. Q-43322. They alleged
that the latter are liable for negligence for leaving two
pieces of gauze inside Natividads body and malpractice
for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional
Regulation Commission (PRC) an administrative complaint
for gross negligence and malpractice against Dr. Ampil
and Dr. Fuentes, docketed as Administrative Case No.
1690. The PRC Board of Medicine heard the case only with
respect to Dr. Fuentes because it failed to acquire
jurisdiction over Dr. Ampil who was then in the United
States.
On February 16, 1986, pending the outcome of the above
cases, Natividad died and was duly substituted by her
above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor
of the Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable
for negligence and malpractice, the decretal part of which
reads:
WHEREFORE, judgment is hereby rendered for the
plaintiffs
ordering
the
defendants
PROFESSIONAL
SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES
to pay to the plaintiffs, jointly and severally, except in
respect of the award for exemplary damages and the
interest thereon which are the liabilities of defendants Dr.
Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of
US$19,900.00 at the rate of P21.60-US$1.00, as
reimbursement of actual expenses incurred in the United
States of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and
their physician daughter;
c. The total sum of P45,802.50, representing the cost of
hospitalization at Polymedic Hospital, medical fees, and
cost of the saline solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorneys fees, the sum of P250,000.00;

40
5. Legal interest on items 1 (a), (b), and (c); 2; and 3
hereinabove, from date of filing of the complaint until full
payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an
appeal to the Court of Appeals, docketed as CA-G.R. CV
No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the
RTC a motion for a partial execution of its Decision, which
was granted in an Order dated May 11, 1993. Thereafter,
the sheriff levied upon certain properties of Dr. Ampil and
sold them for P451,275.00 and delivered the amount to
the Aganas.
Following their receipt of the money, the Aganas entered
into an agreement with PSI and Dr. Fuentes to indefinitely
suspend any further execution of the RTC Decision.
However, not long thereafter, the Aganas again filed a
motion for an alias writ of execution against the properties
of PSI and Dr. Fuentes. On September 21, 1993, the RTC
granted the motion and issued the corresponding writ,
prompting Dr. Fuentes to file with the Court of Appeals a
petition for certiorari and prohibition, with prayer for
preliminary injunction, docketed as CA-G.R. SP No. 32198.
During its pendency, the Court of Appeals issued a
Resolution5 dated October 29, 1993 granting Dr. Fuentes
prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No.
consolidated with CA-G.R. CV No. 42062.

32198

was

Meanwhile, on January 23, 1995, the PRC Board of


Medicine rendered its Decision6 in Administrative Case No.
1690 dismissing the case against Dr. Fuentes. The Board
held that the prosecution failed to show that Dr. Fuentes
was the one who left the two pieces of gauze inside
Natividads body; and that he concealed such fact from
Natividad.
On September 6, 1996, the Court of Appeals rendered its
Decision jointly disposing of CA-G.R. CV No. 42062 and CAG.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case
against defendant-appellant Dr. Juan Fuentes is hereby
DISMISSED, and with the pronouncement that defendantappellant Dr. Miguel Ampil is liable to reimburse
defendant-appellant Professional Services, Inc., whatever
amount the latter will pay or had paid to the plaintiffsappellees, the decision appealed from is hereby AFFIRMED
and the instant appeal DISMISSED.
Concomitant with the above, the petition for certiorari and
prohibition filed by herein defendant-appellant Dr. Juan
Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and
the challenged order of the respondent judge dated
September 21, 1993, as well as the alias writ of execution
issued pursuant thereto are hereby NULLIFIED and SET
ASIDE. The bond posted by the petitioner in connection
with the writ of preliminary injunction issued by this Court
on November 29, 1993 is hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and
Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it
was denied in a Resolution7 dated December 19, 1996.
Hence, the instant consolidated petitions.

In G.R. No. 126297, PSI alleged in its petition that the


Court of Appeals erred in holding that: (1) it is estopped
from raising the defense that Dr. Ampil is not its
employee; (2) it is solidarily liable with Dr. Ampil; and (3) it
is not entitled to its counterclaim against the Aganas. PSI
contends that Dr. Ampil is not its employee, but a mere
consultant or independent contractor. As such, he alone
should answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court of
Appeals erred in finding that Dr. Fuentes is not guilty of
negligence or medical malpractice, invoking the doctrine
of res ipsa loquitur. They contend that the pieces of gauze
are prima facie proofs that the operating surgeons have
been negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the
Court of Appeals erred in finding him liable for negligence
and malpractice sans evidence that he left the two pieces
of gauze in Natividads vagina. He pointed to other
probable causes, such as: (1) it was Dr. Fuentes who used
gauzes in performing the hysterectomy; (2) the attending
nurses failure to properly count the gauzes used during
surgery; and (3) the medical intervention of the American
doctors who examined Natividad in the United States of
America.
For our resolution are these three vital issues: first,
whether the Court of Appeals erred in holding Dr. Ampil
liable for negligence and malpractice; second, whether the
Court of Appeals erred in absolving Dr. Fuentes of any
liability; and third, whether PSI may be held solidarily
liable for the negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the
Courts attention to other possible causes of Natividads
detriment. He argues that the Court should not discount
either of the following possibilities: first, Dr. Fuentes left
the gauzes in Natividads body after performing
hysterectomy; second, the attending nurses erred in
counting the gauzes; and third, the American doctors were
the ones who placed the gauzes in Natividads body.
Dr. Ampils arguments are purely conjectural and without
basis. Records show that he did not present any evidence
to prove that the American doctors were the ones who put
or left the gauzes in Natividads body. Neither did he
submit evidence to rebut the correctness of the record of
operation, particularly the number of gauzes used. As to
the alleged negligence of Dr. Fuentes, we are mindful that
Dr. Ampil examined his (Dr. Fuentes) work and found it in
order.
The glaring truth is that all the major circumstances, taken
together, as specified by the Court of Appeals, directly
point to Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used gauzes as
sponges to control the bleeding of the patient during the
surgical operation.
Second, immediately after the operation, the nurses who
assisted in the surgery noted in their report that the
sponge count (was) lacking 2; that such anomaly was
announced to surgeon and that a search was done but

41
to no avail prompting Dr. Ampil to continue for closure x
x x.
Third, after the operation, two (2) gauzes were extracted
from the same spot of the body of Mrs. Agana where the
surgery was performed.
An operation requiring the placing of sponges in the
incision is not complete until the sponges are properly
removed, and it is settled that the leaving of sponges or
other foreign substances in the wound after the incision
has been closed is at least prima facie negligence by the
operating surgeon.8 To put it simply, such act is considered
so inconsistent with due care as to raise an inference of
negligence. There are even legions of authorities to the
effect that such act is negligence per se.9
Of course, the Court is not blind to the reality that there
are times when danger to a patients life precludes a
surgeon from further searching missing sponges or foreign
objects left in the body. But this does not leave him free
from any obligation. Even if it has been shown that a
surgeon was required by the urgent necessities of the
case to leave a sponge in his patients abdomen, because
of the dangers attendant upon delay, still, it is his legal
duty to so inform his patient within a reasonable time
thereafter by advising her of what he had been compelled
to do. This is in order that she might seek relief from the
effects of the foreign object left in her body as her
condition might permit. The ruling in Smith v. Zeagler 10 is
explicit, thus:
The removal of all sponges used is part of a surgical
operation, and when a physician or surgeon fails to
remove a sponge he has placed in his patients body that
should be removed as part of the operation, he thereby
leaves his operation uncompleted and creates a new
condition which imposes upon him the legal duty of calling
the new condition to his patients attention, and
endeavoring with the means he has at hand to minimize
and avoid untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing
two pieces of gauze. Worse, he even misled her that the
pain she was experiencing was the ordinary consequence
of her operation. Had he been more candid, Natividad
could have taken the immediate and appropriate medical
remedy to remove the gauzes from her body. To our mind,
what was initially an act of negligence by Dr. Ampil has
ripened into a deliberate wrongful act of deceiving his
patient.
This is a clear case of medical malpractice or more
appropriately, medical negligence. To successfully pursue
this kind of case, a patient must only prove that a health
care provider either failed to do something which a
reasonably prudent health care provider would have done,
or that he did something that a reasonably prudent
provider would not have done; and that failure or action
caused injury to the patient. 11 Simply put, the elements
are duty, breach, injury and proximate causation. Dr,
Ampil, as the lead surgeon, had the duty to remove all
foreign objects, such as gauzes, from Natividads body
before closure of the incision. When he failed to do so, it
was his duty to inform Natividad about it. Dr. Ampil
breached both duties. Such breach caused injury to
Natividad, necessitating her further examination by
American doctors and another surgery. That Dr. Ampils
negligence is the proximate cause12 of Natividads injury
could be traced from his act of closing the incision despite
the information given by the attending nurses that two

pieces of gauze were still missing. That they were later on


extracted from Natividads vagina established the causal
link between Dr. Ampils negligence and the injury. And
what further aggravated such injury was his deliberate
concealment of the missing gauzes from the knowledge of
Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the
case against Dr. Fuentes on the ground that it is contrary
to the doctrine of res ipsa loquitur. According to them, the
fact that the two pieces of gauze were left inside
Natividads body is a prima facie evidence of Dr. Fuentes
negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for
itself." It is the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may
permit an inference or raise a presumption of negligence,
or make out a plaintiffs prima facie case, and present a
question of fact for defendant to meet with an
explanation.13 Stated differently, where the thing which
caused the injury, without the fault of the injured, is under
the exclusive control of the defendant and the injury is
such that it should not have occurred if he, having such
control used proper care, it affords reasonable evidence,
in the absence of explanation that the injury arose from
the defendants want of care, and the burden of proof is
shifted to him to establish that he has observed due care
and diligence.14
From the foregoing statements of the rule, the requisites
for the applicability of the doctrine of res ipsa loquitur are:
(1) the occurrence of an injury; (2) the thing which caused
the injury was under the control and management of the
defendant; (3) the occurrence was such that in the
ordinary course of things, would not have happened if
those who had control or management used proper care;
and (4) the absence of explanation by the defendant. Of
the foregoing requisites, the most instrumental is the
"control and management of the thing which caused the
injury."15
We find the element of "control and management of the
thing which caused the injury" to be wanting. Hence, the
doctrine of res ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead
surgeon during the operation of Natividad. He requested
the assistance of Dr. Fuentes only to perform
hysterectomy when he (Dr. Ampil) found that the
malignancy in her sigmoid area had spread to her left
ovary. Dr. Fuentes performed the surgery and thereafter
reported and showed his work to Dr. Ampil. The latter
examined it and finding everything to be in order, allowed
Dr. Fuentes to leave the operating room. Dr. Ampil then
resumed operating on Natividad. He was about to finish
the procedure when the attending nurses informed him
that two pieces of gauze were missing. A "diligent search"
was conducted, but the misplaced gauzes were not found.
Dr. Ampil then directed that the incision be closed. During
this entire period, Dr. Fuentes was no longer in the
operating room and had, in fact, left the hospital.

42
Under the "Captain of the Ship" rule, the operating
surgeon is the person in complete charge of the surgery
room and all personnel connected with the operation.
Their duty is to obey his orders. 16 As stated before, Dr.
Ampil was the lead surgeon. In other words, he was the
"Captain of the Ship." That he discharged such role is
evident from his following conduct: (1) calling Dr. Fuentes
to perform a hysterectomy; (2) examining the work of Dr.
Fuentes and finding it in order; (3) granting Dr. Fuentes
permission to leave; and (4) ordering the closure of the
incision. To our mind, it was this act of ordering the closure
of the incision notwithstanding that two pieces of gauze
remained unaccounted for, that caused injury to
Natividads body. Clearly, the control and management of
the thing which caused the injury was in the hands of Dr.
Ampil, not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of
substantive law, hence, does not per se create or
constitute an independent or separate ground of liability,
being a mere evidentiary rule.17 In other words, mere
invocation and application of the doctrine does not
dispense with the requirement of proof of negligence.
Here, the negligence was proven to have been committed
by Dr. Ampil and not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical
development of hospitals and the resulting theories
concerning their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally
charitable institutions, providing medical services to the
lowest classes of society, without regard for a patients
ability to pay.18 Those who could afford medical treatment
were usually treated at home by their doctors. 19 However,
the days of house calls and philanthropic health care are
over. The modern health care industry continues to
distance itself from its charitable past and has
experienced a significant conversion from a not-for-profit
health care to for-profit hospital businesses. Consequently,
significant changes in health law have accompanied the
business-related changes in the hospital industry. One
important legal change is an increase in hospital liability
for medical malpractice. Many courts now allow claims for
hospital vicarious liability under the theories of respondeat
superior, apparent authority, ostensible authority, or
agency by estoppel. 20
In this jurisdiction, the statute governing liability for
negligent acts is Article 2176 of the Civil Code, which
reads:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is
no pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of
this Chapter.
A derivative of this provision is Article 2180, the rule
governing vicarious liability under the doctrine of
respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions, but
also for those of persons for whom one is responsible.

x x x

x x

x
The owners and managers of
enterprise are likewise responsible
their employees in the service of
the latter are employed or on
functions.

an establishment or
for damages caused by
the branches in which
the occasion of their

Employers shall be liable for the damages caused by their


employees and household helpers acting within the scope
of their assigned tasks even though the former are not
engaged in any business or industry.

x x
x

The responsibility treated of in this article shall cease


when the persons herein mentioned prove that they
observed all the diligence of a good father of a family to
prevent damage.
A prominent civilist commented that professionals
engaged by an employer, such as physicians, dentists,
and pharmacists, are not "employees" under this article
because the manner in which they perform their work is
not within the control of the latter (employer). In other
words, professionals are considered personally liable for
the fault or negligence they commit in the discharge of
their duties, and their employer cannot be held liable for
such fault or negligence. In the context of the present
case, "a hospital cannot be held liable for the fault or
negligence of a physician or surgeon in the treatment or
operation of patients."21
The foregoing view is grounded on the traditional notion
that the professional status and the very nature of the
physicians calling preclude him from being classed as an
agent or employee of a hospital, whenever he acts in a
professional capacity.22 It has been said that medical
practice strictly involves highly developed and specialized
knowledge,23 such that physicians are generally free to
exercise their own skill and judgment in rendering medical
services sans interference.24 Hence, when a doctor
practices medicine in a hospital setting, the hospital and
its employees are deemed to subserve him in his
ministrations to the patient and his actions are of his own
responsibility.25
The case of Schloendorff v. Society of New York
Hospital26 was then considered an authority for this view.
The "Schloendorff doctrine" regards a physician, even if
employed by a hospital, as an independent contractor
because of the skill he exercises and the lack of control
exerted over his work. Under this doctrine, hospitals are
exempt from the application of the respondeat superior
principle for fault or negligence committed by physicians
in the discharge of their profession.
However, the efficacy of the foregoing doctrine has
weakened with the significant developments in medical
care. Courts came to realize that modern hospitals are
increasingly taking active role in supplying and regulating
medical care to patients. No longer were a hospitals
functions limited to furnishing room, food, facilities for
treatment and operation, and attendants for its patients.
Thus, in Bing v. Thunig,27 the New York Court of Appeals
deviated from the Schloendorff doctrine, noting that
modern hospitals actually do far more than provide
facilities for treatment. Rather, they regularly employ, on
a salaried basis, a large staff of physicians, interns,
nurses, administrative and manual workers. They charge

43
patients for medical care and treatment, even collecting
for such services through legal action, if necessary. The
court then concluded that there is no reason to exempt
hospitals from the universal rule of respondeat superior.
In our shores, the nature of the relationship between the
hospital and the physicians is rendered inconsequential in
view of our categorical pronouncement in Ramos v. Court
of
Appeals28 that
for
purposes
of
apportioning
responsibility in medical negligence cases, an employeremployee relationship in effect exists between hospitals
and their attending and visiting physicians. This Court
held:
"We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting "consultants," who are allegedly not hospital
employees,
presents
problems
in
apportioning
responsibility for negligence in medical malpractice cases.
However, the difficulty is more apparent than real.
In the first place, hospitals exercise significant control in
the hiring and firing of consultants and in the conduct of
their work within the hospital premises. Doctors who apply
for consultant slots, visiting or attending, are required to
submit proof of completion of residency, their educational
qualifications, generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are
carefully scrutinized by members of the hospital
administration or by a review committee set up by the
hospital who either accept or reject the application. x x x.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds
for clerks, interns and residents, moderate grand rounds
and patient audits and perform other tasks and
responsibilities, for the privilege of being able to maintain
a clinic in the hospital, and/or for the privilege of admitting
patients into the hospital. In addition to these, the
physicians performance as a specialist is generally
evaluated by a peer review committee on the basis of
mortality and morbidity statistics, and feedback from
patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls
short of the minimum standards acceptable to the hospital
or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise
real control over their attending and visiting consultant
staff. While consultants are not, technically employees, x
x x, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of
an employer-employee relationship, with the exception of
the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule that for
the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in
effect exists between hospitals and their attending and
visiting physicians. "
But the Ramos pronouncement is not our only basis in
sustaining PSIs liability. Its liability is also anchored upon
the agency principle of apparent authority or agency by
estoppel and the doctrine of corporate negligence which
have gained acceptance in the determination of a
hospitals liability for negligent acts of health

professionals. The present case serves as a perfect


platform to test the applicability of these doctrines, thus,
enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as
the "holding
out" theory, or doctrine of ostensible agency or agency by
estoppel,29 has its origin from the law of agency. It
imposes liability, not as the result of the reality of a
contractual relationship, but rather because of the actions
of a principal or an employer in somehow misleading the
public into believing that the relationship or the authority
exists.30 The concept is essentially one of estoppel and has
been explained in this manner:
"The principal is bound by the acts of his agent with the
apparent authority which he knowingly permits the agent
to assume, or which he holds the agent out to the public
as possessing. The question in every case is whether the
principal has by his voluntary act placed the agent in such
a situation that a person of ordinary prudence, conversant
with business usages and the nature of the particular
business, is justified in presuming that such agent has
authority to perform the particular act in question.31
The applicability of apparent authority in the field of
hospital liability was upheld long time ago in Irving v.
Doctor Hospital of Lake Worth, Inc.32 There, it was
explicitly stated that "there does not appear to be any
rational basis for excluding the concept of apparent
authority from the field of hospital liability." Thus, in cases
where it can be shown that a hospital, by its actions, has
held out a particular physician as its agent and/or
employee and that a patient has accepted treatment from
that physician in the reasonable belief that it is being
rendered in behalf of the hospital, then the hospital will be
liable for the physicians negligence.
Our jurisdiction recognizes the concept of an agency by
implication or estoppel. Article 1869 of the Civil Code
reads:
ART. 1869. Agency may be express, or implied from the
acts of the principal, from his silence or lack of action, or
his failure to repudiate the agency, knowing that another
person is acting on his behalf without authority.
In this case, PSI publicly displays in the lobby of the
Medical City Hospital the names and specializations of the
physicians associated or accredited by it, including those
of Dr. Ampil and Dr. Fuentes. We concur with the Court of
Appeals conclusion that it "is now estopped from passing
all the blame to the physicians whose names it proudly
paraded in the public directory leading the public to
believe that it vouched for their skill and competence."
Indeed, PSIs act is tantamount to holding out to the public
that Medical City Hospital, through its accredited
physicians, offers quality health care services. By
accrediting Dr. Ampil and Dr. Fuentes and publicly
advertising their qualifications, the hospital created the
impression that they were its agents, authorized to
perform medical or surgical services for its patients. As
expected, these patients, Natividad being one of them,
accepted the services on the reasonable belief that such
were being rendered by the hospital or its employees,
agents, or servants. The trial court correctly pointed out:
x x x regardless of the education and status in life of the
patient, he ought not be burdened with the defense of
absence of employer-employee relationship between the
hospital and the independent physician whose name and

44
competence are certainly certified to the general public by
the hospitals act of listing him and his specialty in its
lobby directory, as in the case herein. The high costs of
todays medical and health care should at least exact on
the hospital greater, if not broader, legal responsibility for
the conduct of treatment and surgery within its facility by
its accredited physician or surgeon, regardless of whether
he is independent or employed."33
The wisdom of the foregoing ratiocination is easy to
discern. Corporate entities, like PSI, are capable of acting
only through other individuals, such as physicians. If these
accredited physicians do their job well, the hospital
succeeds in its mission of offering quality medical services
and thus profits financially. Logically, where negligence
mars the quality of its services, the hospital should not be
allowed to escape liability for the acts of its ostensible
agents.
We now proceed to the doctrine of corporate negligence
or corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332
for negligence and malpractice is that PSI as owner,
operator and manager of Medical City Hospital, "did not
perform the necessary supervision nor exercise diligent
efforts in the supervision of Drs. Ampil and Fuentes and its
nursing staff, resident doctors, and medical interns who
assisted Drs. Ampil and Fuentes in the performance of
their duties as surgeons."34 Premised on the doctrine of
corporate negligence, the trial court held that PSI is
directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate
negligence as the judicial answer to the problem of
allocating hospitals liability for the negligent acts of
health practitioners, absent facts to support the
application of respondeat superior or apparent authority.
Its
formulation
proceeds
from
the
judiciarys
acknowledgment that in these modern times, the duty of
providing quality medical service is no longer the sole
prerogative and responsibility of the physician. The
modern hospitals have changed structure. Hospitals now
tend to organize a highly professional medical staff whose
competence and performance need to be monitored by
the hospitals commensurate with their inherent
responsibility to provide quality medical care.35
The doctrine has its genesis in Darling v. Charleston
Community Hospital.36 There, the Supreme Court of Illinois
held that "the jury could have found a hospital negligent,
inter alia, in failing to have a sufficient number of trained
nurses attending the patient; failing to require a
consultation with or examination by members of the
hospital staff; and failing to review the treatment rendered
to the patient." On the basis of Darling, other jurisdictions
held that a hospitals corporate negligence extends to
permitting a physician known to be incompetent to
practice at the hospital.37 With the passage of time, more
duties were expected from hospitals, among them: (1) the
use of reasonable care in the maintenance of safe and
adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or
supervision of all persons who practice medicine within its
walls; and (4) the formulation, adoption and enforcement
of adequate rules and policies that ensure quality care for
its patients.38 Thus, in Tucson Medical Center, Inc. v.
Misevich,39 it was held that a hospital, following the
doctrine of corporate responsibility, has the duty to see

that it meets the standards of responsibilities for the care


of patients. Such duty includes the proper supervision of
the members of its medical staff. And in Bost v. Riley, 40 the
court concluded that a patient who enters a hospital does
so with the reasonable expectation that it will attempt to
cure him. The hospital accordingly has the duty to make a
reasonable effort to monitor and oversee the treatment
prescribed and administered by the physicians practicing
in its premises.
In the present case, it was duly established that PSI
operates the Medical City Hospital for the purpose and
under the concept of providing comprehensive medical
services to the public. Accordingly, it has the duty to
exercise reasonable care to protect from harm all patients
admitted into its facility for medical treatment.
Unfortunately, PSI failed to perform such duty. The
findings of the trial court are convincing, thus:
x x x PSIs liability is traceable to its failure to conduct an
investigation of the matter reported in the nota bene of
the count nurse. Such failure established PSIs part in the
dark conspiracy of silence and concealment about the
gauzes. Ethical considerations, if not also legal, dictated
the holding of an immediate inquiry into the events, if not
for the benefit of the patient to whom the duty is primarily
owed, then in the interest of arriving at the truth. The
Court cannot accept that the medical and the healing
professions, through their members like defendant
surgeons, and their institutions like PSIs hospital facility,
can callously turn their backs on and disregard even a
mere probability of mistake or negligence by refusing or
failing to investigate a report of such seriousness as the
one in Natividads case.
It is worthy to note that Dr. Ampil and Dr. Fuentes
operated on Natividad with the assistance of the Medical
City Hospitals staff, composed of resident doctors, nurses,
and interns. As such, it is reasonable to conclude that PSI,
as the operator of the hospital, has actual or constructive
knowledge of the procedures carried out, particularly the
report of the attending nurses that the two pieces of
gauze were missing. In Fridena v. Evans, 41 it was held that
a corporation is bound by the knowledge acquired by or
notice given to its agents or officers within the scope of
their authority and in reference to a matter to which their
authority extends. This means that the knowledge of any
of the staff of Medical City Hospital constitutes knowledge
of PSI. Now, the failure of PSI, despite the attending
nurses report, to investigate and inform Natividad
regarding the missing gauzes amounts to callous
negligence. Not only did PSI breach its duties to oversee
or supervise all persons who practice medicine within its
walls, it also failed to take an active step in fixing the
negligence committed. This renders PSI, not only
vicariously liable for the negligence of Dr. Ampil under
Article 2180 of the Civil Code, but also directly liable for its
own negligence under Article 2176. In Fridena, the
Supreme Court of Arizona held:
x x x In recent years, however, the duty of care owed to
the patient by the hospital has expanded. The emerging
trend is to hold the hospital responsible where the hospital
has failed to monitor and review medical services being
provided within its walls. See Kahn Hospital Malpractice
Prevention, 27 De Paul . Rev. 23 (1977).
Among the cases indicative of the emerging trend is
Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335
(1972). In Purcell, the hospital argued that it could not be
held liable for the malpractice of a medical practitioner

45
because he was an independent contractor within the
hospital. The Court of Appeals pointed out that the
hospital had created a professional staff whose
competence and performance was to be monitored and
reviewed by the governing body of the hospital, and the
court held that a hospital would be negligent where it had
knowledge or reason to believe that a doctor using the
facilities was employing a method of treatment or care
which fell below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of
Appeals held that a hospital has certain inherent
responsibilities regarding the quality of medical care
furnished to patients within its walls and it must meet the
standards of responsibility commensurate with this
undertaking. Beeck v. Tucson General Hospital, 18 Ariz.
App. 165, 500 P. 2d 1153 (1972). This court has confirmed
the rulings of the Court of Appeals that a hospital has the
duty of supervising the competence of the doctors on its
staff. x x x.
x

In the amended complaint, the plaintiffs did plead that the


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

Anent the corollary issue of whether PSI is solidarily liable


with Dr. Ampil for damages, let it be emphasized that PSI,
apart from a general denial of its responsibility, failed to
adduce evidence showing that it exercised the diligence of
a good father of a family in the accreditation and
supervision of the latter. In neglecting to offer such proof,
PSI failed to discharge its burden under the last paragraph
of Article 2180 cited earlier, and, therefore, must be
adjudged solidarily liable with Dr. Ampil. Moreover, as we
have discussed, PSI is also directly liable to the Aganas.
One final word. Once a physician undertakes the
treatment and care of a patient, the law imposes on him
certain obligations. In order to escape liability, he must
possess that reasonable degree of learning, skill and
experience required by his profession. At the same time,
he must apply reasonable care and diligence in the
exercise of his skill and the application of his knowledge,
and exert his best judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the
challenged Decision of the Court of Appeals in CA-G.R. CV
No. 42062 and CA-G.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
SO ORDERED.