[G.R. No. 118141. September 5, 1997] LEONILA GARCIA-RUEDA, petitioner, vs. WILFREDO L.

PASCASIO, RAUL R. ARNAU, ABELARDO L. APORTADERA JR., Honorable CONDRADO M. VASQUEZ,

all of the Office of the Ombudsman; JESUS F. GUERRERO, PORFIRIO MACARAEG, and GREGORIO A.
ARIZALA, all of the Office of the City Prosecutor, Manila, respondents.ROMERO, J.:

May this Court review the findings of the Office of the Ombudsman? The general rule has been enunciated
in Ocampo v. Ombudsman [1] which states:

Intheexerciseofitsinvestigativepower,thisCourthasconsistentlyheldthatcourtswillnotinterferewiththediscretion
ofthefiscalortheOmbudsmantodeterminethespecificityandadequacyoftheavermentsoftheoffensecharged.He
maydismissthecomplaintforthwithifhefindsittobeinsufficientinformandsubstanceorifheotherwisefindsno
groundtocontinuewiththeinquiry;orhemayproceedwiththeinvestigationofthecomplaintif,inhisview,itisindue
andproperform.

Does the instant case warrant a departure from the foregoing general rule? When a patient dies soon after
surgery under circumstances which indicate that the attending surgeon and anaesthesiologist may have been
guilty of negligence but upon their being charged, a series of nine prosecutors toss the responsibility of
conducting a preliminary investigation to each other with contradictory recommendations, ping-pong style,
perhaps the distraught widow is not to be blamed if she finally decides to accuse the City Prosecutors at the
end of the line for partiality under the Anti-Graft and Corrupt Practices Act. Nor may she be entirely faulted for
finally filing a petition before this Court against the Ombudsman for grave abuse of discretion in dismissing her
complaint against said City Prosecutors on the ground of lack of evidence. Much as we sympathize with the
bereaved widow, however, this Court is of the opinion that the general rule still finds application in instant
case. In other words, the respondent Ombudsman did not commit grave abuse of discretion in deciding against
filing the necessary information against public respondents of the Office of the City Prosecutor.
The following facts are borne out by the records.
Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical operation at the UST
hospital for the removal of a stone blocking his ureter. He was attended by Dr. Domingo Antonio, Jr. who was
the surgeon, while Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. Six hours after the surgery,
however, Florencio died of complications of unknown cause, according to officials of the UST Hospital.[2]
Not satisfied with the findings of the hospital, petitioner requested the National Bureau of Investigation
(NBI) to conduct an autopsy on her husbands body. Consequently, the NBI ruled that Florencios death was
due to lack of care by the attending physician in administering anaesthesia. Pursuant to its findings, the NBI
recommended that Dr. Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged for Homicide through
Reckless Imprudence before the Office of the City Prosecutor.
During the preliminary investigation, what transpired was a confounding series of events which we shall try
to disentangle. The case was initially assigned to Prosecutor Antonio M. Israel, who had to inhibit himself
because he was related to the counsel of one of the doctors. As a result, the case was re-raffled to Prosecutor
Norberto G. Leono who was, however, disqualified on motion of the petitioner since he disregarded prevailing
laws and jurisprudence regarding preliminary investigation. The case was then referred to Prosecutor Ramon
O. Carisma, who issued a resolution recommending that ONLY Dr. Reyes be held criminally liable and that the
complaint against Dr. Antonio be dismissed.
The case took another perplexing turn when Assistant City Prosecutor Josefina Santos Sioson, in the
interest of justice and peace of mind of the parties, recommended that the case be re-raffled on the ground that
PROSECUTOR CARISMA WAS PARTIAL TO THE PETITIONER. Thus, the case was transferred to
Prosecutor Leoncia R. Dimagiba, where a volte face occurred again with the endorsement that the complaint
against Dr. Reyes be dismissed and instead, a corresponding information be filed against Dr.
Antonio. Petitioner filed a motion for reconsideration, questioning the findings of Prosecutor Dimagiba.
Pending the resolution of petitioners motion for reconsideration regarding Prosecutor Dimagibas
resolution, the investigative pingpong continued when the case was again assigned to another prosecutor,
Eudoxia T. Gualberto, who recommended that Dr. Reyes be included in the criminal information of Homicide
through Reckless Imprudence. While the recommendation of Prosecutor Gualberto was pending, the case was
transferred to Senior State Prosecutor Gregorio A. Arizala, who resolved to exonerate Dr. Reyes from any
wrongdoing, a resolution which was approved by both City Prosecutor Porfirio G. Macaraeg and City
Prosecutor Jesus F. Guerrero.
Aggrieved, petitioner filed graft charges specifically for violation of Section 3(e) of Republic Act No.
3019 [3] against Prosecutors Guerrero, Macaraeg, and Arizala for manifest partiality in favor of Dr. Reyes before
the Office of the Ombudsman. However, on July 11, 1994, the Ombudsman issued the assailed resolution
dismissing the complaint for lack of evidence.
In fine, petitioner assails the exercise of the discretionary power of the Ombudsman to review the
recommendations of the government prosecutors and to approve and disapprove the same. Petitioner faults
the Ombudsman for, allegedly in grave abuse of discretion, refusing to find that there exists probable cause to
hold public respondent City Prosecutors liable for violation of Section 3(e) of R.A. No. 3019.
 Preliminarily, the powers and functions of the Ombudsman have generally been categorized into the
following: investigatory powers, prosecutory power, public assistance function, authority to inquire and obtain
information, and function to adopt, institute and implement preventive measures. [4]
As protector of the people, the Office of the Ombudsman has the power, function and duty to act promptly
on complaints filed in any form or manner against public officials and to investigate any act or omission of any
public official when such act or omission appears to be illegal, unjust, improper or inefficient. [5]
While the Ombudsman has the full discretion to determine whether or not a criminal case should be filed,
this Court is not precluded from reviewing the Ombudsmans action when there is an abuse of discretion, in
which case Rule 65 of the Rules of Court may exceptionally be invoked pursuant to Section I, Article VIII of the
1987 Constitution. [6]
In this regard, grave abuse of discretion has been defined as where a power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility so patent and gross as to amount to evasion of
positive duty or virtual refusal to perform a duty enjoined by, or in contemplation of law. [7]
From a procedural standpoint, it is certainly odd why the successive transfers from one prosecutor to
another were not sufficiently explained in the Resolution of the Ombudsman. Being the proper investigating
authority with respect to misfeasance, non-feasance and malfeasance of public officials, the Ombudsman
should have been more vigilant and assiduous in determining the reasons behind the buckpassing to ensure
that no irregularity took place.
Whether such transfers were due to any outside pressure or ulterior motive is a matter of evidence. One
would have expected the Ombudsman, however, to inquire into what could hardly qualify as standard operating
procedure, given the surrounding circumstances of the case.
While it is true that a preliminary investigation is essentially inquisitorial, and is often the only means to
discover who may be charged with a crime, its function is merely to determine the existence of probable
cause. [8] Probable cause has been defined as the existence of such fact and circumstances as would excite
the belief, in a reasonable mind, acting on the facts within the knowledge of the prosecution, that the person
charged was guilty of the crime for which he was prosecuted.[9]
Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such a
state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe,
or entertain an honest or strong suspicion, that a thing is so. The term does not mean actual and
positive cause nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus,
a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission complained of constitutes the offense
charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.[10]
In the instant case, no less than the NBI pronounced after conducting an autopsy that there was indeed
negligence on the part of the attending physicians in administering the anaesthesia. [11] The fact of want of
competence or diligence is evidentiary in nature, the veracity of which can best be passed upon after a full-
blown trial for it is virtually impossible to ascertain the merits of a medical negligence case without extensive
investigation, research, evaluation and consultations with medical experts. Clearly, the City Prosecutors are not
in a competent position to pass judgment on such a technical matter, especially when there are conflicting
evidence and findings. The bases of a partys accusation and defenses are better ventilated at the trial proper
than at the preliminary investigation.
A word on medical malpractice or negligence cases.

Initssimplestterms,thetypeoflawsuitwhichhasbeencalledmedicalmalpracticeor,moreappropriately,medical
negligence,isthattypeofclaimwhichavictimhasavailabletohimorhertoredressawrongcommittedbyamedical
professionalwhichhascausedbodilyharm.

Inordertosuccessfullypursuesuchaclaim,apatientmustprovethatahealthcareprovider,inmostcasesaphysician,
eitherfailedtodosomethingwhichareasonablyprudenthealthcareproviderwouldhavedone,orthatheorshedid
somethingthatareasonablyprudentproviderwouldnothavedone;andthatthatfailureoractioncausedinjurytothe
patient.[12]

Hence, there are four elements involved in medical negligence cases: duty, breach, injury and proximate
causation.
Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-patient
relationship was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that,
having the needed training and skill possessed by physicians and surgeons practicing in the same
field, they will employ such training, care and skill in the treatment of their patients. [13] They have a duty
to use at least the same level of care that any other reasonably competent doctor would use to treat a
condition under the same circumstances. The breach of these professional duties of skill and care, or
their improper performance, by a physician surgeon whereby the patient is injured in body or in health,
constitutes actionable malpractice.[14] Consequently, in the event that any injury results to the patient
from want of due care or skill during the operation, the surgeons may be held answerable in damages
for negligence.[15]
Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the necessity of
expert testimony and the availability of the charge of res ipsa loquitur to the plaintiff, have been applied in
actions against anaesthesiologists to hold the defendant liable for the death or injury of a patient under
excessive or improper anaesthesia.[16] Essentially, it requires two-pronged evidence: evidence as to the
recognized standards of the medical community in the particular kind of case, and a showing that the physician
in question negligently departed from this standard in his treatment.[17]
Another element in medical negligence cases is causation which is divided into two inquiries: whether the
doctors actions in fact caused the harm to the patient and whether these were the proximate cause of the
patients injury.[18] Indeed here, a causal connection is discernible from the occurrence of the victims death after
the negligent act of the anaesthesiologist in administering the anesthesia, a fact which, if confirmed, should
warrant the filing of the appropriate criminal case. To be sure, the allegation of negligence is not entirely
baseless. Moreover, the NBI deduced that the attending surgeons did not conduct the necessary interview of
the patient prior to the operation. It appears that the cause of the death of the victim could have been averted
had the proper drug been applied to cope with the symptoms of malignant hyperthermia. Also, we cannot
ignore the fact that an antidote was readily available to counteract whatever deleterious effect the anaesthesia
might produce. [19] Why these precautionary measures were disregarded must be sufficiently explained.
The City Prosecutors were charged with violating Section 3(e) of the Anti-Graft and Corrupt Practices Act
which requires the following facts:

1.Theaccusedisapublicofficerdischargingadministrativeorofficialfunctionsorprivatepersonschargedinconspiracy
withthem;

2.Thepublicofficercommittedtheprohibitedactduringtheperformanceofhisofficialdutyorinrelationtohispublic
position;

3.Thepublicofficeractedwithmanifestpartiality,evidentbadfaithorgross,inexcusablenegligence;and

4.HisactioncausedundueinjurytotheGovernmentoranyprivateparty,orgaveanypartyanyunwarrantedbenefit,
advantageorpreferencetosuchparties.[20]

Why did the complainant, petitioner in instant case, elect to charge respondents under the above law?
While a party who feels himself aggrieved is at liberty to choose the appropriate weapon from the armory,
it is with no little surprise that this Court views the choice made by the complainant widow.
To our mind, the better and more logical remedy under the circumstances would have been to appeal the
resolution of the City Prosecutors dismissing the criminal complaint to the Secretary of Justice under the
Department of Justices Order No. 223, [21] otherwise known as the 1993 Revised Rules on Appeals From
Resolutions In Preliminary Investigations/Reinvestigations, as amended by Department Order No. 359, Section
1 of which provides:

Section1.WhatMayBeAppealed.OnlyresolutionsoftheChiefStateProsecutor/RegionalStateProsecutor/Provincial
orCityProsecutordismissingacriminalcomplaintmaybethesubjectofanappealtotheSecretaryofJusticeexceptas
otherwiseprovidedinSection4hereof.

What action may the Secretary of Justice take on the appeal? Section 9 of Order No. 223 states: The
Secretary of Justice may reverse, affirm or modify the appealed resolution. On the other hand, He may motu
proprio or on motion of the appellee, dismiss outright the appeal on specified grounds. [22]
In exercising his discretion under the circumstances, the Ombudsman acted within his power and authority
in dismissing the complaint against the Prosecutors and this Court will not interfere with the same.
WHEREFORE, in view of the foregoing, the instant petition is DISMISSED, without prejudice to the filing of
an appeal by the petitioner with the Secretary of Justice assailing the dismissal of her criminal complaint by the
respondent City Prosecutors. No costs.
SO ORDERED.
Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ., concur.

G.R. No. 88265 December 21, 1989

SANTIAGO A. DEL ROSARIO, GEORGE G. GACULA, EDGARDO G. SANTOS, ALBANO S. SIBAL,

ALBERTO C. REYES, NONITO P. ARROYO, EMMANUEL F. TERENCIO, DOMINGO S. DE LEON,
MODESTO O. LLAMAS, FARIDA U. ALONTO, ZENAIDA A. FLOIRENDO, ISABEL A. MEJIA, LUZ P.
MABANAG, RAMON H. RABAGO, JR., SAMUEL D. TROCIO and OSCAR M. BRION, petitioners,
vs.
HON. ALFREDO R. BENGZON, in his capacity as Secretary of the Department of Health, respondent.

Facundo T. Bautista for petitioners.

GRIO-AQUINO, J.:
This is a class suit filed by officers of the Philippine Medical Association, the national organization of medical
doctors in the Philippines, on behalf of their professional brethren who are of kindred persuasion, wherein this
Court is asked to declare as unconstitutional, hence, null and void, some provisions of the Generics Act of
1988 (Rep. Act No. 6675), and of the implementing Administrative Order No. 62 issued pursuant thereto,
specifically:

(a) Section 6, Pars. (a) and (b) of the Generics Act which provide:

a) All government health agencies and their personnel as well as other government agencies
shall use generic terminology or generic names in all transactions related to purchasing,
prescribing, dispensing and administering of drugs and medicines.

b) All medical, dental and veterinary practitioners, including private practitioners, shall write
prescriptions using the generic name. The brand name may be included if so desired. (p. 6,
Rollo.)

(b) Section 12, Pars. (b), (c) and (d) of the same law which provide:

b) For the second conviction, the penalty of file in the amount of not less than two thousand
pesos (P2,000.00) but not exceeding five thousand pesos (P5,000.00) at the discretion of the
court.

c) For the third conviction, the penalty of fine in the amount of not less than five thousand pesos
(P5,000.00) but not exceeding ten thousand pesos (P10,000.00) and suspension of his license
to practice his profession for thirty (30) days at the discretion of the court.

d) For the fourth and subsequent convictions, the penalty of fine of not less than ten thousand
pesos (P10,000.00) and suspension of his license to practice his profession for one year or
longer at the discretion of the court. (pp. 6-7, Rollo.) and

(c) Sections 4 and 7, Phase 3 of Administrative Order No. 62, Series of 1989 dated March 9, 1989, of the
respondent Secretary of Health, which read as follows:

Section 4. Violative Erroneous, and Impossible Prescriptions.

4.1. Violative Prescriptions:

4.1.1 Where the generic name is not written;

4.1.2 Where the generic name is not legible and a brand name which is legible is written;

4.1.3 Where the brand name is indicated and instructions added, such as the phase 'No
Substitution' which tend to obstruct, hinder or prevent proper generic dispensing.

4.2 What to do with Violative Prescriptions.

Violative prescriptions shall not be filled. They shall be kept and reported by the pharmacist of
the drug outlet or any other interested party to the nearest DOH Officer for appropriate action.
The pharmacist shall advise the prescriber of the problem and/or instruct the customer to get
the proper prescription.

4.3 Erroneous Prescriptions:

4.3.1 When the brand name precedes the generic name.

4.3.2 Where the generic name is the one in parenthesis.

4.3.3 Where the brand name in (sic) not in parenthesis.

4.3.4 Where more than one drug product is prescribed in one prescription form.

4.4 What to do with erroneous prescriptions.

Erroneous prescriptions shall be filled. Such prescriptions shall also be kept and reported by the
pharmacist of the drug outlet or any other interested party to the nearest DOH Office for
appropriate action.

xxx xxx xxx

Section 7. Timetable of Implementation.

 In order to give all affected parties adequate time for learning and adjustment, the
implementation of these Rules and Regulations shall be in three phases, as follows:

Phase 1 Education Drive ...

Phase 2 Monitoring of Compliance

xxx xxx xxx

Phase 3 Implementation.

Beginning September 1, 1989 the DOH and the other relevant agencies of government shall
monitor compliance with these Rules and Regulations and all violations shall be subject to the
appropriate sanctions and penalties provided for under these Rules and Regulations and the
Generics Act of 1988. (pp. 7-9, Rollo.)

On March 15, 1989, the full text of Republic Act No. 6675 was published in two newspapers of general
circulation in the Philippines. The law took effect on March 30, 1989, fifteen (15) days after its publication, as
provided in Section 15 thereof.

Section 7, Phase 3 of Administrative Order No. 62 was amended by Administrative Order No. 76 dated August
28, 1989 by postponing to January 1, 1990 the effectivity of the sanctions and penalties for violations of the
law, provided in Sections 6 and 12 of the Generics Act and Sections 4 and 7 of the Administrative Order.

The petitioners allege that "as of this date, there is no breach or violation yet" of the law (p. 9, Rollo), which
took effect on March 30, 1989. However, as the penal provisions will only take effect on January 1, 1990, it
would have been more accurate to state that "as of this date, no breaches or violations of the law have been
punished yet" (p. 9, Rollo).

The petition is captioned as an action for declaratory relief, over which this Court does not exercise jurisdiction.
Nevertheless, in view of the public interest involved, we decided to treat it as a petition for prohibition instead.

The petitioner's main argument against paragraphs (a) and (b), Section 6 of the law, is the alleged unequal
treatment of government physicians, dentists, and veterinarians, on one hand, and those in private practice on
the other hand, in the manner of prescribing generic drugs, for, while the former are allegedly required to use
only generic terminology in their prescriptions, the latter may write the brand name of the drug in parenthesis
below the generic name. The favored treatment of private doctors, dentists and veterinarians under the law is
allegedly a specie of invalid class legislation.

There is no merit in that argument for it proceeds from a misreading and misinterpretation of the letter and
intent of paragraphs (a) and (b), Section 6 of the Generics Act. Indeed, as explained by the public respondent:

... while paragraph (a) enumerates the government transactions ('Purchasing, prescribing,
dispensing and administering of drugs and medicines') where the sole use of generic
terminology has been required, the 'prescription' of drugs is further governed by paragraph
(b). And the use of the word 'all' in the latter provision emphasizes the absence of any
distinction between government and private physicians. In other words, in prescribing drugs,
physicians, whether in government service or in private practice, are both governed by exactly
the same rules, and thus, are both authorized to include the brand name in their respective
prescriptions. (p. 44, Rollo.)

Furthermore, it may be observed that while paragraph (a) refers to "all government health agencies, and their
personnel as well as other government agencies" (not necessarily physicians, dentists and veterinarians),
paragraph (b) refers to "all medical, dental and veterinary practitioners, including private practitioners."

Petitioners concede that the requirement for doctors, dentists, and veterinarians to use the generic terminology
in writing their prescriptions, followed by the brand name in parenthesis, is "well and good" (p. 12, Rollo).
However, they complain that under paragraph (d) of the law which reads:

(d) Drug outlets, including drugstores, hospital and non-hospital pharmacies and non-traditional
outlets such as supermarkets and stores, shall inform any buyer about any and all other drug
products having the same generic name, together with their corresponding prices so that the
buyer may adequately exercise his option. Within one (1) year after approval of this Act, the
drug outlets referred to herein, shall post in conspicuous places in their establishments, a list of
drug products with the same generic name and their corresponding prices. (Annex A, p. 23,
Rollo.)

the salesgirl at the drugstore counter is authorized to "substitute the prescribed medicine with another
medicine belonging to the same generic group." Since doctors are not allowed to instruct the druggist not to
substitute the prescription, or to "Dispense only as Prescribed" (per Sec. 4, Adm. Order No. 62), the petitioners
argue that "the act of prescribing the correct medicine for the patient becomes the act of the salesgirl at the
drugstore counter, no longer the act of the physician, dentist, or veterinarian" (p. 12, Rollo).
Here again, the petitioners have distorted the clear provisions of the law and the implementing administrative
order. For it is plain to see that neither paragraph (d) of Section 6 of the Generics Act, nor Section 4 of
Administrative Order No. 62, gives the salesgirl and/or druggist the discretion to substitute the doctor's
prescription.

On the contrary, Section 4, par. 4.1, of Administrative Order No. 62 directs the pharmacist not to fill "violative
prescriptions" (where the generic name is not written, or illegibly written, and the prescription of a brand name
is accompanied by the doctor's instruction not to substitute it), as well as "impossible prescriptions" (par. 4.5).
Even a doctor's "erroneous" prescriptions "shall be filled," not substituted (par. 4.3, Adm. Order No. 62). And,
Sections 3 and 5 of Adm. Order No. 63 enjoin the drug outlets not (to) favor or suggest" or "impose" a
particular brand or product on the customer. The administrative older provides:

In order to ensure the informed choice and use of drugs by the patient/ buyer, the drug outlet is
required to:

3.1.1 Inform the patient/buyer of all available drug products generically equivalent
to the one prescribed with their corresponding prices. In so doing, the drug outlet
shall not favor or suggest any particular product so that the patient/buyer may
fully and adequately exercise his option to choose (Sec. 3, Adm. Order No. 63 s.
1989).

xxx xxx xxx

The following acts or omissions are considered violations of these rules and regulations:

5.1 Imposing a particular brand or product on the buyer. ... (pp. 46-47, Rollo.)

The salesgirl at the drugstore counter, merely informs the customer, but does not determine (for she is
incompetent to do so) all the other drug products or brands that have the same generic name, and their
corresponding prices. That information she may obtain from the list of drug products determined by the Bureau
of Food and Drugs to have the same generic name, or which are the chemical, biological, and therapeutic
equivalent of the generic drug. All drugstores or drug outlets are required by the law to post such list in a
conspicuous place in their premises for the information of the customers, for the choice of whether to buy the
expensive brand name drug, or the less expensive generic, should be exercised by the customer alone.

The purpose of the Generics Act is to carry out the policy of the State:

To promote, encourage and require the use of generic terminology in the importation,
manufacture, distribution, marketing, advertising and promotion, prescription and dispensing of
drugs;

To ensure the adequate supply of drugs with generic names at the lowest possible cost and
endeavor to make them available for free to indigent patients;

To encourage the extensive use of drugs with generic names through a rational system of
procurement and distribution;

To emphasize the scientific basis for the use of drugs, in order that health professionals may
become more aware and cognizant of their therapeutic effectiveness; and

To promote drug safety by minimizing duplication in medications and/or use of drugs with
potentially adverse drug interactions. (pp. 3839, Rollo.)

or, as stated by the public respondent, "to promote and require the use of generic drug products that are
therapeutically equivalent to their brand-name counter-parts" (p. 39, Rollo) for "the therapeutic effect of a drug
does not depend on its 'brand' but on the 'active ingredients' which it contains." The medicine that cures is the
"active ingredient" of the drug, and not the brand name by which it has been baptized by the manufacturer.

The public respondent points out that the institution of generics in the Philippines will compel physicians to
prescribe drugs based on their therapeutic or "active ingredient," instead of their well-known brand names.
Multiple medications which may produce potentially adverse, even lethal, chemical reactions in the patient will
thereby be avoided. Patients with limited means will be able to buy generic drugs that cost less but possess
the same active ingredients, dosage form, and strength as brand names, many of which are priced beyond the
reach of the common tao because the high costs of advertising, packaging, royalties, and other inputs of
production determine their pricing for the market.

The Court has been unable to find any constitutional infirmity in the Generics Act. It, on the contrary,
implements the constitutional mandate for the State "to protect and promote the right to health of the people"
and "to make essential goods, health and other social services available to all the people at affordable
cost" (Section 15, Art. II and Section 11, Art. XIII, 1987 Constitution).
The prohibition against the use by doctors of "no substitution" and/or words of similar import in their
prescription, is a valid regulation to prevent the circumvention of the law. It secures to the patient the right to
choose between the brand name and its generic equivalent since his doctor is allowed to write both the generic
and the brand name in his prescription form. If a doctor is allowed to prescribe a brand-name drug with "no
substitution," the patient's option to buy a lower-priced, but equally effective, generic equivalent would thereby
be curtailed. The law aims to benefit the impoverished (and often sickly) majority of the population in a still
developing country like ours, not the affluent and generally healthy minority.

There is no merit in the petitioners' theory that the Generics Act impairs the obligation of contract between a
physician and his patient, for no contract ever results from a consultation between patient and physician. A
doctor may take in or refuse a patient, just as the patient may take or refuse the doctor's advice or prescription.
As aptly observed by the public respondent, no doctor has ever filed an action for breach of contract against a
patient who refused to take prescribed medication, undergo surgery, or follow a recommended course
treatment by his doctor ( p. 53, Rollo). In any event, no private contract between doctor and patient may be
allowed to override the power of the State to enact laws that are reasonably necessary to secure the health,
safety, good order, comfort, or general welfare of the community. This power can neither be abdicated nor
bargained away. All contractual and property rights are held subject to its fair exercise (Anglo-Fil Trading
Corporation vs. Lazaro, 124 SCRA 495.)

Petitioners have also assailed Section 12, paragraphs b, c and d, of the Generics Act prescribing graduated
penalties (ranging from a reprimand to a fine of not less that P10,000 and the suspension of the physician's
license to practice his profession for one [1]) year or longer, at the discretion of the court) for violations of its
provisions. Petitioners' allegation that these penalties violate the constitutional guarantee against excessive
fines and cruel and degrading punishment, has no merit. Penal sanctions are indispensable if the law is to be
obeyed. They are the "teeth" of the law. Without them, the law would be toothless, not worth the paper it is
printed on, for physicians, dentists and veterinarians may freely ignore its prescriptions and prohibitions. The
penalty of suspension or cancellation of the physician's license is neither cruel, inhuman, or degrading. It is no
different from the penalty of suspension or disbarment that this Court inflicts on lawyers and judges who
misbehave or violate the laws and the Codes of Professional and Judicial Conduct.

We hold that the Generics Act and the implementing administrative orders of the Secretary of Health are
constitutional. In light of its beneficial provisions, we cannot heed the petitioners' plea to kill it aborning, i.e.,
before it has had a chance to prove its value to our people as envisioned by its makers.

WHEREFORE, the petition is dismissed for lack of merit. Costs against the petitioners.

SO ORDERED.

Fernan, C.J., Narvasa, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Medialdea and
Regalado, JJ., concur.

Melencio-Herrera, J., concurs in the result.

Separate Opinions

Gutierrez, Jr., J., concurring:

I concur in the result only because of the failure to overcome the presumption of constitutionality and not
because the respondent's arguments are valid.

Separate Opinions

Gutierrez, Jr., J., concurring:

I concur in the result only because of the failure to overcome the presumption of constitutionality and not
because the respondent's arguments are valid.

LEANDRO CARILLO, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.
Balane, Tamase, Alampay Law Office for petitioner.

The Solicitor General for the people.

FELICIANO, J.:

Petitioner Dr. Leandro Carillo, an anesthetist, seeks review of the Decision of the Court of Appeals dated 28
November 1988, which affirmed his conviction by the Regional Trial Court of the crime of simple negligence
resulting in homicide, for the death of his thirteen (13) year old patient
Catherine Acosta. The trial court had sentenced him to suffer the penalty of arresto mayor in its medium period
(four [4] months' imprisonment), as well as to pay the heirs of his patient an indemnity of P30,000.00 for her
death, P10,000.00 as reimbursement for actual expenses incurred, P50,000.00 as moral damages and to pay
the costs of the suit. 1

The information filed against petitioner and his co-accused, the surgeon Dr. Emilio Madrid, alleged the
following:

That on or about the 31st of May 1981, in the municipality of Paraaque, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually helping and aiding with one another, without
taking the necessary care and precaution to avoid injury to person, did then and there willfully,
unlawfully and feloniously operate, in a reckless, careless and imprudent manner and neglected
to exercise their respective medical knowhow and tasks and/or departed from the recognized
standard in their treatment, diagnosis of the condition, and operation of the patient, one
Catherine Acosta, 13 years old, which negligence caused the death of the said Catherine
Acosta. 2

Petitioner and Dr. Emilio Madrid entered pleas of not guilty at arraignment and the case proceeded to trail with
Judge Job B. Madayag presiding. 3

The prosecution presented as its principal evidence the testimony of four (4) witnesses, namely: 1) Yolanda
Acosta, Catherine's mother, who was able to observe the conduct of the accused outside the operating theater
before, during and after the appendectomy procedure carried out on her daughter; 4 2) Domingo Acosta,
Catherine's father, who corroborated some parts of his wife's
testimony; 5 3) Dr. Horacio Buendia, an expert witness who described before the trial court the relationship
between a surgeon and an anesthetist in the course of a surgical operation, as well as define the likelihood of
cardiac arrest as a post operative complication; 6 and 4) Dr. Nieto Salvador, an expert witness who analyzed
and explained the significance of the results of the pathological study and autopsy conducted on Catherine's
body by one Dr. Alberto Reyes. 7

After the prosecution had rested its case, the defense was granted leave to file a demurrer to the
evidence. 8 After failing to file the demurrer within the reglementary period, Judge Manuel Yuzon, who had in
the meantime taken over as presiding judge of the sala where this case was pending, denied the defense
motion for extension of time to file demurrer and declared the case submitted for decision. 9

On 19 September 1985, the trial court promulgated its decision convicting both the accused of the crime
charged. 10

On appeal, the Court of Appeals affirmed the judgment of conviction, and specified that the civil liability of the
two (2) accused was solidary in nature. 11

Petitioner Dr. Carillo alone filed the present Petition for Review with the Court, seeking reversal of his
conviction, or in the alternative, the grant of a new trial. Dr. Madrid did not try to appeal further the Court of
Appeals Decision. Accordingly, the judgment of conviction became final insofar as the accused surgeon Dr.
Madrid is concerned.

The facts of the case as established by the Court of Appeals are as follows:

The deceased, Catherine Acosta, a 13 year old girl, daughter of spouses Domingo and Yolanda
Acosta, complained to her father at about 10:30 o'clock in the morning of May 31, 1981 of pains
in the lower part of her abdomen. Catherine was then brought to Dr. Elva Pea. Dra. Pea
called for Dr. Emilio Madrid and the latter examined Catherine Acosta. According to Dr. Madrid,
his findings might be appendicitis. Then Dr. Pea told Catherine's parents to bring the child to
the hospital in Baclaran so that the child will be observed.

At the Baclaran General Hospital, a nurse took blood sample form the child. The findings
became known at around 3:00 o'clock in the afternoon and the child was scheduled for
operation at 5:00 o'clock in the afternoon. The operation took place at 5:45 p.m. because Dr.
Madrid arrived only at that time.
 When brought inside the operating room, the child was feeling very well and they did not subject
the child to ECG (electrocardiogram) and
X-ray.

The appellant Dr. Emilio Madrid, a surgeon, operated on Catherine. He was assisted by
appellant, Dr. Leandro Carillo, an anesthesiologists.

During the operation, while Yolanda Acosta, Catherine's mother, was staying outside the
operating room, she "noticed something very unfamiliar." The three nurses who assisted in the
operation were going in and out of the operating room, they were not carrying anything, but in
going out of the operating room, they were already holding something.

Yolanda asked one of the nurses if she could enter the operating room but she was refused.

At around 6:30 p.m., Dr. Emilio Madrid went outside the operating room and Yolanda Acosta
was allowed to enter the first door.

The appendicitis (sic) was shown to them by Dr. Madrid, because, according to Dr. Madrid, they
might be wondering because he was going to install drainage near the operating (sic) portion of
the child.

When asked, the doctor told them the child was already out of danger but the operation was not
yet finished.

It has also been established that the deceased was not weighed before the administration of
anesthesia on her.

The operation was finished at 7:00 o'clock in the evening and when the child was brought out
from the operating room, she was observed to be shivering (nanginginig); her heart beat was
not normal; she was asleep and did not wake up; she was pale; and as if she had difficulty in
breathing and Dr. Emilio Madrid suggested that she placed under oxygen tank; that oxygen was
administered to the child when she was already in the room.

Witness Yolanda Acosta further testified that shortly before the child was transferred from the
operating room to her room, she (witness) was requested by the anesthesiologist to go home
and get a blanket.
A portion of Yolanda Acosta's testimony on what happened when she returned to the hospital
are reproduced hereunder as follows:

Q What happened afterward?

A When I arrived in the hospital, my child was being transferred to her bed.

Q What else happened?

Q I noticed that the heartbeat of my daughter was not normal. And I noticed that her hospital gown is rising up
and down.

Q What transpired after that?

A I asked Dr. Madrid why it was like that, that the heartbeat of my daughter is not normal.

Q And did the doctor make any reply?

A The doctor said because of the lesion of the child.

Q What else happened?

A After they have revived the heartbeat of the child, Dr. Carillo and Dr. Madrid left.

Q Now do you remember what time was it when Dr. Carillo stepped out?

A Only a minute after they have transferred the child to the bed.

Q What happened later on after Dr. Carillo and Dr. Madrid stepped out of the hospital?

A After 15 or 30 minutes has lapsed at about 7:15 or 7:30, the child had developed convulsion and stiffening
ofthe body.

Q When you observed convulsion and stiffening of the body, did you do anything?
A We requested the nurse who was attending to her to call for a doctor.

Q And the nurse who was attending to the patient called for a doctor?

A They called for Dra. Pea, their family physician.

Q What transpired afterwards?

A What Dra. Pea did was call for Dr. Madrid and the cardiologist.

Q Did this doctor arrived?

A Yes.

Q What transpired after the doctor arrived?

A They examined the child.

Q After they examined the child, did they inform you of the result of the examination?

A The cardiologist was the one whom informed us after he stepped out of the room when we followed him. The
doctor told us that she suffered severe infection which went up to her head.

Q After you were informed of the result of his examination, what transpired next?

A According to them, they will do their best for the child and that they will call for Dr. Carillo.

Q Did Dr. Carillo arrived?

A At around 10:30 in the evening.

Q Did Dr. Carillo do anything when he arrived on 31 May 1981?

A When he arrived, he noticed that there were two small bottles and big bottles of dextrose which were
hanging above the bed of the child. Then he said, "What is this? Christmas tree or what?" He told us that one
bottle of dextrose be removed. And the big one will remain.

Q What happened after that?

A After that we talked to Dr. Carillo and asked him how did this happen to the child.

Q What did Dr. Carillo reply (sic) to you?

A He answered "that is nothing, the child will regain consciousness and if the child will not regain
consciousness, I will resign (sic) as a doctor." 12

(Emphasis supplied)

When Catherine remained unconscious until noontime the next day, a neurologist examined her and she was
diagnosed as comatose. 13 Three (3) days later, Catherine died without regaining consciousness. 14

The Court of Appeals held that Catherine had suffered from an overdose of, or an adverse reaction to,
anesthesia, particularly the arbitrary administration of Nubain, a pain killer, without benefit of prior weighing of
the patient's body mass, which weight determines the dosage of Nubain which can safely be given to a
patient. 15 The Court of Appeals held that this condition triggered off a heart attack as a post-operative
complication, depriving Catherine's brain of oxygen, leading to the brain's hemorrhage. 16 The Court of Appeals
identified such cardiac arrest as the immediate cause of Catherine's death. 17

The Court of Appeals found criminal negligence on the part of petitioner Dr. Carillo and his co-accused Dr.
Madrid, holding that both had failed to observe the required standard of diligence in the examination of
Catherine prior to the actual administration of anesthesia; 18 that it was "a bit rash" on the part of the accused
Dr. Carillo "to have administered Nubain without first weighing Catherine"; 19 and that it was an act of
negligence on the part of both doctors when, (a) they failed to monitor Catherine's heartbeat after the operation
and
(b) they left the hospital immediately after reviving Catherine's heartbeat, depriving the latter
of immediate and expert medical assistance when she suffered a heart attack approximately fifteen (15) to
thirty (30) minutes later. 20

Since neither petitioner nor his co-accused presented evidence in their own behalf, the present Petition seeks
to question the soundness of the factual conclusions drawn by the Court of Appeals, upon which the affirmance
of petitioner's conviction was based.
Close examination of the instant Petition for Review shows that petitioner's main arguments are two-fold: (1)
the Court of Appeals "completely brushed aside" and "misapprehended" Catherine's death certificate and
biopsy report which allegedly showed that the cause of death was a ruptured appendix, which led to blood
poisoning, 21 rather than faulty anesthetic treatment;
and (2) there was no direct evidence of record showing that Nubain was administered to Catherine
either during the appendectomy procedure or after such operation. 22

Two (2) related issues are thus posed for the Court's consideration. The first is whether the Court of Appeals so
drastically "misapprehended" the relevant, operative facts in this case as to compel this Court to examine and
resolve question(s) of fact which would have a decisive significance for the disposition of the case. The rule is
too firmly settled to require much documentation that only questions of law may be raised before this Court in a
petition for review on certiorari, subject to certain well-known exceptions. 23 After careful scrutiny of petitioner's
contentions before us and the record of this case, we do not believe that petitioner has shown
"misapprehension of facts" on the part of the Court of Appeals which would require this Court to overturn the
judgment reached by the former.

The second issue is whether or not the findings of fact of the Court of Appeals adequately support the
conclusion that petitioner Dr. Carillo was, along with Dr. Madrid, guilty of simple negligence which resulted in
homicide. Our review of the record leads us to an affirmative answer.

Petitioner contends that the Court of Appeals seriously erred in finding that an overdose of, or an allergic
reaction to, the anesthetic drug Nubain had led to the death of Catherine Acosta and that the true cause of
Catherine's death was that set out in the death certificate of Catherine: "Septicemia (or blood poisoning) due to
perforated appendix with peritonitis." 24 The concept of causation in general, and the cause of death in human
beings in particular, are complex and difficult notions. What is fairly clear is that death, understood as a
physical condition involving cessation of vital signs in the brain and heart, is preceded by a series of
physiological events, any one of which events can, with equal cogency, be described as a "cause of death".
The Court of Appeals found that an overdose of, or an adverse reaction to, Nubain, an anesthetic or
pain-killing drug the appropriate dose of which depends on the body weight or mass of the patient, had
generated or triggered off cardiac arrest, which in
turn led to lack of oxygen in Catherine's brain, which then brought about hemorrhaging in the brain. Vital
activity in the brain thereupon ceased. The medical evidence presented at the trial was quite consistent with
the findings of the Court of Appeals which concluded that cardiac arrest was the cause of Catherine's death. 25

For his part, petitioner insists that cardiac arrest is not the only cause of oxygen-starvation of the brain, that
septicemia with peritonitis or severe infection which had "gone up to the head" of Catherine was an equally
efficient cause of deprivation of the brain of oxygen and hence of brain hemorrhage. The medical testimony of
the expert witnesses for the prosecution on which petitioner relies is also consistent with petitioner's theory that
septicemia with peritonitis was, or at least could have been, the cause of Catherine's death. 26

Indeed, it appears to the Court that there was no medical proof submitted to the trial court to show that one or
the other "cause" was necessarily an exclusive cause of death in the case of Catherine Acosta; that an
overdose or allergic reaction to Nubain could not have combined with septicemia and peritonitis in bringing
about Catherine's death.

What is of critical importance for present purposes is not so much the identification of the "true cause" or "real
cause" of Catherine's death but rather the set of circumstances which both the trial court and the Court of
Appeals found constituted simple (as distinguished from reckless) negligence on the part of the two accused
Dr. Madrid and Dr. Carillo leading to the death of Catherine.

When the patient was wheeled out of the operating room after completion of surgery, she manifested signs of
medical instability (i.e., shivering, paleness, irregular breathing and weak heart beat). 27 She was not brought to
a properly equipped recovery room, or intensive care until which the hospital lacked. 28 Such facilities and their
professional staffs, of which an anesthetist is commonly a part, are essential for providing close observation
and patient care while a post-surgery patient is recovering from the effects of anesthesia and while the normal
protective mechanisms are still dull or obtunded. 29 Instead, the patient was merely brought to her assigned
hospital bed and was provided oxygen on the instructions of Dr. Madrid then "revived" her heartbeat. 30 Both
doctors then left their patient and the hospital; approximately fifteen minutes later, she suffered convulsions
and cardiac arrest. 31

The conduct of Dr. Madrid and of the petitioner constituted inadequate care of their patient in view of her
vulnerable condition. Both doctors failed to appreciate the serious condition of their patient whose adverse
physical signs were quite manifest right after surgery. And after reviving her heartbeat, both doctors failed to
monitor their patient closely or extend further medical care to her; such conduct was especially necessary in
view of the inadequate,
post-operative facilities of the hospital. We do not, of course, seek to hold petitioner responsible for the
inadequate facilities of the Baclaran General Hospital. We consider, however, that the inadequate nature of
those facilities did impose a somewhat higher standard of professional diligence upon the accused surgeon
and anesthetist personally than would have been called for in a modern fully-equipped hospital.

While Dr. Madrid and a cardiologist were containing the patient's convulsions, and after the latter had
diagnosed that infection had reached the patient's head, these two (2) apparently after consultation, decided to
call-in the petitioner. 32 There is here a strong implication that the patient's post-operative condition must have
been considered by the two (2) doctors as in some way related to the anesthetic treatment she had received
from the petitioner either during or after the surgical procedure.

Once summoned, petitioner anesthesiologist could not be readily found. When he finally appeared at 10:30 in
the evening, he was evidently in a bad temper, commenting critically on the dextrose bottles before ordering
their removal. 33 This circumstance indicated he was not disposed to attend to this unexpected call, in violation
of the canons of his profession that as a physician, he should serve the interest of his patient "with the greatest
of solicitude, giving them always his best talent and skill." 34 Indeed, when petitioner finally saw his patient, he
offered the unprofessional bluster to the parents of Catherine that he would resign if the patient will not regain
consciousness. 35 The canons of medical ethics require a physician to "attend to his patients faithfully and
conscientiously." He should secure for them all possible benefits that may depend upon his professional skill
and care. As the sole tribunal to adjudge the physician's failure to fulfill his obligation to his patient is, in most
cases, his own conscience, violation of this rule on his part is "discreditable and inexcusable". 36

Nubain was an experimental drug for anesthesia and post-operative pain and the medical literature required
that a patient be weighed first before it is administered and warned that there was no (or inadequate)
experience relating to the administration thereof to a patient less that eighteen (18) ears of age. 37 Yet, the
doctor's order sheet (Exhibit "C") did not contain this precaution but instead directed a reader to apply the drug
only when warranted by the circumstances. 38 During the offer of Exhibit "C" by the prosecution, Dr. Madrid
admitted that this prescription, which was unsigned, was made in his own handwriting. 39 It must be observed
that the instruction was open-ended in that some other individual still had to determine if circumstances existed
warranting administration of the drug to the patient. The document thus indicated the abdication of medical
responsibility on an extremely critical matter. Since petitioner anesthesiologist
entered subsequent prescriptions or orders in the same order sheet, which were signed by him, at 7:15
p.m. on the same evening of 31 May 1981, he was in a position to appreciate the dangers inherent in the prior
prescription, which was within his (petitioner's) area of specialization, and to order measures to correct this
anomaly and protect his patient's well-being. So far as the condition of the evidence shows, he failed to do so.
In sum, only a low level of diligence was exhibited by petitioner and Dr. Madrid in the prescription of medication
for their patient.

As noted earlier, petitioner relied heavily in this proceeding on the testimony on cross-examination of the expert
witnesses for the prosecution to show that blood poisoning resulting from a ruptured appendix could also be
responsible for the patient's death.

No suggestion has been made that the rupture of the patient's occurred prior to surgery. After her blood
sample was examined, the patient was merely diagnosed as a case of appendicitis, without further
elaboration. 40 No intensive preoperative preparations, like the immediate administration of antibiotics, was
thereafter undertaken on the patient. This is a standard procedure for patients who are, after being diagnosed,
suspected of suffering from a perforated appendix and consequent peritonitis. 41 The mother also testified that
petitioner anesthesiologist merely injected a drug, "pre-anesthesia" intended to put the patient to sleep, into the
container of fluids being administered to her daughter intravenously at her room, prior to surgery. 42 We note
further that the surgeon Dr. Madrid was forty-five minutes late in arriving at the operating
theater. 43 Considering that delay in treatment of appendicitis increases the morbidity of the patient, 44 Dr.
Madrid's conduct can only be explained by a pre-operative diagnosis on his part that the condition of
appendicitis was not yet attended by complications (i.e., a ruptured appendix and peritonitis).

The above circumstances do strongly indicate that the rupture of the patient's appendix occurred during the
appendectomy procedure, that is, at a time and place the operating room where the two (2) accused
were in full control of the situation and could determine decisively what needed to be done in respect of the
patient. 45 This circumstance must be considered in conjunction with other related circumstances which the
prosecution had proven: that the patient was ambulatory when brought to the operating room; 46 that she left
the operating room two (2) hours later in obviously serious condition; and that an appendectomy accompanied
or followed by sustained antibiotic treatment is a fairly common and generally accepted medical procedure for
dealing with ruptured appendix and peritonitis, 47 a fact of which judicial note may be taken.

As early as in People v. Vistan, 48 the Court defined simple negligence, penalized under what is now Article 365
of the Revised Penal Code, as "a mere lack of prevision in a situation where either the threatened harm is
not immediate or the danger not openly visible." Put in a slightly different way, the gravamen of the offense of
simple negligence is the failure to exercise the diligence necessitated or called for the situation which was not
immediately
life-destructive but which culminated, in the present case, in the death of a human being three (3) days later.
Such failure to exercise the necessary degree of care and diligence is a negative ingredient of the offense
charged. The rule in such cases is that while the prosecution must prove the negative ingredient of the offense,
it needs only to present the best evidence procurable under the circumstances, in order to shift the burden of
disproving or countering the proof of the negative ingredient to the accused, provided that such initial evidence
establishes at least on a prima facie basis the guilt of the accused. 49 This rule is particularly applicable where
the negative ingredient of the offense is of such a nature or character as, under the circumstances, to be
specially within the knowledge or control of the accused. 50 In the instant case, the Court is bound to observe
that the events which occurred during the surgical procedure (including whether or not Nubain had in fact been
administered as an anesthesia immediately before or during the surgery) were peculiarly within the knowledge
and control of Dr. Carillo and Dr. Madrid. It was, therefore, incumbent upon the two (2) accused to overturn
the prima facie case which the prosecution had established, by reciting the measures which they had actually
taken to prevent or to counter the obviously serious condition of Catherine Acosta which was evident right after
surgery. This they failed or refused to do so.

Still another circumstance of which account must be taken is that both petitioner and Dr. Madrid failed to inform
the parents of their minor patient of the nature of her illness, or to explain to them either during the surgery
(if feasible) or at any time after the surgery, the events which comprised the dramatic deterioration of her
condition immediately after surgery as compared with her pre-surgery condition. To give a truthful explanation
to the parents was a duty imposed upon them by the canons of their profession. 51 Petitioner should have
explained to Catherine's parents the actual circumstances surrounding Catherine's death, how, in other words,
a simple appendectomy procedure upon an ambulatory patient could have led to such fatal consequences.

By way of resume, in the case at bar, we consider that the chain of circumstances above noted, namely: (1) the
failure of petitioner and Dr. Madrid to appreciate the serious post-surgery condition of their patient and to
monitor her condition and provide close patient care to her; (2) the summons of petitioner by Dr. Madrid and
the cardiologist after the patient's heart attack on the very evening that the surgery was completed; (3) the low
level of care and diligence exhibited by petitioner in failing to correct Dr. Madrid's prescription of Nubain for
post-operative pain; (4) the extraordinary failure or refusal of petitioner and Dr. Madrid to inform the parents of
Catherine Acosta of her true condition after surgery, in disregard of the requirements of the Code of Medical
Ethics; and (5) the failure of petitioner and Dr. Madrid to prove that they had in fact exercised the necessary
and appropriate degree of care and diligence to prevent the sudden decline in the condition of Catherine
Acosta and her death three (3) days later, leads the Court to the conclusion, with moral certainty, that petitioner
and Dr. Madrid were guilty of simple negligence resulting in homicide.

In addition to the main arguments raised by petitioner earlier, he also raised an ancillary, constitutional claim of
denial of due process. He contends that he was deprived of his right to have competent representation at trial,
and to have his cause adequately heard, because his counsel of record, Atty. Jose B. Puerto, was
"incompetent" and exhibited "gross negligence" by manifesting an intent to file a demurrer to the evidence, in
failing to present evidence in his behalf and in omitting to file a defense memorandum for the benefit of
Judge Yuzon, after the latter took over the case at the end of trial and before the Judge rendered his
decision. 52Petitioner submits he is entitled to a new trial. 53

These contentions do not persuade. An examination of the record indicates that Atty. Puerto represented
petitioner during trial with reasonable competence. Except for the two hearing sessions when witnesses
Domingo Acosta was cross-examined and recross-examined by Atty. Puerto, petitioner was present during all
the sessions when the other prosecution witnesses were presented and during which Atty. Puerto extensively
cross-examined them in behalf of petitioner and Dr. Madrid. This counsel elicited from the two (2) expert
witnesses for the prosecution testimony favorable to petitioner and which was relied upon by the latter in this
proceeding. 54 The record further indicates that if petitioner indeed entertained substantial doubts about the
capability of Atty. Puerto, he could have easily terminated the services of that counsel and retained a new one,
or sought from the trial court the appointment of counsel
de oficio, during the ample opportunity given from the time Atty. Puerto manifested his intent to file a demurrer
on 16 October 1985, to the submission of the case for decision on 25 June 1986 and before the promulgation
of judgment on 19 September 1986. 55 During all this time, petitioner could have obtained leave of court to
present evidence in his behalf in lieu of a demurrer, or to submit a memorandum for the defense. After
promulgation of the judgment of conviction, petitioner did not seek a new trial, but permitted Atty. Puerto to
obtain leave from the trial court to continue on bail during the pendency of the proceedings before the Court of
Appeals. 56 Indeed, petitioner replaced
Atty. Puerto as counsel only upon institution of the present petition. 57

Petitioner's constitutional objection is plainly an afterthought.

WHEREFORE, the Decision of the Court of Appeals dated 28 November 1988 is hereby AFFIRMED, subject
only to the modification that the indemnity for the death of Catherine Acosta is hereby increased to P50,000.00,
in line with current jurisprudence. 58

SO ORDERED.

Bidin, Romero, Melo and Vitug, JJ., concur.