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Applicability of Respondeat Superior Doctrine advice.

She was advised to undergo an

operation for the removal of a stone in her gall
G.R. No. 124354 December 29, 1999 bladder (TSN, January 13, 1988, p. 5). She
underwent a series of examinations which
ROGELIO E. RAMOS and ERLINDA RAMOS, in their included blood and urine tests (Exhs. "A" and
own behalf and as natural guardians of the minors, "C") which indicated she was fit for surgery.
RON RAYMOND RAMOS, petitioners, Through the intercession of a mutual friend, Dr.
vs. Buenviaje (TSN, January 13, 1988, p. 7), she
COURT OF APPEALS, DELOS SANTOS MEDICAL and her husband Rogelio met for the first
CENTER, DR. ORLINO HOSAKA and DRA. time Dr. Orlino Hozaka (should be
PERFECTA GUTIERREZ, respondents. Hosaka; see TSN, February 20, 1990, p. 3), one
of the defendants in this case, on June 10, 1985.
KAPUNAN, J.: They agreed that their date at the operating
table at the DLSMC (another defendant), would
The Hippocratic Oath mandates physicians to give be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka
primordial consideration to the health and welfare of decided that she should undergo a
their patients. If a doctor fails to live up to this precept, "cholecystectomy" operation after examining the
he is made accountable for his acts. A mistake, through documents (findings from the Capitol Medical
gross negligence or incompetence or plain human error, Center, FEU Hospital and DLSMC) presented to
may spell the difference between life and death. In this him. Rogelio E. Ramos, however, asked Dr.
sense, the doctor plays God on his patient's fate. 1 Hosaka to look for a good anesthesiologist. Dr.
Hosaka, in turn, assured Rogelio that he will get
In the case at bar, the Court is called upon to rule a good anesthesiologist. Dr. Hosaka charged a
whether a surgeon, an anesthesiologist and a hospital fee of P16,000.00, which was to include the
should be made liable for the unfortunate comatose anesthesiologist's fee and which was to be paid
condition of a patient scheduled for cholecystectomy. 2 after the operation (TSN, October 19, 1989, pp.
14-15, 22-23, 31-33; TSN, February 27, 1990, p.
13; and TSN, November 9, 1989, pp. 3-4, 10,
Petitioners seek the reversal of the decision 3 of the
Court of Appeals, dated 29 May 1995, which overturned 17).
the decision4 of the Regional Trial Court, dated 30 January
1992, finding private respondents liable for damages A day before the scheduled date of operation,
arising from negligence in the performance of their she was admitted at one of the rooms of the
professional duties towards petitioner Erlinda Ramos DLSMC, located along E. Rodriguez Avenue,
resulting in her comatose condition. Quezon City (TSN, October 19,1989, p. 11).

The antecedent facts as summarized by the trial court At around 7:30 A.M. of June 17, 1985 and while
are reproduced hereunder: still in her room, she was prepared for the
operation by the hospital staff. Her sister-in-law,
Plaintiff Erlinda Ramos was, until the afternoon Herminda Cruz, who was the Dean of the
of June 17, 1985, a 47-year old (Exh. "A") robust College of Nursing at the Capitol Medical
woman (TSN, October 19, 1989, p. 10). Except Center, was also there for moral support. She
for occasional complaints of discomfort due to reiterated her previous request for Herminda to
pains allegedly caused by the presence of a be with her even during the operation. After
stone in her gall bladder (TSN, January 13, praying, she was given injections. Her hands
1988, pp. 4-5), she was as normal as any other were held by Herminda as they went down from
woman. Married to Rogelio E. Ramos, an her room to the operating room (TSN, January
executive of Philippine Long Distance Telephone 13, 1988, pp. 9-11). Her husband, Rogelio, was
Company, she has three children whose names also with her (TSN, October 19, 1989, p. 18). At
are Rommel Ramos, Roy Roderick Ramos and the operating room, Herminda saw about two or
Ron Raymond Ramos (TSN, October 19, 1989, three nurses and Dr. Perfecta Gutierrez, the
pp. 5-6). other defendant, who was to administer
anesthesia. Although not a member of the
Because the discomforts somehow interfered hospital staff, Herminda introduced herself as
with her normal ways, she sought professional Dean of the College of Nursing at the Capitol

1 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
Medical Center who was to provide moral Gutierrez was doing. She thereafter noticed
support to the patient, to them. Herminda was bluish discoloration of the nailbeds of the left
allowed to stay inside the operating room. hand of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka
At around 9:30 A.M., Dr. Gutierrez reached a issue an order for someone to call Dr. Calderon,
nearby phone to look for Dr. Hosaka who was another anesthesiologist (id., p. 19). After Dr.
not yet in (TSN, January 13, 1988, pp. 11-12). Calderon arrived at the operating room, she saw
Dr. Gutierrez thereafter informed Herminda Cruz this anesthesiologist trying to intubate the
about the prospect of a delay in the arrival of Dr. patient. The patient's nailbed became bluish and
Hosaka. Herminda then went back to the patient the patient was placed in a trendelenburg
who asked, "Mindy, wala pa ba ang Doctor"? position a position where the head of the
The former replied, "Huwag kang mag-alaala, patient is placed in a position lower than her feet
darating na iyon" (Ibid.). which is an indication that there is a decrease of
blood supply to the patient's brain (Id., pp. 19-
Thereafter, Herminda went out of the operating 20). Immediately thereafter, she went out of the
room and informed the patient's husband, operating room, and she told Rogelio E. Ramos
Rogelio, that the doctor was not yet around (id., "that something wrong was . . . happening"
p. 13). When she returned to the operating (Ibid.). Dr. Calderon was then able to intubate
room, the patient told her, "Mindy, inip na inip na the patient (TSN, July 25, 1991, p. 9).
ako, ikuha mo ako ng ibang Doctor." So, she
went out again and told Rogelio about what the Meanwhile, Rogelio, who was outside the
patient said (id., p. 15). Thereafter, she returned operating room, saw a respiratory machine
to the operating room. being rushed towards the door of the operating
room. He also saw several doctors rushing
At around 10:00 A.M., Rogelio E. Ramos was towards the operating room. When informed by
"already dying [and] waiting for the arrival of the Herminda Cruz that something wrong was
doctor" even as he did his best to find somebody happening, he told her (Herminda) to be back
who will allow him to pull out his wife from the with the patient inside the operating room (TSN,
operating room (TSN, October 19, 1989, pp. 19- October 19, 1989, pp. 25-28).
20). He also thought of the feeling of his wife,
who was inside the operating room waiting for Herminda Cruz immediately rushed back, and
the doctor to arrive (ibid.). At almost 12:00 noon, saw that the patient was still in trendelenburg
he met Dr. Garcia who remarked that he (Dr. position (TSN, January 13, 1988, p. 20). At
Garcia) was also tired of waiting for Dr. Hosaka almost 3:00 P.M. of that fateful day, she saw the
to arrive (id., p. 21). While talking to Dr. Garcia patient taken to the Intensive Care Unit (ICU).
at around 12:10 P.M., he came to know that Dr.
Hosaka arrived as a nurse remarked, "Nandiyan About two days thereafter, Rogelio E. Ramos
na si Dr. Hosaka, dumating na raw." Upon was able to talk to Dr. Hosaka. The latter
hearing those words, he went down to the lobby informed the former that something went wrong
and waited for the operation to be completed during the intubation. Reacting to what was told
(id., pp. 16, 29-30). to him, Rogelio reminded the doctor that the
condition of his wife would not have happened,
At about 12:15 P.M., Herminda Cruz, who was had he (Dr. Hosaka) looked for a good
inside the operating room with the patient, heard anesthesiologist (TSN, October 19, 1989, p. 31).
somebody say that "Dr. Hosaka is already here."
She then saw people inside the operating room Doctors Gutierrez and Hosaka were also asked
"moving, doing this and that, [and] preparing the by the hospital to explain what happened to the
patient for the operation" (TSN, January 13, patient. The doctors explained that the patient
1988, p. 16). As she held the hand of Erlinda had bronchospasm (TSN, November 15, 1990,
Ramos, she then saw Dr. Gutierrez intubating pp. 26-27).
the hapless patient. She thereafter heard Dr.
Gutierrez say, "ang hirap ma-intubate nito, mali Erlinda Ramos stayed at the ICU for a month.
yata ang pagkakapasok. O lumalaki ang tiyan" About four months thereafter or on November
(id., p. 17). Because of the remarks of Dra. 15, 1985, the patient was released from the
Gutierrez, she focused her attention on what Dr. hospital.

2 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
During the whole period of her confinement, she On the part of Dr. Perfecta Gutierrez, this Court
incurred hospital bills amounting to P93,542.25 finds that she omitted to exercise reasonable
which is the subject of a promissory note and care in not only intubating the patient, but also in
affidavit of undertaking executed by Rogelio E. not repeating the administration of atropine
Ramos in favor of DLSMC. Since that fateful (TSN, August 20, 1991, pp. 5-10), without due
afternoon of June 17, 1985, she has been in a regard to the fact that the patient was inside the
comatose condition. She cannot do anything. operating room for almost three (3) hours. For
She cannot move any part of her body. She after she committed a mistake in intubating [the]
cannot see or hear. She is living on mechanical patient, the patient's nailbed became bluish and
means. She suffered brain damage as a result the patient, thereafter, was placed in
of the absence of oxygen in her brain for four to trendelenburg position, because of the decrease
five minutes (TSN, November 9, 1989, pp. 21- of blood supply to the patient's brain. The
22). After being discharged from the hospital, evidence further shows that the hapless patient
she has been staying in their residence, still suffered brain damage because of the absence
needing constant medical attention, with her of oxygen in her (patient's) brain for
husband Rogelio incurring a monthly expense approximately four to five minutes which, in turn,
ranging from P8,000.00 to P10,000.00 (TSN, caused the patient to become comatose.
October 19, 1989, pp. 32-34). She was also
diagnosed to be suffering from "diffuse cerebral On the part of Dr. Orlino Hosaka, this Court finds
parenchymal damage" (Exh. "G"; see also TSN, that he is liable for the acts of Dr. Perfecta
December 21, 1989, Gutierrez whom he had chosen to administer
p. 6). 5
anesthesia on the patient as part of his
obligation to provide the patient a good
Thus, on 8 January 1986, petitioners filed a civil anesthesiologist', and for arriving for the
case 6 for damages with the Regional Trial Court of scheduled operation almost three (3) hours late.
Quezon City against herein private respondents alleging
negligence in the management and care of Erlinda Ramos. On the part of DLSMC (the hospital), this Court
finds that it is liable for the acts of negligence of
During the trial, both parties presented evidence as to the doctors in their "practice of medicine" in the
the possible cause of Erlinda's injury. Plaintiff presented operating room. Moreover, the hospital is liable
the testimonies of Dean Herminda Cruz and Dr. Mariano for failing through its responsible officials, to
Gavino to prove that the sustained by Erlinda was due cancel the scheduled operation after Dr. Hosaka
to lack of oxygen in her brain caused by the faulty inexcusably failed to arrive on time.
management of her airway by private respondents
during the anesthesia phase. On the other hand, private In having held thus, this Court rejects the
respondents primarily relied on the expert testimony of defense raised by defendants that they have
Dr. Eduardo Jamora, a pulmonologist, to the effect that acted with due care and prudence in rendering
the cause of brain damage was Erlinda's allergic medical services to plaintiff-patient. For if the
reaction to the anesthetic agent, Thiopental Sodium patient was properly intubated as claimed by
(Pentothal). them, the patient would not have become
comatose. And, the fact that another
After considering the evidence from both sides, the anesthesiologist was called to try to intubate the
Regional Trial Court rendered judgment in favor of patient after her (the patient's) nailbed turned
petitioners, to wit: bluish, belie their claim. Furthermore, the
defendants should have rescheduled the
After evaluating the evidence as shown in the operation to a later date. This, they should have
finding of facts set forth earlier, and applying the done, if defendants acted with due care and
aforecited provisions of law and jurisprudence to prudence as the patient's case was an elective,
the case at bar, this Court finds and so holds not an emergency case.
that defendants are liable to plaintiffs for
damages. The defendants were guilty of, at the xxx xxx xxx
very least, negligence in the performance of
their duty to plaintiff-patient Erlinda Ramos. WHEREFORE, and in view of the foregoing,
judgment is rendered in favor of the plaintiffs
and against the defendants. Accordingly, the

3 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
latter are ordered to pay, jointly and severally, reconsideration contending that the period to file the
the former the following sums of money, to wit: appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the
1) the sum of P8,000.00 as actual monthly Court of Appeals had not yet served a copy thereof to the
expenses for the plaintiff Erlinda Ramos counsel on record. Despite this explanation, the appellate
reckoned from November 15, 1985 or in the total court still denied the motion to admit the motion for
reconsideration of petitioners in its Resolution, dated 29
sum of P632,000.00 as of April 15, 1992, subject
March 1996, primarily on the ground that the fifteen-day
to its being updated;
(15) period for filing a motion for reconsideration had
already expired, to wit:
2) the sum of P100,000.00 as reasonable
attorney's fees;
We said in our Resolution on July 25, 1995, that
the filing of a Motion for Reconsideration cannot
3) the sum of P800,000.00 by way of moral be extended; precisely, the Motion for Extension
damages and the further sum of P200,000,00 by (Rollo, p. 12) was denied. It is, on the other
way of exemplary damages; and, hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the
4) the costs of the suit. decision as early as June 9, 1995. Computation
wise, the period to file a Motion for
SO ORDERED. 7 Reconsideration expired on June 24. The Motion
for Reconsideration, in turn, was received by the
Private respondents seasonably interposed an appeal to Court of Appeals already on July 4, necessarily,
the Court of Appeals. The appellate court rendered a the 15-day period already passed. For that
Decision, dated 29 May 1995, reversing the findings of alone, the latter should be denied.
the trial court. The decretal portion of the decision of the
appellate court reads: Even assuming admissibility of the Motion for
the Reconsideration, but after considering the
WHEREFORE, for the foregoing premises the Comment/Opposition, the former, for lack of
appealed decision is hereby REVERSED, and merit, is hereby DENIED. SO ORDERED. 10
the complaint below against the appellants is
hereby ordered DISMISSED. The counterclaim A copy of the above resolution was received by Atty.
of appellant De Los Santos Medical Center is Sillano on 11 April 1996. The next day, or on 12 April
GRANTED but only insofar as appellees are 1996, Atty. Sillano filed before this Court a motion for
hereby ordered to pay the unpaid hospital bills extension of time to file the present petition
amounting to P93,542.25, plus legal interest for for certiorari under Rule 45. The Court granted the
justice must be tempered with mercy. SO motion for extension of time and gave petitioners
ORDERED. 8 additional thirty (30) days after the expiration of the
fifteen-day (15) period counted from the receipt of the
The decision of the Court of Appeals was received on 9 resolution of the Court of Appeals within which to submit
June 1995 by petitioner Rogelio Ramos who was the petition. The due date fell on 27 May 1996. The
mistakenly addressed as "Atty. Rogelio Ramos." No petition was filed on 9 May 1996, well within the
copy of the decision, however, was sent nor received by extended period given by the Court.
the Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the Petitioners assail the decision of the Court of Appeals on
appellate court to a new lawyer, Atty. Ligsay, only on 20 the following grounds:
June 1995, or four (4) days before the expiration of the
reglementary period for filing a motion for I
reconsideration. On the same day, Atty. Ligsay, filed with IN PUTTING MUCH RELIANCE ON THE
the appellate court a motion for extension of time to file TESTIMONIES OF RESPONDENTS DRA.
a motion for reconsideration. The motion for GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
reconsideration was submitted on 4 July 1995. However, II
the appellate court denied the motion for extension of IN FINDING THAT THE NEGLIGENCE OF THE
time in its Resolution dated 25 July 1995. 9Meanwhile, RESPONDENTS DID NOT CAUSE THE
petitioners engaged the services of another counsel, Atty. UNFORTUNATE COMATOSE CONDITION OF
Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 PETITIONER ERLINDA RAMOS;
August 1995 a motion to admit the motion for

4 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
III assigned errors shall be tackled in relation to the res
Before we discuss the merits of the case, we shall first Res ipsa loquitur is a Latin phrase which literally means
dispose of the procedural issue on the timeliness of the "the thing or the transaction speaks for itself." The
petition in relation to the motion for reconsideration filed phrase "res ipsa loquitur'' is a maxim for the rule that the
by petitioners with the Court of Appeals. In their fact of the occurrence of an injury, taken with the
Comment, 12 private respondents contend that the petition surrounding circumstances, may permit an inference or
should not be given due course since the motion for raise a presumption of negligence, or make out a
reconsideration of the petitioners on the decision of the plaintiff's prima faciecase, and present a question of fact
Court of Appeals was validly dismissed by the appellate for defendant to meet with an explanation. 13 Where the
court for having been filed beyond the reglementary period. thing which caused the injury complained of is shown to be
We do not agree. under the management of the defendant or his servants
and the accident is such as in ordinary course of things
A careful review of the records reveals that the reason does not happen if those who have its management or
behind the delay in filing the motion for reconsideration control use proper care, it affords reasonable evidence, in
is attributable to the fact that the decision of the Court of the absence of explanation by the defendant, that the
Appeals was not sent to then counsel on record of accident arose from or was caused by the defendant's
petitioners, the Coronel Law Office. In fact, a copy of the want of care. 14
decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995 The doctrine of res ipsa loquitur is simply a recognition
wherein he was mistakenly addressed as Atty. Rogelio of the postulate that, as a matter of common knowledge
Ramos. Based on the other communications received and experience, the very nature of certain types of
by petitioner Rogelio Ramos, the appellate court occurrences may justify an inference of negligence on
apparently mistook him for the counsel on record. Thus, the part of the person who controls the instrumentality
no copy of the decision of the counsel on record. causing the injury in the absence of some explanation
Petitioner, not being a lawyer and unaware of the by the defendant who is charged with negligence. 15 It is
prescriptive period for filing a motion for reconsideration, grounded in the superior logic of ordinary human
referred the same to a legal counsel only on 20 June experience and on the basis of such experience or
1995. common knowledge, negligence may be deduced from the
mere occurrence of the accident itself. 16 Hence, res ipsa
It is elementary that when a party is represented by loquitur is applied in conjunction with the doctrine of
common knowledge.
counsel, all notices should be sent to the party's lawyer
at his given address. With a few exceptions, notice to a
litigant without notice to his counsel on record is no However, much has been said that res ipsa loquitur is
notice at all. In the present case, since a copy of the not a rule of substantive law and, as such, does not
decision of the appellate court was not sent to the create or constitute an independent or separate ground
counsel on record of petitioner, there can be no of liability. 17 Instead, it is considered as merely evidentiary
sufficient notice to speak of. Hence, the delay in the or in the nature of a procedural rule. 18 It is regarded as a
mode of proof, or a mere procedural of convenience since
filing of the motion for reconsideration cannot be taken
it furnishes a substitute for, and relieves a plaintiff of, the
against petitioner. Moreover, since the Court of Appeals
burden of producing specific proof of negligence. 19 In other
already issued a second Resolution, dated 29 March
words, mere invocation and application of the doctrine
1996, which superseded the earlier resolution issued on
does not dispense with the requirement of proof of
25 July 1995, and denied the motion for reconsideration negligence. It is simply a step in the process of such proof,
of petitioner, we believed that the receipt of the former permitting the plaintiff to present along with the proof of the
should be considered in determining the timeliness of accident, enough of the attending circumstances to invoke
the filing of the present petition. Based on this, the the doctrine, creating an inference or presumption of
petition before us was submitted on time. negligence, and to thereby place on the defendant the
burden of going forward with the proof. 20 Still, before resort
After resolving the foregoing procedural issue, we shall to the doctrine may be allowed, the following requisites
now look into the merits of the case. For a more logical must be satisfactorily shown:
presentation of the discussion we shall first consider the
issue on the applicability of the doctrine of res ipsa 1. The accident is of a kind which ordinarily does
loquitur to the instant case. Thereafter, the first two not occur in the absence of someone's

5 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
2. It is caused by an instrumentality within the occurred.31 When the doctrine is appropriate, all that the
exclusive control of the defendant or defendants; patient must do is prove a nexus between the particular act
and or omission complained of and the injury sustained while
under the custody and management of the defendant
3. The possibility of contributing conduct which without need to produce expert medical testimony to
would make the plaintiff responsible is establish the standard of care. Resort to res ipsa loquitur is
allowed because there is no other way, under usual and
eliminated. 21
ordinary conditions, by which the patient can obtain
redress for injury suffered by him.
In the above requisites, the fundamental element is the
"control of instrumentality" which caused the
Thus, courts of other jurisdictions have applied the
damage. 22Such element of control must be shown to be
doctrine in the following situations: leaving of a foreign
within the dominion of the defendant. In order to have the
object in the body of the patient after an
benefit of the rule, a plaintiff, in addition to proving injury or
damage, must show a situation where it is applicable, and operation, 32 injuries sustained on a healthy part of the
must establish that the essential elements of the doctrine body which was not under, or in the area, of
were present in a particular incident. 23 treatment, 33 removal of the wrong part of the body when
another part was intended, 34 knocking out a tooth while a
patient's jaw was under anesthetic for the removal of his
Medical malpractice 24 cases do not escape the
tonsils, 35 and loss of an eye while the patient plaintiff was
application of this doctrine. Thus, res ipsa loquitur has
under the influence of anesthetic, during or following an
been applied when the circumstances attendant upon the
operation for appendicitis, 36 among others.
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 Nevertheless, despite the fact that the scope of res ipsa
presents a question of law since it is a judicial function to loquitur has been measurably enlarged, it does not
determine whether a certain set of circumstances does, as automatically apply to all cases of medical negligence
a matter of law, permit a given inference.26 as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed
Although generally, expert medical testimony is relied negligence. Res ipsa loquitur is not a rigid or ordinary
upon in malpractice suits to prove that a physician has doctrine to be perfunctorily used but a rule to be
done a negligent act or that he has deviated from the cautiously applied, depending upon the circumstances
standard medical procedure, when the doctrine of res of each case. It is generally restricted to situations in
ipsa loquitur is availed by the plaintiff, the need for malpractice cases where a layman is able to say, as a
expert medical testimony is dispensed with because the matter of common knowledge and observation, that the
injury itself provides the proof of negligence. 27 The consequences of professional care were not as such as
reason is that the general rule on the necessity of expert would ordinarily have followed if due care had been
testimony applies only to such matters clearly within the exercised. 37 A distinction must be made between the
domain of medical science, and not to matters that are failure to secure results, and the occurrence of something
within the common knowledge of mankind which may be more unusual and not ordinarily found if the service or
testified to by anyone familiar with the facts. 28 Ordinarily, treatment rendered followed the usual procedure of those
only physicians and surgeons of skill and experience are skilled in that particular practice. It must be conceded that
competent to testify as to whether a patient has been the doctrine of res ipsa loquitur can have no application in
treated or operated upon with a reasonable degree of skill a suit against a physician or surgeon which involves the
and care. However, testimony as to the statements and merits of a diagnosis or of a scientific treatment. 38 The
acts of physicians and surgeons, external appearances, physician or surgeon is not required at his peril to explain
and manifest conditions which are observable by any one why any particular diagnosis was not correct, or why any
may be given by non-expert witnesses. 29 Hence, in cases particular scientific treatment did not produce the desired
where theres ipsa loquitur is applicable, the court is result. 39 Thus, res ipsa loquitur is not available in a
permitted to find a physician negligent upon proper proof of malpractice suit if the only showing is that the desired
injury to the patient, without the aid of expert testimony, result of an operation or treatment was not
where the court from its fund of common knowledge can accomplished. 40 The real question, therefore, is whether or
determine the proper standard of care. 30 Where common not in the process of the operation any extraordinary
knowledge and experience teach that a resulting injury incident or unusual event outside of the routine
would not have occurred to the patient if due care had performance occurred which is beyond the regular scope
been exercised, an inference of negligence may be drawn of customary professional activity in such operations,
giving rise to an application of the doctrine of res ipsa which, if unexplained would themselves reasonably speak
loquitur without medical evidence, which is ordinarily to the average man as the negligent cause or causes of
required to show not only what occurred but how and why it the untoward consequence. 41 If there was such extraneous

6 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
interventions, the doctrine of res ipsa loquitur may be Erlinda submitted herself for cholecystectomy and
utilized and the defendant is called upon to explain the expected a routine general surgery to be performed on
matter, by evidence of exculpation, if he could. 42 her gall bladder. On that fateful day she delivered her
person over to the care, custody and control of private
We find the doctrine of res ipsa loquitur appropriate in respondents who exercised complete and exclusive
the case at bar. As will hereinafter be explained, the control over her. At the time of submission, Erlinda was
damage sustained by Erlinda in her brain prior to a neurologically sound and, except for a few minor
scheduled gall bladder operation presents a case for the discomforts, was likewise physically fit in mind and body.
application of res ipsa loquitur. However, during the administration of anesthesia and
prior to the performance of cholecystectomy she
A case strikingly similar to the one before us is Voss suffered irreparable damage to her brain. Thus, without
vs. Bridwell, 43 where the Kansas Supreme Court in undergoing surgery, she went out of the operating room
applying theres ipsa loquitur stated: already decerebrate and totally incapacitated.
Obviously, brain damage, which Erlinda sustained, is an
The plaintiff herein submitted himself for a injury which does not normally occur in the process of a
mastoid operation and delivered his person over gall bladder operation. In fact, this kind of situation does
to the care, custody and control of his physician not in the absence of negligence of someone in the
who had complete and exclusive control over administration of anesthesia and in the use of
him, but the operation was never performed. At endotracheal tube. Normally, a person being put under
the time of submission he was neurologically anesthesia is not rendered decerebrate as a
sound and physically fit in mind and body, but he consequence of administering such anesthesia if the
suffered irreparable damage and injury proper procedure was followed. Furthermore, the
rendering him decerebrate and totally instruments used in the administration of anesthesia,
incapacitated. The injury was one which does including the endotracheal tube, were all under the
not ordinarily occur in the process of a mastoid exclusive control of private respondents, who are the
operation or in the absence of negligence in the physicians-in-charge. Likewise, petitioner Erlinda could
administration of an anesthetic, and in the use not have been guilty of contributory negligence because
and employment of an endoctracheal tube. she was under the influence of anesthetics which
Ordinarily a person being put under anesthesia rendered her unconscious.
is not rendered decerebrate as a consequence
of administering such anesthesia in the absence Considering that a sound and unaffected member of the
of negligence. Upon these facts and under these body (the brain) is injured or destroyed while the patient
circumstances a layman would be able to say, is unconscious and under the immediate and exclusive
as a matter of common knowledge and control of the physicians, we hold that a practical
observation, that the consequences of administration of justice dictates the application of res
professional treatment were not as such as ipsa loquitur. Upon these facts and under these
would ordinarily have followed if due care had circumstances the Court would be able to say, as a
been exercised. matter of common knowledge and observation, if
negligence attended the management and care of the
Here the plaintiff could not have been guilty of patient. Moreover, the liability of the physicians and the
contributory negligence because he was under hospital in this case is not predicated upon an alleged
the influence of anesthetics and unconscious, failure to secure the desired results of an operation nor
and the circumstances are such that the true on an alleged lack of skill in the diagnosis or treatment
explanation of event is more accessible to the as in fact no operation or treatment was ever performed
defendants than to the plaintiff for they had the on Erlinda. Thus, upon all these initial determination a
exclusive control of the instrumentalities of case is made out for the application of the doctrine
anesthesia. of res ipsa loquitur.

Upon all the facts, conditions and circumstances Nonetheless, in holding that res ipsa loquitur is available
alleged in Count II it is held that a cause of to the present case we are not saying that the doctrine
action is stated under the doctrine of res ipsa is applicable in any and all cases where injury occurs to
loquitur. 44 a patient while under anesthesia, or to any and all
anesthesia cases. Each case must be viewed in its own
Indeed, the principles enunciated in the aforequoted light and scrutinized in order to be within the res ipsa
case apply with equal force here. In the present case, loquitur coverage.

7 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
Having in mind the applicability of the res ipsa who was in the operating room right beside the patient
loquitur doctrine and the presumption of negligence when the tragic event occurred. Witness Cruz testified to
allowed therein, the Court now comes to the issue of this effect:
whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda ATTY. PAJARES:
during the anesthesia phase of the operation and, if in Q: In particular, what did Dra. Perfecta
the affirmative, whether the alleged negligence was the Gutierrez do, if any on the patient?
proximate cause of Erlinda's comatose condition. A: In particular, I could see that she was
Corollary thereto, we shall also determine if the Court of intubating the patient.
Appeals erred in relying on the testimonies of the Q: Do you know what happened to that
witnesses for the private respondents. intubation process administered by Dra.
In sustaining the position of private respondents, the ATTY. ALCERA:
Court of Appeals relied on the testimonies of Dra. She will be incompetent Your Honor.
Gutierrez, Dra. Calderon and Dr. Jamora. In giving COURT:
weight to the testimony of Dra. Gutierrez, the Court of Witness may answer if she knows.
Appeals rationalized that she was candid enough to A: As have said, I was with the patient, I was
admit that she experienced some difficulty in the beside the stretcher holding the left hand of
endotracheal intubation 45 of the patient and thus, cannot the patient and all of a sudden heard some
be said to be covering her negligence with falsehood. The remarks coming from Dra. Perfecta Gutierrez
appellate court likewise opined that private respondents herself. She was saying "Ang hirap ma-intubate
were able to show that the brain damage sustained by nito, mali yata ang pagkakapasok. O lumalaki
Erlinda was not caused by the alleged faulty intubation but ang tiyan.
was due to the allergic reaction of the patient to the drug xxx xxx xxx
Thiopental Sodium (Pentothal), a short-acting barbiturate, ATTY. PAJARES:
as testified on by their expert witness, Dr. Jamora. On the Q: From whom did you hear those words
other hand, the appellate court rejected the testimony of "lumalaki ang tiyan"?
Dean Herminda Cruz offered in favor of petitioners that the A: From Dra. Perfecta Gutierrez.
cause of the brain injury was traceable to the wrongful xxx xxx xxx
insertion of the tube since the latter, being a nurse, was Q: After hearing the phrase "lumalaki ang
allegedly not knowledgeable in the process of intubation. In tiyan," what did you notice on the person of
so holding, the appellate court returned a verdict in favor of
the patient?
respondents physicians and hospital and absolved them of
A: I notice (sic) some bluish discoloration on
any liability towards Erlinda and her family.
the nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that
We disagree with the findings of the Court of Appeals. particular time?
We hold that private respondents were unable to A: I saw him approaching the patient during
disprove the presumption of negligence on their part in that time.
the care of Erlinda and their negligence was the Q: When he approached the patient, what did
proximate cause of her piteous condition. he do, if any?
A: He made an order to call on the
In the instant case, the records are helpful in furnishing anesthesiologist in the person of Dr. Calderon.
not only the logical scientific evidence of the Q: Did Dr. Calderon, upon being called, arrive
pathogenesis of the injury but also in providing the Court inside the operating room?
the legal nexus upon which liability is based. As will be A: Yes sir.
shown hereinafter, private respondents' own testimonies Q: What did [s]he do, if any?
which are reflected in the transcript of stenographic A: [S]he tried to intubate the patient.
notes are replete of signposts indicative of their Q: What happened to the patient?
negligence in the care and management of Erlinda. A: When Dr. Calderon try (sic) to intubate the
patient, after a while the patient's nailbed
With regard to Dra. Gutierrez, we find her negligent in became bluish and I saw the patient was
the care of Erlinda during the anesthesia phase. As placed in trendelenburg position.
borne by the records, respondent Dra. Gutierrez failed xxx xxx xxx
to properly intubate the patient. This fact was attested to Q: Do you know the reason why the patient
by Prof. Herminda Cruz, Dean of the Capitol Medical was placed in that trendelenburg position?
Center School of Nursing and petitioner's sister-in-law,

8 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
A: As far as I know, when a patient is in that At any rate, without doubt, petitioner's witness, an
position, there is a decrease of blood supply to experienced clinical nurse whose long experience and
the brain. 46 scholarship led to her appointment as Dean of the
xxx xxx xxx Capitol Medical Center School at Nursing, was fully
capable of determining whether or not the intubation
The appellate court, however, disbelieved Dean Cruz's was a success. She had extensive clinical experience
testimony in the trial court by declaring that: starting as a staff nurse in Chicago, Illinois; staff nurse
and clinical instructor in a teaching hospital, the FEU-
A perusal of the standard nursing curriculum in NRMF; Dean of the Laguna College of Nursing in San
our country will show that intubation is not taught Pablo City; and then Dean of the Capitol Medical Center
as part of nursing procedures and techniques. School of Nursing. 50Reviewing witness Cruz' statements,
Indeed, we take judicial notice of the fact that we find that the same were delivered in a straightforward
nurses do not, and cannot, intubate. Even on the manner, with the kind of detail, clarity, consistency and
assumption that she is fully capable of spontaneity which would have been difficult to fabricate.
determining whether or not a patient is properly With her clinical background as a nurse, the Court is
intubated, witness Herminda Cruz, admittedly, satisfied that she was able to demonstrate through her
did not peep into the throat of the patient. (TSN, testimony what truly transpired on that fateful day.
July 25, 1991, p. 13). More importantly, there is
no evidence that she ever auscultated the Most of all, her testimony was affirmed by no less than
patient or that she conducted any type of respondent Dra. Gutierrez who admitted that she
examination to check if the endotracheal tube experienced difficulty in inserting the tube into Erlinda's
was in its proper place, and to determine the trachea, to wit:
condition of the heart, lungs, and other organs.
Thus, witness Cruz's categorical statements that ATTY. LIGSAY:
appellant Dra. Gutierrez failed to intubate the Q: In this particular case, Doctora, while you
appellee Erlinda Ramos and that it was Dra. were intubating at your first attempt (sic), you
Calderon who succeeded in doing so clearly did not immediately see the trachea?
suffer from lack of sufficient factual bases. 47 DRA. GUTIERREZ:
A: Yes sir.
In other words, what the Court of Appeals is trying to Q: Did you pull away the tube immediately?
impress is that being a nurse, and considered a layman A: You do not pull the . . .
in the process of intubation, witness Cruz is not Q: Did you or did you not?
competent to testify on whether or not the intubation A: I did not pull the tube.
was a success. Q: When you said "mahirap yata ito," what
were you referring to?
A: "Mahirap yata itong i-intubate," that was the
We do not agree with the above reasoning of the
appellate court. Although witness Cruz is not an
Q: So, you found some difficulty in inserting
anesthesiologist, she can very well testify upon matters
the tube?
on which she is capable of observing such as, the
A: Yes, because of (sic) my first attempt, I did
statements and acts of the physician and surgeon,
not see right away. 51
external appearances, and manifest conditions which
Curiously in the case at bar, respondent Dra. Gutierrez
are observable by any one. 48 This is precisely allowed
made the haphazard defense that she encountered
under the doctrine of res ipsa loquitur where the testimony
hardship in the insertion of the tube in the trachea of
of expert witnesses is not required. It is the accepted rule
that expert testimony is not necessary for the proof of Erlinda because it was positioned more anteriorly
negligence in non-technical matters or those of which an (slightly deviated from the normal anatomy of a
ordinary person may be expected to have knowledge, or person) 52 making it harder to locate and, since Erlinda is
where the lack of skill or want of care is so obvious as to obese and has a short neck and protruding teeth, it made
render expert testimony unnecessary. 49 We take judicial intubation even more difficult.
notice of the fact that anesthesia procedures have become
so common, that even an ordinary person can tell if it was The argument does not convince us. If this was indeed
administered properly. As such, it would not be too difficult observed, private respondents adduced no evidence
to tell if the tube was properly inserted. This kind of demonstrating that they proceeded to make a thorough
observation, we believe, does not require a medical degree assessment of Erlinda's airway, prior to the induction of
to be acceptable. anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the

9 | K I N D R E D T O RT S / M E D I C A L M A L P RAC T I C E
observation was made only as an afterthought, as a ATTY. LIGSAY:
means of defense. Q: Would you agree, Doctor, that it is good
medical practice to see the patient a day
The pre-operative evaluation of a patient prior to the before so you can introduce yourself to
administration of anesthesia is universally observed to establish good doctor-patient relationship and
lessen the possibility of anesthetic accidents. Pre- gain the trust and confidence of the patient?
operative evaluation and preparation for anesthesia DRA. GUTIERREZ:
begins when the anesthesiologist reviews the patient's A: As I said in my previous statement, it
medical records and visits with the patient, traditionally, depends on the operative procedure of the
the day before elective surgery. 53 It includes taking the anesthesiologist and in my case, with elective
patient's medical history, review of current drug therapy, cases and normal cardio-pulmonary clearance
physical examination and interpretation of laboratory like that, I usually don't do it except on
data. 54 The physical examination performed by the emergency and on cases that have an
anesthesiologist is directed primarily toward the central abnormalities (sic). 58
nervous system, cardiovascular system, lungs and upper However, the exact opposite is true. In an emergency
airway. 55 A thorough analysis of the patient's airway procedure, there is hardly enough time available for the
normally involves investigating the following: cervical spine fastidious demands of pre-operative procedure so that
mobility, temporomandibular mobility, prominent central an anesthesiologist is able to see the patient only a few
incisors, diseased or artificial teeth, ability to visualize minutes before surgery, if at all. Elective procedures, on
uvula and the thyromental distance. 56 Thus, physical the other hand, are operative procedures that can wait
characteristics of the patient's upper airway that could for days, weeks or even months. Hence, in these cases,
make tracheal intubation difficult should be the anesthesiologist possesses the luxury of time to be
studied. 57 Where the need arises, as when initial
at the patient's beside to do a proper interview and
assessment indicates possible problems (such as the
clinical evaluation. There is ample time to explain the
alleged short neck and protruding teeth of Erlinda) a
method of anesthesia, the drugs to be used, and their
thorough examination of the patient's airway would go a
possible hazards for purposes of informed consent.
long way towards decreasing patient morbidity and
mortality. Usually, the pre-operative assessment is conducted at
least one day before the intended surgery, when the
patient is relaxed and cooperative.
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 Erlinda's case was elective and this was known to
prior consultations with, or pre-operative evaluation of respondent Dra. Gutierrez. Thus, she had all the time to
Erlinda was done by her. Until the day of the operation, make a thorough evaluation of Erlinda's case prior to the
respondent Dra. Gutierrez was unaware of the operation and prepare her for anesthesia. However, she
physiological make-up and needs of Erlinda. She was never saw the patient at the bedside. She herself
likewise not properly informed of the possible difficulties admitted that she had seen petitioner only in the
she would face during the administration of anesthesia operating room, and only on the actual date of the
to Erlinda. Respondent Dra. Gutierrez' act of seeing her cholecystectomy. She negligently failed to take
patient for the first time only an hour before the advantage of this important opportunity. As such, her
scheduled operative procedure was, therefore, an act of attempt to exculpate herself must fail.
exceptional negligence and professional irresponsibility.
The measures cautioning prudence and vigilance in Having established that respondent Dra. Gutierrez failed
dealing with human lives lie at the core of the to perform pre-operative evaluation of the patient which,
physician's centuries-old Hippocratic Oath. Her failure to in turn, resulted to a wrongful intubation, we now
follow this medical procedure is, therefore, a determine if the faulty intubation is truly the proximate
clear indicia of her negligence. cause of Erlinda's comatose condition.

Respondent Dra. Gutierrez, however, attempts to gloss Private respondents repeatedly hammered the view that
over this omission by playing around with the trial court's the cerebral anoxia which led to Erlinda's coma was due
ignorance of clinical procedure, hoping that she could to bronchospasm 59 mediated by her allergic response to
get away with it. Respondent Dra. Gutierrez tried to the drug, Thiopental Sodium, introduced into her system.
muddle the difference between an elective surgery and Towards this end, they presented Dr. Jamora, a Fellow of
the Philippine College of Physicians and Diplomate of the
an emergency surgery just so her failure to perform the
Philippine Specialty Board of Internal Medicine, who
required pre-operative evaluation would escape
advanced private respondents' theory that the oxygen
unnoticed. In her testimony she asserted:
deprivation which led to anoxic encephalopathy, 60 was due

10 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
to an unpredictable drug reaction to the short-acting anesthesia, internal medicine-allergy, and clinical
barbiturate. We find the theory of private respondents pharmacology. The resulting anoxic encephalopathy
unacceptable. belongs to the field of neurology. While admittedly, many
bronchospastic-mediated pulmonary diseases are within
First of all, Dr. Jamora cannot be considered an the expertise of pulmonary medicine, Dr. Jamora's field,
authority in the field of anesthesiology simply because the anesthetic drug-induced, allergic mediated
he is not an anesthesiologist. Since Dr. Jamora is a bronchospasm alleged in this case is within the
pulmonologist, he could not have been capable of disciplines of anesthesiology, allergology and
properly enlightening the court about anesthesia pharmacology. On the basis of the foregoing transcript,
practice and procedure and their complications. Dr. in which the pulmonologist himself admitted that he
Jamora is likewise not an allergologist and could not could not testify about the drug with medical authority, it
therefore properly advance expert opinion on allergic- is clear that the appellate court erred in giving weight to
mediated processes. Moreover, he is not a Dr. Jamora's testimony as an expert in the
pharmacologist and, as such, could not have been administration of Thiopental Sodium.
capable, as an expert would, of explaining to the court
the pharmacologic and toxic effects of the supposed The provision in the rules of evidence 62 regarding expert
culprit, Thiopental Sodium (Pentothal). witnesses states:

The inappropriateness and absurdity of accepting Dr. Sec. 49. Opinion of expert witness. The
Jamora's testimony as an expert witness in the opinion of a witness on a matter requiring
anesthetic practice of Pentothal administration is further special knowledge, skill, experience or training
supported by his own admission that he formulated his which he is shown to possess, may be received
opinions on the drug not from the practical experience in evidence.
gained by a specialist or expert in the administration and
use of Sodium Pentothal on patients, but only from Generally, to qualify as an expert witness, one must
reading certain references, to wit: have acquired special knowledge of the subject matter
about which he or she is to testify, either by the study of
ATTY. LIGSAY: recognized authorities on the subject or by practical
Q: In your line of expertise on pulmonology, did experience.63 Clearly, Dr. Jamora does not qualify as an
you have any occasion to use pentothal as a expert witness based on the above standard since he lacks
method of management? the necessary knowledge, skill, and training in the field of
DR. JAMORA: anesthesiology. Oddly, apart from submitting testimony
A: We do it in conjunction with the from a specialist in the wrong field, private respondents'
anesthesiologist when they have to intubate intentionally avoided providing testimony by competent and
our patient. independent experts in the proper areas.
Q: But not in particular when you practice
pulmonology? Moreover, private respondents' theory, that Thiopental
A: No. Sodium may have produced Erlinda's coma by
Q: In other words, your knowledge about triggering an allergic mediated response, has no support
pentothal is based only on what you have read in evidence. No evidence of stridor, skin reactions, or
from books and not by your own personal wheezing some of the more common accompanying
application of the medicine pentothal? signs of an allergic reaction appears on record. No
A: Based on my personal experience also on laboratory data were ever presented to the court.
Q: How many times have you used pentothal? In any case, private respondents themselves admit that
A: They used it on me. I went into Thiopental induced, allergic-mediated bronchospasm
bronchospasm during my appendectomy. happens only very rarely. If courts were to accept private
Q: And because they have used it on you and respondents' hypothesis without supporting medical
on account of your own personal experience proof, and against the weight of available evidence, then
you feel that you can testify on pentothal here every anesthetic accident would be an act of God.
with medical authority? Evidently, the Thiopental-allergy theory vigorously
A: No. That is why I used references to support asserted by private respondents was a mere
my claims. 61 afterthought. Such an explanation was advanced in
An anesthetic accident caused by a rare drug-induced order to advanced in order to absolve them of any and
bronchospasm properly falls within the fields of all responsibility for the patient's condition.

11 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
In view of the evidence at hand, we are inclined to trachea, the same gave no guarantee of oxygen delivery,
believe petitioners' stand that it was the faulty intubation the hallmark of a successful intubation. In fact, cyanosis
which was the proximate cause of Erlinda's comatose was again observed immediately after the second
condition. intubation. Proceeding from this event (cyanosis), it could
not be claimed, as private respondents insist, that the
Proximate cause has been defined as that which, in second intubation was accomplished. Even granting that
the tube was successfully inserted during the second
natural and continuous sequence, unbroken by any
attempt, it was obviously too late. As aptly explained by the
efficient intervening cause, produces injury, and without
trial court, Erlinda already suffered brain damage as a
which the result would not have occurred. 64 An injury or
result of the inadequate oxygenation of her brain for about
damage is proximately caused by an act or a failure to act,
four to five minutes. 68
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 The above conclusion is not without basis. Scientific
or damage was either a direct result or a reasonably studies point out that intubation problems are
probable consequence of the act or omission. 65 It is the responsible for one-third (1/3) of deaths and serious
dominant, moving or producing cause. injuries associated with anesthesia. 69 Nevertheless,
ninety-eight percent (98%) or the vast majority of difficult
Applying the above definition in relation to the evidence intubations may be anticipated by performing a thorough
evaluation of the patient's airway prior to the
at hand, faulty intubation is undeniably the proximate
operation. 70 As stated beforehand, respondent Dra.
cause which triggered the chain of events leading to
Gutierrez failed to observe the proper pre-operative
Erlinda's brain damage and, ultimately, her comatosed
protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable care
been used in the pre-operative evaluation, respondent
Private respondents themselves admitted in their physician could have been much more prepared to meet
testimony that the first intubation was a failure. This fact the contingency brought about by the perceived anatomic
was likewise observed by witness Cruz when she heard variations in the patient's neck and oral area, defects which
respondent Dra. Gutierrez remarked, "Ang hirap ma- would have been easily overcome by a prior knowledge of
intubate nito, mali yata ang pagkakapasok. O lumalaki those variations together with a change in technique. 71 In
ang tiyan." Thereafter, witness Cruz noticed abdominal other words, an experienced anesthesiologist, adequately
distention on the body of Erlinda. The development of alerted by a thorough pre-operative evaluation, would have
abdominal distention, together with respiratory had little difficulty going around the short neck and
embarrassment indicates that the endotracheal tube protruding teeth. 72 Having failed to observe common
entered the esophagus instead of the respiratory tree. In medical standards in pre-operative management and
other words, instead of the intended endotracheal intubation, respondent Dra. Gutierrez' negligence resulted
intubation what actually took place was an esophageal in cerebral anoxia and eventual coma of Erlinda.
intubation. During intubation, such distention indicates
that air has entered the gastrointestinal tract through the We now determine the responsibility of respondent Dr.
esophagus instead of the lungs through the trachea. Orlino Hosaka as the head of the surgical team. As the
Entry into the esophagus would certainly cause some so-called "captain of the ship," 73 it is the surgeon's
delay in oxygen delivery into the lungs as the tube which responsibility to see to it that those under him perform their
carries oxygen is in the wrong place. That abdominal task in the proper manner. Respondent Dr. Hosaka's
distention had been observed during the first intubation negligence can be found in his failure to exercise the
suggests that the length of time utilized in inserting the proper authority (as the "captain" of the operative team) in
not determining if his anesthesiologist observed proper
endotracheal tube (up to the time the tube was
anesthesia protocols. In fact, no evidence on record exists
withdrawn for the second attempt) was fairly significant.
to show that respondent Dr. Hosaka verified if respondent
Due to the delay in the delivery of oxygen in her lungs
Dra. Gutierrez properly intubated the patient. Furthermore,
Erlinda showed signs of cyanosis. 66 As stated in the it does not escape us that respondent Dr. Hosaka had
testimony of Dr. Hosaka, the lack of oxygen became scheduled another procedure in a different hospital at the
apparent only after he noticed that the nailbeds of Erlinda same time as Erlinda's cholecystectomy, and was in fact
were already blue. 67 However, private respondents over three hours late for the latter's operation. Because of
contend that a second intubation was executed on Erlinda this, he had little or no time to confer with his
and this one was successfully done. We do not think so. anesthesiologist regarding the anesthesia delivery. This
No evidence exists on record, beyond private respondents' indicates that he was remiss in his professional duties
bare claims, which supports the contention that the second towards his patient. Thus, he shares equal responsibility for
intubation was successful. Assuming that the endotracheal the events which resulted in Erlinda's condition.
tube finally found its way into the proper orifice of the

12 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
We now discuss the responsibility of the hospital in this solidarily liable with respondent doctors for petitioner's
particular incident. The unique practice (among private condition. 76
hospitals) of filling up specialist staff with attending and
visiting "consultants," 74 who are allegedly not hospital The basis for holding an employer solidarily responsible
employees, presents problems in apportioning for the negligence of its employee is found in Article
responsibility for negligence in medical malpractice cases. 2180 of the Civil Code which considers a person
However, the difficulty is only more apparent than real. accountable not only for his own acts but also for those
of others based on the former's responsibility under a
In the first place, hospitals exercise significant control in relationship of patria potestas. 77 Such responsibility
the hiring and firing of consultants and in the conduct of ceases when the persons or entity concerned prove that
their work within the hospital premises. Doctors who they have observed the diligence of a good father of the
apply for "consultant" slots, visiting or attending, are family to prevent damage. 78In other words, while the
required to submit proof of completion of residency, their burden of proving negligence rests on the plaintiffs, once
educational qualifications; generally, evidence of negligence is shown, the burden shifts to the respondents
accreditation by the appropriate board (diplomate), (parent, guardian, teacher or employer) who should prove
evidence of fellowship in most cases, and references. that they observed the diligence of a good father of a family
These requirements are carefully scrutinized by to prevent damage.
members of the hospital administration or by a review
committee set up by the hospital who either accept or In the instant case, respondent hospital, apart from a
reject the application. 75 This is particularly true with general denial of its responsibility over respondent
respondent hospital. physicians, failed to adduce evidence showing that it
exercised the diligence of a good father of a family in the
After a physician is accepted, either as a visiting or hiring and supervision of the latter. It failed to adduce
attending consultant, he is normally required to attend evidence with regard to the degree of supervision which
clinico-pathological conferences, conduct bedside it exercised over its physicians. In neglecting to offer
rounds for clerks, interns and residents, moderate grand such proof, or proof of a similar nature, respondent
rounds and patient audits and perform other tasks and hospital thereby failed to discharge its burden under the
responsibilities, for the privilege of being able to last paragraph of Article 2180. Having failed to do this,
maintain a clinic in the hospital, and/or for the privilege respondent hospital is consequently solidarily
of admitting patients into the hospital. In addition to responsible with its physicians for Erlinda's condition.
these, the physician's performance as a specialist is
generally evaluated by a peer review committee on the Based on the foregoing, we hold that the Court of
basis of mortality and morbidity statistics, and feedback Appeals erred in accepting and relying on the
from patients, nurses, interns and residents. A testimonies of the witnesses for the private respondents.
consultant remiss in his duties, or a consultant who Indeed, as shown by the above discussions, private
regularly falls short of the minimum standards respondents were unable to rebut the presumption of
acceptable to the hospital or its peer review committee, negligence. Upon these disquisitions we hold that
is normally politely terminated. private respondents are solidarily liable for damages
under Article 2176 79 of the Civil Code.
In other words, private hospitals, hire, fire and exercise
real control over their attending and visiting "consultant" We now come to the amount of damages due
staff. While "consultants" are not, technically employees, petitioners. The trial court awarded a total of
a point which respondent hospital asserts in denying all P632,000.00 pesos (should be P616,000.00) in
responsibility for the patient's condition, the control compensatory damages to the plaintiff, "subject to its
exercised, the hiring, and the right to terminate being updated" covering the period from 15 November
consultants all fulfill the important hallmarks of an 1985 up to 15 April 1992, based on monthly expenses
employer-employee relationship, with the exception of for the care of the patient estimated at P8,000.00.
the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining. At current levels, the P8000/monthly amount established
Accordingly, on the basis of the foregoing, we rule that by the trial court at the time of its decision would be
for the purpose of allocating responsibility in medical grossly inadequate to cover the actual costs of home-
negligence cases, an employer-employee relationship in based care for a comatose individual. The calculated
effect exists between hospitals and their attending and amount was not even arrived at by looking at the actual
visiting physicians. This being the case, the question cost of proper hospice care for the patient. What it
now arises as to whether or not respondent hospital is reflected were the actual expenses incurred and proved

13 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
by the petitioners after they were forced to bring home temperate damages can and should be awarded on top of
the patient to avoid mounting hospital bills. actual or compensatory damages in instances where the
injury is chronic and continuing. And because of the unique
And yet ideally, a comatose patient should remain in a nature of such cases, no incompatibility arises when both
hospital or be transferred to a hospice specializing in the actual and temperate damages are provided for. The
care of the chronically ill for the purpose of providing a reason is that these damages cover two distinct phases.
proper milieu adequate to meet minimum standards of
care. In the instant case for instance, Erlinda has to be As it would not be equitable and certainly not in the
constantly turned from side to side to prevent bedsores best interests of the administration of justice for the
and hypostatic pneumonia. Feeding is done by victim in such cases to constantly come before the
nasogastric tube. Food preparation should be normally courts and invoke their aid in seeking adjustments to the
made by a dietitian to provide her with the correct daily compensatory damages previously awarded
caloric requirements and vitamin supplements. temperate damages are appropriate. The amount given
Furthermore, she has to be seen on a regular basis by a as temperate damages, though to a certain extent
physical therapist to avoid muscle atrophy, and by a speculative, should take into account the cost of proper
pulmonary therapist to prevent the accumulation of care.
secretions which can lead to respiratory complications.
In the instant case, petitioners were able to provide only
Given these considerations, the amount of actual home-based nursing care for a comatose patient who
damages recoverable in suits arising from negligence has remained in that condition for over a decade.
should at least reflect the correct minimum cost of Having premised our award for compensatory damages
proper care, not the cost of the care the family is usually on the amount provided by petitioners at the onset of
compelled to undertake at home to avoid bankruptcy. litigation, it would be now much more in step with the
However, the provisions of the Civil Code on actual or interests of justice if the value awarded for temperate
compensatory damages present us with some damages would allow petitioners to provide optimal care
difficulties. for their loved one in a facility which generally
specializes in such care. They should not be compelled
Well-settled is the rule that actual damages which may by dire circumstances to provide substandard care at
be claimed by the plaintiff are those suffered by him as home without the aid of professionals, for anything less
he has duly proved. The Civil Code provides: would be grossly inadequate. Under the circumstances,
an award of P1,500,000.00 in temperate damages
would therefore be reasonable. 81
Art. 2199. Except as provided by law or by
stipulation, one is entitled to an adequate
compensation only for such pecuniary loss In Valenzuela vs. Court of Appeals, 82 this Court was
confronted with a situation where the injury suffered by the
suffered by him as he has duly proved. Such
plaintiff would have led to expenses which were difficult to
compensation is referred to as actual or
estimate because while they would have been a direct
compensatory damages.
result of the injury (amputation), and were certain to be
incurred by the plaintiff, they were likely to arise only in the
Our rules on actual or compensatory damages generally future. We awarded P1,000,000.00 in moral damages in
assume that at the time of litigation, the injury suffered that case.
as a consequence of an act of negligence has been
completed and that the cost can be liquidated. However, Describing the nature of the injury, the Court therein
these provisions neglect to take into account those stated:
situations, as in this case, where the resulting injury
might be continuing and possible future complications As a result of the accident, Ma. Lourdes
directly arising from the injury, while certain to occur, are Valenzuela underwent a traumatic amputation of
difficult to predict. her left lower extremity at the distal left thigh just
above the knee. Because of this, Valenzuela will
In these cases, the amount of damages which should be forever be deprived of the full ambulatory
awarded, if they are to adequately and correctly respond functions of her left extremity, even with the use
to the injury caused, should be one which compensates of state of the art prosthetic technology. Well
for pecuniary loss incurred and proved, up to the time of beyond the period of hospitalization (which was
trial; and one which would meet pecuniary loss certain paid for by Li), she will be required to undergo
to be suffered but which could not, from the nature of adjustments in her prosthetic devise due to the
the case, be made with certainty. 80 In other words,

14 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
shrinkage of the stump from the process of highly speculative to estimate the amount of emotional
healing. and moral pain, psychological damage and injury
suffered by the victim or those actually affected by the
These adjustments entail costs, prosthetic victim's condition. 84The husband and the children, all
replacements and months of physical and petitioners in this case, will have to live with the day to day
occupational rehabilitation and therapy. During uncertainty of the patient's illness, knowing any hope of
the lifetime, the prosthetic devise will have to be recovery is close to nil. They have fashioned their daily
replaced and readjusted to changes in the size lives around the nursing care of petitioner, altering their
of her lower limb effected by the biological long term goals to take into account their life with a
changes of middle-age, menopause and aging. comatose patient. They, not the respondents, are charged
with the moral responsibility of the care of the victim. The
Assuming she reaches menopause, for
family's moral injury and suffering in this case is clearly a
example, the prosthetic will have to be adjusted
real one. For the foregoing reasons, an award of
to respond to the changes in bone resulting from
P2,000,000.00 in moral damages would be appropriate.
a precipitate decrease in calcium levels
observed in the bones of all post-menopausal
Finally, by way of example, exemplary damages in the
women. In other words, the damage done to her
amount of P100,000.00 are hereby awarded.
would not only be permanent and lasting, it
Considering the length and nature of the instant suit we
would also be permanently changing and
are of the opinion that attorney's fees valued at
adjusting to the physiologic changes which her
P100,000.00 are likewise proper.
body would normally undergo through the years.
The replacements, changes, and adjustments
will require corresponding adjustive physical and Our courts face unique difficulty in adjudicating medical
occupational therapy. All of these adjustments, it negligence cases because physicians are not insurers
has been documented, are painful. 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
xxx xxx xxx
negligence exists and is proven, the same automatically
gives the injured a right to reparation for the damage
A prosthetic devise, however technologically
advanced, will only allow a reasonable amount
of functional restoration of the motor functions of
Established medical procedures and practices, though
the lower limb. The sensory functions are
in constant flux are devised for the purpose of
forever lost. The resultant anxiety,
preventing complications. A physician's experience with
sleeplessness, psychological injury, mental and
his patients would sometimes tempt him to deviate from
physical pain are inestimable.83
established community practices, and he may end a
distinguished career using unorthodox methods without
The injury suffered by Erlinda as a consequence of
incident. However, when failure to follow established
private respondents' negligence is certainly much more
procedure results in the evil precisely sought to be
serious than the amputation in the Valenzuela case.
averted by observance of the procedure and a nexus is
made between the deviation and the injury or damage,
Petitioner Erlinda Ramos was in her mid-forties when the physician would necessarily be called to account for
the incident occurred. She has been in a comatose state it. In the case at bar, the failure to observe pre-operative
for over fourteen years now. The burden of care has so assessment protocol which would have influenced the
far been heroically shouldered by her husband and intubation in a salutary way was fatal to private
children, who, in the intervening years have been respondents' case.
deprived of the love of a wife and a mother.
WHEREFORE, the decision and resolution of the
Meanwhile, the actual physical, emotional and financial appellate court appealed from are hereby modified so as
cost of the care of petitioner would be virtually to award in favor of petitioners, and solidarily against
impossible to quantify. Even the temperate damages private respondents the following: 1) P1,352,000.00 as
herein awarded would be inadequate if petitioner's actual damages computed as of the date of
condition remains unchanged for the next ten years. promulgation of this decision plus a monthly payment of
P8,000.00 up to the time that petitioner Erlinda Ramos
We recognized, in Valenzuela that a discussion of the expires or miraculously survives; 2) P2,000,000.00 as
victim's actual injury would not even scratch the surface moral damages, 3) P1,500,000.00 as temperate
of the resulting moral damage because it would be

15 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
damages; 4) P100,000.00 each as exemplary damages of the Regional Trial Court (RTC) of Negros Oriental in Civil
and attorney's fees; and, 5) the costs of the suit. Case No. 9492.

SO ORDERED. 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.
Applicability of Res Ipsa Loquitor Doctrine
Mrs. Villegas is a married woman who submitted
G.R. No. 118231 July 5, 1996 to Dr. Batiquin for prenatal care as the latter's
private patient sometime before September 21,
BATIQUIN, petitioners,
vs. In the morning of September 21, 1988 Dr.
COURT OF APPEALS, SPOUSES QUEDO D. Batiquin, with the assistance of Dr. Doris
ACOGIDO and FLOTILDE G. VILLEGAS, respondents. 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 caesarean section on Mrs. Villegas at the
Negros Oriental Provincial Hospital and after 45
Throughout history, patients have consigned their fates
minutes Mrs. Villegas delivered her first child,
and lives to the skill of their doctors. For a breach of this
Rachel Acogido, at about 11:45 that morning.
trust, men have been quick to demand retribution. Some
Thereafter, Plaintiff remained confined at the
4,000 years ago, the Code of Hammurabi 1 then already
Hospital until September 27, 1988 during which
provided: "If a physician make a deep incision upon a man
period of confinement she was regularly visited
with his bronze lancet and cause the man's death, or
operate on the eye socket of a man with his bronze lancet by Dr. Batiquin. On September 28, 1988 Mrs.
and destroy the man's eyes, they shall cut off his Villegas checked out of the Hospital. . . and on
hand." 2 Subsequently, Hippocrates 3 wrote what was to that same day she paid Dr. Batiquin, thru the
become part of the healer's oath: "I will follow that method latter's secretary, the amount of P1,500.00 as
of treatment which according to my ability and judgment, I "professional fee". . . .
consider for the benefit of my patients, and abstain from
whatever is deleterious and mischievous. . . . While I Soon after leaving the Hospital Mrs. Villegas
continue to keep this oath unviolated may it be granted me began to suffer abdominal pains and complained
to enjoy life and practice the art, respected by all men at all of being feverish. She also gradually lost her
times but should I trespass and violate this oath, may the appetite, so she consulted Dr. Batiquin at the
reverse be my lot." At present, the primary objective of the latter's polyclinic who prescribed for her certain
medical profession if the preservation of life and medicines. . . which she had been taking up to
maintenance of the health of the people. 4 December, 1988.

Needless to say then, when a physician strays from his In the meantime, Mrs. Villegas was given a
sacred duty and endangers instead the life of his Medical Certificate by Dr. Batiquin on October
patient, he must be made to answer therefor. Although 31, 1988. . . certifying to her physical fitness to
society today cannot and will not tolerate the return to her work on November 7, 1988. So, on
punishment meted out by the ancients, neither will it and the second week of November, 1988 Mrs.
this Court, as this case would show, let the act go Villegas returned to her work at the Rural Bank
uncondemned. of Ayungon, Negros Oriental.

The petitioners appeal from the decision 5 of the Court of The abdominal pains and fever kept on recurring
Appeals of 11 May 1994 in CA-G.R. CV No. 30851, which and bothered Mrs. Villegas no end despite the
reversed the decision 6 of 21 December 1990 of Branch 30 medications administered by Dr. Batiquin. When
the pains became unbearable and she was

16 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
rapidly losing weight she consulted Dr. Ma. all the above documents were allegedly prepared by
Salud Kho at the Holy Child's Hospital in persons other than Dr. Kho, and she merely affixed her
Dumaguete City on January 20, 1989. signature on some of them to express her agreement
thereto. . . ." 15 The trial court also refused to give weight to
The evidence of Plaintiffs show that when Dr. Dr. Kho's testimony regarding the subject piece of rubber
Ma. Salud Kho examined Mrs. Villegas at the as Dr. Kho "may not have had first-hand knowledge"
thereof, 16 as could be gleaned from her statement, thus:
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 A . . . I have heard somebody that [sic] says [sic]
abdominal mass one finger below the umbilicus there is [sic] a foreign body that goes with the
which she suspected to be either a tumor of the tissues but unluckily I don't know where the
uterus or an ovarian cyst, either of which could rubber was. 17
be cancerous. She had an x-ray taken of Mrs.
Villegas' chest, abdomen and kidney. She also The trial court deemed vital Dr. Victoria Batiquin's
took blood tests of Plaintiff. A blood count testimony that when she confronted Dr. Kho regarding
showed that Mrs. Villegas had [an] infection the piece of rubber, "Dr. Kho answered that there was
inside her abdominal cavity. The results of all rubber indeed but that she threw it away." 18 This
those examinations impelled Dr. Kho to suggest statement, the trial court noted, was never denied nor
that Mrs. Villegas submit to another surgery to disputed by Dr. Kho, leading it to conclude:
which the latter agreed.
There are now two different versions on the
When Dr. Kho opened the abdomen of Mrs. whereabouts of that offending "rubber" (1)
Villegas she found whitish-yellow discharge that it was sent to the Pathologist in Cebu as
inside, an ovarian cyst on each of the left and testified to in Court by Dr. Kho and (2) that Dr.
right ovaries which gave out pus, dirt and pus Kho threw it away as told by her to Defendant.
behind the uterus, and a piece of rubber material The failure of the Plaintiffs to reconcile these two
on the right side of the uterus embedded on [sic] different versions serve only to weaken their
the ovarian cyst, 2 inches by 3/4 inch in size. claim against Defendant Batiquin. 19
This piece of rubber material which Dr. Kho
described as a "foreign body" looked like a piece All told, the trial court held in favor of the petitioners
of a "rubber glove". . . and which is [sic] also herein.
"rubber-drain like". . . . It could have been a torn
section of a surgeon's gloves or could have The Court of Appeals reviewed the entirety of Dr. Kho's
come from other sources. And this foreign body testimony and, even without admitting the private
was the cause of the infection of the ovaries and respondents' documentary evidence, deemed Dr. Kho's
consequently of all the discomfort suffered by positive testimony to definitely establish that a piece of
Mrs. Villegas after her delivery on September rubber was found near private respondent Villegas's
21, 1988. 7 uterus. Thus, the Court of Appeals reversed the decision
of the trial court, holding:
The piece of rubber allegedly found near private
respondent Flotilde Villegas's uterus was not presented 4. The fault or negligence of appellee Dr.
in court, and although Dr. Ma. Salud Kho Testified that Batiquin is established by preponderance of
she sent it to a pathologist in Cebu City for evidence. The trial court itself had narrated what
examination, 8 it was not mentioned in the pathologist's happened to appellant Flotilde after the
Surgical Pathology Report. 9 caesarean operation made by appellee
doctor. . . . After the second operation, appellant
Aside from Dr. Kho's testimony, the evidence which Flotilde became well and healthy. Appellant
mentioned the piece of rubber are a Medical Flotilde's troubles were caused by the infection
Certificate, 10 a Progress Record, 11 an Anesthesia due to the "rubber" that was left inside her
Record, a Nurse's Record, and a Physician's Discharge
12 13 abdomen. Both appellant; testified that after the
Summary. 14 The trial court, however, regarded these operation made by appellee doctor, they did not
documentary evidence as mere hearsay, "there being no go to any other doctor until they finally decided
showing that the person or persons who prepared them are to see another doctor in January, 1989 when
deceased or unable to testify on the facts therein she was not getting any better under the care of
stated. . . . Except for the Medical Certificate (Exhibit "F"), appellee Dr. Batiquin. . . . Appellee Dr. Batiquin

17 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
admitted on the witness stand that she alone excess of jurisdiction, when it gave credence to
decided when to close the operating area; that testimonies punctured with contradictions and falsities.
she examined the portion she operated on
before closing the same. . . Had she exercised The private respondents commented that the petition
due diligence, appellee Dr. Batiquin would have raised only questions of fact, which were not proper for
found the rubber and removed it before closing review by this Court.
the operating area. 20
While the rule is that only questions of law may be
The appellate court then ruled: raised in a petition for review on certiorari, there are
exceptions, among which are when the factual findings
Appellants' evidence show[s] that they paid a of the trial court and the appellate court conflict, when
total of P17,000.00 [deposit of P7,100.00 (Exh. the appealed decision is clearly contradicted by the
G-1-A) plus hospital and medical expenses evidence on record, or when the appellate court
together with doctor's fees in the total amount misapprehended the facts.22
P9,900.00 (Exhs. G and G-2)] for the second
operation that saved her life. After deciphering the cryptic petition, we find that the
focal point of the instant appeal is the appreciation of Dr.
For the miseries appellants endured for more Kho's testimony. The petitioners contend that the Court
than three (3) months, due to the negligence of of Appeals misappreciated the following portion of Dr.
appellee Dr. Batiquin they are entitled to moral Kho's testimony:
damages in the amount of P100,000.00;
exemplary damages in the amount of Q What is the purpose of the examination?
P20,000.00 and attorney's fees in the amount of
P25,000.00. A Just in case, I was just thinking at the back of
my mind, just in case this would turn out to be a
The fact that appellant Flotilde can no longer medico-legal
bear children because her uterus and ovaries case, I have heard somebody that [sic] says [sic]
were removed by Dr. Kho is not taken into there is [sic] a
consideration as it is not shown that the removal foreign body that goes with the tissues but unluc
of said organs were the direct result of the kily I don't know where the rubber was. It was
rubber left by appellee Dr. Batiquin near the not in the Lab, it was not in Cebu. 23 (emphasis
uterus. What is established is that the rubber left supplied)
by appellee caused infection, placed the life of
appellant Flotilde in jeopardy and caused The petitioners prefer the trial court's
appellant fear, worry and anxiety. . . . interpretation of the above testimony, i.e., that
Dr. Kho's knowledge of the piece of rubber was
WHEREFORE, the appealed judgment, based on hearsay. The Court of Appeals, on the
dismissing the complaint for damages is other hand, concluded that the underscored
REVERSED and SET ASIDE. Another judgment phrase was taken out of context by the trial
is hereby entered ordering defendants-appellees court. According to the Court of Appeals, the trial
to pay plaintiffs-appellants the amounts of court should have likewise considered the other
P17,000.00 as and for actual damages; portions of Dr. Kho's testimony, especially the
P100,000.00 as and for moral damages; following:
P20,000.00 as and for exemplary damages; and
P25,000.00 as and for attorney's fees plus the Q So you did actually conduct the
costs of litigation. operation on her?

SO ORDERED. 21 A Yes, I did.

From the above judgment, the petitioners appealed to Q And what was the result?
this Court claiming that the appellate court: (1)
committed grave abuse of discretion by resorting to A Opening up her abdomen, there was
findings of fact not supported by the evidence on record, whitish-yellow discharge inside the
and (2) exceeded its discretion, amounting to lack or abdomen, there was an ovarian cyst on
the left and side and there was also an

18 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
ovarian cyst on the right which, on her gloves. 31 Moreover, the trial court pointed out that the
opening up or freeing it up from the absence of a rubber drain was corroborated by Dr. Doris
uterus, turned out to be pus. Both Sy, Dr. Batiquin's assistant during the operation on private
ovaries turned out. . . to have pus. And respondent Villegas.32 But the trial court failed to recognize
then, cleaning up the uterus, at the back that the assertions of Drs. Batiquin and Sy were denials or
of the uterus it was very dirty, it was full negative testimonies. Well-settled is the rule that positive
of pus. And there was a [piece of] testimony is stronger than negative testimony. 33 Of course,
rubber, we found a [piece of] rubber on as the petitioners advocate, such positive testimony must
come from a credible source, which leads us to the second
the right
assigned error.
side. 24
While the petitioners claim that contradictions and
We agree with the Court of Appeals. The phrase relied
falsities punctured Dr. Kho's testimony, a regarding of
upon by the trial court does not negate the fact that Dr.
the said testimony reveals no such infirmity and
Kho saw a piece of rubber in private respondent
establishes Dr. Kho as a credible witness. Dr. Kho was
Villegas's abdomen, and that she sent it to a laboratory
frank throughout her turn on the witness stand.
and then to Cebu City for examination by a
Furthermore, no motive to state any untruth was ever
pathologist. 25 Not even the Pathologist's Report, although
imputed against Dr. Kho, leaving her trustworthiness
devoid of any mention of a piece of rubber, could alter what
Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the unimpaired. 34 The trial court's following declaration shows
piece of rubber could not be based on other than first-hand that while it was critical of the lack of care with which Dr.
knowledge for, as she asserted before the trial court: Kho handled the piece of rubber, it was not prepared to
doubt Dr. Kho's credibility, thus only supporting our
appraisal of Dr. Kho's trustworthiness:
Q But you are sure you have seen [the piece of
This is not to say that she was less than honest
when she testified about her findings, but it can
A Oh yes. I was not the only one who saw it. 26
also be said that she did not take the most
appropriate precaution to preserve that "piece of
The petitioners emphasize that the private respondents rubber" as an eloquent evidence of what she
never reconciled Dr. Kho's testimony with Dr. Batiquin's would reveal should there be a "legal problem"
claim on the witness stand that when Dr. Batiquin which she claim[s] to have anticipated. 35
confronted Dr. Kho about the foreign body, the latter
said that there was a piece of rubber but that she threw
Considering that we have assessed Dr. Kho to be a
it away. Although hearsay, Dr. Batiquin's claim was not
credible witness, her positive testimony [that a piece of
objected to, and hence, the same is admissible 27 but it
rubber was indeed found in private respondent Villega's
carries no probative value. 28 Nevertheless, assuming
abdomen] prevails over the negative testimony in favor
otherwise, Dr. Batiquin's statement cannot belie the fact
of the petitioners.
that Dr. Kho found a piece of rubber near private
respondent Villegas's uterus. And even if we were to doubt
Dr. Kho as to what she did to the piece of rubber, i.e., As such, the rule of res ipsa loquitur comes to fore. This
whether she threw it away or sent it to Cebu City, we are Court has had occasion to delve into the nature and
not justified in distrusting her as to her recovery of a piece operation of this doctrine:
of rubber from private respondent Villegas's abdomen. On
this score, it is perfectly reasonable to believe the This doctrine [res ipsa loquitur] is stated thus:
testimony of a witness with respect to some facts and "Where the thing which causes injury is shown
disbelieve his testimony with respect to other facts. And it to be under the management of the defendant,
has been aptly said that even when a witness is found to and the accident is such as in the ordinary
have deliberately falsified in some material particulars, it is course of things does not happen in those who
not required that the whole of his uncorroborated testimony have the management use proper care, it
be rejected, but such portions thereof deemed worthy of affords reasonable evidence, in the absence of
belief may be credited. 29 an explanation by the defendant, that the
accident arose from want of care." Or
It is here worth noting that the trial court paid heed to the as Black's Law Dictionary puts it:
following portions of Dr. Batiquin's testimony: that no
rubber drain was used in the operation, 30 and that there Res ipsa loquitur. The thing speaks for
was neither any tear on Dr. Batiquin's gloves after the
itself. Rebuctable presumption or
operation nor blood smears on her hands upon removing
inference that defendant was negligent,

19 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
which arises upon proof that [the] In the instant case, all the requisites for recourse to the
instrumentality causing injury was in doctrine are present. First, the entire proceedings of the
defendant's exclusive control, and that caesarean section were under the exclusive control of
the accident was one which ordinary Dr. Batiquin. In this light, the private respondents were
does not happen in absence of bereft of direct evidence as to the actual culprit or the
negligence. Res ipsa loquitur is [a] rule exact cause of the foreign object finding its way into
of evidence whereby negligence of [the] private respondent Villegas's body, which, needless to
alleged wrongdoer may be inferred from say, does not occur unless through the intersection of
[the] mere fact that [the] accident negligence. Second, since aside from the caesarean
happened provided [the] character of section, private respondent Villegas underwent no other
[the] accident and circumstances operation which could have caused the offending piece
attending it lead reasonably to belief that of rubber to appear in her uterus, it stands to reason that
in [the] absence of negligence it would such could only have been a by-product of the
not have occurred and that thing which caesarean section performed by Dr. Batiquin. The
caused injury is shown to have been petitioners, in this regard, failed to overcome the
under [the] management and control of presumption of negligence arising from resort to the
[the] alleged wrongdoer. . . . Under [this] doctrine of res ipsa loquitur. Dr. Batiquin is therefore
doctrine liable for negligently leaving behind a piece of rubber in
. . . the happening of an injury permits an private respondent Villegas's abdomen and for all the
inference of negligence where plaintiff adverse effects thereof.
produces substantial evidence that [the]
injury was caused by an agency or As a final word, this Court reiterates its recognition of
instrumentality under [the] exclusive the vital role the medical profession plays in the lives of
control and management of defendant, the people, 37 and the State's compelling interest to enact
and that the occurrence [sic] was such measures to protect the public from "the potentially deadly
that in the ordinary course of things effects of incompetence and ignorance in those who would
would not happen if reasonable care had undertake to treat our bodies and minds for disease or
been used. trauma." 38 Indeed, a physician is bound to serve the
interest of his patients "with the greatest of solicitude,
xxx xxx xxx 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
The doctrine of [r]es ipsa loquitur as a
code and in contravention of the legal standards set forth
rule of evidence is peculiar to the law of
for professionals, in general, 40 and members of the medical
negligence which recognizes that prima
profession, 41 in particular.
facie negligence may be established
without direct proof and furnishes a
WHEREFORE, the challenged decision of 11 May 1994
substitute for specific proof of
of the Court of Appeals in CA-G.R. CV No. 30851 is
negligence. The doctrine is not a rule of
hereby AFFIRMED in toto.
substantive law, but merely a mode of
proof or a mere procedural convenience.
Costs against the petitioners.
The rule, when applicable to the facts
and circumstances of a particular case,
is not intended to and does not dispense SO ORDERED.
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 G.R. No. 130547 October 3, 2000

20 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, accepted treatment for typhoid fever, she ordered that a
and minors LLOYD and KRISTINE, all surnamed compatibility test with the antibiotic chloromycetin be
REYES, represented by their mother, LEAH ALESNA done on Jorge. Said test was administered by nurse
REYES, petitioners, Josephine Pagente who also gave the patient a dose of
vs. triglobe. As she did not observe any adverse reaction by
SISTERS OF MERCY HOSPITAL, SISTER ROSE the patient to chloromycetin, Dr. Blanes ordered the first
PALACIO, DR. MARVIE BLANES, and DR. MARLYN five hundred milligrams of said antibiotic to be
RICO,respondents. administered on Jorge at around 9:00 p.m. A second
dose was administered on Jorge about three hours later
DECISION just before midnight.

MENDOZA, J.: At around 1:00 a.m. of January 9, 1987, Dr. Blanes was
called as Jorges temperature rose to 41C. The patient
This is a petition for review of the decision 1 of the Court also experienced chills and exhibited respiratory
of Appeals in CA-G.R. CV No. 36551 affirming the distress, nausea, vomiting, and convulsions. Dr. Blanes
decision of the Regional Trial Court, Branch IX, Cebu put him under oxygen, used a suction machine, and
City which dismissed a complaint for damages filed by administered hydrocortisone, temporarily easing the
petitioners against respondents. patients convulsions. When he regained
consciousness, the patient was asked by Dr. Blanes
The facts are as follows: whether he had a previous heart ailment or had suffered
from chest pains in the past. Jorge replied he did
Petitioner Leah Alesna Reyes is the wife of the late not.5 After about 15 minutes, however, Jorge again
Jorge Reyes. The other petitioners, namely, Rose started to vomit, showed restlessness, and his
Nahdja, Johnny, Lloyd, and Kristine, all surnamed convulsions returned. Dr. Blanes re-applied the
Reyes, were their children. Five days before his death emergency measures taken before and, in addition,
on January 8, 1987, Jorge had been suffering from a valium was administered. Jorge, however, did not
recurring fever with chills. After he failed to get relief respond to the treatment and slipped into cyanosis, a
from some home medication he was taking, which bluish or purplish discoloration of the skin or mucous
consisted of analgesic, antipyretic, and antibiotics, he membrane due to deficient oxygenation of the blood. At
decided to see the doctor. around 2:00 a.m., Jorge died. He was forty years old.
The cause of his death was "Ventricular Arrythemia
Secondary to Hyperpyrexia and typhoid fever."
On January 8, 1987, he was taken to the Mercy
Community Clinic by his wife. He was attended to by
respondent Dr. Marlyn Rico, resident physician and On June 3, 1987, petitioners filed before the Regional
admitting physician on duty, who gave Jorge a physical Trial Court of Cebu City a complaint 6 for damages
examination and took his medical history. She noted that against respondents Sisters of Mercy, Sister Rose
at the time of his admission, Jorge was conscious, Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse
ambulatory, oriented, coherent, and with respiratory Josephine Pagente. On September 24, 1987, petitioners
distress.2 Typhoid fever was then prevalent in the amended their complaint to implead respondent Mercy
locality, as the clinic had been getting from 15 to 20 Community Clinic as additional defendant and to drop
cases of typhoid per month.3 Suspecting that Jorge the name of Josephine Pagente as defendant since she
could be suffering from this disease, Dr. Rico ordered a was no longer connected with respondent hospital. Their
Widal Test, a standard test for typhoid fever, to be principal contention was that Jorge did not die of typhoid
performed on Jorge. Blood count, routine urinalysis, fever.7Instead, his death was due to the wrongful
stool examination, and malarial smear were also administration of chloromycetin. They contended that
made.4 After about an hour, the medical technician had respondent doctors exercised due care and
submitted the results of the test from which Dr. Rico diligence, they would not have recommended and
concluded that Jorge was positive for typhoid fever. As rushed the performance of the Widal Test, hastily
her shift was only up to 5:00 p.m., Dr. Rico indorsed concluded that Jorge was suffering from typhoid fever,
Jorge to respondent Dr. Marvie Blanes. and administered chloromycetin without first conducting
sufficient tests on the patients compatibility with said
drug. They charged respondent clinic and its directress,
Dr. Marvie Blanes attended to Jorge at around six in the
Sister Rose Palacio, with negligence in failing to provide
evening. She also took Jorges history and gave him a
adequate facilities and in hiring negligent doctors and
physical examination. Like Dr. Rico, her impression was
that Jorge had typhoid fever. Antibiotics being the

21 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
Respondents denied the charges. During the pre-trial which a conclusion of typhoid fever may be made. No
conference, the parties agreed to limit the issues on the additional information may be deduced from a higher
following: (1) whether the death of Jorge Reyes was due dilution.11 He said that Dr. Vacalares autopsy on Jorge
to or caused by the negligence, carelessness, was incomplete and thus inconclusive.
imprudence, and lack of skill or foresight on the part of
defendants; (2) whether respondent Mercy Community On September 12, 1991, the trial court rendered its
Clinic was negligent in the hiring of its employees; and decision absolving respondents from the charges of
(3) whether either party was entitled to damages. The negligence and dismissing petitioners action for
case was then heard by the trial court during which, in damages. The trial court likewise dismissed
addition to the testimonies of the parties, the testimonies respondents counterclaim, holding that, in seeking
of doctors as expert witnesses were presented. damages from respondents, petitioners were impelled
by the honest belief that Jorges death was due to the
Petitioners offered the testimony of Dr. Apolinar latters negligence.
Vacalares, Chief Pathologist at the Northern Mindanao
Training Hospital, Cagayan de Oro City. On January 9, Petitioners brought the matter to the Court of Appeals.
1987, Dr. Vacalares performed an autopsy on Jorge On July 31, 1997, the Court of Appeals affirmed the
Reyes to determine the cause of his death. However, he decision of the trial court.
did not open the skull to examine the brain. His
findings9 showed that the gastro-intestinal tract was Hence this petition.
normal and without any ulceration or enlargement of the
nodules. Dr. Vacalares testified that Jorge did not die of Petitioners raise the following assignment of errors:
typhoid fever. He also stated that he had not seen a
patient die of typhoid fever within five days from the I. THE HONORABLE COURT OF APPEALS
For their part, respondents offered the testimonies of Dr. LOQUITUR IS NOT APPLICABLE IN THE INSTANT
Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a CASE.
diplomate in internal medicine whose expertise is II. THE HONORABLE COURT OF APPEALS
microbiology and infectious diseases. He is also a COMMITTED REVERSIBLE ERROR WHEN IT
consultant at the Cebu City Medical Center and an MADE AN UNFOUNDED ASSUMPTION THAT THE
associate professor of medicine at the South Western LEVEL OF MEDICAL PRACTICE IS LOWER IN
University College of Medicine in Cebu City. He had ILIGAN CITY.
treated over a thousand cases of typhoid patients. III. THE HONORABLE COURT OF APPEALS
According to Dr. Gotiong, the patients history and GRAVELY ERRED WHEN IT RULED FOR A
positive Widal Test results ratio of 1:320 would make LESSER STANDARD OF CARE AND DEGREE OF
him suspect that the patient had typhoid fever. As to Dr. DILIGENCE FOR MEDICAL PRACTICE IN ILIGAN
Vacalares observation regarding the absence of CITY WHEN IT APPRECIATE[D] NO DOCTORS
ulceration in Jorges gastro-intestinal tract, Dr. Gotiong NEGLIGENCE IN THE TREATMENT OF JORGE
said that such hyperplasia in the intestines of a typhoid REYES.
victim may be microscopic. He noted that since the toxic Petitioners action is for medical malpractice. This is a
effect of typhoid fever may lead to meningitis, Dr. particular form of negligence which consists in the
Vacalares autopsy should have included an failure of a physician or surgeon to apply to his practice
examination of the brain.10 of medicine that degree of care and skill which is
ordinarily employed by the profession generally, under
The other doctor presented was Dr. Ibarra Panopio, a similar conditions, and in like surrounding
member of the American Board of Pathology, examiner circumstances.12 In order to successfully pursue such a
of the Philippine Board of Pathology from 1978 to 1991, claim, a patient must prove that the physician or
fellow of the Philippine Society of Pathologist, associate surgeon either failed to do something which a
professor of the Cebu Institute of Medicine, and chief reasonably prudent physician or surgeon would have
pathologist of the Andres Soriano Jr. Memorial Hospital done, or that he or she did something that a reasonably
in Toledo City. Dr. Panopio stated that although he was prudent physician or surgeon would not have done, and
partial to the use of the culture test for its greater that the failure or action caused injury to the
reliability in the diagnosis of typhoid fever, the Widal Test patient.13 There are thus four elements involved in
may also be used. Like Dr. Gotiong, he agreed that the medical negligence cases, namely: duty, breach, injury,
1:320 ratio in Jorges case was already the maximum by and proximate causation.

22 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
In the present case, there is no doubt that a physician- sustained while under the custody and management of
patient relationship existed between respondent doctors the defendant without need to produce expert medical
and Jorge Reyes. Respondents were thus duty-bound to testimony to establish the standard of care. Resort
use at least the same level of care that any reasonably to res ipsa loquitor is allowed because there is no other
competent doctor would use to treat a condition under way, under usual and ordinary conditions, by which the
the same circumstances. It is breach of this duty which patient can obtain redress for injury suffered by him.
constitutes actionable malpractice.14 As to this aspect of
medical malpractice, the determination of the Thus, courts of other jurisdictions have applied the
reasonable level of care and the breach thereof, expert doctrine in the following situations: leaving of a foreign
testimony is essential. Inasmuch as the causes of the object in the body of the patient after an operation,
injuries involved in malpractice actions are determinable injuries sustained on a healthy part of the body which
only in the light of scientific knowledge, it has been was not under, or in the area, of treatment, removal of
recognized that expert testimony is usually necessary to the wrong part of the body when another part was
support the conclusion as to causation.15 intended, knocking out a tooth while a patients jaw was
under anesthetic for the removal of his tonsils, and loss
Res Ipsa Loquitur of an eye while the patient was under the influence of
anesthetic, during or following an operation for
There is a case when expert testimony may be appendicitis, among others.17
dispensed with, and that is under the doctrine of res
ipsa loquitur. As held in Ramos v. Court of Appeals:16 Petitioners asserted in the Court of Appeals that the
doctrine of res ipsa loquitur applies to the present case
Although generally, expert medical testimony is relied because Jorge Reyes was merely experiencing fever
upon in malpractice suits to prove that a physician has and chills for five days and was fully conscious,
done a negligent act or that he has deviated from the coherent, and ambulant when he went to the hospital.
standard medical procedure, when the doctrine of res Yet, he died after only ten hours from the time of his
ipsa loquitor is availed by the plaintiff, the need for admission.
expert medical testimony is dispensed with because the
injury itself provides the proof of negligence. The reason This contention was rejected by the appellate court.
is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the Petitioners now contend that all requisites for the
domain of medical science, and not to matters that are application of res ipsa loquitur were present, namely: (1)
within the common knowledge of mankind which may be the accident was of a kind which does not ordinarily
testified to by anyone familiar with the facts. Ordinarily, occur unless someone is negligent; (2) the
only physicians and surgeons of skill and experience are instrumentality or agency which caused the injury was
competent to testify as to whether a patient has been under the exclusive control of the person in charge; and
treated or operated upon with a reasonable degree of (3) the injury suffered must not have been due to any
skill and care. However, testimony as to the statements voluntary action or contribution of the person injured. 18
and acts of physicians and surgeons, external
appearances, and manifest conditions which are The contention is without merit. We agree with the ruling
observable by any one may be given by non-expert of the Court of Appeals. In the Ramos case, the
witnesses. Hence, in cases where the res ipsa question was whether a surgeon, an anesthesiologist,
loquitur is applicable, the court is permitted to find a and a hospital should be made liable for the comatose
physician negligent upon proper proof of injury to the condition of a patient scheduled for
patient, without the aid of expert testimony, where the cholecystectomy.19 In that case, the patient was given
court from its fund of common knowledge can determine anesthesia prior to her operation. Noting that the patient
the proper standard of care. Where common knowledge was neurologically sound at the time of her operation,
and experience teach that a resulting injury would not the Court applied the doctrine of res ipsa loquitur as
have occurred to the patient if due care had been mental brain damage does not normally occur in a
exercised, an inference of negligence may be drawn gallblader operation in the absence of negligence of the
giving rise to an application of the doctrine of res ipsa anesthesiologist. Taking judicial notice that anesthesia
loquitur without medical evidence, which is ordinarily procedures had become so common that even an
required to show not only what occurred but how and ordinary person could tell if it was administered properly,
why it occurred. When the doctrine is appropriate, all we allowed the testimony of a witness who was not an
that the patient must do is prove a nexus between the expert. In this case, while it is true that the patient died
particular act or omission complained of and the injury just a few hours after professional medical assistance

23 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
was rendered, there is really nothing unusual or performed an autopsy on the body of Jorge Reyes. Dr.
extraordinary about his death. Prior to his admission, the Vacalares testified that, based on his findings during the
patient already had recurring fevers and chills for five autopsy, Jorge Reyes did not die of typhoid fever but of
days unrelieved by the analgesic, antipyretic, and shock undetermined, which could be due to allergic
antibiotics given him by his wife. This shows that he had reaction or chloromycetin overdose. We are not
been suffering from a serious illness and professional persuaded.
medical help came too late for him.
First. While petitioners presented Dr. Apolinar Vacalares
Respondents alleged failure to observe due care was as an expert witness, we do not find him to be so as he
not immediately apparent to a layman so as to justify is not a specialist on infectious diseases like typhoid
application of res ipsa loquitur. The question required fever. Furthermore, although he may have had
expert opinion on the alleged breach by respondents of extensive experience in performing autopsies, he
the standard of care required by the circumstances. admitted that he had yet to do one on the body of a
Furthermore, on the issue of the correctness of her typhoid victim at the time he conducted the postmortem
diagnosis, no presumption of negligence can be applied on Jorge Reyes. It is also plain from his testimony that
to Dr. Marlyn Rico.As held in Ramos: he has treated only about three cases of typhoid fever.
Thus, he testified that:23
. . . . Res ipsa loquitur is not a rigid or ordinary doctrine
to be perfunctorily used but a rule to be cautiously ATTY. PASCUAL:
applied, depending upon the circumstances of each Q Why? Have you not testified earlier that you
case. It is generally restricted to situations in malpractice have never seen a patient who died of typhoid
cases where a layman is able to say, as a matter of fever?
common knowledge and observation, that the A In autopsy. But, that was when I was a
consequences of professional care were not as such as resident physician yet.
would ordinarily have followed if due care had been Q But you have not performed an autopsy of a
exercised. A distinction must be made between the patient who died of typhoid fever?
failure to secure results, and the occurrence of A I have not seen one.
something more unusual and not ordinarily found if the Q And you testified that you have never seen a
service or treatment rendered followed the usual patient who died of typhoid fever within five
procedure of those skilled in that particular practice. It days?
must be conceded that the doctrine of res ipsa A I have not seen one.
loquitur can have no application in a suit against a Q How many typhoid fever cases had you seen
physician or a surgeon which involves the merits of a while you were in the general practice of
diagnosis or of a scientific treatment. The physician or medicine?
surgeon is not required at his peril to explain why any A In our case we had no widal test that time so
particular diagnosis was not correct, or why any we cannot consider that the typhoid fever is
particular scientific treatment did not produce the like this and like that. And the widal test does
desired result.20 not specify the time of the typhoid fever.
Q The question is: how many typhoid fever
Specific Acts of Negligence cases had you seen in your general practice
regardless of the cases now you practice?
We turn to the question whether petitioners have A I had only seen three cases.
established specific acts of negligence allegedly Q And that was way back in 1964?
committed by respondent doctors. A Way back after my training in UP.
Q Clinically?
A Way back before my training.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and
He is thus not qualified to prove that Dr. Marlyn Rico
erroneously relied upon the Widal test, diagnosed
erred in her diagnosis. Both lower courts were therefore
Jorges illness as typhoid fever, and immediately
correct in discarding his testimony, which is really
prescribed the administration of the antibiotic
chloromycetin;21 and (2) Dr. Marvie Blanes erred in
ordering the administration of the second dose of 500
milligrams of chloromycetin barely three hours after the In Ramos, the defendants presented the testimony of a
first was given.22 Petitioners presented the testimony of pulmonologist to prove that brain injury was due to
Dr. Apolinar Vacalares, Chief Pathologist of the Northern oxygen deprivation after the patient had
Mindanao Training Hospital, Cagayan de Oro City, who bronchospasms24 triggered by her allergic response to a

24 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
drug,25 and not due to faulty intubation by the A One must first understand that typhoid fever
anesthesiologist. As the issue was whether the is toximia. The problem is complications are
intubation was properly performed by an caused by toxins produced by the bacteria . . .
anesthesiologist, we rejected the opinion of the whether you have suffered complications to
pulmonologist on the ground that he was not: (1) an think of -- heart toxic myocardities; then you
anesthesiologist who could enlighten the court about can consider a toxic meningitis and other
anesthesia practice, procedure, and their complications; complications and perforations and bleeding in
nor (2) an allergologist who could properly advance the ilium.
expert opinion on allergic mediated processes; nor (3) a Q Even that 40-year old married patient who
pharmacologist who could explain the pharmacologic received medication of chloromycetin of 500
and toxic effects of the drug allegedly responsible for the milligrams intravenous, after the skin test, and
bronchospasms. received a second dose of chloromycetin of
500 miligrams, 3 hours later, the patient
Second. On the other hand, the two doctors presented developed chills . . . rise in temperature to
by respondents clearly were experts on the subject. 41oC, and then about 40 minutes later the
They vouched for the correctness of Dr. Marlyn Ricos temperature rose to 100oF, cardiac rate of 150
diagnosis. Dr. Peter Gotiong, a diplomate whose per minute who appeared to be coherent,
specialization is infectious diseases and microbiology restless, nauseating, with seizures: what
and an associate professor at the Southwestern significance could you attach to these clinical
University College of Medicine and the Gullas College of changes?
Medicine, testified that he has already treated over a A I would then think of toxemia, which was
thousand cases of typhoid fever.26 According to him, toxic meningitis and probably a toxic
when a case of typhoid fever is suspected, the Widal meningitis because of the high cardiac rate.
test is normally used,27and if the 1:320 results of the Q Even if the same patient who, after having
Widal test on Jorge Reyes had been presented to him given intramuscular valium, became conscious
along with the patients history, his impression would and coherent about 20 minutes later, have
also be that the patient was suffering from typhoid seizure and cyanosis and rolling of eyeballs
fever.28 As to the treatment of the disease, he stated that and vomitting . . . and death: what significance
chloromycetin was the drug of choice. 29 He also would you attach to this development?
explained that despite the measures taken by A We are probably dealing with typhoid to
respondent doctors and the intravenous administration meningitis.
of two doses of chloromycetin, complications of the Q In such case, Doctor, what finding if any
disease could not be discounted. His testimony is as could you expect on the post-mortem
follows:30 examination?
A No, the finding would be more on the
meninges or covering of the brain.
Q And in order to see those changes would it
Q If with that count with the test of positive for
require opening the skull?
1 is to 320, what treatment if any would be
A Yes.
As regards Dr. Vacalares finding during the autopsy that
A If those are the findings that would be
the deceaseds gastro-intestinal tract was normal, Dr.
presented to me, the first thing I would
Rico explained that, while hyperplasia31 in the payers
consider would be typhoid fever.
patches or layers of the small intestines is present in
Q And presently what are the treatments
typhoid fever, the same may not always be grossly
commonly used?
visible and a microscope was needed to see the texture
A Drug of choice of chloramphenical.
of the cells.32
Q Doctor, if given the same patient and after
you have administered chloramphenical about
3 1/2 hours later, the patient associated with Respondents also presented the testimony of Dr. Ibarra
chills, temperature - 41oC, what could possibly T. Panopio who is a member of the Philippine and
come to your mind? American Board of Pathology, an examiner of the
A Well, when it is change in the clinical finding, Philippine Board of Pathology, and chief pathologist at
you have to think of complication. the MetroCebu Community Hospital, Perpetual Succor
Q And what will you consider on the Hospital, and the Andres Soriano Jr. Memorial Medical
complication of typhoid? Center. He stated that, as a clinical pathologist, he
recognized that the Widal test is used for typhoid
patients, although he did not encourage its use because

25 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
a single test would only give a presumption chloromycetin) is the drug of choice for typhoid fever
necessitating that the test be repeated, becoming more and that no drug has yet proven better in promoting a
conclusive at the second and third weeks of the favorable clinical response. "Chlorampenicol
disease.33 He corroborated Dr. Gotiongs testimony that (Chloromycetin) is specifically indicated for bacterial
the danger with typhoid fever is really the possible meningitis, typhoid fever, rickettsial infections,
complications which could develop like perforation, bacteriodes infections, etc." (PIMS Annual, 1994, p.
hemorrhage, as well as liver and cerebral 211) The dosage likewise including the first
complications.34 As regards the 1:320 results of the administration of five hundred milligrams (500 mg.) at
Widal test on Jorge Reyes, Dr. Panopio stated that no around nine oclock in the evening and the second dose
additional information could be obtained from a higher at around 11:30 the same night was still within medically
ratio.35 He also agreed with Dr. Gotiong that hyperplasia acceptable limits, since the recommended dose of
in the payers patches may be microscopic.36 chloromycetin is one (1) gram every six (6)
hours. (cf. Pediatric Drug Handbook, 1st Ed., Philippine
Indeed, the standard contemplated is not what is Pediatric Society, Committee on Therapeutics and
actually the average merit among all known practitioners Toxicology, 1996). The intravenous route is likewise
from the best to the worst and from the most to the least correct. (Mansser, ONick, Pharmacology and
experienced, but the reasonable average merit among Therapeutics) Even if the test was not administered by
the ordinarily good physicians.37 Here, Dr. Marlyn Rico the physician-on-duty, the evidence introduced that it
did not depart from the reasonable standard was Dra. Blanes who interpreted the results remain
recommended by the experts as she in fact observed uncontroverted. (Decision, pp. 16-17) Once more, this
the due care required under the circumstances. Though Court rejects any claim of professional negligence in this
the Widal test is not conclusive, it remains a standard regard.
diagnostic test for typhoid fever and, in the present
case, greater accuracy through repeated testing was ....
rendered unobtainable by the early death of the patient.
The results of the Widal test and the patients history of As regards anaphylactic shock, the usual way of
fever with chills for five days, taken with the fact that guarding against it prior to the administration of a drug,
typhoid fever was then prevalent as indicated by the fact is the skin test of which, however, it has been observed:
that the clinic had been getting about 15 to 20 typhoid "Skin testing with haptenic drugs is generally not
cases a month, were sufficient to give upon any doctor reliable. Certain drugs cause nonspecific histamine
of reasonable skill the impression that Jorge Reyes had release, producing a weal-and-flare reaction in normal
typhoid fever. individuals. Immunologic activation of mast cells
requires a polyvalent allergen, so a negative skin test to
Dr. Rico was also justified in recommending the a univalent haptenic drug does not rule out anaphylactic
administration of the drug chloromycetin, the drug of sensitivity to that drug." (Terr, "Anaphylaxis and
choice for typhoid fever. The burden of proving that Urticaria" in Basic and Clinical Immunology, p. 349)
Jorge Reyes was suffering from any other illness rested What all this means legally is that even if the deceased
with the petitioners. As they failed to present expert suffered from an anaphylactic shock, this, of itself, would
opinion on this, preponderant evidence to support their not yet establish the negligence of the appellee-
contention is clearly absent. physicians for all that the law requires of them is that
they perform the standard tests and perform standard
Third. Petitioners contend that respondent Dr. Marvie procedures. The law cannot require them to predict
Blanes, who took over from Dr. Rico, was negligent in every possible reaction to all drugs administered. The
ordering the intravenous administration of two doses of onus probandi was on the appellants to establish, before
500 milligrams of chloromycetin at an interval of less the trial court, that the appellee-physicians ignored
than three hours. Petitioners claim that Jorge Reyes standard medical procedure, prescribed and
died of anaphylactic shock38 or possibly from overdose administered medication with recklessness and
as the second dose should have been administered five exhibited an absence of the competence and skills
to six hours after the first, per instruction of Dr. Marlyn expected of general practitioners similarly situated. 39
Rico. As held by the Court of Appeals, however:
Fourth. Petitioners correctly observe that the medical
That chloromycetin was likewise a proper prescription is profession is one which, like the business of a common
best established by medical authority. Wilson, et. al., carrier, is affected with public interest. Moreover, they
inHarrisons Principle of Internal Medicine, 12th ed. write assert that since the law imposes upon common carriers
that chlorampenicol (which is the generic of the duty of observing extraordinary diligence in the

26 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
vigilance over the goods and for the safety of the NATIVIDAD (Substituted by her children
passengers,40physicians and surgeons should have the MARCELINO AGANA III, ENRIQUE AGANA, JR.,
same duty toward their patients.41 They also contend EMMA AGANA ANDAYA, JESUS AGANA, and
that the Court of Appeals erred when it allegedly RAYMUND AGANA) and ENRIQUE
assumed that the level of medical practice is lower in AGANA, Petitioners,
Iligan City, thereby reducing the standard of care and vs.
degree of diligence required from physicians and JUAN FUENTES, Respondent.
surgeons in Iligan City.
x- - - - - - - - - - - - - - - - - - - -- - - - x
The standard of extraordinary diligence is peculiar to
G.R. No. 127590 January 31, 2007
common carriers. The Civil Code provides:
MIGUEL AMPIL, Petitioner,
Art. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to NATIVIDAD AGANA and ENRIQUE
observe extraordinary diligence in the vigilance over the AGANA, Respondents.
goods and for the safety of the passengers transported
by them, according to the circumstances of each DECISION
case. . . .
The practice of medicine is a profession engaged in only
by qualified individuals. It is a right earned through

Hospitals, having undertaken one of mankinds most

years of education, training, and by first obtaining a important and delicate endeavors, must assume the
license from the state through professional board grave responsibility of pursuing it with appropriate care.
examinations. Such license may, at any time and for The care and service dispensed through this high trust,
cause, be revoked by the government. In addition to however technical, complex and esoteric its character
state regulation, the conduct of doctors is also strictly may be, must meet standards of responsibility
governed by the Hippocratic Oath, an ancient code of commensurate with the undertaking to preserve and
discipline and ethical rules which doctors have imposed protect the health, and indeed, the very lives of those
upon themselves in recognition and acceptance of their placed in the hospitals keeping.1
great responsibility to society. Given these safeguards,
there is no need to expressly require of doctors the Assailed in these three consolidated petitions for review
observance of "extraordinary" diligence. As it is now, the on certiorari is the Court of Appeals Decision 2 dated
practice of medicine is already conditioned upon the September 6, 1996 in CA-G.R. CV No. 42062 and CA-
highest degree of diligence. And, as we have already G.R. SP No. 32198 affirming with modification the
noted, the standard contemplated for doctors is simply Decision3dated March 17, 1993 of the Regional Trial
Court (RTC), Branch 96, Quezon City in Civil Case No.
the reasonable average merit among ordinarily good
Q-43322 and nullifying its Order dated September 21,
physicians. That is reasonable diligence for doctors or,
as the Court of Appeals called it, the reasonable "skill
and competence . . . that a physician in the same or
The facts, as culled from the records, are:
similar locality . . . should apply."
On April 4, 1984, Natividad Agana was rushed to the
WHEREFORE, the instant petition is DENIED and the Medical City General Hospital (Medical City Hospital)
decision of the Court of Appeals is AFFIRMED. because of difficulty of bowel movement and bloody
anal discharge. After a series of medical examinations,
SO ORDERED. Dr. Miguel Ampil, petitioner in G.R. No. 127590,
diagnosed her to be suffering from "cancer of the
G.R. No. 126297 January 31, 2007 sigmoid."

PROFESSIONAL SERVICES, INC., Petitioner, On April 11, 1984, Dr. Ampil, assisted by the medical
vs. staff4 of the Medical City Hospital, performed an anterior
NATIVIDAD and ENRIQUE AGANA, Respondents. resection surgery on Natividad. He found that the
malignancy in her sigmoid area had spread on her left
x-----------------------x 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,
G.R. No. 126467 January 31, 2007

27 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
respondent in G.R. No. 126467, to perform On November 12, 1984, Natividad and her husband filed
hysterectomy on her. with the RTC, Branch 96, Quezon City a complaint for
damages against the Professional Services, Inc. (PSI),
After Dr. Fuentes had completed the hysterectomy, Dr. owner of the Medical City Hospital, Dr. Ampil, and Dr.
Ampil took over, completed the operation and closed the Fuentes, docketed as Civil Case No. Q-43322. They
incision. alleged that the latter are liable for negligence for
leaving two pieces of gauze inside Natividads body and
However, the operation appeared to be flawed. In the malpractice for concealing their acts of negligence.
corresponding Record of Operation dated April 11, 1984,
the attending nurses entered these remarks: Meanwhile, Enrique Agana also filed with the
Professional Regulation Commission (PRC) an
"sponge count lacking 2 administrative complaint for gross negligence and
malpractice against Dr. Ampil and Dr. Fuentes, docketed
as Administrative Case No. 1690. The PRC Board of
"announced to surgeon searched (sic) done but to no
Medicine heard the case only with respect to Dr.
avail continue for closure."
Fuentes because it failed to acquire jurisdiction over Dr.
Ampil who was then in the United States.
On April 24, 1984, Natividad was released from the
hospital. Her hospital and medical bills, including the
On February 16, 1986, pending the outcome of the
doctors fees, amounted to P60,000.00.
above cases, Natividad died and was duly substituted
by her above-named children (the Aganas).
After a couple of days, Natividad complained of
excruciating pain in her anal region. She consulted both
On March 17, 1993, the RTC rendered its Decision in
Dr. Ampil and Dr. Fuentes about it. They told her that the
favor of the Aganas, finding PSI, Dr. Ampil and Dr.
pain was the natural consequence of the surgery. Dr.
Fuentes liable for negligence and malpractice, the
Ampil then recommended that she consult an oncologist
decretal part of which reads:
to examine the cancerous nodes which were not
removed during the operation.
WHEREFORE, judgment is hereby rendered for the
plaintiffs ordering the defendants PROFESSIONAL
On May 9, 1984, Natividad, accompanied by her
husband, went to the United States to seek further
FUENTES to pay to the plaintiffs, jointly and severally,
treatment. After four months of consultations and
except in respect of the award for exemplary damages
laboratory examinations, Natividad was told she was
and the interest thereon which are the liabilities of
free of cancer. Hence, she was advised to return to the
defendants Dr. Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
On August 31, 1984, Natividad flew back to the
Philippines, still suffering from pains. Two weeks
thereafter, her daughter found a piece of gauze a. The equivalent in Philippine Currency
protruding from her vagina. Upon being informed about of the total of US$19,900.00 at the rate
it, Dr. Ampil proceeded to her house where he managed of P21.60-US$1.00, as reimbursement
to extract by hand a piece of gauze measuring 1.5 of actual expenses incurred in the United
inches in width. He then assured her that the pains States of America;
would soon vanish.
b. The sum of P4,800.00 as travel taxes
Dr. Ampils assurance did not come true. Instead, the of plaintiffs and their physician daughter;
pains intensified, prompting Natividad to seek treatment
at the Polymedic General Hospital. While confined c. The total sum of P45,802.50,
there, Dr. Ramon Gutierrez detected the presence of representing the cost of hospitalization
another foreign object in her vagina -- a foul-smelling at Polymedic Hospital, medical fees, and
gauze measuring 1.5 inches in width which badly cost of the saline solution;
infected her vaginal vault. A recto-vaginal fistula had
formed in her reproductive organs which forced stool to 2. As moral damages, the sum of
excrete through the vagina. Another surgical operation P2,000,000.00;
was needed to remedy the damage. Thus, in October
1984, Natividad underwent another surgery. 3. As exemplary damages, the sum of

28 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
4. As attorneys fees, the sum of P250,000.00; WHEREFORE, except for the modification that the case
against defendant-appellant Dr. Juan Fuentes is hereby
5. Legal interest on items 1 (a), (b), and (c); 2; DISMISSED, and with the pronouncement that
and 3 hereinabove, from date of filing of the defendant-appellant Dr. Miguel Ampil is liable to
complaint until full payment; and reimburse defendant-appellant Professional Services,
Inc., whatever amount the latter will pay or had paid to
6. Costs of suit. the plaintiffs-appellees, the decision appealed from is
hereby AFFIRMED and the instant appeal DISMISSED.
Concomitant with the above, the petition for certiorari
and prohibition filed by herein defendant-appellant Dr.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an
Juan Fuentes in CA-G.R. SP No. 32198 is hereby
appeal to the Court of Appeals, docketed as CA-G.R.
GRANTED and the challenged order of the respondent
CV No. 42062.
judge dated September 21, 1993, as well as the alias
writ of execution issued pursuant thereto are hereby
Incidentally, on April 3, 1993, the Aganas filed with the NULLIFIED and SET ASIDE. The bond posted by the
RTC a motion for a partial execution of its Decision, petitioner in connection with the writ of preliminary
which was granted in an Order dated May 11, 1993. injunction issued by this Court on November 29, 1993 is
Thereafter, the sheriff levied upon certain properties of hereby cancelled.
Dr. Ampil and sold them for P451,275.00 and delivered
the amount to the Aganas.
Costs against defendants-appellants Dr. Miguel Ampil
and Professional Services, Inc.
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 Only Dr. Ampil filed a motion for reconsideration, but it
the properties of PSI and Dr. Fuentes. On September was denied in a Resolution7 dated December 19, 1996.
21, 1993, the RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file with the Hence, the instant consolidated petitions.
Court of Appeals a petition for certiorari and prohibition,
with prayer for preliminary injunction, docketed as CA- In G.R. No. 126297, PSI alleged in its petition that the
G.R. SP No. 32198. During its pendency, the Court of Court of Appeals erred in holding that: (1) it is estopped
Appeals issued a Resolution5 dated October 29, 1993 from raising the defense that Dr. Ampil is not its
granting Dr. Fuentes prayer for injunctive relief. employee; (2) it is solidarily liable with Dr. Ampil; and (3)
it is not entitled to its counterclaim against the Aganas.
On January 24, 1994, CA-G.R. SP No. 32198 was PSI contends that Dr. Ampil is not its employee, but a
consolidated with CA-G.R. CV No. 42062. mere consultant or independent contractor. As such, he
alone should answer for his negligence.
Meanwhile, on January 23, 1995, the PRC Board of
Medicine rendered its Decision6 in Administrative Case In G.R. No. 126467, the Aganas maintain that the Court
No. 1690 dismissing the case against Dr. Fuentes. The of Appeals erred in finding that Dr. Fuentes is not guilty
Board held that the prosecution failed to show that Dr. of negligence or medical malpractice, invoking the
Fuentes was the one who left the two pieces of gauze doctrine of res ipsa loquitur. They contend that the
inside Natividads body; and that he concealed such fact pieces of gauze are prima facie proofs that the operating
from Natividad. surgeons have been negligent.

On September 6, 1996, the Court of Appeals rendered Finally, in G.R. No. 127590, Dr. Ampil asserts that the
its Decision jointly disposing of CA-G.R. CV No. 42062 Court of Appeals erred in finding him liable for
and CA-G.R. SP No. 32198, thus: 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.

29 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
For our resolution are these three vital issues: first, has been closed is at least prima facie negligence by
whether the Court of Appeals erred in holding Dr. Ampil the operating surgeon.8 To put it simply, such act is
liable for negligence and malpractice; second, whether considered so inconsistent with due care as to raise an
the Court of Appeals erred in absolving Dr. Fuentes of inference of negligence. There are even legions of
any liability; and third, whether PSI may be held authorities to the effect that such act is negligence per
solidarily liable for the negligence of Dr. Ampil. se.9

I - G.R. No. 127590 Of course, the Court is not blind to the reality that there
are times when danger to a patients life precludes a
Whether the Court of Appeals Erred in Holding Dr. Ampil surgeon from further searching missing sponges or
foreign objects left in the body. But this does not leave
Liable for Negligence and Malpractice. 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,
Dr. Ampil, in an attempt to absolve himself, gears the
because of the dangers attendant upon delay, still, it is
Courts attention to other possible causes of Natividads
his legal duty to so inform his patient within a
detriment. He argues that the Court should not discount
reasonable time thereafter by advising her of what he
either of the following possibilities: first, Dr. Fuentes left
had been compelled to do. This is in order that she
the gauzes in Natividads body after performing
might seek relief from the effects of the foreign object
hysterectomy; second, the attending nurses erred in
left in her body as her condition might permit. The ruling
counting the gauzes; and third, the American doctors
in Smith v. Zeagler10 is explicit, thus:
were the ones who placed the gauzes in Natividads
The removal of all sponges used is part of a surgical
operation, and when a physician or surgeon fails to
Dr. Ampils arguments are purely conjectural and without
remove a sponge he has placed in his patients body
basis. Records show that he did not present any
that should be removed as part of the operation, he
evidence to prove that the American doctors were the
thereby leaves his operation uncompleted and creates a
ones who put or left the gauzes in Natividads body.
new condition which imposes upon him the legal duty of
Neither did he submit evidence to rebut the correctness
calling the new condition to his patients attention, and
of the record of operation, particularly the number of
endeavoring with the means he has at hand to minimize
gauzes used. As to the alleged negligence of Dr.
and avoid untoward results likely to ensue therefrom.
Fuentes, we are mindful that Dr. Ampil examined his (Dr.
Fuentes) work and found it in order.
Here, Dr. Ampil did not inform Natividad about the
missing two pieces of gauze. Worse, he even misled her
The glaring truth is that all the major circumstances,
that the pain she was experiencing was the ordinary
taken together, as specified by the Court of Appeals,
consequence of her operation. Had he been more
directly point to Dr. Ampil as the negligent party, thus:
candid, Natividad could have taken the immediate and
appropriate medical remedy to remove the gauzes from
First, it is not disputed that the surgeons used her body. To our mind, what was initially an act of
gauzes as sponges to control the bleeding of the negligence by Dr. Ampil has ripened into a deliberate
patient during the surgical operation. wrongful act of deceiving his patient.

Second, immediately after the operation, the This is a clear case of medical malpractice or more
nurses who assisted in the surgery noted in their appropriately, medical negligence. To successfully
report that the sponge count (was) lacking 2; pursue this kind of case, a patient must only prove that a
that such anomaly was announced to surgeon health care provider either failed to do something which
and that a search was done but to no avail a reasonably prudent health care provider would have
prompting Dr. Ampil to continue for closure x x done, or that he did something that a reasonably
x. prudent provider would not have done; and that failure
or action caused injury to the patient. 11 Simply put, the
Third, after the operation, two (2) gauzes were elements are duty, breach, injury and proximate
extracted from the same spot of the body of Mrs. causation. Dr, Ampil, as the lead surgeon, had the duty
Agana where the surgery was performed. to remove all foreign objects, such as gauzes, from
Natividads body before closure of the incision. When he
An operation requiring the placing of sponges in the failed to do so, it was his duty to inform Natividad about
incision is not complete until the sponges are properly it. Dr. Ampil breached both duties. Such breach caused
removed, and it is settled that the leaving of sponges or injury to Natividad, necessitating her further examination
other foreign substances in the wound after the incision by American doctors and another surgery. That Dr.

30 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
Ampils negligence is the proximate cause12 of It was duly established that Dr. Ampil was the lead
Natividads injury could be traced from his act of closing surgeon during the operation of Natividad. He requested
the incision despite the information given by the the assistance of Dr. Fuentes only to perform
attending nurses that two pieces of gauze were still hysterectomy when he (Dr. Ampil) found that the
missing. That they were later on extracted from malignancy in her sigmoid area had spread to her left
Natividads vagina established the causal link between ovary. Dr. Fuentes performed the surgery and thereafter
Dr. Ampils negligence and the injury. And what further reported and showed his work to Dr. Ampil. The latter
aggravated such injury was his deliberate concealment examined it and finding everything to be in order,
of the missing gauzes from the knowledge of Natividad allowed Dr. Fuentes to leave the operating room. Dr.
and her family. Ampil then resumed operating on Natividad. He was
about to finish the procedure when the attending nurses
II - G.R. No. 126467 informed him that two pieces of gauze were missing. A
"diligent search" was conducted, but the misplaced
Whether the Court of Appeals Erred in Absolving 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
Dr. Fuentes of any Liability
the hospital.
The Aganas assailed the dismissal by the trial court of
Under the "Captain of the Ship" rule, the operating
the case against Dr. Fuentes on the ground that it is
surgeon is the person in complete charge of the surgery
contrary to the doctrine of res ipsa loquitur. According to
room and all personnel connected with the operation.
them, the fact that the two pieces of gauze were left
Their duty is to obey his orders.16 As stated before, Dr.
inside Natividads body is a prima facie evidence of Dr.
Ampil was the lead surgeon. In other words, he was the
Fuentes negligence.
"Captain of the Ship." That he discharged such role is
evident from his following conduct: (1) calling Dr.
We are not convinced. Fuentes to perform a hysterectomy; (2) examining the
work of Dr. Fuentes and finding it in order; (3) granting
Literally, res ipsa loquitur means "the thing speaks for Dr. Fuentes permission to leave; and (4) ordering the
itself." It is the rule that the fact of the occurrence of an closure of the incision. To our mind, it was this act of
injury, taken with the surrounding circumstances, may ordering the closure of the incision notwithstanding that
permit an inference or raise a presumption of two pieces of gauze remained unaccounted for, that
negligence, or make out a plaintiffs prima facie case, caused injury to Natividads body. Clearly, the control
and present a question of fact for defendant to meet with and management of the thing which caused the injury
an explanation.13Stated differently, where the thing which was in the hands of Dr. Ampil, not Dr. Fuentes.
caused the injury, without the fault of the injured, is
under the exclusive control of the defendant and the In this jurisdiction, res ipsa loquitur is not a rule of
injury is such that it should not have occurred if he, substantive law, hence, does not per se create or
having such control used proper care, it affords constitute an independent or separate ground of liability,
reasonable evidence, in the absence of explanation that being a mere evidentiary rule.17 In other words, mere
the injury arose from the defendants want of care, and invocation and application of the doctrine does not
the burden of proof is shifted to him to establish that he dispense with the requirement of proof of negligence.
has observed due care and diligence.14 Here, the negligence was proven to have been
committed by Dr. Ampil and not by Dr. Fuentes.
From the foregoing statements of the rule, the requisites
for the applicability of the doctrine of res ipsa loquitur III - G.R. No. 126297
are: (1) the occurrence of an injury; (2) the thing which
caused the injury was under the control and
Whether PSI Is Liable for the Negligence of Dr. Ampil
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 The third issue necessitates a glimpse at the historical
used proper care; and (4) the absence of explanation by development of hospitals and the resulting theories
the defendant. Of the foregoing requisites, the most concerning their liability for the negligence of physicians.
instrumental is the "control and management of the
thing which caused the injury."15 Until the mid-nineteenth century, hospitals were
generally charitable institutions, providing medical
We find the element of "control and management of the services to the lowest classes of society, without regard
thing which caused the injury" to be wanting. Hence, the for a patients ability to pay.18 Those who could afford
doctrine of res ipsa loquitur will not lie. medical treatment were usually treated at home by their
doctors.19 However, the days of house calls and

31 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
philanthropic health care are over. The modern health and pharmacists, are not "employees" under this article
care industry continues to distance itself from its because the manner in which they perform their work is
charitable past and has experienced a significant not within the control of the latter (employer). In other
conversion from a not-for-profit health care to for-profit words, professionals are considered personally liable for
hospital businesses. Consequently, significant changes the fault or negligence they commit in the discharge of
in health law have accompanied the business-related their duties, and their employer cannot be held liable for
changes in the hospital industry. One important legal such fault or negligence. In the context of the present
change is an increase in hospital liability for medical case, "a hospital cannot be held liable for the fault or
malpractice. Many courts now allow claims for hospital negligence of a physician or surgeon in the treatment or
vicarious liability under the theories of respondeat operation of patients."21
superior, apparent authority, ostensible authority, or
agency by estoppel. 20 The foregoing view is grounded on the traditional notion
that the professional status and the very nature of the
In this jurisdiction, the statute governing liability for physicians calling preclude him from being classed as
negligent acts is Article 2176 of the Civil Code, which an agent or employee of a hospital, whenever he acts in
reads: a professional capacity.22 It has been said that medical
practice strictly involves highly developed and
Art. 2176. Whoever by act or omission causes damage specialized knowledge,23 such that physicians are
to another, there being fault or negligence, is obliged to generally free to exercise their own skill and judgment in
pay for the damage done. Such fault or negligence, if rendering medical services sans interference. 24 Hence,
there is no pre-existing contractual relation between the when a doctor practices medicine in a hospital setting,
parties, is called a quasi-delict and is governed by the the hospital and its employees are deemed to subserve
provisions of this Chapter. him in his ministrations to the patient and his actions are
of his own responsibility.25
A derivative of this provision is Article 2180, the rule
governing vicarious liability under the doctrine of The case of Schloendorff v. Society of New York
respondeat superior, thus: Hospital26 was then considered an authority for this view.
The "Schloendorff doctrine" regards a physician, even if
ART. 2180. The obligation imposed by Article 2176 is employed by a hospital, as an independent contractor
demandable not only for ones own acts or omissions, because of the skill he exercises and the lack of control
but also for those of persons for whom one is exerted over his work. Under this doctrine, hospitals are
responsible. exempt from the application of the respondeat superior
principle for fault or negligence committed by physicians
in the discharge of their profession.
x x x x
x x
However, the efficacy of the foregoing doctrine has
weakened with the significant developments in medical
The owners and managers of an establishment or
care. Courts came to realize that modern hospitals are
enterprise are likewise responsible for damages caused
increasingly taking active role in supplying and
by their employees in the service of the branches in
regulating medical care to patients. No longer were a
which the latter are employed or on the occasion of their
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
Employers shall be liable for the damages caused by Court of Appeals deviated from the Schloendorff
their employees and household helpers acting within the doctrine, noting that modern hospitals actually do far
scope of their assigned tasks even though the former more than provide facilities for treatment. Rather, they
are not engaged in any business or industry. regularly employ, on a salaried basis, a large staff of
physicians, interns, nurses, administrative and manual
x x x x workers. They charge patients for medical care and
x x treatment, even collecting for such services through
legal action, if necessary. The court then concluded that
The responsibility treated of in this article shall cease there is no reason to exempt hospitals from the
when the persons herein mentioned prove that they universal rule of respondeat superior.
observed all the diligence of a good father of a family to
prevent damage. In our shores, the nature of the relationship between the
hospital and the physicians is rendered inconsequential
A prominent civilist commented that professionals in view of our categorical pronouncement in Ramos v.
engaged by an employer, such as physicians, dentists, Court of Appeals28 that for purposes of apportioning

32 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
responsibility in medical negligence cases, an employer- But the Ramos pronouncement is not our only basis in
employee relationship in effect exists between hospitals sustaining PSIs liability. Its liability is also anchored
and their attending and visiting physicians. This Court upon the agency principle of apparent authority or
held: agency by estoppel and the doctrine of corporate
negligence which have gained acceptance in the
"We now discuss the responsibility of the hospital in this determination of a hospitals liability for negligent acts of
particular incident. The unique practice (among private health professionals. The present case serves as a
hospitals) of filling up specialist staff with attending and perfect platform to test the applicability of these
visiting "consultants," who are allegedly not hospital doctrines, thus, enriching our jurisprudence.
employees, presents problems in apportioning
responsibility for negligence in medical malpractice Apparent authority, or what is sometimes referred to as
cases. However, the difficulty is more apparent than the "holding
out" theory, or doctrine of ostensible agency or agency
In the first place, hospitals exercise significant control in by estoppel,29 has its origin from the law of agency. It
the hiring and firing of consultants and in the conduct of imposes liability, not as the result of the reality of a
their work within the hospital premises. Doctors who contractual relationship, but rather because of the
apply for consultant slots, visiting or attending, are actions of a principal or an employer in somehow
required to submit proof of completion of residency, their misleading the public into believing that the relationship
educational qualifications, generally, evidence of or the authority exists.30 The concept is essentially one
accreditation by the appropriate board (diplomate), of estoppel and has been explained in this manner:
evidence of fellowship in most cases, and references.
These requirements are carefully scrutinized by "The principal is bound by the acts of his agent with the
members of the hospital administration or by a review apparent authority which he knowingly permits the agent
committee set up by the hospital who either accept or to assume, or which he holds the agent out to the public
reject the application. x x x. as possessing. The question in every case is whether
the principal has by his voluntary act placed the agent in
After a physician is accepted, either as a visiting or such a situation that a person of ordinary prudence,
attending consultant, he is normally required to attend conversant with business usages and the nature of the
clinico-pathological conferences, conduct bedside particular business, is justified in presuming that such
rounds for clerks, interns and residents, moderate grand agent has authority to perform the particular act in
rounds and patient audits and perform other tasks and question.31
responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege The applicability of apparent authority in the field of
of admitting patients into the hospital. In addition to hospital liability was upheld long time ago in Irving v.
these, the physicians performance as a specialist is Doctor Hospital of Lake Worth, Inc. 32 There, it was
generally evaluated by a peer review committee on the explicitly stated that "there does not appear to be any
basis of mortality and morbidity statistics, and feedback rational basis for excluding the concept of apparent
from patients, nurses, interns and residents. A authority from the field of hospital liability." Thus, in
consultant remiss in his duties, or a consultant who cases where it can be shown that a hospital, by its
regularly falls short of the minimum standards actions, has held out a particular physician as its agent
acceptable to the hospital or its peer review committee, and/or employee and that a patient has accepted
is normally politely terminated. treatment from that physician in the reasonable belief
that it is being rendered in behalf of the hospital, then
In other words, private hospitals, hire, fire and exercise the hospital will be liable for the physicians negligence.
real control over their attending and visiting consultant
staff. While consultants are not, technically employees, Our jurisdiction recognizes the concept of an agency by
x x x, the control exercised, the hiring, and the right to implication or estoppel. Article 1869 of the Civil Code
terminate consultants all fulfill the important hallmarks of reads:
an employer-employee relationship, with the exception
of the payment of wages. In assessing whether such a ART. 1869. Agency may be express, or implied from the
relationship in fact exists, the control test is determining. acts of the principal, from his silence or lack of action, or
Accordingly, on the basis of the foregoing, we rule that his failure to repudiate the agency, knowing that another
for the purpose of allocating responsibility in medical person is acting on his behalf without authority.
negligence cases, an employer-employee relationship in
effect exists between hospitals and their attending and
In this case, PSI publicly displays in the lobby of the
visiting physicians. "
Medical City Hospital the names and specializations of
the physicians associated or accredited by it, including

33 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
those of Dr. Ampil and Dr. Fuentes. We concur with the Recent years have seen the doctrine of corporate
Court of Appeals conclusion that it "is now estopped negligence as the judicial answer to the problem of
from passing all the blame to the physicians whose allocating hospitals liability for the negligent acts of
names it proudly paraded in the public directory leading health practitioners, absent facts to support the
the public to believe that it vouched for their skill and application of respondeat superior or apparent authority.
competence." Indeed, PSIs act is tantamount to holding Its formulation proceeds from the judiciarys
out to the public that Medical City Hospital, through its acknowledgment that in these modern times, the duty of
accredited physicians, offers quality health care providing quality medical service is no longer the sole
services. By accrediting Dr. Ampil and Dr. Fuentes and prerogative and responsibility of the physician. The
publicly advertising their qualifications, the hospital modern hospitals have changed structure. Hospitals
created the impression that they were its agents, now tend to organize a highly professional medical staff
authorized to perform medical or surgical services for its whose competence and performance need to be
patients. As expected, these patients, Natividad being monitored by the hospitals commensurate with their
one of them, accepted the services on the reasonable inherent responsibility to provide quality medical care.35
belief that such were being rendered by the hospital or
its employees, agents, or servants. The trial court The doctrine has its genesis in Darling v. Charleston
correctly pointed out: Community Hospital.36 There, the Supreme Court of
Illinois held that "the jury could have found a hospital
x x x regardless of the education and status in life of the negligent, inter alia, in failing to have a sufficient number
patient, he ought not be burdened with the defense of of trained nurses attending the patient; failing to require
absence of employer-employee relationship between a consultation with or examination by members of the
the hospital and the independent physician whose name hospital staff; and failing to review the treatment
and competence are certainly certified to the general rendered to the patient." On the basis of Darling, other
public by the hospitals act of listing him and his jurisdictions held that a hospitals corporate negligence
specialty in its lobby directory, as in the case herein. The extends to permitting a physician known to be
high costs of todays medical and health care should at incompetent to practice at the hospital. 37 With the
least exact on the hospital greater, if not broader, legal passage of time, more duties were expected from
responsibility for the conduct of treatment and surgery hospitals, among them: (1) the use of reasonable care in
within its facility by its accredited physician or surgeon, the maintenance of safe and adequate facilities and
regardless of whether he is independent or employed."33 equipment; (2) the selection and retention of competent
physicians; (3) the overseeing or supervision of all
The wisdom of the foregoing ratiocination is easy to persons who practice medicine within its walls; and (4)
discern. Corporate entities, like PSI, are capable of the formulation, adoption and enforcement of adequate
acting only through other individuals, such as rules and policies that ensure quality care for its
physicians. If these accredited physicians do their job patients.38 Thus, in Tucson Medical Center, Inc. v.
well, the hospital succeeds in its mission of offering Misevich,39 it was held that a hospital, following the
quality medical services and thus profits financially. doctrine of corporate responsibility, has the duty to see
Logically, where negligence mars the quality of its that it meets the standards of responsibilities for the
services, the hospital should not be allowed to escape care of patients. Such duty includes the proper
liability for the acts of its ostensible agents. supervision of the members of its medical staff. And in
Bost v. Riley,40 the court concluded that a patient who
We now proceed to the doctrine of corporate negligence enters a hospital does so with the reasonable
or corporate responsibility. 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
One allegation in the complaint in Civil Case No. Q-
administered by the physicians practicing in its
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 In the present case, it was duly established that PSI
Fuentes and its nursing staff, resident doctors, and operates the Medical City Hospital for the purpose and
medical interns who assisted Drs. Ampil and Fuentes in under the concept of providing comprehensive medical
the performance of their duties as surgeons." 34 Premised services to the public. Accordingly, it has the duty to
on the doctrine of corporate negligence, the trial court exercise reasonable care to protect from harm all
held that PSI is directly liable for such breach of duty. patients admitted into its facility for medical treatment.
Unfortunately, PSI failed to perform such duty. The
findings of the trial court are convincing, thus:
We agree with the trial court.
x x x PSIs liability is traceable to its failure to conduct an
investigation of the matter reported in the nota bene of

34 | K I N D R E D T O R T S / M E D I C A L M A L P R A C T I C E
the count nurse. Such failure established PSIs part in the facilities was employing a method of treatment or
the dark conspiracy of silence and concealment about care which fell below the recognized standard of care.
the gauzes. Ethical considerations, if not also legal,
dictated the holding of an immediate inquiry into the Subsequent to the Purcell decision, the Arizona Court of
events, if not for the benefit of the patient to whom the Appeals held that a hospital has certain inherent
duty is primarily owed, then in the interest of arriving at responsibilities regarding the quality of medical care
the truth. The Court cannot accept that the medical and furnished to patients within its walls and it must meet the
the healing professions, through their members like standards of responsibility commensurate with this
defendant surgeons, and their institutions like PSIs undertaking. Beeck v. Tucson General Hospital, 18 Ariz.
hospital facility, can callously turn their backs on and App. 165, 500 P. 2d 1153 (1972). This court has
disregard even a mere probability of mistake or confirmed the rulings of the Court of Appeals that a
negligence by refusing or failing to investigate a report hospital has the duty of supervising the competence of
of such seriousness as the one in Natividads case. the doctors on its staff. x x x.

It is worthy to note that Dr. Ampil and Dr. Fuentes x x x x x x

operated on Natividad with the assistance of the Medical
City Hospitals staff, composed of resident doctors, In the amended complaint, the plaintiffs did plead that
nurses, and interns. As such, it is reasonable to the operation was performed at the hospital with its
conclude that PSI, as the operator of the hospital, has knowledge, aid, and assistance, and that the negligence
actual or constructive knowledge of the procedures of the defendants was the proximate cause of the
carried out, particularly the report of the attending patients injuries. We find that such general allegations
nurses that the two pieces of gauze were missing. In of negligence, along with the evidence produced at the
Fridena v. Evans,41 it was held that a corporation is trial of this case, are sufficient to support the hospitals
bound by the knowledge acquired by or notice given to liability based on the theory of negligent supervision."
its agents or officers within the scope of their authority
and in reference to a matter to which their authority
Anent the corollary issue of whether PSI is solidarily
extends. This means that the knowledge of any of the
liable with Dr. Ampil for damages, let it be emphasized
staff of Medical City Hospital constitutes knowledge of
that PSI, apart from a general denial of its responsibility,
PSI. Now, the failure of PSI, despite the attending
failed to adduce evidence showing that it exercised the
nurses report, to investigate and inform Natividad
diligence of a good father of a family in the accreditation
regarding the missing gauzes amounts to callous
and supervision of the latter. In neglecting to offer such
negligence. Not only did PSI breach its duties to
proof, PSI failed to discharge its burden under the last
oversee or supervise all persons who practice medicine
paragraph of Article 2180 cited earlier, and, therefore,
within its walls, it also failed to take an active step in
must be adjudged solidarily liable with Dr. Ampil.
fixing the negligence committed. This renders PSI, not
Moreover, as we have discussed, PSI is also directly
only vicariously liable for the negligence of Dr. Ampil
liable to the Aganas.
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: 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
x x x In recent years, however, the duty of care owed to
possess that reasonable degree of learning, skill and
the patient by the hospital has expanded. The emerging
experience required by his profession. At the same time,
trend is to hold the hospital responsible where the
he must apply reasonable care and diligence in the
hospital has failed to monitor and review medical
exercise of his skill and the application of his knowledge,
services being provided within its walls. See Kahn
and exert his best judgment.
Hospital Malpractice Prevention, 27 De Paul . Rev. 23
WHEREFORE, we DENY all the petitions and AFFIRM
the challenged Decision of the Court of Appeals in CA-
Among the cases indicative of the emerging trend is
G.R. CV No. 42062 and CA-G.R. SP No. 32198.
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 Costs against petitioners PSI and Dr. Miguel Ampil.
practitioner because he was an independent contractor
within the hospital. The Court of Appeals pointed out SO ORDERED.
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

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