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.
ROMMEL RAMOS, ROY RODERICK RAMOS and
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

00 by (Rollo. then counsel on record of petitioners. The mistakenly addressed as "Atty. or on 12 April GRANTED but only insofar as appellees are 1996. 9Meanwhile. However. SO motion for extension of time and gave petitioners ORDERED. Ligsay. The decretal portion of the decision of the appellate court reads: Even assuming admissibility of the Motion for the Reconsideration. to wit: 2) the sum of P100. reconsideration was submitted on 4 July 1995. the trial court. 1995. however. subject March 1996. 7 Reconsideration expired on June 24. for the foregoing premises the Comment/Opposition. RESPONDENTS DID NOT CAUSE THE petitioners engaged the services of another counsel. the appellate reckoned from November 15. For that Decision. 12) was denied. UNFORTUNATE COMATOSE CONDITION OF Sillano. was received by the Private respondents seasonably interposed an appeal to Court of Appeals already on July 4. jointly and severally. Rogelio referred the decision of the Petitioners assail the decision of the Court of Appeals on appellate court to a new lawyer. but after considering the WHEREFORE.542. to replace Atty. 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. and merit. Atty. hand. CALDERON AND DR. Computation wise. the former. 1992. The motion for GUTIERREZ. 10 the complaint below against the appellants is hereby ordered DISMISSED. SO ORDERED. JAMORA. plus legal interest for for certiorari under Rule 45. Atty. necessarily. the Motion for Extension damages and the further sum of P200. dated 29 May 1995. We said in our Resolution on July 25. precisely.000. reconsideration contending that the period to file the the former the following sums of money. Despite this explanation. is hereby DENIED. The appellate court rendered a the 15-day period already passed. decision as early as June 9. for lack of appealed decision is hereby REVERSED. the latter should be denied. filed with IN PUTTING MUCH RELIANCE ON THE the appellate court a motion for extension of time to file TESTIMONIES OF RESPONDENTS DRA. The Court granted the justice must be tempered with mercy. reversing the findings of alone. well within the copy of the decision. Ligsay. and. latter are ordered to pay. primarily on the ground that the fifteen-day to its being updated. was sent nor received by extended period given by the Court. on the other way of exemplary damages. It is. 1995. 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 . the period to file a Motion for SO ORDERED. (15) period for filing a motion for reconsideration had already expired. 1985 or in the total court still denied the motion to admit the motion for reconsideration of petitioners in its Resolution.000. Atty. Rogelio Ramos. a motion for reconsideration.00 as reasonable attorney's fees. 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. The due date fell on 27 May 1996. DRA. Atty. the Court of Appeals. The Motion for Reconsideration. Atty.25.000. On the same day. p.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. or four (4) days before the expiration of the reglementary period for filing a motion for I reconsideration. Ligsay.00 as of April 15. The next day. only on 20 the following grounds: June 1995.00 by way of moral be extended. 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. in turn.000. dated 29 sum of P632. of appellant De Los Santos Medical Center is Sillano on 11 April 1996. that the filing of a Motion for Reconsideration cannot 3) the sum of P800." No petition was filed on 9 May 1996. The counterclaim A copy of the above resolution was received by Atty. 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.000. the Coronel Law Office. admitted in the latter Motion that plaintiffs/appellees received a copy of the 4) the costs of the suit.

it is considered as merely evidentiary sufficient notice to speak of. Based on the other communications received and experience. 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 . 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. and denied the motion for reconsideration negligence. before resort After resolving the foregoing procedural issue. notice to a litigant without notice to his counsel on record is no However. Thus. that the Appeals was not sent to then counsel on record of accident arose from or was caused by the defendant's petitioners. 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. a copy of the want of care. res ipsa It is elementary that when a party is represented by loquitur is applied in conjunction with the doctrine of common knowledge. Hence. LOQUITUR. common knowledge. since a copy of the not a rule of substantive law and. 13 Where the court for having been filed beyond the reglementary period. 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. 20 Still. In their fact of the occurrence of an injury. in is attributable to the fact that the decision of the Court of the absence of explanation by the defendant. the delay in the or in the nature of a procedural rule. 12 private respondents contend that the petition surrounding circumstances. we shall to the doctrine may be allowed. the following requisites now look into the merits of the case. 16 Hence. the part of the person who controls the instrumentality no copy of the decision of the counsel on record. 19 In other already issued a second Resolution. 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. as a matter of common knowledge Ramos. as such. the very nature of certain types of by petitioner Rogelio Ramos. all notices should be sent to the party's lawyer at his given address. 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. dated 29 March words. 11 Before we discuss the merits of the case. the appellate court occurrences may justify an inference of negligence on apparently mistook him for the counsel on record. and present a question of fact Court of Appeals was validly dismissed by the appellate for defendant to meet with an explanation. may permit an inference or should not be given due course since the motion for raise a presumption of negligence. negligence may be deduced from the mere occurrence of the accident 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. It is simply a step in the process of such proof. it affords reasonable evidence. causing the injury in the absence of some explanation Petitioner. The accident is of a kind which ordinarily does loquitur to the instant case. Based on this. Rogelio of the postulate that. which superseded the earlier resolution issued on does not dispense with the requirement of proof of 25 July 1995.III assigned errors shall be tackled in relation to the res IN NOT APPLYING THE DOCTRINE OF RES IPSA ipsa loquitur doctrine. Thereafter. enough of the attending circumstances to invoke the filing of the present petition. or a mere procedural of convenience since filing of the motion for reconsideration cannot be taken it furnishes a substitute for. the Coronel Law Office. 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. counsel. the against petitioner. of petitioner. creating an inference or presumption of petition before us was submitted on time. and to thereby place on the defendant the burden of going forward with the proof. taken with the Comment. 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. mere invocation and application of the doctrine 1996. Moreover. since the Court of Appeals burden of producing specific proof of negligence. thing which caused the injury complained of is shown to be We do not agree. or make out a reconsideration of the petitioners on the decision of the plaintiff's prima faciecase. With a few exceptions. In fact. 18 It is regarded as a mode of proof. the the doctrine. 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. 17 Instead. much has been said that res ipsa loquitur is notice at all. In the present case. and relieves a plaintiff of. negligence. the first two not occur in the absence of someone's negligence. there can be no of liability.

the need for malpractice cases where a layman is able to say. It is caused by an instrumentality within the occurred. 32 injuries sustained on a healthy part of the must establish that the essential elements of the doctrine body which was not under. 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. 33 removal of the wrong part of the body when another part was intended. 29 Hence. 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 . 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. testimony as to the statements and merits of a diagnosis or of a scientific treatment. 22Such element of control must be shown to be doctrine in the following situations: leaving of a foreign within the dominion of the defendant. It is generally restricted to situations in ipsa loquitur is availed by the plaintiff. courts of other jurisdictions have applied the damage. giving rise to an application of the doctrine of res ipsa which. therefore. 21 ordinary conditions. 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. In order to have the object in the body of the patient after an benefit of the rule. permit a given inference. 23 treatment. 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. external appearances. 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. 25 The application of res ipsa loquitur in medical negligence cases Nevertheless. 28 Ordinarily. Resort to res ipsa loquitur is allowed because there is no other way. when the doctrine of res of each case. 2. 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. a plaintiff. the court is result. In the above requisites. 35 and loss of an eye while the patient plaintiff was application of this doctrine. the fundamental element is the "control of instrumentality" which caused the Thus. is whether or determine the proper standard of care. in cases particular scientific treatment did not produce the desired where theres ipsa loquitur is applicable. of were present in a particular incident. as a expert medical testimony is dispensed with because the matter of common knowledge and observation. 36 among others. in addition to proving injury or damage. and operation. Thus. 38 The acts of physicians and surgeons. that the injury itself provides the proof of negligence. or why any may be given by non-expert witnesses. must show a situation where it is applicable. 39 Thus. res ipsa loquitur has under the influence of anesthetic. harm are themselves of such a character as to justify an inference of negligence as the cause of that harm. during or following an been applied when the circumstances attendant upon the operation for appendicitis. 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. without the aid of expert testimony. if unexplained would themselves reasonably speak loquitur without medical evidence. under usual and eliminated. as automatically apply to all cases of medical negligence a matter of law. an inference of negligence may be drawn of customary professional activity in such operations. result of an operation or treatment was not where the court from its fund of common knowledge can accomplished. 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. However.26 as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed Although generally. 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. 37 A distinction must be made between the domain of medical science. depending upon the circumstances standard medical procedure. all that the exclusive control of the defendant or defendants. 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. treatment rendered followed the usual procedure of those only physicians and surgeons of skill and experience are skilled in that particular practice. 40 The real question.31 When the doctrine is appropriate. expert medical testimony is relied negligence. by which the patient can obtain redress for injury suffered by him. and not to matters that are failure to secure results. or in the area. 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. 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. it does not determine whether a certain set of circumstances does.

who are the operation or in the absence of negligence in the physicians-in-charge. this kind of situation does to the care. that the consequences of administration of justice dictates the application of res professional treatment were not as such as ipsa loquitur. Furthermore. Upon these facts and under these would ordinarily have followed if due care had circumstances the Court would be able to say. 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. incapacitated. 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 . However. Erlinda was damage sustained by Erlinda in her brain prior to a neurologically sound and. Moreover. 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. 43 where the Kansas Supreme Court in undergoing surgery. 44 a patient while under anesthesia. In the present case. Upon these facts and under these body (the brain) is injured or destroyed while the patient circumstances a layman would be able to say. she was under the influence of anesthetics which Ordinarily a person being put under anesthesia rendered her unconscious. but he consequence of administering such anesthesia if the suffered irreparable damage and injury proper procedure was followed. Thus. conditions and circumstances Nonetheless. upon all these initial determination a exclusive control of the instrumentalities of case is made out for the application of the doctrine anesthesia. On that fateful day she delivered her person over to the care. 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. loquitur coverage. Thus. we hold that a practical observation. petitioner Erlinda could administration of an anesthetic. the rendering him decerebrate and totally instruments used in the administration of anesthesia. 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. is unconscious and under the immediate and exclusive as a matter of common knowledge and control of the physicians. were all under the not ordinarily occur in the process of a mastoid exclusive control of private respondents. application of res ipsa loquitur. 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. 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. Obviously. was likewise physically fit in mind and body. In fact. brain damage. 42 her gall bladder. Likewise. As will hereinafter be explained. 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. as a been exercised. At the time of submission. if negligence attended the management and care of the Here the plaintiff could not have been guilty of patient. The injury was one which does including the endotracheal tube. if he could. Each case must be viewed in its own Indeed. Bridwell. 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. the principles enunciated in the aforequoted light and scrutinized in order to be within the res ipsa case apply with equal force here. and in the use not have been guilty of contributory negligence because and employment of an endoctracheal tube. or to any and all anesthesia cases. Normally. 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. matter of common knowledge and observation. Upon all the facts. the control over her. At endotracheal tube. she went out of the operating room applying theres ipsa loquitur stated: already decerebrate and totally incapacitated. which Erlinda sustained. 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.interventions. but the operation was never performed. by evidence of exculpation. without vs. except for a few minor scheduled gall bladder operation presents a case for the discomforts. of res ipsa loquitur.

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

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

as a ATTY. Gutierrez failed dealing with human lives lie at the core of the to perform pre-operative evaluation of the patient which. long way towards decreasing patient morbidity and mortality. There is ample time to explain the alleged short neck and protruding teeth of Erlinda) a method of anesthesia. therefore. there is hardly enough time available for the normally involves investigating the following: cervical spine fastidious demands of pre-operative procedure so that mobility. in these cases. she had all the time to Erlinda was done by her. Respondent Dra. 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. Q: Would you agree. who required pre-operative evaluation would escape advanced private respondents' theory that the oxygen unnoticed. Until the day of the operation. on uvula and the thyromental distance. Gutierrez tried to the drug. cases and normal cardio-pulmonary clearance physical examination and interpretation of laboratory like that. Respondent Dra. Gutierrez' act of seeing her cholecystectomy. on 17 June 1985. 53 It includes taking the anesthesiologist and in my case. the pre-operative assessment is conducted at least one day before the intended surgery. She was never saw the patient at the bedside. Pre. if at all. and only on the actual date of the to Erlinda. Thus. Her failure to in turn. Before this date. we now follow this medical procedure is. therefore. or pre-operative evaluation of respondent Dra. exceptional negligence and professional irresponsibility. Gutierrez. 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. muddle the difference between an elective surgery and Towards this end. no Erlinda's case was elective and this was known to prior consultations with. She negligently failed to take patient for the first time only an hour before the advantage of this important opportunity. Jamora. a determine if the faulty intubation is truly the proximate clear indicia of her negligence. In the case at bar. physician's centuries-old Hippocratic Oath. 54 The physical examination performed by the emergency and on cases that have an anesthesiologist is directed primarily toward the central abnormalities (sic). cause of Erlinda's comatose condition. As such. Hence. LIGSAY: means of defense. she physiological make-up and needs of Erlinda. Doctor. 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. 55 A thorough analysis of the patient's airway procedure. respondent Dra. however. make tracheal intubation difficult should be the anesthesiologist possesses the luxury of time to be studied. the exact opposite is true. hoping that she could to bronchospasm 59 mediated by her allergic response to get away with it. prominent central an anesthesiologist is able to see the patient only a few incisors. physical the other hand. introduced into her system. Thiopental Sodium. are operative procedures that can wait characteristics of the patient's upper airway that could for days. temporomandibular mobility. The measures cautioning prudence and vigilance in Having established that respondent Dra. they presented Dr. her scheduled operative procedure was. depends on the operative procedure of the the day before elective surgery. traditionally. However. and their thorough examination of the patient's airway would go a possible hazards for purposes of informed consent. weeks or even months. 57 Where the need arises. 56 Thus. Respondent Dra. In her testimony she asserted: deprivation which led to anoxic encephalopathy. cardiovascular system. 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. Gutierrez. Usually. an act of attempt to exculpate herself must fail. diseased or artificial teeth. I usually don't do it except on data. In an emergency airway. lungs and upper However. gain the trust and confidence of the patient? operative evaluation and preparation for anesthesia DRA. 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 .observation was made only as an afterthought. ability to visualize minutes before surgery. with elective patient's medical history. review of current drug therapy. when the patient is relaxed and cooperative. resulted to a wrongful intubation. make a thorough evaluation of Erlinda's case prior to the respondent Dra. as when initial at the patient's beside to do a proper interview and assessment indicates possible problems (such as the clinical evaluation. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself. Elective procedures. GUTIERREZ: begins when the anesthesiologist reviews the patient's A: As I said in my previous statement. Gutierrez was unaware of the operation and prepare her for anesthesia. 58 nervous system. the drugs to be used. it medical records and visits with the patient.

Dr. is clear that the appellate court erred in giving weight to mediated processes. No evidence of stridor. Jamora cannot be considered an the expertise of pulmonary medicine. it therefore properly advance expert opinion on allergic. Q: How many times have you used pentothal? In any case. apart from submitting testimony A: We do it in conjunction with the from a specialist in the wrong field. that Thiopental A: No. experience or training supported by his own admission that he formulated his which he is shown to possess. and training in the field of DR. as an expert would. the Thiopental-allergy theory vigorously A: No. may be received opinions on the drug not from the practical experience in evidence. internal medicine-allergy. gained by a specialist or expert in the administration and use of Sodium Pentothal on patients. one must reading certain references.63 Clearly. The resulting anoxic encephalopathy unacceptable. and against the weight of available evidence.to an unpredictable drug reaction to the short-acting anesthesia. he could not have been capable of disciplines of anesthesiology. to wit: have acquired special knowledge of the subject matter about which he or she is to testify. Dr. he is not a Dr. Opinion of expert witness. to qualify as an expert witness. authority in the field of anesthesiology simply because the anesthetic drug-induced. 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 . Dr. Dr. Sodium may have produced Erlinda's coma by Q: In other words. 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. belongs to the field of neurology. 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. Jamora is a bronchospasm alleged in this case is within the pulmonologist. private respondents' theory. but only from Generally. and clinical barbiturate. has no support pentothal is based only on what you have read in evidence. your knowledge about triggering an allergic mediated response. private respondents' anesthesiologist when they have to intubate intentionally avoided providing testimony by competent and our patient. witnesses states: The inappropriateness and absurdity of accepting Dr. did experience. Jamora's testimony as an expert in the pharmacologist and. could not have been administration of Thiopental Sodium. happens only very rarely. allergic mediated he is not an anesthesiologist. independent experts in the proper areas. — 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. Q: But not in particular when you practice pulmonology? Moreover. skill. either by the study of ATTY. skin reactions. allergology and properly enlightening the court about anesthesia pharmacology. 61 afterthought. LIGSAY: recognized authorities on the subject or by practical Q: In your line of expertise on pulmonology. 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. pentothal. then you feel that you can testify on pentothal here every anesthetic accident would be an act of God. 49. JAMORA: anesthesiology. with medical authority? Evidently. Jamora's field. On the basis of the foregoing transcript. Moreover. That is why I used references to support asserted by private respondents was a mere my claims. Oddly. Thiopental Sodium (Pentothal). We find the theory of private respondents pharmacology. allergic-mediated bronchospasm bronchospasm during my appendectomy. private respondents themselves admit that A: They used it on me. practice and procedure and their complications. Sec. I went into Thiopental induced. 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. of explaining to the court the pharmacologic and toxic effects of the supposed The provision in the rules of evidence 62 regarding expert culprit. skill. many bronchospastic-mediated pulmonary diseases are within First of all. capable. While admittedly. 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. Since Dr. as such.

injuries associated with anesthesia. 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. and without trial court.In view of the evidence at hand. intubation. As the Entry into the esophagus would certainly cause some so-called "captain of the ship. private respondents over three hours late for the latter's operation. mali yata ang pagkakapasok. In medical standards in pre-operative management and other words. 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. "Ang hirap ma. Had appropriate diligence and reasonable care been used in the pre-operative evaluation. as private respondents insist. moving or producing cause. which supports the contention that the second towards his patient. he shares equal responsibility for intubation was successful. 68 whenever it appears from the evidence in the case. 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. we are inclined to trachea." 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. 70 As stated beforehand. 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. an experienced anesthesiologist. 67 However. respondent Dra. Thus. esophagus instead of the lungs through the trachea. 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 . Because of contend that a second intubation was executed on Erlinda this. believe petitioners' stand that it was the faulty intubation the hallmark of a successful intubation. Proceeding from this event (cyanosis). The development of alerted by a thorough pre-operative evaluation. would have abdominal distention. In fact. to show that respondent Dr. that the act or omission played a substantial part in bringing about or actually causing the injury or damage. This No evidence exists on record. O lumalaki those variations together with a change in technique. cause which triggered the chain of events leading to Gutierrez failed to observe the proper pre-operative Erlinda's brain damage and. 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. 72 Having failed to observe common entered the esophagus instead of the respiratory tree. incident. faulty intubation is undeniably the proximate operation. instead of the intended endotracheal intubation. it could not be claimed. We do not think so. Gutierrez' negligence resulted intubation what actually took place was an esophageal in cerebral anoxia and eventual coma of Erlinda. 71 In ang tiyan. Orlino Hosaka as the head of the surgical team. and was in fact were already blue. her comatosed protocol which could have prevented this unfortunate condition. he had little or no time to confer with his and this one was successfully done. and that the injury The above conclusion is not without basis. As aptly explained by the efficient intervening cause." Thereafter. Hosaka had testimony of Dr. the same gave no guarantee of oxygen delivery. Respondent Dr. it was obviously too late. Hosaka. would have been easily overcome by a prior knowledge of intubate nito. Hosaka verified if respondent Due to the delay in the delivery of oxygen in her lungs Dra. 66 As stated in the it does not escape us that respondent Dr. Erlinda already suffered brain damage as a which the result would not have occurred. unbroken by any attempt. such distention indicates that air has entered the gastrointestinal tract through the We now determine the responsibility of respondent Dr. In fact. Furthermore. Erlinda showed signs of cyanosis. Gutierrez properly intubated the patient. witness Cruz noticed abdominal other words. together with respiratory had little difficulty going around the short neck and embarrassment indicates that the endotracheal tube protruding teeth. in second intubation was accomplished. anesthesiologist regarding the anesthesia delivery. no evidence on record exists withdrawn for the second attempt) was fairly significant. produces injury. 69 Nevertheless. Even granting that the tube was successfully inserted during the second natural and continuous sequence. respondent Dra. beyond private respondents' indicates that he was remiss in his professional duties bare claims. Gutierrez remarked. respondent Private respondents themselves admitted in their physician could have been much more prepared to meet testimony that the first intubation was a failure. 65 It is the responsible for one-third (1/3) of deaths and serious dominant. intubation. adequately distention on the body of Erlinda. defects which respondent Dra. That abdominal task in the proper manner. cyanosis which was the proximate cause of Erlinda's comatose was again observed immediately after the second condition. 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. During intubation. that the Proximate cause has been defined as that which. ultimately.

conduct bedside it exercised over its physicians. with the exception of for the care of the patient estimated at P8. that they observed the diligence of a good father of a family These requirements are carefully scrutinized by to prevent damage. these. nurses. and feedback Appeals erred in accepting and relying on the from patients.We now discuss the responsibility of the hospital in this solidarily liable with respondent doctors for petitioner's particular incident. evidence of negligence is shown. 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. generally. apart from a reject the application. 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 . The unique practice (among private condition. the difficulty is only more apparent than real. as shown by the above discussions. Doctors who they have observed the diligence of a good father of the apply for "consultant" slots. In other words. maintain a clinic in the hospital. the P8000/monthly amount established Accordingly. and references. 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. visiting or attending. once educational qualifications. The trial court awarded a total of a point which respondent hospital asserts in denying all P632. the payment of wages.000. private respondents are solidarily liable for damages under Article 2176 79 of the Civil Code. 76 hospitals) of filling up specialist staff with attending and visiting "consultants. failed to adduce evidence showing that it exercised the diligence of a good father of a family in the After a physician is accepted. the physician's performance as a specialist is generally evaluated by a peer review committee on the Based on the foregoing.00. A testimonies of the witnesses for the private respondents. Upon these disquisitions we hold that is normally politely terminated. presents problems in apportioning for the negligence of its employee is found in Article responsibility for negligence in medical malpractice cases. teacher or employer) who should prove evidence of fellowship in most cases.00) in responsibility for the patient's condition. technically employees. the control compensatory damages to the plaintiff. are family to prevent damage. moderate grand such proof. In neglecting to offer rounds for clerks. In addition to responsible with its physicians for Erlinda's condition.000. or proof of a similar nature. physicians. he is normally required to attend evidence with regard to the degree of supervision which clinico-pathological conferences. While "consultants" are not. based on monthly expenses employer-employee relationship. At current levels. for the privilege of being able to last paragraph of Article 2180. 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. 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. respondent hospital. fire and exercise real control over their attending and visiting "consultant" We now come to the amount of damages due staff. 2180 of the Civil Code which considers a person However. The calculated effect exists between hospitals and their attending and amount was not even arrived at by looking at the actual visiting physicians. hire. the control test is determining. 78In other words. and/or for the privilege respondent hospital is consequently solidarily of admitting patients into the hospital. an employer-employee relationship in based care for a comatose individual. the burden shifts to the respondents accreditation by the appropriate board (diplomate). either as a visiting or hiring and supervision of the latter. (parent.00 pesos (should be P616." 74 who are allegedly not hospital The basis for holding an employer solidarily responsible employees. interns and residents. the question cost of proper hospice care for the patient. petitioners. we hold that the Court of basis of mortality and morbidity statistics. the hiring. their burden of proving negligence rests on the plaintiffs. on the basis of the foregoing. guardian. 75 This is particularly true with general denial of its responsibility over respondent respondent hospital. private hospitals. It failed to adduce attending consultant. or a consultant who Indeed. hospitals exercise significant control in relationship of patria potestas. respondent rounds and patient audits and perform other tasks and hospital thereby failed to discharge its burden under the responsibilities. This being the case. members of the hospital administration or by a review committee set up by the hospital who either accept or In the instant case. 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. Having failed to do this. negligence. interns and residents. "subject to its exercised. consultant remiss in his duties.000. while the required to submit proof of completion of residency. In assessing whether such a relationship in fact exists.

Describing the nature of the injury. and by a speculative. her left lower extremity at the distal left thigh just above the knee. one is entitled to an adequate compensation only for such pecuniary loss In Valenzuela vs. Valenzuela will In these cases. Feeding is done by victim in such cases to constantly come before the nasogastric tube. The care of the chronically ill for the purpose of providing a reason is that these damages cover two distinct phases. they were likely to arise only in the Our rules on actual or compensatory damages generally future. 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 . In the instant case for instance.000. 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.500. if they are to adequately and correctly respond functions of her left extremity. even with the use to the injury caused. temperate damages are appropriate. and one which would meet pecuniary loss certain paid for by Li). 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. actual or compensatory damages in instances where the injury is chronic and continuing. proper milieu adequate to meet minimum standards of care. The amount given Furthermore. the amount of damages which should be forever be deprived of the full ambulatory awarded. an award of P1. for their loved one in a facility which generally specializes in such care. while certain to occur.00 in temperate damages would therefore be reasonable. The Civil Code provides: would be grossly inadequate. In the instant case. as a consequence of an act of negligence has been completed and that the cost can be liquidated. it would be now much more in step with the However. the injury suffered that case. up to the time of beyond the period of hospitalization (which was trial. 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.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. 2199. Well for pecuniary loss incurred and proved. where the resulting injury might be continuing and possible future complications As a result of the accident. petitioners were able to provide only Given these considerations. should be one which compensates of state of the art prosthetic technology. should at least reflect the correct minimum cost of Having premised our award for compensatory damages proper care. should take into account the cost of proper pulmonary therapist to prevent the accumulation of care. Ma. Lourdes directly arising from the injury. Court of Appeals. And because of the unique And yet ideally. she has to be seen on a regular basis by a as temperate damages. are Valenzuela underwent a traumatic amputation of difficult to predict. secretions which can lead to respiratory complications. litigation. she will be required to undergo to be suffered but which could not. 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.000. Because of this. a comatose patient should remain in a nature of such cases. 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. However. for anything less he has duly proved. from the nature of adjustments in her prosthetic devise due to the the case.000. be made with certainty. 81 Art. though to a certain extent physical therapist to avoid muscle atrophy. — Except as provided by law or by stipulation. and were certain to be incurred by the plaintiff. 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. no incompatibility arises when both hospital or be transferred to a hospice specializing in the actual and temperate damages are provided for. Under the circumstances. We awarded P1.00 in moral damages in assume that at the time of litigation. the Court therein these provisions neglect to take into account those stated: situations. 82 this Court was confronted with a situation where the injury suffered by the suffered by him as he has duly proved. 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. result of the injury (amputation). as in this case. 80 In other words.

will have to live with the day to day occupational rehabilitation and therapy. In the case at bar. 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. it negligence cases because physicians are not insurers has been documented. During uncertainty of the patient's illness. by way of example.000. 2) P2. WHEREFORE. However. In other words. exemplary damages in the women. prosthetic victim's condition.352. however technologically caused. and solidarily against impossible to quantify. The Assuming she reaches menopause.500. in Valenzuela that a discussion of the expires or miraculously survives.00 are likewise proper.000. preventing complications. 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. are painful. knowing any hope of the lifetime. averted by observance of the procedure and a nexus is made between the deviation and the injury or damage. psychological injury. For the foregoing reasons. The replacements. advanced. intent is immaterial in negligence cases because where xxx xxx xxx negligence exists and is proven.000. menopause and aging. will only allow a reasonable amount of functional restoration of the motor functions of Established medical procedures and practices. the prosthetic will have to be adjusted real one. They. 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. She has been in a comatose state it. All of these adjustments. who.000. They have fashioned their daily replaced and readjusted to changes in the size lives around the nursing care of petitioner. the actual physical. 3) P1. mental and his patients would sometimes tempt him to deviate from physical pain are inestimable. in the intervening years have been respondents' case.00 up to the time that petitioner Erlinda Ramos We recognized. the same automatically gives the injured a right to reparation for the damage A prosthetic devise. changes. the failure to observe pre-operative for over fourteen years now.00 in moral damages would be appropriate.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.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 .83 established community practices. The sensory functions are in constant flux are devised for the purpose of forever lost. not the respondents. body would normally undergo through the years.000.00 as victim's actual injury would not even scratch the surface moral damages. the decision and resolution of the Meanwhile.000. all replacements and months of physical and petitioners in this case. Even the temperate damages private respondents the following: 1) P1.00 are hereby awarded. 84The husband and the children. the damage done to her amount of P100. Petitioner Erlinda Ramos was in her mid-forties when the physician would necessarily be called to account for the incident occurred.000. and he may end a distinguished career using unorthodox methods without The injury suffered by Erlinda as a consequence of incident. A physician's experience with sleeplessness. an award of to respond to the changes in bone resulting from P2. comatose patient. psychological damage and injury suffered by the victim or those actually affected by the These adjustments entail costs. However. The resultant anxiety. shrinkage of the stump from the process of highly speculative to estimate the amount of emotional healing. they rarely set out to intentionally cause injury or death to their patients. a precipitate decrease in calcium levels observed in the bones of all post-menopausal Finally. and adjustments will require corresponding adjustive physical and Our courts face unique difficulty in adjudicating medical occupational therapy. 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. deprived of the love of a wife and a mother. though the lower limb. of life and. are charged with the moral responsibility of the care of the victim. and moral pain. for family's moral injury and suffering in this case is clearly a example.000.000. 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. promulgation of this decision plus a monthly payment of P8. the prosthetic devise will have to be recovery is close to nil.

are as follows: Dr. and destroy the man's eyes. with the assistance of Dr.I. may the appetite. Batiquin for prenatal care as the latter's private patient sometime before September 21.00 as of treatment which according to my ability and judgment. 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. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital. . and O. 1988. neither will it and the second week of November. 1996 to Dr. Villegas delivered her first child. and lives to the skill of their doctors. Doris ACOGIDO and FLOTILDE G. BATIQUIN and ALLAN 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 . trust.:p simple caesarean section on Mrs. 1988 Mrs. Batiquin. Batiquin. men have been quick to demand retribution. Mrs. Villegas was given a sacred duty and endangers instead the life of his Medical Certificate by Dr. The facts. Hippocrates 3 wrote what was to that same day she paid Dr. he must be made to answer therefor. patients have consigned their fates minutes Mrs. . petitioners. Some Thereafter. 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.500. . VICTORIA L. 118231 July 5.R. . VILLEGAS. so she consulted Dr. Villegas no end despite the reversed the decision 6 of 21 December 1990 of Branch 30 medications administered by Dr. Although 31. COURT OF APPEALS. SO ORDERED. She also gradually lost her times but should I trespass and violate this oath. . as this case would show. 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. or operate on the eye socket of a man with his bronze lancet by Dr. SPOUSES QUEDO D. . and. 1989 she was also the Actg." 2 Subsequently. Batiquin on October patient. at about 11:45 that morning. 30851. Plaintiff remained confined at the 4. 4 December. J. C. Case No. the primary objective of the latter's polyclinic who prescribed for her certain medical profession if the preservation of life and medicines. DR. Villegas at the Negros Oriental Provincial Hospital and after 45 Throughout history. CV No.damages. of Ayungon. 1988." At present. thru the become part of the healer's oath: "I will follow that method latter's secretary. Batiquin.R. On September 28. respondents. Head of the Department of Obstetrics and Gynecology at the said Hospital. While I Soon after leaving the Hospital Mrs. So. Needless to say then.000 years ago. on punishment meted out by the ancients. Teresita Sy who was also a Resident Physician at the same Hospital.000. 4) P100. 9492. 5) the costs of the suit. they shall cut off his Villegas checked out of the Hospital.. JR. . the amount of P1. vs. Between 1987 and September. In the morning of September 21. Villegas is a married woman who submitted G. as found by the trial court. . and on hand. 1988. I "professional fee". Applicability of Res Ipsa Loquitor Doctrine Mrs. 1988 Dr. For a breach of this Rachel Acogido. 1988 Mrs. . Batiquin at the reverse be my lot. which and bothered Mrs. the Code of Hammurabi 1 then already Hospital until September 27. 1978 to September 1989.R. . when a physician strays from his In the meantime. Batiquin. No. Dumaguete City from January 9. . this Court. 1988. and abstain from whatever is deleterious and mischievous. respected by all men at all of being feverish. Nurse Arlene Diones and some student nurses performed a DAVIDE. certifying to her physical fitness to society today cannot and will not tolerate the return to her work on November 7. let the act go Villegas returned to her work at the Rural Bank uncondemned. which she had been taking up to maintenance of the health of the people. consider for the benefit of my patients.00 each as exemplary damages of the Regional Trial Court (RTC) of Negros Oriental in Civil and attorney's fees. . Negros Oriental.

either of which could rubber was. She also The trial court deemed vital Dr. the trial court held in favor of the petitioners of a "rubber glove". 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 . 17 be cancerous. Villegas' chest. A blood count testimony that when she confronted Dr. . 1989. signature on some of them to express her agreement thereto. . The results of all rubber indeed but that she threw it away. 1989 she found Mrs. The fault or negligence of appellee Dr. The trial court itself had narrated what examination. Except for the Medical Certificate (Exhibit "F"). Kho's consequently of all the discomfort suffered by positive testimony to definitely establish that a piece of Mrs. . After the second operation. . Kho to suggest statement. . Villegas after her delivery on September rubber was found near private respondent Villegas's 21. 14 The trial court. . . an ovarian cyst on each of the left and testified to in Court by Dr. appellant Aside from Dr. right ovaries which gave out pus. . . . Batiquin. deemed Dr." 15 The trial court also refused to give weight to The evidence of Plaintiffs show that when Dr." 18 This those examinations impelled Dr. 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. rapidly losing weight she consulted Dr. claim against Defendant Batiquin. Kho opened the abdomen of Mrs. Thus. 11 an Anesthesia due to the "rubber" that was left inside her Record. Kho's come from other sources. Salud Kho Testified that Batiquin is established by preponderance of she sent it to a pathologist in Cebu City for evidence. . Kho. . . and which is [sic] also herein. Kho's testimony. Villegas had [an] infection the piece of rubber. Kho described as a "foreign body" looked like a piece All told. . Upon examination she felt an A . 9 caesarean operation made by appellee doctor. Ma. all the above documents were allegedly prepared by Salud Kho at the Holy Child's Hospital in persons other than Dr. . Kho and (2) that Dr. 19 This piece of rubber material which Dr. regarded these operation made by appellee doctor. dirt and pus Kho threw it away as told by her to Defendant. thus: Holy Child's Hospital on January 20. . 8 it was not mentioned in the pathologist's happened to appellant Flotilde after the Surgical Pathology Report. holding: The piece of rubber allegedly found near private respondent Flotilde Villegas's uterus was not presented 4. Both appellant. Salud Kho examined Mrs. pale and was breathing fast. even without admitting the private was the cause of the infection of the ovaries and respondents' documentary evidence. 10 a Progress Record. the evidence which Flotilde became well and healthy. Appellee Dr. and although Dr. 1989 when deceased or unable to testify on the facts therein she was not getting any better under the care of stated. Kho "may not have had first-hand knowledge" thereof. the trial court noted. and she merely affixed her Dumaguete City on January 20. 16 as could be gleaned from her statement. . 7 uterus. testified that after the Summary. whereabouts of that offending "rubber" — (1) Villegas she found whitish-yellow discharge that it was sent to the Pathologist in Cebu as inside. was never denied nor that Mrs. a Nurse's Record. She had an x-ray taken of Mrs. "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. . Kho regarding showed that Mrs. Villegas submit to another surgery to disputed by Dr. appellee Dr. 2 inches by 3/4 inch in size. Dr. Appellant mentioned the piece of rubber are a Medical Flotilde's troubles were caused by the infection Certificate. the Court of Appeals reversed the decision of the trial court. Kho's testimony regarding the subject piece of rubber Ma. "Dr. Villegas at the as Dr. There are now two different versions on the When Dr. And this foreign body testimony and. "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. however. Ma. in court. Villegas to be feverish. Kho answered that there was inside her abdominal cavity. they did not documentary evidence as mere hearsay. 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. Victoria Batiquin's took blood tests of Plaintiff. . abdomen and kidney. 1988. leading it to conclude: which the latter agreed. and a Physician's Discharge 12 13 abdomen. Kho. behind the uterus.

I have heard somebody that [sic] says [sic] were removed by Dr. I did.00 and attorney's fees in the amount of P25. the appealed decision is clearly contradicted by the G-1-A) plus hospital and medical expenses evidence on record. Another judgment phrase was taken out of context by the trial is hereby entered ordering defendants-appellees court. From the above judgment.22 P9. there was findings of fact not supported by the evidence on record. concluded that the underscored REVERSED and SET ASIDE. on the dismissing the complaint for damages is other hand. among which are when the factual findings Appellants' evidence show[s] that they paid a of the trial court and the appellate court conflict. especially the P100. According to the Court of Appeals. 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. the operating area. worry and anxiety. the trial to pay plaintiffs-appellants the amounts of court should have likewise considered the other P17.00 [deposit of P7.00 as and for moral damages.000.100.00 as and for exemplary damages. due to the negligence of of Appeals misappreciated the following portion of Dr. After deciphering the cryptic petition. that testimonies punctured with contradictions and falsities. appellee Dr.000. the appealed judgment. Kho's knowledge of the piece of rubber was WHEREFORE. G and G-2)] for the second operation that saved her life. placed the life of appellant Flotilde in jeopardy and caused The petitioners prefer the trial court's appellant fear. exemplary damages in the amount of Q What is the purpose of the examination? P20. Batiquin would have raised only questions of fact. .00 as and for attorney's fees plus the Q So you did actually conduct the costs of litigation. 21 A Yes. based on hearsay.000.00. The Court of Appeals.00. we find that the focal point of the instant appeal is the appreciation of Dr.e. For the miseries appellants endured for more Kho's testimony. Batiquin near the not in the Lab.000.000. Had she exercised The private respondents commented that the petition due diligence. appellee Dr. .00 (Exhs.000. i. 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. It was rubber left by appellee Dr. 23 (emphasis uterus. it was not in Cebu. admitted on the witness stand that she alone excess of jurisdiction. Batiquin they are entitled to moral Kho's testimony: damages in the amount of P100. What is established is that the rubber left supplied) by appellee caused infection. following: P20. amounting to lack or abdomen. or when the appellate court together with doctor's fees in the total amount misapprehended the facts..00 as and for actual damages. whitish-yellow discharge inside the and (2) exceeded its discretion.00 (Exh. when it gave credence to decided when to close the operating area.900. .000.000. 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 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 . that Dr. Kho's testimony. The petitioners contend that the Court than three (3) months. portions of Dr. A Just in case. there are exceptions. I was just thinking at the back of my mind. 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. she examined the portion she operated on before closing the same. interpretation of the above testimony. when total of P17. . operation on her? SO ORDERED. and P25. which were not proper for found the rubber and removed it before closing review by this Court.

but it can A Oh yes. And it to be under the management of the defendant. assuming abdomen] prevails over the negative testimony in favor otherwise. 30 and that there Res ipsa loquitur. Kho's knowledge of the unimpaired. a regarding of upon by the trial court does not negate the fact that Dr. 33 Of course. . Batiquin which she claim[s] to have anticipated. Batiquin and Sy were denials or of the uterus it was very dirty. 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 . This whether she threw it away or sent it to Cebu City. And respondent Villegas. Kho's testimony. that the accident arose from want of care. 25 Not even the Pathologist's Report. we found a [piece of] rubber on as the petitioners advocate. at the back that the assertions of Drs. i. Kho's testimony with Dr.32 But the trial court failed to recognize then. . on her gloves. 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.. Kho as to what she did to the piece of rubber. the trial court pointed out that the opening up or freeing it up from the absence of a rubber drain was corroborated by Dr. and that she sent it to a laboratory frank throughout her turn on the witness stand. 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. the same is admissible 27 but it rubber was indeed found in private respondent Villega's carries no probative value. Kho. side. rubber. Batiquin's claim was not credible witness. Kho about the foreign body. knowledge for. The phrase relied falsities punctured Dr. Kho's trustworthiness: Q But you are sure you have seen [the piece of rubber]? This is not to say that she was less than honest when she testified about her findings. that Dr. And there was a [piece of] testimony is stronger than negative testimony. no motive to state any untruth was ever pathologist. leaving her trustworthiness devoid of any mention of a piece of rubber. Batiquin's statement cannot belie the fact of the petitioners. Dr. Batiquin's gloves after the itself. Kho found a piece of rubber near private respondent Villegas's uterus. the said testimony reveals no such infirmity and Kho saw a piece of rubber in private respondent establishes Dr. to have pus. 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. Kho was Villegas's abdomen. 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. Dr. 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. thus only supporting our appraisal of Dr. Although hearsay. 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. As such. which leads us to the second the right assigned error. 24 While the petitioners claim that contradictions and We agree with the Court of Appeals. Kho saw. in the absence of belief may be credited. Well-settled is the rule that positive of pus. On this score. as she asserted before the trial court: Kho handled the piece of rubber. 35 confronted Dr." 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. cleaning up the uterus. 31 Moreover. Kho's credibility. and hence. And even if we were to doubt Dr. her positive testimony [that a piece of objected to. and then to Cebu City for examination by a Furthermore. Dr.e. Dr. ovarian cyst on the right which. it was full negative testimonies. Kho to be a it away. 29 an explanation by the defendant. Both Sy. the latter said that there was a piece of rubber but that she threw Considering that we have assessed Dr. it was not prepared to doubt Dr. Kho as a credible witness. although imputed against Dr. 28 Nevertheless. such positive testimony must come from a credible source. Batiquin's testimony: that no rubber drain was used in the operation. Furthermore. Rebuctable presumption or operation nor blood smears on her hands upon removing inference that defendant was negligent. the rule of res ipsa loquitur comes to fore. The thing speaks for was neither any tear on Dr. Doris uterus. could alter what Dr. turned out to be pus. Batiquin's would reveal should there be a "legal problem" claim on the witness stand that when Dr. it be rejected. I was not the only one who saw it. Batiquin's assistant during the operation on private ovaries turned out. but such portions thereof deemed worthy of affords reasonable evidence. Dr.

the happening of an injury permits an private respondent Villegas's abdomen and for all the inference of negligence where plaintiff adverse effects thereof. direct evidence is absent and not readily available. First. with the requirement of proof of culpable negligence on the party charged. the entire proceedings of the defendant's exclusive control. all the requisites for recourse to the instrumentality causing injury was in doctrine are present. the petitioner endangered the life of Flotilde Villegas. xxx xxx xxx giving them always his best talent and skill. but merely a mode of proof or a mere procedural convenience. 41 in particular. Costs against the petitioners. which arises upon proof that [the] In the instant case. 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. produces substantial evidence that [the] injury was caused by an agency or As a final word. 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. under the circumstances involved. does not occur unless through the intersection of [the] mere fact that [the] accident negligence. Dr. 40 and members of the medical negligence which recognizes that prima profession. substantive law.R. . 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 .R. failed to overcome the under [the] management and control of presumption of negligence arising from resort to the [the] alleged wrongdoer. . . is not intended to and does not dispense SO ORDERED. The doctrine is not a rule of hereby AFFIRMED in toto. The caused injury is shown to have been petitioners. 36 G. needless to alleged wrongdoer may be inferred from say. No." 38 Indeed. Batiquin. 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 rule. in this regard. a physician is bound to serve the interest of his patients "with the greatest of solicitude. CV No. since aside from the caesarean happened provided [the] character of section. trauma. 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." 39 Through her tortious conduct. The doctrine can be invoked when and only when. the challenged decision of 11 May 1994 substitute for specific proof of of the Court of Appeals in CA-G. 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. and that caesarean section were under the exclusive control of the accident was one which ordinary Dr. in general. 30851 is negligence. facie negligence may be established without direct proof and furnishes a WHEREFORE. when applicable to the facts and circumstances of a particular case. 130547 October 3. the people. In this light. Under [this] doctrine of res ipsa loquitur. Batiquin. which. 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. . Second. Batiquin is therefore doctrine liable for negligently leaving behind a piece of rubber in . 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 private respondents were does not happen in absence of bereft of direct evidence as to the actual culprit or the negligence.

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

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

and manifest conditions which are The contention is without merit. Ordinarily. done a negligent act or that he has deviated from the coherent. Inasmuch as the causes of the object in the body of the patient after an operation.In the present case. external appearances. testimony as to the statements voluntary action or contribution of the person injured. under usual and ordinary conditions. 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 . As held in Ramos v. 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. during or following an operation for There is a case when expert testimony may be appendicitis. the determination of the Thus. the witnesses. the need for admission. expert medical testimony is dispensed with because the injury itself provides the proof of negligence. (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 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.15 intended. by which the the same circumstances. courts of other jurisdictions have applied the reasonable level of care and the breach thereof. there is no doubt that a physician.17 dispensed with. However. 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. 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. injuries involved in malpractice actions are determinable injuries sustained on a healthy part of the body which only in the light of scientific knowledge.14 As to this aspect of medical malpractice. Respondents were thus duty-bound to testimony to establish the standard of care. where the cholecystectomy. constitutes actionable malpractice. the patient was given court from its fund of common knowledge can determine anesthesia prior to her operation. The reason This contention was rejected by the appellate court. Where common knowledge was neurologically sound at the time of her operation.19 In that case. In this case. In the Ramos case. Noting that the patient the proper standard of care. and that is under the doctrine of res ipsa loquitur. Hence. 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. It is breach of this duty which patient can obtain redress for injury suffered by him. he died after only ten hours from the time of his ipsa loquitor is availed by the plaintiff. why it occurred. When the doctrine is appropriate. it has been was not under. knocking out a tooth while a patient’s jaw was under anesthetic for the removal of his tonsils. an anesthesiologist. 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. standard medical procedure. 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. 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. We agree with the ruling observable by any one may be given by non-expert of the Court of Appeals. when the doctrine of res Yet. without the aid of expert testimony. loquitur is applicable. 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. expert doctrine in the following situations: leaving of a foreign testimony is essential. among others. occur unless someone is negligent. or in the area. 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. all we allowed the testimony of a witness who was not an that the patient must do is prove a nexus between the expert. 18 and acts of physicians and surgeons. 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. of treatment. and not to matters that are application of res ipsa loquitur were present. and treated or operated upon with a reasonable degree of (3) the injury suffered must not have been due to any skill and care. and loss Res Ipsa Loquitur of an eye while the patient was under the influence of anesthetic. and ambulant when he went to the hospital. in cases where the res ipsa question was whether a surgeon.

Furthermore. Both lower courts were therefore Jorge’s illness as typhoid fever. and shock undetermined. on the issue of the correctness of her typhoid victim at the time he conducted the postmortem diagnosis. 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. established specific acts of negligence allegedly Q And that was way back in 1964? committed by respondent doctors. there is really nothing unusual or performed an autopsy on the body of Jorge Reyes. Q Clinically? A Way back before my training. Marlyn Rico. extraordinary about his death. And the widal test does desired result. Prior to his admission. 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. Marlyn Rico hastily and He is thus not qualified to prove that Dr. which is really prescribed the administration of the antibiotic inadmissible. Chief Pathologist of the Northern oxygen deprivation after the patient had Mindanao Training Hospital. A Way back after my training in UP. PASCUAL: applied. the Vacalares testified that. Marvie Blanes erred in ordering the administration of the second dose of 500 milligrams of chloromycetin barely three hours after the In Ramos. Apolinar Vacalares Respondents alleged failure to observe due care was as an expert witness. This shows that he had reaction or chloromycetin overdose. 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 . . 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. chloromycetin. antipyretic. would ordinarily have followed if due care had been Q But you have not performed an autopsy of a exercised. Marlyn Rico erroneously relied upon the Widal test. 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. medical help came too late for him. The question required fever. It days? must be conceded that the doctrine of res ipsa A I have not seen one. A distinction must be made between the patient who died of typhoid fever? failure to secure results. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously ATTY. although he may have had expert opinion on the alleged breach by respondents of extensive experience in performing autopsies. Apolinar Vacalares. 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. . . no presumption of negligence can be applied on Jorge Reyes. depending upon the circumstances of each Q Why? Have you not testified earlier that you case. and the occurrence of A I have not seen one. While petitioners presented Dr. It is also plain from his testimony that to Dr. Cagayan de Oro City. Thus. which could be due to allergic antibiotics given him by his wife. 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. he testified that:23 .As held in Ramos: he has treated only about three cases of typhoid fever. diagnosed erred in her diagnosis. 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. that was when I was a consequences of professional care were not as such as resident physician yet.21 and (2) Dr.was rendered. Dr. admitted that he had yet to do one on the body of a Furthermore. and immediately correct in discarding his testimony. We are not been suffering from a serious illness and professional persuaded.20 not specify the time of the typhoid fever. that the A In autopsy. based on his findings during the patient already had recurring fevers and chills for five autopsy. as a matter of fever? common knowledge and observation. he the standard of care required by the circumstances. or why any we cannot consider that the typhoid fever is particular scientific treatment did not produce the like this and like that. Petitioners contend that: (1) Dr. But. First. Jorge Reyes did not die of typhoid fever but of days unrelieved by the analgesic.

have also be that the patient was suffering from typhoid seizure and cyanosis and rolling of eyeballs fever. the first thing I would Rico explained that. As the issue was whether the is toximia. which was thousand cases of typhoid fever. became conscious along with the patient’s history. complications of the Q In such case. the patient Second. Panopio who is a member of the Philippine and come to your mind? American Board of Pathology. and their complications. of two doses of chloromycetin.heart toxic myocardities. . cardiac rate of 150 diagnosis. Doctor. and the Andres Soriano Jr. Philippine Board of Pathology. expert opinion on allergic mediated processes. we rejected the opinion of the whether you have suffered complications to pulmonologist on the ground that he was not: (1) an think of -. His testimony is as could you expect on the post-mortem follows:30 examination? A No. procedure. a diplomate whose per minute who appeared to be coherent. . the Widal meningitis because of the high cardiac rate.25 and not due to faulty intubation by the A One must first understand that typhoid fever anesthesiologist. and bronchospasms. 41oC. test is normally used. rise in temperature to by respondents clearly were experts on the subject. he recognized that the Widal test is used for typhoid patients. complications and perforations and bleeding in nor (2) an allergologist who could properly advance the ilium. and death: what significance chloromycetin was the drug of choice. given? As regards Dr. of the cells. the two doctors presented developed chills . specialization is infectious diseases and microbiology restless. after having Widal test on Jorge Reyes had been presented to him given intramuscular valium. after the skin test. 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. the finding would be more on the meninges or covering of the brain. Ibarra chills. On the other hand. while hyperplasia31 in the payer’s consider would be typhoid fever. anesthesiologist. testified that he has already treated over a A I would then think of toxemia. . and chief pathologist at you have to think of complication. .drug. The problem is complications are intubation was properly performed by an caused by toxins produced by the bacteria .27and if the 1:320 results of the Q Even if the same patient who. what could possibly T. . Perpetual Succor Q And what will you consider on the Hospital. Memorial Medical complication of typhoid? Center. what treatment if any would be A Yes. Dr. he stated that and vomitting . Dr. the MetroCebu Community Hospital.26 According to him. then you anesthesiologist who could enlighten the court about can consider a toxic meningitis and other anesthesia practice. toxic meningitis and probably a toxic when a case of typhoid fever is suspected. 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 . Vacalares’ finding during the autopsy that A If those are the findings that would be the deceased’s gastro-intestinal tract was normal. 3 hours later. the patient associated with Respondents also presented the testimony of Dr. and then about 40 minutes later the They vouched for the correctness of Dr.41oC. nauseating. .28 As to the treatment of the disease. ATTY. 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. 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. what finding if any disease could not be discounted. Marlyn Rico’s temperature rose to 100oF. an examiner of the A Well. Peter Gotiong. presented to me. He stated that. patches or layers of the small intestines is present in Q And presently what are the treatments typhoid fever. as a clinical pathologist. PASCUAL: 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. his impression would and coherent about 20 minutes later. received a second dose of chloromycetin of 500 miligrams. if given the same patient and after you have administered chloramphenical about 3 1/2 hours later. when it is change in the clinical finding. temperature . 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.32 Q Doctor.

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

JR. x.. CV No. SO ORDERED. staff4 of the Medical City Hospital. as the Court of Appeals called it. assisted by the medical vs.. examinations. Petitioner..x The standard of extraordinary diligence is peculiar to G.R. Respondents. as we have already G.. 32198 affirming with modification the noted. that a physician in the same or The facts. SANDOVAL-GUTIERREZ. Dr. 1984. No. there is no need to expressly require of doctors the Assailed in these three consolidated petitions for review observance of "extraordinary" diligence. Such license may. be revoked by the government. 2007 common carriers. an ancient code of commensurate with the undertaking to preserve and discipline and ethical rules which doctors have imposed protect the health. 126467 January 31. Enrique Agana. the reasonable average merit among ordinarily good Q-43322 and nullifying its Order dated September 21. . thereby reducing the standard of care and vs. the reasonable "skill and competence . to permit Dr.. No. . No. Dr..40physicians and surgeons should have the MARCELINO AGANA III. Respondents. must assume the license from the state through professional board grave responsibility of pursuing it with appropriate care.. . are: similar locality .. the very lives of those upon themselves in recognition and acceptance of their placed in the hospital’s keeping.R. 127590. Juan Fuentes.. 1996 in CA-G.. JESUS AGANA. Quezon City in Civil Case No. SP No. 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 .. 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.1 great responsibility to society. 1993 of the Regional Trial Court (RTC). and indeed. Miguel Ampil. Natividad Agana was rushed to the WHEREFORE. ENRIQUE AGANA. same duty toward their patients... 127590 January 31. . 42062 and CA- highest degree of diligence. the on certiorari is the Court of Appeals’ Decision 2 dated practice of medicine is already conditioned upon the September 6. physicians. No. the instant petition is DENIED and the Medical City General Hospital (Medical City Hospital) decision of the Court of Appeals is AFFIRMED. And.41 They also contend EMMA AGANA ANDAYA. Petitioners.-. cause. petitioner in G. resection surgery on Natividad.R. necessitating the removal of certain portions of it. Ampil. As it is now.. having undertaken one of mankind’s most years of education. In addition to however technical. J.. The Civil Code provides: MIGUEL AMPIL.... should apply. Petitioner. That is reasonable diligence for doctors or. On April 11. the conduct of doctors is also strictly may be. according to the circumstances of each DECISION case. because of difficulty of bowel movement and bloody anal discharge. and by first obtaining a important and delicate endeavors.R. He found that the malignancy in her sigmoid area had spread on her left x-----------------------x ovary. Ampil obtained the consent of Natividad’s husband. ." On April 4. Iligan City. 1993... surgeons in Iligan City. must meet standards of responsibility governed by the Hippocratic Oath. are bound to NATIVIDAD AGANA and ENRIQUE observe extraordinary diligence in the vigilance over the AGANA. goods and for the safety of the passengers transported by them.vigilance over the goods and for the safety of the NATIVIDAD (Substituted by her children passengers. Given these safeguards. 126297 January 31. . Branch 96. Common carriers.: The practice of medicine is a profession engaged in only by qualified individuals. It is a right earned through 1âwphi1 Hospitals." PROFESSIONAL SERVICES.R. 1984. Thus. INC. training. the standard contemplated for doctors is simply Decision3dated March 17. degree of diligence required from physicians and JUAN FUENTES. After a series of medical examinations. G.. Art. Dr. 1733. Respondent. as culled from the records. complex and esoteric its character state regulation. at any time and for The care and service dispensed through this high trust. from the nature of their vs. performed an anterior NATIVIDAD and ENRIQUE AGANA. .R.. 2007 sigmoid. business and for reasons of public policy.. diagnosed her to be suffering from "cancer of the G.

accompanied by her SERVICES.5 inches in width which badly cost of the saline solution. medical fees. Ampil and Dr.. The equivalent in Philippine Currency protruding from her vagina. amounted to P60. Fuentes only. still suffering from pains. He then assured her that the pains States of America. pain was the natural consequence of the surgery. Dr. Ampil who was then in the United States. In the malpractice for concealing their acts of negligence. Another surgical operation P2. A recto-vaginal fistula had formed in her reproductive organs which forced stool to 2.000. No.a foul-smelling at Polymedic Hospital. Dr. Fuentes had completed the hysterectomy. judgment is hereby rendered for the plaintiffs ordering the defendants PROFESSIONAL On May 9. Upon being informed about of the total of US$19. the following amounts: On August 31. Natividad and her husband filed hysterectomy on her. As exemplary damages. JUAN husband. Fuentes about it. infected her vaginal vault. Natividad. Dr. WHEREFORE. Natividad was released from the hospital. she was advised to return to the defendants Dr.802. docketed as Civil Case No. Ampil proceeded to her house where he managed of P21. including the On February 16. DR. treatment. MIGUEL AMPIL and DR. Natividad flew back to the Philippines. Natividad underwent another surgery. above cases. 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 . On April 24.R. as reimbursement to extract by hand a piece of gauze measuring 1.00. 1. owner of the Medical City Hospital. finding PSI. Branch 96. prompting Natividad to seek treatment at the Polymedic General Hospital. Ampil. jointly and severally. After four months of consultations and except in respect of the award for exemplary damages laboratory examinations. (PSI). Dr. Ampil and Dr. They told her that the favor of the Aganas. to perform On November 12. pending the outcome of the doctors’ fees. As actual damages. After a couple of days. Fuentes. While confined c. Q-43322. Two weeks thereafter. 1984. in October 1984. alleged that the latter are liable for negligence for leaving two pieces of gauze inside Natividad’s body and However.800. there. pains intensified. 1984. 126467. Enrique Agana also filed with the Professional Regulation Commission (PRC) an "sponge count lacking 2 administrative complaint for gross negligence and malpractice against Dr.00. the sum of excrete through the vagina. After Dr. her daughter found a piece of gauze a. avail continue for closure. 1984.60-US$1. corresponding Record of Operation dated April 11.5 of actual expenses incurred in the United inches in width. Dr. Ramon Gutierrez detected the presence of representing the cost of hospitalization another foreign object in her vagina -. the of plaintiffs and their physician daughter. with the RTC. 1993. Ampil’s assurance did not come true. completed the operation and closed the Fuentes.900. was needed to remedy the damage. INC.respondent in G.00 at the rate it. As moral damages. The PRC Board of "announced to surgeon searched (sic) done but to no Medicine heard the case only with respect to Dr. Quezon City a complaint for damages against the Professional Services. 1984. Her hospital and medical bills. 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. Ampil and Dr. b. Natividad was told she was and the interest thereon which are the liabilities of free of cancer. would soon vanish. 1690. the operation appeared to be flawed. 3. 1986. as follows: Philippines.000.00. Ampil and Dr. Ampil took over. 1984. went to the United States to seek further FUENTES to pay to the plaintiffs.000.50. Inc.00 as travel taxes Dr. She consulted both On March 17. The sum of P4. The total sum of P45. the attending nurses entered these remarks: Meanwhile. and gauze measuring 1. Natividad complained of excruciating pain in her anal region. Instead. docketed as Administrative Case No. and Dr. They incision. the RTC rendered its Decision in Dr.000.00. the sum of P300." Fuentes because it failed to acquire jurisdiction over Dr. Hence. Fuentes liable for negligence and malpractice. Dr. Thus. Natividad died and was duly substituted by her above-named children (the Aganas).

Costs against defendants-appellants Dr. On September 6. Costs of suit. docketed as CA-G. as well as the alias writ of execution issued pursuant thereto are hereby Incidentally. the Court of Appeals rendered Finally. judge dated September 21. PSI. thus: negligence and malpractice sans evidence that he left the two pieces of gauze in Natividad’s vagina. 1993. PSI alleged in its petition that the G. During its pendency. Meanwhile. on April 3. the plaintiffs-appellees. on January 23. Ampil asserts that the its Decision jointly disposing of CA-G. The of Appeals erred in finding that Dr. No. Fuentes. 1690 dismissing the case against Dr. the Aganas again filed a motion for an alias writ of execution against Only Dr. the Court of Court of Appeals erred in holding that: (1) it is estopped Appeals issued a Resolution5 dated October 29. prompting Dr.R. 32198.R.R. and (c). and (3) the medical intervention of the American doctors who examined Natividad in the United States of America. Fuentes. 2. 1993 from raising the defense that Dr. Legal interest on items 1 (a). 126297. As attorney’s fees. No. GRANTED and the challenged order of the respondent CV No. the decision appealed from is hereby AFFIRMED and the instant appeal DISMISSED.00 and delivered the amount to the Aganas. invoking the Fuentes was the one who left the two pieces of gauze doctrine of res ipsa loquitur.275. SP No. the sum of P250. and reimburse defendant-appellant Professional Services. Dr. the PRC Board of Medicine rendered its Decision6 in Administrative Case In G. 42062. Miguel Ampil and Professional Services. docketed as CA. employee. 42062. from date of filing of the defendant-appellant Dr. Following their receipt of the money. SO ORDERED. 127590.R. 21. the instant consolidated petitions. Fuentes to SO ORDERED. petitioner in connection with the writ of preliminary which was granted in an Order dated May 11. 1995. On September was denied in a Resolution7 dated December 19. Court of Appeals a petition for certiorari and prohibition. (b). and (3) it is not entitled to its counterclaim against the Aganas. and that he concealed such fact pieces of gauze are prima facie proofs that the operating from Natividad. the Aganas entered into an agreement with PSI and Dr. 1993. the RTC granted the motion and issued the corresponding writ. Inc.R. Concomitant with the above. 1993 is Thereafter. The bond posted by the RTC a motion for a partial execution of its Decision. 32198. Ampil is not its employee. surgeons have been negligent. the Aganas filed with the NULLIFIED and SET ASIDE. 4.R. SP No.000. the Aganas maintain that the Court No. Fuentes who used gauzes in performing the hysterectomy. He pointed to other probable causes. 1993. Ampil is not its granting Dr. whatever amount the latter will pay or had paid to 6. Dr. not long thereafter.R.R. indefinitely suspend any further execution of the RTC Decision. Ampil filed a motion for reconsideration. Ampil.R. 32198 is hereby appeal to the Court of Appeals. (2) it is solidarily liable with Dr. (2) the attending nurses’ failure to properly count the gauzes used during surgery. Fuentes’ prayer for injunctive relief. but a consolidated with CA-G. injunction issued by this Court on November 29. SP No. They contend that the inside Natividad’s body. As such. he alone should answer for his negligence. Miguel Ampil is liable to complaint until full payment. 1996. In G. Juan Fuentes is hereby 5. of negligence or medical malpractice. 126467. CA-G. Fuentes and Dr. except for the modification that the case against defendant-appellant Dr. SP No. DISMISSED.R.00. Inc. the petition for certiorari and prohibition filed by herein defendant-appellant Dr. such as: (1) it was Dr. CV No. and with the pronouncement that and 3 hereinabove. On January 24. the sheriff levied upon certain properties of hereby cancelled. with prayer for preliminary injunction.. Fuentes is not guilty Board held that the prosecution failed to show that Dr. 1996. 32198 was PSI contends that Dr. but it the properties of PSI and Dr. CV No. Ampil and sold them for P451. However. Fuentes to file with the Hence. 1994. in G. WHEREFORE. No. mere consultant or independent contractor. 42062 Court of Appeals erred in finding him liable for and CA-G. Dr. Aggrieved. 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 . 1993. Ampil interposed an Juan Fuentes in CA-G.

two (2) gauzes were elements are duty. second. we are mindful that Dr. and that failure or action caused injury to the patient. Ampil’s arguments are purely conjectural and without remove a sponge he has placed in his patient’s body basis. 127590 Of course. such act is liable for negligence and malpractice. Records show that he did not present any that should be removed as part of the operation. what was initially an act of gauzes as sponges to control the bleeding of the negligence by Dr. still. prudent provider would not have done. and when a physician or surgeon fails to Dr. To successfully report that the ‘sponge count (was) lacking 2’. has been closed is at least prima facie negligence by whether the Court of Appeals erred in holding Dr. Fuentes left had been compelled to do. This is in order that she the gauzes in Natividad’s body after performing might seek relief from the effects of the foreign object hysterectomy. Ampil surgeon from further searching missing sponges or foreign objects left in the body. When he An operation requiring the placing of sponges in the failed to do so. Dr. Ampil to ‘continue for closure’ x x done. Dr. medical negligence. necessitating her further examination other foreign substances in the wound after the incision by American doctors and another surgery. it is not disputed that the surgeons used her body. consequence of her operation. 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 . Dr. Fuentes. the This is a clear case of medical malpractice or more nurses who assisted in the surgery noted in their appropriately. in an attempt to absolve himself. causation. Ampil did not inform Natividad about the missing two pieces of gauze. No. Ampil. he even misled her The glaring truth is that all the major circumstances. Natividad could have taken the immediate and appropriate medical remedy to remove the gauzes from First. and avoid untoward results likely to ensue therefrom. 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 patient’s attention. Ampil has ripened into a deliberate patient during the surgical operation. it was his duty to inform Natividad about incision is not complete until the sponges are properly it. immediately after the operation. the Third. The removal of all sponges used is part of a surgical operation. Fuentes’) work and found it in order.For our resolution are these three vital issues: first. Ampil examined his (Dr. second.G. it is Court’s attention to other possible causes of Natividad’s his legal duty to so inform his patient within a detriment. Ampil as the negligent party. Such breach caused removed. Ampil.R. Worse. and of the record of operation. Second. He argues that the Court should not discount reasonable time thereafter by advising her of what he either of the following possibilities: first. breach. the Court is not blind to the reality that there are times when danger to a patient’s life precludes a Whether the Court of Appeals Erred in Holding Dr. thus: were the ones who placed the gauzes in Natividad’s body. Ampil. Even if it has been shown that a surgeon was required by the urgent necessities of the case to leave a sponge in his patient’s abdomen. se. and it is settled that the leaving of sponges or injury to Natividad. the American doctors in Smith v. and third. Here. whether PSI may be held authorities to the effect that such act is negligence per solidarily liable for the negligence of Dr. and third. The ruling counting the gauzes. as specified by the Court of Appeals. Ampil the operating surgeon.8 To put it simply. 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 Natividad’s body. Fuentes of inference of negligence. Ampil breached both duties. after the operation. There are even legions of any liability. whether considered so inconsistent with due care as to raise an the Court of Appeals erred in absolving Dr. him free from any obligation. as the lead surgeon. pursue this kind of case. to remove all foreign objects. injury and proximate extracted from the same spot of the body of Mrs. Dr. 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. or that he did something that a reasonably x. 11 Simply put. Had he been more directly point to Dr. the attending nurses erred in left in her body as her condition might permit. As to the alleged negligence of Dr. such as gauzes. Zeagler10 is explicit. had the duty Agana where the surgery was performed. To our mind.9 I . that the pain she was experiencing was the ordinary taken together. That Dr. particularly the number of endeavoring with the means he has at hand to minimize gauzes used. Dr. from Natividad’s body before closure of the incision. gears the because of the dangers attendant upon delay. But this does not leave Liable for Negligence and Malpractice. thus: candid. wrongful act of deceiving his patient.

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

even if ART. Rather. observed all the diligence of a good father of a family to prevent damage. is called a quasi-delict and is governed by the the hospital and its employees are deemed to subserve provisions of this Chapter. parties. 2176. "a hospital cannot be held liable for the fault or malpractice. even collecting for such services through legal action. The obligation imposed by Article 2176 is employed by a hospital. In our shores. noting that modern hospitals actually do far scope of their assigned tasks even though the former more than provide facilities for treatment.22 It has been said that medical practice strictly involves highly developed and Art. significant changes the fault or negligence they commit in the discharge of in health law have accompanied the business-related their duties. They charge patients for medical care and x x treatment.philanthropic health care are over. apparent authority. 2180. in Bing v. 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 . which an agent or employee of a hospital. thus: Hospital26 was then considered an authority for this view. hospitals are responsible. Consequently. dentists. the rule governing vicarious liability under the doctrine of The case of Schloendorff v. In the context of the present change is an increase in hospital liability for medical case. Thunig."21 superior. Society of New York respondeat superior. engaged by an employer. professionals are considered personally liable for hospital businesses. a large staff of physicians. there is no pre-existing contractual relation between the when a doctor practices medicine in a hospital setting.25 A derivative of this provision is Article 2180. the efficacy of the foregoing doctrine has weakened with the significant developments in medical The owners and managers of an establishment or care. 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). 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. as an independent contractor demandable not only for one’s own acts or omissions. whenever he acts in reads: a professional capacity. food. if necessary. facilities for treatment and operation. 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. if rendering medical services sans interference. x x x x x x However. on a salaried basis. No longer were a which the latter are employed or on the occasion of their hospital’s functions limited to furnishing room. Under this doctrine. nurses. In other conversion from a not-for-profit health care to for-profit words. 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. and attendants for its patients. One important legal such fault or negligence. is obliged to generally free to exercise their own skill and judgment in pay for the damage done. Thus. Such fault or negligence. The "Schloendorff doctrine" regards a physician. interns. 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. 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. 20 The foregoing view is grounded on the traditional notion that the professional status and the very nature of the In this jurisdiction. and their employer cannot be held liable for changes in the hospital industry. him in his ministrations to the patient and his actions are of his own responsibility. exempt from the application of the respondeat superior principle for fault or negligence committed by physicians in the discharge of their profession. 24 Hence. there being fault or negligence.23 such that physicians are to another. the statute governing liability for physician’s calling preclude him from being classed as negligent acts is Article 2176 of the Civil Code. The modern health and pharmacists. Whoever by act or omission causes damage specialized knowledge. regularly employ. or agency by estoppel. ostensible authority. administrative and manual x x x x workers. functions. they are not engaged in any business or industry. 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. such as physicians.

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

Fuentes and prerogative and responsibility of the physician. Q- administered by the physicians practicing in its 43332 for negligence and malpractice is that PSI as premises. inter alia. (2) the selection and retention of competent physicians. the hospital succeeds in its mission of offering Misevich.38 Thus. if not broader. resident doctors. Ampil and Dr. thus: We agree with the trial court. "did not perform the necessary supervision nor exercise diligent efforts in the supervision of Drs." Indeed. and (4) discern. If these accredited physicians do their job patients. offers quality health care providing quality medical service is no longer the sole services. competence. well. operator and manager of Medical City Hospital. accepted the services on the reasonable inherent responsibility to provide quality medical care. adoption and enforcement of adequate acting only through other individuals.39 it was held that a hospital. the duty of accredited physicians. the trial court exercise reasonable care to protect from harm all held that PSI is directly liable for such breach of duty. it was duly established that PSI Fuentes and its nursing staff. or servants. PSI failed to perform such duty. 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 hospital’s liability for the negligent acts of names it proudly paraded in the public directory leading health practitioners. PSI’s act is tantamount to holding Its formulation proceeds from the judiciary’s out to the public that Medical City Hospital. absent facts to support the the public to believe that it vouched for their skill and application of respondeat superior or apparent authority. in Tucson Medical Center. it has the duty to on the doctrine of corporate negligence. Unfortunately. the maintenance of safe and adequate facilities and regardless of whether he is independent or employed. The findings of the trial court are convincing. has the duty to see Logically. 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. and operates the Medical City Hospital for the purpose and medical interns who assisted Drs. doctrine of corporate responsibility. like PSI. where negligence mars the quality of its that it meets the standards of responsibilities for the services. such as rules and policies that ensure quality care for its physicians. through its acknowledgment that in these modern times. Ampil and In the present case. Riley.those of Dr. agents." On the basis of Darling. (3) the overseeing or supervision of all The wisdom of the foregoing ratiocination is easy to persons who practice medicine within its walls. x x x PSI’s 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 . And in Bost v. and failing to review the treatment and competence are certainly certified to the general rendered to the patient. more duties were expected from responsibility for the conduct of treatment and surgery hospitals. following the quality medical services and thus profits financially. the hospital should not be allowed to escape care of patients. Hospitals created the impression that they were its agents. patients admitted into its facility for medical treatment. The publicly advertising their qualifications. legal passage of time.35 belief that such were being rendered by the hospital or its employees. By accrediting Dr. other public by the hospital’s act of listing him and his jurisdictions held that a hospital’s corporate negligence specialty in its lobby directory. Accordingly. v. expectation that it will attempt to cure him. Inc. as in the case herein.36 There. the hospital modern hospitals have changed structure. among them: (1) the use of reasonable care in within its facility by its accredited physician or surgeon. owner. 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. are capable of the formulation. 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." 34 Premised services to the public. he ought not be burdened with the defense of of trained nurses attending the patient. supervision of the members of its medical staff. As expected. The extends to permitting a physician known to be high costs of today’s medical and health care should at incompetent to practice at the hospital. Fuentes. Such duty includes the proper liability for the acts of its ostensible agents. Corporate entities. these patients."33 equipment. in failing to have a sufficient number patient. Natividad being monitored by the hospitals commensurate with their one of them. 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. Ampil and Fuentes in under the concept of providing comprehensive medical the performance of their duties as surgeons. The trial court The doctrine has its genesis in Darling v. Charleston correctly pointed out: Community Hospital. 37 With the least exact on the hospital greater. Ampil and Dr.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.

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 Natividad’s case. then in the interest of arriving at responsibilities regarding the quality of medical care the truth. In the amended complaint. SP No. let it be emphasized staff of Medical City Hospital constitutes knowledge of that PSI. In order to escape liability.500 P. through their members like standards of responsibility commensurate with this defendant surgeons. This means that the knowledge of any of the liable with Dr. In of negligence. the failure of PSI. x x x. Now. along with the evidence produced at the Fridena v. not Moreover. App. See Kahn and exert his best judgment. therefore. if not also legal. within its walls. the doctors on its staff. skill and the patient by the hospital has expanded. the Supreme Court of Arizona held: One final word." 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. In Purcell. however. services being provided within its walls. Beeck v. the Arizona Court of events. 42062 and CA-G. 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. apart from a general denial of its responsibility. the duty of care owed to possess that reasonable degree of learning. Ampil and Dr. the gauzes. can callously turn their backs on and App. This renders PSI. Ethical considerations. As such. Once a physician undertakes the treatment and care of a patient. 2d 335 (1972). 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. 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. the law imposes on him certain obligations. 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. 27 De Paul . it is reasonable to the operation was performed at the hospital with its conclude that PSI. 23 (1977). aid. Miguel Ampil. Hospital Malpractice Prevention. We find that such general allegations nurses that the two pieces of gauze were missing. Evans. Tucson General Hospital. 18 Ariz. Such failure established PSI’s 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. Zimbelman. and interns. 32198.R.41 it was held that a corporation is trial of this case. and the court held that a hospital would be negligent where it had knowledge or reason to believe that a doctor using 35 | 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 . has knowledge. and that the negligence actual or constructive knowledge of the procedures of the defendants was the proximate cause of the carried out. as we have discussed. despite the attending failed to adduce evidence showing that it exercised the nurses’ report. In Fridena. he must x x x In recent years. fixing the negligence committed. Ampil. 75. 500 P. particularly the report of the attending patient’s injuries. the hospital argued that it could not be held liable for the malpractice of a medical Costs against petitioners PSI and Dr. Ampil liable to the Aganas. 2d 1153 (1972).the count nurse. PSI. 165. it also failed to take an active step in must be adjudged solidarily liable with Dr. CV No.R. WHEREFORE. composed of resident doctors. The Court of Appeals pointed out SO ORDERED. Fuentes x x x x x x operated on Natividad with the assistance of the Medical City Hospital’s staff. but also directly liable for its own negligence under Article 2176. under Article 2180 of the Civil Code. PSI is also directly only vicariously liable for the negligence of Dr. and their institutions like PSI’s undertaking. Rev. Purcell v. At the same time. practitioner because he was an independent contractor within the hospital. if not for the benefit of the patient to whom the Appeals held that a hospital has certain inherent duty is primarily owed. In neglecting to offer such negligence. are sufficient to support the hospital’s bound by the knowledge acquired by or notice given to liability based on the theory of negligent supervision. The emerging experience required by his profession. hospital facility. Ampil for damages. PSI failed to discharge its burden under the last oversee or supervise all persons who practice medicine paragraph of Article 2180 cited earlier. the plaintiffs did plead that nurses. and assistance. and. dictated the holding of an immediate inquiry into the Subsequent to the Purcell decision. The Court cannot accept that the medical and furnished to patients within its walls and it must meet the the healing professions. as the operator of the hospital. Not only did PSI breach its duties to proof. 18 Ariz. It is worthy to note that Dr.