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of examinations which included blood and urine tests (Exhs.

A and C) which indicated she was fit for surgery.

[G.R. No. 124354. December 29, 1999] Through the intercession of a mutual friend, Dr. Buenviaje
(TSN, January 13, 1988, p. 7), she and her husband Rogelio
met for the first time Dr. Orlino Hozaka (should be Hosaka;
see TSN, February 20, 1990, p. 3), one of the defendants in
ROGELIO E. RAMOS and ERLINDA RAMOS, in their this case, on June 10, 1985. They agreed that their date at the
own behalf and as natural guardians of the operating table at the DLSMC (another defendant), would be
minors, ROMMEL RAMOS, ROY RODERICK on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she
RAMOS and RON RAYMOND should undergo a cholecystectomy operation after examining
RAMOS, petitioners, vs. COURT OF APPEALS, the documents (findings from the Capitol Medical Center,
DELOS SANTOS MEDIC AL CENTER, DR. FEU Hospital and DLSMC) presented to him. Rogelio E.
ORLINO HOSAKA and DRA. PERFECTA Ramos, however, asked Dr. Hosaka to look for a good
GUTIERREZ, respondents. anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he
will get a good anesthesiologist. Dr. Hosaka charged a fee
DECISION of P16,000.00, which was to include the anesthesiologists fee
KAPUNAN, J.: and which was to be paid after the operation (TSN, October
19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990,
The Hippocratic Oath mandates physicians to give p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is made A day before the scheduled date of operation, she was
accountable for his acts. A mistake, through gross negligence admitted at one of the rooms of the DLSMC, located along E.
or incompetence or plain human error, may spell the Rodriguez Avenue, Quezon City (TSN, October 19, 1989, p.
difference between life and death. In this sense, the doctor 11).
plays God on his patients fate.[1]
At around 7:30 A.M. of June 17, 1985 and while still in her
In the case at bar, the Court is called upon to rule room, she was prepared for the operation by the hospital
whether a surgeon, an anesthesiologist and a hospital should staff. Her sister-in-law, Herminda Cruz, who was the Dean of
be made liable for the unfortunate comatose condition of a the College of Nursing at the Capitol Medical Center, was
patient scheduled for cholecystectomy.[2] also there for moral support. She reiterated her previous
Petitioners seek the reversal of the decision [3] of the request for Herminda to be with her even during the
Court of Appeals, dated 29 May 1995, which overturned the operation. After praying, she was given injections. Her hands
decision[4]of the Regional Trial Court, dated 30 January 1992, were held by Herminda as they went down from her room to
finding private respondents liable for damages arising from the operating room (TSN, January 13, 1988, pp. 9-11). Her
negligence in the performance of their professional duties husband, Rogelio, was also with her (TSN, October 19, 1989,
towards petitioner Erlinda Ramos resulting in her comatose p. 18). At the operating room, Herminda saw about two or
condition. three nurses and Dr. Perfecta Gutierrez, the other defendant,
who was to administer anesthesia. Although not a member of
The antecedent facts as summarized by the trial court are the hospital staff, Herminda introduced herself as Dean of the
reproduced hereunder: College of Nursing at the Capitol Medical Center who was to
provide moral support to the patient, to them. Herminda was
Plaintiff Erlinda Ramos was, until the afternoon of June 17, allowed to stay inside the operating room.
1985, a 47-year old (Exh. A) robust woman (TSN, October
19, 1989, p. 10). Except for occasional complaints of At around 9:30 A.M., Dr. Gutierrez reached a nearby phone
discomfort due to pains allegedly caused by the presence of a to look for Dr. Hosaka who was not yet in (TSN, January 13,
stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda
she was as normal as any other woman. Married to Rogelio E. Cruz about the prospect of a delay in the arrival of Dr.
Ramos, an executive of Philippine Long Distance Telephone Hosaka. Herminda then went back to the patient who asked,
Company, she has three children whose names are Rommel Mindy, wala pa ba ang Doctor? The former replied, Huwag
Ramos, Roy Roderick Ramos and Ron Raymond Ramos kang mag-alaala, darating na iyon (ibid.).
(TSN, October 19, 1989, pp. 5-6).
Thereafter, Herminda went out of the operating room and
Because the discomforts somehow interfered with her normal informed the patients husband, Rogelio, that the doctor was
ways, she sought professional advice. She was advised to not yet around (id., p. 13). When she returned to the operating
undergo an operation for the removal of a stone in her gall room, the patient told her, Mindy, inip na inip na ako, ikuha
bladder (TSN, January 13, 1988, p. 5). She underwent a series mo ako ng ibang Doctor. So, she went out again and told
Rogelio about what the patient said (id., p. 15). Thereafter, About two days thereafter, Rogelio E. Ramos was able to talk
she returned to the operating room. to Dr. Hosaka. The latter informed the former that something
went wrong during the intubation. Reacting to what was told
At around 10:00 A.M., Rogelio E. Ramos was already dying to him, Rogelio reminded the doctor that the condition of his
[and] waiting for the arrival of the doctor even as he did his wife would not have happened, had he (Dr. Hosaka) looked
best to find somebody who will allow him to pull out his wife for a good anesthesiologist (TSN, October 19, 1989, p. 31).
from the operating room (TSN, October 19, 1989, pp. 19-
20). He also thought of the feeling of his wife, who was Doctors Gutierrez and Hosaka were also asked by the hospital
inside the operating room waiting for the doctor to arrive to explain what happened to the patient. The doctors
(ibid.). At almost 12:00 noon, he met Dr. Garcia who explained that the patient had bronchospasm (TSN,
remarked that he (Dr. Garcia) was also tired of waiting for Dr. November 15, 1990, pp. 26-27).
Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at
around 12:10 P.M., he came to know that Dr. Hosaka arrived Erlinda Ramos stayed at the ICU for a month. About four
as a nurse remarked, Nandiyan na si Dr. Hosaka, dumating na months thereafter or on November 15, 1985, the patient was
raw. Upon hearing those words, he went down to the lobby released from the hospital.
and waited for the operation to be completed (id., pp. 16, 29-
30). During the whole period of her confinement, she incurred
hospital bills amounting to P93,542.25 which is the subject of
At about 12:15 P.M., Herminda Cruz, who was inside the a promissory note and affidavit of undertaking executed by
operating room with the patient, heard somebody say that Dr. Rogelio E. Ramos in favor of DLSMC. Since that fateful
Hosaka is already here. She then saw people inside the afternoon of June 17, 1985, she has been in a comatose
operating room moving, doing this and that, [and] preparing condition. She cannot do anything. She cannot move any part
the patient for the operation (TSN, January 13, 1988, p. of her body. She cannot see or hear. She is living on
16). As she held the hand of Erlinda Ramos, she then saw Dr. mechanical means. She suffered brain damage as a result of
Gutierrez intubating the hapless patient. She thereafter heard the absence of oxygen in her brain for four to five minutes
Dr. Gutierrez say, ang hirap ma-intubate nito, mali yata ang (TSN, November 9, 1989, pp. 21-22). After being discharged
pagkakapasok. O lumalaki ang tiyan (id., p. 17). Because of from the hospital, she has been staying in their residence, still
the remarks of Dra. Gutierrez, she focused her attention on needing constant medical attention, with her husband Rogelio
what Dr. Gutierrez was doing. She thereafter noticed bluish incurring a monthly expense ranging from P8,000.00
discoloration of the nailbeds of the left hand of the hapless to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was
Erlinda even as Dr. Hosaka approached her. She then heard also diagnosed to be suffering from diffuse cerebral
Dr. Hosaka issue an order for someone to call Dr. Calderon, parenchymal damage (Exh. G; see also TSN, December 21,
another anesthesiologist (id., p. 19). After Dr. Calderon 1989, p. 6).[5]
arrived at the operating room, she saw this anesthesiologist
trying to intubate the patient. The patients nailbed became Thus, on 8 January 1986, petitioners filed a civil
bluish and the patient was placed in a trendelenburg position - [6]
case for damages with the Regional Trial Court of Quezon
a position where the head of the patient is placed in a position City against herein private respondents alleging negligence in
lower than her feet which is an indication that there is a the management and care of Erlinda Ramos.
decrease of blood supply to the patients brain (Id., pp. 19-
20). Immediately thereafter, she went out of the operating During the trial, both parties presented evidence as to the
room, and she told Rogelio E. Ramos that something wrong possible cause of Erlindas injury. Plaintiff presented the
was x x x happening (Ibid.). Dr. Calderon was then able to testimonies of Dean Herminda Cruz and Dr. Mariano Gavino
intubate the patient (TSN, July 25, 1991, p. 9). to prove that the damage sustained by Erlinda was due to lack
of oxygen in her brain caused by the faulty management of
Meanwhile, Rogelio, who was outside the operating room, her airway by private respondents during the anesthesia
saw a respiratory machine being rushed towards the door of phase. On the other hand, private respondents primarily relied
the operating room. He also saw several doctors rushing on the expert testimony of Dr. Eduardo Jamora, a
towards the operating room.When informed by Herminda pulmonologist, to the effect that the cause of brain damage
Cruz that something wrong was happening, he told her was Erlindas allergic reaction to the anesthetic agent,
(Herminda) to be back with the patient inside the operating Thiopental Sodium (Pentothal).
room (TSN, October 19, 1989, pp. 25-28). After considering the evidence from both sides, the
Regional Trial Court rendered judgment in favor of
Herminda Cruz immediately rushed back, and saw that the petitioners, to wit:
patient was still in trendelenburg position (TSN, January 13,
1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw After evaluating the evidence as shown in the finding of facts
the patient taken to the Intensive Care Unit (ICU). set forth earlier, and applying the aforecited provisions of law
and jurisprudence to the case at bar, this Court finds and so
holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the 3) the sum of P800,000.00 by way of moral damages and the
performance of their duty to plaintiff-patient Erlinda Ramos. further sum of P200,000.00 by way of exemplary damages;
On the part of Dr. Perfecta Gutierrez, this Court finds that she
omitted to exercise reasonable care in not only intubating the 4) the costs of the suit.
patient, but also in not repeating the administration of
atropine (TSN, August 20, 1991, pp. 5-10), without due SO ORDERED.[7]
regard to the fact that the patient was inside the operating
room for almost three (3) hours. For after she committed a Private respondents seasonably interposed an appeal to
mistake in intubating [the] patient, the patient's nailbed the Court of Appeals. The appellate court rendered a
became bluish and the patient, thereafter, was placed in Decision, dated 29 May 1995, reversing the findings of the
trendelenburg position, because of the decrease of blood trial court. The decretal portion of the decision of the
supply to the patient's brain. The evidence further shows that appellate court reads:
the hapless patient suffered brain damage because of the
absence of oxygen in her (patient's) brain for approximately WHEREFORE, for the foregoing premises the appealed
four to five minutes which, in turn, caused the patient to decision is hereby REVERSED, and the complaint below
become comatose. against the appellants is hereby ordered DISMISSED. The
counterclaim of appellant De Los Santos Medical Center is
On the part of Dr. Orlino Hosaka, this Court finds that he is GRANTED but only insofar as appellees are hereby ordered
liable for the acts of Dr. Perfecta Gutierrez whom he had to pay the unpaid hospital bills amounting to P93,542.25, plus
chosen to administer anesthesia on the patient as part of his legal interest for justice must be tempered with mercy.
obligation to provide the patient a `good anesthesiologist',
and for arriving for the scheduled operation almost three (3) SO ORDERED.[8]
hours late.
The decision of the Court of Appeals was received on 9
On the part of DLSMC (the hospital), this Court finds that it June 1995 by petitioner Rogelio Ramos who was mistakenly
is liable for the acts of negligence of the doctors in their addressed as Atty. Rogelio Ramos. No copy of the decision,
`practice of medicine' in the operating room. Moreover, the however, was sent nor received by the Coronel Law Office,
hospital is liable for failing through its responsible officials, then counsel on record of petitioners. Rogelio referred the
to cancel the scheduled operation after Dr. Hosaka decision of the appellate court to a new lawyer, Atty. Ligsay,
inexcusably failed to arrive on time. only on 20 June 1995, or four (4) days before the expiration
of the reglementary period for filing a motion for
In having held thus, this Court rejects the defense raised by reconsideration. On the same day, Atty. Ligsay, filed with the
defendants that they have acted with due care and prudence in appellate court a motion for extension of time to file a motion
rendering medical services to plaintiff-patient. For if the for reconsideration.The motion for reconsideration was
patient was properly intubated as claimed by them, the patient submitted on 4 July 1995. However, the appellate court
would not have become comatose. And, the fact that another denied the motion for extension of time in its Resolution
anesthesiologist was called to try to intubate the patient after dated 25 July 1995.[9] Meanwhile petitioners engaged the
her (the patient's) nailbed turned bluish, belie their services of another counsel, Atty. Sillano, to replace Atty.
claim. Furthermore, the defendants should have rescheduled Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
the operation to a later date. This, they should have done, if admit the motion for reconsideration contending that the
defendants acted with due care and prudence as the patient's period to file the appropriate pleading on the assailed decision
case was an elective, not an emergency case. had not yet commenced to run as the Division Clerk of Court
of the Court of Appeals had not yet served a copy thereof to
xxx the counsel on record. Despite this explanation, the appellate
court still denied the motion to admit the motion for
WHEREFORE, and in view of the foregoing, judgment is reconsideration of petitioners in its Resolution, dated 29
rendered in favor of the plaintiffs and against the March 1996, primarily on the ground that the fifteen-day (15)
defendants. Accordingly, the latter are ordered to pay, jointly period for filing a motion for reconsideration had already
and severally, the former the following sums of money, to expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of
1) the sum of P8,000.00 as actual monthly expenses for the a Motion for Reconsideration cannot be extended; precisely,
plaintiff Erlinda Ramos reckoned from November 15, 1985 or the Motion for Extension (Rollo, p. 12) was denied. It is, on
in the total sum of P632,000.00 as of April 15, 1992, subject the other hand, admitted in the latter Motion that
to its being updated; plaintiffs/appellees received a copy of the decision as early as
June 9, 1995. Computation wise, the period to file a Motion
2) the sum of P100,000.00 as reasonable attorney's fees; for Reconsideration expired on June 24. The Motion for
Reconsideration, in turn, was received by the Court of the Coronel Law Office. In fact, a copy of the decision of the
Appeals already on July 4, necessarily, the 15-day period appellate court was instead sent to and received by petitioner
already passed. For that alone, the latter should be denied. Rogelio Ramos on 9 June 1995 wherein he was mistakenly
addressed as Atty. Rogelio Ramos. Based on the other
Even assuming admissibility of the Motion for communications received by petitioner Rogelio Ramos, the
Reconsideration, but after considering the appellate court apparently mistook him for the counsel on
Comment/Opposition, the former, for lack of merit, is hereby record. Thus, no copy of the decision of the appellate court
DENIED. was furnished to the counsel on record. Petitioner, not being a
lawyer and unaware of the prescriptive period for filing a
SO ORDERED.[10] motion for reconsideration, referred the same to a legal
counsel only on 20 June 1995.
A copy of the above resolution was received by Atty. It is elementary that when a party is represented by
Sillano on 11 April 1996. The next day, or on 12 April 1996, counsel, all notices should be sent to the partys lawyer at his
Atty. Sillano filed before this Court a motion for extension of given address. With a few exceptions, notice to a litigant
time to file the present petition for certiorari under Rule without notice to his counsel on record is no notice at all. In
45. The Court granted the motion for extension of time and the present case, since a copy of the decision of the appellate
gave petitioners additional thirty (30) days after the court was not sent to the counsel on record of petitioner, there
expiration of the fifteen-day (15) period counted from the can be no sufficient notice to speak of. Hence, the delay in the
receipt of the resolution of the Court of Appeals within which filing of the motion for reconsideration cannot be taken
to submit the petition. The due date fell on 27 May 1996. The against petitioner. Moreover, since the Court of Appeals
petition was filed on 9 May 1996, well within the extended already issued a second Resolution, dated 29 March 1996,
period given by the Court. which superseded the earlier resolution issued on 25 July
Petitioners assail the decision of the Court of Appeals on 1995, and denied the motion for reconsideration of petitioner,
the following grounds: we believe that the receipt of the former should be considered
in determining the timeliness of the filing of the present
I petition. Based on this, the petition before us was submitted
on time.
TESTIMONIES OF RESPONDENTS DRA. After resolving the foregoing procedural issue, we shall
GUTIERREZ, DRA. CALDERON AND DR. now look into the merits of the case. For a more logical
JAMORA; presentation of the discussion we shall first consider the issue
on the applicability of the doctrine of res ipsa loquitur to the
instant case. Thereafter, the first two assigned errors shall be
tackled in relation to the res ipsa loquitur doctrine.
IN FINDING THAT THE NEGLIGENCE OF THE Res ipsa loquitur is a Latin phrase which literally means
RESPONDENTS DID NOT CAUSE THE the thing or the transaction speaks for itself. The phrase res
UNFORTUNATE COMATOSE CONDITION OF ipsa loquitur is a maxim for the rule that the fact of the
PETITIONER ERLINDA RAMOS; occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a
III presumption of negligence, or make out a plaintiffs prima
facie case, and present a question of fact for defendant to
IN NOT APPLYING THE DOCTRINE OF RES IPSA meet with an explanation.[13] Where the thing which caused
LOQUITUR.[11] the injury complained of is shown to be under the
management of the defendant or his servants and the accident
Before we discuss the merits of the case, we shall first is such as in ordinary course of things does not happen if
dispose of the procedural issue on the timeliness of the those who have its management or control use proper care, it
petition in relation to the motion for reconsideration filed by affords reasonable evidence, in the absence of explanation by
petitioners with the Court of Appeals. In their Comment, the defendant, that the accident arose from or was caused by
private respondents contend that the petition should not be the defendants want of care.[14]
given due course since the motion for reconsideration of the The doctrine of res ipsa loquitur is simply a recognition
petitioners on the decision of the Court of Appeals was of the postulate that, as a matter of common knowledge and
validly dismissed by the appellate court for having been filed experience, the very nature of certain types of occurrences
beyond the reglementary period. We do not agree. may justify an inference of negligence on the part of the
A careful review of the records reveals that the reason person who controls the instrumentality causing the injury in
behind the delay in filing the motion for reconsideration is the absence of some explanation by the defendant who is
attributable to the fact that the decision of the Court of charged with negligence.[15] It is grounded in the superior
Appeals was not sent to then counsel on record of petitioners, logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be necessity of expert testimony applies only to such matters
deduced from the mere occurrence of the accident itself. clearly within the domain of medical science, and not to
Hence, res ipsa loquitur isapplied in conjunction with the matters that are within the common knowledge of mankind
doctrine of common knowledge. which may be testified to by anyone familiar with the facts.
Ordinarily, only physicians and surgeons of skill and
However, much has been said that res ipsa loquitur is experience are competent to testify as to whether a patient has
not a rule of substantive law and, as such, does not create or been treated or operated upon with a reasonable degree of
constitute an independent or separate ground of liability. skill and care. However, testimony as to the statements and
Instead, it is considered as merely evidentiary or in the acts of physicians and surgeons, external appearances, and
nature of a procedural rule.[18] It is regarded as a mode of manifest conditions which are observable by any one may be
proof, or a mere procedural convenience since it furnishes a given by non-expert witnesses.[29] Hence, in cases where
substitute for, and relieves a plaintiff of, the burden of the res ipsa loquitur is applicable, the court is permitted to
producing specific proof of negligence.[19] In other words, find a physician negligent upon proper proof of injury to the
mere invocation and application of the doctrine does not patient, without the aid of expert testimony, where the court
dispense with the requirement of proof of negligence. It is from its fund of common knowledge can determine the
simply a step in the process of such proof, permitting the proper standard of care.[30] Where common knowledge and
plaintiff to present along with the proof of the accident, experience teach that a resulting injury would not have
enough of the attending circumstances to invoke the doctrine, occurred to the patient if due care had been exercised, an
creating an inference or presumption of negligence, and to inference of negligence may be drawn giving rise to an
thereby place on the defendant the burden of going forward application of the doctrine of res ipsa loquitur without
with the proof.[20] Still, before resort to the doctrine may be medical evidence, which is ordinarily required to show not
allowed, the following requisites must be satisfactorily only what occurred but how and why it occurred. [31] When the
shown: doctrine is appropriate, all that the patient must do is prove a
1. The accident is of a kind which ordinarily does nexus between the particular act or omission complained of
not occur in the absence of someones and the injury sustained while under the custody and
negligence; management of the defendant without need to produce expert
medical testimony to establish the standard of care. Resort
2. It is caused by an instrumentality within the to res ipsa loquitur is allowed because there is no other way,
exclusive control of the defendant or defendants; under usual and ordinary conditions, by which the patient can
and obtain redress for injury suffered by him.
3. The possibility of contributing conduct which Thus, courts of other jurisdictions have applied the
would make the plaintiff responsible is doctrine in the following situations: leaving of a foreign
eliminated.[21] object in the body of the patient after an operation,[32] injuries
In the above requisites, the fundamental element is the sustained on a healthy part of the body which was not under,
control of the instrumentality which caused the damage. or in the area, of treatment,[33] removal of the wrong part of
Such element of control must be shown to be within the the body when another part was intended,[34] knocking out a
dominion of the defendant. In order to have the benefit of the tooth while a patients jaw was under anesthetic for the
rule, a plaintiff, in addition to proving injury or damage, must removal of his tonsils,[35] and loss of an eye while the patient
show a situation where it is applicable, and must establish plaintiff was under the influence of anesthetic, during or
that the essential elements of the doctrine were present in a following an operation for appendicitis,[36] among others.
particular incident.[23] Nevertheless, despite the fact that the scope of res ipsa
Medical malpractice cases do not escape the loquitur has been measurably enlarged, it does not
application of this doctrine. Thus, res ipsa loquitur has been automatically apply to all cases of medical negligence as to
applied when the circumstances attendant upon the harm are mechanically shift the burden of proof to the defendant to
themselves of such a character as to justify an inference of show that he is not guilty of the ascribed negligence. Res ipsa
negligence as the cause of that harm.[25] The application of res loquitur is not a rigid or ordinary doctrine to be perfunctorily
ipsa loquitur in medical negligence cases presents a question used but a rule to be cautiously applied, depending upon the
of law since it is a judicial function to determine whether a circumstances of each case. It is generally restricted to
certain set of circumstances does, as a matter of law, permit a situations in malpractice cases where a layman is able to say,
given inference.[26] as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would
Although generally, expert medical testimony is relied ordinarily have followed if due care had been exercised.[37] A
upon in malpractice suits to prove that a physician has done a distinction must be made between the failure to secure
negligent act or that he has deviated from the standard results, and the occurrence of something more unusual and
medical procedure, when the doctrine of res ipsa loquitur is not ordinarily found if the service or treatment rendered
availed by the plaintiff, the need for expert medical testimony followed the usual procedure of those skilled in that particular
is dispensed with because the injury itself provides the proof practice. It must be conceded that the doctrine of res ipsa
of negligence.[27] The reason is that the general rule on the loquitur can have no application in a suit against a physician
or surgeon which involves the merits of a diagnosis or of a Indeed, the principles enunciated in the aforequoted case
scientific treatment.[38] The physician or surgeon is not apply with equal force here. In the present case, Erlinda
required at his peril to explain why any particular diagnosis submitted herself for cholecystectomy and expected a routine
was not correct, or why any particular scientific treatment did general surgery to be performed on her gall bladder. On that
not produce the desired result. [39] Thus, res ipsa loquitur is not fateful day she delivered her person over to the care, custody
available in a malpractice suit if the only showing is that the and control of private respondents who exercised complete
desired result of an operation or treatment was not and exclusive control over her. At the time of submission,
accomplished.[40] The real question, therefore, is whether or Erlinda was neurologically sound and, except for a few minor
not in the process of the operation any extraordinary incident discomforts, was likewise physically fit in mind and
or unusual event outside of the routine performance occurred body. However, during the administration of anesthesia and
which is beyond the regular scope of customary professional prior to the performance of cholecystectomy she suffered
activity in such operations, which, if unexplained would irreparable damage to her brain. Thus, without undergoing
themselves reasonably speak to the average man as the surgery, she went out of the operating room already
negligent cause or causes of the untoward consequence. [41] If decerebrate and totally incapacitated. Obviously, brain
there was such extraneous interventions, the doctrine of res damage, which Erlinda sustained, is an injury which does not
ipsa loquitur may be utilized and the defendant is called upon normally occur in the process of a gall bladder operation. In
to explain the matter, by evidence of exculpation, if he could. fact, this kind of situation does not happen in the absence of
negligence of someone in the administration of anesthesia
and in the use of endotracheal tube. Normally, a person being
We find the doctrine of res ipsa loquitur appropriate in put under anesthesia is not rendered decerebrate as a
the case at bar. As will hereinafter be explained, the damage consequence of administering such anesthesia if the proper
sustained by Erlinda in her brain prior to a scheduled gall procedure was followed. Furthermore, the instruments used in
bladder operation presents a case for the application of res the administration of anesthesia, including the endotracheal
ipsa loquitur. tube, were all under the exclusive control of private
A case strikingly similar to the one before us is Voss vs. respondents, who are the physicians-in-charge. Likewise,
Bridwell,[43] where the Kansas Supreme Court in applying petitioner Erlinda could not have been guilty of contributory
the res ipsa loquitur stated: negligence because she was under the influence of anesthetics
which rendered her unconscious.
The plaintiff herein submitted himself for a mastoid Considering that a sound and unaffected member of the
operation and delivered his person over to the care, custody body (the brain) is injured or destroyed while the patient is
and control of his physician who had complete and exclusive unconscious and under the immediate and exclusive control
control over him, but the operation was never performed. At of the physicians, we hold that a practical administration of
the time of submission he was neurologically sound and justice dictates the application of res ipsa loquitur. Upon
physically fit in mind and body, but he suffered irreparable these facts and under these circumstances the Court would be
damage and injury rendering him decerebrate and totally able to say, as a matter of common knowledge and
incapacitated. The injury was one which does not ordinarily observation, if negligence attended the management and care
occur in the process of a mastoid operation or in the absence of the patient. Moreover, the liability of the physicians and
of negligence in the administration of an anesthetic, and in the hospital in this case is not predicated upon an alleged
the use and employment of an endoctracheal tube. Ordinarily failure to secure the desired results of an operation nor on an
a person being put under anesthesia is not rendered alleged lack of skill in the diagnosis or treatment as in fact no
decerebrate as a consequence of administering such operation or treatment was ever performed on Erlinda. Thus,
anesthesia in the absence of negligence. Upon these facts and upon all these initial determination a case is made out for the
under these circumstances a layman would be able to say, as a application of the doctrine of res ipsa loquitur.
matter of common knowledge and observation, that the
consequences of professional treatment were not as such as Nonetheless, in holding that res ipsa loquitur is available
would ordinarily have followed if due care had been to the present case we are not saying that the doctrine is
exercised. applicable in any and all cases where injury occurs to a
patient while under anesthesia, or to any and all anesthesia
Here the plaintiff could not have been guilty of contributory cases. Each case must be viewed in its own light and
negligence because he was under the influence of anesthetics scrutinized in order to be within the res ipsa
and unconscious, and the circumstances are such that the true loquitur coverage.
explanation of event is more accessible to the defendants than Having in mind the applicability of the res ipsa
to the plaintiff for they had the exclusive control of the loquitur doctrine and the presumption of negligence allowed
instrumentalities of anesthesia. therein, the Court now comes to the issue of whether the
Court of Appeals erred in finding that private respondents
Upon all the facts, conditions and circumstances alleged in were not negligent in the care of Erlinda during the anesthesia
Count II it is held that a cause of action is stated under the phase of the operation and, if in the affirmative, whether the
doctrine of res ipsa loquitur.[44] alleged negligence was the proximate cause of Erlindas
comatose condition. Corollary thereto, we shall also She will be incompetent Your Honor.
determine if the Court of Appeals erred in relying on the
testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Witness may answer if she knows.
Court of Appeals relied on the testimonies of Dra. Gutierrez, A: As I have said, I was with the patient, I was beside the
Dra. Calderon and Dr. Jamora. In giving weight to the stretcher holding the left hand of the patient and all of
testimony of Dra. Gutierrez, the Court of Appeals rationalized a sudden I heard some remarks coming from Dra.
that she was candid enough to admit that she experienced Perfecta Gutierrez herself. She was saying Ang hirap
some difficulty in the endotracheal intubation [45]of the patient ma-intubate nito, mali yata ang pagkakapasok. O
and thus, cannot be said to be covering her negligence with lumalaki ang tiyan.
falsehood. The appellate court likewise opined that private
respondents were able to show that the brain damage xxx
sustained by Erlinda was not caused by the alleged faulty ATTY. PAJARES:
intubation but was due to the allergic reaction of the patient to
the drug Thiopental Sodium (Pentothal), a short-acting Q: From whom did you hear those words lumalaki ang
barbiturate, as testified on by their expert witness, Dr. tiyan?
Jamora. On the other hand, the appellate court rejected the A: From Dra. Perfecta Gutierrez.
testimony of Dean Herminda Cruz offered in favor of
petitioners that the cause of the brain injury was traceable to xxx
the wrongful insertion of the tube since the latter, being a
After hearing the phrase lumalaki ang tiyan, what did
nurse, was allegedly not knowledgeable in the process of
you notice on the person of the patient?
intubation. In so holding, the appellate court returned a
verdict in favor of respondents physicians and hospital and A: I notice (sic) some bluish discoloration on the nailbeds
absolved them of any liability towards Erlinda and her family. of the left hand where I was at.
We disagree with the findings of the Court of Q: Where was Dr. Orlino Ho[s]aka then at that particular
Appeals. We hold that private respondents were unable to time?
disprove the presumption of negligence on their part in the
care of Erlinda and their negligence was the proximate cause A: I saw him approaching the patient during that time.
of her piteous condition. Q: When he approached the patient, what did he do, if
In the instant case, the records are helpful in furnishing any?
not only the logical scientific evidence of the pathogenesis of A: He made an order to call on the anesthesiologist in the
the injury but also in providing the Court the legal nexus person of Dr. Calderon.
upon which liability is based. As will be shown hereinafter,
private respondents own testimonies which are reflected in Q: Did Dr. Calderon, upon being called, arrive inside the
the transcript of stenographic notes are replete of signposts operating room?
indicative of their negligence in the care and management of A: Yes sir.
Q: What did [s]he do, if any?
With regard to Dra. Gutierrez, we find her negligent in
the care of Erlinda during the anesthesia phase. As borne by A: [S]he tried to intubate the patient.
the records, respondent Dra. Gutierrez failed to properly
Q: What happened to the patient?
intubate the patient. This fact was attested to by Prof.
Herminda Cruz, Dean of the Capitol Medical Center School A: When Dr. Calderon try (sic) to intubate the patient,
of Nursing and petitioner's sister-in-law, who was in the after a while the patients nailbed became bluish and I
operating room right beside the patient when the tragic event saw the patient was placed in trendelenburg position.
occurred. Witness Cruz testified to this effect:
Q: Do you know the reason why the patient was placed in
Q: In particular, what did Dra. Perfecta Gutierrez do, if that trendelenburg position?
any on the patient?
A: As far as I know, when a patient is in that position,
A: In particular, I could see that she was intubating the there is a decrease of blood supply to the brain. [46]
Q: Do you know what happened to that intubation process
administered by Dra. Gutierrez? The appellate court, however, disbelieved Dean Cruz's
testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country Most of all, her testimony was affirmed by no less than
will show that intubation is not taught as part of nursing respondent Dra. Gutierrez who admitted that she experienced
procedures and techniques. Indeed, we take judicial notice of difficulty in inserting the tube into Erlindas trachea, to wit:
the fact that nurses do not, and cannot, intubate. Even on the
assumption that she is fully capable of determining whether
or not a patient is properly intubated, witness Herminda Cruz, Q: In this particular case, Doctora, while you were
admittedly, did not peep into the throat of the patient. (TSN, intubating at your first attempt (sic), you did not
July 25, 1991, p. 13). More importantly, there is no evidence immediately see the trachea?
that she ever auscultated the patient or that she conducted any
type of examination to check if the endotracheal tube was in DRA. GUTIERREZ:
its proper place, and to determine the condition of the heart, A: Yes sir.
lungs, and other organs. Thus, witness Cruz's categorical
statements that appellant Dra. Gutierrez failed to intubate the Q: Did you pull away the tube immediately?
appellee Erlinda Ramos and that it was Dra. Calderon who A: You do not pull the ...
succeeded in doing so clearly suffer from lack of sufficient
factual bases.[47] Q: Did you or did you not?
A: I did not pull the tube.
In other words, what the Court of Appeals is trying to
impress is that being a nurse, and considered a layman in the Q: When you said mahirap yata ito, what were you
process of intubation, witness Cruz is not competent to testify referring to?
on whether or not the intubation was a success.
A: Mahirap yata itong i-intubate, that was the patient.
We do not agree with the above reasoning of the
appellate court. Although witness Cruz is not an Q: So, you found some difficulty in inserting the tube?
anesthesiologist, she can very well testify upon matters on A: Yes, because of (sic) my first attempt, I did not see
which she is capable of observing such as, the statements and right away.[51]
acts of the physician and surgeon, external appearances, and
manifest conditions which are observable by any one.[48] This Curiously in the case at bar, respondent Dra. Gutierrez
is precisely allowed under the doctrine of res ipsa made the haphazard defense that she encountered hardship in
loquitur where the testimony of expert witnesses is not the insertion of the tube in the trachea of Erlinda because it
required. It is the accepted rule that expert testimony is not was positioned more anteriorly (slightly deviated from the
necessary for the proof of negligence in non-technical matters normal anatomy of a person)[52] making it harder to locate
or those of which an ordinary person may be expected to have and, since Erlinda is obese and has a short neck and
knowledge, or where the lack of skill or want of care is so protruding teeth, it made intubation even more difficult.
obvious as to render expert testimony unnecessary.[49] We take The argument does not convince us. If this was indeed
judicial notice of the fact that anesthesia procedures have observed, private respondents adduced no evidence
become so common, that even an ordinary person can tell if it demonstrating that they proceeded to make a thorough
was administered properly. As such, it would not be too assessment of Erlindas airway, prior to the induction of
difficult to tell if the tube was properly inserted. This kind of anesthesia, even if this would mean postponing the
observation, we believe, does not require a medical degree to procedure. From their testimonies, it appears that the
be acceptable. observation was made only as an afterthought, as a means of
At any rate, without doubt, petitioner's witness, an defense.
experienced clinical nurse whose long experience and The pre-operative evaluation of a patient prior to the
scholarship led to her appointment as Dean of the Capitol administration of anesthesia is universally observed to lessen
Medical Center School of Nursing, was fully capable of the possibility of anesthetic accidents. Pre-operative
determining whether or not the intubation was a success. She evaluation and preparation for anesthesia begins when the
had extensive clinical experience starting as a staff nurse in anesthesiologist reviews the patients medical records and
Chicago, Illinois; staff nurse and clinical instructor in a visits with the patient, traditionally, the day before elective
teaching hospital, the FEU-NRMF; Dean of the Laguna surgery.[53] It includes taking the patients medical history,
College of Nursing in San Pablo City; and then Dean of the review of current drug therapy, physical examination and
Capitol Medical Center School of Nursing. [50]Reviewing interpretation of laboratory data. [54] The physical examination
witness Cruz' statements, we find that the same were performed by the anesthesiologist is directed primarily
delivered in a straightforward manner, with the kind of detail, toward the central nervous system, cardiovascular system,
clarity, consistency and spontaneity which would have been lungs and upper airway.[55] A thorough analysis of the
difficult to fabricate. With her clinical background as a nurse, patient's airway normally involves investigating the
the Court is satisfied that she was able to demonstrate through following: cervical spine mobility, temporomandibular
her testimony what truly transpired on that fateful day. mobility, prominent central incisors, diseased or artificial
teeth, ability to visualize uvula and the thyromental distance.
Thus, physical characteristics of the patients upper airway interview and clinical evaluation. There is ample time to
that could make tracheal intubation difficult should be explain the method of anesthesia, the drugs to be used, and
studied.[57] Where the need arises, as when initial assessment their possible hazards for purposes of informed
indicates possible problems (such as the alleged short neck consent. Usually, the pre-operative assessment is conducted at
and protruding teeth of Erlinda) a thorough examination of least one day before the intended surgery, when the patient is
the patients airway would go a long way towards decreasing relaxed and cooperative.
patient morbidity and mortality.
Erlindas case was elective and this was known to
In the case at bar, respondent Dra. Gutierrez admitted respondent Dra. Gutierrez. Thus, she had all the time to make
that she saw Erlinda for the first time on the day of the a thorough evaluation of Erlindas case prior to the operation
operation itself, on 17 June 1985. Before this date, no prior and prepare her for anesthesia.However, she never saw the
consultations with, or pre-operative evaluation of Erlinda was patient at the bedside. She herself admitted that she had seen
done by her. Until the day of the operation, respondent Dra. petitioner only in the operating room, and only on the actual
Gutierrez was unaware of the physiological make-up and date of the cholecystectomy. She negligently failed to take
needs of Erlinda. She was likewise not properly informed of advantage of this important opportunity. As such, her attempt
the possible difficulties she would face during the to exculpate herself must fail.
administration of anesthesia to Erlinda. Respondent Dra.
Having established that respondent Dra. Gutierrez failed
Gutierrez act of seeing her patient for the first time only an
hour before the scheduled operative procedure was, therefore, to perform pre-operative evaluation of the patient which, in
turn, resulted to a wrongful intubation, we now determine if
an act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and the faulty intubation is truly the proximate cause of Erlindas
comatose condition.
vigilance in dealing with human lives lie at the core of the
physicians centuries-old Hippocratic Oath. Her failure to Private respondents repeatedly hammered the view that
follow this medical procedure is, therefore, a clear indicia of the cerebral anoxia which led to Erlindas coma was due to
her negligence. bronchospasm[59] mediated by her allergic response to the
drug, Thiopental Sodium, introduced into her
Respondent Dra. Gutierrez, however, attempts to gloss
over this omission by playing around with the trial court's system. Towards this end, they presented Dr. Jamora, a
Fellow of the Philippine College of Physicians and Diplomate
ignorance of clinical procedure, hoping that she could get
away with it. Respondent Dra. Gutierrez tried to muddle the of the Philippine Specialty Board of Internal Medicine, who
advanced private respondents' theory that the oxygen
difference between an elective surgery and an emergency
surgery just so her failure to perform the required pre- deprivation which led to anoxic encephalopathy, [60] was due to
an unpredictable drug reaction to the short-acting
operative evaluation would escape unnoticed. In her
testimony she asserted: barbiturate. We find the theory of private respondents
ATTY. LIGSAY: First of all, Dr. Jamora cannot be considered an authority
in the field of anesthesiology simply because he is not an
Q: Would you agree, Doctor, that it is good medical practice anesthesiologist. Since Dr. Jamora is a pulmonologist, he
to see the patient a day before so you can introduce yourself could not have been capable of properly enlightening the
to establish good doctor-patient relationship and gain the trust court about anesthesia practice and procedure and their
and confidence of the patient? complications. Dr. Jamora is likewise not an allergologist and
could not therefore properly advance expert opinion on
DRA. GUTIERREZ: allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been capable, as
A: As I said in my previous statement, it depends on the an expert would, of explaining to the court the pharmacologic
operative procedure of the anesthesiologist and in my case, and toxic effects of the supposed culprit, Thiopental Sodium
with elective cases and normal cardio-pulmonary clearance (Pentothal).
like that, I usually don't do it except on emergency and on The inappropriateness and absurdity of accepting Dr.
cases that have an abnormalities (sic). [58] Jamoras testimony as an expert witness in the anesthetic
practice of Pentothal administration is further supported by
However, the exact opposite is true. In an emergency his own admission that he formulated his opinions on the
procedure, there is hardly enough time available for the drug not from the practical experience gained by a specialist
fastidious demands of pre-operative procedure so that an or expert in the administration and use of Sodium Pentothal
anesthesiologist is able to see the patient only a few minutes on patients, but only from reading certain references, to wit:
before surgery, if at all. Elective procedures, on the other
hand, are operative procedures that can wait for days, weeks ATTY. LIGSAY:
or even months. Hence, in these cases, the anesthesiologist Q: In your line of expertise on pulmonology, did you have
possesses the luxury of time to make a proper assessment, any occasion to use pentothal as a method of
including the time to be at the patient's bedside to do a proper management?
DR. JAMORA: Moreover, private respondents theory, that Thiopental
Sodium may have produced Erlinda's coma by triggering an
A: We do it in conjunction with the anesthesiologist when allergic mediated response, has no support in evidence. No
they have to intubate our patient. evidence of stridor, skin reactions, or wheezing - some of the
Q: But not in particular when you practice pulmonology? more common accompanying signs of an allergic reaction -
appears on record. No laboratory data were ever presented to
A: No. the court.
Q: In other words, your knowledge about pentothal is In any case, private respondents themselves admit that
based only on what you have read from books and Thiopental induced, allergic-mediated bronchospasm happens
not by your own personal application of the medicine only very rarely. If courts were to accept private respondents'
pentothal? hypothesis without supporting medical proof, and against the
A: Based on my personal experience also on pentothal. weight of available evidence, then every anesthetic accident
would be an act of God. Evidently, the Thiopental-allergy
Q: How many times have you used pentothal? theory vigorously asserted by private respondents was a mere
A: They used it on me. I went into bronchospasm during afterthought. Such an explanation was advanced in order to
my appendectomy. absolve them of any and all responsibility for the patients
Q: And because they have used it on you and on account
of your own personal experience you feel that you In view of the evidence at hand, we are inclined to
can testify on pentothal here with medical authority? believe petitioners stand that it was the faulty intubation
which was the proximate cause of Erlindas comatose
A: No. That is why I used references to support my condition.
Proximate cause has been defined as that which, in
An anesthetic accident caused by a rare drug-induced natural and continuous sequence, unbroken by any efficient
bronchospasm properly falls within the fields of anesthesia, intervening cause, produces injury, and without which the
internal medicine-allergy, and clinical pharmacology. The result would not have occurred. [64] An injury or damage is
resulting anoxic encephalopathy belongs to the field of proximately caused by an act or a failure to act, whenever it
neurology. While admittedly, many bronchospastic-mediated appears from the evidence in the case, that the act or omission
pulmonary diseases are within the expertise of pulmonary played a substantial part in bringing about or actually causing
medicine, Dr. Jamora's field, the anesthetic drug-induced, the injury or damage; and that the injury or damage was
allergic mediated bronchospasm alleged in this case is within either a direct result or a reasonably probable consequence of
the disciplines of anesthesiology, allergology and the act or omission.[65] It is the dominant, moving or
pharmacology. On the basis of the foregoing transcript, in producing cause.
which the pulmonologist himself admitted that he could not
testify about the drug with medical authority, it is clear that Applying the above definition in relation to the evidence
the appellate court erred in giving weight to Dr. Jamoras at hand, faulty intubation is undeniably the proximate cause
testimony as an expert in the administration of Thiopental which triggered the chain of events leading to Erlindas brain
Sodium. damage and, ultimately, her comatosed condition.

The provision in the rules of evidence [62]regarding expert Private respondents themselves admitted in their
witnesses states: testimony that the first intubation was a failure. This fact was
likewise observed by witness Cruz when she heard
Sec. 49. Opinion of expert witness. - The opinion of respondent Dra. Gutierrez remarked, Ang hirap ma-intubate
a witness on a matter requiring special knowledge, nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
skill, experience or training which he is shown to Thereafter, witness Cruz noticed abdominal distention on the
possess, may be received in evidence. body of Erlinda. The development of abdominal distention,
together with respiratory embarrassment indicates that the
Generally, to qualify as an expert witness, one must have
endotracheal tube entered the esophagus instead of the
acquired special knowledge of the subject matter about which
respiratory tree. In other words, instead of the intended
he or she is to testify, either by the study of recognized
endotracheal intubation what actually took place was an
authorities on the subject or by practical experience.
[63] esophageal intubation. During intubation, such distention
Clearly, Dr. Jamora does not qualify as an expert witness
indicates that air has entered the gastrointestinal tract through
based on the above standard since he lacks the necessary
the esophagus instead of the lungs through the trachea. Entry
knowledge, skill, and training in the field of
into the esophagus would certainly cause some delay in
anesthesiology.Oddly, apart from submitting testimony from a
oxygen delivery into the lungs as the tube which carries
specialist in the wrong field, private respondents intentionally
oxygen is in the wrong place. That abdominal distention had
avoided providing testimony by competent and independent
been observed during the first intubation suggests that the
experts in the proper areas.
length of time utilized in inserting the endotracheal tube (up
to the time the tube was withdrawn for the second attempt)
was fairly significant. Due to the delay in the delivery of Erlindas cholecystectomy, and was in fact over three hours
oxygen in her lungs Erlinda showed signs of cyanosis. [66] As late for the latters operation. Because of this, he had little or
stated in the testimony of Dr. Hosaka, the lack of oxygen no time to confer with his anesthesiologist regarding the
became apparent only after he noticed that the nailbeds of anesthesia delivery. This indicates that he was remiss in his
Erlinda were already blue. [67] However, private respondents professional duties towards his patient.Thus, he shares equal
contend that a second intubation was executed on Erlinda and responsibility for the events which resulted in Erlindas
this one was successfully done. We do not think so. No condition.
evidence exists on record, beyond private respondents' bare
We now discuss the responsibility of the hospital in this
claims, which supports the contention that the second
intubation was successful. Assuming that the endotracheal particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
tube finally found its way into the proper orifice of the
trachea, the same gave no guarantee of oxygen delivery, the visiting consultants,[74] who are allegedly not hospital
employees, presents problems in apportioning responsibility
hallmark of a successful intubation. In fact, cyanosis was
again observed immediately after the second for negligence in medical malpractice cases. However, the
difficulty is only more apparent than real.
intubation. Proceeding from this event (cyanosis), it could not
be claimed, as private respondents insist, that the second In the first place, hospitals exercise significant control in
intubation was accomplished. Even granting that the tube was the hiring and firing of consultants and in the conduct of their
successfully inserted during the second attempt, it was work within the hospital premises. Doctors who apply for
obviously too late. As aptly explained by the trial court, consultant slots, visiting or attending, are required to submit
Erlinda already suffered brain damage as a result of the proof of completion of residency, their educational
inadequate oxygenation of her brain for about four to five qualifications; generally, evidence of accreditation by the
minutes.[68] appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully
The above conclusion is not without basis. Scientific
studies point out that intubation problems are responsible for scrutinized by members of the hospital administration or by a
review committee set up by the hospital who either accept or
one-third (1/3) of deaths and serious injuries associated with
anesthesia.[69]Nevertheless, ninety-eight percent (98%) or the reject the application.[75]This is particularly true with
respondent hospital.
vast majority of difficult intubations may be anticipated by
performing a thorough evaluation of the patients airway prior After a physician is accepted, either as a visiting or
to the operation.[70] As stated beforehand, respondent Dra. attending consultant, he is normally required to attend
Gutierrez failed to observe the proper pre-operative protocol clinico-pathological conferences, conduct bedside rounds for
which could have prevented this unfortunate incident. Had clerks, interns and residents, moderate grand rounds and
appropriate diligence and reasonable care been used in the patient audits and perform other tasks and responsibilities, for
pre-operative evaluation, respondent physician could have the privilege of being able to maintain a clinic in the hospital,
been much more prepared to meet the contingency brought and/or for the privilege of admitting patients into the
about by the perceived anatomic variations in the patients hospital. In addition to these, the physicians performance as a
neck and oral area, defects which would have been easily specialist is generally evaluated by a peer review committee
overcome by a prior knowledge of those variations together on the basis of mortality and morbidity statistics, and
with a change in technique.[71] In other words, an experienced feedback from patients, nurses, interns and residents. A
anesthesiologist, adequately alerted by a thorough pre- consultant remiss in his duties, or a consultant who regularly
operative evaluation, would have had little difficulty going falls short of the minimum standards acceptable to the
around the short neck and protruding teeth. [72] Having failed hospital or its peer review committee, is normally politely
to observe common medical standards in pre-operative terminated.
management and intubation, respondent Dra. Gutierrez
negligence resulted in cerebral anoxia and eventual coma of In other words, private hospitals, hire, fire and exercise
Erlinda. real control over their attending and visiting consultant
staff. While consultants are not, technically employees, a
We now determine the responsibility of respondent Dr. point which respondent hospital asserts in denying all
Orlino Hosaka as the head of the surgical team. As the so- responsibility for the patients condition, the control exercised,
called captain of the ship,[73] it is the surgeons responsibility the hiring, and the right to terminate consultants all fulfill the
to see to it that those under him perform their task in the important hallmarks of an employer-employee relationship,
proper manner. Respondent Dr. Hosakas negligence can be with the exception of the payment of wages. In assessing
found in his failure to exercise the proper authority (as the whether such a relationship in fact exists, the control test is
captain of the operative team) in not determining if his determining. Accordingly, on the basis of the foregoing, we
anesthesiologist observed proper anesthesia protocols. In fact, rule that for the purpose of allocating responsibility in
no evidence on record exists to show that respondent Dr. medical negligence cases, an employer-employee relationship
Hosaka verified if respondent Dra. Gutierrez properly in effect exists between hospitals and their attending and
intubated the patient.Furthermore, it does not escape us that visiting physicians. This being the case, the question now
respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as
arises as to whether or not respondent hospital is solidarily pneumonia. Feeding is done by nasogastric tube. Food
liable with respondent doctors for petitioners condition. [76] preparation should be normally made by a dietitian to provide
her with the correct daily caloric requirements and vitamin
The basis for holding an employer solidarily responsible supplements. Furthermore, she has to be seen on a regular
for the negligence of its employee is found in Article 2180 of basis by a physical therapist to avoid muscle atrophy, and by
the Civil Code which considers a person accountable not only a pulmonary therapist to prevent the accumulation of
for his own acts but also for those of others based on the secretions which can lead to respiratory complications.
formers responsibility under a relationship of patria potestas.
Such responsibility ceases when the persons or entity Given these considerations, the amount of actual
concerned prove that they have observed the diligence of a damages recoverable in suits arising from negligence should
good father of the family to prevent damage. [78] In other at least reflect the correct minimum cost of proper care, not
words, while the burden of proving negligence rests on the the cost of the care the family is usually compelled to
plaintiffs, once negligence is shown, the burden shifts to the undertake at home to avoid bankruptcy. However, the
respondents (parent, guardian, teacher or employer) who provisions of the Civil Code on actual or compensatory
should prove that they observed the diligence of a good father damages present us with some difficulties.
of a family to prevent damage.
Well-settled is the rule that actual damages which may
In the instant case, respondent hospital, apart from a be claimed by the plaintiff are those suffered by him as he has
general denial of its responsibility over respondent duly proved. The Civil Code provides:
physicians, failed to adduce evidence showing that it
exercised the diligence of a good father of a family in the Art. 2199. - Except as provided by law or by stipulation, one
hiring and supervision of the latter. It failed to adduce is entitled to an adequate compensation only for such
evidence with regard to the degree of supervision which it pecuniary loss suffered by him as he has duly proved. Such
exercised over its physicians. In neglecting to offer such compensation is referred to as actual or compensatory
proof, or proof of a similar nature, respondent hospital damages.
thereby failed to discharge its burden under the last paragraph
of Article 2180. Having failed to do this, respondent hospital Our rules on actual or compensatory damages generally
is consequently solidarily responsible with its physicians for assume that at the time of litigation, the injury suffered as a
Erlindas condition. consequence of an act of negligence has been completed and
Based on the foregoing, we hold that the Court of that the cost can be liquidated. However, these provisions
Appeals erred in accepting and relying on the testimonies of neglect to take into account those situations, as in this case,
the witnesses for the private respondents. Indeed, as shown where the resulting injury might be continuing and possible
by the above discussions, private respondents were unable to future complications directly arising from the injury, while
rebut the presumption of negligence. Upon these disquisitions certain to occur, are difficult to predict.
we hold that private respondents are solidarily liable for In these cases, the amount of damages which should be
damages under Article 2176[79] of the Civil Code. awarded, if they are to adequately and correctly respond to
We now come to the amount of damages due the injury caused, should be one which compensates for
petitioners. The trial court awarded a total of P632,000.00 pecuniary loss incurred and proved, up to the time of
pesos (should be P616,000.00) in compensatory damages to trial; and one which would meet pecuniary loss certain to be
the plaintiff, subject to its being updated covering the period suffered but which could not, from the nature of the case, be
from 15 November 1985 up to 15 April 1992, based on made with certainty.[80] In other words, temperate damages
monthly expenses for the care of the patient estimated can and should be awarded on top of actual or compensatory
at P8,000.00. damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases,
At current levels, the P8000/monthly amount established no incompatibility arises when both actual and temperate
by the trial court at the time of its decision would be grossly damages are provided for. The reason is that these damages
inadequate to cover the actual costs of home-based care for a cover two distinct phases.
comatose individual.The calculated amount was not even
arrived at by looking at the actual cost of proper hospice care As it would not be equitable - and certainly not in the
for the patient. What it reflected were the actual expenses best interests of the administration of justice - for the victim
incurred and proved by the petitioners after they were forced in such cases to constantly come before the courts and invoke
to bring home the patient to avoid mounting hospital bills. their aid in seeking adjustments to the compensatory damages
previously awarded - temperate damages are appropriate. The
And yet ideally, a comatose patient should remain in a amount given as temperate damages, though to a certain
hospital or be transferred to a hospice specializing in the care extent speculative, should take into account the cost of proper
of the chronically ill for the purpose of providing a proper care.
milieu adequate to meet minimum standards of care. In the
instant case for instance, Erlinda has to be constantly turned In the instant case, petitioners were able to provide only
from side to side to prevent bedsores and hypostatic home-based nursing care for a comatose patient who has
remained in that condition for over a decade. Having
premised our award for compensatory damages on the lower limb. The sensory functions are forever
amount provided by petitioners at the onset of litigation, it lost.The resultant anxiety, sleeplessness,
would be now much more in step with the interests of justice psychological injury, mental and physical pain are
if the value awarded for temperate damages would allow inestimable.[83]
petitioners to provide optimal care for their loved one in a
facility which generally specializes in such care. They should The injury suffered by Erlinda as a consequence of
private respondents negligence is certainly much more
not be compelled by dire circumstances to provide
substandard care at home without the aid of professionals, for serious than the amputation in the Valenzuela case.
anything less would be grossly inadequate. Under the Petitioner Erlinda Ramos was in her mid-forties when
circumstances, an award of P1,500,000.00 in temperate the incident occurred. She has been in a comatose state for
damages would therefore be reasonable.[81] over fourteen years now. The burden of care has so far been
In Valenzuela vs. Court of Appeals,[82] this Court was heroically shouldered by her husband and children, who, in
the intervening years have been deprived of the love of a wife
confronted with a situation where the injury suffered by the
plaintiff would have led to expenses which were difficult to and a mother.
estimate because while they would have been a direct result Meanwhile, the actual physical, emotional and financial
of the injury (amputation), and were certain to be incurred by cost of the care of petitioner would be virtually impossible to
the plaintiff, they were likely to arise only in the future. We quantify. Even the temperate damages herein awarded would
awarded P1,000,000.00 in moral damages in that case. be inadequate if petitioners condition remains unchanged for
the next ten years.
Describing the nature of the injury, the Court therein
stated: We recognized, in Valenzuela that a discussion of the
victims actual injury would not even scratch the surface of
As a result of the accident, Ma. Lourdes Valenzuela
underwent a traumatic amputation of her left lower the resulting moral damage because it would be highly
speculative to estimate the amount of emotional and moral
extremity at the distal left thigh just above the
knee. Because of this, Valenzuela will forever be pain, psychological damage and injury suffered by the victim
or those actually affected by the victims condition. [84] The
deprived of the full ambulatory functions of her left
extremity, even with the use of state of the art husband and the children, all petitioners in this case, will
have to live with the day to day uncertainty of the patients
prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will illness, knowing any hope of recovery is close to nil. They
have fashioned their daily lives around the nursing care of
be required to undergo adjustments in her prosthetic
devise due to the shrinkage of the stump from the petitioner, altering their long term goals to take into account
their life with a comatose patient. They, not the respondents,
process of healing.
are charged with the moral responsibility of the care of the
These adjustments entail costs, prosthetic victim. The familys moral injury and suffering in this case is
replacements and months of physical and clearly a real one. For the foregoing reasons, an award
occupational rehabilitation and therapy. During her of P2,000,000.00 in moral damages would be appropriate.
lifetime, the prosthetic devise will have to be
replaced and readjusted to changes in the size of her Finally, by way of example, exemplary damages in the
amount of P100,000.00 are hereby awarded. Considering the
lower limb effected by the biological changes of
middle-age, menopause and aging. Assuming she length and nature of the instant suit we are of the opinion that
attorneys fees valued at P100,000.00 are likewise proper.
reaches menopause, for example, the prosthetic will
have to be adjusted to respond to the changes in Our courts face unique difficulty in adjudicating medical
bone resulting from a precipitate decrease in calcium negligence cases because physicians are not insurers of life
levels observed in the bones of all post-menopausal and, they rarely set out to intentionally cause injury or death
women. In other words, the damage done to her to their patients.However, intent is immaterial in negligence
would not only be permanent and lasting, it would cases because where negligence exists and is proven, the
also be permanently changing and adjusting to the same automatically gives the injured a right to reparation for
physiologic changes which her body the damage caused.
would normally undergo through the years. The
replacements, changes, and adjustments will require Established medical procedures and practices, though in
corresponding adjustive physical and occupational constant flux are devised for the purpose of preventing
therapy. All of these adjustments, it has been complications. A physicians experience with his patients
documented, are painful. would sometimes tempt him to deviate from established
community practices, and he may end a distinguished career
x x x. using unorthodox methods without incident. However, when
failure to follow established procedure results in the evil
A prosthetic devise, however technologically
advanced, will only allow a reasonable amount of precisely sought to be averted by observance of the procedure
and a nexus is made between the deviation and the injury or
functional restoration of the motor functions of the
damage, the physician would necessarily be called to account
for it. In the case at bar, the failure to observe pre-operative
assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents
WHEREFORE, the decision and resolution of the
appellate court appealed from are hereby modified so as to
award in favor of petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00 as actual
damages computed as of the date of promulgation of this
decision plus a monthly payment of P8,000.00 up to the time
that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages,
3) P1,500,000.00 as temperate damages; 4) P100,000.00 each
as exemplary damages and attorneys fees; and, 5) the costs of
the suit.