G.R. No. L-10563 March 2, 1916 not avoid the possibility of danger by stepping aside.
not avoid the possibility of danger by stepping aside. Ordinarily, all that may properly be required of an engine
THE UNITED STATES, plaintiff-appellee,
vs.
ANTONIO BONIFACIO, defendant-appellant.
William A. Kincaid and Thomas L. Hartigan for appellant.

Acting Attorney-General Zaragoza for appellee.
CARSON, J.:
The appellant in this case was charged in the court below with homicidio por imprudencia temeraria (homicide
committed with reckless negligence), and was convicted of homicidio committed with simple negligence and
sentenced to four months and one day of arresto mayor and to pay the costs of the proceedings.
The information charges the commission of the offense as follows:
On or about the 31st day of October of the present year, 1913, in the barrio of Santa Rita of the municipality of
Batangas, Batangas, the accused, being an engineer and while conducting the freight train which was going to the
municipality of Bauan, at about 10 o'clock in the morning of the said day saw that Eligio Castillo, a deaf-mute,
was traveling along the railroad track, and as the said Castillo did not get off of the said track in spite of the
whistle or warnings given by the accused, the accused did maliciously and criminally cause the said train to run
over the said Castillo, thereby killing him instantly; an act committed with violation of law.
On the 31st of October, 1913, Eligio Castillo, a deaf-mute, was run down and killed, while attempting to cross the
railroad track in the barrio of Santa Rita, Batangas, by an engine on which the accused was employed as engineer.
The deaf-mute stepped out on the track from an adjoining field shortly before the accident, walked along one side
of the track for some little distance and was killed as he attempted, for some unknown reason, to cross over to the
other side.
When the accused engineer first saw the deceased, he was walking near the track, in the same direction as that in
which the train was running. The train, a heavy freight train, had just rounded a curve, and the man in front was
about 175 meters ahead of the engine. The engineer immediately blew his whistle twice, and noticing, a few
moments afterwards, that the man in front did not respond to the warning by stepping aside from the track, he
tried to slow down the engine, but did not succeed in stopping in time to avoid running down the pedestrian. He
did not attempt to stop his engine when he first saw the man walking along the side of the track; but he claims
that he did all in his power to slow down a few moments afterwards, that is to say after he had blown his whistle
without apparently attracting the attention of the pedestrian, who, about that time, turned and attempted to cross
the track.
The only evidence as to the rate of speed at which the train was running at the time of the accident was the
testimony of the accused himself, who said that his indicator showed that he was travelling at the rate of 35
kilometers an hour, the maximum speed permitted under the railroad regulations for freight trains on that road.
There was a heavy decline in the track from the turn at the curve to a point some distance beyond the place where
the accident took place, and the undisputed evidence discloses that a heavy freight train running at the rate of 35
miles an hour could not be brought to a stop on that decline in much less than one hundred and fifty meters.
We think that the meter statement of facts, as disclosed by the undisputed evidence of record, sufficiently and
conclusive demonstrates that the death of the deaf-mute was the result of a regrettable accident, which was
unavoidable so far as this accused was concerned.
It has been suggested that, had the accused applied his brakes when he first saw the man walking near the track,
after his engine rounded the curve, he might have stopped the train in time to have avoided the accident, as it is
admitted that the distance from the curve to the point where the accident occurred was about 175 meters.
But there is no obligation on an engine driver to stop, or even to slow down his engine, when he sees an adult
pedestrian standing or walking on or near the track, unless there is something in the appearance or conduct of the
person on foot which would cause a prudent man to anticipate the possibility that such person could not, or would
!1
driver under such circumstances is that he give warning of his approach, by blowing his whistle or ringing his
bell until he is assured that the attention of the pedestrian has been attracted to the oncoming train.
Of course it is the duty of an engine driver to adopt every measure in his power to avoid the infliction of injury
upon any person who may happen to be on the track in front of his engine, and to slow down, or stop altogether if
that be necessary, should he have reason to believe that only by doing so can an accident be averted.
But an engine driver may fairly assume that all persons walking or standing on or near the railroad track, except
children of tender years, are aware of the danger to which they are exposed; and that they will take reasonable
precautions to avoid accident, by looking and listening for the approach of trains, and stepping out of the way of
danger when their attention is directed to an oncoming train.
Any other rule would render it impracticable to operate railroads so as to secure the expeditious transportation of
passengers and freight which the public interest demands. If engine drivers were required to slow down or stop
their trains every time they see a pedestrian on or near the track of the railroad it might well become impossible
for them to maintain a reasonable rate of speed. As a result the general traveling public would be exposed to great
inconvenience and delay which may be, and is readily avoided by requiring all persons approaching a railroad
track, to take reasonable precautions against danger from trains running at high speed.
There was nothing in the appearance or conduct of the victim of the accident in the cast at bar which would have
warned the accused engine driver that the man walking along the side of the tract was a deaf-mute, and that
despite the blowing of the whistle and the noise of the engine he was unconscious of his danger. It was not until
the pedestrian attempted to cross the track, just in front of the train, that the accused had any reason to believe
that his warning signals had not been heard, and by that time it was too late to avoid the accident. Under all the
circumstances, we are satisfied that the accused was without fault; and that the accident must be attributed wholly
to the reckless negligence of the deaf-mute, in walking on the track without taking the necessary precautions to
avoid danger from a train approaching him from behind.
The trial judge, although he was satisfied that the accused was not guilty of reckless negligence, held that he was
guilty of homicide through simple negligence, accompanied by a breach of speed regulations, and imposed the
penalty prescribed for that offense in article 568 of the Penal Code.
The only evidence as to the speed at which the train was running at the time of the accident was the testimony of
the accused himself, who said that before the accident occurred his indicator showed that he was running at the
rate of 35 kilometers an hour, the maximum speed authorized under the railroad regulations. From this statement
of the accused, taken together with the evidence disclosing that the train was running on a down grade at the time
when the accident occurred, the trial judge inferred that the train must have been running at more than 35 miles
an hour at that moment, that is to say at a speed in excess of that allowed under the railroad regulations.
We are of opinion, however, that the evidence does not sustain a finding, beyond a reasonable doubt, that the train
was running at more than 35 miles an hour at the time when the accident occurred. We think that the statement of
the accused engineer that the indicator or his engine showed that he was running at 35 miles an hour before the
accident referred to the time immediately preceding the accident. Even if it were true, as the trial judge inferred
from his evidence, that the accused looked at the indicator several seconds before the accident, and before the
train entered on the down-grade some 175 yards from the place at which it occurred, it does not necessarily
follow that the speed of travel was increased thereafter beyond the limit prescribed by regulations. That would
depend to some extent on the steam pressure maintained on the engine, and perhaps upon other factors not
developed in the record.
Mere conjecture, and inferences unsupported by satisfactory evidence, are not sufficient to establish a material
finding of fact upon which a finding of guilt, beyond a reasonable doubt, can be sustained.
Moreover, even if it were true that the train was running at a speed slightly in excess of the limit prescribed by
regulations, just before the accident took place, that fact would not justify or require the imposition of the penalty
prescribed in article 568 of the Criminal Code, it affirmatively appearing that the slight excess of speed had no
possible causal relation to the accident.
Granting it to be true, as found by the trial judge, that the train had gained some small addition in speed beyond The judgment convicting and sentencing the appellant in this case should be reversed, and the accused acquitted
the authorized rate of travel, as a result of the fact that it was running on down grade for about one hundred of the offense with which he is charged in the information, and his bail bond exonerated, with the costs of both
meters before the accident occurred, it affirmatively appears from the statement of facts set forth above, that, instances de officio. So ordered.
under all the circumstances, the accident must have taken place whether the speed had been slightly under rather
Arellano, C. J., Johnson, Trent, and Araullo, JJ., concur.
than slightly over the limit prescribed by regulation, and that it was due wholly to the negligent conduct of the
deceased. The provisions of article 568 of the Criminal Code under which the accused was convicted are as
follows:
Separate Opinions
xxx xxx xxx
TORRES, J., dissenting:
Any person who, while violating any regulation, shall, by any act of imprudence or negligence not amounting to
The writer is of the opinion that the defendant should be sentenced for the crime of reckless negligence to eight
reckless imprudence, commit an offense, shall suffer the penalty of arresto mayor in its medium and maximum
months of prision correccional, the accessories, indemnity and costs with subsidiary imprisonment.
degrees.
This does not mean that in every case in which one accidentally injures or kills another he is criminally liable
therefor, if at the moment he happens to be guilty of a violation of some petty regulation (reglamento). The injury
or death must have resulted from some "imprudence or negligence" (imprudencia o negligencia) on his part. True
it need only be slight negligence, if accompanied by a violation of the regulations, but the relation of cause and
effect must exist between the negligence or imprudence of the accused and the injury inflicted. If it appears that
the injury in no wise resulted from the violation of the regulations, or the negligent conduct of the accused, he
incurs no criminal liability under the provisions of this article.
Viada, in his commentaries on this article of the Penal Code (vol. 3, p. 685), sets out the following question and
answer which clearly discloses that a conviction thereunder cannot be maintained, unless there was culpable
negligence in the violation of a duly prescribed regulation; and unless, further, the latter was the proximate and
immediate cause of the injury inflicted:
Question No. 17. — A pharmacist left his store forgetting and leaving behind the keys to the case where the most
powerful drugs were kept. During his absence his clerk filled a prescription which he believed was duly made out
by a physician but which, in fact, was signed by an unauthorized person. The prescription called for certain
substances which were afterwards employed to procure an abortion. These substances, according to a medical
report, were of a poisonous and extremely powerful nature such as should be most carefully safeguarded and only
expended after ratification of the prescription in accordance with article 20 of the ordinance relating to the
practice of pharmacy. Under these circumstances would it be proper to consider the pharmacist as guilty of the
offense of simple imprudence with violation of the regulation of the said faculty? The Supreme Court has decided
this question in the negative on the ground that the fact of the pharmacist having forgotten and left behind, during
the short time he was out walking, the key of the closet in which in conformity with the pharmacy ordinances, he
kept the most powerful and active drugs, properly considered, does not constitute the culpable negligence
referred to in article 581 of the Penal Code, nor was it the proximate and immediate cause of the said prescription
being filled in his store without being properly ratified by the physician who signed it, as required by the said
ordinances. The Court held, therefore, that the trial court committed an error of law in holding the appellant
liable. (Decision of December 23, 19881; Official Gazette of April 14, 1882.)
See also the recent decision of the Tribunal Supremo de España dated July 11, 1906, wherein the doctrine is
reaffirmed in a case involving the alleged negligence of certain railroad employees in handling railroad cars.
Doubtless a presumption of negligence will frequently arise from the very fact that an accident occurred at the
time when the accused was violating a regulation; especially if the regulation has for its object the avoidance of
such an accident. But this presumption may, of course, be rebutted in criminal as well as in civil cases by
competent evidence. In the Federal Court of the United States the rule is stated as follows:
Where a ship at the time of collision is in actual violation of a statutory rule intended to prevent collisions the
burden is upon her of showing that her fault could not have been a contributory cause of the collision. (7 Cyc.,
370 and numerous other cases there cited.)
The evidence of record in the case at bar clearly and satisfactorily discloses that even if the train was running at a
speed slightly in excess of the maximum speed prescribed in the regulations, that fact had no causal relation to
the accident and in no wise contributed to it.

!2
G.R. No. 157917 August 29, 2012
SPOUSES TEODORO1 and NANETTE PERENA, Petitioners,
vs.
SPOUSES TERESITA PHILIPPINE NICOLAS and L. ZARATE, NATIONAL RAILWAYS, and the
COURT OF APPEALS Respondents.
DECISION
BERSAMIN, J.:
The operator of a. school bus service is a common carrier in the eyes of the law. He is bound to observe
extraordinary diligence in the conduct of his business. He is presumed to be negligent when death occurs to a
passenger. His liability may include indemnity for loss of earning capacity even if the deceased passenger may
only be an unemployed high school student at the time of the accident.
The Case
By petition for review on certiorari, Spouses Teodoro and Nanette Perefia (Perefias) appeal the adverse decision
promulgated on November 13, 2002, by which the Court of Appeals (CA) affirmed with modification the
decision rendered on December 3, 1999 by the Regional Trial Court (RTC), Branch 260, in Parañaque City that
had decreed them jointly and severally liable with Philippine National Railways (PNR), their co-defendant, to
Spouses Nicolas and Teresita Zarate (Zarates) for the death of their 15-year old son, Aaron John L. Zarate
(Aaron), then a high school student of Don Bosco Technical Institute (Don Bosco).
Antecedents
The Pereñas were engaged in the business of transporting students from their respective residences in Parañaque
City to Don Bosco in Pasong Tamo, Makati City, and back. In their business, the Pereñas used a KIA Ceres Van
(van) with Plate No. PYA 896, which had the capacity to transport 14 students at a time, two of whom would be
seated in the front beside the driver, and the others in the rear, with six students on either side. They employed
Clemente Alfaro (Alfaro) as driver of the van.
In June 1996, the Zarates contracted the Pereñas to transport Aaron to and from Don Bosco. On August 22, 1996,
as on previous school days, the van picked Aaron up around 6:00 a.m. from the Zarates’ residence. Aaron took his
place on the left side of the van near the rear door. The van, with its air-conditioning unit turned on and the stereo
playing loudly, ultimately carried all the 14 student riders on their way to Don Bosco. Considering that the
students were due at Don Bosco by 7:15 a.m., and that they were already running late because of the heavy
vehicular traffic on the South Superhighway, Alfaro took the van to an alternate route at about 6:45 a.m. by
traversing the narrow path underneath the Magallanes Interchange that was then commonly used by Makati-
bound vehicles as a short cut into Makati. At the time, the narrow path was marked by piles of construction
materials and parked passenger jeepneys, and the railroad crossing in the narrow path had no railroad warning
signs, or watchmen, or other responsible persons manning the crossing. In fact, the bamboo barandilla was up,
leaving the railroad crossing open to traversing motorists.
At about the time the van was to traverse the railroad crossing, PNR Commuter No. 302 (train), operated by
Jhonny Alano (Alano), was in the vicinity of the Magallanes Interchange travelling northbound. As the train
neared the railroad crossing, Alfaro drove the van eastward across the railroad tracks, closely tailing a large
passenger bus. His view of the oncoming train was blocked because he overtook the passenger bus on its left
side. The train blew its horn to warn motorists of its approach. When the train was about 50 meters away from the
passenger bus and the van, Alano applied the ordinary brakes of the train. He applied the emergency brakes only
when he saw that a collision was imminent. The passenger bus successfully crossed the railroad tracks, but the
van driven by Alfaro did not. The train hit the rear end of the van, and the impact threw nine of the 12 students in
the rear, including Aaron, out of the van. Aaron landed in the path of the train, which dragged his body and
severed his head, instantaneously killing him. Alano fled the scene on board the train, and did not wait for the
police investigator to arrive.
!3
Devastated by the early and unexpected death of Aaron, the Zarates commenced this action for damages against
Alfaro, the Pereñas, PNR and Alano. The Pereñas and PNR filed their respective answers, with cross-claims
against each other, but Alfaro could not be served with summons.
At the pre-trial, the parties stipulated on the facts and issues, viz:
A. FACTS:
(1) That spouses Zarate were the legitimate parents of Aaron John L. Zarate;
(2) Spouses Zarate engaged the services of spouses Pereña for the adequate and safe transportation carriage of
the former spouses' son from their residence in Parañaque to his school at the Don Bosco Technical Institute in
Makati City;
(3) During the effectivity of the contract of carriage and in the implementation thereof, Aaron, the minor son
of spouses Zarate died in connection with a vehicular/train collision which occurred while Aaron was riding the
contracted carrier Kia Ceres van of spouses Pereña, then driven and operated by the latter's employee/authorized
driver Clemente Alfaro, which van collided with the train of PNR, at around 6:45 A.M. of August 22, 1996,
within the vicinity of the Magallanes Interchange in Makati City, Metro Manila, Philippines;
(4) At the time of the vehicular/train collision, the subject site of the vehicular/train collision was a railroad
crossing used by motorists for crossing the railroad tracks;
(5) During the said time of the vehicular/train collision, there were no appropriate and safety warning signs
and railings at the site commonly used for railroad crossing;
(6) At the material time, countless number of Makati bound public utility and private vehicles used on a daily
basis the site of the collision as an alternative route and short-cut to Makati;
(7) The train driver or operator left the scene of the incident on board the commuter train involved without
waiting for the police investigator;
(8) The site commonly used for railroad crossing by motorists was not in fact intended by the railroad operator
for railroad crossing at the time of the vehicular collision;
(9) PNR received the demand letter of the spouses Zarate;
(10) PNR refused to acknowledge any liability for the vehicular/train collision;
(11) The eventual closure of the railroad crossing alleged by PNR was an internal arrangement between the
former and its project contractor; and
(12) The site of the vehicular/train collision was within the vicinity or less than 100 meters from the
Magallanes station of PNR.
B. ISSUES
(1) Whether or not defendant-driver of the van is, in the performance of his functions, liable for negligence
constituting the proximate cause of the vehicular collision, which resulted in the death of plaintiff spouses' son;
(2) Whether or not the defendant spouses Pereña being the employer of defendant Alfaro are liable for any
negligence which may be attributed to defendant Alfaro;
(3) Whether or not defendant Philippine National Railways being the operator of the railroad system is liable for
negligence in failing to provide adequate safety warning signs and railings in the area commonly used by
motorists for railroad crossings, constituting the proximate cause of the vehicular collision which resulted in the
death of the plaintiff spouses' son;
(4) Whether or not defendant spouses Pereña are liable for breach of the contract of carriage with plaintiff-
spouses in failing to provide adequate and safe transportation for the latter's son;
(5) Whether or not defendants spouses are liable for actual, moral damages, exemplary damages, and attorney's
fees;
(6) Whether or not defendants spouses Teodorico and Nanette Pereña observed the diligence of employers and 1. In finding the defendant-appellant Philippine National Railways jointly and severally liable together with
school bus operators; defendant-appellants spouses Teodorico and Nanette Pereña and defendant-appellant Clemente Alfaro to pay
plaintiffs-appellees for the death of Aaron Zarate and damages.
(7) Whether or not defendant-spouses are civilly liable for the accidental death of Aaron John Zarate;
2. In giving full faith and merit to the oral testimonies of plaintiffs-appellees witnesses despite overwhelming
(8) Whether or not defendant PNR was grossly negligent in operating the commuter train involved in the
documentary evidence on record, supporting the case of defendants-appellants Philippine National Railways.
accident, in allowing or tolerating the motoring public to cross, and its failure to install safety devices or
equipment at the site of the accident for the protection of the public; The Pereñas ascribed the following errors to the RTC, namely:
(9) Whether or not defendant PNR should be made to reimburse defendant spouses for any and whatever amount The trial court erred in finding defendants-appellants jointly and severally liable for actual, moral and exemplary
the latter may be held answerable or which they may be ordered to pay in favor of plaintiffs by reason of the damages and attorney’s fees with the other defendants.
action;
The trial court erred in dismissing the cross-claim of the appellants Pereñas against the Philippine National
(10) Whether or not defendant PNR should pay plaintiffs directly and fully on the amounts claimed by the latter Railways and in not holding the latter and its train driver primarily responsible for the incident.
in their Complaint by reason of its gross negligence;
The trial court erred in awarding excessive damages and attorney’s fees.
(11) Whether or not defendant PNR is liable to defendants spouses for actual, moral and exemplary damages and
The trial court erred in awarding damages in the form of deceased’s loss of earning capacity in the absence of
attorney's fees.2
sufficient basis for such an award.
The Zarates’ claim against the Pereñas was upon breach of the contract of carriage for the safe transport of Aaron;
On November 13, 2002, the CA promulgated its decision, affirming the findings of the RTC, but limited the
but that against PNR was based on quasi-delict under Article 2176, Civil Code.
moral damages to ₱ 2,500,000.00; and deleted the attorney’s fees because the RTC did not state the factual and
In their defense, the Pereñas adduced evidence to show that they had exercised the diligence of a good father of legal bases, to wit:6
the family in the selection and supervision of Alfaro, by making sure that Alfaro had been issued a driver’s
WHEREFORE, premises considered, the assailed Decision of the Regional Trial Court, Branch 260 of Parañaque
license and had not been involved in any vehicular accident prior to the collision; that their own son had taken the
City is AFFIRMED with the modification that the award of Actual Damages is reduced to ₱ 59,502.76; Moral
van daily; and that Teodoro Pereña had sometimes accompanied Alfaro in the van’s trips transporting the students
Damages is reduced to ₱ 2,500,000.00; and the award for Attorney’s Fees is Deleted.
to school.
SO ORDERED.
For its part, PNR tended to show that the proximate cause of the collision had been the reckless crossing of the
van whose driver had not first stopped, looked and listened; and that the narrow path traversed by the van had not The CA upheld the award for the loss of Aaron’s earning capacity, taking cognizance of the ruling in Cariaga v.
been intended to be a railroad crossing for motorists. Laguna Tayabas Bus Company and Manila Railroad Company,7 wherein the Court gave the heirs of Cariaga a
sum representing the loss of the deceased’s earning capacity despite Cariaga being only a medical student at the
Ruling of the RTC
time of the fatal incident. Applying the formula adopted in the American Expectancy Table of Mortality:–
On December 3, 1999, the RTC rendered its decision,3 disposing:
2/3 x (80 - age at the time of death) = life expectancy
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the
the CA determined the life expectancy of Aaron to be 39.3 years upon reckoning his life expectancy from age of
defendants ordering them to jointly and severally pay the plaintiffs as follows:
21 (the age when he would have graduated from college and started working for his own livelihood) instead of 15
(1) (for) the death of Aaron- Php50,000.00; years (his age when he died). Considering that the nature of his work and his salary at the time of Aaron’s death
were unknown, it used the prevailing minimum wage of ₱ 280.00/day to compute Aaron’s gross annual salary to
(2) Actual damages in the amount of Php100,000.00;
be ₱ 110,716.65, inclusive of the thirteenth month pay. Multiplying this annual salary by Aaron’s life expectancy
(3) For the loss of earning capacity- Php2,109,071.00; of 39.3 years, his gross income would aggregate to ₱ 4,351,164.30, from which his estimated expenses in the sum
of ₱ 2,189,664.30 was deducted to finally arrive at P 2,161,500.00 as net income. Due to Aaron’s computed net
(4) Moral damages in the amount of Php4,000,000.00;
income turning out to be higher than the amount claimed by the Zarates, only ₱ 2,109,071.00, the amount
(5) Exemplary damages in the amount of Php1,000,000.00; expressly prayed for by them, was granted.
(6) Attorney’s fees in the amount of Php200,000.00; and On April 4, 2003, the CA denied the Pereñas’ motion for reconsideration.8
(7) Cost of suit. Issues
SO ORDERED. In this appeal, the Pereñas list the following as the errors committed by the CA, to wit:
On June 29, 2000, the RTC denied the Pereñas’ motion for reconsideration,4 reiterating
that the cooperative gross I. The lower court erred when it upheld the trial court’s decision holding the petitioners jointly and severally
negligence of the Pereñas and PNR had caused the collision that led to the death of Aaron; and that the damages liable to pay damages with Philippine National Railways and dismissing their cross-claim against the latter.
awarded to the Zarates were not excessive, but based on the established circumstances.
II. The lower court erred in affirming the trial court’s decision awarding damages for loss of earning capacity of a
The CA’s Ruling minor who was only a high school student at the time of his death in the absence of sufficient basis for such an
award.
Both the Pereñas and PNR appealed (C.A.-G.R. CV No. 68916).
III. The lower court erred in not reducing further the amount of damages awarded, assuming petitioners are liable
PNR assigned the following errors, to wit:5
at all.
The Court a quo erred in:

!4
Ruling
The petition has no merit.
1.

Were the Pereñas and PNR jointly

and severally liable for damages?
The Zarates brought this action for recovery of damages against both the Pereñas and the PNR, basing their claim
against the Pereñas on breach of contract of carriage and against the PNR on quasi-delict.
The RTC found the Pereñas and the PNR negligent. The CA affirmed the findings.
We concur with the CA.
To start with, the Pereñas’ defense was that they exercised the diligence of a good father of the family in the
selection and supervision of Alfaro, the van driver, by seeing to it that Alfaro had a driver’s license and that he
had not been involved in any vehicular accident prior to the fatal collision with the train; that they even had their
own son travel to and from school on a daily basis; and that Teodoro Pereña himself sometimes accompanied
Alfaro in transporting the passengers to and from school. The RTC gave scant consideration to such defense by
regarding such defense as inappropriate in an action for breach of contract of carriage.
We find no adequate cause to differ from the conclusions of the lower courts that the Pereñas operated as a
common carrier; and that their standard of care was extraordinary diligence, not the ordinary diligence of a good
father of a family.
Although in this jurisdiction the operator of a school bus service has been usually regarded as a private carrier,9
primarily because he only caters to some specific or privileged individuals, and his operation is neither open to
the indefinite public nor for public use, the exact nature of the operation of a school bus service has not been
finally settled. This is the occasion to lay the matter to rest.
A carrier is a person or corporation who undertakes to transport or convey goods or persons from one place to
another, gratuitously or for hire. The carrier is classified either as a private/special carrier or as a common/public
carrier.10 A private carrier is one who, without making the activity a vocation, or without holding himself or itself
out to the public as ready to act for all who may desire his or its services, undertakes, by special agreement in a
particular instance only, to transport goods or persons from one place to another either gratuitously or for hire.11
The provisions on ordinary contracts of the Civil Code govern the contract of private carriage.The diligence
required of a private carrier is only ordinary, that is, the diligence of a good father of the family. In contrast, a
common carrier is a person, corporation, firm or association engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air, for compensation, offering such services to the public.12
Contracts of common carriage are governed by the provisions on common carriers of the Civil Code, the Public
Service Act,13 and other special laws relating to transportation. A common carrier is required to observe
extraordinary diligence, and is presumed to be at fault or to have acted negligently in case of the loss of the
effects of passengers, or the death or injuries to passengers.14
In relation to common carriers, the Court defined public use in the following terms in United States v. Tan Piaco,
15 viz:
"Public use" is the same as "use by the public". The essential feature of the public use is not confined to
privileged individuals, but is open to the indefinite public. It is this indefinite or unrestricted quality that gives it
its public character. In determining whether a use is public, we must look not only to the character of the business
to be done, but also to the proposed mode of doing it. If the use is merely optional with the owners, or the public
benefit is merely incidental, it is not a public use, authorizing the exercise of the jurisdiction of the public utility
commission. There must be, in general, a right which the law compels the owner to give to the general public. It
is not enough that the general prosperity of the public is promoted. Public use is not synonymous with public
interest. The true criterion by which to judge the character of the use is whether the public may enjoy it by right
or only by permission.
In De Guzman v. Court of Appeals,16 the Court noted that Article 1732 of the Civil Code avoided any distinction
between a person or an enterprise offering transportation on a regular or an isolated basis; and has not
!5
distinguished a carrier offering his services to the general public, that is, the general community or population,
from one offering his services only to a narrow segment of the general population.
Nonetheless, the concept of a common carrier embodied in Article 1732 of the Civil Code coincides neatly with
the notion of public service under the Public Service Act, which supplements the law on common carriers found
in the Civil Code. Public service, according to Section 13, paragraph (b) of the Public Service Act, includes:
x x x every person that now or hereafter may own, operate, manage, or control in the Philippines, for hire or
compensation, with general or limited clientèle, whether permanent or occasional, and done for the general
business purposes, any common carrier, railroad, street railway, traction railway, subway motor vehicle, either for
freight or passenger, or both, with or without fixed route and whatever may be its classification, freight or carrier
service of any class, express service, steamboat, or steamship line, pontines, ferries and water craft, engaged in
the transportation of passengers or freight or both, shipyard, marine repair shop, ice-refrigeration plant, canal,
irrigation system, gas, electric light, heat and power, water supply and power petroleum, sewerage system, wire
or wireless communications systems, wire or wireless broadcasting stations and other similar public services. x x
x.17
Given the breadth of the aforequoted characterization of a common carrier, the Court has considered as common
carriers pipeline operators,18 custom brokers and warehousemen,19 and barge operators20 even if they had limited
clientèle.
As all the foregoing indicate, the true test for a common carrier is not the quantity or extent of the business
actually transacted, or the number and character of the conveyances used in the activity, but whether the
undertaking is a part of the activity engaged in by the carrier that he has held out to the general public as his
business or occupation. If the undertaking is a single transaction, not a part of the general business or occupation
engaged in, as advertised and held out to the general public, the individual or the entity rendering such service is
a private, not a common, carrier. The question must be determined by the character of the business actually
carried on by the carrier, not by any secret intention or mental reservation it may entertain or assert when charged
with the duties and obligations that the law imposes.21
Applying these considerations to the case before us, there is no question that the Pereñas as the operators of a
school bus service were: (a) engaged in transporting passengers generally as a business, not just as a casual
occupation; (b) undertaking to carry passengers over established roads by the method by which the business was
conducted; and (c) transporting students for a fee. Despite catering to a limited clientèle, the Pereñas operated as
a common carrier because they held themselves out as a ready transportation indiscriminately to the students of a
particular school living within or near where they operated the service and for a fee.
The common carrier’s standard of care and vigilance as to the safety of the passengers is defined by law. Given
the nature of the business and for reasons of public policy, the common carrier is bound "to observe extraordinary
diligence in the vigilance over the goods and for the safety of the passengers transported by them, according to all
the circumstances of each case."22 Article 1755 of the Civil Code specifies that the common carrier should "carry
the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances." To successfully fend off liability in an action upon the death
or injury to a passenger, the common carrier must prove his or its observance of that extraordinary diligence;
otherwise, the legal presumption that he or it was at fault or acted negligently would stand.23 No device, whether
by stipulation, posting of notices, statements on tickets, or otherwise, may dispense with or lessen the
responsibility of the common carrier as defined under Article 1755 of the Civil Code. 24
And, secondly, the Pereñas have not presented any compelling defense or reason by which the Court might now
reverse the CA’s findings on their liability. On the contrary, an examination of the records shows that the evidence
fully supported the findings of the CA.
As earlier stated, the Pereñas, acting as a common carrier, were already presumed to be negligent at the time of
the accident because death had occurred to their passenger.25 The presumption of negligence, being a presumption
of law, laid the burden of evidence on their shoulders to establish that they had not been negligent.26 It was the
law no less that required them to prove their observance of extraordinary diligence in seeing to the safe and
secure carriage of the passengers to their destination. Until they did so in a credible manner, they stood to be held
legally responsible for the death of Aaron and thus to be held liable for all the natural consequences of such
death.
There is no question that the Pereñas did not overturn the presumption of their negligence by credible evidence.
Their defense of having observed the diligence of a good father of a family in the selection and supervision of
their driver was not legally sufficient. According to Article 1759 of the Civil Code, their liability as a common
carrier did not cease upon proof that they exercised all the diligence of a good father of a family in the selection
and supervision of their employee. This was the reason why the RTC treated this defense of the Pereñas as
inappropriate in this action for breach of contract of carriage.
The Pereñas were liable for the death of Aaron despite the fact that their driver might have acted beyond the
scope of his authority or even in violation of the orders of the common carrier.27 In this connection, the records
showed their driver’s actual negligence. There was a showing, to begin with, that their driver traversed the
railroad tracks at a point at which the PNR did not permit motorists going into the Makati area to cross the
railroad tracks. Although that point had been used by motorists as a shortcut into the Makati area, that fact alone
did not excuse their driver into taking that route. On the other hand, with his familiarity with that shortcut, their
driver was fully aware of the risks to his passengers but he still disregarded the risks. Compounding his lack of
care was that loud music was playing inside the air-conditioned van at the time of the accident. The loudness
most probably reduced his ability to hear the warning horns of the oncoming train to allow him to correctly
appreciate the lurking dangers on the railroad tracks. Also, he sought to overtake a passenger bus on the left side
as both vehicles traversed the railroad tracks. In so doing, he lost his view of the train that was then coming from
the opposite side of the passenger bus, leading him to miscalculate his chances of beating the bus in their race,
and of getting clear of the train. As a result, the bus avoided a collision with the train but the van got slammed at
its rear, causing the fatality. Lastly, he did not slow down or go to a full stop before traversing the railroad tracks
despite knowing that his slackening of speed and going to a full stop were in observance of the right of way at
railroad tracks as defined by the traffic laws and regulations.28 He thereby violated a specific traffic regulation on
right of way, by virtue of which he was immediately presumed to be negligent.29
The omissions of care on the part of the van driver constituted negligence,30 which, according to Layugan v.
Intermediate Appellate Court,31 is "the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something
which a prudent and reasonable man would not do,32 or as Judge Cooley defines it, ‘(t)he failure to observe for
the protection of the interests of another person, that degree of care, precaution, and vigilance which the
circumstances justly demand, whereby such other person suffers injury.’"33
The test by which to determine the existence of negligence in a particular case has been aptly stated in the leading
case of Picart v. Smith,34 thuswise:
The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the
defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent
person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect
adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman
law. The existence of negligence in a given case is not determined by reference to the personal judgment of the
actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the
man of ordinary intelligence and prudence and determines liability by that.
The question as to what would constitute the conduct of a prudent man in a given situation must of course be
always determined in the light of human experience and in view of the facts involved in the particular case.
Abstract speculation cannot here be of much value but this much can be profitably said: Reasonable men govern
their conduct by the circumstances which are before them or known to them. They are not, and are not supposed
to be, omniscient of the future. Hence they can be expected to take care only when there is something before
them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as a result
of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm.
Reasonable foresight of harm, followed by the ignoring of the suggestion born of this prevision, is always
necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining the
existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position
!6
of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his
foregoing the conduct or guarding against its consequences. (Emphasis supplied)
Pursuant to the Picart v. Smith test of negligence, the Pereñas’ driver was entirely negligent when he traversed the
railroad tracks at a point not allowed for a motorist’s crossing despite being fully aware of the grave harm to be
thereby caused to his passengers; and when he disregarded the foresight of harm to his passengers by overtaking
the bus on the left side as to leave himself blind to the approach of the oncoming train that he knew was on the
opposite side of the bus.
Unrelenting, the Pereñas cite Phil. National Railways v. Intermediate Appellate Court,35 where the Court held the
PNR solely liable for the damages caused to a passenger bus and its passengers when its train hit the rear end of
the bus that was then traversing the railroad crossing. But the circumstances of that case and this one share no
similarities. In Philippine National Railways v. Intermediate Appellate Court, no evidence of contributory
negligence was adduced against the owner of the bus. Instead, it was the owner of the bus who proved the
exercise of extraordinary diligence by preponderant evidence. Also, the records are replete with the showing of
negligence on the part of both the Pereñas and the PNR. Another distinction is that the passenger bus in
Philippine National Railways v. Intermediate Appellate Court was traversing the dedicated railroad crossing when
it was hit by the train, but the Pereñas’ school van traversed the railroad tracks at a point not intended for that
purpose.
At any rate, the lower courts correctly held both the Pereñas and the PNR "jointly and severally" liable for
damages arising from the death of Aaron. They had been impleaded in the same complaint as defendants against
whom the Zarates had the right to relief, whether jointly, severally, or in the alternative, in respect to or arising
out of the accident, and questions of fact and of law were common as to the Zarates.36 Although the basis of the
right to relief of the Zarates (i.e., breach of contract of carriage) against the Pereñas was distinct from the basis of
the Zarates’ right to relief against the PNR (i.e., quasi-delict under Article 2176, Civil Code), they nonetheless
could be held jointly and severally liable by virtue of their respective negligence combining to cause the death of
Aaron. As to the PNR, the RTC rightly found the PNR also guilty of negligence despite the school van of the
Pereñas traversing the railroad tracks at a point not dedicated by the PNR as a railroad crossing for pedestrians
and motorists, because the PNR did not ensure the safety of others through the placing of crossbars, signal lights,
warning signs, and other permanent safety barriers to prevent vehicles or pedestrians from crossing there. The
RTC observed that the fact that a crossing guard had been assigned to man that point from 7 a.m. to 5 p.m. was a
good indicium that the PNR was aware of the risks to others as well as the need to control the vehicular and other
traffic there. Verily, the Pereñas and the PNR were joint tortfeasors.
2.

Was the indemnity for loss of

Aaron’s earning capacity proper?
The RTC awarded indemnity for loss of Aaron’s earning capacity. Although agreeing with the RTC on the
liability, the CA modified the amount. Both lower courts took into consideration that Aaron, while only a high
school student, had been enrolled in one of the reputable schools in the Philippines and that he had been a normal
and able-bodied child prior to his death. The basis for the computation of Aaron’s earning capacity was not what
he would have become or what he would have wanted to be if not for his untimely death, but the minimum wage
in effect at the time of his death. Moreover, the RTC’s computation of Aaron’s life expectancy rate was not
reckoned from his age of 15 years at the time of his death, but on 21 years, his age when he would have
graduated from college.
We find the considerations taken into account by the lower courts to be reasonable and fully warranted.
Yet, the Pereñas submit that the indemnity for loss of earning capacity was speculative and unfounded.1âwphi1
They cited People v. Teehankee, Jr.,37 where the Court deleted the indemnity for victim Jussi Leino’s loss of
earning capacity as a pilot for being speculative due to his having graduated from high school at the International
School in Manila only two years before the shooting, and was at the time of the shooting only enrolled in the first
semester at the Manila Aero Club to pursue his ambition to become a professional pilot. That meant, according to
the Court, that he was for all intents and purposes only a high school graduate.
We reject the Pereñas’ submission.
First of all, a careful perusal of the Teehankee, Jr. case shows that the situation there of Jussi Leino was not akin
to that of Aaron here. The CA and the RTC were not speculating that Aaron would be some highly-paid
professional, like a pilot (or, for that matter, an engineer, a physician, or a lawyer). Instead, the computation of
Aaron’s earning capacity was premised on him being a lowly minimum wage earner despite his being then
enrolled at a prestigious high school like Don Bosco in Makati, a fact that would have likely ensured his success
in his later years in life and at work.
And, secondly, the fact that Aaron was then without a history of earnings should not be taken against his parents
and in favor of the defendants whose negligence not only cost Aaron his life and his right to work and earn
money, but also deprived his parents of their right to his presence and his services as well. Our law itself states
that the loss of the earning capacity of the deceased shall be the liability of the guilty party in favor of the heirs of
the deceased, and shall in every case be assessed and awarded by the court "unless the deceased on account of
permanent physical disability not caused by the defendant, had no earning capacity at the time of his death."38
Accordingly, we emphatically hold in favor of the indemnification for Aaron’s loss of earning capacity despite
him having been unemployed, because compensation of this nature is awarded not for loss of time or earnings but
for loss of the deceased’s power or ability to earn money.39
This favorable treatment of the Zarates’ claim is not unprecedented. In Cariaga v. Laguna Tayabas Bus Company
and Manila Railroad Company,40 fourth-year medical student Edgardo Carriaga’s earning capacity, although he
survived the accident but his injuries rendered him permanently incapacitated, was computed to be that of the
physician that he dreamed to become. The Court considered his scholastic record sufficient to justify the
assumption that he could have finished the medical course and would have passed the medical board
examinations in due time, and that he could have possibly earned a modest income as a medical practitioner.
Also, in People v. Sanchez,41 the Court opined that murder and rape victim Eileen Sarmienta and murder victim
Allan Gomez could have easily landed good-paying jobs had they graduated in due time, and that their jobs
would probably pay them high monthly salaries from ₱ 10,000.00 to ₱ 15,000.00 upon their graduation. Their
earning capacities were computed at rates higher than the minimum wage at the time of their deaths due to their
being already senior agriculture students of the University of the Philippines in Los Baños, the country’s leading
educational institution in agriculture.
3.

Were the amounts of damages excessive?
The Pereñas plead for the reduction of the moral and exemplary damages awarded to the Zarates in the respective
amounts of ₱ 2,500,000.00 and ₱ 1,000,000.00 on the ground that such amounts were excessive.
The plea is unwarranted.
The moral damages of ₱ 2,500,000.00 were really just and reasonable under the established circumstances of this
case because they were intended by the law to assuage the Zarates’ deep mental anguish over their son’s
unexpected and violent death, and their moral shock over the senseless accident. That amount would not be too
much, considering that it would help the Zarates obtain the means, diversions or amusements that would alleviate
their suffering for the loss of their child. At any rate, reducing the amount as excessive might prove to be an
injustice, given the passage of a long time from when their mental anguish was inflicted on them on August 22,
1996.
Anent the ₱ 1,000,000.00 allowed as exemplary damages, we should not reduce the amount if only to render
effective the desired example for the public good. As a common carrier, the Pereñas needed to be vigorously
reminded to observe their duty to exercise extraordinary diligence to prevent a similarly senseless accident from
happening again. Only by an award of exemplary damages in that amount would suffice to instill in them and
others similarly situated like them the ever-present need for greater and constant vigilance in the conduct of a
business imbued with public interest.
WHEREFORE, we DENY the petition for review on certiorari; AFFIRM the decision promulgated on
November 13, 2002; and ORDER the petitioners to pay the costs of suit.
SO ORDERED.

!7
G.R. No. 122445 November 18, 1997
DR. NINEVETCH CRUZ, petitioner,
vs.
COURT OF APPEALS and LYDIA UMALI, respondents.
FRANCISCO, J.:
Doctors are protected by a special rule of law. They are not guarantors of care. They do not even warrant a good
result. They are not insurers against mishaps or unusual consequences. Furthermore they are not liable for honest
mistakes of judgment . . . 1
The present case against petitioner is in the nature of a medical malpractice suit, which in simplest terms is the
type of claim which a victim has available to him or her to redress a wrong committed by a medical professional
which has caused bodily harm. 2 In this jurisdiction, however, such claims are most often brought as a civil action
for damages under Article 2176 of the Civil Code, 3 and in some instances, as a criminal case under Article 365 of
the Revised Penal Code 4 with which the civil action for damages is impliedly instituted. It is via the latter type of
action that the heirs of the deceased sought redress for the petitioner's alleged imprudence and negligence in
treating the deceased thereby causing her death. The petitioner and one Dr. Lina Ercillo who was the attending
anaesthesiologist during the operation of the deceased were charged with "reckless imprudence and negligence
resulting to (sic) homicide" in an information which reads:
That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and within the jurisdiction
of this Honorable Court, the accused above named, being then the attending anaesthesiologist and surgeon,
respectively, did then and there, in a negligence (sic), careless, imprudent, and incompetent manner, and failing to
supply or store sufficient provisions and facilities necessary to meet any and all exigencies apt to arise before,
during and/or after a surgical operation causing by such negligence, carelessness, imprudence, and incompetence,
and causing by such failure, including the lack of preparation and foresight needed to avert a tragedy, the
untimely death of said Lydia Umali on the day following said surgical operation. 5
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty to the above-mentioned charge. On
March 4, 1994, the Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a decision, the
dispositive portion of which is hereunder quoted as follows:
WHEREFORE, the court finds the accused Dra. Lina Ercillo not guilty of the offense charged for insufficiency of
evidence while her co-accused Dra. Ninevetch Cruz is hereby held responsible for the death of Lydia Umali on
March 24, 1991, and therefore guilty under Art. 365 of the Revised Penal Code, and she is hereby sentenced to
suffer the penalty of 2 months and 1 day imprisonment of arresto mayor with costs. 6
The petitioner appealed her conviction to the Regional Trial Court (RTC) which affirmed in toto the decision of
the MTCC 7 prompting the petitioner to file a petition for review with the Court of Appeals but to no avail. Hence
this petition for review on certiorari assailing the decision promulgated by the Court of Appeals on October 24,
1995 affirming petitioner's conviction with modification that she is further directed to pay the heirs of Lydia
Umali P50,000.00 as indemnity for her death.8
In substance, the petition brought before this Court raises the issue of whether or not petitioner's conviction of the
crime of reckless imprudence resulting in homicide, arising from an alleged medical malpractice, is supported by
the evidence on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied her mother to the Perpetual
Help Clinic and General Hospital situated in Balagtas Street, San Pablo City, Laguna. They arrived at the said
hospital at around 4:30 in the afternoon of the same day. 9 Prior to
March 22, 1991, Lydia was examined by the petitioner who found a "myoma" 10 in her uterus, and scheduled her
for a hysterectomy operation on March 23,
!8
1991. 11 Rowena and her mother slept in the clinic on the evening of March 22, 1991 as the latter was to be
operated on the next day at 1:00 o'clock in the afternoon. 12 According to Rowena, she noticed that the clinic was
untidy and the window and the floor were very dusty prompting her to ask the attendant for a rag to wipe the
window and the floor with. 13 Because of the untidy state of the clinic, Rowena tried to persuade her mother not
to proceed with the operation. 14 The following day, before her mother was wheeled into the operating room,
Rowena asked the petitioner if the operation could be postponed. The petitioner called Lydia into her office and
the two had a conversation. Lydia then informed Rowena that the petitioner told her that she must be operated on
as scheduled. 15
Rowena and her other relatives, namely her husband, her sister and two aunts waited outside the operating room
while Lydia underwent operation. While they were waiting, Dr. Ercillo went out of the operating room and
instructed them to buy tagamet ampules which Rowena's sister immediately bought. About one hour had passed
when Dr. Ercillo came out again this time to ask them to buy blood for Lydia. They bought type "A" blood from
the St. Gerald Blood Bank and the same was brought by the attendant into the operating room. After the lapse of
a few hours, the petitioner informed them that the operation was finished. The operating staff then went inside the
petitioner's clinic to take their snacks. Some thirty minutes after, Lydia was brought out of the operating room in
a stretcher and the petitioner asked Rowena and the other relatives to buy additional blood for Lydia.
Unfortunately, they were not able to comply with petitioner's order as there was no more type "A" blood available
in the blood bank. Thereafter, a person arrived to donate blood which was later transfused to Lydia. Rowena then
noticed her mother, who was attached to an oxygen tank, gasping for breath. Apparently the oxygen supply had
run out and Rowena's husband together with the driver of the accused had to go to the San Pablo District Hospital
to get oxygen. Lydia was given the fresh supply of oxygen as soon as it arrived. 16 But at around 10:00 o'clock
P.M. she went into shock and her blood pressure dropped to 60/50. Lydia's unstable condition necessitated her
transfer to the San Pablo District Hospital so she could be connected to a respirator and further examined. 17 The
transfer to the San Pablo District Hospital was without the prior consent of Rowena nor of the other relatives
present who found out about the intended transfer only when an ambulance arrived to take Lydia to the San Pablo
District Hospital. Rowena and her other relatives then boarded a tricycle and followed the ambulance. 18
Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the operating room and the
petitioner and Dr. Ercillo re-operated on her because there was blood oozing from the abdominal incision. 19 The
attending physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and Gynecology Department of
the San Pablo District Hospital. However, when Dr. Angeles arrived, Lydia was already in shock and possibly
dead as her blood pressure was already 0/0. Dr. Angeles then informed petitioner and Dr. Ercillo that there was
nothing he could do to help save the patient. 20 While the petitioner was closing the abdominal wall, the patient
died. 21 Thus, on March 24, 1991, at 3:00 o'clock in the morning, Lydia Umali was pronounced dead. Her death
certificate states "shock" as the immediate cause of death and "Disseminated Intravascular Coagulation (DIC)" as
the antecedent cause. 22
In convicting the petitioner, the MTCC found the following circumstances as sufficient basis to conclude that she
was indeed negligent in the performance of the operation:
. . . , the clinic was untidy, there was lack of provision like blood and oxygen to prepare for any contingency that
might happen during the operation. The manner and the fact that the patient was brought to the San Pablo District
Hospital for reoperation indicates that there was something wrong in the manner in which Dra. Cruz conducted
the operation. There was no showing that before the operation, accused Dra. Cruz had conducted a cardio
pulmonary clearance or any typing of the blood of the patient. It was (sic) said in medical parlance that the "the
abdomen of the person is a temple of surprises" because you do not know the whole thing the moment it was
open (sic) and surgeon must be prepared for any eventuality thereof. The patient (sic) chart which is a public
document was not presented because it is only there that we could determine the condition of the patient before
the surgery. The court also noticed in Exh. "F-1" that the sister of the deceased wished to postpone the operation
but the patient was prevailed upon by Dra. Cruz to proceed with the surgery. The court finds that Lydia Umali
died because of the negligence and carelessness of the surgeon Dra. Ninevetch Cruz because of loss of blood
during the operation of the deceased for evident unpreparedness and for lack of skill, the reason why the patient
was brought for operation at the San Pablo City District Hospital. As such, the surgeon should answer for such
negligence. With respect to Dra. Lina Ercillo, the anaesthesiologist, there is no evidence to indicate that she
should be held jointly liable with Dra. Cruz who actually did the operation. 23
The RTC reiterated the abovementioned findings of the MTCC and upheld the latter's declaration of
"incompetency, negligence and lack of foresight and skill of appellant (herein petitioner) in handling the subject
patient before and after the operation." 24 And likewise affirming the petitioner's conviction, the Court of Appeals
echoed similar observations, thus:
. . . While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence, it
nevertheless shows the absence of due care and supervision over her subordinate employees. Did this unsanitary
condition permeate the operating room? Were the surgical instruments properly sterilized? Could the conditions
in the OR have contributed to the infection of the patient? Only the petitioner could answer these, but she opted
not to testify. This could only give rise to the presumption that she has nothing good to testify on her defense.
Anyway, the alleged "unverified statement of the prosecution witness" remains unchallenged and unrebutted.
Likewise undisputed is the prosecution's version indicating the following facts: that the accused asked the
patient's relatives to buy Tagamet capsules while the operation was already in progress; that after an hour, they
were also asked to buy type "A" blood for the patient; that after the surgery, they were again asked to procure
more type "A" blood, but such was not anymore available from the source; that the oxygen given to the patient
was empty; and that the son-in-law of the patient, together with a driver of the petitioner, had to rush to the San
Pablo City District Hospital to get the much-needed oxygen. All these conclusively show that the petitioner had
not prepared for any unforeseen circumstances before going into the first surgery, which was not emergency in
nature, but was elective or pre-scheduled; she had no ready antibiotics, no prepared blood, properly typed and
cross-matched, and no sufficient oxygen supply.
Moreover, there are a lot of questions that keep nagging Us. Was the patient given any cardio-pulmonary
clearance, or at least a clearance by an internist, which are standard requirements before a patient is subjected to
surgery. Did the petitioner determine as part of the pre-operative evaluation, the bleeding parameters of the
patient, such as bleeding time and clotting time? There is no showing that these were done. The petitioner just
appears to have been in a hurry to perform the operation, even as the family wanted a postponement to April 6,
1991. Obviously, she did not prepare the patient; neither did she get the family's consent to the operation.
Moreover, she did not prepare a medical chart with instructions for the patient's care. If she did all these, proof
thereof should have been offered. But there is none. Indeed, these are overwhelming evidence of recklessness and
imprudence. 25
This Court, however, holds differently and finds the foregoing circumstances insufficient to sustain a judgment of
conviction against the petitioner for the crime of reckless imprudence resulting in homicide. The elements of
reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that
act is voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and
(5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his
employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons,
time and place.
Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to
be determined according to the standard of care observed by other members of the profession in good standing
under similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the
present state of medical science. 26 In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pascasio, et al., 27
this Court stated that in accepting a case, a doctor in effect represents that, having the needed training and skill
possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in
the treatment of his patients. He therefore has a duty to use at least the same level of care that any other
reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of
medical malpractice that expert testimony is essential to establish not only the standard of care of the profession
but also that the physician's conduct in the treatment and care falls below such standard. 28 Further, inasmuch as
the causes of the injuries involved in malpractice actions are determinable only in the light of scientific
knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to
causation. 29
Immediately apparent from a review of the records of this case is the absence of any expert testimony on the
matter of the standard of care employed by other physicians of good standing in the conduct of similar
operations. The prosecution's expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of
!9
the National Bureau of Investigation (NBI) only testified as to the possible cause of death but did not venture to
illuminate the court on the matter of the standard of care that petitioner should have exercised.
All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of
provisions such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary
test prior to the operation; the omission of any form of blood typing before transfusion; and even the subsequent
transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it
may be true that the circumstances pointed out by the courts below seemed beyond cavil to constitute reckless
imprudence on the part of the surgeon, this conclusion is still best arrived at not through the educated surmises
nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For
whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient
is, in the generality of cases, a matter of expert opinion. 30 The deference of courts to the expert opinion of
qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in
most instances are incapable of intelligently evaluating. 31 Expert testimony should have been offered to prove
that the circumstances cited by the courts below are constitutive of conduct falling below the standard of care
employed by other physicians in good standing when performing the same operation. It must be remembered that
when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that
in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to
his clients, unless the contrary is sufficiently established. 32 This presumption is rebuttable by expert opinion
which is so sadly lacking in the case at bench.
Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack of provisions;
the failure to conduct pre-operation tests on the patient; and the subsequent transfer of Lydia to the San Pablo
Hospital and the reoperation performed on her by the petitioner do indicate, even without expert testimony, that
petitioner was recklessly imprudent in the exercise of her duties as a surgeon, no cogent proof exists that any of
these circumstances caused petitioner's death. Thus, the absence of the fourth element of reckless imprudence:
that the injury to the person or property was a consequence of the reckless imprudence.
In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence and
for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well
as a causal connection of such breach and the resulting death of his patient. 33 In Chan Lugay v. St. Luke's
Hospital, Inc., 34 where the attending physician was absolved of liability for the death of the complainant's wife
and newborn baby, this Court held that:
In order that there may be a recovery for an injury, however, it must be shown that the "injury for which recovery
is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the
injury must be a direct and natural sequence of events, unbroken by intervening efficient causes." In other words,
the negligence must be the proximate cause of the injury. For, "negligence, no matter in what it consists, cannot
create a right of action unless it is the proximate cause of the injury complained of ." And "the proximate cause of
an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause,
produces the injury, and without which the result would not have occurred." 35 (Emphasis supplied.)
Dr. Arizala who conducted an autopsy on the body of the deceased summarized his findings as follows:
Atty. Cachero:
Q. You mentioned about your Autopsy Report which has been marked as Exh. "A-1-b". There appears here a
signature above the typewritten name Floresto Arizala, Jr., whose signature is that?
A. That is my signature, sir.
Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?
A. Only as to the autopsy report no. 91-09, the time and place and everything after the post mortem findings, sir.
Q. You mentioned on your "Post Mortem Findings" about surgical incision, 14:0 cm., infraumbilical area, anterior
abdominal area, midline, will you please explain that in your own language?
A. There was incision wound (sic) the area just below the navel, sir.
Q. And the last paragraph of the postmortem findings which I read: Uterus, pear-shaped and pale measuring 7.5 x A. Yes, sir, and by virtue of the autopsy report in connection with your pathology report.
5.5 x 5.0 cm. with some surface nodulation of the fundic area posteriorly. Cut-section shows diffusely pale
Q. What could have caused the death of the victim?
myometrium with areas of streak induration. The ovaries and adnexal structures are missing with the raw surfaces
patched with clotted blood. Surgical sutures were noted on the operative site. A. This pathologic examination are (sic) compatible with the person who died, sir.
Intestines and mesenteries are pale with blood clots noted between the mesentric folds. Q. Will you explain to us the meaning of hemorrhagic compatible?
Hemoperitoneum: 300 s.s., A. It means that a person died of blood loss. Meaning a person died of non-replacement of blood and so the
victim before she died there was shock of diminish of blood of the circulation. She died most probably before the
right paracolic gutter,
actual complete blood loss, sir.
50 c.c., left paracolic gutter
Court: Is it possible doctor that the loss of the blood was due on (sic) operation?
200 c.c., mesentric area,
A. Based on my pathologist finding, sir.
100 c.c., right pelvic gutter
Q. What could have caused this loss of blood?
stomach empty.
A. Many, sir. A patient who have undergone surgery. Another may be a blood vessel may be cut while on
Other visceral organs, pale., operation and this cause (sic) bleeding, or may be set in the course of operation, or may be (sic) he died after the
operation. Of course there are other cause (sic).
will you please explain that on (sic) your own language or in ordinary. . . . . . . . . . . .
Atty. Cachero:
A. There was a uterus which was not attached to the adnexal structures namely ovaries which were not present
and also sign of previous surgical operation and there were (sic) clotted blood, sir. Q. Especially so doctor when there was no blood replacement?
Q. How about the ovaries and adnexal structures? A. Yes, sir. 37 (Emphasis supplied.)
A. They are missing, sir. The testimonies of both doctors establish hemorrhage or hemorrhagic shock as the cause of death. However, as
likewise testified to by the expert witnesses in open court, hemorrhage or hemorrhagic shock during surgery may
Q. You mean to say there are no ovaries?
be caused by several different factors. Thus, Dr. Salvador's elaboration on the matter:
A. During that time there are no ovaries, sir.
Atty. Pascual:
Q. And there were likewise sign of surgical sutures?
Q. Doctor, among the causes of hemorrhage that you mentioned you said that it could be at the moment of
A. Yes, sir. operation when one losses (sic) control of the presence, is that correct? During the operation there is lost (sic) of
control of the cut vessel?
Q. How about the intestines and mesenteries are place (sic) with blood clots noted between the mesenteric folds,
will you please explain on (sic) this? A. Yes, sir.
A. In the peritoneal cavity, they are mostly perritonial blood . . . . . . . . Q. Or there is a failure to ligate a vessel of considerable size?
Q. And what could have caused this blood? A. Yes, sir.
A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic) outside as a result of the injuries Q. Or even if the vessel were ligated the knot may have slipped later on?
which destroyed the integrity of the vessel allowing blood to sip (sic) out, sir.
A. Yes, sir.
Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can you tell the court the cause of death?
Q. And you also mentioned that it may be possible also to some clotting defect, is that correct?
A. Yes, sir. The cause of death is: Gross findings are compatible with hemorrhagic shock.
A. May be (sic). 38 (Emphasis supplied).
Q. Can you tell the us what could have caused this hemorrhagic shock?
Defense witness, Dr. Bu C. Castro also gave the following expert opinion:
A. Well hemorrhagic shock is the result of blood loss.
Q. Doctor even a patient after an operations (sic) would suffer hemorrage what would be the possible causes of
Q. What could have the effect of that loss of blood? such hemorrage (sic)?
A. Unattended hemorrhage, sir. 36 (Emphasis supplied.) A. Among those would be what we call Intravascular Coagulation and this is the reason for the bleeding, sir,
which cannot be prevented by anyone, it will happen to anyone, anytime and to any persons (sic), sir.
The foregoing was corroborated by Dr. Nieto Salvador:
COURT:
Q. And were you able to determine the cause of death by virtue of the examination of the specimen submitted by
Dr. Arizala? What do you think of the cause of the bleeding, the cutting or the operations done in the body?
A. Without knowledge of the autopsy findings it would be difficult for me to determine the cause of death, sir. A. Not related to this one, the bleeding here is not related to any cutting or operation that I (sic) have done.
Q. Have you also examined the post mortem of Dr. Arizala? Q. Aside from the DIC what could another causes (sic) that could be the cause for the hemorrhage or bleeding in
a patient by an operations (sic)?

!10
A. In general sir, if there was an operations (sic) and it is possible that the ligature in the suture was (sic) become
(sic) loose, it is (sic) becomes loose if proven..
xxx xxx xxx
Q. If the person who performed an autopsy does not find any untight (sic) clot (sic) blood vessel or any suture
that become (sic) loose the cause of the bleeding could not be attributed to the fault of the subject?
A. Definitely, sir. 39 (Emphasis supplied.)
According to both doctors, the possible causes of hemorrhage during an operation are: (1) the failure of the
surgeon to tie or suture a cut blood vessel; (2) allowing a cut blood vessel to get out of control; (3) the subsequent
loosening of the tie or suture applied to a cut blood vessel; and (4) and a clotting defect known as DIC. It is
significant to state at this juncture that the autopsy conducted by Dr. Arizala on the body of Lydia did not reveal
any untied or unsutured cut blood vessel nor was there any indication that the tie or suture of a cut blood vessel
had become loose thereby causing the hemorrhage. 40 Hence the following pertinent portion of Dr. Arizala's
testimony:
Q: Doctor, in examining these structures did you know whether these were sutured ligature or plain ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if the cut structures were tied by first suturing it and then tying a
knot or the tie was merely placed around the cut structure and tied?
A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall because you did not even bothered (sic) to examine, is that correct?
A: Well, I bothered enough to know that they were sutured, sir.
Q: So, therefore, Doctor, you would not know whether any of the cut structures were not sutured or tied neither
were you able to determine whether any loose suture was found in the peritoneal cavity?
A: I could not recall any loose sutured (sic), sir. 41
On the other hand, the findings of all three doctors do not preclude the probability that DIC caused the
hemorrhage and consequently, Lydia's death. DIC which is a clotting defect creates a serious bleeding tendency
and when massive DIC occurs as a complication of surgery leaving raw surface, major hemorrhage occurs. 42
And as testified to by defense witness, Dr. Bu C. Castro, hemorrhage due to DIC "cannot be prevented, it will
happen to anyone,
anytime." 43 He testified further:
Q. Now, under that circumstance one of the possibility as you mentioned in (sic) DIC?
A. Yes, sir.
Q. And you mentioned that this cannot be prevented?
A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that will tell you whether this patient suffered among such things as
DIC?
A. Well, I did reserve because of the condition of the patient.
Q. Now, Doctor you said that you went through the record of the deceased Lydia Umali looking for the chart, the
operated (sic) records, the post mortem findings on the histophanic (sic) examination based on your examination
of record, doctor, can you more or less says (sic) what part are (sic) concerned could have been the caused (sic) of
death of this Lydia Umali?
!11
A. As far as the medical record is concern (sic) the caused (sic) of death is dessimulated (sic) Intra Vascular
Coagulation or the DIC which resulted to hemorrhage or bleedings, sir.
Q. Doctor based on your findings then there is knowing (sic) the doctor would say whether the doctor her (sic)
has been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on finding they just read the chart as well as the other record.
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the surgeon, sir. 44
This Court has no recourse but to rely on the expert testimonies rendered by both prosecution and defense
witnesses that substantiate rather than contradict petitioner's allegation that the cause of Lydia's death was DIC
which, as attested to by an expert witness, cannot be attributed to the petitioner's fault or negligence. The
probability that Lydia's death was caused by DIC was unrebutted during trial and has engendered in the mind of
this Court a reasonable doubt as to the petitioner's guilt. Thus, her acquittal of the crime of reckless imprudence
resulting in homicide. While we condole with the family of Lydia Umali, our hands are bound by the dictates of
justice and fair dealing which hold inviolable the right of an accused to be presumed innocent until proven guilty
beyond reasonable doubt. Nevertheless, this Court finds the petitioner civilly liable for the death of Lydia Umali,
for while a conviction of a crime requires proof beyond reasonable doubt, only a preponderance of evidence is
required to establish civil liability. 45
The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of evidence this Court
was not able to render a sentence of conviction but it is not blind to the reckless and imprudent manner in which
the petitioner carried out her duties. A precious life has been lost and the circumstances leading thereto
exacerbated the grief of those left behind. The heirs of the deceased continue to feel the loss of their mother up to
the present time 46 and this Court is aware that no amount of compassion and commiseration nor words of
bereavement can suffice to assuage the sorrow felt for the loss of a loved one. Certainly, the award of moral and
exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case.
WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ is hereby ACQUITTED of the crime
of reckless imprudence resulting in homicide but is ordered to pay the heirs of the deceased Lydia Umali the
amount of FIFTY THOUSAND PESOS (P50,000.00) as civil liability, ONE HUNDRED THOUSAND PESOS
(P100,000.00) as moral damages, and FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages.
Let a copy of this decision be furnished to the Professional Regulation Commission (PRC) for appropriate action.
SO ORDERED.
G.R. No. 126297 February 2, 2010 The Court premised the direct liability of PSI to the Aganas on the following facts and law:
PROFESSIONAL SERVICES, INC., Petitioner, First, there existed between PSI and Dr. Ampil an employer-employee relationship as contemplated in the
December 29, 1999 decision in Ramos v. Court of Appeals18 that "for purposes of allocating responsibility in
vs.
medical negligence cases, an employer-employee relationship exists between hospitals and their consultants."19
THE COURT OF APPEALS and NATIVIDAD and ENRIQUE AGANA, Respondents. Although the Court in Ramos later issued a Resolution dated April 11, 200220 reversing its earlier finding on the
existence of an employment relationship between hospital and doctor, a similar reversal was not warranted in the
x - - - - - - - - - - - - - - - - - - - - - - -x
present case because the defense raised by PSI consisted of a mere general denial of control or responsibility over
G.R. No. 126467 the actions of Dr. Ampil.21
NATIVIDAD [substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created the public impression that he was
Jesus Agana and Raymund Agana] and ENRIQUE AGANA, Petitioners, its agent.22 Enrique testified that it was on account of Dr. Ampil's accreditation with PSI that he conferred with
said doctor about his wife's (Natividad's) condition.23 After his meeting with Dr. Ampil, Enrique asked Natividad
vs.
to personally consult Dr. Ampil.24 In effect, when Enrigue and Natividad engaged the services of Dr. Ampil, at
THE COURT OF APPEALS and JUAN FUENTES, Respondents. the back of their minds was that the latter was a staff member of a prestigious hospital. Thus, under the doctrine
of apparent authority applied in Nogales, et al. v. Capitol Medical Center, et al.,25 PSI was liable for the
x - - - - - - - - - - - - - - - - - - - - - - -x
negligence of Dr. Ampil.
G.R. No. 127590
Finally, as owner and operator of Medical City General Hospital, PSI was bound by its duty to provide
MIGUEL AMPIL, Petitioner, comprehensive medical services to Natividad Agana, to exercise reasonable care to protect her from harm,26 to
oversee or supervise all persons who practiced medicine within its walls, and to take active steps in fixing any
vs.
form of negligence committed within its premises.27 PSI committed a serious breach of its corporate duty when it
NATIVIDAD and ENRIQUE AGANA, Respondents. failed to conduct an immediate investigation into the reported missing gauzes.28
RESOLUTION PSI is now asking this Court to reconsider the foregoing rulings for these reasons:
CORONA, J.: I
With prior leave of court,1
petitioner Professional Services, Inc. (PSI) filed a second motion for reconsideration2 The declaration in the 31 January 2007 Decision vis-a-vis the 11 February 2009 Resolution that the ruling in
urging referral thereof to the Court en banc and seeking modification of the decision dated January 31, 2007 and Ramos vs. Court of Appeals (G.R. No. 134354, December 29, 1999) that "an employer-employee relations exists
resolution dated February 11, 2008 which affirmed its vicarious and direct liability for damages to respondents between hospital and their consultants" stays should be set aside for being inconsistent with or contrary to the
Enrique Agana and the heirs of Natividad Agana (Aganas). import of the resolution granting the hospital's motion for reconsideration in Ramos vs. Court of Appeals (G.R.
No. 134354, April 11, 2002), which is applicable to PSI since the Aganas failed to prove an employer-employee
Manila Medical Services, Inc. (MMSI),3 Asian Hospital, Inc. (AHI),4 and Private Hospital Association of the
relationship between PSI and Dr. Ampil and PSI proved that it has no control over Dr. Ampil. In fact, the trial
Philippines (PHAP)5 all sought to intervene in these cases invoking the common ground that, unless modified,
court has found that there is no employer-employee relationship in this case and that the doctor's are independent
the assailed decision and resolution will jeopardize the financial viability of private hospitals and jack up the cost
contractors.
of health care.
II
The Special First Division of the Court granted the motions for intervention of MMSI, AHI and PHAP (hereafter
intervenors),6 and referred en consulta to the Court en banc the motion for prior leave of court and the second Respondents Aganas engaged Dr. Miguel Ampil as their doctor and did not primarily and specifically look to the
motion for reconsideration of PSI.7 Medical City Hospital (PSI) for medical care and support; otherwise stated, respondents Aganas did not select
Medical City Hospital (PSI) to provide medical care because of any apparent authority of Dr. Miguel Ampil as its
Due to paramount public interest, the Court en banc accepted the referral8 and heard the parties on oral arguments
agent since the latter was chosen primarily and specifically based on his qualifications and being friend and
on one particular issue: whether a hospital may be held liable for the negligence of physicians-consultants
neighbor.
allowed to practice in its premises.9
III
To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr. Ampil) and Dr. Juan Fuentes (Dr. Fuentes),
was impleaded by Enrique Agana and Natividad Agana (later substituted by her heirs), in a complaint10 for PSI cannot be liable under doctrine of corporate negligence since the proximate cause of Mrs. Agana's injury was
damages filed in the Regional Trial Court (RTC) of Quezon City, Branch 96, for the injuries suffered by the negligence of Dr. Ampil, which is an element of the principle of corporate negligence.29
Natividad when Dr. Ampil and Dr. Fuentes neglected to remove from her body two gauzes11 which were used in
In their respective memoranda, intervenors raise parallel arguments that the Court's ruling on the existence of an
the surgery they performed on her on April 11, 1984 at the Medical City General Hospital. PSI was impleaded as
employer-employee relationship between private hospitals and consultants will force a drastic and complex
owner, operator and manager of the hospital.
alteration in the long-established and currently prevailing relationships among patient, physician and hospital,
In a decision12 dated March 17, 1993, the RTC held PSI solidarily liable with Dr. Ampil and Dr. Fuentes for with burdensome operational and financial consequences and adverse effects on all three parties.30
damages.13 On appeal, the Court of Appeals (CA), absolved Dr. Fuentes but affirmed the liability of Dr. Ampil
The Aganas comment that the arguments of PSI need no longer be entertained for they have all been traversed in
and PSI, subject to the right of PSI to claim reimbursement from Dr. Ampil.141avvphi1
the assailed decision and resolution.31
On petition for review, this Court, in its January 31, 2007 decision, affirmed the CA decision.15 PSI filed a motion
After gathering its thoughts on the issues, this Court holds that PSI is liable to the Aganas, not under the principle
for reconsideration16 but the Court denied it in a resolution dated February 11, 2008.17
of respondeat superior for lack of evidence of an employment relationship with Dr. Ampil but under the principle

!12
of ostensible agency for the negligence of Dr. Ampil and, pro hac vice, under the principle of corporate
negligence for its failure to perform its duties as a hospital.
While in theory a hospital as a juridical entity cannot practice medicine,32 in reality it utilizes doctors, surgeons
and medical practitioners in the conduct of its business of facilitating medical and surgical treatment.33 Within
that reality, three legal relationships crisscross: (1) between the hospital and the doctor practicing within its
premises; (2) between the hospital and the patient being treated or examined within its premises and (3) between
the patient and the doctor. The exact nature of each relationship determines the basis and extent of the liability of
the hospital for the negligence of the doctor.
Where an employment relationship exists, the hospital may be held vicariously liable under Article 217634 in
relation to Article 218035 of the Civil Code or the principle of respondeat superior. Even when no employment
relationship exists but it is shown that the hospital holds out to the patient that the doctor is its agent, the hospital
may still be vicariously liable under Article 2176 in relation to Article 143136 and Article 186937 of the Civil Code
or the principle of apparent authority.38 Moreover, regardless of its relationship with the doctor, the hospital may
be held directly liable to the patient for its own negligence or failure to follow established standard of conduct to
which it should conform as a corporation.39
This Court still employs the "control test" to determine the existence of an employer-employee relationship
between hospital and doctor. In Calamba Medical Center, Inc. v. National Labor Relations Commission, et al.40 it
held:
Under the "control test", an employment relationship exists between a physician and a hospital if the hospital
controls both the means and the details of the process by which the physician is to accomplish his task.
xxx xxx xxx
As priorly stated, private respondents maintained specific work-schedules, as determined by petitioner through its
medical director, which consisted of 24-hour shifts totaling forty-eight hours each week and which were strictly
to be observed under pain of administrative sanctions.
That petitioner exercised control over respondents gains light from the undisputed fact that in the
emergency room, the operating room, or any department or ward for that matter, respondents' work is
monitored through its nursing supervisors, charge nurses and orderlies. Without the approval or consent
of petitioner or its medical director, no operations can be undertaken in those areas. For control test to
apply, it is not essential for the employer to actually supervise the performance of duties of the employee, it
being enough that it has the right to wield the power. (emphasis supplied)
Even in its December 29, 1999 decision41 and April 11, 2002 resolution42 in Ramos, the Court found the control
test decisive.
In the present case, it appears to have escaped the Court's attention that both the RTC and the CA found no
employment relationship between PSI and Dr. Ampil, and that the Aganas did not question such finding. In its
March 17, 1993 decision, the RTC found "that defendant doctors were not employees of PSI in its hospital, they
being merely consultants without any employer-employee relationship and in the capacity of independent
contractors."43 The Aganas never questioned such finding.
PSI, Dr. Ampil and Dr. Fuentes appealed44 from the RTC decision but only on the issues of negligence, agency
and corporate liability. In its September 6, 1996 decision, the CA mistakenly referred to PSI and Dr. Ampil as
employer-employee, but it was clear in its discussion on the matter that it viewed their relationship as one of mere
apparent agency.45
The Aganas appealed from the CA decision, but only to question the exoneration of Dr. Fuentes.46 PSI also
appealed from the CA decision, and it was then that the issue of employment, though long settled, was
unwittingly resurrected.
In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had no employer-employee
relationship, such finding became final and conclusive even to this Court.47 There was no reason for PSI to have
raised it as an issue in its petition. Thus, whatever discussion on the matter that may have ensued was purely
academic.
!13
Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this particular instance, the concurrent
finding of the RTC and the CA that PSI was not the employer of Dr. Ampil is correct. Control as a determinative
factor in testing the employer-employee relationship between doctor and hospital under which the hospital could
be held vicariously liable to a patient in medical negligence cases is a requisite fact to be established by
preponderance of evidence. Here, there was insufficient evidence that PSI exercised the power of control or
wielded such power over the means and the details of the specific process by which Dr. Ampil applied his skills
in the treatment of Natividad. Consequently, PSI cannot be held vicariously liable for the negligence of Dr. Ampil
under the principle of respondeat superior.
There is, however, ample evidence that the hospital (PSI) held out to the patient (Natividad)48 that the doctor (Dr.
Ampil) was its agent. Present are the two factors that determine apparent authority: first, the hospital's implied
manifestation to the patient which led the latter to conclude that the doctor was the hospital's agent; and second,
the patient’s reliance upon the conduct of the hospital and the doctor, consistent with ordinary care and prudence.
49
Enrique testified that on April 2, 1984, he consulted Dr. Ampil regarding the condition of his wife; that after the
meeting and as advised by Dr. Ampil, he "asked [his] wife to go to Medical City to be examined by [Dr. Ampil]";
and that the next day, April 3, he told his daughter to take her mother to Dr. Ampil.50 This timeline indicates that
it was Enrique who actually made the decision on whom Natividad should consult and where, and that the latter
merely acceded to it. It explains the testimony of Natividad that she consulted Dr. Ampil at the instigation of her
daughter.51
Moreover, when asked what impelled him to choose Dr. Ampil, Enrique testified:
Atty. Agcaoili
On that particular occasion, April 2, 1984, what was your reason for choosing Dr. Ampil to contact with in
connection with your wife's illness?
A. First, before that, I have known him to be a specialist on that part of the body as a surgeon, second, I have
known him to be a staff member of the Medical City which is a prominent and known hospital. And third,
because he is a neighbor, I expect more than the usual medical service to be given to us, than his ordinary
patients.52 (emphasis supplied)
Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was significantly influenced by the
impression that Dr. Ampil was a staff member of Medical City General Hospital, and that said hospital was well
known and prominent. Enrique looked upon Dr. Ampil not as independent of but as integrally related to Medical
City.
PSI's acts tended to confirm and reinforce, rather than negate, Enrique's view. It is of record that PSI required a
"consent for hospital care"53 to be signed preparatory to the surgery of Natividad. The form reads:
Permission is hereby given to the medical, nursing and laboratory staff of the Medical City General Hospital to
perform such diagnostic procedures and to administer such medications and treatments as may be deemed
necessary or advisable by the physicians of this hospital for and during the confinement of xxx. (emphasis
supplied)
By such statement, PSI virtually reinforced the public impression that Dr. Ampil was a physician of its hospital,
rather than one independently practicing in it; that the medications and treatments he prescribed were necessary
and desirable; and that the hospital staff was prepared to carry them out.1avvphi1
PSI pointed out in its memorandum that Dr. Ampil's hospital affiliation was not the exclusive basis of the Aganas’
decision to have Natividad treated in Medical City General Hospital, meaning that, had Dr. Ampil been affiliated
with another hospital, he would still have been chosen by the Aganas as Natividad's surgeon.54
The Court cannot speculate on what could have been behind the Aganas’ decision but would rather adhere strictly
to the fact that, under the circumstances at that time, Enrique decided to consult Dr. Ampil for he believed him to
be a staff member of a prominent and known hospital. After his meeting with Dr. Ampil, Enrique advised his wife
Natividad to go to the Medical City General Hospital to be examined by said doctor, and the hospital acted in a
way that fortified Enrique's belief.
This Court must therefore maintain the ruling that PSI is vicariously liable for the negligence of Dr. Ampil as its
ostensible agent.
Moving on to the next issue, the Court notes that PSI made the following admission in its Motion for
Reconsideration:
51. Clearly, not being an agent or employee of petitioner PSI, PSI [sic] is not liable for Dr. Ampil's acts during the
operation. Considering further that Dr. Ampil was personally engaged as a doctor by Mrs. Agana, it is incumbent
upon Dr. Ampil, as "Captain of the Ship", and as the Agana's doctor to advise her on what to do with her situation
vis-a-vis the two missing gauzes. In addition to noting the missing gauzes, regular check-ups were made and
no signs of complications were exhibited during her stay at the hospital, which could have alerted
petitioner PSI's hospital to render and provide post-operation services to and tread on Dr. Ampil's role as
the doctor of Mrs. Agana. The absence of negligence of PSI from the patient's admission up to her
discharge is borne by the finding of facts in this case. Likewise evident therefrom is the absence of any
complaint from Mrs. Agana after her discharge from the hospital which had she brought to the hospital's
attention, could have alerted petitioner PSI to act accordingly and bring the matter to Dr. Ampil's
attention. But this was not the case. Ms. Agana complained ONLY to Drs. Ampil and Fuentes, not the
hospital. How then could PSI possibly do something to fix the negligence committed by Dr. Ampil when it
was not informed about it at all.55 (emphasis supplied)
PSI reiterated its admission when it stated that had Natividad Agana "informed the hospital of her discomfort and
pain, the hospital would have been obliged to act on it."56
The significance of the foregoing statements is critical.
First, they constitute judicial admission by PSI that while it had no power to control the means or method by
which Dr. Ampil conducted the surgery on Natividad Agana, it had the power to review or cause the review of
what may have irregularly transpired within its walls strictly for the purpose of determining whether some form
of negligence may have attended any procedure done inside its premises, with the ultimate end of protecting its
patients.
Second, it is a judicial admission that, by virtue of the nature of its business as well as its prominence57 in the
hospital industry, it assumed a duty to "tread on" the "captain of the ship" role of any doctor rendering services
within its premises for the purpose of ensuring the safety of the patients availing themselves of its services and
facilities.
Third, by such admission, PSI defined the standards of its corporate conduct under the circumstances of this case,
specifically: (a) that it had a corporate duty to Natividad even after her operation to ensure her safety as a patient;
(b) that its corporate duty was not limited to having its nursing staff note or record the two missing gauzes and (c)
that its corporate duty extended to determining Dr. Ampil's role in it, bringing the matter to his attention, and
correcting his negligence.
And finally, by such admission, PSI barred itself from arguing in its second motion for reconsideration that the
concept of corporate responsibility was not yet in existence at the time Natividad underwent treatment;58 and that
if it had any corporate responsibility, the same was limited to reporting the missing gauzes and did not include
"taking an active step in fixing the negligence committed."59 An admission made in the pleading cannot be
controverted by the party making such admission and is conclusive as to him, and all proofs submitted by him
contrary thereto or inconsistent therewith should be ignored, whether or not objection is interposed by a party.60
Given the standard of conduct that PSI defined for itself, the next relevant inquiry is whether the hospital
measured up to it.
PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil assumed the personal
responsibility of informing Natividad about the two missing gauzes.61 Dr. Ricardo Jocson, who was part of the
group of doctors that attended to Natividad, testified that toward the end of the surgery, their group talked about
the missing gauzes but Dr. Ampil assured them that he would personally notify the patient about it.62
Furthermore, PSI claimed that there was no reason for it to act on the report on the two missing gauzes because
Natividad Agana showed no signs of complications. She did not even inform the hospital about her discomfort.63
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The excuses proffered by PSI are totally unacceptable.
To begin with, PSI could not simply wave off the problem and nonchalantly delegate to Dr. Ampil the duty to
review what transpired during the operation. The purpose of such review would have been to pinpoint when, how
and by whom two surgical gauzes were mislaid so that necessary remedial measures could be taken to avert any
jeopardy to Natividad’s recovery. Certainly, PSI could not have expected that purpose to be achieved by merely
hoping that the person likely to have mislaid the gauzes might be able to retrace his own steps. By its own
standard of corporate conduct, PSI's duty to initiate the review was non-delegable.
While Dr. Ampil may have had the primary responsibility of notifying Natividad about the missing gauzes, PSI
imposed upon itself the separate and independent responsibility of initiating the inquiry into the missing gauzes.
The purpose of the first would have been to apprise Natividad of what transpired during her surgery, while the
purpose of the second would have been to pinpoint any lapse in procedure that led to the gauze count
discrepancy, so as to prevent a recurrence thereof and to determine corrective measures that would ensure the
safety of Natividad. That Dr. Ampil negligently failed to notify Natividad did not release PSI from its self-
imposed separate responsibility.
Corollary to its non-delegable undertaking to review potential incidents of negligence committed within its
premises, PSI had the duty to take notice of medical records prepared by its own staff and submitted to its
custody, especially when these bear earmarks of a surgery gone awry. Thus, the record taken during the operation
of Natividad which reported a gauze count discrepancy should have given PSI sufficient reason to initiate a
review. It should not have waited for Natividad to complain.
As it happened, PSI took no heed of the record of operation and consequently did not initiate a review of what
transpired during Natividad’s operation. Rather, it shirked its responsibility and passed it on to others – to Dr.
Ampil whom it expected to inform Natividad, and to Natividad herself to complain before it took any meaningful
step. By its inaction, therefore, PSI failed its own standard of hospital care. It committed corporate negligence.
It should be borne in mind that the corporate negligence ascribed to PSI is different from the medical negligence
attributed to Dr. Ampil. The duties of the hospital are distinct from those of the doctor-consultant practicing
within its premises in relation to the patient; hence, the failure of PSI to fulfill its duties as a hospital corporation
gave rise to a direct liability to the Aganas distinct from that of Dr. Ampil.
All this notwithstanding, we make it clear that PSI’s hospital liability based on ostensible agency and corporate
negligence applies only to this case, pro hac vice. It is not intended to set a precedent and should not serve as a
basis to hold hospitals liable for every form of negligence of their doctors-consultants under any and all
circumstances. The ruling is unique to this case, for the liability of PSI arose from an implied agency with Dr.
Ampil and an admitted corporate duty to Natividad.64
Other circumstances peculiar to this case warrant this ruling,65 not the least of which being that the agony
wrought upon the Aganas has gone on for 26 long years, with Natividad coming to the end of her days racked in
pain and agony. Such wretchedness could have been avoided had PSI simply done what was logical: heed the
report of a guaze count discrepancy, initiate a review of what went wrong and take corrective measures to ensure
the safety of Nativad. Rather, for 26 years, PSI hemmed and hawed at every turn, disowning any such
responsibility to its patient. Meanwhile, the options left to the Aganas have all but dwindled, for the status of Dr.
Ampil can no longer be ascertained.66
Therefore, taking all the equities of this case into consideration, this Court believes ₱15 million would be a fair
and reasonable liability of PSI, subject to 12% p.a. interest from the finality of this resolution to full satisfaction.
WHEREFORE, the second motion for reconsideration is DENIED and the motions for intervention are
NOTED.
Professional Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted by her children Marcelino
Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund Agana) and Enrique Agana the
total amount of ₱15 million, subject to 12% p.a. interest from the finality of this resolution to full satisfaction.
No further pleadings by any party shall be entertained in this case.
Let the long-delayed entry of judgment be made in this case upon receipt by all concerned parties of this
resolution.
SO ORDERED.

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