In informed consent cases (unlike in ordinary medical negligence cases),

however, many issues do not necessarily involve medical science. In the landmark
case of Canterbury v. Spence,[78] the United States Court of Appeals for the District
Columbia Circuit defined the limited role of expert testimony in informed consent
cases and provided examples of situations appropriate for non-expert testimony:

There are obviously important roles for medical testimony in such cases,
and some roles which only medical evidence can fill. Experts are ordinarily
indispensible to identify and elucidate for the fact finder the risks of therapy and
the consequences of leaving existing maladies untreated. They are normally needed
on issues as to the cause of any injury or disability suffered by the patient and,
where privileges are asserted, as to the existence of any emergency claimed and
the nature and seriousness of any impact upon the patient from risk-
disclosure. Save for relative infrequent instances where questions of this type are
resolvable wholly within the realm of ordinary human knowledge and experience,
the need for the expert is clear.

The guiding consideration our decisions distill, however, is that medical

facts are for medical experts and other facts are for any witnesses-expert or
not-having sufficient knowledge and capacity to testify to them. It is evident
that many of the issues typically involved in nondisclosure cases do not reside
peculiarly within the medical domain. Lay witness testimony can competently
establish a physician's failure to disclose particular risk information, the patient's
lack of knowledge of the risk, and the adverse consequences following the
treatment. Experts are unnecessary to a showing of the materiality of a risk to a
patient's decision on treatment, or to the reasonably, expectable effect of risk
disclosure on the decision. These conspicuous examples of permissible uses of
nonexpert testimony illustrate the relative freedom of broad areas of the legal
problem of risk nondisclosure from the demands for expert testimony that shackle
plaintiffs' other types of medical malpractice litigation. [Citations omitted;
emphasis supplied]

All these, Canterbury v. Spence[84] best summed up when it observed that medical
facts are for medical experts and other facts are for any witness expert or not
having sufficient knowledge and capacity to testify to them.

[Separate Opinion]

In the United States, the seminal case was Schoendorff v. Society of New York
Hospital[53] which involved unwanted treatment performed by a doctor. Justice
Benjamin Cardozos oft-quoted opinion upheld the basic right of a patient to give
consent to any medical procedure or treatment: Every human being of adult years
and sound mind has a right to determine what shall be done with his own body;
and a surgeon who performs an operation without his patients consent, commits an
assault, for which he is liable in damages.[54] From a purely ethical norm, informed
consent evolved into a general principle of law that a physician has a duty to
disclose what a reasonably prudent physician in the medical community in the
exercise of reasonable care would disclose to his patient as to whatever grave risks
of injury might be incurred from a proposed course of treatment, so that a patient,
exercising ordinary care for his own welfare, and faced with a choice of
undergoing the proposed treatment, or alternative treatment, or none at all, may
intelligently exercise his judgment by reasonably balancing the probable risks
against the probable benefits.[55]

Reiterating the foregoing considerations, Cobbs v. Grant[61] deemed it as integral

part of physicians overall obligation to patient, the duty of reasonable disclosure of
available choices with respect to proposed therapy and of dangers inherently and
potentially involved in each. However, the physician is not obliged to discuss
relatively minor risks inherent in common procedures when it is common knowledge
that such risks inherent in procedure of very low incidence. Cited as exceptions to
the rule that the patient should not be denied the opportunity to weigh the risks of
surgery or treatment are emergency cases where it is evident he cannot evaluate data,
and where the patient is a child or incompetent.[62] The court thus concluded that the
patients right of self-decision can only be effectively exercised if the patient
possesses adequate information to enable him in making an intelligent choice. The
scope of the physicians communications to the patient, then must be measured by
the patients need, and that need is whatever information is material to the
decision. The test therefore for determining whether a potential peril must be
divulged is its materiality to the patients decision.[63]

There are four essential elements a plaintiff must prove in a malpractice action
based upon the doctrine of informed consent: (1) the physician had a duty to
disclose material risks; (2) he failed to disclose or inadequately disclosed those
risks; (3) as a direct and proximate result of the failure to disclose, the patient
consented to treatment she otherwise would not have consented to; and (4) plaintiff
was injured by the proposed treatment. The gravamen in an informed consent case
requires the plaintiff to point to significant undisclosed information relating to the
treatment which would have altered her decision to undergo it.
* A witness may be considered as unwilling or hostile only if so declared by the court upon
adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled
the party into calling him to the witness stand (Section 12, Rule 132).”

- Unjustified reluctance to execute a judicial affidavit--- tantamount to unjustified

reluctance to testify, as it will be violative of the Rules on Judicial Affidavit, hence the a
deterrent to the purpose of the Judaff to abbreviate proceedings of the case?

 Impeachment of adverse party's witness. — A witness may be impeached by the party

against whom he was called, by contradictory evidence, by evidence that his general
reputation for truth, honestly, or integrity is bad, or by evidence that he has made at
other times statements inconsistent with his present, testimony, but not by evidence of
particular wrongful acts, except that it may be shown by the examination of the witness,
or the record of the judgment, that he has been convicted of an offense. (Sec. 11, 132)
 In any case, impeachment, in this context, of a hostile witness refers to being
“impeached by the party presenting him in all respects as if he had been called by the
adverse party, except by evidence of his bad character. He may also be impeached and
cross-examined by the adverse party, but such cross-examination must only be on the
subject matter of his examination-in-chief. (Section 12).” In effect, the witness’
“credibility” is put at issue. This is not allowed as a general rule except in certain
instances which includes a hostile witness (Section 12).
 In case of unwilling or hostile witnesses: they are uncooperative and will not
readily supply the facts desired by the examiner. The approach to these
witnesses is to conduct a direct examination as if it were a cross-examination

 a. unwilling witnesses include (i) those who have to be compelled to testify
by the coercive processes of the court (ii) or those who, at the time of their
presentation at the witness stand, become evasive, reluctant or unfriendly
 b. hostile-may refer to (i) a witness who manifest so much hostility and
prejudice during the direct examination that the party who called him is
allowed to cross-examine, i.e to treat him as if he had been called by the
opposite party or (ii) one who surprises the party and unexpectedly turns
against him
 In either case, the party calling the witness must present proof of either
adverse interest on the part of the witness, his unjustified reluctance, or of his
misleading the party into calling him a witness, and on the basis of which the
court shall declare the witness to be a hostile witness. Thereafter leading
questions are asked.
SECTION 5 OF THE JAR DOES NOT
APPLY TO ADVERSE PARTY WITNESSES

The JAR primarily affects the manner by which evidence is presented in court.� Section 2(a) of the JAR
provides that judicial affidavits are mandatorily filed by parties to a case except in small claims cases.�
These judicial affidavits take the place of direct testimony in court.� It provides: Lawlib raryofCR Alaw

Sec. 2. Submission of Judicial Affidavits and Exhibits in lieu of direct testimonies. �� (a) The parties shall file
with the court and serve on the adverse party, personally or by licensed courier service, not later than five
days before pre-trial or preliminary conference or the scheduled hearing with respect to motions and incidents,
the following: Lawli bra ryofCRAlaw

(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses� direct testimonies;
and

(2) The parties� documentary or object evidence, if any, which shall be attached to the judicial affidavits and
marked as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3,
and so on in the case of the respondent or the defendant.

xxxx

Section 324� of the JAR enumerates the content of a judicial affidavit.

Under Section 10,25 parties are to be penalized if they do not conform to the provisions of the JAR. Parties
are however allowed to resort to the application of a subpoena pursuant to Rule 21 of the Rules of Court in
Section 5 of the JAR in certain situations.� Section 5 provides: Law lib raryofCRAlaw

Sec. 5. Subpoena. � If the government employee or official, or the requested witness, who is neither the
witness of the adverse party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or
refuses without just cause to make the relevant books, documents, or other things under his control available
for copying, authentication, and eventual production in court, the requesting party may avail himself of the
issuance of a subpoena ad testificandum or duces tecum under Rule 21 of the Rules of Court. The rules
governing the issuance of a subpoena to the witness in this case shall be the same as when taking his
deposition except that the taking of a judicial affidavit shal1 be understood to be ex parte.

While we agree with the RTC that Section 5 has no application to Yap as he was presented as a hostile
witness we cannot agree that there is need for a finding that witness unjustifiably refused to execute a
judicial affidavit.

Section 5 of the JAR contemplates a situation where there is a (a) government employee or official or (b)
requested witness who is not the (1) adverse party�s witness nor (2) a hostile witness.� If this person
either (a) unjustifiably declines to execute a judicial affidavit or (b) refuses without just cause to make the
relevant documents available to the other party and its presentation to court, Section 5 allows the
requesting party to avail of issuance of subpoena ad testificandum or duces tecum under Rule 21 of the
Rules of Court.� Thus, adverse party witnesses and hostile witnesses being excluded they are not covered
by Section 5.� Expressio unius est exclusion alterius: the express mention of one person, thing, or
consequence implies the exclusion of all others.26 redarclaw

Here, Yap is a requested witness who is the adverse party�s witness.� Regardless of whether he
unjustifiably declines to execute a judicial affidavit or refuses without just cause to present the documents,
Section 5 cannot be made to apply to him for the reason that he is included in a group of individuals
expressly exempt from the provision�s application.

The situation created before us begs the question: if the requested witness is the adverse party�s witness
or a hostile witness, what procedure should be followed?
The JAR being silent on this point, we turn to the provisions governing the rules on evidence covering hostile
witnesses specially Section 12, Rule 132 of the Rules of Court which provides: Lawlib ra ryofCRAlaw

SEC. 12.� Party may not impeach his own witness. � Except with respect to witnesses referred to in
paragraphs (d) and (e) of Section 10, the party producing a witness is not allowed to impeach his credibility.

A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing
of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the
witness stand.

The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by
the party presenting him in all respects as if he had been called by the adverse party, except by evidence of
his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-
examination must only be on the subject matter of his examination-in-chief.

Before a party may be qualified under Section 12, Rule 132 of the Rules of Court, the party presenting the
adverse party witness must comply with Section 6, Rule 25 of the Rules of Court which provides: Law lib raryofCRAlaw

SEC. 6.� Effect of failure to serve written interrogatories. � Unless thereafter allowed by the court for good
cause shown and to prevent a failure of justice, a party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open court, or to give a deposition pending appeal.

In Afulugencia v. Metropolitan Bank & Trust Co.,27 this Court stated that �in civil cases, the procedure of
calling the adverse party to the witness stand is not allowed, unless written interrogatories are first served
upon the latter.

*** In sum, Section 5 of the JAR expressly excludes from its application adverse party and hostile
witnesses.� For the presentation of these types of witnesses, the provisions on the Rules of Court under the
Revised Rules of Evidence and all other correlative rules including the modes of deposition and discovery
rules shall apply.

*** THIRD DIVISION

G.R. No. 214054, August 05, 2015

NG MENG TAM, Petitioner, v. CHINA BANKING CORPORATION, Respondent.

**** JUDGE HOW: DID NOT ALLOW INTERROGATORIES.. EX PARTE JUDAFF EXECUTION