Hosaka; see TSN, February 20, 1990, p.
3),
51
G.R. No. 124354 December 29, 1999
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own
behalf and as natural guardians of the minors, ROMMEL
RAMOS, ROY RODERICK RAMOS and RON RAYMOND
RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL
CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial
consideration to the health and welfare of their patients. If a
doctor fails to live up to this precept, he is made accountable
for his acts. A mistake, through gross negligence or
incompetence or plain human error, may spell the difference
between life and death. In this sense, the doctor plays God on
his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a
surgeon, an anesthesiologist and a hospital should be made
liable for the unfortunate comatose condition of a patient
scheduled for cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of
Appeals, dated 29 May 1995, which overturned the
decision 4 of the Regional Trial Court, dated 30 January 1992,
finding private respondents liable for damages arising from
negligence in the performance of their professional duties
towards petitioner Erlinda Ramos resulting in her comatose
condition.
The antecedent facts as summarized by the trial court are
reproduced hereunder:
Plaintiff Erlinda Ramos was, until the
afternoon of June 17, 1985, a 47-year old
(Exh. "A") robust woman (TSN, October 19,
1989, p. 10). Except for occasional
complaints of discomfort due to pains
allegedly caused by the presence of a stone
in her gall bladder (TSN, January 13, 1988,
pp. 4-5), she was as normal as any other
woman. Married to Rogelio E. Ramos, an
executive of Philippine Long Distance
Telephone Company, she has three children
whose names are Rommel Ramos, Roy
Roderick Ramos and Ron Raymond Ramos
(TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered
with her normal ways, she sought
professional advice. She was advised to
undergo an operation for the removal of a
stone in her gall bladder (TSN, January 13,
1988, p. 5). She underwent a series of
examinations which included blood and
urine tests (Exhs. "A" and "C") which
indicated she was fit for surgery.
Through the intercession of a mutual friend,
Dr. Buenviaje (TSN, January 13, 1988, p. 7),
she and her husband Rogelio met for
the first time Dr. Orlino Hozaka (should be
1 TORTS LAST SET
one of the defendants in this case, on June
10, 1985. They agreed that their date at the
operating table at the DLSMC (another
defendant), would be on June 17, 1985 at
9:00 A.M.. Dr. Hosaka decided that she
should undergo a "cholecystectomy"
operation after examining the documents
(findings from the Capitol Medical Center,
FEU Hospital and DLSMC) presented to
him. Rogelio E. Ramos, however, asked Dr.
Hosaka to look for a good anesthesiologist.
Dr. Hosaka, in turn, assured Rogelio that he
will get a good anesthesiologist. Dr. Hosaka
charged a fee of P16,000.00, which was to
include the anesthesiologist's fee and which
was to be paid after the operation (TSN,
October 19, 1989, pp. 14-15, 22-23, 31-33;
TSN, February 27, 1990, p. 13; and TSN,
November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of
operation, she was admitted at one of the
rooms of the DLSMC, located along E.
Rodriguez Avenue, Quezon City (TSN,
October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and
while still in her room, she was prepared for
the operation by the hospital staff. Her
sister-in-law, Herminda Cruz, who was the
Dean of the College of Nursing at the
Capitol Medical Center, was also there for
moral support. She reiterated her previous
request for Herminda to be with her even
during the operation. After praying, she was
given injections. Her hands were held by
Herminda as they went down from her room
to the operating room (TSN, January 13,
1988, pp. 9-11). Her husband, Rogelio, was
also with her (TSN, October 19, 1989, p.
18). At the operating room, Herminda saw
about two or three nurses and Dr. Perfecta
Gutierrez, the other defendant, who was to
administer anesthesia. Although not a
member of the hospital staff, Herminda
introduced herself as Dean of the College of
Nursing at the Capitol Medical Center who
was to provide moral support to the patient,
to them. Herminda was allowed to stay
inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached
a nearby phone to look for Dr. Hosaka who
was not yet in (TSN, January 13, 1988, pp.
11-12). Dr. Gutierrez thereafter informed
Herminda Cruz about the prospect of a delay
in the arrival of Dr. Hosaka. Herminda then
went back to the patient who asked, "Mindy,
wala pa ba ang Doctor"? The former replied,
"Huwag kang mag-alaala, darating na iyon"
(Ibid.).
Thereafter, Herminda went out of the
operating room and informed the patient's
husband, Rogelio, that the doctor was not
yet around (id., p. 13). When she returned to
the operating room, the patient told her,
"Mindy, inip na inip na ako, ikuha mo ako
ng ibang Doctor." So, she went out again
and told Rogelio about what the patient said
(id., p. 15). Thereafter, she returned to the
operating room.
At around 10:00 A.M., Rogelio E. Ramos
was "already dying [and] waiting for the
arrival of the doctor" even as he did his best
to find somebody who will allow him to pull
out his wife from the operating room (TSN,
October 19, 1989, pp. 19-20). He also
thought of the feeling of his wife, who was
inside the operating room waiting for the
doctor to arrive (ibid.). At almost 12:00
noon, he met Dr. Garcia who remarked that
he (Dr. Garcia) was also tired of waiting for
Dr. Hosaka to arrive (id., p. 21). While
talking to Dr. Garcia at around 12:10 P.M.,
he came to know that Dr. Hosaka arrived as
a nurse remarked, "Nandiyan na si Dr.
Hosaka, dumating na raw." Upon hearing
those words, he went down to the lobby and
waited for the operation to be completed
(id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who
was inside the operating room with the
patient, heard somebody say that "Dr.
Hosaka is already here." She then saw
people inside the operating room "moving,
doing this and that, [and] preparing the
patient for the operation" (TSN, January 13,
1988, p. 16). As she held the hand of Erlinda
Ramos, she then saw Dr. Gutierrez
intubating the hapless patient. She thereafter
heard Dr. Gutierrez say, "ang hirap ma-
intubate nito, mali yata ang pagkakapasok.
O lumalaki ang tiyan" (id., p. 17). Because
of the remarks of Dra. Gutierrez, she
focused her attention on what Dr. Gutierrez
was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand
of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka
issue an order for someone to call Dr.
Calderon, another anesthesiologist (id., p.
19). After Dr. Calderon arrived at the
operating room, she saw this
anesthesiologist trying to intubate the
patient. The patient's nailbed became bluish
and the patient was placed in a
trendelenburg position — a position where
the head of the patient is placed in a position
lower than her feet which is an indication
that there is a decrease of blood supply to
the patient's brain (Id., pp. 19-20).
Immediately thereafter, she went out of the
operating room, and she told Rogelio E.
Ramos "that something wrong was . . .
happening" (Ibid.). Dr. Calderon was then
able to intubate the patient (TSN, July 25,
1991, p. 9).
Meanwhile, Rogelio, who was outside the
operating room, saw a respiratory machine
being rushed towards the door of the
operating room. He also saw several doctors
rushing towards the operating room. When
informed by Herminda Cruz that something
wrong was happening, he told her
(Herminda) to be back with the patient
inside the operating room (TSN, October 19,
1989, pp. 25-28).
Herminda Cruz immediately rushed back,
and saw that the patient was still in
trendelenburg position (TSN, January 13,
1988, p. 20). At almost 3:00 P.M. of that
2 TORTS LAST SET
fateful day, she saw the patient taken to the
Intensive Care Unit (ICU).
About two days thereafter, Rogelio E.
Ramos was able to talk to Dr. Hosaka. The
latter informed the former that something
went wrong during the intubation. Reacting
to what was told to him, Rogelio reminded
the doctor that the condition of his wife
would not have happened, had he (Dr.
Hosaka) looked for a good anesthesiologist
(TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also
asked by the hospital to explain what
happened to the patient. The doctors
explained that the patient had bronchospasm
(TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a
month. About four months thereafter or on
November 15, 1985, the patient was released
from the hospital.
During the whole period of her confinement,
she incurred hospital bills amounting to
P93,542.25 which is the subject of a
promissory note and affidavit of undertaking
executed by Rogelio E. Ramos in favor of
DLSMC. Since that fateful afternoon of June
17, 1985, she has been in a comatose
condition. She cannot do anything. She
cannot move any part of her body. She
cannot see or hear. She is living on
mechanical means. She suffered brain
damage as a result of the absence of oxygen
in her brain for four to five minutes (TSN,
November 9, 1989, pp. 21-22). After being
discharged from the hospital, she has been
staying in their residence, still needing
constant medical attention, with her husband
Rogelio incurring a monthly expense
ranging from P8,000.00 to P10,000.00
(TSN, October 19, 1989, pp. 32-34). She
was also diagnosed to be suffering from
"diffuse cerebral parenchymal damage"
(Exh. "G"; see also TSN, December 21,
1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for
damages with the Regional Trial Court of Quezon City against
herein private respondents alleging negligence in the
management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the
possible cause of Erlinda's injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano Gavino
to prove that the sustained by Erlinda was due to lack of
oxygen in her brain caused by the faulty management of her
airway by private respondents during the anesthesia phase. On
the other hand, private respondents primarily relied on the
expert testimony of Dr. Eduardo Jamora, a pulmonologist, to
the effect that the cause of brain damage was Erlinda's allergic
reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from both sides, the Regional
Trial Court rendered judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in
the finding of facts set forth earlier, and
applying the aforecited provisions of law
and jurisprudence to the case at bar, this
Court finds and so holds that defendants are
liable to plaintiffs for damages. The
defendants were guilty of, at the very least,
negligence in the performance of their duty
to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this
Court finds that she omitted to exercise
reasonable care in not only intubating the
patient, but also in not repeating the
administration of atropine (TSN, August 20,
1991, pp. 5-10), without due regard to the
fact that the patient was inside the operating
room for almost three (3) hours. For after
she committed a mistake in intubating [the]
patient, the patient's nailbed became bluish
and the patient, thereafter, was placed in
trendelenburg position, because of the
decrease of blood supply to the patient's
brain. The evidence further shows that the
hapless patient suffered brain damage
because of the absence of oxygen in her
(patient's) brain for approximately four to
five minutes which, in turn, caused the
patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court
finds that he is liable for the acts of Dr.
Perfecta Gutierrez whom he had chosen to
administer anesthesia on the patient as part
of his obligation to provide the patient a
good anesthesiologist', and for arriving for
the scheduled operation almost three (3)
hours late.
On the part of DLSMC (the hospital), this
Court finds that it is liable for the acts of
negligence of the doctors in their "practice
of medicine" in the operating room.
Moreover, the hospital is liable for failing
through its responsible officials, to cancel
the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.
In having held thus, this Court rejects the
defense raised by defendants that they have
acted with due care and prudence in
rendering medical services to plaintiff-
patient. For if the patient was properly
intubated as claimed by them, the patient
would not have become comatose. And, the
fact that another anesthesiologist was called
to try to intubate the patient after her (the
patient's) nailbed turned bluish, belie their
claim. Furthermore, the defendants should
have rescheduled the operation to a later
date. This, they should have done, if
defendants acted with due care and prudence
as the patient's case was an elective, not an
emergency case.
x x x           x x x          x x x
WHEREFORE, and in view of the
foregoing, judgment is rendered in favor of
the plaintiffs and against the defendants.
Accordingly, the latter are ordered to pay,
jointly and severally, the former the
following sums of money, to wit:
1) the sum of P8,000.00 as
actual monthly expenses
3 TORTS LAST SET
for the plaintiff Erlinda
Ramos reckoned from
November 15, 1985 or in
the total sum of
P632,000.00 as of April
15, 1992, subject to its
being updated;
2) the sum of P100,000.00
as reasonable attorney's
fees;
3) the sum of P800,000.00
by way of moral damages
and the further sum of
P200,000,00 by way of
exemplary damages; and,
4) the costs of the suit.
SO ORDERED. 7
Private respondents seasonably interposed an appeal to the
Court of Appeals. The appellate court rendered a Decision,
dated 29 May 1995, reversing the findings of the trial court.
The decretal portion of the decision of the appellate court
reads:
WHEREFORE, for the foregoing premises
the appealed decision is hereby
REVERSED, and the complaint below
against the appellants is hereby ordered
DISMISSED. The counterclaim of appellant
De Los Santos Medical Center is
GRANTED but only insofar as appellees are
hereby ordered to pay the unpaid hospital
bills amounting to P93,542.25, plus legal
interest for justice must be tempered with
mercy.
SO ORDERED. 8
The decision of the Court of Appeals was received on 9 June
1995 by petitioner Rogelio Ramos who was mistakenly
addressed as "Atty. Rogelio Ramos." No copy of the decision,
however, was sent nor received by the Coronel Law Office,
then counsel on record of petitioners. Rogelio referred the
decision of the appellate court to a new lawyer, Atty. Ligsay,
only on 20 June 1995, or four (4) days before the expiration of
the reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion
for reconsideration. The motion for reconsideration was
submitted on 4 July 1995. However, the appellate court denied
the motion for extension of time in its Resolution dated 25
July 1995. 9 Meanwhile, petitioners engaged the services of
another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty.
Sillano filed on 7 August 1995 a motion to admit the motion
for reconsideration contending that the period to file the
appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court
of Appeals had not yet served a copy thereof to the counsel on
record. Despite this explanation, the appellate court still
denied the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996, primarily
on the ground that the fifteen-day (15) period for filing a
motion for reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995,
that the filing of a Motion for
Reconsideration cannot be extended;
precisely, the Motion for Extension (Rollo,
 p. 12) was denied. It is, on the other hand,
admitted in the latter Motion that
plaintiffs/appellees received a copy of the
decision as early as June 9, 1995.
Computation wise, the period to file a
Motion for Reconsideration expired on June
24. The Motion for Reconsideration, in turn,
was received by the Court of Appeals
already on July 4, necessarily, the 15-day
period already passed. For that alone, the
latter should be denied.
Even assuming admissibility of the Motion
for the Reconsideration, but after
considering the Comment/Opposition, the
former, for lack of merit, is hereby
DENIED.
SO ORDERED. 10
A copy of the above resolution was received by Atty. Sillano
on 11 April 1996. The next day, or on 12 April 1996, Atty.
Sillano filed before this Court a motion for extension of time
to file the present petition for certiorari under Rule 45. The
Court granted the motion for extension of time and gave
petitioners additional thirty (30) days after the expiration of
the fifteen-day (15) period counted from the receipt of the
resolution of the Court of Appeals within which to submit the
petition. The due date fell on 27 May 1996. The petition was
filed on 9 May 1996, well within the extended period given by
the Court.
Petitioners assail the decision of the Court of Appeals on the
following grounds:
I loquitur'' is a maxim for the rule that the fact of the occurrence
IN PUTTING MUCH RELIANCE ON THE
TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND
DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE
OF THE RESPONDENTS DID NOT
CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF
PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE
OF RES IPSA LOQUITUR. 11
Before we discuss the merits of the case, we shall first dispose
of the procedural issue on the timeliness of the petition in
relation to the motion for reconsideration filed by petitioners
with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition
should not be given due course since the motion for
reconsideration of the petitioners on the decision of the Court
of Appeals was validly dismissed by the appellate court for
having been filed beyond the reglementary period. We do not
agree.
A careful review of the records reveals that the reason behind
the delay in filing the motion for reconsideration is attributable
to the fact that the decision of the Court of Appeals was not
sent to then counsel on record of petitioners, the Coronel Law
Office. In fact, a copy of the decision of the appellate court
was instead sent to and received by petitioner Rogelio Ramos
4 TORTS LAST SET
on 9 June 1995 wherein he was mistakenly addressed as Atty.
Rogelio Ramos. Based on the other communications received
by petitioner Rogelio Ramos, the appellate court apparently
mistook him for the counsel on record. Thus, no copy of the
decision of the counsel on record. Petitioner, not being a
lawyer and unaware of the prescriptive period for filing a
motion for reconsideration, referred the same to a legal
counsel only on 20 June 1995.
It is elementary that when a party is represented by counsel, all
notices should be sent to the party's lawyer at his given
address. With a few exceptions, notice to a litigant without
notice to his counsel on record is no notice at all. In the
present case, since a copy of the decision of the appellate court
was not sent to the counsel on record of petitioner, there can
be no sufficient notice to speak of. Hence, the delay in the
filing of the motion for reconsideration cannot be taken
against petitioner. Moreover, since the Court of Appeals
already issued a second Resolution, dated 29 March 1996,
which superseded the earlier resolution issued on 25 July
1995, and denied the motion for reconsideration of petitioner,
we believed that the receipt of the former should be considered
in determining the timeliness of the filing of the present
petition. Based on this, the petition before us was submitted on
time.
After resolving the foregoing procedural issue, we shall now
look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the issue
on the applicability of the doctrine of res ipsa loquitur to the
instant case. Thereafter, the first two assigned errors shall be
tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the
thing or the transaction speaks for itself." The phrase "res ipsa
of an injury, taken with the surrounding circumstances, may
permit an inference or raise a presumption of negligence, or
make out a plaintiff's prima facie case, and present a question
of fact for defendant to meet with an explanation. 13 Where the
thing which caused the injury complained of is shown to be
under the management of the defendant or his servants and the
accident is such as in ordinary course of things does not
happen if those who have its management or control use
proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from or
was caused by the defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the
postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences
may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in
the absence of some explanation by the defendant who is
charged with negligence. 15 It is grounded in the superior logic
of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident
itself. 16 Hence, res ipsa loquitur is applied in conjunction with
the doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a
rule of substantive law and, as such, does not create or
constitute an independent or separate ground of
liability. 17 Instead, it is considered as merely evidentiary or in
the nature of a procedural rule. 18 It is regarded as a mode of
proof, or a mere procedural of convenience since it furnishes a
substitute for, and relieves a plaintiff of, the burden of
producing specific proof of negligence. 19 In other words, mere
invocation and application of the doctrine does not dispense
with the requirement of proof of negligence. It is simply a step
in the process of such proof, permitting the plaintiff to present
along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or
presumption of negligence, and to thereby place on the
defendant the burden of going forward with the proof. 20 Still,
before resort to the doctrine may be allowed, the following
requisites must be satisfactorily shown:
1. The accident is of a kind which ordinarily does
not occur in the absence of someone's negligence;
2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and
3. The possibility of contributing conduct which
would make the plaintiff responsible is eliminated. 21
In the above requisites, the fundamental element is the
"control of instrumentality" which caused the damage. 22 Such
element of control must be shown to be within the dominion
of the defendant. In order to have the benefit of the rule, a
plaintiff, in addition to proving injury or damage, must show a
situation where it is applicable, and must establish that the
essential elements of the doctrine were present in a particular
incident. 23
Medical malpractice 24 cases do not escape the application of
this doctrine. Thus, res ipsa loquitur has been applied when the
circumstances attendant upon the harm are themselves of such
a character as to justify an inference of negligence as the cause
of that harm. 25 The application of res ipsa loquitur in medical
negligence cases presents a question of law since it is a
judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given
inference. 26
Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical
procedure, when the doctrine of res ipsa loquitur is availed by
the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the proof of
negligence. 27 The reason is that the general rule on the
necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to
matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the
facts. 28 Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has
been treated or operated upon with a reasonable degree of skill
and care. However, testimony as to the statements and acts of
physicians and surgeons, external appearances, and manifest
conditions which are observable by any one may be given by
non-expert witnesses. 29 Hence, in cases where the res ipsa
loquitur is applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient, without
the aid of expert testimony, where the court from its fund of
common knowledge can determine the proper standard of
care. 30 Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due
care had been exercised, an inference of negligence may be
drawn giving rise to an application of the doctrine of res ipsa
loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it
occurred. 31 When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act or
omission complained of and the injury sustained while under
the custody and management of the defendant without need to
produce expert medical testimony to establish the standard of
care. Resort to res ipsa loquitur is allowed because there is no
other way, under usual and ordinary conditions, by which the
patient can obtain redress for injury suffered by him.
5 TORTS LAST SET
Thus, courts of other jurisdictions have applied the doctrine in
the following situations: leaving of a foreign object in the
body of the patient after an operation, 32 injuries sustained on a
healthy part of the body which was not under, or in the area, of
treatment, 33 removal of the wrong part of the body when
another part was intended, 34 knocking out a tooth while a
patient's jaw was under anesthetic for the removal of his
tonsils, 35 and loss of an eye while the patient plaintiff was
under the influence of anesthetic, during or following an
operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa
loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to
show that he is not guilty of the ascribed negligence. Res ipsa
loquitur is not a rigid or ordinary doctrine to be perfunctorily
used but a rule to be cautiously applied, depending upon the
circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say,
as a matter of common knowledge and observation, that the
consequences of professional care were not as such as would
ordinarily have followed if due care had been
exercised. 37 A distinction must be made between the failure to
secure results, and the occurrence of something more unusual
and not ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that particular
practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician
or surgeon which involves the merits of a diagnosis or of a
scientific treatment. 38 The physician or surgeon is not required
at his peril to explain why any particular diagnosis was not
correct, or why any particular scientific treatment did not
produce the desired result. 39 Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the
desired result of an operation or treatment was not
accomplished. 40 The real question, therefore, is whether or not
in the process of the operation any extraordinary incident or
unusual event outside of the routine performance occurred
which is beyond the regular scope of customary professional
activity in such operations, which, if unexplained would
themselves reasonably speak to the average man as the
negligent cause or causes of the untoward consequence. 41 If
there was such extraneous interventions, the doctrine of res
ipsa loquitur may be utilized and the defendant is called upon
to explain the matter, by evidence of exculpation, if he
could. 42
We find the doctrine of res ipsa loquitur appropriate in the
case at bar. As will hereinafter be explained, the damage
sustained by Erlinda in her brain prior to a scheduled gall
bladder operation presents a case for the application of res ipsa
loquitur.
A case strikingly similar to the one before us is Voss
vs. Bridwell, 43 where the Kansas Supreme Court in applying
the res ipsa loquitur stated:
The plaintiff herein submitted himself for a
mastoid operation and delivered his person
over to the care, custody and control of his
physician who had complete and exclusive
control over him, but the operation was
never performed. At the time of submission
he was neurologically sound and physically
fit in mind and body, but he suffered
irreparable damage and injury rendering him
decerebrate and totally incapacitated. The
injury was one which does not ordinarily
occur in the process of a mastoid operation
or in the absence of negligence in the
administration of an anesthetic, and in the
use and employment of an endoctracheal
 tube. Ordinarily a person being put under
anesthesia is not rendered decerebrate as a
consequence of administering such
anesthesia in the absence of negligence.
Upon these facts and under these
circumstances a layman would be able to
say, as a matter of common knowledge and
observation, that the consequences of
professional treatment were not as such as
would ordinarily have followed if due care
had been exercised.
Here the plaintiff could not have been guilty
of contributory negligence because he was
under the influence of anesthetics and
unconscious, and the circumstances are such
that the true explanation of event is more
accessible to the defendants than to the
plaintiff for they had the exclusive control of
the instrumentalities of anesthesia.
Upon all the facts, conditions and
circumstances alleged in Count II it is held
that a cause of action is stated under the
doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case apply
with equal force here. In the present case, Erlinda submitted
herself for cholecystectomy and expected a routine general
surgery to be performed on her gall bladder. On that fateful
day she delivered her person over to the care, custody and
control of private respondents who exercised complete and
exclusive control over her. At the time of submission, Erlinda
was neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and body.
However, during the administration of anesthesia and prior to
the performance of cholecystectomy she suffered irreparable
damage to her brain. Thus, without undergoing surgery, she
went out of the operating room already decerebrate and totally
incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in the
process of a gall bladder operation. In fact, this kind of
situation does not in the absence of negligence of someone in
the administration of anesthesia and in the use of endotracheal
tube. Normally, a person being put under anesthesia is not
rendered decerebrate as a consequence of administering such
anesthesia if the proper procedure was followed. Furthermore,
the instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the exclusive
control of private respondents, who are the physicians-in-
charge. Likewise, petitioner Erlinda could not have been guilty
of contributory negligence because she was under the
influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body
(the brain) is injured or destroyed while the patient is
unconscious and under the immediate and exclusive control of
the physicians, we hold that a practical administration of
justice dictates the application of res ipsa loquitur. Upon these
facts and under these circumstances the Court would be able to
say, as a matter of common knowledge and observation, if
negligence attended the management and care of the patient.
Moreover, the liability of the physicians and the hospital in
this case is not predicated upon an alleged failure to secure the
desired results of an operation nor on an alleged lack of skill in
the diagnosis or treatment as in fact no operation or treatment
was ever performed on Erlinda. Thus, upon all these initial
determination a case is made out for the application of the
doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the
present case we are not saying that the doctrine is applicable in
any and all cases where injury occurs to a patient while under
6 TORTS LAST SET
anesthesia, or to any and all anesthesia cases. Each case must
be viewed in its own light and scrutinized in order to be within
the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa
loquitur doctrine and the presumption of negligence allowed
therein, the Court now comes to the issue of whether the Court
of Appeals erred in finding that private respondents were not
negligent in the care of Erlinda during the anesthesia phase of
the operation and, if in the affirmative, whether the alleged
negligence was the proximate cause of Erlinda's comatose
condition. Corollary thereto, we shall also determine if the
Court of Appeals erred in relying on the testimonies of the
witnesses for the private respondents.
In sustaining the position of private respondents, the Court of
Appeals relied on the testimonies of Dra. Gutierrez, Dra.
Calderon and Dr. Jamora. In giving weight to the testimony of
Dra. Gutierrez, the Court of Appeals rationalized that she was
candid enough to admit that she experienced some difficulty in
the endotracheal intubation 45 of the patient and thus, cannot be
said to be covering her negligence with falsehood. The
appellate court likewise opined that private respondents were
able to show that the brain damage sustained by Erlinda was
not caused by the alleged faulty intubation but was due to the
allergic reaction of the patient to the drug Thiopental Sodium
(Pentothal), a short-acting barbiturate, as testified on by their
expert witness, Dr. Jamora. On the other hand, the appellate
court rejected the testimony of Dean Herminda Cruz offered in
favor of petitioners that the cause of the brain injury was
traceable to the wrongful insertion of the tube since the latter,
being a nurse, was allegedly not knowledgeable in the process
of intubation. In so holding, the appellate court returned a
verdict in favor of respondents physicians and hospital and
absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We
hold that private respondents were unable to disprove the
presumption of negligence on their part in the care of Erlinda
and their negligence was the proximate cause of her piteous
condition.
In the instant case, the records are helpful in furnishing not
only the logical scientific evidence of the pathogenesis of the
injury but also in providing the Court the legal nexus upon
which liability is based. As will be shown hereinafter, private
respondents' own testimonies which are reflected in the
transcript of stenographic notes are replete of signposts
indicative of their negligence in the care and management of
Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the
care of Erlinda during the anesthesia phase. As borne by the
records, respondent Dra. Gutierrez failed to properly intubate
the patient. This fact was attested to by Prof. Herminda Cruz,
Dean of the Capitol Medical Center School of Nursing and
petitioner's sister-in-law, who was in the operating room right
beside the patient when the tragic event occurred. Witness
Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do,
if any on the patient?
A: In particular, I could see that she was intubating
the patient.
Q: Do you know what happened to that intubation
process administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient, I was beside
the stretcher holding the left hand of the patient and
all of a sudden heard some remarks coming from Dra.
Perfecta Gutierrez herself. She was saying "Ang hirap
ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan.
x x x           x x x          x x x
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki
ang tiyan"?
A: From Dra. Perfecta Gutierrez.
x x x           x x x          x x x
Q: After hearing the phrase "lumalaki ang tiyan,"
what did you notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the
nailbeds of the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that
particular time?
A: I saw him approaching the patient during that
time.
Q: When he approached the patient, what did he do,
if any?
A: He made an order to call on the anesthesiologist in
the person of Dr. Calderon.
Q: Did Dr. Calderon, upon being called, arrive inside
the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to intubate the
patient, after a while the patient's nailbed became
bluish and I saw the patient was placed in
trendelenburg position.
x x x           x x x          x x x
Q: Do you know the reason why the patient was
placed in that trendelenburg position?
A: As far as I know, when a patient is in that position,
there is a decrease of blood supply to the brain. 46
x x x           x x x          x x x
7 TORTS LAST SET
The appellate court, however, disbelieved Dean Cruz's
testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum
in our country will show that intubation is
not taught as part of nursing procedures and
techniques. Indeed, we take judicial notice
of the fact that nurses do not, and cannot,
intubate. Even on the assumption that she is
fully capable of determining whether or not
a patient is properly intubated, witness
Herminda Cruz, admittedly, did not peep
into the throat of the patient. (TSN, July 25,
1991, p. 13). More importantly, there is no
evidence that she ever auscultated the
patient or that she conducted any type of
examination to check if the endotracheal
tube was in its proper place, and to
determine the condition of the heart, lungs,
and other organs. Thus, witness Cruz's
categorical statements that appellant Dra.
Gutierrez failed to intubate the appellee
Erlinda Ramos and that it was Dra. Calderon
who succeeded in doing so clearly suffer
from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress
is that being a nurse, and considered a layman in the process
of intubation, witness Cruz is not competent to testify on
whether or not the intubation was a success.
We do not agree with the above reasoning of the appellate
court. Although witness Cruz is not an anesthesiologist, she
can very well testify upon matters on which she is capable of
observing such as, the statements and acts of the physician and
surgeon, external appearances, and manifest conditions which
are observable by any one. 48 This is precisely allowed under
the doctrine of res ipsa loquitur where the testimony of expert
witnesses is not required. It is the accepted rule that expert
testimony is not necessary for the proof of negligence in non-
technical matters or those of which an ordinary person may be
expected to have knowledge, or where the lack of skill or want
of care is so obvious as to render expert testimony
unnecessary. 49 We take judicial notice of the fact that
anesthesia procedures have become so common, that even an
ordinary person can tell if it was administered properly. As
such, it would not be too difficult to tell if the tube was
properly inserted. This kind of observation, we believe, does
not require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced
clinical nurse whose long experience and scholarship led to
her appointment as Dean of the Capitol Medical Center School
at Nursing, was fully capable of determining whether or not
the intubation was a success. She had extensive clinical
experience starting as a staff nurse in Chicago, Illinois; staff
nurse and clinical instructor in a teaching hospital, the FEU-
NRMF; Dean of the Laguna College of Nursing in San Pablo
City; and then Dean of the Capitol Medical Center School of
Nursing. 50 Reviewing witness Cruz' statements, we find that
the same were delivered in a straightforward manner, with the
kind of detail, clarity, consistency and spontaneity which
would have been difficult to fabricate. With her clinical
background as a nurse, the Court is satisfied that she was able
to demonstrate through her testimony what truly transpired on
that fateful day.
Most of all, her testimony was affirmed by no less than
respondent Dra. Gutierrez who admitted that she experienced
difficulty in inserting the tube into Erlinda's trachea, to wit:
ATTY. LIGSAY:
 Q: In this particular case,
Doctora, while you were
intubating at your first
attempt (sic), you did not
immediately see the
trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the
tube immediately?
A: You do not pull the . . .
Q: Did you or did you
not?
A: I did not pull the tube.
Q: When you said
"mahirap yata ito," what
were you referring to?
A: "Mahirap yata itong i-
intubate," that was the
patient.
Q: So, you found some
difficulty in inserting the
tube?
A: Yes, because of (sic)
my first attempt, I did not
see right away. 51
Curiously in the case at bar, respondent Dra. Gutierrez made
the haphazard defense that she encountered hardship in the
insertion of the tube in the trachea of Erlinda because it was
positioned more anteriorly (slightly deviated from the normal
anatomy of a person) 52 making it harder to locate and, since
Erlinda is obese and has a short neck and protruding teeth, it
made intubation even more difficult.
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the procedure.
From their testimonies, it appears that the observation was
made only as an afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to lessen
the possibility of anesthetic accidents. Pre-operative
evaluation and preparation for anesthesia begins when the
anesthesiologist reviews the patient's medical records and
visits with the patient, traditionally, the day before elective
surgery. 53 It includes taking the patient's medical history,
review of current drug therapy, physical examination and
interpretation of laboratory data. 54 The physical examination
performed by the anesthesiologist is directed primarily toward
the central nervous system, cardiovascular system, lungs
and upper airway. 55 A thorough analysis of the patient's
airway normally involves investigating the following: cervical
spine mobility, temporomandibular mobility, prominent
central incisors, diseased or artificial teeth, ability to visualize
uvula and the thyromental distance. 56 Thus, physical
characteristics of the patient's upper airway that could make
tracheal intubation difficult should be studied. 57 Where the
need arises, as when initial assessment indicates possible
8 TORTS LAST SET
problems (such as the alleged short neck and protruding teeth
of Erlinda) a thorough examination of the patient's airway
would go a long way towards decreasing patient morbidity and
mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she
saw Erlinda for the first time on the day of the operation itself,
on 17 June 1985. Before this date, no prior consultations with,
or pre-operative evaluation of Erlinda was done by her. Until
the day of the operation, respondent Dra. Gutierrez was
unaware of the physiological make-up and needs of Erlinda.
She was likewise not properly informed of the possible
difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing
her patient for the first time only an hour before the scheduled
operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives
lie at the core of the physician's centuries-old Hippocratic
Oath. Her failure to follow this medical procedure is,
therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over
this omission by playing around with the trial court's
ignorance of clinical procedure, hoping that she could get
away with it. Respondent Dra. Gutierrez tried to muddle the
difference between an elective surgery and an emergency
surgery just so her failure to perform the required pre-
operative evaluation would escape unnoticed. In her testimony
she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical
practice to see the patient a day before so you can
introduce yourself to establish good doctor-patient
relationship and gain the trust and confidence of the
patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on
the operative procedure of the anesthesiologist and in
my case, with elective cases and normal cardio-
pulmonary clearance like that, I usually don't do it
except on emergency and on cases that have an
abnormalities (sic). 58
However, the exact opposite is true. In an emergency
procedure, there is hardly enough time available for the
fastidious demands of pre-operative procedure so that an
anesthesiologist is able to see the patient only a few minutes
before surgery, if at all. Elective procedures, on the other
hand, are operative procedures that can wait for days, weeks or
even months. Hence, in these cases, the anesthesiologist
possesses the luxury of time to be at the patient's beside to do
a proper interview and clinical evaluation. There is ample time
to explain the method of anesthesia, the drugs to be used, and
their possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at least one
day before the intended surgery, when the patient is relaxed
and cooperative.
Erlinda's case was elective and this was known to respondent
Dra. Gutierrez. Thus, she had all the time to make a thorough
evaluation of Erlinda's case prior to the operation and prepare
her for anesthesia. However, she never saw the patient at the
bedside. She herself admitted that she had seen petitioner only
in the operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take advantage of
this important opportunity. As such, her attempt to exculpate
herself must fail.
Having established that respondent Dra. Gutierrez failed to Q: How many times have
perform pre-operative evaluation of the patient which, in turn, you used pentothal?
resulted to a wrongful intubation, we now determine if the
faulty intubation is truly the proximate cause of Erlinda's A: They used it on me. I
comatose condition. went into bronchospasm
during my appendectomy.
Private respondents repeatedly hammered the view that the
cerebral anoxia which led to Erlinda's coma was due to Q: And because they have
bronchospasm 59 mediated by her allergic response to the drug, used it on you and on
Thiopental Sodium, introduced into her system. Towards this account of your own
end, they presented Dr. Jamora, a Fellow of the Philippine personal experience you
College of Physicians and Diplomate of the Philippine feel that you can testify on
Specialty Board of Internal Medicine, who advanced private pentothal here with
respondents' theory that the oxygen deprivation which led to medical authority?
anoxic encephalopathy, 60 was due to an unpredictable drug
reaction to the short-acting barbiturate. We find the theory of A: No. That is why I used
private respondents unacceptable. references to support my
claims. 61
First of all, Dr. Jamora cannot be considered an authority in
the field of anesthesiology simply because he is not an An anesthetic accident caused by a rare drug-induced
anesthesiologist. Since Dr. Jamora is a pulmonologist, he bronchospasm properly falls within the fields of anesthesia,
could not have been capable of properly enlightening the court internal medicine-allergy, and clinical pharmacology. The
about anesthesia practice and procedure and their resulting anoxic encephalopathy belongs to the field of
complications. Dr. Jamora is likewise not an allergologist and neurology. While admittedly, many bronchospastic-mediated
could not therefore properly advance expert opinion on pulmonary diseases are within the expertise of pulmonary
allergic-mediated processes. Moreover, he is not a medicine, Dr. Jamora's field, the anesthetic drug-induced,
pharmacologist and, as such, could not have been capable, as allergic mediated bronchospasm alleged in this case is within
an expert would, of explaining to the court the pharmacologic the disciplines of anesthesiology, allergology and
and toxic effects of the supposed culprit, Thiopental Sodium pharmacology. On the basis of the foregoing transcript, in
(Pentothal). which the pulmonologist himself admitted that he could not
testify about the drug with medical authority, it is clear that the
The inappropriateness and absurdity of accepting Dr. Jamora's appellate court erred in giving weight to Dr. Jamora's
testimony as an expert witness in the anesthetic practice of testimony as an expert in the administration of Thiopental
Pentothal administration is further supported by his own Sodium.
admission that he formulated his opinions on the drug not
from the practical experience gained by a specialist or expert The provision in the rules of evidence 62 regarding expert
in the administration and use of Sodium Pentothal on patients, witnesses states:
but only from reading certain references, to wit:
Sec. 49. Opinion of expert witness. — The
ATTY. LIGSAY: opinion of a witness on a matter requiring
special knowledge, skill, experience or
Q: In your line of training which he is shown to possess, may
expertise on pulmonology, be received in evidence.
did you have any occasion
to use pentothal as a Generally, to qualify as an expert witness, one must have
method of management? acquired special knowledge of the subject matter about which
he or she is to testify, either by the study of recognized
DR. JAMORA: authorities on the subject or by practical experience. 63 Clearly,
Dr. Jamora does not qualify as an expert witness based on the
A: We do it in conjunction above standard since he lacks the necessary knowledge, skill,
with the anesthesiologist and training in the field of anesthesiology. Oddly, apart from
when they have to intubate submitting testimony from a specialist in the wrong field,
our patient. private respondents' intentionally avoided providing testimony
by competent and independent experts in the proper areas.
Q: But not in particular
when you practice Moreover, private respondents' theory, that Thiopental Sodium
pulmonology? may have produced Erlinda's coma by triggering an allergic
mediated response, has no support in evidence. No evidence of
A: No. stridor, skin reactions, or wheezing — some of the more
common accompanying signs of an allergic reaction —
Q: In other words, your appears on record. No laboratory data were ever presented to
knowledge about the court.
pentothal is based only on
what you have read from In any case, private respondents themselves admit that
books and not by your Thiopental induced, allergic-mediated bronchospasm happens
own personal application only very rarely. If courts were to accept private respondents'
of the medicine pentothal? hypothesis without supporting medical proof, and against the
weight of available evidence, then every anesthetic accident
A: Based on my personal would be an act of God. Evidently, the Thiopental-allergy
experience also on theory vigorously asserted by private respondents was a mere
pentothal. afterthought. Such an explanation was advanced in order to

9 TORTS LAST SET

advanced in order to absolve them of any and all responsibility
for the patient's condition.
In view of the evidence at hand, we are inclined to believe
petitioners' stand that it was the faulty intubation which was
the proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural and
continuous sequence, unbroken by any efficient intervening
cause, produces injury, and without which the result would not
have occurred. 64 An injury or damage is proximately caused
by an act or a failure to act, whenever it appears from the
evidence in the case, that the act or omission played a
substantial part in bringing about or actually causing the injury
or damage; and that the injury or damage was either a direct
result or a reasonably probable consequence of the act or
omission. 65 It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at
hand, faulty intubation is undeniably the proximate cause
which triggered the chain of events leading to Erlinda's brain
damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony
that the first intubation was a failure. This fact was likewise
observed by witness Cruz when she heard respondent Dra.
Gutierrez remarked, "Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan." Thereafter, witness
Cruz noticed abdominal distention on the body of Erlinda. The
development of abdominal distention, together with
respiratory embarrassment indicates that the endotracheal tube
entered the esophagus instead of the respiratory tree. In other
words, instead of the intended endotracheal intubation what
actually took place was an esophageal intubation. During
intubation, such distention indicates that air has entered the
gastrointestinal tract through the esophagus instead of the
lungs through the trachea. Entry into the esophagus would
certainly cause some delay in oxygen delivery into the lungs
as the tube which carries oxygen is in the wrong place. That
abdominal distention had been observed during the first
intubation suggests that the length of time utilized in inserting
the endotracheal tube (up to the time the tube was withdrawn
for the second attempt) was fairly significant. Due to the delay
in the delivery of oxygen in her lungs Erlinda showed signs of
cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack
of oxygen became apparent only after he noticed that the
nailbeds of Erlinda were already blue. 67 However, private
respondents contend that a second intubation was executed on
Erlinda and this one was successfully done. We do not think
so. No evidence exists on record, beyond private respondents'
bare claims, which supports the contention that the second
intubation was successful. Assuming that the endotracheal
tube finally found its way into the proper orifice of the trachea,
the same gave no guarantee of oxygen delivery, the hallmark
of a successful intubation. In fact, cyanosis was again
observed immediately after the second intubation. Proceeding
from this event (cyanosis), it could not be claimed, as private
respondents insist, that the second intubation was
accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late.
As aptly explained by the trial court, Erlinda already suffered
brain damage as a result of the inadequate oxygenation of her
brain for about four to five minutes. 68
The above conclusion is not without basis. Scientific studies
point out that intubation problems are responsible for one-third
(1/3) of deaths and serious injuries associated with
anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the
vast majority of difficult intubations may be anticipated by
performing a thorough evaluation of the patient's airway prior
to the operation. 70 As stated beforehand, respondent Dra.
Gutierrez failed to observe the proper pre-operative protocol
which could have prevented this unfortunate incident. Had
10 TORTS LAST SET
appropriate diligence and reasonable care been used in the pre-
operative evaluation, respondent physician could have been
much more prepared to meet the contingency brought about by
the perceived anatomic variations in the patient's neck and oral
area, defects which would have been easily overcome by a
prior knowledge of those variations together with a change in
technique. 71 In other words, an experienced anesthesiologist,
adequately alerted by a thorough pre-operative evaluation,
would have had little difficulty going around the short neck
and protruding teeth. 72 Having failed to observe common
medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez' negligence resulted in
cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino
Hosaka as the head of the surgical team. As the so-called
"captain of the ship," 73 it is the surgeon's responsibility to see
to it that those under him perform their task in the proper
manner. Respondent Dr. Hosaka's negligence can be found in
his failure to exercise the proper authority (as the "captain" of
the operative team) in not determining if his anesthesiologist
observed proper anesthesia protocols. In fact, no evidence on
record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient.
Furthermore, it does not escape us that respondent Dr. Hosaka
had scheduled another procedure in a different hospital at the
same time as Erlinda's cholecystectomy, and was in fact over
three hours late for the latter's operation. Because of this, he
had little or no time to confer with his anesthesiologist
regarding the anesthesia delivery. This indicates that he was
remiss in his professional duties towards his patient. Thus, he
shares equal responsibility for the events which resulted in
Erlinda's condition.
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting "consultants," 74 who are allegedly not hospital
employees, presents problems in apportioning responsibility
for negligence in medical malpractice cases. However, the
difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the
hiring and firing of consultants and in the conduct of their
work within the hospital premises. Doctors who apply for
"consultant" slots, visiting or attending, are required to submit
proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully
scrutinized by members of the hospital administration or by a
review committee set up by the hospital who either accept or
reject the application. 75 This is particularly true with
respondent hospital.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-
pathological conferences, conduct bedside rounds for clerks,
interns and residents, moderate grand rounds and patient
audits and perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the hospital,
and/or for the privilege of admitting patients into the hospital.
In addition to these, the physician's performance as a specialist
is generally evaluated by a peer review committee on the basis
of mortality and morbidity statistics, and feedback from
patients, nurses, interns and residents. A consultant remiss in
his duties, or a consultant who regularly falls short of the
minimum standards acceptable to the hospital or its peer
review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting "consultant" staff.
While "consultants" are not, technically employees, a point
which respondent hospital asserts in denying all responsibility
for the patient's condition, the control exercised, the hiring,
and the right to terminate consultants all fulfill the important
hallmarks of an employer-employee relationship, with the
exception of the payment of wages. In assessing whether such
a relationship in fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule that for the
purpose of allocating responsibility in medical negligence
cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians.
This being the case, the question now arises as to whether or
not respondent hospital is solidarily liable with respondent
doctors for petitioner's condition. 76
The basis for holding an employer solidarily responsible for
the negligence of its employee is found in Article 2180 of the
Civil Code which considers a person accountable not only for
his own acts but also for those of others based on the former's
responsibility under a relationship of patria potestas. 77 Such
responsibility ceases when the persons or entity concerned
prove that they have observed the diligence of a good father of
the family to prevent damage. 78 In other words, while the
burden of proving negligence rests on the plaintiffs, once
negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove that
they observed the diligence of a good father of a family to
prevent damage.
In the instant case, respondent hospital, apart from a general
denial of its responsibility over respondent physicians, failed
to adduce evidence showing that it exercised the diligence of a
good father of a family in the hiring and supervision of the
latter. It failed to adduce evidence with regard to the degree of
supervision which it exercised over its physicians. In
neglecting to offer such proof, or proof of a similar nature,
respondent hospital thereby failed to discharge its burden
under the last paragraph of Article 2180. Having failed to do
this, respondent hospital is consequently solidarily responsible
with its physicians for Erlinda's condition.
Based on the foregoing, we hold that the Court of Appeals
erred in accepting and relying on the testimonies of the
witnesses for the private respondents. Indeed, as shown by the
above discussions, private respondents were unable to rebut
the presumption of negligence. Upon these disquisitions we
hold that private respondents are solidarily liable for damages
under Article 2176 79 of the Civil Code.
We now come to the amount of damages due petitioners. The
trial court awarded a total of P632,000.00 pesos (should be
P616,000.00) in compensatory damages to the plaintiff,
"subject to its being updated" covering the period from 15
November 1985 up to 15 April 1992, based on monthly
expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8000/monthly amount established by
the trial court at the time of its decision would be grossly
inadequate to cover the actual costs of home-based care for a
comatose individual. The calculated amount was not even
arrived at by looking at the actual cost of proper hospice care
for the patient. What it reflected were the actual expenses
incurred and proved by the petitioners after they were forced
to bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a hospital
or be transferred to a hospice specializing in the care of the
chronically ill for the purpose of providing a proper milieu
adequate to meet minimum standards of care. In the instant
case for instance, Erlinda has to be constantly turned from side
to side to prevent bedsores and hypostatic pneumonia. Feeding
is done by nasogastric tube. Food preparation should be
normally made by a dietitian to provide her with the correct
daily caloric requirements and vitamin supplements.
11 TORTS LAST SET
Furthermore, she has to be seen on a regular basis by a
physical therapist to avoid muscle atrophy, and by a
pulmonary therapist to prevent the accumulation of secretions
which can lead to respiratory complications.
Given these considerations, the amount of actual damages
recoverable in suits arising from negligence should at least
reflect the correct minimum cost of proper care, not the cost of
the care the family is usually compelled to undertake at home
to avoid bankruptcy. However, the provisions of the Civil
Code on actual or compensatory damages present us with
some difficulties.
Well-settled is the rule that actual damages which may be
claimed by the plaintiff are those suffered by him as he has
duly proved. The Civil Code provides:
Art. 2199. — Except as provided by law or
by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss
suffered by him as he has duly proved. Such
compensation is referred to as actual or
compensatory damages.
Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and
that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible
future complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to the
injury caused, should be one which compensates for pecuniary
loss incurred and proved, up to the time of trial; and one which
would meet pecuniary loss certain to be suffered but which
could not, from the nature of the case, be made with
certainty. 80 In other words, temperate damages can and should
be awarded on top of actual or compensatory damages in
instances where the injury is chronic and continuing. And
because of the unique nature of such cases, no incompatibility
arises when both actual and temperate damages are provided
for. The reason is that these damages cover two distinct
phases.
As it would not be equitable — and certainly not in the best
interests of the administration of justice — for the victim in
such cases to constantly come before the courts and invoke
their aid in seeking adjustments to the compensatory damages
previously awarded — temperate damages are appropriate.
The amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only home-
based nursing care for a comatose patient who has remained in
that condition for over a decade. Having premised our award
for compensatory damages on the amount provided by
petitioners at the onset of litigation, it would be now much
more in step with the interests of justice if the value awarded
for temperate damages would allow petitioners to provide
optimal care for their loved one in a facility which generally
specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without the
aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was
confronted with a situation where the injury suffered by the
plaintiff would have led to expenses which were difficult to
estimate because while they would have been a direct result of
the injury (amputation), and were certain to be incurred by the
plaintiff, they were likely to arise only in the future. We
awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes
Valenzuela underwent a traumatic
amputation of her left lower extremity at the
distal left thigh just above the knee. Because
of this, Valenzuela will forever be deprived
of the full ambulatory functions of her left
extremity, even with the use of state of the
art prosthetic technology. Well beyond the
period of hospitalization (which was paid for
by Li), she will be required to undergo
adjustments in her prosthetic devise due to
the shrinkage of the stump from the process
of healing.
These adjustments entail costs, prosthetic
replacements and months of physical and
occupational rehabilitation and therapy.
During the lifetime, the prosthetic devise
will have to be replaced and readjusted to
changes in the size of her lower limb
effected by the biological changes of
middle-age, menopause and aging.
Assuming she reaches menopause, for
example, the prosthetic will have to be
adjusted to respond to the changes in bone
resulting from a precipitate decrease in
calcium levels observed in the bones of all
post-menopausal women. In other words, the
damage done to her would not only be
permanent and lasting, it would also be
permanently changing and adjusting to the
physiologic changes which her body would
normally undergo through the years. The
replacements, changes, and adjustments will
require corresponding adjustive physical and
occupational therapy. All of these
adjustments, it has been documented, are
painful.
x x x           x x x          x x x
A prosthetic devise, however
technologically advanced, will only allow a
reasonable amount of functional restoration
of the motor functions of the lower limb.
The sensory functions are forever lost. The
resultant anxiety, sleeplessness,
psychological injury, mental and physical
pain are inestimable. 83
The injury suffered by Erlinda as a consequence of private
respondents' negligence is certainly much more serious than
the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the
incident occurred. She has been in a comatose state for over
fourteen years now. The burden of care has so far been
heroically shouldered by her husband and children, who, in the
intervening years have been deprived of the love of a wife and
a mother.
Meanwhile, the actual physical, emotional and financial cost
of the care of petitioner would be virtually impossible to
quantify. Even the temperate damages herein awarded would
12 TORTS LAST SET
be inadequate if petitioner's condition remains unchanged for
the next ten years.
We recognized, in Valenzuela that a discussion of the victim's
actual injury would not even scratch the surface of the
resulting moral damage because it would be highly speculative
to estimate the amount of emotional and moral pain,
psychological damage and injury suffered by the victim or
those actually affected by the victim's condition. 84 The
husband and the children, all petitioners in this case, will have
to live with the day to day uncertainty of the patient's illness,
knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into account
their life with a comatose patient. They, not the respondents,
are charged with the moral responsibility of the care of the
victim. The family's moral injury and suffering in this case is
clearly a real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount
of P100,000.00 are hereby awarded. Considering the length
and nature of the instant suit we are of the opinion that
attorney's fees valued at P100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical
negligence cases because physicians are not insurers of life
and, they rarely set out to intentionally cause injury or death to
their patients. However, intent is immaterial in negligence
cases because where negligence exists and is proven, the same
automatically gives the injured a right to reparation for the
damage caused.
Established medical procedures and practices, though in
constant flux are devised for the purpose of preventing
complications. A physician's experience with his patients
would sometimes tempt him to deviate from established
community practices, and he may end a distinguished career
using unorthodox methods without incident. However, when
failure to follow established procedure results in the evil
precisely sought to be averted by observance of the procedure
and a nexus is made between the deviation and the injury or
damage, the physician would necessarily be called to account
for it. In the case at bar, the failure to observe pre-operative
assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents'
case.
WHEREFORE, the decision and resolution of the appellate
court appealed from are hereby modified so as to award in
favor of petitioners, and solidarily against private respondents
the following: 1) P1,352,000.00 as actual damages computed
as of the date of promulgation of this decision plus a monthly
payment of P8,000.00 up to the time that petitioner Erlinda
Ramos expires or miraculously survives; 2) P2,000,000.00 as
moral damages, 3) P1,500,000.00 as temperate damages; 4)
P100,000.00 each as exemplary damages and attorney's fees;
and, 5) the costs of the suit.
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ.,
concur.
 52
G.R. No. 142625             December 19, 2006
ROGELIO P. NOGALES, for himself and on behalf of the
minors, ROGER ANTHONY, ANGELICA, NANCY, and
MICHAEL CHRISTOPHER, all surnamed
NOGALES, petitioners,
vs.
CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA,
DR. ELY VILLAFLOR, DR. ROSA UY, DR. JOEL
ENRIQUEZ, DR. PERPETUA LACSON, DR. NOE
ESPINOLA, and NURSE J. DUMLAO, respondents.
DECISION
CARPIO, J.:
The Case
This petition for review1 assails the 6 February 1998
Decision2 and 21 March 2000 Resolution3 of the Court of
Appeals in CA-G.R. CV No. 45641. The Court of Appeals
affirmed in toto the 22 November 1993 Decision4 of the
Regional Trial Court of Manila, Branch 33, finding Dr. Oscar
Estrada solely liable for damages for the death of his patient,
Corazon Nogales, while absolving the remaining respondents
of any liability. The Court of Appeals denied petitioners'
motion for reconsideration.
The Facts
Pregnant with her fourth child, Corazon Nogales ("Corazon"),
who was then 37 years old, was under the exclusive prenatal
care of Dr. Oscar Estrada ("Dr. Estrada") beginning on her
fourth month of pregnancy or as early as December 1975.
While Corazon was on her last trimester of pregnancy, Dr.
Estrada noted an increase in her blood pressure and
development of leg edema5 indicating preeclampsia,6 which is
a dangerous complication of pregnancy.7
Around midnight of 25 May 1976, Corazon started to
experience mild labor pains prompting Corazon and Rogelio
Nogales ("Spouses Nogales") to see Dr. Estrada at his home.
After examining Corazon, Dr. Estrada advised her immediate
admission to the Capitol Medical Center ("CMC").
On 26 May 1976, Corazon was admitted at 2:30 a.m. at the
CMC after the staff nurse noted the written admission
request8 of Dr. Estrada. Upon Corazon's admission at the
CMC, Rogelio Nogales ("Rogelio") executed and signed the
"Consent on Admission and Agreement" 9 and "Admission
Agreement."10 Corazon was then brought to the labor room of
the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of
CMC, conducted an internal examination of Corazon. Dr. Uy
then called up Dr. Estrada to notify him of her findings.
Based on the Doctor's Order Sheet, 11 around 3:00 a.m., Dr.
Estrada ordered for 10 mg. of valium to be administered
immediately by intramuscular injection. Dr. Estrada later
ordered the start of intravenous administration of syntocinon
admixed with dextrose, 5%, in lactated Ringers' solution, at
the rate of eight to ten micro-drops per minute.
According to the Nurse's Observation Notes,12 Dr. Joel
Enriquez ("Dr. Enriquez"), an anesthesiologist at CMC, was
notified at 4:15 a.m. of Corazon's admission. Subsequently,
when asked if he needed the services of an anesthesiologist,
Dr. Estrada refused. Despite Dr. Estrada's refusal, Dr.
Enriquez stayed to observe Corazon's condition.
At 6:00 a.m., Corazon was transferred to Delivery Room No. 1
of the CMC. At 6:10 a.m., Corazon's bag of water ruptured
spontaneously. At 6:12 a.m., Corazon's cervix was fully
13 TORTS LAST SET
dilated. At 6:13 a.m., Corazon started to experience
convulsions.
At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of
magnesium sulfate. However, Dr. Ely Villaflor ("Dr.
Villaflor"), who was assisting Dr. Estrada, administered only
2.5 grams of magnesium sulfate.
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied
low forceps to extract Corazon's baby. In the process, a 1.0 x
2.5 cm. piece of cervical tissue was allegedly torn. The baby
came out in an apnic, cyanotic, weak and injured condition.
Consequently, the baby had to be intubated and resuscitated by
Dr. Enriquez and Dr. Payumo.
At 6:27 a.m., Corazon began to manifest moderate vaginal
bleeding which rapidly became profuse. Corazon's blood
pressure dropped from 130/80 to 60/40 within five minutes.
There was continuous profuse vaginal bleeding. The assisting
nurse administered hemacel through a gauge 19 needle as a
side drip to the ongoing intravenous injection of dextrose.
At 7:45 a.m., Dr. Estrada ordered blood typing and cross
matching with bottled blood. It took approximately 30 minutes
for the CMC laboratory, headed by Dr. Perpetua Lacson ("Dr.
Lacson"), to comply with Dr. Estrada's order and deliver the
blood.
At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the
Obstetrics-Gynecology Department of the CMC, was apprised
of Corazon's condition by telephone. Upon being informed
that Corazon was bleeding profusely, Dr. Espinola ordered
immediate hysterectomy. Rogelio was made to sign a
"Consent to Operation."13
Due to the inclement weather then, Dr. Espinola, who was
fetched from his residence by an ambulance, arrived at the
CMC about an hour later or at 9:00 a.m. He examined the
patient and ordered some resuscitative measures to be
administered. Despite Dr. Espinola's efforts, Corazon died at
9:15 a.m. The cause of death was "hemorrhage, post
partum."14
On 14 May 1980, petitioners filed a complaint for
damages15 with the Regional Trial Court16 of Manila against
CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr.
Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for the
death of Corazon. Petitioners mainly contended that defendant
physicians and CMC personnel were negligent in the treatment
and management of Corazon's condition. Petitioners charged
CMC with negligence in the selection and supervision of
defendant physicians and hospital staff.
For failing to file their answer to the complaint despite service
of summons, the trial court declared Dr. Estrada, Dr. Enriquez,
and Nurse Dumlao in default.17 CMC, Dr. Villaflor, Dr. Uy,
Dr. Espinola, and Dr. Lacson filed their respective answers
denying and opposing the allegations in the complaint.
Subsequently, trial ensued.
After more than 11 years of trial, the trial court rendered
judgment on 22 November 1993 finding Dr. Estrada solely
liable for damages. The trial court ruled as follows:
The victim was under his pre-natal care, apparently,
his fault began from his incorrect and inadequate
management and lack of treatment of the pre-
eclamptic condition of his patient. It is not disputed
that he misapplied the forceps in causing the delivery
because it resulted in a large cervical tear which had
caused the profuse bleeding which he also failed to
control with the application of inadequate injection of
magnesium sulfate by his assistant Dra. Ely Villaflor.
Dr. Estrada even failed to notice the erroneous
administration by nurse Dumlao of hemacel by way
of side drip, instead of direct intravenous injection,
and his failure to consult a senior obstetrician at an
early stage of the problem.
On the part however of Dra. Ely Villaflor, Dra. Rosa
Uy, Dr. Joel Enriquez, Dr. Lacson, Dr. Espinola,
nurse J. Dumlao and CMC, the Court finds no legal
justification to find them civilly liable.
On the part of Dra. Ely Villaflor, she was only taking
orders from Dr. Estrada, the principal physician of
Corazon Nogales. She can only make suggestions in
the manner the patient maybe treated but she cannot
impose her will as to do so would be to substitute her
good judgment to that of Dr. Estrada. If she failed to
correctly diagnose the true cause of the bleeding
which in this case appears to be a cervical laceration,
it cannot be safely concluded by the Court that Dra.
Villaflor had the correct diagnosis and she failed to
inform Dr. Estrada. No evidence was introduced to
show that indeed Dra. Villaflor had discovered that
there was laceration at the cervical area of the
patient's internal organ.
On the part of nurse Dumlao, there is no showing that
when she administered the hemacel as a side drip, she
did it on her own. If the correct procedure was
directly thru the veins, it could only be because this
was what was probably the orders of Dr. Estrada.
While the evidence of the plaintiffs shows that Dr.
Noe Espinola, who was the Chief of the Department
of Obstetrics and Gynecology who attended to the
patient Mrs. Nogales, it was only at 9:00 a.m. That he
was able to reach the hospital because of typhoon
Didang (Exhibit 2). While he was able to give
prescription in the manner Corazon Nogales may be
treated, the prescription was based on the information
given to him by phone and he acted on the basis of
facts as presented to him, believing in good faith that
such is the correct remedy. He was not with Dr.
Estrada when the patient was brought to the hospital
at 2:30 o'clock a.m. So, whatever errors that Dr.
Estrada committed on the patient before 9:00 o'clock
a.m. are certainly the errors of Dr. Estrada and cannot
be the mistake of Dr. Noe Espinola. His failure to
come to the hospital on time was due to fortuitous
event.
On the part of Dr. Joel Enriquez, while he was
present in the delivery room, it is not incumbent upon
him to call the attention of Dr. Estrada, Dra. Villaflor
and also of Nurse Dumlao on the alleged errors
committed by them. Besides, as anesthesiologist, he
has no authority to control the actuations of Dr.
Estrada and Dra. Villaflor. For the Court to assume
that there were errors being committed in the
presence of Dr. Enriquez would be to dwell on
conjectures and speculations.
On the civil liability of Dr. Perpetua Lacson, [s]he is
a hematologist and in-charge of the blood bank of the
CMC. The Court cannot accept the theory of the
plaintiffs that there was delay in delivering the blood
needed by the patient. It was testified, that in order
that this blood will be made available, a laboratory
test has to be conducted to determine the type of
blood, cross matching and other matters consistent
with medical science so, the lapse of 30 minutes
maybe considered a reasonable time to do all of these
things, and not a delay as the plaintiffs would want
the Court to believe.
Admittedly, Dra. Rosa Uy is a resident physician of
the Capitol Medical Center. She was sued because of
her alleged failure to notice the incompetence and
negligence of Dr. Estrada. However, there is no
evidence to support such theory. No evidence was
adduced to show that Dra. Rosa Uy as a resident
physician of Capitol Medical Center, had knowledge
of the mismanagement of the patient Corazon
Nogales, and that notwithstanding such knowledge,
she tolerated the same to happen.
14 TORTS LAST SET
In the pre-trial order, plaintiffs and CMC agreed that
defendant CMC did not have any hand or
participation in the selection or hiring of Dr. Estrada
or his assistant Dra. Ely Villaflor as attending
physician[s] of the deceased. In other words, the two
(2) doctors were not employees of the hospital and
therefore the hospital did not have control over their
professional conduct. When Mrs. Nogales was
brought to the hospital, it was an emergency case and
defendant CMC had no choice but to admit her. Such
being the case, there is therefore no legal ground to
apply the provisions of Article 2176 and 2180 of the
New Civil Code referring to the vicarious liability of
an employer for the negligence of its employees. If
ever in this case there is fault or negligence in the
treatment of the deceased on the part of the attending
physicians who were employed by the family of the
deceased, such civil liability should be borne by the
attending physicians under the principle of
"respondeat superior".
WHEREFORE, premises considered, judgment is
hereby rendered finding defendant Dr. Estrada of
Number 13 Pitimini St. San Francisco del Monte,
Quezon City civilly liable to pay plaintiffs: 1) By
way of actual damages in the amount of P105,000.00;
2) By way of moral damages in the amount
of P700,000.00; 3) Attorney's fees in the amount
of P100,000.00 and to pay the costs of suit.
For failure of the plaintiffs to adduce evidence to
support its [sic] allegations against the other
defendants, the complaint is hereby ordered
dismissed. While the Court looks with disfavor the
filing of the present complaint against the other
defendants by the herein plaintiffs, as in a way it has
caused them personal inconvenience and slight
damage on their name and reputation, the Court
cannot accepts [sic] however, the theory of the
remaining defendants that plaintiffs were motivated
in bad faith in the filing of this complaint. For this
reason defendants' counterclaims are hereby ordered
dismissed.
SO ORDERED.18
Petitioners appealed the trial court's decision. Petitioners
claimed that aside from Dr. Estrada, the remaining
respondents should be held equally liable for negligence.
Petitioners pointed out the extent of each respondent's alleged
liability.
On 6 February 1998, the Court of Appeals affirmed the
decision of the trial court. 19 Petitioners filed a motion for
reconsideration which the Court of Appeals denied in its
Resolution of 21 March 2000.20
Hence, this petition.
Meanwhile, petitioners filed a Manifestation dated 12 April
200221 stating that respondents Dr. Estrada, Dr. Enriquez, Dr.
Villaflor, and Nurse Dumlao "need no longer be notified of the
petition because they are absolutely not involved in the issue
raised before the [Court], regarding the liability of
[CMC]."22 Petitioners stressed that the subject matter of this
petition is the liability of CMC for the negligence of Dr.
Estrada.23
The Court issued a Resolution dated 9 September
200224 dispensing with the requirement to submit the correct
and present addresses of respondents Dr. Estrada, Dr.
Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court stated
that with the filing of petitioners' Manifestation, it should be
understood that they are claiming only against respondents
CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy who have filed
their respective comments. Petitioners are foregoing further
claims against respondents Dr. Estrada, Dr. Enriquez, Dr.
Villaflor, and Nurse Dumlao.
The Court noted that Dr. Estrada did not appeal the decision of
the Court of Appeals affirming the decision of the Regional
Trial Court. Accordingly, the decision of the Court of Appeals,
affirming the trial court's judgment, is already final as against
Dr. Oscar Estrada.
Petitioners filed a motion for reconsideration 25 of the Court's 9
September 2002 Resolution claiming that Dr. Enriquez, Dr.
Villaflor and Nurse Dumlao were notified of the petition at
their counsels' last known addresses. Petitioners reiterated
their imputation of negligence on these respondents. The
Court denied petitioners' Motion for Reconsideration in its 18
February 2004 Resolution.26
The Court of Appeals' Ruling
In its Decision of 6 February 1998, the Court of Appeals
upheld the trial court's ruling. The Court of Appeals rejected
petitioners' view that the doctrine in Darling v. Charleston
Community Memorial Hospital27 applies to this case.
According to the Court of Appeals, the present case differs
from the Darling case since Dr. Estrada is an independent
contractor-physician whereas the Darling case involved a
physician and a nurse who were employees of the hospital.
Citing other American cases, the Court of Appeals further held
that the mere fact that a hospital permitted a physician to
practice medicine and use its facilities is not sufficient to
render the hospital liable for the physician's negligence. 28 A
hospital is not responsible for the negligence of a physician
who is an independent contractor.29
The Court of Appeals found the cases of Davidson v.
Conole30 and Campbell v. Emma Laing Stevens
Hospital31 applicable to this case. Quoting Campbell, the Court
of Appeals stated that where there is no proof that defendant
physician was an employee of defendant hospital or that
defendant hospital had reason to know that any acts of
malpractice would take place, defendant hospital could not be
held liable for its failure to intervene in the relationship of
physician-patient between defendant physician and plaintiff.
On the liability of the other respondents, the Court of Appeals
applied the "borrowed servant" doctrine considering that Dr.
Estrada was an independent contractor who was merely
exercising hospital privileges. This doctrine provides that once
the surgeon enters the operating room and takes charge of the
proceedings, the acts or omissions of operating room
personnel, and any negligence associated with such acts or
omissions, are imputable to the surgeon. 32 While the assisting
physicians and nurses may be employed by the hospital, or
engaged by the patient, they normally become the temporary
servants or agents of the surgeon in charge while the operation
is in progress, and liability may be imposed upon the surgeon
for their negligent acts under the doctrine of respondeat
superior.33
The Court of Appeals concluded that since Rogelio engaged
Dr. Estrada as the attending physician of his wife, any liability
for malpractice must be Dr. Estrada's sole responsibility.
While it found the amount of damages fair and reasonable, the
Court of Appeals held that no interest could be imposed on
unliquidated claims or damages.
The Issue
Basically, the issue in this case is whether CMC is vicariously
liable for the negligence of Dr. Estrada. The resolution of this
issue rests, on the other hand, on the ascertainment of the
relationship between Dr. Estrada and CMC. The Court also
believes that a determination of the extent of liability of the
other respondents is inevitable to finally and completely
dispose of the present controversy.
The Ruling of the Court
The petition is partly meritorious.
On the Liability of CMC
15 TORTS LAST SET
Dr. Estrada's negligence in handling the treatment and
management of Corazon's condition which ultimately resulted
in Corazon's death is no longer in issue. Dr. Estrada did not
appeal the decision of the Court of Appeals which affirmed the
ruling of the trial court finding Dr. Estrada solely liable for
damages. Accordingly, the finding of the trial court on Dr.
Estrada's negligence is already final.
Petitioners maintain that CMC is vicariously liable for Dr.
Estrada's negligence based on Article 2180 in relation to
Article 2176 of the Civil Code. These provisions pertinently
state:
Art. 2180. The obligation imposed by article 2176 is
demandable not only for one's own acts or omissions,
but also for those of persons for whom one is
responsible.
xxxx
Employers shall be liable for the damages caused by
their employees and household helpers acting within
the scope of their assigned tasks, even though the
former are not engaged in any business or industry.
xxxx
The responsibility treated of in this article shall cease
when the persons herein mentioned prove that they
observed all the diligence of a good father of a family
to prevent damage.
Art. 2176. Whoever by act or omission causes
damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or
negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
Similarly, in the United States, a hospital which is the
employer, master, or principal of a physician employee,
servant, or agent, may be held liable for the physician's
negligence under the doctrine of respondeat superior.34
In the present case, petitioners maintain that CMC, in allowing
Dr. Estrada to practice and admit patients at CMC, should be
liable for Dr. Estrada's malpractice. Rogelio claims that he
knew Dr. Estrada as an accredited physician of CMC, though
he discovered later that Dr. Estrada was not a salaried
employee of the CMC.35 Rogelio further claims that he was
dealing with CMC, whose primary concern was the treatment
and management of his wife's condition. Dr. Estrada just
happened to be the specific person he talked to representing
CMC.36 Moreover, the fact that CMC made Rogelio sign a
Consent on Admission and Admission Agreement 37 and a
Consent to Operation printed on the letterhead of CMC
indicates that CMC considered Dr. Estrada as a member of its
medical staff.
On the other hand, CMC disclaims liability by asserting that
Dr. Estrada was a mere visiting physician and that it admitted
Corazon because her physical condition then was classified an
emergency obstetrics case.38
CMC alleges that Dr. Estrada is an independent contractor "for
whose actuations CMC would be a total stranger." CMC
maintains that it had no control or supervision over Dr.
Estrada in the exercise of his medical profession.
The Court had the occasion to determine the relationship
between a hospital and a consultant or visiting physician and
the liability of such hospital for that physician's negligence
in Ramos v. Court of Appeals,39 to wit:
In the first place, hospitals exercise significant
control in the hiring and firing of consultants and in
the conduct of their work within the hospital
premises. Doctors who apply for "consultant" slots,
visiting or attending, are required to submit proof of
completion of residency, their educational
qualifications; generally, evidence of accreditation by
the appropriate board (diplomate), evidence of
 fellowship in most cases, and references. These
requirements are carefully scrutinized by members of
the hospital administration or by a review committee
set up by the hospital who either accept or reject the
application. This is particularly true with respondent
hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate
grand rounds and patient audits and perform other
tasks and responsibilities, for the privilege of being
able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In
addition to these, the physician's performance as a
specialist is generally evaluated by a peer review
committee on the basis of mortality and morbidity
statistics, and feedback from patients, nurses, interns
and residents. A consultant remiss in his duties, or a
consultant who regularly falls short of the minimum
standards acceptable to the hospital or its peer review
committee, is normally politely terminated.
In other words, private hospitals, hire, fire and
exercise real control over their attending and visiting
"consultant" staff. While "consultants" are not,
technically employees, a point which respondent
hospital asserts in denying all responsibility for the
patient's condition, the control exercised, the hiring,
and the right to terminate consultants all fulfill the
important hallmarks of an employer-employee
relationship, with the exception of the payment of
wages. In assessing whether such a relationship in
fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule
that for the purpose of allocating responsibility in
medical negligence cases, an employer-employee
relationship in effect exists between hospitals and
their attending and visiting physicians. This being the
case, the question now arises as to whether or not
respondent hospital is solidarily liable with
respondent doctors for petitioner's condition.
The basis for holding an employer solidarily
responsible for the negligence of its employee is
found in Article 2180 of the Civil Code which
considers a person accountable not only for his own
acts but also for those of others based on the former's
responsibility under a relationship of patria potestas.
x x x40 (Emphasis supplied)
While the Court in Ramos did not expound on the control test,
such test essentially determines whether an employment
relationship exists between a physician and a hospital based on
the exercise of control over the physician as to details.
Specifically, the employer (or the hospital) must have the right
to control both the means and the details of the process by
which the employee (or the physician) is to accomplish his
task.41
After a thorough examination of the voluminous records of
this case, the Court finds no single evidence pointing to
CMC's exercise of control over Dr. Estrada's treatment and
management of Corazon's condition. It is undisputed that
throughout Corazon's pregnancy, she was under the exclusive
prenatal care of Dr. Estrada. At the time of Corazon's
admission at CMC and during her delivery, it was Dr. Estrada,
assisted by Dr. Villaflor, who attended to Corazon. There was
no showing that CMC had a part in diagnosing Corazon's
condition. While Dr. Estrada enjoyed staff privileges at CMC,
such fact alone did not make him an employee of
CMC.42 CMC merely allowed Dr. Estrada to use its
facilities43 when Corazon was about to give birth, which CMC
considered an emergency. Considering these circumstances,
Dr. Estrada is not an employee of CMC, but an independent
contractor.
16 TORTS LAST SET
The question now is whether CMC is automatically exempt
from liability considering that Dr. Estrada is an independent
contractor-physician.
In general, a hospital is not liable for the negligence of an
independent contractor-physician. There is, however, an
exception to this principle. The hospital may be liable if the
physician is the "ostensible" agent of the hospital.44 This
exception is also known as the "doctrine of apparent
authority."45 In Gilbert v. Sycamore Municipal Hospital,46 the
Illinois Supreme Court explained the doctrine of apparent
authority in this wise:
[U]nder the doctrine of apparent authority a hospital
can be held vicariously liable for the negligent acts of
a physician providing care at the hospital, regardless
of whether the physician is an independent
contractor, unless the patient knows, or should have
known, that the physician is an independent
contractor. The elements of the action have been set
out as follows:
"For a hospital to be liable under the doctrine of
apparent authority, a plaintiff must show that: (1) the
hospital, or its agent, acted in a manner that would
lead a reasonable person to conclude that the
individual who was alleged to be negligent was an
employee or agent of the hospital; (2) where the acts
of the agent create the appearance of authority, the
plaintiff must also prove that the hospital had
knowledge of and acquiesced in them; and (3) the
plaintiff acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary care
and prudence."
The element of "holding out" on the part of the
hospital does not require an express representation by
the hospital that the person alleged to be negligent is
an employee. Rather, the element is satisfied if the
hospital holds itself out as a provider of emergency
room care without informing the patient that the care
is provided by independent contractors.
The element of justifiable reliance on the part of the
plaintiff is satisfied if the plaintiff relies upon the
hospital to provide complete emergency room care,
rather than upon a specific physician.
The doctrine of apparent authority essentially involves two
factors to determine the liability of an independent-contractor
physician.
The first factor focuses on the hospital's manifestations and is
sometimes described as an inquiry whether the hospital acted
in a manner which would lead a reasonable person to conclude
that the individual who was alleged to be negligent was an
employee or agent of the hospital.47 In this regard, the hospital
need not make express representations to the patient that the
treating physician is an employee of the hospital; rather a
representation may be general and implied.48
The doctrine of apparent authority is a species of the doctrine
of estoppel. Article 1431 of the Civil Code provides that
"[t]hrough estoppel, an admission or representation is rendered
conclusive upon the person making it, and cannot be denied or
disproved as against the person relying thereon." Estoppel
rests on this rule: "Whenever a party has, by his own
declaration, act, or omission, intentionally and deliberately led
another to believe a particular thing true, and to act upon such
belief, he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it."49
In the instant case, CMC impliedly held out Dr. Estrada as a
member of its medical staff. Through CMC's acts, CMC
clothed Dr. Estrada with apparent authority thereby leading
the Spouses Nogales to believe that Dr. Estrada was an
employee or agent of CMC. CMC cannot now repudiate such
authority.
First, CMC granted staff privileges to Dr. Estrada. CMC
extended its medical staff and facilities to Dr. Estrada. Upon
Dr. Estrada's request for Corazon's admission, CMC, through
its personnel, readily accommodated Corazon and updated Dr.
Estrada of her condition.
Second, CMC made Rogelio sign consent forms printed on
CMC letterhead. Prior to Corazon's admission and supposed
hysterectomy, CMC asked Rogelio to sign release forms, the
contents of which reinforced Rogelio's belief that Dr. Estrada
was a member of CMC's medical staff. 50 The Consent on
Admission and Agreement explicitly provides:
KNOW ALL MEN BY THESE PRESENTS:
I, Rogelio Nogales, of legal age, a resident of 1974
M. H. Del Pilar St., Malate Mla., being the
father/mother/brother/sister/spouse/relative/
guardian/or person in custody of Ma. Corazon, and
representing his/her family, of my own volition and
free will, do consent and submit said Ma. Corazon to
Dr. Oscar Estrada (hereinafter referred to as
Physician) for cure, treatment, retreatment, or
emergency measures, that the Physician, personally
or by and through the Capitol Medical Center and/or
its staff, may use, adapt, or employ such means,
forms or methods of cure, treatment, retreatment, or
emergency measures as he may see best and most
expedient; that Ma. Corazon and I will comply with
any and all rules, regulations, directions, and
instructions of the Physician, the Capitol Medical
Center and/or its staff; and, that I will not hold liable
or responsible and hereby waive and forever
discharge and hold free the Physician, the Capitol
Medical Center and/or its staff, from any and all
claims of whatever kind of nature, arising from
directly or indirectly, or by reason of said cure,
treatment, or retreatment, or emergency measures or
intervention of said physician, the Capitol Medical
Center and/or its staff.
x x x x51 (Emphasis supplied)
While the Consent to Operation pertinently reads, thus:
I, ROGELIO NOGALES, x x x, of my own volition
and free will, do consent and submit said CORAZON
NOGALES to Hysterectomy, by the Surgical Staff
and Anesthesiologists of Capitol Medical
Center and/or whatever succeeding operations,
treatment, or emergency measures as may be
necessary and most expedient; and, that I will not
hold liable or responsible and hereby waive and
forever discharge and hold free the Surgeon, his
assistants, anesthesiologists, the Capitol Medical
Center and/or its staff, from any and all claims of
whatever kind of nature, arising from directly or
indirectly, or by reason of said operation or
operations, treatment, or emergency measures, or
intervention of the Surgeon, his assistants,
anesthesiologists, the Capitol Medical Center and/or
its staff.52 (Emphasis supplied)
Without any indication in these consent forms that Dr. Estrada
was an independent contractor-physician, the Spouses Nogales
could not have known that Dr. Estrada was an independent
contractor. Significantly, no one from CMC informed the
Spouses Nogales that Dr. Estrada was an independent
contractor. On the contrary, Dr. Atencio, who was then a
member of CMC Board of Directors, testified that Dr. Estrada
was part of CMC's surgical staff.53
Third, Dr. Estrada's referral of Corazon's profuse vaginal
bleeding to Dr. Espinola, who was then the Head of the
Obstetrics and Gynecology Department of CMC, gave the
impression that Dr. Estrada as a member of CMC's medical
staff was collaborating with other CMC-employed specialists
in treating Corazon.
17 TORTS LAST SET
The second factor focuses on the patient's reliance. It is
sometimes characterized as an inquiry on whether the plaintiff
acted in reliance upon the conduct of the hospital or its agent,
consistent with ordinary care and prudence.54
The records show that the Spouses Nogales relied upon a
perceived employment relationship with CMC in accepting
Dr. Estrada's services. Rogelio testified that he and his wife
specifically chose Dr. Estrada to handle Corazon's delivery not
only because of their friend's recommendation, but more
importantly because of Dr. Estrada's "connection with a
reputable hospital, the [CMC]."55 In other words, Dr. Estrada's
relationship with CMC played a significant role in the Spouses
Nogales' decision in accepting Dr. Estrada's services as the
obstetrician-gynecologist for Corazon's delivery. Moreover, as
earlier stated, there is no showing that before and during
Corazon's confinement at CMC, the Spouses Nogales knew or
should have known that Dr. Estrada was not an employee of
CMC.
Further, the Spouses Nogales looked to CMC to provide the
best medical care and support services for Corazon's delivery.
The Court notes that prior to Corazon's fourth pregnancy, she
used to give birth inside a clinic. Considering Corazon's age
then, the Spouses Nogales decided to have their fourth child
delivered at CMC, which Rogelio regarded one of the best
hospitals at the time.56 This is precisely because the Spouses
Nogales feared that Corazon might experience complications
during her delivery which would be better addressed and
treated in a modern and big hospital such as CMC. Moreover,
Rogelio's consent in Corazon's hysterectomy to be performed
by a different physician, namely Dr. Espinola, is a clear
indication of Rogelio's confidence in CMC's surgical staff.
CMC's defense that all it did was "to extend to [Corazon] its
facilities" is untenable. The Court cannot close its eyes to the
reality that hospitals, such as CMC, are in the business of
treatment. In this regard, the Court agrees with the observation
made by the Court of Appeals of North Carolina in Diggs v.
Novant Health, Inc.,57 to wit:
"The conception that the hospital does not undertake
to treat the patient, does not undertake to act through
its doctors and nurses, but undertakes instead simply
to procure them to act upon their own responsibility,
no longer reflects the fact. Present day hospitals, as
their manner of operation plainly demonstrates, do far
more than furnish facilities for treatment. They
regularly employ on a salary basis a large staff of
physicians, nurses and internes [sic], as well as
administrative and manual workers, and they charge
patients for medical care and treatment, collecting for
such services, if necessary, by legal action. Certainly,
the person who avails himself of 'hospital facilities'
expects that the hospital will attempt to cure him, not
that its nurses or other employees will act on their
own responsibility." x x x (Emphasis supplied)
Likewise unconvincing is CMC's argument that petitioners are
estopped from claiming damages based on the Consent on
Admission and Consent to Operation. Both release forms
consist of two parts. The first part gave CMC permission to
administer to Corazon any form of recognized medical
treatment which the CMC medical staff deemed advisable.
The second part of the documents, which may properly be
described as the releasing part, releases CMC and its
employees "from any and all claims" arising from or by reason
of the treatment and operation.
The documents do not expressly release CMC from liability
for injury to Corazon due to negligence during her treatment
or operation. Neither do the consent forms expressly exempt
CMC from liability for Corazon's death due to negligence
during such treatment or operation. Such release forms, being
in the nature of contracts of adhesion, are construed strictly
against hospitals. Besides, a blanket release in favor of
hospitals "from any and all claims," which includes claims due
to bad faith or gross negligence, would be contrary to public
policy and thus void.
Even simple negligence is not subject to blanket release in
favor of establishments like hospitals but may only mitigate
liability depending on the circumstances. 58 When a person
needing urgent medical attention rushes to a hospital, he
cannot bargain on equal footing with the hospital on the terms
of admission and operation. Such a person is literally at the
mercy of the hospital. There can be no clearer example of a
contract of adhesion than one arising from such a dire
situation. Thus, the release forms of CMC cannot relieve CMC
from liability for the negligent medical treatment of Corazon.
On the Liability of the Other Respondents
Despite this Court's pronouncement in its 9 September
200259 Resolution that the filing of petitioners' Manifestation
confined petitioners' claim only against CMC, Dr. Espinola,
Dr. Lacson, and Dr. Uy, who have filed their comments, the
Court deems it proper to resolve the individual liability of the
remaining respondents to put an end finally to this more than
two-decade old controversy.
a) Dr. Ely Villaflor
Petitioners blame Dr. Ely Villaflor for failing to diagnose the
cause of Corazon's bleeding and to suggest the correct remedy
to Dr. Estrada.60 Petitioners assert that it was Dr. Villaflor's
duty to correct the error of Nurse Dumlao in the administration
of hemacel.
The Court is not persuaded. Dr. Villaflor admitted
administering a lower dosage of magnesium sulfate. However,
this was after informing Dr. Estrada that Corazon was no
longer in convulsion and that her blood pressure went down to
a dangerous level.61 At that moment, Dr. Estrada instructed Dr.
Villaflor to reduce the dosage of magnesium sulfate from 10 to
2.5 grams. Since petitioners did not dispute Dr. Villaflor's
allegation, Dr. Villaflor's defense remains uncontroverted. Dr.
Villaflor's act of administering a lower dosage of magnesium
sulfate was not out of her own volition or was in contravention
of Dr. Estrada's order.
b) Dr. Rosa Uy
Dr. Rosa Uy's alleged negligence consisted of her failure (1) to
call the attention of Dr. Estrada on the incorrect dosage of
magnesium sulfate administered by Dr. Villaflor; (2) to take
corrective measures; and (3) to correct Nurse Dumlao's wrong
method of hemacel administration.
The Court believes Dr. Uy's claim that as a second year
resident physician then at CMC, she was merely authorized to
take the clinical history and physical examination of
Corazon.62 However, that routine internal examination did
not ipso facto make Dr. Uy liable for the errors committed by
Dr. Estrada. Further, petitioners' imputation of negligence rests
on their baseless assumption that Dr. Uy was present at the
delivery room. Nothing shows that Dr. Uy participated in
delivering Corazon's baby. Further, it is unexpected from Dr.
Uy, a mere resident physician at that time, to call the attention
of a more experienced specialist, if ever she was present at the
delivery room.
c) Dr. Joel Enriquez
Petitioners fault Dr. Joel Enriquez also for not calling the
attention of Dr. Estrada, Dr. Villaflor, and Nurse Dumlao
about their errors.63 Petitioners insist that Dr. Enriquez should
have taken, or at least suggested, corrective measures to
rectify such errors.
The Court is not convinced. Dr. Enriquez is an
anesthesiologist whose field of expertise is definitely not
obstetrics and gynecology. As such, Dr. Enriquez was not
expected to correct Dr. Estrada's errors. Besides, there was no
evidence of Dr. Enriquez's knowledge of any error committed
by Dr. Estrada and his failure to act upon such observation.
d) Dr. Perpetua Lacson
18 TORTS LAST SET
Petitioners fault Dr. Perpetua Lacson for her purported delay
in the delivery of blood Corazon needed.64 Petitioners claim
that Dr. Lacson was remiss in her duty of supervising the
blood bank staff.
As found by the trial court, there was no unreasonable delay in
the delivery of blood from the time of the request until the
transfusion to Corazon. Dr. Lacson competently explained the
procedure before blood could be given to the patient. 65 Taking
into account the bleeding time, clotting time and cross-
matching, Dr. Lacson stated that it would take approximately
45-60 minutes before blood could be ready for
transfusion.66 Further, no evidence exists that Dr. Lacson
neglected her duties as head of the blood bank.
e) Dr. Noe Espinola
Petitioners argue that Dr. Espinola should not have ordered
immediate hysterectomy without determining the underlying
cause of Corazon's bleeding. Dr. Espinola should have first
considered the possibility of cervical injury, and advised a
thorough examination of the cervix, instead of believing
outright Dr. Estrada's diagnosis that the cause of bleeding was
uterine atony.
Dr. Espinola's order to do hysterectomy which was based on
the information he received by phone is not negligence. The
Court agrees with the trial court's observation that Dr.
Espinola, upon hearing such information about Corazon's
condition, believed in good faith that hysterectomy was the
correct remedy. At any rate, the hysterectomy did not push
through because upon Dr. Espinola's arrival, it was already too
late. At the time, Corazon was practically dead.
f) Nurse J. Dumlao
In Moore v. Guthrie Hospital Inc.,67 the US Court of Appeals,
Fourth Circuit, held that to recover, a patient complaining of
injuries allegedly resulting when the nurse negligently injected
medicine to him intravenously instead of intramuscularly had
to show that (1) an intravenous injection constituted a lack of
reasonable and ordinary care; (2) the nurse injected medicine
intravenously; and (3) such injection was the proximate cause
of his injury.
In the present case, there is no evidence of Nurse Dumlao's
alleged failure to follow Dr. Estrada's specific instructions.
Even assuming Nurse Dumlao defied Dr. Estrada's order, there
is no showing that side-drip administration of hemacel
proximately caused Corazon's death. No evidence linking
Corazon's death and the alleged wrongful hemacel
administration was introduced. Therefore, there is no basis to
hold Nurse Dumlao liable for negligence.
On the Award of Interest on Damages
The award of interest on damages is proper and allowed under
Article 2211 of the Civil Code, which states that in crimes and
quasi-delicts, interest as a part of the damages may, in a proper
case, be adjudicated in the discretion of the court.68
WHEREFORE, the Court PARTLY GRANTS the petition.
The Court finds respondent Capitol Medical Center
vicariously liable for the negligence of Dr. Oscar Estrada. The
amounts of P105,000 as actual damages and P700,000 as
moral damages should each earn legal interest at the rate of six
percent (6%) per annum computed from the date of the
judgment of the trial court. The Court affirms the rest of the
Decision dated 6 February 1998 and Resolution dated 21
March 2000 of the Court of Appeals in CA-G.R. CV No.
45641.
SO ORDERED.
Quisumbing, J., Chairperson, Carpio Morales, Tinga, and
Velasco, Jr., JJ., concur.
 53
G.R. No. 126297             January 31, 2007
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467            January 31, 2007
NATIVIDAD (Substituted by her children MARCELINO
AGANA III, ENRIQUE AGANA, JR., EMMA AGANA
ANDAYA, JESUS AGANA, and RAYMUND AGANA) and
ENRIQUE AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590            January 31, 2007
MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD AGANA and
AGANA, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankind’s most
important and delicate endeavors, must assume the grave
responsibility of pursuing it with appropriate care. The care
and service dispensed through this high trust, however
technical, complex and esoteric its character may be, must
meet standards of responsibility commensurate with the
undertaking to preserve and protect the health, and indeed, the
very lives of those placed in the hospital’s keeping.1
Assailed in these three consolidated petitions for review on
certiorari is the Court of Appeals’ Decision2 dated September
6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No.
32198 affirming with modification the Decision3 dated March
17, 1993 of the Regional Trial Court (RTC), Branch 96,
Quezon City in Civil Case No. Q-43322 and nullifying its
Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical
City General Hospital (Medical City Hospital) because of
difficulty of bowel movement and bloody anal discharge.
After a series of medical examinations, Dr. Miguel Ampil,
petitioner in G.R. No. 127590, diagnosed her to be suffering
from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff 4 of
the Medical City Hospital, performed an anterior resection
surgery on Natividad. He found that the malignancy in her
sigmoid area had spread on her left ovary, necessitating the
removal of certain portions of it. Thus, Dr. Ampil obtained the
consent of Natividad’s husband, Enrique Agana, to permit Dr.
Juan Fuentes, respondent in G.R. No. 126467, to perform
hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil
took over, completed the operation and closed the incision.
However, the operation appeared to be flawed. In the
corresponding Record of Operation dated April 11, 1984, the
attending nurses entered these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no avail
continue for closure."
On April 24, 1984, Natividad was released from the hospital.
Her hospital and medical bills, including the doctors’ fees,
amounted to P60,000.00.
After a couple of days, Natividad complained of excruciating
pain in her anal region. She consulted both Dr. Ampil and Dr.
Fuentes about it. They told her that the pain was the natural
consequence of the surgery. Dr. Ampil then recommended that
she consult an oncologist to examine the cancerous nodes
which were not removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband,
went to the United States to seek further treatment. After four
months of consultations and laboratory examinations,
Natividad was told she was free of cancer. Hence, she was
advised to return to the Philippines.
On August 31, 1984, Natividad flew back to the Philippines,
still suffering from pains. Two weeks thereafter, her daughter
found a piece of gauze protruding from her vagina. Upon
being informed about it, Dr. Ampil proceeded to her house
where he managed to extract by hand a piece of gauze
measuring 1.5 inches in width. He then assured her that the
pains would soon vanish.
Dr. Ampil’s assurance did not come true. Instead, the pains
intensified, prompting Natividad to seek treatment at the
Polymedic General Hospital. While confined there, Dr. Ramon
Gutierrez detected the presence of another foreign object in
ENRIQUE her vagina -- a foul-smelling gauze measuring 1.5 inches in
width which badly infected her vaginal vault. A recto-vaginal
fistula had formed in her reproductive organs which forced
stool to excrete through the vagina. Another surgical operation
was needed to remedy the damage. Thus, in October 1984,
Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with
the RTC, Branch 96, Quezon City a complaint for damages
against the Professional Services, Inc. (PSI), owner of the
Medical City Hospital, Dr. Ampil, and Dr. Fuentes, docketed
as Civil Case No. Q-43322. They alleged that the latter are
liable for negligence for leaving two pieces of gauze inside
Natividad’s body and malpractice for concealing their acts of
negligence.
Meanwhile, Enrique Agana also filed with the Professional
Regulation Commission (PRC) an administrative complaint
for gross negligence and malpractice against Dr. Ampil and
Dr. Fuentes, docketed as Administrative Case No. 1690. The
PRC Board of Medicine heard the case only with respect to
Dr. Fuentes because it failed to acquire jurisdiction over Dr.
Ampil who was then in the United States.
On February 16, 1986, pending the outcome of the above
cases, Natividad died and was duly substituted by her above-
named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of
the Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for
negligence and malpractice, the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs
ordering the defendants PROFESSIONAL SERVICES, INC.,
DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to
the plaintiffs, jointly and severally, except in respect of the
award for exemplary damages and the interest thereon which
are the liabilities of defendants Dr. Ampil and Dr. Fuentes
only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of
the total of US$19,900.00 at the rate of
P21.60-US$1.00, as reimbursement of actual
expenses incurred in the United States of
America;
b. The sum of P4,800.00 as travel taxes of
plaintiffs and their physician daughter;
c. The total sum of P45,802.50, representing
the cost of hospitalization at Polymedic
Hospital, medical fees, and cost of the saline
solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorney’s fees, the sum of P250,000.00;
19 TORTS LAST SET
 5. Legal interest on items 1 (a), (b), and (c); 2; and 3
hereinabove, from date of filing of the complaint
until full payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an
appeal to the Court of Appeals, docketed as CA-G.R. CV No.
42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC
a motion for a partial execution of its Decision, which was
granted in an Order dated May 11, 1993. Thereafter, the
sheriff levied upon certain properties of Dr. Ampil and sold
them for P451,275.00 and delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into
an agreement with PSI and Dr. Fuentes to indefinitely suspend
any further execution of the RTC Decision. However, not long
thereafter, the Aganas again filed a motion for an alias writ of
execution against the properties of PSI and Dr. Fuentes. On
September 21, 1993, the RTC granted the motion and issued
the corresponding writ, prompting Dr. Fuentes to file with the
Court of Appeals a petition for certiorari and prohibition, with
prayer for preliminary injunction, docketed as CA-G.R. SP
No. 32198. During its pendency, the Court of Appeals issued a
Resolution5 dated October 29, 1993 granting Dr. Fuentes’
prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was
consolidated with CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine
rendered its Decision6 in Administrative Case No. 1690
dismissing the case against Dr. Fuentes. The Board held that
the prosecution failed to show that Dr. Fuentes was the one
who left the two pieces of gauze inside Natividad’s body; and
that he concealed such fact from Natividad.
On September 6, 1996, the Court of Appeals rendered its
Decision jointly disposing of CA-G.R. CV No. 42062 and CA-
G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case
against defendant-appellant Dr. Juan Fuentes is hereby
DISMISSED, and with the pronouncement that defendant-
appellant Dr. Miguel Ampil is liable to reimburse defendant-
appellant Professional Services, Inc., whatever amount the
latter will pay or had paid to the plaintiffs-appellees, the
decision appealed from is hereby AFFIRMED and the instant
appeal DISMISSED.
Concomitant with the above, the petition for certiorari and
prohibition filed by herein defendant-appellant Dr. Juan
Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and
the challenged order of the respondent judge dated September
21, 1993, as well as the alias writ of execution issued pursuant
thereto are hereby NULLIFIED and SET ASIDE. The bond
posted by the petitioner in connection with the writ of
preliminary injunction issued by this Court on November 29,
1993 is hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and
Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was
denied in a Resolution7 dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court
of Appeals erred in holding that: (1) it is estopped from raising
the defense that Dr. Ampil is not its employee; (2) it is
solidarily liable with Dr. Ampil; and (3) it is not entitled to its
counterclaim against the Aganas. PSI contends that Dr. Ampil
is not its employee, but a mere consultant or independent
contractor. As such, he alone should answer for his
negligence.
20 TORTS LAST SET
In G.R. No. 126467, the Aganas maintain that the Court of
Appeals erred in finding that Dr. Fuentes is not guilty of
negligence or medical malpractice, invoking the doctrine of
res ipsa loquitur. They contend that the pieces of gauze are
prima facie proofs that the operating surgeons have been
negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court
of Appeals erred in finding him liable for negligence and
malpractice sans evidence that he left the two pieces of gauze
in Natividad’s vagina. He pointed to other probable causes,
such as: (1) it was Dr. Fuentes who used gauzes in performing
the hysterectomy; (2) the attending nurses’ failure to properly
count the gauzes used during surgery; and (3) the medical
intervention of the American doctors who examined Natividad
in the United States of America.
For our resolution are these three vital issues: first, whether
the Court of Appeals erred in holding Dr. Ampil liable for
negligence and malpractice; second, whether the Court of
Appeals erred in absolving Dr. Fuentes of any liability; and
third, whether PSI may be held solidarily liable for the
negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Court’s
attention to other possible causes of Natividad’s detriment. He
argues that the Court should not discount either of the
following possibilities: first, Dr. Fuentes left the gauzes in
Natividad’s body after performing hysterectomy; second, the
attending nurses erred in counting the gauzes; and third, the
American doctors were the ones who placed the gauzes in
Natividad’s body.
Dr. Ampil’s arguments are purely conjectural and without
basis. Records show that he did not present any evidence to
prove that the American doctors were the ones who put or left
the gauzes in Natividad’s body. Neither did he submit
evidence to rebut the correctness of the record of operation,
particularly the number of gauzes used. As to the alleged
negligence of Dr. Fuentes, we are mindful that Dr. Ampil
examined his (Dr. Fuentes’) work and found it in order.
The glaring truth is that all the major circumstances, taken
together, as specified by the Court of Appeals, directly point to
Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used gauzes
as sponges to control the bleeding of the patient
during the surgical operation.
Second, immediately after the operation, the nurses
who assisted in the surgery noted in their report that
the ‘sponge count (was) lacking 2’; that such
anomaly was ‘announced to surgeon’ and that a
‘search was done but to no avail’ prompting Dr.
Ampil to ‘continue for closure’ x x x.
Third, after the operation, two (2) gauzes were
extracted from the same spot of the body of Mrs.
Agana where the surgery was performed.
An operation requiring the placing of sponges in the incision is
not complete until the sponges are properly removed, and it is
settled that the leaving of sponges or other foreign substances
in the wound after the incision has been closed is at least
prima facie negligence by the operating surgeon. 8 To put it
simply, such act is considered so inconsistent with due care as
to raise an inference of negligence. There are even legions of
authorities to the effect that such act is negligence per se.9
Of course, the Court is not blind to the reality that there are
times when danger to a patient’s life precludes a surgeon from
further searching missing sponges or foreign objects left in the
body. But this does not leave him free from any obligation.
Even if it has been shown that a surgeon was required by the
urgent necessities of the case to leave a sponge in his patient’s
abdomen, because of the dangers attendant upon delay, still, it
is his legal duty to so inform his patient within a reasonable
time thereafter by advising her of what he had been compelled
to do. This is in order that she might seek relief from the
effects of the foreign object left in her body as her condition
might permit. The ruling in Smith v. Zeagler10 is explicit, thus:
The removal of all sponges used is part of a surgical operation,
and when a physician or surgeon fails to remove a sponge he
has placed in his patient’s body that should be removed as part
of the operation, he thereby leaves his operation uncompleted
and creates a new condition which imposes upon him the legal
duty of calling the new condition to his patient’s attention, and
endeavoring with the means he has at hand to minimize and
avoid untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing
two pieces of gauze. Worse, he even misled her that the pain
she was experiencing was the ordinary consequence of her
operation. Had he been more candid, Natividad could have
taken the immediate and appropriate medical remedy to
remove the gauzes from her body. To our mind, what was
initially an act of negligence by Dr. Ampil has ripened into a
deliberate wrongful act of deceiving his patient.
This is a clear case of medical malpractice or more
appropriately, medical negligence. To successfully pursue this
kind of case, a patient must only prove that a health care
provider either failed to do something which a reasonably
prudent health care provider would have done, or that he did
something that a reasonably prudent provider would not have
done; and that failure or action caused injury to the
patient.11 Simply put, the elements are duty, breach, injury and
proximate causation. Dr, Ampil, as the lead surgeon, had the
duty to remove all foreign objects, such as gauzes, from
Natividad’s body before closure of the incision. When he
failed to do so, it was his duty to inform Natividad about it.
Dr. Ampil breached both duties. Such breach caused injury to
Natividad, necessitating her further examination by American
doctors and another surgery. That Dr. Ampil’s negligence is
the proximate cause12 of Natividad’s injury could be traced
from his act of closing the incision despite the information
given by the attending nurses that two pieces of gauze were
still missing. That they were later on extracted from
Natividad’s vagina established the causal link between Dr.
Ampil’s negligence and the injury. And what further
aggravated such injury was his deliberate concealment of the
missing gauzes from the knowledge of Natividad and her
family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case
against Dr. Fuentes on the ground that it is contrary to the
doctrine of res ipsa loquitur. According to them, the fact that
the two pieces of gauze were left inside Natividad’s body is a
prima facie evidence of Dr. Fuentes’ negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for itself."
It is the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference
or raise a presumption of negligence, or make out a plaintiff’s
prima facie case, and present a question of fact for defendant
to meet with an explanation.13 Stated differently, where the
thing which caused the injury, without the fault of the injured,
is under the exclusive control of the defendant and the injury
is such that it should not have occurred if he, having such
control used proper care, it affords reasonable evidence, in the
absence of explanation that the injury arose from the
defendant’s want of care, and the burden of proof is shifted to
him to establish that he has observed due care and diligence.14
From the foregoing statements of the rule, the requisites for
the applicability of the doctrine of res ipsa loquitur are: (1) the
21 TORTS LAST SET
occurrence of an injury; (2) the thing which caused the injury
was under the control and management of the defendant; (3)
the occurrence was such that in the ordinary course of things,
would not have happened if those who had control or
management used proper care; and (4) the absence of
explanation by the defendant. Of the foregoing requisites, the
most instrumental is the "control and management of the thing
which caused the injury."15
We find the element of "control and management of the thing
which caused the injury" to be wanting. Hence, the doctrine of
res ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead surgeon
during the operation of Natividad. He requested the assistance
of Dr. Fuentes only to perform hysterectomy when he (Dr.
Ampil) found that the malignancy in her sigmoid area had
spread to her left ovary. Dr. Fuentes performed the surgery
and thereafter reported and showed his work to Dr. Ampil.
The latter examined it and finding everything to be in order,
allowed Dr. Fuentes to leave the operating room. Dr. Ampil
then resumed operating on Natividad. He was about to finish
the procedure when the attending nurses informed him that
two pieces of gauze were missing. A "diligent search" was
conducted, but the misplaced gauzes were not found. Dr.
Ampil then directed that the incision be closed. During this
entire period, Dr. Fuentes was no longer in the operating room
and had, in fact, left the hospital.
Under the "Captain of the Ship" rule, the operating surgeon is
the person in complete charge of the surgery room and all
personnel connected with the operation. Their duty is to obey
his orders.16 As stated before, Dr. Ampil was the lead surgeon.
In other words, he was the "Captain of the Ship." That he
discharged such role is evident from his following conduct: (1)
calling Dr. Fuentes to perform a hysterectomy; (2) examining
the work of Dr. Fuentes and finding it in order; (3) granting
Dr. Fuentes’ permission to leave; and (4) ordering the closure
of the incision. To our mind, it was this act of ordering the
closure of the incision notwithstanding that two pieces of
gauze remained unaccounted for, that caused injury to
Natividad’s body. Clearly, the control and management of the
thing which caused the injury was in the hands of Dr. Ampil,
not Dr. Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive
law, hence, does not per se create or constitute an independent
or separate ground of liability, being a mere evidentiary
rule.17 In other words, mere invocation and application of the
doctrine does not dispense with the requirement of proof of
negligence. Here, the negligence was proven to have been
committed by Dr. Ampil and not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical
development of hospitals and the resulting theories concerning
their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally
charitable institutions, providing medical services to the
lowest classes of society, without regard for a patient’s ability
to pay.18 Those who could afford medical treatment were
usually treated at home by their doctors. 19 However, the days
of house calls and philanthropic health care are over. The
modern health care industry continues to distance itself from
its charitable past and has experienced a significant conversion
from a not-for-profit health care to for-profit hospital
businesses. Consequently, significant changes in health law
have accompanied the business-related changes in the hospital
industry. One important legal change is an increase in hospital
liability for medical malpractice. Many courts now allow
claims for hospital vicarious liability under the theories of
respondeat superior, apparent authority, ostensible authority,
or agency by estoppel. 20
In this jurisdiction, the statute governing liability for negligent
acts is Article 2176 of the Civil Code, which reads:
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
A derivative of this provision is Article 2180, the rule
governing vicarious liability under the doctrine of respondeat
superior, thus:
ART. 2180. The obligation imposed by Article 2176 is
demandable not only for one’s own acts or omissions, but also
for those of persons for whom one is responsible.
x x x x x x
The owners and managers of an establishment or enterprise
are likewise responsible for damages caused by their
employees in the service of the branches in which the latter are
employed or on the occasion of their functions.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned tasks even though the former are not engaged in
any business or industry.
x x x x x
x appropriate board (diplomate), evidence of fellowship in most
The responsibility treated of in this article shall cease when the
persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
A prominent civilist commented that professionals engaged by
an employer, such as physicians, dentists, and pharmacists, are
not "employees" under this article because the manner in
which they perform their work is not within the control of the
latter (employer). In other words, professionals are considered
personally liable for the fault or negligence they commit in the
discharge of their duties, and their employer cannot be held
liable for such fault or negligence. In the context of the present
case, "a hospital cannot be held liable for the fault or
negligence of a physician or surgeon in the treatment or
operation of patients."21
The foregoing view is grounded on the traditional notion that
the professional status and the very nature of the physician’s
calling preclude him from being classed as an agent or
employee of a hospital, whenever he acts in a professional
capacity.22 It has been said that medical practice strictly
involves highly developed and specialized knowledge, 23 such
that physicians are generally free to exercise their own skill
and judgment in rendering medical services sans
interference.24 Hence, when a doctor practices medicine in a
hospital setting, the hospital and its employees are deemed to
subserve him in his ministrations to the patient and his actions
are of his own responsibility.25
The case of Schloendorff v. Society of New York
Hospital26 was then considered an authority for this view. The
"Schloendorff doctrine" regards a physician, even if employed
by a hospital, as an independent contractor because of the skill
he exercises and the lack of control exerted over his work.
Under this doctrine, hospitals are exempt from the application
of the respondeat superior principle for fault or negligence
committed by physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened
with the significant developments in medical care. Courts
came to realize that modern hospitals are increasingly taking
active role in supplying and regulating medical care to
patients. No longer were a hospital’s functions limited to
furnishing room, food, facilities for treatment and operation,
and attendants for its patients. Thus, in Bing v. Thunig, 27 the
New York Court of Appeals deviated from the Schloendorff
doctrine, noting that modern hospitals actually do far more
than provide facilities for treatment. Rather, they regularly
employ, on a salaried basis, a large staff of physicians, interns,
22 TORTS LAST SET
nurses, administrative and manual workers. They charge
patients for medical care and treatment, even collecting for
such services through legal action, if necessary. The court then
concluded that there is no reason to exempt hospitals from the
universal rule of respondeat superior.
In our shores, the nature of the relationship between the
hospital and the physicians is rendered inconsequential in view
of our categorical pronouncement in Ramos v. Court of
Appeals28 that for purposes of apportioning responsibility in
medical negligence cases, an employer-employee relationship
in effect exists between hospitals and their attending and
visiting physicians. This Court held:
"We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting "consultants," who are allegedly not hospital
employees, presents problems in apportioning responsibility
for negligence in medical malpractice cases. However, the
difficulty is more apparent than real.
In the first place, hospitals exercise significant control in the
hiring and firing of consultants and in the conduct of their
work within the hospital premises. Doctors who apply for
‘consultant’ slots, visiting or attending, are required to submit
proof of completion of residency, their educational
qualifications, generally, evidence of accreditation by the
cases, and references. These requirements are carefully
scrutinized by members of the hospital administration or by a
review committee set up by the hospital who either accept or
reject the application. x x x.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-
pathological conferences, conduct bedside rounds for clerks,
interns and residents, moderate grand rounds and patient
audits and perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the hospital,
and/or for the privilege of admitting patients into the hospital.
In addition to these, the physician’s performance as a
specialist is generally evaluated by a peer review committee
on the basis of mortality and morbidity statistics, and feedback
from patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls short of
the minimum standards acceptable to the hospital or its peer
review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting ‘consultant’ staff.
While ‘consultants’ are not, technically employees, x x x, the
control exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an employer-
employee relationship, with the exception of the payment of
wages. In assessing whether such a relationship in fact exists,
the control test is determining. Accordingly, on the basis of the
foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an employer-
employee relationship in effect exists between hospitals and
their attending and visiting physicians. "
But the Ramos pronouncement is not our only basis in
sustaining PSI’s liability. Its liability is also anchored upon the
agency principle of apparent authority or agency by estoppel
and the doctrine of corporate negligence which have gained
acceptance in the determination of a hospital’s liability for
negligent acts of health professionals. The present case serves
as a perfect platform to test the applicability of these doctrines,
thus, enriching our jurisprudence.
Apparent authority, or what is sometimes referred to as the
"holding
out" theory, or doctrine of ostensible agency or agency by
estoppel,29 has its origin from the law of agency. It imposes
liability, not as the result of the reality of a contractual
relationship, but rather because of the actions of a principal or
an employer in somehow misleading the public into believing
that the relationship or the authority exists.30 The concept is
essentially one of estoppel and has been explained in this
manner:
"The principal is bound by the acts of his agent with the
apparent authority which he knowingly permits the agent to
assume, or which he holds the agent out to the public as
possessing. The question in every case is whether the principal
has by his voluntary act placed the agent in such a situation
that a person of ordinary prudence, conversant with business
usages and the nature of the particular business, is justified in
presuming that such agent has authority to perform the
particular act in question.31
The applicability of apparent authority in the field of hospital
liability was upheld long time ago in Irving v. Doctor Hospital
of Lake Worth, Inc.32 There, it was explicitly stated that "there
does not appear to be any rational basis for excluding the
concept of apparent authority from the field of hospital
liability." Thus, in cases where it can be shown that a hospital,
by its actions, has held out a particular physician as its agent
and/or employee and that a patient has accepted treatment
from that physician in the reasonable belief that it is being
rendered in behalf of the hospital, then the hospital will be
liable for the physician’s negligence.
Our jurisdiction recognizes the concept of an agency by
implication or estoppel. Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts
of the principal, from his silence or lack of action, or his
failure to repudiate the agency, knowing that another person is
acting on his behalf without authority.
In this case, PSI publicly displays in the lobby of the Medical
City Hospital the names and specializations of the physicians
associated or accredited by it, including those of Dr. Ampil
and Dr. Fuentes. We concur with the Court of Appeals’
conclusion that it "is now estopped from passing all the blame
to the physicians whose names it proudly paraded in the public
directory leading the public to believe that it vouched for their
skill and competence." Indeed, PSI’s act is tantamount to
holding out to the public that Medical City Hospital, through
its accredited physicians, offers quality health care services.
By accrediting Dr. Ampil and Dr. Fuentes and publicly
advertising their qualifications, the hospital created the
impression that they were its agents, authorized to perform
medical or surgical services for its patients. As expected, these
patients, Natividad being one of them, accepted the services
on the reasonable belief that such were being rendered by the
hospital or its employees, agents, or servants. The trial court
correctly pointed out:
x x x regardless of the education and status in life of the
patient, he ought not be burdened with the defense of absence
of employer-employee relationship between the hospital and
the independent physician whose name and competence are
certainly certified to the general public by the hospital’s act of
listing him and his specialty in its lobby directory, as in the
case herein. The high costs of today’s medical and health care
should at least exact on the hospital greater, if not broader,
legal responsibility for the conduct of treatment and surgery
within its facility by its accredited physician or surgeon,
regardless of whether he is independent or employed."33
The wisdom of the foregoing ratiocination is easy to discern.
Corporate entities, like PSI, are capable of acting only through
other individuals, such as physicians. If these accredited
physicians do their job well, the hospital succeeds in its
mission of offering quality medical services and thus profits
financially. Logically, where negligence mars the quality of its
services, the hospital should not be allowed to escape liability
for the acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence or
corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for
negligence and malpractice is that PSI as owner, operator and
23 TORTS LAST SET
manager of Medical City Hospital, "did not perform the
necessary supervision nor exercise diligent efforts in the
supervision of Drs. Ampil and Fuentes and its nursing staff,
resident doctors, and medical interns who assisted Drs. Ampil
and Fuentes in the performance of their duties as
surgeons."34 Premised on the doctrine of corporate negligence,
the trial court held that PSI is directly liable for such breach of
duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as
the judicial answer to the problem of allocating hospital’s
liability for the negligent acts of health practitioners, absent
facts to support the application of respondeat superior or
apparent authority. Its formulation proceeds from the
judiciary’s acknowledgment that in these modern times, the
duty of providing quality medical service is no longer the sole
prerogative and responsibility of the physician. The modern
hospitals have changed structure. Hospitals now tend to
organize a highly professional medical staff whose
competence and performance need to be monitored by the
hospitals commensurate with their inherent responsibility to
provide quality medical care.35
The doctrine has its genesis in Darling v. Charleston
Community Hospital.36 There, the Supreme Court of Illinois
held that "the jury could have found a hospital negligent, inter
alia, in failing to have a sufficient number of trained nurses
attending the patient; failing to require a consultation with or
examination by members of the hospital staff; and failing to
review the treatment rendered to the patient." On the basis of
Darling, other jurisdictions held that a hospital’s corporate
negligence extends to permitting a physician known to be
incompetent to practice at the hospital. 37 With the passage of
time, more duties were expected from hospitals, among them:
(1) the use of reasonable care in the maintenance of safe and
adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or
supervision of all persons who practice medicine within its
walls; and (4) the formulation, adoption and enforcement of
adequate rules and policies that ensure quality care for its
patients.38 Thus, in Tucson Medical Center, Inc. v.
Misevich,39 it was held that a hospital, following the doctrine
of corporate responsibility, has the duty to see that it meets the
standards of responsibilities for the care of patients. Such duty
includes the proper supervision of the members of its medical
staff. And in Bost v. Riley,40 the court concluded that a patient
who enters a hospital does so with the reasonable expectation
that it will attempt to cure him. The hospital accordingly has
the duty to make a reasonable effort to monitor and oversee
the treatment prescribed and administered by the physicians
practicing in its premises.
In the present case, it was duly established that PSI operates
the Medical City Hospital for the purpose and under the
concept of providing comprehensive medical services to the
public. Accordingly, it has the duty to exercise reasonable care
to protect from harm all patients admitted into its facility for
medical treatment. Unfortunately, PSI failed to perform such
duty. The findings of the trial court are convincing, thus:
x x x PSI’s liability is traceable to its failure to conduct an
investigation of the matter reported in the nota bene of the
count nurse. Such failure established PSI’s part in the dark
conspiracy of silence and concealment about the gauzes.
Ethical considerations, if not also legal, dictated the holding of
an immediate inquiry into the events, if not for the benefit of
the patient to whom the duty is primarily owed, then in the
interest of arriving at the truth. The Court cannot accept that
the medical and the healing professions, through their
members like defendant surgeons, and their institutions like
PSI’s hospital facility, can callously turn their backs on and
disregard even a mere probability of mistake or negligence by
refusing or failing to investigate a report of such seriousness as
the one in Natividad’s case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated degree of learning, skill and experience required by his
on Natividad with the assistance of the Medical City profession. At the same time, he must apply reasonable care
Hospital’s staff, composed of resident doctors, nurses, and and diligence in the exercise of his skill and the application of
interns. As such, it is reasonable to conclude that PSI, as the his knowledge, and exert his best judgment.
operator of the hospital, has actual or constructive knowledge WHEREFORE, we DENY all the petitions and AFFIRM the
of the procedures carried out, particularly the report of the challenged Decision of the Court of Appeals in CA-G.R. CV
attending nurses that the two pieces of gauze were missing. In No. 42062 and CA-G.R. SP No. 32198.
Fridena v. Evans,41 it was held that a corporation is bound by
the knowledge acquired by or notice given to its agents or Costs against petitioners PSI and Dr. Miguel Ampil.
officers within the scope of their authority and in reference to SO ORDERED.
a matter to which their authority extends. This means that the
knowledge of any of the staff of Medical City Hospital ANGELINA SANDOVAL-GUTIERREZ
constitutes knowledge of PSI. Now, the failure of PSI, despite Associate Justice
the attending nurses’ report, to investigate and inform
Natividad regarding the missing gauzes amounts to callous
negligence. Not only did PSI breach its duties to oversee or
supervise all persons who practice medicine within its walls, it
also failed to take an active step in fixing the negligence
committed. This renders PSI, not only vicariously liable for
the negligence of Dr. Ampil under Article 2180 of the Civil
Code, but also directly liable for its own negligence under
Article 2176. In Fridena, the Supreme Court of Arizona held:
x x x In recent years, however, the duty of care owed to the
patient by the hospital has expanded. The emerging trend is to
hold the hospital responsible where the hospital has failed to
monitor and review medical services being provided within its
walls. See Kahn Hospital Malpractice Prevention, 27 De Paul .
Rev. 23 (1977).
Among the cases indicative of the ‘emerging trend’ is Purcell
v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In
Purcell, the hospital argued that it could not be held liable for
the malpractice of a medical practitioner because he was an
independent contractor within the hospital. The Court of
Appeals pointed out that the hospital had created a
professional staff whose competence and performance was to
be monitored and reviewed by the governing body of the
hospital, and the court held that a hospital would be negligent
where it had knowledge or reason to believe that a doctor
using the facilities was employing a method of treatment or
care which fell below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of
Appeals held that a hospital has certain inherent
responsibilities regarding the quality of medical care furnished
to patients within its walls and it must meet the standards of
responsibility commensurate with this undertaking. Beeck v.
Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153
(1972). This court has confirmed the rulings of the Court of
Appeals that a hospital has the duty of supervising the
competence of the doctors on its staff. x x x.
x x x x x x
In the amended complaint, the plaintiffs did plead that the
operation was performed at the hospital with its knowledge,
aid, and assistance, and that the negligence of the defendants
was the proximate cause of the patient’s injuries. We find that
such general allegations of negligence, along with the
evidence produced at the trial of this case, are sufficient to
support the hospital’s liability based on the theory of negligent
supervision."
Anent the corollary issue of whether PSI is solidarily liable
with Dr. Ampil for damages, let it be emphasized that PSI,
apart from a general denial of its responsibility, failed to
adduce evidence showing that it exercised the diligence of a
good father of a family in the accreditation and supervision of
the latter. In neglecting to offer such proof, PSI failed to
discharge its burden under the last paragraph of Article 2180
cited earlier, and, therefore, must be adjudged solidarily liable
with Dr. Ampil. Moreover, as we have discussed, PSI is also
directly liable to the Aganas.
One final word. Once a physician undertakes the treatment and
care of a patient, the law imposes on him certain obligations.
In order to escape liability, he must possess that reasonable

24 TORTS LAST SET

 54
G.R. No. 158996             November 14, 2008
SPOUSES FREDELICTO FLORES (deceased) and
FELICISIMA FLORES, petitioners,
vs.
SPOUSES DOMINADOR PINEDA and VIRGINIA
SACLOLO, and FLORENCIO, CANDIDA, MARTA,
GODOFREDO, BALTAZAR and LUCENA, all surnamed
PINEDA, as heirs of the deceased TERESITA S. PINEDA,
and UNITED DOCTORS MEDICAL CENTER,
INC., respondents.
DECISION
BRION, J.:
This petition involves a medical negligence case that was
elevated to this Court through an appeal by certiorari under
Rule 45 of the Rules of Court. The petition assails the
Decision1 of the Court of Appeals (CA) in CA G.R. CV No.
63234, which affirmed with modification the Decision 2 of the
Regional Trial Court (RTC) of Nueva Ecija, Branch 37 in
Civil Case No. SD-1233. The dispositive portion of the
assailed CA decision states:
WHEREFORE, premises considered, the assailed
Decision of the Regional Trial Court of Baloc, Sto.
Domingo, Nueva Ecija, Branch 37 is hereby
AFFIRMED but with modifications as follows:
1) Ordering defendant-appellants Dr. and
Dra. Fredelicto A. Flores and the United
Doctors Medical Center, Inc. to jointly and
severally pay the plaintiff-appellees - heirs
of Teresita Pineda, namely, Spouses
Dominador Pineda and Virginia Saclolo and
Florencio, Candida, Marta, Godofredo,
Baltazar and Lucena, all surnamed Pineda,
the sum of P400,000.00 by way of moral
damages;
2) Ordering the above-named defendant-
appellants to jointly and severally pay the
above-named plaintiff-appellees the sum
of P100,000.00 by way of exemplary
damages;
3) Ordering the above-named defendant-
appellants to jointly and severally pay the
above-named plaintiff-appellees the sum
of P36,000.00 by way of actual and
compensatory damages; and
4) Deleting the award of attorney's fees and
costs of suit.
SO ORDERED.
While this case essentially involves questions of facts, we
opted for the requested review in light of questions we have on
the findings of negligence below, on the awarded damages and
costs, and on the importance of this type of ruling on medical
practice.3
BACKGROUND FACTS
Teresita Pineda (Teresita) was a 51-year old unmarried woman
living in Sto. Domingo, Nueva Ecija. She consulted on April
17, 1987 her townmate, Dr. Fredelicto Flores, regarding her
medical condition. She complained of general body weakness,
loss of appetite, frequent urination and thirst, and on-and-off
vaginal bleeding. Dr. Fredelicto initially interviewed the
patient and asked for the history of her monthly period to
analyze the probable cause of the vaginal bleeding. He advised
her to return the following week or to go to the United Doctors
Medical Center (UDMC) in Quezon City for a general check-
up. As for her other symptoms, he suspected that Teresita
might be suffering from diabetes and told her to continue her
medications.4
25 TORTS LAST SET
Teresita did not return the next week as advised. However,
when her condition persisted, she went to further consult Dr.
Flores at his UDMC clinic on April 28, 1987, travelling for at
least two hours from Nueva Ecija to Quezon City with her
sister, Lucena Pineda. They arrived at UDMC at around 11:15
a.m.. Lucena later testified that her sister was then so weak
that she had to lie down on the couch of the clinic while they
waited for the doctor. When Dr. Fredelicto arrived, he did a
routine check-up and ordered Teresita's admission to the
hospital. In the admission slip, he directed the hospital staff to
prepare the patient for an "on call" D&C5 operation to be
performed by his wife, Dr. Felicisima Flores (Dr. Felicisima).
Teresita was brought to her hospital room at around 12 noon;
the hospital staff forthwith took her blood and urine samples
for the laboratory tests6 which Dr. Fredelicto ordered.
At 2:40 p.m. of that same day, Teresita was taken to the
operating room. It was only then that she met Dr. Felicisima,
an obstetrician and gynecologist. The two doctors - Dr.
Felicisima and Dr. Fredelicto, conferred on the patient's
medical condition, while the resident physician and the
medical intern gave Dr. Felicisima their own briefings. She
also interviewed and conducted an internal vaginal
examination of the patient which lasted for about 15 minutes.
Dr. Felicisima thereafter called up the laboratory for the
results of the tests. At that time, only the results for the blood
sugar (BS), uric acid determination, cholesterol determination,
and complete blood count (CBC) were available. Teresita's BS
count was 10.67mmol/l7 and her CBC was 109g/l.8
Based on these preparations, Dr. Felicisima proceeded with
the D&C operation with Dr. Fredelicto administering the
general anesthesia. The D&C operation lasted for about 10 to
15 minutes. By 3:40 p.m., Teresita was wheeled back to her
room.
A day after the operation (or on April 29, 1987), Teresita was
subjected to an ultrasound examination as a confirmatory
procedure. The results showed that she had an enlarged uterus
and myoma uteri.9 Dr. Felicisima, however, advised Teresita
that she could spend her recovery period at home. Still feeling
weak, Teresita opted for hospital confinement.
Teresita's complete laboratory examination results came only
on that day (April 29, 1987). Teresita's urinalysis showed a
three plus sign (+++) indicating that the sugar in her urine was
very high. She was then placed under the care of Dr. Amado
Jorge, an internist.
By April 30, 1987, Teresita's condition had worsened. She
experienced difficulty in breathing and was rushed to the
intensive care unit. Further tests confirmed that she was
suffering from Diabetes Mellitus Type II.10 Insulin was
administered on the patient, but the medication might have
arrived too late. Due to complications induced by diabetes,
Teresita died in the morning of May 6, 1987.11
Believing that Teresita's death resulted from the negligent
handling of her medical needs, her family (respondents)
instituted an action for damages against Dr. Fredelicto Flores
and Dr. Felicisima Flores (collectively referred to as
the petitioner spouses) before the RTC of Nueva Ecija.
The RTC ruled in favor of Teresita's family and awarded
actual, moral, and exemplary damages, plus attorney's fees and
costs.12 The CA affirmed the judgment, but modified the
amount of damages awarded and deleted the award for
attorney's fees and costs of suit.13
Through this petition for review on certiorari, the petitioner
spouses -Dr. Fredelicto (now deceased) and Dr. Felicisima
Flores - allege that the RTC and CA committed a reversible
error in finding them liable through negligence for the death of
Teresita Pineda.
ASSIGNMENT OF ERRORS
The petitioner spouses contend that they exercised due care
and prudence in the performance of their duties as medical
professionals. They had attended to the patient to the best of
their abilities and undertook the management of her case based
on her complaint of an on-and-off vaginal bleeding. In
addition, they claim that nothing on record shows that the
death of Teresita could have been averted had they employed
means other than what they had adopted in the ministration of
the patient.
THE COURT'S RULING
We do not find the petition meritorious.
The respondents' claim for damages is predicated on their
allegation that the decision of the petitioner spouses to proceed
with the D&C operation, notwithstanding Teresita's condition
and the laboratory test results, amounted to negligence. On the
other hand, the petitioner spouses contend that a D&C
operation is the proper and accepted procedure to address
vaginal bleeding - the medical problem presented to them.
Given that the patient died after the D&C, the core issue is
whether the decision to proceed with the D&C operation was
an honest mistake of judgment or one amounting to
negligence.
Elements of a Medical Negligence Case
A medical negligence case is a type of claim to redress a
wrong committed by a medical professional, that has caused
bodily harm to or the death of a patient. There are four
elements involved in a medical negligence case, namely: duty,
breach, injury, and proximate causation.14
Duty refers to the standard of behavior which imposes
restrictions on one's conduct.15 The standard in turn refers to
the amount of competence associated with the proper
discharge of the profession. A physician is expected to use at
least the same level of care that any other reasonably
competent doctor would use under the same circumstances.
Breach of duty occurs when the physician fails to comply with
these professional standards. If injury results to the patient as a
result of this breach, the physician is answerable for
negligence.16
As in any civil action, the burden to prove the existence of the
necessary elements rests with the plaintiff. 17 To successfully
pursue a claim, the plaintiff must prove by preponderance of
evidence that, one, the physician either failed to do something
which a reasonably prudent health care provider would have
done, or that he did something that a reasonably prudent
provider would not have done; and two, the failure or action
caused injury to the patient.18 Expert testimony is therefore
essential since the factual issue of whether a physician or
surgeon has exercised the requisite degree of skill and care in
the treatment of his patient is generally a matter of expert
opinion.19
Standard of Care and Breach of Duty
D&C is the classic gynecologic procedure for the evaluation
and possible therapeutic treatment for abnormal vaginal
bleeding.20 That this is the recognized procedure is confirmed
by Drs. Salvador Nieto (Dr. Nieto) and Joselito Mercado (Dr.
Mercado), the expert witnesses presented by the respondents:
DR. NIETO: [W]hat I know among obstetricians, if
there is bleeding, they perform what we call D&C for
diagnostic purposes.
xxx xxx xxx
Q: So are you trying to tell the Court that D&C can
be a diagnostic treatment?
A: Yes, sir. Any doctor knows this.21
Dr. Mercado, however, objected with respect to the time the
D&C operation should have been conducted in Teresita's case.
He opined that given the blood sugar level of Teresita, her
diabetic condition should have been addressed first:
Q: Why do you consider the time of performance of
the D&C not appropriate?
26 TORTS LAST SET
A: Because I have read the record and I have seen the
urinalysis, [there is] spillage in the urine, and blood
sugar was 10.67
Q: What is the significance of the spillage in the
urine?
A: It is a sign that the blood sugar is very high.
Q: Does it indicate sickness?
A: 80 to 95% it means diabetes mellitus. The blood
sugar was 10.67.
xxx xxx xxx
COURT: In other words, the operation conducted on
the patient, your opinion, that it is inappropriate?
A: The timing of [when] the D&C [was] done, based
on the record, in my personal opinion, that D&C
should be postponed a day or two.22
The petitioner spouses countered that, at the time of the
operation, there was nothing to indicate that Teresita was
afflicted with diabetes: a blood sugar level of 10.67mmol/l did
not necessarily mean that she was a diabetic considering that
this was random blood sugar;23 there were other factors that
might have caused Teresita's blood sugar to rise such as the
taking of blood samples during lunchtime and while patient
was being given intra-venous dextrose.24 Furthermore, they
claim that their principal concern was to determine the cause
of and to stop the vaginal bleeding.
The petitioner spouses' contentions, in our view, miss several
points. First, as early as April 17, 1987, Teresita was already
suspected to be suffering from diabetes.25 This suspicion again
arose right before the D&C operation on April 28, 1987 when
the laboratory result revealed Teresita's increased blood sugar
level.26 Unfortunately, the petitioner spouses did not wait for
the full medical laboratory results before proceeding with the
D&C, a fact that was never considered in the courts
below. Second, the petitioner spouses were duly advised that
the patient was experiencing general body weakness, loss of
appetite, frequent urination, and thirst - all of which are classic
symptoms of diabetes. 27 When a patient exhibits symptoms
typical of a particular disease, these symptoms should, at the
very least, alert the physician of the possibility that the patient
may be afflicted with the suspected disease:
Expert testimony for the plaintiff showed that] tests should have been ordered immediately
on admission to the hospital in view of the symptoms presented, and that failure to recognize
the existence of diabetes constitutes negligence.28
Third, the petitioner spouses cannot claim that their principal
concern was the vaginal bleeding and should not therefore be
held accountable for complications coming from other
sources. This is a very narrow and self-serving view that even
reflects on their competence.
Taken together, we find that reasonable prudence would have
shown that diabetes and its complications were foreseeable
harm that should have been taken into consideration by the
petitioner spouses. If a patient suffers from some disability
that increases the magnitude of risk to him, that disability must
be taken into account so long as it is or should have been
known to the physician.29 And when the patient is exposed to
an increased risk, it is incumbent upon the physician to take
commensurate and adequate precautions.
Taking into account Teresita's high blood sugar,30 Dr.
Mendoza opined that the attending physician should have
postponed the D&C operation in order to conduct a
confirmatory test to make a conclusive diagnosis of diabetes
and to refer the case to an internist or diabetologist. This was
corroborated by Dr. Delfin Tan (Dr. Tan), an obstetrician and
gynecologist, who stated that the patient's diabetes should
have been managed by an internist prior to, during, and
after the operation.31
Apart from bleeding as a complication of pregnancy, vaginal
bleeding is only rarely so heavy and life-threatening that
urgent first-aid measures are required. 32 Indeed, the expert
witnesses declared that a D&C operation on a hyperglycemic
patient may be justified only when it is an emergency case -
when there is profuse vaginal bleeding. In this case, we choose
not to rely on the assertions of the petitioner spouses that there
was profuse bleeding, not only because the statements were
self-serving, but also because the petitioner spouses were
inconsistent in their testimonies. Dr. Fredelicto testified earlier
that on April 28, he personally saw the bleeding, 33 but later on
said that he did not see it and relied only on Teresita's
statement that she was bleeding. 34 He went on to state that he
scheduled the D&C operation without conducting any physical
examination on the patient.
The likely story is that although Teresita experienced vaginal
bleeding on April 28, it was not sufficiently profuse to
necessitate an immediate emergency D&C operation. Dr.
Tan35 and Dr. Mendoza36 both testified that the medical
records of Teresita failed to indicate that there was profuse
vaginal bleeding. The claim that there was profuse vaginal
bleeding although this was not reflected in the medical records
strikes us as odd since the main complaint is vaginal bleeding.
A medical record is the only document that maintains a long-
term transcription of patient care and as such, its maintenance
is considered a priority in hospital practice. Optimal record-
keeping includes all patient inter-actions. The records should
always be clear, objective, and up-to-date.37 Thus, a medical
record that does not indicate profuse medical bleeding speaks
loudly and clearly of what it does not contain.
That the D&C operation was conducted principally to
diagnose the cause of the vaginal bleeding further leads us to
conclude that it was merely an elective procedure, not an
emergency case. In an elective procedure, the physician must
conduct a thorough pre-operative evaluation of the patient in
order to adequately prepare her for the operation and minimize
possible risks and complications. The internist is responsible
for generating a comprehensive evaluation of all medical
problems during the pre-operative evaluation.38
The aim of pre-operative evaluation is not to screen
broadly for undiagnosed disease, but rather to
identify and quantify comorbidity that may impact on
the operative outcome. This evaluation is driven by
findings on history and physical examination
suggestive of organ system dysfunction…The goal is
to uncover problem areas that may require further
investigation or be amenable to preoperative
optimization.
If the preoperative evaluation uncovers significant
comorbidity or evidence of poor control of an
underlying disease process, consultation with an
internist or medical specialist may be required to
facilitate the work-up and direct management. In this
process, communication between the surgeons and
the consultants is essential to define realistic goals for
this optimization process and to expedite surgical
management.39 [Emphasis supplied.]
Significantly, the evidence strongly suggests that the pre-
operative evaluation was less than complete as the laboratory
results were fully reported only on the day following the D&C
operation. Dr. Felicisima only secured a telephone report of
the preliminary laboratory result prior to the D&C. This
preliminary report did not include the 3+ status of sugar in the
patient's urine40 - a result highly confirmatory of diabetes.
Because the D&C was merely an elective procedure, the
patient's uncontrolled hyperglycemia presented a far greater
risk than her on-and-off vaginal bleeding. The presence of
hyperglycemia in a surgical patient is associated with poor
clinical outcomes, and aggressive glycemic control positively
impacts on morbidity and mortality.41 Elective surgery in
people with uncontrolled diabetes  should preferably be
scheduled after acceptable glycemic control has been
achieved.42 According to Dr. Mercado, this is done by
administering insulin on the patient.43
27 TORTS LAST SET
The management approach in this kind of patients
always includes insulin therapy in combination with
dextrose and potassium infusion. Insulin xxx
promotes glucose uptake by the muscle and fat
cells while decreasing glucose production by the liver
xxx. The net effect is to lower blood glucose levels.44
The prudent move is to address the patient's hyperglycemic
state immediately and promptly before any other procedure is
undertaken. In this case, there was no evidence that insulin
was administered on Teresita prior to or during the D&C
operation. Insulin was only administered two days after the
operation.
As Dr. Tan testified, the patient's hyperglycemic condition
should have been managed not only before and during the
operation, but also immediately after. Despite the possibility
that Teresita was afflicted with diabetes, the possibility was
casually ignored even in the post-operative evaluation of the
patient; the concern, as the petitioner spouses expressly
admitted, was limited to the complaint of vaginal bleeding.
Interestingly, while the ultrasound test confirmed that Teresita
had a myoma in her uterus, she was advised that she could be
discharged a day after the operation and that her recovery
could take place at home. This advice implied that a day after
the operation and even after the complete laboratory results
were submitted, the petitioner spouses still did not recognize
any post-operative concern that would require the monitoring
of Teresita's condition in the hospital.
The above facts, point only to one conclusion - that the
petitioner spouses failed, as medical professionals, to comply
with their duty to observe the standard of care to be given to
hyperglycemic/diabetic patients undergoing surgery. Whether
this breach of duty was the proximate cause of Teresita's death
is a matter we shall next determine.
Injury and Causation
As previously mentioned, the critical and clinching factor in a
medical negligence case is proof of the causal
connection between the negligence which the evidence
established and the plaintiff's injuries;45 the plaintiff must
plead and prove not only that he had been injured and
defendant has been at fault, but also that the defendant's fault
caused the injury. A verdict in a malpractice action cannot be
based on speculation or conjecture. Causation must be proven
within a reasonable medical probability based upon competent
expert testimony.46
The respondents contend that unnecessarily subjecting
Teresita to a D&C operation without adequately preparing her,
aggravated her hyperglycemic state and caused her untimely
demise. The death certificate of Teresita lists down the
following causes of death:
Immediate cause: Cardiorespiratory arrest
Antecedent cause: Septicemic shock, ketoacido
Underlying cause: Diabetes Mellitus II
Other significant conditions
contributing to death: Renal Failure - Acute47
Stress, whether physical or emotional, is a factor that can
aggravate diabetes; a D&C operation is a form of physical
stress. Dr. Mendoza explained how surgical stress can
aggravate the patient's hyperglycemia: when stress occurs, the
diabetic's body, especially the autonomic system, reacts by
secreting hormones which are counter-regulatory; she can
have prolonged hyperglycemia which, if unchecked, could
lead to death.48 Medical literature further explains that if the
blood sugar has become very high, the patient becomes
comatose (diabetic coma). When this happens over several
days, the body uses its own fat to produce energy, and the
result is high levels of waste products (called ketones) in the
blood and urine (called diabetic ketoacidiosis, a medical
emergency with a significant mortality).49 This was apparently
what happened in Teresita's case; in fact, after she had been
referred to the internist Dr. Jorge, laboratory test showed that
her blood sugar level shot up to 14.0mmol/l, way above the
normal blood sugar range. Thus, between the D&C and death
was the diabetic complication that could have been prevented
with the observance of standard medical precautions. The
D&C operation and Teresita's death due to aggravated diabetic
condition is therefore sufficiently established.
The trial court and the appellate court pinned the liability for
Teresita's death on both the petitioner spouses and this Court
finds no reason to rule otherwise. However, we clarify that Dr.
Fredelicto's negligence is not solely the act of ordering an "on
call" D&C operation when he was mainly
an anaesthesiologist who had made a very cursory
examination of the patient's vaginal bleeding complaint.
Rather, it was his failure from the very start to identify and
confirm, despite the patient's complaints and his own
suspicions, that diabetes was a risk factor that should be
guarded against, and his participation in the imprudent
decision to proceed with the D&C operation despite his early
suspicion and the confirmatory early laboratory results. The
latter point comes out clearly from the following exchange
during the trial:
Q: On what aspect did you and your wife consult
[with] each other?
A: We discussed on the finding of the laboratory
[results] because the hemoglobin was below normal,
the blood sugar was elevated, so that we have to
evaluate these laboratory results - what it means.
Q: So it was you and your wife who made the
evaluation when it was phoned in?
A: Yes, sir.
Q: Did your wife, before performing D&C ask your
opinion whether or not she can proceed?
A: Yes, anyway, she asked me whether we can do
D&C based on my experience.
Q: And your answer was in the positive
notwithstanding the elevation of blood sugar?
A: Yes, sir, it was both our disposition to do the
D&C. [Emphasis supplied.]50
If Dr. Fredelicto believed himself to be incompetent to treat
the diabetes, not being an internist or a diabetologist (for
which reason he referred Teresita to Dr. Jorge), 51 he should
have likewise refrained from making a decision to proceed
with the D&C operation since he was niether an obstetrician
nor a gynecologist.
These findings lead us to the conclusion that the decision to
proceed with the D&C operation, notwithstanding Teresita's
hyperglycemia and without adequately preparing her for the
procedure, was contrary to the standards observed by the
medical profession. Deviation from this standard amounted to
a breach of duty which resulted in the patient's death. Due to
this negligent conduct, liability must attach to the petitioner
spouses.
Liability of the Hospital
In the proceedings below, UDMC was the spouses Flores' co-
defendant. The RTC found the hospital jointly and severally
liable with the petitioner spouses, which decision the CA
affirmed. In a Resolution dated August 28, 2006, this Court
however denied UDMC's petition for review on certiorari.
Since UDMC's appeal has been denied and they are not parties
to this case, we find it unnecessary to delve on the matter.
Consequently, the RTC's decision, as affirmed by the CA,
stands.
Award of Damages
28 TORTS LAST SET
Both the trial and the appellate court awarded actual damages
as compensation for the pecuniary loss the respondents
suffered. The loss was presented in terms of the hospital bills
and expenses the respondents incurred on account of Teresita's
confinement and death. The settled rule is that a plaintiff is
entitled to be compensated for proven pecuniary loss. 52 This
proof the respondents successfully presented. Thus, we affirm
the award of actual damages of P36,000.00 representing the
hospital expenses the patient incurred.
In addition to the award for actual damages, the respondent
heirs of Teresita are likewise entitled to P50,000.00 as death
indemnity pursuant to Article 2206 of the Civil Code, which
states that "the amount of damages for death caused by a
xxx quasi-delict shall be at least three thousand pesos, 53 even
though there may have been mitigating circumstances
xxx." This is a question of law that the CA missed in its
decision and which we now decide in the respondents' favor.
The same article allows the recovery of moral damages in case
of death caused by a quasi-delict and enumerates the spouse,
legitimate or illegitimate ascendants or descendants as the
persons entitled thereto. Moral damages are designed to
compensate the claimant for the injury suffered, that is, for the
mental anguish, serious anxiety, wounded feelings which the
respondents herein must have surely felt with the unexpected
loss of their daughter. We affirm the appellate court's award
of P400,000.00 by way of moral damages to the respondents.
We similarly affirm the grant of exemplary damages.
Exemplary damages are imposed by way of example or
correction for the public good.54 Because of the petitioner
spouses' negligence in subjecting Teresita to an operation
without first recognizing and addressing her diabetic
condition, the appellate court awarded exemplary damages to
the respondents in the amount of P100,000.00. Public policy
requires such imposition to suppress the wanton acts of an
offender.55 We therefore affirm the CA's award as an example
to the medical profession and to stress that the public good
requires stricter measures to avoid the repetition of the type of
medical malpractice that happened in this case.
With the award of exemplary damages, the grant of attorney's
fees is legally in order.56 We therefore reverse the CA decision
deleting these awards, and grant the respondents the amount
of P100,000.00 as attorney's fees taking into consideration the
legal route this case has taken.
WHEREFORE, we AFFIRM the Decision of the CA dated
June 20, 2003 in CA G.R. CV No. 63234 finding petitioner
spouses liable for negligent medical practice. We
likewise AFFIRM the awards of actual and compensatory
damages of P36,000.00; moral damages of P400,000.00; and
exemplary damages of P100,000.00.
We MODIFY the CA Decision by additionally granting an
award of P50,000.00 as death indemnity and by reversing the
deletion of the award of attorney's fees and costs and restoring
the award of P100,000.00 as attorney's fees. Costs of litigation
are adjudged against petitioner spouses.
To summarize, the following awards shall be paid to the
family of the late Teresita Pineda:
1. The sum of P36,000.00 by way of actual and compensatory
damages;
2. The sum of P50,000.00 by way of death indemnity;
3. The sum of P400,000.00 by way of moral damages;
4. The sum of P100,000.00 by way of exemplary damages;
5. The sum of P100,000.00 by way of attorney's fees; and
6. Costs.
SO ORDERED.
G.R. No. 178763               April 21, 2009
PETER PAUL PATRICK LUCAS, FATIMA GLADYS
LUCAS, ABBEYGAIL LUCAS AND GILLIAN
LUCAS, Petitioners,
vs.
DR. PROSPERO MA. C. TUAÑ O, Respondent.
DECISION
CHICO-NAZARIO, J.:
In this petition for review on certiorari 1 under Rule 45 of the
Revised Rules of Court, petitioners Peter Paul Patrick Lucas,
Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek
the reversal of the 27 September 2006 Decision 2 and 3 July
2007 Resolution,3 both of the Court of Appeals in CA-G.R.
CV No. 68666, entitled "Peter Paul Patrick Lucas, Fatima
Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero
Ma. C. Tuañ o."
In the questioned decision and resolution, the Court of
Appeals affirmed the 14 July 2000 Decision of the Regional
Trial Court (RTC), Branch 150, Makati City, dismissing the
complaint filed by petitioners in a civil case entitled, "Peter
Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas
and Gillian Lucas v. Prospero Ma. C. Tuañ o," docketed as
Civil Case No. 92-2482.
From the record of the case, the established factual
antecedents of the present petition are:
Sometime in August 1988, petitioner Peter Paul Patrick Lucas
(Peter) contracted "sore eyes" in his right eye.
On 2 September 1988, complaining of a red right eye and
swollen eyelid, Peter made use of his health care insurance
issued by Philamcare Health Systems, Inc. (Philamcare), for a
possible consult. The Philamcare Coordinator, Dr. Edwin Oca,
M.D., referred Peter to respondent, Dr. Prospero Ma. C.
Tuañ o, M.D. (Dr. Tuañ o), an ophthalmologist at St. Luke’s
Medical Center, for an eye consult.
Upon consultation with Dr. Tuañ o, Peter narrated that it had
been nine (9) days since the problem with his right eye began;
and that he was already taking Maxitrol to address the problem
in his eye. According to Dr. Tuañ o, he performed "ocular
routine examination" on Peter’s eyes, wherein: (1) a gross
examination of Peter’s eyes and their surrounding area was
made; (2) Peter’s visual acuity were taken; (3) Peter’s eyes
were palpated to check the intraocular pressure of each; (4) the
motility of Peter’s eyes was observed; and (5) the
ophthalmoscopy4 on Peter’s eyes was used. On that particular
consultation, Dr. Tuañ o diagnosed that Peter was suffering
from conjunctivitis5 or "sore eyes." Dr. Tuañ o then prescribed
Spersacet-C6 eye drops for Peter and told the latter to return
for follow-up after one week.
As instructed, Peter went back to Dr. Tuañ o on 9 September
1988. Upon examination, Dr. Tuañ o told Peter that the "sore
eyes" in the latter’s right eye had already cleared up and he
could discontinue the Spersacet-C. However, the same eye
developed Epidemic Kerato Conjunctivitis (EKC),7 a viral
infection. To address the new problem with Peter’s right eye,
Dr. Tuañ o prescribed to the former a steroid-based eye drop
called Maxitrol,8 a dosage of six (6) drops per day. 9 To recall,
Peter had already been using Maxitrol prior to his consult with
Dr. Tuañ o.
On 21 September 1988, Peter saw Dr. Tuañ o for a follow-up
consultation. After examining both of Peter’s eyes, Dr. Tuañ o
instructed the former to taper down10 the dosage of Maxitrol,
29 TORTS LAST SET
because the EKC in his right eye had already resolved. Dr.
Tuañ o specifically cautioned Peter that, being a steroid,
Maxitrol had to be withdrawn gradually; otherwise, the EKC
might recur.11
Complaining of feeling as if there was something in his eyes,
Peter returned to Dr. Tuañ o for another check-up on 6 October
1988. Dr. Tuañ o examined Peter’s eyes and found that the
right eye had once more developed EKC. So, Dr. Tuañ o
instructed Peter to resume the use of Maxitrol at six (6) drops
per day.
On his way home, Peter was unable to get a hold of Maxitrol,
as it was out of stock. Consequently, Peter was told by Dr.
Tuano to take, instead, Blephamide12 another steroid-based
medication, but with a lower concentration, as substitute for
the unavailable Maxitrol, to be used three (3) times a day for
five (5) days; two (2) times a day for five (5) days; and then
just once a day.13
Several days later, on 18 October 1988, Peter went to see Dr.
Tuañ o at his clinic, alleging severe eye pain, feeling as if his
eyes were about to "pop-out," a headache and blurred vision.
Dr. Tuañ o examined Peter’s eyes and discovered that the EKC
was again present in his right eye. As a result, Dr. Tuañ o told
Peter to resume the maximum dosage of Blephamide.
Dr. Tuañ o saw Peter once more at the former’s clinic on 4
November 1988. Dr. Tuañ o’s examination showed that only
the periphery of Peter’s right eye was positive for EKC; hence,
Dr. Tuañ o prescribed a lower dosage of Blephamide.
It was also about this time that Fatima Gladys Lucas (Fatima),
Peter’s spouse, read the accompanying literature of Maxitrol
and found therein the following warning against the prolonged
use of such steroids:
WARNING:
Prolonged use may result in glaucoma, with damage to the
optic nerve, defects in visual acuity and fields of vision, and
posterior, subcapsular cataract formation. Prolonged use may
suppress the host response and thus increase the hazard of
secondary ocular infractions, in those diseases causing
thinning of the cornea or sclera, perforations have been known
to occur with the use of topical steroids. In acute purulent
conditions of the eye, steroids may mask infection or enhance
existing infection. If these products are used for 10 days or
longer, intraocular pressure should be routinely monitored
even though it may be difficult in children and uncooperative
patients.
Employment of steroid medication in the treatment of herpes
simplex requires great caution.
xxxx
ADVERSE REACTIONS:
Adverse reactions have occurred with steroid/anti-infective
combination drugs which can be attributed to the steroid
component, the anti-infective component, or the combination.
Exact incidence figures are not available since no denominator
of treated patients is available.
Reactions occurring most often from the presence of the anti-
infective ingredients are allergic sensitizations. The reactions
due to the steroid component in decreasing order to frequency
are elevation of intra-ocular pressure (IOP) with possible
development of glaucoma, infrequent optic nerve damage;
posterior subcapsular cataract formation; and delayed wound
healing.
Secondary infection: The development of secondary has
occurred after use of combination containing steroids and
antimicrobials. Fungal infections of the correa are particularly
prone to develop coincidentally with long-term applications of
steroid. The possibility of fungal invasion must be considered
in any persistent corneal ulceration where steroid treatment
has been used.
Secondary bacterial ocular infection following suppression of
host responses also occurs.
On 26 November 1988, Peter returned to Dr. Tuañ o’s clinic,
complaining of "feeling worse."14 It appeared that the EKC
had spread to the whole of Peter’s right eye yet again. Thus,
Dr. Tuañ o instructed Peter to resume the use of Maxitrol.
Petitioners averred that Peter already made mention to Dr.
Tuañ o during said visit of the above-quoted warning against
the prolonged use of steroids, but Dr. Tuañ o supposedly
brushed aside Peter’s concern as mere paranoia, even assuring
him that the former was taking care of him (Peter).
Petitioners further alleged that after Peter’s 26 November 1988
visit to Dr. Tuañ o, Peter continued to suffer pain in his right
eye, which seemed to "progress," with the ache intensifying
and becoming more frequent.
Upon waking in the morning of 13 December 1988, Peter had
no vision in his right eye. Fatima observed that Peter’s right
eye appeared to be bloody and swollen.15 Thus, spouses Peter
and Fatima rushed to the clinic of Dr. Tuañ o. Peter reported to
Dr. Tuañ o that he had been suffering from constant headache
in the afternoon and blurring of vision.
Upon examination, Dr. Tuañ o noted the hardness of Peter’s
right eye. With the use of a tonometer 16 to verify the exact
intraocular pressure17 (IOP) of Peter’s eyes, Dr. Tuañ o
discovered that the tension in Peter’s right eye was 39.0 Hg,
while that of his left was 17.0 Hg.18 Since the tension in
Peter’s right eye was way over the normal IOP, which merely
ranged from 10.0 Hg to 21.0 Hg,19 Dr. Tuañ o ordered20 him to
immediately discontinue the use of Maxitrol and prescribed to
the latter Diamox21 and Normoglaucon, instead.22 Dr. Tuañ o
also required Peter to go for daily check-up in order for the
former to closely monitor the pressure of the latter’s eyes.
On 15 December 1988, the tonometer reading of Peter’s right
eye yielded a high normal level, i.e., 21.0 Hg. Hence, Dr.
Tuañ o told Peter to continue using Diamox and
Normoglaucon. But upon Peter’s complaint of "stomach pains
and tingling sensation in his fingers," 23 Dr. Tuañ o
discontinued Peter’s use of Diamox.24
Peter went to see another ophthalmologist, Dr. Ramon T.
Batungbacal (Dr. Batungbacal), on 21 December 1988, who
allegedly conducted a complete ophthalmological examination
of Peter’s eyes. Dr. Batungbacal’s diagnosis was
Glaucoma25 O.D.26 He recommended Laser
Trabeculoplasty27 for Peter’s right eye.
When Peter returned to Dr. Tuañ o on 23 December 1988,28 the
tonometer measured the IOP of Peter’s right eye to be 41.0
Hg,29 again, way above normal. Dr. Tuañ o addressed the
problem by advising Peter to resume taking Diamox along
with Normoglaucon.
During the Christmas holidays, Peter supposedly stayed in bed
most of the time and was not able to celebrate the season with
his family because of the debilitating effects of Diamox.30
On 28 December 1988, during one of Peter’s regular follow-
ups with Dr. Tuañ o, the doctor conducted another ocular
routine examination of Peter’s eyes. Dr. Tuañ o noted the
30 TORTS LAST SET
recurrence of EKC in Peter’s right eye. Considering, however,
that the IOP of Peter’s right eye was still quite high at 41.0
Hg, Dr. Tuañ o was at a loss as to how to balance the treatment
of Peter’s EKC vis-à -vis the presence of glaucoma in the same
eye. Dr. Tuañ o, thus, referred Peter to Dr. Manuel B. Agulto,
M.D. (Dr. Agulto), another ophthalmologist specializing in the
treatment of glaucoma.31 Dr. Tuañ o’s letter of referral to Dr.
Agulto stated that:
Referring to you Mr. Peter Lucas for evaluation & possible
management. I initially saw him Sept. 2, 1988 because of
conjunctivitis. The latter resolved and he developed EKC for
which I gave Maxitrol. The EKC was recurrent after stopping
steroid drops. Around 1 month of steroid treatment, he noted
blurring of vision & pain on the R. however, I continued the
steroids for the sake of the EKC. A month ago, I noted iris
atrophy, so I took the IOP and it was definitely elevated. I
stopped the steroids immediately and has (sic) been treating
him medically.
It seems that the IOP can be controlled only with oral Diamox,
and at the moment, the EKC has recurred and I’m in a fix
whether to resume the steroid or not considering that the IOP
is still uncontrolled.32
On 29 December 1988, Peter went to see Dr. Agulto at the
latter’s clinic. Several tests were conducted thereat to evaluate
the extent of Peter’s condition. Dr. Agulto wrote Dr. Tuañ o a
letter containing the following findings and recommendations:
Thanks for sending Peter Lucas. On examination conducted
vision was 20/25 R and 20/20L. Tension curve 19 R and 15 L
at 1210 H while on Normoglaucon BID OD & Diamox ½ tab
every 6h po.
Slit lamp evaluation33 disclosed subepithelial corneal defect
outer OD. There was circumferential peripheral iris atrophy,
OD. The lenses were clear.
Funduscopy34 showed vertical cup disc of 0.85 R and 0.6 L
with temporal slope R>L.
Zeiss gonioscopy35 revealed basically open angles both eyes
with occasional PAS,36 OD.
Rolly, I feel that Peter Lucas has really sustained significant
glaucoma damage. I suggest that we do a baseline visual fields
and push medication to lowest possible levels. If I may
suggest further, I think we should prescribe
Timolol37 BID38 OD in lieu of Normoglaucon. If the IOP is
still inadequate, we may try D’epifrin39 BID OD (despite low
PAS). I’m in favor of retaining Diamox or similar CAI.40
If fields show further loss in say – 3 mos. then we should
consider trabeculoplasty.
I trust that this approach will prove reasonable for you and
Peter.41
Peter went to see Dr. Tuañ o on 31 December 1988, bearing
Dr. Agulto’s aforementioned letter. Though Peter’s right and
left eyes then had normal IOP of 21.0 Hg and 17.0 Hg,
respectively, Dr. Tuañ o still gave him a prescription for
Timolol B.I.D. so Peter could immediately start using said
medication. Regrettably, Timolol B.I.D. was out of stock, so
Dr. Tuañ o instructed Peter to just continue using Diamox and
Normoglaucon in the meantime.
Just two days later, on 2 January 1989, the IOP of Peter’s right
eye remained elevated at 21.0 Hg,42 as he had been without
Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuañ o conducted a visual field
study43 of Peter’s eyes, which revealed that the latter had
tubular vision44 in his right eye, while that of his left eye
remained normal. Dr. Tuañ o directed Peter to religiously use
the Diamox and Normoglaucon, as the tension of the latter’s
right eye went up even further to 41.0 Hg in just a matter of
two (2) days, in the meantime that Timolol B.I.D. and
D’epifrin were still not available in the market. Again, Dr.
Tuañ o advised Peter to come for regular check-up so his IOP
could be monitored.
Obediently, Peter went to see Dr. Tuañ o on the 7th, 13th, 16th
and 20th of January 1989 for check-up and IOP monitoring.
In the interregnum, however, Peter was prodded by his friends
to seek a second medical opinion. On 13 January 1989, Peter
consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an
ophthalmologist, who, in turn, referred Peter to Dr. Mario V.
Aquino, M.D. (Dr. Aquino), another ophthalmologist who
specializes in the treatment of glaucoma and who could
undertake the long term care of Peter’s eyes.
According to petitioners, after Dr. Aquino conducted an
extensive evaluation of Peter’s eyes, the said doctor informed
Peter that his eyes were relatively normal, though the right one
sometimes manifested maximum borderline tension. Dr.
Aquino also confirmed Dr. Tuañ o’s diagnosis of tubular
vision in Peter’s right eye. Petitioners claimed that Dr. Aquino
essentially told Peter that the latter’s condition would require
lifetime medication and follow-ups.
In May 1990 and June 1991, Peter underwent two (2)
procedures of laser trabeculoplasty to attempt to control the
high IOP of his right eye.
Claiming to have steroid-induced glaucoma 45 and blaming Dr.
Tuañ o for the same, Peter, joined by: (1) Fatima, his spouse 46;
(2) Abbeygail, his natural child47; and (3) Gillian, his
legitimate child48 with Fatima, instituted on 1 September 1992,
a civil complaint for damages against Dr. Tuañ o, before the
RTC, Branch 150, Quezon City. The case was docketed as
Civil Case No. 92-2482.
In their Complaint, petitioners specifically averred that as the
"direct consequence of [Peter’s] prolonged use of Maxitrol,
[he] suffered from steroid induced glaucoma which caused the
elevation of his intra-ocular pressure. The elevation of the
intra-ocular pressure of [Peter’s right eye] caused the
impairment of his vision which impairment is not curable and
may even lead to total blindness."49
Petitioners additionally alleged that the visual impairment of
Peter’s right eye caused him and his family so much grief.
Because of his present condition, Peter now needed close
medical supervision forever; he had already undergone two (2)
laser surgeries, with the possibility that more surgeries were
still needed in the future; his career in sports casting had
suffered and was continuing to suffer; 50 his anticipated income
had been greatly reduced as a result of his "limited" capacity;
he continually suffered from "headaches, nausea, dizziness,
heart palpitations, rashes, chronic rhinitis, sinusitis," 51 etc.;
Peter’s relationships with his spouse and children continued to
be strained, as his condition made him highly irritable and
sensitive; his mobility and social life had suffered; his spouse,
Fatima, became the breadwinner in the family; 52 and his two
children had been deprived of the opportunity for a better life
and educational prospects. Collectively, petitioners lived in
constant fear of Peter becoming completely blind.53
In the end, petitioners sought pecuniary award for their
supposed pain and suffering, which were ultimately brought
about by Dr. Tuañ o’s grossly negligent conduct in prescribing
31 TORTS LAST SET
to Peter the medicine Maxitrol for a period of three (3)
months, without monitoring Peter’s IOP, as required in cases
of prolonged use of said medicine, and notwithstanding
Peter’s constant complaint of intense eye pain while using the
same. Petitioners particularly prayed that Dr. Tuañ o be
adjudged liable for the following amounts:
1. The amount of ₱2,000,000.00 to plaintiff Peter
Lucas as and by way of compensation for his
impaired vision.
2. The amount of ₱300,000.00 to spouses Lucas as
and by way of actual damages plus such additional
amounts that may be proven during trial.
3. The amount of ₱1,000,000.00 as and by way of
moral damages.
4. The amount of ₱500,000.00 as and by way of
exemplary damages.
5. The amount of ₱200,000.00 as and by way of
attorney’s fees plus costs of suit.54
In rebutting petitioners’ complaint, Dr. Tuañ o asserted that the
"treatment made by [him] more than three years ago has no
causal connection to [Peter’s] present glaucoma or
condition."55 Dr. Tuañ o explained that "[d]rug-induced
glaucoma is temporary and curable, steroids have the side
effect of increasing intraocular pressure. Steroids are
prescribed to treat Epidemic Kerato Conjunctivitis or EKC
which is an infiltration of the cornea as a result of
conjunctivitis or sore eyes."56 Dr. Tuañ o also clarified that (1)
"[c]ontrary to [petitioners’] fallacious claim, [he] did NOT
continually prescribe the drug Maxitrol which contained
steroids for any prolonged period"57 and "[t]he truth was the
Maxitrol was discontinued x x x as soon as EKC disappeared
and was resumed only when EKC reappeared" 58; (2) the entire
time he was treating Peter, he "continually monitored the
intraocular pressure of [Peter’s eyes] by palpating the eyes and
by putting pressure on the eyeballs," and no hardening of the
same could be detected, which meant that there was no
increase in the tension or IOP, a possible side reaction to the
use of steroid medications; and (3) it was only on 13
December 1988 that Peter complained of a headache and
blurred vision in his right eye, and upon measuring the IOP of
said eye, it was determined for the first time that the IOP of
the right eye had an elevated value.
But granting for the sake of argument that the "steroid
treatment of [Peter’s] EKC caused the steroid induced
glaucoma,"59 Dr. Tuañ o argued that:
[S]uch condition, i.e., elevated intraocular pressure, is
temporary. As soon as the intake of steroids is discontinued,
the intraocular pressure automatically is reduced. Thus,
[Peter’s] glaucoma can only be due to other causes not
attributable to steroids, certainly not attributable to [his]
treatment of more than three years ago x x x.
From a medical point of view, as revealed by more current
examination of [Peter], the latter’s glaucoma can only be long
standing glaucoma, open angle glaucoma, because of the large
C:D ratio. The steroids provoked the latest glaucoma to be
revealed earlier as [Peter] remained asymptomatic prior to
steroid application. Hence, the steroid treatment was in fact
beneficial to [Peter] as it revealed the incipient open angle
glaucoma of [Peter] to allow earlier treatment of the same.60
In a Decision dated 14 July 2000, the RTC dismissed Civil
Case No. 92-2482 "for insufficiency of evidence." 61 The
decretal part of said Decision reads:
Wherefore, premises considered, the instant complaint is
dismissed for insufficiency of evidence. The counter claim
(sic) is likewise dismissed in the absence of bad faith or
malice on the part of plaintiff in filing the suit.62
The RTC opined that petitioners failed to prove by
preponderance of evidence that Dr. Tuañ o was negligent in his
treatment of Peter’s condition. In particular, the record of the
case was bereft of any evidence to establish that the steroid
medication and its dosage, as prescribed by Dr. Tuañ o, caused
Peter’s glaucoma. The trial court reasoned that the "recognized
standards of the medical community has not been established
in this case, much less has causation been established to render
[Tuañ o] liable."63 According to the RTC:
[Petitioners] failed to establish the duty required of a medical
practitioner against which Peter Paul’s treatment by defendant
can be compared with. They did not present any medical
expert or even a medical doctor to convince and expertly
explain to the court the established norm or duty required of a
physician treating a patient, or whether the non taking (sic) by
Dr. Tuañ o of Peter Paul’s pressure a deviation from the norm
or his non-discovery of the glaucoma in the course of
treatment constitutes negligence. It is important and
indispensable to establish such a standard because once it is
established, a medical practitioner who departed thereof
breaches his duty and commits negligence rendering him
liable. Without such testimony or enlightenment from an
expert, the court is at a loss as to what is then the established
norm of duty of a physician against which defendant’s conduct
can be compared with to determine negligence.64
The RTC added that in the absence of "any medical evidence
to the contrary, this court cannot accept [petitioners’] claim
that the use of steroid is the proximate cause of the damage
sustained by [Peter’s] eye."65
Correspondingly, the RTC accepted Dr. Tuañ o’s medical
opinion that "Peter Paul must have been suffering from normal
tension glaucoma, meaning, optic nerve damage was
happening but no elevation of the eye pressure is manifested,
that the steroid treatment actually unmasked the condition that
resulted in the earlier treatment of the glaucoma. There is
nothing in the record to contradict such testimony. In fact,
plaintiff’s Exhibit ‘S’ even tends to support them."
Undaunted, petitioners appealed the foregoing RTC decision
to the Court of Appeals. Their appeal was docketed as CA-
G.R. CV No. 68666.
On 27 September 2006, the Court of Appeals rendered a
decision in CA-G.R. CV No. 68666 denying petitioners’
recourse and affirming the appealed RTC Decision. The fallo
of the judgment of the appellate court states:
WHEREFORE, the Decision appealed from is AFFIRMED.66
The Court of Appeals faulted petitioners because they –
[D]id not present any medical expert to testify that Dr.
Tuano’s prescription of Maxitrol and Blephamide for the
treatment of EKC on Peter’s right eye was not proper and that
his palpation of Peter’s right eye was not enough to detect
adverse reaction to steroid. Peter testified that Dr. Manuel
Agulto told him that he should not have used steroid for the
treatment of EKC or that he should have used it only for two
(2) weeks, as EKC is only a viral infection which will cure by
itself. However, Dr. Agulto was not presented by [petitioners]
as a witness to confirm what he allegedly told Peter and,
therefore, the latter’s testimony is hearsay. Under Rule 130,
Section 36 of the Rules of Court, a witness can testify only to
those facts which he knows of his own personal knowledge, x
32 TORTS LAST SET
x x. Familiar and fundamental is the rule that hearsay
testimony is inadmissible as evidence.67
Like the RTC, the Court of Appeals gave great weight to Dr.
Tuañ o’s medical judgment, specifically the latter’s
explanation that:
[W]hen a doctor sees a patient, he cannot determine whether
or not the latter would react adversely to the use of steroids,
that it was only on December 13, 1989, when Peter
complained for the first time of headache and blurred vision
that he observed that the pressure of the eye of Peter was
elevated, and it was only then that he suspected that Peter
belongs to the 5% of the population who reacts adversely to
steroids.68
Petitioners’ Motion for Reconsideration was denied by the
Court of Appeals in a Resolution dated 3 July 2007.
Hence, this Petition for Review on Certiorari under Rule 45 of
the Revised Rules of Court premised on the following
assignment of errors:
I.
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN AFFIRMING THE DECISION
OF THE TRIAL COURT DISMISSING THE
PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST
THE RESPONDENT ON THE GROUND OF
INSUFFICIENCY OF EVIDENCE;
II.
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN DISMISSING THE
PETITIONERS’ COMPLAINT FOR DAMAGES AGAINST
THE RESPONDENT ON THE GROUND THAT NO
MEDICAL EXPERT WAS PRESENTED BY THE
PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL
NEGLIGENCE AGAINST THE RESPONDENT; AND
III.
THE COURT OF APPEALS COMMITTED GRAVE
REVERSIBLE ERROR IN NOT FINDING THE
RESPONDENT LIABLE TO THE PETITIONERS’ FOR
ACTUAL, MORAL AND EXEMPLARY DAMAGES,
ASIDE FROM ATTORNEY’S FEES, COSTS OF SUIT, AS
A RESULT OF HIS GROSS NEGLIGENCE.69
A reading of the afore-quoted reversible errors supposedly
committed by the Court of Appeals in its Decision and
Resolution would reveal that petitioners are fundamentally
assailing the finding of the Court of Appeals that the evidence
on record is insufficient to establish petitioners’ entitlement to
any kind of damage. Therefore, it could be said that the sole
issue for our resolution in the Petition at bar is whether the
Court of Appeals committed reversible error in affirming the
judgment of the RTC that petitioners failed to prove, by
preponderance of evidence, their claim for damages against
Dr. Tuañ o.
Evidently, said issue constitutes a question of fact, as we are
asked to revisit anew the factual findings of the Court of
Appeals, as well as of the RTC. In effect, petitioners would
have us sift through the evidence on record and pass upon
whether there is sufficient basis to establish Dr. Tuañ o’s
negligence in his treatment of Peter’s eye condition. This
question clearly involves a factual inquiry, the determination
of which is not within the ambit of this Court’s power of
review under Rule 45 of the 1997 Rules Civil Procedure, as
amended.70
Elementary is the principle that this Court is not a trier of
facts; only errors of law are generally reviewed in petitions for
review on certiorari criticizing decisions of the Court of
Appeals. Questions of fact are not entertained.71
Nonetheless, the general rule that only questions of law may
be raised on appeal in a petition for review under Rule 45 of
the Rules of Court admits of certain exceptions, including the
circumstance when the finding of fact of the Court of Appeals
is premised on the supposed absence of evidence, but is
contradicted by the evidence on record. Although petitioners
may not explicitly invoke said exception, it may be gleaned
from their allegations and arguments in the instant
Petition.1avvphi1.zw+
Petitioners contend, that "[c]ontrary to the findings of the
Honorable Court of Appeals, [they] were more than able to
establish that: Dr. Tuañ o ignored the standard medical
procedure for ophthalmologists, administered medication with
recklessness, and exhibited an absence of competence and
skills expected from him."72 Petitioners reject the necessity of
presenting expert and/or medical testimony to establish (1) the
standard of care respecting the treatment of the disorder
affecting Peter’s eye; and (2) whether or not negligence
attended Dr. Tuañ o’s treatment of Peter, because, in their
words –
That Dr. Tuañ o was grossly negligent in the treatment of
Peter’s simple eye ailment is a simple case of cause and effect.
With mere documentary evidence and based on the facts
presented by the petitioners, respondent can readily be held
liable for damages even without any expert testimony. In any
case, however, and contrary to the finding of the trial court
and the Court of Appeals, there was a medical expert
presented by the petitioner showing the recklessness
committed by [Dr. Tuañ o] – Dr. Tuañ o himself. [Emphasis
supplied.]
They insist that Dr. Tuañ o himself gave sufficient evidence to
establish his gross negligence that ultimately caused the
impairment of the vision of Peter’s right eye, 73 i.e., that
"[d]espite [Dr. Tuañ o’s] knowledge that 5% of the population
reacts adversely to Maxitrol, [he] had no qualms whatsoever in
prescribing said steroid to Peter without first determining
whether or not the (sic) Peter belongs to the 5%."74
We are not convinced. The judgments of both the Court of
Appeals and the RTC are in accord with the evidence on
record, and we are accordingly bound by the findings of fact
made therein.
Petitioners’ position, in sum, is that Peter’s glaucoma is the
direct result of Dr. Tuañ o’s negligence in his improper
administration of the drug Maxitrol; "thus, [the latter] should
be liable for all the damages suffered and to be suffered by
[petitioners]."75 Clearly, the present controversy is a classic
illustration of a medical negligence case against a physician
based on the latter’s professional negligence. In this type of
suit, the patient or his heirs, in order to prevail, is required to
prove by preponderance of evidence that the physician failed
to exercise that degree of skill, care, and learning possessed by
other persons in the same profession; and that as a proximate
result of such failure, the patient or his heirs suffered damages.
For lack of a specific law geared towards the type of
negligence committed by members of the medical profession,
such claim for damages is almost always anchored on the
alleged violation of Article 2176 of the Civil Code, which
states that:
33 TORTS LAST SET
ART. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
In medical negligence cases, also called medical malpractice
suits, there exist a physician-patient relationship between the
doctor and the victim. But just like any other proceeding for
damages, four essential (4) elements i.e., (1) duty; (2) breach;
(3) injury; and (4) proximate causation, 76 must be established
by the plaintiff/s. All the four (4) elements must co-exist in
order to find the physician negligent and, thus, liable for
damages.
When a patient engages the services of a physician, a
physician-patient relationship is generated. And in accepting a
case, the physician, for all intents and purposes, represents that
he has the needed training and skill possessed by physicians
and surgeons practicing in the same field; and that he will
employ such training, care, and skill in the treatment of the
patient.77 Thus, in treating his patient, a physician is under
a duty to [the former] to exercise that degree of care, skill and
diligence which physicians in the same general neighborhood
and in the same general line of practice ordinarily possess and
exercise in like cases.78 Stated otherwise, the physician has the
duty to use at least the same level of care that any other
reasonably competent physician would use to treat the
condition under similar circumstances.
This standard level of care, skill and diligence is a matter best
addressed by expert medical testimony, because the standard
of care in a medical malpractice case is a matter peculiarly
within the knowledge of experts in the field.79
There is breach of duty of care, skill and diligence, or the
improper performance of such duty, by the attending physician
when the patient is injured in body or in health [and this]
constitutes the actionable malpractice. 80 Proof of such breach
must likewise rest upon the testimony of an expert witness that
the treatment accorded to the patient failed to meet the
standard level of care, skill and diligence which physicians in
the same general neighborhood and in the same general line of
practice ordinarily possess and exercise in like cases.
Even so, proof of breach of duty on the part of the attending
physician is insufficient, for there must be a causal connection
between said breach and the resulting injury sustained by the
patient. Put in another way, in order that there may be a
recovery for an injury, 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";81 that is, the
negligence must be the proximate cause of the injury. And the
proximate cause of an injury is that cause, which, in the
natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the
result would not have occurred.82
Just as with the elements of duty and breach of the same, in
order to establish the proximate cause [of the injury] by a
preponderance of the evidence in a medical malpractice
action, [the patient] must similarly use expert testimony,
because the question of whether the alleged professional
negligence caused [the patient’s] injury is generally one for
specialized expert knowledge beyond the ken of the average
layperson; using the specialized knowledge and training of his
field, the expert’s role is to present to the [court] a realistic
assessment of the likelihood that [the physician’s] alleged
negligence caused [the patient’s] injury.83
From the foregoing, it is apparent that medical negligence
cases are best proved by opinions of expert witnesses
belonging in the same general neighborhood and in the same
general line of practice as defendant physician or surgeon. The
deference of courts to the expert opinion of qualified
physicians [or surgeons] stems from the former’s realization
that the latter possess unusual technical skills which laymen in
most instances are incapable of intelligently
evaluating;84 hence, the indispensability of expert testimonies.
In the case at bar, there is no question that a physician-patient
relationship developed between Dr. Tuañ o and Peter when
Peter went to see the doctor on 2 September 1988, seeking a
consult for the treatment of his sore eyes. Admittedly, Dr.
Tuañ o, an ophthalmologist, prescribed Maxitrol when Peter
developed and had recurrent EKC. Maxitrol or
neomycin/polymyxin B sulfates/dexamethasone ophthalmic
ointment is a multiple-dose anti-infective steroid combination
in sterile form for topical application.85 It is the drug which
petitioners claim to have caused Peter’s glaucoma.
However, as correctly pointed out by the Court of Appeals,
"[t]he onus probandi was on the patient to establish before the
trial court that the physicians ignored standard medical
procedure, prescribed and administered medication with
recklessness and exhibited an absence of the competence and
skills expected of general practitioners similarly
situated."86 Unfortunately, in this case, there was absolute
failure on the part of petitioners to present any expert
testimony to establish: (1) the standard of care to be
implemented by competent physicians in treating the same
condition as Peter’s under similar circumstances; (2) that, in
his treatment of Peter, Dr. Tuañ o failed in his duty to exercise
said standard of care that any other competent physician
would use in treating the same condition as Peter’s under
similar circumstances; and (3) that the injury or damage to
Peter’s right eye, i.e., his glaucoma, was the result of his use
of Maxitrol, as prescribed by Dr. Tuañ o. Petitioners’ failure to
prove the first element alone is already fatal to their cause.
Petitioners maintain that Dr. Tuañ o failed to follow in Peter’s
case the required procedure for the prolonged use of Maxitrol.
But what is actually the required procedure in situations such
as in the case at bar? To be precise, what is the standard
operating procedure when ophthalmologists prescribe steroid
medications which, admittedly, carry some modicum of risk?
Absent a definitive standard of care or diligence required of
Dr. Tuañ o under the circumstances, we have no means to
determine whether he was able to comply with the same in his
diagnosis and treatment of Peter. This Court has no yardstick
upon which to evaluate or weigh the attendant facts of this
case to be able to state with confidence that the acts
complained of, indeed, constituted negligence and, thus,
should be the subject of pecuniary reparation.
Petitioners assert that prior to prescribing Maxitrol, Dr. Tuañ o
should have determined first whether Peter was a "steroid
responder."87 Yet again, petitioners did not present any
convincing proof that such determination is actually part of the
standard operating procedure which ophthalmologists should
unerringly follow prior to prescribing steroid medications.
In contrast, Dr. Tuañ o was able to clearly explain that what is
only required of ophthalmologists, in cases such as Peter’s, is
the conduct of standard tests/procedures known as "ocular
routine examination,"88 composed of five (5) tests/procedures
– specifically, gross examination of the eyes and the
surrounding area; taking of the visual acuity of the patient;
checking the intraocular pressure of the patient; checking the
motility of the eyes; and using ophthalmoscopy on the
patient’s eye – and he did all those tests/procedures every time
34 TORTS LAST SET
Peter went to see him for follow-up consultation and/or check-
up.
We cannot but agree with Dr. Tuañ o’s assertion that when a
doctor sees a patient, he cannot determine immediately
whether the latter would react adversely to the use of steroids;
all the doctor can do is map out a course of treatment
recognized as correct by the standards of the medical
profession. It must be remembered that a physician is not an
insurer of the good result of treatment. The mere fact that the
patient does not get well or that a bad result occurs does not in
itself indicate failure to exercise due care. 89 The result is not
determinative of the performance [of the physician] and he is
not required to be infallible.90
Moreover, that Dr. Tuañ o saw it fit to prescribe Maxitrol to
Peter was justified by the fact that the latter was already using
the same medication when he first came to see Dr. Tuañ o on 2
September 1988 and had exhibited no previous untoward
reaction to that particular drug. 91
Also, Dr. Tuañ o categorically denied petitioners’ claim that he
never monitored the tension of Peter’s eyes while the latter
was on Maxitrol. Dr. Tuañ o testified that he palpated Peter’s
eyes every time the latter came for a check-up as part of the
doctor’s ocular routine examination, a fact which petitioners
failed to rebut. Dr. Tuañ o’s regular conduct of examinations
and tests to ascertain the state of Peter’s eyes negate the very
basis of petitioners’ complaint for damages. As to whether Dr.
Tuañ o’s actuations conformed to the standard of care and
diligence required in like circumstances, it is presumed to have
so conformed in the absence of evidence to the contrary.
Even if we are to assume that Dr. Tuañ o committed negligent
acts in his treatment of Peter’s condition, the causal
connection between Dr. Tuañ o’s supposed negligence and
Peter’s injury still needed to be established. The critical and
clinching factor in a medical negligence case is proof of the
causal connection between the negligence which the evidence
established and the plaintiff’s injuries. 92 The plaintiff must
plead and prove not only that he has been injured and
defendant has been at fault, but also that the defendant’s fault
caused the injury. A verdict in a malpractice action cannot be
based on speculation or conjecture. Causation must be proven
within a reasonable medical probability based upon competent
expert testimony.93
The causation between the physician’s negligence and the
patient’s injury may only be established by the presentation of
proof that Peter’s glaucoma would not have occurred but for
Dr. Tuañ o’s supposed negligent conduct. Once more,
petitioners failed in this regard.
Dr. Tuañ o does not deny that the use of Maxitrol involves the
risk of increasing a patient’s IOP. In fact, this was the reason
why he made it a point to palpate Peter’s eyes every time the
latter went to see him -- so he could monitor the tension of
Peter’s eyes. But to say that said medication conclusively
caused Peter’s glaucoma is purely speculative. Peter was
diagnosed with open-angle glaucoma. This kind of glaucoma
is characterized by an almost complete absence of symptoms
and a chronic, insidious course. 94 In open-angle glaucoma,
halos around lights and blurring of vision do not occur unless
there has been a sudden increase in the intraocular
vision.95 Visual acuity remains good until late in the course of
the disease.96 Hence, Dr. Tuañ o claims that Peter’s glaucoma
"can only be long standing x x x because of the large
C:D97 ratio," and that "[t]he steroids provoked the latest
glaucoma to be revealed earlier" was a blessing in disguise "as
[Peter] remained asymptomatic prior to steroid application."
Who between petitioners and Dr. Tuañ o is in a better position
to determine and evaluate the necessity of using Maxitrol to
cure Peter’s EKC vis-à -vis the attendant risks of using the
same?
That Dr. Tuañ o has the necessary training and skill to practice
his chosen field is beyond cavil. Petitioners do not dispute Dr.
Tuañ o’s qualifications – that he has been a physician for close
to a decade and a half at the time Peter first came to see him;
that he has had various medical training; that he has authored
numerous papers in the field of ophthalmology, here and
abroad; that he is a Diplomate of the Philippine Board of
Ophthalmology; that he occupies various teaching posts (at the
time of the filing of the present complaint, he was the Chair of
the Department of Ophthalmology and an Associate Professor
at the University of the Philippines-Philippine General
Hospital and St. Luke’s Medical Center, respectively); and
that he held an assortment of positions in numerous medical
organizations like the Philippine Medical Association,
Philippine Academy of Ophthalmology, Philippine Board of
Ophthalmology, Philippine Society of Ophthalmic Plastic and
Reconstructive Surgery, Philippine Journal of Ophthalmology,
Association of Philippine Ophthalmology Professors, et al.
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.98 In making the judgment call of
treating Peter’s EKC with Maxitrol, Dr. Tuañ o took the
necessary precaution by palpating Peter’s eyes to monitor their
IOP every time the latter went for a check-up, and he
employed the best of his knowledge and skill earned from
years of training and practice.
In contrast, without supporting expert medical opinions,
petitioners’ bare assertions of negligence on Dr. Tuañ o’s part,
which resulted in Peter’s glaucoma, deserve scant credit.
Our disposition of the present controversy might have been
vastly different had petitioners presented a medical expert to
establish their theory respecting Dr. Tuañ o’s so-called
negligence. In fact, the record of the case reveals that
petitioners’ counsel recognized the necessity of presenting
such evidence. Petitioners even gave an undertaking to the
RTC judge that Dr. Agulto or Dr. Aquino would be presented.
Alas, no follow-through on said undertaking was
made.1avvphi1
The plaintiff in a civil case has the burden of proof as he
alleges the affirmative of the issue. However, in the course of
trial in a civil case, once plaintiff makes out a prima facie case
in his favor, the duty or the burden of evidence shifts to
defendant to controvert plaintiff’s prima facie case; otherwise,
a verdict must be returned in favor of plaintiff. 99 The party
having the burden of proof must establish his case by a
preponderance of evidence.100 The concept of "preponderance
of evidence" refers to evidence which is of greater weight or
more convincing than that which is offered in opposition to
it;101 in the last analysis, it means probability of truth. It is
evidence which is more convincing to the court as worthy of
belief than that which is offered in opposition thereto. 102 Rule
133, Section 1 of the Revised Rules of Court provides the
guidelines for determining preponderance of evidence, thus:
their personal credibility so far as the same legitimately appear
upon the trial. The court may also consider the number of
witnesses, though the preponderance is not necessarily with
the greater number.
Herein, the burden of proof was clearly upon petitioners, as
plaintiffs in the lower court, to establish their case by a
preponderance of evidence showing a reasonable connection
between Dr. Tuañ o’s alleged breach of duty and the damage
sustained by Peter’s right eye. This, they did not do. In reality,
petitioners’ complaint for damages is merely anchored on a
statement in the literature of Maxitrol identifying the risks of
its use, and the purported comment of Dr. Agulto – another
doctor not presented as witness before the RTC – concerning
the prolonged use of Maxitrol for the treatment of EKC.
It seems basic that what constitutes proper medical treatment
is a medical question that should have been presented to
experts. If no standard is established through expert medical
witnesses, then courts have no standard by which to gauge the
basic issue of breach thereof by the physician or surgeon. The
RTC and Court of Appeals, and even this Court, could not be
expected to determine on its own what medical technique
should have been utilized for a certain disease or injury.
Absent expert medical opinion, the courts would be
dangerously engaging in speculations.
All told, we are hard pressed to find Dr. Tuañ o liable for any
medical negligence or malpractice where there is no evidence,
in the nature of expert testimony, to establish that in treating
Peter, Dr. Tuañ o failed to exercise reasonable care, diligence
and skill generally required in medical practice. Dr. Tuañ o’s
testimony, that his treatment of Peter conformed in all respects
to standard medical practice in this locality, stands unrefuted.
Consequently, the RTC and the Court of Appeals correctly
held that they had no basis at all to rule that petitioners were
deserving of the various damages prayed for in their
Complaint.
WHEREFORE, premises considered, the instant petition is
DENIED for lack of merit. The assailed Decision dated 27
September 2006 and Resolution dated 3 July 2007, both of the
Court of Appeals in CA-G.R. CV No. 68666, are hereby
AFFIRMED. No cost.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice

In civil cases, the party having the burden of proof must

establish his case by a preponderance of evidence. In
determining where the preponderance or superior weight of
evidence on the issues involved lies the court may consider all
the facts and circumstances of the case, the witnesses’ manner
of testifying, their intelligence, their means and opportunity of
knowing the facts to which they are testifying, the nature of
the facts to which they testify, the probability or improbability
of their testimony, their interest or want of interest, and also
35 TORTS LAST SET
G.R. No. 171127               March 11, 2015
NOEL CASUMPANG, RUBY SANGA-MIRANDA and SAN
JUAN DEDIOS HOSPITAL, Petitioners,
vs.
NELSON CORTEJO, Respondent.
x-----------------------x
G.R. No. 171217
DRA. RUBY SANGA-MIRANDA, Petitioner,
vs.
NELSON CORTEJO, Respondent.
x-----------------------x
G.R. No. 171228
SAN JUAN DEDIOS HOSPITAL, Petitioner,
vs.
NELSON CORTEJO, Respondent.
DECISION
BRION, J.:
We resolve the three (3) consolidated petitions for review on
Certiorari1 involving medical negligence, commonly assailing
the October 29, 2004 decision2 and the January 12, 2006
resolution3 of the Court of Appeals (CA) in CA-G.R. CV No.
56400. This CA decision affirmed en totothe ruling of the
Regional Trial Court (RTC), Branch 134, Makati City.
The RTC awarded Nelson Cortejo (respondent) damages in
the total amount of ₱595,000.00, for the wrongful death of his
son allegedly due to the medical negligence of the petitioning
doctors and the hospital.
Factual Antecedents
The common factual antecedents are briefly summarized
below.
On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa
Cortejo brought her 11-year old son, Edmer Cortejo (Edmer),
to the Emergency Room of the San Juan de Dios Hospital
(SJDH) because of difficulty in breathing, chest pain, stomach
pain, and fever.4
Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and
examined Edmer. In her testimony, Mrs. Cortejo narrated that
in the morning of April 20, 1988, Edmer had developed a
slight fever that lasted for one day; a few hours upon
discovery, she brought Edmer to their family doctor; and two
hours after administering medications, Edmer’s fever had
subsided.5
After taking Edmer’s medical history, Dr. Livelo took his vital
signs, body temperature, and blood pressure.6 Based on these
initial examinations and the chest x-ray test that followed, Dr.
Livelo diagnosed Edmer with "bronchopneumonia. 7 " Edmer’s
blood was also taken for testing, typing, and for purposes of
administering antibiotics. Afterwards, Dr. Livelo gave Edmer
an antibiotic medication to lessen his fever and to loosen his
phlegm.
Mrs. Cortejo did not know any doctor at SJDH. She used her
Fortune Care card and was referred to an accredited Fortune
Care coordinator, who was then out of town. She was
36 TORTS LAST SET
thereafter assigned to Dr. Noel Casumpang (Dr. Casumpang),
a pediatrician also accredited with Fortune Care.8
At 5:30 in the afternoon of the same day, Dr. Casumpang for
the first time examined Edmer in his room. Using only a
stethoscope, he confirmed the initial diagnosis of
"Bronchopneumonia."9
At that moment, Mrs. Cortejo recalled entertaining doubts on
the doctor’s diagnosis. She immediately advised Dr.
Casumpang that Edmer had a high fever, and had no colds or
cough10 but Dr. Casumpang merely told her that her son’s
"blood pressure is just being active," 11 and remarked that
"that’s the usual bronchopneumonia, no colds, no
phlegm."12 Dr. Casumpang next visited and examined Edmer
at 9:00 in the morning the following day. 13 Still suspicious
about his son’s illness, Mrs. Cortejo again called Dr.
Casumpang’s attention and stated that Edmer had a fever,
throat irritation, as well as chest and stomach pain. Mrs.
Cortejo also alerted Dr. Casumpang about the traces of blood
in Edmer’s sputum. Despite these pieces of information,
however, Dr. Casumpang simply nodded, inquired if Edmer
has an asthma, and reassured Mrs. Cortejo that Edmer’s illness
is bronchopneumonia.14
At around 11:30 in the morning of April 23, 1988, Edmer
vomited "phlegm with blood streak"15 prompting the
respondent (Edmer’s father) to request for a doctor at the
nurses’ station.16 Forty-five minutes later, Dr. Ruby Miranda-
Sanga (Dr. Sanga), one of the resident physicians of SJDH,
arrived. She claimed that although aware that Edmer had
vomited "phlegm with blood streak," she failed to examine the
blood specimen because the respondent washed it away. She
then advised the respondent to preserve the specimen for
examination.
Thereafter, Dr. Sanga conducted a physical check-up covering
Edmer’s head, eyes, nose, throat, lungs, skin and abdomen;
and found that Edmer had a low-grade non-continuing fever,
and rashes that were not typical of dengue fever. 17 Her medical
findings state:
the patient’s rapid breathing and then the lung showed sibilant
and the patient’s nose is flaring which is a sign that the patient
is in respiratory distress; the abdomen has negative finding;
the patient has low grade fever and not continuing; and the
rashes in the patient’s skin were not
"Herman’s Rash" and not typical of dengue fever.18
At 3:00 in the afternoon, Edmer once again vomited blood.
Upon seeing Dr. Sanga, the respondent showed her Edmer’s
blood specimen, and reported that Edmer had complained of
severe stomach pain and difficulty in moving his right leg.19
Dr. Sanga then examined Edmer’s "sputum with blood" and
noted that he was bleeding. Suspecting that he could be
afflicted with dengue, she inserted a plastic tube in his nose,
drained the liquid from his stomach with ice cold normal
saline solution, and gave an instruction not to pull out the tube,
or give the patient any oral medication.
Dr. Sanga thereafter conducted a tourniquet test, which turned
out to be negative.20 She likewise ordered the monitoring of
the patient’s blood pressure and some blood tests. Edmer’s
blood pressure was later found to be normal.21
At 4:40 in the afternoon, Dr. Sanga called up Dr. Casumpang
at his clinic and told him about Edmer’s condition.22 Upon
being informed, Dr. Casumpang ordered several procedures
done including: hematocrit, hemoglobin, blood typing, blood
transfusion and tourniquet tests.
The blood test results came at about 6:00 in the evening.
Dr. Sanga advised Edmer’s parents that the blood test results
showed that Edmer was suffering from "Dengue Hemorrhagic
Fever." One hour later, Dr. Casumpang arrived at Edmer’s
room and he recommended his transfer to the Intensive Care
Unit (ICU), to which the respondent consented. Since the ICU
was then full, Dr. Casumpang suggested to the respondent that
they hire a private nurse. The respondent, however, insisted on
transferring his son to Makati Medical Center.
After the respondent had signed the waiver, Dr. Casumpang,
for the last time, checked Edmer’s condition, found that his
blood pressure was stable, and noted that he was
"comfortable." The respondent requested for an ambulance but
he was informed that the driver was nowhere to be found. This
prompted him to hire a private ambulance that cost him
₱600.00.23
At 12:00 midnight, Edmer, accompanied by his parents and by
Dr. Casumpang, was transferred to Makati Medical Center.
Dr. Casumpang immediately gave the attending physician the
patient’s clinical history and laboratory exam results. Upon
examination, the attending physician diagnosed "Dengue
Fever Stage IV" that was already in its irreversible stage.
Edmer died at 4:00 in the morning of April 24, 1988. 24 His
Death Certificate indicated the cause of death as
"Hypovolemic Shock/hemorrhagic shock;" "Dengue
Hemorrhagic Fever Stage IV."
Believing that Edmer’s death was caused by the negligent and
erroneous diagnosis of his doctors, the respondent instituted an
action for damages against SJDH, and its attending physicians:
Dr. Casumpang and Dr. Sanga (collectively referred to as the
"petitioners") before the RTC of Makati City.
The Ruling of the Regional Trial Court
In a decision25 dated May 30, 1997, the RTC ruled in favor of
the respondent, and awarded actual and moral damages, plus
attorney's fees and costs.
In ruling that the petitioning doctors were negligent, the RTC
found untenable the petitioning doctors’ contention that
Edmer’s initial symptoms did not indicate dengue fever. It
faulted them for heavily relying on the chest x-ray result and
for not considering the other manifestations that Edmer’s
parents had relayed. It held that in diagnosing and treating an
illness, the physician’s conduct should be judged not only by
what he/she saw and knew, but also by what he/she could have
reasonably seen and known. It also observed that based on
Edmer’s signs and symptoms, his medical history and physical
examination, and also the information that the petitioning
doctors gathered from his family members, dengue fever was a
reasonably foreseeable illness; yet, the petitioning doctors
failed to take a second look, much less, consider these
indicators of dengue.
The trial court also found that aside from their self-serving
testimonies, the petitioning doctors did not present other
evidence to prove that they exercised the proper medical
attention in diagnosing and treating the patient, leading it to
conclude that they were guilty of negligence. The RTC also
held SJDH solidarily liable with the petitioning doctors for
damages based on the following findings of facts: first, Dr.
Casumpang, as consultant, is an ostensible agent of SJDH
because before the hospital engaged his medical services, it
scrutinized and determined his fitness, qualifications, and
competence as a medical practitioner; and second, Dr. Sanga,
as resident physician, is an employee of SJDH because like
37 TORTS LAST SET
Dr. Casumpang, the hospital, through its screening committee,
scrutinized and determined her qualifications, fitness,and
competence before engaging her services; the hospital also
exercised control over her work.
The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the
plaintiff and against the defendants, ordering the latter to pay
solidarily and severally plaintiff the following:
(1) Moral damages in the amount of ₱500,000.00;
(2) Costs of burial and funeral in the amount of
₱45,000.00;
(3) Attorney’s fees of ₱50,000.00; and
(4) Cost of this suit.
SO ORDERED.
The petitioners appealed the decision to the CA.
The Ruling of the Court of Appeals
In its decision dated October 29, 2004, the CA affirmed en
toto the RTC’s ruling, finding that SJDH and its attending
physicians failed to exercise the minimum medical care,
attention, and treatment expected of an ordinary doctor under
like circumstances.
The CA found the petitioning doctors’ failure to read even the
most basic signs of "dengue fever" expected of an ordinary
doctor as medical negligence. The CA also considered the
petitioning doctors’ testimonies as self-serving, noting that
they presented no other evidence to prove that they exercised
due diligence in diagnosing Edmer’s illness.
The CA likewise found Dr. Rodolfo Jaudian’s (Dr. Jaudian)
testimony admissible. It gave credence to his opinion 26 that:
(1) given the exhibited symptoms of the patient, dengue fever
should definitely be considered, and bronchopneumonia could
be reasonably ruled out; and (2) dengue fever could have been
detected earlier than 7:30 in the evening of April 23, 1988
because the symptoms were already evident; and agreed with
the RTC that the petitioning doctors should not have solely
relied on the chest-x-ray result, as it was not conclusive.
On SJDH’s solidary liability, the CA ruled that the hospital’s
liability is based on Article 2180 of the Civil Code. The CA
opined that the control which the hospital exercises over its
consultants, the hospital’s power to hire and terminate their
services, all fulfill the employer-employee relationship
requirement under Article 2180.
Lastly, the CA held that SJDH failed to adduce evidence
showing that it exercised the diligence of a good father of a
family in the hiring and the supervision of its physicians.
The petitioners separately moved to reconsider the CA
decision, but the CA denied their motion in its resolution of
January 12, 2006; hence, the present consolidated petitions
pursuant to Rule 45 of the Rules of Court.
The Petitions
I. Dr. Casumpang’s Position (G.R. No. 171127)
Dr. Casumpang contends that he gave his patient medical
treatment and care to the best of his abilities, and within the
proper standard of care required from physicians under similar
circumstances. He claims that his initial diagnosis of
bronchopneumonia was supported by the chest x-ray result.
Dr. Casumpang also contends that dengue fever occurs only
after several days of confinement. He alleged that when he had
suspected that Edmer might be suffering from dengue fever,
he immediately attended and treated him.
Dr. Casumpang likewise raised serious doubts on Dr.
Jaudian’s credibility, arguing that the CA erred in appreciating
his testimony as an expert witness since he lacked the
necessary training, skills, and experience as a specialist in
dengue fever cases.
II. Dr. Sanga’s Position (G.R. No. 171217)
In her petition, Dr. Sanga faults the CA for holding her
responsible for Edmer’s wrong diagnosis, stressing that the
function of making the diagnosis and undertaking the medical
treatment devolved upon Dr. Casumpang, the doctor assigned
to Edmer, and who confirmed "bronchopneumonia."
Dr. Sanga also alleged that she exercised prudence in
performing her duties as a physician, underscoring that it was
her professional intervention that led to the correct diagnosis
of "Dengue Hemorrhagic Fever." Furthermore, Edmer’s
Complete Blood Count (CBC) showed leukopenia and an
increase in balance as shown by the differential count,
demonstrating that Edmer’s infection, more or less, is of
bacterial and not viral in nature.
Dr. Sanga as well argued that there is no causal relation
between the alleged erroneous diagnosis and medication for
"Bronchopneumonia," and Edmer’s death due to "Dengue
Hemorrhagic Fever."
Lastly, she claimed that Dr. Jaudianis not a qualified expert
witness since he never presented any evidence of formal
residency training and fellowship status in Pediatrics.
III. SJDH’s Position (G.R. No. 171228)
SJDH, on the other hand, disclaims liability by asserting that
Dr. Casumpang and Dr. Sanga are mere independent
contractors and "consultants" (not employees) of the hospital.
SJDH alleges that since it did not exercise control or
supervision over the consultants’ exercise of medical
profession, there is no employer-employee relationship
between them, and consequently, Article 2180 of the Civil
Code does not apply.
SJDH likewise anchored the absence of employer-employee
relationship on the following circumstances: (1) SJDH does
not hire consultants; it only grants them privileges to admit
patients in the hospital through accreditation; (2) SJDH does
not pay the consultants wages similar to an ordinary
employee; (3) the consultants earn their own professional fees
directly from their patients; SJDH does not fire or terminate
their services; and (4) SJDH does not control or interfere with
the manner and the means the consultants use in the treatment
of their patients. It merely provides them with adequate space
in exchange for rental payment.
Furthermore, SJDH claims that the CA erroneously applied
the control test when it treated the hospital’s practice of
accrediting consultants as an exercise of control. It explained
that the control contemplated by law is that which the
employer exercises over the: (i) end result; and the (ii) manner
38 TORTS LAST SET
and means to be used to reach this end, and not any kind of
control, however significant, in accrediting the consultants.
SJDH moreover contends that even if the petitioning doctors
are considered employees and not merely consultants of the
hospital, SJDH cannot still be held solidarily liable under
Article 2180 of the Civil Code because it observed the
diligence of a good father of a family in their selection and
supervision as shown by the following: (1) the adequate
measures that the hospital undertakes to ascertain the
petitioning doctors’ qualifications and medical competence;
and (2) the documentary evidence that the petitioning doctors
presented to prove their competence in the field of pediatrics.27
SJDH likewise faults the CA for ruling that the petitioning
doctors are its agents, claiming that this theory, aside from
being inconsistent with the CA’s finding of employment
relationship, is unfounded because: first, the petitioning
doctors are independent contractors, not agents of SJDH; and
second, as a medical institution, SJDH cannot practice
medicine, much more, extend its personality to physicians to
practice medicine on its behalf.
Lastly, SJDH maintains that the petitioning doctors arrived at
an intelligently deduced and correct diagnosis. It claimed that
based on Edmer's signs and symptoms at the time of
admission (i.e., one day fever, 28 bacterial infection,29 and lack
of hemorrhagic manifestations30), there was no reasonable
indication yet that he was suffering from dengue fever, and
accordingly, their failure to diagnose dengue fever, does not
constitute negligence on their part.
The Case for the Respondent
In his comment, the respondent submits that the issues the
petitioners raised are mainly factual in nature, which a petition
for review on certiorari under Rule 45 of the Rules of Courts
does not allow.
In any case, he contends that the petitioning doctors were
negligent in conducting their medical examination and
diagnosis based on the following: (1) the petitioning doctors
failed to timely diagnose Edmer’s correct illness due to their
non-observance of the proper and acceptable standard of
medical examination; (2) the petitioning doctors’ medical
examination was not comprehensive, as they were always in a
rush; and (3) the petitioning doctors employed a guessing
game in diagnosing bronchopneumonia.
The respondent also alleges that there is a causal connection
between the petitioning doctors’ negligence and Edmer’s
untimely death, warranting the claim for damages.
The respondent, too, asserted that SJDH is also negligent
because it was not equipped with proper paging system, has no
bronchoscope, and its doctors are not proportionate to the
number of its patients. He also pointed out that out of the
seven resident physicians in the hospital, only two resident
physicians were doing rounds at the time of his son’s
confinement.
The Issues
The case presents to us the following issues:
1. Whether or not the petitioning doctors had
committed "inexcusable lack of precaution" in
diagnosing and in treating the patient;
2. Whether or not the petitioner hospital is solidarily
liable with the petitioning doctors;
 3. Whether or not there is a causal connection
between the petitioners’ negligent act/omission and
the patient’s resulting death; and
4. Whether or not the lower courts erred in
considering Dr. Rodolfo Tabangcora Jaudian as an
expert witness.
Our Ruling
We find the petition partly meritorious.
A Petition for Review on Certiorari
under Rule 45 of the Rules of Court
is Limited to Questions of Law.
The settled rule is that the Court’s jurisdiction in a petition for
review on certiorari under Rule 45 of the Rules of Court is
limited only to the review of pure questions of law. It is not
the Court’s function to inquire on the veracity of the appellate
court’s factual findings and conclusions; this Court is not a
trier of facts.31
A question of law arises when there is doubt as to what the
law is on a certain state of facts, while there is a question of
fact when the doubt arises as to the truth or falsity of the
alleged facts.32
These consolidated petitions before us involve mixed
questions of fact and law. As a rule, we do not resolve
questions of fact. However, in determining the legal question
of whether the respondent is entitled to claim damages under
Article 2176 of the Civil Code for the petitioners’ alleged
medical malpractice, the determination of the factual issues –
i.e., whether the petitioning doctors were grossly negligent in
diagnosing the patient’s illness, whether there is causal
relation between the petitioners’ act/omission and the patient’s
resulting death, and whether Dr. Jaudian is qualified as an
expert witness– must necessarily be resolved. We resolve
these factual questions solely for the purpose of determining
the legal issues raised.
Medical Malpractice Suit as a negligence must be the proximate cause of the injury.44 The
Specialized Area of Tort Law
The claim for damages is based on the petitioning doctors’
negligence in diagnosing and treating the deceased Edmer, the
child of the respondent. It is a medical malpractice suit, an
action available to victims to redress a wrong committed by
medical professionals who caused bodily harm to, or the death
of, a patient.33 As the term is used, the suit is brought
whenever a medical practitioner or health care provider fails to
meet the standards demanded by his profession, or deviates
from this standard, and causes injury to the patient.
To successfully pursue a medical malpractice suit, the plaintiff
(in this case, the deceased patient’s heir) must prove that the
doctor either failed to do what a reasonably prudent doctor
would have done, or did what a reasonably prudent doctor
would not have done; and the act or omission had caused
injury to the patient.34 The patient’s heir/s bears the burden of
proving his/her cause of action.
The Elements of a Medical Malpractice Suit
The elements of medical negligence are: (1) duty; (2) breach;
(3) injury; and (4) proximate causation.
Duty refers to the standard of behavior that imposes
restrictions on one's conduct.35 It requires proof of professional
relationship between the physician and the patient. Without
39 TORTS LAST SET
the professional relationship, a physician owes no duty to the
patient, and cannot therefore incur any liability.
A physician-patient relationship is created when a patient
engages the services of a physician,36 and the latter accepts or
agrees to provide care to the patient. 37 The establishment of
this relationship is consensual, 38 and the acceptance by the
physician essential. The mere fact that an individual
approaches a physician and seeks diagnosis, advice or
treatment does not create the duty of care unless the physician
agrees.39
The consent needed to create the relationship does not always
need to be express.40 In the absence of an express agreement, a
physician-patient relationship may be implied from the
physician’s affirmative action to diagnose and/or treat a
patient, or in his participation in such diagnosis and/or
treatment.41 The usual illustration would be the case of a
patient who goes to a hospital or a clinic, and is examined and
treated by the doctor. In this case, we can infer, based on the
established and customary practice in the medical community
that a patient-physician relationship exists.
Once a physician-patient relationship is established, the legal
duty of care follows. The doctor accordingly becomes duty-
bound to use at least the same standard of care that a
reasonably competent doctor would use to treat a medical
condition under similar circumstances.
Breach of duty occurs when the doctor fails to comply with, or
improperly performs his duties under professional standards.
This determination is both factual and legal, and is specific to
each individual case.42
If the patient, as a result of the breach of duty, is injured in
body or in health, actionable malpractice is committed,
entitling the patient to damages.43
To successfully claim damages, the patient must lastly prove
the causal relation between the negligence and the injury. This
connection must be direct, natural, and should be unbroken by
any intervening efficient causes. In other words, the
injury or damage is proximately caused by the physician’s
negligence when it appears, based on the evidence and the
expert testimony, that the negligence played an integral part in
causing the injury or damage, and that the injury or damage
was either a direct result, or a reasonably probable
consequence of the physician’s negligence.45
a. The Relationship Between Dr. Casumpang and Edmer
In the present case, the physician-patient relationship between
Dr. Casumpang and Edmer was created when the latter’s
parents sought the medical services of Dr. Casumpang, and the
latter knowingly accepted Edmer as a patient. Dr.
Casumpang’s acceptance is implied from his affirmative
examination, diagnosis and treatment of Edmer. On the other
hand, Edmer’s parents, on their son’s behalf, manifested their
consent by availing of the benefits of their health care plan,
and by accepting the hospital’s assigned doctor without
objections.
b. The Relationship Between Dr. Sanga and Edmer
With respect to Dr. Sanga, her professional relationship with
Edmer arose when she assumed the obligation to provide
resident supervision over the latter. As second year resident
doctor tasked to do rounds and assist other physicians, Dr.
Sanga is deemed to have agreed to the creation of physician-
patient relationship with the hospital’s patients when she
participated in the diagnosis and prescribed a course of
treatment for Edmer.
The undisputed evidence shows that Dr. Sanga examined
Edmer twice (at around 12:00 and 3:30 in the afternoon of
April 23, 1988),and in both instances, she prescribed treatment
and participated in the diagnosis of Edmer’s medical
condition. Her affirmative acts amounted to her acceptance of
the physician-patient relationship, and incidentally, the legal
duty of care that went with it.
In Jarcia, Jr. v. People of the Philippines, 46 the Court found the
doctors who merely passed by and were requested to attend to
the patient, liable for medical malpractice. It held that a
physician-patient relationship was established when they
examined the patient, and later assured the mother that
everything was fine.
In the US case of Mead v. Legacy Health System, 47 the Court
also considered the rendering of an opinion in the course of
the patient’s care as the doctor’s assent to the physician-
patient relationship. It ruled that the relationship was formed
because of the doctor’s affirmative action. Likewise, in Wax v.
Johnson,48 the court found that a physician patient relationship
was formed between a physician who "contracts, agrees,
undertakes, or otherwise assumes" the obligation to provide
resident supervision at a teaching hospital, and the patient with
whom the doctor had no direct or indirect contract.
Standard of Care and Breach of Duty
A determination of whether or not the petitioning doctors met
the required standard of care involves a question of mixed fact
and law; it is factual as medical negligence cases are highly
technical in nature, requiring the presentation of expert
witnesses to provide guidance to the court on matters clearly
falling within the domain of medical science, and legal,
insofar as the Court, after evaluating the expert testimonies,
and guided by medical literature, learned treatises, and its fund
of common knowledge, ultimately determines whether breach
of duty took place. Whether or not Dr. Casumpang and Dr.
Sanga committed a breach of duty is to be measured by the
yardstick of professional standards observed by the other
members of the medical profession in good standing under
similar circumstances.49 It is in this aspect of medical
malpractice that expert testimony is essential to establish not
only the professional standards observed in the medical
community, but also that the physician’s conduct in the
treatment of care falls below such standard. 50
In the present case, expert testimony is crucial in determining
first, the standard medical examinations, tests, and procedures
that the attending physicians should have undertaken in the
diagnosis and treatment of dengue fever; and second, the
dengue fever signs and symptoms that the attending physicians
should have noticed and considered.
Both the RTC and the CA relied largely on Dr. Jaudian’s
expert testimony on dengue diagnosis and management to
support their finding that the petitioning doctors were guilty of
breach of duty of care.
Dr. Jaudian testified that Edmer’s rapid breathing, chest and
stomach pain, fever, and the presence of blood in his saliva are
classic symptoms of dengue fever. According to him, if the
patient was admitted for chest pain, abdominal pain, and
difficulty in breathing coupled with fever, dengue fever should
definitely be considered;51 if the patient spits coffee ground
with the presence of blood, and the patient’s platelet count
drops to 47,000, it becomes a clear case of dengue fever, and
bronchopneumonia can be reasonably ruled out.52
40 TORTS LAST SET
Furthermore, the standard of care according to Dr. Jaudian is
to administer oxygen inhalation, analgesic, and fluid infusion
or dextrose.53 If the patient had twice vomited fresh blood and
thrombocytopenia has already occurred, the doctor should
order blood transfusion, monitoring of the patient every 30
minutes, hemostatic to stop bleeding, and oxygen if there is
difficulty in breathing.54
We find that Dr. Casumpang, as Edmer’s attending physician,
did not act according to these standards and, hence, was guilty
of breach of duty. We do not find Dr. Sanga liable for the
reasons discussed below.
Dr. Casumpang’s Negligence
a. Negligence in the Diagnosis
At the trial, Dr. Casumpang declared that a doctor’s
impression regarding a patient’s illness is 90% based on the
physical examination, the information given by the patient or
the latter’s parents, and the patient’s medical history.55 He
testified that he did not consider either dengue fever or dengue
hemorrhagic fever because the patient’s history showed that
Edmer had low breath and voluntary submission, and that he
was up and about playing basketball.56 He based his diagnosis
of bronchopneumonia on the following observations:
"difficulty in breathing, clearing run nostril, harsh breath
sound, tight air, and sivilant sound."57
It will be recalled that during Dr. Casumpang’s first and
second visits to Edmer, he already had knowledge of Edmer’s
laboratory test result (CBC), medical history, and symptoms
(i.e., fever, rashes, rapid breathing, chest and stomach pain,
throat irritation, difficulty in breathing, and traces of blood in
the sputum). However, these information did not lead Dr.
Casumpang to the possibility that Edmer could be suffering
from either dengue fever, or dengue hemorrhagic fever, as he
clung to his diagnosis of broncho pneumonia. This means that
given the symptoms exhibited, Dr. Casumpang already ruled
out the possibility of other diseases like dengue.
In other words, it was lost on Dr. Casumpang that the
characteristic symptoms of dengue (as Dr. Jaudian testified)
are: patient’s rapid breathing; chest and stomach pain; fever;
and the presence of blood in his saliva. All these
manifestations were present and known to Dr. Casumpang at
the time of his first and second visits to Edmer. While he
noted some of these symptoms in confirming
bronchopneumonia, he did not seem to have considered the
patient’s other manifestations in ruling out dengue fever or
dengue hemorrhagic fever.58 To our mind, Dr. Casumpang
selectively appreciated some, and not all of the symptoms;
worse, he casually ignored the pieces of information that could
have been material in detecting dengue fever. This is evident
from the testimony of Mrs. Cortejo:
TSN, Mrs. Cortejo, November 27, 1990
Q: Now, when Dr. Casumpang visited your son for the first
time at 5:30 p.m., what did he do, if any?
A: He examined my son by using stethoscope and after that,
he confirmed to me that my son was suffering from broncho
pneumonia.
Q: After he confirmed that your son was suffering broncho
pneumonia, what did you say if any?
A: Again, I told Dr. Casumpang, how come it was broncho
pneumonia when my son has no cough or colds.
Q: What was the answer of Dr. Casumpang to your statement?
xxxx
A: And then, Dr. Casumpang answered "THAT’S THE
USUAL BRONCHO PNEUMONIA, NO COLDS, NO
PHLEGM."
Q: How long did Dr. Casumpang stay in your son’s room?
A: He stayed for a minute or 2.
xxxx
Q: When Dr. Casumpang arrived at 9:00 o’clock a.m. on April
23, what did you tell him, if any?
xxxx
A: I told Dr. Casumpang… After examining my son using
stethoscope and nothing more, I told Dr. Casumpang about the
traces of blood in my son’s sputum and I told him what is all
about and he has throat irritation.
Q: What did he tell you?
A: He just nodded his head but he did not take the initiative of
looking at the throat of my son.
Q: So what happened after that?
A: I also told Dr. Casumpang about his chest pain and also
stomach pain.
Q: So what did Dr. Casumpang do after you have narrated all
these complaints of your son?
A: Nothing. He also noticed the rapid breathing of my son and
my son was almost moving because of rapid breathing and he
is swaying in the bed.
Q: Do you know what action was taken by Dr. Casumpang
when you told him that your son is experiencing a rapid
breathing?
A: No action. He just asked me if my son has an asthma but I
said none.
Q: So how long did Dr. Casumpang stay and attended your
son on April 23?
A: More or less two (2) minutes then I followed him up to the
door and I repeated about the fever of my son.
Q: What did he tell you, if any, regarding that information you
gave him that your son had a fever?
A: He said, that is broncho pneumonia, It’s only being active
now. [Emphasis supplied]
We also find it strange why Dr. Casumpang did not even
bother to check Edmer’s throat despite knowing that as early
as 9:00 in the morning of April 23, 1988, Edmer had blood
streaks in his sputum. Neither did Dr. Casumpang order
confirmatory tests to confirm the source of bleeding. The
Physician’s Progress Notes59 stated: "Blood streaks on phlegm
can be due to bronchial irritation or congestion," which clearly
showed that Dr. Casumpang merely assumed, without
confirmatory physical examination, that bronchopneumonia
caused the bleeding.
41 TORTS LAST SET
Dr. Jaudian likewise opined that Dr. Casumpang’s medical
examination was not comprehensive enough to reasonably
lead to a correct diagnosis. 60 Dr. Casumpang only used a
stethoscope in coming up with the diagnosis that Edmer was
suffering from bronchopneumonia; he never confirmed this
finding with the use of a bronchoscope. Furthermore, Dr.
Casumpang based his diagnosis largely on the chest x-ray
result that is generally inconclusive.61
Significantly, it was only at around 5:00 in the afternoon of
April 23, 1988 (after Edmer’s third episode of bleeding) that
Dr. Casumpang ordered the conduct of hematocrit,
hemoglobin, blood typing, blood transfusion and tourniquet
tests. These tests came too late, as proven by: (1) the blood test
results that came at about 6:00 in the evening, confirming that
Edmer’s illness had developed to "Dengue Hemorrhagic
Fever;" and (2) Dr. Jaudian’s testimony that "dengue fever
could have been detected earlier than 7:30 in the evening of
April 23, 1988 because the symptoms were already evident."62
In Spouses Flores v. Spouses Pineda, 63 a case involving a
medical malpractice suit, the Court ruled that the petitioner
doctors were negligent because they failed to immediately
order tests to confirm the patient’s illness. Despite the doctors’
suspicion that the patient could be suffering from diabetes, the
former still proceeded to the D&C operation. In that case,
expert testimony showed that tests should have been ordered
immediately on admission to the hospital in view of the
symptoms presented. The Court held:
When a patient exhibits symptoms typical of a particular
disease, these symptoms should, at the very least, alert the
physician of the possibility that the patient may be afflicted
with the suspected disease.
The Court also ruled that reasonable prudence would have
shown that diabetes and its complications were foreseeable
harm. However, the petitioner doctors failed to take this into
consideration and proceeded with the D&C operation. Thus,
the Court ruled that they failed to comply with their duty to
observe the standard of care to be given to
hyperglycemic/diabetic patients.
Similarly, in Jarcia, 64 involving the negligence of the doctors
in failing to exercise reasonable prudence in ascertaining the
extent of the patient’s injuries, this Court declared that:
In failing to perform an extensive medical examination to
determine the extent of Roy Jr.’s injuries, Dr. Jarcia and Dr.
Bastan were remiss of their duties as members of the medical
profession. Assuming for the sake of argument that they did
not have the capacity to make such thorough evaluation at that
stage, they should have referred the patient to another doctor
with sufficient training and experience instead of assuring him
and his mother that everything was all right. [Emphasis
supplied]
Even assuming that Edmer’s symptoms completely coincided
with the diagnosis of bronchopneumonia (so that this
diagnosis could not be considered "wrong"), we still find Dr.
Casumpang guilty of negligence.
First, we emphasize that we do not decide the correctness of a
doctor’s diagnosis, or the accuracy of the medical findings and
treatment. Our duty in medical malpractice cases is to decide –
based on the evidence adduced and expert opinion presented–
whether a breach of duty took place.
Second, we clarify that a wrong diagnosis is not by itself
medical malpractice.65 Physicians are generally not liable for
damages resulting from a bona fide error of judgment.
Nonetheless, when the physician’s erroneous diagnosis was
the result of negligent conduct (e.g., neglect of medical
history, failure to order the appropriate tests, failure to
recognize symptoms), it becomes an evidence of medical
malpractice.
Third, we also note that medicine is not an exact science; 66 and
doctors, or even specialists, are not expected to give a 100%
accurate diagnosis in treating patients who come to their clinic
for consultations. Error is possible as the exercise of judgment
is called for in considering and reading the exhibited
symptoms, the results of tests, and in arriving at definitive
conclusions. But in doing all these, the doctor must have acted
according to acceptable medical practice standards.
In the present case, evidence on record established that in
confirming the diagnosis of bronchopneumonia, Dr.
Casumpang selectively appreciated some and not all of the
symptoms presented, and failed to promptly conduct the
appropriate tests to confirm his findings. In sum, Dr.
Casumpang failed to timely detect dengue fever, which failure,
especially when reasonable prudence would have shown that
indications of dengue were evident and/or foreseeable,
constitutes negligence.
a. Negligence in the Treatment and Management of Dengue
Apart from failing to promptly detect dengue fever, Dr.
Casumpang also failed to promptly undertake the proper
medical management needed for this disease.
As Dr. Jaudian opined, the standard medical procedure once
the patient had exhibited the classic symptoms of dengue fever
should have been: oxygen inhalation, use of analgesic, and
infusion of fluids or dextrose; 67 and once the patient had twice
vomited fresh blood, the doctor should have ordered: blood
transfusion, monitoring of the patient every 30 minutes,
hemostatic to stop bleeding, and oxygen if there is difficulty in
breathing.68
Dr. Casumpang failed to measure up to these standards. The
evidence strongly suggests that he ordered a transfusion of
platelet concentrate instead of blood transfusion. The
tourniquet test was only conducted after Edmer’s second
episode of bleeding, and the medical management (as reflected
in the records) did not include antibiotic therapy and complete
physical examination. Dr. Casumpang’s testimony states:
Q: Now, after entertaining – After considering that the patient
Edmer Cortero was already suffering from dengue
hemorrhagic fever, what did you do, if any?
A: We ordered close monitoring of the blood pressure, the
cardiac rate and respiratory rate of the patient.
Q: Now, was your instructions carried on?
A: Yes, sir.
Q: What was the blood pressure of the patient?
A: During those times, the blood pressure of the patient was
even normal during those times.
Q: How about the respiratory rate?
A: The respiratory rate was fast because the patient in the
beginning since admission had difficulty in breathing.
Q: Then, after that, what did you do with the patient? Doctor?
42 TORTS LAST SET
A: We transfused platelet concentrate and at the same time, we
monitor [sic] the patient.
Q: Then, who monitor [sic] the patient?
A: The pediatric resident on duty at that time.
Q: Now, what happened after that?
Q: While monitoring the patient, all his vital signs were
_____; his blood pressure was normal so we continued with
the supportive management at that time.
Q: Now, after that?
A: In the evening of April 23, 1988, I stayed in the hospital
and I was informed by the pediatric resident on duty at around
11:15 in the evening that the blood pressure of the patient
went down to .60 palpatory.
Q: What did you do upon receipt of that information?
A: I immediately went up to the room of the patient and we
changed the IV fluid from the present fluid which was D5 0.3
sodium chloride to lactated ringers solution.
Q: You mean to say you increased the dengue [sic] of the
intervenus [sic] fluid?
A: We changed the IV fluid because lactated ringers was
necessary to resume the volume and to bring back the blood
pressure, to increase the blood pressure. [Emphasis supplied]
Although Dr. Casumpang presented the testimonies of Dr.
Rodolfo Jagonap and Dr. Ellewelyn Pasion (Dr. Pasion),
Personnel Officer and Medical Director of SJDH, respectively
as well as the testimonies of Dr. Livelo and Dr. Reyes (the
radiologist who read Edmer’s chest x-ray result), these
witnesses failed to dispute the standard of action that Dr.
Jaudian established in his expert opinion. We cannot consider
them expert witnesses either for the sole reason that they did
not testify on the standard of care in dengue cases. 69
On the whole, after examining the totality of the adduced
evidence, we find that the lower courts correctly did not rely
on Dr. Casumpang’s claim that he exercised prudence and due
diligence in handling Edmer’s case. Aside from being self-
serving, his claim is not supported by competent evidence. As
the lower courts did, we rely on the uncontroverted fact that he
failed, as a medical professional, to observe the most prudent
medical procedure under the circumstances in diagnosing and
treating Edmer.
Dr. Sanga is Not Liable for Negligence
In considering the case of Dr. Sanga, the junior resident
physician who was on-duty at the time of Edmer’s
confinement, we see the need to draw distinctions between the
responsibilities and corresponding liability of Dr. Casumpang,
as the attending physician, and that of Dr. Sanga.
In his testimony, Dr. Pasion declared that resident applicants
are generally doctors of medicine licensed to practice in the
Philippines and who would like to pursue a particular
specialty.70 They are usually the front line doctors responsible
for the first contact with the patient. During the scope of the
residency program,71 resident physicians (or
72
"residents")  function under the supervision of attending
physicians73 or of the hospital’s teaching staff. Under this
arrangement, residents operate merely as subordinates who
usually defer to the attending physician on the decision to be
made and on the action to be taken.
The attending physician, on the other hand, is primarily
responsible for managing the resident’s exercise of duties.
While attending and resident physicians share the collective
responsibility to deliver safe and appropriate care to the
patients,74 it is the attending physician who assumes the
principal responsibility of patient care. 75 Because he/she
exercises a supervisory role over the resident, and is ultimately
responsible for the diagnosis and treatment of the patient, the
standards applicable to and the liability of the resident for
medical malpractice is theoretically less than that of the
attending physician. These relative burdens and distinctions,
however, do not translate to immunity from the legal duty of
care for residents,76 or from the responsibility arising from
their own negligent act.
77
In Jenkins v. Clark,  the Ohio Court of Appeals held that the
applicable standard of care in medical malpractice cases
involving first-year residents was that of a reasonably prudent
physician and not that of interns. According to Jenkins:
It is clear that the standard of care required of physicians is not
an individualized one but of physicians in general in the
community. In order to establish medical malpractice, it must
be shown by a preponderance of the evidence that a physician
did some particular thing or things that a physician or surgeon
of ordinary skill, care and diligence would not have done
under like or similar conditions or circumstances, or that he
failed or omitted to do some particular thing or things that a
physician or surgeon of ordinary skill, care and diligence
would have done under like or similar conditions or
circumstances, and that the inquiry complained of was the
direct result of such doing or failing to do such thing or things.
We note that the standard of instruction given by the court was
indeed a proper one. It clearly informed the jury that the
medical care required is that of reasonably careful physicians
or hospital emergency room operators, not of interns or
residents. [Emphasis supplied]
A decade later, Centman v. Cobb,78 affirmed the Jenkins ruling
and held that interns and first-year residents are "practitioners
of medicine required to exercise the same standard of care
applicable to physicians with unlimited licenses to practice."
The Indiana Court held that although a first-year resident
practices under a temporary medical permit, he/she impliedly
contracts that he/she has the reasonable and ordinary
qualifications of her profession and that he/she will exercise
reasonable skill, diligence, and care in treating the patient.
We find that Dr. Sanga was not independently negligent.
Although she had greater patient exposure, and was subject to
the same standard of care applicable to attending physicians,
we believe that a finding of negligence should also depend on
several competing factors, among them, her authority to make
her own diagnosis, the degree of supervision of the attending
physician over her, and the shared responsibility between her
and the attending physicians.
In this case, before Dr. Sanga attended to Edmer, both Dr.
Livelo and Dr. Casumpang had diagnosed Edmer with
bronchopneumonia. In her testimony, Dr. Sanga admitted that
she had been briefed about Edmer’s condition, his medical
history, and initial diagnosis;79 and based on these pieces of
information, she confirmed the finding of bronchopneumonia.
Dr. Sanga likewise duly reported to Dr. Casumpang, who
admitted receiving updates regarding Edmer’s
condition.80 There is also evidence supporting Dr. Sanga’s
claim that she extended diligent care to Edmer. In fact, when
she suspected – during Edmer’s second episode of bleeding–
43 TORTS LAST SET
that Edmer could be suffering from dengue fever, she wasted
no time in conducting the necessary tests, and promptly
notified Dr. Casumpang about the incident. Indubitably, her
medical assistance led to the finding of dengue fever.
We note however, that during Edmer’s second episode of
bleeding,81 Dr. Sanga failed to immediately examine and note
the cause of the blood specimen. Like Dr. Casumpang, she
merely assumed that the blood in Edmer’s phlegm was caused
by bronchopneumonia. Her testimony states:
TSN, June 8, 1993:
Q: Let us get this clear, you said that the father told you the
patient cocked [sic] out phlegm.
A: With blood streak.
Q: Now, you stated specimen, were you not able to examine
the specimen?
A: No, sir, I did not because according to the father he wash
[sic] his hands.
xxxx
Q: Now, from you knowledge, what does that indicate if the
patient expels a phlegm and blood streak?
A: If a patient cocked [sic] out phlegm then the specimen
could have come from the lung alone.82 [Emphasis supplied]
xxxx
TSN, June 17, 1993:
Q: Now, in the first meeting you had, when that was relayed to
you by the father that Edmer Cortejo had coughed out blood,
what medical action did you take?
A: I examined the patient and I thought that, that coughed out
phlegm was a product of broncho pneumonia.
xxxx
Q: So what examination did you specifically conduct to see
that there was no internal bleeding? A: At that time I did not
do anything to determine the cause of coughing of the blood
because I presumed that it was a mucous (sic) produced by
broncho pneumonia, And besides the patient did not even
show any signs of any other illness at that time.83
Based on her statements we find that Dr. Sanga was not
entirely faultless. Nevertheless, her failure to discern the
import of Edmer’s second bleeding does not necessarily
amount to negligence as the respondent himself admitted that
Dr. Sanga failed to examine the blood specimen because he
wash edit away. In addition, considering the diagnosis
previously made by two doctors, and the uncontroverted fact
that the burden of final diagnosis pertains to the attending
physician (in this case, Dr. Casumpang), we believe that Dr.
Sanga’s error was merely an honest mistake of judgment
influenced in no small measure by her status in the hospital
hierarchy; hence, she should not be held liable for medical
negligence.
Dr. Jaudian’s Professional Competence and Credibility
One of the critical issues the petitioners raised in the
proceedings before the lower court and before this Court was
Dr. Jaudian’s competence and credibility as an expert witness.
The petitioners tried to discredit his expert testimony on the
ground that he lacked the proper training and fellowship status
in pediatrics.
● Criteria in Qualifying as an Expert Witness
The competence of an expert witness is a matter for the trial
court to decide upon in the exercise of its discretion. The test
of qualification is necessarily a relative one, depending upon
the subject matter of the investigation, and the fitness of the
expert witness.84 In our jurisdiction, the criterion remains to be
the expert witness’ special knowledge experience and practical
training that qualify him/her to explain highly technical
medical matters to the Court.
85
In Ramos v. Court of Appeals,  the Court found the expert
witness, who is a pulmonologist, not qualified to testify on the
field of anesthesiology. Similarly, in Cereno v. Court of
Appeals,86 a 2012 case involving medical negligence, the
Court excluded the testimony of an expert witness whose
specialty was anesthesiology, and concluded that an
anesthesiologist cannot be considered an expert in the field of
surgery or even in surgical practices and diagnosis.
Interestingly in this case, Dr. Jaudian, the expert witness was
admittedly not a pediatrician but a practicing physician who
specializes in pathology.87 He likewise does not possess any
formal residency training in pediatrics. Nonetheless, both the
lower courts found his knowledge acquired through study and
practical experience sufficient to advance an expert opinion on
dengue-related cases.
We agree with the lower courts.
A close scrutiny of Ramos and Cereno reveals that the Court
primarily based the witnesses’ disqualification to testify as an
expert on their incapacity to shed light on the standard of care
that must be observed by the defendant-physicians. That the
expert witnesses’ specialties do not match the physicians’
practice area only constituted, at most, one of the
considerations that should not be taken out of context. After
all, the sole function of a medical expert witness, regardless of
his/her specialty, is to afford assistance to the courts on
medical matters, and to explain the medical facts in issue.
Furthermore, there was no reasonable indication in Ramos and
Cereno that the expert witnesses possess a sufficient
familiarity with the standard of care applicable to the
physicians’ specialties. US jurisprudence on medical
malpractice demonstrated the trial courts’ wide latitude of
discretion in allowing a specialist from another field to testify
against a defendant specialist.
In Brown v. Sims,88 a neurosurgeon was found competent to
give expert testimony regarding a gynecologist's standard of
pre-surgical care. In that case, the court held that since
negligence was not predicated on the gynecologist’s negligent
performance of the operation, but primarily on the claim that
the pre-operative histories and physicals were inadequate, the
neurosurgeon was competent to testify as an expert.
89
Frost v. Mayo Clinic  also allowed an orthopedic surgeon to
testify against a neurologist in a medical malpractice action.
The court considered that the orthopedic surgeon’s opinion on
the "immediate need for decompression" need not come from
a specialist in neurosurgery. The court held that:
It is well established that "the testimony of a qualified medical
doctor cannot be excluded simply because he is not a specialist
x x x." The matter of "x x x training and specialization of the
witness goes to the weight rather than admissibility x x x."
44 TORTS LAST SET
xxxx
It did not appear to the court that a medical doctor had to be a
specialist in neurosurgery to express the opinions permitted to
be expressed by plaintiffs’ doctors, e.g., the immediate need
for a decompression in the light of certain neurological deficits
in a post-laminectomy patient. As stated above, there was no
issue as to the proper execution of the neurosurgery. The
medical testimony supported plaintiffs’ theory of negligence
and causation. (Citations omitted)
In another case,90 the court declared that it is the specialist’s
knowledge of the requisite subject matter, rather than his/her
specialty that determines his/her qualification to testify.
Also in Evans v. Ohanesian, 91 the court set a guideline in
qualifying an expert witness:
To qualify a witness as a medical expert, it must be shown that
the witness (1) has the required professional knowledge,
learning and skill of the subject under inquiry sufficient to
qualify him to speak with authority on the subject; and (2) is
familiar with the standard required of a physician under
similar circumstances; where a witness has disclosed sufficient
knowledge of the subject to entitle his opinion to go to the
jury, the question of the degree of his knowledge goes more to
the weight of the evidence than to its admissibility.
xxxx
Nor is it critical whether a medical expert is a general
practitioner or a specialist so long as he exhibits knowledge of
the subject. Where a duly licensed and practicing physician
has gained knowledge of the standard of care applicable to a
specialty in which he is not directly engaged but as to which
he has an opinion based on education, experience, observation,
or association wit that specialty, his opinion is competent.
(Emphasis supplied)
Finally, Brown v. Mladineo 92 adhered to the principle that the
witness’ familiarity, and not the classification by title or
specialty, which should control issues regarding the expert
witness’ qualifications:
The general rule as to expert testimony in medical malpractice
actions is that "a specialist in a particular branch within a
profession will not be required." Most courts allow a doctor to
testify if they are satisfied of his familiarity with the standards
of a specialty, though he may not practice the specialty
himself. One court explained that "it is the scope of the
witness’ knowledge and not the artificial classification by title
that should govern the threshold question of admissibility.
(Citations omitted)
● Application to the Present Case
In the case and the facts before us, we find that Dr. Jaudian is
competent to testify on the standard of care in dengue fever
cases.1avvphi1
Although he specializes in pathology, it was established
during trial that he had attended not less than 30 seminars held
by the Pediatric Society, had exposure in pediatrics, had been
practicing medicine for 16 years, and had handled not less
than 50 dengue related cases.
As a licensed medical practitioner specializing in pathology,
who had practical and relevant exposure in pediatrics and
dengue related cases, we are convinced that Dr. Jaudian
demonstrated sufficient familiarity with the standard of care to
be applied in dengue fever cases. Furthermore, we agree that
he possesses knowledge and experience sufficient to qualify
him to speak with authority on the subject.
The Causation Between Dr. Casumpang’s
Negligent Act/Omission, and the Patient’s
Resulting Death was Adequately Proven
Dr. Jaudian’s testimony strongly suggests that due to Dr.
Casumpang’s failure to timely diagnose Edmer with dengue,
the latter was not immediately given the proper treatment. In
fact, even after Dr. Casumpang had discovered Edmer’s real
illness, he still failed to promptly perform the standard medical
procedure. We agree with these findings.
As the respondent had pointed out, dengue fever, if left
untreated, could be a life threatening disease. As in any fatal
diseases, it requires immediate medical attention. 93 With the
correct and timely diagnosis, coupled with the proper medical
management, dengue fever is not a life threatening disease and
could easily be cured.94
Furthermore, as Dr. Jaudian testified, with adequate intensive
care, the mortality rate of dengue fever should fall to less than
2%. Hence, the survival of the patient is directly related to
early and proper management of the illness.95
To reiterate, Dr. Casumpang failed to timely diagnose Edmer
with dengue fever despite the presence of its characteristic
symptoms; and as a consequence of the delayed diagnosis, he
also failed to promptly manage Edmer’s illness. Had he
immediately conducted confirmatory tests, (i.e., tourniquet
tests and series of blood tests)and promptly administered the
proper care and management needed for dengue fever, the risk
of complications or even death, could have been substantially
reduced.
Furthermore, medical literature on dengue shows that early
diagnosis and management of dengue is critical in reducing
the risk of complications and avoiding further spread of the
virus.96 That Edmer later died of "Hypovolemic
Shock/hemorrhagic shock," "Dengue Hemorrhagic Fever
Stage IV," a severe and fatal form of dengue fever, established
the causal link between Dr. Casumpang’s negligence and the
injury.
Based on these considerations, we rule that the respondent
successfully proved the element of causation.
Liability of SJDH
We now discuss the liability of the hospital.
The respondent submits that SJDH should not only be held
vicariously liable for the petitioning doctors’ negligence but
also for its own negligence. He claims that SJDH fell short of
its duty of providing its patients with the necessary facilities
and equipment as shown by the following circumstances:
(a) SJDH was not equipped with proper paging
system;
(b) the number of its doctors is not proportionate to
the number of patients;
(c) SJDH was not equipped with a bronchoscope;
(d) when Edmer’s oxygen was removed, the medical
staff did not immediately provide him with portable
oxygen;
45 TORTS LAST SET
(e) when Edmer was about to be transferred to
another hospital, SJDH’s was not ready and had no
driver; and
(f) despite Edmer’s critical condition, there was no
doctor attending to him from 5:30 p.m. of April 22, to
9:00 a.m. of April 23, 1988.
SJDH on the other hand disclaims liability by claiming that the
petitioning doctors are not its employees but are mere
consultants and independent contractors.
We affirm the hospital’s liability not on the basis of Article
2180 of the Civil Code, but on the basis of the doctrine of
apparent authority or agency by estoppel.
There is No Employer-Employee Relationship
Between SJDH and the Petitioning Doctors
In determining whether an employer-employee relationship
exists between the parties, the following elements must be
present: (1) selection and engagement of services; (2) payment
of wages; (3) the power to hire and fire; and (4) the power to
control not only the end to be achieved, but the means to be
used in reaching such an end.97
Control, which is the most crucial among the elements, is not
present in this case.
Based on the records, no evidence exists showing that SJDH
exercised any degree of control over the means, methods of
procedure and manner by which the petitioning doctors
conducted and performed their medical profession. SJDH did
not control their diagnosis and treatment. Likewise, no
evidence was presented to show that SJDH monitored,
supervised, or directed the petitioning doctors in the treatment
and management of Edmer’s case. In these lights, the
petitioning doctors were not employees of SJDH, but were
mere independent contractors.
SJDH is Solidarily Liable Based
on The Principle of Agency or Doctrine
of Apparent Authority
Despite the absence of employer-employee relationship
between SJDH and the petitioning doctors, SJDH is not free
from liability.98
As a rule, hospitals are not liable for the negligence of its
independent contractors. However, it may be found liable if
the physician or independent contractor acts as an ostensible
agent of the hospital. This exception is also known as the
"doctrine of apparent authority."99
The US case of Gilbert v. Sycamore Municipal
Hospital100 abrogated the hospitals’ immunity to vicarious
liability of independent contractor physicians. In that case, the
Illinois Supreme Court held that under the doctrine of apparent
authority, hospitals could be found vicariously liable for the
negligence of an independent contractor:
Therefore, we hold that, under the doctrine of apparent
authority, a hospital can be held vicariously liable for the
negligent acts of a physician providing care at the hospital,
regardless of whether the physician is an independent
contractor, unless the patient knows, or should have known,
that the physician is an independent contractor. The elements
of the action have been set out as follows:
For a hospital to be liable under the doctrine of apparent
authority, a plaintiff must show that: (1) the hospital, or its
agent, acted in a manner that would lead a reasonable person
to conclude that the individual who was alleged to be
negligent was an employee or agent of the hospital; (2) where
the acts of the agent create the appearance of authority, the
plaintiff must also prove that the hospital had knowledge of
and acquiesced in them; and (3) the plaintiff acted in reliance
upon the conduct of the hospital or its agent, consistent with
ordinary care and prudence. (Emphasis supplied)
The doctrine was applied in Nogales v. Capitol Medical
Center101 where this Court, through the ponencia of Associate
Justice Antonio T. Carpio, discussed the two factors in
determining hospital liability as follows:
The first factor focuses on the hospital’s manifestations and is
sometimes described as an inquiry whether the hospital acted
in a manner which would lead a reasonable person to conclude
that the individual who was alleged to be negligent was an
employee or agent of the hospital. In this regard, the hospital
need not make express representations to the patient that the
treating physician is an employee of the hospital; rather a
representation may be general and implied.
xxxx
The second factor focuses on the patient's reliance. It is
sometimes characterized as an inquiry on whether the plaintiff
acted in reliance upon the conduct of the hospital or its agent,
consistent with ordinary care and prudence. (Citation omitted)
In sum, a hospital can be held vicariously liable for the
negligent acts of a physician (or an independent contractor)
providing care at the hospital if the plaintiff can prove these
two factors: first, the hospital’s manifestations; and second,
the patient’s reliance.
a. Hospital’s manifestations
It involves an inquiry on whether the hospital acted in a
manner that would lead a reasonable person to conclude that
the individual alleged to be negligent was an employee or
agent of the hospital. As pointed out in Nogales, the hospital
need not make express representations to the patient that the
physician or independent contractor is an employee of the
hospital; representation may be general and implied.102
In Pamperin v. Trinity Memorial Hospital, 103 questions were
raised on "what acts by the hospital or its agent are sufficient
to lead a reasonable person to conclude that the individual was
an agent of the hospital." In ruling that the hospital’s
manifestations can be proven without the express
representation by the hospital, the court relied on several cases
from other jurisdictions, and held that:
(1) the hospital, by providing emergency room care
and by failing to advise patients that they were being
treated by the hospital’s agent and not its employee,
has created the appearance of agency; and
(2) patients entering the hospital through the
emergency room, could properly assume that the
treating doctors and staff of the hospital were acting
on its behalf.1â wphi1
In this case, the court considered the act of the hospital of
holding itself out as provider of complete medical care, and
considered the hospital to have impliedly created the
appearance of authority.
b. Patient’s reliance
46 TORTS LAST SET
It involves an inquiry on whether the plaintiff acted in reliance
on the conduct of the hospital or its agent, consistent with
ordinary care and prudence.104
In Pamperin, the court held that the important consideration in
determining the patient’s reliance is: whether the plaintiff is
seeking care from the hospital itself or whether the plaintiff is
looking to the hospital merely as a place for his/her personal
physician to provide medical care. 105 Thus, this requirement is
deemed satisfied if the plaintiff can prove that he/she relied
upon the hospital to provide care and treatment, rather than
upon a specific physician. In this case, we shall limit the
determination of the hospital’s apparent authority to Dr.
Casumpang, in view of our finding that Dr. Sanga is not liable
for negligence.
SJDH Clothed Dr. Casumpang With Apparent Authority
SJDH impliedly held out and clothed Dr. Casumpang with
apparent authority leading the respondent to believe that he is
an employee or agent of the hospital.
Based on the records, the respondent relied on SJDH rather
than upon Dr. Casumpang, to care and treat his son Edmer.
His testimony during trial showed that he and his wife did not
know any doctors at SJDH; they also did not know that Dr.
Casumpang was an independent contractor. They brought their
son to SJDH for diagnosis because of their family doctor’s
referral. The referral did not specifically point to Dr.
Casumpang or even to Dr. Sanga, but to SJDH. Significantly,
the respondent had relied on SJDH’s representation of Dr.
Casumpang’s authority. To recall, when Mrs. Cortejo
presented her Fortune Care card, she was initially referred to
the Fortune Care coordinator, who was then out of town. She
was thereafter referred to Dr. Casumpang, who is also
accredited with Fortune Care. In both instances, SJDH through
its agent failed to advise Mrs. Cortejo that Dr. Casumpang is
an independent contractor.
Mrs. Cortejo accepted Dr. Casumpang’s services on the
reasonable belief that such were being provided by SJDH or
its employees, agents, or servants. By referring Dr.
Casumpang to care and treat for Edmer, SJDH impliedly held
out Dr. Casumpang, not only as an accredited member of
Fortune Care, but also as a member of its medical staff. SJDH
cannot now disclaim liability since there is no showing that
Mrs. Cortejo or the respondent knew, or should have known,
that Dr. Casumpang is only an independent contractor of the
hospital. In this case, estoppel has already set in.
We also stress that Mrs. Cortejo’s use of health care plan
(Fortune Care) did not affect SJDH’s liability. The only effect
of the availment of her Fortune Care card benefits is that her
choice of physician is limited only to physicians who are
accredited with Fortune Care. Thus, her use of health care plan
in this case only limited the choice of doctors (or coverage of
services, amount etc.) and not the liability of doctors or the
hospital.
WHEREFORE, premises considered, this Court PARTLY
GRANTS the consolidated petitions. The Court finds Dr. Noel
Casumpang and San Juan de Dios Hospital solidarily liable for
negligent medical practice. We SET ASIDE the finding of
liability as to Dr. Ruby Miranda-Sanga. The amounts of
₱45,000.00 as actual damages and ₱500,000.00 as moral
damages should each earn legal interest at the rate of six
percent (6%) per annum computed from the date of the
judgment of the trial court. The Court AFFIRMS the rest of
the Decision dated October 29, 2004 and the Resolution dated
January 12, 2006 in CA-G.R. CV No. 56400.
SO ORDERED.
47 TORTS LAST SET
G.R. No. 210445, December 07, 2015
NILO B. ROSIT, Petitioner, v. DAVAO DOCTORS
HOSPITAL AND DR. ROLANDO G.
GESTUVO, Respondent.
DECISION
VELASCO JR., J.:
The Case
This is a petition filed under Rule 45 of the Rules of Court
assailing the Decision and Resolution dated January 22,
20131 and November 7, 2013,2 respectively, of the Court of
Appeals, Cagayan De Oro City (CA), in CA-G.R. CV No.
00911-MIN. The CA Decision reversed the Decision dated
September 14, 20043 of the Regional Trial Court, Branch 33 in
Davao City-(RTC) in Civil Case No. 27,354-99, a suit for
damages thereat which Nilo B. Rosit (Rosit) commenced
against Dr. Rolando Gestuvo (Dr. Gestuvo).
Factual Antecedents
On January 15, 1999, Rosit figured in a motorcycle accident.
The X-ray soon taken the next day at the Davao Doctors
Hospital (DDH) showed that he fractured his jaw. Rosit was
then referred to Dr. Gestuvo, a specialist in mandibular
injuries,4 who, on January 19, 1999, operated on Rosit.
During the operation, Dr. Gestuvo used a metal plate fastened
to the jaw with metal screws to immobilize the mandible. As
the operation required the smallest screws available, Dr.
Gestuvo cut the screws on hand to make them smaller. Dr.
Gestuvo knew that there were smaller titanium screws
available in Manila, but did not so inform Rosit supposing that
the latter would not be able to afford the same. 5
Following the procedure, Rosit could not properly open and
close his mouth and was in pain. X-rays done on Rosit two (2)
days after the operation showed that the fracture in his jaw
was aligned but the screws used on him touched his molar.
Given the X-ray results, Dr. Gestuvo referred Rosit to a
dentist. The dentist who checked Rosit, Dr. Pangan, opined
that another operation is necessary and that it is to be
performed in Cebu.6
Alleging that the dentist told him that the operation conducted
on his mandible was improperly done, Rosit went back to Dr.
Gestuvo to demand a loan to defray the cost of the additional
operation as well as the expenses of the trip to Cebu. Dr.
Gestuvo gave Rosit P4,500.
Rosit went to Cebu on February 19, 1999, still suffering from
pain and could hardly open his mouth.
In Cebu, Dr. Pangan removed the plate and screws thus
installed by Dr. Gestuvo and replaced them with smaller
titanium plate and screws. Dr. Pangan also extracted Rosit's
molar that was hit with a screw and some bone fragments.
Three days after the operation, Rosit was able to eat and speak
well and could open and close his mouth normally. 7
On his return to Davao, Rosit demanded that Dr. Gestuvo
reimburse him for the cost of the operation and the expenses
he incurred in Cebu amounting to P140,000, as well as for the
P50,000 that Rosit would have to spend for the removal of the
plate and screws that Dr. Pangan installed. Dr. Gestuvo
refused to pay.8
Thus, Rosit filed a civil case for damages and attorney's fees
with the RTC against Dr. Gestuvo and DDH, the suit docketed
as Civil Case No. 27,354-99.
The Ruling of the Regional Trial Court
48 TORTS LAST SET
The RTC freed DDH from liability on the ground that it
exercised the proper diligence in the selection and supervision
of Dr. Gestuvo, but adjudged Dr. Gestuvo negligent and ruled,
thus:
FOR ALL THE FOREGOING, finding the plaintiff Nilo B.
Rosit to have preponderantly established his cause of action in
the complaint against defendant Dr. Rolando G. Gestuvo only,
judgment is hereby rendered for the plaintiff and against said
defendant, ordering the defendant DR. ROLANDO G.
GESTUVO to pay unto plaintiff NILO B. ROSIT the
following:chanRoblesvirtualLawlibrary
a) the sum of ONE HUNDRED FORTY THOUSAND
ONE HUNDRED NINETY NINE PESOS and 13/100
(P140,199.13) representing reimbursement of actual
expenses incurred by plaintiff in the operation and re-
operation of his mandible;
b) the sum of TWENTY NINE THOUSAND AND
SIXTY EIGHT PESOS (P29,068.00) representing
reimbursement of the filing fees and appearance fees;
c) the sum of ONE HUNDRED FIFTY THOUSAND
PESOS (P150,000.00) as and for attorney's fees;
d) the amount of FIFTY THOUSAND PESOS
(P50,000.00) as moral damages;
e) the amount of TEN THOUSAND PESOS (P10,000.00)
as exemplary damages; and
f) the costs of the suit.
For lack of merit, the complaint against defendant DAVAO
DOCTORS HOSPITAL and the defendants' counterclaims are
hereby ordered DISMISSED.
Cost against Dr. Rolando G. Gestuvo.
SO ORDERED.
In so ruling, the trial court applied the res ipsa
loquitur principle holding that "the need for expert, medical
testimony may be dispensed with because the injury itself
provides the proof of negligence."
Therefrom, both parties appealed to the CA.
The Ruling of the Court of Appeals
In its January 22, 2013 Decision, the CA modified the
appealed judgment by deleting the awards made by the trial
court, disposing as follows:
WHEREFORE, the appeal filed by Gestuvo is GRANTED.
The Decision dated September 14, 2004 of the Regional Trial
Court, Branch 33, Davao City, rendered in Civil Case No.
27,354-99 is hereby MODIFIED. The monetary awards
adjudged in favor of Nilo B. Rosit are hereby DELETED for
lack of basis.
SO ORDERED.
Unlike the RTC, the CA ruled that the res ipsa
loquitur principle is not applicable and that the testimony of an
expert witness is necessary for a finding of negligence. The
appellate court also gave credence to Dr. Pangan's letter
stating the opinion that Dr. Gestuvo did not commit gross
negligence in his emergency management of Rosit's fractured
mandible.
Rosit's motion for reconsideration was denied in the CA's
November 7, 2013 Resolution.

Hence, the instant appeal.
The Issue
The ultimate issue for our resolution is whether the appellate
court correctly absolved Dr. Gestuvo from liability.
The Court's Ruling
The petition is impressed with merit.
In Flores v. Pineda,9 the Court explained the concept of a
medical negligence case and the elements required for its
prosecution, viz:chanRoblesvirtualLawlibrary
A medical negligence case is a type of claim to redress a
wrong committed by a medical professional, that has caused
bodily harm to or the death of a patient. There are four
elements involved in a medical negligence case, namely: duty,
breach, injury, and proximate causation.
Duty refers to the standard of behavior which imposes
restrictions on one's conduct. The standard in turn refers to the
amount of competence associated with the proper discharge of
the profession. A physician is expected to use at least the same
level of care that any other reasonably competent doctor
would use under the same circumstances. Breach of duty
occurs when the physician fails to comply with these
professional standards. If injury results to the patient as a
result of this breach, the physician is answerable for
negligence. (Emphasis supplied)
An expert witness is not necessary as the res ipsa
loquitur doctrine is applicable
To establish medical negligence, this Court has held that an
expert testimony is generally required to define the standard of
behavior by which the court may determine whether the
physician has properly performed the requisite duty toward the
patient. This is so considering that the requisite degree of skill
and care in the treatment of a patient is usually a matter of
expert opinion.10
Solidum v. People of the Philippines 11 provides an exception.
There, the Court explained that where the application of the
principle of res ipsa loquitur is warranted, an expert testimony
may be dispensed with in medical negligence cases:
Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical
procedure, when the doctrine of res ipsa loquitur is availed by
the plaintiff, the need for expert medical testimony is
dispensed with because the injury itself provides the proof of
negligence. The reason is that the general rule on the necessity
of expert testimony applies only to such matters clearly within
the domain of medical science, and not to matters that are
within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. x x x
Thus, courts of other jurisdictions have applied the doctrine in
the following situations: leaving of a foreign object in the
body of the patient after an operation, injuries sustained on a
healthy part of the body which was not under, or in the area, of
treatment, removal of the wrong part of the body when another
part was intended, knocking out a tooth while a patient's jaw
was under anesthetic for the removal of his tonsils, and loss of
an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis,
among others.
We have further held that resort to the doctrine of res ipsa
loquitur as an exception to the requirement of an expert
testimony in medical negligence cases may be availed of if the
49 TORTS LAST SET
following essential requisites are satisfied: (1) the accident
was of a kind that does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency that caused the
injury was under the exclusive control of the person charged;
and (3) the injury suffered must not have been due to any
voluntary action or contribution of the person injured. 12
In its assailed Decision, the CA refused to acknowledge the
application of the res ipsa loquitur doctrine on the ground that
the foregoing elements are absent. In particular, the appellate
court is of the position that post-operative pain is not unusual
after surgery and that there is no proof that the molar Dr.
Pangan removed is the same molar that was hit by the screw
installed by Dr. Gestuvo in Rosit's mandible. Further, a second
operation was conducted within the 5-week usual healing
period of the mandibular fracture so that the second element
cannot be considered present. Lastly, the CA pointed out that
the X-ray examination conducted on Rosit prior to his first
surgery suggests that he had "chronic inflammatory lung
disease compatible," implying that the injury may have been
due to Rosit's peculiar condition, thus effectively negating the
presence of the third element. 13
After careful consideration, this Court cannot accede to the
CA's findings as it is at once apparent from the records that the
essential requisites for the application of the doctrine of res
ipsa loquitur are present.
The first element was sufficiently established when Rosit
proved that one of the screws installed by Dr. Gestuvo struck
his molar. It was for this issue that Dr. Gestuvo himself
referred Rosit to Dr. Pangan. In fact, the affidavit of Dr.
Pangan presented by Dr. Gestuvo himself before the trial court
narrated that the same molar struck with the screw installed by
Dr. Gestuvo was examined and eventually operated on by Dr.
Pangan. Dr. Gestuvo cannot now go back and say that Dr.
Pangan treated a molar different from that which was affected
by the first operation.
Clearly, had Dr. Gestuvo used the proper size and length of
screws and placed the same in the proper locations, these
would not have struck Rosit's teeth causing him pain and
requiring him to undergo a corrective surgery.
Dr. Gestuvo knew that the screws he used on Rosit were too
large as, in fact, he cut the same with a saw. 14 He also stated
during trial that common sense dictated that the smallest
screws available should be used. More importantly, he also
knew that these screws were available locally at the time of
the operation.15 Yet, he did not avail of such items and went
ahead with the larger screws and merely sawed them off. Even
assuming that the screws were already at the proper length
after Dr. Gestuvo cut the same, it is apparent that he
negligently placed one of the screws in the wrong area thereby
striking one of Rosit's teeth.
In any event, whether the screw hit Rosit's molar because it
was too long or improperly placed, both facts are the product
of Dr. Gestuvo's negligence. An average man of common
intelligence would know that striking a tooth with any foreign
object much less a screw would cause severe pain. Thus, the
first essential requisite is present in this case.
Anent the second element for the res ipsa loquitur doctrine
application, it is sufficient that the operation which resulted in
the screw hitting Rosit's molar was, indeed, performed by Dr.
Gestuvo. No other doctor caused such fact.
The CA finds that Rosit is guilty of contributory negligence in
having Dr. Pangan operate on him during the healing period of
his fractured mandible. What the CA overlooked is that it was
Dr. Gestuvo himself who referred Rosit to Dr. Pangan.
Nevertheless, Dr. Pangan's participation could not have
contributed to the reality that the screw that Dr. Gestuvo
installed hit Rosit's molar.
Lastly, the third element that the injury suffered must not have
been due to any voluntary action or contribution of the person
injured was satisfied in this case. It was not shown that Rosit's
lung disease could have contributed to the pain. What is clear
is that he suffered because one of the screws that Dr. Gestuvo
installed hit Rosit's molar.
Clearly then, the res ipsa loquitur doctrine finds application in
the instant case and no expert testimony is required to
establish the negligence of defendant Dr. Gestuvo.
Petitioner was deprived of the opportunity to make an
"informed consent"
What is more damning for Dr. Gestuvo is his failure to inform
Rosit that such smaller screws were available in Manila, albeit
at a higher price.16 As testified to by Dr. Gestuvo himself:
Court This titanium materials according to you were
Alright. already available in the Philippines since the
time of Rosit's accident?
Witness Yes, your Honor.
xxxx
Court Did you inform Rosit about the existence of
titanium screws and plates which according to
you is the screws and plates of choice?
Witness No, your Honor.
xxxx
Witness The reason I did not inform him anymore Judge
because what I thought he was already hard up
with the down payment. And if I will further
introduce him this screws, the more he will not
be able to afford the operation.
xxxx
Court This titanium screws and plates were available
then it is up to Rosit to decide whether to use it
or not because after all the material you are
using is paid by the patient himscll, is it not?
Witness Yes, that is true.
Li v. Soliman17 made the following disquisition on the relevant
Doctrine of Informed Consent in relation to medical
negligence cases, to wit:
The doctrine of informed consent within the context of
physician-patient relationships goes far back into English
common law. x x x 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
50 TORTS LAST SET
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.
x x x x
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." (Emphasis supplied)
The four adverted essential elements above are present here.
First, Dr. Gestuvo clearly had the duty of disclosing to Rosit
the risks of using the larger screws for the operation. This was
his obligation as the physician undertaking the operation.
Second, Dr. Gestuvo failed to disclose these risks to Rosit,
deciding by himself that Rosit could not afford to get the more
expensive titanium screws.
Third, had Rosit been informed that there was a risk that the
larger screws are not appropriate for the operation and that an
additional operation replacing the screws might be required to
replace the same, as what happened in this case, Rosit would
not have agreed to the operation. It bears pointing out that
Rosit was, in fact, able to afford the use of the smaller titanium
screws that were later used by Dr. Pangan to replace the
screws that were used by Dr. Gestuvo.
Fourth, as a result of using the larger screws, Rosit
experienced pain and could not heal properly because one of
the screws hit his molar. This was evident from the fact that
just three (3) days after Dr. Pangan repeated the operation
conducted by Dr. Gestuvo, Rosit was pain-free and could
already speak. This is compared to the one (1) month that
Rosit suffered pain and could not use his mouth after the
operation conducted by Dr. Gestuvo until the operation of Dr.
Pangan.
Without a doubt, Dr. Gestuvo is guilty of withholding material
information which would have been vital in the decision of
Rosit in going through with the operation with the materials at
hand. Thus, Dr. Gestuvo is also guilty of negligence on this
ground.
Dr. Pangan's Affidavit is not admissible
The appellate court's Decision absolving Dr. Gestuvo of
negligence was also anchored on a letter signed by Dr. Pangan
who stated the opinion that Dr. Gestuvo did not commit gross
negligence in his emergency management of Mr. Rosit's
fractured mandible.18 Clearly, the appellate court overlooked
the elementary principle against hearsay evidence.
In Dantis v. Maghinang, Jr.,19 the Court reiterated the oft-
repeated rule that "an affidavit is merely hearsay evidence
where its affiant/maker did not take the witness stand." Here,
Dr. Pangan never took the witness stand to affirm the contents
of his affidavit. Thus, the affidavit is inadmissible and cannot
be given any weight. The CA, therefore, erred when it
considered the affidavit of Dr. Pangan, mpreso for considering
the same as expert testimony.
Moreover, even if such affidavit is considered as admissible
and the testimony of an expert witness, the Court is not bound
by such testimony. As ruled in Ilao-Quianay v. Mapile:20
Indeed, courts are not bound by expert testimonies. They may Such concealment is clearly a valid basis for an award of
place whatever weight they choose upon such testimonies in exemplary damages.
accordance with the facts of the case. The relative weight and
sufficiency of expert testimony is peculiarly within the WHEREFORE, the instant petition is GRANTED. The CA
province of the trial court to decide, considering the ability Decision dated January 22, 2013 and Resolution dated
and character of the witness, his actions upon the witness November 7, 2013 in CA-G.R. CV No. 00911-MIN are
stand, the weight and process of the reasoning by which he has hereby REVERSED and SET ASIDE. Further, the Decision
supported his opinion, his possible bias in favor of the side for dated September 14, 2004 of the Regional Trial Court, Branch
whom he testifies, and any other matters which serve to 33 in Davao City in Civil Case No. 27,345-99 is
illuminate his statements. The opinion of an expert should be hereby REINSTATED and AFFIRMED.
considered by the court in view of all the facts and
circumstances of the case. The problem of the evaluation of SO ORDERED.chanroblesvirtuallawlibrary
expert testimony is left to the discretion of the trial court
whose ruling thereupon is not revicwable in the absence of an
abuse of that discretion.
Thus, the belief of Dr. Pangan whether Dr. Gestuvo is guilty
of negligence or not will not bind the Court. The Court must
weigh and examine such testimony and decide for itself the
merits thereof.

As discussed above, Dr. Gestuvo's negligence is clearly

demonstrable by the doctrines of res ipsa loquitur and
informed consent.

Damages

For the foregoing, the trial court properly awarded Rosit actual
damages after he was able to prove the actual expenses that he
incurred due to the negligence of Dr. Gestuvo. In Mendoza v.
Spouses Gomez,21 the Court explained that a claimant is
entitled to actual damages when the damage he sustained is the
natural and probable consequences of the negligent act and he
adequately proved the amount of such damage.

Rosit is also entitled to moral damages as provided under

Article 2217 of the Civil Code,22 given the unnecessary
physical suffering he endured as a consequence of defendant's
negligence.

To recall, from the time he was negligently operated upon by

Dr. Gestuvo until three (3) days from the corrective surgery
performed by Dr. Pangan, or for a period of one (1) month,
Rosit suffered pain and could not properly use his jaw to speak
or eat.

The trial court also properly awarded attorney's fees and costs
of suit under Article 2208 of the Civil Code, 23 since Rosit was
compelled to litigate due to Dr. Gestuvo's refusal to pay for
Rosit's damages.

As to the award of exemplary damages, the same too has to be

affirmed. In Mendoza,24 the Court enumerated the requisites
for the award of exemplary damages:
Our jurisprudence sets certain conditions when exemplary
damages may be awarded: First, they may be imposed by way
of example or correction only in addition, among others, to
compensatory damages, and cannot be recovered as a matter
of right, their determination depending upon the amount of
compensatory damages that may be awarded to the claimant.
Second, the claimant must first establish his right to moral,
temperate, liquidated or compensatory damages. Third, the
wrongful act must be accompanied by bad faith, and the award
would be allowed only if the guilty party acted in a wanton,
fraudulent, reckless, oppressive or malevolent manner.
The three (3) requisites are met. Dr. Gestuvo's actions are
clearly negligent. Likewise, Dr. Gestuvo acted in bad faith or
in a wanton, fraudulent, reckless, oppressive manner when he
was in breach of the doctrine of informed consent. Dr.
Gestuvo had the duty to fully explain to Rosit the risks of
using large screws for the operation. More importantly, he
concealed the correct medical procedure of using the smaller
titanium screws mainly because of his erroneous belief that
Rosit cannot afford to buy the expensive titanium screws.
51 TORTS LAST SET
G.R. No. 189998               August 29, 2012
MAKATI SHANGRI-LA HOTEL AND RESORT,
INC., Petitioner,
vs.
ELLEN JOHANNE HARPER, JONATHAN CHRISTOPHER
HARPER, and RIGOBERTO GILLERA, Respondents.
DECISION
BERSAMIN, J.:
The hotel owner is liable for civil damages to the surviving
heirs of its hotel guest whom strangers murder inside his hotel
room.
The Case
Petitioner, the owner and operator of the 5-star Shangri-La
Hotel in Makati City (Shangri-La Hotel), appeals the decision
promulgated on October 21, 2009,1 whereby the Court of
Appeals (CA) affirmed with modification the judgment
rendered on October 25, 2005 by the Regional Trial Court
(RTC) in Quezon City holding petitioner liable for damages
for the murder of Christian Fredrik Harper, a Norwegian
national.2 Respondents Ellen Johanne Harper and Jonathan
Christopher Harper are the widow and son of Christian
Harper, while respondent Rigoberto Gillera is their authorized
representative in the Philippines.
Antecedents
In the first week of November 1999, Christian Harper came to
Manila on a business trip as the Business Development
Manager for Asia of ALSTOM Power Norway AS, an
engineering firm with worldwide operations. He checked in at
the Shangri-La Hotel and was billeted at Room 1428. He was
due to check out on November 6, 1999. In the early morning
of that date, however, he was murdered inside his hotel room
by still unidentified malefactors. He was then 30 years old.
How the crime was discovered was a story in itself. A routine
verification call from the American Express Card Company to
cardholder Harper’s residence in Oslo, Norway (i.e., Bygdoy
Terasse 16, 0287 Oslo, Norway) led to the discovery. It
appears that at around 11:00 am of November 6, 1999, a
Caucasian male of about 30–32 years in age, 5’4" in height,
clad in maroon long sleeves, black denims and black shoes,
entered the Alexis Jewelry Store in Glorietta, Ayala Center,
Makati City and expressed interest in purchasing a Cartier
lady’s watch valued at ₱ 320,000.00 with the use of two
Mastercard credit cards and an American Express credit card
issued in the name of Harper. But the customer’s difficulty in
answering the queries phoned in by a credit card
representative sufficiently aroused the suspicion of saleslady
Anna Liza Lumba (Lumba), who asked for the customer’s
passport upon suggestion of the credit card representative to
put the credit cards on hold. Probably sensing trouble for
himself, the customer hurriedly left the store, and left the three
credit cards and the passport behind.
In the meanwhile, Harper’s family in Norway must have
called him at his hotel room to inform him about the attempt to
use his American Express card. Not getting any response from
the room, his family requested Raymond Alarcon, the Duty
Manager of the Shangri-La Hotel, to check on Harper’s room.
Alarcon and a security personnel went to Room 1428 at 11:27
a.m., and were shocked to discover Harper’s lifeless body on
the bed.
Col. Rodrigo de Guzman (de Guzman), the hotel’s Security
Manager, initially investigated the murder. In his incident
52 TORTS LAST SET
report, he concluded from the several empty bottles of wine in
the trash can and the number of cigarette butts in the toilet
bowl that Harper and his visitors had drunk that much and
smoked that many cigarettes the night before. 3
The police investigation actually commenced only upon the
arrival in the hotel of the team of PO3 Carmelito
Mendoza4 and SPO4 Roberto Hizon. Mendoza entered
Harper’s room in the company of De Guzman, Alarcon, Gami
Holazo (the hotel’s Executive Assistant Manager), Norge
Rosales (the hotel’s Executive Housekeeper), and Melvin
Imperial (a security personnel of the hotel). They found
Harper’s body on the bed covered with a blanket, and only the
back of the head could be seen. Lifting the blanket, Mendoza
saw that the victim’s eyes and mouth had been bound with
electrical and packaging tapes, and his hands and feet tied with
a white rope. The body was identified to be that of hotel guest
Christian Fredrik Harper.
Mendoza subsequently viewed the closed circuit television
(CCTV) tapes, from which he found that Harper had entered
his room at 12:14 a.m. of November 6, 1999, and had been
followed into the room at 12:17 a.m. by a woman; that another
person, a Caucasian male, had entered Harper’s room at 2:48
a.m.; that the woman had left the room at around 5:33 a.m.;
and that the Caucasian male had come out at 5:46 a.m.
On November 10, 1999, SPO1 Ramoncito Ocampo, Jr.
interviewed Lumba about the incident in the Alexis Jewelry
Shop. During the interview, Lumba confirmed that the person
who had attempted to purchase the Cartier lady’s watch on
November 6, 1999 had been the person whose picture was on
the passport issued under the name of Christian Fredrik Harper
and the Caucasian male seen on the CCTV tapes entering
Harper’s hotel room.
Sr. Insp. Danilo Javier of the Criminal Investigation Division
of the Makati City Police reflected in his Progress Report No.
25 that the police investigation showed that Harper’s passport,
credit cards, laptop and an undetermined amount of cash had
been missing from the crime scene; and that he had learned
during the follow-up investigation about an unidentified
Caucasian male’s attempt to purchase a Cartier lady’s watch
from the Alexis Jewelry Store in Glorietta, Ayala Center,
Makati City with the use of one of Harper’s credit cards.
On August 30, 2002, respondents commenced this suit in the
RTC to recover various damages from petitioner,6 pertinently
alleging:
xxx
7. The deceased was to check out and leave the hotel on
November 6, 1999, but in the early morning of said date, while
he was in his hotel room, he was stabbed to death by an (sic)
still unidentified male who had succeeded to intrude into his
room.
8. The murderer succeeded to trespass into the area of the
hotel’s private rooms area and into the room of the said
deceased on account of the hotel’s gross negligence in
providing the most basic security system of its guests, the lack
of which owing to the acts or omissions of its employees was
the immediate cause of the tragic death of said deceased.
xxx
10. Defendant has prided itself to be among the top hotel
chains in the East claiming to provide excellent service,
comfort and security for its guests for which reason ABB
Alstom executives and their guests have invariably chosen this
hotel to stay.7
xxx
Ruling of the RTC
On October 25, 2005, the RTC rendered judgment after
trial,8 viz:
WHEREFORE, finding the defendant hotel to be remiss in its
duties and thus liable for the death of Christian Harper, this
Court orders the defendant to pay plaintiffs the amount of:
PhP 43,901,055.00 as and by way of actual and
compensatory damages;
PLAINTIFFS-APPELLEES, THERE BEING NO PROOF ON
RECORD SUPPORTING SUCH AWARD.
On October 21, 2009, the CA affirmed the judgment of the
RTC with modification,9 as follows:
WHEREFORE, the assailed Decision of the Regional Trial
Court dated October 25, 2005 is
hereby AFFIRMED with MODIFICATION. Accordingly,
defendant-appellant is ordered to pay plaintiffs-appellees the
amounts of ₱ 52,078,702.50, as actual and compensatory
damages; ₱ 25,000.00, as temperate damages; ₱ 250,000.00,
as attorney’s fees; and to pay the costs of the suit.

PhP 739,075.00 representing the expenses of SO ORDERED.10

transporting the remains of Harper to Oslo, Norway;
Issues
PhP 250,000.00 attorney’s fees;
Petitioner still seeks the review of the judgment of the CA,
and to pay the cost of suit. submitting the following issues for consideration and
determination, namely:
SO ORDERED.
I.
Ruling of the CA
WHETHER OR NOT THE PLAINTIFFS-APPELLEES
WERE ABLE TO PROVE WITH COMPETENT EVIDENCE
Petitioner appealed, assigning to the RTC the following errors, THE AFFIRMATIVE ALLEGATIONS IN THE
to wit: COMPLAINT THAT THEY ARE THE WIDOW AND SON
OF MR. CHRISTIAN HARPER.
I
II.
THE TRIAL COURT ERRED IN RULING THAT THE
PLAINTIFFS-APPELLEES ARE THE HEIRS OF THE WHETHER OR NOT THE APPELLEES WERE ABLE TO
LATE CHRISTIAN HARPER, AS THERE IS NO PROVE WITH COMPETENT EVIDENCE THE
COMPETENT EVIDENCE ON RECORD SUPPORTING AFFIRMATIVE ALLEGATIONS IN THE COMPLAINT
SUCH RULING. THAT THERE WAS NEGLIGENCE ON THE PART OF
THE APPELLANT AND ITS SAID NEGLIGENCE WAS
II THE PROXIMATE CAUSE OF THE DEATH OF MR.
CHRISTIAN HARPER.
THE TRIAL COURT ERRED IN RULING THAT THE
DEFENDANT-APPELLANT’SNEGLIGENCE WAS THE III.
PROXIMATE CAUSE OF THE DEATH OF MR. HARPER,
OR IN NOT RULING THAT IT WAS MR. CHRISTIAN WHETHER OR NOT THE PROXIMATE CAUSE OF THE
HARPER’S OWN NEGLIGENCE WHICH WAS THE DEATH OF MR. CHRISTIAN HARPER WAS HIS OWN
SOLE, PROXIMATE CAUSE OF HIS DEATH. NEGLIGENCE.

III Ruling

THE TRIAL COURT ERRED IN AWARDING TO THE The appeal lacks merit.
PLAINTIFFS-APPELLEES THE AMOUNTOF PH₱
43,901,055.00, REPRESENTING THE ALLEGED LOST
EARNING OF THE LATE CHRISTIAN HARPER, THERE I.
BEING NO COMPETENT PROOF OF THE EARNING OF Requirements for authentication of documents
MR. HARPER DURING HIS LIFETIME AND OF THE establishing respondents’ legal relationship
ALLEGATION THAT THE PLAINTIFFS-APPELLEES with the victim as his heirs were complied with
ARE MR. HARPER’S HEIRS.
As to the first issue, the CA pertinently held as follows:
IV
The documentary evidence that plaintiffs-appellees offered
THE TRIAL COURT ERRED IN AWARDING TO THE relative to their heirship consisted of the following –
PLAINTIFFS-APPELLEES THE AMOUNT OF PH₱
739,075.00, REPRESENTING THE ALLEGED COST OF 1. Exhibit "Q" - Birth Certificate of Jonathan
TRANSPORTING THE REMAINS OF MR. CHRISTIAN Christopher Harper, son of Christian Fredrik Harper
HARPER TO OSLO, NORWAY, THERE BEING NO and Ellen Johanne Harper;
PROOF ON RECORD THAT IT WAS PLAINTIFFS-
APPELLEES WHO PAID FOR SAID COST. 2. Exhibit "Q-1" - Marriage Certificate of Ellen
Johanne Clausen and Christian Fredrik Harper;
V
3. Exhibit "R" - Birth Certificate of Christian
THE TRIAL COURT ERRED IN AWARDING Fredrick Harper, son of Christopher Shaun Harper
ATTORNEY’S FEES AND COST OF SUIT TO THE and Eva Harper; and

53 TORTS LAST SET

 4. Exhibit "R-1" - Certificate from the Oslo Probate
Court stating that Ellen Harper was married to the
deceased, Christian Fredrick Harper and listed Ellen
Harper and Jonathan Christopher Harper as the heirs
of Christian Fredrik Harper.
Defendant-appellant points out that plaintiffs-appellees
committed several mistakes as regards the above documentary
exhibits, resultantly making them incompetent evidence, to
wit, (a) none of the plaintiffs-appellees or any of the witnesses
who testified for the plaintiffs gave evidence that Ellen
Johanne Harper and Jonathan Christopher Harper are the
widow and son of the deceased Christian Fredrik Harper; (b)
Exhibit "Q" was labeled as Certificate of Marriage in
plaintiffs-appellees’ Formal Offer of Evidence, when it
appears to be the Birth Certificate of the late Christian Harper;
(c) Exhibit "Q-1" is a translation of the Marriage Certificate of
Ellen Johanne Harper and Christian Fredrik Harper, the
original of which was not produced in court, much less,
offered in evidence. Being a mere translation, it cannot be a
competent evidence of the alleged fact that Ellen Johanne
Harper is the widow of Christian Fredrik Harper, pursuant to
the Best Evidence Rule. Even assuming that it is an original
Marriage Certificate, it is not a public document that is
admissible without the need of being identified or
authenticated on the witness stand by a witness, as it appears
to be a document issued by the Vicar of the Parish of Ullern
and, hence, a private document; (d) Exhibit "R" was labeled as
Probate Court Certificate in plaintiffs-appellees’ Formal Offer
of Evidence, when it appears to be the Birth Certificate of the
deceased, Christian Fredrik Harper; and (e) Exhibit "R-1" is a
translation of the supposed Probate Court Certificate, the
original of which was not produced in court, much less,
offered in evidence. Being a mere translation, it is an
incompetent evidence of the alleged fact that plaintiffs-
appellees are the heirs of Christian Fredrik Harper, pursuant to
the Best Evidence Rule.
Defendant-appellant further adds that Exhibits "Q-1" and "R-
1" were not duly attested by the legal custodians (by the Vicar
of the Parish of Ullern for Exhibit "Q-1" and by the Judge or
Clerk of the Probate Court for Exhibit "R-1") as required
under Sections 24 and 25, Rule 132 of the Revised Rules of
Court. Likewise, the said documents are not accompanied by a
certificate that such officer has the custody as also required
under Section 24 of Rule 132. Consequently, defendant-
appellant asseverates that Exhibits "Q-1" and "R-1" as private
documents, which were not duly authenticated on the witness
stand by a competent witness, are essentially hearsay in nature
that have no probative value. Therefore, it is obvious that
plaintiffs-appellees failed to prove that they are the widow and
son of the late Christian Harper.
Plaintiffs-appellees make the following counter arguments,
viz, (a) Exhibit "Q-1", the Marriage Certificate of Ellen
Johanne Harper and Christian Fredrik Harper, was issued by
the Office of the Vicar of Ullern with a statement that "this
certificate is a transcript from the Register of Marriage of
Ullern Church." The contents of Exhibit "Q-1" were translated
by the Government of the Kingdom of Norway, through its
authorized translator, into English and authenticated by the
Royal Ministry of Foreign Affairs of Norway, which in turn,
was also authenticated by the Consul, Embassy of the
Republic of the Philippines in Stockholm, Sweden; (b) Exhibit
"Q", the Birth Certificate of Jonathan Christopher Harper, was
issued and signed by the Registrar of the Kingdom of Norway,
as authenticated by the Royal Ministry of Foreign Affairs of
Norway, whose signature was also authenticated by the
Consul, Embassy of the Republic of the Philippines in
Stockholm, Sweden; and (c) Exhibit "R-1", the Probate Court
Certificate was also authenticated by the Royal Ministry of
Foreign Affairs of Norway, whose signature was also
authenticated by the Consul, Embassy of the Republic of the
Philippines in Stockholm, Sweden.
54 TORTS LAST SET
They further argue that since Exhibit "Q-1", Marriage
Certificate, was issued by the vicar or parish priest, the legal
custodian of parish records, it is considered as an exception to
the hearsay rule. As for Exhibit "R-1", the Probate Court
Certificate, while the document is indeed a translation of the
certificate, it is an official certification, duly confirmed by the
Government of the Kingdom of Norway; its contents were
lifted by the Government Authorized Translator from the
official record and thus, a written official act of a foreign
sovereign country.
WE rule for plaintiffs-appellees.
The Revised Rules of Court provides that public documents
may be evidenced by a copy attested by the officer having the
legal custody of the record. The attestation must state, in
substance, that the copy is a correct copy of the original, or a
specific part thereof, as the case may be. The attestation must
be under the official seal of the attesting officer, if there be
any, or if he be the clerk of a court having a seal, under the
seal of such court.
If the record is not kept in the Philippines, the attested copy
must be accompanied with a certificate that such officer has
the custody. If the office in which the record is kept is in a
foreign country, the certificate may be made by a secretary of
the embassy or legation, consul general, consul, vice consul,
or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office.
The documents involved in this case are all kept in Norway.
These documents have been authenticated by the Royal
Norwegian Ministry of Foreign Affairs; they bear the official
seal of the Ministry and signature of one, Tanja Sorlie. The
documents are accompanied by an Authentication by the
Consul, Embassy of the Republic of the Philippines in
Stockholm, Sweden to the effect that, Tanja Sorlie is duly
authorized to legalize official documents for the Ministry.
Exhibits "Q" and "R" are extracts of the register of births of
both Jonathan Christopher Harper and the late Christian
Fredrik Harper, respectively, wherein the former explicitly
declares that Jonathan Christopher is the son of Christian
Fredrik and Ellen Johanne Harper. Said documents bear the
signature of the keeper, Y. Ayse B. Nordal with the official
seal of the Office of the Registrar of Oslo, and the
authentication of Tanja Sorlie of the Royal Ministry of
Foreign Affairs, Oslo, which were further authenticated by
Philippine Consul Marian Jocelyn R. Tirol. In addition, the
latter states that said documents are the birth certificates of
Jonathan Christopher Harper and Christian Fredrik Harper
issued by the Registrar Office of Oslo, Norway on March 23,
2004.
Exhibits "Q-1", on the other hand, is the Marriage Certificate
of Christian Fredrik Harper and Ellen Johanne Harper issued
by the vicar of the Parish of Ullern while Exhibit "R-1" is the
Probate Court Certificate from the Oslo Probate Court, naming
Ellen Johanne Harper and Jonathan Christopher Harper as the
heirs of the deceased Christian Fredrik Harper. The documents
are certified true translations into English of the transcript of
the said marriage certificate and the probate court certificate.
They were likewise signed by the authorized government
translator of Oslo with the seal of his office; attested by Tanja
Sorlie and further certified by our own Consul.
In view of the foregoing, WE conclude that plaintiffs-
appellees had substantially complied with the requirements set
forth under the rules. WE would also like to stress that
plaintiffs-appellees herein are residing overseas and are
litigating locally through their representative. While they are
not excused from complying with our rules, WE must take
into account the attendant reality that these overseas litigants
communicate with their representative and counsel via long
distance communication. Add to this is the fact that
compliance with the requirements on attestation and
authentication or certification is no easy process and
completion thereof may vary depending on different factors
such as the location of the requesting party from the consulate
and the office of the record custodian, the volume of
transactions in said offices and even the mode of sending these
documents to the Philippines. With these circumstances under
consideration, to OUR minds, there is every reason for an
equitable and relaxed application of the rules on the issuance
of the required attestation from the custodian of the documents
to plaintiffs-appellees’ situation. Besides, these questioned
documents were duly signed by the officers having custody of
the same.11
Petitioner assails the CA’s ruling that respondents
substantially complied with the rules on the authentication of
the proofs of marriage and filiation set by Section 24 and
Section 25 of Rule 132 of the Rules of Court when they
presented Exhibit Q, Exhibit Q-1, Exhibit R and Exhibit R-1,
because the legal custodian did not duly attest that Exhibit Q-1
and Exhibit R-1 were the correct copies of the originals on
file, and because no certification accompanied the documents
stating that "such officer has custody of the originals." It
contends that respondents did not competently prove their
being Harper’s surviving heirs by reason of such documents
being hearsay and incompetent.
Petitioner’s challenge against respondents’ documentary
evidence on marriage and heirship is not well-taken.
Section 24 and Section 25 of Rule 132 provide:
Section 24. Proof of official record. — The record of public
documents referred to in paragraph (a) of Section 19, when
admissible for any purpose, may be evidenced by an official
publication thereof or by a copy attested by the officer having
the legal custody of the record, or by his deputy, and
accompanied, if the record is not kept in the Philippines, with
a certificate that such officer has the custody. If the office in
which the record is kept is in a foreign country, the certificate
may be made by a secretary of the embassy or legation, consul
general, consul, vice consul, or consular agent or by any
officer in the foreign service of the Philippines stationed in the
foreign country in which the record is kept, and authenticated
by the seal of his office.
Section 25. What attestation of copy must state. — Whenever
a copy of a document or record is attested for the purpose of
evidence, the attestation must state, in substance, that the copy
is a correct copy of the original, or a specific part thereof, as
the case may be. The attestation must be under the official seal
of the attesting officer, if there be any, or if he be the clerk of a
court having a seal, under the seal of such court.
Although Exhibit Q,12 Exhibit Q-1,13 Exhibit R14 and Exhibit R-
115 were not attested by the officer having the legal custody of
the record or by his deputy in the manner required in Section
25 of Rule 132, and said documents did not comply with the
requirement under Section 24 of Rule 132 to the effect that if
the record was not kept in the Philippines a certificate of the
person having custody must accompany the copy of the
document that was duly attested stating that such person had
custody of the documents, the deviation was not enough
reason to reject the utility of the documents for the purposes
they were intended to serve.
Exhibit Q and Exhibit R were extracts from the registry of
births of Oslo, Norway issued on March 23, 2004 and signed
by Y. Ayse B. Nordal, Registrar, and corresponded to
respondent Jonathan Christopher Harper and victim Christian
55 TORTS LAST SET
Fredrik Harper, respectively.16 Exhibit Q explicitly stated that
Jonathan was the son of Christian Fredrik Harper and Ellen
Johanne Harper, while Exhibit R attested to the birth of
Christian Fredrik Harper on December 4, 1968. Exhibit Q and
Exhibit R were authenticated on March 29, 2004 by the
signatures of Tanja Sorlie of the Royal Ministry of Foreign
Affairs of Norway as well as by the official seal of that office.
In turn, Consul Marian Jocelyn R. Tirol of the Philippine
Consulate in Stockholm, Sweden authenticated the signatures
of Tanja Sorlie and the official seal of the Royal Ministry of
Foreign Affairs of Norway on Exhibit Q and Exhibit R,
explicitly certifying to the authority of Tanja Sorlie "to
legalize official documents for the Royal Ministry of Foreign
Affairs of Norway."17
Exhibit Q-1,18 the Marriage Certificate of Ellen Johanne
Clausen Harper and Christian Fredrik Harper, contained the
following data, namely: (a) the parties were married on June
29, 1996 in Ullern Church; and (b) the certificate was issued
by the Office of the Vicar of Ullern on June 29, 1996.
Exhibit Q-1 was similarly authenticated by the signature of
Tanja Sorlie of the Royal Ministry of Foreign Affairs of
Norway, with the official seal of that office. Philippine Consul
Tirol again expressly certified to the capacity of Sorlie "to
legalize official documents for the Royal Ministry of Foreign
Affairs of Norway,"19 and further certified that the document
was a true translation into English of a transcript of a Marriage
Certificate issued to Christian Frederik Harper and Ellen
Johanne Clausen by the Vicar of the Parish of Ullern on June
29, 1996.
Exhibit R-1,20 a Probate Court certificate issued by the Oslo
Probate Court on February 18, 2000 through Morten Bolstad,
its Senior Executive Officer, was also authenticated by the
signature of Tanja Sorlie and with the official seal of the
Royal Ministry of Foreign Affairs of Norway. As with the
other documents, Philippine Consul Tirol explicitly certified to
the capacity of Sorlie "to legalize official documents for the
Royal Ministry of Foreign Affairs of Norway," and further
certified that the document was a true translation into English
of the Oslo Probate Court certificate issued on February 18,
2000 to the effect that Christian Fredrik Harper, born on
December 4, 1968, had reportedly died on November 6,
1999.21
The Oslo Probate Court certificate recited that both Ellen
Johanne Harper and Christopher S. Harper were Harper’s
heirs, to wit:
The above names surviving spouse has accepted responsibility
for the commitments of the deceased in accordance with the
provisions of Section 78 of the Probate Court Act (Norway),
and the above substitute guardian has agreed to the private
division of the estate.
The following heir and substitute guardian will undertake the
private division of the estate:
Ellen Johanne Harper
Christopher S. Harper
This probate court certificate relates to the entire estate.
Oslo Probate Court, 18 February 2000.22
The official participation in the authentication process of
Tanja Sorlie of the Royal Ministry of Foreign Affairs of
Norway and the attachment of the official seal of that office on
each authentication indicated that Exhibit Q, Exhibit R,
Exhibit Q-1 and Exhibit R-1 were documents of a public
nature in Norway, not merely private documents. It cannot be
denied that based on Philippine Consul Tirol’s official
authentication, Tanja Sorlie was "on the date of signing, duly
authorized to legalize official documents for the Royal
Ministry of Foreign Affairs of Norway." Without a showing to
the contrary by petitioner, Exhibit Q, Exhibit R, Exhibit Q-1
and Exhibit R-1 should be presumed to be themselves official
documents under Norwegian law, and admissible as prima
facie evidence of the truth of their contents under Philippine
law.
At the minimum, Exhibit Q, Exhibit R, Exhibit Q-1 and
Exhibit R-1 substantially met the requirements of Section 24
and Section 25 of Rule 132 as a condition for their admission
as evidence in default of a showing by petitioner that the
authentication process was tainted with bad faith.
Consequently, the objective of ensuring the authenticity of the
documents prior to their admission as evidence was
substantially achieved. In Constantino-David v.
Pangandaman-Gania,23 the Court has said that substantial
compliance, by its very nature, is actually inadequate
observance of the requirements of a rule or regulation that are
waived under equitable circumstances in order to facilitate the
administration of justice, there being no damage or injury
caused by such flawed compliance.
The Court has further said in Constantino-David v.
Pangandaman-Gania that the focus in every inquiry on
whether or not to accept substantial compliance is always on
the presence of equitable conditions to administer justice
effectively and efficiently without damage or injury to the
spirit of the legal obligation. 24 There are, indeed, such
equitable conditions attendant here, the foremost of which is
that respondents had gone to great lengths to submit the
documents. As the CA observed, respondents’ compliance
with the requirements on attestation and authentication of the
documents had not been easy; they had to contend with many
difficulties (such as the distance of Oslo, their place of
residence, from Stockholm, Sweden, where the Philippine
Consulate had its office; the volume of transactions in the
offices concerned; and the safe transmission of the documents
to the Philippines).25 Their submission of the documents
should be presumed to be in good faith because they did so in
due course. It would be inequitable if the sincerity of
respondents in obtaining and submitting the documents despite
the difficulties was ignored.
The principle of substantial compliance recognizes that
exigencies and situations do occasionally demand some
flexibility in the rigid application of the rules of procedure and
the laws.26 That rules of procedure may be mandatory in form
and application does not forbid a showing of substantial
compliance under justifiable circumstances, 27 because
substantial compliance does not equate to a disregard of basic
rules. For sure, substantial compliance and strict adherence are
not always incompatible and do not always clash in discord.
The power of the Court to suspend its own rules or to except
any particular case from the operation of the rules whenever
the purposes of justice require the suspension cannot be
challenged.28 In the interest of substantial justice, even
procedural rules of the most mandatory character in terms of
compliance are frequently relaxed. Similarly, the procedural
rules should definitely be liberally construed if strict
adherence to their letter will result in absurdity and in manifest
injustice, or where the merits of a party’s cause are apparent
and outweigh considerations of non-compliance with certain
formal requirements.29 It is more in accord with justice that a
party-litigant is given the fullest opportunity to establish the
merits of his claim or defense than for him to lose his life,
liberty, honor or property on mere technicalities. Truly, the
rules of procedure are intended to promote substantial justice,
not to defeat it, and should not be applied in a very rigid and
technical sense.30
56 TORTS LAST SET
Petitioner urges the Court to resolve the apparent conflict
between the rulings in Heirs of Pedro Cabais v. Court of
Appeals31 (Cabais) and in Heirs of Ignacio Conti v. Court of
Appeals32 (Conti) establishing filiation through a baptismal
certificate.33
Petitioner’s urging is not warranted, both because there is no
conflict between the rulings in Cabais and Conti, and because
neither Cabais nor Conti is relevant herein.
In Cabais, the main issue was whether or not the CA correctly
affirmed the decision of the RTC that had relied mainly on the
baptismal certificate of Felipa C. Buesa to establish the
parentage and filiation of Pedro Cabais. The Court held that
the petition was meritorious, stating:
A birth certificate, being a public document, offers prima
facie evidence of filiation and a high degree of proof is needed
to overthrow the presumption of truth contained in such public
document. This is pursuant to the rule that entries in official
records made in the performance of his duty by a public
officer are prima facie evidence of the facts therein stated. The
evidentiary nature of such document must, therefore, be
sustained in the absence of strong, complete and conclusive
proof of its falsity or nullity.
On the contrary, a baptismal certificate is a private document,
which, being hearsay, is not a conclusive proof of filiation. It
does not have the same probative value as a record of birth, an
official or public document. In US v. Evangelista, this Court
held that church registers of births, marriages, and deaths
made subsequent to the promulgation of General Orders No.
68 and the passage of Act No. 190 are no longer public
writings, nor are they kept by duly authorized public officials.
Thus, in this jurisdiction, a certificate of baptism such as the
one herein controversy is no longer regarded with the same
evidentiary value as official records of birth. Moreover, on this
score, jurisprudence is consistent and uniform in ruling that
the canonical certificate of baptism is not sufficient to prove
recognition.34
The Court sustained the Cabais petitioners’ stance that the
RTC had apparently erred in relying on the baptismal
certificate to establish filiation, stressing the baptismal
certificate’s limited evidentiary value as proof of filiation
inferior to that of a birth certificate; and declaring that the
baptismal certificate did not attest to the veracity of the
statements regarding the kinsfolk of the one baptized.
Nevertheless, the Court ultimately ruled that it was
respondents’ failure to present the birth certificate, more than
anything else, that lost them their case, stating that: "The
unjustified failure to present the birth certificate instead of the
baptismal certificate now under consideration or to otherwise
prove filiation by any other means recognized by law weigh
heavily against respondents."35
In Conti, the Court affirmed the rulings of the trial court and
the CA to the effect that the Conti respondents were able to
prove by preponderance of evidence their being the collateral
heirs of deceased Lourdes Sampayo. The Conti petitioners
disagreed, arguing that baptismal certificates did not prove the
filiation of collateral relatives of the deceased. Agreeing with
the CA, the Court said:
We are not persuaded. Altogether, the documentary and
testimonial evidence submitted xxx are competent and
adequate proofs that private respondents are collateral heirs of
Lourdes Sampayo.
xxx
Under Art. 172 of the Family Code, the filiation of legitimate
children shall be proved by any other means allowed by the
Rules of Court and special laws, in the absence of a record of
birth or a parent’s admission of such legitimate filiation in a
public or private document duly signed by the parent. Such
other proof of one’s filiation may be a baptismal certificate, a
judicial admission, a family Bible in which his name has been
entered, common reputation respecting his pedigree,
admission by silence, the testimonies of witnesses and other
kinds of proof admissible under Rule 130 of the Rules of
Court. By analogy, this method of proving filiation may also
be utilized in the instant case.
Public documents are the written official acts, or records of the
official act of the sovereign authority, official bodies and
tribunals, and public officers, whether of the Philippines, or a
foreign country. The baptismal certificates presented in
evidence by private respondents are public documents. Parish
priests continue to be the legal custodians of the parish records
and are authorized to issue true copies, in the form of
certificates, of the entries contained therein.
The admissibility of baptismal certificates offered by Lydia S.
Reyes, absent the testimony of the officiating priest or the
official recorder, was settled in People v. Ritter, citing U.S. v.
de Vera (28 Phil. 105 1914, thus:
.... The entries made in the Registry Book may be considered
as entries made in the course of business under Section 43 of
Rule 130, which is an exception to the hearsay rule. The
baptisms administered by the church are one of its transactions
in the exercise of ecclesiastical duties and recorded in the book
of the church during this course of its business.
It may be argued that baptismal certificates are evidence only
of the administration of the sacrament, but in this case, there
were four (4) baptismal certificates which, when taken
together, uniformly show that Lourdes, Josefina, Remedios
and Luis had the same set of parents, as indicated therein.
Corroborated by the undisputed testimony of Adelaida
Sampayo that with the demise of Lourdes and her brothers
Manuel, Luis and sister Remedios, the only sibling left was
Josefina Sampayo Reyes, such baptismal certificates have
acquired evidentiary weight to prove filiation.36
Obviously, Conti did not treat a baptismal certificate, standing
alone, as sufficient to prove filiation; on the
contrary, Conti expressly held that a baptismal certificate had
evidentiary value to prove filiation if considered alongside
other evidence of filiation. As such, a baptismal certificate
alone is not sufficient to resolve a disputed filiation.
Unlike Cabais and Conti, this case has respondents presenting
several documents, like the birth certificates of Harper and
respondent Jonathan Harper, the marriage certificate of Harper
and Ellen Johanne Harper, and the probate court certificate, all
of which were presumably regarded as public documents
under the laws of Norway. Such documentary evidence
sufficed to competently establish the relationship and filiation
under the standards of our Rules of Court.
II
Petitioner was liable due to its own negligence
Petitioner argues that respondents failed to prove its
negligence; that Harper’s own negligence in allowing the
killers into his hotel room was the proximate cause of his own
death; and that hotels were not insurers of the safety of their
guests.
The CA resolved petitioner’s arguments thuswise:
57 TORTS LAST SET
Defendant-appellant contends that the pivotal issue is whether
or not it had committed negligence and corollarily, whether its
negligence was the immediate cause of the death of Christian
Harper. In its defense, defendant-appellant mainly avers that it
is equipped with adequate security system as follows: (1)
keycards or vingcards for opening the guest rooms, (2) two
CCTV monitoring cameras on each floor of the hotel and (3)
roving guards with handheld radios, the number of which
depends on the occupancy rate of the hotel. Likewise, it
reiterates that the proximate cause of Christian Harper’s death
was his own negligence in inviting to his room the two (2) still
unidentified suspects.
Plaintiffs-appellees in their Brief refute, in that, the liability of
defendant-appellant is based upon the fact that it was in a
better situation than the injured person, Christian Harper, to
foresee and prevent the happening of the injurious occurrence.
They maintain that there is no dispute that even prior to the
untimely demise of Christian Harper, defendant-appellant was
duly forewarned of its security lapses as pointed out by its
Chief Security Officer, Col. Rodrigo De Guzman, who
recommended that one roving guard be assigned on each floor
of the hotel considering the length and shape of the corridors.
They posit that defendant-appellant’s inaction constitutes
negligence.
This Court finds for plaintiffs-appellees.
As the action is predicated on negligence, the relevant law is
Article 2176 of the Civil Code, which states that –
"Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage
done. Such fault or negligence, if there was no pre-existing
contractual relation between the parties, is called quasi-delict
and is governed by the provisions of this chapter."
Negligence is defined as 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. The Supreme Court likewise ruled that
negligence is want of care required by the circumstances. It is
a relative or comparative, not an absolute, term and its
application depends upon the situation of the parties and the
degree of care and vigilance which the circumstances
reasonably require. In determining whether or not there is
negligence on the part of the parties in a given situation,
jurisprudence has laid down the following test: Did 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, the person is guilty of negligence.
The law, in effect, adopts the standard supposed to be supplied
by the imaginary conduct of the discreet pater familias of the
Roman law.
The test of negligence is objective. WE measure the act or
omission of the tortfeasor with a perspective as that of an
ordinary reasonable person who is similarly situated. The test,
as applied to the extant case, is whether or not defendant-
appellant, under the attendant circumstances, used that
reasonable care and caution which an ordinary reasonable
person would have used in the same situation.
WE rule in the negative.
In finding defendant-appellant remiss in its duty of exercising
the required reasonable care under the circumstances, the court
a quo reasoned-out, to wit:
"Of the witnesses presented by plaintiffs to prove its (sic) case,
the only one with competence to testify on the issue of
adequacy or inadequacy of security is Col. Rodrigo De
Guzman who was then the Chief Security Officer of defendant
hotel for the year 1999. He is a retired police officer and had
vast experience in security jobs. He was likewise a member of
the elite Presidential Security Group.
He testified that upon taking over the job as the chief of the
security force of the hotel, he made an assessment of the
security situation. Col. De Guzman was not satisfied with the
security set-up and told the hotel management of his desire to
improve it. In his testimony, De Guzman testified that at the
time he took over, he noticed that there were few guards in the
elevated portion of the hotel where the rooms were located.
The existing security scheme then was one guard for 3 or 4
floors. He likewise testified that he recommended to the hotel
management that at least one guard must be assigned per floor
especially considering that the hotel has a long "L-shaped"
hallway, such that one cannot see both ends of the hallway. He
further opined that "even one guard in that hallway is not
enough because of the blind portion of the hallway."
On cross-examination, Col. De Guzman testified that the
security of the hotel was adequate at the time the crime
occurred because the hotel was not fully booked. He qualified
his testimony on direct in that his recommendation of one
guard per floor is the "ideal" set-up when the hotel is fully-
booked.
Be that as it may, it must be noted that Col. De Guzman also
testified that the reason why the hotel management
disapproved his recommendation was that the hotel was not
doing well. It is for this reason that the hotel management did
not heed the recommendation of Col. De Guzman, no matter
how sound the recommendation was, and whether the hotel is
fully-booked or not. It was a business judgment call on the
part of the defendant.
Plaintiffs anchor its (sic) case on our law on quasi-delicts.
Article 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-
existing contractual relation between the parties, is called
quasi-delict.
Liability on the part of the defendant is based upon the fact
that he was in a better situation than the injured person to
foresee and prevent the happening of the injurious occurrence.
There is no dispute that even prior to the untimely demise of
Mr. Harper, defendant was duly forewarned of the security
lapses in the hotel. Col. De Guzman was particularly
concerned with the security of the private areas where the
guest rooms are. He wanted not just one roving guard in every
three or four floors. He insisted there must be at least one in
each floor considering the length and the shape of the
corridors. The trained eyes of a security officer was (sic)
looking at that deadly scenario resulting from that wide
security breach as that which befell Christian Harper.
The theory of the defense that the malefactor/s was/were
known to Harper or was/were visitors of Harper and that there
was a shindig among [the] three deserves scant consideration.
The NBI Biology Report (Exh. "C" & "D") and the
Toxicology Report (Exh. "E") belie the defense theory of a
joyous party between and among Harper and the unidentified
malefactor/s. Based on the Biology Report, Harper was found
negative of prohibited and regulated drugs. The Toxicology
Report likewise revealed that the deceased was negative of the
presence of alcohol in his blood.
58 TORTS LAST SET
The defense even suggests that the malefactor/s gained entry
into the private room of Harper either because Harper allowed
them entry by giving them access to the vingcard or because
Harper allowed them entry by opening the door for them, the
usual gesture of a room occupant to his visitors.
While defendant’s theory may be true, it is more likely, under
the circumstances obtaining that the malefactor/s gained entry
into his room by simply knocking at Harper’s door and the
latter opening it probably thinking it was hotel personnel,
without an inkling that criminal/s could be in the premises.
The latter theory is more attuned to the dictates of reason. If
indeed the female "visitor" is known to or a visitor of Harper,
she should have entered the the room together with Harper. It
is quite unlikely that a supposed "visitor" would wait three
minutes to be with a guest when he/she could go with the
guest directly to the room. The interval of three minutes in
Harper’s entry and that of the alleged female visitor belies the
"theory of acquaintanceship". It is most likely that the female
"visitor" was the one who opened the door to the male
"visitor", undoubtedly, a co-conspirator.
In any case, the ghastly incident could have been prevented
had there been adequate security in each of the hotel floors.
This, coupled with the earlier recommendation of Col. De
Guzman to the hotel management to act on the security lapses
of the hotel, raises the presumption that the crime was
foreseeable.
Clearly, defendant’s inaction constitutes negligence or want of
the reasonable care demanded of it in that particular situation.
In a case, the Supreme Court defined negligence as:
The 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 person
suffers injury.
Negligence is want of care required by the circumstances. It is
a relative or comparative, not an absolute term, and its
application depends upon the situation of the parties, and the
degree of care and vigilance which the circumstances
reasonably impose. Where the danger is great, a high degree of
care is necessary.
Moreover, in applying the premises liability rule in the instant
case as it is applied in some jurisdiction (sic) in the United
States, it is enough that guests are injured while inside the
hotel premises to make the hotelkeeper liable. With great
caution should the liability of the hotelkeeper be enforced
when a guest died inside the hotel premises.
It also bears stressing that there were prior incidents that
occurred in the hotel which should have forewarned the hotel
management of the security lapses of the hotel. As testified to
by Col. De Guzman, "there were ‘minor’ incidents" (loss of
items) before the happening of the instant case.
These "minor" incidents may be of little significance to the
hotel, yet relative to the instant case, it speaks volume. This
should have served as a caveat that the hotel security has
lapses.
Makati Shangri-La Hotel, to stress, is a five-star hotel. The
"reasonable care" that it must exercise for the safety and
comfort of its guests should be commensurate with the grade
and quality of the accommodation it offers. If there is such a
thing as "five-star hotel security", the guests at Makati
Shangri-La surely deserves just that!
When one registers (as) a guest of a hotel, he makes the
establishment the guardian of his life and his personal
belongings during his stay. It is a standard procedure of the
management of the hotel to screen visitors who call on their
guests at their rooms. The murder of Harper could have been
avoided had the security guards of the Shangri-La Hotel in
Makati dutifully observed this standard procedure."
WE concur.
Well settled is the doctrine that "the findings of fact by the
trial court are accorded great respect by appellate courts and
should not be disturbed on appeal unless the trial court has
overlooked, ignored, or disregarded some fact or
circumstances of sufficient weight or significance which, if
considered, would alter the situation." After a conscientious
sifting of the records, defendant-appellant fails to convince US
to deviate from this doctrine.
It could be gleaned from findings of the trial court that its
conclusion of negligence on the part of defendant-appellant is
grounded mainly on the latter’s inadequate hotel security,
more particularly on the failure to deploy sufficient security
personnel or roving guards at the time the ghastly incident
happened.
A review of the testimony of Col. De Guzman reveals that on
direct examination he testified that at the time he assumed his
position as Chief Security Officer of defendant-appellant,
during the early part of 1999 to the early part of 2000, he
noticed that some of the floors of the hotel were being guarded
by a few guards, for instance, 3 or 4 floors by one guard only
on a roving manner. He then made a recommendation that the
ideal-set up for an effective security should be one guard for
every floor, considering that the hotel is L-shaped and the ends
of the hallways cannot be seen. At the time he made the
recommendation, the same was denied, but it was later on
considered and approved on December 1999 because of the
Centennial Celebration.
On cross-examination, Col. De Guzman confirmed that after
he took over as Chief Security Officer, the number of security
guards was increased during the first part of December or
about the last week of November, and before the incident
happened, the security was adequate. He also qualified that as
to his direct testimony on "ideal-set up", he was referring to
one guard for every floor if the hotel is fully booked. At the
time he made his recommendation in the early part of 1999, it
was disapproved as the hotel was not doing well and it was not
fully booked so the existing security was adequate enough. He
further explained that his advice was observed only in the late
November 1999 or the early part of December 1999.
It could be inferred from the foregoing declarations of the
former Chief Security Officer of defendant-appellant that the
latter was negligent in providing adequate security due its
guests. With confidence, it was repeatedly claimed by
defendant-appellant that it is a five-star hotel. Unfortunately,
the record failed to show that at the time of the death of
Christian Harper, it was exercising reasonable care to protect
its guests from harm and danger by providing sufficient
security commensurate to it being one of the finest hotels in
the country. In so concluding, WE are reminded of the
Supreme Court’s enunciation that the hotel business like the
common carrier’s business is imbued with public interest.
Catering to the public, hotelkeepers are bound to provide not
only lodging for hotel guests but also security to their persons
and belongings. The twin duty constitutes the essence of the
business.
It is clear from the testimony of Col. De Guzman that his
recommendation was initially denied due to the fact that the
business was then not doing well. The "one guard, one floor"
59 TORTS LAST SET
recommended policy, although ideal when the hotel is fully-
booked, was observed only later in November 1999 or in the
early part of December 1999, or needless to state, after the
murder of Christian Harper. The apparent security lapses of
defendant-appellant were further shown when the male culprit
who entered Christian Harper’s room was never checked by
any of the guards when he came inside the hotel. As per
interview conducted by the initial investigator, PO3 Cornelio
Valiente to the guards, they admitted that nobody know that
said man entered the hotel and it was only through the monitor
that they became aware of his entry. It was even evidenced by
the CCTV that before he walked to the room of the late
Christian Harper, said male suspect even looked at the
monitoring camera. Such act of the man showing wariness,
added to the fact that his entry to the hotel was unnoticed, at
an unholy hour, should have aroused suspicion on the part of
the roving guard in the said floor, had there been any.
Unluckily for Christian Harper, there was none at that time.
Proximate cause is defined as 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. More comprehensively, proximate
cause is that cause acting first and producing the injury, either
immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each
having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting
the injury as natural and probable result of the cause which
first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent
and intelligent person, have reasonable ground to expect at the
moment of his act or default that an injury to some person
might probably result therefrom.
Defendant-appellant’s contention that it was Christian
Harper’s own negligence in allowing the malefactors to his
room that was the proximate cause of his death, is untenable.
To reiterate, defendant-appellant is engaged in a business
imbued with public interest, ergo, it is bound to provide
adequate security to its guests. As previously discussed,
defendant-appellant failed to exercise such reasonable care
expected of it under the circumstances. Such negligence is the
proximate cause which set the chain of events that led to the
eventual demise of its guest. Had there been reasonable
security precautions, the same could have saved Christian
Harper from a brutal death.
The Court concurs entirely with the findings and conclusions
of the CA, which the Court regards to be thorough and
supported by the records of the trial. Moreover, the Court
cannot now review and pass upon the uniform findings of
negligence by the CA and the RTC because doing so would
require the Court to delve into and revisit the factual bases for
the finding of negligence, something fully contrary to its
character as not a trier of facts. In that regard, the factual
findings of the trial court that are supported by the evidence on
record, especially when affirmed by the CA, are conclusive on
the Court.37 Consequently, the Court will not review unless
there are exceptional circumstances for doing so, such as the
following:
(a) When the findings are grounded entirely on speculation,
surmises or conjectures;
(b) When the inference made is manifestly mistaken, absurd or
impossible;
(c) When there is grave abuse of discretion;
(d) When the judgment is based on a misapprehension of facts;
(e) When the findings of facts are conflicting;
(f) When in making its findings the Court of Appeals went
beyond the issues of the case, or its findings are contrary to the
admissions of both the appellant and the appellee;
(g) When the findings are contrary to the trial court;
(h) When the findings are conclusions without citation of
specific evidence on which they are based;
(i) When the facts set forth in the petition as well as in the
petitioner’s main and reply briefs are not disputed by the
respondent;
(j) When the findings of fact are premised on the supposed
absence of evidence and contradicted by the evidence on
record; and
(k) When the Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly
considered, would justify a different conclusion.38
None of the exceptional circumstances obtains herein.
Accordingly, the Court cannot depart from or disturb the
factual findings on negligence of petitioner made by both the
RTC and the CA.39
Even so, the Court agrees with the CA that petitioner failed to
provide the basic and adequate security measures expected of
a five-star hotel; and that its omission was the proximate cause
of Harper’s death.
The testimony of Col. De Guzman revealed that the
management practice prior to the murder of Harper had been
to deploy only one security or roving guard for every three or
four floors of the building; that such ratio had not been enough
considering the L-shape configuration of the hotel that
rendered the hallways not visible from one or the other end;
and that he had recommended to management to post a guard
for each floor, but his recommendation had been disapproved
because the hotel "was not doing well" at that particular time. 40
Probably realizing that his testimony had weakened
petitioner’s position in the case, Col. De Guzman soon
clarified on cross-examination that petitioner had seen no need
at the time of the incident to augment the number of guards
due to the hotel being then only half-booked. Here is how his
testimony went:
ATTY MOLINA:
I just forgot one more point, Your Honor please. Was there
ever a time, Mr. Witness, that your recommendation to post a
guard in every floor ever considered and approved by the
hotel?
A: Yes, Sir.
Q: When was this?
A: That was on December 1999 because of the Centennial
Celebration when the hotel accepted so many guests wherein
most of the rooms were fully booked and I recommended that
all the hallways should be guarded by one guard.41
xxx
ATTY COSICO:
Q: So at that time that you made your recommendation, the
hotel was half-filled.
60 TORTS LAST SET
A: Maybe.
Q: And even if the hotel is half-filled, your recommendation is
that each floor shall be maintained by one security guard per
floors?
A: Yes sir.
Q: Would you agree with me that even if the hotel is half-
filled, there is no need to increase the guards because there
were only few customers?
A: I think so.
Q: So you will agree with me that each floor should be
maintained by one security guard if the rooms are filled up or
occupied?
A: Yes sir.
Q: Now, you even testified that from January 1999 to
November 1999 thereof, only minor incidents were involved?
A: Yes sir.
Q: So it would be correct to say that the security at that time in
February was adequate?
A: I believe so.
Q: Even up to November when the incident happened for that
same reason, security was adequate?
A: Yes, before the incident.
Q: Now, you testified on direct that the hotel posted one guard
each floor?
A: Yes sir.
Q: And it was your own recommendation?
A: Yes, because we are expecting that the hotel will be filled
up.
Q: In fact, the hotel was fully booked?
A: Yes sir.42
Petitioner would thereby have the Court believe that Col. De
Guzman’s initial recommendation had been rebuffed due to
the hotel being only half-booked; that there had been no
urgency to adopt a one-guard-per-floor policy because security
had been adequate at that time; and that he actually meant by
his statement that "the hotel was not doing well" that the hotel
was only half-booked.
We are not convinced.
The hotel business is imbued with public interest. Catering to
the public, hotelkeepers are bound to provide not only lodging
for their guests but also security to the persons and belongings
of their guests. The twin duty constitutes the essence of the
business.43 Applying by analogy Article 2000,44 Article
200145 and Article 200246 of the Civil Code (all of which
concerned the hotelkeepers’ degree of care and responsibility
as to the personal effects of their guests), we hold that there is
much greater reason to apply the same if not greater degree of
care and responsibility when the lives and personal safety of
their guests are involved. Otherwise, the hotelkeepers would
simply stand idly by as strangers have unrestricted access to
all the hotel rooms on the pretense of being visitors of the
guests, without being held liable should anything untoward
befall the unwary guests. That would be absurd, something
that no good law would ever envision.

In fine, the Court sees no reversible-error on the part

of the CA.

WHEREFORE, the Court AFFIRMS the judgment of the

Court of Appeals; and ORDERS petitioner to pay the costs of
suit.

SO ORDERED.

61 TORTS LAST SET

G.R. No. 123498               November 23, 2007
BPI FAMILY BANK, Petitioner,
vs.
AMADO FRANCO and COURT OF
APPEALS, Respondents.
DECISION
NACHURA, J.:
Banks are exhorted to treat the accounts of their depositors
with meticulous care and utmost fidelity. We reiterate this
exhortation in the case at bench.
Before us is a Petition for Review on Certiorari seeking the
reversal of the Court of Appeals (CA) Decision 1 in CA-G.R.
CV No. 43424 which affirmed with modification the
judgment2 of the Regional Trial Court, Branch 55, Manila
(Manila RTC), in Civil Case No. 90-53295.
This case has its genesis in an ostensible fraud perpetrated on
the petitioner BPI Family Bank (BPI-FB) allegedly by
respondent Amado Franco (Franco) in conspiracy with other
individuals,3 some of whom opened and maintained separate
accounts with BPI-FB, San Francisco del Monte (SFDM)
branch, in a series of transactions.
On August 15, 1989, Tevesteco Arrastre-Stevedoring Co., Inc.
(Tevesteco) opened a savings and current account with BPI-
FB. Soon thereafter, or on August 25, 1989, First Metro
Investment Corporation (FMIC) also opened a time deposit
account with the same branch of BPI-FB with a deposit of
₱100,000,000.00, to mature one year thence.
Subsequently, on August 31, 1989, Franco opened three
accounts, namely, a current,4 savings,5 and time deposit,6 with
BPI-FB. The current and savings accounts were respectively
funded with an initial deposit of ₱500,000.00 each, while the
time deposit account had ₱1,000,000.00 with a maturity date
of August 31, 1990. The total amount of ₱2,000,000.00 used
to open these accounts is traceable to a check issued by
Tevesteco allegedly in consideration of Franco’s introduction
of Eladio Teves,7 who was looking for a conduit bank to
facilitate Tevesteco’s business transactions, to Jaime
Sebastian, who was then BPI-FB SFDM’s Branch Manager. In
turn, the funding for the ₱2,000,000.00 check was part of the
₱80,000,000.00 debited by BPI-FB from FMIC’s time deposit
account and credited to Tevesteco’s current account pursuant
to an Authority to Debit purportedly signed by FMIC’s
officers.
It appears, however, that the signatures of FMIC’s officers on
the Authority to Debit were forged.8 On September 4, 1989,
Antonio Ong,9 upon being shown the Authority to Debit,
personally declared his signature therein to be a forgery.
Unfortunately, Tevesteco had already effected several
withdrawals from its current account (to which had been
credited the ₱80,000,000.00 covered by the forged Authority
to Debit) amounting to ₱37,455,410.54, including the
₱2,000,000.00 paid to Franco.
On September 8, 1989, impelled by the need to protect its
interests in light of FMIC’s forgery claim, BPI-FB, thru its
Senior Vice-President, Severino Coronacion, instructed Jesus
Arangorin10 to debit Franco’s savings and current accounts for
the amounts remaining therein. 11 However, Franco’s time
deposit account could not be debited due to the capacity
limitations of BPI-FB’s computer.12
In the meantime, two checks 13 drawn by Franco against his
BPI-FB current account were dishonored upon presentment
62 TORTS LAST SET
for payment, and stamped with a notation "account under
garnishment." Apparently, Franco’s current account was
garnished by virtue of an Order of Attachment issued by the
Regional Trial Court of Makati (Makati RTC) in Civil Case
No. 89-4996 (Makati Case), which had been filed by BPI-FB
against Franco et al.,14 to recover the ₱37,455,410.54
representing Tevesteco’s total withdrawals from its account.
Notably, the dishonored checks were issued by Franco and
presented for payment at BPI-FB prior to Franco’s receipt of
notice that his accounts were under garnishment. 15 In fact, at
the time the Notice of Garnishment dated September 27, 1989
was served on BPI-FB, Franco had yet to be impleaded in the
Makati case where the writ of attachment was issued.
It was only on May 15, 1990, through the service of a copy of
the Second Amended Complaint in Civil Case No. 89-4996,
that Franco was impleaded in the Makati case. 16 Immediately,
upon receipt of such copy, Franco filed a Motion to Discharge
Attachment which the Makati RTC granted on May 16, 1990.
The Order Lifting the Order of Attachment was served on
BPI-FB on even date, with Franco demanding the release to
him of the funds in his savings and current accounts. Jesus
Arangorin, BPI-FB’s new manager, could not forthwith
comply with the demand as the funds, as previously stated,
had already been debited because of FMIC’s forgery claim. As
such, BPI-FB’s computer at the SFDM Branch indicated that
the current account record was "not on file."
With respect to Franco’s savings account, it appears that
Franco agreed to an arrangement, as a favor to Sebastian,
whereby ₱400,000.00 from his savings account was
temporarily transferred to Domingo Quiaoit’s savings account,
subject to its immediate return upon issuance of a certificate of
deposit which Quiaoit needed in connection with his visa
application at the Taiwan Embassy. As part of the
arrangement, Sebastian retained custody of Quiaoit’s savings
account passbook to ensure that no withdrawal would be
effected therefrom, and to preserve Franco’s deposits.
On May 17, 1990, Franco pre-terminated his time deposit
account. BPI-FB deducted the amount of ₱63,189.00 from the
remaining balance of the time deposit account representing
advance interest paid to him.
These transactions spawned a number of cases, some of which
we had already resolved.
FMIC filed a complaint against BPI-FB for the recovery of the
amount of ₱80,000,000.00 debited from its account.17 The case
eventually reached this Court, and in BPI Family Savings
Bank, Inc. v. First Metro Investment Corporation, 18 we upheld
the finding of the courts below that BPI-FB failed to exercise
the degree of diligence required by the nature of its obligation
to treat the accounts of its depositors with meticulous care.
Thus, BPI-FB was found liable to FMIC for the debited
amount in its time deposit. It was ordered to pay
₱65,332,321.99 plus interest at 17% per annum from August
29, 1989 until fully restored. In turn, the 17% shall itself earn
interest at 12% from October 4, 1989 until fully paid.
In a related case, Edgardo Buenaventura, Myrna Lizardo and
Yolanda Tica (Buenaventura, et al.),19 recipients of a
₱500,000.00 check proceeding from the ₱80,000,000.00
mistakenly credited to Tevesteco, likewise filed suit.
Buenaventura et al., as in the case of Franco, were also
prevented from effecting withdrawals 20 from their current
account with BPI-FB, Bonifacio Market, Edsa, Caloocan City
Branch. Likewise, when the case was elevated to this Court
docketed as BPI Family Bank v. Buenaventura, 21 we ruled that
BPI-FB had no right to freeze Buenaventura, et al.’s accounts
and adjudged BPI-FB liable therefor, in addition to damages.
Meanwhile, BPI-FB filed separate civil and criminal cases
against those believed to be the perpetrators of the multi-
million peso scam.22 In the criminal case, Franco, along with
the other accused, except for Manuel Bienvenida who was still
at large, were acquitted of the crime of Estafa as defined and
penalized under Article 351, par. 2(a) of the Revised Penal
Code.23 However, the civil case24 remains under litigation and
the respective rights and liabilities of the parties have yet to be
adjudicated.
Consequently, in light of BPI-FB’s refusal to heed Franco’s
demands to unfreeze his accounts and release his deposits
therein, the latter filed on June 4, 1990 with the Manila RTC
the subject suit. In his complaint, Franco prayed for the
following reliefs: (1) the interest on the remaining balance 25 of
his current account which was eventually released to him on
October 31, 1991; (2) the balance26 on his savings account,
plus interest thereon; (3) the advance interest 27 paid to him
which had been deducted when he pre-terminated his time
deposit account; and (4) the payment of actual, moral and
exemplary damages, as well as attorney’s fees.
BPI-FB traversed this complaint, insisting that it was correct
in freezing the accounts of Franco and refusing to release his
deposits, claiming that it had a better right to the amounts
which consisted of part of the money allegedly fraudulently
withdrawn from it by Tevesteco and ending up in Franco’s
accounts. BPI-FB asseverated that the claimed consideration
of ₱2,000,000.00 for the introduction facilitated by Franco
between George Daantos and Eladio Teves, on the one hand,
and Jaime Sebastian, on the other, spoke volumes of Franco’s
participation in the fraudulent transaction.
On August 4, 1993, the Manila RTC rendered judgment, the
dispositive portion of which reads as follows:
WHEREFORE, in view of all the foregoing, judgment is
hereby rendered in favor of [Franco] and against [BPI-FB],
ordering the latter to pay to the former the following sums:
1. ₱76,500.00 representing the legal rate of interest
on the amount of ₱450,000.00 from May 18, 1990 to
October 31, 1991;
2. ₱498,973.23 representing the balance on
[Franco’s] savings account as of May 18, 1990,
together with the interest thereon in accordance with
the bank’s guidelines on the payment therefor;
3. ₱30,000.00 by way of attorney’s fees; and
4. ₱10,000.00 as nominal damages.
The counterclaim of the defendant is DISMISSED for lack of
factual and legal anchor.
Costs against [BPI-FB].
SO ORDERED.28
Unsatisfied with the decision, both parties filed their
respective appeals before the CA. Franco confined his appeal
to the Manila RTC’s denial of his claim for moral and
exemplary damages, and the diminutive award of attorney’s
fees. In affirming with modification the lower court’s decision,
the appellate court decreed, to wit:
WHEREFORE, foregoing considered, the appealed decision is
hereby AFFIRMED with modification ordering [BPI-FB] to
pay [Franco] ₱63,189.00 representing the interest deducted
from the time deposit of plaintiff-appellant. ₱200,000.00 as
moral damages and ₱100,000.00 as exemplary damages,
63 TORTS LAST SET
deleting the award of nominal damages (in view of the award
of moral and exemplary damages) and increasing the award of
attorney’s fees from ₱30,000.00 to ₱75,000.00.
Cost against [BPI-FB].
SO ORDERED.29
In this recourse, BPI-FB ascribes error to the CA when it ruled
that: (1) Franco had a better right to the deposits in the subject
accounts which are part of the proceeds of a forged Authority
to Debit; (2) Franco is entitled to interest on his current
account; (3) Franco can recover the ₱400,000.00 deposit in
Quiaoit’s savings account; (4) the dishonor of Franco’s checks
was not legally in order; (5) BPI-FB is liable for interest on
Franco’s time deposit, and for moral and exemplary damages;
and (6) BPI-FB’s counter-claim has no factual and legal
anchor.
The petition is partly meritorious.
We are in full accord with the common ruling of the lower
courts that BPI-FB cannot unilaterally freeze Franco’s
accounts and preclude him from withdrawing his deposits.
However, contrary to the appellate court’s ruling, we hold that
Franco is not entitled to unearned interest on the time deposit
as well as to moral and exemplary damages.
First. On the issue of who has a better right to the deposits in
Franco’s accounts, BPI-FB urges us that the legal consequence
of FMIC’s forgery claim is that the money transferred by BPI-
FB to Tevesteco is its own, and considering that it was able to
recover possession of the same when the money was
redeposited by Franco, it had the right to set up its ownership
thereon and freeze Franco’s accounts.
BPI-FB contends that its position is not unlike that of an
owner of personal property who regains possession after it is
stolen, and to illustrate this point, BPI-FB gives the following
example: where X’s television set is stolen by Y who
thereafter sells it to Z, and where Z unwittingly entrusts
possession of the TV set to X, the latter would have the right
to keep possession of the property and preclude Z from
recovering possession thereof. To bolster its position, BPI-FB
cites Article 559 of the Civil Code, which provides:
Article 559. The possession of movable property acquired in
good faith is equivalent to a title. Nevertheless, one who has
lost any movable or has been unlawfully deprived thereof,
may recover it from the person in possession of the same.
If the possessor of a movable lost or of which the owner has
been unlawfully deprived, has acquired it in good faith at a
public sale, the owner cannot obtain its return without
reimbursing the price paid therefor.
BPI-FB’s argument is unsound. To begin with, the movable
property mentioned in Article 559 of the Civil Code pertains
to a specific or determinate thing. 30 A determinate or specific
thing is one that is individualized and can be identified or
distinguished from others of the same kind.31
In this case, the deposit in Franco’s accounts consists of
money which, albeit characterized as a movable, is generic
and fungible.32 The quality of being fungible depends upon the
possibility of the property, because of its nature or the will of
the parties, being substituted by others of the same kind, not
having a distinct individuality.33
Significantly, while Article 559 permits an owner who has lost
or has been unlawfully deprived of a movable to recover the
exact same thing from the current possessor, BPI-FB simply
claims ownership of the equivalent amount of money, i.e., the
value thereof, which it had mistakenly debited from FMIC’s
account and credited to Tevesteco’s, and subsequently traced
to Franco’s account. In fact, this is what BPI-FB did in filing
the Makati Case against Franco, et al. It staked its claim on the
money itself which passed from one account to another,
commencing with the forged Authority to Debit.
It bears emphasizing that money bears no earmarks of peculiar
ownership,34 and this characteristic is all the more manifest in
the instant case which involves money in a banking
transaction gone awry. Its primary function is to pass from
hand to hand as a medium of exchange, without other
evidence of its title.35 Money, which had passed through
various transactions in the general course of banking business,
even if of traceable origin, is no exception.
Thus, inasmuch as what is involved is not a specific or
determinate personal property, BPI-FB’s illustrative example,
ostensibly based on Article 559, is inapplicable to the instant
case.
There is no doubt that BPI-FB owns the deposited monies in
the accounts of Franco, but not as a legal consequence of its
unauthorized transfer of FMIC’s deposits to Tevesteco’s
account. BPI-FB conveniently forgets that the deposit of
money in banks is governed by the Civil Code provisions on
simple loan or mutuum.36 As there is a debtor-creditor
relationship between a bank and its depositor, BPI-FB
ultimately acquired ownership of Franco’s deposits, but such
ownership is coupled with a corresponding obligation to pay
him an equal amount on demand.37 Although BPI-FB owns the
deposits in Franco’s accounts, it cannot prevent him from
demanding payment of BPI-FB’s obligation by drawing
checks against his current account, or asking for the release of
the funds in his savings account. Thus, when Franco issued
checks drawn against his current account, he had every right
as creditor to expect that those checks would be honored by
BPI-FB as debtor.
More importantly, BPI-FB does not have a unilateral right to
freeze the accounts of Franco based on its mere suspicion that
the funds therein were proceeds of the multi-million peso
scam Franco was allegedly involved in. To grant BPI-FB, or
any bank for that matter, the right to take whatever action it
pleases on deposits which it supposes are derived from shady
transactions, would open the floodgates of public distrust in
the banking industry.
Our pronouncement in Simex International (Manila), Inc. v.
Court of Appeals38 continues to resonate, thus:
The banking system is an indispensable institution in the
modern world and plays a vital role in the economic life of
every civilized nation. Whether as mere passive entities for the
safekeeping and saving of money or as active instruments of
business and commerce, banks have become an ubiquitous
presence among the people, who have come to regard them
with respect and even gratitude and, most of all, confidence.
Thus, even the humble wage-earner has not hesitated to entrust
his life’s savings to the bank of his choice, knowing that they
will be safe in its custody and will even earn some interest for
him. The ordinary person, with equal faith, usually maintains a
modest checking account for security and convenience in the
settling of his monthly bills and the payment of ordinary
expenses. x x x.
In every case, the depositor expects the bank to treat his
account with the utmost fidelity, whether such account
consists only of a few hundred pesos or of millions. The bank
must record every single transaction accurately, down to the
last centavo, and as promptly as possible. This has to be done
if the account is to reflect at any given time the amount of
64 TORTS LAST SET
money the depositor can dispose of as he sees fit, confident
that the bank will deliver it as and to whomever directs. A
blunder on the part of the bank, such as the dishonor of the
check without good reason, can cause the depositor not a little
embarrassment if not also financial loss and perhaps even civil
and criminal litigation.
The point is that as a business affected with public interest and
because of the nature of its functions, the bank is under
obligation to treat the accounts of its depositors with
meticulous care, always having in mind the fiduciary nature of
their relationship. x x x.
Ineluctably, BPI-FB, as the trustee in the fiduciary
relationship, is duty bound to know the signatures of its
customers. Having failed to detect the forgery in the Authority
to Debit and in the process inadvertently facilitate the FMIC-
Tevesteco transfer, BPI-FB cannot now shift liability thereon
to Franco and the other payees of checks issued by Tevesteco,
or prevent withdrawals from their respective accounts without
the appropriate court writ or a favorable final judgment.
Further, it boggles the mind why BPI-FB, even without
delving into the authenticity of the signature in the Authority
to Debit, effected the transfer of ₱80,000,000.00 from FMIC’s
to Tevesteco’s account, when FMIC’s account was a time
deposit and it had already paid advance interest to FMIC.
Considering that there is as yet no indubitable evidence
establishing Franco’s participation in the forgery, he remains
an innocent party. As between him and BPI-FB, the latter,
which made possible the present predicament, must bear the
resulting loss or inconvenience.
Second. With respect to its liability for interest on Franco’s
current account, BPI-FB argues that its non-compliance with
the Makati RTC’s Order Lifting the Order of Attachment and
the legal consequences thereof, is a matter that ought to be
taken up in that court.
The argument is tenuous. We agree with the succinct holding
of the appellate court in this respect. The Manila RTC’s order
to pay interests on Franco’s current account arose from BPI-
FB’s unjustified refusal to comply with its obligation to pay
Franco pursuant to their contract of mutuum. In other words,
from the time BPI-FB refused Franco’s demand for the release
of the deposits in his current account, specifically, from May
17, 1990, interest at the rate of 12% began to accrue thereon.39
Undeniably, the Makati RTC is vested with the authority to
determine the legal consequences of BPI-FB’s non-
compliance with the Order Lifting the Order of Attachment.
However, such authority does not preclude the Manila RTC
from ruling on BPI-FB’s liability to Franco for payment of
interest based on its continued and unjustified refusal to
perform a contractual obligation upon demand. After all, this
was the core issue raised by Franco in his complaint before the
Manila RTC.
Third. As to the award to Franco of the deposits in Quiaoit’s
account, we find no reason to depart from the factual findings
of both the Manila RTC and the CA.
Noteworthy is the fact that Quiaoit himself testified that the
deposits in his account are actually owned by Franco who
simply accommodated Jaime Sebastian’s request to
temporarily transfer ₱400,000.00 from Franco’s savings
account to Quiaoit’s account.40 His testimony cannot be
characterized as hearsay as the records reveal that he had
personal knowledge of the arrangement made between Franco,
Sebastian and himself.41
BPI-FB makes capital of Franco’s belated allegation relative
to this particular arrangement. It insists that the transaction
with Quiaoit was not specifically alleged in Franco’s
complaint before the Manila RTC. However, it appears that
BPI-FB had impliedly consented to the trial of this issue given
its extensive cross-examination of Quiaoit.
Section 5, Rule 10 of the Rules of Court provides:
Section 5. Amendment to conform to or authorize presentation
of evidence.— When issues not raised by the pleadings are
tried with the express or implied consent of the parties, they
shall be treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at
any time, even after judgment; but failure to amend does not
affect the result of the trial of these issues. If evidence is
objected to at the trial on the ground that it is now within the
issues made by the pleadings, the court may allow the
pleadings to be amended and shall do so with liberality if the
presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The court may
grant a continuance to enable the amendment to be made.
(Emphasis supplied)
In all, BPI-FB’s argument that this case is not the right forum
for Franco to recover the ₱400,000.00 begs the issue. To
reiterate, Quiaoit, testifying during the trial, unequivocally
disclaimed ownership of the funds in his account, and pointed
to Franco as the actual owner thereof. Clearly, Franco’s action
for the recovery of his deposits appropriately covers the
deposits in Quiaoit’s account.
Fourth. Notwithstanding all the foregoing, BPI-FB continues
to insist that the dishonor of Franco’s checks respectively
dated September 11 and 18, 1989 was legally in order in view
of the Makati RTC’s supplemental writ of attachment issued
on September 14, 1989. It posits that as the party that applied
for the writ of attachment before the Makati RTC, it need not
be served with the Notice of Garnishment before it could place
Franco’s accounts under garnishment.
The argument is specious. In this argument, we perceive BPI-
FB’s clever but transparent ploy to circumvent Section
4,42 Rule 13 of the Rules of Court. It should be noted that the
strict requirement on service of court papers upon the parties
affected is designed to comply with the elementary requisites
of due process. Franco was entitled, as a matter of right, to
notice, if the requirements of due process are to be observed.
Yet, he received a copy of the Notice of Garnishment only on
September 27, 1989, several days after the two checks he
issued were dishonored by BPI-FB on September 20 and 21,
1989. Verily, it was premature for BPI-FB to freeze Franco’s
accounts without even awaiting service of the Makati RTC’s
Notice of Garnishment on Franco.
Additionally, it should be remembered that the enforcement of
a writ of attachment cannot be made without including in the
main suit the owner of the property attached by virtue thereof.
Section 5, Rule 13 of the Rules of Court specifically provides
that "no levy or attachment pursuant to the writ issued x x x
shall be enforced unless it is preceded, or contemporaneously
accompanied, by service of summons, together with a copy of
the complaint, the application for attachment, on the defendant
within the Philippines."
Franco was impleaded as party-defendant only on May 15,
1990. The Makati RTC had yet to acquire jurisdiction over the
person of Franco when BPI-FB garnished his
accounts.43 Effectively, therefore, the Makati RTC had no
authority yet to bind the deposits of Franco through the writ of
65 TORTS LAST SET
attachment, and consequently, there was no legal basis for
BPI-FB to dishonor the checks issued by Franco.
Fifth. Anent the CA’s finding that BPI-FB was in bad faith
and as such liable for the advance interest it deducted from
Franco’s time deposit account, and for moral as well as
exemplary damages, we find it proper to reinstate the ruling of
the trial court, and allow only the recovery of nominal
damages in the amount of ₱10,000.00. However, we retain the
CA’s award of ₱75,000.00 as attorney’s fees.
In granting Franco’s prayer for interest on his time deposit
account and for moral and exemplary damages, the CA
attributed bad faith to BPI-FB because it (1) completely
disregarded its obligation to Franco; (2) misleadingly claimed
that Franco’s deposits were under garnishment; (3)
misrepresented that Franco’s current account was not on file;
and (4) refused to return the ₱400,000.00 despite the fact that
the ostensible owner, Quiaoit, wanted the amount returned to
Franco.
In this regard, we are guided by Article 2201 of the Civil Code
which provides:
Article 2201. In contracts and quasi-contracts, the damages for
which the obligor who acted in good faith is liable shall be
those that are the natural and probable consequences of the
breach of the obligation, and which the parties have foreseen
or could have reasonable foreseen at the time the obligation
was constituted.
In case of fraud, bad faith, malice or wanton attitude, the
obligor shall be responsible for all damages which may be
reasonably attributed to the non-performance of the obligation.
(Emphasis supplied.)
We find, as the trial court did, that BPI-FB acted out of the
impetus of self-protection and not out of malevolence or ill
will. BPI-FB was not in the corrupt state of mind
contemplated in Article 2201 and should not be held liable for
all damages now being imputed to it for its breach of
obligation. For the same reason, it is not liable for the
unearned interest on the time deposit.
Bad faith does not simply connote bad judgment or
negligence; it imports a dishonest purpose or some moral
obliquity and conscious doing of wrong; it partakes of the
nature of fraud.44 We have held that it is a breach of a known
duty through some motive of interest or ill will.45 In the instant
case, we cannot attribute to BPI-FB fraud or even a motive of
self-enrichment. As the trial court found, there was no denial
whatsoever by BPI-FB of the existence of the accounts. The
computer-generated document which indicated that the current
account was "not on file" resulted from the prior debit by BPI-
FB of the deposits. The remedy of freezing the account, or the
garnishment, or even the outright refusal to honor any
transaction thereon was resorted to solely for the purpose of
holding on to the funds as a security for its intended court
action,46 and with no other goal but to ensure the integrity of
the accounts.
We have had occasion to hold that in the absence of fraud or
bad faith,47 moral damages cannot be awarded; and that the
adverse result of an action does not per se make the action
wrongful, or the party liable for it. One may err, but error
alone is not a ground for granting such damages.48
An award of moral damages contemplates the existence of the
following requisites: (1) there must be an injury clearly
sustained by the claimant, whether physical, mental or
psychological; (2) there must be a culpable act or omission
factually established; (3) the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the
claimant; and (4) the award for damages is predicated on any
of the cases stated in Article 2219 of the Civil Code.49

Franco could not point to, or identify any particular

circumstance in Article 2219 of the Civil Code, 50 upon which
to base his claim for moral damages.1â wphi1

Thus, not having acted in bad faith, BPI-FB cannot be held

liable for moral damages under Article 2220 of the Civil Code
for breach of contract.51

We also deny the claim for exemplary damages. Franco should

show that he is entitled to moral, temperate, or compensatory
damages before the court may even consider the question of
whether exemplary damages should be awarded to him.52 As
there is no basis for the award of moral damages, neither can
exemplary damages be granted.

While it is a sound policy not to set a premium on the right to

litigate,53 we, however, find that Franco is entitled to
reasonable attorney’s fees for having been compelled to go to
court in order to assert his right. Thus, we affirm the CA’s
grant of ₱75,000.00 as attorney’s fees.

Attorney’s fees may be awarded when a party is compelled to

litigate or incur expenses to protect his interest, 54 or when the
court deems it just and equitable.55 In the case at bench, BPI-
FB refused to unfreeze the deposits of Franco despite the
Makati RTC’s Order Lifting the Order of Attachment and
Quiaoit’s unwavering assertion that the ₱400,000.00 was part
of Franco’s savings account. This refusal constrained Franco
to incur expenses and litigate for almost two (2) decades in
order to protect his interests and recover his deposits.
Therefore, this Court deems it just and equitable to grant
Franco ₱75,000.00 as attorney’s fees. The award is reasonable
in view of the complexity of the issues and the time it has
taken for this case to be resolved.56

Sixth. As for the dismissal of BPI-FB’s counter-claim, we

uphold the Manila RTC’s ruling, as affirmed by the CA, that
BPI-FB is not entitled to recover ₱3,800,000.00 as actual
damages. BPI-FB’s alleged loss of profit as a result of
Franco’s suit is, as already pointed out, of its own making.
Accordingly, the denial of its counter-claim is in order.

WHEREFORE, the petition is PARTIALLY GRANTED. The

Court of Appeals Decision dated November 29, 1995 is
AFFIRMED with the MODIFICATION that the award of
unearned interest on the time deposit and of moral and
exemplary damages is DELETED.

No pronouncement as to costs.

SO ORDERED.

66 TORTS LAST SET

G.R. No. 202514 July 25, 2016
ANNA MARIE L. GUMABON, Petitioner
vs.
PHILIPPINE NATIONAL BANK, Respondent
DECISION
BRION, J.:
Before us is a petition for review on certiorari1under Rule 45
of the Rules of Court filed by Anna Marie Gumabon (Anna
Marie) assailing the December 16, 2011 decision 2 and June 26,
2012 resolution3 of the Court of Appeals (CA) in CA-G.R.
CV. No. 96289. The CA reversed the Regional Trial
Court (RTC)'s ruling4 in Civil Case No. Q-04-53432 favoring
Anna Marie.
The Facts
On August 12, 2004, Anna Marie filed a complaint for
recovery of sum of money and damages before the RTC
against the Philippine National Bank (PNB) and the PNB
Delta branch manager Silverio Fernandez (Fernandez). The
case stemmed from the PNB’s refusal to release Anna Marie’s
money in a consolidated savings account and in two foreign
exchange time deposits, evidenced by Foreign Exchange
Certificates of Time Deposit (FXCTD).
In 2001, Anna Marie, together with her mother Angeles and
her siblings Anna Elena and Santiago, (the Gumabons)
deposited with the PNB Delta Branch $10,945.28 and
$16,830.91, for which they were issued FXCTD Nos. A-
9939025 and A-993992,6 respectively.
The Gumabons also maintained eight (8) savings accounts 7 in
the same bank. Anna Marie decided to consolidate the eight
(8) savings accounts and to withdraw ₱2,727,235.85 from the
consolidated savings account to help her sister’s financial
needs.
Anna Marie called the PNB employee handling her accounts,
Reino Antonio Salvoro (Salvoro), to facilitate the
consolidation of the savings accounts and the withdrawal.
When she went to the bank on April 14, 2003, she was
informed that she could not withdraw from the savings
accounts since her bank records were missing and Salvoro
could not be contacted.
On April 15, 2003, Anna Marie presented her two FXCTDs,
but was also unable to withdraw against them. Fernandez
informed her that the bank would still verify and investigate
before allowing the withdrawal since Salvoro had not reported
for work.
Thus, Anna Marie sent two demand letters 8 dated April 23 and
April 25, 2003 to the PNB.
After a month, the PNB finally consolidated the savings
accounts and issued a passbook for Savings Account (SA) No.
6121200.9 The PNB also confirmed that the total deposits
amounted to ₱2,734,207.36. Anna Marie, her mother, and the
PNB executed a Deed of Waiver and Quitclaim dated May 23,
200310 to settle all questions regarding the consolidation of the
savings accounts. After withdrawals, the balance of her
consolidated savings account was ₱250,741.82.
On July 30, 2003, the PNB sent letters to Anna Marie to
inform her that the PNB refused to honor its obligation under
FXCTD Nos. 993902 and 993992,11 and that the PNB
withheld the release of the balance of ₱250,741.82 in the
consolidated savings account.12 According to the PNB, Anna
67 TORTS LAST SET
Marie pre-terminated, withdrew and/or debited sums against
her deposits.
Thus, Anna Marie filed before the RTC a complaint for sum of
money and damages against the PNB and Fernandez. 13
As to the two FXCTDs, Anna Marie contended that the PNB’s
refusal to pay her time deposits is contrary to
law.1â wphi1 The PNB cannot claim that the bank deposits
have been paid since the certificates of the time deposits are
still with Anna Marie.14
As to the consolidated savings account, Anna Marie stated that
the PNB had already acknowledged the account’s balance in
the Deed of Waiver and Quitclaim amounting to
₱2,734,207.36. As of January 26, 2004, the remaining balance
was ₱250,741.82. PNB presented no concrete proof that this
amount had been withdrawn.
Anna Marie prayed that the PNB and Fernandez be held
solidarily liable for actual, moral, and exemplary damages, as
well as attorney’s fees, costs of suit, and legal interests
because of the PNB’s refusal to honor its obligations.
In its answer,15 the PNB argued that: (1) Anna Marie is not
entitled to the balance of the consolidated savings account
based on solutio indebiti; (2) the PNB already paid the
$10,058.01 covered by FXCTD No. 993902; (3) the PNB is
liable to pay only $10,718.87 of FXCTD No. 993992, instead
of the full amount of $17,235.41; and (4) Anna Marie is guilty
of contributory negligence. The PNB’s arguments are
discussed below.
First, Anna Marie is not entitled to the alleged balance of
₱250,741.82. The PNB’s investigation showed that Anna
Marie withdrew a total of ₱251,246.8116 from two of the eight
savings accounts and she used this amount to purchase
manager’s check No. 0000760633.17 Hence, ₱251,246.81
should be deducted from the sum agreed upon in the Deed of
Waiver and Quitclaim. The PNB offered photocopies of the
PNB’s miscellaneous ticket18 and the manager’s check as
evidence to prove the withdrawals. The PNB argued that
unjust enrichment would result if Anna Marie would be
allowed to collect ₱250,741.82 from the consolidated savings
account without deducting her previous withdrawal of
₱251,246.81.
Second, Anna Marie is not entitled to receive $10,058.01
covered by FXCTD No. 993902. Based on the PNB’s records,
Anna Marie pre-terminated FXCTD No. 993902 on March 11,
2002, and used the deposit, together with another deposit
covered by FXCTD No. 993914 (for $8,111.35), to purchase
a foreign demand draft (FX Demand Draft No. 4699831)
payable to Anna Rose/Angeles Gumabon. The PNB presented
a facsimile copy of Anna Rose’s Statement of Account
(SOA)19 from the PNB Bank to prove that the amount covered
by FXCTD No. 993902 was already paid.
Third, Anna Marie is only entitled to receive $10,718.87
instead of the full amount of $17,235.41 covered by FXCTD
No. 993992 because: (a) the amount of $1,950.00 was part of
the money used by Anna Marie to purchase the manager’s
check; (2) the amount of $2,566.54 was credited to Current
Account No. 227-810961-8 owned by Anna Marie’s aunt,
Lolita Lim; and (3) the amount of $2,000.00 was credited to
Current Account No. 2108107498 of Anna Marie and Savings
Account No. 212-5057333 of Anna Marie/or Angeles or
Santiago/or Elena (all surnamed Gumabon). Hence, these
amounts should be deducted from the amount payable to Anna
Marie.
Finally, the PNB alleged that Anna Marie was guilty of
contributory negligence in her bank dealings.
20
In her reply,  Anna Marie argued that the best evidence of her
withdrawals is the withdrawal slips duly signed by her and the
passbooks pertaining to the accounts. PNB, however, failed to
show any of the withdrawal slips and/or passbooks, and also
failed to present sufficient evidence that she used her
accounts’ funds.
The RTC Ruling
The RTC ruled in Anna Marie’s favour.21
The RTC held that the PNB had not yet paid the remaining
balance of $10,058.01 under FXCTD No. 993902. Anna
Marie’s SOA,22 which the PNB relied upon, is a mere
photocopy and does not satisfy the best evidence rule.
Moreover, there is no indication on the stated amounts in the
SOA that the funds have come from FXCTD No.
993902.23 The PNB failed to obtain the deposition of a PNC
Bank officer or present any other evidence to show that the
amounts stated in the SOA came from FXCTD No. 993902.
The RTC also held that the alleged pre-termination of FXCTD
No. 993902 on March 11, 2002, is hard to believe since the
certificate shows that the last entry was made on March 24,
2003, with a reflected balance of $10,058.01.
On FXCTD No. 993992, the RTC held that the PNB failed to
prove Anna Marie’s alleged withdrawals. These alleged
withdrawals are not reflected at the back of the certificate.
Anna Marie’s ledger was also not presented as evidence to
show that several withdrawals had been made against FXCTD
No. 993992.
On the consolidated savings account, the RTC held that the
PNB failed to prove that Anna Marie withdrew the balance of
₱250,741.82. The RTC excluded PNB’s evidence, i.e.,
photocopies of the miscellaneous ticket and manager’s
check, to prove the alleged withdrawals, since these
documents were just photocopies and thus failed to satisfy the
best evidence rule.
The RTC awarded damages to Anna Marie due to the PNB’s
mishandling of her account through its employee, Salvoro.
The RTC also held that the PNB failed to establish Anna
Marie’s contributory negligence.
In conclusion, the RTC ordered the PNB to pay Anna Marie
these amounts:
(1) Actual damages of:
(a) $10,058.01, as the outstanding balance of FXCTD
No. 993902;
(b) $20,244.42, as the outstanding balance of FXCTD
No. 993992;and
(c) ₱250,741.82, as the outstanding balance of SA
No. 6121200;
(2) ₱100,000.00 as moral damages;
(3) ₱50,000.00 as exemplary damages;
(4) ₱150,000.00 as attorney’s fees; and
(5) Costs of suit.
From this ruling, the PNB appealed before the CA.
68 TORTS LAST SET
The CA Ruling
The CA reversed the RTC’s ruling.24
The CA held that the PNB had paid the actual amounts
claimed by Anna Marie in her complaint. The CA noted Anna
Marie’s suspicious and exclusive dealings with Salvoro and
the Gumabons’ instruction to Salvoro to make unauthorized
and unrecorded withdrawals. Hence, there are no entries of
withdrawals reflected in Anna Marie’s passbook.
The CA also considered Anna Rose’s SOA as proof that the
PNB had paid the remaining balance of $10,058.01 on
FXCTD No. 993902. The CA held that the PNB verified the
SOA and it was corroborated by the affidavit25 of the PNB
Branch Operations Officer in New York. The CA stated that
the RTC should have allowed the taking of the deposition of
the PNB bank officer.
The CA also relied on the PNB’s investigation and concluded
that the PNB had already paid the amounts claimed by Anna
Marie under FXCTD Nos. 993902 and 993992.
As to Anna Marie’s consolidated savings account, the CA
gave credence to the miscellaneous ticket and the manager’s
check presented by the PNB to prove that it had already paid
the balance.
Anna Marie moved but failed to obtain reconsideration of the
CA’s decision; hence, the present petition.26
The Petition
Anna Marie filed the present petition for review to question
the CA’s decision and resolution which reversed the RTC’s
ruling.
Anna Marie argues that: first, the CA should not have
disregarded the RTC’s conclusive findings; second, the CA
erred in considering the PNB New York bank officer’s
affidavit because it was not formally offered as
evidence; third, the CA erroneously relied on a foreign
demand draft27 to prove the PNB’s payment of the amount due
under FXCTD No. 993902; fourth, the CA erroneously
considered the miscellaneous ticket and the manager’s check
because these documents are mere photocopies and
inadmissible under the best evidence rule; and fifth, the CA’s
conclusion about a purported "connivance" between Anna
Marie and Salvoro has no evidentiary basis.
In its comment, the PNB counters that: first, the CA can
rectify the RTC’s factual findings since the RTC committed
errors in its appreciation of the evidence; second, the RTC
completely ignored the PNB’s several evidence proving its
payment of Anna Marie’s FXCTDs; third, Anna Marie did not
refute the PNB’s allegations of payment; fourth, the CA has
the right to review even those exhibits which were excluded
by the RTC; and fifth, the CA correctly ruled that the PNB
should not be faulted about the unrecorded transactions, and
that the PNB had done its duty to its depositors when it
conducted investigations and an internal audit of Anna Marie’s
accounts.
The Issues
The issue before this Court is whether Anna Marie is entitled
to the payment of the following amounts:
(a) $10,058.01 or the outstanding balance under FXCTD No.
993902;
(b) $20,244.42 for FXCTD No. 993992;
(c) ₱250,741.82 for SA No. 6121200; and
(3) Damages.
Our Ruling
We grant the petition and reverse the CA’s ruling.
The core issue raised in the present petition is a question of
fact. As a general rule, a petition for review under Rule 45 of
the Rules of Court covers only questions of law. Questions of
fact are not reviewable and cannot be passed upon by the
Court in the exercise of its power to review under Rule 45.28
There are, however, exceptions to the general rule. Questions
of fact may be raised before this Court in any of these
instances: (1) when the findings are grounded entirely on
speculations, surmises, or conjectures; (2) when the inference
made is manifestly mistaken, absurd, or impossible; (3) when
there is a grave abuse of discretion; (4) when the judgment is
based on misappreciation of facts; (5) when the findings of
fact are conflicting; (6) when in making its findings, the same
are contrary to the admissions of both appellant and appellee;
(7) when the findings are contrary to those of the trial court;
(8) when the findings are conclusions without citation of
specific evidence on which they are based; (9) when the facts
set forth in the petition as well as in the petitioners main and
reply briefs are not disputed by the respondent; and (10) when
the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record.29
The present case falls under two of the exceptions, particularly
that the CA’s findings are contrary to the RTC’s findings, and
that the CA’s findings of fact are premised on absent evidence
and contradicted by the evidence on record.
We note that the CA considered pieces of evidence which are
inadmissible under the Rules of Court, particularly the
manager’s check and the corresponding miscellaneous ticket,
Anna Rose’s SOA, and the affidavit of the PNB New York’s
bank officer. The inadmissibility of these documents is
explained more fully in the following discussion.
PNB failed to establish the fact of
payment to Anna Marie in FXCTD
Nos. 993902 and 993992, and SA No. 6121200.
It is a settled rule in evidence that the one who alleges
payment has the burden of proving it. 30 The burden of proving
that the debt had been discharged by payment rests upon the
debtor once the debt’s existence has been fully established by
the evidence on record. When the debtor introduces some
evidence of payment, the burden of going forward with the
evidence – as distinct from the burden of proof – shifts to the
creditor. Consequently, the creditor has a duty to produce
evidence to show non-payment.31
In the present case, both the CA and the RTC declared that the
PNB has the burden of proving payment. The lower courts,
however, differed in resolving the question of whether the
PNB presented sufficient evidence of payment to shift the
burden of evidence to Anna Marie. The RTC ruled that the
PNB failed to do so, after excluding PNB’s evidence, i.e.,
miscellaneous ticket, manager’s check, and the affidavit of the
PNB New York’s bank officer, based on the rules of evidence.
The CA, on the other hand, considered the excluded evidence
and found that the PNB presented sufficient proof of payment.
69 TORTS LAST SET
i. The PNB’s alleged payment of
the amount covered by SA No.
6121200
The PNB alleged that it had already paid the balance of the
consolidated savings account (SA No. 6121200) amounting to
P250,741.82. It presented the manager’s check to prove that
Anna Marie purchased the check using the amounts covered
by the Gumabon’s two savings accounts which were later part
of Anna Marie’s consolidated savings account. The PNB also
presented the miscellaneous ticket to prove Anna Marie’s
withdrawal from the savings accounts.
The RTC denied the admission of the manager’s check and the
miscellaneous ticket since the original copies were never
presented.32 The PNB moved to tender the excluded evidence
and argued that even without the presentation of the original
copies, the photocopies are admissible because they have been
identified by Fernandez.33
Evidence, to be admissible, must comply with two
qualifications: (a) relevance and (b) competence. Evidence is
relevant if it has a relation to the fact in issue as to induce a
belief in its existence or nonexistence. 34 On the other hand,
evidence is competent if it is not excluded by the law or by the
Rules of Court.35
One of the grounds under the Rules of Court that determines
the competence of evidence is the best evidence rule. Section
3, Rule 130 of the Rules of Court provides that the original
copy of the document must be presented whenever the content
of the document is under inquiry.36
However, there are instances when the Court may allow the
presentation of secondary evidence in the absence of the
original document. Section 3, Rule 130 of the Rules of Court
enumerates these exceptions:
(a) when the original has been lost, or destroyed, or cannot be
produced in court, without bad faith on the part of the offeror;
(b) when the original is in the custody or under the control of
the party against whom the evidence is offered, and the latter
fails to produce it after reasonable notice;
(c) when the original consists of numerous accounts or other
documents which cannot be examined in court without great
loss of time and the fact sought to be established from them is
only the general result of the whole; and
(d) when the original is a public record in the custody of a
public officer or is recorded in a public office.
While the RTC cannot consider the excluded evidence to
resolve the issues, such evidence may still be admitted on
appeal provided there has been tender of the excluded
evidence under Section 40 of Rule 132 of the Rules of Court.37
The PNB cannot simply substitute the mere photocopies of the
subject documents for the original copies without showing the
court that any of the exceptions under Section 3 of Rule 130 of
the Rules of Court applies. The PNB’s failure to give a
justifiable reason for the absence of the original documents
and to maintain a record of Anna Marie’s transactions only
shows the PNB’s dismal failure to fulfill its fiduciary duty to
Anna Marie.38 The Court expects the PNB to "treat the
accounts of its depositors with meticulous care, always having
in mind the fiduciary nature of their relationship."39 The Court
explained in Philippine Banking Corporation v. CA,40 the
fiduciary nature of the bank’s relationship with its depositors,
to wit:
The business of banking is imbued with public interest. The
stability of banks largely depends on the confidence of the
people in the honesty and efficiency of banks. In Simex
International (Manila) Inc. v. Court of Appeals we pointed
out the depositor’s reasonable expectations from a bank and
the bank’s corresponding duty to its depositor, as follows:
In every case, the depositor expects the bank to treat his
account with the utmost fidelity, whether such account
consists only of a few hundred pesos or of millions. The bank
must record every single transaction accurately, down to the
last centavo, and as promptly as possible. This has to be done
if the account is to reflect at any given time the amount of
money the depositor can dispose of as he sees fit, confident
that the bank will deliver it as and to whomever he directs.
(emphasis and underscoring supplied)
Consequently, the CA should not have admitted the subject
documents even if the PNB tendered the excluded evidence.
Notably, the PNB clearly admitted in the executed Deed of
Waiver and Quitclaim that it owed Anna Marie ₱2,734,207.36
under the consolidated savings account. After a number of
uncontested transactions, the remaining balance of Anna
Marie’s deposit became ₱250,741.82. The inevitable
conclusion is that PNB’s obligation to pay ₱250,741.82 under
SA No. 6121200 subsists.
ii. The PNB’s alleged payment of
the amount covered by FXCTD No. 993902
The PNB claimed that it had already paid the amount of
$10,058.01 covered by FXCTD No. 993902. It presented the
foreign demand draft dated March 11, 2002 which Anna Marie
allegedly purchased with the funds of FXCTD No. 993902. In
addition, the PNB also presented Anna Rose’s SOA to show
that there was a fund transfer involving the contested amount.
To further support its claim, the PNB annexed the affidavit of
the PNB New York’s branch officer about the fund transfer.
The PNB, however, failed to formally offer the affidavit as
evidence.
Anna Marie moved for the exclusion of the photocopy of
Anna Rose’s SOA for failing to conform to the best evidence
rule. The RTC granted her motion and denied its admission.
When the case reached the CA, the CA stated that the RTC
should have considered the evidence in the light of the PNB’s
identification of the SOA as an exact copy of the original and
the claim that it is corroborated by the affidavit of the PNB
New York’s bank officer.
The PNB explained that its failure to present the original copy
of Anna Rose’s SOA was because the original was not in the
PNB’s possession.
We rule that the SOA is inadmissible because it fails to qualify
as relevant evidence. As the RTC correctly stated, the SOA
"does not show which of the amount stated therein came from
the funds of Certificate of Time Deposit No. A-993902."41
The affidavit of the PNB New York’s bank officer is also
inadmissible in the light of the following self-explanatory
provision of the Rules of Court:
"Sec. 34. Offer of evidence. – The court shall consider no
evidence which has not been formally offered. x x x."42
Formal offer means that the offeror shall inform the court of
the purpose of introducing its exhibits into evidence. Without
a formal offer of evidence, courts cannot take notice of this
evidence even if this has been previously marked and
identified.43
70 TORTS LAST SET
In Heirs of Pedro Pasag v. Parocha,44 we reiterated the
importance of a formal offer of evidence. Courts are mandated
to rest their factual findings and their judgment only and
strictly upon the evidence offered by the parties at the trial.
The formal offer enables the judge to know the purpose or
purposes for which the proponent is presenting the evidence. It
also affords the opposing parties the chance to examine the
evidence and to object to its admissibility. Moreover, it
facilitates review as the appellate court will not be required to
review documents not previously scrutinized by the trial court.
In People v. Napat-a,45 People v. Mate,46 and Heirs of Romana
Saves, et al. v. Escolastico Saves, et al.,47 we recognized the
exceptions from the requirement of a formal offer of evidence,
namely: (a) the evidence must have been duly identified by
testimony duly recorded; and (b) the evidence must have been
incorporated in the records of the case.
It is unmistakable that the PNB did not include the affidavit of
the PNB New York’s bank officer in its formal offer of
evidence to corroborate Anna Rose’s SOA. Although the
affidavit was included in the records and identified by
Fernandez, it remains inadmissible for being hearsay.
Jurisprudence dictates that an affidavit is merely hearsay
evidence when its affiant or maker did not take the witness
stand.48
In the present case, Fernandez is not the proper party to
identify the affidavit executed by the PNB New York’s bank
officer since he is not the affiant. Therefore, the affidavit is
inadmissible.
Thus, the PNB failed to present sufficient and admissible
evidence to prove payment of the $10,058.01.This failure
leads us to conclude that the PNB is still liable to pay the
amount covered by FXCTD No. 993902.
iii. The PNB’s alleged payment of
the amount covered by FXCTD No. 993992
The PNB alleged that Anna Marie’s claim over FXCTD No.
993992 should only be limited to $5,857.79. It presented the
manager’s check, which admissibility we have heretofore
discussed and settled, and the miscellaneous tickets.
We cannot absolve the PNB from liability based on these
miscellaneous tickets alone. As the RTC correctly stated, the
transactions allegedly evidenced by these tickets were neither
posted at the back of Anna Marie’s certificate, nor recorded on
her ledger to show that several withdrawals had been made on
the account.
At this point, we remind the PNB of the negotiability of a
certificate of deposit as it is a written acknowledgment by the
bank of the receipt of a sum of money on deposit which the
bank promises to pay to the depositor, to the latter’s order, or
to some other person or the latter’s order. 49 To discharge a
debt, the bank must pay to someone authorized to receive the
payment.50 A bank acts at its peril when it pays deposits
evidenced by a certificate of deposit, without its production
and surrender after proper indorsement.51
Again, as the RTC had correctly stated, the PNB should not
have allowed the withdrawals, if there were indeed any,
without the presentation of the covering foreign certificates of
time deposit. There are no irregularities on Anna Marie’s
certificates to justify the PNB’s refusal to pay the stated
amounts in the certificates when it was presented for payment.
Therefore, the PNB is liable for Anna Marie’s claims since it
failed to prove that it had already been discharged from its
obligation.
PNB is liable to Anna Marie for actual, moral, and
exemplary damages as well as attorney’s fees for its
negligent acts as a banking institution.
Since the PNB is clearly liable to Anna Marie for her deposits,
the Court now determines PNB’s liability for damages under
existing laws and jurisprudence.
Section 2 of Republic Act No. 8791, 52 declares the State’s
recognition of the "fiduciary nature of banking that requires
high standards of integrity and performance." It cannot be
overemphasized that the banking business is impressed with
public interest. The trust and confidence of the public to the
industry is given utmost importance.53 Thus, the bank is under
obligation to treat its depositor’s accounts with meticulous
care, having in mind the nature of their relationship. 54 The
bank is required to assume a degree of diligence higher than
that of a good father of a family.55
As earlier settled, the PNB was negligent for its failure to
update and properly handle Anna Marie’s accounts. This is
patent from the PNB’s letter to Anna Marie, admitting the
error and unauthorized withdrawals from her account.
Moreover, Anna Marie was led to believe that the amounts she
has in her accounts would remain because of the Deed of
Waiver and Quitclaim executed by her, her mother, and PNB.
Assuming arguendo that Anna Marie made the contested
withdrawals, due diligence requires the PNB to record the
transactions in her passbooks.
The Court has established in a number of cases the standard of
care required from banks, and the bank’s liability for the
damages sustained by the depositor. The bank is not absolved
from liability by the fact that it was the bank’s employee who
committed the wrong and caused damage to the
depositor.56 Article 2180 of the New Civil Code provides that
the owners and managers of an establishment are responsible
for damages caused by their employees while performing their
functions.57
In addition, we held in PNB v. Pike,58 that although the bank’s
employees are the ones negligent, a bank is primarily liable for
the employees’ acts because banks are expected to exercise the
highest degree of diligence in the selection and supervision of
their employees.
Indeed, a great possibility exists that Salvoro was involved in
the unauthorized withdrawals. Anna Marie entrusted her
accounts to and made her banking transactions only through
him. Salvaro’s unexplained disappearance further confirms
this Court’s suspicions. The Court is alarmed that he was able
to repeatedly do these unrecorded transactions without the
bank noticing it. This only shows that the PNB has been
negligent in the supervision of its employees.
As to contributory negligence, the Court agrees with the RTC
that the PNB failed to substantiate its allegation that Anna
Marie was guilty of contributory negligence.
Contributory negligence is conduct on the part of the injured
party, contributing as a legal cause to the harm he has
suffered, which falls below the standard to which he is
required to conform for his own protection.59 Whether
contributory negligence transpired is a factual matter that must
be proven.
In the present case, Anna Marie cannot be held responsible for
entrusting her account with Salvoro. As shown in the records,
Salvoro was the bank’s time deposit specialist. Anna Marie
cannot thus be faulted if she engaged the bank’s services
through Salvoro for transactions related to her time deposits.
71 TORTS LAST SET
The Court also cannot accept the CA’s conclusion that there
was connivance between Anna Marie and Salvoro. This
conclusion is simply not supported by the records and is
therefore baseless.
In these lights, we hold that Anna Marie is entitled to moral
damages of ₱100,000.00. In cases of breach of contract, moral
damages are recoverable only if the defendant acted
fraudulently or in bad faith, or is guilty of gross negligence
amounting to bad faith, or in clear disregard of his contractual
obligations.60 Anna Marie was able to establish the mental
anguish and serious anxiety that she suffered because of the
PNB’s refusal to honor its obligations.
Anna Marie is likewise entitled to exemplary damages of
₱50,000.00. Article 2229 of the New Civil Code imposes
exemplary damages by way of example or correction for the
public good. To repeat, banks must treat the accounts of its
depositors with meticulous care and always have in mind the
fiduciary nature of its relationship with them. 61 Having failed
to observe these, the award of exemplary damages is justified.
As exemplary damages are awarded herein 62 and as Anna
Marie was compelled to litigate to protect her interests, 63 the
award of attorney’s fees and expenses of litigation of
₱150,000.00 is proper.
Finally, we impose legal interest pursuant to the guidelines
in Nacar v. Gallery Frames.64 We held in that case that for
interest awarded on actual and compensatory damages, the
interest rate is imposed as follows:
1. When the obligation is breached, and it consists in the
payment of a sum of money, i.e., a loan or forbearance of
money, the interest due should be that which may have been
stipulated in writing. Furthermore, the interest due shall itself
earn legal interest from the time it is judicially demanded. In
the absence of stipulation, the rate of interest shall be 12% per
annum [changed to 6% per annum starting July 1, 2013] to be
computed from default, i.e., from extrajudicial demand under
and subject to the provisions of Article 1169 of the Civil Code.
xxxx
3. When the judgment of the court awarding a sum of money
becomes final and executory, the rate of legal interest x x x
shall be 6% per annum from such finality until its satisfaction.
xxx
We note that pursuant to the Bangko Sentral ng Pilipinas-
Monetary Board Circular No. 799, the legal interest rate is
6% per annum effective July 1, 2013. The new rate is
applicable prospectively; thus, the 12% per annum shall still
apply until June 30, 2013.
In the present case, Anna Marie filed her complaint on August
12, 2004. PNB is therefore liable for legal interest of 12% per
annum from Augus t 12, 2004 until June 30, 2013, and 6% per
annum from July 1, 2013, until its full satisfaction.
WHEREFORE, the petition is GRANTED. The assailed
December 16, 2011 decision and June 26, 2012 resolution of
the Court of Appeals is hereby reversed. The October 26, 2010
decision of the Regional Trial Court is REINSTATED with
MODIFICATIONS. Thus, the Philippine National Bank
is ORDERED to pay Anna Marie Gumabon the following:
(1) Actual damages of:
(a) $10,058.01, as the outstanding balance of FXCTD
No. 993902;
 (b) $ 20,244.42, as the outstanding balance of
FXCTD No. 993992; and

(c) ₱250,741.82, as the outstanding balance of SA

No. 6121200;

(2) Legal interest of twelve percent (12%) per annum of the

total actual damages from August 12, 2004 to June 30, 2013,
and six percent (6o/o) per annum from July 1, 2013 until full
satisfaction;

(3) ₱l00,000.00 as moral damages;

(4) ₱50,000.00 as exemplary damages;

(5) ₱l50,000.00 as attorney's fees; and

(7) Costs of suit.

Let a copy of this Decision be furnished the Financial

Consumers Protection Department of the Bangko Sentral ng
Pilipinas, for information and possible action in accordance
with the Bangko Sentral ng Pilipinas' mandate to protect the
banking public.

SO ORDERED.

72 TORTS LAST SET

G.R. No. 170813             April 16, 2008 WHEREFORE, premises considered, judgment is
hereby rendered ordering defendants to pay jointly
B.F. METAL (CORPORATION), petitioners,
and severally to herein plaintiffs the following sums:
vs.
SPS. ROLANDO M. LOMOTAN and LINAFLOR (a) Actual Damages -- i. P96,700.00 for cost of the owner-
LOMOTAN and RICO UMUYON, respondents. - type jeep
DECISION
ii. P15,000.00 medical expenses
TINGA, J.:
iii. P50,000.00 for loss of earnings
Before the Court is a petition for review on certiorari under
Rule 45 of the 1997 Rules of Civil Procedure, assailing the (b) Moral Damages -- P100,000.00
award of damages against petitioner in the Decision 1 and -
Resolution2 of the Court of Appeals in CA-G.R. CV No.
58655. The Court of Appeals affirmed with modification the (c) Exemplary -- P100,000.00
Decision of the Regional Trial Court (RTC), Branch 72, Damages -
Antipolo, Rizal in Civil Case No. 1567-A, which found
petitioner corporation and its driver, Onofre V. Rivera, (d) Attorney’s Fees -- P25,000.00 plus P1,000.00 for
solidarily liable to respondents for damages. - every Court appearance
The following factual antecedents are not disputed. Costs of Suit.
In the morning of 03 May 1989, respondent Rico Umuyon SO ORDERED.5
("Umuyon") was driving the owner-type jeep owned by
respondents, Spouses Rolando and Linaflor Lomotan The trial court declared Rivera negligent when he failed to
("Spouses Lomotan"). The jeep was cruising along Felix determine with certainty that the opposite lane was clear
Avenue in Cainta, Rizal at a moderate speed of 20 to 30 before overtaking the vehicle in front of the truck he was
kilometers per hour. Suddenly, at the opposite lane, the driving. It also found petitioner negligent in the selection and
speeding ten-wheeler truck driven by Onofre Rivera overtook supervision of its employees when it failed to prove the proper
a car by invading the lane being traversed by the jeep and dissemination of safety driving instructions to its drivers.
rammed into the jeep. The jeep was a total wreck while Petitioner and Rivera appealed the decision to the Court of
Umuyon suffered "blunt thoracic injury with multiple rib Appeals.
fracture, fractured scapula (L), with pneumohemothorax,"
On 13 April 2005, the Court of Appeals rendered the assailed
which entailed his hospitalization for 19 days. Also in view of
Decision. It affirmed the trial court’s finding that Rivera’s
the injuries he sustained, Umuyon could no longer drive,
negligence was the proximate cause of the accident and that
reducing his daily income from P150.00 to P100.00.
petitioner was liable under Article 21806 of the Civil Code for
On 27 October 1989, respondents instituted a separate and its negligence in the selection and supervision of its
independent civil action for damages against petitioner BF employees. However, the appellate court modified the amount
Metal Corporation ("petitioner") and Rivera before the of damages awarded to respondents. The dispositive portion of
Regional Trial Court (RTC) of Antipolo, Rizal. The complaint the Decision reads:
essentially alleged that defendant Rivera’s gross negligence
WHEREFORE, the decision appealed from is
and recklessness was the immediate and proximate cause of
AFFIRMED with MODIFICATION to read as
the vehicular accident and that petitioner failed to exercise the
follows:
required diligence in the selection and supervision of Rivera.
The complaint prayed for the award of actual, exemplary and "WHEREFORE, premises considered,
moral damages and attorney’s fees in favor of respondents. judgment is hereby rendered ordering
defendants to pay jointly and severally to
In the Answer, petitioner and Rivera denied the allegations in
herein plaintiffs the following sums:
the complaint and averred that respondents were not the
proper parties-in-interest to prosecute the action, not being the (a) Actual Damages --- i. P130,655.00, for cost of
registered owner of the jeep; that the sole and proximate cause repairing the owner-type jeep.
of the accident was the fault and negligence of Umuyon; and
that petitioner exercised due diligence in the selection and ii. P10,167.99 in medical
supervision of its employees. expenses.
During the trial, respondents offered the testimonies of iii. P2,850.00 for lost earnings
Umuyon, SPO1 Rico Canaria, SPO4 Theodore Cadaweg and during medical treatment.
Nicanor Fajardo, the auto-repair shop owner who gave a cost
estimate for the repair of the wrecked jeep. Among the (b) Moral Damages --- P100,000.00
documentary evidence presented were the 1989 cost estimate
of Pagawaan Motors, Inc.,3 which pegged the repair cost of the (c) Exemplary --- P100,000.00
jeep at P96,000.00, and the cost estimate of Fajardo Motor Damages
Works4 done in 1993, which reflected an increased repair cost
at P130,655.00. They also presented in evidence a copy of the (d) Attorney’s Fees --- P25,000.00
Decision of the RTC, Assisting Branch 74, Cainta, Rizal in
Costs of suit."
Criminal Case No. 4742, entitled People of the Philippines v.
Onofre V. Rivera, finding Rivera guilty of reckless SO ORDERED.7
imprudence resulting in damage to property with physical On 12 December 2005, the Court of Appeals denied the
injuries. motion for reconsideration of its Decision. Only petitioner
For its part, petitioner presented at the hearing Rivera himself filed the instant petition, expressly stating that it is assailing
and Habner Revarez, petitioner’s production control only the damages awarded by the appellate court.
superintendent. Included in its documentary evidence were The instant petition raises the following issues: (1) whether the
written guidelines in preventive maintenance of vehicles and amount of actual damages based only on a job estimate should
safety driving rules for drivers. be lowered; (2) whether Spouses Lomotan are also entitled to
On 21 April 1997, the trial court rendered its Decision, the moral damages; and (3) whether the award of exemplary
dispositive portion of which reads: damages and attorneys is warranted. For their part,
respondents contend that the aforementioned issues are factual
73 TORTS LAST SET
in nature and therefore beyond the province of a petitioner for
review under Rule 45.
This is not the first instance where the Court has given due
course to a Rule 45 petition seeking solely the review of the
award of damages.8 A party’s entitlement to damages is
ultimately a question of law because not only must it be
proved factually but also its legal justification must be shown.
In any case, the trial court and the appellate court have
different findings as to the amount of damages to which
respondents are entitled. When the factual findings of the trial
and appellate courts are conflicting, the Court is constrained to
look into the evidence presented before the trial court so as to
resolve the herein appeal.9
The trial court split the award of actual damages into three
items, namely, the cost of the wrecked jeep, the medical
expenses incurred by respondent Umuyon and the monetary
value of his earning capacity. On appeal, the Court of Appeals
reduced the amount of medical expenses and loss of earning
capacity to which respondent Umuyon is entitled but increased
from P96,700.00 to P130,655.00 the award in favor of
Spouses Lomotan for the cost of repairing the wrecked jeep.
The instant petition assails only the modified valuation of the
wrecked jeep. Petitioner points out that the alleged cost of
repairing the jeep pegged at P130,655.00 has not been
incurred but is only a job estimate or a sum total of the
expenses yet to be incurred for its repair. It argues that the best
evidence obtainable to prove with a reasonable degree of
certainty the value of the jeep is the acquisition cost or the
purchase price of the jeep minus depreciation for one year of
use equivalent to 10% of the purchase price.
Petitioner’s argument is partly meritorious.
Except as provided by law or by stipulation, one is entitled to
an adequate compensation only for such pecuniary loss
suffered by him as he has duly proved. Such compensation is
referred to as actual or compensatory damages.10 Actual
damages are such compensation or damages for an injury that
will put the injured party in the position in which he had been
before he was injured. They pertain to such injuries or losses
that are actually sustained and susceptible of measurement. To
justify an award of actual damages, there must be competent
proof of the actual amount of loss. Credence can be given only
to claims which are duly supported by receipts.11
In People v. Gopio,12 the Court allowed the reimbursement of
only the laboratory fee that was duly receipted as "the rest of
the documents, which the prosecution presented to prove the
actual expenses incurred by the victim, were merely a doctor’s
prescription and a handwritten list of food
expenses."13 In Viron Transportation Co., Inc. v. Delos
Santos,14 the Court particularly disallowed the award of actual
damages, considering that the actual damages suffered by
private respondents therein were based only on a job estimate
and a photo showing the damage to the truck and no
competent proof on the specific amounts of actual damages
suffered was presented.
In the instant case, no evidence was submitted to show the
amount actually spent for the repair or replacement of the
wrecked jeep. Spouses Lomotan presented two different cost
estimates to prove the alleged actual damage of the wrecked
jeep. Exhibit "B," is a job estimate by Pagawaan Motors, Inc.,
which pegged the repair cost of the jeep at P96,000.00, while
Exhibit "M," estimated the cost of repair at P130,655.00.
Following Viron, neither estimate is competent to prove actual
damages. Courts cannot simply rely on speculation, conjecture
or guesswork in determining the fact and amount of
damages.15
As correctly pointed out by petitioner, the best evidence to
prove the value of the wrecked jeep is reflected in Exhibit "I,"
the Deed of Sale showing the jeep’s acquisition cost
at P72,000.00. However, the depreciation value of equivalent
to 10% of the acquisition cost cannot be deducted from it in
the absence of proof in support thereof.
74 TORTS LAST SET
Petitioner also questions the award of moral and exemplary
damages in favor of Spouses Lomotan. It argues that the
award of moral damages was premised on the resulting
physical injuries arising from the quasi-delict; since only
respondent Umuyon suffered physical injuries, the award
should pertain solely to him. Correspondingly, the award of
exemplary damages should pertain only to respondent
Umuyon since only the latter is entitled to moral damages,
petitioner adds.
In the case of moral damages, recovery is more an exception
rather than the rule. Moral damages are not punitive in nature
but are designed to compensate and alleviate the physical
suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation,
and similar harm unjustly caused to a person. In order that an
award of moral damages can be aptly justified, the claimant
must be able to satisfactorily prove that he has suffered such
damages and that the injury causing it has sprung from any of
the cases listed in Articles 221916 and 222017 of the Civil Code.
Then, too, the damages must be shown to be the proximate
result of a wrongful act or omission. The claimant must
establish the factual basis of the damages and its causal tie
with the acts of the defendant. In fine, an award of moral
damages would require, firstly, evidence of besmirched
reputation or physical, mental or psychological suffering
sustained by the claimant; secondly, a culpable act or omission
factually established; thirdly, proof that the wrongful act or
omission of the defendant is the proximate cause of the
damages sustained by the claimant; and fourthly, that the case
is predicated on any of the instances expressed or envisioned
by Article 2219 and Article 2220 of the Civil Code.18
In culpa aquiliana, or quasi-delict, (a) when an act or omission
causes physical injuries, or (b) where the defendant is guilty of
intentional tort, moral damages may aptly be recovered. This
rule also applies, as aforestated, to breaches of contract where
the defendant acted fraudulently or in bad faith. In culpa
criminal, moral damages could be lawfully due when the
accused is found guilty of physical injuries, lascivious acts,
adultery or concubinage, illegal or arbitrary detention, illegal
arrest, illegal search, or defamation.19
Undoubtedly, petitioner is liable for the moral damages
suffered by respondent Umuyon. Its liability is based on
a quasi-delict or on its negligence in the supervision and
selection of its driver, causing the vehicular accident and
physical injuries to respondent Umuyon. Rivera is also liable
for moral damages to respondent Umuyon based on
either culpa criminal or quasi-delict. Since the decision in the
criminal case, which found Rivera guilty of criminal
negligence, did not award moral damages, the same may be
awarded in the instant civil action for damages.
Jurisprudence show that in criminal offenses resulting to the
death of the victim, an award within the range of P50,000.00
to P100,000.00 as moral damages has become the
trend.20 Under the circumstances, because respondent Umuyon
did not die but had become permanently incapacitated to drive
as a result of the accident, the award of P30,000.00 for moral
damages in his favor is justified.21
However, there is no legal basis in awarding moral damages to
Spouses Lomotan whether arising from the criminal
negligence committed by Rivera or based on the negligence of
petitioner under Article 2180.22 Article 221923 speaks of
recovery of moral damages in case of a criminal offense
resulting in physical injuries or quasi-delicts causing physical
injuries, the two instances where Rivera and petitioner are
liable for moral damages to respondent Umuyon. Article
222024 does speak of awarding moral damages where there is
injury to property, but the injury must be willful and the
circumstances show that such damages are justly due. There
being no proof that the accident was willful, Article 2220 does
not apply.
Exemplary or corrective damages are imposed, by way of
example or correction for the public good, in addition to
moral, temperate, liquidated or compensatory
damages.25 Exemplary damages cannot be recovered as a
matter of right; the court will decide whether or not they
should be adjudicated.26 In quasi-delicts, exemplary damages
may be granted if the defendant acted with gross
negligence.27 While the amount of the exemplary damages
need not be proved, the plaintiff must show that he is entitled
to moral, temperate or compensatory damages before the court
may consider the question of whether or not exemplary
damages should be awarded.28
As correctly pointed out by the Court of Appeals, Spouses
Lomotan have shown that they are entitled to compensatory
damages while respondent Umuyon can recover both
compensatory and moral damages. To serve as an example for
the public good, the Court affirms the award of exemplary
damages in the amount of P100,000.00 to respondents.
Because exemplary damages are awarded, attorney’s fees may
also be awarded in consonance with Article 2208 (1). 29 The
Court affirms the appellate court’s award of attorney’s fees in
the amount of P25,000.00.
WHEREFORE, the instant petition for certiorari
is PARTIALLY GRANTED. The Decision of the Court of
Appeals in CA-G.R. CV No. 58655
is AFFIRMED with MODIFICATION. The award of actual
damages for the cost of repairing the owner-type jeep is
hereby REDUCED to P72,000.00 while the moral damages
of P30,000.00 is awarded solely to respondent Umuyon. All
other awards of the Court of Appeals are AFFIRMED.
Following jurisprudence,30 petitioner is ordered to PAY legal
interest of 6% per annum from the date of promulgation of the
Decision dated 21 April 1997 of the Regional Trial Court,
Branch 72, Antipolo, Rizal and 12% per annum from the time
the Decision of this Court attains finality, on all sums awarded
until their full satisfaction.
SO ORDERED.

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