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.
[ G.R. No. 124354 December 29, 1999]

 KAPUNAN, J.:
 Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help, was advised
to undergo an operation for the removal of a stone in her gall bladder ( cholecystectomy). She
was referred to Dr. Hosaka, a surgeon, who agreed to perform the operation on her. The
operation was scheduled for June 17, 1985 at 9:00 in the morning at private respondent De Los
Santos Medical Center (DLSMC). Since neither petitioner Erlinda nor her husband, petitioner
Rogelio, knew of any anesthesiologist, Dr. Hosaka recommended to them the services of Dr.
Gutierrez.

 Petitioner Erlinda was admitted to the DLSMC the day before the scheduled operation. By 7:30 in
the morning of the following day, petitioner Erlinda was already being prepared for operation.
Upon the request of petitioner Erlinda, her sister-in-law, Herminda Cruz, who was then Dean of
the College of Nursing at the Capitol Medical Center, was allowed to accompany her inside the
operating room.

 At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried to get in
touch with him by phone. Thereafter, Dr. Gutierrez informed Cruz that the operation might be
delayed due to the late arrival of Dr. Hosaka. In the meantime, the patient, petitioner Erlinda said
to Cruz, "Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor ."

 By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio already
wanted to pull out his wife from the operating room. He met Dr. Garcia, who remarked that he
was also tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at the hospital at around
12:10 in the afternoon, or more than three (3) hours after the scheduled operation.

 Cruz, who was then still inside the operating room, heard about Dr. Hosaka’s arrival. While she
held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate the patient. Cruz heard Dr.
Gutierrez utter: "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan ."
Cruz noticed a bluish discoloration of Erlinda’s nailbeds on her left hand. She (Cruz) then heard
Dr. Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr.
Calderon attempted to intubate the patient. The nailbeds of the patient remained bluish, thus,
she was placed in a trendelenburg position – a position where the head of the patient is placed in
a position lower than her feet. At this point, Cruz went out of the operating room to express her
concern to petitioner Rogelio that Erlinda’s operation was not going well.

 At almost 3:00 in the afternoon, she saw Erlinda being wheeled to the Intensive Care Unit (ICU).
The doctors explained to petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the
ICU for a month. She was released from the hospital only four months later or on November 15,
1985. She was since in comatose condition. She was also diagnosed to be suffering from "diffuse
cerebral parenchymal damage" BRAIN LOST A LOT OF OXYGEN , (PROLY BCOZ THEY COUNDT
INTUBATE HER FAST ENOUGH
  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.

RTC: Rejects the defense raised by the defendants that they have acted with due care and prudence in
rendering medical services to Erlinda and ordered the payment of damages in favor of the plaintiffs.

CA: Reversed the decision of the RTC.

ISSUE: 1. WON the doctrine of res ipsa loquitur is applicable in this case
2. WON the negligence of the respondents caused the unfortunate comatose condition of the
petitioner Erlinda Ramos

SC: 1. 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.

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.

A case strikingly similar to the one before us is Voss vs. Bridwell, 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. 

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 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.

2. 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 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 perform pre-operative evaluation of the
patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly
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.

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.

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.