Petitioners Respondents Luis C. A. Sillano Antonio H. Abad & Associates Tanjuatco, Sta. Maria, Tanjuatco

FIRST DIVISION
[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.
Luis C. A. Sillano for petitioners.

Antonio H. Abad & Associates for respondents Doctors.
Tanjuatco, Sta. Maria, Tanjuatco for respondent DLSMC.
SYNOPSIS
In the morning of June 17, 1985, Erlinda Ramos was brought into the
operating room of the Delos Santos Medical Center for a cholecystectomy. She
was then a robust woman, normal as any other except for occasional
complaints of discomfort due to pains allegedly caused by the presence of
stones in her gall bladder. At around 3:00 p.m. of that day, Erlinda was taken to
the Intensive Care unit of the hospital, comatose. On January 8, 1986, Erlinda's
husband filed a civil case for damages against said hospital and Drs. Orlino
Hosaka and Perfecta Gutierrez. The Regional Trial Court ruled in favor of the
plaintiffs. The Court of Appeals, however, reversed the decision of the lower
court and ordered the dismissal of the complaint. Hence, this petition.
The doctrine of res ipsa loquitur is 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. 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. aACHDS
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 happen in the absence of negligence of someone in the
administration of anesthesia and in the use of endotracheal tube. Moreover, 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.
SYLLABUS
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1. REMEDIAL LAW; CIVIL PROCEDURE; MOTION FOR RECONSIDERATION;
NO DELAY OF FILING IN CASE AT BAR. — 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 believe 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.
2. CIVIL LAW; DOCTRINE OF RES IPSA LOQUITUR; ELUCIDATED. — Res ipsa
loquitur is a Latin phrase which literally means "the thing or the transaction
speaks for itself." The phrase " res ipsa loquitur" is a maxim for 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
plaintiffs prima facie case, and present a question of fact for defendant to meet
with an explanation. 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. 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. 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. 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. Instead, it is
considered as merely evidentiary or in the nature of a procedural rule. It is
regarded as a mode of proof, or a mere procedural convenience since it
furnishes a substitute for, and relieves a plaintiff of, the burden of producing
specific proof of negligence. 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.
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. In the above requisites, the fundamental element is
the "control of the instrumentality" which caused the damage. 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.TaHDAS
3. ID.; ID.; APPLICATION IN MEDICAL MALPRACTICE. — Medical malpractice

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. 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.
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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
4. ID.; ID.; APPLICABLE IN CASE AT BAR. — We find the doctrine of res ipsa
loquitur appropriate in the case at bar. . . . 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 happen 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.
CaTSEA
5. ID.; ID.; CONTRIBUTORY NEGLIGENCE. — 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.
6. REMEDIAL LAW; EVIDENCE; WITNESS; COMPETENCE; UPHELD IN CASE

AT BAR. — 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. 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.
7. ID.; ID.; RULES OF ADMISSIBILITY; TESTIMONIAL EVIDENCE; OPINION OF

EXPERT WITNESS; NOT ADMITTED IN CASE AT BAR. — The provision in the rules
of evidence regarding expert witnesses states: Sec. 49. Opinion of expert
witness. — The opinion of a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to possess, may be received in
evidence. Generally, to qualify as an expert witness, one must have acquired
special knowledge of the subject matter about which he or she is to testify,
either by the study of recognized authorities on the subject or by practical
experience. Clearly, Dr. Jamora does not qualify as an expert witness based on
the above standard since he lacks the necessary knowledge, skill, and training
in the field of anesthesiology.
8. CIVIL LAW; DAMAGES; EXCEPTIONAL NEGLIGENCE AND PROFESSIONAL
IRRESPONSIBILITY IN THE MEDICAL FIELD IN CASE AT BAR. — 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.
9. ID.; ID.; ID. — As the so-called "captain of the ship," 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.
10. ID.; TORTS; PROXIMATE CAUSE; ELUCIDATED. — 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. 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. 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.
11 ID.; EXTRA-CONTRACTUAL OBLIGATIONS; QUASI-DELICTS; EMPLOYER-
EMPLOYEE RELATIONSHIP EXISTS BETWEEN HOSPITALS AND CONSULTANTS
FOR THE PURPOSE OF ALLOCATING RESPONSIBILITY IN MEDICAL NEGLIGENCE
CASES. — 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. DCTSEA
12. ID.; ID.; ID.; EMPLOYERS LIABLE FOR THE DAMAGES CAUSED BY THEIR
EMPLOYEES. — 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. 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. 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.
13. ID.; DAMAGES; ACTUAL AND TEMPERATE DAMAGES; PROPER IN CASE

AT BAR. — 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. 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; a n d one which would meet pecuniary loss
certain to be suffered but which could not, from the nature of the case, be
made with certainty. 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 homebased 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.
14. ID.; ID.; PROPER MORAL DAMAGES. — 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 be inadequate if
petitioner's condition remains unchanged for the next ten years. We recognized
that 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. 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.
15. ID.; ID.; EXEMPLARY DAMAGES AND ATTORNEY'S FEES. — 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. TCacIA
DECISION
KAPUNAN, J : p
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. cdrep
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 Hosaka; see TSN, February 20, 1990,
p. 3), 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).prLL
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 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 damage 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. cdphil
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.
xxx xxx xxx
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 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 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
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. cdphil
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 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 appellate court was furnished to 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 believe 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 loquitur" is a maxim for 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 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 the res ipsa loquitur is not a ruled 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, of a
mere procedural 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 the

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.
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 or 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 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. LLjur
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 happen 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.
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: cdasia
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 I have said, I was with the patient, I was beside the stretcher
holding the left hand of the patient and all of a sudden I 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."
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx

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.
xxx xxx xxx

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
xxx xxx xxx
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 as 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 of 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. cdphil
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 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 make a
proper assessment, including the time to be at the patient's bedside 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.
Private respondents repeatedly hammered the view that the cerebral

anoxia which led to Erlinda's coma was due to bronchospasm 59 mediated by
her allergic response to the drug, Thiopental Sodium, introduced into her
system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the Philippine Specialty Board of Internal
Medicine, who advanced private respondents' theory that the oxygen
deprivation which led to anoxic encephalopathy, 60 was due to an unpredictable
drug reaction to the short-acting barbiturate. We find the theory of private
respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field of

anesthesiology simply because he is not an anesthesiologist. Since Dr. Jamora
is a pulmonologist, he could not have been capable of properly enlightening the
court about anesthesia practice and procedure and their complications. Dr.
Jamora is likewise not an allergologist and could not therefore properly advance
expert opinion on allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been capable, as an expert would,
of explaining to the court the pharmacologic and toxic effects of the supposed
culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony

as an expert witness in the anesthetic practice of Pentothal administration is
further supported by his own admission that he formulated his opinions on the
drug not from the practical experience gained by a specialist or expert in the
administration and use of Sodium Pentothal on patients, but only from reading
certain references, to wit: dctai
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion
to use pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to
intubate our patient.
Q: But not in particular when you practice pulmonology?

A: No.
Q: In other words, your knowledge about pentothal is based only on
what you have read from books and not by your own personal
application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my
appendectomy.
Q: And because they have used it on you and on account of your own
personal experience you feel that you can testify on pentothal
here with medical authority?
A: No. That is why I used references to support my claims. 61
An anesthetic accident caused by a rare drug-induced bronchospasm

properly falls within the fields of anesthesia, internal medicine-allergy, and
clinical pharmacology. The resulting anoxic encephalopathy belongs to the field
of neurology. While admittedly, many bronchospastic-mediated pulmonary
diseases are within the expertise of pulmonary medicine, Dr. Jamora's field, the
anesthetic drug-induced, allergic mediated bronchospasm alleged in this case
is within the disciplines of anesthesiology, allergology and pharmacology. On
the basis of the foregoing transcript, in which the pulmonologist himself
admitted that he could not testify about the drug with medical authority, it is
clear that the appellate court erred in giving weight to Dr. Jamora's testimony
as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence 62 regarding expert witnesses
states:
SECTION 49. Opinion of expert witness. — The opinion of a
witness on a matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have acquired

special knowledge of the subject matter about which he or she is to testify,
either by the study of recognized authorities on the subject or by practical
experience. 63 Clearly, Dr. Jamora does not qualify as an expert witness based
on the above standard since he lacks the necessary knowledge, skill, and
training in the field of anesthesiology. Oddly, apart from submitting testimony
from a specialist in the wrong field, private respondents' intentionally avoided
providing testimony by competent and independent experts in the proper
areas.
Moreover, private respondents' theory, that Thiopental Sodium may have

produced Erlinda's coma by triggering an allergic mediated response, has no
support in evidence. No evidence of stridor, skin reactions, or wheezing — some
of the more common accompanying signs of an allergic reaction — appears on
record. No laboratory data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental

induced, allergic-mediated bronchospasm happens only very rarely. If courts
were to accept private respondents' hypothesis without supporting medical
proof, and against the weight of available evidence, then every anesthetic
accident would be an act of God. Evidently, the Thiopental-allergy theory
vigorously asserted by private respondents was a mere afterthought. Such an
explanation was 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
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. cda
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. 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:
ARTICLE 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. LexLib
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
I n 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
her 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.
xxx xxx xxx
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. cdrep
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 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. llcd
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
Footnotes
1. In the United States alone, a great number of people die every year as a result
of medical mishaps. The 13 December 1999 issue of TIME MAGAZINE
featured an article on medical negligence entitled "Doctors' Deadly Mistakes "
which is quoted in part: "It is hardly news that medical professionals make
mistakes — even dumb, deadly mistakes. What is shocking is how often it
happens. Depending on which statistics you believe, the number of
Americans killed by medical screw-ups is somewhere between 44,000 and
98,000 every year — the eight leading cause of death even by the more
conservative figure, ahead of car crashes, breast cancer and AIDS. More
astonishing than the huge numbers themselves, though, is the fact that
public health officials had known about the problem for years and hadn't
made a concerted effort to do something about it."
2. Cholecystectomy is the surgical excision of the gall bladder.
3. CA Rollo , pp. 129-140.

4. Records, pp. 270-279.
5. Id. at 270-275.
6. Docketed as Civil Case No. Q-46885.
7. Records, pp. 276-278.

8. CA Rollo , p. 166.
9. Id. at 145.
10. Id. at 195.

11. Rollo , p. 19.
12. Id. at 91-98.
13. 57B Am Jur 2d, 493 (1989).

14. Africa, et al vs. Caltex (Phil.), Inc., et al, 16 SCRA 449, 454 (1966).
15. 57B Am Jur 2d, supra note 13 at 499.
16. Ibid.
17. Id. at 502.

18. Ibid.
19. Id.
20. Id. at 503.
21. Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas System ,
182 Kan. 686, 324 P.2d 501; Lamb v. Hartford Accident and Indemnity Co.,
Primm v. Kansas Power & Light Co., 173 Kan. 443, 249 P.2d 647.
22. St. John's Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166
(1967).
23. 57B Am Jur 2d, supra note 13, at 513.
24. It is the type of claim which a victim has available to him or her to redress a
wrong committed by a medical professional which has caused bodily harm.
(Garcia-Rueda vs. Pascasio , 278 SCRA 769, 778 [1997]).
25. Voss vs. Bridwell, supra note 21.
26. Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).
27. SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).
28. Voss vs . Bridwell, supra note 21, at 968 citing McMillen vs . Foncannon, 127
Kan. 573, 274 P.237.
29. Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs . Gibbons, 95 Kan. 802,
149 P. 422, 423.
30. SOLIS, supra note 27, at 239.
31. Voss vs. Bridwell, supra note 21 at 970-971.

32. Armstrong vs. Wallace, 47 P.2d 740 (1935).
33. Thomsen vs . Burgeson, 79 P.2d 136 (1938).
34. Griffin vs. Norman, 192 NYS 322 (1922).
35. Brown vs . Shortilledge, 277 P.134 (1929).

36. Meadows vs. Patterson, 109 S.W. 2d 417 (1937).
37. Voss vs. Bridwell, supra note 21, at 969.
38. Id. at 968.

39. Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).
40. Voss vs. Bridwell, supra note 21, at 968.
41. Sanders vs. Smith, 27 So. 2d 889, 893 (1946).

42. Ibid.
43. Voss vs. Bridwell, supra note 21.
44. Id. at 971.
45. It is the method of intubating a patient through the oral cavity. Under this
procedure, after the patient has been preoxygenated and paralyzed and is
no longer breathing on his own, the anesthetist inserts an instrument called
a laryngoscope into the patient's oral pharynx. The patient's neck is
hyperextended, that is, bent back as far as possible so that the anesthetist
can see or "visualize" the patient's epiglottis and vocal cords. The anesthetist
will then thread the endotracheal tube between the patient's vocal cords into
the trachea, and then hook the tube to the breathing bag and anesthetic
machine.
46. TSN, January 13, 1988, pp. 16-20.
47. CA Rollo , pp. 134-135.
48. Stockham vs. Hall, supra note 29.

49. 61 Am Jur 2d, 513 (1989).
50. TSN, January 13, 1988, p. 3.
51. TSN, November 15, 1990, p. 11.
52. TSN, October 9, 1990, p. 13.

53. STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).
54. Ibid.
55. Id. at 105 (Underscoring supplied).

56. Id. at 106.
57. Id.
58. TSN, November 15, 1990, p. 6.

59. Constriction of the air passages of the lung by spasmodic contraction of the
bronchial muscles (as in asthma).
60. Permanent damage to the brain caused by inadequate oxygenation.
61. TSN, February 28, 1991, pp. 10-11.
62. Rule 130, RULES OF COURT.

63. 61 Am Jur 2d, supra note 49, 516.
64. BLACK'S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).
65. Ibid.
66. It is a bluish coloration of the skin or mucous membranes caused by lack of
oxygen or abnormal hemoglobin in the blood.
67. TSN, March 27, 1990, p. 22.
68. Records, p. 274.
69. FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).

70. Ibid.
71. Id. The book provides a thorough discussion on the management of difficult
intubations.
72. Id.
73. Under this doctrine, the surgeon is likened to a ship captain who must not only
be responsible for the safety of the crew but also of the passengers of the
vessel. The head surgeon is made responsible for everything that goes wrong
within the four corners of the operating room. It enunciates the liability of the
surgeon not only for the wrongful acts of those who are under his physical
control but also those wherein he has extension of control.
74. The term "consultant" is loosely used by hospitals to distinguish their attending
and visiting physicians from the residents, who are also physicians. In most
hospitals abroad, the term visiting or attending physician, not consultant, is
used.
75. These requirements are in fact found in the standard application forms for
visiting and attending physicians of respondent hospital.
76. The hospital's control over respondent physicians is all the more significant
when one considers the fact that it controls everything which occurs in an
operating room, through its nursing supervisors and charge nurses. No
operations can be undertaken without the hospital's direct or indirect
consent.
77. VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993).
78. Art. 2180 of the Civil Code provides:

79. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.
80. Art. 2224, CIVIL CODE.
81. Should petitioner remain in the same condition for another ten years, the
amount awarded in the form of temperate damages would in fact, be
inadequate.
82. 253 SCRA 303 (1996).

83. Id. at 327-328.
84. Id. at 328.

Petitioners Respondents Luis C. A. Sillano Antonio H. Abad & Associates Tanjuatco, Sta. Maria, Tanjuatco

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Petitioners Respondents Luis C. A. Sillano Antonio H. Abad & Associates Tanjuatco, Sta. Maria, Tanjuatco

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FIRST DIVISION

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

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own

Luis C. A. Sillano for petitioners.

Brain damage, which Erlinda sustained is an injury which does not

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3. ID.; ID.; APPLICATION IN MEDICAL MALPRACTICE. — Medical malpractice

5. ID.; ID.; CONTRIBUTORY NEGLIGENCE. — Petitioner Erlinda could not

6. REMEDIAL LAW; EVIDENCE; WITNESS; COMPETENCE; UPHELD IN CASE

7. ID.; ID.; RULES OF ADMISSIBILITY; TESTIMONIAL EVIDENCE; OPINION OF

10. ID.; TORTS; PROXIMATE CAUSE; ELUCIDATED. — Proximate cause has

13. ID.; DAMAGES; ACTUAL AND TEMPERATE DAMAGES; PROPER IN CASE

The Hippocratic Oath mandates physicians to give primordial

The antecedent facts as summarized by the trial court are reproduced

Because the discomforts somehow interfered with her normal

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and]

Meanwhile, Rogelio, who was outside the operating room, saw a

About two days thereafter, Rogelio E. Ramos was able to talk to

On the part of DLSMC (the hospital), this Court ﬁnds that it is

In having held thus, this Court rejects the defense raised by

WHEREFORE, and in view of the foregoing, judgment is rendered

1) the sum of P8,000.00 as actual monthly expenses for the

3) the sum of P800,000.00 by way of moral damages and the

4) the costs of the suit.

Private respondents seasonably interposed an appeal to the Court of

The decision of the Court of Appeals was received on 9 June 1995 by

A copy of the above resolution was received by Atty. Sillano on 11 April

Petitioners assail the decision of the Court of Appeals on the following

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS

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It is elementary that when a party is represented by counsel, all notices

3. The possibility of contributing conduct which would make the

In the above requisites, the fundamental element is the "control of the

Medical malpractice 24 cases do not escape the application of this

Although generally, expert medical testimony is relied upon in

Thus, courts of other jurisdictions have applied the doctrine in the

Nonetheless, in holding that res ipsa loquitur is available to the present

In sustaining the position of private respondents, the Court of Appeals

We disagree with the ﬁndings of the Court of Appeals. We hold that

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the

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Witness may answer if she knows.

xxx xxx xxx

A: I notice (sic) some bluish discoloration on the nailbeds of the left

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

Q: What did [s]he do, if any?

Q: What happened to the patient?

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xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the

In other words, what the Court of Appeals is trying to impress is that

We do not agree with the above reasoning of the appellate court.

At any rate, without doubt, petitioner's witness, an experienced clinical

Q: Did you pull away the tube immediately?

A: I did not pull the tube.

Q: So, you found some difficulty in inserting the tube?

Curiously in the case at bar, respondent Dra. Gutierrez made the

The pre-operative evaluation of a patient prior to the administration of

Respondent Dra. Gutierrez, however, attempts to gloss over this omission

However, the exact opposite is true. In an emergency procedure, there is

Having established that respondent Dra. Gutierrez failed to perform pre-

Private respondents repeatedly hammered the view that the cerebral