G.R. No.

L-12219            March 15, 1918

AMADO PICART, plaintiff-appellant,
vs.
FRANK SMITH, JR., defendant-appellee.

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum of P31,000, as damages
alleged to have been caused by an automobile driven by the defendant. From a judgment of the Court of First Instance of the
Province of La Union absolving the defendant from liability the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on the Carlatan Bridge, at San
Fernando, La Union. It appears that upon the occasion in question the plaintiff was riding on his pony over said bridge. Before he
had gotten half way across, the defendant approached from the opposite direction in an automobile, going at the rate of about
ten or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of
his approach. He continued his course and after he had taken the bridge he gave two more successive blasts, as it appeared to
him that the man on horseback before him was not observing the rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the novelty of
the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right side of the bridge
instead of going to the left. He says that the reason he did this was that he thought he did not have sufficient time to get over to
the other side. The bridge is shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile
approached, the defendant guided it toward his left, that being the proper side of the road for the machine. In so doing the
defendant assumed that the horseman would move to the other side. The pony had not as yet exhibited fright, and the rider had
made no sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to the
right while yet some distance away or slowing down, continued to approach directly toward the horse without diminution of
speed. When he had gotten quite near, there being then no possibility of the horse getting across to the other side, the
defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside of the railing where it as then
standing; but in so doing the automobile passed in such close proximity to the animal that it became frightened and turned its
body across the bridge with its head toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange of
the car and the limb was broken. The horse fell and its rider was thrown off with some violence. From the evidence adduced in
the case we believe that when the accident occurred the free space where the pony stood between the automobile and the
railing of the bridge was probably less than one and one half meters. As a result of its injuries the horse died. The plaintiff
received contusions which caused temporary unconsciousness and required medical attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the manner above described was
guilty of negligence such as gives rise to a civil obligation to repair the damage done; and we are of the opinion that he is so
liable. As the defendant started across the bridge, he had the right to assume that the horse and the rider would pass over to
the proper side; but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not be done;
and he must in a moment have perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In
the nature of things this change of situation occurred while the automobile was yet some distance away; and from this moment
it was not longer within the power of the plaintiff to escape being run down by going to a place of greater safety. The control of
the situation had then passed entirely to the defendant; and it was his duty either to bring his car to an immediate stop or,
seeing that there were no other persons on the bridge, to take the other side and pass sufficiently far away from the horse to
avoid the danger of collision. Instead of doing this, the defendant ran straight on until he was almost upon the horse. He was, we
think, deceived into doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of horses,
there was an appreciable risk that, if the animal in question was unacquainted with automobiles, he might get exited and jump
under the conditions which here confronted him. When the defendant exposed the horse and rider to this danger he was, in our
opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in
doing the alleged negligent act use that person would have used in the same situation? If not, then he is guilty of negligence. The
law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the
Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in
the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary
intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of course be always
determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations
cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the circumstances
which are before them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can
be expected to take care only when there is something before them to suggest or warn of danger. Could a prudent man, in the
case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this
prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining
the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the
tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing conduct or
guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly established. A prudent
man, placed in the position of the defendant, would in our opinion, have recognized that the course which he was pursuing was
fraught with risk, and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course.
Under these circumstances the law imposed on the defendant the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting
himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the
problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the
two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending
harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps be mentioned in this
connection. This Court there held that while contributory negligence on the part of the person injured did not constitute a bar to
recovery, it could be received in evidence to reduce the damages which would otherwise have been assessed wholly against the
other party. The defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails from a
barge in Manila harbor to the company's yards located not far away. The rails were conveyed upon cars which were hauled
along a narrow track. At certain spot near the water's edge the track gave way by reason of the combined effect of the weight of
the car and the insecurity of the road bed. The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught
and broken. It appeared in evidence that the accident was due to the effects of the typhoon which had dislodged one of the
supports of the track. The court found that the defendant company was negligent in having failed to repair the bed of the track
and also that the plaintiff was, at the moment of the accident, guilty of contributory negligence in walking at the side of the car
instead of being in front or behind. It was held that while the defendant was liable to the plaintiff by reason of its negligence in
having failed to keep the track in proper repair nevertheless the amount of the damages should be reduced on account of the
contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case consisted in an omission only. The
liability of the company arose from its responsibility for the dangerous condition of its track. In a case like the one now before
us, where the defendant was actually present and operating the automobile which caused the damage, we do not feel
constrained to attempt to weigh the negligence of the respective parties in order to apportion the damage according to the
degree of their relative fault. It is enough to say that the negligence of the defendant was in this case the immediate and
determining cause of the accident and that the antecedent negligence of the plaintiff was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's answer, to the effect that
the subject matter of the action had been previously adjudicated in the court of a justice of the peace. In this connection it
appears that soon after the accident in question occurred, the plaintiff caused criminal proceedings to be instituted before a
justice of the peace charging the defendant with the infliction of serious injuries (lesiones graves). At the preliminary
investigation the defendant was discharged by the magistrate and the proceedings were dismissed. Conceding that the acquittal
of the defendant at the trial upon the merits in a criminal prosecution for the offense mentioned would be res adjudicata upon
the question of his civil liability arising from negligence -- a point upon which it is unnecessary to express an opinion -- the action
of the justice of the peace in dismissing the criminal proceeding upon the preliminary hearing can have no effect. (See U. S. vs.
Banzuela and Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and judgment is her rendered that
the plaintiff recover of the defendant the sum of two hundred pesos (P200), with costs of other instances. The sum here
awarded is estimated to include the value of the horse, medical expenses of the plaintiff, the loss or damage occasioned to
articles of his apparel, and lawful interest on the whole to the date of this recovery. The other damages claimed by the plaintiff
are remote or otherwise of such character as not to be recoverable. So ordered.
G.R. No. L-21438             September 28, 1966

AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.

The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way of moral
damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first class and tourist class for
the portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from the date of the filing of the
complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.

On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20 to P383.10,
and voted to affirm the appealed decision "in all other respects", with costs against petitioner.

The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:

Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30,
1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff
a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff travelled in "first class",
but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the "first class" seat that he was
occupying because, in the words of the witness Ernesto G. Cuento, there was a "white man", who, the Manager alleged,
had a "better right" to the seat. When asked to vacate his "first class" seat, the plaintiff, as was to be expected, refused,
and told defendant's Manager that his seat would be taken over his dead body; a commotion ensued, and, according to
said Ernesto G. Cuento, "many of the Filipino passengers got nervous in the tourist class; when they found out that Mr.
Carrascoso was having a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and
pacified Mr. Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff
reluctantly gave his "first class" seat in the plane.3

1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of Appeals. Petitioner
charges that respondent court failed to make complete findings of fact on all the issues properly laid before it. We are asked to
consider facts favorable to petitioner, and then, to overturn the appellate court's decision.

Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without expressing
therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in the statutory demand that a judgment
determining the merits of the case shall state "clearly and distinctly the facts and the law on which it is based"; 6 and that "Every
decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised before it". 7

A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely insists that a
decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A court of justice is not hidebound to
write in its decision every bit and piece of evidence 10 presented by one party and the other upon the issues raised. Neither is it
to be burdened with the obligation "to specify in the sentence the facts" which a party "considered as proved". 11 This is but a
part of the mental process from which the Court draws the essential ultimate facts. A decision is not to be so clogged with
details such that prolixity, if not confusion, may result. So long as the decision of the Court of Appeals contains the necessary
facts to warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with respect to
the evidence for the defense". Because as this Court well observed, "There is no law that so requires". 12 Indeed, "the mere
failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not sufficient
to hold the same contrary to the requirements of the provisions of law and the Constitution". It is in this setting that
in Manigque, it was held that the mere fact that the findings "were based entirely on the evidence for the prosecution without
taking into consideration or even mentioning the appellant's side in the controversy as shown by his own testimony", would not
vitiate the judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each item of evidence
presented by, the defeated party, it does not mean that the court has overlooked such testimony or such item of evidence. 14 At
any rate, the legal presumptions are that official duty has been regularly performed, and that all the matters within an issue in a
case were laid before the court and passed upon by it. 15

Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the ultimate facts
as found by the court ... and essential to support the decision and judgment rendered thereon". 16 They consist of the
court's "conclusions" with respect to the determinative facts in issue". 17 A question of law, upon the other hand, has been
declared as "one which does not call for an examination of the probative value of the evidence presented by the parties." 18

2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of Appeals. 19 That
judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter the facts or to review the
questions of fact. 20

With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its judgment.

3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But petitioner
asserts that said ticket did not represent the true and complete intent and agreement of the parties; that said respondent knew
that he did not have confirmed reservations for first class on any specific flight, although he had tourist class protection; that,
accordingly, the issuance of a first class ticket was no guarantee that he would have a first class ride, but that such would
depend upon the availability of first class seats.

These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals under its
third assignment of error, which reads: "The trial court erred in finding that plaintiff had confirmed reservations for, and a right
to, first class seats on the "definite" segments of his journey, particularly that from Saigon to Beirut". 21

And, the Court of Appeals disposed of this contention thus:

Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the
passenger to whom the same had been issued, would be accommodated in the first-class compartment, for as in the
case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary first-class reservation.
We are not impressed by such a reasoning. We cannot understand how a reputable firm like defendant airplane
company could have the indiscretion to give out tickets it never meant to honor at all. It received the corresponding
amount in payment of first-class tickets and yet it allowed the passenger to be at the mercy of its employees. It is more
in keeping with the ordinary course of business that the company should know whether or riot the tickets it issues are
to be honored or not.22

Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:

On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his testimony, see
plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness, Rafael Altonaga, confirmed plaintiff's
testimony and testified as follows:

Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?

A. That the space is confirmed.

Q. Confirmed for first class?

A. Yes, "first class". (Transcript, p. 169)

xxx     xxx     xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff paid for,
and was issued a "first class" airplane ticket, the ticket was subject to confirmation in Hongkong. The court cannot give credit to
the testimony of said witnesses. Oral evidence cannot prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l",
"C" and "C-1" belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket
without any reservation whatever.

Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a "first class"
accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation defendant had a verbal
understanding with plaintiff that the "first class" ticket issued to him by defendant would be subject to confirmation in
Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on
Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all other respects. We hold
the view that such a judgment of affirmance has merged the judgment of the lower court. 24 Implicit in that affirmance is a
determination by the Court of Appeals that the proceeding in the Court of First Instance was free from prejudicial error and "all
questions raised by the assignments of error and all questions that might have been raised are to be regarded as finally
adjudicated against the appellant". So also, the judgment affirmed "must be regarded as free from all error". 25 We reached this
policy construction because nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact
are in any way at war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds
different from those which were made the basis of the conclusions of the trial court. 26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat
availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of an airline. What
security then can a passenger have? It will always be an easy matter for an airline aided by its employees, to strike out the very
stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the passenger had a schedule to
fulfill? We have long learned that, as a rule, a written document speaks a uniform language; that spoken word could be
notoriously unreliable. If only to achieve stability in the relations between passenger and air carrier, adherence to the ticket so
issued is desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the covenants
in the ticket.

The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of Appeals
predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok, which
is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of distortions by the Court of Appeals of
petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to petitioner's accusation that
respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And this because, as petitioner states,
Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again to
see the Manager". 30 Why, then, was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if
another had a better right to the seat?

4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's action is
planted upon breach of contract; that to authorize an award for moral damages there must be an averment of fraud or bad
faith;31 and that the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint
bearing on this issue are:

3. That ... plaintiff entered into a contract  of air carriage with the Philippine Air Lines for a valuable consideration, the
latter acting as general agents for and in behalf of the defendant, under which said contract, plaintiff was entitled to, as
defendant agreed to furnish plaintiff, First Class passage on defendant's plane during the entire duration of plaintiff's
tour of Europe with Hongkong as starting point up to and until plaintiff's return trip to Manila, ... .

4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant furnished
to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence were made by the
plaintiff with defendant's employees.

5. That finally, defendant  failed to provide  First Class passage, but instead furnished plaintiff only Tourist  Class
accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has been compelled by defendant's
employees to leave the First Class accommodation berths at Bangkok after he was already seated.

6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought by
defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip from Madrid
to Manila.32

xxx     xxx     xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered
inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded feelings,
social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00. 33

xxx     xxx     xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class passage covering,
amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when petitioner failed to furnish first class
transportation at Bangkok; and Third, that there was bad faith when petitioner's employee compelled Carrascoso to leave his
first class accommodation berth "after he was already, seated" and to take a seat in the tourist class, by reason of which he
suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded
feelings and social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the
complaint. But, the inference of bad faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The
contract was averred to establish the relation between the parties. But the stress of the action is put on wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on guard on what
Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was ousted by petitioner's manager who
gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the contract was presented without objection
on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment in the
complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment
thereof to conform to the evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared:

That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant Air
France while at Bangkok, and was transferred to the tourist class not only without his consent but against his will, has
been sufficiently established by plaintiff in his testimony before the court, corroborated by the corresponding entry
made by the purser of the plane in his notebook which notation reads as follows:

"First-class passenger was forced to go to the tourist class against his will, and that the captain refused to
intervene",

and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the plane who was
asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is noteworthy that no
one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could have been easy for
defendant to present its manager at Bangkok to testify at the trial of the case, or yet to secure his disposition; but
defendant did neither. 37

The Court of appeals further stated —

Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the employees
of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been taken, surely the
plaintiff should not have been picked out as the one to suffer the consequences and to be subjected to the humiliation
and indignity of being ejected from his seat in the presence of others. Instead of explaining to the white man the
improvidence committed by defendant's employees, the manager adopted the more drastic step of ousting the plaintiff
who was then safely ensconsced in his rightful seat. We are strengthened in our belief that this probably was what
happened there, by the testimony of defendant's witness Rafael Altonaga who, when asked to explain the meaning of
the letters "O.K." appearing on the tickets of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida
Faustino, another witness for defendant, who was the chief of the Reservation Office of defendant, testified as follows:

"Q How does the person in the ticket-issuing office know what reservation the passenger has arranged with
you?

A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:

Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the seat
occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any better", nay, any
right on the part of the "white man" to the "First class" seat that the plaintiff was occupying and for which he
paid and was issued a corresponding "first class" ticket.

If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant could have
easily proven it by having taken the testimony of the said Manager by deposition, but defendant did not do so;
the presumption is that evidence willfully suppressed would be adverse if produced [Sec. 69, par (e), Rules of
Court]; and, under the circumstances, the Court is constrained to find, as it does find, that the Manager of the
defendant airline in Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he
did not give up his "first class" seat because the said Manager wanted to accommodate, using the words of the
witness Ernesto G. Cuento, the "white man".38

It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term "bad
faith". But can it be doubted that the recital of facts therein points to bad faith? The manager not only prevented
 Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly ejected him from
his seat, made him suffer the humiliation of having to go to the tourist class compartment - just to give way to another
passenger whose right thereto has not been established. Certainly, this is bad faith. Unless, of course, bad faith has
assumed a meaning different from what is understood in law. For, "bad faith" contemplates a "state of mind
affirmatively operating with furtive design or with some motive of self-interest or will or for ulterior purpose." 39

And if the foregoing were not yet sufficient, there is the express finding of bad faith  in the judgment of the Court of
First Instance, thus:

The evidence shows that the defendant violated its contract of transportation with plaintiff in bad faith, with
the aggravating circumstances that defendant's Manager in Bangkok went to the extent of threatening the
plaintiff in the presence of many passengers to have him thrown out of the airplane to give the "first class"
seat that he was occupying to, again using the words of the witness Ernesto G. Cuento, a "white man" whom
he (defendant's Manager) wished to accommodate, and the defendant has not proven that this "white man"
had any "better right" to occupy the "first class" seat that the plaintiff was occupying, duly paid for, and for
which the corresponding "first class" ticket was issued by the defendant to him.40

5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in law. 41 For the
willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the Civil Code says:

ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.

In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article 2219 (10), Civil
Code, moral damages are recoverable. 42

6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43 And this,
because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites
people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended
with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could give ground for an action for damages.

Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with kindness,
respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language,
indignities and abuses from such employees. So it is, that any rule or discourteous conduct on the part of employees towards a
passenger gives the latter an action for damages against the carrier. 44

Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort, giving a right of
action for its agent in the presence of third persons to falsely notify her that the check was worthless and demand payment
under threat of ejection, though the language used was not insulting and she was not ejected." 46 And this, because, although
the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract
may be also a tort". 47 And in another case, "Where a passenger on a railroad train, when the conductor came to collect his fare
tendered him the cash fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached
such point he would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger which
justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South Carolina
there held the carrier liable for the mental suffering of said passenger.1awphîl.nèt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have said, is
placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier — a case of quasi-delict.
Damages are proper.

7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already — that was already in the trip — I could not help it. So one of the flight attendants approached
me and requested from me my ticket and I said, What for? and she said, "We will note that you transferred to the
tourist class". I said, "Nothing of that kind. That is tantamount to accepting my transfer." And I also said, "You are not
going to note anything there because I am protesting to this transfer".

Q Was she able to note it?

 A No, because I did not give my ticket.

Q About that purser?

A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I stood up and I
went to the pantry that was next to me and the purser was there. He told me, "I have recorded the incident in my
notebook." He read it and translated it to me — because it was recorded in French — "First class passenger was forced
to go to the tourist class against his will, and that the captain refused to intervene."

Mr. VALTE —

I move to strike out the last part of the testimony of the witness because the best evidence would be the notes. Your
Honor.

COURT —

I will allow that as part of his testimony. 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading "First class
passenger was forced to go to the tourist class against his will, and that the captain refused to intervene" is predicated upon
evidence [Carrascoso's testimony above] which is incompetent. We do not think so. The subject of inquiry is not the entry, but
the ouster incident. Testimony on the entry does not come within the proscription of the best evidence rule. Such testimony is
admissible. 49a

Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence was
still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this environment, are
admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and mental and physical condition of the
declarant". 51 The utterance of the purser regarding his entry in the notebook was spontaneous, and related to the circumstances
of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part
of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an easy matter
for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry was made, the deposition of
the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages — in contracts
and quasi- contracts. The only condition is that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or
malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept.
And this, in addition to moral damages.54

9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment for attorneys'
fees. The least that can be said is that the courts below felt that it is but just and equitable that attorneys' fees be given. 55 We do
not intend to break faith with the tradition that discretion well exercised — as it was here — should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus: P25,000.00 as
moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing these amounts is
primarily with the trial court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense suggest that we
give our imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof.57

On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly vote to
affirm the same. Costs against petitioner. So ordered.
G.R. No. 160889             April 27, 2007

DR. MILAGROS L. CANTRE, Petitioner,

vs.
SPS. JOHN DAVID Z. GO and NORA S. GO, Respondents.

DECISION

QUISUMBING, J.:

For review on certiorari are the Decision1 dated October 3, 2002 and Resolution2 dated November 19, 2003 of the Court of
Appeals in CA-G.R. CV No. 58184, which affirmed with modification the Decision3 dated March 3, 1997 of the Regional Trial Court
of Quezon City, Branch 98, in Civil Case No. Q-93-16562.

The facts, culled from the records, are as follows:

Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the Dr. Jesus Delgado Memorial Hospital. She was
the attending physician of respondent Nora S. Go, who was admitted at the said hospital on April 19, 1992.

At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However, at around 3:30 a.m., Nora suffered
profuse bleeding inside her womb due to some parts of the placenta which were not completely expelled from her womb after
delivery. Consequently, Nora suffered hypovolemic shock, resulting in a drop in her blood pressure to "40" over "0." Petitioner
and the assisting resident physician performed various medical procedures to stop the bleeding and to restore Nora’s blood
pressure. Her blood pressure was frequently monitored with the use of a sphygmomanometer. While petitioner was massaging
Nora’s uterus for it to contract and stop bleeding, she ordered a droplight to warm Nora and her baby.4 Nora remained
unconscious until she recovered.

While in the recovery room, her husband, respondent John David Z. Go noticed a fresh gaping wound two and a half (2 ½) by
three and a half (3 ½) inches in the inner portion of her left arm, close to the armpit.5 He asked the nurses what caused the
injury. He was informed it was a burn. Forthwith, on April 22, 1992, John David filed a request for investigation.6 In response, Dr.
Rainerio S. Abad, the medical director of the hospital, called petitioner and the assisting resident physician to explain what
happened. Petitioner said the blood pressure cuff caused the injury.

On May 7, 1992, John David brought Nora to the National Bureau of Investigation for a physical examination, which was
conducted by medico-legal officer Dr. Floresto Arizala, Jr.7 The medico-legal officer later testified that Nora’s injury appeared to
be a burn and that a droplight when placed near the skin for about 10 minutes could cause such burn.8 He dismissed the
likelihood that the wound was caused by a blood pressure cuff as the scar was not around the arm, but just on one side of the
arm.9

On May 22, 1992, Nora’s injury was referred to a plastic surgeon at the Dr. Jesus Delgado Memorial Hospital for skin
grafting.10 Her wound was covered with skin sourced from her abdomen, which consequently bore a scar as well. About a year
after, on April 30, 1993, scar revision had to be performed at the same hospital.11 The surgical operation left a healed linear scar
in Nora’s left arm about three inches in length, the thickest portion rising about one-fourth (1/4) of an inch from the surface of
the skin. The costs of the skin grafting and the scar revision were shouldered by the hospital.12

Unfortunately, Nora’s arm would never be the same.1a\^/phi1.net Aside from the unsightly mark, the pain in her left arm
remains. When sleeping, she has to cradle her wounded arm. Her movements now are also restricted. Her children cannot play
with the left side of her body as they might accidentally bump the injured arm, which aches at the slightest touch.

Thus, on June 21, 1993, respondent spouses filed a complaint13 for damages against petitioner, Dr. Abad, and the hospital.
Finding in favor of respondent spouses, the trial court decreed:

In view of the foregoing consideration, judgment is hereby rendered in favor of the plaintiffs and against the defendants,
directing the latters, (sic) jointly and severally –

(a) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in moral damages;

(b) to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00) exemplary damages;
 (c) to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal damages;

(d) to pay Fifty Thousand Pesos (P50,000.00) for and as attorney’s fees; and

(e) to pay Six Thousand Pesos (P6,000.00) litigation expenses.

SO ORDERED.14

Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals, which affirmed with modification the trial court
decision, thus:

WHEREFORE, in view of all the foregoing, and finding no reversible error in the appealed Decision dated March 3, 1997 of
Branch 98 of the Regional Trial Court of Quezon City in Civil Case No. Q-93-16562, the same is hereby AFFIRMED, with the
following MODIFICATIONS:

1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay plaintiffs-appellees John David Go and Nora S. Go
the sum of P200,000.00 as moral damages;

2. Deleting the award [of] exemplary damages, attorney’s fees and expenses of litigation;1awphi1.nét

3. Dismissing the complaint with respect to defendants-appellants Dr. Rainerio S. Abad and Delgado Clinic, Inc.;

4. Dismissing the counterclaims of defendants-appellants for lack of merit; and

5. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay the costs.

SO ORDERED.15

Petitioner’s motion for reconsideration was denied by the Court of Appeals. Hence, the instant petition assigning the following
as errors and issues:

I.

WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF THEIR DISCRETION WHEN,
NOTWITHSTANDING THAT BOTH PARTIES HAVE RESTED THEIR RESPECTIVE CASES, THE LOWER COURT ADMITTED THE
ADDITIONAL EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED TO BY ANY WITNESS AND THIS DECISION OF THE
LOWER COURT WAS UPHELD BY THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;

II.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE
OF EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT THE PETITIONER HAS NOT AMPLY SHOWED THAT THE DROPLIGHT
DID NOT TOUCH THE BODY OF MRS. NORA GO, AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF
APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;

III.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE
OF EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT PETITIONER DRA. CANTRE WAS NOT ABLE TO AMPLY EXPLAIN
HOW THE INJURY (BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT MRS. GO CAME ABOUT;

IV.

WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF ITS DISCRETION WHEN IT MADE A RULING ON THE
RESPONDENT’S INJURY QUOTING THE TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND HAS NOT SEEN THE ORIGINAL,
FRESH INJURY OF RESPONDENT MRS. NORA GO;

V.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS DISCRETION RULED THAT PETITIONER DRA. CANTRE SHOULD
HAVE INTENDED TO INFLICT THE INJURY TO SAVE THE LIFE OF RESPONDENT MRS. GO;

VI.

WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN,
CONTRARY TO THE DETAILED PROCEDURES DONE BY PETITIONER, BOTH RULED THAT THE RESPONDENT WAS LEFT TO THE CARE
OF THE NURSING STAFF;

VII.

WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE MEDICAL
PURPOSES OF COSMETIC SURGERY, IT RULED THAT THE COSMETIC SURGERY MADE THE SCARS EVEN MORE UGLY AND
DECLARED THE COSMETIC SURGERY A FAILURE;

VIII.

WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC) DISCRETION WHEN, CONTRARY TO RESPONDENTS’ CONTRARY
TESTIMONIES AND THE ABSENCE OF ANY TESTIMONY, IT RULED THAT THEY ARE ENTITLED TO DAMAGES AND WHICH WAS
UPHELD, ALTHOUGH MODIFIED, BY THE COURT OF APPEALS LIKEWISE ABUSING ITS DISCRETION.16

Petitioner contends that additional documentary exhibits not testified to by any witness are inadmissible in evidence because
they deprived her of her constitutional right to confront the witnesses against her. Petitioner insists the droplight could not have
touched Nora’s body. She maintains the injury was due to the constant taking of Nora’s blood pressure. Petitioner also
insinuates the Court of Appeals was misled by the testimony of the medico-legal officer who never saw the original injury before
plastic surgery was performed. Finally, petitioner stresses that plastic surgery was not intended to restore respondent’s injury to
its original state but rather to prevent further complication.

Respondents, however, counter that the genuineness and due execution of the additional documentary exhibits were duly
admitted by petitioner’s counsel. Respondents point out that petitioner’s blood pressure cuff theory is highly improbable, being
unprecedented in medical history and that the injury was definitely caused by the droplight. At any rate, they argue, even if the
injury was brought about by the blood pressure cuff, petitioner was still negligent in her duties as Nora’s attending physician.

Simply put, the threshold issues for resolution are: (1) Are the questioned additional exhibits admissible in evidence? (2) Is
petitioner liable for the injury suffered by respondent Nora Go? Thereafter, the inquiry is whether the appellate court
committed grave abuse of discretion in its assailed issuances.

As to the first issue, we agree with the Court of Appeals that said exhibits are admissible in evidence. We note that the
questioned exhibits consist mostly of Nora’s medical records, which were produced by the hospital during trial pursuant to a
subpoena duces tecum. Petitioner’s counsel admitted the existence of the same when they were formally offered for admission
by the trial court. In any case, given the particular circumstances of this case, a ruling on the negligence of petitioner may be
made based on the res ipsa loquitur  doctrine even in the absence of such additional exhibits.

Petitioner’s contention that the medico-legal officer who conducted Nora’s physical examination never saw her original injury
before plastic surgery was performed is without basis and contradicted by the records. Records show that the medico-legal
officer conducted the physical examination on May 7, 1992, while the skin grafting and the scar revision were performed on
Nora on May 22, 1992 and April 30, 1993, respectively.

Coming now to the substantive matter, is petitioner liable for the injury suffered by respondent Nora Go?

The Hippocratic Oath mandates physicians to give primordial consideration to the well-being of their patients. If a doctor fails to
live up to this precept, he is accountable for his acts. This notwithstanding, courts face a unique restraint in adjudicating medical
negligence cases because physicians are not guarantors of care and, they never set out to intentionally cause injury to their
patients. However, intent is immaterial in negligence cases because where negligence exists and is proven, it automatically gives
the injured a right to reparation for the damage caused.17

In cases involving medical negligence, the doctrine of res ipsa loquitur  allows the mere existence of an injury to justify a
presumption of negligence on the part of the person who controls the instrument causing the injury, provided that the following
requisites concur:
 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.18

As to the first requirement, the gaping wound on Nora’s arm is certainly not an ordinary occurrence in the act of delivering a
baby, far removed as the arm is from the organs involved in the process of giving birth. Such injury could not have happened
unless negligence had set in somewhere.

Second, whether the injury was caused by the droplight or by the blood pressure cuff is of no moment. Both instruments are
deemed within the exclusive control of the physician in charge under the "captain of the ship" doctrine. This doctrine holds the
surgeon in charge of an operation liable for the negligence of his assistants during the time when those assistants are under the
surgeon’s control.19 In this particular case, it can be logically inferred that petitioner, the senior consultant in charge during the
delivery of Nora’s baby, exercised control over the assistants assigned to both the use of the droplight and the taking of Nora’s
blood pressure. Hence, the use of the droplight and the blood pressure cuff is also within petitioner’s exclusive control.

Third, the gaping wound on Nora’s left arm, by its very nature and considering her condition, could only be caused by something
external to her and outside her control as she was unconscious while in hypovolemic shock. Hence, Nora could not, by any
stretch of the imagination, have contributed to her own injury.

Petitioner’s defense that Nora’s wound was caused not by the droplight but by the constant taking of her blood pressure, even if
the latter was necessary given her condition, does not absolve her from liability. As testified to by the medico-legal officer, Dr.
Arizala, Jr., the medical practice is to deflate the blood pressure cuff immediately after each use. Otherwise, the inflated band
can cause injury to the patient similar to what could have happened in this case. Thus, if Nora’s wound was caused by the blood
pressure cuff, then the taking of Nora’s blood pressure must have been done so negligently as to have inflicted a gaping wound
on her arm,20 for which petitioner cannot escape liability under the "captain of the ship" doctrine.

Further, petitioner’s argument that the failed plastic surgery was not intended as a cosmetic procedure, but rather as a measure
to prevent complication does not help her case. It does not negate negligence on her part.

Based on the foregoing, the presumption that petitioner was negligent in the exercise of her profession stands unrebutted. In
this connection, the Civil Code provides:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done.…

ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury. Though incapable of pecuniary computation, moral damages may be
recovered if they are the proximate result of the defendant’s wrongful act or omission.

Clearly, under the law, petitioner is obliged to pay Nora for moral damages suffered by the latter as a proximate result of
petitioner’s negligence.

We note, however, that petitioner has served well as Nora’s obstetrician for her past three successful deliveries. This is the first
time petitioner is being held liable for damages due to negligence in the practice of her profession. The fact that petitioner
promptly took care of Nora’s wound before infection and other complications set in is also indicative of petitioner’s good
intentions. We also take note of the fact that Nora was suffering from a critical condition when the injury happened, such that
saving her life became petitioner’s elemental concern. Nonetheless, it should be stressed that all these could not justify
negligence on the part of petitioner.

Hence, considering the specific circumstances in the instant case, we find no grave abuse of discretion in the assailed decision
and resolution of the Court of Appeals. Further, we rule that the Court of Appeals’ award of Two Hundred Thousand Pesos
(₱200,000) as moral damages in favor of respondents and against petitioner is just and equitable.21

WHEREFORE, the petition is DENIED. The Decision dated October 3, 2002 and Resolution dated November 19, 2003 of the Court
of Appeals in CA-G.R. CV No. 58184 are AFFIRMED.

No pronouncement as to costs.
SO ORDERED.
G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL RAMOS, ROY
RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ, respondents.

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients. If a
doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through gross negligence or incompetence
or plain human error, may spell the difference between life and death. In this sense, the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made liable
for the unfortunate comatose condition of a patient scheduled for cholecystectomy. 2

Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which overturned the decision 4 of the
Regional Trial Court, dated 30 January 1992, finding private respondents liable for damages arising from negligence in the
performance of their professional duties towards petitioner Erlinda Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A") robust woman (TSN,
October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly caused by the
presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other
woman. Married to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she has
three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October
19, 1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought professional advice. She was
advised to undergo an operation for the removal of a stone in her gall bladder (TSN, January 13, 1988, p. 5).
She underwent a series of examinations which included blood and urine tests (Exhs. "A" and "C") which
indicated she was fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her husband
Rogelio met for the first time Dr. Orlino Hozaka (should be 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).

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 sustained by Erlinda was due to lack of oxygen in her brain
caused by the faulty management of her airway by private respondents during the anesthesia phase. On the other hand, private
respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of
brain damage was Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of petitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the aforecited
provisions of law and jurisprudence to the case at bar, this Court finds and so holds that defendants are liable
to plaintiffs for damages. The defendants were guilty of, at the very least, negligence in the performance of
their duty to plaintiff-patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in not only
intubating the patient, but also in not repeating the administration of atropine (TSN, August 20, 1991, pp. 5-
10), without due regard to the fact that the patient was inside the operating room for almost three (3) hours.
For after she committed a mistake in intubating [the] patient, the patient's nailbed became bluish and the
patient, thereafter, was placed in trendelenburg position, because of the decrease of blood supply to the
patient's brain. The evidence further shows that the hapless patient suffered brain damage because of the
absence of oxygen in her (patient's) brain for approximately four to five minutes which, in turn, caused the
patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta Gutierrez whom
he had chosen to administer anesthesia on the patient as part of his obligation to provide the patient a good
anesthesiologist', and for arriving for the scheduled operation almost three (3) hours late.

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the doctors in
their "practice of medicine" in the operating room. Moreover, the hospital is liable for failing through its
responsible officials, to cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.

In having held thus, this Court rejects the defense raised by defendants that they have acted with due care and
prudence in rendering medical services to plaintiff-patient. For if the patient was properly intubated as claimed
by them, the patient would not have become comatose. And, the fact that another anesthesiologist was called
to try to intubate the patient after her (the patient's) nailbed turned bluish, belie their claim. Furthermore, the
defendants should have rescheduled the operation to a later date. This, they should have done, if defendants
acted with due care and prudence as the patient's case was an elective, not an emergency case.

x x x           x x x          x x x

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and against the
defendants. Accordingly, the latter are ordered to pay, jointly and severally, the former the following sums of
money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned
from November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to
its being updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000,00 by
way of exemplary damages; and,

4) the costs of the suit.

 SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a Decision, dated 29
May 1995, reversing the findings of the trial court. The decretal portion of the decision of the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the complaint below
against the appellants is hereby ordered DISMISSED. The counterclaim of appellant De Los Santos Medical
Center is GRANTED but only insofar as appellees are hereby ordered to pay the unpaid hospital bills amounting
to P93,542.25, plus legal interest for justice must be tempered with mercy.

SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly addressed as
"Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by the Coronel Law Office, then counsel on
record of petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or
four (4) days before the expiration of the reglementary period for filing a motion for reconsideration. On the same day, Atty.
Ligsay, filed with the appellate court a motion for extension of time to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for extension of time in its
Resolution dated 25 July 1995. 9 Meanwhile, petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty.
Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for reconsideration contending that the period to file
the appropriate pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of
Appeals had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court still denied the
motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground
that the fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be extended;
precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter
Motion that plaintiffs/appellees received a copy of the decision as early as June 9, 1995. Computation wise, the
period to file a Motion for Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was
received by the Court of Appeals already on July 4, necessarily, the 15-day period already passed. For that
alone, the latter should be denied.

Even assuming admissibility of the Motion for the Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is hereby DENIED.

SO ORDERED. 10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty. Sillano
filed before this Court a motion for extension of time to file the present petition for certiorari under Rule 45. The Court granted
the motion for extension of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15)
period counted from the receipt of the resolution of the Court of Appeals within which to submit the petition. The due date fell
on 27 May 1996. The petition was filed on 9 May 1996, well within the extended period given by the Court.

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

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND
DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE COMATOSE
CONDITION OF PETITIONER ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the petition in
relation to the motion for reconsideration filed by petitioners with the Court of Appeals. In their
Comment, 12 private respondents contend that the petition should not be given due course since the motion for reconsideration
of the petitioners on the decision of the Court of Appeals was validly dismissed by the appellate court for having been filed
beyond the reglementary period. We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is attributable to
the fact that the decision of the Court of Appeals was not sent to then counsel on record of petitioners, the Coronel Law Office.
In fact, a copy of the decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June
1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner
Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision of the
counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration,
referred the same to a legal counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at his given address.
With a few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a
copy of the decision of the appellate court was not sent to the counsel on record of petitioner, there can be no sufficient notice
to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since
the Court of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issued
on 25 July 1995, and denied the motion for reconsideration of petitioner, we believed that the receipt of the former should be
considered in determining the timeliness of the filing of the present petition. Based on this, the petition before us was submitted
on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical presentation of
the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa loquitur to the instant case.
Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa loquitur doctrine.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The phrase "res ipsa
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 that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an
independent or separate ground of liability. 17 Instead, it is considered as merely evidentiary or in the nature of a procedural
rule. 18 It is regarded as a mode of proof, or a mere procedural of convenience since it furnishes a substitute for, and relieves a
plaintiff of, the burden of producing specific proof of negligence. 19 In other words, mere invocation and application of the
doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof,
permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going
forward with the proof. 20 Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily
shown:

1. The accident is of a kind which ordinarily does not occur in the absence of someone's negligence;

2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. 21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the damage. 22 Such element
of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in
addition to proving injury or damage, must show a situation where it is applicable, and must establish that the essential
elements of the doctrine were present in a particular incident. 23

Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the
circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause
of that harm. 25 The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial
function to determine whether a certain set of circumstances does, as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent
act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the
plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of
negligence. 27 The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within
the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to
by anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and experience are competent to testify as
to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to
the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any
one may be given by non-expert witnesses. 29 Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to
find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from
its fund of common knowledge can determine the proper standard of care. 30 Where common knowledge and experience teach
that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be
drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to
show not only what occurred but how and why it occurred. 31 When the doctrine is appropriate, all that the patient must do is
prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and
management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort
to res ipsa loquitur  is allowed because there is no other way, under usual and ordinary conditions, by which the patient can
obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of
the patient after an operation, 32 injuries sustained on a healthy part of the body which was not under, or in the area, of
treatment, 33 removal of the wrong part of the body when another part was intended, 34 knocking out a tooth while a patient's
jaw was under anesthetic for the removal of his tonsils, 35 and loss of an eye while the patient plaintiff was under the influence of
anesthetic, during or following an operation for appendicitis, 36 among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply
to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of
the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a
layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not
as such as would ordinarily have followed if due care had been
exercised. 37 A distinction must be made between the failure to secure results, and the occurrence of something more unusual
and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular
practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or
surgeon which involves the merits of a diagnosis or of a scientific treatment. 38 The physician or surgeon is not required at his
peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the
desired result. 39 Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an
operation or treatment was not accomplished. 40 The real question, therefore, is whether or not in the process of the operation
any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of
customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average
man as the negligent cause or causes of the untoward consequence. 41 If there was such extraneous interventions, the doctrine
of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he
could. 42

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage sustained
by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in applying the res ipsa
loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care, custody and
control of his physician who had complete and exclusive control over him, but the operation was never performed. At
the time of submission he was neurologically sound and physically fit in mind and body, but he suffered irreparable
damage and injury rendering him decerebrate and totally incapacitated. The injury was one which does not ordinarily
 occur in the process of a mastoid operation or in the absence of negligence in the administration of an anesthetic, and
in the use and employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered
decerebrate as a consequence of administering such anesthesia in the absence of negligence. Upon these facts and
under these circumstances a layman would be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have followed if due care had been
exercised.

Here the plaintiff could not have been guilty of contributory negligence because he was under the influence of
anesthetics and unconscious, and the circumstances are such that the true explanation of event is more accessible to
the defendants than to the plaintiff for they had the exclusive control of the instrumentalities of anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is stated under the
doctrine of res ipsa loquitur. 44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda submitted
herself for cholecystectomy and expected a routine general surgery to be performed on her gall bladder. On that fateful day she
delivered her person over to the care, custody and control of private respondents who exercised complete and exclusive control
over her. At the time of submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise
physically fit in mind and body. However, during the administration of anesthesia and prior to the performance of
cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating
room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury which does
not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not in the absence of negligence
of someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper procedure was
followed. Furthermore, the instruments used in the administration of anesthesia, including the endotracheal tube, were all
under the exclusive control of private respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could not have
been guilty of contributory negligence because she was under the influence of anesthetics which rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is unconscious
and under the immediate and exclusive control of the physicians, we hold that a practical administration of justice dictates the
application of res ipsa loquitur. Upon these facts and under these circumstances the Court would be able to say, as a matter of
common knowledge and observation, if negligence attended the management and care of the patient. Moreover, the liability of
the physicians and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation
nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda.
Thus, upon all these initial determination a case is made out for the application of the doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is applicable in
any and all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each case must be
viewed in its own light and scrutinized in order to be within the res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed therein, the Court
now comes to the issue of whether the Court of Appeals erred in finding that private respondents were not negligent in the care
of Erlinda during the anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was the
proximate cause of Erlinda's comatose condition. Corollary thereto, we shall also determine if the Court of Appeals erred in
relying on the testimonies of the witnesses for the private respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra. Gutierrez, Dra. Calderon
and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that she was candid
enough to admit that she experienced some difficulty in the endotracheal intubation 45 of the patient and thus, cannot be said to
be covering her negligence with falsehood. The appellate court likewise opined that private respondents were able to show that
the brain damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic reaction of the
patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert witness, Dr. Jamora.
On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz offered in favor of petitioners that the
cause of the brain injury was traceable to the wrongful insertion of the tube since the latter, being a nurse, was allegedly not
knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict in favor of respondents
physicians and hospital and absolved them of any liability towards Erlinda and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to disprove the
presumption of negligence on their part in the care of Erlinda and their negligence was the proximate cause of her piteous
condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the pathogenesis of the injury
but also in providing the Court the legal nexus upon which liability is based. As will be shown hereinafter, private respondents'
own testimonies which are reflected in the transcript of stenographic notes are replete of signposts indicative of their
negligence in the care and management of Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As borne by the records,
respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested to by Prof. Herminda Cruz, Dean of the
Capitol Medical Center School of Nursing and petitioner's sister-in-law, who was in the operating room right beside the patient
when the tragic event occurred. Witness Cruz testified to this effect:

ATTY. PAJARES:

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

A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process administered by Dra. Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

A: As have said, I was with the patient, I was beside the stretcher holding the left hand of the patient and all of a sudden heard
some remarks coming from Dra. Perfecta Gutierrez herself. She was saying "Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan.

x x x           x x x          x x x

ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

x x x           x x x          x x x

Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the person of the patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

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

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

A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

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

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's nailbed became bluish and I saw the patient
was placed in trendelenburg position.

x x x           x x x          x x x

Q: Do you know the reason why the patient was placed in that trendelenburg position?

A: As far as I know, when a patient is in that position, there is a decrease of blood supply to the brain. 46

x x x           x x x          x x x

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part of nursing
procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and cannot, intubate. Even on
the assumption that she is fully capable of determining whether or not a patient is properly intubated, witness
Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly,
there is no evidence that she ever auscultated the patient or that she conducted any type of examination to check if the
endotracheal tube was in its proper place, and to determine the condition of the heart, lungs, and other organs. Thus,
witness Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and
that it was Dra. Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases. 47

In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in the process of
intubation, witness Cruz is not competent to testify on whether or not the intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist, she can very
well testify upon matters on which she is capable of observing such as, the statements and acts of the physician and surgeon,
external appearances, and manifest conditions which are observable by any one. 48 This is precisely allowed under the doctrine
of res ipsa loquitur where the testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not
necessary for the proof of negligence in non-technical matters or those of which an ordinary person may be expected to have
knowledge, or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary. 49 We take judicial
notice of the fact that anesthesia procedures have become so common, that even an ordinary person can tell if it was
administered properly. As such, it would not be too difficult to tell if the tube was properly inserted. This kind of observation, we
believe, does not require a medical degree to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and scholarship led to her
appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable of determining whether or not the
intubation was a success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical
instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the
Capitol Medical Center School of Nursing. 50 Reviewing witness Cruz' statements, we find that the same were delivered in a
straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would have been difficult to
fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to demonstrate through her testimony
what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she experienced difficulty
in inserting the tube into Erlinda's trachea, to wit:

ATTY. LIGSAY:

Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not immediately see the
trachea?

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

 A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

Q: When you said "mahirap yata ito," what were you referring to?

A: "Mahirap yata itong i-intubate," that was the patient.

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

A: Yes, because of (sic) my first attempt, I did not see right away. 51

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered hardship in the
insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from the normal
anatomy of a person) 52 making it harder to locate and, since Erlinda is obese and has a short neck and protruding teeth, it made
intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence demonstrating that
they proceeded to make a thorough assessment of Erlinda's airway, prior to the induction of anesthesia, even if this would mean
postponing the procedure. From their testimonies, it appears that the observation was made only as an afterthought, as a
means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the
possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins when the anesthesiologist
reviews the patient's medical records and visits with the patient, traditionally, the day before elective surgery. 53 It includes
taking the patient's medical history, review of current drug therapy, physical examination and interpretation of laboratory
data. 54 The physical examination performed by the anesthesiologist is directed primarily toward the central nervous system,
cardiovascular system, lungs and upper airway. 55 A thorough analysis of the patient's airway normally involves investigating the
following: cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth, ability to
visualize uvula and the thyromental distance. 56 Thus, physical characteristics of the patient's upper airway that could make
tracheal intubation difficult should be studied. 57 Where the need arises, as when initial assessment indicates possible problems
(such as the alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient's airway would go a long
way towards decreasing patient morbidity and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself,
on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her. Until the
day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was
likewise not properly informed of the possible difficulties she would face during the administration of anesthesia to Erlinda.
Respondent Dra. Gutierrez' act of seeing her patient for the first time only an hour before the scheduled operative procedure
was, therefore, an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the physician's centuries-old Hippocratic Oath. Her failure to follow this
medical procedure is, therefore, a clear indicia of her negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial court's ignorance of
clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried to muddle the difference between an
elective surgery and an emergency surgery just so her failure to perform the required pre-operative evaluation would escape
unnoticed. In her testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so you can introduce
yourself to establish good doctor-patient relationship and gain the trust and confidence of the patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative procedure of the anesthesiologist and in my case,
with elective cases and normal cardio-pulmonary clearance like that, I usually don't do it except on emergency and on
cases that have an abnormalities (sic). 58
However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the fastidious
demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few minutes before surgery, if
at all. Elective procedures, on the other hand, are operative procedures that can wait for days, weeks or even months. Hence, in
these cases, the anesthesiologist possesses the luxury of time to be at the patient's beside to do a proper interview and clinical
evaluation. There is ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards for
purposes of informed consent. Usually, the pre-operative assessment is conducted at least one day before the intended surgery,
when the patient is relaxed and cooperative.

Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to make a thorough
evaluation of Erlinda's case prior to the operation and prepare her for anesthesia. However, she never saw the patient at the
bedside. She herself admitted that she had seen petitioner only in the operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take advantage of this important opportunity. As such, her attempt to exculpate
herself must fail.

Having established that respondent Dra. Gutierrez failed to 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:

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:

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. 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 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.

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:

Art. 2199. — Except as provided by law or by stipulation, one is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or
compensatory damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect
to take into account those situations, as in this case, where the resulting injury might be continuing and possible future
complications directly arising from the injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury
caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would
meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty. 80 In other
words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury
is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and
temperate damages are provided for. The reason is that these damages cover two distinct phases.

As it would not be equitable — and certainly not in the best interests of the administration of justice — for the victim in such
cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously
awarded — temperate damages are appropriate. The amount given as temperate damages, though to a certain extent
speculative, should take into account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has remained in
that condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners
at the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for temperate
damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care.
They should not be compelled by dire circumstances to provide substandard care at home without the aid of professionals, for
anything less would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages would
therefore be reasonable. 81

In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered by the plaintiff would
have led to expenses which were difficult to estimate because while they would have been a direct result of the injury
(amputation), and were certain to be incurred by the plaintiff, they were likely to arise only in the future. We awarded
P1,000,000.00 in moral damages in that case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity at
the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the full ambulatory
functions of her left extremity, even with the use of state of the art prosthetic technology. Well beyond the period of
hospitalization (which was paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to
the shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical and occupational rehabilitation and
therapy. During the lifetime, the prosthetic devise will have to be replaced and readjusted to changes in the size of her
lower limb effected by the biological changes of middle-age, menopause and aging. Assuming she reaches menopause,
for example, the prosthetic will have to be adjusted to respond to the changes in bone resulting from a precipitate
decrease in calcium levels observed in the bones of all post-menopausal women. In other words, the damage done to
her would not only be permanent and lasting, it would also be permanently changing and adjusting to the physiologic
changes which her body would normally undergo through the years. The replacements, changes, and adjustments will
require corresponding adjustive physical and occupational therapy. All of these adjustments, it has been documented,
are painful.

x x x           x x x          x x x

A prosthetic devise, however technologically advanced, will only allow a reasonable amount of functional restoration of
the motor functions of the lower limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness,
psychological injury, mental and physical pain are inestimable. 83

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more serious than the
amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state for over fourteen
years now. The burden of care has so far been heroically shouldered by her husband and children, who, in the intervening years
have been deprived of the love of a wife and a mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to quantify.
Even the temperate damages herein awarded would 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.
G.R. No. 126297             January 31, 2007

PROFESSIONAL SERVICES, INC., Petitioner,

vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.

x-----------------------x

G.R. No. 126467            January 31, 2007

NATIVIDAD (Substituted by her children MARCELINO AGANA III, ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS
AGANA, and RAYMUND AGANA) and ENRIQUE AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.

x- - - - - - - - - - - - - - - - - - - -- - - - x

G.R. No. 127590            January 31, 2007

MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Hospitals, having undertaken one of mankind’s most important and delicate endeavors, must assume the grave responsibility of
pursuing it with appropriate care. The care and service dispensed through this high trust, however technical, complex and
esoteric its character may be, must meet standards of responsibility commensurate with the undertaking to preserve and
protect the health, and indeed, the very lives of those placed in the hospital’s keeping.1

Assailed in these three consolidated petitions for review on certiorari is the Court of Appeals’ Decision2 dated September 6, 1996
in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming with modification the Decision3 dated March 17, 1993 of the
Regional Trial Court (RTC), Branch 96, Quezon City in Civil Case No. Q-43322 and nullifying its Order dated September 21, 1993.

The facts, as culled from the records, are:

On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital (Medical City Hospital) because of difficulty of
bowel movement and bloody anal discharge. After a series of medical examinations, Dr. Miguel Ampil, petitioner in G.R. No.
127590, diagnosed her to be suffering from "cancer of the sigmoid."

On April 11, 1984, Dr. Ampil, assisted by the medical staff4 of the Medical City Hospital, performed an anterior resection surgery
on Natividad. He found that the malignancy in her sigmoid area had spread on her left ovary, necessitating the removal of
certain portions of it. Thus, Dr. Ampil obtained the consent of Natividad’s husband, Enrique Agana, to permit Dr. Juan Fuentes,
respondent in G.R. No. 126467, to perform hysterectomy on her.

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the operation and closed the incision.

However, the operation appeared to be flawed. In the corresponding Record of Operation dated April 11, 1984, the attending
nurses entered these remarks:

"sponge count lacking 2

"announced to surgeon searched (sic) done but to no avail continue for closure."

On April 24, 1984, Natividad was released from the hospital. Her hospital and medical bills, including the doctors’ fees,
amounted to P60,000.00.
After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted both Dr. Ampil and Dr.
Fuentes about it. They told her that the pain was the natural consequence of the surgery. Dr. Ampil then recommended that she
consult an oncologist to examine the cancerous nodes which were not removed during the operation.

On May 9, 1984, Natividad, accompanied by her husband, went to the United States to seek further treatment. After four
months of consultations and laboratory examinations, Natividad was told she was free of cancer. Hence, she was advised to
return to the Philippines.

On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two weeks thereafter, her daughter found
a piece of gauze protruding from her vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he
managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then assured her that the pains would soon
vanish.

Dr. Ampil’s assurance did not come true. Instead, the pains intensified, prompting Natividad to seek treatment at the Polymedic
General Hospital. While confined there, Dr. Ramon Gutierrez detected the presence of another foreign object in her vagina -- a
foul-smelling gauze measuring 1.5 inches in width which badly infected her vaginal vault. A recto-vaginal fistula had formed in
her reproductive organs which forced stool to excrete through the vagina. Another surgical operation was needed to remedy the
damage. Thus, in October 1984, Natividad underwent another surgery.

On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon City a complaint for damages against
the Professional Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-
43322. They alleged that the latter are liable for negligence for leaving two pieces of gauze inside Natividad’s body and
malpractice for concealing their acts of negligence.

Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC) an administrative complaint for gross
negligence and malpractice against Dr. Ampil and Dr. Fuentes, docketed as Administrative Case No. 1690. The PRC Board of
Medicine heard the case only with respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was then in
the United States.

On February 16, 1986, pending the outcome of the above cases, Natividad died and was duly substituted by her above-named
children (the Aganas).

On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for
negligence and malpractice, the decretal part of which reads:

WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants PROFESSIONAL SERVICES, INC., DR. MIGUEL
AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly and severally, except in respect of the award for exemplary
damages and the interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:

1. As actual damages, the following amounts:

a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of P21.60-US$1.00, as
reimbursement of actual expenses incurred in the United States of America;

b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;

c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic Hospital, medical fees,
and cost of the saline solution;

2. As moral damages, the sum of P2,000,000.00;

3. As exemplary damages, the sum of P300,000.00;

4. As attorney’s fees, the sum of P250,000.00;

5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the complaint until full payment;
and

6. Costs of suit.
SO ORDERED.

Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals, docketed as CA-G.R. CV No. 42062.

Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial execution of its Decision, which was granted in
an Order dated May 11, 1993. Thereafter, the sheriff levied upon certain properties of Dr. Ampil and sold them for P451,275.00
and delivered the amount to the Aganas.

Following their receipt of the money, the Aganas entered into an agreement with PSI and Dr. Fuentes to indefinitely suspend any
further execution of the RTC Decision. However, not long thereafter, the Aganas again filed a motion for an alias writ of
execution against the properties of PSI and Dr. Fuentes. On September 21, 1993, the RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a petition for certiorari and prohibition, with prayer
for preliminary injunction, docketed as CA-G.R. SP No. 32198. During its pendency, the Court of Appeals issued a
Resolution5 dated October 29, 1993 granting Dr. Fuentes’ prayer for injunctive relief.

On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.

Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision6 in Administrative Case No. 1690 dismissing
the case against Dr. Fuentes. The Board held that the prosecution failed to show that Dr. Fuentes was the one who left the two
pieces of gauze inside Natividad’s body; and that he concealed such fact from Natividad.

On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No.
32198, thus:

WHEREFORE, except for the modification that the case against defendant-appellant Dr. Juan Fuentes is hereby DISMISSED, and
with the pronouncement that defendant-appellant Dr. Miguel Ampil is liable to reimburse defendant-appellant Professional
Services, Inc., whatever amount the latter will pay or had paid to the plaintiffs-appellees, the decision appealed from is hereby
AFFIRMED and the instant appeal DISMISSED.

Concomitant with the above, the petition for certiorari and prohibition filed by herein defendant-appellant Dr. Juan Fuentes in
CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order of the respondent judge dated September 21, 1993, as well
as the alias writ of execution issued pursuant thereto are hereby NULLIFIED and SET ASIDE. The bond posted by the petitioner in
connection with the writ of preliminary injunction issued by this Court on November 29, 1993 is hereby cancelled.

Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.

SO ORDERED.

Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution7 dated December 19, 1996.

Hence, the instant consolidated petitions.

In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is estopped from raising the
defense that Dr. Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it is not entitled to its counterclaim
against the Aganas. PSI contends that Dr. Ampil is not its employee, but a mere consultant or independent contractor. As such,
he alone should answer for his negligence.

In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that Dr. Fuentes is not guilty of negligence or
medical malpractice, invoking the doctrine of res ipsa loquitur. They contend that the pieces of gauze are prima facie proofs that
the operating surgeons have been negligent.

Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding him liable for negligence and malpractice
sans evidence that he left the two pieces of gauze in Natividad’s vagina. He pointed to other probable causes, such as: (1) it was
Dr. Fuentes who used gauzes in performing the hysterectomy; (2) the attending nurses’ failure to properly count the gauzes
used during surgery; and (3) the medical intervention of the American doctors who examined Natividad in the United States of
America.

For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding Dr. Ampil liable for negligence
and malpractice; second, whether the Court of Appeals erred in absolving Dr. Fuentes of any liability; and third, whether PSI may
be held solidarily liable for the negligence of Dr. Ampil.
I - G.R. No. 127590

Whether the Court of Appeals Erred in Holding Dr. Ampil

Liable for Negligence and Malpractice.

Dr. Ampil, in an attempt to absolve himself, gears the Court’s attention to other possible causes of Natividad’s detriment. He
argues that the Court should not discount either of the following possibilities: first, Dr. Fuentes left the gauzes in Natividad’s
body after performing hysterectomy; second, the attending nurses erred in counting the gauzes; and third, the American doctors
were the ones who placed the gauzes in Natividad’s body.

Dr. Ampil’s arguments are purely conjectural and without basis. Records show that he did not present any evidence to prove
that the American doctors were the ones who put or left the gauzes in Natividad’s body. Neither did he submit evidence to rebut
the correctness of the record of operation, particularly the number of gauzes used. As to the alleged negligence of Dr. Fuentes,
we are mindful that Dr. Ampil examined his (Dr. Fuentes’) work and found it in order.

The glaring truth is that all the major circumstances, taken together, as specified by the Court of Appeals, directly point to Dr.
Ampil as the negligent party, thus:

First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of the patient during the
surgical operation.

Second, immediately after the operation, the nurses who assisted in the surgery noted in their report that the ‘sponge
count (was) lacking 2’; that such anomaly was ‘announced to surgeon’ and that a ‘search was done but to no avail’
prompting Dr. Ampil to ‘continue for closure’ x x x.

Third, after the operation, two (2) gauzes were extracted from the same spot of the body of Mrs. Agana where the
surgery was performed.

An operation requiring the placing of sponges in the incision is not complete until the sponges are properly removed, and it is
settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima
facie negligence by the operating surgeon.8 To put it simply, such act is considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of authorities to the effect that such act is negligence per se.9

Of course, the Court is not blind to the reality that there are times when danger to a patient’s life precludes a surgeon from
further searching missing sponges or foreign objects left in the body. But this does not leave him free from any obligation. Even
if it has been shown that a surgeon was required by the urgent necessities of the case to leave a sponge in his patient’s
abdomen, because of the dangers attendant upon delay, still, it is his legal duty to so inform his patient within a reasonable time
thereafter by advising her of what he had been compelled to do. This is in order that she might seek relief from the effects of the
foreign object left in her body as her condition might permit. The ruling in Smith v. Zeagler10 is explicit, thus:

The removal of all sponges used is part of a surgical operation, and when a physician or surgeon fails to remove a sponge he has
placed in his patient’s body that should be removed as part of the operation, he thereby leaves his operation uncompleted and
creates a new condition which imposes upon him the legal duty of calling the new condition to his patient’s attention, and
endeavoring with the means he has at hand to minimize and avoid untoward results likely to ensue therefrom.

Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even misled her that the pain she
was experiencing was the ordinary consequence of her operation. Had he been more candid, Natividad could have taken the
immediate and appropriate medical remedy to remove the gauzes from her body. To our mind, what was initially an act of
negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical negligence. To successfully pursue this kind of case, a
patient must only prove that a health care provider either failed to do something which a reasonably prudent health care
provider would have done, or that he did something that a reasonably prudent provider would not have done; and that failure
or action caused injury to the patient.11 Simply put, the elements are duty, breach, injury and proximate causation. Dr, Ampil, as
the lead surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividad’s body before closure of the
incision. When he failed to do so, it was his duty to inform Natividad about it. Dr. Ampil breached both duties. Such breach
caused injury to Natividad, necessitating her further examination by American doctors and another surgery. That Dr. Ampil’s
negligence is the proximate cause12 of Natividad’s injury could be traced from his act of closing the incision despite the
information given by the attending nurses that two pieces of gauze were still missing. That they were later on extracted from
Natividad’s vagina established the causal link between Dr. Ampil’s negligence and the injury. And what further aggravated such
injury was his deliberate concealment of the missing gauzes from the knowledge of Natividad and her family.

II - G.R. No. 126467

Whether the Court of Appeals Erred in Absolving

Dr. Fuentes of any Liability

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the ground that it is contrary to the
doctrine of res ipsa loquitur. According to them, the fact that the two pieces of gauze were left inside Natividad’s body is a prima
facie evidence of Dr. Fuentes’ negligence.

We are not convinced.

Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule that the fact of the occurrence of an injury, taken with
the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima
facie case, and present a question of fact for defendant to meet with an explanation.13 Stated differently, where the thing which
caused the injury, without the fault of the injured, is under the exclusive control of the defendant and the injury is such that it
should not have occurred if he, having such control used proper care, it affords reasonable evidence, in the absence of
explanation that the injury arose from the defendant’s want of care, and the burden of proof is shifted to him to establish that
he has observed due care and diligence.14

From the foregoing statements of the rule, the requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the
occurrence of an injury; (2) the thing which caused the injury was under the control and management of the defendant; (3) the
occurrence was such that in the ordinary course of things, would not have happened if those who had control or management
used proper care; and (4) the absence of explanation by the defendant. Of the foregoing requisites, the most instrumental is the
"control and management of the thing which caused the injury."15

We find the element of "control and management of the thing which caused the injury" to be wanting. Hence, the doctrine of
res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead surgeon during the operation of Natividad. He requested the assistance of Dr.
Fuentes only to perform hysterectomy when he (Dr. Ampil) found that the malignancy in her sigmoid area had spread to her left
ovary. Dr. Fuentes performed the surgery and thereafter reported and showed his work to Dr. Ampil. The latter examined it and
finding everything to be in order, allowed Dr. Fuentes to leave the operating room. Dr. Ampil then resumed operating on
Natividad. He was about to finish the procedure when the attending nurses informed him that two pieces of gauze were missing.
A "diligent search" was conducted, but the misplaced gauzes were not found. Dr. Ampil then directed that the incision be closed.
During this entire period, Dr. Fuentes was no longer in the operating room and had, in fact, left the hospital.

Under the "Captain of the Ship" rule, the operating surgeon is the person in complete charge of the surgery room and all
personnel connected with the operation. Their duty is to obey his orders.16 As stated before, Dr. Ampil was the lead surgeon. In
other words, he was the "Captain of the Ship." That he discharged such role is evident from his following conduct: (1) calling Dr.
Fuentes to perform a hysterectomy; (2) examining the work of Dr. Fuentes and finding it in order; (3) granting Dr. Fuentes’
permission to leave; and (4) ordering the closure of the incision. To our mind, it was this act of ordering the closure of the
incision notwithstanding that two pieces of gauze remained unaccounted for, that caused injury to Natividad’s body. Clearly, the
control and management of the thing which caused the injury was in the hands of Dr. Ampil, not Dr. Fuentes.

In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per se create or constitute an independent
or separate ground of liability, being a mere evidentiary rule.17 In other words, mere invocation and application of the doctrine
does not dispense with the requirement of proof of negligence. Here, the negligence was proven to have been committed by Dr.
Ampil and not by Dr. Fuentes.

III - G.R. No. 126297

Whether PSI Is Liable for the Negligence of Dr. Ampil

The third issue necessitates a glimpse at the historical development of hospitals and the resulting theories concerning their
liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally charitable institutions, providing medical services to the lowest
classes of society, without regard for a patient’s ability to pay.18 Those who could afford medical treatment were usually treated
at home by their doctors.19 However, the days of house calls and philanthropic health care are over. The modern health care
industry continues to distance itself from its charitable past and has experienced a significant conversion from a not-for-profit
health care to for-profit hospital businesses. Consequently, significant changes in health law have accompanied the business-
related changes in the hospital industry. One important legal change is an increase in hospital liability for medical malpractice.
Many courts now allow claims for hospital vicarious liability under the theories of respondeat superior, apparent authority,
ostensible authority, or agency by estoppel. 20

In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil Code, which reads:

Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.

A derivative of this provision is Article 2180, the rule governing vicarious liability under the doctrine of respondeat superior,
thus:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or omissions, but also for those of
persons for whom one is responsible.

x x x x x x

The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in
the service of the branches in which the latter are employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their
assigned tasks even though the former are not engaged in any business or industry.

x x x x x x

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.

A prominent civilist commented that professionals engaged by an employer, such as physicians, dentists, and pharmacists, are
not "employees" under this article because the manner in which they perform their work is not within the control of the latter
(employer). In other words, professionals are considered personally liable for the fault or negligence they commit in the
discharge of their duties, and their employer cannot be held liable for such fault or negligence. In the context of the present
case, "a hospital cannot be held liable for the fault or negligence of a physician or surgeon in the treatment or operation of
patients."21

The foregoing view is grounded on the traditional notion that the professional status and the very nature of the physician’s
calling preclude him from being classed as an agent or employee of a hospital, whenever he acts in a professional capacity.22 It
has been said that medical practice strictly involves highly developed and specialized knowledge,23 such that physicians are
generally free to exercise their own skill and judgment in rendering medical services sans interference.24 Hence, when a doctor
practices medicine in a hospital setting, the hospital and its employees are deemed to subserve him in his ministrations to the
patient and his actions are of his own responsibility.25

The case of Schloendorff v. Society of New York Hospital26 was then considered an authority for this view. The "Schloendorff
doctrine" regards a physician, even if employed by a hospital, as an independent contractor because of the skill he exercises and
the lack of control exerted over his work. Under this doctrine, hospitals are exempt from the application of the respondeat
superior principle for fault or negligence committed by physicians in the discharge of their profession.

However, the efficacy of the foregoing doctrine has weakened with the significant developments in medical care. Courts came to
realize that modern hospitals are increasingly taking active role in supplying and regulating medical care to patients. No longer
were a hospital’s functions limited to furnishing room, food, facilities for treatment and operation, and attendants for its
patients. Thus, in Bing v. Thunig,27 the New York Court of Appeals deviated from the Schloendorff doctrine, noting that modern
hospitals actually do far more than provide facilities for treatment. Rather, they regularly employ, on a salaried basis, a large
staff of physicians, interns, nurses, administrative and manual workers. They charge patients for medical care and treatment,
even collecting for such services through legal action, if necessary. The court then concluded that there is no reason to exempt
hospitals from the universal rule of respondeat superior.
In our shores, the nature of the relationship between the hospital and the physicians is rendered inconsequential in view of our
categorical pronouncement in Ramos v. Court of Appeals28 that for purposes of apportioning responsibility in medical negligence
cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This
Court held:

"We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of
filling up specialist staff with attending and visiting "consultants," who are allegedly not hospital employees, presents problems
in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is more apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work
within the hospital premises. Doctors who apply for ‘consultant’ slots, visiting or attending, are required to submit proof of
completion of residency, their educational qualifications, generally, evidence of accreditation by the 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. x x x.

After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform
other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of
admitting patients into the hospital. In addition to these, the physician’s performance as a specialist is generally evaluated by a
peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and
residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the
hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting ‘consultant’ staff. While
‘consultants’ are not, technically employees, x x x, the control exercised, the hiring, and the right to terminate consultants all
fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that
for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. "

But the Ramos pronouncement is not our only basis in sustaining PSI’s liability. Its liability is also anchored upon the agency
principle of apparent authority or agency by estoppel and the doctrine of corporate negligence which have gained acceptance in
the determination of a hospital’s liability for negligent acts of health professionals. The present case serves as a perfect platform
to test the applicability of these doctrines, thus, enriching our jurisprudence.

Apparent authority, or what is sometimes referred to as the "holding

out" theory, or doctrine of ostensible agency or agency by estoppel,29 has its origin from the law of agency. It imposes liability,
not as the result of the reality of a contractual relationship, but rather because of the actions of a principal or an employer in
somehow misleading the public into believing that the relationship or the authority exists.30 The concept is essentially one of
estoppel and has been explained in this manner:

"The principal is bound by the acts of his agent with the apparent authority which he knowingly permits the agent to assume, or
which he holds the agent out to the public as possessing. The question in every case is whether the principal has by his voluntary
act placed the agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of
the particular business, is justified in presuming that such agent has authority to perform the particular act in question.31

The applicability of apparent authority in the field of hospital liability was upheld long time ago in Irving v. Doctor Hospital of
Lake Worth, Inc.32 There, it was explicitly stated that "there does not appear to be any rational basis for excluding the concept of
apparent authority from the field of hospital liability." Thus, in cases where it can be shown that a hospital, by its actions, has
held out a particular physician as its agent and/or employee and that a patient has accepted treatment from that physician in
the reasonable belief that it is being rendered in behalf of the hospital, then the hospital will be liable for the physician’s
negligence.

Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of the Civil Code reads:

ART. 1869. Agency may be express, or implied from the acts of the principal, from his silence or lack of action, or his failure to
repudiate the agency, knowing that another person is acting on his behalf without authority.

In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and specializations of the physicians
associated or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We concur with the Court of Appeals’ conclusion
that it "is now estopped from passing all the blame to the physicians whose names it proudly paraded in the public directory
leading the public to believe that it vouched for their skill and competence." Indeed, PSI’s act is tantamount to holding out to the
public that Medical City Hospital, through its accredited physicians, offers quality health care services. By accrediting Dr. Ampil
and Dr. Fuentes and publicly advertising their qualifications, the hospital created the impression that they were its agents,
authorized to perform medical or surgical services for its patients. As expected, these patients, Natividad being one of them,
accepted the services on the reasonable belief that such were being rendered by the hospital or its employees, agents, or
servants. The trial court correctly pointed out:

x x x regardless of the education and status in life of the patient, he ought not be burdened with the defense of absence of
employer-employee relationship between the hospital and the independent physician whose name and competence are
certainly certified to the general public by the hospital’s act of listing him and his specialty in its lobby directory, as in the case
herein. The high costs of today’s medical and health care should at least exact on the hospital greater, if not broader, legal
responsibility for the conduct of treatment and surgery within its facility by its accredited physician or surgeon, regardless of
whether he is independent or employed."33

The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are capable of acting only through other
individuals, such as physicians. If these accredited physicians do their job well, the hospital succeeds in its mission of offering
quality medical services and thus profits financially. Logically, where negligence mars the quality of its services, the hospital
should not be allowed to escape liability for the acts of its ostensible agents.

We now proceed to the doctrine of corporate negligence or corporate responsibility.

One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice is that PSI as owner, operator and
manager of Medical City Hospital, "did not perform the necessary supervision nor exercise diligent efforts in the supervision of
Drs. Ampil and Fuentes and its nursing staff, resident doctors, and medical interns who assisted Drs. Ampil and Fuentes in the
performance of their duties as surgeons."34 Premised on the doctrine of corporate negligence, the trial court held that PSI is
directly liable for such breach of duty.

We agree with the trial court.

Recent years have seen the doctrine of corporate negligence as the judicial answer to the problem of allocating hospital’s
liability for the negligent acts of health practitioners, absent facts to support the application of respondeat superior or apparent
authority. Its formulation proceeds from the judiciary’s acknowledgment that in these modern times, the duty of providing
quality medical service is no longer the sole prerogative and responsibility of the physician. The modern hospitals have changed
structure. Hospitals now tend to organize a highly professional medical staff whose competence and performance need to be
monitored by the hospitals commensurate with their inherent responsibility to provide quality medical care.35

The doctrine has its genesis in Darling v. Charleston Community Hospital.36 There, the Supreme Court of Illinois held that "the
jury could have found a hospital negligent, inter alia, in failing to have a sufficient number of trained nurses attending the
patient; failing to require a consultation with or examination by members of the hospital staff; and failing to review the
treatment rendered to the patient." On the basis of Darling, other jurisdictions held that a hospital’s corporate negligence
extends to permitting a physician known to be incompetent to practice at the hospital.37 With the passage of time, more duties
were expected from hospitals, among them: (1) the use of reasonable care in the maintenance of safe and adequate facilities
and equipment; (2) the selection and retention of competent physicians; (3) the overseeing or supervision of all persons who
practice medicine within its walls; and (4) the formulation, adoption and enforcement of adequate rules and policies that ensure
quality care for its patients.38 Thus, in Tucson Medical Center, Inc. v. Misevich,39 it was held that a hospital, following the doctrine
of corporate responsibility, has the duty to see that it meets the standards of responsibilities for the care of patients. Such duty
includes the proper supervision of the members of its medical staff. And in Bost v. Riley,40 the court concluded that a patient
who enters a hospital does so with the reasonable expectation that it will attempt to cure him. The hospital accordingly has the
duty to make a reasonable effort to monitor and oversee the treatment prescribed and administered by the physicians
practicing in its premises.

In the present case, it was duly established that PSI operates the Medical City Hospital for the purpose and under the concept of
providing comprehensive medical services to the public. Accordingly, it has the duty to exercise reasonable care to protect from
harm all patients admitted into its facility for medical treatment. Unfortunately, PSI failed to perform such duty. The findings of
the trial court are convincing, thus:

x x x PSI’s liability is traceable to its failure to conduct an investigation of the matter reported in the nota bene of the count
nurse. Such failure established PSI’s part in the dark conspiracy of silence and concealment about the gauzes. Ethical
considerations, if not also legal, dictated the holding of an immediate inquiry into the events, if not for the benefit of the patient
to whom the duty is primarily owed, then in the interest of arriving at the truth. The Court cannot accept that the medical and
the healing professions, through their members like defendant surgeons, and their institutions like PSI’s hospital facility, can
callously turn their backs on and disregard even a mere probability of mistake or negligence by refusing or failing to investigate a
report of such seriousness as the one in Natividad’s case.

It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of the Medical City Hospital’s staff,
composed of resident doctors, nurses, and interns. As such, it is reasonable to conclude that PSI, as the operator of the hospital,
has actual or constructive knowledge of the procedures carried out, particularly the report of the attending nurses that the two
pieces of gauze were missing. In Fridena v. Evans,41 it was held that a corporation is bound by the knowledge acquired by or
notice given to its agents or officers within the scope of their authority and in reference to a matter to which their authority
extends. This means that the knowledge of any of the staff of Medical City Hospital constitutes knowledge of PSI. Now, the
failure of PSI, despite the attending nurses’ report, to investigate and inform Natividad regarding the missing gauzes amounts to
callous negligence. Not only did PSI breach its duties to oversee or supervise all persons who practice medicine within its walls, it
also failed to take an active step in fixing the negligence committed. This renders PSI, not only vicariously liable for the
negligence of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own negligence under Article 2176. In
Fridena, the Supreme Court of Arizona held:

x x x In recent years, however, the duty of care owed to the patient by the hospital has expanded. The emerging trend is to hold
the hospital responsible where the hospital has failed to monitor and review medical services being provided within its walls.
See Kahn Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977).

Among the cases indicative of the ‘emerging trend’ is Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In Purcell, the
hospital argued that it could not be held liable for the malpractice of a medical practitioner because he was an independent
contractor within the hospital. The Court of Appeals pointed out that the hospital had created a professional staff whose
competence and performance was to be monitored and reviewed by the governing body of the hospital, and the court held that
a hospital would be negligent where it had knowledge or reason to believe that a doctor using the facilities was employing a
method of treatment or care which fell below the recognized standard of care.

Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain inherent responsibilities
regarding the quality of medical care furnished to patients within its walls and it must meet the standards of responsibility
commensurate with this undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has
confirmed the rulings of the Court of Appeals that a hospital has the duty of supervising the competence of the doctors on its
staff. x x x.

x x x x x x

In the amended complaint, the plaintiffs did plead that the operation was performed at the hospital with its knowledge, aid, and
assistance, and that the negligence of the defendants was the proximate cause of the patient’s injuries. We find that such
general allegations of negligence, along with the evidence produced at the trial of this case, are sufficient to support the
hospital’s liability based on the theory of negligent supervision."

Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for damages, let it be emphasized that PSI, apart from a
general denial of its responsibility, failed to adduce evidence showing that it exercised the diligence of a good father of a family
in the accreditation and supervision of the latter. In neglecting to offer such proof, PSI failed to discharge its burden under the
last paragraph of Article 2180 cited earlier, and, therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover, as we
have discussed, PSI is also directly liable to the Aganas.

One final word. Once a physician undertakes the treatment and care of a patient, the law imposes on him certain obligations. In
order to escape liability, he must possess that reasonable degree of learning, skill and experience required by his profession. At
the same time, he must apply reasonable care and diligence in the exercise of his skill and the application of his knowledge, and
exert his best judgment.

WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court of Appeals in CA-G.R. CV No. 42062
and CA-G.R. SP No. 32198.

Costs against petitioners PSI and Dr. Miguel Ampil.

SO ORDERED.