1-Rosit vs. Davao Doctors

9/1/2020 SUPREME COURT REPORTS ANNOTATED VOLUME 776 9/1/2020 SUPREME COURT REPORTS ANNOTATED VOLUME 776

304
304 SUPREME COURT REPORTS

ANNOTATED
G.R. No. 210445. December 7, 2015.* Rosit vs. Davao Doctors Hospital

NILO B. ROSIT, petitioner, vs. DAVAO
the profession. A physician is expected to use at
DOCTORS HOSPITAL and DR. ROLANDO G.
least the same level of care that any other reasonably
GESTUVO, respondents.
competent doctor would use under the same
circumstances. Breach of duty occurs when the
Civil Law; Torts and Damages; Medical
physician fails to comply with these professional
Negligence; In Flores v. Pineda, 571 SCRA 83 (2008),
standards. If injury results to the patient as a result
the Supreme Court (SC) explained the concept of a
of this breach, the physician is answerable for
medical negligence case and the elements required for
negligence.
its prosecution, viz.: A medical negligence case is a
type of claim to redress a wrong committed by a Same; Same; Same; To establish medical
medical professional, that has caused bodily harm to negligence, the Supreme Court (SC) has held that an
or the death of a patient.—In Flores v. Pineda, 571 expert testimony is generally required to define the
SCRA 83 (2008), the Court explained the concept of a standard of behavior by which the court may
medical negligence case and the elements required for determine whether the physician has properly
its prosecution, viz.: A medical negligence case is a performed the requisite duty toward the patient.—To
type of claim to redress a wrong committed by a establish medical negligence, this Court has held that
medical professional, that has caused bodily harm to an expert testimony is generally required to define the
or the death of a patient. There are four elements standard of behavior by which the court may
involved in a medical negligence case, namely: determine whether the physician has properly
duty, breach, injury, and proximate causation. performed the requisite duty toward the patient. This
Duty refers to the standard of behavior which imposes is so considering that the requisite degree of skill and
restrictions on one’s conduct. The standard in turn care in the treatment of a patient is usually a matter
refers to the amount of competence associated with of expert opinion.
the proper discharge of Same; Same; Same; Expert Witnesses; Res Ipsa
Loquitur; Resort to the doctrine of res ipsa loquitur as
_______________ an exception to the requirement of an expert testimony
in medical negligence cases may be availed of if the
* THIRD DIVISION.
www.central.com.ph/sfsreader/session/000001744a5666775b438c88003600fb002c009e/t/?o=False 1/31 www.central.com.ph/sfsreader/session/000001744a5666775b438c88003600fb002c009e/t/?o=False 2/31
following essential requisites are satisfied: (1) the the screws he used on Rosit were too large as, in fact,
accident was of a kind that does not ordinarily occur he cut the same with a saw. He also stated during
unless someone is negligent; (2) the instrumentality or trial that common sense dictated that the smallest
agency that caused the injury was under the exclusive screws available should be used. More importantly, he
control of the person charged; and (3) the injury also knew that these screws were available locally at
suffered must not have been due to any voluntary the time of the operation. Yet, he did not avail of such
action or contribution of the person injured.—We have items and went ahead with the larger screws and
further held that resort to the doctrine of res ipsa merely sawed them off. Even assuming that the
loquitur as an exception to the requirement of an screws were already at the proper length after Dr.
expert testimony in medical negligence cases may be Gestuvo cut the same, it is apparent that he
availed of if the following essential requisites are negligently placed one of the screws in the wrong area
satisfied: (1) the accident was of a kind that does not thereby striking one of Rosit’s teeth. In any event,
ordinarily occur unless someone is negligent; (2) the whether the screw hit Rosit’s molar because it was too
instrumentality or agency that caused the injury was long or improperly placed, both facts are the product
under the exclusive control of the person charged; and of Dr. Gestuvo’s negligence. An average man of
(3) the injury suffered must not have been due to any common intelligence would know that striking a tooth
voluntary action or contribution of the person injured. with any foreign object much less a screw would cause
Same; Same; Same; Had Dr. Gestuvo used the severe pain. Thus, the first essential requisite is
proper size and length of screws and placed the same present in this case.
in the proper locations, these would not have struck Same; Same; Same; Doctrine of Informed Consent;
Rosit’s teeth causing him pain and requiring him to A physician has a duty to disclose what a reasonably
undergo a corrective surgery.—Clearly, had Dr. prudent physician in the medical community in the
Gestuvo used the proper size and length of screws and exercise of reasonable care would disclose to his
placed the same in the patient as to whatever grave risks of injury might be
incurred from a proposed course of treatment, so that a
patient, exercising ordinary care for his own welfare,
and faced with a choice of undergoing the proposed
305
treatment, or alternative treatment, or none at all, may
intelligently exercise his judgment by reasonably
balancing the probable risks against the probable
VOL. 776, DECEMBER 7, 2015 305 benefits.—Li v. Soliman, 651 SCRA 32 (2011), made
Rosit vs. Davao Doctors Hospital the following disquisition on the relevant Doctrine of
Informed Consent in relation to medical negligence
cases, to wit: The doctrine of informed consent
proper locations, these would not have struck within the context of physician-patient relationships
Rosit’s teeth causing him pain and requiring him to goes far back into English common law. x x x From a
undergo a corrective surgery. Dr. Gestuvo knew that purely ethical norm, informed consent evolved
into a general principle of law that a physician undisclosed information relating to the treatment
has a duty to disclose what a reasonably which would have altered her decision to undergo it.”
prudent physician in the medical community in Remedial Law; Evidence; Affidavits; Hearsay
the exercise of reasonable care would disclose Evidence; In Dantis v. Maghinang, Jr., 695 SCRA 599
to his patient as to whatever grave risks of (2013), the Supreme Court (SC) reiterated the oft-
injury might be incurred from a proposed repeated rule that “an affidavit is merely hearsay
course of treatment, so that a patient, evidence where its affiant/maker did not take the
exercising ordinary care for his own welfare, witness stand.”—In Dantis v. Maghinang, Jr., 695
and faced with a choice of undergoing the SCRA 599 (2013), the Court reiterated the oft-
proposed treatment, or alternative treatment, repeated rule that “an affidavit is merely hearsay
or none at all, may intelligently exercise his evidence where its affiant/maker did not take the
judgment by reasonably balancing the witness stand.” Here, Dr. Pangan never took the
witness stand to affirm the contents of his affidavit.

Thus, the affidavit is inadmissible and cannot be

given any weight. The CA, therefore, erred when it
306 considered the affidavit of Dr. Pangan, more so for
considering the same as expert testimony.
306 SUPREME COURT REPORTS Same; Same; Same; Expert Witnesses; Even if
ANNOTATED such affidavit is considered as admissible and the
testimony of an expert witness, the Court is not bound
Rosit vs. Davao Doctors Hospital
by such testimony.—Moreover, even if such affidavit is
considered as admissible and the testimony of an
probable risks against the probable benefits. expert witness, the Court is not bound by such
x x x x There are four essential elements a testimony. As ruled in Ilao-Quianay v. Mapile, 474
plaintiff must prove in a malpractice action SCRA 246 (2005): Indeed, courts are not bound by
based upon the doctrine of informed consent: expert testimonies. They may place whatever weight
“(1) the physician had a duty to disclose they choose upon such testimonies in accordance with
material risks; (2) he failed to disclose or the facts of the case. The relative weight and
inadequately disclosed those risks; (3) as a sufficiency of expert testimony is peculiarly within the
direct and proximate result of the failure to province of the trial court to decide, considering the
disclose, the patient consented to treatment she ability and character of the witness, his actions upon
otherwise would not have consented to; and (4) the witness stand, the weight and process of the
plaintiff was injured by the proposed reasoning by which he has supported his opinion, his
treatment.” The gravamen in an informed consent possible bias in favor of the side for whom he testifies,
case requires the plaintiff to “point to significant and any other matters which serve to illuminate his
statements. The opinion of an expert should be

considered by the court in view of all the facts and PETITION for review on certiorari of the
circumstances of the case. The problem of the decision and resolution of the Court of
evaluation of expert testimony is left to the discretion Appeals, Cagayan de Oro City.
The facts are stated in the opinion of the
Court.
Alabastro, Olaguer & Alabastro Law Office
307 for petitioner.
Nitorreda Law Office for respondents.
VOL. 776, DECEMBER 7, 2015 307 VELASCO, JR., J.:


The Case

of the trial court whose ruling thereupon is not This is a petition filed under Rule 45 of the
reviewable in the absence of an abuse of that Rules of Court assailing the Decision and
discretion. Thus, the belief of Dr. Pangan whether Dr. Resolution dated January 22, 20131 and
Gestuvo is guilty of negligence or not will not bind the November 7, 2013,2 respectively, of the Court of
Court. The Court must weigh and examine such
testimony and decide for itself the merits thereof. _______________
Civil Law; Torts and Damages; Medical
1 Rollo, pp. 56-67. Penned by Associate Justice Henri
Negligence; Actual Damages; In Mendoza v. Spouses
Jean Paul B. Inting and concurred in by Associate Justices
Gomez, 726 SCRA 505 (2014), the Supreme Court (SC)
Edgardo T. Lloren and Jhosep Y. Lopez.
explained that a claimant is entitled to actual
2 Id., at pp. 82-85.
damages when the damage he sustained is the natural
and probable consequences of the negligent act and he
adequately proved the amount of such damage.—The
trial court properly awarded Rosit actual damages
after he was able to prove the actual expenses that he 308
incurred due to the negligence of Dr. Gestuvo. In
Mendoza v. Spouses Gomez, 726 SCRA 505 (2014), the
308 SUPREME COURT REPORTS
Court explained that a claimant is entitled to actual
ANNOTATED
damages when the damage he sustained is the
natural and probable consequences of the negligent Rosit vs. Davao Doctors Hospital
act and he adequately proved the amount of such
damage. Appeals, Cagayan de Oro City (CA), in C.A.-
G.R. CV No. 00911-MIN. The CA Decision
reversed the Decision dated September 14, 20043
of the Regional Trial Court, Branch 33 in Davao _______________

City (RTC) in Civil Case No. 27,354-99, a suit for
3 Id., at pp. 40-54.
damages thereat which Nilo B. Rosit (Rosit)
4 Id., at pp. 40-41.
commenced against Dr. Rolando Gestuvo (Dr.
Gestuvo). 5 Id., at pp. 41-42.
6 Id., at pp. 42-43.

Factual Antecedents

On January 15, 1999, Rosit figured in a
motorcycle accident. The X-ray soon taken the 309
next day at the Davao Doctors Hospital (DDH)
showed that he fractured his jaw. Rosit was then
VOL. 776, DECEMBER 7, 2015 309
referred to Dr. Gestuvo, a specialist in
mandibular injuries,4 who, on January 19, 1999, Rosit vs. Davao Doctors Hospital
operated on Rosit.
During the operation, Dr. Gestuvo used a to Dr. Gestuvo to demand a loan to defray the
metal plate fastened to the jaw with metal cost of the additional operation as well as the
screws to immobilize the mandible. As the expenses of the trip to Cebu. Dr. Gestuvo gave
operation required the smallest screws available, Rosit P4,500.
Dr. Gestuvo cut the screws on hand to make Rosit went to Cebu on February 19, 1999, still
them smaller. Dr. Gestuvo knew that there were suffering from pain and could hardly open his
smaller titanium screws available in Manila, but mouth.
did not so inform Rosit supposing that the latter In Cebu, Dr. Pangan removed the plate and
would not be able to afford the same.5 screws thus installed by Dr. Gestuvo and
Following the procedure, Rosit could not replaced them with smaller titanium plate and
properly open and close his mouth and was in screws. Dr. Pangan also extracted Rosit’s molar
pain. X-rays done on Rosit two (2) days after the that was hit with a screw and some bone
operation showed that the fracture in his jaw fragments. Three days after the operation, Rosit
was aligned but the screws used on him touched was able to eat and speak well and could open
his molar. Given the X-ray results, Dr. Gestuvo and close his mouth normally.7
referred Rosit to a dentist. The dentist who On his return to Davao, Rosit demanded that
checked Rosit, Dr. Pangan, opined that another Dr. Gestuvo reimburse him for the cost of the
operation is necessary and that it is to be operation and the expenses he incurred in Cebu
performed in Cebu.6 amounting to P140,000, as well as for the
Alleging that the dentist told him that the P50,000 that Rosit would have to spend for the
operation conducted on his mandible was removal of the plate and screws that Dr. Pangan
improperly done, Rosit went back installed. Dr. Gestuvo refused to pay.8
Thus, Rosit filed a civil case for damages and a) the sum of ONE HUNDRED FORTY
attorney’s fees with the RTC against Dr. THOUSAND ONE HUNDRED NINETY-
Gestuvo and DDH, the suit docketed as Civil NINE PESOS and 13/100 (P140,199.13)
Case No. 27,354-99. representing reimbursement of actual
expenses incurred by plaintiff in the
The Ruling of the Regional Trial Court operation and reoperation of his mandible;
b) the sum of TWENTY-NINE
The RTC freed DDH from liability on the THOUSAND AND SIXTY-EIGHT PESOS
ground that it exercised the proper diligence in (P29,068.00) representing reimbursement
the selection and supervision of Dr. Gestuvo, but of the filing fees and appearance fees;
adjudged Dr. Gestuvo negligent and ruled, thus: c) the sum of ONE HUNDRED FIFTY
THOUSAND PESOS (P150,000.00) as and
FOR ALL THE FOREGOING, finding for attorney’s fees;
the plaintiff Nilo B. Rosit to have d) the amount of FIFTY THOUSAND
preponderantly established his cause of PESOS (P50,000.00) as moral damages;
action in the complaint against defendant e) the amount of TEN THOUSAND
Dr. Rolando G. Gestuvo only, judgment is PESOS (P10,000.00) as exemplary
hereby rendered for the plaintiff and damages; and
against said defendant, ordering the f) the costs of the suit.
For lack of merit, the complaint against
_______________ defendant DAVAO DOCTORS HOSPITAL
and the defendants’ counterclaims are
7 Id., at pp. 43-44. hereby ordered DISMISSED.
8 Id., at p. 44. Cost against Dr. Rolando G. Gestuvo.
SO ORDERED.

In so ruling, the trial court applied the res
310 ipsa loquitur principle holding that “the need for
expert medical testimony may be dispensed with
because the injury itself provides the proof of
310 SUPREME COURT REPORTS negligence.”
ANNOTATED Therefrom, both parties appealed to the CA.
The Ruling of the Court of Appeals
defendant DR. ROLANDO G.
GESTUVO to pay unto plaintiff NILO B. In its January 22, 2013 Decision, the CA
ROSIT the following: modified the appealed judgment by deleting the
awards made by the trial court, disposing as Dr. Gestuvo from liability.
follows:
The Court’s Ruling

The petition is impressed with merit.
311
In Flores v. Pineda,9 the Court explained the
concept of a medical negligence case and the
VOL. 776, DECEMBER 7, 2015 311 elements required for its prosecution, viz.:

A medical negligence case is a type of
claim to redress a wrong committed by a
WHEREFORE, the appeal filed by medical professional, that has caused
Gestuvo is GRANTED. The Decision dated bodily harm to or the death of a patient.
September 14, 2004 of the Regional Trial There are four elements involved in a
Court, Branch 33, Davao City, rendered in medical neg-
Civil Case No. 27,354-99 is hereby
MODIFIED. The monetary awards
_______________
adjudged in favor of Nilo B. Rosit are
hereby DELETED for lack of basis. 9 G.R. No. 158996, November 14, 2008, 571 SCRA 83, 91-
SO ORDERED. 92.

Unlike the RTC, the CA ruled that the res
ipsa loquitur principle is not applicable and that
the testimony of an expert witness is necessary
312
for a finding of negligence. The appellate court
also gave credence to Dr. Pangan’s letter stating
the opinion that Dr. Gestuvo did not commit 312 SUPREME COURT REPORTS
gross negligence in his emergency management ANNOTATED
of Rosit’s fractured mandible. Rosit vs. Davao Doctors Hospital
Rosit’s motion for reconsideration was denied
in the CA’s November 7, 2013 Resolution.
ligence case, namely: duty, breach,
Hence, the instant appeal.
injury, and proximate causation.

Duty refers to the standard of behavior
The Issue
which imposes restrictions on one’s

conduct. The standard in turn refers to the
The ultimate issue for our resolution is
amount of competence associated with the
whether the appellate court correctly absolved
proper discharge of the profession. A
physician is expected to use at least the doctrine of res ipsa loquitur is availed
same level of care that any other by
reasonably competent doctor would use
under the same circumstances. Breach of _______________
duty occurs when the physician fails to
comply with these professional standards. 10 Id.
If injury results to the patient as a result of 11 G.R. No. 192123, March 10, 2014, 718 SCRA 263.
this breach, the physician is answerable for
negligence. (emphasis supplied)

An expert witness is not nec- 313
essary as the res ipsa loqui-
tur doctrine is applicable
VOL. 776, DECEMBER 7, 2015 313
To establish medical negligence, this Court Rosit vs. Davao Doctors Hospital
has held that an expert testimony is generally
required to define the standard of behavior by the plaintiff, the need for expert
which the court may determine whether the medical testimony is dispensed with
physician has properly performed the requisite because the injury itself provides the
duty toward the patient. This is so considering proof of negligence. The reason is that
that the requisite degree of skill and care in the the general rule on the necessity of expert
treatment of a patient is usually a matter of testimony applies only to such matters
expert opinion.10 clearly within the domain of medical
Solidum v. People of the Philippines11 science, and not to matters that are within
provides an exception. There, the Court the common knowledge of mankind which
explained that where the application of the may be testified to by anyone familiar with
principle of res ipsa loquitur is warranted, an the facts. x x x
expert testimony may be dispensed with in Thus, courts of other jurisdictions have
medical negligence cases: applied the doctrine in the following
situations: leaving of a foreign object in the
Although generally, expert medical body of the patient after an operation,
testimony is relied upon in injuries sustained on a healthy part of the
malpractice suits to prove that a body which was not under, or in the area,
physician has done a negligent act or of treatment, removal of the wrong part of
that he has deviated from the the body when another part was intended,
standard medical procedure, when the knocking out a tooth while a patient’s jaw
was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient 314 SUPREME COURT REPORTS
plaintiff was under the influence of ANNOTATED
anesthetic, during or following an Rosit vs. Davao Doctors Hospital
operation for appendicitis, among others.

ther, a second operation was conducted within
We have further held that resort to the
the 5-week usual healing period of the
doctrine of res ipsa loquitur as an exception to
mandibular fracture so that the second element
the requirement of an expert testimony in
cannot be considered present. Lastly, the CA
medical negligence cases may be availed of if the
pointed out that the X-ray examination
following essential requisites are satisfied: (1)
conducted on Rosit prior to his first surgery
the accident was of a kind that does not
suggests that he had “chronic inflammatory lung
ordinarily occur unless someone is negligent; (2)
disease compatible,” implying that the injury
the instrumentality or agency that caused the
may have been due to Rosit’s peculiar condition,
injury was under the exclusive control of the
thus effectively negating the presence of the
person charged; and (3) the injury suffered must
third element.13
not have been due to any voluntary action or
After careful consideration, this Court cannot
contribution of the person injured.12
accede to the CA’s findings as it is at once
In its assailed Decision, the CA refused to
apparent from the records that the essential
acknowledge the application of the res ipsa
requisites for the application of the doctrine of
loquitur doctrine on the ground that the
res ipsa loquitur are present.
foregoing elements are absent. In particular, the
The first element was sufficiently established
appellate court is of the position that post-
when Rosit proved that one of the screws
operative pain is not unusual after surgery and
installed by Dr. Gestuvo struck his molar. It was
that there is no proof that the molar Dr. Pangan
for this issue that Dr. Gestuvo himself referred
removed is the same molar that was hit by the
Rosit to Dr. Pangan. In fact, the affidavit of Dr.
screw installed by Dr. Gestuvo in Rosit’s
Pangan presented by Dr. Gestuvo himself before
mandible. Fur-
the trial court narrated that the same molar
struck with the screw installed by Dr. Gestuvo
_______________ was examined and eventually operated on by Dr.
12 Id. Pangan. Dr. Gestuvo cannot now go back and
say that Dr. Pangan treated a molar different
from that which was affected by the first
operation.
Clearly, had Dr. Gestuvo used the proper size
314
and length of screws and placed the same in the
proper locations, these would not have struck

Rosit’s teeth causing him pain and requiring him would cause severe pain. Thus, the first
to undergo a corrective surgery. essential requisite is present in this case.
Dr. Gestuvo knew that the screws he used on Anent the second element for the res ipsa
Rosit were too large as, in fact, he cut the same loquitur doctrine application, it is sufficient that
with a saw.14 He also stated during trial that the operation which resulted in the screw hitting
common sense dictated that the smallest screws Rosit’s molar was, indeed, performed by Dr.
available should be used. More importantly, he Gestuvo. No other doctor caused such fact.
also knew that these screws were available The CA finds that Rosit is guilty of
locally at the time of the operation.15 Yet, he did contributory negligence in having Dr. Pangan
not avail of such items and operate on him during the healing period of his
fractured mandible. What the CA overlooked is
_______________ that it was Dr. Gestuvo himself who referred
Rosit to Dr. Pangan. Nevertheless, Dr. Pangan’s
13 Rollo, p. 64. participation could not have contributed to the
14 Id., at p. 42. reality that the screw that Dr. Gestuvo installed
15 Id. hit Rosit’s molar.
Lastly, the third element that the injury
suffered must not have been due to any
voluntary action or contribution of the person
315 injured was satisfied in this case. It was not
shown that Rosit’s lung disease could have
contributed to the pain. What is clear is that he
VOL. 776, DECEMBER 7, 2015 315 suffered because one of the screws that Dr.
Rosit vs. Davao Doctors Hospital Gestuvo installed hit Rosit’s molar.
Clearly then, the res ipsa loquitur doctrine
finds application in the instant case and no
went ahead with the larger screws and
expert testimony is required to establish
merely sawed them off. Even assuming that the
the negligence of defendant Dr. Gestuvo.
screws were already at the proper length after

Dr. Gestuvo cut the same, it is apparent that he

negligently placed one of the screws in the wrong
area thereby striking one of Rosit’s teeth. 316
In any event, whether the screw hit Rosit’s
molar because it was too long or improperly
placed, both facts are the product of Dr. 316 SUPREME COURT REPORTS
Gestuvo’s negligence. An average man of ANNOTATED
common intelligence would know that striking a Rosit vs. Davao Doctors Hospital
tooth with any foreign object much less a screw
Petitioner was deprived of the

opportunity to make an “informed consent”
317
What is more damning for Dr. Gestuvo is his
failure to inform Rosit that such smaller screws
were available in Manila, albeit at a higher VOL. 776, DECEMBER 7, 2015 317
price.16 As testified to by Dr. Gestuvo himself:
Court
Alright. This titanium materials according to you were Witness
already available in the Philippines since the time of Yes, that is true.
Rosit’s accident?
Witness
Yes, your Honor. Li v. Soliman17 made the following
x x x x disquisition on the relevant Doctrine of Informed
Court Consent in relation to medical negligence cases,
Did you inform Rosit about the existence of titanium screws to wit:
and plates which according to you is the screws and
plates of choice? The doctrine of informed consent
Witness within the context of physician-patient
No, your Honor. relationships goes far back into English
x x x x common law. x x x From a purely ethical
Witness norm, informed consent evolved into a
The reason I did not inform him anymore Judge because general principle of law that a
what I thought he was already hard up with the down physician has a duty to disclose what
payment. And if I will further introduce him this screws, a reasonably prudent physician in the
the more he will not be able to af-ford the operation. medical community in the exercise of
x x x x reasonable care would disclose to his
Court patient as to whatever grave risks of
This titanium screws and plates were available then it is up injury might be incurred from a
to Rosit to decide whether to use it or not because after proposed course of treatment, so that
all the material you are using is paid by the patient a patient, exercising ordinary care for
himself, is it not? his own welfare, and faced with a
choice of undergoing the proposed
treatment, or alternative treatment, or
_______________
none at all, may intelligently exercise
16 TSN, July 4, 2002, pp. 40-42. his judgment by reasonably balancing
the probable risks against the
probable benefits.
x x x x screws for the operation. This was his obligation

There are four essential elements a as the physician undertaking the operation.
plaintiff must prove in a malpractice Second, Dr. Gestuvo failed to disclose these
action based upon the doctrine of risks to Rosit, deciding by himself that Rosit
informed consent: “(1) the physician could not afford to get the more expensive
had a duty to disclose material risks; titanium screws.
(2) he failed to disclose or Third, had Rosit been informed that there
inadequately disclosed those risks; (3) was a risk that the larger screws are not
as a direct and proximate result of the appropriate for the operation and that an
failure to disclose, the patient additional operation replacing the screws might
consented to treatment she otherwise be required to replace the same, as what
would not have consented to; and (4) happened in this case, Rosit would not have
plaintiff was injured by the proposed agreed to the operation. It bears pointing out
treatment.” The gravamen in an informed that Rosit was, in fact, able to afford the use of
consent case requires the plaintiff to “point the smaller titanium screws that were later used
to significant undisclosed information by Dr. Pangan to replace the screws that were
relating to the treatment which would have used by Dr. Gestuvo.
altered her decision to undergo it.” Fourth, as a result of using the larger screws,
(emphasis supplied) Rosit experienced pain and could not heal
properly because one of the screws hit his molar.
_______________ This was evident from the fact that just three (3)
days after Dr. Pangan repeated the operation
17 G.R. No. 165279, June 7, 2011, 651 SCRA 32, 56-59. conducted by Dr. Gestuvo, Rosit was pain-free
and could already speak. This is compared to the

one (1) month that Rosit suffered pain and could

not use his mouth after the operation conducted
318 by Dr. Gestuvo until the operation of Dr.
Pangan.
Without a doubt, Dr. Gestuvo is guilty of
318 SUPREME COURT REPORTS withholding material information which would
ANNOTATED have been vital in the decision of Rosit in going
Rosit vs. Davao Doctors Hospital through with the operation with the materials at
hand. Thus, Dr. Gestuvo is also guilty of
The four adverted essential elements above negligence on this ground.
are present here.
First, Dr. Gestuvo clearly had the duty of Dr. Pangan’s Affidavit
disclosing to Rosit the risks of using the larger is not admissible
The relative weight and sufficiency of

The appellate court’s Decision absolving Dr. expert testimony is peculiarly within the
Gestuvo of negligence was also anchored on a province of the trial court to decide,
letter signed by Dr. Pangan considering the ability and character of the
witness, his actions upon the witness
stand, the weight and process of the
reasoning by which he has supported his
319
opinion, his possible bias in favor of the
side for whom he testifies, and any other
VOL. 776, DECEMBER 7, 2015 319 matters which serve to illuminate his
statements. The opinion of an expert
should be considered by the court in view of
all the facts and circumstances of the case.
who stated the opinion that Dr. Gestuvo did The problem of the evaluation of expert
not commit gross negligence in his emergency testimony is left to the discretion of the
management of Mr. Rosit’s fractured mandible.18 trial court
Clearly, the appellate court overlooked the
elementary principle against hearsay evidence.
_______________
In Dantis v. Maghinang, Jr.,19 the Court
reiterated the oft-repeated rule that “an affidavit 18 Id., at p. 63.
is merely hearsay evidence where its 19 G.R. No. 191696, April 10, 2013, 695 SCRA 599, 610;
affiant/maker did not take the witness stand.” see also Unchuan v. Lozada, G.R. No. 172671, April 16, 2009,
Here, Dr. Pangan never took the witness stand 585 SCRA 421, 435; People v. Quidato, Jr., G.R. No. 117401,
to affirm the contents of his affidavit. Thus, the October 1, 1998, 297 SCRA 1, 8. See also People v.
affidavit is inadmissible and cannot be given any Manhuyod, G.R. No. 124676, May 20, 1998, 290 SCRA 257,
weight. The CA, therefore, erred when it 270-271.
considered the affidavit of Dr. Pangan, more so 20 G.R. No. 154087, October 25, 2005, 474 SCRA 246,
for considering the same as expert testimony. 255.
Moreover, even if such affidavit is considered
as admissible and the testimony of an expert
witness, the Court is not bound by such
testimony. As ruled in Ilao-Quianay v. Mapile:20
320

Indeed, courts are not bound by expert
testimonies. They may place whatever 320 SUPREME COURT REPORTS
weight they choose upon such testimonies ANNOTATED
in accordance with the facts of the case.
21 G.R. No. 160110, June 18, 2014, 726 SCRA 505, 521-
whose ruling thereupon is not 522.
reviewable in the absence of an abuse of 22 Article 2217. Moral damages include physical
that discretion. suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock, social
Thus, the belief of Dr. Pangan whether Dr. humiliation, and similar injury. Though incapable of
Gestuvo is guilty of negligence or not will not pecuniary computation, moral damages may be
bind the Court. The Court must weigh and recovered if they are the proximate result of the
examine such testimony and decide for itself the defendant’s wrongful act for omission. (emphasis
merits thereof. supplied)
As discussed above, Dr. Gestuvo’s negligence
is clearly demonstrable by the doctrines of res
ipsa loquitur and informed consent.
321
Damages

For the foregoing, the trial court properly VOL. 776, DECEMBER 7, 2015 321
awarded Rosit actual damages after he was able
to prove the actual expenses that he incurred
due to the negligence of Dr. Gestuvo. In
Mendoza v. Spouses Gomez,21 the Court month, Rosit suffered pain and could not
explained that a claimant is entitled to actual properly use his jaw to speak or eat.
damages when the damage he sustained is the The trial court also properly awarded
natural and probable consequences of the attorney’s fees and costs of suit under Article
negligent act and he adequately proved the 2208 of the Civil Code,23 since Rosit was
amount of such damage. compelled to litigate due to Dr. Gestuvo’s refusal
Rosit is also entitled to moral damages as to pay for Rosit’s damages.
provided under Article 2217 of the Civil Code,22 As to the award of exemplary damages, the
given the unnecessary physical suffering he same too has to be affirmed. In Mendoza,24 the
endured as a consequence of defendant’s Court enumerated the requisites for the award
negligence. of exemplary damages:
To recall, from the time he was negligently
operated upon by Dr. Gestuvo until three (3) Our jurisprudence sets certain
days from the corrective surgery performed by conditions when exemplary damages may
Dr. Pangan, or for a period of one (1) be awarded: First, they may be imposed by
way of example or correction only in
addition, among others, to compensatory
_______________
damages, and cannot be recovered as a
matter of right, their determination 322 SUPREME COURT REPORTS

depending upon the amount of ANNOTATED
compensatory damages that may be Rosit vs. Davao Doctors Hospital
awarded to the claimant. Second, the
claimant must first establish his right to
screws mainly because of his erroneous belief
moral, temperate, liquidated or
that Rosit cannot afford to buy the expensive
compensatory damages. Third, the
titanium screws. Such concealment is clearly a
wrongful act must be accompanied by bad
valid basis for an award of exemplary damages.
faith, and the award would be allowed only
WHEREFORE, the instant petition is
if the guilty party acted in a wanton,
GRANTED. The CA Decision dated January 22,
fraudulent, reckless, oppressive or
2013 and Resolution dated November 7, 2013 in
malevolent manner.
C.A.-G.R. CV No. 00911-MIN are hereby

REVERSED and SET ASIDE. Further, the
The three (3) requisites are met. Dr.
Decision dated September 14, 2004 of the
Gestuvo’s actions are clearly negligent.
Regional Trial Court, Branch 33 in Davao City
Likewise, Dr. Gestuvo acted in bad faith or in a
in Civil Case No. 27,345-99 is hereby
wanton, fraudulent, reckless, oppressive manner
REINSTATED and AFFIRMED.
when he was in breach of the doctrine of
SO ORDERED.
informed consent. Dr. Gestuvo had the duty to
fully explain to Rosit the risks of using large Peralta, Villarama, Jr., Reyes and
screws for the operation. More importantly, he Jardeleza, JJ., concur.
concealed the correct medical procedure of using
the smaller titanium Petition granted, judgment and resolution
reversed and set aside.
_______________
Notes.—Medical malpractice or, more
23 Art. 2208. In the absence of stipulation, attorney’s appropriately, medical negligence, is that type of
fees and expenses of litigation, other than judicial costs, claim which a victim has available to him or her
cannot be recovered, except: x x x x to redress a wrong committed by a medical
(2) When the defendant’s act or omission has compelled professional which has caused bodily harm.
the plaintiff to litigate with third persons or to incur (Dela Torre vs. Imbuido, 736 SCRA 655 [2014])
expenses to protect his interest. It is settled that a physician’s duty to his
24 Mendoza v. Gomez, supra note 21 at p. 525. patient relates to his exercise of the degree of
care, skill and diligence which physicians in the
same general neighborhood, and in the same
general line of practice, ordinarily possess and
322 exercise in like cases. (Id.)
9/1/2020 SUPREME COURT REPORTS ANNOTATED VOLUME 776

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304 SUPREME COURT REPORTS

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VOL. 776, DECEMBER 7, 2015 307 VELASCO, JR., J.:

of the Regional Trial Court, Branch 33 in Davao _______________

6 Id., at pp. 42-43.

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Petitioner was deprived of the

x x x x screws for the operation. This was his obligation

The relative weight and sufficiency of

matter of right, their determination 322 SUPREME COURT REPORTS

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