FIRST DIVISION [G.R. No. 124354. December 29, 1999] ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners, vs. COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA GUTIERREZ, respondents. Luis C. A. Sillano for petitioners. Antonio H. Abad & Associates for respondents Doctors. Tanjuatco, Sta. Maria, Tanjuatco for respondent DLSMC. SYNOPSIS In the morning of June 17, 1985, Erlinda Ramos was brought into the operating room of the Delos Santos Medical Center for a cholecystectomy. She was then a robust woman, normal as any other except for occasional complaints of discomfort due to pains allegedly caused by the presence of stones in her gall bladder. At around 3:00 p.m. of that day, Erlinda was taken to the Intensive Care unit of the hospital, comatose. On January 8, 1986, Erlinda's husband filed a civil case for damages against said hospital and Drs. Orlino Hosaka and Perfecta Gutierrez. The Regional Trial Court ruled in favor of the plaintiffs. The Court of Appeals, however, reversed the decision of the lower court and ordered the dismissal of the complaint. Hence, this petition. The doctrine of res /psa /oquituris a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. The damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res jpsa /oquitur. Brain damage, which Erlinda sustained is an injury which does not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not happen in the absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube. Moreover, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents, who are the physicians-in-charge. SYLLABUS 1. REMEDIAL LAW; CIVIL PROCEDURE; MOTION FOR RECONSIDERATION; NO DELAY OF FILING IN CASE AT BAR. ~ It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a copy of the decision of the appellate court was not sent to thecounsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we believe that the receipt of the former should be considered in determining the timeliness of the filing of the present petition. Based on this, the petition before us was submitted on time. 2. CIVIL LAW; DOCTRINE OF RES /PSA LOQUITUR, ELUCIDATED. — Res ipsa loquitur is a Latin phrase which literally means ‘the thing or the transaction speaks for itself." The phrase "res jpsa /oquitur’ is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by the defendant's want of care. The doctrine of res jpsa /oquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. it is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res jpsa loquituris applied in conjunction with the doctrine of common knowledge. However, much has been said that res /psa /oquituris not a rule of substantive law and, as such, does not create or constitute an independent or separate ground of liability. Instead, it is considered as merely evidentiary or in the nature of a procedural rule. It is regarded as a mode of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going forward with the proof. Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 1. The accident is of a kind which ordinarily does not occur in the absence of someone's negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. In the above requisites, the fundamental element is the ‘control of the instrumentality” which caused the damage. Such element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it, is applicable, and must establish that the essential elements of the doctrine were present ina particular incident. 3. ID; ID; APPLICATION IN MEDICAL MALPRACTICE. — Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves of such a character as to. justify an inference of negligence as the cause of that harm. The application of res ipsaJoquitur in medical negligence cases presents a question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given inference. Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res psa /oquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquituris applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res jpsa /oquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res psa /oquituris allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, among others. Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res jpsa /oquituris not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res jpsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa /oquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinaryincident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. If there was such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he could 4.1, ID; APPLICABLE IN CASE AT BAR. — We find the doctrine of res jpsa /oquitur appropriate in the case at bar. .. . Brain damage, which Erlinda sustained, is an injury which does not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not happen in the absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents, who are the physicians-in-charge. 5. ID; ID; CONTRIBUTORY NEGLIGENCE. ~ Petitioner Erlinda could not have been guilty of contributory negligence because she was under the influence of anesthetics which rendered her unconscious. Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a practical administration of justice dictates the application of res jpsa /oquitur. 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 jpsa /oquitar. 6. REMEDIAL LAW; EVIDENCE; WITNESS; COMPETENCE; UPHELD IN CASE AT BAR. — Although witness Cruz is not an anesthesiologist, she can very well testify upon matters, on which she is capable of observing such as, the statements and acts of the physician and surgeon, external appearances, and manifest conditions which are observable by any one. This is precisely allowed under the doctrine of res ipsa /oquitur where the testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary for the proof of negligence in non-technical matters or those of which an ordinary person may be expected to have knowledge, or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary. 7. ID; 1D; RULES OF ADMISSIBILITY; TESTIMONIAL EVIDENCE; OPINION OF EXPERT WITNESS; NOT ADMITTED IN CASE AT BAR. — The provision in the rules of evidence regarding expert witnesses states: Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is to testify, either by the study of recognized authorities on the subject or by practical experience. Clearly, Dr. Jamora does not qualify as an expert witness based on the above standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology8. CIVIL LAW; DAMAGES; EXCEPTIONAL NEGLIGENCE AND PROFESSIONAL IRRESPONSIBILITY IN THE MEDICAL FIELD IN CASE AT BAR. — Respondent Dra. Gutierrez’ act of seeing her patient for the first time only an hour before the scheduled operative procedure was therefore, an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physician's centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence. 9. ID. ID; ID. — As the so-called “captain of the ship," it is the surgeon's responsibility to see to it that those under him perform their task in the proper manner. Respondent Dr. Hosaka's negligence can be found in his failure to exercise the proper authority (as the captain’ of the operative team) in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it, does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlindas cholecystectomy, and was in fact over three hours late for the latter's operation. Because of this, he had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professional duties towards his patient. Thus, he shares equal responsibility for the events which resulted in Erlinda's condition. 10. ID; TORTS; PROXIMATE CAUSE; ELUCIDATED. ~ Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred. An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. It is the dominant, moving or producing cause. Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate cause which triggered the chain of events leading to Erlinda’s brain damage and, ultimately, her comatosed condition. 11_ID; EXTRA-CONTRACTUAL OBLIGATIONS; QUASI-DELICTS; EMPLOYER: EMPLOYEE RELATIONSHIP EXISTS BETWEEN HOSPITALS AND CONSULTANTS FOR THE PURPOSE OF ALLOCATING RESPONSIBILITY IN MEDICAL NEGLIGENCE CASES. — Hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. This is particularly true with respondent hospital. After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physician's performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated. In other words,private hospitals, hire, fire and exercise real control over their attending and visiting "consultant" staff. While "consultants" are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patient's condition, the control exercised, the hiring, and the right to terminate consultants all fulfil 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. 12. ID; 1D; 1D; EMPLOYERS LIABLE FOR THE DAMAGES CAUSED BY THEIR EMPLOYEES. ~ The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the former's, responsibility under a relationship of patria potestas. Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family to prevent damage. In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage. In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for Erlinda's condition, 13. ID; DAMAGES; ACTUAL AND TEMPERATE DAMAGES; PROPER IN CASE AT BAR. — The amount of actual damages recoverable in suits arising from negligence should at least reflect the correct minimum cost of proper care, not the cost of the care the family is, usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code on actual or compensatory damages present us with some difficulties. Well settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has duly proved. Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur, are difficult to predict. In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, Up to the time of trial; 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. In other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct phases. As it would not be equitable — and certainly not in the best interests of the administration of justice — for the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awarded —temperate damages are appropriate. The amount given as temperate damages, though to. a certain extent speculative, should take into account the cost of proper care. In the instant case, petitioners were able to provide only homebased nursing care for a comatose Patient who has remained in that condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care. They should not be compelled by dire circumstances to provide substandard care at home without the aid of professionals, for anything less would be grossly inadequate. 14. ID; ID; PROPER MORAL DAMAGES. — The actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioner's condition remains unchanged for the next ten years. We recognized that the victim's actual injury would not even scratch the surface of the resulting moral damage because it would be highly speculative to estimate the amount of emotional and moral pain, psychological damage and injury suffered by the victim or those actually affected by the victim's condition. The husband and the children, all petitioners in this case, will have to live with the day to day uncertainty of the patient's illness, knowing any hope of recovery is close to nil. They have fashioned their daily lives around the nursing care of petitioner, altering their long term goals to take into account their life with a comatose patient. They, not the respondents, are charged with the moral responsibility of the care of the victim. The family's moral injury and suffering in this case is clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate. 15. 1D,; ID; EXEMPLARY DAMAGES AND ATTORNEY'S FEES. — By way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued at 100,000.00 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 physiciaris 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 ina salutary way was fatal to private respondents’ case. DECISION 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 AM.. 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 16,000.00, 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 AM. of June 17, 1985 and while stil 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 AM, 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 iyor (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 retumed to the operating room, the patient told her, "Mindy, inip 1a inip na ako, ikuha mo ako ng ibang Doctor” So, she went out again and told Rogelio about what the patient said (/d., p. 15). Thereafter, she returned to the operating room. At around 10:00 AM,, 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 (Or. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id, p. 21). While talking to Dr. Garcia at around 12:10 PM., 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 PM, 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 (/d,, 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 PM. 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 (Or. 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 aftemoon 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 inthe management and care of Erlinda Ramos. During the trial, both parties presented evidence as to the possible cause of Erlinda’s injury. Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that the damage sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty management of her airway by private respondents during the anesthesia phase. On the other hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage was Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal) After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of petitioners, to wit: After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the aforecited provisions of law and jurisprudence to thecase at bar, this Court finds and so holds that defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very least, negligence in the performance of their duty to plaintiff-patient Erlinda Ramos. On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in not only intubating the patient, but also in not repeating the administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the fact that the patient was inside the operating room for almost three (8) 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 tum, 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 plaintff-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 tured 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. 200K 100 1X. 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 attomey's fees; 3) the sum of 800,000.00 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. ‘$0 ORDERED. ® The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly addressed as “Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for extension of time to file a motion for reconsideration. The motion for reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for extension of time in its Resolution dated 25 July 1995.9 Meanwhile, petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of the decision as early as June 9, 1995, ‘Computation wise, the period to file a Motion for Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was received by the Court of Appeals already on July 4, necessarily, the 15-day period already passed. For that alone, the latter should be denied. Even assuming admissibility of the Motion for Reconsideration, but after considering the Comment/Opposition, the former, for lack of merit, is hereby DENIED ‘SO ORDERED. 10 A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition for certiorar/under Rule 45. The Court granted the motion for extension of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of the resolution of the Court of Appeals within which to submit the petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within the extended period given by the Court.Petitioners assail the decision of the Court of Appeals on the following grounds I IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA, GUTIERREZ, DRA. CALDERON AND DR. JAMORA; IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE ‘THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS; M 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 appellate court was furnished to the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995 It is elementary that when a party is represented by counsel, all notices should be sent to the party's lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a copy of the decision of the appellate court was not sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we believe that the receipt of the former should be considered in determining the timeliness of the filing of the present petition. Based on this, the petition before us was submitted on time. After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical presentation of the discussion we shall first consider the issue on the applicability of the doctrine of res jpsa /oquiturto the instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa loquitur doctrine Res ipsa loquituris a Latin phrase which literally means ‘the thing or the transaction speaks for itself." The phrase "res jpsa /oquitur' 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 jpsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls, the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. 15 It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. 16 Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge. However, much has been said the res /psa /oquitur is not a ruled of substantive law and, as such, does not create or constitute an independent or separate ground of liability. 17 Instead, it is considered as merely evidentiary or in the nature of a procedural rule. 18 It is regarded as a mode of proof, of a mere procedural convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. 19 In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going forward with the proof. 20 Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 1. The accident is of a kind which ordinarily does not occur in the absence of ‘someone's negligence; 2. Itis 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. 27 In the above requisites, the fundamental element is the “control of the instrumentality" which caused the damage. 22 Such element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish that the essential elements of the doctrine were present in a particular incident. 23 Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquiturhas 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.2s The application of res jpsa /oquiturin 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 loquituris 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 jpsa /oquituris 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 jpsa /oquitur 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 loquituris 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, 24 knocking out a tooth while a patient's jaw was under anesthetic for the removal of his tonsils,25 and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, 26 among others. Nevertheless, despite the fact that the scope of res jpsa /oquitur 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 loquituris 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 jpsa /oquiturcan 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 psa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. 40, The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred whichis beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence.41 If there was such extraneous interventions, the doctrine or res jpsa /oquiturmay be utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he could. «2 We find the doctrine of res psa /oquiturappropriate in the case bar. As will hereinafter be explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res /psa /oquitur. 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 Il it is held that a cause of action is stated under the doctrine of res jpsa loquitur. 44 Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda submitted herself for cholecystectomyand 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 cholecystectomyshe suffered irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury which does not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not happen in the absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents, who are the physicians-in-charge. Likewise, petitionerErlinda could not have been guilty of contributory negligence because she was under the influence of anesthetics which rendered her unconscious. Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a practical administration of justice dictates the application of res jpsa /oquitur. 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 psa loquitur. Nonetheless, in holding that res jpsa /oquituris 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 jpsa loquitur coverage. Having in mind the applicability of the res /psa /oquitur 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 «5 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, | 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, | was with the patient, | 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. 0 lumalaki ang tiyan.” 200 10 900K ATTY. PAJARES: Q: From whom did you hear those words "/Jumalaki ang tiyant? ‘A: From Dra. Perfecta Gutierrez 200 10 900K Q. After hearing the phrase "lumalaki ang tiyan’ what did you notice on the person of the patient? A: | notice (sic) some bluish discoloration on the nailbeds of the left hand where | was at. Q: Where was Dr. Orlino Ho[slaka then at that particular time? ‘A: 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? Yes sit Q: What did [s]he do, if any? A [Shhe 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 | saw the patient was placed in trendelenburg position XXX 200200 Q: Do you know the reason why the patient was placed in that trendelenburg position? ‘A:As far as | know, when a patient is in that position, there is a decrease of blood supply to the brain. 46 XXX 200200 The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that: ‘A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part of nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and cannot, intubate. Even on the assumption that she is fully capable of determining whether or not a patient is properly intubated, witness Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated the patient or that she conducted any type of examination to check if the endotracheal tube was in its proper place, and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so clearly suffer from lack of sufficient factual bases. 47 In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in the process of intubation, witness Cruz is not competent to testify on whether or not the intubation as a success. We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the statements and acts of the physician and surgeon, external appearances, and manifest conditions which are observable by any one. 48 This is, precisely allowed under the doctrine of res jpsa /oquitur where the testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary for the proof of negligence in non-technical matters or those of which an ordinary person may be expected to have knowledge, or where the lack of skill or want of care is So obvious as to render expert testimony unnecessary. 49 We take judicial notice of the fact that anesthesia procedures have become so common, that even an ordinary person can tell if it was administered properly. As such, it would not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe, does not require a medical degree to be acceptable. At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and scholarship led to her appointment as Dean of the Capitol Medical Center School of Nursing, was fully capable of determining whether or not the intubation was a success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical Center School of Nursing. 59 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 (ic), you did not immediately see the trachea? DRA. GUTIERREZ: Yes sit : Did you pull away the tube immediately? A: You do not pull the : Did you or did you not? ‘A: did not pull the tube Q: When you said "mahirap yata ito." what were you referring to? ‘A:"Mahirap yata itong ‘intubate" that was the patient. : 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. ss 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 | 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, | usually don't do it except on emergency and on cases that have an abnormalities (sic). 58 However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few minutes before surgery, if at all Elective procedures, on the other hand, are operative procedures that can wait for days, weeks or even months. Hence, in these cases, the anesthesiologist possesses the luxury of time to make a proper assessment, including the time to be at the patient's bedside to do a proper interview and clinical evaluation. There is ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent. Usually, the pre-operative assessment is conducted at least one day before the intended surgery, when the patient is relaxed and cooperative. Erlindas 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 Erlindas 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. Jamoras 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: : 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. : But not in particular when you practice pulmonology? ANo. 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. | 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 | 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. Jamorals 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. Jamoras testimony as an expert in the administration of Thiopental Sodium. The provision in the rules of evidence 62 regarding expert witnesses states: SECTION 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is to testify, either by the study of recognized authorities on the subject or by practical experience. 63 Clearly, Dr. Jamora does not qualify as an expert witness based on the above standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong field, private respondents’ intentionally avoided providing testimony by competent and independent experts in the proper areas. Moreover, private respondents’ theory, that Thiopental Sodium may have produced Erlinda's coma by triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing — some of the more common accompanying signs of an allergic reaction — appears on record. No laboratory data were ever presented to the court. In any case, private respondents themselves admit that Thiopental induced, allergic- mediated bronchospasm happens only very rarely. If courts were to accept private respondents’ hypothesis without supporting medical proof, and against the weight of available evidence, then every anesthetic accident would be an act of God. Evidently, the Thiopentat-allergy theory vigorously asserted by private respondents was a mere afterthought. Such an explanation was advanced in order to absolve them of any and all responsibility for the patient's condition. In view of the evidence at hand, we are inclined to believe petitioners’ stand that it was the faulty intubation which was the proximate cause of Erlinda's comatose condition. Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred. 64 An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. 65 tis 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 Jumalaki 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 surgeons 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 Erlindas cholecystectomy, and was in fact over three hours late for the latter's operation. Because of this, he had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professional duties towards his patient. Thus, he shares equal responsibility for the events which resulted in Erlinda's condition. We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting "consultants,’74 who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent than real. In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for ‘consultant’ slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. 75 This is particularly true with respondent hospital After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physician's performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls, short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated. In other words, private hospitals, hire, fire and exercise real control over their attending and visiting "consultant" staff. While "consultants" are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patient's, condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioner's condition. 76 The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the former's responsibility under a relationship of patria potestas. 77 Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the familyto prevent damage. 78 In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage. In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for Erlinda's condition. Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions, private respondents were unable to rebut the presumption of negligence. Upon these disquisitions we hold that private respondents are solidarily liable for damages under Article 2176 79 of the Civil Code. ‘We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff, ‘subject to its being updated” covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care of the patient estimated at P8,000.00 At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be grossly inadequate to cover the actual costs of home-based care for a comatose individual. The calculated amount was not even arrived at by looking at the actual cost of proper hospice care for the patient. What it reflected were the actual expenses incurred and proved by the petitioners after they were forced to bring home the Patient to avoid mounting hospital bills. And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in the care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum standards of care. In the instant case for instance, Erlinda has to be constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation should be normally made by a dietitian to provide her with the correct daily caloric requirements and vitamin supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead to respiratory complications Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at least reflect the correct minimum cost of proper care, not the cost of the care the family is usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code on actual or compensatory damages present us with some difficulties. Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has duly proved. The Civil Code provides: ARTICLE 2199. Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as hehas duly proved. Such compensation is referred to as actual or compensatory damages. Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur, are difficult to predict. 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; andone 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 ‘Asa result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the full ambulatory functions of her left extremity, even with the use of state of the art prosthetic technology. Well beyond the period of hospitalization (which was paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the process of healing These adjustments entail costs, prosthetic replacements and months ofphysical and occupational rehabilitation and therapy. During her lifetime, the prosthetic devise will have to be replaced and readjusted to changes in the size of her lower limb effected by the biological changes of middle-age, menopause and aging. Assuming she reaches menopause, for example, the prosthetic will have to be adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels observed in the bones of all post-menopausal women. In other words, the damage done to her would not only be permanent and lasting, it would also be permanently changing and adjusting to the physiologic changes which her body would normally undergo through the years. The replacements, changes, and adjustments will require coresponding adjustive physical and ‘occupational therapy. All of these adjustments, it has been documented, are painful 200K 100 1X. 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. #3 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. #4 The husband and the children, all petitioners in this case, will have to live with the day to day uncertainty of the patient's illness, knowing any hope of recovery is close to nil. They have fashioned their daily lives around the nursing care of petitioner, altering their long term goals to take into account their life with a comatose patient. They, not the respondents, are charged with the moral responsibility of the care of the victim. The family's moral injury and suffering in this case is clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate. Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the length and nature of the instant suit we are of the opinion that attorney's fees valued at P100,000.00 are likewise proper. Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life and, they rarely set out to intentionally cause injury or death to their patients. However, intent is immaterial in negligence cases because where negligence exists and is proven, the same automatically gives the injured a right to reparation for the damage caused Established medical procedures and practices, though in constant flux are devisedfor the purpose of preventing complications. A physician's experience with his patients would sometimes tempt him to deviate from established community practices, and he may end a distinguished career using unorthodox methods without incident. However, when failure to follow established procedure results in the evil precisely sought to be averted by observance of the procedure and a nexus is made between the deviation and the injury or damage, the physician would necessarily be called to account for it. In the case at bar, the failure to observe pre-operative assessment protocol which would have influenced the intubation in a salutary way was fatal to private respondents’ case. WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in favor of petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary damages and attorney's fees; and, 5) the costs of the suit, SO ORDERED. Davide, Jr, C.J, Puno, Pardo and Ynares-Santiago, JJ, concur. Footnotes 1. In the United States alone, a great number of people die every year as a result of medical mishaps. The 13 December 1999 issue of TIME MAGAZINE featured an article on medical negligence entitled " Doctors’ Deadly Mistakes’ which is quoted in part: "It is hardly news that medical professionals make mistakes — even dumb, deadly mistakes. What is shocking is how often it happens. Depending on which statistics you believe, the number of Americans killed by medical screw-ups is somewhere between 44,000 and 98,000 every year — the eight leading cause of death even by the more conservative figure, ahead of car crashes, breast cancer and AIDS. More astonishing than the huge numbers themselves, though, is the fact that public health officials had known about the problem for years and hadn't made a concerted effort to do something about it” 2. Cholecystectomy is the surgical excision of the gall bladder. 3. CA Rollo, pp. 129-140. 4, Records, pp. 270-279. 5. Id. at 270-275, 6. Docketed as Civil Case No. Q-46885. 7. Records, pp. 276-278. 8.CA Rollo, p. 166, 9. Id. at 145, 10. Id. at 195. 11. Rollo, p.19. 12. Id. at 91-9813 14 18 16 7 18 19. 20. a 22. 23. 24. 25. 26. 27, 28, 29. 30. a1 32 33, 3 35, 36. 37, 38, 39, 40. 578 Am Jur 2d, 493 (1989). Africa, et al vs. Caltex (Phil), Inc, et al, 16 SCRA 449, 454 (1966). 578 Am Jur 2d, supranote 13 at 499. bid. Id, at 502. bid. Wd. Id. at 503. Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas System, 182 Kan 686, 324 P2d 501; Lamb v. Hartford Accident and Indemnity Co., Primm v. Kansas Power & Light Co,, 173 Kan. 443, 249 P.2d 647. St John's Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166 (1967). 578 Am Jur 2d, supranote 13, at 513. It is the type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. (Garcia-Rueda vs. Pascasio, 278 SCRA 769, 778 [1997)) Voss vs. Bridwel, supra note 21 Tumey vs. Anspaugh, 581 P.2d 1301, 1304 (1978) SOLIS, MEDICAL JURISPRUDENCE, 239 (1988). Voss vs. Bridwell, supra note 21, at 968 citing MoMillen vs. Foncannon, 127 Kan. 573, 274 P.237. Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95 Kan. 802, 149 P. 422, 423, SOLIS, supra note 27, at 239. Voss vs. Bridwell, supra note 21 at 970-971 Amstrong vs. Wallace, 47 P.2d 740 (1935) Thomsen vs. Burgeson, 79 P.2d 136 (1938) Griffin vs. Norman, 192 NYS 322 (1922). Brown vs. Shortilledge, 277 P.134 (1929), ‘Meadows vs. Patterson, 109 S.W. 2.417 (1937). Voss vs. Bridwell, supra note 21, at 969 Id. at 968. Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959). Voss vs. Bridwell, supra note 21, at 968,41. Sanders vs. Smith, 27 So. 2d 889, 893 (1946). 42. Ibid. 43, Voss vs. Bridwell, supranote 21 44, Id. at 971 45. It is the method of intubating a patient through the oral cavity. Under this procedure, after the patient has been preoxygenated and paralyzed and is no longer breathing on his ‘own, the anesthetist inserts an instrument called a laryngoscope into the patients oral pharynx. The patient's neck is hyperextended, that is, bent back as far as possible so that the anesthetist can see or ‘visualize’ the patient's epiglottis and vocal cords. The anesthetist will then thread the endotracheal tube between the patient's vocal cords into the trachea, and then hook the tube to the breathing bag and anesthetic machine. 46. TSN, January 13, 1988, pp. 16-20. 47. CA Rollo, pp. 134-135. 48, Stockham vs. Hall, supra note 29. 49. 61 Am Jur 2d, 513 (1989). 50. TSN, January 13, 1988, p. 3. 51. TSN, November 15, 1990, p. 11 52. TSN, October 9, 1990, p. 13. 53. STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994) 54. ibid. 58. Id. at 105 (Underscoring supplied) 56. Id. at 106. 57. I. 58. TSN, November 15, 1990, p. 6 59. Constriction of the air passages of the lung by spasmodic contraction of the bronchial ‘muscles (as in asthma). 60. Permanent damage to the brain caused by inadequate oxygenation. 61. TSN, February 28, 1991, pp. 10-11 62. Rule 130, RULES OF COURT. 63. 61 Am Jur 2d, supra note 49, 516 64, BLACK'S LAW DICTIONARY (FIFTH EDITION), 1103 (1979) 65. Ibid. 66. It is a bluish coloration of the skin or mucous membranes caused by lack of oxygen or abnormal hemoglobin in the blood. 67. TSN, March 27, 1990, p. 22.68, 69 70. n n. 73. 74. 15. 16. 71. 78. 79. 80. 81 82. 83. a4. Records, p. 274 FINUCAINE, AIRWAY MANAGEMENT, 82 (1990), bid. ‘Id, The book provides a thorough discussion on the management of difficult intubations, Wd. Under this doctrine, the surgeon is likened to a ship captain who must not only be responsible for the safety of the crew but also of the passengers of the vessel. The head surgeon is made responsible for everything that goes wrong within the four corners of the operating room. It enunciates the liability of the surgeon not only for the wrongful acts of those who are under his physical control but also those wherein he has extension of control ‘The term “consultant” is loosely used by hospitals to distinguish their attending and visiting physicians from the residents, who are also physicians. In most hospitals abroad, the term visiting or attending physician, not consultant, is used These requirements are in fact found in the standard application forms for visiting and attending physicians of respondent hospital. The hospital's control over respondent physicians is all the more significant when one considers the fact that it controls everything which occurs in an operating room, through its nursing supervisors and charge nurses. No operations can be undertaken without the hospital's direct or indirect consent. \VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993) ‘Art. 2180 of the Civil Code provides: Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. ‘Art, 2224, CIVIL CODE. ‘Should petitioner remain in the same condition for another ten years, the amount awarded in the form of temperate damages would in fact, be inadequate 253 SCRA 303 (1996) Id, at 327-328. Id, at 328.‘SECOND DIVISION [G.R. No. 191018. January 25, 2016} CARLOS BORROMEO, petitioner, vs. FAMILY CARE HOSPITAL, INC. and RAMON S. INSO, M.D., respondents. DECISION BRION, J: Carlos Borromeo lost his wife Lillian when she died after undergoing a routine appendectomy. The hospital and the attending surgeon submit that Lillian bled to death due to a rare, life-threatening condition that prevented her blood from clotting normally. Carlos believes, however, that the hospital and the surgeon were simply negligent in the care of his late wife. On January 22, 2010, the Court of Appeals (CA) in CA-G.R. CV No. 89096 2 dismissed Carlos’ complaint and thus reversed the April 10, 2007 decision of the Regional Trial Court (RTC)inCivil Case No. 2000-603-MK 2 which found the respondents liable for medical negligence. The present petition for review on certiorari seeks to reverse the CA’s January 22, 2010 decision. ANTECEDENTS The petitioner, Carlos Borromeo, was the husband of the late Lilian V. Borromeo (Lilian). Lilian was a patient of the respondent Family Care Hospital, Inc. (Family Care) under the care of respondent Dr. Ramon Inso (Dr. inso) On July 13, 1999, the petitioner brought his wife to the Family Care Hospital because she had been complaining of acute pain at the lower stomach area and fever for two days. She was admitted at the hospital and placed under the care of Dr. Inso. Dr. Inso suspected that Lilian might be suffering from acute appendicitis. However, there was insufficient data to rule out other possible causes and to proceed with an appendectomy. Thus, he ordered Lilian’s confinement for testing and evaluation. Over the next 48 hours, Lilian underwent multiple tests such as complete blood count, urinalysis, stool exam, pelvic ultrasound, and a pregnancy test. However, the tests were not conclusive enough to confirm that she had appendicitis. Meanwhile, Liliaris condition did not improve. She suffered from spiking fever and her abdominal pain worsened. The increasing tenderness of her stomach, which was previously confined to her lower right side, had also extended to her lower left side Lilian abruptly developed an acute surgical abdomen, On July 15, 1999, Dr. Inso decided to conduct an exploratory laparotomy on Lilian because of the findings on her abdomen and his fear that she might have a ruptured appendix. Exploratory laparotomy is a surgical procedure involving a large incision on the abdominal wall that would enable Dr. Inso to examine the abdominal cavity and identify the cause of Lilianis symptoms. After explaining the situation, Dr. Inso obtained the patient's consent to the laparotomy.‘At around 3:45 PM, Lilian was brought to the operating room where Dr. Inso conducted the surgery. During the operation, Dr. Inso confirmed that Lilian was suffering from acute appendicitis. He proceeded to remove her appendix which was already infected and congested with pus The operation was successful. Lilian’s appearance and vital signs improved. At around 7:30 P.M, Lilian was brought back to her private room from the recovery room. ‘At around 1:30 AM. on July 16, 1999, roughly six hours after Lilian was brought back to her room, Dr. Inso was informed that her blood pressure was low. After assessing her condition, he ordered the infusion of more intravenous (/V) fluids which somehow raised her blood pressure. Despite the late hour, Dr. Inso remained in the hospital to monitor Liliaris condition. Subsequently, a nurse informed him that Lilian was becoming restless. Dr. Inso immediately went to Lilian and saw that she was quite pale. He immediately requested a blood transfusion. Lilian did not respond to the blood transfusion even after receiving two 500 cc- units of blood. Various drugs, such as adrenaline or epinephrine, were administered. Eventually, an endotracheal tube connected to an oxygen tank was inserted into Lilian to ensure her airway was clear and to compensate for the lack of circulating ‘oxygen in her body from the loss of red blood cells. Nevertheless, her condition continued to deteriorate. Dr. Inso observed that Lilian was developing petechiaein various parts of her body. Petechiae are small bruises caused by bleeding under the skin whose presence indicates a blood-coagulation problem — a defect in the ability of blood to clot. At this point, Dr. Inso suspected that Lilian had Disseminated Intravascular Coagulation (DIC), a blood disorder characterized by bleeding in many parts of her body caused by the ‘consumption or the loss of the clotting factors in the blood. However, Dr. Inso did not have the luxury to conduct further tests because the immediate need was to resuscitate Lilian Dr. Inso and the nurses performed cardiopulmonary resuscitation (CPA) on Lilian. Dr. Inso also informed her family that there may be a need to re-operate on her, but she would have to be put in an Intensive Care Unit (/CU). Unfortunately, Family Care did not have an ICU because it was only a secondary hospital and was not required by the Department of Health to have one. Dr. Inso informed the petitioner that Lilian would have to be transferred to another hospital ‘At around 3:30 A.M. Dr. Inso personally called the Perpetual Help Medical Center to arrange Lilian's transfer, but the latter had no available bed in its ICU. Dr. Inso then personally coordinated with the Muntinlupa Medical Center (MMC) which had an available bed. ‘At around 4:00 A.M, Lilian was taken to the MMC by ambulance accompanied by the resident doctor on duty and a nurse. Dr. Inso followed closely behind in his own vehicle. Upon reaching the MMC, a medical team was on hand to resuscitate Lilian. A nasogastric tube (NGT) was inserted and IV fluids were immediately administered to her. Dr. Inso asked for a plasma expander. Unfortunately, at around 10:00 AM,, Lilian passed away despite efforts to resuscitate her. ‘At the request of the petitioner, Lilian's body was autopsied at the PhilippineNational Police (PNP) Camp Crame Crime Laboratory. Dr. Emmanuel Reyes (Dr. Reyes), the medico-legal assigned to the laboratory, conducted the autopsy. Dr. Reyes ‘summarized his notable findings as | opened up the body and inside the abdominal cavity which you call peritoneal cavity there were 3,000 mi of clot and unclot blood accumulated thereat. The peritoneal cavity was also free from any adhesion. Then, | opened up the head and the brain revealed paper white in color and the heart revealed abundant petechial hemorrhages from the surface and it was normal. The valvular leaflets were soft and pliable, and of course, the normal color is reddish brown as noted. And the coronary arteries which supply the heart were normal and unremarkable. Next, the lungs appears /sic/hemorrhagic. That was the right lung while the left lung was collapsed and paled. For the intestines, | noted throughout the entire lengths of the small and large intestine were hemorrhagic areas. Noted absent is the appendix at the ileo-colic area but there were continuous suture repair done thereat. However, there was a 0.5 x 0.5 cm ‘opening or left unrepaired at that time. There was an opening on that repair site. Meaning it was not repaired. There were also at that time clot and unclot blood found adherent thereon. The liver and the rest of the visceral organs were noted exhibit /sic] some degree of pallor but were otherwise normal. The stomach contains one glassful about 400 to 500 ml. 3 Dr. Reyes concluded that the cause of Liliar's death was hemorrhage due to bleeding petechial blood vessels: internal bleeding. He further concluded that the internal bleeding was caused by the 0.5 x 0.5 om opening in the repair site. He opined that the bleeding could have been avoided if the site was repaired with double suturing instead of the single continuous suture repair that he found. Based on the autopsy, the petitioner filed a complaint for damages against Family Care and against Dr. Inso for medical negligence. During the trial, the petitioner presented Dr. Reyes as his expert witness. Dr. Reyes testified as to his findings during the autopsy and his opinion that Liliaris death could have been avoided if Dr. Inso had repaired the site with double suture rather than asingle suture, However, Dr. Reyes admitted that he had very little experience in the field of pathology and his only experience was an on-the-job training at the V. Luna Hospital where he was only on observer status. He further admitted that he had no experience in appendicitis or appendectomy and that Liliar's case was his first autopsy involving a death from appendectomy. Moreover, Dr. Reyes admitted that he was not intelligently guided during the autopsy because he was not furnished with clinical, physical, gross, histopath, and laboratory information that were important for an accurate conclusion. Dr. Reyes also admitted that an appendical stump is initially swollen when sutured and that the stitches may loosen during the healing process when the initial swelling subside. In their defense, Dr. Inso and Family Care presented Dr. Inso, and expert witnesses Dr. Celso Ramos (Dr. Ramos) and Dr. Herminio Hernandez (Dr. Hernandez). Dr. Ramos is a practicing pathologist with over 20 years of experience. He is an associate professor at the Department of Surgery of the Fatima Medical Center, the Manila Central University, and the Perpetual Help Medical Center. He is a Fellow of the Philippine College of Surgeons, a Diplomate of the Philippine Board of Surgery, and a Fellow of the Philippine Society of General Surgeons.Dr. Ramos discredited Dr. Reyes’ theory that the 0.5 x 0.5 cm opening at the repair site caused Liliar's internal bleeding. According to Dr. Ramos, appendical vessels measure only 0.1 to 0.15 om, a claim that was not refuted by the petitioner. If the 0.5 x 0.5 om opening had caused Lilian's hemorrhage, she would not have survived for over 16 hours; she would have died immediately, within 20 to 30 minutes, after surgery. Dr. Ramos submitted that the cause of Lilian's death was hemorrhage due to DIC, a blood disorder that leads to the failure of the blood to coagulate. Dr. Ramos considered the abundant petechial hemorrhage in the myocardic sections and the hemorrhagic right lung; the multiple bleeding points indicate that Lilian was afflicted with DIC. Meanwhile, Dr. Hernandez is a general surgeon and a hospital administrator who had been practicing surgery for twenty years as of the date of his testimony. Dr. Hernandez testified that Lilian's death could not be attributed to the alleged wrong suturing. He submitted that the presence of blood in the lungs, in the stomach, and in the entire length of the bowels cannot be reconciled with Dr. Reyes' theory that the hemorrhage resulted from a single-sutured appendix. Dr. Hernandez testified that Lilian had uncontrollable bleeding in the microcirculation as a result of DIC. In DIC, blood oozes from very small blood vessels because of a problem in the clotting factors of the blood vessels. The microcirculation is too small to be seen by the naked eye; the red cell is even smaller than the tip of a needle. Therefore, the alleged wrong suturing could not have caused the amount of hemorrhaging that caused Lilian's death. Dr. Hernandez further testified that the procedure that Dr. Inso performed was consistent with the usual surgical procedure and he would not have done anything differently. 4 The petitioner presented Dr. Rudyard Avila Ill (Dr. Avila) as a rebuttal witness. Dr. Avila, also a lawyer, was presented as an expert in medical jurisprudence. Dr. Avila testified that between Dr. Reyes who autopsied the patient and Dr. Ramos whose findings were based on medical records, greater weight should be given to Dr. Reyes’ testimony. On April 10, 2007, the RTC rendered its decision awarding the petitioner P88,077.50 as compensatory damages; PS50,000.00 as death indemnity; P3,607,910.30 as loss of earnings; P50,000.00 as moral damages; P30,000.00 as exemplary damages; P50,000.00 as attorney's fees, and the costs of the suit The RTC relied on Dr. Avila's opinion and gave more weight to Dr. Reyes’ findings regarding the cause of Liliaris death. It held that Dr. Inso was negligent in using a single suture on the repair site causing Liliar's death by internal hemorrhage. It applied the doctrine of res ipsa loquitur, holding that a patient's death does not ordinarily occur during an appendectomy. The respondents elevated the case to the CA and the appeal was docketed as CA-G.R. CV No. 89096. On January 22, 2010, the CA reversed the RTC’s decision and dismissed the complaint. The CA gave greater weight to the testimonies of Dr. Hernandez and Dr. Ramos over the findings of Dr. Reyes because the latter was not an expert in pathology, appendectomy, nor in surgery. It disregarded Dr. Avilas opinion because the basic premise of his testimony was that the doctor who conducted the autopsy is a pathologist of equal or of greater expertise than Dr. Ramos or Dr. Hernandez.The CA held that there was no causal connection between the alleged omission of Dr. Inso to use a double suture and the cause of Liliaris death. It also found that Dr. Inso did, in fact, use a double suture ligation with a third silk reinforcement ligation on the repair site which, as Dr. Reyes admitted on cross-examination, loosened up after the initial swelling of the stump subsided. The CA denied the applicability of the doctrine of res ipsa /oquitur because the element of causation between the instrumentality under the control and management of Dr. Inso and the injury that caused Lilian's death was absent; the respondents sufficiently established that the cause of Lilian’s death was DIC. On March 18, 2010, the petitioner filed the present petition for review on certiorari. THE PETITION The petitioner argues: (1) that Dr. Inso and Family Care were negligent in caring for Lilian before, during, and after her appendectomy and were responsible for her death; and (2) that the doctrine of res jpsa /oquituris applicable to this case. In their Comment, the respondents counter: (1) that the issues raised by the petitioner are not pure questions of law; (2) that they exercised utmost care and diligence in the treatment of Lilian; (3) that Dr. inso did not deviate from the standard of care observed under similar circumstances by other members of the profession in good standing; (4) that res jpsa /oquituris not applicable because direct evidence as to the cause of Lilian's death and the presence/absence of negligence is available; and (5) that doctors are not guarantors of care and cannot be held liable for the death of their patients when they exercised diligence and did everything to save the patient. OUR RULING The petition involves factual questions Under Section 1 of Rule 45, a petition for review on certiorari shall only raise questions of law. The Supreme Court is not a trier of facts and it is not our function to analyze and weigh evidence that the lower courts had already passed upon, The factual findings of the Court of Appeals are, as a general rule, conclusive upon this Court. However, jurisprudence has also carved out recognized exceptions 5 to this rule, to wit: (1) when the findings are grounded entirely on speculation, surmises, or conjectures; 6 (2) when the inference made is manifestly mistaken, absurd, or impossible; 7 (3) when there is grave abuse of discretion; # (4) when the judgment is based on a misapprehension of facts; 9 (5) when the findings of facts are conflicting; 10 (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; 11 (7) when the findings are contrary to those of the trial court's; 12 (8) when the findings are conclusions without citation of specific evidence on which they are based; 13 (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; 14 (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; 15 and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. 16 Considering that the CA's findings with respect to the cause of Lilian's death contradict those of the RTC, this case falls under one of the exceptions. The Court willthus give due course to the petition to dispel any perception that we denied the petitioner justice The requisites of establishing medical malpractice Whoever alleges a fact has the burden of proving it. This is a basic legal principle that equally applies to civil and criminal cases. In a medical malpractice case, the plaintiff has the duty of proving its elements, namely: (1) a duty of the defendant to his patient; (2) the defendant's breach of this duty; (3) injury to the patient; and (4) proximate causation between the breach and the injury suffered. 17 In civil cases, the plaintiff must prove these elements by a preponderance of evidence. ‘A medical professional has the duty to observe the standard of care and exercise the degree of skill, knowledge, and training ordinarily expected of other similarly trained medical professionals acting under the same circumstances. 18 A breach of the accepted standard of care constitutes negligence or malpractice and renders the defendant liable for the resulting injury to his patient. 19 The standard is based on the norm observed by other reasonably competent members of the profession practicing the same field of medicine. 20 Because medical malpractice cases are often highly technical, expert testimony is usually essential to establish: (1) the standard of care that the defendant was bound to observe under the circumstances; (2) that the defendant's conduct fell below the acceptable standard; and (3) that the defendant's failure to observe the industry standard caused injury to his patient. 21 The expert witness must be a similarly trained and experienced physician. Thus, a pulmonologist is not qualified to testify as to the standard of care required of an anesthesiologist 22 and an autopsy expert is not qualified to testify as a specialist in infectious diseases. 23 The petitioner failed to present an expert witness. In ruling against the respondents, the RTC relied on the findings of Dr. Reyes in the light of Dr. Avilas opinion that the former's testimony should be given greater weight than the findings of Dr. Ramos and Dr. Hernandez. On the other hand, the CA did not consider Dr. Reyes or Dr. Avila as expert witnesses and disregarded their testimonies in favor of Dr. Ramos and Dr. Hernandez. The basic issue, therefore, is whose testimonies should carry greater weight? We join and affirm the ruling of the CA. Other than their conclusion on the culpability of the respondents, the CA and the RTC have similar factual findings. The RTC ruled against the respondents based primarily on the following testimony of Dr. Reyes. Witness: Well, if | remember right during my residency in my extensive training, during the operation of the appendix, your Honor, it should really be sutured twice which we call double. Court What would be the result if there is only single? Witness:We cannot guarranty /sic] the bleeding of the sutured blood vessels, your Honor. Court So, the bleeding of the patient was caused by the single suture? Witness: It is possible. 24 Dr. Reyes testified that he graduated from the Manila Central University (MCU) College of Medicine and passed the medical board exams in 1994. 25 He established his personal practice at his house clinic before being accepted as an on-the-job trainee in the Department of Pathology at the V. Luna Hospital in 1994. In January 1996, he joined the PNP Medico-Legal Division and was assigned to the Crime Laboratory in ‘Camp Crame. He currently heads the Southern Police District Medico-Legal division. 26 His primary duties are to examine victims of violent crimes and to conduct traumatic autopsies to determine the cause of death. ‘After having conducted over a thousand traumatic autopsies, Dr. Reyes can be considered an expert in traumatic autopsies or autopsies involving violent deaths. However, his expertise in traumatic autopsies does not necessarily make him an expert in clinical and pathological autopsies or in surgery. Moreover, Dr. Reyes cross-examination reveals that he was less than candid about his qualifications during his initial testimony: Atty. Castro: Dr. Reyes, you mentioned during your direct testimony last March 5, 2002 that you graduated in March of 1994, is that correct? Witness: Yes, sit Atty. Castro: You were asked by Atty. Fajardo, the counsel for the plaintiff, when did you finish your medical works, and you answered the following year of your graduation which was in 19947 Witness: Not in 1994, it was in 1984, sir. Atty. Castro: And after you graduated Mr. Witness, were there further study that you undergo after graduation? (sic) Witness: It was during my service only at the police organization that | was given the chance to attend the training, one year course. Atty. Castro: Did you call that what you call a post graduate internship? Witness: Residency. Atty. Castro:Since you call that a post graduate, you were not undergo post graduate? sic] Witness: I did Atty. Castro: Where did you undergo a post graduate internship? Witness: Before | took the board examination in the year 1984, sit. Atty. Castro: That was where? Witness: MCU Hospital, sir. Atty. Castro: After the post graduate intemship that was the time you took the board examination? Witness: Yes, sit Atty. Castro: ‘And I supposed that you did it for the first take? Witness: Yes, sit Atty. Castro: ‘Are you sure of that? Witness: Yes, sit Atty. Castro: ‘After you took the board examination, did you pursue any study? Witness: During that time, no sir. Atty. Castro: You also testified during the last hearing that ‘page 6 of March 5, 2002, answer of the witness: then | was accepted as on the job training at the V. Luna Hospital at the Department of Pathologist in 1994”, could you explain briefly al of this Mr. witness? Witness: | was given an order that | could attend the training only as a civilian not as a member of the AFP because at that time they were already in the process of discharging civilian from undergoing training, Atty. Castro: So in the Department of Pathology, what were you assigned to?Witness: Only as an observer status. Atty. Castro: So you only observed. Witness: Yes, sit Atty. Castro: ‘And on the same date during your direct testimony on March 5, 2002, part of which reads ‘well if | remember right during my residency in my extensive training during the operation of the appendix’ what do you mean by that Mr. witness? Witness: | was referring to my internship, sir. Atty. Castro: So this isnot a residency tr Witness: ing? No, sir. Atty. Castro: This is not a specialty training? Witness: No, sir. Atty. Castro: This was the time the year before you took the board examination? Witness: That's right, sir. Yes, sir. Atty. Castro: You werenot then a license[d] doctor? Witness: No, sir. Atty. Castro: ‘And you also mentioned during the last hearing shown by page 8 of the same transcript of the stenographic notes, dated March 5, 2002 and | quote "and that is your residence assignment?’, and you answered "yes, si” What was the meaning of your answer? What do you mean when you say yes, sir? 20K 2006 10 Witness: Okay, | stayed at the barracks of the Southern Police District Fort Bonifacio. Atty. Castro:So this is not referring to any kind of training? Witness: No, sir. Atty. Castro: This is not in anyway related to appendicitis? Witness: No, sir. 27 ‘Atty. Reyes appears to have inflated his qualifications during his direct testimony. First, his ‘extensive training during [his] residency’ was neither extensive actual training, nor part of medical residency. His assignment to the V. Luna Hospital was not as an on- the-job trainee but as a mere observer. This assignment was also before he was actually licensed as a doctor. Dr. Reyes also loosely used the terms "residence" and “residency’ — terms that carry a technical meaning with respect to medical practice — during his initial testimony 28 to refer to (1) his physical place of dwelling and (2) his internship before taking the medical board exams. This misled the trial court into believing that he was more qualified to give his opinion on the matter than he actually was. Perhaps nothing is more telling about Dr. Reyes’ lack of expertise in the subject matter than the petitioner's counsel's own admission during Dr. Reyes’ cross examination. Atty. Castro: How long were you assigned to observe with the Department of Pathology? Witness: Only 6 months, si. Atty. Castro: During your studies in the medical school, Mr. Witness, do you recall attending or having participated or /sic] what you call motivity mortality complex? Atty. Fajardo: Your honor, what is the materiality? Atty. Castro: That is according to his background, your honor. This is a procedure which could more or less measure his knowledge in autopsy proceedings when he was in medical school and compared to what he is actually doing now. Atty. Fajardo: The witness is not an expert witness, your honor. Atty. Castro: He is being presented as an expert witness, your honor. 29 When Atty. Castro attempted to probe Dr. Reyes about his knowledge on the subject of medical or pathological autopsies, Dr. Fajardo objected on the ground that Dr. Reyes was not an expert in the field. His testimony was offered to prove that Dr. Inso was negligent during the surgery without necessarily offering him as an expertwitness. Atty. Fajardo The purpose of this witness is to establish that there was negligence on the surgical operation of the appendix or in the conduct of the appendectomy by the defendant doctor on the deceased Lilian Villaran Borromeo. 30 Dr. Reyes is not an expert witness who could prove Dr. Inso's alleged negligence. His testimony could not have established the standard of care that Dr. Inso was expected to observe nor assessed Dr. Inso's failure to observe this standard. His testimony cannot be relied upon to determine if Dr. Inso committed errors during the operation, the severity of these errors, their impact on Lilian’s probability of survival, and the existence of other diseases/conditions that might or might not have caused or contributed to Lilian's death. The testimony of Dr. Avila also has no probative value in determining whether Dr. Inso was at fault. Dr. Avila testified in his capacity as an expert in medical jurisprudence, not as an expert in medicine, surgery, or pathology. His testimony fails to shed any light onthe actual cause of Lilian’s death. On the other hand, the respondents presented testimonies from Dr. Inso himself and from two expert witnesses in pathology and surgery. Dr. Ramos graduated from the Far Eastern University, Nicanor Reyes Medical Foundation, in 1975. He took up his post-graduate internship at the Quezon Memorial Hospital in Lucena City, before taking the board exams. After obtaining his professional license, he underwent residency training in pathology at the Jose R. Reyes Memorial Center from 1977 to 1980. He passed the examination in Anatomic, Clinical, and Physical Pathology in 1980 and was inducted in 1981. He also took the examination in anatomic pathology in 1981 and was inducted in 1982. 31 ‘At the time of his testimony, Dr. Ramos was an associate professor in pathology at the Perpetual Help Medical School in Bifian, Laguna, and at the De La Salle University in Dasmarifias, Cavite. He was the head of the Batangas General Hospital Teaching and Training Hospital where he also headed the Pathology Department. He also headed the Perpetual Help General Hospital Pathology department. 32 Meanwhile, Dr. Hernandez at that time was a General Surgeon with 27 years of experience as a General Practitioner and 20 years of experience as a General Surgeon. He obtained his medical degree from the University of Santo Tomas before undergoing five years of residency training as a surgeon at the Veterans Memorial Center hospital. He was certified as a surgeon in 1985. He also holds a master's degree in Hospital ‘Administration from the Ateneo de Manila University. 33 He was a practicing surgeon at the: St. Luke's Medical Center, Fatima Medical Center, Unciano Medical Center in Antipolo, Manila East Medical Center of Taytay, and Perpetual Help Medical Center in Bifian. 34 He was also an associate professor at the Department of Surgery at the Fatima Medical Center, the Manila Central University, and the Perpetual Help Medical Center. He also chaired the Department of Surgery at the Fatima Medical Center. 35 Dr. Hernandez is a Fellow of the American College of Surgeons, the Philippine College of Surgeons, and the Philippine Society of General Surgeons. He is a Diplomate of the Philippine Board of Surgery and a member of the Philippine Medical Association and the Antipolo City Medical Society. 36Dr. Hernandez affirmed that Dr. Inso did not deviate from the usual surgical procedure. 37 Both experts agreed that Lilian could not have died from bleeding of the appendical vessel. They identified Lilians cause of death as massive blood loss resulting from DIC. To our mind, the testimonies of expert witnesses Dr. Hernandez and Dr. Ramos carry far greater weight than that of Dr. Reyes. The petitioner's failure to present expert witnesses resulted in his failure to prove the respondents’ negligence. The preponderance of evidence clearly tilts in favor of the respondents. Res ipsa loquitur is not applicable when the failure to observe due care is not immediately apparent to the layman. The petitioner cannot invoke the doctrine of res ipsa /oquitur to shift the burden of evidence onto the respondent. Res psa /oquitur, literally, the thing speaks for itself,” is a rule of evidence that presumes negligence from the very nature of the accident itself using common human knowledge ot experience. The application of this rule requires: (1) that the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) that the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence; and (3) that the injury suffered must not have been due to any voluntary action or contribution from the injured person. 38 The concurrence of these elements creates a presumption of negligence that, if unrebutted, overcomes the plaintiff's burden of proof. This doctrine is used in conjunction with the doctrine of common knowledge. We have applied this doctrine in the following cases involving medical practitioners a. Where a patient who was scheduled for a cholecystectomy (removal of gall stones) but was otherwise healthy suffered irreparable brain damage after being administered anesthesia prior to the operation. 39 b. Where after giving birth, a woman woke up with a gaping burn wound close to her left armpit; 40 c. The removal of the wrong body part during the operation; and Where an operating surgeon left a foreign object (ie, rubber gloves) inside the body of the patient. 41 The rule is not applicable in cases such as the present one where the defendant's, alleged failure to observe due care is not immediately apparent to a layman. 42 These instances require expert opinion to establish the culpability of the defendant doctor. It, is also not applicable to cases where the actual cause of the injury had been identified orestablished. 43 While this Court sympathizes with the petitioner's loss, the petitioner failed to present sufficient convincing evidence to establish: (1) the standard of care expected of the respondent and (2) the fact that Dr. Inso fell short of this expected standard Considering further that the respondents established that the cause of Lilian's uncontrollable bleeding (and, ultimately, her death) was a medical disorder — Disseminated Intravascular Coagulation — we find no reversible errors in the CA's dismissal of the complaint on appeal. WHEREFORE, we hereby DENY the petition for lack of merit. No costsSO ORDERED. Carpio, Del Castillo, Mendoza and Leonen, JJ, concur. Footnotes 1. Penned by Associate Justice Isaias Dicdican and concurred in by Associate Justices Romeo F. Barza and Antonio L. Villamor, roll, pp. 9:32, 2. Marikina City, Branch 273 through Presiding Judge Manuel S. Quimbo. 3, TSN dated March 5, 2002, p. 14, quoted in the RTC Decision; see rollo, pp. 143-144. 4, TSN dated November 19, 2003, pp. 27, 29 and 36. 5. New City Builders, Inc. v. NLRC, 499 Phil. 207, 212-213 (2008), citing Insular Life Assurance Company, Ltd. v. CA 472 Phil. 7 (2004). 6. Joaquin v. Navarro, 93 Phil. 257-270 (1953) 7. DeLuna v. Linatoc, 74 Phil. 15 (1942) 8, Buyco v. People, 95 Phil. 453 (1954) 9. Cruz v. Sosing, 94 Phil. 26 (1953) 10. Casica v. Villaseca, 101 Phil. 1205 (1957). 11. Lim Yhi Luya v. Court of Appeals, G.R. No. L-40258, September 11, 1980, 99 SCRA 668- 669, 12. Sacay v. Sandiganbayan, G.R. No. L-66497-98, July 10, 1986, 142 SCRA 593. 13. Universal Motors v. Court of Appeals, G.R. No. L-47432, January 27, 1992, 205 SCRA 448, 14, Alsua-Betts v. Court of Appeals, G.R. No. L-46430-31, July 30, 1979, 92 SCRA 332. 15. Medina v. Asistio, G.R. No. 75450, November 8, 1990, 191 SCRA 218 16. Abellana v. Dosdos, 121 Phil. 241 (1965). 17. Garcia-Rueda v. Pascasio, 344 Phil. 323, 331-332 (1997); Sps. Flores v. Sps. Pineda, 591 Phil. 699, 706 (2008); Reyes v. Sisters of Mercy Hospital, 396 Phil. 87, 95-96 (2000). 18. Garcia-Rueda v. Pascasio, supra note 17, at 332; Dr. Cruz v. CA, 346 Phil. 872, 883-884 (1997); Reyes v. Sisters of Mercy Hospital, supra note 17, at 104. 19. Sps. Flores v. Sps. Pineda, supra note 17. 20. Dr Guz v. CA supra note 18, at 884; Cabugao v. People of the Philippines, G.R. No. 163879, July 30, 2014, 731 SCRA 214, 234. 21. Dr. Cruz v. CA, supra note 18, at 885. 22. Ramos v. CA,378 Phil. 1198, 1236 (1999). 23. Reyes v. Sisters of Mercy Hospital, supra note 17. 24, TSN dated March 5, 2002, pp. 22-23 (Direct Examination of Dr. Emmanuel Reyes) 25. Cross Examination, TSN dated March 19, 2002, p. 3.26. 27, 28, 29 30. a1 32 33, 3 35, 36. 37, 38, 39, 40. a 42, 43, TSN dated March 5, 2002, pp. 3-11 (Direct Examination of Dr. Emmanuel Reyes). Cross Examination of Dr. Reyes, TSN dated March 19, 2002, pp. 4-11 See Direct Examination of Dr. Reyes, TSN dated March 5, 2002, pp. 8 and 22. Cross Examination of Dr. Reyes, TSN dated March 19, 2002, pp. 30-31 Direct Examination of Dr. Reyes, TSN dated March 5, 2002, p. 4 Direct Examination of Dr. Ramos, TSN dated June 6, 2003, p. 13, Id, at 14, Direct Examination of Dr. Hernandez, TSN dated November 19, 2003, pp. 5-10. Id. at 9 id, at 10, id, at 11 Id, at 27,29 and 36, Malayan Insurance Co. v. Alberto, G.R. No. 194320, February 1, 2012, 664 SCRA 791, 803- 804, Ramos v. CA, supra note 22. Dr. Cantre v. Spouses Go, 550 Phil. 637 (2007) Batiquin v. Court of Appeals, 327 Phil. 965-971 (1996) Reyes v. Sisters of Mercy Hospital, supranote 17, at 98. See Professional Services, Inc. v. Agana, 542 Phil. 464, 484 (2007).‘SECOND DIVISION [G.R.No. 171127. March 11,2015] NOEL CASUMPANG, RUBY SANGA-MIRANDA and SAN JUAN DE DIOS HOSPITAL, petitioners, vs. NELSON CORTEJO, respondent. [G.R.No. 171217. March 11,2015] DRA. RUBY SANGA-MIRANDA, petitioner, vs. NELSON CORTEJO, respondent. [G.R.No. 171228, March 11,2015] SAN JUAN DE DIOS HOSPITAL, petitioner, vs. NELSON CORTEJO, respondent. DECISION BRION, J. We resolve the three (3) consolidated petitions for review on certiorari 1 involving medical negligence, commonly assailing the October 29, 2004 decision 2 and the January 12, 2006 resolution 3 of the Court of Appeals (CA) in CA-G.R. CV No. 56400. This CA decision affirmed en toto the ruling of the Regional Trial Court (R7Q), Branch 134, Makati City. The RTC awarded Nelson Cortejo (respondent) damages in the total amount of 595,000.00, for the wrongful death of his son allegedly due to the medical negligence of the petitioning doctors and the hospital. Factual Antecedents The common factual antecedents are briefly summarized below. On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo brought her 11- year old son, Edmer Cortejo (Eder), to the Emergency Room of the San Juan de Dios Hospital (SDH) because of difficulty in breathing, chest pain, stomach pain, and fever. 4 Dr. Ramoncito Livelo (Or. Livelo) initially attended to and examined Edmer. In her testimony, Mrs. Cortejo narrated that in the morning of April 20, 1988, Edmer had developed a slight fever that lasted for one day; a few hours upon discovery, she brought Edmer to their family doctor; and two hours after administering medications, Edmer's fever had subsided. 5 ‘After taking Edmer's medical history, Dr. Livelo took his vital signs, body temperature, and blood pressure. 6 Based on these initial examinations and the chest x-ray test that followed, Dr. Livelo diagnosed Edmer with "bronchopneumonia’ 7 Edmer's blood was also taken for testing, typing, and for purposes of administering antibiotics. Afterwards, Dr. Livelo gave Edmer an antibiotic medication to lessen his fever and to loosen his phlegm. Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care card and was referred to an accredited Fortune Care coordinator, who was then out of town. She was thereafter assigned to Dr. Noel Casumpang (Dr. Casumpang), a pediatrician also accreditedwith Fortune Care. & ‘At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time examined Edmer in his room. Using only a stethoscope, he confirmed the initial diagnosis of *Bronchopneumonia’ 9 ‘At that moment, Mrs. Cortejo recalled entertaining doubts on the doctor's diagnosis. She immediately advised Dr. Casumpang that Edmer had a high fever, and had no colds or ‘cough 10 but Dr. Casumpang merely told her that her sonis " blood pressure is just being active! 11 and remarked that “that's the usual bronchopneumonia, no colds, no phlegm.” 32 Dr. Casumpang next visited and examined Edmer at 9:00 in the morning the following day. 13 Still suspicious about his sonis illness, Mrs. Cortejo again called Dr. Casumpang's attention and stated that Edmer had a fever, throat irritation, as well as chest and stomach pain, Mrs. Cortejo also alerted Dr. Casumpang about the traces of blood in Edmer's sputum. Despite these pieces of information, however, Dr. Casumpang simply nodded, inquired if Edmer has an asthma, and reassured Mrs. Cortejo that Edmer’s illness is bronchopneumonia. 14 ‘At around 11:30 in the morning of April 23, 1988, Edmer vomited "phlegm with blood streak" 15 prompting the respondent (Edmer's father) to request for a doctor at the nurses’ station. 16 Forty-five minutes later, Dr. Ruby Sanga-Miranda (Dr. Miranda), one of the resident physicians of SJDH, arrived. She claimed that although aware that Edmer had vomited ‘phlegm with blood streak” she failed to examine the blood specimen because the respondent washed it away. She then advised the respondent to preserve the specimen for examination. Thereafter, Dr. Miranda conducted a physical check-up covering Edmer's head, eyes, nose, throat, lungs, skin and abdomen; and found that Edmer had a low-grade non- continuing fever, and rashes that were not typical of dengue fever. 17 Her medical findings state: the patient's rapid breathing and then the lung showed sibilant and the patient's nose is flaring which is a sign that the patient is in respiratory distress; the abdomen has negative finding; the patient has low grade fever and not continuing; and the rashes in the patient's skin were not "Hermanis Rash’ and not typical of dengue fever. 18 ‘At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing Dr. Miranda, the respondent showed her Edmers blood specimen, and reported that Edmer had complained of severe stomach pain and difficulty in moving his right leg. 29 Dr. Miranda then examined Edmer's “sputum with blood’ and noted that he was bleeding. Suspecting that he could be afflicted with dengue, she inserted a plastic tube in his nose, drained the liquid from his stomach with ice cold normal saline solution, and gave an instruction not to pull out the tube, or give the patient any oral medication, Dr. Miranda thereafter conducted a tourniquet test, which turned out to be negative. 20 She likewise ordered the monitoring of the patient's blood pressure and some blood tests. Edmer's blood pressure was later found to be normal. 22 ‘At 4:40 in the afternoon, Dr. Miranda called up Dr. Casumpang at his clinic and told him about Edmer's condition. 22 Upon being informed, Dr. Casumpang ordered several procedures done including: hematocrit, hemoglobin, blood typing, blood transfusion and tourniquet tests. The blood test results came at about 6:00 in the evening Dr. Miranda advised Edmer’s parents that the blood test results showed that Edmerwas suffering from "Dengue Hemorrhagic Fever One hour later, Dr. Casumpang arrived at Edmer's room and he recommended his transfer to the Intensive Care Unit (/CU), to which the respondent consented. Since the ICU was then full, Dr. Casumpang suggested to the respondent that they hire a private nurse. The respondent, however, insisted on transferring his son to Makati Medical Center. After the respondent had signed the waiver, Dr. Casumpang, for the last time, checked Edmer's condition, found that his blood pressure was stable, and noted that he was "comfortable." The respondent requested for an ambulance but he was informed that the driver was nowhere to be found. This prompted him to hire a private ambulance that cost him P600.00. 23 At 12:00 midnight, Edmer, accompanied by his parents and by Dr. Casumpang, was transferred to Makati Medical Center. Dr. Casumpang immediately gave the attending physician the patient's clinical history and laboratory exam results. Upon examination, the attending physician diagnosed "Dengue Fever Stage IV" that was already in its irreversible stage Edmer died at 4:00 in the morning of April 24, 1988. 24 His Death Certificate indicated the cause of death as "Hypovolemic Shock/hemorrhagic shock;” “Dengue Hemorrhagic Fever Stage IV." Believing that Edmer's death was caused by the negligent and erroneous diagnosis of his doctors, the respondent instituted an action for damages against SJDH, and its attending physicians: Dr. Casumpang and Dr. Miranda (collectively referred to as the ‘petitioners’) before the RTC of Makati City. ‘The Ruling of the Regional Trial Court In a decision 25 dated May 30, 1997, the RTC ruled in favor of the respondent, and awarded actual and moral damages, plus attorney's fees and costs In ruling that the petitioning doctors were negligent, the RTC found untenable the petitioning doctors’ contention that Edmers initial symptoms did not indicate dengue fever. It faulted them for heavily relying on the chest x-ray result and for not considering the other manifestations that Edmer's parents had relayed. it held that in diagnosing and treating an illness, the physician's conduct should be judged not only by what he/she saw and knew, but also by what he/she could have reasonably seen and known. It also observed that based on Edmerss signs and symptoms, his medical history and physical examination, and also the information that the petitioning doctors gathered from his family members, dengue fever was a reasonably foreseeable illness; yet, the petitioning doctors failed to take a second look, much less, consider these indicators of dengue The trial court also found that aside from their self-serving testimonies, the petitioning doctors did not present other evidence to prove that they exercised the proper medical attention in diagnosing and treating the patient, leading it to conclude that they were guilty of negligence. The RTC also held SJDH solidarily liable with the petitioning doctors for damages based on the following findings of facts: first, Dr. Casumpang, as consultant, is an ostensible agent of SJDH because before the hospital engaged his medical services, it scrutinized and determined his fitness, qualifications, and competence as a medical practitioner; and second, Dr. Miranda, as resident physician, is an employee of SJDH because like Dr. Casumpang, the hospital, through its screening committee, scrutinized and determined her qualifications, fitness, and competence before engaging her services; the hospital also exercised control over her work. The dispositive portion of the decision reads:WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, ordering the latter to pay solidarily and severally plaintiff the following: (1) Moral damages in the amount of 500,000.00; (2) Costs of burial and funeral in the amount of P45,000.00; (3) Attorney's fees of 50,000.00; and (4) Cost of this suit. ‘SO ORDERED. The petitioners appealed the decision to the CA. ‘The Ruling of the Court of Appeals In its decision dated October 29, 2004, the CA affirmed en toto the RTC's ruling, finding that SJDH and its attending physicians failed to exercise the minimum medical care, attention, and treatment expected of an ordinary doctor under like circumstances. The CA found the petitioning doctors’ failure to read even the most basic signs of “dengue fever expected of an ordinary doctor as medical negligence. The CA also considered the petitioning doctors’ testimonies as self-serving, noting that they presented 1no other evidence to prove that they exercised due diligence in diagnosing Edmer's illness. The CA likewise found Dr. Rodolfo Jaudian's ( Dr. Jaudian) testimony admissible. It gave credence to his opinions that: (1) given the exhibited symptoms of the patient, dengue fever should definitely be considered, and bronchopneumonia could be reasonably ruled out; and (2) dengue fever could have been detected earlier than 7:30 in the evening of April 23, 1988 because the symptoms were already evident, and agreed with the RTC that the petitioning doctors should not have solely relied on the chest-x-ay result, as it was not conclusive. On SJDH's solidary liability, the CA ruled that the hospitals liability is based on Article 2180 of the Civil Code. The CA opined that the control which the hospital exercises over its consultants, the hospital's power to hire and terminate their services, all fulfill the employer- employee relationship requirement under Article 2180. Lastly, the CA held that SJDH failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and the supervision of its physicians. The petitioners separately moved to reconsider the CA decision, but the CA denied their motion in its resolution of January 12, 2006; hence, the present consolidated petitions pursuant to Rule 45 of the Rules of Court The Petitions 1. Dr. Casumpang’s Position (G.R. No. 171127) Dr. Casumpang contends that he gave his patient medical treatment and care to the best of his abilities, and within the proper standard of care required from physicians under similar circumstances. He claims that his initial diagnosis of bronchopneumonia was supported by the chest x-ray result Dr. Casumpang also contends that dengue fever occurs only after several days of confinement. He alleged that when he had suspected that Edmer might be suffering from. dengue fever, he immediately attended and treated him, Dr. Casumpang likewise raised serious doubts on Dr. Jaudian's credibility, arguing that the CA erred in appreciating his testimony as an expert witness since he lacked the necessary training, skills, and experience as a specialist in dengue fever cases. U1. Dr. Miranda's Position (G.R. No. 171217)