Torts and Damages Case Digests 6

Res Ipsa Loquitur

Africa v. Caltex PH

Doctrine of Res Ipsa Loquitur

FACTS: The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that
in the afternoon of March 18, 1948 a fire broke out at the Caltex service station at the corner of
Antipolo street and Rizal Avenue, Manila. It started while gasoline was being hosed from a tank truck
into the underground storage, right at the opening of the receiving tank where the nozzle of the hose
was inserted. The fire spread to and burned several neighboring houses, including the personal
properties and effects inside them. Their owners, among them petitioners here, sued respondents
Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station and the second as its
agent in charge of operation. Negligence on the part of both of them was attributed as the cause of the
fire.

The trial court and the Court of Appeals found that petitioners failed to prove negligence and that
respondents had exercised due care in the premises and with respect to the supervision of their
employees.

ISSUE: Whether respondent is negligent, prompting them to be liable

RULING: YES, they are negligent proven by res ipsa loquitur

While it is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa
aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was
the negligence of the defendant, it is also a recognized principal that "where the thing which caused
injury, without fault of the injured person, is under the exclusive control of the defendant and the
injury is such as in the ordinary course of things does not occur if he having such control use proper
care, it affords reasonable evidence, in the absence of the explanation, that the injury arose from
defendant's want of care."

It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the
Supreme Court, but we do not consider this a reason for not applying the particular doctrine of res
ipsa loquitur in the case at bar. Gasoline is a highly combustible material, in the storage and sale of
which extreme care must be taken. On the other hand, fire is not considered a fortuitous event, as it
arises almost invariably from some act of man.

The gasoline station, with all its appliances, equipment and employees, was under the control of
appellees. A fire occurred therein and spread to and burned the neighboring houses. The persons who
knew or could have known how the fire started were appellees and their employees, but they gave no
explanation thereof whatsoever. It is a fair and reasonable inference that the incident happened
because of want of care.
Even then the fire possibly would not have spread to the neighboring houses were it not for another
negligent omission on the part of defendants, namely, their failure to provide a concrete wall high
enough to prevent the flames from leaping over it. As it was the concrete wall was only 2-1/2 meters
high, and beyond that height it consisted merely of galvanized iron sheets, which would predictably
crumple and melt when subjected to intense heat. Defendants' negligence, therefore, was not only
with respect to the cause of the fire but also with respect to the spread thereof to the neighboring
houses.
 Republic v. Luzon Stevedoring

Same same

FACTS: In the early afternoon of August 17, 1960, barge L-1892, owned by the Luzon Stevedoring
Corporation was being towed down the Pasig river by tugboats "Bangus" and "Barbero"1 also
belonging to the same corporation, when the barge rammed against one of the wooden piles of the
Nagtahan bailey bridge, smashing the posts and causing the bridge to list. The river, at the time, was
swollen and the current swift, on account of the heavy downpour of Manila and the surrounding
provinces on August 15 and 16, 1960.

Sued by the Republic of the Philippines for actual and consequential damage caused by its employees,
amounting to P200,000 (Civil Case No. 44562, CFI of Manila), defendant Luzon Stevedoring
Corporation disclaimed liability therefor, on the grounds that it had exercised due diligence in the
selection and supervision of its employees; that the damages to the bridge were caused by force
majeure; that plaintiff has no capacity to sue; and that the Nagtahan bailey bridge is an obstruction to
navigation.

After due trial, the court rendered judgment on June 11, 1963, holding the defendant liable for the
damage caused by its employees and ordering it to pay to plaintiff the actual cost of the repair of the
Nagtahan bailey bridge which amounted to P192,561.72, with legal interest thereon from the date of
the filing of the complaint.

ISSUE: Whether Luzon Stevedoring should be liable for damages

RULING: YES, they should be liable for the damages sustained by the republic

As to the first question, considering that the Nagtahan bridge was an immovable and stationary object
and uncontrovertedly provided with adequate openings for the passage of water craft, including
barges like of appellant's, it is undeniable that the unusual event that the barge, exclusively controlled
by appellant, rammed the bridge supports raises a presumption of negligence on the part of appellant
or its employees manning the barge or the tugs that towed it. For in the ordinary course of events,
such a thing does not happen if proper care is used. In Anglo American Jurisprudence, the inference
arises by what is known as the "res ipsa loquitur" rule

The appellant strongly stresses the precautions taken by it on the day in question: that it assigned
two of its most powerful tugboats to tow down river its barge L-1892; that it assigned to the task the
more competent and experienced among its patrons, had the towlines, engines and equipment
double-checked and inspected; that it instructed its patrons to take extra precautions; and concludes
that it had done all it was called to do, and that the accident, therefore, should be held due to force
majeure or fortuitous event.

These very precautions, however, completely destroy the appellant's defense. For caso fortuito or
force majeure (which in law are identical in so far as they exempt an obligor from liability)2 by
definition, are extraordinary events not foreseeable or avoidable, "events that could not be foreseen,
or which, though foreseen, were inevitable" (Art. 1174, Civ. Code of the Philippines). It is, therefore,
not enough that the event should not have been foreseen or anticipated, as is commonly believed, but
it must be one impossible to foresee or to avoid. The mere difficulty to foresee the happening is not
impossibility to foresee the same

Otherwise stated, the appellant, Luzon Stevedoring Corporation, knowing and appreciating the perils
posed by the swollen stream and its swift current, voluntarily entered into a situation involving
obvious danger; it therefore assured the risk, and cannot shed responsibility merely because the
precautions it adopted turned out to be insufficient. Hence, the lower Court committed no error in
holding it negligent in not suspending operations and in holding it liable for the damages caused.

It avails the appellant naught to argue that the dolphins, like the bridge, were improperly located.
Even if true, these circumstances would merely emphasize the need of even higher degree of care on
appellant's part in the situation involved in the present case. The appellant, whose barges and tugs
travel up and down the river everyday, could not safely ignore the danger posed by these allegedly
improper constructions that had been erected, and in place, for years.
 Malpractice

Batiquin v. CA

Res Ipsa Loquitur on in negligent operation of caesarean delivery

FACTS: Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial Hospital, Dumaguete
City from January 9, 1978 to September 1989. Between 1987 and September, 1989 she was also the
Actg. Head of the Department of Obstetrics and Gynecology at the said Hospital.

Mrs. Villegas is a married woman who submitted to Dr. Batiquin for prenatal care as the latter's
private patient sometime before September 21, 1988.

In the morning of September 21, 1988 Dr. Batiquin, with the assistance of Dr. Doris Teresita Sy who
was also a Resident Physician at the same Hospital, C.I. and O.R. Nurse Arlene Diones and some
student nurses performed a simple cesarean section on Mrs. Villegas at the Negros Oriental Provincial
Hospital and after 45 minutes Mrs. Villegas delivered her first child, Rachel Acogido, at about 11:45
that morning. Thereafter, Plaintiff remained confined at the Hospital until September 27, 1988 during
which period of confinement she was regularly visited by Dr. Batiquin

Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal pains and complained of being
feverish. She also gradually lost her appetite, so she consulted Dr. Batiquin at the latter's polyclinic
who prescribed for her certain medicines . . . which she had been taking up to December, 1988.

The abdominal pains and fever kept on recurring and bothered Mrs. Villegas no end and despite the
medications administered by Dr. Batiquin. When the pains become unbearable and she was rapidly
losing weight she consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City on
January 20, 1989.

The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs. Villegas at the Holy Child's
Hospital on January 20, 1989 she found Mrs. Villegas to be feverish, pale and was breathing fast. Upon
examination she felt an abdominal mass one finger below the umbilicus which she suspected to be
either a tumor of the uterus or an ovarian cyst, either of which could be cancerous. She had an x-ray
taken of Mrs. Villegas' chest, abdomen and kidney. She also took blood tests of Plaintiff. A blood count
showed that Mrs. Villegas had [an] infection inside her abdominal cavity. The result of all those
examinations impelled Dr. Kho to suggest that Mrs. Villegas submit to another surgery to which the
latter agreed.

When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, an
ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus,
and a piece of rubber materials on the right side of the uterus embedded on [sic] the ovarian cyst, 2
inches by 3/4 inch in size. This piece of rubber material which Dr. Kho described as a "foreign body"
looked like a piece of a "rubber glove" . . . and which is [sic] also "rubber-drain like . . . . It could have
been a torn section of a surgeon's gloves or could have come from other sources. And this foreign
body was the cause of the infection of the ovaries and consequently of all the discomfort suffered by
Mrs. Villegas after her delivery on September 21, 1988.

RTC ruled in favour of Dra. Batiquin on the ground that the testimony offered by Dr. Kho was hearsay
hence did not establish the negligence alleged. CA however, reversed the decision of RTC.

ISSUE: Whether Dra Batiquin is liable for damages

RULING: YES, she is liable for damages because she was negligent
Considering that we have assessed Dr. Kho to be a credible witness, her positive testimony [that a
piece of rubber was indeed found in private respondent Villegas' abdomen] prevails over the negative
testimony in favor of the petitioners.

As such, the rule of res ipsa loquitur comes to fore. This Court has had occasion to delve into the nature
and operation of this doctrine:

This doctrine [res ipsa loquitur] is stated thus: "Where the thing which causes injury is shown to be
under the management of the defendant, and the accident is such as in the ordinary course of things
does not happen if those who have the management use proper care, it affords reasonable evidence,
in the absence of an explanation by the defendant, that the accident arose from want of care."

The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the law of negligence which
recognizes that prima facie negligence may be established without direct proof and furnishes a
substitute for specific proof of negligence. The doctrine is not a rule of substantive law, but merely a
mode of proof or a mere procedural convenience. The rule, when applicable to the facts and
circumstances of a particular case, is not intended to and does not dispense with the requirement of
proof of culpable negligence on the party charged. It merely determines and regulates what shall be
prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of
due care. The doctrine can be invoked when and only when, under the circumstances involved, direct
evidence is absent and not readily available.[36]

In the instant case, all the requisites for recourse to the doctrine are present. First, the entire
proceedings of the cesarean section were under the exclusive control of Dr. Batiquin. In this light, the
private respondents were bereft of direct evidence as to the actual culprit or the exact cause of the
foreign object finding its way into private respondent Villegas' body, which, needless to say, does not
occur unless through the intervention of negligence. Second, since aside from the cesarean section,
private respondent Villegas underwent no other operation which could have caused the offending
piece of rubber to appear in her uterus, it stands to reason that such could only have been a by-
product of the cesarean section performed by Dr. Batiquin. The petitioners, in this regard, failed to
overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr.
Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent
Villegas' abdomen and for all the adverse effects thereof.
 Aldaba v. CA

Donation to a private physician in exchange of services rendered

FACTS: When Belen Aldaba, a rich woman of Malolos, Bulacan, died on February 25, 1955, she left as
her presumptive heirs her surviving husband Estanislao Bautista, and her brother Cesar Aldaba.
Belen Aldaba was childless. Among the properties that she left were the two lots involved in this case,
situated at 427 Maganda Street, Santa Mesa, Manila.

Petitioners Dr. Vicente Aldaba and Jane Aldaba, father and daughter, respectively, lived during the
last war in their house in Malate, Manila. Belen Aldaba used to go to their house to seek the advice
and medical assistance of Dr. Vicente Aldaba. When the latter's house was burned during the
liberation of Manila in 1945, Belen Aldaba invited Dr. Aldaba and his daughter, who was then a
student in medicine, to live in one of her two houses standing on the lots in question, and the Aldaba
father and daughter accepted the offer of Belen and they actually lived in one of those two houses
until sometime in 1957 when respondent Emmanuel Bautista filed an ejectment case against them in
the city court of Manila. Dr. Vicente Aldaba continued to act as a sort of adviser of Belen and Jane, after
becoming a qualified doctor of medicine, became the personal physician of Belen until the latter's
death on February 25, 1955.

Emmanuel Bautista then required Dr. Vicente Aldaba to vacate the lots in question and, upon the
latter's refusal, filed an ejectment case against him in the City Court of Manila. Without awaiting the
final result of the ejectment case, herein petitioners filed, on August 22, 1959, a complaint in the Court
of First Instance of Manila, docketed as Civil Case No. 41260, against herein respondents Cesar Aldaba
and Emmanuel Bautista and the Register of Deeds of Manila, alleging that they had become the owners
of the two lots in question, and praying that the deed of partition entered into by Estanislao Bautista
and Cesar Aldaba be declared null and void

RTC ruling as affirmed by CA: After hearing, the court a quo rendered a decision dismissing the
complaint, and declaring, among others, that if the deceased Belen Aldaba intended to convey the lots
in question to Vicente Aldaba and Jane Aldaba, by way of donation, the conveyance should be
considered a donation inter vivos, for the validity of which a public instrument was necessary
pursuant to Article 749 of the Civil Code.

ISSUE: Whether the property belong to Aldaba

RULING: NO, it does not belong to them as the disposition was invalid under the law

The note Exhibit 6 (Containing the message of the decedent that Aldaba should not vacate because it
was given to them as payment. Though no mention of the disputed property) did not make any
reference to the lots in question, nor to the services rendered, or to be rendered, in favor of Belen.
The note was insufficient is a conveyance, and hence could not be considered as evidence of a
donation with onerous cause. This note can be considered, at most, as indicative of the intention to
donate.
The note, Exhibit 6, considered alone, was, as held by the Court of Appeals, confirming the opinion of
the lower court, only an indication of the intention of Belen Aldaba to donate to the petitioners the
property occupied by the latter. We agree with this conclusion of the trial court and the Court of
Appeals. The note, in fact, expressed that the property was really intended for the petitioners,
"talagang iyan ay para sa inyo." If the property was only intended for petitioners then, at the time of
its writing, the property had not yet been disposed of in their favor. There is no evidence in the record
that such intention was effectively carried out after the writing of the note. Inasmuch as the mere
expression of an intention is not a promise, because a promise is an undertaking to carry the intention
into effect, 1 We cannot, considering Exhibit 6 alone, conclude that the deceased promised, much less
did convey, the property in question to the petitioners. That the note, Exhibit 6, was only an indication
of an intention to give was also the interpretation given by petitioners themselves.

When a person does not expect to be paid for his services, there cannot be a contract implied in fact
to make compensation for said services.

However, no contract implied in fact to make compensation for personal services performed for
another arises unless the party furnishing the services then expected or had reason to expect the
payment or compensation by the other party. To give rise to an implied contract to pay for services,
they must have been rendered by one party in expectation that the other party would pay for them,
and have been accepted by the other party with knowledge of that expectation.

Even if it be assumed for the sake of argument that the services of petitioners constituted a
demandable debt, We still have to ask whether in the instant case this was the consideration for which
the deceased made the (alleged) disposition of the property to the petitioners. As we have adverted
to, we have not come across in the record even a claim that there was an express agreement between
petitioners and Belen Aldaba that the latter would give the property in question in consideration of
the services of petitioners. All that petitioners could claim regarding this matter was that "it was
impliedly understood" between them. 5 How said agreement was implied and from what facts it was
implied, petitioners did not make clear
 Lucas v. Tuano

Proof needed to establish medical malpractice

FACTS: Sometime in 1988, petitioner Peter Paul Patrick Lucas contracted "sore eyes" in his right eye.
Upon consultation with Dr. Tuano, Peter narrated that it has been 9 days since the problem with his
right eye began, and that he was already taking Maxitrol to address the eye problem. According to Dr.
Tuano, he performed "ocular routine examination" on Peter's eyes, wherein: 1. a cross examination
Peter's eyes and their surrounding area was made, and 2. Peter's visual acuity were taken, 3. Peter's
eyes were palpated to check the intraocular pressure of each; 4. the mortility of Peter's eyes were
observed, and 5. the ophthalmoscopy on Peter's eyes was used.

On that particular consultation, Dr. Tuano diagnosed that Peter was suffering from conjunctivitis or
sore eyes. He then prescribed Spersacet C-eye drops for Peter and told the latter to return for follow-
up after one week.

As instructed, Peter returned and Dr. Tuano discovered that the right eye developed Epidemic Kerato
Conjunctivitis, EKC, a viral infection. To address the problem, Dr. Tuano prescribed Maxitrol, for a
dosage of 6 times a day.

However, the EKC was getting worse yet Dr. Tuano still continued on advising the use of Maxittrol,
despite Peter's discovery of the inscribed warning written in its label.

Upon waking in the morning of 13 December 1988, Peter had no vision in his right eye. Fatima
observed that Peter’s right eye appeared to be bloody and swollen.15 Thus, spouses Peter and Fatima
rushed to the clinic of Dr. Tuaño.

Upon examination, Dr. Tuano noted the hardness in Peter's right eye and discovered that the tension
in Peter's right eye was 39.0 Hg. Since the tension was way over the normal IOP which only ranged
from 10.0 Hg to 21.0 Hg, Dr. Tuano then ordered him to immediately discontinue the use of Maxitrol
and prescribed to the latter Diamox and Normoglaucon instead. He also required Peter to go for a
daily check-up in order for the former to closely monitor the pressure of the latter' eyes.

During one of Peter's regular follow-ups, Dr. Tuano noted the recurrence of EKC in Peter's right eye.
Thus, he referred Peter to Dr. Manuel Agulto, M.D., another opthalmologist specializing in glaucoma
treatment.

Eventually, Peter, in claiming to have "steroid-induced glaucoma" and blaming Dr. Tuano for the
same, filed a civil complaint for damages against Dr. Tuano. In their Complaint, petitioners specifically
averred that as the "direct consequence of [Peter’s] prolonged use of Maxitrol, [he] suffered from
steroid induced glaucoma which caused the elevation of his intra-ocular pressure. The elevation of
the intra-ocular pressure of [Peter’s right eye] caused the impairment of his vision which impairment
is not curable and may even lead to total blindness."
In rebutting petitioners’ complaint, Dr. Tuaño asserted that the "treatment made by [him] more than
three years ago has no causal connection to [Peter’s] present glaucoma or condition."55 Dr. Tuaño
explained that "[d]rug-induced glaucoma is temporary and curable, steroids have the side effect of
increasing intraocular pressure. Steroids are prescribed to treat Epidemic Kerato Conjunctivitis or
EKC which is an infiltration of the cornea as a result of conjunctivitis or sore eyes."56 Dr. Tuaño also
clarified that (1) "[c]ontrary to [petitioners’] fallacious claim, [he] did NOT continually prescribe the
drug Maxitrol which contained steroids for any prolonged period"57 and "[t]he truth was the Maxitrol
was discontinued x x x as soon as EKC disappeared and was resumed only when EKC reappeared"58;
(2) the entire time he was treating Peter, he "continually monitored the intraocular pressure of
[Peter’s eyes] by palpating the eyes and by putting pressure on the eyeballs," and no hardening of the
same could be detected, which meant that there was no increase in the tension or IOP, a possible side
reaction to the use of steroid medications; and (3) it was only on 13 December 1988 that Peter
complained of a headache and blurred vision in his right eye, and upon measuring the IOP of said eye,
it was determined for the first time that the IOP of the right eye had an elevated value.

But granting for the sake of argument that the "steroid treatment of [Peter’s] EKC caused the steroid
induced glaucoma,"59 Dr. Tuaño argued that: [S]uch condition, i.e., elevated intraocular pressure, is
temporary. As soon as the intake of steroids is discontinued, the intraocular pressure automatically
is reduced. Thus, [Peter’s] glaucoma can only be due to other causes not attributable to steroids,
certainly not attributable to [his] treatment of more than three years ago.

RTC ruling as affirmed by CA: [Petitioners] failed to establish the duty required of a medical
practitioner against which Peter Paul’s treatment by defendant can be compared with. They did not
present any medical expert or even a medical doctor to convince and expertly explain to the court the
established norm or duty required of a physician treating a patient, or whether the non-taking (sic)
by Dr. Tuaño of Peter Paul’s pressure a deviation from the norm or his non-discovery of the glaucoma
in the course of treatment constitutes negligence. It is important and indispensable to establish such
a standard because once it is established, a medical practitioner who departed thereof breaches his
duty and commits negligence rendering him liable. Without such testimony or enlightenment from
an expert, the court is at a loss as to what is then the established norm of duty of a physician against
which defendant’s conduct can be compared with to determine negligence

ISSUE: Whether Dr. Tuano should be held liable

RULING: NO, petitioner failed to establish the elements needed to make Dr. Tuano liable

In medical negligence cases, also called medical malpractice suits, there exist a physician-patient
relationship between the doctor and the victim. But just like any other proceeding for damages, four
essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and (4) proximate causation,76 must be
established by the plaintiff/s. All the four (4) elements must co-exist in order to find the physician
negligent and, thus, liable for damages.

When a patient engages the services of a physician, a physician-patient relationship is generated. And
in accepting a case, the physician, for all intents and purposes, represents that he has the needed
training and skill possessed by physicians and surgeons practicing in the same field; and that he will
employ such training, care, and skill in the treatment of the patient.77 Thus, in treating his patient, a
physician is under a duty to [the former] to exercise that degree of care, skill and diligence which
physicians in the same general neighborhood and in the same general line of practice ordinarily
possess and exercise in like cases.78 Stated otherwise, the physician has the duty to use at least the
same level of care that any other reasonably competent physician would use to treat the condition
under similar circumstances.

There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the
attending physician when the patient is injured in body or in health [and this] constitutes the
actionable malpractice.80 Proof of such breach must likewise rest upon the testimony of an expert
witness that the treatment accorded to the patient failed to meet the standard level of care, skill and
diligence which physicians in the same general neighborhood and in the same general line of practice
ordinarily possess and exercise in like cases.

Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must
be a causal connection between said breach and the resulting injury sustained by the patient. Put in
another way, in order that there may be a recovery for an injury, it must be shown that the "injury for
which recovery is sought must be the legitimate consequence of the wrong done; the connection
between the negligence and the injury must be a direct and natural sequence of events, unbroken by
intervening efficient causes";81 that is, the negligence must be the proximate cause of the injury.

Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of
the injury] by a preponderance of the evidence in a medical malpractice action, [the patient] must
similarly use expert testimony, because the question of whether the alleged professional negligence
caused [the patient’s] injury is generally one for specialized expert knowledge beyond the ken of the
average layperson; using the specialized knowledge and training of his field, the expert’s role is to
present to the [court] a realistic assessment of the likelihood that [the physician’s] alleged negligence
caused [the patient’s] injury.

In the case at bar, there is no question that a physician-patient relationship developed between Dr.
Tuaño and Peter when Peter went to see the doctor on 2 September 1988, seeking a consult for the
treatment of his sore eyes. Admittedly, Dr. Tuaño, an ophthalmologist, prescribed Maxitrol when
Peter developed and had recurrent EKC. Maxitrol or neomycin/polymyxin B sulfates/dexamethasone
ophthalmic ointment is a multiple-dose anti-infective steroid combination in sterile form for topical
application.85 It is the drug which petitioners claim to have caused Peter’s glaucoma.

However, as correctly pointed out by the Court of Appeals, "[t]he onus probandi was on the patient
to establish before the trial court that the physicians ignored standard medical procedure, prescribed
and administered medication with recklessness and exhibited an absence of the competence and
skills expected of general practitioners similarly situated."86 Unfortunately, in this case, there was
absolute failure on the part of petitioners to present any expert testimony to establish: (1) the
standard of care to be implemented by competent physicians in treating the same condition as Peter’s
under similar circumstances; (2) that, in his treatment of Peter, Dr. Tuaño failed in his duty to exercise
said standard of care that any other competent physician would use in treating the same condition as
Peter’s under similar circumstances; and (3) that the injury or damage to Peter’s right eye, i.e., his
glaucoma, was the result of his use of Maxitrol, as prescribed by Dr. Tuaño. Petitioners’ failure to
prove the first element alone is already fatal to their cause.

Absent a definitive standard of care or diligence required of Dr. Tuaño under the circumstances, we
have no means to determine whether he was able to comply with the same in his diagnosis and
treatment of Peter. This Court has no yardstick upon which to evaluate or weigh the attendant facts
of this case to be able to state with confidence that the acts complained of, indeed, constituted
negligence and, thus, should be the subject of pecuniary reparation.

In this case, Dr. Tuano was able to clearly explain what is only required of ophthalmologists, in cases
such as Peter's is the conduct of standard tests/ procedures known as "ocular routine examination"
composed of five (5) test procedures, specifically: gross examination of the eyes and the surrounding
area, taking of the visual acuity of the patient, checking the intraocular pressure of the patient,
checking the motility of the eyes--and he did all those tests every time Peter went to see him for
follow-up consultation and/or check-up.

Even if we are to assume that Dr. Tuano committed negligent acts in his treatment of Peter's condition,
the causal connection between Dr. Tuano's supposed negligence and Peter's injury still needed to be
established. The critical and clinching factor in a medical negligence case is proof of the causal
connection between the negligence which the evidence established and the plaintiff's injuries.

It must be remembered that when the qualifications of a physician are admitted, as in the instant case,
there is an inevitable presumption that in proper cases, he takes the necessary precaution and
employs the best of his knowledge and skill in attending to his clients, unless the contrary is
sufficiently established.98 In making the judgment call of treating Peter’s EKC with Maxitrol, Dr.
Tuaño took the necessary precaution by palpating Peter’s eyes to monitor their IOP every time the
latter went for a check-up, and he employed the best of his knowledge and skill earned from years of
training and practice.

It seems basic that what constitutes proper medical treatment is a medical question that should have
been presented to experts. If no standard is established through expert medical witnesses, then courts
have no standard by which to gauge the basic issue of breach thereof by the physician or surgeon. The
RTC and Court of Appeals, and even this Court, could not be expected to determine on its own what
medical technique should have been utilized for a certain disease or injury. Absent expert medical
opinion, the courts would be dangerously engaging in speculations.
 Reyes v. Sisters of Mercy Hospital
Non-applicability of res ipsa loquitur; Degree of care needed for medical practitioners

FACTS: Petitioner, Leah Alesna Reyes, is the wife of the deceased patient, Jorge Reyes. Five days
before the latter’s death, Jorge has been suffering from recurring fever with chills.

The doctors confirmed through the Widal test that Jorge has typhoid fever. However, he did not
respond to the treatment and died. The cause of his death was “Ventricular Arrythemia Secondary to
Hyperpyrexia and typhoid fever.”

Consequently, petitioner filed the instant case for damages before the Regional Trial Court of Cebu
City, which dismissed the case and was affirmed by the Court of Appeals. The contention was that
Jorge did not die of typhoid fever. Instead, his death was due to the wrongful administration of
chloromycetin. They contended that had respondent doctors exercised due care and diligence, they
would not have recommended and rushed the performance of the Widal Test, hastily concluded that
Jorge was suffering from typhoid fever, and administered chloromycetin without first conducting
sufficient tests on the patient’s compatibility with said drug.

Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief Pathologist at the Northern
Mindanao Training Hospital, Cagayan de Oro City. On January 9, 1987, Dr. Vacalares performed an
autopsy on Jorge Reyes to determine the cause of his death. However, he did not open the skull to
examine the brain. His findings9 showed that the gastro-intestinal tract was normal and without any
ulceration or enlargement of the nodules. Dr. Vacalares testified that Jorge did not die of typhoid fever.
He also stated that he had not seen a patient die of typhoid fever within five days from the onset of
the disease.

For their part, respondents offered the testimonies of Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr.
Gotiong is a diplomate in internal medicine whose expertise is microbiology and infectious diseases.
He is also a consultant at the Cebu City Medical Center and an associate professor of medicine at the
South Western University College of Medicine in Cebu City. He had treated over a thousand cases of
typhoid patients. According to Dr. Gotiong, the patient’s history and positive Widal Test results ratio
of 1:320 would make him suspect that the patient had typhoid fever. As to Dr. Vacalares’ observation
regarding the absence of ulceration in Jorge’s gastro-intestinal tract, Dr. Gotiong said that such
hyperplasia in the intestines of a typhoid victim may be microscopic. He noted that since the toxic
effect of typhoid fever may lead to meningitis, Dr. Vacalares’ autopsy should have included an
examination of the brain.10

The other doctor presented was Dr. Ibarra Panopio, a member of the American Board of Pathology,
examiner of the Philippine Board of Pathology from 1978 to 1991, fellow of the Philippine Society of
Pathologist, associate professor of the Cebu Institute of Medicine, and chief pathologist of the Andres
Soriano Jr. Memorial Hospital in Toledo City. Dr. Panopio stated that although he was partial to the
use of the culture test for its greater reliability in the diagnosis of typhoid fever, the Widal Test may
also be used. Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorge’s case was already the maximum
by which a conclusion of typhoid fever may be made. No additional information may be deduced from
a higher dilution.11 He said that Dr. Vacalares’ autopsy on Jorge was incomplete and thus
inconclusive.

RTC absolved the doctors of any medical malpractice as affirmed by CA.

ISSUE: Whether the doctors were negligent

RULING: NO, they were not negligent

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

HOWEVER, RES IPSA LOQUITUR DOES NOT APPY IN THIS CASE: In this case, while it is true that the
patient died just a few hours after professional medical assistance was rendered, there is really
nothing unusual or extraordinary about his death. Prior to his admission, the patient already had
recurring fevers and chills for five days unrelieved by the analgesic, antipyretic, and antibiotics given
him by his wife. This shows that he had been suffering from a serious illness and professional medical
help came too late for him.

Respondents alleged failure to observe due care was not immediately apparent to a layman so as to
justify application of res ipsa loquitur. The question required expert opinion on the alleged breach by
respondents of the standard of care required by the circumstances. Furthermore, on the issue of the
correctness of her diagnosis, no presumption of negligence can be applied to Dr. Marlyn Rico.
As held in Ramos: Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a
rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted
to situations in malpractice cases where a layman is able to say, as a matter of common knowledge
and observation, that the consequences of professional care were not as such as would ordinarily
have followed if due care had been exercised. A distinction must be made between the failure to
secure results, and the occurrence of something more unusual and not ordinarily found if the service
or treatment rendered followed the usual procedure of those skilled in that particular practice. It must
be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician
or a 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.

While petitioners presented Dr. Apolinar Vacalares as an expert witness, we do not find him to be so
as he is not a specialist on infectious diseases like typhoid fever. Furthermore, although he may have
had extensive experience in performing autopsies, he admitted that he had yet to do one on the body
of a typhoid victim at the time he conducted the postmortem on Jorge Reyes. It is also plain from his
testimony that he has treated only about three cases of typhoid fever. He is thus not qualified to prove
that Dr. Marlyn Rico erred in her diagnosis. Both lower courts were therefore correct in discarding
his testimony, which is really inadmissible.

On the other hand, the two doctors presented by respondents clearly were experts on the subject.
They vouched for the correctness of Dr. Marlyn Rico’s diagnosis. Dr. Peter Gotiong, a diplomate whose
specialization is infectious diseases and microbiology and an associate professor at the Southwestern
University College of Medicine and the Gullas College of Medicine, testified that he has already treated
over a thousand cases of typhoid fever.26 According to him, when a case of typhoid fever is suspected,
the Widal test is normally used,27 and if the 1:320 results of the Widal test on Jorge Reyes had been
presented to him along with the patient’s history, his impression would also be that the patient was
suffering from typhoid fever.28 As to the treatment of the disease, he stated that chloromycetin was
the drug of choice.29 He also explained that despite the measures taken by respondent doctors and
the intravenous administration of two doses of chloromycetin, complications of the disease could not
be discounted.

Respondents also presented the testimony of Dr. Ibarra T. Panopio who is a member of the Philippine
and American Board of Pathology, an examiner of the Philippine Board of Pathology, and chief
pathologist at the MetroCebu Community Hospital, Perpetual Succor Hospital, and the Andres Soriano
Jr. Memorial Medical Center. He stated that, as a clinical pathologist, he recognized that the Widal test
is used for typhoid patients, although he did not encourage its use because a single test would only
give a presumption necessitating that the test be repeated, becoming more conclusive at the second
and third weeks of the disease.33 He corroborated Dr. Gotiong’s testimony that the danger with
typhoid fever is really the possible complications which could develop like perforation, hemorrhage,
as well as liver and cerebral complications.34 As regards the 1:320 results of the Widal test on Jorge
Reyes, Dr. Panopio stated that no additional information could be obtained from a higher ratio.35 He
also agreed with Dr. Gotiong that hyperplasia in the payer’s patches may be microscopic.36

Indeed, the standard contemplated is not what is actually the average merit among all known
practitioners from the best to the worst and from the most to the least experienced, but the
reasonable average merit among the ordinarily good physicians.37 Here, Dr. Marlyn Rico did not
depart from the reasonable standard recommended by the experts as she in fact observed the due
care required under the circumstances. Though the Widal test is not conclusive, it remains a standard
diagnostic test for typhoid fever and, in the present case, greater accuracy through repeated testing
was rendered unobtainable by the early death of the patient. The results of the Widal test and the
patient’s history of fever with chills for five days, taken with the fact that typhoid fever was then
prevalent as indicated by the fact that the clinic had been getting about 15 to 20 typhoid cases a
month, were sufficient to give upon any doctor of reasonable skill the impression that Jorge Reyes
had typhoid fever.

The practice of medicine is a profession engaged in only by qualified individuals.1âwphi1 It is a right

earned through years of education, training, and by first obtaining a license from the state through
professional board examinations. Such license may, at any time and for cause, be revoked by the
government. In addition to state regulation, the conduct of doctors is also strictly governed by the
Hippocratic Oath, an ancient code of discipline and ethical rules which doctors have imposed upon
themselves in recognition and acceptance of their great responsibility to society. Given these
safeguards, there is no need to expressly require of doctors the observance of "extraordinary"
diligence. As it is now, the practice of medicine is already conditioned upon the highest degree of
diligence. And, as we have already noted, the standard contemplated for doctors is simply the
reasonable average merit among ordinarily good physicians.
 Cereno v. CA

Negligence in the delay of the operation and transfusion of blood and proximate cause of death must
be established

FACTS: At about 9:15 in the evening of 16 September 1995, Raymond S. Olavere (Raymond), a victim
of a stabbing incident, was rushed to the emergency room of the Bicol Regional Medical Center
(BRMC). There, Raymond was attended to by Nurse Arlene Balares (Nurse Balares) and Dr. Ruel Levy
Realuyo (Dr. Realuyo) — the emergency room resident physician.

After extending initial medical treatment to Raymond, Dr. Realuyo recommended that the patient
undergo "emergency exploratory laparotomy." Dr. Realuyo then requested the parents of Raymond
to procure 500 cc of type "O" blood needed for the operation. Complying with the request, Deogenes
and Andrew Olavere went to the Philippine National Red Cross to secure the required blood.

At 10:30 P.M., Raymond was wheeled inside the operating room. During that time, the hospital
surgeons, Drs. Zafe and Cereno, were busy operating on gunshot victim Charles Maluluy-on. Assisting
them in the said operation was Dr. Rosalina Tatad (Dr. Tatad), who was the only senior
anesthesiologist on duty at BRMC that night. Dr. Tatad also happened to be the head of Anesthesiology
Department of the BRMC.

Just before the operation on Maluluy-on was finished, another emergency case involving Lilia Aguila,
a woman who was giving birth to triplets, was brought to the operating room.

At 10:59 P.M., the operation on Charles Maluluy-on was finished. By that time, however, Dr. Tatad was
already working with the obstetricians who will perform surgery on Lilia Aguila. There being no other
available anesthesiologist to assist them, Drs. Zafe and Cereno decided to defer the operation on
Raymond.

Drs. Zafe and Cereno, in the meantime, proceeded to examine Raymond and they found that the
latter’s blood pressure was normal and "nothing in him was significant."3 Dr. Cereno reported that
based on the xray result he interpreted, the fluid inside the thoracic cavity of Raymond was minimal
at around 200-300 cc.

At 11:15 P.M., Deogenes and Andrew Olavere returned to the BRMC with a bag containing the
requested 500 cc type "O" blood. They handed over the bag of blood to Dr. Realuyo.

After Dr. Tatad finished her work with the Lilia Aguila operation, petitioners immediately started
their operation on Raymond at around 12:15 A.M. of 17 September 1995. Upon opening of Raymond’s
thoracic cavity, they found that 3,200 cc of blood was stocked therein. The blood was evacuated and
petitioners found a puncture at the inferior pole of the left lung.

In his testimony, Dr. Cereno stated that considering the loss of blood suffered by Raymond, he did not
immediately transfuse blood because he had to control the bleeders first.4
Blood was finally transfused on Raymond at 1:40 A.M. At 1:45 A.M., while the operation was on-going,
Raymond suffered a cardiac arrest. The operation ended at 1:50 A.M. and Raymond was pronounced
dead at 2:30 A.M.

Raymond’s death certificate5 indicated that the immediate cause of death was "hypovolemic shock"
or the cessation

RTC and CA ruling: The trial court found petitioners negligent in not immediately conducting surgery
on Raymond. It noted that petitioners have already finished operating on Charles Maluluy-on as early
as 10:30 in the evening, and yet they only started the operation on Raymond at around 12:15 early
morning of the following day. The trial court held that had the surgery been performed promptly,
Raymond would not have lost so much blood and, therefore, could have been saved.10

The trial court also held that the non-availability of Dr. Tatad after the operation on Maluluy-on was
not a sufficient excuse for the petitioners to not immediately operate on Raymond. It called attention
to the testimony of Dr. Tatad herself, which disclosed the possibility of calling a standby
anesthesiologist in that situation. The trial court opined that the petitioners could have just requested
for the standby anesthesiologist from Dr. Tatad, but they did not.

ISSUE: Whether medical malpractice was committed

RULING: NO, there was no medical malpractice

The type of lawsuit which has been called medical malpractice or, more appropriately, medical
negligence, is that 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. In order to successfully pursue
such a claim, a patient must prove that a health care provider, in most cases a physician, either failed
to do something which a reasonably prudent health care provider would have done, or that he or she
did something that a reasonably prudent provider would not have done; and that the failure or action
caused injury to the patient.13 Stated otherwise, the complainant must prove: (1) that the health care
provider, either by his act or omission, had been negligent, and (2) that such act or omission
proximately caused the injury complained of.

The best way to prove these is through the opinions of expert witnesses belonging in the same
neighborhood and in the same general line of practice as defendant physician or surgeon. The
deference of courts to the expert opinion of qualified physicians stems from the former’s realization
that the latter possess unusual technical skills which laymen in most instances are incapable of
intelligently evaluating, hence, the indispensability of expert testimonies.

As revealed by the facts, however, after the Maluluy-on operation, Dr. Tatad was already assisting in
the Lilia Aguila operation. Drs. Zafe and Cereno then proceeded to examine Raymond and they found
that the latter’s blood pressure was normal and "nothing in him was significant."17 Dr. Cereno even
concluded that based on the x-ray result he interpreted, the fluid inside the thoracic cavity of
Raymond was minimal at around 200-300 cc. Such findings of Drs. Cereno and Zafe were never
challenged and were unrebutted.

Given that Dr. Tatad was already engaged in another urgent operation and that Raymond was not
showing any symptom of suffering from major blood loss requiring an immediate operation, We find
it reasonable that petitioners decided to wait for Dr. Tatad to finish her surgery and not to call the
standby anesthesiologist anymore. There is, after all, no evidence that shows that a prudent surgeon
faced with similar circumstances would decide otherwise.

Here, there were no expert witnesses presented to testify that the course of action taken by
petitioners were not in accord with those adopted by other reasonable surgeons in similar situations.
Neither was there any testimony given, except that of Dr. Tatad’s, on which it may be inferred that
petitioners failed to exercise the standard of care, diligence, learning and skill expected from
practitioners of their profession. Dr. Tatad, however, is an expert neither in the field of surgery nor of
surgical practices and diagnoses. Her expertise is in the administration of anesthesia and not in the
determination of whether surgery ought or not ought to be performed.

With regard to the blood transfusion: First, the alleged delay in the cross-matching of the blood, if
there was any, cannot be attributed as the fault of the petitioners. The petitioners were never shown
to be responsible for such delay. It is highly unreasonable and the height of injustice if petitioners
were to be sanctioned for lapses in procedure that does not fall within their duties and beyond their
control.

Second, Dr. Cereno, in his unchallenged testimony, aptly explained the apparent delay in the
transfusion of blood on Raymond before and during the operation.

Before the operation, Dr. Cereno explained that the reason why no blood transfusion was made on
Raymond was because they did not then see the need to administer such transfusion

In medical negligence cases, it is settled that the complainant has the burden of establishing breach
of duty on the part of the doctors or surgeons. It must be proven that such breach of duty has a causal
connection to the resulting death of the patient.22 A verdict in malpractice action cannot be based on
speculation or conjecture. Causation must be proven within a reasonable medical probability based
upon competent expert testimony.

The parents of Raymond failed in this respect. Aside from their failure to prove negligence on the part
of the petitioners, they also failed to prove that it was petitioners’ fault that caused the injury. Their
cause stands on the mere assumption that Raymond’s life would have been saved had petitioner
surgeons immediately operated on him; had the blood been cross-matched immediately and had the
blood been transfused immediately. There was, however, no proof presented that Raymond’s life
would have been saved had those things been done. Those are mere assumptions and cannot
guarantee their desired result. Such cannot be made basis of a decision in this case, especially
considering that the name, reputation and career of petitioners are at stake.
 Solidum v. People

In order that there may be a recovery for an injury, however, it must be shown that the ‘injury for
which recovery is sought must be the legitimate consequence of the wrong done

FACTS: On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a
pull-through operation.5 Dr. Leandro Resurreccion headed the surgical team, and was assisted by Dr.
Joselito Luceño, Dr. Donatella Valeña and Dr. Joseph Tibio. The anesthesiologists included Dr. Marichu
Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr. Solidum).6 During the operation,
Gerald experienced bradycardia,7 and went into a coma.8 His coma lasted for two weeks,9 but he
regained consciousness only after a month.10 He could no longer see, hear or move.11

Agitated by her son’s helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a complaint
for reckless imprudence resulting in serious physical injuries with the City Prosecutor’s Office of
Manila against the attending physicians.

RTC and CA held Dr. Solidum guilty of medical negligence

ISSUE: Whether Dr. Solidum’s guilt was established beyond reasonable doubt

RULING: NO, his guilt was not established

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

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

In order to allow resort to the doctrine, therefore, the following essential requisites must first be
satisfied, to wit: (1) the accident was of a kind that does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of
the person charged; and (3) the injury suffered must not have been due to any voluntary action or
contribution of the person injured.29

The Court considers the application here of the doctrine of res ipsa loquitur inappropriate. Although
it should be conceded without difficulty that the second and third elements were present, considering
that the anesthetic agent and the instruments were exclusively within the control of Dr. Solidum, and
that the patient, being then unconscious during the operation, could not have been guilty of
contributory negligence, the first element was undeniably wanting. Luz delivered Gerald to the care,
custody and control of his physicians for a pull-through operation. Except for the imperforate anus,
Gerald was then of sound body and mind at the time of his submission to the physicians. Yet, he
experienced bradycardia during the operation, causing loss of his senses and rendering him
immobile. Hypoxia, or the insufficiency of oxygen supply to the brain that caused the slowing of the
heart rate, scientifically termed as bradycardia, would not ordinarily occur in the process of a pull-
through operation, or during the administration of anesthesia to the patient, but such fact alone did
not prove that the negligence of any of his attending physicians, including the anesthesiologists, had
caused the injury. In fact, the anesthesiologists attending to him had sensed in the course of the
operation that the lack of oxygen could have been triggered by the vago-vagal reflex, prompting them
to administer atropine to the patient.

The evidence presented is insufficient to establish the first element necessary for application of res
ipsa loquitur doctrine. The acute closing of the patient’s air passage and his resultant asphyxiation
took place over a very short period of time. Under these circumstances it would not be reasonable to
infer that the physician was negligent. There was no palpably negligent act. The common experience
of mankind does not suggest that death would not be expected without negligence. And there is no
expert medical testimony to create an inference that negligence caused the injury.

In re criminal negligence: An action upon medical negligence – whether criminal, civil or

administrative – calls for the plaintiff to prove by competent evidence each of the following four
elements, namely: (a) the duty owed by the physician to the patient, as created by the physician-
patient relationship, to act in accordance with the specific norms or standards established by his
profession; (b) the breach of the duty by the physician’s failing to act in accordance with the applicable
standard of care; (3) the causation, i.e., there must be a reasonably close and causal connection
between the negligent act or omission and the resulting injury; and (4) the damages suffered by the
patient.36

In the medical profession, specific norms or standards to protect the patient against unreasonable
risk, commonly referred to as standards of care, set the duty of the physician to act in respect of the
patient. Unfortunately, no clear definition of the duty of a particular physician in a particular case
exists. Because most medical malpractice cases are highly technical, witnesses with special medical
qualifications must provide guidance by giving the knowledge necessary to render a fair and just
verdict. As a result, the standard of medical care of a prudent physician must be determined from
expert testimony in most cases; and in the case of a specialist (like an anesthesiologist), the standard
of care by which the specialist is judged is the care and skill commonly possessed and exercised by
similar specialists under similar circumstances. The specialty standard of care may be higher than
that required of the general practitioner.

Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to
provide guidance to the trial court on what standard of care was applicable. It would consequently be
truly difficult, if not impossible, to determine whether the first three elements of a negligence and
malpractice action were attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who served as
the Chairman of the Committee on Ethics and Malpractice of the Philippine Society of
Anesthesiologists that investigated the complaint against Dr. Solidum, his testimony mainly focused
on how his Committee had conducted the investigation.39 Even then, the report of his Committee was
favorable to Dr. Solidum,40 to wit:
Presented for review by this committee is the case of a 3 year old male who underwent a pull-thru
operation and was administered general anesthesia by a team of anesthesia residents. The patient, at
the time when the surgeons was manipulating the recto-sigmoid and pulling it down in preparation
for the anastomosis, had bradycardia. The anesthesiologists, sensing that the cause thereof was the
triggering of the vago-vagal reflex, administered atropine to block it but despite the administration of
the drug in two doses, cardiac arrest ensued. As the records show, prompt resuscitative measures
were administered and spontaneous cardiac function re-established in less than five (5) minutes and
that oxygen was continuously being administered throughout, unfortunately, as later become
manifest, patient suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the
committee find that the same were all in accordance with the universally accepted standards of
medical care and there is no evidence of any fault or negligence on the part of the anaesthesiologists.
 Garcia –Rueda v. Pascasio

Medical negligence in the light of preliminary investigation

FACTS: Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical

operation at the UST hospital for the removal of a stone blocking his ureter. He was attended by Dr.
Domingo Antonio, Jr. who was the surgeon, while Dr. Erlinda Balatbat-Reyes was the
anaesthesiologist. Six hours after the surgery, however, Florencio died of complications of "unknown
cause," according to officials of the UST Hospital.

Not satisfied with the findings of the hospital, petitioner requested the National Bureau of
Investigation (NBI) to conduct an autopsy on her husband's body. Consequently, the NBI ruled that
Florencio's death was due to lack of care by the attending physician in administering anaesthesia.
Pursuant to its findings, the NBI recommended that Dr. Domingo Antonio and Dr. Erlinda Balatbat-
Reyes be charged for Homicide through Reckless Imprudence before the Office of the City Prosecutor.

A series of nine prosecutors toss the responsibility of conducting a preliminary investigation to each
other with contradictory recommendations, "ping-pong" style, perhaps the distraught widow is not
to be blamed if she finally decides to accuse the City Prosecutors at the end of the line for partiality
under the Anti-Graft and Corrupt Practices Act.

ISSUE: Whether the “ping-pong” of the case due to the technicality of the medical malpractice
cases constituted grave abuse of discretion

RULING: NO, it does not tantamount to grave abuse of discretion

Probable cause is a reasonable ground of presumption that a matter is, or may be, well founded, such
a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence
to believe, or entertain an honest or strong suspicion, that a thing is so." The term does not mean
actual and positive cause nor does it import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence
of the prosecution in support of the charge. 10

In the instant case, no less than the NBI pronounced after conducting an autopsy that there was
indeed negligence on the part of the attending physicians in administering the anaesthesia. 11 The
fact of want of competence or diligence is evidentiary in nature, the veracity of which can best be
passed upon after a full-blown trial for it is virtually impossible to ascertain the merits of a medical
negligence case without extensive investigation, research, evaluation and consultations with medical
experts. Clearly, the City Prosecutors are not in a competent position to pass judgment on such a
technical matter, especially when there are conflicting evidence and findings. The bases of a party's
accusation and defenses are better ventilated at the trial proper than at the preliminary investigation.
In order to successfully pursue such a claim, a patient must prove that a health care provider, in most
cases a physician, either failed to do something which a reasonably prudent health care provider
would have done, or that he or she did something that a reasonably prudent provider would not have
done; and that that failure or action caused injury to the patient.

Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-patient
relationship was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that,
having the needed training and skill possessed by physicians and surgeons practicing in the same
field, they will employ such training, care and skill in the treatment of their patients. 13 They have a
duty to use at least the same level of care that any other reasonably competent doctor would use to
treat a condition under the same circumstances. The breach of these professional duties of skill and
care, or their improper performance, by a physician surgeon whereby the patient is injured in body
or in health, constitutes actionable malpractice. 14 Consequently, in the event that any injury results
to the patient from want of due care or skill during the operation, the surgeons may be held
answerable in damages for negligence. 15

Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the

necessity of expert testimony and the availability of the charge of res ipsa loquitur to the plaintiff;
have been applied in actions against anaesthesiologists to hold the defendant liable for the death or
injury of a patient under excessive or improper anaesthesia. 16 Essentially, it requires two-pronged
evidence: evidence as to the recognized standards of the medical community in the particular kind of
case, and a showing that the physician in question negligently departed from this standard in his
treatment. 17

Another element in medical negligence cases is causation which is divided into two inquiries: whether
the doctor's actions in fact caused the harm to the patient and whether these were the proximate
cause of the patient's

injury. 18 Indeed here, a causal connection is discernible from the occurrence of the victim's death
after the negligent act of the anaesthesiologist in administering the anesthesia, a fact which, if
confirmed, should warrant the filing of the appropriate criminal case. To be sure, the allegation of
negligence is not entirely baseless. Moreover, the NBI deduced that the attending surgeons did not
conduct the necessary interview of the patient prior to the operation. It appears that the cause of the
death of the victim could have been averted had the proper drug been applied to cope with the
symptoms of malignant hyperthermia. Also, we cannot ignore the fact that an antidote was readily
available to counteract whatever deleterious effect the anaesthesia might produce. 19 Why these
precautionary measures were disregarded must be sufficiently explained.
 Mendoza v. Casumpang

Prima facie presumption of negligence in medical malpractice

FACTS: On February 13, 1993 Josephine underwent hysterectomy and myomectomy that Dr.
Mendoza performed on her at the Iloilo Doctors’ Hospital. After her operation, Josephine experienced
recurring fever, nausea, and vomiting. Three months after the operation, she noticed while taking a
bath something protruding from her genital. She tried calling Dr. Mendoza to report it but the latter
was unavailable. Josephine instead went to see another physician, Dr. Edna Jamandre-Gumban, who
extracted a foul smelling, partially expelled rolled gauze from her cervix.

The discovery of the gauze and the illness she went through prompted Josephine to file a damage suit
against Dr. Mendoza before the RTC of Iloilo City. Because Josephine died before trial could end, her
husband and their children substituted her in the case. She was a housewife and 40 years old when
she died.

RTC ruled in favour of the heirs of Jospehine but, such ruling was reverse d upon motion for
reconsideration until CA overturned and reinstated the original decision of RTC

ISSUE: Whether Dr. Mendoza is guilty of medical malpractice

RULING: YES, she is guilty of medical malpractice

As the RTC pointed out, Josephine did not undergo any other surgical operation. And it would be much
unlikely for her or for any woman to inject a roll of gauze into her cervix. As the Court held in
Professional Services, Inc. v. Agana:

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

A surgical operation is the responsibility of the surgeon performing it. He must personally ascertain
that the counts of instruments and materials used before the surgery and prior to sewing the patient
up have been correctly done. To provide an example to the medical profession and to stress the need
for constant vigilance in attending to a patient’s health, the award of exemplary damages in this case
is in order.
 Dr. Rubi Li v. Spouses Soliman

Informed consent doctrine

FACTS: On July 7, 1993, respondents’ 11-year old daughter, Angelica Soliman, underwent a biopsy of
the mass located in her lower extremity at the St. Luke’s Medical Center (SLMC). Results showed that
Angelica was suffering from osteosarcoma, osteoblastic type,4 a high-grade (highly malignant) cancer
of the bone which usually afflicts teenage children. Following this diagnosis and as primary
intervention, Angelica’s right leg was amputated by Dr. Jaime Tamayo in order to remove the tumor.
As adjuvant treatment to eliminate any remaining cancer cells, and hence minimize the chances of
recurrence and prevent the disease from spreading to other parts of the patient’s body (metastasis),
chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another doctor at
SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.

On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993, just
eleven (11) days after the (intravenous) administration of the first cycle of the chemotherapy
regimen. Because SLMC refused to release a death certificate without full payment of their hospital
bill, respondents brought the cadaver of Angelica to the Philippine National Police (PNP) Crime
Laboratory at Camp Crame for post-mortem examination. The Medico-Legal Report issued by said
institution indicated the cause of death as "Hypovolemic shock secondary to multiple organ
hemorrhages and Disseminated Intravascular Coagulation."

On February 21, 1994, respondents filed a damage suit7 against petitioner, Dr. Leo Marbella, Mr. Jose
Ledesma, a certain Dr. Arriete and SLMC. Respondents charged them with negligence and disregard
of Angelica’s safety, health and welfare by their careless administration of the chemotherapy drugs,
their failure to observe the essential precautions in detecting early the symptoms of fatal blood
platelet decrease and stopping early on the chemotherapy, which bleeding led to hypovolemic shock
that caused Angelica’s untimely demise. Further, it was specifically averred that petitioner assured
the respondents that Angelica would recover in view of 95% chance of healing with chemotherapy
("Magiging normal na ang anak nyo basta ma-chemo. 95% ang healing") and when asked regarding
the side effects, petitioner mentioned only slight vomiting, hair loss and weakness ("Magsusuka ng
kaunti. Malulugas ang buhok. Manghihina"). Respondents thus claimed that they would not have
given their consent to chemotherapy had petitioner not falsely assured them of its side effects.

In her answer,8 petitioner denied having been negligent in administering the chemotherapy drugs to
Angelica and asserted that she had fully explained to respondents how the chemotherapy will affect
not only the cancer cells but also the patient’s normal body parts, including the lowering of white and
red blood cells and platelets. She claimed that what happened to Angelica can be attributed to
malignant tumor cells possibly left behind after surgery. Few as they may be, these have the capacity
to compete for nutrients such that the body becomes so weak structurally (cachexia) and functionally
in the form of lower resistance of the body to combat infection. Such infection becomes uncontrollable
and triggers a chain of events (sepsis or septicemia) that may lead to bleeding in the form of
Disseminated Intravascular Coagulation (DIC), as what the autopsy report showed in the case of
Angelica.

RTC ruling: In dismissing the complaint, the trial court held that petitioner was not liable for damages
as she observed the best known procedures and employed her highest skill and knowledge in the
administration of chemotherapy drugs on Angelica but despite all efforts said patient died. It cited the
testimony of Dr. Tamayo who testified that he considered petitioner one of the most proficient in the
treatment of cancer and that the patient in this case was afflicted with a very aggressive type of cancer
necessitating chemotherapy as adjuvant treatment. Using the standard of negligence laid down in
Picart v. Smith,47 the trial court declared that petitioner has taken the necessary precaution against
the adverse effect of chemotherapy on the patient, adding that a wrong decision is not by itself
negligence.

CA Ruling: Plaintiffs-appellants’ child was suffering from a malignant disease. The attending physician
recommended that she undergo chemotherapy treatment after surgery in order to increase her
chances of survival. Appellants consented to the chemotherapy treatment because they believed in
Dr. Rubi Li’s representation that the deceased would have a strong chance of survival after
chemotherapy and also because of the representation of appellee Dr. Rubi Li that there were only
three possible side-effects of the treatment. However, all sorts of painful side-effects resulted from
the treatment including the premature death of Angelica. The appellants were clearly and totally
unaware of these other side-effects which manifested only during the chemotherapy treatment. This
was shown by the fact that every time a problem would take place regarding Angelica’s condition (like
an unexpected side-effect manifesting itself), they would immediately seek explanation from Dr. Rubi
Li. Surely, those unexpected side-effects culminating in the loss of a love[d] one caused the appellants
so much trouble, pain and suffering.

ISSUE: Whether Dr. Li is liable for medical malpractice on the ground of his defective
information which secured the consent of the victim’s parents

RULING: NO, Dr. Li is not liable

This Court has recognized that medical negligence cases are best proved by opinions of expert
witnesses belonging in the same general neighborhood and in the same general line of practice as
defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians
stems from the former’s realization that the latter possess unusual technical skills which laymen in
most instances are incapable of intelligently evaluating, hence the indispensability of expert
testimonies.52

In this case, both the trial and appellate courts concurred in finding that the alleged negligence of
petitioner in the administration of chemotherapy drugs to respondents’ child was not proven
considering that Drs. Vergara and Balmaceda, not being oncologists or cancer specialists, were not
qualified to give expert opinion as to whether petitioner’s lack of skill, knowledge and professional
competence in failing to observe the standard of care in her line of practice was the proximate cause
of the patient’s death. Furthermore, respondents’ case was not at all helped by the non-production of
medical records by the hospital (only the biopsy result and medical bills were submitted to the court).

Schoendorff v. Society of New York Hospital53 which involved unwanted treatment performed by a
doctor. Justice Benjamin Cardozo’s oft-quoted opinion upheld the basic right of a patient to give
consent to any medical procedure or treatment: "Every human being of adult years and sound mind
has a right to determine what shall be done with his own body; and a surgeon who performs an
operation without his patient’s consent, commits an assault, for which he is liable in damages."54
From a purely ethical norm, informed consent evolved into a general principle of law that a physician
has a duty to disclose what a reasonably prudent physician in the medical community in the exercise
of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred
from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare,
and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at
all, may intelligently exercise his judgment by reasonably balancing the probable risks against the
probable benefits.

The scope of disclosure is premised on the fact that patients ordinarily are persons unlearned in the
medical sciences. Proficiency in diagnosis and therapy is not the full measure of a physician’s
responsibility. It is also his duty to warn of the dangers lurking in the proposed treatment and to
impart information which the patient has every right to expect. Indeed, the patient’s reliance upon
the physician is a trust of the kind which traditionally has exacted obligations beyond those associated
with armslength transactions.58 The physician is not expected to give the patient a short medical
education, the disclosure rule only requires of him a reasonable explanation, which means generally
informing the patient in nontechnical terms as to what is at stake; the therapy alternatives open to
him, the goals expectably to be achieved, and the risks that may ensue from particular treatment or
no treatment.59 As to the issue of demonstrating what risks are considered material necessitating
disclosure, it was held that experts are unnecessary to a showing of the materiality of a risk to a
patient’s decision on treatment, or to the reasonably, expectable effect of risk disclosure on the
decision. Such unrevealed risk that should have been made known must further materialize, for
otherwise the omission, however unpardonable, is without legal consequence. And, as in malpractice
actions generally, there must be a causal relationship between the physician’s failure to divulge and
damage to the patient.

There are four essential elements a plaintiff must prove in a malpractice action based upon the
doctrine of informed consent: "(1) the physician had a duty to disclose material risks; (2) he failed to
disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to
disclose, the patient consented to treatment she otherwise would not have consented to; and (4)
plaintiff was injured by the proposed treatment." The gravamen in an informed consent case requires
the plaintiff to "point to significant undisclosed information relating to the treatment which would
have altered her decision to undergo it.64

Examining the evidence on record, we hold that there was adequate disclosure of material risks
inherent in the chemotherapy procedure performed with the consent of Angelica’s parents.
Respondents could not have been unaware in the course of initial treatment and amputation of
Angelica’s lower extremity, that her immune system was already weak on account of the malignant
tumor in her knee. When petitioner informed the respondents beforehand of the side effects of
chemotherapy which includes lowered counts of white and red blood cells, decrease in blood
platelets, possible kidney or heart damage and skin darkening, there is reasonable expectation on the
part of the doctor that the respondents understood very well that the severity of these side effects
will not be the same for all patients undergoing the procedure. In other words, by the nature of the
disease itself, each patient’s reaction to the chemical agents even with pre-treatment laboratory tests
cannot be precisely determined by the physician. That death can possibly result from complications
of the treatment or the underlying cancer itself, immediately or sometime after the administration of
chemotherapy drugs, is a risk that cannot be ruled out, as with most other major medical procedures,
but such conclusion can be reasonably drawn from the general side effects of chemotherapy already
disclosed.

As a physician, petitioner can reasonably expect the respondents to have considered the variables in
the recommended treatment for their daughter afflicted with a life-threatening illness. On the other
hand, it is difficult to give credence to respondents’ claim that petitioner told them of 95% chance of
recovery for their daughter, as it was unlikely for doctors like petitioner who were dealing with grave
conditions such as cancer to have falsely assured patients of chemotherapy’s success rate. Besides,
informed consent laws in other countries generally require only a reasonable explanation of potential
harms, so specific disclosures such as statistical data, may not be legally necessary.65

The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus
be reduced to one simplistic formula applicable in all instances. Further, in a medical malpractice
action based on lack of informed consent, "the plaintiff must prove both the duty and the breach of
that duty through expert testimony.66 Such expert testimony must show the customary standard of
care of physicians in the same practice as that of the defendant doctor.
 PSI v. Agana

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

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

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

However, the operation appeared to be flawed. In the corresponding Record of Operation dated April
11, 1984, the attending nurses entered these remarks: missing two gauzes, informed the surgeon,
searched was done but to no avail was not found, hence closed the incision.

After a couple of days, Natividad complained of excruciating pain in her anal region. She consulted
both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural consequence of
the surgery.

Natividad, accompanied by her husband, went to the United States to seek further treatment. After
four months of consultations and laboratory examinations, Natividad was told she was free of cancer.

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

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

Natividad and her husband filed with the RTC, Branch 96, Quezon City a complaint for damages
against the Professional Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr.
Fuentes, docketed as Civil Case No. Q-43322. They alleged that the latter are liable for negligence for
leaving two pieces of gauze inside Natividad’s body and malpractice for concealing their acts of
negligence.
RTC held them all liable for medical negligence, and for PSI solidarily liable by virtue of respondeat
superior. CA modified the decision, absolving Dr. Fuentes while the rest of the decision was affirmed

ISSUES: Whether Dr. Ampil is liable

• Whether Dr. Fuentes is Liable

• Whether PSI is Solidarily liable

RULINGS: YES, Dr. Ampil is liable

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

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

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

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

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

This is a clear case of medical malpractice or more appropriately, medical negligence. Dr, Ampil, as
the lead surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividad’s body
before closure of the incision. When he failed to do so, it was his duty to inform Natividad about it. Dr.
Ampil breached both duties. Such breach caused injury to Natividad, necessitating her further
examination by American doctors and another surgery. That Dr. Ampil’s negligence is the proximate
cause12 of Natividad’s injury could be traced from his act of closing the incision despite the
information given by the attending nurses that two pieces of gauze were still missing. That they were
later on extracted from Natividad’s vagina established the causal link between Dr. Ampil’s negligence
and the injury. And what further aggravated such injury was his deliberate concealment of the missing
gauzes from the knowledge of Natividad and her family.

• NO, Dr. Fuentes is not Liable

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

• YES, PSI is liable

One important legal change is an increase in hospital liability for medical malpractice. Many courts
now allow claims for hospital vicarious liability under the theories of respondeat superior, apparent
authority, ostensible authority, or agency by estoppel.

A prominent civilist commented that professionals engaged by an employer, such as physicians,

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

However, the efficacy of the foregoing doctrine has weakened with the significant developments in
medical care. Courts came to realize that modern hospitals are increasingly taking active role in
supplying and regulating medical care to patients. No longer were a hospital’s functions limited to
furnishing room, food, facilities for treatment and operation, and attendants for its patients.

However, the efficacy of the foregoing doctrine has weakened with the significant developments in
medical care. Courts came to realize that modern hospitals are increasingly taking active role in
supplying and regulating medical care to patients. No longer were a hospital’s functions limited to
furnishing room, food, facilities for treatment and operation, and attendants for its patients. After a
physician is accepted, either as a visiting or attending consultant, he is normally required to attend
clinico-pathological conferences. 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.

In other words, private hospitals, hire, fire and exercise real control over their attending and visiting
‘consultant’ staff. While ‘consultants’ are not, technically employees, x x x, the control exercised, the
hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-
employee relationship, with the exception of the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining.

On the “Holding out Theory” It imposes liability, not as the result of the reality of a contractual
relationship, but rather because of the actions of a principal or an employer in somehow misleading
the public into believing that the relationship or the authority exists.

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

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

PSI’s liability is traceable to its failure to conduct an investigation of the matter reported in the nota
bene of the count nurse. This means that the knowledge of any of the staff of Medical City Hospital
constitutes knowledge of PSI. Now, the failure of PSI, despite the attending nurses’ report, to
investigate and inform Natividad regarding the missing gauzes amounts to callous negligence. Not
only did PSI breach its duties to oversee or supervise all persons who practice medicine within its
walls, it also failed to take an active step in fixing the negligence committed.
 Ramos v. CA

FACTS: Erlinda Ramos underwent a surgical procedure to remove stone from her gall bladder
(cholecystectomy). They hired Dr. Hosaka, a surgeon, to conduct the surgery at the De Los Santos
Medical Center (DLSMC). Hosaka assured them that he would find a good anesthesiologist. But the
operation did not go as planned, Dr. Hosaka arrived 3 hours late for the operation, Dra. Gutierrez, the
anesthesiologist “botched” the administration of the anesthesia causing Erlinda to go into a coma and
suffer brain damage. The botched operation was witnessed by Herminda Cruz, sister in law of Erlinda
and Dean of College of Nursing of Capitol Medical Center.

The family of Ramos (petitioners) sued the hospital, the surgeon and the anesthesiologist for
damages. The petitioners showed expert testimony showing that Erlinda's condition was caused by
the anesthesiologist in not exercising reasonable care in “intubating” Erlinda. Eyewitnesses heard the
anesthesiologist saying “Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan.”

Diagnostic tests prior to surgery showed that Erlinda was robust and fit to undergo surgery.

The RTC held that the anesthesiologist ommitted to exercise due care in intubating the patient, the
surgeon was remiss in his obligation to provide a “good anesthesiologist” and for arriving 3 hours late
and the hospital is liable for the negligence of the doctors and for not cancelling the operation after
the surgeon failed to arrive on time. The surgeon, anesthesiologist and the DLSMC were all held jointly
and severally liable for damages to petitioners. The CA reversed the decision of the Trial Court.

ISSUE: Whether the Surgeon, Anesthesiologist, and the Hospital is guilty for damages

RULING: YES, they are all guilty for damages

Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself.
The phrase res ipsa loquitur is a maxim for the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or raise a presumption of negligence,
or make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with an
explanation.[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 defendants want of care.[14]

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of occurrences may justify an inference
of negligence on the part of the person who controls the instrumentality causing the injury in the
absence of some explanation by the defendant who is charged with negligence.[15] It is grounded in
the superior logic of ordinary human experience and on the basis of such experience or common
knowledge, negligence may be deduced from the mere occurrence of the accident itself.[16] Hence,
res ipsa loquitur is applied in conjunction with the doctrine of common knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does
not create or constitute an independent or separate ground of liability.[17] Instead, it is considered
as merely evidentiary or in the nature of a procedural rule.[18] It is regarded as a mode of proof, or a
mere procedural 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 someones 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.

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

It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter
of common knowledge and observation, that the consequences of professional care were not as such
as would ordinarily have followed if due care had been exercised.[37] A distinction must be made
between the failure to secure results, and the occurrence of something more unusual and not
ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in
that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a
scientific treatment.[38] The physician or surgeon is not required at his peril to explain why any
particular diagnosis was not correct, or why any particular scientific treatment did not produce the
desired result.

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

On Proximate Cause: 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 patients 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 patients 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.

In Re Anesthesiologist: 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.

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 patients medical records and visits with
the patient, traditionally, the day before elective surgery.[53] It includes taking the patients medical
history, review of current drug therapy, physical examination and interpretation of laboratory data.

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 physicians centuries-old Hippocratic Oath. Her failure to follow this medical procedure
is, therefore, a clear indicia of her negligence.

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 Erlindas 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.

In Re Surgeon: 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. Hosakas 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 latters 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 Erlindas condition.

In Re Hospital: 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 patients 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 petitioners 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 formers 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 Erlindas condition.

In Re Hospital (MR DECISION): Court finds that respondent hospitals position on this issue is
meritorious. There is no employer-employee relationship between DLSMC and Drs. Gutierrez and
Hosaka which would hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under
Article 2180 of the Civil Code.

As explained by respondent hospital, that the admission of a physician to membership in DLSMCs

medical staff as active or visiting consultant is first decided upon by the Credentials Committee
thereof, which is composed of the heads of the various specialty departments such as the Department
of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the particular specialty
applied for as chairman. The Credentials Committee then recommends to DLSMC's Medical Director
or Hospital Administrator the acceptance or rejection of the applicant physician, and said director or
administrator validates the committee's recommendation.[52] Similarly, in cases where a
disciplinary action is lodged against a consultant, the same is initiated by the department to whom
the consultant concerned belongs and filed with the Ethics Committee consisting of the department
specialty heads. The medical director/hospital administrator merely acts as ex-officio member of said
committee.

Neither is there any showing that it is DLSMC which pays any of its consultants for medical services
rendered by the latter to their respective patients. Moreover, the contract between the consultant in
respondent hospital and his patient is separate and distinct from the contract between respondent
hospital and said patient. The first has for its object the rendition of medical services by the consultant
to the patient, while the second concerns the provision by the hospital of facilities and services by its
staff such as nurses and laboratory personnel necessary for the proper treatment of the patient.

Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a
failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary for her
treatment.

For these reasons, we reverse the finding of liability on the part of DLSMC for the injury suffered by
petitioner Erlinda.
 Negligence of Lawyers

Adarne v. Atty. Aldaba

FACTS: The record shows that sometime in 1958, Raymunda Cumpio and her husband, Rufo Cumpio,
filed an action for forcible entry against herein complaint Cesario Adarne, Aning Arante, and Miguel
Inokando with the Justice of the Peace of Alang-alang Leyte. The case was docketed in the said court
as Civil Case No. 96. Atty. Isauro Marmita represented the defendants who raised the issue of
ownership of the land in question. After hearing the parties, the Justice of the Peace dismissed the
complaint for lack of jurisdiction. Consequently, the plaintiffs therein appealed to the Court of First
Instance of Leyte and the case was assigned to Branch VI of Carigara, where it was docketed as Civil
Case No. 556. Resolving the issue interposed by the appellants, the Judge of the Court of First Instance
found that the Justice of the Peace Court has jurisdiction over the case and returned the same to the
lower court for trial on the merits. After trial on the merits, the Justice of the Peace again dismissed
the case and the plaintiffs again appealed to the Court of First Instance of Leyte where the case was
docketed anew as Civil Case No, 632. Attys. Arturo Mirales and Generoso Casimpan filed the answer
for the defendants.

At the hearing of the case on August 7, 1961, the herein complainant Cesario Adarne, one of the
defendants in the aforementioned Civil Case No. 632, noting that his attorneys had not yet arrived,
prevailed upon the respondent Atty. Damian Aldaba, who was then present in court to attend the trial
of an electoral case, to appear as counsel for them and ask for the Postponement of the trial. The
respondent, who is a third degree cousin of the complainant, agreed, and entered a special
appearance. Upon noticing that the plaintiffs and their counsel were not also present in court, the
respondent, instead of asking for a postponement, moved for the dismissal of the case. "is motion was
granted and the case was again dismissed. Thereafter, the plaintiff filed a motion for the
reconsideration of the order, 2 to which the respondent filed an opposition in behalf of the defendants,
3 and the motion was denied. 4 Whereupon, the plaintiffs appealed to the Court of Appeals. After
appropriate. proceedings, the appellee court set aside the order of dismissal and remanded the case
to the lower court for further proceedings.

At the hearing of the case on October 23, 1964 before the Court of First Instance of Leyte, the
respondent was again prevailed upon by the complainant to appear in his behalf. The respondent
entered a "special appearance" for the complainant and thereafter argued that the interest of justice
would best be served of the defendants were allowed to file an action for quieting of title and the case
heard jointly with the pending action for forcible entry. Finding merit in the argument, the court
ordered the defendant Cesario Adarne to file an action for quieting of title within one (1) week and
the plaintiffs to answer the same within the reglementary period, after which both cases would be
tried jointly. The hearing was deferred until after the filing of the action for quieting of title. 5

However RTC ruled against complainant herein, prompting them to file an administrative complaint
against Atty. Aldaba for failure to give his entire devotion to the interest of his client, warm zeal in the
. maintenance and defense of his rights, and exertion of his utmost learning and ability in the
prosecution and defense of his client, and for not taking steps to protect the interests of his client in
the face of an adverse decision.

ISSUE: Whether Atty. Aldaba’s negligence resulted into the dismissal of the case of herein
plaintiff

RULING: NO, Atty. Aldaba is not negligent

The judgment by default rendered against the complainant cannot be attributed to the respondent
attorney. The blame lies with the complainant for having engaged the services of several lawyers to
handle his case without formally withdrawing the authority he had given to them to appear in his
behalf as to place the responsibility upon the respondent. To add to the confusion, the complainant
had also requested the clerk of court of the Court of First Instance of Leyte that he (complainant) be
furnished with summons and subpoena accorded to him. 10 He also filed a motion by himself, 11 thus
implying that he was handling his case personally.

It appears that there have been three changes made of the attorneys for the complainant in the
forcible entry case. The complainant was originally represented by Atty. Isauro Marmita who, upon
his appointment to the Department of Labor, engaged Atty. de Veyra to take his place. 12 Then came
Atty. Arturo Mirales and later, Atty. Generoso Casimpan. However, no formalities whatever were
observed in those changes such that the respondent entered a "special appearance" for the
complainant in order that he could ask for the dismissal of the case for the failure of the adverse party
to prosecute. The rule followed on matters of substitution of attorneys as laid down by this Court is
that no substitution of attorneys will be allowed unless there be filed: (1) a written application for
such substitution; (2) the written consent of the client; (3) the written consent of the attorney
substituted; and (4) in case such written consent can not be secured, there must be filed with the
application proof of service of notice of such motion upon the attorney to be substituted, in the
manner prescribed by the rules. Unless the foregoing formalities are complied with, substitution will
not be permitted, and the attorney who properly appeared last in the cause, before such application
for substitution, will be regarded as the attorney of record and will be held responsible for the proper
conduct of the cause. 13

Besides, the respondent honestly believed that he had appeared for the complainant only for a special
purpose and that the complainant had agreed to contact his attorney of record to handle his case after
the hearing of October 23, 1964, so that he did nothing more about it. 14 It was neither gross
negligence nor omission to have entertained such belief. An attorney is not bound to exercise
extraordinary diligence, but only a reasonable degree of care and skill, having reference to the
character of the business he undertakes to do. Prone to err like any other human being, he is not
answerable for every error or mistake, and will be protected as long as he acts honestly and in good
faith to the best of his skill and knowledge.
 Atienza v. Atty. Evangelista

Negligence of a counsel should be proven, otherwise the presumption of regularity in the performance
operates

FACTS: In a complaint filed with this Court by Maria Luz Atienza, respondent Vicente Evangelista, a
member of the Philippine Bar, was charged with unprofessional conduct unbecoming a member of
the bar. It was alleged that he was remiss in attending to her case with the Manila City Fiscal's Office
notwithstanding his having been retained and paid for his services. He was required to answer. That
he did. There was an admission on his part of his having been retained, but he denied any imputation
of lack of due diligence in performing the legal services required of him. He asserted that he had
always conducted himself in a manner expected of a lawyer. This notwithstanding, there was a
recommendation by the investigating fiscal that the case be dropped for insufficiency of evidence.
Then and there, complainant dispensed with his services and shortly thereafter took from him all the
papers connected with such a case. It was his assumption therefore that he "was no longer under
obligation to participate in any proceeding in connection with said case. That duty had been shifted
to the new lawyer of Mrs. Atienza in the case involving her husband."

Thereafter, this Court, on December 5, 1975, resolved to refer the administrative complaint to the
Solicitor General for investigation, report, and recommendation. There was such an investigation,
with the report being submitted to this Court on March 17, 1977. The recommendation was for the
dismissal of the complaint against respondent.

ISSUE: Whether Atty. Evangelista was negligent in the performance of his duty

RULING: NO, he was not negligent

The report then proceeded in this wise: "The primary issue in this case is whether the respondent
was wilfully negligent in the performance of his duties as counsel to the complainant to the damage
and prejudice of the latter. As a rule, an attorney enjoys the legal presumption that he is innocent of
the charges until the contrary is proved, and, as an officer of the court, he has performed his duty in
accordance with his oath. (In re Tiongko, 43 Phil. 191). Thus, in every case of disbarment the burden
of proof lies with the complainant to show that the respondent is guilty of the acts charged.

In the present case, there is no sufficient evidence showing that the respondent lawyer violated his
oath or was negligent in handling the complainant's case. The respondent personally prepared the
complaint of Mrs. Atienza and filed this with the Fiscal's Office. When the case was set for preliminary
investigation, he was present in no less than 15 scheduled hearings. He presented as witnesses the
complainant and four other persons. These facts are home by the case record and admitted by the
complainant. (pp. 73-400, t.s.n., March 10, 1976). The complainant's case was dismissed apparently
because of the failure of the complainant's witnesses to submit to cross-examination. This is clear
from a reading of Fiscal Agdamag's memorandum ... The said memorandum reads: that the hearing of
the case has been continuously postponed several times because of the failure of the prosecution
witnesses to appear; that on October 10, 1972, the counsel for the complainant, together with his
client, manifested into the record that should they be unable to produce the witnesses at the next
hearing they would submit their case on the basis of the evidence already on record that on October
25, 1972, 'only the counsel for the complainant appeared, His client and their wit did not arrive ... '
Atty. Evangelista was, thus, constrained to submit the case on the basis of the evidence already on
record. These facts do not indicate negligence on the Part of the respondent. The complainant who
was present during the hearing of October 10, 1972 was fully aware that she still had to present two
of her witnesses for cross-examination on the next scheduled hearing."

This Court is in agreement. 7 It would be to place an intolerable burden on a member of the bar if just
because a client jailed to obtain what is sought by her after due exertion of the required effort on his
part, he would be held accountable. Success in a litigation is certainly not the test of whether or not a
lawyer had lived up to his duties to a client. It is enough that with the thorough preparation of the
case handled by him, he had taken all the steps to prosecute his suit. If thereafter the result would be
the frustration of his client's hopes, that is a cause for disappointment, no doubt for him no less than
for his client, but not for disciplinary action. He is more to be sympathized with than condemned - on
the assumption of course that he did what was expected of him.
 Bank of the Philippine Islands v. Casa Montessori Internationale

Negligence of the company who hires an independent auditor

FACTS: "On November 8, 1982, plaintiff CASA Montessori International5 opened Current Account No.
0291-0081-01 with defendant BPI[,] with CASA’s President Ms. Ma. Carina C. Lebron as one of its
authorized signatories.

"In 1991, after conducting an investigation, plaintiff discovered that nine (9) of its checks had been
encashed by a certain Sonny D. Santos since 1990 in the total amount of ₱782,000.00

It turned out that ‘Sonny D. Santos’ with account at BPI’s Greenbelt Branch [was] a fictitious name
used by third party defendant Leonardo T. Yabut who worked as external auditor of CASA. Third party
defendant voluntarily admitted that he forged the signature of Ms. Lebron and encashed the checks.
"The PNP Crime Laboratory conducted an examination of the nine (9) checks and concluded that the
handwritings thereon compared to the standard signature of Ms. Lebron were not written by the
latter.

"On March 4, 1991, plaintiff filed the herein Complaint for Collection with Damages against defendant
bank praying that the latter be ordered to reinstate the amount of ₱782,500.007 in the current and
savings accounts of the plaintiff with interest at 6% per annum.

"On February 16, 1999, the RTC rendered the appealed decision in favor of the plaintiff."

Modifying the Decision of the Regional Trial Court (RTC), the CA apportioned the loss between BPI
and CASA. The appellate court took into account CASA’s contributory negligence that resulted in the
undetected forgery. It then ordered Leonardo T. Yabut to reimburse BPI half the total amount
claimed; and CASA, the other half. It also disallowed attorney’s fees and moral and exemplary
damages.

ISSUE: Whether CASA is negligent for failure to oversee and notice the modus of their
independent auditor

RULING: NO, it is not negligent

For allowing payment100 on the checks to a wrongful and fictitious payee, BPI -- the drawee bank --
becomes liable to its depositor-drawer. Since the encashing bank is one of its branches,101 BPI can
easily go after it and hold it liable for reimbursement.102 It "may not debit the drawer’s account103
and is not entitled to indemnification from the drawer."104 In both law and equity, when one of two
innocent persons "must suffer by the wrongful act of a third person, the loss must be borne by the
one whose negligence was the proximate cause of the loss or who put it into the power of the third
person to perpetrate the wrong."

Pursuant to its prime duty to ascertain well the genuineness of the signatures of its client-depositors
on checks being encashed, BPI is "expected to use reasonable business prudence."108 In the
performance of that obligation, it is bound by its internal banking rules and regulations that form part
of the contract it enters into with its depositors.109

Unfortunately, it failed in that regard. First, Yabut was able to open a bank account in one of its
branches without privity;110 that is, without the proper verification of his corresponding
identification papers. Second, BPI was unable to discover early on not only this irregularity, but also
the marked differences in the signatures on the checks and those on the signature card. Third, despite
the examination procedures it conducted, the Central Verification Unit111 of the bank even passed
off these evidently different signatures as genuine. Without exercising the required prudence on its
part, BPI accepted and encashed the eight checks presented to it. As a result, it proximately
contributed to the fraud and should be held primarily liable112 for the "negligence of its officers or
agents when acting within the course and scope of their employment."113 It must bear the loss.

Yabut was an independent auditor125 hired by CASA. He handled its monthly bank reconciliations
and had access to all relevant documents and checkbooks.126 In him was reposed the client’s127
trust and confidence128 that he would perform precisely those functions and apply the appropriate
procedures in accordance with generally accepted auditing standards.129 Yet he did not meet these
expectations. Nothing could be more horrible to a client than to discover later on that the person
tasked to detect fraud was the same one who perpetrated it.

It is a non sequitur to say that the person who receives the monthly bank statements, together with
the cancelled checks and other debit/credit memoranda, shall examine the contents and give notice
of any discrepancies within a reasonable time. Awareness is not equipollent with discernment.

Besides, in the internal accounting control system prudently installed by CASA,130 it was Yabut who
should examine those documents in order to prepare the bank reconciliations.131 He owned his
working papers,132 and his output consisted of his opinion as well as the client’s financial statements
and accompanying notes thereto. CASA had every right to rely solely upon his output -- based on the
terms of the audit engagement -- and could thus be unwittingly duped into believing that everything
was in order. Besides, "[g]ood faith is always presumed and it is the burden of the party claiming
otherwise to adduce clear and convincing evidence to the contrary."133

Moreover, there was a time gap between the period covered by the bank statement and the date of its
actual receipt. Lebron personally received the December 1990 bank statement only in January
1991134 -- when she was also informed of the forgery for the first time, after which she immediately
requested a "stop payment order." She cannot be faulted for the late detection of the forged December
check. After all, the bank account with BPI was not personal but corporate, and she could not be
expected to monitor closely all its finances.

There is also a cutoff period such that checks issued during a given month, but not presented for
payment within that period, will not be reflected therein.135 An experienced auditor with intent to
defraud can easily conceal any devious scheme from a client unwary of the accounting processes
involved by manipulating the cash balances on record -- especially when bank transactions are
numerous, large and frequent. CASA could only be blamed, if at all, for its unintelligent choice in the
selection and appointment of an auditor -- a fault that is not tantamount to negligence.

Negligence is not presumed, but proven by whoever alleges it.136 Its mere existence "is not sufficient
without proof that it, and no other cause,"137 has given rise to damages.138 In addition, this fault is
common to, if not prevalent among, small and medium-sized business entities, thus leading the
Professional Regulation Commission (PRC), through the Board of Accountancy (BOA), to require
today not only accreditation for the practice of public accountancy,139 but also the registration of
firms in the practice thereof. In fact, among the attachments now required upon registration are the
code of good governance140 and a sworn statement on adequate and effective training.141

The bookkeeper144 who had exclusive custody of the checkbooks145 did not have to go directly to
CASA’s president or to BPI. Although she rightfully reported the matter, neither an investigation was
conducted nor a resolution of it was arrived at, precisely because the person at the top of the helm
was the culprit. The vouchers, invoices and check stubs in support of all check disbursements could
be concealed or fabricated -- even in collusion -- and management would still have no way to verify
its cash accountabilities.

Clearly then, Yabut was able to perpetrate the wrongful act through no fault of CASA. If auditors may
be held liable for breach of contract and negligence,146 with all the more reason may they be charged
with the perpetration of fraud upon an unsuspecting client. CASA had the discretion to pursue BPI
alone under the NIL, by reason of expediency or munificence or both. Money paid under a mistake
may rightfully be recovered,147 and under such terms as the injured party may choose.