Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-12986             March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the

HEIRS OF DOMINGA ONG, petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF
APPEALS, respondents-appellees.

Ross, Selph, Carrascoso and Janda for the respondents.

Bernabe Africa, etc. for the petitioners.

MAKALINTAL., J.:

This case is before us on a petition for review of the decision of the Court of
Appeals, which affirmed that of the Court of First Instance of Manila
dismissing petitioners' second amended complaint against respondents.

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.

The first question before Us refers to the admissibility of certain reports on

the fire prepared by the Manila Police and Fire Departments and by a
certain Captain Tinio of the Armed Forces of the Philippines. Portions of the
first two reports are as follows:

1. Police Department report: —

Investigation disclosed that at about 4:00 P.M. March 18, 1948,

while Leandro Flores was transferring gasoline from a tank
truck, plate No. T-5292 into the underground tank of the Caltex
Gasoline Station located at the corner of Rizal Avenue and
Antipolo Street, this City, an unknown Filipino lighted a cigarette
and threw the burning match stick near the main valve of the
said underground tank. Due to the gasoline fumes, fire
suddenly blazed. Quick action of Leandro Flores in pulling off
the gasoline hose connecting the truck with the underground
tank prevented a terrific explosion. However, the flames
scattered due to the hose from which the gasoline was
spouting. It burned the truck and the following accessorias and
residences.

2. The Fire Department report: —

In connection with their allegation that the premises was (sic)

subleased for the installation of a coca-cola and cigarette stand, the
complainants furnished this Office a copy of a photograph taken
during the fire and which is submitted herewith. it appears in this
picture that there are in the premises a coca-cola cooler and a rack
which according to information gathered in the neighborhood
contained cigarettes and matches, installed between the gasoline
pumps and the underground tanks.

The report of Captain Tinio reproduced information given by a certain

Benito Morales regarding the history of the gasoline station and what the
chief of the fire department had told him on the same subject.

The foregoing reports were ruled out as "double hearsay" by the Court of
Appeals and hence inadmissible. This ruling is now assigned as error. It is
contended: first, that said reports were admitted by the trial court without
objection on the part of respondents; secondly, that with respect to the
police report (Exhibit V-Africa) which appears signed by a Detective
Zapanta allegedly "for Salvador Capacillo," the latter was presented as
witness but respondents waived their right to cross-examine him although
they had the opportunity to do so; and thirdly, that in any event the said
reports are admissible as an exception to the hearsay rule under section 35
of Rule 123, now Rule 130.

The first contention is not borne out by the record. The transcript of the
hearing of September 17, 1953 (pp. 167-170) shows that the reports in
question, when offered as evidence, were objected to by counsel for each
of respondents on the ground that they were hearsay and that they were
"irrelevant, immaterial and impertinent." Indeed, in the court's resolution
only Exhibits J, K, K-5 and X-6 were admitted without objection; the
admission of the others, including the disputed ones, carried no such
explanation.

On the second point, although Detective Capacillo did take the witness
stand, he was not examined and he did not testify as to the facts mentioned
in his alleged report (signed by Detective Zapanta). All he said was that he
was one of those who investigated "the location of the fire and, if possible,
gather witnesses as to the occurrence, and that he brought the report with
him. There was nothing, therefore, on which he need be cross-examined;
and the contents of the report, as to which he did not testify, did not thereby
become competent evidence. And even if he had testified, his testimony
would still have been objectionable as far as information gathered by him
from third persons was concerned.

Petitioners maintain, however, that the reports in themselves, that is,

without further testimonial evidence on their contents, fall within the scope
of section 35, Rule 123, which provides that "entries in official records
made in the performance of his duty by a public officer of the Philippines, or
by a person in the performance of a duty specially enjoined by law,
are prima facie evidence of the facts therein stated."

There are three requisites for admissibility under the rule just mentioned:
(a) that the entry was made by a public officer, or by another person
specially enjoined by law to do so; (b) that it was made by the public officer
in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and (c) that the public
officer or other person had sufficient knowledge of the facts by him stated,
which must have been acquired by him personally or through official
information (Moran, Comments on the Rules of Court, Vol. 3 [1957] p. 398).
Of the three requisites just stated, only the last need be considered here.
Obviously the material facts recited in the reports as to the cause and
circumstances of the fire were not within the personal knowledge of the
officers who conducted the investigation. Was knowledge of such facts,
however, acquired by them through official information? As to some facts
the sources thereof are not even identified. Others are attributed to
Leopoldo Medina, referred to as an employee at the gas station were the
fire occurred; to Leandro Flores, driver of the tank truck from which
gasoline was being transferred at the time to the underground tank of the
station; and to respondent Mateo Boquiren, who could not, according to
Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their
statements as "official information" acquired by the officers who prepared
the reports, the persons who made the statements not only must have
personal knowledge of the facts stated but must have the duty to give such
statements for record.1

The reports in question do not constitute an exception to the hearsay rule;

the facts stated therein were not acquired by the reporting officers through
official information, not having been given by the informants pursuant to
any duty to do so.

The next question is whether or not, without proof as to the cause and
origin of the fire, the doctrine of res ipsa loquitur should apply so as to
presume negligence on the part of appellees. Both the trial court and the
appellate court refused to apply the doctrine in the instant case on the
grounds that "as to (its) applicability ... in the Philippines, there seems to he
nothing definite," and that while the rules do not prohibit its adoption in
appropriate cases, "in the case at bar, however, we find no practical use for
such doctrine." The question deserves more than such summary dismissal.
The doctrine has actually been applied in this jurisdiction, in the case
of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No. 3240-
R, September 20, 1949), wherein the decision of the Court of Appeals was
penned by Mr. Justice J.B.L. Reyes now a member of the Supreme Court.

The facts of that case are stated in the decision as follows:

In the afternoon of May 5, 1946, while the plaintiff-appellee and other

companions were loading grass between the municipalities of Bay
and Calauan, in the province of Laguna, with clear weather and
without any wind blowing, an electric transmission wire, installed and
 maintained by the defendant Philippine Power and Development Co.,
Inc. alongside the road, suddenly parted, and one of the broken ends
hit the head of the plaintiff as he was about to board the truck. As a
result, plaintiff received the full shock of 4,400 volts carried by the
wire and was knocked unconscious to the ground. The electric
charge coursed through his body and caused extensive and serious
multiple burns from skull to legs, leaving the bone exposed in some
parts and causing intense pain and wounds that were not completely
healed when the case was tried on June 18, 1947, over one year
after the mishap.

The defendant therein disclaimed liability on the ground that the plaintiff
had failed to show any specific act of negligence, but the appellate court
overruled the defense under the doctrine of res ipsa loquitur. The court
said:

The first point is directed against the sufficiency of plaintiff's evidence

to place appellant on its defense. 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."

And the burden of evidence is shifted to him to establish that he

has observed due care and diligence. (San Juan Light & Transit
Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by
the name of res ipsa loquitur (the transaction speaks for itself),
and is peculiarly applicable to the case at bar, where it is
unquestioned that the plaintiff had every right to be on the highway,
and the electric wire was under the sole control of defendant
company. In the ordinary course of events, electric wires do not part
suddenly in fair weather and injure people, unless they are subjected
to unusual strain and stress or there are defects in their installation,
maintenance and supervision; just as barrels do not ordinarily roll out
of the warehouse windows to injure passersby, unless some one was
 negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the
leading case that established that rule). Consequently, in the
absence of contributory negligence (which is admittedly not
present), the fact that the wire snapped suffices to raise a
reasonable presumption of negligence in its installation, care
and maintenance. Thereafter, as observed by Chief Baron Pollock,
"if there are any facts inconsistent with negligence, it is for the
defendant to prove."

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. A case strikingly similar to the one before Us is
Jones vs. Shell Petroleum Corporation, et al., 171 So. 447:

Arthur O. Jones is the owner of a building in the city of Hammon

which in the year 1934 was leased to the Shell Petroleum
Corporation for a gasoline filling station. On October 8, 1934, during
the term of the lease, while gasoline was being transferred from the
tank wagon, also operated by the Shell Petroleum Corporation, to the
underground tank of the station, a fire started with resulting damages
to the building owned by Jones. Alleging that the damages to his
building amounted to $516.95, Jones sued the Shell Petroleum
Corporation for the recovery of that amount. The judge of the district
court, after hearing the testimony, concluded that plaintiff was entitled
to a recovery and rendered judgment in his favor for $427.82. The
Court of Appeals for the First Circuit reversed this judgment, on the
ground the testimony failed to show with reasonable certainty any
negligence on the part of the Shell Petroleum Corporation or any of
its agents or employees. Plaintiff applied to this Court for a Writ of
Review which was granted, and the case is now before us for
decision.1äwphï1.ñët

In resolving the issue of negligence, the Supreme Court of Louisiana held:

Plaintiff's petition contains two distinct charges of negligence — one
relating to the cause of the fire and the other relating to the spreading
of the gasoline about the filling station.

Other than an expert to assess the damages caused plaintiff's

building by the fire, no witnesses were placed on the stand by the
defendant.

Taking up plaintiff's charge of negligence relating to the cause of the

fire, we find it established by the record that the filling station and the
tank truck were under the control of the defendant and operated by its
agents or employees. We further find from the uncontradicted
testimony of plaintiff's witnesses that fire started in the underground
tank attached to the filling station while it was being filled from the
tank truck and while both the tank and the truck were in charge of and
being operated by the agents or employees of the defendant,
extended to the hose and tank truck, and was communicated from
the burning hose, tank truck, and escaping gasoline to the building
owned by the plaintiff.

Predicated on these circumstances and the further circumstance of

defendant's failure to explain the cause of the fire or to show its lack
of knowledge of the cause, plaintiff has evoked the doctrine of res
ipsa loquitur. There are many cases in which the doctrine may be
successfully invoked and this, we think, is one of them.

Where the thing which caused the injury complained of is shown to

be under the management of defendant or his servants and the
accident is such as in the ordinary course of things does not happen
if those who have its management or control use proper care, it
affords reasonable evidence, in absence of explanation by defendant,
that the accident arose from want of care. (45 C.J. #768, p. 1193).

This statement of the rule of res ipsa loquitur has been widely

approved and adopted by the courts of last resort. Some of the cases
in this jurisdiction in which the doctrine has been applied are the
following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So. 977;
Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64
L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R. Co.,
115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal force
here. 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.

In the report submitted by Captain Leoncio Mariano of the Manila Police

Department (Exh. X-1 Africa) the following appears:

Investigation of the basic complaint disclosed that the Caltex

Gasoline Station complained of occupies a lot approximately 10 m x
10 m at the southwest corner of Rizal Avenue and Antipolo. The
location is within a very busy business district near the Obrero
Market, a railroad crossing and very thickly populated neighborhood
where a great number of people mill around until gasoline

tever be theWactjvities of these peopleor lighting a cigarette cannot

be excluded and this constitute a secondary hazard to its operation
which in turn endangers the entire neighborhood to conflagration.

Furthermore, aside from precautions already taken by its operator the

concrete walls south and west adjoining the neighborhood are only 2-
1/2 meters high at most and cannot avoid the flames from leaping
over it in case of fire.

Records show that there have been two cases of fire which caused
not only material damages but desperation and also panic in the
neighborhood.

Although the soft drinks stand had been eliminated, this gasoline
service station is also used by its operator as a garage and repair
shop for his fleet of taxicabs numbering ten or more, adding another
risk to the possible outbreak of fire at this already small but crowded
gasoline station.

The foregoing report, having been submitted by a police officer in the

performance of his duties on the basis of his own personal observation of
the facts reported, may properly be considered as an exception to the
hearsay rule. These facts, descriptive of the location and objective
circumstances surrounding the operation of the gasoline station in
question, strengthen the presumption of negligence under the doctrine of
res ipsa loquitur, since on their face they called for more stringent
measures of caution than those which would satisfy the standard of due
diligence under ordinary circumstances. There is no more eloquent
demonstration of this than the statement of Leandro Flores before the
police investigator. Flores was the driver of the gasoline tank wagon who,
alone and without assistance, was transferring the contents thereof into the
underground storage when the fire broke out. He said: "Before loading the
underground tank there were no people, but while the loading was going
on, there were people who went to drink coca-cola (at the coca-cola stand)
which is about a meter from the hole leading to the underground tank." He
added that when the tank was almost filled he went to the tank truck to
close the valve, and while he had his back turned to the "manhole" he,
heard someone shout "fire."

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.

There is an admission on the part of Boquiren in his amended answer to

the second amended complaint that "the fire was caused through the acts
of a stranger who, without authority, or permission of answering defendant,
passed through the gasoline station and negligently threw a lighted match
in the premises." No evidence on this point was adduced, but assuming the
allegation to be true — certainly any unfavorable inference from the
admission may be taken against Boquiren — it does not extenuate his
negligence. A decision of the Supreme Court of Texas, upon facts
analogous to those of the present case, states the rule which we find
acceptable here. "It is the rule that those who distribute a dangerous article
or agent, owe a degree of protection to the public proportionate to and
commensurate with a danger involved ... we think it is the generally
accepted rule as applied to torts that 'if the effects of the actor's
negligent conduct actively and continuously operate to bring about
harm to another, the fact that the active and substantially
simultaneous operation of the effects of a third person's innocent,
tortious or criminal act is also a substantial factor in bringing about
the harm, does not protect the actor from liability.' (Restatement of the
Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention
of an unforeseen and unexpected cause, is not sufficient to relieve a
wrongdoer from consequences of negligence, if such negligence
directly and proximately cooperates with the independent cause in
the resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153
S.W. 2nd 442.)

The next issue is whether Caltex should be held liable for the damages
caused to appellants. This issue depends on whether Boquiren was an
independent contractor, as held by the Court of Appeals, or an agent of
Caltex. This question, in the light of the facts not controverted, is one of law
and hence may be passed upon by this Court. These facts are: (1)
Boquiren made an admission that he was an agent of Caltex; (2) at the
time of the fire Caltex owned the gasoline station and all the equipment
therein; (3) Caltex exercised control over Boquiren in the management of
the state; (4) the delivery truck used in delivering gasoline to the station
had the name of CALTEX painted on it; and (5) the license to store
gasoline at the station was in the name of Caltex, which paid the license
fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6
Africa; Exhibit Y-Africa).

In Boquiren's amended answer to the second amended complaint, he

denied that he directed one of his drivers to remove gasoline from the truck
into the tank and alleged that the "alleged driver, if one there was, was not
in his employ, the driver being an employee of the Caltex (Phil.) Inc. and/or
the owners of the gasoline station." It is true that Boquiren later on
amended his answer, and that among the changes was one to the effect
that he was not acting as agent of Caltex. But then again, in his motion to
dismiss appellants' second amended complaint the ground alleged was that
it stated no cause of action since under the allegations thereof he was
merely acting as agent of Caltex, such that he could not have incurred
personal liability. A motion to dismiss on this ground is deemed to be an
admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment
therein, but claims that the business conducted at the service station in
question was owned and operated by Boquiren. But Caltex did not present
any contract with Boquiren that would reveal the nature of their relationship
at the time of the fire. There must have been one in existence at that time.
Instead, what was presented was a license agreement manifestly tailored
for purposes of this case, since it was entered into shortly before the
expiration of the one-year period it was intended to operate. This so-called
license agreement (Exhibit 5-Caltex) was executed on November 29, 1948,
but made effective as of January 1, 1948 so as to cover the date of the fire,
namely, March 18, 1948. This retroactivity provision is quite significant, and
gives rise to the conclusion that it was designed precisely to free Caltex
from any responsibility with respect to the fire, as shown by the clause that
Caltex "shall not be liable for any injury to person or property while in the
property herein licensed, it being understood and agreed that LICENSEE
(Boquiren) is not an employee, representative or agent of LICENSOR
(Caltex)."

But even if the license agreement were to govern, Boquiren can hardly be
considered an independent contractor. Under that agreement Boquiren
would pay Caltex the purely nominal sum of P1.00 for the use of the
premises and all the equipment therein. He could sell only Caltex Products.
Maintenance of the station and its equipment was subject to the approval,
in other words control, of Caltex. Boquiren could not assign or transfer his
rights as licensee without the consent of Caltex. The license agreement
was supposed to be from January 1, 1948 to December 31, 1948, and
thereafter until terminated by Caltex upon two days prior written notice.
Caltex could at any time cancel and terminate the agreement in case
Boquiren ceased to sell Caltex products, or did not conduct the business
with due diligence, in the judgment of Caltex. Termination of the contract
was therefore a right granted only to Caltex but not to Boquiren. These
provisions of the contract show the extent of the control of Caltex over
Boquiren. The control was such that the latter was virtually an employee of
the former.

Taking into consideration the fact that the operator owed his position
to the company and the latter could remove him or terminate his
services at will; that the service station belonged to the company and
bore its tradename and the operator sold only the products of the
company; that the equipment used by the operator belonged to the
 company and were just loaned to the operator and the company took
charge of their repair and maintenance; that an employee of the
company supervised the operator and conducted periodic inspection
of the company's gasoline and service station; that the price of the
products sold by the operator was fixed by the company and not by
the operator; and that the receipts signed by the operator indicated
that he was a mere agent, the finding of the Court of Appeals that the
operator was an agent of the company and not an independent
contractor should not be disturbed.

To determine the nature of a contract courts do not have or are not

bound to rely upon the name or title given it by the contracting
parties, should thereby a controversy as to what they really had
intended to enter into, but the way the contracting parties do or
perform their respective obligations stipulated or agreed upon may be
shown and inquired into, and should such performance conflict with
the name or title given the contract by the parties, the former must
prevail over the latter. (Shell Company of the Philippines, Ltd. vs.
Firemens' Insurance Company of Newark, New Jersey, 100 Phil.
757).

The written contract was apparently drawn for the purpose of creating
the apparent relationship of employer and independent contractor,
and of avoiding liability for the negligence of the employees about the
station; but the company was not satisfied to allow such relationship
to exist. The evidence shows that it immediately assumed control,
and proceeded to direct the method by which the work contracted for
should be performed. By reserving the right to terminate the contract
at will, it retained the means of compelling submission to its orders.
Having elected to assume control and to direct the means and
methods by which the work has to be performed, it must be held
liable for the negligence of those performing service under its
direction. We think the evidence was sufficient to sustain the verdict
of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).

Caltex further argues that the gasoline stored in the station belonged
to Boquiren. But no cash invoices were presented to show that
Boquiren had bought said gasoline from Caltex. Neither was there a
sales contract to prove the same.
As found by the trial court the Africas sustained a loss of P9,005.80, after
deducting the amount of P2,000.00 collected by them on the insurance of
the house. The deduction is now challenged as erroneous on the ground
that Article 2207 of the New Civil Code, which provides for the subrogation
of the insurer to the rights of the insured, was not yet in effect when the
loss took place. However, regardless of the silence of the law on this point
at that time, the amount that should be recovered be measured by the
damages actually suffered, otherwise the principle prohibiting unjust
enrichment would be violated. With respect to the claim of the heirs of Ong
P7,500.00 was adjudged by the lower court on the basis of the assessed
value of the property destroyed, namely, P1,500.00, disregarding the
testimony of one of the Ong children that said property was worth
P4,000.00. We agree that the court erred, since it is of common knowledge
that the assessment for taxation purposes is not an accurate gauge of fair
market value, and in this case should not prevail over positive evidence of
such value. The heirs of Ong are therefore entitled to P10,000.00.

Wherefore, the decision appealed from is reversed and respondents-

appellees are held liable solidarily to appellants, and ordered to pay them
the aforesaid sum of P9,005.80 and P10,000.00, respectively, with interest
from the filing of the complaint, and costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera,

Regala, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
Dizon, J., took no part.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-52732 August 29, 1988

F.F. CRUZ and CO., INC., petitioner,
vs.
THE COURT OF APPEALS, GREGORIO MABLE as substituted by his
wife LUZ ALMONTE MABLE and children DOMING, LEONIDAS,
LIGAYA, ELENA, GREGORIO, JR., SALOME, ANTONIO, and
BERNARDO all surnamed MABLE, respondents.

Luis S. Topacio for petitioner.

Mauricio M. Monta for respondents.

CORTES, J.:

This petition to review the decision of the Court of Appeals puts in issue the
application of the common law doctrine of res ipsa loquitur.

The essential facts of the case are not disputed.

The furniture manufacturing shop of petitioner in Caloocan City was

situated adjacent to the residence of private respondents. Sometime in
August 1971, private respondent Gregorio Mable first approached Eric
Cruz, petitioner's plant manager, to request that a firewall be constructed
between the shop and private respondents' residence. The request was
repeated several times but they fell on deaf ears. In the early morning of
September 6, 1974, fire broke out in petitioner's shop. Petitioner's
employees, who slept in the shop premises, tried to put out the fire, but
their efforts proved futile. The fire spread to private respondents' house.
Both the shop and the house were razed to the ground. The cause of
the conflagration was never discovered. The National Bureau of
Investigation found specimens from the burned structures negative for the
presence of inflammable substances.

Subsequently, private respondents collected P35,000.00 on the insurance

on their house and the contents thereof.

On January 23, 1975, private respondents filed an action for damages

against petitioner, praying for a judgment in their favor awarding
P150,000.00 as actual damages, P50,000.00 as moral damages,
P25,000.00 as exemplary damages, P20,000.00 as attorney's fees and
costs. The Court of First Instance held for private respondents:

WHEREFORE, the Court hereby renders judgment, in favor of

plaintiffs, and against the defendant:

1. Ordering the defendant to pay to the plaintiffs the amount of

P80,000.00 for damages suffered by said plaintiffs for the loss
of their house, with interest of 6% from the date of the filing of
the Complaint on January 23, 1975, until fully paid;

2. Ordering the defendant to pay to the plaintiffs the sum of

P50,000.00 for the loss of plaintiffs' furnitures, religious images,
silverwares, chinawares, jewelries, books, kitchen utensils,
clothing and other valuables, with interest of 6% from date of
the filing of the Complaint on January 23, 1975, until fully paid;

3. Ordering the defendant to pay to the plaintiffs the sum of

P5,000.00 as moral damages, P2,000.00 as exemplary
damages, and P5,000.00 as and by way of attorney's fees;

4. With costs against the defendant;

5. Counterclaim is ordered dismissed, for lack of merit. [CA

Decision, pp. 1-2; Rollo, pp. 29-30.]

On appeal, the Court of Appeals, in a decision promulgated on November

19, 1979, affirmed the decision of the trial court but reduced the award of
damages:

WHEREFORE, the decision declaring the defendants liable is

affirmed. The damages to be awarded to plaintiff should be
reduced to P70,000.00 for the house and P50,000.00 for the
furniture and other fixtures with legal interest from the date of
the filing of the complaint until full payment thereof. [CA
Decision, p. 7; Rollo, p. 35.]

A motion for reconsideration was filed on December 3, 1979 but was

denied in a resolution dated February 18, 1980. Hence, petitioner filed the
instant petition for review on February 22, 1980. After the comment and
reply were filed, the Court resolved to deny the petition for lack of merit on
June 11, 1980.

However, petitioner filed a motion for reconsideration, which was granted,

and the petition was given due course on September 12, 1980. After the
parties filed their memoranda, the case was submitted for decision on
January 21, 1981.

Petitioner contends that the Court of Appeals erred:

1. In not deducting the sum of P35,000.00, which private respondents

recovered on the insurance on their house, from the award of damages.

2. In awarding excessive and/or unproved damages.

3. In applying the doctrine of res ipsa loquitur to the facts of the

instant case.

The pivotal issue in this case is the applicability of the common law doctrine
of res ipsa loquitur, the issue of damages being merely consequential. In
view thereof, the errors assigned by petitioner shall be discussed in the
reverse order.

1. The doctrine of res ipsa loquitur, whose application to the instant case
petitioner objects to, may be stated as follows:

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 the 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 want of care. [Africa v. Caltex (Phil.), Inc., G.R. No.
L-12986, March 31, 1966, 16 SCRA 448.]

Thus, in Africa, supra, where fire broke out in a Caltex service station while
gasoline from a tank truck was being unloaded into an underground
storage tank through a hose and the fire spread to and burned neighboring
houses, this Court, applying the doctrine of res ipsa loquitur, adjudged
Caltex liable for the loss.
The facts of the case likewise call for the application of the doctrine,
considering that in the normal course of operations of a furniture
manufacturing shop, combustible material such as wood chips, sawdust,
paint, varnish and fuel and lubricants for machinery may be found thereon.

It must also be noted that negligence or want of care on the part of

petitioner or its employees was not merely presumed. The Court of Appeals
found that petitioner failed to construct a firewall between its shop and the
residence of private respondents as required by a city ordinance; that the
fire could have been caused by a heated motor or a lit cigarette; that
gasoline and alcohol were used and stored in the shop; and that workers
sometimes smoked inside the shop [CA Decision, p. 5; Rollo, p. 33.]

Even without applying the doctrine of res ipsa loquitur, petitioner's

failure to construct a firewall in accordance with city ordinances
would suffice to support a finding of negligence.

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 crumble and melt when
subjected to intense heat. Defendant's 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. [Africa v. Caltex (Phil.), Inc., supra; Emphasis
supplied.]

In the instant case, with more reason should petitioner be found guilty of
negligence since it had failed to construct a firewall between its property
and private respondents' residence which sufficiently complies with the
pertinent city ordinances. The failure to comply with an ordinance
providing for safety regulations had been ruled by the Court as an act
of negligence [Teague v. Fernandez, G.R. No. L-29745, June 4, 1973, 51
SCRA 181.]

The Court of Appeals, therefore, had more than adequate basis to find
petitioner liable for the loss sustained by private respondents.
2. Since the amount of the loss sustained by private respondents
constitutes a finding of fact, such finding by the Court of Appeals should not
be disturbed by this Court [M.D. Transit & Taxi Co., Inc. v. Court of
Appeals, G.R. No. L-23882, February 17, 1968, 22 SCRA 559], more so
when there is no showing of arbitrariness.

In the instant case, both the CFI and the Court of Appeals were in
agreement as to the value of private respondents' furniture and fixtures and
personal effects lost in the fire (i.e. P50,000.00). With regard to the house,
the Court of Appeals reduced the award to P70,000.00 from P80,000.00.
Such cannot be categorized as arbitrary considering that the evidence
shows that the house was built in 1951 for P40,000.00 and, according to
private respondents, its reconstruction would cost P246,000.00.
Considering the appreciation in value of real estate and the diminution of
the real value of the peso, the valuation of the house at P70,000.00 at the
time it was razed cannot be said to be excessive.

3. While this Court finds that petitioner is liable for damages to private
respondents as found by the Court of Appeals, the fact that private
respondents have been indemnified by their insurer in the amount of
P35,000.00 for the damage caused to their house and its contents has not
escaped the attention of the Court. Hence, the Court holds that in
accordance with Article 2207 of the Civil Code the amount of P35,000.00
should be deducted from the amount awarded as damages. Said article
provides:

Art. 2207. If the plaintiffs property has been insured, and he has
received indemnity from the insurance company for the injury or
loss arising out of the wrong or breach of contract complained
of, the insurance company is subrogated to the rights of the
insured against the wrongdoer or the person who violated the
contract. If the amount paid by the insurance company does not
fully cover the injury or loss, the aggrieved party shall be
entitled to recover the deficiency from the person causing the
loss or injury. (Emphasis supplied.]

The law is clear and needs no interpretation. Having been indemnified by

their insurer, private respondents are only entitled to recover the deficiency
from petitioner.
On the other hand, the insurer, if it is so minded, may seek reimbursement
of the amount it indemnified private respondents from petitioner. This is
the essence of its right to be subrogated to the rights of the insured,
as expressly provided in Article 2207. Upon payment of the loss
incurred by the insured, the insurer is entitled to be subrogated  pro
tanto to any right of action which the insured may have against the
third person whose negligence or wrongful act caused the loss
[Fireman's Fund Insurance Co. v. Jamila & Co., Inc., G.R. No. L-27427,
April 7, 1976, 70 SCRA 323.]

Under Article 2207, the real party in interest with regard to the indemnity
received by the insured is the insurer [Phil. Air Lines, Inc. v. Heald Lumber
Co., 101 Phil. 1031, (1957).] Whether or not the insurer should exercise the
rights of the insured to which it had been subrogated lies solely within the
former's sound discretion. Since the insurer is not a party to the case, its
identity is not of record and no claim is made on its behalf, the private
respondent's insurer has to claim his right to reimbursement of the
P35,000.00 paid to the insured.

WHEREFORE, in view of the foregoing, the decision of the Court of

Appeals is hereby AFFIRMED with the following modifications as to the
damages awarded for the loss of private respondents' house, considering
their receipt of P35,000.00 from their insurer: (1) the damages awarded for
the loss of the house is reduced to P35,000.00; and (2) the right of the
insurer to subrogation and thus seek reimbursement from petitioner for the
P35,000.00 it had paid private respondents is recognized.

SO ORDERED.
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 73998 November 14, 1988

PEDRO T. LAYUGAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, GODOFREDO ISIDRO, and
TRAVELLERS MULTI-INDEMNITY CORPORATION, respondents.

Edralin S. Mateo for petitioner.

Orlando L. Espinas for respondent Travellers Multi-Indemnity Corp.

Roberto T. Vallarta for respondent Godofredo Isidro.

SARMIENTO, J.:

Assailed in this petition for review on certiorari are 1) the decision 1 of the
then Intermediate Appellate Court 2 in AC-G.R. CV No. 01055, entitled
"Pedro T. Layugan, Plaintiff-Appellee, versus Godofredo Isidro, Defendant-
Appellant and Third-Party Plaintiff-Appellee, versus Travellers Multi-
Indemnity Corporation, Third Party Defendant- Appellant, "which reversed
and set aside the decision 3 of the Regional Trial Court, Third Judicial
Region, Branch XXVI, Cabanatuan City, and also dismissed the complaint,
third party complaint, and the counter claims of the parties and 2) the
resolution 4 denying the plaintiff-appellee's (herein petitioner) motion for
reconsideration, for lack of merit.

The findings of fact by the trial court which were adopted by the appellate
court are as follows: 5

xxx xxx xxx

Pedro T. Layugan filed an action for damages against

Godofredo Isidro, alleging that on May 15, 1979 while at
Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a
companion were repairing the tire of their cargo truck with
Plate No. SU-730 which was parked along the right side of the
National Highway; that defendant's truck bearing Plate No.
PW-583, driven recklessly by Daniel Serrano bumped the
plaintiff, that as a result, plaintiff was injured and hospitalized at
Dr. Paulino J. Garcia Research and Medical Center and the
Our Lady of Lourdes Hospital; that he spent TEN THOUSAND
PESOS (Pl0,000.00) and will incur more expenses as he
recuperates from said injuries; that because of said injuries he
would be deprived of a lifetime income in the sum of SEVENTY
THOUSAND PESOS (P70,000.00); and that he agreed to pay
his lawyer the sum of TEN THOUSAND PESOS (Pl0,000.00).

As prayed for by the plaintiffs counsel, the Court declared the

defendant in default on October 12, 1979, and plaintiff's
evidence was received ex-parte on January 11, 1978 and
February 19, 1980. The decision on behalf of the plaintiff was
set aside to give a chance to the defendant to file his answer
and later on, a third-party complaint.

Defendant admitted his ownership of the vehicle involved in the

accident driven by Daniel Serrano. Defendant countered that
the plaintiff was merely a bystander, not a truck helper being a
brother-in-law law of the driver of said truck; that the truck
allegedly being repaired was parked, occupying almost half of
the right lane towards Solano, Nueva Vizcaya, right after the
curve; that the proximate cause of the incident was the
failure of the driver of the parked truck in installing the
early warning device, hence the driver of the parked car
should be liable for damages sustained by the truck of the
herein defendant in the amount of more than P20,000.00; that
plaintiff being a mere bystander and hitchhiker must suffer all
the damages he incurred. By way of counterclaim defendant
alleged that due to plaintiffs baseless complaint he was
constrained to engage the services of counsel for P5,000.00
and P200.00 per court appearance; that he suffered sleepless
nights, humiliation, wounded feelings which may be estimated
at P30.000.00.
On May 29, 1981, a third-party complaint was filed by the
defendant against his insurer, the Travellers Multi Indemnity
Corporation; that the third-party plaintiff, without admitting his
liability to the plaintiff, claimed that the third-party defendant is
liable to the former for contribution, indemnity and subrogation
by virtue of their contract under Insurance Policy No. 11723
which covers the insurer's liability for damages arising from
death, bodily injuries and damage to property.

Third-party defendant answered that, even assuming that the

subject matter of the complaint is covered by a valid and
existing insurance policy, its liability shall in no case exceed the
limit defined under the terms and conditions stated therein; that
the complaint is premature as no claim has been submitted to
the third party defendant as prescribed under the Insurance
Code; that the accident in question was approximately caused
by the carelessness and gross negligence of the plaintiff-, that
by reason of the third-party complaint, third-party defendant
was constrained to engage the services of counsel for a fee of
P3,000.00.

Pedro Layugan declared that he is a married man with one (1)

child. He was employed as security guard in Mandaluyong,
Metro Manila, with a salary of SIX HUNDRED PESOS (600.00)
a month. When he is off-duty, he worked as a truck helper and
while working as such, he sustained injuries as a result of the
bumping of the cargo truck they were repairing at Baretbet,
Bagabag, Nueva Vizcaya by the driver of the defendant. He
used to earn TWO HUNDRED PESOS (P200.00) to THREE
HUNDRED PESOS (P300.00) monthly, at the rate of ONE
HUNDRED PESOS (Pl00.00) per trip. Due to said injuries, his
left leg was amputated so he had to use crutches to walk. Prior
to the incident, he supported his family sufficiently, but after
getting injured, his family is now being supported by his parents
and brother.

GODOFREDO ISIDRO, defendant/third-party plaintiff, testified

that his truck involved in this vehicular accident is insured with
the Travellers Multi Indemnity Corporation covering own
damage and third-party liability, under vehicle policy No. 11723
 (Exh. "1") dated May 30, 1978; that after he filed the insurance
claim the insurance company paid him the sum of P18,000.00
for the damages sustained by this truck but not the third party
liability.

DANIEL SERRANO, defendant driver, declared that he gave a

statement before the municipal police of Bagabag, Nueva
Vizcaya on May 16, 1979; that he knew the responsibilities of a
driver; that before leaving, he checked the truck. The truck
owner used to instruct him to be careful in driving. He bumped
the truck being repaired by Pedro Layugan, plaintiff, while the
same was at a stop position. From the evidence presented, it
has been established clearly that the injuries sustained by the
plaintiff was caused by defendant's driver, Daniel Serrano. The
police report confirmed the allegation of the plaintiff and
admitted by Daniel Serrano on cross-examination. The collision
dislodged the jack from the parked truck and pinned the plaintiff
to the ground. As a result thereof, plaintiff sustained injuries on
his left forearm and left foot. The left leg of the plaintiff from
below the knee was later on amputated (Exh. "C") when
gangrene had set in, thereby rendering him incapacitated for
work depriving him of his income. (pp. 118 to 120, Record on
Appeal.)

xxx xxx xxx

Upon such findings, amply supported by the evidence on record, the trial
court rendered its decision, the dispositive part of which reads as follows: 6

WHEREFORE, premises considered, the defendant is hereby

ordered:

a) To pay the plaintiff SEVENTY THOUSAND (P70,000.00)

PESOS actual and compensatory damages;

b) TWO THOUSAND (P2,000.00) PESOS for attorney's fees;

c) FIVE THOUSAND (P5,000.00) PESOS for moral damages;

and
 d) To pay the costs of this suit. On the third-party complaint, the
third-party defendant is ordered to indemnify the defendant/third
party plaintiff-.

a) The sum of FIFTY THOUSAND (P50,000.00) PESOS for

actual and compensatory damages; and

b) The costs of this suit.

The Intermediate Appellate Court as earlier stated reversed the

decision of the trial court and dismissed the complaint, the third-party
complaint, and the counter- claims of both appellants. 7

Hence, this petition.

The petitioner alleges the following errors. 8

1. WHETHER UPON THE GIVEN FACTS, THE

INTERMEDIATE APPELLATE COURT ACTED CORRECTLY
IN REVERSING AND SETTING ASIDE AND DISMISSING THE
PLAINTIFF-APPELLEE'S COMPLAINT.

2. WHETHER THE INTERMEDIATE APPELLATE COURT

ACTED CORRECTLY IN APPLYING THE DOCTRINE OF
"RES IPSA LOQUITUR" WITH PROPER JURIS-
PRUDENTIAL (sic) BASIS.

The crux of the controversy lies in the correctness or error of the decision
of the respondent court finding the petitioner negligent under the doctrine
of Res ipsa loquitur (The thing speaks for itself).<äre||anº•1àw> Corollary
thereto, is the question as to who is negligent, if the doctrine is inapplicable.

The respondent corporation stresses that the issues raised in the petition
being factual, the same is not reviewable by this Court in a petition for
review by certiorari. 9

Indeed, it is an elementary rule in the review of decisions of the Court of

Appeals that its findings of fact are entitled to great respect and will not
ordinarily be disturbed by this Court. 10 For if we have to review every
question of fact elevated to us, we would hardly have any more time left for
the weightier issues compelling and deserving our preferential
attention.11 Be that as it may, this rule is not inflexible. Surely there are
established exceptions 12 —when the Court should review and rectify the
findings of fact of the lower court, such as:

1) when the conclusion is a finding grounded entirely on speculation,

surmise, or conjecture; 2) the inference made is manifestly mistaken; 3)
there is grave abuse of discretion; 4) the judgment is based on
misapprehension of facts; 5) the Court of Appeals went beyond the issues
of the case if the findings are contrary to the admission of both the
appellant and the appellee; 6) the findings of the Court of Appeals are
contrary to those of the trial court; 7) the said findings of fact are
conclusions without citation of specific evidence on which they are based;
8) the facts set forth in the petition as well as in the petitioner's main and
reply briefs are not disputed by the respondents; and 9) when the findings
of fact of the Court of Appeals are premised on the absence of evidence
and are contradicted on record.

Exceptions 1, 2, 4, 6, 7, and 9 obtain in the instant case to warrant a

deviation from the general rule.

From its finding that the parked truck was loaded with ten (10) big round
logs 13 the Court of Appeals inferred that because of its weight the truck
could not have been driven to the shoulder of the road and concluded that
the same was parked on a portion of the road 14 at the time of the accident.
Consequently, the respondent court inferred that the mishap was due to the
negligence of the driver of the parked truck. 15 The inference or conclusion
is manifestly erroneous. In a large measure, it is grounded on speculation,
surmise, or conjecture. How the respondent court could have reversed the
finding of the trial court that a warning device was installed 16 escapes us
because it is evident from the record that really such a device, in the form
of a lighted kerosene lamp, was installed by the driver of the parked truck
three to four meters from the rear of his parked truck. 17 We see this
negative finding of the respondent appellate court as a misreading of the
facts and the evidence on record and directly contravening the positive
finding of the trial court that an early warning device was in proper place
when the accident happened and that the driver of the private respondent
was the one negligent. On the other hand, the respondent court, in refusing
to give its "imprimatur to the trial court's finding and conclusion that Daniel
Serrano (private respondent Isidro's driver) was negligent in driving the
truck that bumped the parked truck", did not cite specific evidence to
support its conclusion. In cavalier fashion, it simply and nebulously
adverted to unspecified "scanty evidence on record." 18

On the technical aspect of the case, the respondent corporation would want
us to dismiss this petition on the ground that it was filed out of time. It must
be noted that there was a motion for extension, 19 albeit filed erroneously
with the respondent court, dated March 19, 1986, requesting for 30 days
from March 20, 1986, to file the necessary petition or pleading before the
Supreme Court". Also, on April 1, 1986, an appearance of a new lawyer for
the petitioner before the Supreme Court" with motion 20 was filed, again
erroneously, with the Court of Appeals, requesting for 20 days extension "to
file the Petition for Review on Certiorari." Likewise a similar motion 21 was
filed with this Court also on April 1, 1986. On the other hand, the instant
petition for review was filed on April 17, 1986 22 but it was only after three
months, on August 1, 1986, in its comment 23 that the respondent
corporation raised the issue of tardiness. The respondent corporation
should not have waited in ambush before the comment was required and
before due course was given. In any event, to exact its "a pound of flesh",
so to speak, at this very late stage, would cause a grave miscarriage of
justice. Parenthetically, it must be noted that private respondent Isidro did
not raise this issue of late filing.

We now come to the merits of this petition.

The question before us is who was negligent? Negligence is the

omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human
affairs, would do, or the doing of something which a prudent and
reasonable man would not do24 or as Judge Cooley defines it, "(T)he
failure to observe for the protection of the interests of another person ,
that degree of care, precaution, and vigilance which the circumstances
justly demand, whereby such other person suffers injury. 25

In Picart vs. Smith,  26 decided more than seventy years ago but still a
sound rule, we held:

The test by which to determine the existence of negligence in a

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

Respondent Isidro posits that any immobile object along the highway, like a
parked truck, poses serious danger to a moving vehicle which has the right
to be on the highway. He argues that since the parked cargo truck in this
case was a threat to life and limb and property, it was incumbent upon the
driver as well as the petitioner, who claims to be a helper of the truck driver,
to exercise extreme care so that the motorist negotiating the road would be
properly forewarned of the peril of a parked vehicle. Isidro submits that the
burden of proving that care and diligence were observed is shifted to the
petitioner, for, as previously claimed, his (Isidro's) Isuzu truck had a right to
be on the road, while the immobile cargo truck had no business, so to
speak, to be there. Likewise, Isidro proffers that the petitioner must show to
the satisfaction of a reasonable mind that the driver and he (petitioner)
himself, provided an early warning device, like that required by law, or, by
some other adequate means that would properly forewarn vehicles of the
impending danger that the parked vehicle posed considering the time,
place, and other peculiar circumstances of the occasion. Absent such proof
of care, as in the case at bar, Isidro concludes, would, under the doctrine of
Res ipsa loquitur, evoke the presumption of negligence on the part of the
driver of the parked cargo truck as well as his helper, the petitioner herein,
who was fixing the flat tire of the said truck. 27

Respondent Isidro's contention is untenable.

The evidence on record discloses that three or four meters from the rear of
the parked truck, a lighted kerosene lamp was placed.28 Moreover, there is
the admission of respondent Isidro's driver, Daniel Serrano, to Wit: 29

Question No. 8 (by Patrolman Josefino Velasco)—Will you

narrate to me in brief how the accident happens (sic) if you can
still remember?

Answer: (by Daniel Serrano)

 That on or about 10:40 p.m., 15 May 1979 while
driving Isuzu truck at Baretbet, Bagabag, Nueva
Vizcaya and at KM 285, I met another vehicle who
(sic) did not dim his (sic) lights which
cause (sic) me to be blinded with intense glare of
the light that's why I did not notice a parked truck
who (sic) was repairing a front flat tire. When I was
a few meters away, I saw the truck which was
loaded with round logs. I step (sic) on my foot
brakes but it did not function with my many
attempts. I have (sic) found out later that the fluid
pipe on the rear right was cut that's why the breaks
did not function. (Emphasis supplied).

Whether the cargo truck was parked along the road or on half the shoulder
of the right side of the road would be of no moment taking into account the
warning device consisting of the lighted kerosene lamp placed three or four
meters from the back of the truck. 30 But despite this warning which we rule
as sufficient, the Isuzu truck driven by Daniel Serrano, an employee of the
private respondent, still bumped the rear of the parked cargo truck. As a
direct consequence of such accident the petitioner sustained injuries on his
left forearm and left foot. His left leg was later amputated from below the
knee when gangrene had set in. 31

It is clear from the foregoing disquisition that the absence or want of care of
Daniel Serrano has been established by clear and convincing evidence. It
follows that in stamping its imprimatur upon the invocation by respondent
Isidro of the doctrine of Res ipsa loquitur to escape liability for the
negligence of his employee, the respondent court committed reversible
error.

The respondent court ruled: 32

xxx xxx xxx

In addition to this, we agree with the following arguments of

appellant Godofredo Isidro which would show that the accident
was caused due to the negligence of the driver of the cargo
truck:

xxx xxx xxx

 ... In the case at bar the burden of proving that care
and diligence was (sic) observed is shifted evidently
to the plaintiff, for, as adverted to, the motorists
have the right to be on the road, while the immobile
truck has no business, so to speak, to be there. It is
thus for the plaintiff to show to the satisfaction of a
reasonable mind that the driver and he himself did
employ early warning device such as that required
by law or by some other adequate means or device
that would properly forewarn vehicles of the
impending danger that the parked vehicle posed
considering the time, place and other peculiar
circumstances of the occasion. Absent such proof of
care, as in the case at bar, will evoke the
presumption of negligence under the doctrine of res
ipsa loquitur, on the part of the driver of the parked
cargo truck as well as plaintiff who was fixing the flat
tire of said truck. (pp. 14-17, Appellant's Brief).
(Emphasis supplied).

At this juncture, it may be enlightening and helpful in the proper resolution

of the issue of negligence to examine the doctrine of Res ipsa loquitur.

This doctrine 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. 33 Or as Black's
Law Dictionary  34 puts it:

Res ipsa loquitur. The thing speaks for itself Rebuttable

presumption or inference that defendant was negligent, which
arises upon proof that instrumentality causing injury was in
defendant's exclusive control, and that the accident was one
which ordinarily does not happen in absence of negligence.
Res ipsa loquitur is rule of evidence whereby negligence of
alleged wrongdoer may be inferred from mere fact that accident
happened provided character of accident and circumstances
attending it lead reasonably to belief that in absence of
 negligence it would not have occurred and that thing which
caused injury is shown to have been under management and
control of alleged wrongdoer. Hillen v. Hooker Const. Co., Tex.
Civ. App., 484 S.W. 2d 133, 155. Under doctrine of "res ipsa
loquitur" the happening of an injury permits an inference of
negligence where plaintiff produces substantial evidence that
injury was caused by an agency or instrumentality under
exclusive control and management of defendant, and that the
occurrence was such that in the ordinary course of things would
not happen if reasonable care had been used.

In this jurisdiction we have applied this doctrine in quite a number of cases,

notably in Africa et al. vs. Caltex, Inc., et al., 35 and the latest is in the case
of F.F. Cruz and Co., Inc. vs. CA.36

The doctrine of Res 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. 37 The doctrine is not a rule of substantive law 38 but merely a
mode of proof or a mere procedural convenience. 39 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 part of the party charged. 40 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.41 The
doctrine can be invoked when and only when, under the circumstances
involved, direct evidence is absent and not readily available. 42 Hence, it
has generally been held that the presumption of inference arising from the
doctrine cannot be availed of, or is overcome, where plaintiff has
knowledge and testifies or presents evidence as to the specific act of
negligence which is the cause of the injury complained of or where there is
direct evidence as to the precise cause of the accident and all the facts and
circumstances attendant on the occurrence clearly appear. 43 Finally, once
the actual cause of injury is established beyond controversy, whether
by the plaintiff or by the defendant, no presumptions will be involved
and the doctrine becomes inapplicable when the circumstances have
been so completely eludicated that no inference of defendant's
liability can reasonably be made, whatever the source of the
evidence, 44 as in this case.
The private respondent is sued under Art. 2176 in relation to Art. 2180,
paragraph 5, of the Civil Code. In the latter, when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of
law that there was negligence on the part of the master or employer either
in the selection of the servant or employee, or in supervision over him after
selection, or both. Such presumption is juris tantum and not juris et de
jure and consequently, may be rebutted. If follows necessarily that if the
employer shows to the satisfaction of the court that in the selection and in
the supervision he has exercised the care and diligence of a good father of
a family, the presumption is overcome and he is relieved from liability. 45 In
disclaiming liability for the incident, the private respondent stresses that the
negligence of his employee has already been adequately overcome by his
driver's statement that he knew his responsibilities as a driver and that the
truck owner used to instruct him to be careful in driving. 46

We do not agree with the private respondent in his submission. In the first
place, it is clear that the driver did not know his responsibilities
because he apparently did not check his vehicle before he took it on
the road. If he did he could have discovered earlier that the brake fluid pipe
on the right was cut, and could have repaired it and thus the accident could
have been avoided. Moveover, to our mind, the fact that the private
respondent used to intruct his driver to be careful in his driving, that the
driver was licensed, and the fact that he had no record of any accident, as
found by the respondent court, are not sufficient to destroy the finding of
negligence of the Regional Trial Court given the facts established at the
trial 47 The private respondent or his mechanic, who must be competent,
should have conducted a thorough inspection of his vehicle before allowing
his driver to drive it. In the light of the circumstances obtaining in the case,
we hold that Isidro failed to prove that the diligence of a good father of
a family in the supervision of his employees which would exculpate
him from solidary liability with his driver to the petitioner. But even if
we concede that the diligence of a good father of a family was observed by
Isidro in the supervision of his driver, there is not an iota of evidence on
record of the observance by Isidro of the same quantum of diligence in the
supervision of his mechanic, if any, who would be directly in charge in
maintaining the road worthiness of his (Isidro's) truck. But that is not all.
There is paucity of proof that Isidro exercised the diligence of a good father
of a family in the selection of his driver, Daniel Serrano, as well as in the
selection of his mechanic, if any, in order to insure the safe operation of his
truck and thus prevent damage to others. Accordingly, the responsibility of
Isidro as employer treated in Article 2180, paragraph 5, of the Civil Code
has not ceased.

WHEREFORE, the petition is hereby GRANTED. The Decision of the

respondent court as well as its Resolution denying the petitioner's motion
for reconsideration are hereby SET ASIDE and the decision of the trial
court, dated January 20, 1983, is hereby REINSTATED in toto. With costs
against the private respondents.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras and Padilla, JJ., concur.

Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and

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

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration

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

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

Petitioners seek the reversal of the decision 3 of the Court of Appeals,

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

The antecedent facts as summarized by the trial court are reproduced

hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17,

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

Because the discomforts somehow interfered with her normal

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

Through the intercession of a mutual friend, Dr. Buenviaje

(TSN, January 13, 1988, p. 7), she and her husband Rogelio
met for the first time Dr. Orlino Hozaka (should be
Hosaka; see TSN, February 20, 1990, p. 3), one of the
defendants in this case, on June 10, 1985. They agreed that
their date at the operating table at the DLSMC (another
defendant), would be on June 17, 1985 at 9:00 A.M.. Dr.
Hosaka decided that she should undergo a "cholecystectomy"
operation after examining the documents (findings from the
Capitol Medical Center, FEU Hospital and DLSMC) presented
to him. Rogelio E. Ramos, however, asked Dr. Hosaka to look
for a good anesthesiologist. Dr. Hosaka, in turn, assured
Rogelio that he will get a good anesthesiologist. Dr. Hosaka
charged a fee of P16,000.00, which was to include the
anesthesiologist's fee and which was to be paid after the
operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33;
TSN, February 27, 1990, p. 13; and TSN, November 9, 1989,
pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was

admitted at one of the rooms of the DLSMC, located along E.
Rodriguez Avenue, Quezon City (TSN, October 19,1989, p.
11).

At around 7:30 A.M. of June 17, 1985 and while still in her
room, she was prepared for the operation by the hospital staff.
Her sister-in-law, Herminda Cruz, who was the Dean of the
College of Nursing at the Capitol Medical Center, was also
there for moral support. She reiterated her previous request for
Herminda to be with her even during the operation. After
praying, she was given injections. Her hands were held by
Herminda as they went down from her room to the operating
room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio,
was also with her (TSN, October 19, 1989, p. 18). At the
operating room, Herminda saw about two or three nurses and
Dr. Perfecta Gutierrez, the other defendant, who was to
administer anesthesia. Although not a member of the hospital
staff, Herminda introduced herself as Dean of the College of
Nursing at the Capitol Medical Center who was to provide moral
support to the patient, to them. Herminda was allowed to stay
inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to

look for Dr. Hosaka who was not yet in (TSN, January 13, 1988,
pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz
about the prospect of a delay in the arrival of Dr. Hosaka.
Herminda then went back to the patient who asked, "Mindy,
wala pa ba ang Doctor"? The former replied, "Huwag kang
mag-alaala, darating na iyon" (Ibid.).

Thereafter, Herminda went out of the operating room and

informed the patient's husband, Rogelio, that the doctor was not
yet around (id., p. 13). When she returned to the operating
room, the patient told her, "Mindy, inip na inip na ako, ikuha mo
ako ng ibang Doctor." So, she went out again and told Rogelio
about what the patient said (id., p. 15). Thereafter, she returned
to the operating room.

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

[and] waiting for the arrival of the doctor" even as he did his
best to find somebody who will allow him to pull out his wife
from the operating room (TSN, October 19, 1989, pp. 19-20).
He also thought of the feeling of his wife, who was inside the
operating room waiting for the doctor to arrive (ibid.). At almost
12:00 noon, he met Dr. Garcia who remarked that he (Dr.
Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p.
21). While talking to Dr. Garcia at around 12:10 P.M., he came
to know that Dr. Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing
those words, he went down to the lobby and waited for the
operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the

operating room with the patient, heard somebody say that "Dr.
Hosaka is already here." She then saw people inside the
operating room "moving, doing this and that, [and] preparing the
patient for the operation" (TSN, January 13, 1988, p. 16). As
she held the hand of Erlinda Ramos, she then saw Dr.
Gutierrez intubating the hapless patient. She thereafter heard
Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of
the remarks of Dra. Gutierrez, she focused her attention on
what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless
Erlinda even as Dr. Hosaka approached her. She then heard
Dr. Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived
at the operating room, she saw this anesthesiologist trying to
intubate the patient. The patient's nailbed became bluish and
the patient was placed in a trendelenburg position — a position
where the head of the patient is placed in a position lower than
her feet which is an indication that there is a decrease of blood
supply to the patient's brain (Id., pp. 19-20). Immediately
thereafter, she went out of the operating room, and she told
Rogelio E. Ramos "that something wrong was . . . happening"
(Ibid.). Dr. Calderon was then able to intubate the patient (TSN,
July 25, 1991, p. 9).

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

a respiratory machine being rushed towards the door of the
operating room. He also saw several doctors rushing towards
the operating room. When informed by Herminda Cruz that
something wrong was happening, he told her (Herminda) to be
back with the patient inside the operating room (TSN, October
19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the

patient was still in trendelenburg position (TSN, January 13,
1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw
the patient taken to the Intensive Care Unit (ICU).

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

to Dr. Hosaka. The latter informed the former that something
went wrong during the intubation. Reacting to what was told to
him, Rogelio reminded the doctor that the condition of his wife
would not have happened, had he (Dr. Hosaka) looked for a
good anesthesiologist (TSN, October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital

to explain what happened to the patient. The doctors explained
that the patient had bronchospasm (TSN, November 15, 1990,
pp. 26-27).
 Erlinda Ramos stayed at the ICU for a month. About four
months thereafter or on November 15, 1985, the patient was
released from the hospital.

During the whole period of her confinement, she incurred

hospital bills amounting to P93,542.25 which is the subject of a
promissory note and affidavit of undertaking executed by
Rogelio E. Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a comatose
condition. She cannot do anything. She cannot move any part
of her body. She cannot see or hear. She is living on
mechanical means. She suffered brain damage as a result of
the absence of oxygen in her brain for four to five minutes
(TSN, November 9, 1989, pp. 21-22). After being discharged
from the hospital, she has been staying in their residence, still
needing constant medical attention, with her husband Rogelio
incurring a monthly expense ranging from P8,000.00 to
P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also
diagnosed to be suffering from "diffuse cerebral parenchymal
damage" (Exh. "G"; see also TSN, December 21, 1989,
p. 6). 5

Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with

the Regional Trial Court of Quezon City against herein private respondents
alleging negligence in the management and care of Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of
Erlinda's injury. Plaintiff presented the testimonies of Dean Herminda Cruz
and Dr. Mariano Gavino to prove that the sustained by Erlinda was due to
lack of oxygen in her brain caused by the faulty management of her airway
by private respondents during the anesthesia phase. On the other hand,
private respondents primarily relied on the expert testimony of Dr. Eduardo
Jamora, a pulmonologist, to the effect that the cause of brain damage was
Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).

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

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

On the part of Dr. Orlino Hosaka, this Court finds that he is

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

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

liable for the acts of negligence of the doctors in their "practice
of medicine" in the operating room. Moreover, the hospital is
liable for failing through its responsible officials, to cancel the
scheduled operation after Dr. Hosaka inexcusably failed to
arrive on time.

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

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

x x x           x x x          x x x

WHEREFORE, and in view of the foregoing, judgment is

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

1) the sum of P8,000.00 as actual monthly

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

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

fees;

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

damages and the further sum of P200,000,00 by
way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of

Appeals. The appellate court rendered a Decision, dated 29 May 1995,
reversing the findings of the trial court. The decretal portion of the
decision of the appellate court reads:

WHEREFORE, for the foregoing premises the appealed

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

SO ORDERED. 8

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

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

We said in our Resolution on July 25, 1995, that the filing of a

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

Even assuming admissibility of the Motion for the

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

SO ORDERED. 10

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

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

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

grounds:

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF

RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND
DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE

RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA
RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA

LOQUITUR. 11

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

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

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

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

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

Res ipsa loquitur is a Latin phrase which literally means "the thing or
the transaction speaks for itself." The phrase "res ipsa loquitur'' is a
maxim for the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff's prima facie case, and
present a question of fact for defendant to meet with an
explanation. 13 Where the thing which caused the injury complained of
is shown to be under the management of the defendant or his
servants and the accident is such as in ordinary course of things
does not happen if those who have its management or control use
proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from or was
caused by the defendant's want of care. 14

The doctrine of res ipsa loquitur is simply a recognition of the postulate

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

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

1. The accident is of a kind which ordinarily does

not occur in the absence of someone's negligence;
 2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and

3. The possibility of contributing conduct which

would make the plaintiff responsible is eliminated. 21

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

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

Medical malpractice 24 cases do not escape the application of this doctrine.

Thus, res ipsa loquitur has been applied when the circumstances attendant
upon the harm are themselves of such a character as to justify an inference
of negligence as the cause of that harm. 25 The application of res ipsa
loquitur in medical negligence cases presents a question of law since it is a
judicial function to determine whether a certain set of circumstances does,
as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice

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

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

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

We find the doctrine of res ipsa loquitur appropriate in the case at bar.

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

A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where

the Kansas Supreme Court in applying the res ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation

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

Upon all the facts, conditions and circumstances alleged in

Count II it is held that a cause of action is stated under the
doctrine of res ipsa loquitur. 44

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

Considering that a sound and unaffected member of the body (the

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

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

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

Having in mind the applicability of the res ipsa loquitur doctrine and the

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

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

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

We disagree with the findings of the Court of Appeals. We hold that private
respondents were unable to disprove the presumption of negligence on
their part in the care of Erlinda and their negligence was the proximate
cause of her piteous condition.

In the instant case, the records are helpful in furnishing not only the logical
scientific evidence of the pathogenesis of the injury but also in providing the
Court the legal nexus upon which liability is based. As will be shown
hereinafter, private respondents' own testimonies which are reflected in the
transcript of stenographic notes are replete of signposts indicative of their
negligence in the care and management of Erlinda.

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

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do,

if any on the patient?

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

the patient.

Q: Do you know what happened to that intubation

process administered by Dra. Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

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

x x x           x x x          x x x

ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki

ang tiyan"?

A: From Dra. Perfecta Gutierrez.

x x x           x x x          x x x

Q: After hearing the phrase "lumalaki ang tiyan,"

what did you notice on the person of the patient?

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

nailbeds of the left hand where I was at.

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

particular time?

A: I saw him approaching the patient during that

time.

Q: When he approached the patient, what did he

do, if any?

A: He made an order to call on the anesthesiologist

in the person of Dr. Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside

the operating room?

A: Yes sir.

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

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

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the

patient, after a while the patient's nailbed became
bluish and I saw the patient was placed in
trendelenburg position.

x x x           x x x          x x x

Q: Do you know the reason why the patient was

placed in that trendelenburg position?

A: As far as I know, when a patient is in that

position, there is a decrease of blood supply to the
brain. 46

x x x           x x x          x x x

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

A perusal of the standard nursing curriculum in our country will

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

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

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

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

nurse whose long experience and scholarship led to her appointment as
Dean of the Capitol Medical Center School at Nursing, was fully capable of
determining whether or not the intubation was a success. She had
extensive clinical experience starting as a staff nurse in Chicago, Illinois;
staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF;
Dean of the Laguna College of Nursing in San Pablo City; and then Dean
of the Capitol Medical Center School of Nursing. 50 Reviewing witness Cruz'
statements, we find that the same were delivered in a straightforward
manner, with the kind of detail, clarity, consistency and spontaneity which
would have been difficult to fabricate. With her clinical background as a
nurse, the Court is satisfied that she was able to demonstrate through her
testimony what truly transpired on that fateful day.

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

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

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

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

referring to?

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

patient.

Q: So, you found some difficulty in inserting the

tube?

A: Yes, because of (sic) my first attempt, I did not

see right away. 51

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

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

The argument does not convince us. If this was indeed observed, private
respondents adduced no evidence demonstrating that they proceeded to
make a thorough assessment of Erlinda's airway, prior to the induction of
anesthesia, even if this would mean postponing the procedure. From their
testimonies, it appears that the observation was made only as an
afterthought, as a means of defense.
The pre-operative evaluation of a patient prior to the administration of
anesthesia is universally observed to lessen the possibility of anesthetic
accidents. Pre-operative evaluation and preparation for anesthesia begins
when the anesthesiologist reviews the patient's medical records and visits
with the patient, traditionally, the day before elective surgery. 53 It includes
taking the patient's medical history, review of current drug therapy, physical
examination and interpretation of laboratory data. 54 The physical
examination performed by the anesthesiologist is directed primarily toward
the central nervous system, cardiovascular system, lungs and upper
airway. 55 A thorough analysis of the patient's airway normally involves
investigating the following: cervical spine mobility, temporomandibular
mobility, prominent central incisors, diseased or artificial teeth, ability to
visualize uvula and the thyromental distance. 56 Thus, physical
characteristics of the patient's upper airway that could make tracheal
intubation difficult should be studied. 57 Where the need arises, as when
initial assessment indicates possible problems (such as the alleged short
neck and protruding teeth of Erlinda) a thorough examination of the
patient's airway would go a long way towards decreasing patient morbidity
and mortality.

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

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

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

Q: Would you agree, Doctor, that it is good medical

practice to see the patient a day before so you can
introduce yourself to establish good doctor-patient
relationship and gain the trust and confidence of the
patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on

the operative procedure of the anesthesiologist and
in my case, with elective cases and normal cardio-
pulmonary clearance like that, I usually don't do it
except on emergency and on cases that have an
abnormalities (sic). 58

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

hardly enough time available for the fastidious demands of pre-operative
procedure so that an anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on the other hand, are
operative procedures that can wait for days, weeks or even months. Hence,
in these cases, the anesthesiologist possesses the luxury of time to be at
the patient's beside to do a proper interview and clinical evaluation. There
is ample time to explain the method of anesthesia, the drugs to be used,
and their possible hazards for purposes of informed consent. Usually, the
pre-operative assessment is conducted at least one day before the
intended surgery, when the patient is relaxed and cooperative.

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

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

operative evaluation of the patient which, in turn, resulted to a wrongful
intubation, we now determine if the faulty intubation is truly the proximate
cause of Erlinda's comatose condition.

Private respondents repeatedly hammered the view that the cerebral

anoxia which led to Erlinda's coma was due to bronchospasm 59 mediated
by her allergic response to the drug, Thiopental Sodium, introduced into her
system. Towards this end, they presented Dr. Jamora, a Fellow of the
Philippine College of Physicians and Diplomate of the Philippine Specialty
Board of Internal Medicine, who advanced private respondents' theory that
the oxygen deprivation which led to anoxic encephalopathy, 60 was due to
an unpredictable drug reaction to the short-acting barbiturate. We find the
theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of

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

The inappropriateness and absurdity of accepting Dr. Jamora's testimony

as an expert witness in the anesthetic practice of Pentothal administration
is further supported by his own admission that he formulated his opinions
on the drug not from the practical experience gained by a specialist or
expert in the administration and use of Sodium Pentothal on patients, but
only from reading certain references, to wit:

ATTY. LIGSAY:

Q: In your line of expertise on pulmonology, did you

have any occasion to use pentothal as a method of
management?

DR. JAMORA:

A: We do it in conjunction with the anesthesiologist

when they have to intubate our patient.
 Q: But not in particular when you practice
pulmonology?

A: No.

Q: In other words, your knowledge about pentothal

is based only on what you have read from books
and not by your own personal application of the
medicine pentothal?

A: Based on my personal experience also on

pentothal.

Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm

during my appendectomy.

Q: And because they have used it on you and on

account of your own personal experience you feel
that you can testify on pentothal here with medical
authority?

A: No. That is why I used references to support my

claims. 61

An anesthetic accident caused by a rare drug-induced bronchospasm

properly falls within the fields of anesthesia, internal medicine-allergy, and
clinical pharmacology. The resulting anoxic encephalopathy belongs to the
field of neurology. While admittedly, many bronchospastic-mediated
pulmonary diseases are within the expertise of pulmonary medicine, Dr.
Jamora's field, the anesthetic drug-induced, allergic mediated
bronchospasm alleged in this case is within the disciplines of
anesthesiology, allergology and pharmacology. On the basis of the
foregoing transcript, in which the pulmonologist himself admitted that he
could not testify about the drug with medical authority, it is clear that the
appellate court erred in giving weight to Dr. Jamora's testimony as an
expert in the administration of Thiopental Sodium.

The provision in the rules of evidence 62 regarding expert witnesses states:

 Sec. 49. Opinion of expert witness. — The opinion of a witness
on a matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in
evidence.

Generally, to qualify as an expert witness, one must have acquired special

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

Moreover, private respondents' theory, that Thiopental Sodium may have

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

In any case, private respondents themselves admit that Thiopental

induced, allergic-mediated bronchospasm happens only very rarely. If
courts were to accept private respondents' hypothesis without supporting
medical proof, and against the weight of available evidence, then every
anesthetic accident would be an act of God. Evidently, the Thiopental-
allergy theory vigorously asserted by private respondents was a mere
afterthought. Such an explanation was advanced in order to advanced in
order to absolve them of any and all responsibility for the patient's
condition.

In view of the evidence at hand, we are inclined to believe petitioners'

stand that it was the faulty intubation which was the proximate cause
of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and

continuous sequence, unbroken by any efficient intervening cause,
produces injury, and without which the result would not have
occurred. 64 An injury or damage is proximately caused by an act or a
failure to act, whenever it appears from the evidence in the case, that the
act or omission played a substantial part in bringing about or actually
causing the injury or damage; and that the injury or damage was either a
direct result or a reasonably probable consequence of the act or
omission. 65 It is the dominant, moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty

intubation is undeniably the proximate cause which triggered the chain of
events leading to Erlinda's brain damage and, ultimately, her comatosed
condition.

Private respondents themselves admitted in their testimony that the first

intubation was a failure. This fact was likewise observed by witness Cruz
when she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-
intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan."
Thereafter, witness Cruz noticed abdominal distention on the body of
Erlinda. The development of abdominal distention, together with respiratory
embarrassment indicates that the endotracheal tube entered the
esophagus instead of the respiratory tree. In other words, instead of the
intended endotracheal intubation what actually took place was an
esophageal intubation. During intubation, such distention indicates that air
has entered the gastrointestinal tract through the esophagus instead of the
lungs through the trachea. Entry into the esophagus would certainly cause
some delay in oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention had been
observed during the first intubation suggests that the length of time utilized
in inserting the endotracheal tube (up to the time the tube was withdrawn
for the second attempt) was fairly significant. Due to the delay in the
delivery of oxygen in her lungs Erlinda showed signs of cyanosis. 66 As
stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent
only after he noticed that the nailbeds of Erlinda were already
blue. 67 However, private respondents contend that a second intubation
was executed on Erlinda and this one was successfully done. We do not
think so. No evidence exists on record, beyond private respondents' bare
claims, which supports the contention that the second intubation was
successful. Assuming that the endotracheal tube finally found its way into
the proper orifice of the trachea, the same gave no guarantee of oxygen
delivery, the hallmark of a successful intubation. In fact, cyanosis was
again observed immediately after the second intubation. Proceeding from
this event (cyanosis), it could not be claimed, as private respondents insist,
that the second intubation was accomplished. Even granting that the tube
was successfully inserted during the second attempt, it was obviously too
late. As aptly explained by the trial court, Erlinda already suffered brain
damage as a result of the inadequate oxygenation of her brain for about
four to five minutes. 68

The above conclusion is not without basis. Scientific studies point out that
intubation problems are responsible for one-third (1/3) of deaths and
serious injuries associated with anesthesia. 69 Nevertheless, ninety-eight
percent (98%) or the vast majority of difficult intubations may be anticipated
by performing a thorough evaluation of the patient's airway prior to the
operation. 70 As stated beforehand, respondent Dra. Gutierrez failed to
observe the proper pre-operative protocol which could have prevented this
unfortunate incident. Had appropriate diligence and reasonable care been
used in the pre-operative evaluation, respondent physician could have
been much more prepared to meet the contingency brought about by the
perceived anatomic variations in the patient's neck and oral area, defects
which would have been easily overcome by a prior knowledge of those
variations together with a change in technique. 71 In other words, an
experienced anesthesiologist, adequately alerted by a thorough pre-
operative evaluation, would have had little difficulty going around the short
neck and protruding teeth. 72 Having failed to observe common medical
standards in pre-operative management and intubation, respondent Dra.
Gutierrez' negligence resulted in cerebral anoxia and eventual coma of
Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as

the head of the surgical team. As the so-called "captain of the ship," 73 it is
the surgeon's responsibility to see to it that those under him perform
their task in the proper manner. Respondent Dr. Hosaka's negligence
can be found in his failure to exercise the proper authority (as the "captain"
of the operative team) in not determining if his anesthesiologist observed
proper anesthesia protocols. In fact, no evidence on record exists to show
that respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly
intubated the patient. Furthermore, it does not escape us that respondent
Dr. Hosaka had scheduled another procedure in a different hospital at the
same time as Erlinda's cholecystectomy, and was in fact over three hours
late for the latter's operation. Because of this, he had little or no time to
confer with his anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties towards his patient.
Thus, he shares equal responsibility for the events which resulted in
Erlinda's condition.

We now discuss the responsibility of the hospital in this particular

incident. The unique practice (among private hospitals) of filling up
specialist staff with attending and visiting "consultants," 74 who are allegedly
not hospital employees, presents problems in apportioning responsibility for
negligence in medical malpractice cases. However, the difficulty is only
more apparent than real.

In the first place, hospitals exercise significant control in the hiring and
firing of consultants and in the conduct of their work within the
hospital premises. Doctors who apply for "consultant" slots, visiting or
attending, are required to submit proof of completion of residency, their
educational qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in most cases, and
references. These requirements are carefully scrutinized by members of
the hospital administration or by a review committee set up by the hospital
who either accept or reject the application. 75 This is particularly true with
respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he

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

In other words, private hospitals, hire, fire and exercise real control over
their attending and visiting "consultant" staff. While "consultants" are not,
technically employees, a point which respondent hospital asserts in
denying all responsibility for the patient's condition, the control exercised,
the hiring, and the right to terminate consultants all fulfill the important
hallmarks of an employer-employee relationship, with the exception of the
payment of wages. In assessing whether such a relationship in fact exists,
the control test is determining. Accordingly, on the basis of the foregoing,
we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This being
the case, the question now arises as to whether or not respondent hospital
is solidarily liable with respondent doctors for petitioner's condition. 76

The basis for holding an employer solidarily responsible for the negligence
of its employee is found in Article 2180 of the Civil Code which considers a
person accountable not only for his own acts but also for those of
others based on the former's responsibility under a relationship
of patria potestas. 77 Such responsibility ceases when the persons or
entity concerned prove that they have observed the diligence of a good
father of the family to prevent damage. 78 In other words, while the
burden of proving negligence rests on the plaintiffs, once negligence
is shown, the burden shifts to the respondents (parent, guardian,
teacher or employer) who should prove that they observed the
diligence of a good father of a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its
responsibility over respondent physicians, failed to adduce evidence
showing that it exercised the diligence of a good father of a family in the
hiring and supervision of the latter. It failed to adduce evidence with regard
to the degree of supervision which it exercised over its physicians. In
neglecting to offer such proof, or proof of a similar nature, respondent
hospital thereby failed to discharge its burden under the last paragraph of
Article 2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlinda's
condition.

Based on the foregoing, we hold that the Court of Appeals erred in

accepting and relying on the testimonies of the witnesses for the private
respondents. Indeed, as shown by the above discussions, private
respondents were unable to rebut the presumption of negligence. Upon
these disquisitions we hold that private respondents are solidarily
liable for damages under Article 2176 79 of the Civil Code.

We now come to the amount of damages due petitioners. The trial court
awarded a total of P632,000.00 pesos (should be P616,000.00) in
compensatory damages to the plaintiff, "subject to its being updated"
covering the period from 15 November 1985 up to 15 April 1992, based on
monthly expenses for the care of the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court

at the time of its decision would be grossly inadequate to cover the actual
costs of home-based care for a comatose individual. The calculated
amount was not even arrived at by looking at the actual cost of proper
hospice care for the patient. What it reflected were the actual expenses
incurred and proved by the petitioners after they were forced to bring home
the patient to avoid mounting hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be

transferred to a hospice specializing in the care of the chronically ill for the
purpose of providing a proper milieu adequate to meet minimum standards
of care. In the instant case for instance, Erlinda has to be constantly turned
from side to side to prevent bedsores and hypostatic pneumonia. Feeding
is done by nasogastric tube. Food preparation should be normally made by
a dietitian to provide her with the correct daily caloric requirements and
vitamin supplements. Furthermore, she has to be seen on a regular basis
by a physical therapist to avoid muscle atrophy, and by a pulmonary
therapist to prevent the accumulation of secretions which can lead to
respiratory complications.

Given these considerations, the amount of actual damages recoverable in

suits arising from negligence should at least reflect the correct minimum
cost of proper care, not the cost of the care the family is usually compelled
to undertake at home to avoid bankruptcy. However, the provisions of the
Civil Code on actual or compensatory damages present us with some
difficulties.

Well-settled is the rule that actual damages which may be claimed by the
plaintiff are those suffered by him as he has duly proved. The Civil Code
provides:

Art. 2199. — Except as provided by law or by stipulation, one is

entitled to an adequate compensation only for such pecuniary
loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory
damages.
Our rules on actual or compensatory damages generally assume that at the
time of litigation, the injury suffered as a consequence of an act of
negligence has been completed and that the cost can be liquidated.
However, these provisions neglect to take into account those situations, as
in this case, where the resulting injury might be continuing and possible
future complications directly arising from the injury, while certain to occur,
are difficult to predict.

In these cases, the amount of damages which should be awarded, if they

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

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

In the instant case, petitioners were able to provide only home-based

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

In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a

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

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

As a result of the accident, Ma. Lourdes Valenzuela underwent

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

These adjustments entail costs, prosthetic replacements and

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

x x x           x x x          x x x

A prosthetic devise, however technologically advanced, will

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

The injury suffered by Erlinda as a consequence of private respondents'

negligence is certainly much more serious than the amputation in the
Valenzuela case.

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

Meanwhile, the actual physical, emotional and financial cost of the care of
petitioner would be virtually impossible to quantify. Even the temperate
damages herein awarded would be inadequate if petitioner's condition
remains unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victim's actual injury

would not even scratch the surface of the resulting moral damage because
it would be highly speculative to estimate the amount of emotional and
moral pain, psychological damage and injury suffered by the victim or those
actually affected by the victim's condition. 84 The husband and the children,
all petitioners in this case, will have to live with the day to day uncertainty of
the patient's illness, knowing any hope of recovery is close to nil. They
have fashioned their daily lives around the nursing care of petitioner,
altering their long term goals to take into account their life with a comatose
patient. They, not the respondents, are charged with the moral
responsibility of the care of the victim. The family's moral injury and
suffering in this case is clearly a real one. For the foregoing reasons, an
award of P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of

P100,000.00 are hereby awarded. Considering the length and nature of the
instant suit we are of the opinion that attorney's fees valued at P100,000.00
are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases

because physicians are not insurers of life and, they rarely set out to
intentionally cause injury or death to their patients. However, intent is
immaterial in negligence cases because where negligence exists and is
proven, the same automatically gives the injured a right to reparation for
the damage caused.

Established medical procedures and practices, though in constant flux are

devised for the purpose of preventing complications. A physician's
experience with his patients would sometimes tempt him to deviate from
established community practices, and he may end a distinguished career
using unorthodox methods without incident. However, when failure to follow
established procedure results in the evil precisely sought to be averted by
observance of the procedure and a nexus is made between the deviation
and the injury or damage, the physician would necessarily be called to
account for it. In the case at bar, the failure to observe pre-operative
assessment protocol which would have influenced the intubation in a
salutary way was fatal to private respondents' case.

WHEREFORE, the decision and resolution of the appellate court appealed

from are hereby modified so as to award in favor of petitioners, and
solidarily against private respondents the following: 1) P1,352,000.00 as
actual damages computed as of the date of promulgation of this decision
plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda
Ramos expires or miraculously survives; 2) P2,000,000.00 as moral
damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each
as exemplary damages and attorney's fees; and, 5) the costs of the suit.

SO ORDERED.

SECOND DIVISION

[G.R. No. 118141. September 5, 1997]

 LEONILA GARCIA-RUEDA, Petitioner, v. WILFREDO L.
PASCASIO, RAUL R. ARNAU, ABELARDO L. APORTADERA
JR., Honorable CONDRADO M. VASQUEZ, all of the Office of
the Ombudsman; JESUS F. GUERRERO, PORFIRIO
MACARAEG, and GREGORIO A. ARIZALA, all of the Office of
the City Prosecutor, Manila, Respondents.

DECISION

ROMERO, J.:

May this Court review the findings of the Office of the

Ombudsman? The general rule has been enunciated in Ocampo v.
Ombudsman 1 which states:

In the exercise of its investigative power, this Court has

consistently held that courts will not interfere with the discretion
of the fiscal or the Ombudsman to determine the specificity and
adequacy of the averments of the offense charged. He may
dismiss the complaint forthwith if he finds it to be insufficient in
form and substance or if he otherwise finds no ground to continue
with the inquiry; or he may proceed with the investigation of the
complaint if, in his view, it is in due and proper form.

Does the instant case warrant a departure from the foregoing

general rule? When a patient dies soon after surgery under
circumstances which indicate that the attending surgeon and
anaesthesiologist may have been guilty of negligence but upon
their being charged, 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. Nor may
she be entirely faulted for finally filing a petition before this Court
against the Ombudsman for grave abuse of discretion in
dismissing her complaint against said City Prosecutors on the
ground of lack of evidence. Much as we sympathize with the
bereaved widow, however, this Court is of the opinion that the
general rule still finds application in instant case. In other words,
the respondent Ombudsman did not commit grave abuse of
discretion in deciding against filing the necessary information
against public respondents of the Office of the City Prosecutor.

The following facts are borne out by the records.

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.2chanroblesvirtuallawlibrary

Not satisfied with the findings of the hospital, petitioner

requested the National Bureau of Investigation (NBI) to conduct
an autopsy on her husbands body. Consequently, the NBI ruled
that Florencios 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.

During the preliminary investigation, what transpired was a

confounding series of events which we shall try to disentangle.
The case was initially assigned to Prosecutor Antonio M. Israel,
who had to inhibit himself because he was related to the counsel
of one of the doctors. As a result, the case was re-raffled to
Prosecutor Norberto G. Leono who was, however, disqualified on
motion of the petitioner since he disregarded prevailing laws and
jurisprudence regarding preliminary investigation. The case was
then referred to Prosecutor Ramon O. Carisma, who issued a
resolution recommending that only Dr. Reyes be held criminally
liable and that the complaint against Dr. Antonio be dismissed.

The case took another perplexing turn when Assistant City

Prosecutor Josefina Santos Sioson, in the interest of justice and
peace of mind of the parties, recommended that the case be re-
raffled on the ground that Prosecutor Carisma was partial to the
petitioner. Thus, the case was transferred to Prosecutor Leoncia
R. Dimagiba, where a volte face occurred again with the
endorsement that the complaint against Dr. Reyes be dismissed
and instead, a corresponding information be filed against Dr.
Antonio. Petitioner filed a motion for reconsideration, questioning
the findings of Prosecutor Dimagiba.

Pending the resolution of petitioners motion for reconsideration

regarding Prosecutor Dimagibas resolution, the investigative
pingpong continued when the case was again assigned to another
prosecutor, Eudoxia T. Gualberto, who recommended that Dr.
Reyes be included in the criminal information of Homicide through
Reckless Imprudence. While the recommendation of Prosecutor
Gualberto was pending, the case was transferred to Senior State
Prosecutor Gregorio A. Arizala, who resolved to exonerate Dr.
Reyes from any wrongdoing, a resolution which was approved by
both City Prosecutor Porfirio G. Macaraeg and City Prosecutor
Jesus F. Guerrero.

Aggrieved, petitioner filed graft charges specifically for violation

of Section 3(e) of Republic Act No. 3019 3 against Prosecutors
Guerrero, Macaraeg, and Arizala for manifest partiality in favor of
Dr. Reyes before the Office of the Ombudsman. However, on July
11, 1994, the Ombudsman issued the assailed resolution
dismissing the complaint for lack of evidence.

In fine, petitioner assails the exercise of the discretionary power

of the Ombudsman to review the recommendations of the
government prosecutors and to approve and disapprove the
same. Petitioner faults the Ombudsman for, allegedly in grave
abuse of discretion, refusing to find that there exists probable
cause to hold public respondent City Prosecutors liable for
violation of Section 3(e) of R.A. No. 3019.

Preliminarily, the powers and functions of the Ombudsman have

generally been categorized into the following: investigatory
powers, prosecutory power, public assistance function, authority
to inquire and obtain information, and function to adopt, institute
and implement preventive measures. 4chanroblesvirtuallawlibrary

As protector of the people, the Office of the Ombudsman has the

power, function and duty to act promptly on complaints filed in
any form or manner against public officials and to investigate any
act or omission of any public official when such act or omission
appears to be illegal, unjust, improper or
inefficient. 5chanroblesvirtuallawlibrary

While the Ombudsman has the full discretion to determine

whether or not a criminal case should be filed, this Court is not
precluded from reviewing the Ombudsmans action when there is
an abuse of discretion, in which case Rule 65 of the Rules of
Court may exceptionally be invoked pursuant to Section I, Article
VIII of the 1987 Constitution. 6chanroblesvirtuallawlibrary

In this regard, grave abuse of discretion has been defined as

where a power is exercised in an arbitrary or despotic manner by
reason of passion or personal hostility so patent and gross as to
amount to evasion of positive duty or virtual refusal to perform a
duty enjoined by, or in contemplation of
law. 7chanroblesvirtuallawlibrary

From a procedural standpoint, it is certainly odd why the

successive transfers from one prosecutor to another were not
sufficiently explained in the Resolution of the Ombudsman. Being
the proper investigating authority with respect to misfeasance,
non-feasance and malfeasance of public officials, the Ombudsman
should have been more vigilant and assiduous in determining the
reasons behind the buckpassing to ensure that no irregularity
took place.

Whether such transfers were due to any outside pressure or

ulterior motive is a matter of evidence. One would have expected
the Ombudsman, however, to inquire into what could hardly
qualify as standard operating procedure, given the surrounding
circumstances of the case.
While it is true that a preliminary investigation is essentially
inquisitorial, and is often the only means to discover who may be
charged with a crime, its function is merely to determine the
existence of probable cause. 8 Probable cause has been defined as
the existence of such fact and circumstances as would excite the
belief, in a reasonable mind, acting on the facts within the
knowledge of the prosecution, that the person charged was guilty
of the crime for which he was
prosecuted.9chanroblesvirtuallawlibrary

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.10chanroblesvirtuallawlibrary

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 partys accusation and defenses are better ventilated at
the trial proper than at the preliminary investigation.
A word on medical malpractice or negligence cases.

In its simplest terms, 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 that
failure or action caused injury to the
patient.12chanroblesvirtuallawlibrary

Hence, there are four elements involved in medical negligence

cases: duty, breach, injury and proximate causation.

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.15chanroblesvirtuallawlibrary

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.17chanroblesvirtuallawlibrary

Another element in medical negligence cases is causation which is

divided into two inquiries: whether the doctors actions in fact
caused the harm to the patient and whether these were the
proximate cause of the patients injury.18 Indeed here, a causal
connection is discernible from the occurrence of the victims 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.

The City Prosecutors were charged with violating Section 3(e) of

the Anti-Graft and Corrupt Practices Act which requires the
following facts:

1. The accused is a public officer discharging administrative or

official functions or private persons charged in conspiracy with
them;

2. The public officer committed the prohibited act during the

performance of his official duty or in relation to his public
position;
3. The public officer acted with manifest partiality, evident bad
faith or gross, inexcusable negligence; and

4. His action caused undue injury to the Government or any

private party, or gave any party any unwarranted benefit,
advantage or preference to such
parties. 20chanroblesvirtuallawlibrary

Why did the complainant, petitioner in instant case, elect to

charge respondents under the above law?

While a party who feels himself aggrieved is at liberty to choose

the appropriate weapon from the armory, it is with no little
surprise that this Court views the choice made by the
complainant widow.

To our mind, the better and more logical remedy under the
circumstances would have been to appeal the resolution of the
City Prosecutors dismissing the criminal complaint to the
Secretary of Justice under the Department of Justices Order No.
223, 21 otherwise known as the 1993 Revised Rules on Appeals
From Resolutions In Preliminary Investigations/Reinvestigations,
as amended by Department Order No. 359, Section 1 of which
provides:

Section 1. What May Be Appealed. - Only resolutions of the Chief

State Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor dismissing a criminal complaint may be the subject of
an appeal to the Secretary of Justice except as otherwise
provided in Section 4 hereof.

What action may the Secretary of Justice take on the appeal?

Section 9 of Order No. 223 states: The Secretary of Justice may
reverse, affirm or modify the appealed resolution. On the other
hand, He may motu proprio or on motion of the appellee, dismiss
outright the appeal on specified
grounds. 22chanroblesvirtuallawlibrary
In exercising his discretion under the circumstances, the
Ombudsman acted within his power and authority in dismissing
the complaint against the Prosecutors and this Court will not
interfere with the same.

WHEREFORE, in view of the foregoing, the instant petition is

DISMISSED, without prejudice to the filing of an appeal by the
petitioner with the Secretary of Justice assailing the dismissal of
her criminal complaint by the respondent City Prosecutors. No
costs.

SO ORDERED.

Regalado, (Chairman), Puno, Mendoza, and Torres, Jr., JJ.,

concur.

THIRD DIVISION

[G.R. NO. 168512 : March 20, 2007]

ORLANDO D. GARCIA, JR., doing business under the name

and style COMMUNITY DIAGNOSTIC CENTER and BU
CASTRO,1 Petitioners, v. RANIDA D. SALVADOR and RAMON
SALVADOR, Respondents.

DECISION

YNARES-SANTIAGO, J.:

This is a Petition for Review 2 under Rule 45 of the Rules of Court

assailing the February 27, 2004 Decision3 of the Court of Appeals
in CA-G.R. CV No. 58668 finding petitioner Orlando D. Garcia
liable for gross negligence; and its June 16, 2005
Resolution4 denying petitioner's motion for reconsideration.

On October 1, 1993, respondent Ranida D. Salvador started

working as a trainee in the Accounting Department of Limay Bulk
Handling Terminal, Inc. (the Company). As a prerequisite for
regular employment, she underwent a medical
examination at the Community Diagnostic Center (CDC).
Garcia who is a medical technologist, conducted the HBs Ag
(Hepatitis B Surface Antigen) test and on October 22, 1993, CDC
issued the test result5 indicating that Ranida was "HBs Ag:
Reactive." The result bore the name and signature of Garcia as
examiner and the rubber stamp signature of Castro as
pathologist.

When Ranida submitted the test result to Dr. Sto. Domingo, the
Company physician, the latter apprised her that the findings
indicated that she is suffering from Hepatitis B, a liver disease.
Thus, based on the medical report6 submitted by Sto. Domingo,
the Company terminated Ranida's employment for failing
the physical examination.7

When Ranida informed her father, Ramon, about her ailment, the
latter suffered a heart attack and was confined at the Bataan
Doctors Hospital. During Ramon's confinement, Ranida underwent
another HBs Ag test at the said hospital and the result8 indicated
that she is non-reactive. She informed Sto. Domingo of this
development but was told that the test conducted by CDC
was more reliable because it used the Micro-Elisa Method.

Thus, Ranida went back to CDC for confirmatory testing,

and this time, the Anti-HBs test conducted on her indicated
a "Negative" result.9

Ranida also underwent another HBs Ag test at the Bataan Doctors

Hospital using the Micro-Elisa Method. The result indicated that
she was non-reactive.10
Ranida submitted the test results from Bataan Doctors Hospital
and CDC to the Executive Officer of the Company who requested
her to undergo another similar test before her re-employment
would be considered. Thus, CDC conducted another HBs Ag test
on Ranida which indicated a "Negative" result.11 Ma. Ruby G.
Calderon, Med-Tech Officer-in-Charge of CDC, issued a
Certification correcting the initial result and explaining that the
examining medical technologist (Garcia) interpreted the delayed
reaction as positive or reactive.12

Thereafter, the Company rehired Ranida.

On July 25, 1994, Ranida and Ramon filed a complaint13 for

damages against petitioner Garcia and a purportedly unknown
pathologist of CDC, claiming that, by reason of the erroneous
interpretation of the results of Ranida's examination, she
lost her job and suffered serious mental anxiety, trauma
and sleepless nights, while Ramon was hospitalized and
lost business opportunities.

On September 26, 1994, respondents amended their

complaint14 by naming Castro as the "unknown pathologist."

Garcia denied the allegations of gross negligence and

incompetence and reiterated the scientific explanation for the
"false positive" result of the first HBs Ag test in his December 7,
1993 letter to the respondents.15

For his part, Castro claimed that as pathologist, he rarely went to

CDC and only when a case was referred to him; that he did not
examine Ranida; and that the test results bore only his rubber-
stamp signature.

On September 1, 1997,16 the trial court dismissed the complaint

for failure of the respondents to present sufficient evidence to
prove the liability of Garcia and Castro. It held that respondents
should have presented Sto. Domingo because he was the one
who interpreted the test result issued by CDC. Likewise,
respondents should have presented a medical expert to
refute the testimonies of Garcia and Castro regarding the
medical explanation behind the conflicting test results on
Ranida.17

Respondents appealed to the Court of Appeals which reversed the

trial court's findings, the dispositive portion of which states:

WHEREFORE, the decision appealed from is REVERSED and SET

ASIDE and another one entered ORDERING defendant-appellee
Orlando D. Garcia, Jr. to pay plaintiff-appellant Ranida D.
Salvador moral damages in the amount of P50,000.00, exemplary
damages in the amount of P50,000.00 and attorney's fees in the
amount of P25,000.00.

SO ORDERED.18

The appellate court found Garcia liable for damages for

negligently issuing an erroneous HBs Ag result. On the other
hand, it exonerated Castro for lack of participation in the issuance
of the results.

After the denial of his motion for reconsideration, Garcia filed the
instant petition.

The main issue for resolution is whether the Court of Appeals,

in reversing the decision of the trial court, correctly found
petitioner liable for damages to the respondents for
issuing an incorrect HBsAG test result.

Garcia maintains he is not negligent, thus not liable for damages,

because he followed the appropriate laboratory measures and
procedures as dictated by his training and experience; and that
he did everything within his professional competence to arrive at
an objective, impartial and impersonal result.

At the outset, we note that the issues raised are factual in nature.
Whether a person is negligent or not is a question of fact which
we cannot pass upon in a Petition for Review on Certiorari which
is limited to reviewing errors of law.19
Negligence is the failure to observe for the protection of the
interest of another person that degree of care, precaution and
vigilance which the circumstances justly demand,20 whereby such
other person suffers injury. For health care providers, the test of
the existence of negligence is: did the health care provider either
fail to do something which a reasonably prudent health care
provider would have done, or that he or she did something that a
reasonably prudent health care provider would not have done;
and that failure or action caused injury to the patient;21 if yes,
then he is guilty of negligence.

Thus, the elements of an actionable conduct are: 1) duty,

2) breach, 3) injury, and 4) proximate causation.

All the elements are present in the case at bar.

Owners and operators of clinical laboratories have the duty to

comply with statutes, as well as rules and regulations, purposely
promulgated to protect and promote the health of the people by
preventing the operation of substandard, improperly managed
and inadequately supported clinical laboratories and by improving
the quality of performance of clinical laboratory
examinations.22 Their business is impressed with public
interest, as such, high standards of performance are
expected from them.

In F.F. Cruz and Co., Inc. v. Court of Appeals, we found the

owner of a furniture shop liable for the destruction of the
plaintiff's house in a fire which started in his establishment in
view of his failure to comply with an ordinance which required the
construction of a firewall. In Teague v. Fernandez, we stated that
where the very injury which was intended to be prevented by the
ordinance has happened, non-compliance with the ordinance was
not only an act of negligence, but also the proximate cause of the
death.23

In fine, violation of a statutory duty is negligence. Where

the law imposes upon a person the duty to do something,
his omission or non-performance will render him liable to
whoever may be injured thereby.

Section 2 of Republic Act (R.A.) No. 4688, otherwise known

as The Clinical Laboratory Law, provides:

Sec. 2. It shall be unlawful for any person to be professionally in-

charge of a registered clinical laboratory unless he is a licensed
physician duly qualified in laboratory medicine and authorized by
the Secretary of Health, such authorization to be renewed
annually.

No license shall be granted or renewed by the Secretary of Health

for the operation and maintenance of a clinical laboratory unless
such laboratory is under the administration, direction and
supervision of an authorized physician, as provided for in the
preceding paragraph.

Corollarily, Sections 9(9.1)(1), 11 and 25(25.1)(1) of the DOH

Administrative Order No. 49-B Series of 1988, otherwise known
as the Revised Rules and Regulations Governing the Registration,
Operation and Maintenance of Clinical Laboratories in the
Philippines, read:

Sec. 9. Management of the Clinical Laboratory:

9.1 Head of the Clinical Laboratory: The head is that person who
assumes technical and administrative supervision and control of
the activities in the laboratory.

For all categories of clinical laboratories, the head shall be a

licensed physician certified by the Philippine Board of Pathology in
either Anatomic or Clinical Pathology or both provided that:

(1) This shall be mandatory for all categories of free-standing

clinical laboratories; all tertiary category hospital laboratories and
for all secondary category hospital laboratories located in areas
with sufficient available pathologist.
 x    x    x

Sec. 11. Reporting: All laboratory requests shall be considered as

consultations between the requesting physician and pathologist of
the laboratory. As such all laboratory reports on various
examinations of human specimens shall be construed as
consultation report and shall bear the name of the pathologist or
his associate. No person in clinical laboratory shall issue a report,
orally or in writing, whole portions thereof without a directive
from the pathologist or his authorized associate and only to the
requesting physician or his authorized representative except in
emergencies when the results may be released as authorized by
the pathologist.

x    x    x

Sec. 25. Violations:

25.1 The license to operate a clinical laboratory may be

suspended or revoked by the Undersecretary of Health for
Standards and Regulation upon violation of R.A. 4688 or the rules
and regulations issued in pursuance thereto or the commission of
the following acts by the persons owning or operating a clinical
laboratory and the persons under their authority.

(1) Operation of a Clinical Laboratory without a certified

pathologist or qualified licensed physician authorized by the
Undersecretary of Health or without employing a registered
medical technologist or a person not registered as a medical
technologist in such a position.

And Section 29(b) of R.A. No. 5527, otherwise known as The

Philippine Medical Technology Act of 1969, reads:

Section 29. Penal Provisions. - Without prejudice to the provision

of the Medical Act of 1959, as amended relating to illegal practice
of Medicine, the following shall be punished by a fine of not less
than two thousand pesos nor more than five thousand pesos, or
imprisonment for not less than six months nor more than two
years, or both, in the discretion of the court:

x    x    x

(b) Any medical technologist, even if duly registered, who shall

practice medical technology in the Philippines without the
necessary supervision of a qualified pathologist or physician
authorized by the Department of Health;

From the foregoing laws and rules, it is clear that a clinical

laboratory must be administered, directed and supervised
by a licensed physician authorized by the Secretary of
Health, like a pathologist who is specially trained in
methods of laboratory medicine; that the medical
technologist must be under the supervision of the
pathologist or a licensed physician; and that the results of
any examination may be released only to the requesting
physician or his authorized representative upon the direction of
the laboratory pathologist.

These rules are intended for the protection of the public by

preventing performance of substandard clinical examinations by
laboratories whose personnel are not properly supervised. The
public demands no less than an effective and efficient
performance of clinical laboratory examinations through
compliance with the quality standards set by laws and
regulations.

We find that petitioner Garcia failed to comply with these

standards.

First, CDC is not administered, directed and supervised by a

licensed physician as required by law, but by Ma. Ruby C.
Calderon, a licensed Medical Technologist.24 In the License to
Open and Operate a Clinical Laboratory for the years 1993 and
1996 issued by Dr. Juan R. Nañagas, M.D., Undersecretary for
Health Facilities, Standards and Regulation, defendant-appellee
Castro was named as the head of CDC.25 However, in his Answer
with Counterclaim, he stated:

3. By way of affirmative and special defenses, defendant

pathologist further avers and plead as follows:

Defendant pathologist is not the owner of the Community

Diagnostic Center nor an employee of the same nor the employer
of its employees. Defendant pathologist comes to the Community
Diagnostic Center when and where a problem is referred to him.
Its employees are licensed under the Medical Technology Law
(Republic Act No. 5527) and are certified by, and registered with,
the Professional Regulation Commission after having passed their
Board Examinations. They are competent within the sphere of
their own profession in so far as conducting laboratory
examinations and are allowed to sign for and in behalf of the
clinical laboratory. The defendant pathologist, and all pathologists
in general, are hired by laboratories for purposes of complying
with the rules and regulations and orders issued by the
Department of Health through the Bureau of Research and
Laboratories. Defendant pathologist does not stay that long
period of time at the Community Diagnostic Center but only
periodically or whenever a case is referred to him by the
laboratory. Defendant pathologist does not appoint or select the
employees of the laboratory nor does he arrange or approve their
schedules of duty.26

Castro's infrequent visit to the clinical laboratory barely qualifies

as an effective administrative supervision and control over the
activities in the laboratory. "Supervision and control" means the
authority to act directly whenever a specific function is entrusted
by law or regulation to a subordinate; direct the performance
of duty; restrain the commission of acts; review, approve,
revise or modify acts and decisions of subordinate officials
or units.27
Second, Garcia conducted the HBsAG test of respondent
Ranida without the supervision of defendant-appellee
Castro, who admitted that:

[He] does not know, and has never known or met, the plaintiff-
patient even up to this time nor has he personally examined any
specimen, blood, urine or any other tissue, from the plaintiff-
patient otherwise his own handwritten signature would have
appeared in the result and not merely stamped as shown in
Annex "B" of the Amended Complaint.28

Last, the disputed HBsAG test result was released to

respondent Ranida without the authorization of defendant-
appellee Castro.29

Garcia may not have intended to cause the consequences which

followed after the release of the HBsAG test result. However, his
failure to comply with the laws and rules promulgated and
issued for the protection of public safety and interest is
failure to observe that care which a reasonably prudent
health care provider would observe. Thus, his act or
omission constitutes a breach of duty.

Indubitably, Ranida suffered injury as a direct consequence of

Garcia's failure to comply with the mandate of the laws and rules
aforequoted. She was terminated from the service for failing the
physical examination; suffered anxiety because of the diagnosis;
and was compelled to undergo several more tests. All these could
have been avoided had the proper safeguards been scrupulously
followed in conducting the clinical examination and releasing the
clinical report.

Article 20 of the New Civil Code provides:

Art. 20. Every person who, contrary to law, willfully or negligently

causes damage to another, shall indemnify the latter for the
same.
The foregoing provision provides the legal basis for the award of
damages to a party who suffers damage whenever one commits
an act in violation of some legal provision.30 This was
incorporated by the Code Commission to provide relief to a
person who suffers damage because another has violated some
legal provision.31

We find the Court of Appeals' award of moral damages

reasonable under the circumstances bearing in mind the mental
trauma suffered by respondent Ranida who thought she was
afflicted by Hepatitis B, making her "unfit or unsafe for any type
of employment."32 Having established her right to moral
damages, we see no reason to disturb the award of exemplary
damages and attorney's fees. Exemplary damages are imposed,
by way of example or correction for the public good, in addition to
moral, temperate, liquidated or compensatory damages,33 and
attorney's fees may be recovered when, as in the instant case,
exemplary damages are awarded.34

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CV

No. 58668 dated February 27, 2004 finding petitioner Orlando
D. Garcia, Jr. guilty of gross negligence and liable to pay to
respondents P50,000.00 as moral damages, P50,000.00 as
exemplary damages, and P25,000.00 as attorney's fees, is
AFFIRMED.

SO ORDERED.