1 Torts and Damages | Atty.
Marianne Beltran-Angeles
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
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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
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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
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after she committed a mistake in intubating [the] patient, WHEREFORE, and in view of the foregoing, judgment is
the patient's nailbed became bluish and the patient, rendered in favor of the plaintiffs and against the
thereafter, was placed in trendelenburg position, because defendants. Accordingly, the latter are ordered to pay,
of the decrease of blood supply to the patient's brain. The jointly and severally, the former the following sums of
evidence further shows that the hapless patient suffered money, to wit:
brain damage because of the absence of oxygen in her
(patient's) brain for approximately four to five minutes 1) the sum of P8,000.00 as actual monthly
which, in turn, caused the patient to become comatose. expenses for the plaintiff Erlinda Ramos
reckoned from November 15, 1985 or in the
On the part of Dr. Orlino Hosaka, this Court finds that he total sum of P632,000.00 as of April 15,
is liable for the acts of Dr. Perfecta Gutierrez whom he had 1992, subject to its being updated;
chosen to administer anesthesia on the patient as part of
his obligation to provide the patient a good 2) the sum of P100,000.00 as reasonable
anesthesiologist', and for arriving for the scheduled attorney's fees;
operation almost three (3) hours late.
3) the sum of P800,000.00 by way of moral
On the part of DLSMC (the hospital), this Court finds that damages and the further sum of
it is liable for the acts of negligence of the doctors in their P200,000,00 by way of exemplary damages;
"practice of medicine" in the operating room. Moreover, the and,
hospital is liable for failing through its responsible officials,
to cancel the scheduled operation after Dr. Hosaka 4) the costs of the suit.
inexcusably failed to arrive on time.
SO ORDERED. 7
In having held thus, this Court rejects the defense raised
by defendants that they have acted with due care and
Private respondents seasonably interposed an appeal to the Court of
prudence in rendering medical services to plaintiff-patient.
Appeals. The appellate court rendered a Decision, dated 29 May 1995,
For if the patient was properly intubated as claimed by
reversing the findings of the trial court. The decretal portion of the decision
them, the patient would not have become comatose. And,
of the appellate court reads:
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 WHEREFORE, for the foregoing premises the appealed
should have rescheduled the operation to a later date. This, decision is hereby REVERSED, and the complaint below
they should have done, if defendants acted with due care against the appellants is hereby ordered DISMISSED. The
and prudence as the patient's case was an elective, not an counterclaim of appellant De Los Santos Medical Center is
emergency case. 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
xxx xxx xxx
with mercy.

SO ORDERED. 8
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The decision of the Court of Appeals was received on 9 June 1995 by A copy of the above resolution was received by Atty. Sillano on 11 April
petitioner Rogelio Ramos who was mistakenly addressed as "Atty. Rogelio 1996. The next day, or on 12 April 1996, Atty. Sillano filed before this Court
Ramos." No copy of the decision, however, was sent nor received by the a motion for extension of time to file the present petition
Coronel Law Office, then counsel on record of petitioners. Rogelio referred for certiorari under Rule 45. The Court granted the motion for extension of
the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 time and gave petitioners additional thirty (30) days after the expiration of
June 1995, or four (4) days before the expiration of the reglementary period the fifteen-day (15) period counted from the receipt of the resolution of the
for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed Court of Appeals within which to submit the petition. The due date fell on
with the appellate court a motion for extension of time to file a motion for 27 May 1996. The petition was filed on 9 May 1996, well within the
reconsideration. The motion for reconsideration was submitted on 4 July extended period given by the Court.
1995. However, the appellate court denied the motion for extension of time
in its Resolution dated 25 July 1995. 9 Meanwhile, petitioners engaged the Petitioners assail the decision of the Court of Appeals on the following
services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. grounds:
Sillano filed on 7 August 1995 a motion to admit the motion for
reconsideration contending that the period to file the appropriate pleading I
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
IN PUTTING MUCH RELIANCE ON THE
the counsel on record. Despite this explanation, the appellate court still
TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ,
denied the motion to admit the motion for reconsideration of petitioners in
DRA. CALDERON AND DR. JAMORA;
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: II

We said in our Resolution on July 25, 1995, that the filing IN FINDING THAT THE NEGLIGENCE OF THE
of a Motion for Reconsideration cannot be extended; RESPONDENTS DID NOT CAUSE THE
precisely, the Motion for Extension (Rollo, p. 12) was UNFORTUNATE COMATOSE CONDITION OF
denied. It is, on the other hand, admitted in the latter PETITIONER ERLINDA RAMOS;
Motion that plaintiffs/appellees received a copy of the
decision as early as June 9, 1995. Computation wise, the III
period to file a Motion for Reconsideration expired on June
24. The Motion for Reconsideration, in turn, was received IN NOT APPLYING THE DOCTRINE OF RES IPSA
by the Court of Appeals already on July 4, necessarily, the LOQUITUR. 11
15-day period already passed. For that alone, the latter
should be denied. 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
Even assuming admissibility of the Motion for the for reconsideration filed by petitioners with the Court of Appeals. In their
Reconsideration, but after considering the Comment, 12 private respondents contend that the petition should not be
Comment/Opposition, the former, for lack of merit, is given due course since the motion for reconsideration of the petitioners on
hereby DENIED. 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
SO ORDERED. 10 agree.
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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
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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
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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,
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9 Torts and Damages | Atty. Marianne Beltran-Angeles
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.
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10 Torts and Damages | Atty. Marianne Beltran-Angeles
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.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those words
"lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
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.
xxx xxx xxx
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
xxx xxx xxx
The appellate court, however, disbelieved Dean Cruz's testimony in the
trial court by declaring that:
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11 Torts and Damages | Atty. Marianne Beltran-Angeles

A perusal of the standard nursing curriculum in our Dean of the Capitol Medical Center School at Nursing, was fully capable of
country will show that intubation is not taught as part of determining whether or not the intubation was a success. She had
nursing procedures and techniques. Indeed, we take extensive clinical experience starting as a staff nurse in Chicago, Illinois;
judicial notice of the fact that nurses do not, and cannot, staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF;
intubate. Even on the assumption that she is fully capable Dean of the Laguna College of Nursing in San Pablo City; and then Dean
of determining whether or not a patient is properly of the Capitol Medical Center School of Nursing. 50 Reviewing witness
intubated, witness Herminda Cruz, admittedly, did not Cruz' statements, we find that the same were delivered in a
peep into the throat of the patient. (TSN, July 25, 1991, p. straightforward manner, with the kind of detail, clarity, consistency and
13). More importantly, there is no evidence that she ever spontaneity which would have been difficult to fabricate. With her clinical
auscultated the patient or that she conducted any type of background as a nurse, the Court is satisfied that she was able to
examination to check if the endotracheal tube was in its demonstrate through her testimony what truly transpired on that fateful
proper place, and to determine the condition of the heart, day.
lungs, and other organs. Thus, witness Cruz's categorical
statements that appellant Dra. Gutierrez failed to intubate Most of all, her testimony was affirmed by no less than respondent Dra.
the appellee Erlinda Ramos and that it was Dra. Calderon Gutierrez who admitted that she experienced difficulty in inserting the
who succeeded in doing so clearly suffer from lack of tube into Erlinda's trachea, to wit:
sufficient factual bases. 47
ATTY. LIGSAY:
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 Q: In this particular case, Doctora, while
is not competent to testify on whether or not the intubation was a success. you were intubating at your first attempt
(sic), you did not immediately see the
We do not agree with the above reasoning of the appellate court. Although trachea?
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 DRA. GUTIERREZ:
acts of the physician and surgeon, external appearances, and manifest
conditions which are observable by any one. 48 This is precisely allowed
A: Yes sir.
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 Q: Did you pull away the tube
of which an ordinary person may be expected to have knowledge, or where immediately?
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 A: You do not pull the . . .
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 Q: Did you or did you not?
if the tube was properly inserted. This kind of observation, we believe, does
not require a medical degree to be acceptable. A: I did not pull the tube.

At any rate, without doubt, petitioner's witness, an experienced clinical Q: When you said "mahirap yata ito," what
nurse whose long experience and scholarship led to her appointment as were you referring to?
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12 Torts and Damages | Atty. Marianne Beltran-Angeles
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
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13 Torts and Damages | Atty. Marianne Beltran-Angeles
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?
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14 Torts and Damages | Atty. Marianne Beltran-Angeles
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.
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15 Torts and Damages | Atty. Marianne Beltran-Angeles
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
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16 Torts and Damages | Atty. Marianne Beltran-Angeles
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.
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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
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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.
xxx xxx xxx
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.
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19 Torts and Damages | Atty. Marianne Beltran-Angeles

Our courts face unique difficulty in adjudicating medical negligence cases

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

Established medical procedures and practices, though in constant flux are

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

WHEREFORE, the decision and resolution of the appellate court appealed

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

SO ORDERED.

Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.

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