Petitioners Vs Vs Respondents Luis C. A. Sillano Antonio H. Abad & Associates Tanjuatco, Sta. Maria, Tanjuatco

FIRST DIVISION
[G.R. No. 124354. December 29, 1999.]
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and

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

Antonio H. Abad & Associates for respondents Doctors.
Tanjuatco, Sta. Maria, Tanjuatco for respondent DLSMC.
SYNOPSIS
In the morning of June 17, 1985, Erlinda Ramos was brought into the operating
room of the Delos Santos Medical Center for a cholecystectomy. She was then a robust
woman, normal as any other except for occasional complaints of discomfort due to pains
allegedly caused by the presence of stones in her gall bladder. At around 3:00 p.m. of that
day, Erlinda was taken to the Intensive Care unit of the hospital, comatose. On January 8,
1986, Erlinda's husband led a civil case for damages against said hospital and Drs. Orlino
Hosaka and Perfecta Gutierrez. The Regional Trial Court ruled in favor of the plaintiffs. The
Court of Appeals, however, reversed the decision of the lower court and ordered the
dismissal of the complaint. Hence, this petition.
The doctrine of res ipsa loquitur is a recognition of the postulate that, as a matter of
common knowledge and experience, the very nature of certain types of occurrences may
justify an inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some explanation by the defendant
who is charged with negligence. The damage sustained by Erlinda in her brain prior to a
scheduled gall bladder operation presents a case for the application of res ipsa loquitur.
aACHDS
Brain damage, which Erlinda sustained is an injury which does not normally occur in
the process of a gall bladder operation. In fact, this kind of situation does not happen in
the absence of negligence of someone in the administration of anesthesia and in the use
of endotracheal tube. Moreover, the instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the exclusive control of private
respondents, who are the physicians-in-charge.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; MOTION FOR RECONSIDERATION; NO

DELAY OF FILING IN CASE AT BAR. — It is elementary that when a party is represented by
counsel, all notices should be sent to the party's lawyer at his given address. With a few
exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In
the present case, since a copy of the decision of the appellate court was not sent to the
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counsel on record of petitioner, there can be no su cient notice to speak of. Hence, the
delay in the ling of the motion for reconsideration cannot be taken against petitioner.
Moreover, since the Court of Appeals already issued a second Resolution, dated 29 March
1996, which superseded the earlier resolution issued on 25 July 1995, and denied the
motion for reconsideration of petitioner, we believe that the receipt of the former should
be considered in determining the timeliness of the ling of the present petition. Based on
this, the petition before us was submitted on time.
2. CIVIL LAW; DOCTRINE OF RES IPSA LOQUITUR ; ELUCIDATED. — Res ipsa loquitur
is a Latin phrase which literally means "the thing or the transaction speaks for itself." The
phrase "res ipsa loquitur" is a maxim for the rule that the fact of the occurrence of an injury,
taken with the surrounding circumstances, may permit an inference or raise a presumption
of negligence, or make out a plaintiffs prima facie case, and present a question of fact for
defendant to meet with an explanation. Where the thing which caused the injury
complained of is shown to be under the management of the defendant or his servants and
the accident is such as in ordinary course of things does not happen if those who have its
management or control use proper care, it affords reasonable evidence, in the absence of
explanation by the defendant, that the accident arose from or was caused by the
defendant's want of care. The doctrine of res 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. It is grounded in the superior
logic of ordinary human experience and on the basis of such experience or common
knowledge, negligence may be deduced from the mere occurrence of the accident itself.
Hence, res 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. Instead,
it is considered as merely evidentiary or in the nature of a procedural rule. It is regarded as
a mode of proof, or a mere procedural convenience since it furnishes a substitute for, and
relieves a plaintiff of, the burden of producing speci c proof of negligence. In other words,
mere invocation and application of the doctrine does not dispense with the requirement of
proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff
to present along with the proof of the accident, enough of the attending circumstances to
invoke the doctrine, creating an inference or presumption of negligence, and to thereby
place on the defendant the burden of going forward with the proof. Still, before resort to
the doctrine may be allowed, the following requisites must be satisfactorily shown: 1. The
accident is of a kind which ordinarily does not occur in the absence of someone's
negligence; 2. It is caused by an instrumentality within the exclusive control of the
defendant or defendants; and 3. The possibility of contributing conduct which would make
the plaintiff responsible is eliminated. In the above requisites, the fundamental element is
the "control of the instrumentality" which caused the damage. Such element of control
must be shown to be within the dominion of the defendant. In order to have the bene t 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. TaHDAS
3. ID.; ID.; APPLICATION IN MEDICAL MALPRACTICE. — Medical malpractice cases

do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied
when the circumstances attendant upon the harm are themselves of such a character as to
justify an inference of negligence as the cause of that harm. The application of res ipsa
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. Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a negligent act or that he has deviated
from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by
the plaintiff, the need for expert medical testimony is dispensed with because the injury
itself provides the proof of negligence. The reason is that the general rule on the necessity
of expert testimony applies only to such matters clearly within the domain of medical
science, and not to matters that are within the common knowledge of mankind which may
be testi ed to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of
skill and experience are competent to testify as to whether a patient has been treated or
operated upon with a reasonable degree of skill and care. However, testimony as to the
statements and acts of physicians and surgeons, external appearances, and manifest
conditions which are observable by any one may be given by non-expert witnesses. Hence,
in cases where the res ipsa loquitur is applicable, the court is permitted to nd a physician
negligent upon proper proof of injury to the patient, without the aid of expert testimony,
where the court from its fund of common knowledge can determine the proper standard
of care. Where common knowledge and experience teach that a resulting injury would not
have occurred to the patient if due care had been exercised, an inference of negligence
may be drawn giving rise to an application of the doctrine of res ipsa loquitur without
medical evidence, which is ordinarily required to show not only what occurred but how and
why it occurred. When the doctrine is appropriate, all that the patient must do is prove a
nexus between the particular act or omission complained of and the injury sustained while
under the custody and management of the defendant without need to produce expert
medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed
because there is no other way, under usual and ordinary conditions, by which the patient
can obtain redress for injury suffered by him. Thus, courts of other jurisdictions have
applied the doctrine in the following situations: leaving of a foreign object in the body of
the patient after an operation, injuries sustained on a healthy part of the body which was
not under, or in the area, of treatment, removal of the wrong part of the body when another
part was intended, knocking out a tooth while a patient's jaw was under anesthetic for the
removal of his tonsils, and loss of an eye while the patient plaintiff was under the in uence
of anesthetic, during or following an operation for appendicitis, among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably
enlarged, it does not automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to show that he is not guilty of the
ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily
used but a rule to be cautiously applied, depending upon the circumstances of each case.
It is generally restricted to situations in malpractice cases where a layman is able to say,
as a matter of common knowledge and observation, that the consequences of
professional care were not as such as would ordinarily have followed if due care had been
exercised. A distinction must be made between the failure to secure results, and the
occurrence of something more unusual and not ordinarily found if the service or treatment
rendered followed the usual procedure of those skilled in that particular practice. It must
be conceded that the doctrine of res ipsa loquitur can have no application in a suit against
a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment.
The physician or surgeon is not required at his peril to explain why any particular diagnosis
was not correct, or why any particular scienti c treatment did not produce the desired
result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is
that the desired result of an operation or treatment was not accomplished. The real
question, therefore, is whether or not in the process of the operation any extraordinary
incident or unusual event outside of the routine performance occurred which is beyond the
regular scope of customary professional activity in such operations, which, if unexplained
would themselves reasonably speak to the average man as the negligent cause or causes
of the untoward consequence. If there was such extraneous interventions, the doctrine of
res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by
evidence of exculpation, if he could.
4. ID.; ID.; APPLICABLE IN CASE AT BAR. — We nd the doctrine of res ipsa loquitur
appropriate in the case at bar. . . . Brain damage, which Erlinda sustained, is an injury which
does not normally occur in the process of a gall bladder operation. In fact, this kind of
situation does not happen in the absence of negligence of someone in the administration
of anesthesia and in the use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of administering such
anesthesia if the proper procedure was followed. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under the exclusive
control of private respondents, who are the physicians-in-charge. CaTSEA
5. ID.; ID.; CONTRIBUTORY NEGLIGENCE. — Petitioner Erlinda could not have been
guilty of contributory negligence because she was under the in uence 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.
6. REMEDIAL LAW; EVIDENCE; WITNESS; COMPETENCE; UPHELD IN CASE AT BAR.
— Although witness Cruz is not an anesthesiologist, she can very well testify upon matters
on which she is capable of observing such as, the statements and acts of the physician
and surgeon, external appearances, and manifest conditions which are observable by any
one. This is precisely allowed under the doctrine of res ipsa 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.
7. ID.; ID.; RULES OF ADMISSIBILITY; TESTIMONIAL EVIDENCE; OPINION OF
EXPERT WITNESS; NOT ADMITTED IN CASE AT BAR. — The provision in the rules of
evidence regarding expert witnesses states: Sec. 49. Opinion of expert witness. — The
opinion of a witness on a matter requiring special knowledge, skill, experience or training
which he is shown to possess, may be received in evidence. Generally, to qualify as an
expert witness, one must have acquired special knowledge of the subject matter about
which he or she is to testify, either by the study of recognized authorities on the subject or
by practical experience. Clearly, Dr. Jamora does not qualify as an expert witness based on
the above standard since he lacks the necessary knowledge, skill, and training in the eld
of anesthesiology.

8. CIVIL LAW; DAMAGES; EXCEPTIONAL NEGLIGENCE AND PROFESSIONAL
IRRESPONSIBILITY IN THE MEDICAL FIELD IN CASE AT BAR. — Respondent Dra. Gutierrez'
act of seeing her patient for the rst time only an hour before the scheduled operative
procedure was therefore, an act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and vigilance in dealing with human
lives lie at the core of the physician's centuries-old Hippocratic Oath. Her failure to follow
this medical procedure is, therefore, a clear indicia of her negligence.
9. ID.; ID.; ID. — As the so-called "captain of the ship," it is the surgeon's responsibility
to see to it that those under him perform their task in the proper manner. Respondent Dr.
Hosaka's negligence can be found in his failure to exercise the proper authority (as the
"captain" of the operative team) in not determining if his anesthesiologist observed proper
anesthesia protocols. In fact, no evidence on record exists to show that respondent Dr.
Hosaka veri ed 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.
10. ID.; TORTS; PROXIMATE CAUSE; ELUCIDATED. — Proximate cause has been
de ned as that which, in natural and continuous sequence, unbroken by any e cient
intervening cause, produces injury, and without which the result would not have occurred.
An injury or damage is proximately caused by an act or a failure to act, whenever it appears
from the evidence in the case, that the act or omission played a substantial part in bringing
about or actually causing the injury or damage; and that the injury or damage was either a
direct result or a reasonably probable consequence of the act or omission. It is the
dominant, moving or producing cause. Applying the above de nition in relation to the
evidence at hand, faulty intubation is undeniably the proximate cause which triggered the
chain of events leading to Erlinda's brain damage and, ultimately, her comatosed condition.
11 ID.; EXTRA-CONTRACTUAL OBLIGATIONS; QUASI-DELICTS; EMPLOYER-
EMPLOYEE RELATIONSHIP EXISTS BETWEEN HOSPITALS AND CONSULTANTS FOR THE
PURPOSE OF ALLOCATING RESPONSIBILITY IN MEDICAL NEGLIGENCE CASES. —
Hospitals exercise signi cant control in the hiring and ring 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 quali cations; generally, evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or by a review committee
set up by the hospital who either accept or reject the application. This is particularly true
with respondent hospital. After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-pathological conferences, conduct
bedside rounds for clerks, interns and residents, moderate grand rounds and patient
audits and perform other tasks and responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege of admitting patients into the
hospital. In addition to these, the physician's performance as a specialist is generally
evaluated by a peer review committee on the basis of mortality and morbidity statistics,
and feedback from patients, nurses, interns and residents. A consultant remiss in his
duties, or a consultant who regularly falls short of the minimum standards acceptable to
the hospital or its peer review committee, is normally politely terminated. In other words,
private hospitals, hire, re 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 ful ll 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.DCTSEA
12. ID.; ID.; ID.; EMPLOYERS LIABLE FOR THE DAMAGES CAUSED BY THEIR
EMPLOYEES. — The basis for holding an employer solidarily responsible for the negligence
of its employee is found in Article 2180 of the Civil Code which considers a person
accountable not only for his own acts but also for those of others based on the former's
responsibility under a relationship of patria potestas. Such responsibility ceases when the
persons or entity concerned prove that they have observed the diligence of a good father
of the family to prevent damage. In other words, while the burden of proving negligence
rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove that they observed the diligence
of a good father of a family to prevent damage. In the instant case, respondent hospital,
apart from a general denial of its responsibility over respondent physicians, failed to
adduce evidence showing that it exercised the diligence of a good father of a family in the
hiring and supervision of the latter. It failed to adduce evidence with regard to the degree
of supervision which it exercised over its physicians. In neglecting to offer such proof, or
proof of a similar nature, respondent hospital thereby failed to discharge its burden under
the last paragraph of Article 2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlinda's condition.
13. ID.; DAMAGES; ACTUAL AND TEMPERATE DAMAGES; PROPER IN CASE AT BAR.
— The amount of actual damages recoverable in suits arising from negligence should at
least re ect 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 di culties. Well-
settled is the rule that actual damages which may be claimed by the plaintiff are those
suffered by him as he has duly proved. Our rules on actual or compensatory damages
generally assume that at the time of litigation, the injury suffered as a consequence of an
act of negligence has been completed and that the cost can be liquidated. However, these
provisions neglect to take into account those situations, as in this case, where the
resulting injury might be continuing and possible future complications directly arising from
the injury, while certain to occur, are di cult to predict. In these cases, the amount of
damages which should be awarded, if they are to adequately and correctly respond to the
injury caused, should be one which compensates for pecuniary loss incurred and proved,
up to the time of trial; and one which would meet pecuniary loss certain to be suffered but
which could not, from the nature of the case, be made with certainty. In other words,
temperate damages can and should be awarded on top of actual or compensatory
damages in instances where the injury is chronic and continuing. And because of the
unique nature of such cases, no incompatibility arises when both actual and temperate
damages are provided for. The reason is that these damages cover two distinct phases.
As it would not be equitable — and certainly not in the best interests of the administration
of justice — for the victim in such cases to constantly come before the courts and invoke
their aid in seeking adjustments to the compensatory damages previously awarded —
temperate damages are appropriate. The amount given as temperate damages, though to
a certain extent speculative, should take into account the cost of proper care. In the instant
case, petitioners were able to provide only homebased nursing care for a comatose
patient who has remained in that condition for over a decade. Having premised our award
for compensatory damages on the amount provided by petitioners at the onset of
litigation, it would be now much more in step with the interests of justice if the value
awarded for temperate damages would allow petitioners to provide optimal care for their
loved one in a facility which generally specializes in such care. They should not be
compelled by dire circumstances to provide substandard care at home without the aid of
professionals, for anything less would be grossly inadequate.
14. ID.; ID.; PROPER MORAL DAMAGES. — The actual physical, emotional and
nancial cost of the care of petitioner would be virtually impossible to quantify. Even the
temperate damages herein awarded would be inadequate if petitioner's condition remains
unchanged for the next ten years. We recognized that the victim's actual injury would not
even scratch the surface of the resulting moral damage because it would be highly
speculative to estimate the amount of emotional and moral pain, psychological damage
and injury suffered by the victim or those actually affected by the victim's condition. The
husband and the children, all petitioners in this case, will have to live with the day to day
uncertainty of the patient's illness, knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of petitioner, altering their long term
goals to take into account their life with a comatose patient. They, not the respondents, are
charged with the moral responsibility of the care of the victim. The family's moral injury
and suffering in this case is clearly a real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.
15. ID.; ID.; EXEMPLARY DAMAGES AND ATTORNEY'S FEES. — By way of example,
exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the
length and nature of the instant suit we are of the opinion that attorney's fees valued at
P100,000.00 are likewise proper. Our courts face unique di culty 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 ux 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 in uenced the
intubation in a salutary way was fatal to private respondents' case. TCacIA
DECISION
KAPUNAN , J : p
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,
nding private respondents liable for damages arising from negligence in the performance
of their professional duties towards petitioner Erlinda Ramos resulting in her comatose
condition. cdrep
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 rst 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 ( ndings 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 nd 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).prLL
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 con nement, she incurred hospital bills
amounting to P93,542.25 which is the subject of a promissory note and a davit
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 ve 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 led 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 damage sustained by Erlinda was due to lack of oxygen in her
brain caused by the faulty management of her airway by private respondents during the
anesthesia phase. On the other hand, private respondents primarily relied on the expert
testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain
damage was Erlinda's allergic reaction to the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from both sides, the Regional Trial Court rendered
judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the nding of facts set forth
earlier, and applying the aforecited provisions of law and jurisprudence to the
case at bar, this Court nds 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 nds 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 nds 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. cdphil
On the part of DLSMC (the hospital), this Court nds 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 o cials,
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.
xxx xxx xxx
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 ndings 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 O ce, 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 ling a motion for reconsideration. On the same day, Atty. Ligsay,
led with the appellate court a motion for extension of time to le 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 led on 7 August 1995 a motion to admit the motion for
reconsideration contending that the period to le 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 fteen-day (15) period for ling a motion for reconsideration had already
expired, to wit:
We said in our Resolution on July 25, 1995, that the ling 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 le a Motion for Reconsideration expired on June
24. The Motion for Reconsideration, in turn, was received by the Court of Appeals
already on July 4, necessarily, the 15-day period already passed. For that alone,
the latter should be denied.
Even assuming admissibility of the Motion for Reconsideration, but after

considering the Comment/Opposition, the former, for lack of merit, is hereby
DENIED.
SO ORDERED. 1 0
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 led before this Court a motion for extension of
time to le 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 fteen-day (15) period counted from the receipt of the resolution of the Court of
Appeals within which to submit the petition. The due date fell on 27 May 1996. The petition
was filed on 9 May 1996, well within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
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. 1 1
Before we discuss the merits of the case, we shall rst dispose of the procedural
issue on the timeliness of the petition in relation to the motion for reconsideration led by
petitioners with the Court of Appeals. In their Comment, 1 2 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. cdphil
A careful review of the records reveals that the reason behind the delay in ling 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 O ce. In
fact, a copy of the decision of the appellate court was instead sent to and received by
petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty.
Rogelio Ramos. Based on the other communications received by petitioner Rogelio Ramos,
the appellate court apparently mistook him for the counsel on record. Thus, no copy of the
decision of the appellate court was furnished to the counsel on record. Petitioner, not
being a lawyer and unaware of the prescriptive period for ling 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 su cient notice to speak of. Hence, the delay in the ling of the motion for
reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals
already issued a second Resolution, dated 29 March 1996, which superseded the earlier
resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner,
we believe that the receipt of the former should be considered in determining the
timeliness of the ling 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. 1 3 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. 1 4
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. 1 5 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. 1 6 Hence, res ipsa loquitur is
applied in conjunction with the doctrine of common knowledge.
However, much has been said the res ipsa loquitur is not a ruled of substantive law
and, as such, does not create or constitute an independent or separate ground of liability.
1 7 Instead, it is considered as merely evidentiary or in the nature of a procedural rule. 1 8 It is
regarded as a mode of proof, of a mere procedural convenience since it furnishes a
substitute for, and relieves a plaintiff of, the burden of producing speci c proof of
negligence. 1 9 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. 2 0 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. 2 1
In the above requisites, the fundamental element is the "control of the

instrumentality" which caused the damage. 2 2 Such element of control must be shown to
be within the dominion of the defendant. In order to have the bene t 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. 2 3
Medical malpractice 2 4 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. 2 5 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. 2 6
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. 2 7 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 testi ed
to by anyone familiar with the facts. 2 8 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. 2 9 Hence, in cases where
the res ipsa loquitur is applicable, the court is permitted to nd 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. 3 0 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.
3 1 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, 3 2
injuries sustained on a healthy part of the body which was not under, or in the area, of
treatment, 3 3 removal of the wrong part of the body when another part was intended, 3 4
knocking out a tooth while a patient's jaw was under anesthetic for the removal of his
tonsils, 3 5 and loss of an eye while the patient plaintiff was under the in uence of
anesthetic, during or following an operation for appendicitis, 3 6 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. 3 7 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.
3 8 The physician or surgeon is not required at his peril to explain why any particular
diagnosis was not correct, or why any particular scienti c treatment did not produce the
desired result. 3 9 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. 4 0
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. 4 1 If there was such extraneous
interventions, the doctrine or res ipsa loquitur may be utilized and the defendant is called
upon to explain the matter, by evidence of exculpation, if he could. 4 2
We nd the doctrine of res ipsa loquitur appropriate in the case bar. As will
hereinafter be explained, the damage sustained by Erlinda in her brain prior to a scheduled
gall bladder operation presents a case for the application of res ipsa loquitur. LLjur
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
t 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 in uence 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. 4 4
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 t 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 happen in the absence of negligence of someone in the administration
of anesthesia and in the use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of administering such
anesthesia if the proper procedure was followed. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under the exclusive
control of private respondents, who are the physicians-in-charge. Likewise, petitioner
Erlinda could not have been guilty of contributory negligence because she was under the
influence of anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the brain) is injured
or destroyed while the patient is unconscious and under the immediate and exclusive
control of the physicians, we hold that a practical administration of justice dictates the
application of res 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 nding that private respondents were not negligent in the care of Erlinda
during the anesthesia phase of the operation and, if in the a rmative, 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 di culty in the endotracheal intubation 4 5 of the
patient and thus, cannot be said to be covering her negligence with falsehood. The
appellate court likewise opined that private respondents were able to show that the brain
damage sustained by Erlinda was not caused by the alleged faulty intubation but was due
to the allergic reaction of the patient to the drug Thiopental Sodium (Pentothal), a short-
acting barbiturate, as testi ed 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 ndings 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 scienti c
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 re ected 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 nd 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 testi ed to this
effect:
ATTY. PAJARES: cdasia
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 I have said, I was with the patient, I was beside the stretcher holding the left
hand of the patient and all of a sudden I 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. 4 6
xxx xxx xxx
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. 4 7
In other words, what the Court of Appeals is trying to impress is that being a nurse,
and considered a layman in the process of intubation, witness Cruz is not competent to
testify on whether or not the intubation as a success.
We do not agree with the above reasoning of the appellate court. Although witness
Cruz is not an anesthesiologist, she can very well testify upon matters on which she is
capable of observing such as, the statements and acts of the physician and surgeon,
external appearances, and manifest conditions which are observable by any one. 4 8 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. 4 9 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 di cult to tell if the tube was
properly inserted. This kind of observation, we believe, does not require a medical degree
to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose
long experience and scholarship led to her appointment as Dean of the Capitol Medical
Center School of Nursing, was fully capable of determining whether or not the intubation
was a success. She had extensive clinical experience starting as a staff nurse in Chicago,
Illinois; staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the
Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical Center
School of Nursing. 5 0 Reviewing witness Cruz' statements, we nd that the same were
delivered in a straightforward manner, with the kind of detail, clarity, consistency and
spontaneity which would have been di cult to fabricate. With her clinical background as a
nurse, the Court is satis ed that she was able to demonstrate through her testimony what
truly transpired on that fateful day.
Most of all, her testimony was a rmed by no less than respondent Dra. Gutierrez
who admitted that she experienced di culty in inserting the tube into Erlinda's trachea, to
wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your rst 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. 5 1
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)
5 2 making it harder to locate and, since Erlinda is obese and has a short neck and
protruding teeth, it made intubation even more difficult. cdphil
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. 5 3 It includes taking the patient's medical history, review of current drug therapy,
physical examination and interpretation of laboratory data. 5 4 The physical examination
performed by the anesthesiologist is directed primarily toward the central nervous system,
cardiovascular system, lungs and upper airway. 5 5 A thorough analysis of the patient's
airway normally involves investigating the following: cervical spine mobility,
temporomandibular mobility, prominent central incisors, diseased or arti cial teeth, ability
to visualize uvula and the thyromental distance. 5 6 Thus, physical characteristics of the
patient's upper airway that could make tracheal intubation di cult should be studied. 5 7
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
rst 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 di culties she
would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez'
act of seeing her patient for the rst 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). 5 8
However, the exact opposite is true. In an emergency procedure, there is hardly

enough time available for the fastidious demands of pre-operative procedure so that an
anesthesiologist is able to see the patient only a few minutes before surgery, if at all.
Elective procedures, on the other hand, are operative procedures that can wait for days,
weeks or even months. Hence, in these cases, the anesthesiologist possesses the luxury
of time to make a proper assessment, including the time to be at the patient's bedside to
do a proper interview and clinical evaluation. There is ample time to explain the method of
anesthesia, the drugs to be used, and their possible hazards for purposes of informed
consent. Usually, the pre-operative assessment is conducted at least one day before the
intended surgery, when the patient is relaxed and cooperative.
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 5 9 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, 6 0 was due to an unpredictable
drug reaction to the short-acting barbiturate. We nd the theory of private respondents
unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the eld 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: dctai
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. 6 1
An anesthetic accident caused by a rare drug-induced bronchospasm properly falls
within the elds of anesthesia, internal medicine-allergy, and clinical pharmacology. The
resulting anoxic encephalopathy belongs to the eld of neurology. While admittedly, many
bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary
medicine, Dr. Jamora's eld, 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 6 2 regarding expert witnesses states:
SECTION 49. Opinion of expert witness. — The opinion of a witness on a
matter requiring special knowledge, skill, experience or training which he is shown
to possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have acquired special

knowledge of the subject matter about which he or she is to testify, either by the study of
recognized authorities on the subject or by practical experience. 6 3 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 eld 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 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 de ned as that which, in natural and continuous
sequence, unbroken by any e cient intervening cause, produces injury, and without which
the result would not have occurred. 6 4 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. 6 5 It is the dominant, moving or producing cause.
Applying the above de nition 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 rst 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 rst 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 signi cant. Due to the delay in the delivery of
oxygen in her lungs Erlinda showed signs of cyanosis. 6 6 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. 6 7 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. 6 8
The above conclusion is not without basis. Scienti c studies point out that
intubation problems are responsible for one-third (1/3) of deaths and serious injuries
associated with anesthesia. 6 9 Nevertheless, ninety-eight percent (98%) or the vast
majority of di cult intubations may be anticipated by performing a thorough evaluation of
the patient's airway prior to the operation. 7 0 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. 7 1 In other words, an experienced
anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would have
had little di culty going around the short neck and protruding teeth. 7 2 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. cda
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," 7 3 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 veri ed 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 lling up specialist staff with attending and
visiting "consultants," 7 4 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 rst place, hospitals exercise signi cant control in the hiring and ring 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 quali cations; 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. 7 5 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, re 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 ful ll
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. 7 6
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. 7 7 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. 7 8 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 7 9 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 re ected 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 re ect the correct minimum cost of proper care,
not the cost of the care the family is usually compelled to undertake at home to avoid
bankruptcy. However, the provisions of the Civil Code on actual or compensatory damages
present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed by the plaintiff
are those suffered by him as he has duly proved. The Civil Code provides:
ARTICLE 2199. Except as provided by law or by stipulation, one is entitled
to an adequate compensation only for such pecuniary loss suffered by him as he
has duly proved. Such compensation is referred to as actual or compensatory
damages.
Our rules on actual or compensatory damages generally assume that at the time of
litigation, the injury suffered as a consequence of an act of negligence has been completed
and that the cost can be liquidated. However, these provisions neglect to take into account
those situations, as in this case, where the resulting injury might be continuing and
possible future complications directly arising from the injury, while certain to occur, are
difficult to predict. LexLib
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. 8 0 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. 8 1
I n Valenzuela vs. Court of Appeals, 8 2 this Court was confronted with a situation
where the injury suffered by the plaintiff would have led to expenses which were di cult 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 her lifetime, the
prosthetic devise will have to be replaced and readjusted to changes in the size of
her lower limb effected by the biological changes of middle-age, menopause and
aging. Assuming she reaches menopause, for example, the prosthetic will have to
be adjusted to respond to the changes in bone resulting from a precipitate
decrease in calcium levels observed in the bones of all post-menopausal women.
In other words, the damage done to her would not only be permanent and lasting,
it would also be permanently changing and adjusting to the physiologic changes
which her body would normally undergo through the years. The replacements,
changes, and adjustments will require 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. 8 3
The injury suffered by Erlinda as a consequence of private respondents' negligence

is certainly much more serious than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has
been in a comatose state for over fourteen years now. The burden of care has so far been
heroically shouldered by her husband and children, who, in the intervening years have been
deprived of the love of a wife and a mother. cdrep
Meanwhile, the actual physical, emotional and nancial 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. 8 4 The
husband and the children, all petitioners in this case, will have to live with the day to day
uncertainty of the patient's illness, knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of petitioner, altering their long term
goals to take into account their life with a comatose patient. They, not the respondents, are
charged with the moral responsibility of the care of the victim. The family's moral injury
and suffering in this case is clearly a real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the amount of P100,000.00 are
hereby awarded. Considering the length and nature of the instant suit we are of the opinion
that attorney's fees valued at P100,000.00 are likewise proper.
Our courts face unique di culty 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 ux 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 modi ed 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. llcd
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
Footnotes
1. In the United States alone, a great number of people die every year as a result of medical
mishaps. The 13 December 1999 issue of TIME MAGAZINE featured an article on
medical negligence entitled "Doctors' Deadly Mistakes" which is quoted in part: "It is
hardly news that medical professionals make mistakes — even dumb, deadly mistakes.
What is shocking is how often it happens. Depending on which statistics you believe, the
number of Americans killed by medical screw-ups is somewhere between 44,000 and
98,000 every year — the eight leading cause of death even by the more conservative
gure, ahead of car crashes, breast cancer and AIDS. More astonishing than the huge
numbers themselves, though, is the fact that public health o cials had known about the
problem for years and hadn't made a concerted effort to do something about it."
2. Cholecystectomy is the surgical excision of the gall bladder.
3. CA Rollo, pp. 129-140.
4. Records, pp. 270-279.

5. Id. at 270-275.
6. Docketed as Civil Case No. Q-46885.
7. Records, pp. 276-278.

8. CA Rollo, p. 166.
9. Id. at 145.
10. Id. at 195.

11. Rollo, p. 19.
12. Id. at 91-98.

13. 57B Am Jur 2d, 493 (1989).
14. Africa, et al vs. Caltex (Phil.), Inc., et al, 16 SCRA 449, 454 (1966).
15. 57B Am Jur 2d, supra note 13 at 499.
16. Ibid.
17. Id. at 502.
18. Ibid.
19. Id.
20. Id. at 503.
21. Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas System, 182 Kan.
686, 324 P.2d 501; Lamb v. Hartford Accident and Indemnity Co. , Primm v. Kansas
Power & Light Co., 173 Kan. 443, 249 P.2d 647.
22. St. John's Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166 (1967).
23. 57B Am Jur 2d, supra note 13, at 513.

24. It is the type of claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has caused bodily harm. (Garcia-Rueda vs.
Pascasio, 278 SCRA 769, 778 [1997]).
25. Voss vs. Bridwell, supra note 21.
26. Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).
27. SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).

28. Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 127 Kan. 573, 274
P.237.
29. Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs . Gibbons, 95 Kan. 802, 149 P. 422,
423.
30. SOLIS, supra note 27, at 239.
31. Voss vs. Bridwell, supra note 21 at 970-971.

32. Armstrong vs. Wallace, 47 P.2d 740 (1935).
33. Thomsen vs. Burgeson, 79 P.2d 136 (1938).
34. Griffin vs. Norman, 192 NYS 322 (1922).

35. Brown vs. Shortilledge, 277 P.134 (1929).
36. Meadows vs. Patterson, 109 S.W. 2d 417 (1937).
37. Voss vs. Bridwell, supra note 21, at 969.

38. Id. at 968.
39. Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).
40. Voss vs. Bridwell, supra note 21, at 968.

41. Sanders vs. Smith, 27 So. 2d 889, 893 (1946).
42. Ibid.
43. Voss vs. Bridwell, supra note 21.
44. Id. at 971.

45. It is the method of intubating a patient through the oral cavity. Under this procedure, after
the patient has been preoxygenated and paralyzed and is no longer breathing on his
own, the anesthetist inserts an instrument called a laryngoscope into the patient's oral
pharynx. The patient's neck is hyperextended, that is, bent back as far as possible so
that the anesthetist can see or "visualize" the patient's epiglottis and vocal cords. The
anesthetist will then thread the endotracheal tube between the patient's vocal cords into
the trachea, and then hook the tube to the breathing bag and anesthetic machine.
46. TSN, January 13, 1988, pp. 16-20.
47. CA Rollo, pp. 134-135.
48. Stockham vs. Hall, supra note 29.

49. 61 Am Jur 2d, 513 (1989).
50. TSN, January 13, 1988, p. 3.
51. TSN, November 15, 1990, p. 11.

52. TSN, October 9, 1990, p. 13.
53. STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).
54. Ibid.
55. Id. at 105 (Underscoring supplied).

56. Id. at 106.
57. Id.
58. TSN, November 15, 1990, p. 6.

59. Constriction of the air passages of the lung by spasmodic contraction of the bronchial
muscles (as in asthma).
60. Permanent damage to the brain caused by inadequate oxygenation.
61. TSN, February 28, 1991, pp. 10-11.
62. Rule 130, RULES OF COURT.

63. 61 Am Jur 2d, supra note 49, 516.
64. BLACK'S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).
65. Ibid.
66. It is a bluish coloration of the skin or mucous membranes caused by lack of oxygen or
abnormal hemoglobin in the blood.
67. TSN, March 27, 1990, p. 22.
68. Records, p. 274.
69. FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).
70. Ibid.
71. Id. The book provides a thorough discussion on the management of difficult intubations.
72. Id.
73. Under this doctrine, the surgeon is likened to a ship captain who must not only be
responsible for the safety of the crew but also of the passengers of the vessel. The head
surgeon is made responsible for everything that goes wrong within the four corners of
the operating room. It enunciates the liability of the surgeon not only for the wrongful
acts of those who are under his physical control but also those wherein he has extension
of control.
74. The term "consultant" is loosely used by hospitals to distinguish their attending and visiting
physicians from the residents, who are also physicians. In most hospitals abroad, the
term visiting or attending physician, not consultant, is used.
75. These requirements are in fact found in the standard application forms for visiting and
attending physicians of respondent hospital.
76. The hospital's control over respondent physicians is all the more signi cant when one
considers the fact that it controls everything which occurs in an operating room, through
its nursing supervisors and charge nurses. No operations can be undertaken without the
hospital's direct or indirect consent.
77. VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993).
78. Art. 2180 of the Civil Code provides:
79. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done.
80. Art. 2224, CIVIL CODE.
81. Should petitioner remain in the same condition for another ten years, the amount awarded
in the form of temperate damages would in fact, be inadequate.
82. 253 SCRA 303 (1996).
83. Id. at 327-328.

84. Id. at 328.

Petitioners Vs Vs Respondents Luis C. A. Sillano Antonio H. Abad & Associates Tanjuatco, Sta. Maria, Tanjuatco

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Petitioners Vs Vs Respondents Luis C. A. Sillano Antonio H. Abad & Associates Tanjuatco, Sta. Maria, Tanjuatco

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FIRST DIVISION

[G.R. No. 124354. December 29, 1999.]

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

Luis C. A. Sillano for petitioners.

1. REMEDIAL LAW; CIVIL PROCEDURE; MOTION FOR RECONSIDERATION; NO

3. ID.; ID.; APPLICATION IN MEDICAL MALPRACTICE. — Medical malpractice cases

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The Hippocratic Oath mandates physicians to give primordial consideration to the

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

xxx xxx xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff

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Even assuming admissibility of the Motion for Reconsideration, but after

2. It is caused by an instrumentality within the exclusive control of the defendant

3. The possibility of contributing conduct which would make the plaintiff

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

Upon all the facts, conditions and circumstances alleged in Count II it is

Q: Do you know what happened to that intubation process administered by Dra.

A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

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

A: I saw him approaching the patient during that time.

A: He made an order to call on the anesthesiologist in the person of Dr. Calderon.

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

Q: What happened to the patient?

xxx xxx xxx

Q: Did you pull away the tube immediately?

Q: Did you or did you not?

A: I did not pull the tube.

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

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

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

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

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

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

4. Records, pp. 270-279.

7. Records, pp. 276-278.

10. Id. at 195.

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23. 57B Am Jur 2d, supra note 13, at 513.

27. SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).

31. Voss vs. Bridwell, supra note 21 at 970-971.

34. Griffin vs. Norman, 192 NYS 322 (1922).

37. Voss vs. Bridwell, supra note 21, at 969.

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44. Id. at 971.

48. Stockham vs. Hall, supra note 29.

51. TSN, November 15, 1990, p. 11.

55. Id. at 105 (Underscoring supplied).

58. TSN, November 15, 1990, p. 6.

62. Rule 130, RULES OF COURT.

83. Id. at 327-328.

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