Ramos V CA

9/6/21, 10:50 PM SUPREME COURT REPORTS ANNOTATED VOLUME 321
584 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals
*
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.
Remedial Law; Pleadings and Practice; When a party is

represented by counsel, all notices should be sent to the party’s
lawyer at his given address.—It is elementary that when a party
is represented by counsel, all notices should be sent to the party’s
lawyer at his given address. With a few exceptions, notice to a
litigant without notice to his counsel on record is no notice at all.
In the present case, since a copy of the decision of the appellate
court was not sent to the counsel on record of petitioner, there can
be no sufficient notice to speak of. Hence, the delay in the filing of
the motion for reconsideration cannot be taken against petitioner.
Same; Evidence; Res Ipsa Loquitur; Doctrine of Res Ipsa
Loquitur.—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.
Where the thing which caused the injury complained of is shown
to be under the management of the defen-
________________
* FIRST DIVISION.
585
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VOL. 321, DECEMBER 29, 1999 585
dant 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.
Same; Same; Same; Same; Res Ipsa Loquitur is applied in
conjunction with the doctrine of common knowledge.—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.
Same; Same; Same; Same; Mere invocation and application of
the doctrine does not dispense with the requirement of proof of
negligence; Requisites before resort to the doctrine may be allowed.
—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 specific proof of negligence. In
other words, mere invocation and application of the doctrine does
not dispense with the requirement of proof of negligence. It is
simply a step in the process of such proof, permitting the plaintiff
to present along with the proof of the accident, enough of the
attending circumstances to invoke the doctrine, creating an
inference or presumption of negligence, and to thereby place on
the defendant the burden of going forward with the proof. Still,
before resort to the doctrine may be allowed, the following
requisites must be satisfactorily shown: 1. The accident is of a
kind which ordinarily does not occur in the absence of someone’s
negligence; 2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants; and 3. The
possibility of contributing conduct which would make the plaintiff
responsible is eliminated.
586
Same; Same; Same; Same; When the doctrine of res ipsa loqui-
tur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the
proof of negligence.—Although generally, expert medical
testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from
the standard medical procedure, when the doctrine of res ipsa
loquitur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the
proof of negligence. The reason is that the general rule on the
necessity of expert testimony applies only to such matters clearly
within the domain of medical science, and not to matters that are
within the common knowledge of mankind which may be testified
to by anyone familiar with the facts. Ordinarily, only physicians
and surgeons of skill and experience are competent to testify as to
whether a patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony as to the
statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by
any one may be given by non-expert witnesses.
Same; Same; Same; Same; 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.
—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.
Same; Same; Same; Same; 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.—It must be
conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which
involves the merits of a diagnosis or of a scientific treatment. The
physician or surgeon is not required at his peril to explain why
any particular diagnosis was not correct, or why any particular

scientific treatment did not produce
587
VOL. 321, DECEMBER 29, 1999 587
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.
Hospitals; Damages; Proximate Cause Defined.—Proximate
cause has been defined as that which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces
injury, and without which the result would not have occurred. An
injury or damage is proximately caused by an act or a failure to
act, whenever it appears from the evidence in the case, that the
act or omission played a substantial part in bringing about or
actually causing the injury or damage; and that the injury or
damage was either a direct result or a reasonably probable
consequence of the act or omission. It is the dominant, moving or
producing cause.
Same; Same; 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.—Private hospitals, hire, fire and exercise real control
over their attending and visiting “consultant” staff. While
“consultants” are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the
patient’s condition, the control exercised, the hiring, and the right
to terminate consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the
payment of wages. In assessing whether such a relationship in
fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an employer-employee
relationship in effect exists between hospitals and their attending
and visiting physicians. This being the case, the question now
arises as to whether or not respondent hospital is solidarily liable
with respondent doctors for petitioner’s condition.
Same; Same; The basis for holding an employer solidarily
responsible for the negligence of its employee is found in Article
2180 of the Civil Code.—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
588
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.
Same; Same; Amount of damages awarded may be a
continuing one where the injury is chronic and continuing, as
when the patient is comatose.—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.
PETITION for review on certiorari of a decision of the

Court of Appeals.
The facts are stated in the opinion of the Court.

Luis C.A. Sillano for petitioners.
Macarius S. Galutera for private respondent De los
Santos Medical Center.
Tanjuatco, Sta. Maria, Tanjuatco collaborating
counsel for DLSMC.
Antonio H. Abad & Associates for respondent doctors.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give

primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is

made accountable for his acts. A mistake, through gross
negligence or incompetence or plain human error, may
spell the difference
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VOL. 321, DECEMBER 29, 1999 589

between life and death.1

In this sense, the doctor plays God
on his patient’s fate.
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 2
condition of a patient scheduled for cholecystectomy.
3
Petitioners seek the reversal of the decision of the Court
of Appeals,
4
dated 29 May 1995, which overturned the
decision of the Regional Trial Court, dated 30 January
1992, finding private respondents liable for damages
arising from negligence in the performance of their
professional duties towards petitioner Erlinda Ramos
resulting in her comatose condition.
The antecedent facts as summarized by the trial court
are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985,
a 47-year old (Exh. “A”) robust woman (TSN, October 19, 1989, p.
10). Except for occasional complaints of discomfort due to pains
allegedly caused by the presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she was as normal as any other
woman. Married to Rogelio E. Ramos, an executive of Philippine
Long Distance Telephone Company, she has three children whose
names are
________________
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 eighth leading cause of
death even by the more conservative figure, ahead of car crashes, breast cancer
and AIDS. More astonishing than the huge numbers themselves, though, is the
fact that public health officials had known about the problem for years and hadn’t
made a concerted effort to do something about it.”
2 Cholecystectomy is the surgical excision of the gall bladder.

3 CA Rollo, pp. 129-140.
4 Records, pp. 270-279.
590

Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos

(TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal
ways, she sought professional advice. She was advised to undergo
an operation for the removal of a stone in her gall bladder (TSN,
January 13, 1988, p. 5). She underwent a series of examinations
which included blood and urine tests (Exhs. “A” and “C”) which
indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje
(TSN, January 13, 1988, p. 7), she and her husband Rogelio met
for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN,
February 20, 1990, p. 3), one of the defendants in this case, on
June 10, 1985. They agreed that their date at the operating table
at the DLSMC (another defendant), would be on June 17, 1985 at
9:00 A.M. Dr. Hosaka decided that she should undergo a
“cholecystectomy” operation after examining the documents
(findings from the Capitol Medical Center, FEU Hospital and
DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr.
Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn,
assured Rogelio that he will get a good anesthesiologist. Dr.
Hosaka charged a fee of P16,000.00, which was to include the
anesthesiologist’s fee and which was to be paid after the operation
(TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February
27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted
at one of the rooms of the DLSMC, located along E. Rodriguez
Avenue, Quezon City (TSN, October 19, 1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her
room, she was prepared for the operation by the hospital staff.
Her sister-in-law, Herminda Cruz, who was the Dean of the
College of Nursing at the Capitol Medical Center, was also there
for moral support. She reiterated her previous request for
Herminda to be with her even during the operation. After
praying, she was given injections. Her hands were held by
Herminda as they went down from her room to the operating
room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio,
was also with her (TSN, October 19, 1989, p. 18). At the operating
room, Herminda saw about two or three nurses and Dr. Perfecta
Gutierrez, the other defendant, who was to administer
anesthesia. Although not a member of the hospital staff,

Herminda introduced herself as Dean of the College of Nursing at
the Capitol Medical Center who was to provide moral
591
VOL. 321, DECEMBER 29, 1999 591

support to the patient, to them. Herminda was allowed to stay

inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to
look for Dr. Hosaka who was not yet in (TSN, January 13, 1988,
pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz
about the prospect of a delay in the arrival of Dr. Hosaka.
Herminda then went back to the patient who asked, “Mindy, wala
pa ba ang Doctor”? The former replied, “Huwag kang mag-alaala,
darating na iyon” (ibid.).
Thereafter, Herminda went out of the operating room and
informed the patient’s husband, Rogelio, that the doctor was not
yet around (id., p. 13). When she returned to the operating room,
the patient told her, “Mindy, inip na inip na ako, ikuha mo ako ng
ibang Doctor.” So, she went out again and told Rogelio about what
the patient said (id., p. 15). Thereafter, she returned to the
operating room.
At around 10:00 A.M., Rogelio E. Ramos was “already dying
[and] waiting for the arrival of the doctor” even as he did his best
to find somebody who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-20). He also
thought of the feeling of his wife, who was inside the operating
room waiting for the doctor to arrive (ibid.). At almost 12:00 noon,
he met Dr. Garcia who remarked that he (Dr. Garcia) was also
tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking
to Dr. Garcia at around 12:10 P.M., he came to know that Dr.
Hosaka arrived as a nurse remarked, “Nandiyan na si Dr.
Hosaka, dumating na raw.” Upon hearing those words, he went
down to the lobby and waited for the operation to be completed
(id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the
operating room with the patient, heard somebody say that “Dr.
Hosaka is already here.” She then saw people inside the operating
room “moving, doing this and that, [and] preparing the patient for
the operation” (TSN, January 13, 1988, p. 16). As she held the
hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating
the hapless patient. She thereafter heard Dr. Gutierrez say, “ang
hirap maintubate 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 oper-
592

ating 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 x x x happening” (ibid.). Dr. Calderon was then able to
intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw
a respiratory machine being rushed towards the door of the
operating room. He also saw several doctors rushing towards the
operating room. When informed by Herminda Cruz that
something wrong was happening, he told her (Herminda) to be
back with the patient inside the operating room (TSN, October 19,
1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the
patient was still in trendelenburg position (TSN, January 13,
1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the
patient taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk
to Dr. Hosaka. The latter informed the former that something
went wrong during the intubation. Reacting to what was told to
him, Rogelio reminded the doctor that the condition of his wife
would not have happened, had he (Dr. Hosaka) looked for a good
anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital
to explain what happened to the patient. The doctors explained
that the patient had bronchospasm (TSN, November 15, 1990, pp.
26-27).
Erlinda Ramos stayed at the ICU for a month. About four
months thereafter or on November 15, 1985, the patient was
released from the hospital.
During the whole period of her confinement, she incurred
hospital bills amounting to P93,542.25 which is the subject of a
promissory note and affidavit of undertaking executed by Rogelio
E. Ramos in favor of DLSMC. Since that fateful afternoon of June
17, 1985, she has been in a comatose condition. She cannot do

anything. She cannot move any part of her body. She cannot see
or hear. She is living on mechanical means. She suffered brain
damage as a result of the absence of oxygen in her brain for four
to five minutes (TSN, November 9, 1989, pp. 21-22). After being
discharged from the hospital, she has been staying in their
residence, still needing constant
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VOL. 321, DECEMBER 29, 1999 593

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
5
damage” (Exh. “G”; see also TSN,
December 21, 1989, p. 6).
6
Thus, on 8 January 1986, petitioners filed a civil case 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 finding of facts set

forth earlier, and applying the aforecited provisions of law and
jurisprudence to the case at bar, this Court finds and so holds
that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the
performance of their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she
omitted to exercise reasonable care in not only intubating the
patient, but also in not repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10), without due regard to the fact
that the patient was inside the operating room for almost three
(3) hours. For
________________
5 Id. at 270-275.
6 Docketed as Civil Case No. Q-46885.
594

after she committed a mistake in intubating [the] patient, the

patient’s nailbed became bluish and the patient, thereafter, was
placed in trendelenburg position, because of the decrease of blood
supply to the patient’s brain. The evidence further shows that the
hapless patient suffered brain damage because of the absence of
oxygen in her (patient’s) brain for approximately four to five
minutes which, in turn, caused the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is
liable for the acts of Dr. Perfecta Gutierrez whom he had chosen
to administer anesthesia on the patient as part of his obligation to
provide the patient a ‘good anesthesiologist,’ and for arriving for
the scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is
liable for the acts of negligence of the doctors in their ‘practice of
medicine’ in the operating room. Moreover, the hospital is liable
for failing through its responsible officials, to cancel the scheduled
operation after Dr. Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by
defendants that they have acted with due care and prudence in
rendering medical services to plaintiff-patient. For if the patient
was properly intubated as claimed by them, the patient would not
have become comatose. And, the fact that another
anesthesiologist was called to try to intubate the patient after her
(the patient’s) nailbed turned bluish, belie their claim.
Furthermore, the defendants should have rescheduled the
operation to a later date. This, they should have done, if
defendants acted with due care and prudence as the patient’s case
was an elective, not an emergency case.
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,
595
VOL. 321, DECEMBER 29, 1999 595

4) the costs of the suit.

7
SO ORDERED.
Private respondents seasonably interposed an appeal to the

Court of Appeals. The appellate court rendered a Decision,
dated 29 May 1995, reversing the findings of the trial
court. The decretal portion of the decision of the appellate
court reads:
WHEREFORE, for the foregoing premises the appealed decision

is hereby REVERSED, and the complaint below against the
appellants is hereby ordered DISMISSED. The counterclaim of
appellant De Los Santos Medical Center is GRANTED but only
insofar as appellees are hereby ordered to pay the unpaid hospital
bills amounting to P93,542.25, plus legal interest for justice must
be tempered with mercy.
8
SO ORDERED.
The decision of the Court of Appeals was received on 9

June 1995 by petitioner Rogelio Ramos who was
mistakenly addressed as “Atty. Rogelio Ramos.” No copy of
the decision, however, was sent nor received by the Coronel
Law Office, then counsel on record of petitioners. Rogelio
referred the decision of the appellate court to a new lawyer,
Atty. Ligsay, only on 20 June 1995, or four (4) days before
the expiration of the reglementary period for filing a
motion for reconsideration. On the same day, Atty. Ligsay,
filed with the appellate court a motion for extension of time
to file a motion for reconsideration. The motion for
reconsideration was submitted on 4 July 1995. However,
the appellate court denied the motion for extension
9
of time
in its Resolution dated 25 July 1995. Meanwhile,
petitioners engaged the services of another counsel, Atty.
Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7
August 1995 a motion to admit the motion for
reconsideration contending that the period to file the

appropriate plead-
________________
7 Records, pp. 276-278.

8 CA Rollo, p. 166.
9 Id. at 145.
596

ing on the assailed decision had not yet commenced to run

as the Division Clerk of Court of the Court of Appeals had
not yet served a copy thereof to the counsel on record.
Despite this explanation, the appellate court still denied
the motion to admit the motion for reconsideration of
petitioners in its Resolution, dated 29 March 1996,
primarily on the ground that the fifteen-day (15) period for
filing a motion for reconsideration had already expired, to
wit:
We said in our Resolution on July 25, 1995, that the filing of a

Motion for Reconsideration cannot be extended; precisely, the
Motion for Extension (Rollo, p. 12) was denied. It is, on the other
hand, admitted in the latter Motion that plaintiffs/appellees
received a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for Reconsideration
expired on June 24. The Motion for Reconsideration, in turn, was
received by the Court of Appeals already on July 4, necessarily,
the 15-day period already passed. For that alone, the latter should
be denied.
Even assuming admissibility of the Motion for Reconsideration,
but after considering the Comment/Opposition, the former, for
lack of merit, is hereby
10
DENIED.
SO ORDERED.
A copy of the above resolution was received by Atty. Sillano

on 11 April 1996. The next day, or on 12 April 1996, Atty.
Sillano filed before this Court a motion for extension of
time to file the present petition for certiorari under Rule
45. The Court granted the motion for extension of time and
gave petitioners additional thirty (30) days after the
expiration of the fifteen-day (15) period counted from the
receipt of the resolution of the Court of Appeals within
which to submit the petition. The due date fell on 27 May
1996. The petition was filed on 9 May 1996, well within the
extended period given by the Court.
Petitioners assail the decision of the Court Of Appeals
on the following grounds:
________________
10 Id. at 195.
597
VOL. 321, DECEMBER 29, 1999 597

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 11 APPLYING THE DOCTRINE OF RES IPSA

LOQUITUR.
Before we discuss the merits of the case, we shall first

dispose of the procedural issue on the timeliness of the
petition in relation to the motion for reconsideration filed
by petitioners
12
with the Court of Appeals. In their
Comment, private respondents contend that the petition
should not be given due course since the motion for
reconsideration of the petitioners on the decision of the
Court of Appeals was validly dismissed by the appellate
court for having been filed beyond the reglementary period.
We do not agree.
A careful review of the records reveals that the reason
behind the delay in filing the motion for reconsideration is
attributable to the fact that the decision of the Court of
Appeals was not sent to then counsel on record of
petitioners, the Coronel Law Office. In fact, a copy of the
decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995
wherein he was mistakenly addressed as Atty. Rogelio
Ramos. Based on the other communications received by

petitioner Rogelio Ramos, the appellate court apparently
mistook him for the counsel on record. Thus, no copy of the
decision of the appellate court was fur-
________________
11 Rollo, p. 19.
12 Id. at 91-98.
598

nished to the counsel on record. Petitioner, not being a

lawyer and unaware of the prescriptive period for filing a
motion for reconsideration, referred the same to a legal
counsel only on 20 June 1995.
It is elementary that when a party is represented by
counsel, all notices should be sent to the party’s lawyer at
his given address. With a few exceptions, notice to a
litigant without notice to his counsel on record is no notice
at all. In the present case, since a copy of the decision of the
appellate court was not sent to the counsel on record of
petitioner, there can be no sufficient notice to speak of.
Hence, the delay in the filing of the motion for
reconsideration cannot be taken against petitioner.
Moreover, since the Court of Appeals already issued a
second Resolution, dated 29 March 1996, which superseded
the earlier resolution issued on 25 July 1995, and denied
the motion for reconsideration of petitioner, we believe that
the receipt of the former should be considered in
determining the timeliness of the filing of the present
petition. Based on this, the petition before us was
submitted on time.
After resolving the foregoing procedural issue, we shall
now look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the
issue on the applicability of the doctrine of res 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

13
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 man-
________________
13 57B Am Jur 2d, 493 (1989).
599
VOL. 321, DECEMBER 29, 1999 599

agement or control use proper care, it affords reasonable

evidence, in the absence of explanation by the defendant,
that the accident arose 14
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 15
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 may16be 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
17
an independent or separate ground of
liability. Instead, it is considered as18merely 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 plaintiff19
of, the
burden of producing specific proof of negligence. In other
words, mere invocation and application of the doctrine does
not dispense with the requirement of proof of negligence. It
is simply a step in the process of such proof, permitting the
plaintiff to present along with the proof of the accident,
enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of
negligence, and to thereby place on the defendant the
burden
________________
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.
600

20
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 which21
would
make the plaintiff responsible is eliminated.
In the above requisites, the fundamental element is the 22

“control of the instrumentality” which caused the damage.
Such element of control must be shown to be within the
dominion of the defendant. In order to have the benefit of
the rule, a plaintiff, in addition to proving injury or
damage, must show a situation where it is applicable, and
must establish that the essential elements
23
of the doctrine
were present in a particular
24
incident.
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
25
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
________________
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.
601
VOL. 321, DECEMBER 29, 1999 601

a judicial function to determine whether a certain set of

circumstances
26
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 with27because 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 28may be testified to
by anyone familiar with the facts. Ordinarily, only
physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been
treated or operated upon with a reasonable degree of skill
and care. However, testimony as to the statements and acts
of physicians and surgeons, external appearances, and
manifest conditions which are observable
29
by any one may
be given by non-expert witnesses. Hence, in cases where
the res ipsa loquitur is applicable, the court is permitted to
find a physician negligent upon proper proof of injury to
the patient, without the aid of expert testimony, where the
court from its fund of common 30
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
________________
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.
602

31
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 32
object in the body of the patient after an operation,
injuries sustained on a healthy part of the33 body which was
not under, or in the area, of treatment, removal of the 34
wrong part of the body when another part was intended,
knocking out a tooth while a patient’s 35
jaw was under
anesthetic for the removal of his tonsils, and loss of an eye
while the patient plaintiff was under the influence of
anesthetic, 36during 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
37
ordinarily have
followed if due care had been exercised. A distinction must
________________
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.
603
VOL. 321, DECEMBER 29, 1999 603

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 involves38
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 39
scientific
treatment did not produce the desired result. Thus, res
ipsa loquitur is not available in a malpractice suit if the
only showing is that the desired result40
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 41
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 to42 explain the
matter, by evidence of exculpation, if he could.
We find the doctrine of res ipsa loquitur appropriate in
the case at bar. As will hereinafter be explained, the
damage sustained by Erlinda in her brain prior to a
scheduled gall bladder operation presents a case for the
application of res ipsa loquitur.
A case43strikingly similar to the one before us is Voss vs.
Bridwell, where the Kansas Supreme Court in applying
the res ipsa loquitur stated:
________________
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.
604

The plaintiff herein submitted himself for a mastoid operation

and delivered his person over to the care, custody and control of
his physician who had complete and exclusive control over him,
but the operation was never performed. At the time of submission
he was neurologically sound and physically fit in mind and body,
but he suffered irreparable damage and injury rendering him
decerebrate and totally incapacitated. The injury was one which
does not ordinarily occur in the process of a mastoid operation or
in the absence of negligence in the administration of an
anesthetic, and in the use and employment of an endoctracheal
tube. Ordinarily a person being put under anesthesia is not
rendered decerebrate as a consequence of administering such
anesthesia in the absence of negligence. Upon these facts and
under these circumstances a layman would be able to say, as a
matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would
ordinarily have followed if due care had been exercised.
Here the plaintiff could not have been guilty of contributory
negligence because he was under the influence of anesthetics and
unconscious, and the circumstances are such that the true
explanation of event is more accessible to the defendants than to
the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in
Count II it is held that a 44cause of action is stated under the
doctrine of res ipsa loquitur.
Indeed, the principles enunciated in the aforequoted case

apply with equal force here. In the present case, Erlinda
submitted herself for cholecystectomy and expected a
routine general surgery to be performed on her gall
bladder. On that fateful day she delivered her person over
to the care, custody and control of private respondents who
exercised complete and exclusive control over her. At the
time of submission, Erlinda was neurologically sound and,

except for a few minor discomforts, was likewise physically
fit in mind and body. However, during the administration
of anesthesia and prior to the performance of
cholecystectomy she suffered irreparable damage to her
brain. Thus, without undergoing surgery, she
________________
44 Id. at 971.
605
VOL. 321, DECEMBER 29, 1999 605

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,
606

the Court now comes to the issue of whether the Court of

Appeals erred in finding that private respondents were not
negligent in the care of Erlinda during the anesthesia
phase of the operation and, if in the affirmative, whether
the alleged negligence was the proximate cause of Erlindas
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 45
experienced some difficulty in the endotracheal intubation
of the patient and thus, cannot be said to be covering her
negligence with falsehood. The appellate court likewise
opined that private respondents were able to show that the
brain damage sustained by Erlinda was not caused by the
alleged faulty intubation but was due to the allergic
reaction of the patient to the drug Thiopental Sodium
(Pentothal), a short-acting barbiturate, as testified on by
their expert witness, Dr. Jamora. On the other hand, the
appellate court rejected the testimony of Dean Herminda
Cruz offered in favor of petitioners that the cause of the
brain injury was traceable to the wrongful insertion of the
tube since the latter, being a nurse, was allegedly not
knowledgeable in the process of intubation. In so holding,
the appellate court returned a verdict in favor of
respondents physicians
________________
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.
607
VOL. 321, DECEMBER 29, 1999 607

and hospital and absolved them of any liability towards Er-

linda and her family.
We disagree with the findings of the Court of Appeals.
We hold that private respondents were unable to disprove
the presumption of negligence on their part in the care of
Erlinda and their negligence was the proximate cause of
her piteous condition.
In the instant case, the records are helpful in furnishing
not only the logical scientific evidence of the pathogenesis
of the injury but also in providing the Court the legal nexus
upon which liability is based. As will be shown hereinafter,
private respondents’ own testimonies which are reflected in
the transcript of stenographic notes are replete of signposts
indicative of their negligence in the care and management
of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in
the care of Erlinda during the anesthesia phase. As borne
by the records, respondent Dra. Gutierrez failed to properly
intubate the patient. This fact was attested to by Prof.
Herminda Cruz, Dean of the Capitol Medical Center School
of Nursing and petitioner’s sister-in-law, who was in the
operating room right beside the patient when the tragic
event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if
any on the patient?
A: In particular, I could see that she was intubating the
patient.
Q: Do you know what happened to that intubation process
administered by Dra. Gutierrez?

ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As 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
608

Gutierrez herself. She was saying “Ang hirap

maintubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan.”
xxx
ATTY. PAJARES:
Q: From whom did you hear those words “lumalaki ang
tiyan?
A: From Dra. Perfecta Gutierrez.
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
ofthe left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that
particulartime?
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 thepatient was placed in trendelenburg position.
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,
46
there is a decrease of blood supply to the brain.
xxx
________________
46 TSN, January 13, 1988, pp. 16-20.
609
VOL. 321, DECEMBER 29, 1999 609

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 47
in doing so clearly suffer
from lack of sufficient factual bases.
In other words, what the Court of Appeals is trying to

impress is that being a nurse, and considered a layman in
the process of intubation, witness Cruz is not competent to
testify on whether or not the intubation was a success.
We do not agree with the above reasoning of the
appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on
which she is capable of observing such as, the statements
and acts of the physician and surgeon, external
appearances,48
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 nontechnical
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
________________
47 CA Rollo, pp. 134-135.

48 Stockham vs. Hall, supra note 29.
610

49
unnecessary. We take judicial notice of the fact that
anesthesia procedures have become so common, that even
an ordinary person can tell if it was administered properly.
As such, it would not be too difficult to tell if the tube was
properly inserted. This kind of observation, we believe,
does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner’s witness, an
experienced clinical nurse whose long experience and
scholarship led to her appointment as Dean of the Capitol
Medical Center School of Nursing, was fully capable of
determining whether or not the intubation was a success.
She had extensive clinical experience starting as a staff
nurse in Chicago, Illinois; staff nurse and clinical instructor
in a teaching hospital, the FEU-NRMF; Dean of the
Laguna College of Nursing in San Pablo City; and then 50
Dean of the Capitol Medical Center School of Nursing.
Reviewing witness Cruz’ statements, we find that the same
were delivered in a straightforward manner, with the kind
of detail, clarity, consistency and spontaneity which would
have been difficult to fabricate. With her clinical
background as a nurse, the Court is satisfied that she was
able to demonstrate through her testimony what truly
transpired on that fateful day.
Most of all, her testimony was affirmed by no less than
respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into Erlinda’s
trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were

intubating at your first attempt (sic), you did not
immediately see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube immediately?
A: You do not pull the . . .
________________
49 61 Am Jur 2d, 513 (1989).

50 TSN, January 13, 1988, p. 3.
611
VOL. 321, DECEMBER 29, 1999 611

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
51
of (sic) my first attempt, I did not see right
away.
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
52
(slightly
deviated from the normal anatomy of a person) making it
harder to locate and, since Erlinda is obese and has a short
neck and protruding teeth, it made intubation even more
difficult.
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlindas 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
53
the patient, traditionally, the day before elective
surgery. It includes taking the patient’s medical history,
review of current drug therapy, physical 54
examination and
interpretation of laboratory data. The physical
examination performed by the
________________
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.
612

anesthesiologist is directed primarily toward the central

nervous55 system, cardiovascular system, lungs and upper
airway. A thorough analysis of the patient’s airway
normally involves investigating the following: cervical
spine mobility, temporomandibular mobility, prominent
central incisors, diseased or artificial teeth, ability
56
to
visualize uvula and the thyromental distance. Thus,
physical characteristics of the patient’s upper airway that 57
could make tracheal intubation difficult should be studied.
Where the need arises, as when initial assessment
indicates possible problems (such as the alleged short neck
and protruding teeth of Erlinda) a thorough examination of
the patient’s airway would go a long way towards
decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted
that she saw Erlinda for the first time on the day of the
operation itself, on 17 June 1985. Before this date, no prior
consultations with, or pre-operative evaluation of Erlinda
was done by her. Until the day of the operation, respondent
Dra. Gutierrez was unaware of the physiological make-up
and needs of Erlinda. She was likewise not properly
informed of the possible difficulties she would face during
the administration of anesthesia to Erlinda. Respondent
Dra. Gutierrez’ act of seeing her patient for the first time
only an hour before the scheduled operative procedure was,
therefore, an act of exceptional negligence and professional

irresponsibility. The measures cautioning prudence and
vigilance in dealing with human lives lie at the core of the
physician’s centuries-old Hippocratic Oath. Her failure to
follow this medical procedure is, therefore, a clear indicia
of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss
over this omission by playing around with the trial court’s
ignorance of clinical procedure, hoping that she could get
away with it. Respondent Dra. Gutierrez tried to muddle
the difference between an elective surgery and an
emergency
________________
55 Id. at 105 (Italics supplied).

56 Id. at 106.
57 Id.
613
VOL. 321, DECEMBER 29, 1999 613

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 gainthe 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
58
and on cases that have an abnormalities
(sic).
However, the exact opposite is true. In an emergency

procedure, there is hardly enough time available for the
fastidious demands of preoperative 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
________________
58 TSN, November 15, 1990, p. 6.
614

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
59
which led to Erlinda’s coma was due to
bronchospasm 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 re-spondents’ theory that the 60
oxygen
deprivation which led to anoxic encephalopathy, was due
to an unpredictable drug reaction to the short-acting
barbiturate. We find the theory of private respondents

unacceptable.
First of all, Dr. Jamora cannot be considered an
authority in the field of anesthesiology simply because he is
not an anesthesiologist. Since Dr. Jamora is a
pulmonologist, he could not have been capable of properly
enlightening the court about anesthesia practice and
procedure and their complications. Dr. Jamora is likewise
not an allergologist and could not therefore properly
advance expert opinion on allergic-mediated processes.
Moreover, he is not a pharmacologist and, as such, could
not have been capable, as an expert would, of explaining to
the court the pharmacologic and toxic effects of the
supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr.
Jamora’s testimony as an expert witness in the anesthetic
________________
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.
615
VOL. 321, DECEMBER 29, 1999 615

practice of Pentothal administration is further supported

by his own admission that he formulated his opinions on
the drug not from the practical experience gained by a
specialist or expert in the administration and use of
Sodium Pentothal on patients, but only from reading
certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have
any occasion to use pentothal as a method of
management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when
they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is
based only on what you have read from books and not
by your own personal application of the medicine

pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during
my appendectomy.
Q: And because they have used it on you and on account of
your own personal experience you feel that you can
testify on pentothal here with medical authority?
A: No. That
61
is why I used references to support my
claims.
An anesthetic accident caused by a rare drug-induced

bronchospasm properly falls within the fields of anesthesia,
internal medicine-allergy, and clinical pharmacology. The
resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-
mediated pulmonary diseases are within the expertise of
pulmonary medicine, Dr. Jamoras field, the anesthetic
drug-induced, allergic mediated bronchospasm alleged in
this case is within the disciplines of anesthesiology,
allergology and pharmacology. On the basis of
________________
61 TSN, February 28, 1991, pp. 10-11.
616

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 Thiopental62
Sodium.
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 63authorities on the subject or by practical

experience. Clearly, Dr. Jamora does not qualify as an
expert witness based on the above standard since he lacks
the necessary knowledge, skill, and training in the field of
anesthesiology. 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
________________
62 Rule 130, RULES OF COURT.

63 61 Am Jur 2d, supra note 49, 516.
617
VOL. 321, DECEMBER 29, 1999 617

would be an act of God. Evidently, the Thiopentalallergy

theory vigorously asserted by private respondents was a
mere afterthought. Such an explanation was advanced in
order to absolve them of any and all responsibility for the
patient’s condition.
In view of the evidence at hand, we are inclined to
believe petitioners’ stand that it was the faulty intubation
which was the proximate cause of Erlinda’s comatose
condition.
Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury,64
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 a65reasonably
probable consequence of the act or omission. It is the
dominant, moving or producing cause.
Applying the above definition in relation to the evidence
at hand, faulty intubation is undeniably the proximate
cause which triggered the chain of events leading to
Erlindas brain damage and, ultimately, her comatosed
condition.
Private respondents themselves admitted in their
testimony that the first intubation was a failure. This fact
was likewise observed by witness Cruz when she heard
respondent Dra. Gutierrez remarked, “Ang hirap ma-
intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan.” Thereafter, witness Cruz noticed abdominal
distention on the body of Erlinda. The development of
abdominal distention, together with respiratory
embarrassment indicates that the endotracheal tube
entered the esophagus instead of the respiratory tree. In
other words, instead of the intended endotracheal
________________
64 BLACK’S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).

65 Ibid.
618

intubation what actually took place was an esophageal

intubation. During intubation, such distention indicates
that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry
into the esophagus would certainly cause some delay in
oxygen delivery into the lungs as the tube which carries
oxygen is in the wrong place. That abdominal distention
had been observed during the first intubation suggests that
the length of time utilized in inserting the endotracheal
tube (up to the time the tube was withdrawn for the second
attempt) was fairly significant. Due to the delay in the
delivery 66of oxygen in her lungs Erlinda showed signs of
cyanosis. As stated in the testimony of Dr. Hosaka, the
lack of oxygen became apparent only after he 67 noticed that
the nailbeds of Erlinda were already blue. 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 68
oxygenation of her brain for about four to five minutes.
The above conclusion is not without basis. Scientific
studies point out that intubation problems are responsible
for one-third (1/3) of deaths and serious injuries associated
with anes-
________________
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.
619
VOL. 321, DECEMBER 29, 1999 619

69
thesia. Nevertheless, ninety-eight percent (98%) or the
vast majority of difficult intubations may be anticipated by
performing a thorough70 evaluation of the patient’s airway
prior to the operation. 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 71
of
those variations together with a change in technique. In
other words, an experienced anesthesiologist, adequately
alerted by a thorough pre-operative evaluation, would have
had little difficulty going around the short neck and
72
72
protruding teeth. Having failed to observe common
medical standards in pre-operative management and
intubation, respondent Dra. Gutierrez’ negligence resulted
in cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr.
Orlino Hosaka as the head of the73surgical team. 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
________________
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.
620

the operative team) in not determining if his

anesthesiologist observed proper anesthesia protocols. In
fact, no evidence on record exists to show that respondent
Dr. Hosaka verified if respondent Dra. Gutierrez properly
intubated the patient. Furthermore, it does not escape us
that respondent Dr. Hosaka had scheduled another
procedure in a different hospital at the same time as
Erlindas cholecystectomy, and was in fact over three hours
late for the latter’s operation. Because of this, he had little
or no time to confer with his anesthesiologist regarding the
anesthesia delivery. This indicates that he was remiss in
his professional duties towards his patient. Thus, he shares
equal responsibility for the events which resulted in
Erlinda’s condition.
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up74specialist staff with attending and

visiting “consultants,” who are allegedly not hospital
employees, presents problems in apportioning
responsibility for negligence in medical malpractice cases.
However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in
the hiring and firing of consultants and in the conduct of
their work within the hospital premises. Doctors who apply
for “consultant” slots, visiting or attending, are required to
submit proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are
carefully scrutinized by members of the hospital
administration or by a review committee set up by the
hospital who either accept or reject
________________
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.
621
VOL. 321, DECEMBER 29, 1999 621

75
the application. This is particularly true with respondent
hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for
clerks, interns and residents, moderate grand rounds and
patient audits and perform other tasks and responsibilities,
for the privilege of being able to maintain a clinic in the
hospital, and/or for the privilege of admitting patients into
the hospital. In addition to these, the physician’s
performance as a specialist is generally evaluated by a peer
review committee on the basis of mortality and morbidity
statistics, and feedback from patients, nurses, interns and
residents. A consultant remiss in his duties, or a consultant
who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is
normally politely terminated.
In other words, private hospitals, hire, fire and exercise
real control over their attending and visiting “consultant”
staff. While “consultants” are not, technically employees, a

point which respondent hospital asserts in denying all
responsibility for the patient’s condition, the control
exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the
payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule that for
the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in
effect exists between hospitals and their attending and
visiting physicians. This being the case, the question now
arises as to whether or not respondent hospital is solidarily
76
liable with respondent doctors for petitioner’s condition.
________________
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
significant when one considers the fact that it controls every-
622

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
77
responsibility under a relationship of patria
potestas. Such responsibility ceases when the persons or
entity concerned prove that they have observed the 78
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 supervi-
________________
thing 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: The obligation imposed by
Article 2176 is demandable not only for one’s own acts or omissions, but
also for those of persons for whom one is responsible.
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in their
company.
Guardians are liable for damages caused by the minors or incapacitated
persons who are under their authority and live in their company.
The owners and managers of an establishment or enterprise are
likewise responsible for damages caused by their employees in the service
of the branches in which the latter are employed or on the occasion of
their functions.
Employers shall be liable for the damages caused by their employees
and household helpers acting within the scope of their assigned tasks,
even though the former are not engaged in any business or industry.
623
VOL. 321, DECEMBER 29, 1999 623

sion 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 79
are
solidarily liable for damages under Article 2176 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 P8,000/monthly amount
established by the trial court at the time of its decision
would be grossly inadequate to cover the actual costs of
home-based care for a comatose individual. The calculated
amount was not even arrived at by looking at the actual
cost of proper hospice care for the patient. What it reflected
were the actual expenses incurred and proved by the
petitioners after they were forced to bring home the patient
to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a
hospital or be transferred to a hospice specializing in the
care of the chronically ill for the purpose of providing a
proper milieu adequate to meet minimum standards of
care. In the instant case for instance, Erlinda has to be
constantly turned from side to side to prevent bedsores and
hypostatic pneumonia.
________________
79 Whoever by act or omission causes damage to another, there being

fault or negligence, is obliged to pay for the damage done.
624

Feeding is done by nasogastric tube. Food preparation

should be normally made by a dietitian to provide her with
the correct daily caloric requirements and vitamin
supplements. Furthermore, she has to be seen on a regular
basis by a physical therapist to avoid muscle atrophy, and
by a pulmonary therapist to prevent the accumulation of
secretions which can lead to respiratory complications.
Given these considerations, the amount of actual
damages recoverable in suits arising from negligence
should at least reflect the correct minimum cost of proper
care, not the cost of the care the family is usually compelled
to undertake at home to avoid bankruptcy. However, the
provisions of the Civil Code on actual or compensatory
damages present us with some difficulties.
Well-settled is the rule that actual damages which may
be claimed by the plaintiff are those suffered by him as he
has duly proved. The Civil Code provides:
Art. 2199.—Except as provided by law or by stipulation, one is

entitled to an adequate compensation only for such pecuniary loss
suffered by him as he has duly proved. Such compensation is
referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally

assume that at the time of litigation, the injury suffered as
a consequence of an act of negligence has been completed
and that the cost can be liquidated. However, these
provisions neglect to take into account those situations, as
in this case, where the resulting injury might be continuing
and possible future complications directly arising from the
injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to
the injury caused, should be one which compensates for
pecuniary loss incurred and proved, up to the time of trial;
and one which would meet pecuniary loss certain to be
suffered but which could not, from the nature of the case,
be made
625
VOL. 321, DECEMBER 29, 1999 625

80
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
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 81
in temperate
damages would therefore be reasonable. 82
In Valenzuela vs. Court of Appeals, this Court was
confronted with a situation where the injury suffered by
the plaintiff would have led to expenses which were
difficult to
________________
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).
626

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 postmenopausal women. In other words, the damage
done to her would not only be permanent and lasting, it would
also be permanently changing and adjusting to the physiologic
changes which her body would normally undergo through the
years. The replacements, changes, and adjustments will require
corresponding adjustive physical and occupational therapy. All of
these adjustments, it has been documented, are painful.
x x x.
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,
83
psychological
injury, mental and physical pain are inestimable.
________________
83 Id. at 327-328.
627
VOL. 321, DECEMBER 29, 1999 627

The injury suffered by Erlinda as a consequence of private

respondents’ negligence is certainly much more serious
than the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when
the incident occurred. She has been in a comatose state for
over fourteen years now. The burden of care has so far been
heroically shouldered by her husband and children, who, in
the intervening years have been deprived of the love of a
wife and a mother.
Meanwhile, the actual physical, emotional and financial
cost of the care of petitioner would be virtually impossible
to quantify. Even the temperate damages herein awarded
would be inadequate if petitioner’s condition remains
unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the
victim’s actual injury would not even scratch the surface of
the resulting moral damage because it would be highly
speculative to estimate the amount of emotional and moral
pain, psychological damage and injury suffered by the 84
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.
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.
________________
84 Id. at 328.
628

Our courts face unique difficulty in adjudicating medical

negligence cases because physicians are not insurers of life
and, they rarely set out to intentionally cause injury or
death to their patients. However, intent is immaterial in
negligence cases because where negligence exists and is
proven, the same automatically gives the injured a right to
reparation for the damage caused.
Established medical procedures and practices, though in
constant flux are devised for the purpose of preventing
complications. A physician’s experience with his patients
would sometimes tempt him to deviate from established
community practices, and he may end a distinguished
career using unorthodox methods without incident.
However, when failure to follow established procedure
results in the evil precisely sought to be averted by
observance of the procedure and a nexus is made between
the deviation and the injury or damage, the physician
would necessarily be called to account for it. In the case at
bar, the failure to observe preoperative assessment protocol
which would have influenced the intubation in a salutary
way was fatal to private respondents’ case.
WHEREFORE, the decision and resolution of the
appellate court appealed from are hereby modified so as to
award in favor of petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00 as actual
damages computed as of the date of promulgation of this

decision plus a monthly payment of P8,000.00 up to the
time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages; 3)
P1,500,000.00 as temperate damages; 4) P100,000.00 each
as exemplary damages and attorney’s fees; and, 5) the costs
of the suit.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Puno, Pardo and

Ynares-Santiago, JJ., concur.
Judgment modified.
629
VOL. 321, DECEMBER 29, 1999 629

Land Bank of the Philippines vs. Court of Appeals
Note.—Proximate cause is determined on the facts of

each case upon mixed considerations of logic, common
sense, policy and precedent. (Philippine Bank of Commerce
vs. Court of Appeals, 269 SCRA 695 [1997])
——o0o——
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9/6/21, 10:50 PM SUPREME COURT REPORTS ANNOTATED VOLUME 321

584 SUPREME COURT REPORTS ANNOTATED

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own

Remedial Law; Pleadings and Practice; When a party is

VOL. 321, DECEMBER 29, 1999 585

Ramos vs. Court of Appeals

dant or his servants and the accident is such as in ordinary course

586 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

any particular diagnosis was not correct, or why any particular

VOL. 321, DECEMBER 29, 1999 587

Ramos vs. Court of Appeals

the desired result. Thus, res ipsa loquitur is not available in a

588 SUPREME COURT REPORTS ANNOTATED

Ramos vs. Court of Appeals

on the plaintiffs, once negligence is shown, the burden shifts to

PETITION for review on certiorari of a decision of the

The facts are stated in the opinion of the Court.

The Hippocratic Oath mandates physicians to give

patients. If a doctor fails to live up to this precept, he is

VOL. 321, DECEMBER 29, 1999 589

between life and death.1

2 Cholecystectomy is the surgical excision of the gall bladder.

590 SUPREME COURT REPORTS ANNOTATED

Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos

anesthesia. Although not a member of the hospital staff,

VOL. 321, DECEMBER 29, 1999 591

support to the patient, to them. Herminda was allowed to stay

thereafter noticed bluish discoloration of the nailbeds of the left

592 SUPREME COURT REPORTS ANNOTATED

ating room, she saw this anesthesiologist trying to intubate the

17, 1985, she has been in a comatose condition. She cannot do

VOL. 321, DECEMBER 29, 1999 593

medical attention, with her husband Rogelio incurring a monthly

After evaluating the evidence as shown in the finding of facts set

594 SUPREME COURT REPORTS ANNOTATED

after she committed a mistake in intubating [the] patient, the

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

or in the total sum of P632,000.00 as of April 15, 1992,

VOL. 321, DECEMBER 29, 1999 595

4) the costs of the suit.

Private respondents seasonably interposed an appeal to the

WHEREFORE, for the foregoing premises the appealed decision

The decision of the Court of Appeals was received on 9

reconsideration contending that the period to file the

7 Records, pp. 276-278.

596 SUPREME COURT REPORTS ANNOTATED

ing on the assailed decision had not yet commenced to run

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

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

VOL. 321, DECEMBER 29, 1999 597

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF

IN FINDING THAT THE NEGLIGENCE OF THE

IN NOT 11 APPLYING THE DOCTRINE OF RES IPSA

Before we discuss the merits of the case, we shall first

Ramos. Based on the other communications received by

598 SUPREME COURT REPORTS ANNOTATED

nished to the counsel on record. Petitioner, not being a

facie case, and present a question

13 57B Am Jur 2d, 493 (1989).

VOL. 321, DECEMBER 29, 1999 599

agement or control use proper care, it affords reasonable

600 SUPREME COURT REPORTS ANNOTATED