Petitioner claimed, that she explained to respondents that even when a tumor is removed, there are

still small lesions undetectable to the naked eye and that adjuvant chemotherapy is needed to clean
out the small lesions in order to lessen the chance of cancer to recur. She did not give the
respondents any assurance that chemotherapy will cure Angelica’s cancer. During these consultations
with respondents, she explained the following side effects of chemotherapy treatment to
respondents: 1.) Falling hair; 2.) nausea and vomiting; 3.) loss of appetite; 4.) low count of WBC, RBC,
and platelets; 5.) possible sterility due to the effects on Angelica’s ovary; 6.) Damage to kidney and
heart; 7.) darkening of the skin especially when exposed to sunlight. She actually talked to the
respondents four times, once at the hospital after the surgery, twice at her clinic and fourth when
Angelica’s mother called her through long distance. This was disputed by respondents who countered
that petitioner gave them assurance that there is 95% chance of healing for Angelica if she undergoes
chemotherapy and that the only side effects were nausea, vomiting and hair loss. Those were the only
side effects of chemotherapy mentioned by petitioner.

Issue: Whether or not petitioner committed medical malpractice.

Held: No. The type of lawsuit which has been called medical malpractice or more appropriately,
medical negligence, is that type of claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has caused bodily harm. In order to successfully pursue
such claim, a patient must prove that a health care provider in most cases a physician, either failed to
do something which a reasonably prudent health care provider would have done or that he or she did
something that a reasonably health care provider would not have done; and that failure or action
caused injury to the patient.

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

The doctrine of informed consent within the context of physician-patient relationships goes as far
back into english common law. As early as 1767, doctors were charged with the tort of battery if they
have not gained the consent of their patients prior to performing a surgery or procedure. In the
United States, the seminal case was Schoendorff vs Society of New York Hospital which involved
unwanted treatment performed by a doctor. Justice Bejamin Cardozo oft-quoted opinion upheld the
basic right of a patient to give consent to any medical procedure or treatment; every human being of
adult year and sound mind has a right to determine what shall be done with his own body; and a
surgeon who performs an operation without his patient’s consent commits an assault, for which he is
liable in damages. From a purely ethical norm, informed consent evolved into a general principle of
law that a physician has a duty to disclose what a reasonably prudent physician in the medical
community in the exercise of reasonable care would disclose to his patient as to whatever grave risk
of injury might be incurred from a proposed course of treatment, so that a patient, exercising
ordinary care for her own welfare and faced with a choice of undergoing the proposed treatment, as
alternative treatment, or none at all, may intelligently exercise his judgement by reasonably balancing
the probable risk against the probable benefits.

There are four essential elements a plaintiff must proved in a malpractice action based upon the
doctrine of informed consent:
1. ) the physician had a duty to disclose material risks;
2. ) he failed to disclose or inadequately disclosed those risks;
3. ) as a direct and proximate result of the failure to disclose, the patient consented to treatment she
otherwise would not have consented to; and
4.) plaintiff was injured by the proposed treatment. The gravamen in an informed consent requires
the plaintiff to point to significant undisclosed information relating to the treatment which could
have altered her decision to undergo it.
Examining the evidence, we hold that there was adequate disclosure of material risks inherent in
chemotherapy procedure performed with the consent of Angelica’s parents. Respondents could not
have been unaware in the course of initial treatment and amputation of Angelica’s lower extremity
that her immune system was already weak on account of the malignant tumor in her knee. When
petitioner informed the respondents beforehand of the side effects of chemotherapy which includes
lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart
damage and skin darkening, there is reasonable expectation on the part of the doctor that the
respondents understood very well that the severity of these side effects will not be the same for all
patients undergoing the procedure. In other words, by the nature of the disease itself, each patients
reaction to the chemical agents even with pre-treatment laboratory tests cannot be precisely
determined by the physician. That death can possibly result from complications of the treatment or
the underlying cancer itself, immediately or sometime after the administration of chemotherapy
drugs, is a risk that cannot be ruled out, as with most other major medical procedures, but such
conclusion can be reasonably drawn from the general side effects of chemotherapy already disclosed.

G.R. No. 116100 – 253 SCRA 483 – Civil Law – Torts and Damages – Damnum Absque
Injuria –  Actionable Wrong

Law on Property – Right of Way

Pacifico Mabasa owns a property behind the properties of spouses Cristino and
Brigida Custodio and spouses Lito and Ma. Cristina Santos. The passageway leading
to Mabasa’s house passes through the properties of the Custodios and the Santoses.

Sometime in 1981, the spouses Lito and Ma. Cristina Santos built a fence around
their property. This effectively deprived Mabasa passage to his house. Mabasa then
sued the Custodios and the Santoses to compel them to grant him right of way with
damages. Mabasa claims that he lost tenants because of the blockade done by the
families in front. The trial court ruled in favor of Mabasa. It ordered the Custodios
and the Santoses to give Mabasa a permanent easement and right of way and for
Mabasa to pay just compensation. The claim for damages by Mabasa was not
granted. The Santoses and the Custodios appealed. The Court of Appeals affirmed
the decision of the trial court. However, the CA modified the ruling by awarding
damages in favor of Mabasa (Actual damages: P65k, Moral damages: P30k,
Exemplary damages: P10k).

ISSUE: Whether or not the grant of damages by the CA is proper.

HELD: No. The award is not proper. This is an instance of damnum absque injuria.

There is a material distinction between damages and injury. Injury is the illegal
invasion of a legal right; damage is the loss, hurt, or harm which results from the
injury; and damages are the recompense or compensation awarded for the damage
suffered. Thus, there can be damage without injury in those instances in which the
loss or harm was not the result of a violation of a legal duty.

In this case, it is true that Mabasa may have incurred losses (damage) when his
tenants left because of the fence made by the Santoses. However, when Santos built
the fence, he was well within his right. He built the fence inside his property. There
was no existing easement agreement, either by contract or by operation of law, on
his property. Hence, Santos has all the right to build the fence. It was only after the
judgment in the trial court that the easement was created which was even
conditioned on the payment of Mabasa of the just compensation. Santos did not
commit a legal injury against Mabasa when he built the fence, therefore, there is no
actionable wrong as basis for the award of damages. In this case, the damage has to
be borne by Mabasa.

Sps. Ramos v. CA G.R. No. 124354 29

December 1999

Facts:

Erlinda Ramos, an otherwise healthy woman, experienced occasional pain due

to a gallstone, and was advised to undergo an operation for its removal
(cholecystectomy).  She was referred to a surgeon, Dr. Orlino Hosaka, who
agreed to perform the operation and promised them to find a capable
anesthesiologist.

The day before the scheduled date, Erlinda was admitted to De Los Santos
Medical Center for her early morning operation. At 7:30 AM, she was prepped
by hospital staff and the anesthesiologist, Dr. Perfecta Gutierrez, and was
accompanied by her sister-in-law, Herminda Cruz (Dean of College of Nursing
at Capitol Medical Center), for moral support. Preparatory injections and
procedures were administered. As of 9:30 AM, Dr. Gutierrez advised Herminda
that Dr. Hosaka was running late and that the operation might be delayed.
Erlinda and the OR staff wanted to find a replacement surgeon but no one
was found until Dr. Hosaka finally arrived at 12:15 PM, whereupon the staff
proceeded to perform their duties.

Dr. Gutierrez intubated Erlinda, who remarked on the difficulty of the

procedure and that her belly was distending; Herminda noticed that Erlinda’s
fingernails were turning blue, and Dr. Hosaka issued an order to call another
anesthesiologist, Dr. Calderon, who proceeded to intubate Erlinda but raised
her feet to increase bloodflow to her head. There was a commotion and
several other doctors and a respiratory machine were rushed into the room. At
3:00 PM Erlinda was comatose and rushed to the ICU.
Two days after the operation,  Dr. Hosaka explained to husband Rogelio that
there was a complication during intubation, which Rogelio said wouldn’t have
happened had Dr. Hosaka found a good anesthesiologist as per their
agreement. Dr. Gutierrez explained to DLSMC that Erlinda experienced a
bronchoplasm.

Erlinda stayed in the ICU for a month, and was released from DLSMC after four
months without improvement and an exorbitant bill. She is completely
comatose and reliant on mechanical respiration and feeding to survive, and
was diagnosed with diffuse cerebral parenchymal damage due to 5 minutes
without oxygen while the doctors were having trouble intubating her.

Rogelio filed a civil case for damages against Drs. Hosaka and Gutierrez and
DLSMC, on behalf of Erlinda and their children. The plaintiffs presented
Herminda and another doctor as witnesses that Erlinda suffered injury as a
direct result of the intubation, but the defendants relied on expert testimony
of a pulmonologist to prove that the brain damage was a result of an allergic
reaction to the anesthetic agent.

RTC sided with Rogelio, finding the defendants guilty of negligence in the
performance of their duty: Dr. Gutierrez is liable not properly intubating
Erlinda and not readministering the preparatory drugs since the operation was
delayed for 3 hours; Dr. Hosaka is subsidiarily liable for selecting Dr. Gutierrez
as anesthesiologist and for inexcusably arriving 3 hours late; and DLSMC for
the doctors’ practice within their operating room and for not cancelling the
operation due to delay. RTC notes that the doctors were negligent because
the coma was a direct result of the improper intubation,there shouldn’t have
been a need to call another anesthesiologist if everything was alright, and the
procedure should have been cancelled due to the delay since it was only an
elective procedure.

On appeal, CA reversed the decision but failed to properly notify Rogelio’s

counsel on record, hence Rogelio was only able to seek legal assistance4days
before expiry of the reglementary period. Motions on the extension of the
period to file for reconsideration were denied, hence this present petition for
certiorari.
 Issues:

 Are the expert witnesses needed? no

 Are the doctors and hospital negligent? yes

Held:

 NO, expert testimony is not necessary

 YES, the defendants are negligent and liable

Ratio:

 Res ipsa loquitur applies in this case

 “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 anyone may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is
permitted to find a physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the court from its fund of common
knowledge can determine the proper standard of care.”
 Res ipsa loquitur does not automatically apply to all cases of medical 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 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 would have ordinarily have followed if due care had been exercised.”
 “A distinction must be made between the failure to secure results, and the occurrence
of 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. …
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.”
 Defendants were unable to overturn presumption of negligence
 Appellate court erred in holding that Herminda’s testimony as a nurse is incompetent
compared to the expert testimony of an anesthesiologist, on the ground that nurses are
not taught to intubate and that she did not personally check on Erlinda’s condition,
because Herminda is perfectly capable of observing Dr. Gutierrez’s statement of
 difficulty and discoloration of Erlinda’s fingernails, hence expert testimony is
unnecessary.
 Anesthesia procedures are now so common that ordinary persons can tell if it was
administered properly, even without a medical degree. Herminda, as a clinical nurse
in several noteworthy hospitals and now Dean of a College of Nursing, is more than
competent to testify on what she saw.
 Gutierrez did not deliver the standard of care expected
 She only met Erlinda on the morning of the operation itself and was not able to
conduct a thorough pre-operational assessment of her airway, and so was unable to
anticipate difficulty in finding Erlinda’s trachea “because it was positioned more
anteriorly (slightly deviated from the normal anatomy of a person) making it hard to
locate and, since Erlinda is obese and has a short neck and protruding teeth, it made
intubation even more difficult.”
 Gutierrez attempts to evade by saying that she doesn’t conduct pre-operational
evaluations except in emergencies or abnormal cases, but the exact opposite is
actually true—emergency cases mean there is no time to evaluate the patient, while
elective cases give the doctor all the time in the world to assess the patient before the
procedure.
 Defendant’s expert testimony is inadmissible
 The expert witness they provided was a leading pulmonologist, but not an
anesthesiologist, hence is not competent to enlighten the Court on the effects of the
drug administered.
 There is no supporting evidence that the coma was induced by an allergic reaction—
no rash, wheezing, or other symptoms.
 The improper intubation was the proximate cause of the coma
 The first intubation led the tube through the esophagus into the stomach, not through
the trachea into the lungs, as shown by the distention of her belly.
 The time from the first and second attempt was significant, leaving Erlinda without
oxygen which resulted in brain damage.
 Hosaka is liable as the “captain of the ship”
 It was his duty to ensure that the anesthesiologist complied with proper protocols
 He was late because he had scheduled another operation at the same time in a
different hospital, and should have rescheduled Erlinda’s operation.
 DLSMC is liable despite not having a strict employer-employee relationship
 Private hospitals exercise significant control in hiring and firing consultants, even if
they’re technically not “employees.”
 DLSMC failed to adduce evidence that it exercised the diligence of a good father of a
family in hiring and supervising the doctors in this case.