5. Ramos vs. CA 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 defendant or his servants
and the accident is such as in ordinary course of things does not happen if those who have its management or control use
proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was
caused by the defendant’s want of care.

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.

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 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.

Page 1 of 15
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 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. Ramos
vs. Court of Appeals, 321 SCRA 584, G.R. No. 124354 December 29, 1999

KAPUNAN, J.:

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

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

Petitioners seek the reversal of the decision 3 of the Court of Appeals, dated 29 May 1995, which overturned the decision 4 of
the Regional Trial Court, dated 30 January 1992, finding private respondents liable for damages arising from negligence in the
performance of their professional duties towards petitioner Erlinda Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:

Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. "A") robust woman
(TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly caused
by the presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other
woman. Married to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she has
three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN,
October 19, 1989, pp. 5-6).

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

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her husband
Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20, 1990, p. 3), one of
the defendants in this case, on June 10, 1985. They agreed that their date at the operating table at the DLSMC
(another defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a
"cholecystectomy" operation after examining the documents (findings from the Capitol Medical Center, FEU
Hospital and DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good

Page 2 of 15
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good anesthesiologist. Dr. Hosaka
charged a fee of P16,000.00, which was to include the anesthesiologist's fee and which was to be paid after
the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN,
November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC, located
along E. Rodriguez Avenue, Quezon City (TSN, October 19,1989, p. 11).

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

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet in (TSN,
January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the prospect of a delay
in the arrival of Dr. Hosaka. Herminda then went back to the patient who asked, "Mindy, wala pa ba ang
Doctor"? The former replied, "Huwag kang mag-alaala, darating na iyon" (Ibid.).

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

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

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard somebody
say that "Dr. Hosaka is already here." She then saw people inside the operating room "moving, doing this and
that, [and] preparing the patient for the operation" (TSN, January 13, 1988, p. 16). As she held the hand of
Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez
say, "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the
remarks of Dra. Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She thereafter noticed
bluish discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka approached her.
She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon, another anesthesiologist (id., p.
19). After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying to intubate the
patient. The patient's nailbed became bluish and the patient was placed in a trendelenburg position — a
position where the head of the patient is placed in a position lower than her feet which is an indication that
there is a decrease of blood supply to the patient's brain (Id., pp. 19-20). Immediately thereafter, she went out
of the operating room, and she told Rogelio E. Ramos "that something wrong was . . . happening" (Ibid.). Dr.
Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).

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

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

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

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient. The
doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-27).

Page 3 of 15
 Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15, 1985, the
patient was released from the hospital.

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

Thus, on 8 January 1986, petitioners filed a civil case 6 for damages with the Regional Trial Court of Quezon City against herein
private respondents alleging negligence in the management and care of Erlinda Ramos.

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

After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of petitioners, to wit:

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

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

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

On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the doctors in
their "practice of medicine" in the operating room. Moreover, the hospital is liable for failing through its
responsible officials, to cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time.

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

x x x           x x x          x x x

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

1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned
from November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to
its being updated;

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

3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000,00 by
way of exemplary damages; and,

Page 4 of 15
 4) the costs of the suit.

SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a Decision, dated
29 May 1995, reversing the findings of the trial court. The decretal portion of the decision of the appellate court reads:

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

SO ORDERED. 8

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

We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be extended;
precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter
Motion that plaintiffs/appellees received a copy of the decision as early as June 9, 1995. Computation wise,
the period to file a Motion for Reconsideration expired on June 24. The Motion for Reconsideration, in turn,
was received by the Court of Appeals already on July 4, necessarily, the 15-day period already passed. For
that alone, the latter should be denied.

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

SO ORDERED. 10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty. Sillano
filed before this Court a motion for extension of time to file the present petition for certiorari under Rule 45. The Court granted
the motion for extension of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15)
period counted from the receipt of the resolution of the Court of Appeals within which to submit the petition. The due date fell
on 27 May 1996. The petition was filed on 9 May 1996, well within the extended period given by the Court.

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

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON
AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

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

A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is attributable
to the fact that the decision of the Court of Appeals was not sent to then counsel on record of petitioners, the Coronel Law
Office. In fact, a copy of the decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9

Page 5 of 15
June 1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by
petitioner Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision
of the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for
reconsideration, referred the same to a legal counsel only on 20 June 1995.

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

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

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

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

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

1. The accident is of a kind which ordinarily does not occur in the absence of someone's
negligence;

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

defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is
eliminated. 21

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

Medical malpractice 24 cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the
circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause
of that harm. 25 The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial
function to determine whether a certain set of circumstances does, as a matter of law, permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent
act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the
plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of
negligence. 27 The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly
within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. 28 Ordinarily, only physicians and surgeons of skill and experience are competent
to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However,
testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses. 29 Hence, in cases where the res ipsa loquitur is applicable, the

Page 6 of 15
court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony,
where the court from its fund of common knowledge can determine the proper standard of care. 30 Where common knowledge
and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what occurred but how and why it occurred. 31 When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury
sustained while under the custody and management of the defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary
conditions, by which the patient can obtain redress for injury suffered by him.

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

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

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

A case strikingly similar to the one before us is Voss vs. Bridwell, 43 where the Kansas Supreme Court in applying the res ipsa
loquitur stated:

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

Here the plaintiff could not have been guilty of contributory negligence because he was under the influence of
anesthetics and unconscious, and the circumstances are such that the true explanation of event is more
accessible to the defendants than to the plaintiff for they had the exclusive control of the instrumentalities of
anesthesia.

Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of action is stated
under the doctrine of res ipsa loquitur. 44

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

Page 7 of 15
have been guilty of contributory negligence because she was under the influence of anesthetics which rendered her
unconscious.

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

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

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

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

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

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

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

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient?

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

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

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

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

x x x           x x x          x x x

Page 8 of 15
 ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

x x x           x x x          x x x

Q: After hearing the phrase "lumalaki ang tiyan," what did you notice on the person of the
patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at.

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

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

Q: When he approached the patient, what did he do, if any?

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

Q: Did Dr. Calderon, upon being called, arrive inside the operating room?

A: Yes sir.

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

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

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while the patient's nailbed
became bluish and I saw the patient was placed in trendelenburg position.

x x x           x x x          x x x

Q: Do you know the reason why the patient was placed in that trendelenburg position?

A: As far as I know, when a patient is in that position, there is a decrease of blood supply to
the brain. 46

x x x           x x x          x x x

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

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

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

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

Page 9 of 15
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and scholarship led to
her appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable of determining whether or not the
intubation was a success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and
clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then
Dean of the Capitol Medical Center School of Nursing. 50Reviewing witness Cruz' statements, we find that the same were
delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would have been
difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to demonstrate through
her testimony what truly transpired on that fateful day.

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

ATTY. LIGSAY:

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

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

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

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

Q: So, you found some difficulty in inserting the tube?

A: Yes, because of (sic) my first attempt, I did not see right away. 51

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

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence demonstrating that
they proceeded to make a thorough assessment of Erlinda's airway, prior to the induction of anesthesia, even if this would
mean postponing the procedure. From their testimonies, it appears that the observation was made only as an afterthought, as
a means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the
possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins when the anesthesiologist
reviews the patient's medical records and visits with the patient, traditionally, the day before elective surgery. 53 It includes
taking the patient's medical history, review of current drug therapy, physical examination and interpretation of laboratory
data. 54 The physical examination performed by the anesthesiologist is directed primarily toward the central nervous system,
cardiovascular system, lungs and upper airway. 55 A thorough analysis of the patient's airway normally involves investigating
the following: cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth,
ability to visualize uvula and the thyromental distance. 56Thus, physical characteristics of the patient's upper airway that could
make tracheal intubation difficult should be studied. 57 Where the need arises, as when initial assessment indicates possible
problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient's airway
would go a long way towards decreasing patient morbidity and mortality.

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

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial court's ignorance of
clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried to muddle the difference between

Page 10 of 15
an elective surgery and an emergency surgery just so her failure to perform the required pre-operative evaluation would
escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so
you can introduce yourself to establish good doctor-patient relationship and gain the trust
and confidence of the patient?

DRA. GUTIERREZ:

A: As I said in my previous statement, it depends on the operative procedure of the

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

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

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

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient which, in turn,
resulted to a wrongful intubation, we now determine if the faulty intubation is truly the proximate cause of Erlinda's comatose
condition.

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

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

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

ATTY. LIGSAY:

Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a
method of management?

DR. JAMORA:

A: We do it in conjunction with the anesthesiologist when they have to intubate our patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only on what you have read
from books and not by your own personal application of the medicine pentothal?

A: Based on my personal experience also on pentothal.

Page 11 of 15
 Q: How many times have you used pentothal?

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

Q: And because they have used it on you and on account of your own personal experience
you feel that you can testify on pentothal here with medical authority?

A: No. That is why I used references to support my claims. 61

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

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

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

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

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

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

In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty intubation which was the
proximate cause of Erlinda's comatose condition.

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

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate cause which
triggered the chain of events leading to Erlinda's brain damage and, ultimately, her comatosed condition.

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

Page 12 of 15
The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for one-third
(1/3) of deaths and serious injuries associated with anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the vast
majority of difficult intubations may be anticipated by performing a thorough evaluation of the patient's airway prior to the
operation. 70 As stated beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative protocol which could
have prevented this unfortunate incident. Had appropriate diligence and reasonable care been used in the pre-operative
evaluation, respondent physician could have been much more prepared to meet the contingency brought about by the
perceived anatomic variations in the patient's neck and oral area, defects which would have been easily overcome by a prior
knowledge of those variations together with a change in technique. 71 In other words, an experienced anesthesiologist,
adequately alerted by a thorough pre-operative evaluation, would have had little difficulty going around the short neck and
protruding teeth. 72 Having failed to observe common medical standards in pre-operative management and intubation,
respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and eventual coma of Erlinda.

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

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

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

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

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

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

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

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

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

At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be grossly
inadequate to cover the actual costs of home-based care for a comatose individual. The calculated amount was not even
arrived at by looking at the actual cost of proper hospice care for the patient. What it reflected were the actual expenses
incurred and proved by the petitioners after they were forced to bring home the patient to avoid mounting hospital bills.

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

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

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

Art. 2199. — Except as provided by law or by stipulation, one is entitled to an adequate compensation only
for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or
compensatory damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect
to take into account those situations, as in this case, where the resulting injury might be continuing and possible future
complications directly arising from the injury, while certain to occur, are difficult to predict.

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

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

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

In Valenzuela vs. Court of Appeals, 82 this Court was confronted with a situation where the injury suffered by the plaintiff would
have led to expenses which were difficult to estimate because while they would have been a direct result of the injury
(amputation), and were certain to be incurred by the plaintiff, they were likely to arise only in the future. We awarded
P1,000,000.00 in moral damages in that case.

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

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

These adjustments entail costs, prosthetic replacements and months of physical and occupational
rehabilitation and therapy. During the lifetime, the prosthetic devise will have to be replaced and readjusted
to changes in the size of her lower limb effected by the biological changes of middle-age, menopause and
aging. Assuming she reaches menopause, for example, the prosthetic will have to be adjusted to respond to
the changes in bone resulting from a precipitate decrease in calcium levels observed in the bones of all post-

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 menopausal women. In other words, the damage done to her would not only be permanent and lasting, it
would also be permanently changing and adjusting to the physiologic changes which her body would
normally undergo through the years. The replacements, changes, and adjustments will require corresponding
adjustive physical and occupational therapy. All of these adjustments, it has been documented, are painful.

x x x           x x x          x x x

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

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly much more serious than the
amputation in the Valenzuela case.

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

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

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

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the length and
nature of the instant suit we are of the opinion that attorney's fees valued at P100,000.00 are likewise proper.

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

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

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

SO ORDERED.

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