Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
 
G.R. No. 124354 December 29, 1999
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians of the minors, ROM
RAMOS, ROY RODERICK RAMOS and RON RAYMOND RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
 
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients
fails to live up to this precept, he is made accountable for his acts. A mistake, through gross negligence or incompete
human error, may spell the difference between life and death. In this sense, the doctor plays God on his patient's fate
In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be m
for the unfortunate comatose condition of a patient scheduled for cholecystectomy.  2

Petitioners seek the reversal of the decision   of the Court of Appeals, dated 29 May 1995, which overturned the decis
3

Regional Trial Court, dated 30 January 1992, finding private respondents liable for damages arising from negligence
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") rob
(TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains a
caused by the presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she w
normal as any other woman. Married to Rogelio E. Ramos, an executive of Philippine Long Di
Telephone Company, she has three children whose names are Rommel Ramos, Roy Roderic
and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal ways, she sought professional a
was advised to undergo an operation for the removal of a stone in her gall bladder (TSN, Janu
1988, p. 5). She underwent a series of examinations which included blood and urine tests (Ex
"C") which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she
husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka; see TSN, Febru
1990, p. 3), one of the defendants in this case, on June 10, 1985. They agreed that their date
operating table at the DLSMC (another defendant), would be on June 17, 1985 at 9:00 A.M.. D
decided that she should undergo a "cholecystectomy" operation after examining the documen
from the Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ram
however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured R
he will get a good anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to inc
anesthesiologist's fee and which was to be paid after the operation (TSN, October 19, 1989, p
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 DL
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 op
the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursi
Capitol Medical Center, was also there for moral support. She reiterated her previous request
Herminda to be with her even during the operation. After praying, she was given injections. He
were held by Herminda as they went down from her room to the operating room (TSN, Januar
pp. 9-11). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the ope
room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other defenda
to administer anesthesia. Although not a member of the hospital staff, Herminda introduced he
Dean of the College of Nursing at the Capitol Medical Center who was to provide moral suppo
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 n
(TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about th
of a delay in the arrival of Dr. Hosaka. Herminda then went back to the patient who asked, "M
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, Rog
the doctor was not yet around (id., p. 13). When she returned to the operating room, the patie
"Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor." So, she went out again and told R
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
even as he did his best to find somebody who will allow him to pull out his wife from the opera
(TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife, who was inside
operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia
remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). Wh
Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remark
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon hearing those words, he went down to t
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, hea
somebody say that "Dr. Hosaka is already here." She then saw people inside the operating ro
doing this and that, [and] preparing the patient for the operation" (TSN, January 13, 1988, p. 1
held the hand of Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient. Sh
heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalak
(id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr. G
was doing. She thereafter noticed bluish discoloration of the nailbeds of the left hand of the ha
Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for so
call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the opera
she saw this anesthesiologist trying to intubate the patient. The patient's nailbed became bluis
patient was placed in a trendelenburg position — a position where the head of the patient is p
position lower than her feet which is an indication that there is a decrease of blood supply to th
brain (Id., pp. 19-20). Immediately thereafter, she went out of the operating room, and she told
Ramos "that something wrong was . . . happening" (Ibid.). Dr. Calderon was then able to intub
patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being ru
towards the door of the operating room. He also saw several doctors rushing towards the ope
When informed by Herminda Cruz that something wrong was happening, he told her (Hermind
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 p
(TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient ta
Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter inform
former that something went wrong during the intubation. Reacting to what was told to him, Ro
reminded the doctor that the condition of his wife would not have happened, had he (Dr. Hosa
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 th
The doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-2
Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 1
patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills amounting to P93,542.
 the subject of a promissory note and affidavit of undertaking executed by Rogelio E. Ramos in
DLSMC. Since that fateful afternoon of June 17, 1985, she has been in a comatose condition.
do anything. She cannot move any part of her body. She cannot see or hear. She is living on
means. She suffered brain damage as a result of the absence of oxygen in her brain for four t
minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the hospital, she h
staying in their residence, still needing constant medical attention, with her husband Rogelio in
monthly expense ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34).
also diagnosed to be suffering from "diffuse cerebral parenchymal damage" (Exh. "G"; see als
December 21, 1989,
p. 6). 
5

Thus, on 8 January 1986, petitioners filed a civil case   for damages with the Regional Trial Court of Quezon City aga
6

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 te
Dean Herminda Cruz and Dr. Mariano Gavino to prove that the sustained by Erlinda was due to lack of oxygen in her
caused by the faulty management of her airway by private respondents during the anesthesia phase. On the other ha
respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the ca
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
After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the
provisions of law and jurisprudence to the case at bar, this Court finds and so holds that defen
liable to plaintiffs for damages. The defendants were guilty of, at the very least, negligence in
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
only intubating the patient, but also in not repeating the administration of atropine (TSN, Augu
pp. 5-10), without due regard to the fact that the patient was inside the operating room for alm
hours. For after she committed a mistake in intubating [the] patient, the patient's nailbed beca
and the patient, thereafter, was placed in trendelenburg position, because of the decrease of b
to the patient's brain. The evidence further shows that the hapless patient suffered brain dama
of the absence of oxygen in her (patient's) brain for approximately four to five minutes which, i
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 G
whom he had chosen to administer anesthesia on the patient as part of his obligation to provid
patient a good anesthesiologist', and for arriving for the scheduled operation almost three (3) h
On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence
doctors in their "practice of medicine" in the operating room. Moreover, the hospital is liable fo
through its responsible officials, to cancel the scheduled operation after Dr. Hosaka inexcusab
arrive on time.
In having held thus, this Court rejects the defense raised by defendants that they have acted w
care and prudence in rendering medical services to plaintiff-patient. For if the patient was prop
intubated as claimed by them, the patient would not have become comatose. And, the fact tha
anesthesiologist was called to try to intubate the patient after her (the patient's) nailbed turned
belie their claim. Furthermore, the defendants should have rescheduled the operation to a late
they should have done, if defendants acted with due care and prudence as the patient's case
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
defendants. Accordingly, the latter are ordered to pay, jointly and severally, the former the foll
of money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ra
reckoned from November 15, 1985 or in the total sum of P632,000.00 as of Ap
 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 P
by way of exemplary damages; and,
4) the costs of the suit.
SO ORDERED.  7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a Decisi
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
complaint below against the appellants is hereby ordered DISMISSED. The counterclaim of a
Los Santos Medical Center is GRANTED but only insofar as appellees are hereby ordered to
unpaid hospital bills amounting to P93,542.25, plus legal interest for justice must be tempered
SO ORDERED.  8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly
as "Atty. Rogelio Ramos." No copy of the decision, however, was sent nor received by the Coronel Law Office, then c
record of petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 Jun
four (4) days before the expiration of the reglementary period for filing a motion for reconsideration. On the same day
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 i
Resolution dated 25 July 1995.   Meanwhile, petitioners engaged the services of another counsel, Atty. Sillano, to rep
9

Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for reconsideration contending that the perio
appropriate pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of the Cou
Appeals had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court still
motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the g
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 can
extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other han
in the latter Motion that plaintiffs/appellees received a copy of the decision as early as June 9,
Computation wise, the period to file a Motion for Reconsideration expired on June 24. The Mo
Reconsideration, in turn, was received by the Court of Appeals already on July 4, necessarily,
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
filed before this Court a motion for extension of time to file the present petition for certiorari under Rule 45. The Court
motion for extension of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15)
counted from the receipt of the resolution of the Court of Appeals within which to submit the petition. The due date fel
1996. The petition was filed on 9 May 1996, well within the extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the following grounds:
I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIER
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 petitio
to the motion for reconsideration filed by petitioners with the Court of Appeals. In their
Comment,   private respondents contend that the petition should not be given due course since the motion for recons
12

the petitioners on the decision of the Court of Appeals was validly dismissed by the appellate court for having been fil
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 attrib
the fact that the decision of the Court of Appeals was not sent to then counsel on record of petitioners, the Coronel La
fact, a copy of the decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9
wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petit
Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision o
counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsi
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 giv
With a few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present cas
copy of the decision of the appellate court was not sent to the counsel on record of petitioner, there can be no sufficie
speak of. Hence, the delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover
Court of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution
25 July 1995, and denied the motion for reconsideration of petitioner, we believed that the receipt of the former shoul
considered in determining the timeliness of the filing of the present petition. Based on this, the petition before us was
on time.
After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical prese
the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa loquitur to the instant cas
Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself." The phrase "re
loquitur'' is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances,
an inference or raise a presumption of negligence, or make out a plaintiff's prima facie case, and present a question
defendant to meet with an explanation.   Where the thing which caused the injury complained of is shown to be unde
13

management of the defendant or his servants and the accident is such as in ordinary course of things does not happe
who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation b
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 e
the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who c
instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligenc
grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowle
negligence may be deduced from the mere occurrence of the accident itself.   Hence, res ipsa loquitur is applied in c
16

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 c
independent or separate ground of liability.   Instead, it is considered as merely evidentiary or in the nature of a proce
17

rule.   It is regarded as a mode of proof, or a mere procedural of convenience since it furnishes a substitute for, and r
18

plaintiff of, the burden of producing specific proof of negligence.   In other words, mere invocation and application of t
19

does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof, permit
plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine,
inference or presumption of negligence, and to thereby place on the defendant the burden of going forward with the p
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 s
negligence;
2. It is caused by an instrumentality within the exclusive control of the defenda
defendants; and
3. The possibility of contributing conduct which would make the plaintiff respon
eliminated. 
21

In the above requisites, the fundamental element is the "control of instrumentality" which caused the damage.   Such22

control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in
proving injury or damage, must show a situation where it is applicable, and must establish that the essential elements
doctrine were present in a particular incident.  23

Medical malpractice   cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied w
24

circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence a
of that harm.   The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a
25

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
act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by t
the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence.   T 27

that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of me
science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone fa
the facts.   Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a p
28

been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements a
physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be g
expert witnesses.   Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician
29

upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common
can determine the proper standard of care.   Where common knowledge and experience teach that a resulting injury
30

have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to a
application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only
occurred but how and why it occurred.   When the doctrine is appropriate, all that the patient must do is prove a nexu
31

the particular act or omission complained of and the injury sustained while under the custody and management of the
without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allow
because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury
him.
Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in th
the patient after an operation,   injuries sustained on a healthy part of the body which was not under, or in the area, o
32

treatment,   removal of the wrong part of the body when another part was intended,   knocking out a tooth while a pa
33 34

was under anesthetic for the removal of his tonsils,   and loss of an eye while the patient plaintiff was under the influe
35

anesthetic, during or following an operation for appendicitis,   among others.

36

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automati
to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not
ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cauti
applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases w
layman is able to say, as a matter of common knowledge and observation, that the consequences of professional car
as such as would ordinarily have followed if due care had been
exercised.   A distinction must be made between the failure to secure results, and the occurrence of something more
37

and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that parti
practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physicia
surgeon which involves the merits of a diagnosis or of a scientific treatment.   The physician or surgeon is not require
38

to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the
result.   Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an
39

treatment was not accomplished.   The real question, therefore, is whether or not in the process of the operation any
40

extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scop
customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the a
as the negligent cause or causes of the untoward consequence.   If there was such extraneous interventions, the doc
41

ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he
We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage s
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,   where the Kansas Supreme Court in applying the
43

loquitur stated:
The plaintiff herein submitted himself for a mastoid operation and delivered his person over to
 custody and control of his physician who had complete and exclusive control over him, but the
was never performed. At the time of submission he was neurologically sound and physically fi
and body, but he suffered irreparable damage and injury rendering him decerebrate and totall
incapacitated. The injury was one which does not ordinarily occur in the process of a mastoid
in the absence of negligence in the administration of an anesthetic, and in the use and employ
endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered decerebra
consequence of administering such anesthesia in the absence of negligence. Upon these fact
these circumstances a layman would be able to say, as a matter of common knowledge and o
that the consequences of professional treatment were not as such as would ordinarily have fo
due care had been exercised.
Here the plaintiff could not have been guilty of contributory negligence because he was under
influence of anesthetics and unconscious, and the circumstances are such that the true expla
event is more accessible to the defendants than to the plaintiff for they had the exclusive cont
instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of a
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 su
herself for cholecystectomy and expected a routine general surgery to be performed on her gall bladder. On that fate
delivered her person over to the care, custody and control of private respondents who exercised complete and exclus
over her. At the time of submission, Erlinda was neurologically sound and, except for a few minor discomforts, was lik
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
room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury w
not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not in the absence of n
of someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a person being put und
anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper procedure w
followed. Furthermore, the instruments used in the administration of anesthesia, including the endotracheal tube, wer
the exclusive control of private respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda could not
guilty of contributory negligence because she was under the influence of anesthetics which rendered her unconsciou
Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is u
and under the immediate and exclusive control of the physicians, we hold that a practical administration of justice dic
application of res ipsa loquitur. Upon these facts and under these circumstances the Court would be able to say, as a
common knowledge and observation, if negligence attended the management and care of the patient. Moreover, the
the physicians and the hospital in this case is not predicated upon an alleged failure to secure the desired results of a
nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed o
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 ap
any and all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each c
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, th
comes to the issue of whether the Court of Appeals erred in finding that private respondents were not negligent in the
Erlinda during the anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was the
cause of Erlinda's comatose condition. Corollary thereto, we shall also determine if the Court of Appeals erred in relyi
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
and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that she was ca
enough to admit that she experienced some difficulty in the endotracheal intubation   of the patient and thus, cannot
45

be covering her negligence with falsehood. The appellate court likewise opined that private respondents were able to
the brain damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic rea
patient to the drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert witness, D
On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz offered in favor of petitioners th
cause of the brain injury was traceable to the wrongful insertion of the tube since the latter, being a nurse, was allege
knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict in favor of responden
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 pit
condition.
In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the pathogenesis of
but also in providing the Court the legal nexus upon which liability is based. As will be shown hereinafter, private resp
own testimonies which are reflected in the transcript of stenographic notes are replete of signposts indicative of their
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 th
respondent Dra. Gutierrez failed to properly intubate the patient. This fact was attested to by Prof. Herminda Cruz, De
Capitol Medical Center School of Nursing and petitioner's sister-in-law, who was in the operating room right beside th
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 Dr
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 l
the patient and all of a sudden heard some remarks coming from Dra. Perfecta
herself. She was saying "Ang hirap ma-intubate nito, mali yata ang pagkakapa
lumalaki ang tiyan.
x x x           x x x          x x x
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 pe
patient?
A: I notice (sic) some bluish discoloration on the nailbeds of the left hand wher
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. Calde
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'
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 p
A: As far as I know, when a patient is in that position, there is a decrease of bl
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 taug
of nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses d
cannot, intubate. Even on the assumption that she is fully capable of determining whether or n
is properly intubated, witness Herminda Cruz, admittedly, did not peep into the throat of the pa
July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated the pat
she conducted any type of examination to check if the endotracheal tube was in its proper pla
determine the condition of the heart, lungs, and other organs. Thus, witness Cruz's categorica
that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra
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 p
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, s
well testify upon matters on which she is capable of observing such as, the statements and acts of the physician and
external appearances, and manifest conditions which are observable by any one.   This is precisely allowed under th
48

of res ipsa loquitur where the testimony of expert witnesses is not required. It is the accepted rule that expert testimon
necessary for the proof of negligence in non-technical matters or those of which an ordinary person may be expected
knowledge, or where the lack of skill or want of care is so obvious as to render expert testimony unnecessary.   We t 49

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 observ
believe, does not require a medical degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and scholarship
appointment as Dean of the Capitol Medical Center School at Nursing, was fully capable of determining whether or n
intubation was a success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nur
clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; an
Dean of the Capitol Medical Center School of Nursing.   Reviewing witness Cruz' statements, we find that the same w
50

delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would have b
to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to demonstrate through
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
inserting the tube into Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were intubating at your first attem
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
insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from the nor
anatomy of a person)   making it harder to locate and, since Erlinda is obese and has a short neck and protruding tee
52

intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced no evidence demons
they proceeded to make a thorough assessment of Erlinda's airway, prior to the induction of anesthesia, even if this w
postponing the procedure. From their testimonies, it appears that the observation was made only as an afterthought,
of defense.
The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen th
of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins when the anesthesiologist re
patient's medical records and visits with the patient, traditionally, the day before elective surgery.   It includes taking t
53

medical history, review of current drug therapy, physical examination and interpretation of laboratory data.   The phys
54

examination performed by the anesthesiologist is directed primarily toward the central nervous system, cardiovascula
lungs and upper airway.   A thorough analysis of the patient's airway normally involves investigating the following: ce
55

mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth, ability to visualize uvula a
thyromental distance.   Thus, physical characteristics of the patient's upper airway that could make tracheal intubatio
56

should be studied.   Where the need arises, as when initial assessment indicates possible problems (such as the alle
57

neck and protruding teeth of Erlinda) a thorough examination of the patient's airway would go a long way towards dec
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 operati
17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her. U
of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She wa
not properly informed of the possible difficulties she would face during the administration of anesthesia to Erlinda. Re
Dra. Gutierrez' act of seeing her patient for the first time only an hour before the scheduled operative procedure was,
an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in
with human lives lie at the core of the physician's centuries-old Hippocratic Oath. Her failure to follow this medical pro
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 igno
clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried to muddle the difference b
elective surgery and an emergency surgery just so her failure to perform the required pre-operative evaluation would
unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the patient
before so you can introduce yourself to establish good doctor-patient relations
the trust and confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative procedure o
anesthesiologist and in my case, with elective cases and normal cardio-pulmo
clearance like that, I usually don't do it except on emergency and on cases tha
abnormalities (sic). 58
However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the fastidio
demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few minutes before s
all. Elective procedures, on the other hand, are operative procedures that can wait for days, weeks or even months. H
these cases, the anesthesiologist possesses the luxury of time to be at the patient's beside to do a proper interview a
evaluation. There is ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards
purposes of informed consent. Usually, the pre-operative assessment is conducted at least one day before the intend
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 th
evaluation of Erlinda's case prior to the operation and prepare her for anesthesia. However, she never saw the patien
bedside. She herself admitted that she had seen petitioner only in the operating room, and only on the actual date of
cholecystectomy. She negligently failed to take advantage of this important opportunity. As such, her attempt to excu
must fail.
Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient which, in t
to a wrongful intubation, we now determine if the faulty intubation is truly the proximate cause of Erlinda's comatose c
Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlinda's coma was due to
bronchospasm   mediated by her allergic response to the drug, Thiopental Sodium, introduced into her system. Towa
59

end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and Diplomate of the Philippine Spe
of Internal Medicine, who advanced private respondents' theory that the oxygen deprivation which led to anoxic
encephalopathy,   was due to an unpredictable drug reaction to the short-acting barbiturate. We find the theory of pri
60

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 c
anesthesia practice and procedure and their complications. Dr. Jamora is likewise not an allergologist and could not t
properly advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist and, as such,
have been capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of the suppose
Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in the anesthetic prac
Pentothal administration is further supported by his own admission that he formulated his opinions on the drug not fro
practical experience gained by a specialist or expert in the administration and use of Sodium Pentothal on patients, b
reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to use
as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to intubate
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
from books and not by your own personal application of the medicine pentotha
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my appendectomy.
Q: And because they have used it on you and on account of your own persona
experience you feel that you can testify on pentothal here with medical authori
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, int
medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of neurology. W
admittedly, many bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr. J
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 h
admitted that he could not testify about the drug with medical authority, it is clear that the appellate court erred in givin
Dr. Jamora's testimony as an expert in the administration of Thiopental Sodium.
The provision in the rules of evidence   regarding expert witnesses states:
62

Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter requiring special k
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 wh
she is to testify, either by the study of recognized authorities on the subject or by practical experience.   Clearly, Dr. J
63

not qualify as an expert witness based on the above standard since he lacks the necessary knowledge, skill, and train
field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong field, private responden
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 a
mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing — some of the m
common accompanying signs of an allergic reaction — appears on record. No laboratory data were ever presented to
In any case, private respondents themselves admit that Thiopental induced, allergic-mediated bronchospasm happen
rarely. If courts were to accept private respondents' hypothesis without supporting medical proof, and against the wei
available evidence, then every anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory v
asserted by private respondents was a mere afterthought. Such an explanation was advanced in order to advanced i
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 wa
proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient inter
cause, produces injury, and without which the result would not have occurred.   An injury or damage is proximately c
64

act or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantia
bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a r
probable consequence of the act or omission.   It is the dominant, moving or producing cause.
65

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate cause w
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 likewis
by witness Cruz when she heard respondent Dra. Gutierrez remarked, "Ang hirap ma-intubate nito, mali yata ang pag
O lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The developmen
abdominal distention, together with respiratory embarrassment indicates that the endotracheal tube entered the esop
instead of the respiratory tree. In other words, instead of the intended endotracheal intubation what actually took plac
esophageal intubation. During intubation, such distention indicates that air has entered the gastrointestinal tract throu
esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly cause some delay in o
delivery into the lungs as the tube which carries oxygen is in the wrong place. That abdominal distention had been ob
during the first intubation suggests that the length of time utilized in inserting the endotracheal tube (up to the time the
withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of oxygen in her lungs Erlinda
signs of cyanosis.   As stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent only after he notic
66

nailbeds of Erlinda were already blue.   However, private respondents contend that a second intubation was execute
67

and this one was successfully done. We do not think so. No evidence exists on record, beyond private respondents' b
which supports the contention that the second intubation was successful. Assuming that the endotracheal tube finally
way into the proper orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of a successf
intubation. In fact, cyanosis was again observed immediately after the second intubation. Proceeding from this event
it could not be claimed, as private respondents insist, that the second intubation was accomplished. Even granting th
was successfully inserted during the second attempt, it was obviously too late. As aptly explained by the trial court, E
already suffered brain damage as a result of the inadequate oxygenation of her brain for about four to five minutes.  68

The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for on
of deaths and serious injuries associated with anesthesia.   Nevertheless, ninety-eight percent (98%) or the vast maj
69

difficult intubations may be anticipated by performing a thorough evaluation of the patient's airway prior to the operati
stated beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative protocol which could have pr
this unfortunate incident. Had appropriate diligence and reasonable care been used in the pre-operative evaluation, r
physician could have been much more prepared to meet the contingency brought about by the perceived anatomic va
the patient's neck and oral area, defects which would have been easily overcome by a prior knowledge of those varia
together with a change in technique.   In other words, an experienced anesthesiologist, adequately alerted by a thoro
71

operative evaluation, would have had little difficulty going around the short neck and protruding teeth.   Having failed
72

common medical standards in pre-operative management and intubation, respondent Dra. Gutierrez' negligence resu
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-cal
of the ship,"   it is the surgeon's responsibility to see to it that those under him perform their task in the proper manne
73

Respondent Dr. Hosaka's negligence can be found in his failure to exercise the proper authority (as the "captain" of th
team) in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record
show that respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it
escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as E
cholecystectomy, and was in fact over three hours late for the latter's operation. Because of this, he had little or no tim
with his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professional dutie
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 hospit
up specialist staff with attending and visiting "consultants,"   who are allegedly not hospital employees, presents prob
74

apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent
In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their
the hospital premises. Doctors who apply for "consultant" slots, visiting or attending, are required to submit proof of c
residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate),
fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital ad
or by a review committee set up by the hospital who either accept or reject the application.   This is particularly true w
75

respondent hospital.
After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-path
conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and
other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privileg
admitting patients into the hospital. In addition to these, the physician's performance as a specialist is generally evalu
peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns a
residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards accep
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.
"consultants" are not, technically employees, a point which respondent hospital asserts in denying all responsibility fo
patient's condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallm
employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationsh
exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of alloca
responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and
attending and visiting physicians. This being the case, the question now arises as to whether or not respondent hosp
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
Code which considers a person accountable not only for his own acts but also for those of others based on the forme
responsibility under a relationship of patria potestas.   Such responsibility ceases when the persons or entity concern
77

that they have observed the diligence of a good father of the family to prevent damage.   In other words, while the bu
78

proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, gu
teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damag
In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, f
adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of th
failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In neglectin
such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last para
Article 2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for
condition.
Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of the wi
the private respondents. Indeed, as shown by the above discussions, private respondents were unable to rebut the p
of negligence. Upon these disquisitions we hold that private respondents are solidarily liable for damages under Artic
the Civil Code.
We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos (shou
P616,000.00) in compensatory damages to the plaintiff, "subject to its being updated" covering the period from 15 No
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
to cover the actual costs of home-based care for a comatose individual. The calculated amount was not even arrived
looking at the actual cost of proper hospice care for the patient. What it reflected were the actual expenses incurred a
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
chronically ill for the purpose of providing a proper milieu adequate to meet minimum standards of care. In the instant
instance, Erlinda has to be constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Feedin
by nasogastric tube. Food preparation should be normally made by a dietitian to provide her with the correct daily cal
requirements and vitamin supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to
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 lea
correct minimum cost of proper care, not the cost of the care the family is usually compelled to undertake at home to
bankruptcy. However, the provisions of the Civil Code on actual or compensatory damages present us with some diff
Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has
proved. The Civil Code provides:
Art. 2199. — Except as provided by law or by stipulation, one is entitled to an adequate comp
only for such pecuniary loss suffered by him as he has duly proved. Such compensation is ref
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 provis
to take into account those situations, as in this case, where the resulting injury might be continuing and possible futur
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
caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one wh
meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be made with certainty.  80

words, temperate damages can and should be awarded on top of actual or compensatory damages in instances whe
is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actua
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
cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damage
awarded — temperate damages are appropriate. The amount given as temperate damages, though to a certain exten
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 re
that condition for over a decade. Having premised our award for compensatory damages on the amount provided by
at the onset of litigation, it would be now much more in step with the interests of justice if the value awarded for tempe
damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in
They should not be compelled by dire circumstances to provide substandard care at home without the aid of professi
anything less would be grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate dama
therefore be reasonable.  81

In Valenzuela vs. Court of Appeals,   this Court was confronted with a situation where the injury suffered by the plaint
82

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
extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever b
of the full ambulatory functions of her left extremity, even with the use of state of the art prosth
technology. Well beyond the period of hospitalization (which was paid for by Li), she will be re
undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the proc
healing.
These adjustments entail costs, prosthetic replacements and months of physical and occupati
rehabilitation and therapy. During the lifetime, the prosthetic devise will have to be replaced an
readjusted to changes in the size of her lower limb effected by the biological changes of middl
menopause and aging. Assuming she reaches menopause, for example, the prosthetic will ha
 adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium le
observed in the bones of all post-menopausal women. In other words, the damage done to he
only be permanent and lasting, it would also be permanently changing and adjusting to the ph
changes which her body would normally undergo through the years. The replacements, chang
adjustments will require corresponding adjustive physical and occupational therapy. All of thes
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 o
restoration of the motor functions of the lower limb. The sensory functions are forever lost. Th
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 th
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 ov
years now. The burden of care has so far been heroically shouldered by her husband and children, who, in the interv
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 q
Even the temperate damages herein awarded would be inadequate if petitioner's condition remains unchanged for th
years.
We recognized, in Valenzuela that a discussion of the victim's actual injury would not even scratch the surface of the
moral damage because it would be highly speculative to estimate the amount of emotional and moral pain, psycholog
damage and injury suffered by the victim or those actually affected by the victim's condition.   The husband and the c
84

petitioners in this case, will have to live with the day to day uncertainty of the patient's illness, knowing any hope of re
close to nil. They have fashioned their daily lives around the nursing care of petitioner, altering their long term goals t
account their life with a comatose patient. They, not the respondents, are charged with the moral responsibility of the
victim. The family's moral injury and suffering in this case is clearly a real one. For the foregoing reasons, an award o
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
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
rarely set out to intentionally cause injury or death to their patients. However, intent is immaterial in negligence cases
where negligence exists and is proven, the same automatically gives the injured a right to reparation for the damage
Established medical procedures and practices, though in constant flux are devised for the purpose of preventing com
physician's experience with his patients would sometimes tempt him to deviate from established community practices
may end a distinguished career using unorthodox methods without incident. However, when failure to follow establish
procedure results in the evil precisely sought to be averted by observance of the procedure and a nexus is made betw
deviation and the injury or damage, the physician would necessarily be called to account for it. In the case at bar, the
observe pre-operative assessment protocol which would have influenced the intubation in a salutary way was fatal to
respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award i
petitioners, and solidarily against private respondents the following: 1) P1,352,000.00 as actual damages computed a
date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramo
miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.0
exemplary damages and attorney's fees; and, 5) the costs of the suit.
SO ORDERED.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.
Footnotes
1 In the United States alone, a great number of people die every year as a result of medical mishaps.
December 1999 issue of TIME MAGAZINE featured an article on medical negligence entitled "Doctors
Mistakes" which is quoted in part: "It is hardly news that medical professionals make mistakes — even
deadly mistakes. What is shocking is how often it happens. Depending on which statistics you believe
number of American killed by medical screw-ups is somewhere between 44,000 and 98,000 every ye
eighth leading cause of death even by the more conservative figure, ahead of car crashes, breast can
AIDS. More astonishing than the huge numbers themselves, though, is the fact that public health offic
known about the problem for years and hadn't made a concerted effort to do something about it."
2 Cholecystectomy is the surgical excision of the gall bladder.
3 CA Rollo, pp. 129-140.
4 Records, pp. 270-279.
5 Id. at 270-275.
6 Docketed as Civil Case No. Q-46885.
7 Records, pp. 276-278.
8 CA Rollo, p. 166.
9 Id. at 145.
10 Id. at 195.
11 Rollo, p. 19.
12 Id. at 91-98.
13 57B Am Jur 2d, 493 (1989).
14 Africa, et al vs. Caltex (Phil.), Inc., et al, 16 SCRA 449, 454 (1966).
15 57B Am Jur 2d, supra note 13 at 499.
16 Ibid.
17 Id. at 502.
18 Ibid.
19 Id.
20 Id. at 503.
21 Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union Gas System, 182 Kan. 686, 32
Lamb v. Hartford Accident and Indemnity Co., Primm v. Kansas Power & Light Co., 173 Kan. 443, 249
22 St. John's Hospital and School of Nursing vs. Chapman, 434 P.2d 160, 166 (1967).
23 57B Am Jur 2d, supra note 13, at 513.
24 It is the type of claim which a victim has available to him or her to redress a wrong committed by a
professional which has caused bodily harm. (Garcia-Rueda vs. Pascasio, 278 SCRA 769, 788 [1997])
25 Voss vs. Bridwell, supra note 21.
26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).
27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).
28 Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs. Foncannon, 127 Kan. 573, 274 P.237.
29 Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95 Kan. 802, 149 P. 422, 423.
30 SOLIS, supra note 27, at 239.
31 Voss vs. Bridwell, supra note 21 at 970-971.
32 Armstrong vs. Wallace, 47 P. 2d 740 (1935).
33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938).
34 Griffin vs. Norman, 192 NYS 322 (1922).
35 Brown vs. Shortilledge, 277 P. 134 (1929).
36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937).
37 Voss vs. Bridwell, supra note 21, at 969.
38 Id. at 968.
39 Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).
40 Voss vs. Bridwell, supra note 21, at 968.
41 Sanders vs. Smith, 27 So.2d 889, 893 (1946).
42 Ibid.
43 Voss vs. Bridwell, supra note 21.
44 Id. at 971.
45 It is the method of intubating a patient through the oral cavity. Under this procedure, after the patie
preoxygenated and paralyzed and is no longer breathing on his own, the anesthetist inserts an instrum
a laryngoscope into the patient's oral pharynx. The patient's neck is hyperextended, that is, bent back
possible so that the anesthetist can see or "visualize" the patient's epiglottis and vocal cords. The ane
then thread the endotracheal tube between the patient's vocal cords into the trachea, and then hook t
the breathing bag and anesthetic machine.
46 TSN, January 13, 1988, pp. 16-20.
47 CA Rollo, pp. 134-135.
48 Stockham vs. Hall, supra note 29.
49 61 Am Jur 2d, 513 (1989).
50 TSN, January 13, 1988, p. 3.
51 TSN, November 15, 1990, p. 11.
52 TSN, October 9, 1990, p. 13.
53 STOELTING and MILLER, BASICS OF ANESTHESIA, 103 (1994).
54 Ibid.
55 Id. at 105 (Emphasis supplied).
56 id. at 106.
57 Id.
58 TSN, November 15, 1990, p. 6.
59 Constriction of the air passages of the lung by spasmodic contraction of the bronchial muscles (as
60 Permanent damage to the brain caused by inadequate oxygenation.
61 TSN, February 28, 1991, pp. 10-11.
62 Rule 130, RULES OF COURT.
63 61 Am Jur 2d, supra note 49, 516.
64 BLACK'S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).
65 Ibid.
66 It is a bluish coloration of the skin or mucous membranes caused by lack of oxygen or abnormal he
the blood.
67 TSN, March 27, 1990, p. 22.
68 Records, p. 274.
69 FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).
70 Ibid.
71 Id. The book provides a thorough discussion on the management of difficult intubations.
72 Id.
73 Under this doctrine, the surgeon is likened to a ship captain who must not only be responsible for t
the crew but also of the passengers of the vessel. The head surgeon is made responsible for everythi
wrong within the four corners of the operating room. It enunciates the liability of the surgeon not only f
wrongful acts of those who are under his physical control but also those wherein he has extension of
74 The term "consultant" is loosely used by hospitals to distinguish their attending and visiting physici
residents, who are also physicians. In most hospitals abroad, the term visiting or attending physician,
consultant, is used.
75 These requirements are in fact found in the standard application forms for visiting and attending ph
 respondent hospital.
76 The hospital's control over respondent physicians is all the more significant when one considers th
controls everything which occurs in an operating room, through its nursing supervisors and charge nu
operations can be undertaken without the hospital's direct or indirect consent.
77 VITUG, COMPENDIUM OF CIVIL LAW AND JURISPRUDENCE, 822 (1993).
78 Art. 2180 of the Civil Code provides:
79 Whoever by act or omission causes damage to another, there being fault or negligence, is obliged
the damage done.
80 Art. 2224, CIVIL CODE.
81 Should petitioner remain in the same condition for another ten years, the amount awarded in the fo
temperate damages would in fact, be inadequate.
82 253 SCRA 303 (1996).
83 Id. at 327-328.
84 Id. at 328.
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