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Republic of the Philippines REGIONAL TRIAL COURT First Judicial region Branch 25 Tagudin, Ilocos Sur HEIRS OF EDRALIN

ALUAD, Plaintiffs, -versus HOLY FAMILY HOSPITAL, INC., ET.AL, Defendants. x------------------------------------------x Civil Case No. 0891-T

MEMORANDUM
(For the Plaintiffs)

WITH DUE RESPECT TO THE HONORABLE COURT.

OMES NOW the plaintiffs, by the undersigned counsel, unto the Honorable Court, respectfully submits this Memorandum in the above-

entitled case, and for this purpose states: I.

STATEMENT OF FUNDAMENTAL PRINCIPLES


The quantum of evidence required in civil cases is preponderance of evidence. Sec.1, Rule 133 of the Rules of Court 1 provides, viz: Section 1. Preponderance of evidence, how determined.--- In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies, the court may consider all the facts and circumstances of the case, the witnesses manner of testifying , their intelligence, their means and opportunity of knowing the facts which they are testifying, the nature of the facts which they will testify, the probability or improbability of their testimony, their interest or want of interest, and also their

2 personal credibility so far as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. This is a civil case for DAMAGES for medical negligence brought by the Heirs of EDRALIN ALUAD against defendants Dr. Raymond V. Abaya and Holy Family Hospital. This is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine, that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. [61 Am. Jur., 2d 337, 205 on Physicians, Surgeons, etc., as cited in Leah Alesna Reyes, et. al vs. Sisters of Mercy Hospital, et al., G.R. No. 130547 (October 3, 2000, Lawyers Review, November 30, 2003, p. 24)] 2 In order to successfully litigate such claim, a patient must prove that a physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would have done, or that he or she did something that a reasonably prudent physician or surgeon would not have done, and that the failure of action caused such injury to the patient. [GARCIA-RUEDA VS. PASCASIO, 278 SCRA 769, 798 (1997) 3, underscoring ours for emphasis]. There are thus four elements involved in medical negligence cases, namely: DUTY, BREACH, INJURY, and PROXIMATE CAUSATION. In the present case, there is no doubt that physician-patient relationship existed between defendants Doctor RAYMOND ABAYA and the late EDRALIN ALUAD. Defendant Holy Family Hospital is being impleaded as a co-defendant under Article 2180 of the New Civil Code, 4 to wit: The obligation imposed by Article 2176 is demandable not only for ones own acts or omission, but also for those persons for whom one is responsible. Xxx The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of their branches in which the latter are employed or on occasion of their functions. xxx

3 Defendants upon proof that a patient-doctor relationship existed, were duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances. It is a breach of this duty which constitutes actionable malpractice. (Ibid, pp.778-779) 5
STATEMENT OF FACTS

1. Plaintiffs are the Heirs of EDRALIN ALUAD (hereinafter referred to as EDRALIN) represented by Farida Galaites Aluad, wife of the late Edralin Aluad (Exhibit H) 6 , Pablo and Erlinda Aluad, parents of the late Edralin Aluad. (Exhibit B) 7 2. At the time of his death on November 20, 2000, EDRALIN was 31 years old, married to Franida Galaites Aluad (subsequently Franida), childless, a graduate of Criminology and a police officer by profession assigned at Tagudin, Ilocos Sur, with residential address at

Baringcucurong, Suyo, Ilocos Sur. (TSN, Pablo Aluad, October 25, 2001, pp. 4-6, TSN, Engr. Jose Ping-ay, April 11, 2005, p. 7)8 3. Defendant Dr. Raymond V. Abaya is 47 years old, married, a doctor by profession with specialty in Surgery, he is also the medical director of Holy Family Hospital and a resident of San Jose, Candon City, Ilocos Sur. 4. Defendant Holy Family Hospital, Inc. is a second level hospital, a duly organized corporation, where defendant Dr. Abaya is one of the members of the board of directors and a stockholder and with postal address at National Highway, Calaoa-an, Candon City. (TSN, Dr. Raymond Abaya, August 9, 2005, pp. 4-5) 9 5. Defendant Holy Family Hospital is being impleaded as a necessary party under Article 2180 of the New Civil Code. 6. EDRALIN Aluad was, until the evening of November 2, 2000 a healthy, robust young man and there is no question about his physical fitness, being a member of the Philippine National Police assigned at Tagudin, Ilocos Sur. (TSN, Engr. Jose Ping-ay, April 11, 2005, p. 7) 10

4 7. On November 2, 2000, EDRALIN complained of stomach ache at 8:00 oclock in the evening. He was brought to Holy Family Hospital by Pablo Aluad (EDRALINs father) and Franida Aluad (EDRALINs wife) at about 10:00 oclock in the evening of the same day. 8. Dr. Raymond Abaya was the attending physician and upon being informed that EDRALIN has stomach ache, he examined him by pressing the stomach and pulling his leg three (3) times and he asked EDRALIN if it is painful, EDRALIN answered NO. He then wore gloves and inserted his finger to the anus of EDRALIN and again asked him if it is painful, and he said NO, Sir. Then Dr. Abaya repeatedly pressed EDRALINs stomach, and now he said that he feels pain. 9. Dr. Abaya informed EDRALIN and relatives that it is appendicitis and that he will be operated. 10. Dr. Abaya asked Pablo Aluad to sign a document in connection with the operation to be conducted, but he refused to sign because he had second thoughts because Dr. Abaya examined EDRALIN for a short time but EDRALIN himself signed the document because his stomach is really painful. (TSN, Pablo Aluad, October 25, 2001, pp. 7-10) 11 11. On November 2, 2000 EDRALIN was admitted for the first time at the Holy Family Hospital, Candon City. According to the Medical Records, EDRALIN has been suffering from periumbilical (pain around the navel), anorrhexia (lack of appetite) nausea and vomiting, 16 hours before admission. The pain persisted and few minutes prior to admission the pain localized at the right lower quadrant area of the abdomen. (Exhibit M-2 to M-5, pp. 267-270) 12 12. EDRALIN was admitted by the resident physician on duty of the defendant Holy Family Hospital and was subsequently referred and attended to by defendant Dr. Raymond Abaya who gave EDRALIN a physical examination, took his medical history and ordered laboratory examinations. He noted that at the time of his admission, EDRALIN was

5 a 30 year old male, married, a resident of Baringcucurong, Suyo, Ilocos Sur. EDRALIN was F/D (Fairly Developed), F/N (Fairly Nourished), conscious, not in CP (cardiopulmonary) distress. Most of the findings were normal and the significant findings were found in the abdomen as follows: Flat, soft, (+) direct and rebound tenderness at the right lower quadrant, (+) Psoas sign, Normoactive B. (bowel) sounds. Rectal: (+) anterior tenderness R (right) pararectal area. The admitting Impression (Diagnosis): Acute Abdomen probably Appendicitis. (History and PE, Exhibit M-2 to M-5, pp. 267-270 of the Records of the Case, subsequently ROC 13; TSN, Dr. Raymond Abaya, August 2, 2005, p. 5) 14 13. On the same day, Defendant Dr. Abaya operated on EDRALIN from 11:20PM to 12:35AM, November 3, 2000. 14. No pathological or histopathological examination was done on the appendix that was removed on surgery; surprisingly, nothing was found on the clinical records on this very important matter. 15. Pablo Aluad was able to talk with EDRALIN after his surgery and EDRALIN was asking why the incision on his stomach is very big and they just operated for Appendicitis. 16. Pablo Aluad talked with Dr. Abaya and asked him what is to condition of his son and he answered that it is good and even told him that he made a big incision because he brought out his intestines to see if there are other sickness/injuries. And that he could go home in three (3) days. On November 3, 2000, EDRALIN complained that there was no improvement in his condition and it even became worst. (TSN, Pablo Aluad, October 25, 2001, pp. 11-12) 15 17. On November 5, 2000 or on the 3rd hospital day, patient was discharged by Dr. Abaya with home medications and was advised to come back for follow up after 5 days. (TSN, Dr. Raymond Abaya, August 02, 2005, p. 6-7)
16

18. On November 5, 2000, in the evening after his discharge, EDRALIN complained that he could not again bear the pain of his stomach. (TSN, Pablo Aluad, October 25, 2001, p. 13) 17

6 19. On November 6, 2000, one (1) day after discharge, EDRALIN had slight fever, abdominal pain and vomiting. (TSN, Dr. Juan Komiya, January 16, 2003, p. 5). 18 20. On November 7, 2000, EDRALINs condition worsened, he was pale and very weak. He likewise experienced abdominal distention (bloating sensation) associated with nausea followed by vomiting of previously ingested food. 21. On November 7, 2000 at about midnight, EDRALIN was brought back at the Holy Family Hospital and was subsequently admitted by the resident on duty at the defendant Holy Family Hospital at about 3:30 AM on November 8, 2000, for the second time within a period of five (5) days. 22. At that time, defendant Dr. Abaya was in Manila but the admitting resident physician, Dra. Pascua referred the patient by phone to defendant Dr. Abaya. 23. On the same day at 2:00 oclock PM, Dr. Abaya arrived and examined EDRALIN with the following findings: F/D, F/N, conscious, alert, awake, oriented, not in any form of distress; BP (Blood pressure) - 125/86 PR (pulse rate) 87/min. RR (respiratory rate) 22/min. Temp 37 C Skin: no skin lesion, no jaundice Lungs: clear breath sounds Heart: regular rhythm, no murmur noted Abdomen: slightly distended, soft, no tenderness, operation wound is apparently well, clean & dry, hypoactive bowel sounds Rectal examination: slight tenderness in the anterior Rt. (right) pararectal area. Admitting Impression: Ileus probably 20 postoperative infection, UTI (Urinary Tract Infection), R/O (Rule Out) Postoperative Wound Infection, R/O Intrabdominal Post-operative Infection (Exhibit O-4 to O-5, pp. 235236 ROC; Exhibit 2 19) 24. On admission, he was given IV fluids, Nasogastric tube was inserted, X-ray of the abdomen, laboratory examinations and Chloramphenicol (antibiotics) was started. This mode of treatment is called conservative management. 25. Dr. Abaya continued with the conservative management up to November 10, 2000. 26. Despite these measures, EDRALIN was unrelieved of the symptoms and for the abdominal pain and was given Nubain I/2 ampule, IV administered, on a regular basis. (Exhibit O-8, p. 239 ROC) 20

7 27. There was no improvement in the condition of the patient and as a matter of fact, he was getting worst. He had on and off fever, his abdominal girth (circumference) measured from 37.5 cm on November 9, 2000 to 84.5 cm. on November 10, 2000. EDRALIN was in severe pain. (Exhibit O-16, O-17, pp. 247-248, ROC)21 28. Dr. Abaya still insisted and continued with his conservative management of the patient, EDRALIN, stating that, to wit: Atty. Balbin: Q: And did you make the necessary medications or surgical measures to heal the patient? Dr. Abaya: A: The conservative approach for that time, the management at that time. (sic) I mean conservative in the sense that the patient might improve with conservative management just like decompression, giving antibiotics and fluids, resting the abdomen may become normal so I waited a certain period of time to observe the patient and I gave the patient 12 hours to observe, if he will not improve then a diagnostic tool will come in, sir. Q: After that period past that you have to wait what was the result? A: The next day when I saw the patient 12 hours after, at 6:00 oclock in the afternoon he is beginning to deteriorate and again with fever, the patient again vomited so I placed the patient again on NGT and I decompress the abdomen and still observed for the reaction to the management that I did, sir. Q: After that what else?

A: And on the next day since he has not been improving already, (sic) I told the family that there is a need to do a diagnosis which is, I was thinking at that time a CT scan of the abdomen so that the CT scan for me at that time is also important which will secure as diagnostic tool. There are also services as a management tool. Diagnostic tool in the sense that I will do a CT scan so I can ascertain whether the patient has a beginning infection, localized abscess versus a generalized peritonitis or a generalized abscess so that the CT scan will reveal a localized abscess, then I can do a more conservative approach and I will do a needle aspiration and drain that abscess and that is already the management or if it is generalized peritonitis, then I will do a prompt surgery. I really want to do the procedure to be done at that time, that is what I told the family, sir. (TSN, Dr. Abaya, August 2, 2005, pp. 10-11) 22

8 29. On November 10, 2000, defendant Dr. Abaya made an order on the patients chart that the patient be transferred to St. Lukes Medical Center, Quezon City and to notify the family of the patient for the conduction per ambulance. (Exhibit O-10, p. 241 of the ROC)23 30. Pablo Aluad, noting the precarious condition of his son, talked with defendant Dr. Abaya and Pablo Aluad suggested that he be transferred to another hospital. Dr. Abaya wanted that EDRALIN be transferred to St. Lukes Hospital (Metro Manila) where they have enough facilities to examine him. Pablo Aluad did not agree, especially because EDRALIN told him that he was too weak and cant bear the pain and could no longer bear to travel to St. Lukes Hospital which it is too far. In consultation with the Aluad family, they decided to transfer EDARLIN to a nearer hospital, Lorma Hospital and Medical Center (subsequently LORMA Hospital) in San Fernando City, La Union, instead of bringing EDRALIN all the way to St. Lukes Medical Center in Manila. (TSN, Pablo Aluad, October 25, 2005, pp. 15-16) 24 31. On the same day, EDRALIN was transported by ambulance accompanied by his father who was with EDRALIN attending to him while defendant Dr. Abaya, was seated at the front seat beside the ambulance driver. After, EDRALIN was brought to the emergency room of Lorma, defendant Dr. ABAYA immediately left with the ambulance without proper endorsement of the patient to Lorma Medical Center. 32. Pablo Aluad testified that Dr. Abaya was in a hurry to leave as he said he is going back to Manila. He left riding the ambulance that earlier transported EDRALIN. (TSN, Pablo Aluad, October 19, 2006) 25 33. At Lorma Medical Center, Dr. Juan Komiya, the Hospital Director therein, personally attended to EDRALIN and after his initial assessment told EDRALINs relatives that the patient is in a very serious condition and hopeless and was hesitant to admit him stating because he was very weak and the situation is hopeless. (TSN, Pablo Aluad, October 25, 2005, p. 14) 27 34. Engr. Jose Ping-ay, EDRALINs cousin and Pablo Aluad pleaded and persuaded Dr. Komiya to admit, attend to and help EDRALIN and do the best he can. (TSN Pablo Aluad, October 25, 2005, p.15) 28

9 35. Dr. Komiya reconsidered, admitted EDRALIN under his care and his initial findings were: Abdominal distention and hyperactive bowel sounds and with a history of previous surgery, which correlated to the textbook diagnosis of intestinal obstruction. Fever and jaundice (yellowish discoloration of the skin) means that there is infection going on in the body including the liver. This was confirmed by x-ray of the abdomen which showed some air-fluid portion (level) which showed from a textbook point of view is a sign of obstruction. (TSN, Dr. Juan Komiya, January 16, 2003, pp. 6-7) 29 36. Dr. Komiya testified that the patient needed surgery, however, surgery cannot be done right away because he said that: xxx if you operate without a good preparation, you will see a dead person on the operating table. The patient was anemic, very, very low hemoglobin and upon determining that the patient was blood type A, Dr. Komiya started blood transfusion. (TSN, Dr. Juan Komiya, January 16, 2003, pp. 8-9) 30 On November 17, 2000, Dr. Komiya testified that the patient was now ready for surgery. During surgery, before opening up the patient, the external examination showed that the area around the wound of the previous appendectomy is grayish and some of it blackish in color. This signifies that there is some sort of severe infection going on. There is a tender mass in the right lower part of the abdomen. (Ibid, pp. 11-13) 31 During surgery, upon opening up of the abdomen, Dr. Komiya testified that there is a chocolate color, thick, foul smelling fluid amounting to about two (2) liters inside the abdomen which he removed and cleaned by suction. There he came to find out that the small intestines, particularly the proximal portion of the ileum is gangrenous and perforated, the middle ileum is gangrenous, adherent to one another with tremendous adhesions and the blackish tissue in the inner lining of the abdominal wall called the peritoneum, up to the muscles and the fascia which corresponds externally to the right lower quadrant where corresponding to the area where the previous surgery was done which is transmitted to the area up to the point of the skin where there was the wound from the previous operation. (Ibid, pp. 13-16) 32 37. Post-operatively, the patient did not improve, fever and jaundice persisted despite massive antibiotics and multi-technical apparatus support and treatments, the patient deteriorated with multi-organ failure. 38. On November 20, 2000, 3 days after the second surgery, the patient died. The Death Certificate stated as the cause of death:

10 Septicemia with Hepato-renal Failure secondary to Massive Peritonitis. (Exhibit A and series) 33 40. During the whole period of his confinement, EDRALIN incurred hospital bills amounting to P24, 568.00 on his first admission, dated November 5, 2000 (Exhibit M28, p. 293, ROC) 34; P10, 743.00 on his second admission, dated November 10, 2000 (Exhibit M-29, found on p. 294, ROC) 35, P102, 678.00 (Exhibit E, found on p. 12, ROC) 36, Funeral expenses in the total amount of P140,000.00, broken down as follows: P100,000 expenses covering the wake and P40,000.00 for funeral services and burial dated November 27, 2000. (TSN, Pablo Aluad, October 25, 2001, pp. 15-17) 37 41. After the untimely death of EDRALIN Aluad, on the testimony of Pablo Aluad, that because of the negligence of the Holy Family Hospital and Dr. Raymond Abaya he experienced hurt feelings and during his testimony on October 19, 2006, he broke down in tears on reliving his sons ordeal before his death. 42. In litigating this case, the Plaintiffs paid for Attorneys fees in the amount of P100,000.00 as Attorneys acceptance fee and P5,000.00 per hearing. (TSN, Pablo Aluad, October 25, 2001, p. 17) 38

STATEMENT OF THE CASE

1. Thus, on April 5, 2001, Plaintiffs filed a civil case for Damages with the Regional Trial Court, First Judicial Region, Branch 25, Tagudin, Ilocos Sur, against herein defendants Dr. Ramond V. Abaya and Holy Family Hospital alleging negligence in the management and care of EDRALIN ALUAD. 2. On July 24, 2001, pre-trial of the case was conducted wherein the defendants were represented by Atty. Candido Balbin, Jr., later by Atty. Antonio Rebosa who appeared in collaboration with Atty. Balbin, Jr.; 3. Atty. Lauro Gacayan represented the Plaintiffs, later by Atty. Molly Cr. Abiog, entered her appearance as collaborating counsel with Atty. Lauro Gacayan.

11 4. The trial on merits started on September 12, 2001 and was terminated on May 8, 2007. 5. The Plaintiffs presented the five (5) witnesses: Pablo Aluad, father of the late EDRALIN Aluad; Dr. Ronaldo Mendez, NBI medico-legal officer, who conducted the autopsy on the late EDRALIN Aluad; Dr. Cesar Bisquera, NBI Medico-legal Officer who conducted the histopathological examination of certain specimen taken by Dr. Mendez during autopsy; Dr. Juan Komiya, Medical Director, Surgeon of Lorma Medical Center, who conducted the second surgery on deceased EDRALIN Aluad and was presented as an expert witness; Engr. Jose Ping-ay, cousin of the deceased EDRALIN Aluad; Farida Aluad, wife of EDRALIN was notified several times but failed to appear during said hearing indicating as per Sheriffs return that she is not interested to pursue the case. Take note, however, that since the late Edralin and Farida had no child out of their marriage, the parents of Edralin are co-heirs of the surviving house on a 50-50 basis under Article 997 of the New Civil Code of the Philippines. As such, they could continue prosecuting this case even in the absence of the surviving spouse ; (Exhibit H-1) 39 6. The defendants presented Two (2) witnesses: Dr. Raymond V. Abaya, defendant in this case and Dr. Bu Castro, who is also a lawyer, and who was presented as an expert witness. 7. On Rebuttal, the Plaintiffs presented Pablo Aluad. Likewise, Plaintiffs wanted to present the Records Officer of Holy Family Hospital, subpoena and subpoena duces tecum were issued by this Honorable Court to bring to this Court the following: A. Operating Room Logbook; B. Operating Room Technique; C. other Clinical Records of patient EDRALIN Aluad and to testify thereat but failed to appear on three (3) scheduled settings despite receipt of notice. Surprisingly, Atty. Balbin manifested to the Honorable Court that the Records of EDRALIN ALUAD cannot be located by defendant Holy Family Hospital and that the Records Officer is

12 no longer connected with Holy Family Hospital, thus the difficulty of finding the records. 8. Upon the suggestion of this Honorable Court, Atty. Molly Abiog, plaintiffs counsel obligated herself to go to the defendant Holy Family Hospital, Candon City and for her to secure copies or entries in the logbook and/or to photocopy the same. 9. Likewise defendants counsel, Atty. Balbin maybe present therein and to coordinate with the Head of said hospital/establishment and/or with the Chairman of the Board or any responsible person of the Holy Family Hospital, Candon City and not to refuse entry and/or taking of photograph and/or photocopy the records sought for whatsoever reason plaintiffs counsel might think favorable for her client, the plaintiffs. (Court Order, March 13, 2007, RTC Branch 25) 40 10. Thus, in obedience to the order of this Court, Plaintiffs counsel in the presence of defendants counsel proceeded to Candon City on April 27, 2007 and surprisingly, the Records were there, ready for inspection. 11. Upon agreement of both counsels the documentary evidences photocopied from the medical records of the late EDRALIN Aluad was offered as rebuttal evidence for the plaintiff sans the presentation of the Records Officer of Defendant Holy Family Hospital. 12. Plaintiffs endeavored to present other doctors as expert witnesses but all refused to testify. While it is apparent that the expert witnesses are going to play an important role in the trial of this medical malpractice case, plaintiffs must find innovative ways of overcoming this problem and maximize its resources with the testimony of at least three (3) doctorwitnesses, two (2) from NBI and one (1) the second surgeon who did corrective surgery. This is the obstacle that has proved difficult but not insurmountable not only in this case but in many, many cases of similar nature.

13 13. Very few physicians are willing to state on the witness stand before a public trial that a fellow physicians professional conduct did not measure up to the standard of his colleagues. Although doctors may complain privately to each other about the incompetence of other doctors, they are extremely reluctant to air the matter publicly. In fact, the Plaintiff was fortunate enough to get the testimony of Dr. Juan Komiya, the second surgeon from LORNA Hospital, obtaining a forthright opinion has proven difficult. This is what we call a conspiracy of silence. 14. As earlier stated, Plaintiffs must find ways in order to overcome this difficulty to obtain adequate medical evidence. Five possibilities present themselves: 1. 2. 3. 4. 5. the application of the doctrine of res ipsa loquitor; the application of common knowledge by the trier of facts; the use of medical textbooks as reference material; the use of the medical records of the patient; the use of defendants testimony.

The Plaintiffs formally offered the following documentary evidences: EXHIBIT NO. A & A-6 B NATURE OF DOCUMENT/EXHIBIT Death Certificate of Edralin Aluad Birth Certificate of decedent EDRALIN PING-AY ALUAD (Found on page 8 of the records of the Case) C Philippine National Police Pay slips of decedent EDRALIN PING-AY ALUAD (found on page 9 of the Records of the Case) D (cancelled) is a xerox copy of Exhibit J. For purpose of presenting the original document authenticated and testified to by Dr. Juan Komiya. We shall be canceling Exhibit D but instead formally offer Exhibit J and series found in pages 112 to 113 of the Records of the case.

J and J-1 to J-6: Clinical Summary, LORMA MEDICAL CENTER, San Fernando, La Union, signed by DR. JUAN KOMIYA.

14 (Found on pages 10-11 and Pages 112-113, of the Records of the Case) E Statement of Account of decedent EDRALIN PING-AY ALUAD from LORMA HOSPITAL and MEDICAL

CENTER dated February 24, 2001. (Found on page 12 of the records of the case) F Special Order 5170 dated November 21, 2000 commanding Dr. Ronaldo B. Mendez to conduct an autopsy on the person of decedent ALUAD. H Certificate of Marriage between EDRALIN ALUAD and Nida Procerfida FRANIDA ALUAD. (Found on page 7 of the Records of the Case). H-1 Return of Process Server DIONISIO M. QUILLAYEN BE MARKED AS Exhibit H-1. ( found in the Records of the case)

Clinical Abstract issued by Dr. Raymond V. Abaya, defendant. As common Exhibit, found in the Records of the case.

K and series Autopsy Report by Dr. Ronaldo B. Mendez, Medico-legal Officer of National Bureau of Investigation. (Found on page 13 of the Records of the Case.) L and series Laboratory Report on Pathology dated November 17, 2000 by CESAR B. BISQUERA, M.D. of the National Bureau of Investigation. (Found on page 14 of the Records of the Case) For its rebuttal evidence, the Plaintiffs formally offered the following documentary exhibits: Exhibit M to M-29-Rebuttal Clinical Records of Edralin Aluad, first admission dated November 2, 2000 as found on the records of the case, pp. 265-294. This document was earlier marked as Exhibit L and series but was not formally offered because it was noted to be incomplete.

15 Exhibit N-Rebuttal denominated as Surgical Protocol ( Operating Room Technique) Exhibits O to O-33-Rebuttal earlier marked as Exhibt K to K-33 found on pp. 231-265 of the Records of the case denominated as Patient Record, of the second admission dated November 8, 2000. Exhibit P and series-Rebuttal Operating Room (OR) Logbook of Holy Family Hospital, cover page and entry re: Patient ALUAD, Edralin.

The defendants formally offered the following documentary evidences: EXHIBIT NO. Exhibit 1 NATURE OF DOCUMENT/EXHIBIT

A WAIVER signed by the relatives of the patient relative to the procedure Appendectomy

Exhibit 2

Clinical Abstract allegedly by Dr. Raymond Abaya, undated, unsigned and not authenticated by Dr. Abaya during his testimony

Exhibit 3

Medical Abstract prepared by Dr. Abaya but appears now with a signature different from what appears on the record and how it was written, one typewritten and the other one is by computer. This was conditionally admitted subject to the presentation of the document itself by the defendant. No document was subsequently submitted by defendants.

The Defendants waived presentation of surrebuttal evidence. IV STATEMENT OF THE ISSUES

A WHETHER OR DEFENDANTS ARE LIABLE MEDICAL NEGLIGENCE CONVERSELY B NOT FOR AND

16 WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO DAMAGES? V DISCUSSIONS AND ARGUMENTS

A WHETHER OR DEFENDANTS ARE LIABLE MEDICAL NEGLIGENCE CONVERSELY B WHETHER OR NOT THE PLAINTIFFS ARE ENTITLED TO DAMAGES? The above issues being interrelated, are hereby discussed jointly in the following. The Defendants are liable for medical negligence and therefore, the Plaintiffs are entitled to damages. 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 fates. (RAMOS ET. AL. VS. COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA AND DRA. PERFECTA GUTIERREZ, G.R. NO. 124354, 1999 DEC 29, 1ST DIVISION)41 In the case at bar, the Honorable Court is called upon to rule whether a surgeon and a hospital should be made liable for the unfortunate and untimely death of the late EDRALIN ALUAD who was at the prime of his life. There are thus four elements involved in medical negligence cases, namely: DUTY, BREACH, INJURY, and PROXIMATE CAUSATION. The element of duty was established by proof of a patient-doctor relationship between EDRALIN and Defendant Dr. Abaya as this fact was unconditionally admitted NOT FOR AND

17 by the latter. (Exhibits M and series, pp. 265-249 42 and O and series, pp. 231-265 of the ROC) 43 Logically, the next step is to establish that defendants conduct did not conform to the applicable standard of care ordinarily employed by the profession generally and under similar circumstances. This is the concept of the locality rule. (Proof of Facts, Malpractice-Locality Rule, Volume 27, pp. 2-3) 44 This is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine, that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions, and in like surrounding circumstances. [61 Am. Jur., 2d 337, 205 on Physicians, Surgeons, etc., as cited in Leah Alesna Reyes, et. al vs. Sisters of Mercy Hospital, et al., G.R. No. 130547 (October 3, 2000, Lawyers Review, November 30, 2003, p. 24)] 45 In the case of Leonila Garcia-Rueda V. Wilfred L. Pacasio, et. al, G.R. No. 118141, September 5, 1997, 47 to wit: xxx this Court stated that in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has the duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physicians conduct in the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in the malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that the expert testimony is usually necessary to support the conclusion as to causation. As earlier stated, we repeat, because there is a need for it: Plaintiffs endeavored to present other doctors as expert witnesses but all refused to testify. While it is apparent that the testimonies of expert witness are going to play an important role in the trial of this medical malpractice case, plaintiffs must find innovative ways of overcoming this problem. And this is the obstacle that has proved difficult but

18 definitely not insurmountable not only in this case but in many, many cases of similar nature. Very few physicians are willing to state on the witness stand before a public trial that a fellow physicians professional conduct did not measure up to the work of his colleagues. Although doctors may complain privately to each other about the incompetence of other doctors, they are extremely reluctant to air the matter publicly. Even if the Plaintiff was fortunate enough to get the testimony of Dr. Juan Komiya, obtaining a forthright opinion has proven difficult. The reason for this difficulty is the incontrovertible fact that physicians, surgeons, nurses, and others in the medical field are generally unwilling to testify against each other. The reluctance has been called the conspiracy of silence. It is an understandable human reaction of individuals who must work daily with one another and is based on fear of loss of employment opportunities, loss of referrals of patients and other matters. However, the nature of a judges work exposes him to much education concerning actual medical practices and for this reason, the strict application of the locality rule and the expert medical witness rule may amount to a denial of justice in many instances. Additionally, judges recognize that as long as the control of expert medical testimony remained with the medical profession, it was unlikely that plaintiffs with legitimate malpractice complaints would be able to present them for trial. As earlier stated, Plaintiffs must find ways in order to overcome this inability to obtain adequate medical evidence. Five possibilities present themselves: 1. the application of the doctrine of res ipsa loquitor 2. the application of common knowledge by the trier of fact; 3. the use of medical textbooks as reference material; 4. the use of the medical records of the patient; 5. the use of defendants testimony. Dr. Abaya testified that, to wit: xxx an intestinal obstruction can be managed conservatively or any aggressive approach depending upon the signs and symptoms of intestinal obstruction that is partial as 70-80% that will be managed conservatively because they respond well to conservative management with no surgery but once we have a complete obstruction then that necessitates surgery as the saying goes: do not

19 let the sun shine on the intestinal obstruction that is complete. (TSN, Dr. Abaya, August 09, 2005, p. 10) 48 Contrary to what he stated above, defendant Dr. Abaya let the sun shine three (3) times on EDRALIN, and refused to make up his mind about the textbook signs and symptoms, the available laboratory results, x-ray and IVP examinations done at his disposal at Holy Family Hospital, that EDRALIN has INTEESTINAL OBSTRUCTION, wherein an immediate surgical intervention is a must, without wasting time waiting for improvement in a conservative management that has proven futile or worst suggesting the transfer of the patient to St. Lukes Hospital in Metro Manila for a CT Scan when EDRALIN was already in a very serious condition, and where death in transit is a certainty. The x-ray results dated November 8, 2000 reads: (Exhibit O-29, p. 260 ROC)
49

, to wit: IMPRESSION: -CONSIDER PROXIMAL BOWEL LOOP OBSTRUCTION/ -FOLLOW UP X-RAY AFTER 24 HOURS IS SUGGESTED The x-ray results points to proximal bowel (intestinal) obstruction as early as

November 8, 2000, the first day of the second admission. The problem is that at the onset and even up to the time EDRALIN was transferred to LORMA Hospital, Dr. Abaya was insistent that EDRALINs problem is because of UTI (Urinary Tract Infection) which is causing ileus and therefore conservative management is the treatment of choice---which turned out to be a very grave mistake! ATTY. ABIOG: Q: Mr. Witness being a physician yourself, and being a surgeon, when you operated a patient which you did in this case and the patient came back to you as in this case, Isnt it logical to think that the infection would be coming from the surgery and not from any other source? DR. ABAYA: A: Intra abdominal infection, it may not come from the surgery but it may come from another disease process like for example intestinal infection as a result of probably typhoid fever and if the patient has a history way back on

20 the first admission two weeks prior to the admission of the patient is being obtained and consulted a private physician and in ultrasound and after three weeks the patient have this abdominal pain and usually with typhoid fever and the clinical type there might be Norman and again on the third week it will resent as abdominal distention, fever and vomiting. Q: Did you do any blood test to eliminate that thinking of yours that the patient is suffering from typhoid fever? A: There was no blood test but CBC was done to the patient because initially I was think- ing of a UTI, maam. Q: You said you were thinking of a UTI? A doctor of your stature Mr. Witness logically shouldnt you think first of the invasive procedure that was done in the previous surgery? A: Yes, maam. Q: Is that not correct and the conservative management you have done since the patient was admitted on November 8, 2000 up to when you transferred him on November 11, 2000, you think that is sufficient? A: It does not removed (sic) from the consideration that post appendectomy, first you have to do a more conservative approach to the patient than to do a prompt surgery at once. I have to localize where is the source of the infection, maam. Q: You were not able to localize the infection from the time of admission on November 8 up to November 10, is that what you are trying to say? A: Yes, maam. I have to find the focus of the infection, where was the infection going because it may not be related to the post surgery which maybe related from a disease process. Q: You did not see the suppuration (pus) that was found by Dr. Komiya on admission by the patient on the wound itself. In the physical examination of Dr. Komiya there was fever and jaundice already, nausea and vomiting as you have said, should have these localized the infection in the abdomen? A: Yes, maam. Q: Shouldnt you think first and foremost that something happened to the surgery that was initially done by you? A: That was also one consideration that I think the most common cause of infection, maam. Q: Which is UTI?

21

A: Yes, maam because I was confident of the operation that I did plus the fact that I had a laboratory findings undergone 20-25 pus cells on urinalysis. Q: You did not consider that, as a symptom (sign) of a generalized peritonitis or septicemia that the patient is suffering at that time? A: Precisely that is why I want a more diagnostic tool so I can see if there is a peritonitis through a CT scan, maam. (TSN, Dr. Abaya, August 2, 2005, pp.15-17) 50 The blind confidence of Dr. Abaya in his previous surgery of appendectomy, has apparently fazed his objectivity with respect to the management of EDRALIN when he was admitted for the second time. After failing to get positive results in his conservative management, he wants more diagnostic examination, a CT Scan to be done at St. Lukes Hospital in Quezon City, Metro Manila, while the patients condition had already deteriorated and his resistance has plummeted down giving him very little chance to recover, so that even with the corrective surgery done by Dr. Juan Komiya, EDRALIN died. On the other hand, Pablo Aluad, father of EDRALIN, a mere tricycle driver, has perceived the precarious condition of his son and instead wanted him transferred to LORMA Hospital in San Fernando City, La Union under the care of another doctor finding this suggestion of Dr. Abaya to bring EDRALIN to St. Lukes Hospital is ridiculous if not downright stupid. Pablo Aluad, at this point has obviously lost his confidence because of Dr. Abayas obvious incompetence. The failure of Dr. Abaya to use his training as a doctor/surgeon, to take immediate action in an emergency situation cannot by any stretch of imagination, be construed as a mere mistake in judgment. At most, we call this palusot in the vernacular. It was a clear case of inexcusable negligence. What he wants to do at that time is contrary to common human experience under such condition. On the other hand, Dr. Komiya did not need a CT Scan to make a diagnosis and testified that on admission on November 10, 2000, immediately, after examining the patient, to wit: Dr. Komiya:

22 A: My initial impression when I saw this patient was, there is some kind of infection going on inside the abdomen, there is some sort of abdominal distention which gave me an inclination that he is also suffering from intestinal obstruction and because of the presence of fever, I know that this patient is suffering from some sort infection. xxx. The reason why I entertained intestinal obstruction is first, the bowel sounds is hyperactive. The sounds correlate to the textbook description of intestinal obstruction because of the hyperactive sounds of the bowel. Second, the abdomen is distended or bloated. Third, is the presence or the history given to me that he underwent surgery. Atty. Abiog: Q: And you also said that you observed fever and jaundice on the patient, please explain to us what jaundice mean? A: xxx The presence of fever usually is interpreted in (sic) the presence of infection running (sic) lower portion of the body. Now, the jaundice is a sort of change in the color of the skin and the white part of the eye which is the sclera meaning jaundice or yellowish. It means to say that there is sort of infection going on affecting the liver. So, we have this jaundice, and through (sic) enough when all the examinations that we ordered like the upper abdominal x-ray, showed some air fluid portion of the xray which showed from the textbook point of view is a sign of intestinal obstruction. (TSN, Dr. Juan Komiya, January 16, 2003, pp. 6-7, underscoring ours for emphasis) 51 The reliance of Dr. Abaya in his conservative management of EDRALINs problem is misplaced, considering that the patient did not improve with such treatment for more than 24 hours. Common sense dictates that a different approached should have tried under the circumstances. This is proven by his testimony as follows, to wit: Atty. Balbin: Q: And did you make the necessary medications or surgical measures to heal the patient? Dr. Abaya: A: The conservative approach for that time, the management at that time. (sic) I mean conservative in the sense that the patient might improve with conservative management just like decompression, giving antibiotics and fluids, resting the abdomen may become normal so I waited a certain period of time to observe the patient and I gave the patient 12 hours to observe, if he will not improve then a diagnostic tool will come in, sir.

23

Q: After that period past that you have to wait what was the result? A: The next day when I saw the patient 12 hours after, at 6:00 oclock in the afternoon he is beginning to deteriorate and again with fever, the patient again vomited so I placed the patient again on NGT and I decompress the abdomen and still observed for the reaction to the management that I did, sir. Q: After that what else?

A: And on the next day since he has not been improving already, (sic) I told the family that there is a need to do a diagnosis which is, I was thinking at that time a CT scan of the abdomen so that the CT scan for me at that time is also important which will secure as diagnostic tool. There are also services as a management tool. Diagnostic tool in the sense that I will do a CT scan so I can ascertain whether the patient has a beginning infection, localized abscess versus a generalized peritonitis or a generalized abscess so that the CT scan will reveal a localized abscess, then I can do a more conservative approach and I will do a needle aspiration and drain that abscess and that is already the management or if it is generalized peritonitis, then I will do a prompt surgery. I really want to do the procedure to be done at that time, that is what I told the family, sir. (TSN, Dr. Abaya, August 2, 2005, pp. 10-11) 52 Dr. Abaya admitted that from the time of admission on November 8, 2000 up to the time the patient was transferred to Lorma Hospital, he was not able to localize the infection that is why he needed to do a CT Scan. The CT scan is to be done as per his suggestion at St. Lukes Hospital in Metro Manila which is almost 400 kilometers. Dr. Komiya testified, to wit: Atty. Abiog: Q: Doctor, you said that on admission, the very apparent findings that you saw on the patient was: one, the grayish discoloration on the operative side (sic, should be site) on the operative wound, two, fever and three, abdominal distention. Alright now, having the background of this, that he had a previous operation 7 days before admission, what was your first impression when he came into your hospital? A: There was an infection secondary to previous surgery. (TSN, Dr. Komiya, November 11, 2004, p. 14) 53

24 To further elucidate that intestinal obstruction is a surgical emergency, we refer to the following medical references: In the Textbook in Surgery, 10th edition, 1972, Davis - Christopher Intestinal Obstruction, p. 880 54 states to wit: Occlusion of intestine by adhesions from previous surgery or inflammation is the leading cause of intestinal obstruction. Adhesion may produce obstruction by kinking or angulation, or by creating bands of tissue that compress the bowel. The most common causes of intestinal obstruction in adults are adhesions, usually resulting from previous surgery, hernias and neoplasms. (Ibid, p. 881) 55 When crampy abdominal pain is succeeded by continuous severe abdominal pain, strangulation with peritonitis should be suspected. Fever suggests the possibility of strangulation. Abdominal tenderness is a characteristic finding in patients with intestinal obstruction, however, localized tenderness, rebound tenderness and guarding suggests peritonitis and the likelihood of strangulation. Acute intestinal obstruction can usually be diagnosed on the basis of history and physical examinations. Any patient having crampy abdominal pain, vomiting, obstipation, abdominal distention, abdominal tenderness or peristaltic rushes should be considered to have intestinal obstruction until that diagnosis can be confidently excluded. (Ibid, p. 885) 56 Radiologic Examination: Upright or lateral decubitus position in patients with mechanical small bowel obstruction usually show multiple gas-filled levels, with distended bowels resembling an inverted U. One radiographic feature of paralytic ileus is that the gaseous distention occurs somewhat uniformly in the stomach, small bowel and colon. Gas-filled levels may be seen in paralytic ileus. (Ibid, p. 885) 57 With few exceptions, the appropriate treatment for intestinal obstruction is surgical relief of the obstruction. (Ibid, p. 886) 58 The mortality from intestinal obstruction with intestinal gangrene is 31%, while in simple mechanical obstruction when operation is done within 24 hours, the mortality rate is 1%. Since there is no reliable way to

25 detect strangulation pre-operatively, operation should be performed as soon as is reasonable. (Ibid, p. 886) 59 This simply means that had defendant Dr. Abaya only used his clinical eye, as expected of any physician treating a patient with an acute abdomen, considering the signs and symptoms of the patient, the x-ray results dated November 8, 2000 all pointing to intestinal obstruction, death should not have resulted on the unfortunate patient, EDRALIN. If he did, as expected of him, early surgery should have been done and the chances that EDRALIN will recover is 99% ! A patient with symptoms of short duration, 24-30 hours, with minimal metabolic disturbance and no preexisting pulmonary, cardiac or renal disease, can be operated upon when the diagnosis is made. (Ibid, p. 886)
60

Operation for intestinal obstruction should generally not be delayed if the bowel is not successfully intubated or decompressed preoperatively. (Ibid, p. 887, underscoring ours for emphasis) 61 Surgery is the only cure/mode of management for intestinal obstruction when conservative management fails to improve the condition of the patient within 24 hours! On the other hand, EDRALIN was under the care of Dr. Abaya for three (3) days on conservative management. While we agree with Dr. Abaya with his management of Paralytic ileus, however, after 24 hours without improvement, he should have reassessed his mode of treatment. Paralytic ileus is treated by nasogastric suction and IV fluid administration. Correction of electrolyte imbalance, especially hypocalemia is particularly important in managing this disorder. Passage of a MillerAbbot tube provides superior intestinal decompression. Most often, ileus develops after an abdominal surgery and is transient lasting only 2-3 days. When ileus persists or occurs without obvious etiology, one should endeavor to rule out mechanical obstruction or intraabdominal sepsis and a laparotomy may be necessary to exclude confidently those factors. Bowel sounds in paralytic ileus are hypoactive or absent, in contrast to hyperactive bowel sounds associated with obstruction. (Ibid, p. 887) 62 To further explain Intestinal Obstruction: HARRISONS PRINCIPLES OF INTERNAL MEDICINE, 7 h ed., 1974 63 , to wit:
T

26

There are two types of Intestinal Obstruction: 1. Mechanical:

Usually requires surgical intervention for its correction. This type is due either to intraluminal obstruction or to mural obstruction due to encroachment by compression of the intestinal wall, as in adhesions, stenosis, hernia, volvulus, intususception, tumors, and atresia. 2. Non-mechanical: 3. Is also referred to as ileus. Which could either be: a. b. adynamic (paralytic) or dynamic (spastic) (Ibid, p. 1483) 64 Treatment: 1. correcting fluid and electrolyte imbalance; 2. alleviating vomiting and distention by intubation and decompression; 3. Control of peritonitis, if present and blood transfusion for shock if present; 4. removal of obstruction and restoration of bowel continuity and function; 5. Hydration: administration of saline solution and KCl is indicated and extra water should be given in the form of 5% glucose. Adequate hydration can be gauged by measuring urinary excretion which should be kept near one liter /day. (Ibid, p. 1484) 65 6. Hematocrit , Na Cl, K, and HCO2 in the serum 2x/day-as a guide to electrolyte therapy and control of acidosis and alkalosis. 7. Decompression is best achieved by intubation with one of the long, weighted intestinal tubes attached to a gentle, continuous suction. However, there is great danger in relying solely on intubation for relieving mechanical obstruction whenever there is any question of strangulation of bowel or when large bowel obstruction occurs in the presence of competent ileocecal valve. Early operative intervention is required in all such cases. (Ibid, p. 1485) 65 In the majority of cases, surgical intervention is necessary to remove the obstructing agent and restore normal function. Many cases of adynamic ileus are cured by decompression alone. However, if the patient does not improve on such conservative measures, operation within 24 hours is indicated to establish an accurate evaluation of the cause of obstruction and to effect a cure. (Ibid, p. 1485) 66

27

When severe distention is not relieved promptly by intubation or when there is x-ray evidence of a closed loop type of obstruction (due to obstruction of both the inlet and outlet of a segment of herniated bowel), surgical intervention is required for immediate decompression by means of enterostomy, colostomy or resection. The complications of appendicitis such as local abscess, peritonitis with ileus and intestinal obstruction require surgical intervention such as drainage or lysis of adhesions, prolonged hospitalization, energetic treatment with GI intubation, antibiotics and careful control of fluids, glucose, and electrolyte balance by parenteral means. (Ibid, p. 1487) 67 Established medical procedures and practices as above outlined are devised for the purpose of preventing complications. When complications arise, there is another set of established procedures and practices. 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 upon to account for it. SURGICAL DECISION MAKING, 2
ND

ED.,

LAWRENCE W. NORTON, M.D.,

ET AL,

1986

discusses through a flow chart the management of Small Bowel Obstruction, LAPAROTOMY( exploratory surgery) is the treatment of choice after Nasogastric Suction, Fluids and Electrolytes, with hourly assessment has failed. (Surgical Decision Making, 2nd ed., Lawrence W. Norton, M.D., et al, 1986, pp. 140-141) 68 Dr. Komiya testified that on admission of EDRALIN at LORMA Hospital, there is a need for immediate surgery but he postponed it because he got the patient when he was already in a very serious condition. Why? Because Dr. Abaya failed to do (negligence by omission) what a prudent doctor should have done on a patient he previously operated on, wasting precious golden time to catch the patients problem within the 24 hour period as mandated by surgical protocol in Acute Abdomen. Dr. Komiya testified as follows, to wit: Question from the COURT: Q: Can you tell more or less, doctor, what was the general physical condition of the patient when he was admitted at your hospital? Dr. Komiya:

28

A: First of all there was vomiting, there was abdominal distention, there was fever, and there was grayish discoloration of the place where the operation was done appendectomy, your Honor. Q: So, in other words, the patient was in serious condition as far as you are concerned at that time? A: Yes, Your Honor. In fact, I want to operate on him upon admission but as I have said, as I mentioned earlier, you have to be exercising good pre-operative operation (sic, should be preparation), good post-op treatment, your Honor. Q: Did you conduct immediately those steps before as you stated? A: Yes, Your Honor, because from our records, it says, we have ordered blood chemistry, x-rays, ECG, Abdominal x-ray, both barium enema and intravenous pyelography because we want to know whether the kidney or the other intestines are infected or involved, your Honor. Q: Was the patient x-rayed upon admission at your hospital? A: Q: Yes, Your Honor. What was your finding?

A: The finding in the chest x-ray was, there is no pneumonia, there is no infection in the lungs, your Honor. Q: When you admitted before this Court that the patient was in serious condition at the time of admission at your hospital why did you not conduct immediately the surgical operation? A: Because, pre-operation, the patient is anemic. You cannot operate when the patient is suffering from anemia. You have to correct first by doing transfusion to the patient. Secondly, you do not know which one is correct, whether the heart or the kidney or other part of the liver is involved or not, so we have to do work-up first, so everything that we come to know working up, preoperatively in this patient because 100% Im sure that this patient will undergo operation but as I have said, we have to prepare the patient, maintain that patient in good condition before operating and then the operation. As I have said, and then the post-operative. So we observed properly the procedure before we operate, but basing on the patient himself, the patient needs actual surgery, your Honor. Xxx (TSN, Dr. Komiya, November 11, 2004, pp.9-10) 69

29 The abnormal post-operative course of EDRALIN after his appendectomy is another matter that should have been a of great concern, which should have alerted Dr. Abaya that something went wrong with the first surgery, but instead, in his attempt to avoid liability, is putting the blame on the patient for allegedly having himself discharged on the third day after his surgery because that day, November 5, 2000 is EDRALINs birthday. Such an explanation was obviously advanced in order to pass-on liability for contributory negligence to EDRALIN. Pablo Aluad testified that after the operation of his son, he talked with Dr. Abaya and asked him what is to condition of his son and he answered that it is good and even told him that he made a big incision because he brought out his intestines to see if there are other sickness/injuries. And that he could go home in three (3) days. On November 3, 2000, EDRALIN complained that there was no improvement in his condition and it even became worst. (TSN, Pablo Aluad, October 25, 2001, pp. 1112)70 On November 5, 2000 or on the 3rd hospital day, patient was discharged by Dr. Abaya with home medications and was advised to come back for follow up after 5 days. (TSN, Dr. Raymond Abaya, August 02, 2005, p. 6-7) 71 Exhibit 1 of the Plaintiff, a common Exhibit found in Exhibit M-1, p. 232, of the ROC 72 shows at the lower portion of this same page, another document denominated as DISCHARGED AGAINST ADVICE, which notably was not signed by the patient or his relatives if it was indeed true, that EDRALIN sought discharge against doctors advice. This is a livid proof that the discharge of EDRALIN on November 5, 2000 was with the approval of Dr. Abaya. It is therefore obvious that Defendant Dr. Abaya cannot blame his patient for his own decision to discharge him or subsequently what happened after his discharge. After all, it is within the medical expertise of Dr. Abaya to decide if the patient is ready for discharge or not. Dr. Ronaldo Mendez, NBI Medico-legal Officer, performed the autopsy on the body of the late EDRALIN and testified as follows: Atty. Abiog: Q: You said that you opened up the body, what are your more significant findings?

30

Dr. Ronaldo Mendez: A: That there was generalized infection of the abdominal cavity and internal organs, Maam Xxx Q: What did you actually see when you opened up the body? A: Xxx Q: When you talk of generalized infection and you saw it with your own eyes, what exactly did you see Doctor, will you please describe to the Honorable Court? A: Q: A: Xxx Q: What do you mean when you say that there was pus formation what does that indicate? A: Xxx Q: Based on your autopsy findings and the medical history that was related to you by the wife of the deceased, do you have an opinion as to the cause of death of the deceased, EDRALIN ALUAD? A: Generalized Peritonitis, Maam. Infection, Maam The formation of pus, Maam. Where did you see this pus formation? The whole abdominal cavity, maam. Generalized infection, Maam.

Q: When you say generalized peritonitis, exactly what do you mean by this in laymans term? A: Inflammation of the lining and the organs of the abdomen plus the internal organs. Q: What could possibly have caused this generalized peritonitis? A: Well, it seems that the deceased underwent surgery, it could have been due to the operation, Maam. Xxx Q: Mr. Witness, you said here that the appendix was missing, stump sutured with signs of infection, you said earlier and you explained that the appendix was missing possibly due to the surgery that was done?

31

A:

Yes, maam.

Q: Could you correlate the missing appendix with your findings with respect to the other organs in the abdominal cavity, could there be a possible relation? A: Since the (sic), If I remember it right, the operation done was appendectomy, since the appendix was missing, and there was a sign of infection, in my opinion, probably, this is the source of infection, Maam. Xxx Q: Could you give an opinion why there should be a repair done on the large intestine? A: If the operation done was only appendectomy and the other operation done was on the large intestine, then there must be something wrong with the large intestine probably gangrene or death of the tissues of the segment of the large intestine Maam, Q: What could have possibly caused the death of the tissue of the portion of the large intestine that could have been resected by surgery? A: Since there was already a repair on the portion of the large intestine that could have been resected by surgery, Maam. Q: by that? A: When you say resected, what do you mean Removed, cut, Maam.

Q: And you said that the the cause , the most probable cause of would be gangrene, considering the factual backdrop of this case that you have autopsied? A: Xxx Q: The cause of death you said is peritonitis, generalized, how do you relate this cause of death of Peritonitis generalized to all the other findings that found, would it correlate with all the findings that you made on autopsy? A: Yes, Maam. (TSN, Dr. Mendez, November 28, 2001, pp. 14-24) 73 The Clinical Summary (Exhibit J and series) wit: Diagnosis:
74

My opinion would be obstruction, Maam.

Ronaldo

by Dr. Juan Komiya stated: to

32 -SEPTECEMIA SECONDARY TO MASSIVE INTRAPERITONEAL PERITONITIS WITH ORGAN FAILURE- LIVER AND KIDNEY -COMPLETE INTESTINAL OBSTRUCTION- SMALL INTESTINE -MASSIVE INTESTINAL ADHESION WITH GANGRENOUS LOOP OF MID-ILEUM AND PROXIMAL ILEM PERFORATION -MASSIVE ABSCESS Operation done: EXPLORATORY LAPAROTOMY: -Intestinal Resection -Closure of Intestinal Perforation -Evacuation of Abscess -Drainage The testimony of Dr. Bu Castro (even assuming without admitting that he is indeed an expert) should not be given credence by this Honorable Court because he was harping on the presence of infection long before the first surgery (Appendectomy) without basis, not borne by the facts of the case. Sadly, Dr. Bu Castro did not even examine all available records particularly EDRALINs Medical Records. His reliance on the Medical Abstract of Dr. Abaya (unsigned for that matter), the Autopsy Reports, which resulted from the autopsy, done after the death of EDRALIN cannot by any measure be used to conclude that there was no negligence involved in this case. The negligence by omission we are trying to prove is that which occurred specifically on the second admission of EDRALIN at Holy Family Hospital. Atty. Rebosa: Q: Mr. Witness, awhile ago during the direct you stated that with the evaluation or you evaluated the transcript of stenographic notes of Dr. Komiya and Dr. Mendez, the autopsy Report of Dr. Mendez and Dr. Bisquera and some other documents and you stated from the record that the cause of death of the patient is not related to any faulty or negligent act of the defendant, thats your opinion. Now, that the medical records of the case was shown to you by the distinguished counsel for the plaintiff, would you still be of the same opinion? Dr. Bu Castro: A: No, I have not gone for the record sir. Q: That is part of the Record if shown to you, would you still be of the same opinion that the defendant doctor was not remiss in his duty as a doctor? A: Because I did not go over the records, if I may be given then.

33 Q: As part of the Record Mr. Witness?

A:, Yes, anyway the pertinent thing as I did examine the clinical abstract, autopsy and histopath report. Q: And part of the medical record?

A: Yes, as far as I was shown. (TSN, Dr. Bu Castro, December 8, 2005, pp. 36-37) 75 He testified on re-cross examination, as follows to wit: Atty. Abiog: Q: Mr. Witness, you said in your opinion there was no negligence involved insofar as the surgery done by Dr. Abaya is concerned? Dr. Bu Castro: A: Q: A: Yes, Maam. But you have not seen the records? Yes, Maam.

Q: And therefore, your opinion is simply based on the (unsigned) medical abstract done by Dr. Abaya, you have not seen the complete Records of the case? If you are confronted with records where the admitting notes, the discharge notes, the operative findings and OR technique in other words are not present in the records, would you think that the records will be a good basis for you to change your opinion? A: Well, I saw the clinical abstract (unsigned by Dr. Abaya, Exhibit 2) which is a summary of the clinical records so, I saw the summary on what events that went on in the first and second surgery and I also went into the transcript. So, I have some knowledge of what transpired in the confinement also, but looking at the records itself, I did not. (Ibid, p. 38) 76 Dr. Bu Castro likewise testified on cross-examination as follows, to wit: Atty. Abiog: Q: You got the diagnosis of Suppurative Appendicitis from the testimony of Dr. Abaya, the defendant , is that correct?

Dr. Bu Castro: Q; Atty. Rebosa: In the abstract which was not signed.

34 Its previously signed. Dr. Bu Castro: No, but I read the unsigned one. Atty. Abiog,: Q: A: Q: No other source? No Maam. Just the abstract of Dr. Abaya?

A: Yes, Maam. (TSN, Dr. Bu Castro, December 8, 2005, pp. 33-34) 77 Dr. Bu Castro made sweeping statements, such as: As far as those datas (sic) were provided to me, I CAN SAY THAT (IF) THERE WAS SOMETHING WRONG WITH THE SURGERY DONE, IT WAS NOT THE FAULT OF THE SURGEON. (Ibid, p. 37) 78 So, whose fault is it when Dr. Abaya is the only surgeon who performed the surgery? Dr. Bu Castro obviously has not exercised his objectivity, neutrality, independence and sincerity in the assessment of this case. Obviously, he was acting as an advocate in favor of Defendant Dr. Abaya, who requested him to be his witness, who is a consultant of St. Lukes Hospital, where Dr. Abaya is also a visiting physician. He could have been the best person to interpret scientific evidence, form a conclusion about it, and provide an opinion about its significance in the context of the case which opinion should be reached independently of interests of litigants. Unfortunately, he miserably failed in this instance. To Dr. Bu Castro, this is a relevant statement for him, and we quote: If the law made you a witness, remain a man of science. You have no victim to avenge, no guilty or innocent person to ruin or save. You must bear within the limits of science. (Paul H. Broussard, Chair of Forensic Medicine, Sorbonne, 1897) 79 While it is true that, physicians are not insurers of life and they rarely set out to intentionally cause injury or death to their patients, they should treat their patients in accordance with the accepted norms of the profession. Otherwise, premium will be given

35 to the negligence of a surgeon who will no longer exercise due care in the performance of his duties to his patients. However, intent is immaterial in negligence cases because where negligence exists and is proven, the same automatically gives the injured party a right for reparation for the damage caused. (ROGELIO RAMOS AND ERLINDA RAMOS, ET AL. VS. COURT OF APPEALS, ET AL., G.R. NO. 124354, 1999, DECEMBER 29, 1ST DIV.) 80 Given the above set of facts, we even seriously doubt that EDRALIN had indeed Acute Suppurative Appendicitis as Defendant Dr. Abaya wants this Honorable Court to believe because: 1. Acute Suppurative Appendicitis did not appear on the Records of the Case except those documents which were tampered and replaced by a new one. The diagnosis of Suppurative Appendicitis was found on the Clinical Abstract, (unsigned) by Dr. Abaya when presented in Court and an earlier Clinical Abstract dated November 05, 2000 also by Dr. Abaya; 2. The OR Protocol/OR Technique was noted as merely inserted in the Records of the Case at a much later date as noted by counsel for the Plaintiffs in their Manifestation/ Formal Offer of Rebuttal Evidence dated May 17, 2007. 3. Dr. Abaya did not report any signs of peritonitis intraoperatively on November 2, 2000 despite the fact that he made a large incision, brought out the intestines to see if there are other sickness/ injuries. (TSN, Pablo Aluad, October 25, 2001, pp. 11-12)
81

. None is found in the Clinical Records

(Exhibit M and series) 82 earlier submitted to this Honorable Court by Dr. Abaya) of the patient and nothing was noted in the OR Logbook. 4. The OR Protocol or the OR technique, for which he perjured himself and made a misrepresentation that it was in the OR logbook where he placed his OR Technique or OR Protocol. The same document was merely inserted to the Clinical Records at a later date because it is not found in the Medical Records earlier submitted by him to this Honorable Court. 5. Dr. Abaya changed the whole document of the Admitting Notes and Discharged Notes in the Clinical Records both for the first and second

36 admissions of EDRALIN as manifested by Plaintiffs counsel in the Formal Offer of Rebuttal Evidence dated May 17, 2007, found in the Records of the Case; Dr. Abaya tampered with the Clinical Records as noted by Counsel for the Plaintiff, to wit: Court: Are you referring to the clinical records? Atty. Abiog: Yes, your Honor the hospital records for the second admission. We are referring to the doctors admitting history and physical examination which looks like a new page and we have here another (page) which is the discharge summary which does not confer with the color of the other pages. Court: Is that a manifestation? Atty. Abiog: Yes, your Honor that is my manifestation. Court: Let that manifestation appear on record. Any counter manifestation panero? Atty. Balbin: Yes, your Honor but we would like also to manifest that this is a set which is shall we say stapled and there is no sign that there was an effort to remove the staples and replace with another. Atty. Abiog: We would like to make a manifestation that as a matter of fact, there are several holes here (referring to the Medical Records) which would indicate that that the staples were removed, as a matter of fact, the staples are brand new and you have here rusted part under the new staple, a rusted part under it , which would indicate that there was an old staple here and a new one was placed. xxx (TSN, Dr. Abaya, August 9, 2005, pp. 17-18) 83 Even medical students and more so medical practitioners know the

importance of the sanctity of the Medical Records because the same has been inculcated in medical schools, to wit:

37 The Clinical Record documents the patients history and physical findings. It shows how clinicians assess the patient, what plans they make on the patients behalf, what actions they take, and how the patient responds to their efforts. An accurate, clear, wellorganized record reflects and facilitates sound clinical thinking. It leads to good communication among the many professionals who participate in caring for the patient, and helps to coordinate their activities. It also serves to document the patients problems and health care for medico-legal purposes. ( Bates, B. A guide to Physical Examination and History taking, 6th ed., c. 1995, p. 649, underscoring ours for emphasis) 84 The bare assertions of defendant Dr. Abaya cannot be substantiated by evidence and should not be given credence by this Honorable Court in the light of the discovery of the CORRUPTION of the Clinical Records of patient EDRALIN which was submitted to this Honorable Court (Exhibit O-4 and O-4, pp. 235-236, ROC, 85 O-30, p. 261, ROC 86; ) by Dr. Abaya himself, which was not only incomplete and but corrupted as well! Can we therefore believe his testimony which is contrary to common human experience? When it was already shown that he lied in a very important aspect of his testimony? Statements made by a witness that are not only in conflict with experience of common life and of the ordinary instincts and promptings of human nature, but are also negatived by surrounding circumstances, may be, and should be, DISBELIEVED. (CHAMPAGNE VS. HAMORY, 198 Mo. 709, 83 SN 92; BURKETT VS. GERTH, (No. App) 153 S.W. 199) A witness is not entitled to credit whose testimony is contrary to the natural course of things, or inconsistent with the common principles by which the conduct of mankind is governed. (PEOPLE VS. DINO, 46 Phil. 395; CLARK VS. PUBLIC SERVICE ELECTRIC CO., 91 A. 8386 N.J. Law, 144) Would it even be credible for any one to make such a claim? Evidence to be worthy of credit, must not only proceed from a credible source, but must, in addition, be credible in itself. And by this is meant that it shall be natural, reasonable and probable as to make it easy to believe. (TUAZON VS. LUZON STEVEDORING, ET AL., G.R. No.L-13541, January, 1961)

38 Again, does this not run "contrary to the natural course of things, or inconsistent with the common principles by which the conduct of mankind is governed" and is also "in conflict with experience of common life and of the ordinary instincts and promptings of human nature?" With that trait of her in mind, can we rely on him? When it is clear that a witness has been guilty of deliberate falsehood under oath as to a material fact in a case, courts of justice "are bound upon principles of law and morality and justice, to apply the maxim falsus uno, falsus in omnibus" said Mr. Justice Story. "What ground of judicial belief can there be left", he continued, "when the party has shown such gross insensibility to the difference between right and wrong, between truth and falsehood"? (MOORE ON FACTS, pp. 12091210) The reason for this is that once a person knowingly and deliberately states a falsehood in one material aspect, he must have done so as to the rest. (PEOPLE VS. DASIG, G.R. No. L-5275, August 25, 1953) Considering the undisputed fact that the Patients Clinical Records are in the possession and control of the Defendants and as admitted by defendant Dr. Abaya that he has access to said records, as he personally brought the said Medical Records to Court and considering further that upon comparison with the original records by plaintiffs counsel in the presence of defendants counsel, again found the OR Protocol inserted therein, these will only lead to the inevitable conclusion that the corruption of the Clinical Records were done intentionally by the defendants in order to advance their case. Defendants were doctoring even the Medical Records of EDRALIN! Res Ipsa Loquitor is a Latin phrase which literally means the thing or the transaction speaks for itself. On the other hand, the Plaintiffs, with the corruption of the records, have no other conclusion but that it was done because there are some very valuable evidence in the records that when taken as is, is presumably against the defendants. The integrity of the Medical Records having been lost because of its corruption, the circumstances are such that the true explanation of the event of the clinical course of

39 the patient and the actual findings during the appendectomy is more accessible to the defendants than to the plaintiffs for they had the exclusive control of the Records. The Records would have been helpful in furnishing this Honorable Court, not only the logical evidence of what was actually operated on, but also the histopathological examination of the Appendix that was removed, and the legal nexus upon which liability for negligence may be based but we cannot do that now. This duplicity, this dishonesty is reprehensible even to fellow doctors, who hold the patient clinical records sacrosanct. This alone should convince this Honorable Court that defendants did not come to court with clean hands. They were hiding something that they do not want the Honorable Court to see and consider in this case. This leads us to the conclusion that if the same will be shown to the Honorable Court, it will be unfavorable to the defendants. Thus Section 3 [e], Rule 131 of the New Rules on Evidence provides:

[e] That evidence willfully suppressed would be adverse if produced.


As we have shown earlier, the defendant Dr. Abayas own testimonies and the opinions forwarded by Dr. Bu Castro which are reflected in the transcript of stenographic notes cannot hold water against the proof of corruption of the Medical Records of EDRALIN. The Death Certificate (Exhibit A) 87 of EDRALIN ALUAD signed Dr. Juan Komiya states: Causes of Death: Immediate Cause: SEPTICEMIA WITH HEPATO-RENAL FAILURE Antecedent Cause: MASSIVE PERITONITIS The Autopsy Report of Dr. Ronaldo Mendez (Exhibit K and series) 88 Cause of Death: Peritonitis, Generalized The Laboratory Report on Pathology by Dr. Cesar Bisquerra (Exhibit L-6 to wit: Histopathological findings: -Intestinal Tissue with mild to moderate peritonitis with areas of mesenteric fibrosis and hemorrhages. -Focal myocardial ischemia, mild, with scattered inflammatory cells, mild, heart.
89

correlates with the gross findings of Dr. Ronaldo Mendez on autopsy and state

40 -Visceral organ congestion. Proximate cause has been defined as that which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would have not occurred. [(Blacks Law Dictionary, 5th Edition, p.1103 (1979)]
90

An injury or damage is the 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 the direct result or reasonably probable consequence of the act or omission (Ibid). It is the dominant, moving or producing cause. Applying the above definition in relation to the evidence at hand, the lackadaisical, if not outright negligent management and care by defendant Abaya, is undeniably the proximate cause which triggered the chain of events leading to the death of EDRALIN. EDRALIN was brought to LORMA Hospital at a time when it was too late save his life. And it was because of the obvious negligence of Dr. Abaya who insisted on something which he has seen to be of no effect on the condition of the patient. The responsibility of Holy Family Hospital is only but apparent. 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. Dr. Abaya testified that he is a stockholder of Holy Family Hospital, therefore a part owner of said hospital. Considering further that he is also the medical director of the same hospital, he therefore he exercises supervision and control over hospital employees including other consultants, visiting physicians, nurses, residents or interns. In this dual capacity, he is a part-owner at the same time employee of the Hospital. Accordingly, an employee-employer relationship exist between hospitals and their attending and visiting physicians, including defendant Dr. Abaya. This being the case, defendant Holy Family Hospital must be held solidarily liable with defendant Dr. Abaya. 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 others based on the formers

41 responsibility under a relationship of patria potestas. (Vitug, Compendium of Civil Law and Jurisprudence, p. 822 (1993) 91 Such responsibility ceases when the persons or entity concerned will be able to prove that they observed the due diligence of a good father of the family to prevent damage (Article 2179, Civil Code) 92. Defendant Holy Family Hospital utterly failed to adduce any evidence in its behalf. In neglecting to offer such proof, or proof of similar nature, defendant Holy Family Hospital therefore failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this, defendant Family Hospital is consequently solidarily responsible with its co-defendant Dr. Abaya. From the above evidence, both documentary and testimonies of expert witnesses, including the testimony of defendant Dr. Abaya, are proof that Defendant Dr. Abayas conduct was way below the standards of practice in his chosen profession. Despite the heroic efforts in management, massive antibiotics, advanced technological imperatives of LORMA Hospital and Dr. Komiya, EDRALIN died on November 20, 2000---18 days after he was admitted at the defendant hospital from a very minor ailment. EDRALIN came to the right doctor but too late. EDRALINS natural defenses called immune system is compromised and he succumbed to Septicemia with Hepato-renal Failure secondary to Massive Peritonitis. The perpetual question is: Would EDRALIN have suffered all these complications if Dr. Abaya was not NEGLIGENT? EDRALIN was a young, healthy young man before his surgery for appendectomy, which with the normal course in postappendectomy surgery, the healing is dramatic. Uncomplicated appendicitis results in prompt recovery; with early ambulation. The patient may be able to eat in 2 days and may be discharged within a few days. (Harrisons Principles of Internal Medicine, 7th ed., 1974, p. 1487) 93 As to EDRALINs post-operative course, there was no prompt improvement with his complaints after his first surgery (Appendectomy), he continued to have abdominal pain followed by vomiting, fever and abdominal distention. Admittedly, there is always a risk of infection, post-operatively, the reason why a second admission was sought under Dr. Abaya. But the series of mistakes by omission:

42 failure to follow protocol in acute abdomen, failure to monitor/assess the patient hourly, failure to refer for management or a second opinion caused the precious life of

EDRALIN, his failure to even localize an infection that has been there staring at his face. On the other hand, Dr. Komiya noted on EDRALINs admission, to wit: Atty. Abiog: Q: Why did you make that conclusion that there was hesitancy on the part of the personnel of Lorma Hospital to admit him to the hospital cobnsidering the seriousness of the situation? Engr. Jose Ping-ay: A: Yes, maam because the statement of the doctor was, Engr. Pray to God that he could still survive within the next seven (7) days. So, I was very surprised. Why doctor? I asked him, and he said massive infection is with your nephew. Xxx Q: So, after Dr. Komiya made that statement what if any did you do? A: I said: please do something, do everything that you can to save the life of my nephew. Okay, yes but let us rest everything to God but I will try my very best, I will do everything to save his life but the rest is with God. (TSN, Engr. Jose Ping-ay, April 11, 2005, pp. 5-6) 94 We are well aware that there is a dinstion 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. In the lackadaisical management of EDRALINs ailment by defendant Dr. Abaya would reasonably speak to the average man as the negligent cause or cause of the untimely death of EDRALIN. Upon these facts and under these circumstances of professional treatment or non-action, a layman would be able to say, as Pablo Aluad, a tricycle driver, has observed that as a matter of common knowledge and observation, that the consequences of the professional treatment were not as such as would ordinarily have followed if due care has been exercised. Farida Aluad, wife of EDRALIN was notified several times but failed to appear during said hearing indicating as per Sheriffs return that she is not interested to pursue

43 the case; Exhibit H-1 follows, to wit: 1st Endorsement May 26, 2005 Respectfully submitted to the Honorable Court with the information that the undersigned Process Server of this Court together with the Clerk III, Florentino M. Rivera personally went to the house of Franida Aluad of Baringcucurong, Suyo, Ilocos Sur and widow of the late Edralin Aluad subject of the present Civil Action for Damages, pending before this Court. She refused to sign the notice personally served upon her and informed us, her lack of interest in further pursuing the Civil Action for Damages against defendant , Holy Family Hospital and Doctor Abaya, no reason was given for her statement. SUBMITTED. Tagudin, ILocos Sur, May 26, 2005, 10:00 AM. Signed: DIONISIO M. QUILLAYEN Process Server
95

is the return of the Process Server, Dionisio M. Quillayen as

For reasons that we do not know, Franida Aluad refused not testify in Court despite notice. Counsel for Plaintiff made a manifestation in court that considering that FRANIDA Aluad is no longer interested to pursue this case as she even refuse to testify when called upon by the Order of this Honorable Court, then this leaves the parents of EDRALIN, Pablo and Erlinda Aluad as the only Plaintiffs in this case since they are coheir of the surviving spouse. They are not estopped from pursuing this case just because the wife who is not a blood relative of the victim is no longer interested for any reason. The familys moral and emotional injury and suffering because of EDRALINs untimely death at a young age of 31 years old is clearly a real one and would virtually be impossible to quantify. As the only son of Pablo and Erlinda Aluad, who are now in their advanced years, EDRALIN would have been there for them in their old age. He was a Police Officer of Tagudin at the time of his death and earning P11, 497.00/month (Exhibit C, on page 9 of the ROC)
96

, for the foregoing reasons, an award ONE

MILLION (P1,000,000.00) PESOS by way of moral damages is being prayed for to assuage this hurt feelings.

44 For defendants bad faith and the malicious corruption of the clinical records, by way of example to others, FIVE HUNDRED THOUSAND (P500,000.00) PESOS is being prayed for by way of exemplary damages. By way of actual damages, during the whole period of his confinement, EDRALIN incurred hospital bills amounting to P24, 568.00 on his first admission, dated November 5, 2000 (Exhibit M-28, p. 293, ROC) 97; P10, 743.00 on his second admission, dated November 10, 2000 (Exhibit M-29, found on p. 294, ROC) 98, P102, 678.00 (Exhibit E, found on p. 12, ROC) 99, Funeral expenses in the total amount of P140,000.00, broken down as follows: P100,000 expenses covering the wake and P40,000.00 for funeral services and burial dated November 27, 2000. (TSN, Pablo Aluad, October 25, 2001, pp. 15-17) 100 In litigating this case, the Plaintiffs paid for Attorneys fees in the amount of P100,000.00 as Attorneys acceptance fee and P5,000.00 per hearing, considering the length, the distance and the nature of this case. (TSN, Pablo Aluad, October 25, 2001, p. 17) 101 The defendants are likewise liable for the lost income on the part of the victim which shall inure to his heirs, particularly his parents, since he died at the age of 31 and at the same time, gainfully employed. Basically, the amounts recoverable by the heirs of a deceased person arising from a crime or negligent act of another were summarized by the Supreme Court in the case of HEIRS OF RAYMUNDO CASTRO VS. BUSTOS, 27 SCRA 327, though the amounts were later on increased to meet the changing needs of our times in BALIWAG TRANSIT, INC & PEOPLE VS. CORDERO, ET AL., infra , as follows: As to the indemnity for the death of the victim of the offense---

P50,000.00---though originally pegged at P3,000.00 by Art. 2206 of the New Civil Code, then increased to P12,000.00 without the need of any evidence of proof of damages, and even though there may have been mitigating circumstances attending the commission of the offense. This amount was subsequently abandoned by the Supreme Court and increased the same to P30,000.00 and ultimately to P50,0000 in the

45 cases of BALIWAG TRANSIT, INC. VS. COURT OF

APPEALS3 and PEOPLE OF THE PHILIPPINES VS. CORDERO, ET AL4;


Amount representing loss of earning capacity to be computed based on the American Expectancy table of Mortality or of the

Actuarial of Combined Experience Table of Mortality as followed by the Supreme Court in the case of VILLA REY TRANSIT VS.

COURT OF APPEALS5;
Amount representing the actual damages incurred like

hospitalization and burial expenses; and Moral Damages, exemplary damages and attorneys fees, the

determination of which is left to the sound discretion of the trial court. We shall therefore show the total civil liability of the accused based on existing laws and jurisprudence.

DAMAGES REPRESENTING THE LOSS OF EARNING CAPACITY [A] As a member of the PNP with a monthly salary of 11,497.00
As to the computation of the earning capacity of the decedent which was lost was a result of his untimely death, the Supreme Court had consistently used the American Expectancy Table of Mortality, the formula of which is as follows: Life expectancy = 2/3 x (80-Age at the time of death) Amount of indemnity representing lost income = Life expectancy x income Yearly

The life expectancy of the decedent who died at the age of 31 [Please see the death certificate] , is as follows: 2/3 x (80-31) =
3 4

262 SCRA 230 263 SCRA 122 5 31 SCRA 511

46 2/3 x 49) = years

LIFE EXPECTANCY = 32.66 YEARS


The foregoing shows that the decedent is expected to have 32.66 more of fruitful years ahead of him where she could have earned an income for himself and his family. Since it was proven that the decedent was earning at least P11,497.00 per month, his yearly income should be P137,964.00 per annum. Lost Income = Life expectancy x yearly Income = 32.66 years x P137,964.00 per year

LOST INCOME

= P4,505,904.20

The summary of damages in which the plaintiffs are entitled to receive from the defendant are computed as follows, to wit:

Attorneys and Appearance Fees

2 3 4

5 6

P100,000.00 plus P5,000.00 as appearance fee per hearing Loss of Earning Capacity P4,505,904.20 Funeral Expenses and expenses P140,000.00 during the wake Hospital expenses P24,568.00 + P10,743.00 + P102,678.00 or a total of P137,989.00 Moral damages P1,000,000.00 Exemplary Damages P500,000.00

Grand Total: P6,383,893.201


PRAYER WHEREFORE, premises considered, it is respectfully prayed of the Honorable Court to decide this case in favor of the Plaintiffs PABLO and ERLINDA ALUAD finding solidarily defendants liable and order an award by way of damages as follows:
1

Excluding appearance fees of P5,000.00 per hearing which could be checked from the records of this case.

47 1. for the moral and emotional injury and suffering an award ONE MILLION (P1,000,000.00) PESOS ; 2. by way of example to others and for public good, FIVE HUNDRED THOUSAND (P500,000.00) PESOS is being prayed for by way of exemplary damages; 3. Damages as a result of Loss of earning capacity in the amount of P4,505,904.20; 4. by way of Actual Damages: hospital bills amounting to P24, 568.00 on his first admission, dated November 5, 2000 (Exhibit M-28, p. 293, ROC) 102; P10, 743.00 on his second admission, dated November 10, 2000 (Exhibit M-29
103

, found on p. 294, ROC)

104

, and P102, 678.00

(Exhibit E 105, found on p. 12, ROC) 107, Funeral expenses in the total amount of P140,000.00, broken down as follows: P100,000 expenses covering the wake and P40,000.00 for funeral services and burial dated November 27, 2000. (TSN, Pablo Aluad, October 25, 2001, pp. 15-17) 108 5. Attorneys fees in the amount of P100,000.00 as Attorneys acceptance fee and P5,000.00 per hearing, considering the length and nature of this case; 6. Costs of suit.

Other reliefs, just and equitable under the premises, are likewise prayed for. BAGUIO CITY for Tagudin, Ilocos Sur, Philippines. August 6, 2007.

GACAYAN PAREDES AGMATA & ASSOCIATES LAW OFFICES


11-B Urbano St., Baguio City

by: LAURO D. GACAYAN


Roll No. 34338, June 3, 1986 IBP O.R. No. 693162, January 9, 2007

48
Baguio City PTR No. 1916438, January 9, 2007 Baguio City -and-

ATTY. MOLLY CR. ABIOG, M.D. Collaborating counsel Roll of Attorneys: 44478:5/11/99 PTR No. 1917357:01/10/07: Baguio City; IBP No. 693184:01/10/07: Baguio-Benguet Chapter

EXPLANATION
(Re: Section 11, Rule 13 of the 1997 Rules of Civil Procedure)

The original copy of this pleading was:


[ ] Filed directly with this Honorable Court/Office; [x ] Filed with this Honorable Court/Office by Registered Mail with Return Card because:
[ x ] The distance between this Honorable Court/Office and the Office of the undersigned counsel makes personal filing impracticable; [ x ] Lack of office staff/personnel to effect personal service; [ ] Time constraints; [ ] Unfavorable weather conditions prevents personal service; [ ] Pleading is not urgent in nature.

Copy/copies of this pleading was/were:


[ ] Personally served on counsel of the adverse party; [ x ] Sent to counsel of the adverse party by Registered Mail with Return Card due to the following reason:
[ x ] The distance between the offices of counsels makes personal filing impracticable; [ x ] Lack of office staff/personnel to effect personal service; [ ] Time constraints; [ ] Unfavorable weather conditions prevents personal service; [ ] Pleading is not urgent in nature.

ATTY. MOLLY CR ABIOG, MD. Copy furnished : ATTY. CANDIDO BALBIN Candon City

ATTY. LAURO D. GACAYAN

49