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Jarcia & Bastan v. People MENDOZA, J.

Even early on, patients have consigned their lives to the skill of their doctors. Time and again, it can be said that the most important goal of the medical profession is the preservation of life and health of the people. Corollarily, when a physician departs from his sacred duty and endangers instead the life of his patient, he must be made liable for the resulting injury. This Court, as this case would show, cannot and will [1] not let the act go unpunished. This is a petition for review under Rule 45 of the Rules of Court challenging the [2] August 29, 2008 Decision of the Court of Appeals (CA), and its May 19, 2009 [3] Resolution in CA-G.R. CR No. 29559, dismissing the appeal and affirming in toto the June [4] 14, 2005 Decision of the Regional Trial Court, Branch 43, Manila(RTC), finding the accused guilty beyond reasonable doubt of simple imprudence resulting to serious physical injuries.

BASTAN GUILTY beyond reasonable doubt of the crime of SIMPLE IMPRUDENCE RESULTING TO SERIOUS PHYSICAL INJURIES and are hereby sentenced to suffer the penalty of ONE (1) MONTH and ONE (1) DAY to TWO (2) MONTHS and to indemnify MRS. BELINDA SANTIAGO the amount of 3,850.00 representing medical expenses without subsidiary imprisonment in case of insolvency and to pay the costs. It appearing that Dr. Pamittan has not been apprehended nor voluntarily surrendered despite warrant issued for her arrest, let warrant be issued for her arrest and the case against her be ARCHIVED, to be reinstated upon her apprehension. SO ORDERED. The RTC explained: After a thorough and in depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the evidence of the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the Court that accused herein [are] criminally responsible. The Court believes that accused are negligent when both failed to exercise the necessary and reasonable prudence in ascertaining the extent of injury of Alfonso Santiago, Jr.
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THE FACTS

Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of Investigation (NBI) against the petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr. Bastan), for their alleged neglect of professional duty which caused her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical injuries. Upon investigation, the NBI found that Roy Jr. was hit by a taxicab; that he was rushed to the Manila Doctors Hospital for an emergency medical treatment; that an X-ray of the victims ankle was ordered; that the X-ray result showed no fracture as read by Dr. Jarcia; that Dr. Bastan entered the emergency room(ER) and, after conducting her own examination of the victim, informed Mrs. Santiago that since it was only the ankle that was hit, there was no need to examine the upper leg; that eleven (11) days later, Roy Jr. developed fever, swelling of the right leg and misalignment of the right foot; that Mrs. Santiago brought him back to the hospital; and that the X-ray revealed a right mid-tibial fracture and a linear hairline fracture in the shaft of the bone. The NBI indorsed the matter to the Office of the City Prosecutor of Manila for preliminary investigation. Probable cause was found and a criminal case for reckless imprudence resulting to serious physical injuries, was filed against Dr. Jarcia, Dr. Bastan and [5] Dr. Pamittan, before the RTC, docketed as Criminal Case No. 01-196646. On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of the crime of Simple Imprudence Resulting to Serious Physical Injuries. The decretal portion of the RTC decision reads: WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL JARCIA, JR. and DR. MARILOU

However, the negligence exhibited by the two doctors does not approximate negligence of a reckless nature but merely amounts to simple imprudence. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not the immediate nor the danger clearly manifest. The elements of simple imprudence are as follows. 1. that there is lack of precaution on the part of the offender; and that the damage impending to be caused is not immediate of the danger is not clearly manifest.

2.

Considering all the evidence on record, The Court finds the accused guilty for simple imprudence resulting to physical injuries. Under Article 365 of the Revised Penal Code, the penalty [7] provided for is arresto mayor in its minimum period.

Dissatisfied, the petitioners appealed to the CA.

As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008 Decision of the CA pertinently reads: This Court holds concurrently and finds the foregoing circumstances sufficient to sustain a judgment of conviction against the accused-appellants for the crime of simple imprudence resulting in serious physical injuries. The elements of imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circumstances regarding persons, time and place. Whether or not Dr. Jarcia and Dr. Bastan had committed an inexcusable lack of precaution in the treatment of their patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circumstances, bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science. In the case of Leonila Garcia-Rueda v. Pascasio, the Supreme 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 a 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. In litigations involving medical negligence, the plaintiff has the burden of establishing accused-appellants negligence, and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the physician as well as a causal connection of such breach and the resulting injury of his patient. The connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be the proximate cause of the injury. Negligence, no matter in what it consists, cannot create a right of action unless it is the proximate cause of the injury complained of. The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. In the case at bench, the accused-appellants questioned the imputation against them and argued that there is no causal connection between their failure to diagnose the fracture and the injury sustained by Roy.

We are not convinced. The prosecution is however after the cause which prolonged the pain and suffering of Roy and not on the failure of the accusedappellants to correctly diagnose the extent of the injury sustained by Roy. For a more logical presentation of the discussion, we shall first consider the applicability of the doctrine of res ipsa loquitur to the instant case. Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the accused-appellant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and, on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge. The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son during the latters ordeal at the hospital. She testified as follows: Fiscal Formoso: Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra. Pamittan to confirm whether you should go home or not? Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go home and you dont even clean the wounds of my son. And what did she [tell] you? They told me they will call a resident doctor, sir. xxx Q: A: xxx xxx

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Was there a resident doctor [who] came? Yes, Sir. Dra. Bastan arrived.

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Did you tell her what you want on you to be done? Yes, sir. What did you [tell] her? I told her, sir, while she was cleaning the wounds of my son, are you not going to xray up to the knee because my son was complaining pain from his ankle up to the middle part of the right leg. And what did she tell you? According to Dra. Bastan, there is no need to x-ray because it was the ankle part that was run over. What did you do or tell her? I told her, sir, why is it that they did not examine[x] the whole leg. They just lifted the pants of my son. So you mean to say there was no treatment made at all? None, sir. xxx xxx xxx

2.

It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. In the above requisites, the fundamental element is the control of the instrumentality which caused the damage. Such element of control must be shown to be within the dominion of the accusedappellants. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable and must establish that the essential elements of the doctrine were present in a particular incident. The early treatment of the leg of Roywould have lessen his suffering if not entirely relieve him from the fracture. A boy of tender age whose leg was hit by a vehicle would engender a well-founded belief that his condition may worsen without proper medical attention. As junior residents who only practice general surgery and without specialization with the case consulted before them, they should have referred the matter to a specialist. This omission alone constitutes simple imprudence on their part. When Mrs. Santiago insisted on having another x-ray of her child on the upper part of his leg, they refused to do so. The mother would not have asked them if they had no exclusive control or prerogative to request an x-ray test. Such is a fact because a radiologist would only conduct the x-ray test upon request of a physician. The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata. He further testified based on his personal knowledge, and not as an expert, as he examined himself the child Roy. He testified as follows: Fiscal Macapagal: Q: And was that the correct respon[se] to the medical problem that was presented to Dr. Jarcia and Dra. Bastan? I would say at that stage, yes. Because they have presented the patient and the history. At sabi nila, nadaanan lang po ito. And then, considering their year of residency they are still junior residents, and they are not also orthopedic residents but general surgery residents, its entirely different thing. Because if

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I just listened to them, sir. And I just asked if I will still return my son. xxx xxx xxx

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And you were present when they were called? Yes, sir. And what was discussed then by Sis. Retoria? When they were there they admitted that they have mistakes, sir.

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Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence;

you are an orthopedic resident, I am not trying to saybut if I were an orthopedic resident, there would be more precise and accurate decision compare to a general surgery resident in so far as involved. Q: A: You mean to say there is no supervisor attending the emergency room? At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that usually comes from a family medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to the consultant on duty. Now at that time, I dont *know+ why they dont.Because at that time, I think, it is the decision. Since the xrays.

and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. The latter circumstance is the primordial issue that confronted this Court and we find application of the doctrine of res ipsa loquitur to be in order. WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSED and the assailed decision of the trial court finding accused-appellants guilty beyond reasonable doubt of simple imprudence resulting in serious physical injuries is hereby AFFIRMED in toto. SO ORDERED.
[8]

The petitioners filed a motion for reconsideration, but it was denied by the CA in its May 19, 2009 Resolution. Hence, this petition. The petitioners pray for the reversal of the decision of both the RTC and the CA anchored on the following GROUNDS1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE, AND PROXIMATE CAUSE OF THE PHYSICAL INJURY OF THE PATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICH REQUIRED MEDICAL ATTENDANCE FOR MORE THAN THIRTY (30) DAYS AND INCAPACITATED HIM FROM PERFORMING HIS CUSTOMARY DUTY DURING THE SAME PERIOD OF TIME, WAS THE VEHICULAR ACCIDENT WHERE THE PATIENTS RIGHT LEG WAS HIT BY A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION. 2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED FACTS CLEARLY NEGATING PETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS UNJUSTIFIABLY DISREGARDED THE OPINION OF THE PROSECUTIONS EXPERT WITNESS, DR. CIRILO TACATA, THAT PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE COMPLAINED OF. 3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION PROLONGED THE PAIN AND SUFFERING

Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. In the case at bench, we give credence to the testimony of Mrs. Santiago by applying the doctrine of res ipsa loquitur. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results and the occurrence of something more unusual

OF THE PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN CONTRARY TO, THE EVIDENCE ON RECORD. 4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED PROLONGED PAIN AND SUFFERING, THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ALLEGED PAIN AND SUFFERING WERE DUE TO THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A NURSE HERSELF, TO IMMEDIATELY BRING THE PATIENT BACK TO THE HOSPITAL, AS ADVISED BY THE PETITIONERS, AFTER HE COMPLAINED OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE REACHED HOME AFTER HE WAS SEEN BY PETITIONERS AT THE HOSPITAL. THUS, THE PATIENTS ALLEGED INJURY (PROLONGED PAIN AND SUFFERING) WAS DUE TO HIS OWN MOTHERS ACT OR OMISSION. 5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO PHYSICIAN-PATIENT RELATIONSHIP EXISTED BETWEEN PETITIONERS AND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS NOT BEING THE LATTERS ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTED BY THE EMERGENCY ROOM (ER) NURSE TO SEE THE PATIENT WHILE THEY WERE PASSING BY THE ER FOR THEIR LUNCH. 6. THE COURT OF APPEALS GRAVELY ERRED IN NOT [9] ACQUITTING ACCUSED-PETITIONERS OF THE CRIME CHARGED.

The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that the instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not happen in absence of negligence. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened provided the character of the accident and circumstances attending it lead reasonably to belief that in the absence of negligence it would not have occurred and that thing which caused injury is shown to have been under the management and control of the alleged wrongdoer. Under this doctrine, the happening of an injury permits an inference of negligence where plaintiff produces substantial evidence that the injury was caused by an agency or instrumentality under the exclusive control and management of defendant, and that the occurrence was such that in the ordinary [10] course of things would not happen if reasonable care had been used.

The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine of res ipsa loquitur is applicable in this case; and [2] whether or not the petitioners are liable for criminal negligence. THE COURTS RULING The CA is correct in finding that there was negligence on the part of the petitioners. After a perusal of the records, however, the Court is not convinced that the petitioners are guilty of criminal negligence complained of. The Court is also of the view that the CA erred in applying the doctrine of res ipsa loquitur in this particular case. As to the Application of The Doctrine of Res Ipsa Loquitur This doctrine of res ipsa loquitur means "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." The Black's Law Dictionary defines the said doctrine. Thus:

The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine, however, is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circumstances of a given case, is not meant to and does not dispense with the requirement of proof of culpable negligence on the party charged. It merely determines and regulates what shall be prima facie evidence thereof and helps the plaintiff in proving a breach of the duty. The doctrine can be invoked when and only when, under the circumstances [11] involved, direct evidence is absent and not readily available. The requisites for the application of the doctrine of res ipsa loquitur are: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the person in charge; and (3) the injury suffered must not have been due to any voluntary [12] action or contribution of the person injured. In this case, the circumstances that caused patient Roy Jr.s injury and the series of tests that were supposed to be undergone by him to determine the extent of the injury suffered were not under the exclusive control of Drs. Jarcia and Bastan. It was established that they are mere residents of the Manila Doctors Hospital at that time who attended to [13] the victim at the emergency room. While it may be true that the circumstances pointed out by the courts below seem doubtless to constitute reckless imprudence on the part of the petitioners, this conclusion is still best achieved, not through the scholarly assumptions of a layman like the patients mother, but by the unquestionable knowledge of expert witness/es. As to whether the petitioners have exercised the requisite degree of skill and care in treating patient Roy, Jr. is generally a matter of expert opinion.

As to Dr. Jarcia and Dr. Bastans negligence The totality of the evidence on record clearly points to the negligence of the petitioners. At the risk of being repetitious, the Court, however, is not satisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this case. Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circumstances [14] justly demand, whereby such other person suffers injury. Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which material damage results by reason of an inexcusable lack of [15] precaution on the part of the person performing or failing to perform such act. The elements of simple negligence are: (1) that there is lack of precaution on the part of the offender, and (2) that the damage impending to be caused is not immediate or [16] the danger is not clearly manifest. In this case, the Court is not convinced with moral certainty that the petitioners are guilty of reckless imprudence or simple negligence. The elements thereof were not proved by the prosecution beyond reasonable doubt. Q: The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric orthopedic, although pointing to some medical procedures that could have been done by Dr. Jarcia and Dr. Bastan, as physicians on duty, was not clear as to whether the injuries suffered by patient Roy Jr. were indeed aggravated by the petitioners judgment call and their diagnosis or appreciation of the condition of the victim at the time they assessed him. Thus: Q: A: Will you please tell us, for the record, doctor, what is your specialization? At present I am the chairman department of orthopedic in UP-PGH and I had special training in pediatric orthopedic for two (2) years. In June 1998, doctor, what was your position and what was your specialization at that time? Since 1980, I have been specialist in pediatric orthopedic. When Alfonso Santiago, Jr. was brought to you by his mother, what did you do by way of physicians as first step? As usual, I examined the patient physically and, at that time as I have said, the patient could not walk so I [began] to suspect that probably he sustained a fracture as a result of a vehicular accident. So I examined the patient at that time, the involved leg, I dont know if that is left or right, the involved leg then was A: Q: A:

swollen and the patient could not walk, so I requested for the xray of [the] lower leg. What part of the leg, doctor, did you request to be examined? If we refer for an x-ray, usually, we suspect a fracture whether in approximal, middle or lebistal tinial, we usually x-ray the entire extremity. And what was the result? Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone of the leg. And when you say spiral, doctor, how long was this fracture? When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8) centimeters. Mid-tibial, will you please point to us, doctor, where the tibial is? (Witness pointing to his lower leg) The tibial is here, there are two bones here, the bigger one is the tibial and the smaller one is the fibula. The bigger one is the one that get fractured. And in the course of your examination of Alfonso Santiago, Jr. did you ask for the history of such injury? Yes, actually, that was a routine part of our examination that once a patient comes in, before we actually examine the patient, we request for a detailed history. If it is an accident, then, we request for the exact mechanism of injuries. And as far as you can recall, Doctor, what was the history of that injury that was told to you? The patient was sideswiped, I dont know if it is a car, but it is a vehicular accident. Who did you interview? The mother. How about the child himself, Alfonso Santiago, Jr.? Normally, we do not interview the child because, usually, at his age, the answers are not accurate. So, it was the mother that I interviewed. And were you informed also of his early medication that was administered on Alfonso Santiago, Jr.? No, not actually medication. I was informed that this patient was seen initially at the emergency room by the two (2) physicians that you just mentioned, Dr. Jarcia and Dra. Bastan, that time

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who happened to be my residents who were [on] duty at the emergency room. A: xxxx A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that usually comes from a family medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to the consultant on duty. Now at that time, I dont why they dont Because at that time, I think, it is the decision. Since the x-rays xxx Q: A: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic specialist. They are general surgeon residents. You have to man[x] the emergency room, including neurology, orthopedic, general surgery, they see everything at the emergency room. xxxx Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the emergency room, you would have subjected the entire foot to x-ray even if the history that was given to Dr. Jarcia and Dra. Bastan is the same? I could not directly say yes, because it would still depend on my examination, we cannot subject the whole body for x-ray if we think that the damaged was only the leg. Not the entire body but the entire leg? I think, if my examination requires it, I would. So, you would conduct first an examination? Yes, sir. And do you think that with that examination that you would have conducted you would discover the necessity subjecting the entire foot for x-ray? It is also possible but according to them, the foot and the ankle were swollen and not the leg, which sometimes normally happens that the actual fractured bone do not get swollen. xxxx Q: Doctor, if you know that the patient sustained a fracture on the ankle and on the foot and the history that was told to you is

the region that was hit is the region of the foot, will the doctor subject the entire leg for x-ray? I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you have to consider the kind of fracture that the patient sustained would you say the exact mechanism of injury. For example spiral, paikot yung bale nya, so it was possible that the leg was run over, the patient fell, and it got twisted. Thats why the leg seems to be [17] fractured. [Emphases supplied]

It can be gleaned from the testimony of Dr. Tacata that a thorough examination was not performed on Roy Jr. As residents on duty at the emergency room, Dr. Jarcia and Dr. Bastan were expected to know the medical protocol in treating leg fractures and in attending to victims of car accidents. There was, however, no precise evidence and scientific explanation pointing to the fact that the delay in the application of the cast to the patients fractured leg because of failure to immediately diagnose the specific injury of the patient, prolonged the pain of the child or aggravated his condition or even caused further complications. Any person may opine that had patient Roy Jr. been treated properly and given the extensive X-ray examination, the extent and severity of the injury, spiral fracture of the mid-tibial part or the bigger bone of the leg, could have been detected early on and the prolonged pain and suffering of Roy Jr. could have been prevented. But still, that opinion, even how logical it may seem would not, and could not, be enough basis to hold one criminally liable; thus, a reasonable doubt as to the petitioners guilt. Although the Court sympathizes with the plight of the mother and the child in this case, the Court is bound by the dictates of justice which hold inviolable the right of the accused to be presumed innocent until proven guilty beyond reasonable doubt. The Court, nevertheless, finds the petitioners civilly liable for their failure to sufficiently attend to Roy Jr.s medical needs when the latter was rushed to the ER, for while a criminal conviction requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish civil liability. Taken into account also was the fact that there was no bad faith on their part. Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the victim. It may be true that the actual, direct, immediate, and proximate cause of the injury (fracture of the leg bone or tibia) of Roy Jr. was the vehicular accident when he was hit by a taxi. The petitioners, however, cannot simply invoke such fact alone to excuse themselves from any liability. If this would be so, doctors would have a ready defense should they fail to do their job in attending to victims of hit-and-run, maltreatment, and other crimes of violence in which the actual, direct, immediate, and proximate cause of the injury is indubitably the act of the perpetrator/s. In failing to perform an extensive medical examination to determine the extent of Roy Jr.s injuries, Dr. Jarcia and Dr. Bastan were remiss of their duties as members of the medical profession. Assuming for the sake of argument that they did not have the capacity to make such thorough evaluation at that stage, they should have referred the patient to

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another doctor with sufficient training and experience instead of assuring him and his mother that everything was all right. This Court cannot also stamp its imprimatur on the petitioners contention that no physician-patient relationship existed between them and patient Roy Jr., since they were not his attending physicians at that time. They claim that they were merely requested by the ER nurse to see the patient while they were passing by the ER for their lunch. Firstly, this issue was never raised during the trial at the RTC or even before the CA. The petitioners, therefore, raise the want of doctor-patient relationship for the first time on appeal with this Court. It has been settled that issues raised for the first time on appeal cannot be considered because a party is not permitted to change his theory on appeal. To allow him to do so is unfair to the other party and offensive to the rules of fair play, justice [18] and due process. Stated differently, basic considerations of due process dictate that theories, issues and arguments not brought to the attention of the trial court need not be, [19] and ordinarily will not be, considered by a reviewing court. Assuming again for the sake of argument that the petitioners may still raise this issue of no physicianpatient relationship, the Court finds and so holds that there was a physicianpatient relationship in this case. In the case of Lucas v. Tuao, the Court wrote that *w+hen a patient engages the services of a physician, a physician-patient relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by physicians and surgeons practicing in the same field; and that he will employ such training, care, and skill in the treatment of the patient. Thus, in treating his patient, a physician is under a duty to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Stated otherwise, the physician has the obligation to use at least the same level of care that any other reasonably competent physician would use to treat the condition under similar circumstances. Indubitably, a physician-patient relationship exists between the petitioners and patient Roy Jr. Notably, the latter and his mother went to the ER for an immediate medical attention. The petitioners allegedly passed by and were requested to attend to the victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents on [21] duty at the ER). They obliged and examined the victim, and later assured the mother that everything was fine and that they could go home. Clearly, a physician-patient relationship was established between the petitioners and the patient Roy Jr. To repeat for clarity and emphasis, if these doctors knew from the start that they were not in the position to attend to Roy Jr., a vehicular accident victim, with the degree of diligence and commitment expected of every doctor in a case like this, they should have not made a baseless assurance that everything was all right. By doing so, they deprived Roy Jr. of adequate medical attention that placed him in a more dangerous situation than he was already in. What petitioners should have done, and could have done, was to refer Roy Jr. to another doctor who could competently and thoroughly examine his injuries.
[20]

All told, the petitioners were, indeed, negligent but only civilly, and not criminally, liable as the facts show. Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the Philippines states: A physician should attend to his patients faithfully and conscientiously. He should secure for them all possible benefits that may depend upon his professional skill and care. As the sole tribunal to adjudge the physicians failure to fulfill his obligation to his patients is, in most cases, his own conscience, violation of this rule on his part is [22] discreditable and inexcusable.

Established medical procedures and practices, though in constant instability, are devised for the purpose of preventing complications. In this case, the petitioners failed to observe the most prudent medical procedure under the circumstances to prevent the complications suffered by a child of tender age. As to the Award of Damages While no criminal negligence was found in the petitioners failure to administer the necessary medical attention to Roy Jr., the Court holds them civilly liable for the resulting damages to their patient. While it was the taxi driver who ran over the foot or leg of Roy Jr., their negligence was doubtless contributory. It appears undisputed that the amount of 3,850.00, as expenses incurred by patient Roy Jr., was adequately supported by receipts. The Court, therefore, finds the petitioners liable to pay this amount by way of actual damages. The Court is aware that no amount of compassion can suffice to ease the sorrow felt by the family of the child at that time. Certainly, the award of moral and exemplary damages in favor of Roy Jr. in the amount of 100,000.00 and 50,000.00, respectively, is proper in this case. It is settled that moral damages are not punitive in nature, but are designed to compensate and alleviate in some way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury unjustly inflicted on a person. Intended for the restoration of the psychological or emotional status quo ante, the award of moral damages is designed to [23] compensate emotional injury suffered, not to impose a penalty on the wrongdoer. The Court, likewise, finds the petitioners also liable for exemplary damages in the said amount. Article 2229 of the Civil Code provides that exemplary damages may be imposed by way of example or correction for the public good.

WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated August 29, 2008 is REVERSED and SET ASIDE. A new judgment is entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of the crime of reckless imprudence resulting to serious physical injuries but declaring them civilly liable in the amounts of:

(1) (2) (3) (4)

3,850.00 as actual damages; 100,000.00 as moral damages; 50,000.00 as exemplary damages; and Costs of the suit.

address the problem in his eye. According to Dr. Tuao, he performed ocular routine examination on Peters eyes, wherein: (1) a gross examination of Peters eyes and their surrounding area was made; (2) Peters visual acuity were taken; (3) Peters eyes were palpated to check the intraocular pressure of each; (4) the motility of Peters eyes was [4] observed; and (5) the ophthalmoscopy on Peters eyes was used. On that particular [5] consultation, Dr. Tuao diagnosed that Peter was suffering from conjunctivitis or sore [6] eyes. Dr. Tuao then prescribed Spersacet-C eye drops for Peter and told the latter to return for follow-up after one week. As instructed, Peter went back to Dr. Tuao on 9 September 1988. Upon examination, Dr. Tuao told Peter that the sore eyes in the latters right eye had already cleared up and he could discontinue the Spersacet-C. However, the same eye [7] developed Epidemic Kerato Conjunctivitis (EKC), a viral infection. To address the new problem with Peters right eye, Dr. Tuao prescribed to the former a steroid-based eye [8] [9] drop called Maxitrol, a dosage of six (6) drops per day. To recall, Peter had already been using Maxitrol prior to his consult with Dr. Tuao. On 21 September 1988, Peter saw Dr. Tuao for a follow-up consultation. After [10] examining both of Peters eyes, Dr. Tuao instructed the former to taper down the dosage of Maxitrol, because the EKC in his right eye had already resolved. Dr. Tuao specifically cautioned Peter that, being a steroid, Maxitrol had to be withdrawn gradually; [11] otherwise, the EKC might recur. Complaining of feeling as if there was something in his eyes, Peter returned to Dr. Tuao for another check-up on 6 October 1988. Dr. Tuao examined Peters eyes and found that the right eye had once more developed EKC. So, Dr. Tuao instructed Peter to resume the use of Maxitrol at six (6) drops per day. On his way home, Peter was unable to get a hold of Maxitrol, as it was out of [12] stock. Consequently, Peter was told by Dr. Tuano to take, instead,Blephamide another steroid-based medication, but with a lower concentration, as substitute for the unavailable Maxitrol, to be used three (3) times a day for five (5) days; two (2) times a day [13] for five (5) days; and then just once a day. Several days later, on 18 October 1988, Peter went to see Dr. Tuao at his clinic, alleging severe eye pain, feeling as if his eyes were about to pop-out, a headache and blurred vision. Dr. Tuao examined Peters eyes and discovered that the EKC was again present in his right eye. As a result, Dr. Tuao told Peter to resume the maximum dosage of Blephamide. Dr. Tuao saw Peter once more at the formers clinic on 4 November 1988. Dr. Tuaos examination showed that only the periphery of Peters right eye was positive for EKC; hence, Dr. Tuao prescribed a lower dosage of Blephamide. It was also about this time that Fatima Gladys Lucas (Fatima), Peters spouse, read the accompanying literature of Maxitrol and found therein the following warning against the prolonged use of such steroids:

with interest at the rate of 6% per annum from the date of the filing of the Information. The rate shall be 12% interest per annum from the finality of judgment until fully paid

Lucas v. Tuano CHICO-NAZARIO, J.:


[1]

In this petition for review on certiorari under Rule 45 of the Revised Rules of Court, petitioners Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian [2] Lucas seek the reversal of the 27 September 2006 Decision and 3 July [3] 2007 Resolution, both of the Court of Appeals in CA-G.R. CV No. 68666, entitled Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao. In the questioned decision and resolution, the Court of Appeals affirmed the 14 July 2000 Decision of the Regional Trial Court (RTC), Branch 150, Makati City, dismissing the complaint filed by petitioners in a civil case entitled, Peter Paul Patrick Lucas, Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao, docketed as Civil Case No. 92-2482. From the record of the case, the established factual antecedents of the present petition are: Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted sore eyes in his right eye. On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made use of his health care insurance issued by Philamcare Health Systems, Inc. (Philamcare), for a possible consult. The Philamcare Coordinator, Dr. Edwin Oca, M.D., referred Peter to respondent, Dr. Prospero Ma. C. Tuao, M.D. (Dr. Tuao), an ophthalmologist at St. Lukes Medical Center, for an eye consult. Upon consultation with Dr. Tuao, Peter narrated that it had been nine (9) days since the problem with his right eye began; and that he was already taking Maxitrol to

WARNING: Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual acuity and fields of vision, and posterior, subcapsular cataract formation. Prolonged use may suppress the host response and thus increase the hazard of secondary ocular infractions, in those diseases causing thinning of the cornea or sclera, perforations have been known to occur with the use of topical steroids. In acute purulent conditions of the eye, steroids may mask infection or enhance existing infection. If these products are used for 10 days or longer, intraocular pressure should be routinely monitored even though it may be difficult in children and uncooperative patients. Employment of steroid medication in the treatment of herpes simplex requires great caution. xxxx ADVERSE REACTIONS: Adverse reactions have occurred with steroid/anti-infective combination drugs which can be attributed to the steroid component, the anti-infective component, or the combination. Exact incidence figures are not available since no denominator of treated patients is available. Reactions occurring most often from the presence of the antiinfective ingredients are allergic sensitizations. The reactions due to the steroid component in decreasing order to frequency are elevation of intra-ocular pressure (IOP) with possible development of glaucoma, infrequent optic nerve damage; posterior subcapsular cataract formation; and delayed wound healing. Secondary infection: The development of secondary has occurred after use of combination containing steroids and antimicrobials. Fungal infections of the correa are particularly prone to develop coincidentally with long-term applications of steroid. The possibility of fungal invasion must be considered in any persistent corneal ulceration where steroid treatment has been used. Secondary bacterial ocular infection following suppression of host responses also occurs. On 26 November 1988, Peter returned to Dr. Tuaos clinic, complaining of [14] feeling worse. It appeared that the EKC had spread to the whole of Peters right eye yet again. Thus, Dr. Tuao instructed Peter to resume the use of Maxitrol. Petitioners averred that Peter already made mention to Dr. Tuao during said visit of the abovequoted warning against the prolonged use of steroids, but Dr. Tuao supposedly brushed aside Peters concern as mere paranoia, even assuring him that the former was taking care of him (Peter). Petitioners further alleged that after Peters 26 November 1988 visit to Dr. Tuao, Peter continued to suffer pain in his right eye, which seemed to progress, with the ache intensifying and becoming more frequent. Upon waking in the morning of 13 December 1988, Peter had no vision in his right eye. Fatima observed that Peters right eye appeared to be bloody and [15] swollen. Thus, spouses Peter and Fatima rushed to the clinic of Dr. Tuao. Peter reported to Dr. Tuao that he had been suffering from constant headache in the afternoon and blurring of vision. Upon examination, Dr. Tuao noted the hardness of Peters right eye. With the [16] [17] use of a tonometer to verify the exact intraocular pressure (IOP) of Peters eyes, Dr. Tuao discovered that the tension in Peters right eye was 39.0 Hg, while that of his left [18] was 17.0 Hg. Since the tension in Peters right eye was way over the normal IOP, which [19] [20] merely ranged from 10.0 Hg to 21.0 Hg, Dr. Tuao ordered him to immediately [21] discontinue the use of Maxitrol and prescribed to the latter Diamox and Normoglaucon, [22] instead. Dr. Tuao also required Peter to go for daily check-up in order for the former to closely monitor the pressure of the latters eyes. On 15 December 1988, the tonometer reading of Peters right eye yielded a high normal level, i.e., 21.0 Hg. Hence, Dr. Tuao told Peter to continue usingDiamox and Normoglaucon. But upon Peters complaint of stomach pains and [23] [24] tingling sensation in his fingers, Dr. Tuao discontinued Peters use of Diamox. Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr. Batungbacal), on 21 December 1988, who allegedly conducted a complete ophthalmological examination of Peters eyes. Dr. Batungbacals diagnosis [25] [26] [27] was Glaucoma O.D. He recommended Laser Trabeculoplasty for Peters right eye. When Peter returned to Dr. Tuao on 23 December 1988, the tonometer [29] measured the IOP of Peters right eye to be 41.0 Hg, again, way above normal. Dr. Tuao addressed the problem by advising Peter to resume taking Diamox along with Normoglaucon. During the Christmas holidays, Peter supposedly stayed in bed most of the time and was not able to celebrate the season with his family because of the debilitating effects [30] of Diamox. On 28 December 1988, during one of Peters regular follow-ups with Dr. Tuao, the doctor conducted another ocular routine examination of Peters eyes. Dr. Tuao noted the recurrence of EKC in Peters right eye. Considering, however, that the IOP of Peters right eye was still quite high at 41.0 Hg, Dr. Tuao was at a loss as to how to balance the treatment of Peters EKC vis--vis the presence of glaucoma in the same eye. Dr. Tuao, thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto), another ophthalmologist [31] specializing in the treatment of glaucoma. Dr. Tuaos letter of referral to Dr. Agulto stated that:
[28]

Referring to you Mr. Peter Lucas for evaluation & possible management. I initially saw him Sept. 2, 1988 because of conjunctivitis. The latter resolved and he developed EKC for which I gave Maxitrol. The EKC was recurrent after stopping steroid drops. Around 1 month of steroid treatment, he noted blurring of vision & pain on the R. however, I continued the steroids for the sake of the EKC. A month ago, I noted iris atrophy, so I took the IOP and it was definitely elevated. I stopped the steroids immediately and has (sic) been treating him medically. It seems that the IOP can be controlled only with oral Diamox, and at the moment, the EKC has recurred and Im in a fix whether to resume the steroid or not considering that the IOP is still [32] uncontrolled.

Peter went to see Dr. Tuao on 31 December 1988, bearing Dr. Agultos aforementioned letter. Though Peters right and left eyes then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuao still gave him a prescription for Timolol B.I.D. so Peter could immediately start using said medication. Regrettably, TimololB.I.D. was out of stock, so Dr. Tuao instructed Peter to just continue using Diamox and Normoglaucon in the meantime. Just two days later, on 2 January 1989, the IOP of Peters right eye remained [42] elevated at 21.0 Hg, as he had been without Diamox for the past three (3) days. On 4 January 1989, Dr. Tuao conducted a visual field study of Peters eyes, [44] which revealed that the latter had tubular vision in his right eye, while that of his left eye remained normal. Dr. Tuao directed Peter to religiously use the Diamox and Normoglaucon, as the tension of the latters right eye went up even further to 41.0 Hg in just a matter of two (2) days, in the meantime that Timolol B.I.D. and Depifrin were still not available in the market. Again, Dr. Tuao advised Peter to come for regular check-up so his IOP could be monitored. Obediently, Peter went to see Dr. Tuao on the 7 , 13 , 16 and 20 of January 1989 for check-up and IOP monitoring. In the interregnum, however, Peter was prodded by his friends to seek a second medical opinion. On 13 January 1989, Peter consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in turn, referred Peter to Dr. Mario V. Aquino, M.D. (Dr. Aquino), another ophthalmologist who specializes in the treatment of glaucoma and who could undertake the long term care of Peters eyes. According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peters eyes, the said doctor informed Peter that his eyes were relatively normal, though the right one sometimes manifested maximum borderline tension. Dr. Aquino also confirmed Dr. Tuaos diagnosis of tubular vision in Peters right eye. Petitioners claimed that Dr. Aquino essentially told Peter that the latters condition would require lifetime medication and follow-ups. In May 1990 and June 1991, Peter underwent two (2) procedures of laser trabeculoplasty to attempt to control the high IOP of his right eye. Claiming to have steroid-induced glaucoma and blaming Dr. Tuao for the [46] [47] same, Peter, joined by: (1) Fatima, his spouse ; (2) Abbeygail, his natural child ; and (3) [48] Gillian, his legitimate child with Fatima, instituted on 1 September 1992, a civil complaint for damages against Dr. Tuao, before the RTC, Branch 150, Quezon City. The case was docketed as Civil Case No. 92-2482. In their Complaint, petitioners specifically averred that as the direct consequence of *Peters+ prolonged use of Maxitrol, [he] suffered from steroid induced glaucoma which caused the elevation of his intra-ocular pressure. The elevation of the
[45] th th th th [43]

On 29 December 1988, Peter went to see Dr. Agulto at the latters clinic. Several tests were conducted thereat to evaluate the extent of Peters condition. Dr. Agulto wrote Dr. Tuao a letter containing the following findings and recommendations: Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and 20/20L. Tension curve 19 R and 15 L at 1210 H while on Normoglaucon BID OD & Diamox tab every 6h po. Slit lamp evaluation disclosed subepithelial corneal defect outer OD. There was circumferential peripheral iris atrophy, OD. The lenses were clear. [34] Funduscopy showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L. Zeiss gonioscopy [36] with occasional PAS, OD.
[35] [33]

revealed basically open angles both eyes

Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I suggest that we do a baseline visual fields and push medication to lowest possible levels. If I may suggest further, I [37] [38] think we should prescribe Timolol BID OD in lieu of [39] Normoglaucon. If the IOP is still inadequate, we may try Depifrin BID [40] OD (despite low PAS). Im in favor of retaining Diamox or similar CAI. If fields show further loss in say 3 mos. then we should consider trabeculoplasty.
[41]

I trust that this approach will prove reasonable for you and

Peter.

intra-ocular pressure of *Peters right eye+ caused the impairment of his vision which [49] impairment is not curable and may even lead to total blindness. Petitioners additionally alleged that the visual impairment of Peters right eye caused him and his family so much grief. Because of his present condition, Peter now needed close medical supervision forever; he had already undergone two (2) laser surgeries, with the possibility that more surgeries were still needed in the future; his career [50] in sports casting had suffered and was continuing to suffer; his anticipated income had been greatly reduced as a result of his limited capacity; he continually suffered from [51] headaches, nausea, dizziness, heart palpitations, rashes, chronic rhinitis, sinusitis, etc.; Peters relationships with his spouse and children continued to be strained, as his condition made him highly irritable and sensitive; his mobility and social life had suffered; his spouse, [52] Fatima, became the breadwinner in the family; and his two children had been deprived of the opportunity for a better life and educational prospects. Collectively, petitioners [53] lived in constant fear of Peter becoming completely blind. In the end, petitioners sought pecuniary award for their supposed pain and suffering, which were ultimately brought about by Dr. Tuaos grossly negligent conduct in prescribing to Peter the medicine Maxitrol for a period of three (3) months, without monitoring Peters IOP, as required in cases of prolonged use of said medicine, and notwithstanding Peters constant complaint of intense eye pain while using the same. Petitioners particularly prayed that Dr. Tuao be adjudged liable for the following amounts: 1. Lucas as vision. 2. and by amounts that 3. moral 4. exemplary The amount of P2,000,000.00 to plaintiff Peter and by way of compensation for his impaired

prescribed to treat Epidemic Kerato Conjunctivitis or EKC which is an infiltration of the [56] cornea as a result of conjunctivitis or sore eyes. Dr. Tuao also clarified that (1) *c+ontrary to *petitioners+ fallacious claim, *he+ did NOT continually prescribe the drug [57] Maxitrol which contained steroids for any prolonged period and *t+he truth was the Maxitrol was discontinued x x x as soon as EKC disappeared and was resumed only when [58] EKC reappeared ; (2) the entire time he was treating Peter, he continually monitored the intraocular pressure of *Peters eyes+ by palpating the eyes and by putt ing pressure on the eyeballs, and no hardening of the same could be detected, which meant that there was no increase in the tension or IOP, a possible side reaction to the use of steroid medications; and (3) it was only on 13 December 1988 that Peter complained of a headache and blurred vision in his right eye, and upon measuring the IOP of said eye, it was determined for the first time that the IOP of the right eye had an elevated value. But granting for the sake of argument that the steroid treatment of *Peters+ EKC [59] caused the steroid induced glaucoma, Dr. Tuao argued that: [S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the intake of steroids is discontinued, the intraocular pressure automatically is reduced. Thus, *Peters+ glaucoma can only be due to other causes not attributable to steroids, certainly not attributable to [his] treatment of more than three years ago x x x. From a medical point of view, as revealed by more current examination of *Peter+, the latters glaucoma can only be long standing glaucoma, open angle glaucoma, because of the large C:D ratio. The steroids provoked the latest glaucoma to be revealed earlier as [Peter] remained asymptomatic prior to steroid application. Hence, the steroid treatment was in fact beneficial to [Peter] as it revealed the incipient open angle glaucoma of [Peter] to allow earlier treatment of the [60] same. In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 for [61] insufficiency of evidence. The decretal part of said Decision reads: Wherefore, premises considered, the instant complaint is dismissed for insufficiency of evidence. The counter claim (sic) is likewise dismissed in the absence of bad faith or malice on the part of [62] plaintiff in filing the suit. The RTC opined that petitioners failed to prove by preponderance of evidence that Dr. Tuao was negligent in his treatment of Peters condition. In particular, the record of the case was bereft of any evidence to establish that the steroid medication and its dosage, as prescribed by Dr. Tuao, caused Peters glaucoma. The trial court reasoned that the recognized standards of the medical community has not been established in this case, [63] much less has causation been established to render *Tuao+ liable. According to the RTC:

The amount of P300,000.00 to spouses Lucas as way of actual damages plus such additional may be proven during trial. The amount of P1,000,000.00 as and by way of damages. The amount of P500,000.00 as and by way of damages.

5. attorneys

The amount of P200,000.00 as and by way of [54] fees plus costs of suit.

In rebutting petitioners complaint, Dr. Tuao asserted that the treatment made by *him+ more than three years ago has no causal connection to *Peters+ present glaucoma [55] or condition. Dr. Tuao explained that *d+rug-induced glaucoma is temporary and curable, steroids have the side effect of increasing intraocular pressure. Steroids are

[Petitioners] failed to establish the duty required of a medical practitioner against which Peter Pauls treatment by defendant can be compared with. They did not present any medical expert or even a medical doctor to convince and expertly explain to the court the established norm or duty required of a physician treating a patient, or whether the non taking (sic) by Dr. Tuao of Peter Pauls pressure a deviation from the norm or his non-discovery of the glaucoma in the course of treatment constitutes negligence. It is important and indispensable to establish such a standard because once it is established, a medical practitioner who departed thereof breaches his duty and commits negligence rendering him liable. Without such testimony or enlightenment from an expert, the court is at a loss as to what is then the established norm of duty of a physician against which [64] defendants conduct can be compared with to determine negligence. The RTC added that in the absence of any medical evidence to the contrary, this court cannot accept *petitioners+ claim that the use of steroid is the proximate cause of [65] the damage sustained by *Peters+ eye. Correspondingly, the RTC accepted Dr. Tuaos medical opinion that Peter Paul must have been suffering from normal tension glaucoma, meaning, optic nerve damage was happening but no elevation of the eye pressure is manifested, that the steroid treatment actually unmasked the condition that resulted in the earlier treatment of the glaucoma. There is nothing in the record to contradict such testimony. In fact, plaintiffs Exhibit S even tends to support them. Undaunted, petitioners appealed the foregoing RTC decision to the Court of Appeals. Their appeal was docketed as CA-G.R. CV No. 68666. On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No. 68666 denying petitioners recourse and affirming the appealed RTCDecision. The fallo of the judgment of the appellate court states: WHEREFORE, the Decision appealed from is AFFIRMED. The Court of Appeals faulted petitioners because they [D]id not present any medical expert to testify that Dr. Tuanos prescription of Maxitrol and Blephamide for the treatment of EKC on Peters right eye was not proper and that his palpation of Peters right eye was not enough to detect adverse reaction to steroid. Peter testified that Dr. Manuel Agulto told him that he should not have used steroid for the treatment of EKC or that he should have used it only for two (2) weeks, as EKC is only a viral infection which will cure by itself. However, Dr. Agulto was not presented by [petitioners] as a witness to confirm what he allegedly told Peter and, therefore, the latters testimony is hearsay. Under Rule 130, Section 36 of the Rules of Court,
[66]

a witness can testify only to those facts which he knows of his own personal knowledge, x x x. Familiar and fundamental is the rule that [67] hearsay testimony is inadmissible as evidence. Like the RTC, the Court of Appeals gave great weight to Dr. Tuaos medical judgment, specifically the latters explanation that: [W]hen a doctor sees a patient, he cannot determine whether or not the latter would react adversely to the use of steroids, that it was only on December 13, 1989, when Peter complained for the first time of headache and blurred vision that he observed that the pressure of the eye of Peter was elevated, and it was only then that he suspected that Peter belongs to the 5% of the population who reacts adversely to [68] steroids.

Petitioners Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 3 July 2007. Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court premised on the following assignment of errors: I. THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING THE DECISION OF THE TRIAL COURT DISMISSING THE PETITIONERS COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND OF INSUFFICIENCY OF EVIDENCE; II. THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING THE PETITIONERS COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND THAT NO MEDICAL EXPERT WAS PRESENTED BY THE PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE RESPONDENT; AND III. THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT FINDING THE RESPONDENT LIABLE TO THE PETITIONERS FOR ACTUAL, MORAL AND EXEMPLARY DAMAGES, ASIDE FROM ATTORNEYS FEES, COSTS OF SUIT, AS A RESULT OF HIS GROSS [69] NEGLIGENCE.

A reading of the afore-quoted reversible errors supposedly committed by the Court of Appeals in its Decision and Resolution would reveal that petitioners are fundamentally assailing the finding of the Court of Appeals that the evidence on record is insufficient to establish petitioners entitlement to any kind of damage. Therefore, it could be said that the sole issue for our resolution in the Petition at bar is whether the Court of Appeals committed reversible error in affirming the judgment of the RTC that petitioners failed to prove, by preponderance of evidence, their claim for damages against Dr. Tuao. Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the factual findings of the Court of Appeals, as well as of the RTC. In effect, petitioners would have us sift through the evidence on record and pass upon whether there is sufficient basis to establish Dr. Tuaos negligence in his treatment of Peters eye condition. This question clearly involves a factual inquiry, the determination of which is not within the ambit of this Courts power of review under Rule 45 of the 1997 Rules Civil [70] Procedure, as amended. Elementary is the principle that this Court is not a trier of facts; only errors of law are generally reviewed in petitions for review on certiorari criticizing decisions of the Court [71] of Appeals. Questions of fact are not entertained. Nonetheless, the general rule that only questions of law may be raised on appeal in a petition for review under Rule 45 of the Rules of Court admits of certain exceptions, including the circumstance when the finding of fact of the Court of Appeals is premised on the supposed absence of evidence, but is contradicted by the evidence on record. Although petitioners may not explicitly invoke said exception, it may be gleaned from their allegations and arguments in the instant Petition. Petitioners contend, that *c+ontrary to the findings of the Honorable Court of Appeals, [they] were more than able to establish that: Dr. Tuao ignored the standard medical procedure for ophthalmologists, administered medication with recklessness, and [72] exhibited an absence of competence and skills expected from him. Petitioners reject the necessity of presenting expert and/or medical testimony to establish (1) the standard of care respecting the treatment of the disorder affecting Peters eye; and (2) whether or not negligence attended Dr. Tuaos treatment of Peter, because, in their words That Dr. Tuao was grossly negligent in the treatment of Peters simple eye ailment is a simple case of cause and effect. With mere documentary evidence and based on the facts presented by the petitioners, respondent can readily be held liable for damages even without any expert testimony. In any case, however, and contrary to the finding of the trial court and the Court of Appeals, there was a medical expert presented by the petitioner showing the recklessness committed by [Dr. Tuao] Dr. Tuao himself. [Emphasis supplied.] They insist that Dr. Tuao himself gave sufficient evidence to establish his gross [73] negligence that ultimately caused the impairment of the vision of Peters right eye, i.e., that *d+espite *Dr. Tuaos+ knowledge that 5% of the population reacts adversely

to Maxitrol, [he] had no qualms whatsoever in prescribing said steroid to Peter without [74] first determining whether or not the (sic) Peter belongs to the 5%. We are not convinced. The judgments of both the Court of Appeals and the RTC are in accord with the evidence on record, and we are accordingly bound by the findings of fact made therein. Petitioners position, in sum, is that Peters glaucoma is the direct result of Dr. Tuaos negligence in his improper administration of the drug Maxitrol; thus, *the latter+ should be liable for all the damages suffered and to be suffered by [75] *petitioners+. Clearly, the present controversy is a classic illustration of a medical negligence case against a physician based on the latters professional negligence. In this type of suit, the patient or his heirs, in order to prevail, is required to prove by preponderance of evidence that the physician failed to exercise that degree of skill, care, and learning possessed by other persons in the same profession; and that as a proximate result of such failure, the patient or his heirs suffered damages. For lack of a specific law geared towards the type of negligence committed by members of the medical profession, such claim for damages is almost always anchored on the alleged violation of Article 2176 of the Civil Code, which states that: ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

In medical negligence cases, also called medical malpractice suits, there exist a physician-patient relationship between the doctor and the victim. But just like any other proceeding for damages, four essential (4) elements i.e., (1) duty; (2) breach; (3) injury; and [76] (4) proximate causation, must be established by the plaintiff/s. All the four (4) elements must co-exist in order to find the physician negligent and, thus, liable for damages. When a patient engages the services of a physician, a physician-patient relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that he has the needed training and skill possessed by physicians and surgeons practicing in the same field; and that he will employ such training, care, and skill [77] in the treatment of the patient. Thus, in treating his patient, a physician is under a duty to [the former] to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess [78] and exercise in like cases. Stated otherwise, the physician has the duty to use at least the same level of care that any other reasonably competent physician would use to treat the condition under similar circumstances.

This standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because the standard of care in a medical malpractice case is a [79] matter peculiarly within the knowledge of experts in the field. There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the attending physician when the patient is injured in body or in health [80] [and this] constitutes the actionable malpractice. Proof of such breach must likewise rest upon the testimony of an expert witness that the treatment accorded to the patient failed to meet the standard level of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must be a causal connection between said breach and the resulting injury sustained by the patient. Put in another way, in order that there may be a recovery for an injury, it must be shown that the injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening [81] efficient causes; that is, the negligence must be the proximate cause of the injury. And the proximate cause of an injury is that cause, which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without [82] which the result would not have occurred. Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of the injury] by a preponderance of the evidence in a medical malpractice action, [the patient] must similarly use expert testimony, because the question of whether the alleged professional negligence caused *the patients+ injury is generally one for specialized expert knowledge beyond the ken of the average layperson; using the specialized knowledge and training of his field, the experts role is to present to the [court] a realistic assessment of the likelihood that *the physicians+ alleged negligence caused *the [83] patients+ injury. From the foregoing, it is apparent that medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians *or surgeons+ stems from the formers realization that the latter possess unusual technical skills which laymen in most instances are [84] incapable of intelligently evaluating; hence, the indispensability of expert testimonies. In the case at bar, there is no question that a physician-patient relationship developed between Dr. Tuao and Peter when Peter went to see the doctor on 2 September 1988, seeking a consult for the treatment of his sore eyes. Admittedly, Dr. Tuao, an ophthalmologist, prescribed Maxitrol when Peter developed and had recurrent EKC. Maxitrol or neomycin/polymyxin B sulfates/dexamethasone ophthalmic ointment is a [85] multiple-dose anti-infective steroid combination in sterile form for topical application. It is the drug which petitioners claim to have caused Peters glaucoma.

However, as correctly pointed out by the Court of Appeals, *t+he onus probandi was on the patient to establish before the trial court that the physicians ignored standard medical procedure, prescribed and administered medication with recklessness and exhibited an absence of the competence and skills expected of general practitioners [86] similarly situated. Unfortunately, in this case, there was absolute failure on the part of petitioners to present any expert testimony to establish: (1) the standard of care to be implemented by competent physicians in treating the same condition as Peters under similar circumstances; (2) that, in his treatment of Peter, Dr. Tuao failed in his duty to exercise said standard of care that any other competent physician would use in treating the same condition as Peters under similar circumstances; and (3) that the injury or damage to Peters right eye, i.e., his glaucoma, was the result of his use of Maxitrol, as prescribed by Dr. Tuao. Petitioners failure to prove the first element alone is already fatal to their cause. Petitioners maintain that Dr. Tuao failed to follow in Peters case the required procedure for the prolonged use of Maxitrol. But what is actually the required procedure in situations such as in the case at bar? To be precise, what is the standard operating procedure when ophthalmologists prescribe steroid medications which, admittedly, carry some modicum of risk? Absent a definitive standard of care or diligence required of Dr. Tuao under the circumstances, we have no means to determine whether he was able to comply with the same in his diagnosis and treatment of Peter. This Court has no yardstick upon which to evaluate or weigh the attendant facts of this case to be able to state with confidence that the acts complained of, indeed, constituted negligence and, thus, should be the subject of pecuniary reparation. Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao should have [87] determined first whether Peter was a steroid responder. Yet again, petitioners did not present any convincing proof that such determination is actually part of the standard operating procedure which ophthalmologists should unerringly follow prior to prescribing steroid medications. In contrast, Dr. Tuao was able to clearly explain that what is only required of ophthalmologists, in cases such as Peters, is the conduct of standard tests/procedures [88] known as ocular routine examination, composed of five (5) tests/procedures specifically, gross examination of the eyes and the surrounding area; taking of the visual acuity of the patient; checking the intraocular pressure of the patient; checking the motility of the eyes; and using ophthalmoscopy on the patients eye and he did all those tests/procedures every time Peter went to see him for follow-up consultation and/or check-up. We cannot but agree with Dr. Tuaos assertion that when a doctor sees a patient, he cannot determine immediately whether the latter would react adversely to the use of steroids; all the doctor can do is map out a course of treatment recognized as correct by the standards of the medical profession. It must be remembered that a physician is not an insurer of the good result of treatment. The mere fact that the patient

does not get well or that a bad result occurs does not in itself indicate failure to exercise [89] due care. The result is not determinative of the performance [of the physician] and he is [90] not required to be infallible. Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter was justified by the fact that the latter was already using the same medication when he first came to see Dr. Tuao on 2 September 1988 and had exhibited no previous untoward reaction to that [91] particular drug. Also, Dr. Tuao categorically denied petitioners claim that he never monitored the tension of Peters eyes while the latter was on Maxitrol. Dr. Tuao testified that he palpated Peters eyes every time the latter came for a check-up as part of the doctors ocular routine examination, a fact which petitioners failed to rebut. Dr. Tuaos regular conduct of examinations and tests to ascertain the state of Peters eyes negate the very basis of petitioners complaint for damages. As to whether Dr. Tuaos actuations conformed to the standard of care and diligence required in like circumstances, it is presumed to have so conformed in the absence of evidence to the contrary. Even if we are to assume that Dr. Tuao committed negligent acts in his treatment of Peters condition, the causal connection between Dr. Tuaos supposed negligence and Peters injury still needed to be established. The critical and clinching factor in a medical negligence case is proof of the causal connection between the [92] negligence which the evidence established and the plaintiffs injuries. The plaintiff must plead and prove not only that he has been injured and defendant has been at fault, but also that the defendants fault caused the injury. A verdict in a malpractice action cannot be based on speculation or conjecture. Causation must be proven within a reasonable [93] medical probability based upon competent expert testimony. The causation between the physicians negligence and the patients injury may only be established by the presentation of proof that Peters glaucoma would not have occurred but for Dr. Tuaos supposed negligent conduct. Once more, petitioners failed in this regard. Dr. Tuao does not deny that the use of Maxitrol involves the risk of increasing a patients IOP. In fact, this was the reason why he made it a point to palpate Peters eyes every time the latter went to see him -- so he could monitor the tension of Peters eyes. But to say that said medication conclusively caused Peters glaucoma is purely speculative. Peter was diagnosed with open-angle glaucoma. This kind of glaucoma is characterized by an almost complete absence of symptoms and a chronic, insidious [94] course. In open-angle glaucoma, halos around lights and blurring of vision do not occur [95] unless there has been a sudden increase in the intraocular vision. Visual acuity remains [96] good until late in the course of the disease. Hence, Dr. Tuao claims that Peters [97] glaucoma can only be long standing x x x because of the large C:D ratio, and that *t+he steroids provoked the latest glaucoma to be revealed earlier was a blessing in disguise as *Peter+ remained asymptomatic prior to steroid application.

Who between petitioners and Dr. Tuao is in a better position to determine and evaluate the necessity of using Maxitrol to cure Peters EKC vis--vis the attendant risks of using the same? That Dr. Tuao has the necessary training and skill to practice his chosen field is beyond cavil. Petitioners do not dispute Dr. Tuaos qualifications that he has been a physician for close to a decade and a half at the time Peter first came to see him; that he has had various medical training; that he has authored numerous papers in the field of ophthalmology, here and abroad; that he is a Diplomate of the Philippine Board of Ophthalmology; that he occupies various teaching posts (at the time of the filing of the present complaint, he was the Chair of the Department of Ophthalmology and an Associate Professor at the University of the Philippines-Philippine General Hospital and St. Lukes Medical Center, respectively); and that he held an assortment of positions in numerous medical organizations like the Philippine Medical Association, Philippine Academy of Ophthalmology, Philippine Board of Ophthalmology, Philippine Society of Ophthalmic Plastic and Reconstructive Surgery, Philippine Journal of Ophthalmology, Association of Philippine Ophthalmology Professors, et al. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases, he takes the necessary precaution and employs the best of his knowledge and skill in attending to his [98] clients, unless the contrary is sufficiently established. In making the judgment call of treating Peters EKC with Maxitrol, Dr. Tuao took the necessary precaution by palpating Peters eyes to monitor their IOP every time the latter went for a check-up, and he employed the best of his knowledge and skill earned from years of training and practice. In contrast, without supporting expert medical opinions, petitioners bare assertions of negligence on Dr. Tuaos part, which resulted in Peters glaucoma, deserve scant credit. Our disposition of the present controversy might have been vastly different had petitioners presented a medical expert to establish their theory respecting Dr. Tuaos so called negligence. In fact, the record of the case reveals that petitioners counsel recognized the necessity of presenting such evidence. Petitioners even gave an undertaking to the RTC judge that Dr. Agulto or Dr. Aquino would be presented. Alas, no followthrough on said undertaking was made. The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plaintiffs prima facie case; otherwise, a verdict must be returned in favor of [99] plaintiff. The party having the burden of proof must establish his case by a [100] preponderance of evidence. The concept of preponderance of evidence refers to evidence which is of greater weight or more convincing than that which is offered in [101] opposition to it; in the last analysis, it means probability of truth. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition

thereto. Rule 133, Section 1 of the Revised Rules of Court provides the guidelines for determining preponderance of evidence, thus: 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 to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number. Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower court, to establish their case by a preponderance of evidence showing a reasonable connection between Dr. Tuaos alleged breach of duty and the damage sustained by Peters right eye. This, they did not do. In reality, petitioners complaint for damages is merely anchored on a statement in the literature of Maxitrol identifying the risks of its use, and the purported comment of Dr. Agulto another doctor not presented as witness before the RTC concerning the prolonged use of Maxitrol for the treatment of EKC. It seems basic that what constitutes proper medical treatment is a medical question that should have been presented to experts. If no standard is established through expert medical witnesses, then courts have no standard by which to gauge the basic issue of breach thereof by the physician or surgeon. The RTC and Court of Appeals, and even this Court, could not be expected to determine on its own what medical technique should have been utilized for a certain disease or injury. Absent expert medical opinion, the courts would be dangerously engaging in speculations. All told, we are hard pressed to find Dr. Tuao liable for any medical negligence or malpractice where there is no evidence, in the nature of expert testimony, to establish that in treating Peter, Dr. Tuao failed to exercise reasonable care, diligence and skill generally required in medical practice. Dr. Tuaos testimony, that his treatment of Peter conformed in all respects to standard medical practice in this locality, stands unrefuted. Consequently, the RTC and the Court of Appeals correctly held that they had no basis at all to rule that petitioners were deserving of the various damages prayed for in their Complaint. WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed Decision dated 27 September 2006 and Resolution dated 3 July 2007, both of the Court of Appeals in CA-G.R. CV No. 68666, are hereby AFFIRMED. No cost.

[102]

Cayao-Lasam v. Ramolete, G.R. No. 159132, December 18, 2008! AUSTRIA-MARTINEZ, J.: Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court 1 filed by Dr. Fe Cayao-Lasam (petitioner) seeking to annul the Decision dated July 4, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 62206. The antecedent facts: On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha) was brought to the Lorma Medical Center (LMC) in San Fernando, La Union due to vaginal bleeding. Upon advice of petitioner relayed via telephone, Editha was admitted to the LMC 2 on the same day. A pelvic sonogram was then conducted on Editha revealing the fetus 3 4 weak cardiac pulsation. The following day, Edithas repeat pelvic sonogram showed that aside from the fetus weak cardiac pulsation, no fetal movement was also appreciated. Due to persistent and profuse vaginal bleeding, petitioner advised Editha to undergo a Dilatation and Curettage Procedure (D&C) or "raspa." On July 30, 1994, petitioner performed the D&C procedure. Editha was discharged from the hospital the following day. On September 16, 1994, Editha was once again brought at the LMC, as she was suffering from vomiting and severe abdominal pains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly informed Editha that there 5 was a dead fetus in the latters womb. After, Editha underwent laparotomy, she was found to have a massive intra-abdominal hemorrhage and a ruptured uterus. Thus, Editha had to 6 undergo a procedure for hysterectomy and as a result, she has no more chance to bear a child. On November 7, 1994, Editha and her husband Claro Ramolete (respondents) filed a 7 Complaint for Gross Negligence and Malpractice against petitioner before the Professional Regulations Commission (PRC). Respondents alleged that Edithas hysterectomy was caused by petitioners unmitigated negligence and professional incompetence in conducting the D&C procedure and the 8 petitioners failure to remove the fetus inside Edithas womb. Among the alleged acts of negligence were: first, petitioners failure to check up, visit or administer medication on 9 Editha during her first day of confinement at the LMC; second, petitioner recommended that a D&C procedure be performed on Editha without conducting any internal 10 examination prior to the procedure; third, petitioner immediately suggested a D&C 11 procedure instead of closely monitoring the state of pregnancy of Editha. 12 In her Answer, petitioner denied the allegations of negligence and incompetence with the following explanations: upon Edithas confirmation that she would seek admission at the LMC, petitioner immediately called the hospital to anticipate the arrival of Editha and ordered through the telephone the medicines Editha needed to take, which the nurses carried out; petitioner visited Editha on the morning of July 28, 1994 during her rounds; on July 29, 1994, she performed an internal examination on Editha and she discovered that the latters cervix was already open, thus, petitioner discussed the possible D&C procedure, should the bleeding become more profuse; on July 30 1994, she conducted another internal examination on Editha, which revealed that the latters cervix was still open; Editha persistently complained of her vaginal bleeding and her passing out of some meaty mass in the process of urination and bowel movement; thus, petitioner advised Editha to

undergo D&C procedure which the respondents consented to; petitioner was very vocal in 13 the operating room about not being able to see an abortus; taking the words of Editha to mean that she was passing out some meaty mass and clotted blood, she assumed that the abortus must have been expelled in the process of bleeding; it was Editha who insisted that she wanted to be discharged; petitioner agreed, but she advised Editha to return for checkup on August 5, 1994, which the latter failed to do. Petitioner contended that it was Edithas gross negligence and/or omission in insisting to be discharged on July 31, 1994 against doctors advice and her unjustified failure to return for check-up as directed by petitioner that contributed to her life-threatening condition on September 16, 1994; that Edithas hysterectomy was brought about by her very abnormal pregnancy known as placenta increta, which was an extremely rare and very unusual case of abdominal placental implantation. Petitioner argued that whether or not a D&C procedure was done by her or any other doctor, there would be no difference at all because at any stage of gestation before term, the uterus would rupture just the same. On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a 14 Decision, exonerating petitioner from the charges filed against her. The Board held: Based on the findings of the doctors who conducted the laparotomy on Editha, hers is a case of Ectopic Pregnancy Interstitial. This type of ectopic pregnancy is one that is being protected by the uterine muscles and manifestations may take later than four (4) months and only attributes to two percent (2%) of ectopic pregnancy cases. When complainant Editha was admitted at Lorma Medical Center on July 28, 1994 due to vaginal bleeding, an ultra-sound was performed upon her and the result of the Sonogram Test reveals a morbid fetus but did not specify where the fetus was located. Obstetricians will assume that the pregnancy is within the uterus unless so specified by the Sonologist who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she was not able to determine that complainant Editha is having an ectopic pregnancy interstitial. The D&C conducted on Editha is necessary considering that her cervix is already open and so as to stop the profuse bleeding. Simple curettage cannot remove a fetus if the patient is having an ectopic pregnancy, since ectopic pregnancy is pregnancy conceived outside the uterus and curettage is done only within the uterus. Therefore, a more extensive operation needed in this case of pregnancy in order 15 to remove the fetus. Feeling aggrieved, respondents went to the PRC on appeal. On November 22, 2000, the 16 PRC rendered a Decision reversing the findings of the Board and revoking petitioners 17 authority or license to practice her profession as a physician. Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of the Rules 18 of Court. Petitioner also dubbed her petition as one for certiorari under Rule 65 of the Rules of Court. In the Decision dated July 4, 2003, the CA held that the Petition for Review under Rule 43 of the Rules of Court was an improper remedy, as the enumeration of the quasi19 judicial agencies in Rule 43 is exclusive. PRC is not among the quasi-judicial bodies whose judgment or final orders are subject of a petition for review to the CA, thus, the petition for review of the PRC Decision, filed at the CA, was improper. The CA further held that should the petition be treated as a petition for certiorari under Rule 65, the same would still be 20 dismissed for being improper and premature. Citing Section 26 of Republic Act (R.A.) No.

2382 or the Medical Act of 1959, the CA held that the plain, speedy and adequate remedy under the ordinary course of law which petitioner should have availed herself of was to 21 appeal to the Office of the President. Hence, herein petition, assailing the decision of the CA on the following grounds: 1. THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE PROFESSIONAL REGULATION[S] COMMISSION (PRC) WAS EXCLUDED AMONG THE QUASI-JUDICIAL AGENCIES CONTEMPLATED UNDER RULE 43 OF THE RULES OF CIVIL PROCEDURE; 2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE PURVIEW OF RULE 43 OF THE RULES OF CIVIL PROCEDURE, THE PETITIONER WAS NOT PRECLUDED FROM FILING A PETITION FOR CERTIORARI WHERE THE DECISION WAS ALSO ISSUED IN EXCESS OF OR WITHOUT JURISDICTION, OR WHERE THE DECISION WAS A PATENT NULLITY; 3. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO APPEAL FROM THE DECISION OF THE BOARD OF MEDICINE TO THE PROFESSIONAL REGULATION[S] COMMISSION; 4. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING FOR IMPROPER FORUM THE PETITION FOR REVIEW/PETITION FOR CERTIORARI WITHOUT GOING OVER THE MERITS OF THE GROUNDS RELIED UPON BY THE PETITIONER; 5. PRCS GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE TO BE HEARD ON APPEAL IS A CLEAR VIOLATION OF HER CONSTITUTIONAL RIGHT TO DUE PROCESS AND HAS THE EFFECT OF RENDERING THE JUDGMENT NULL AND VOID; 6. COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO LACK OF JURISDICTION, IN ACCEPTING AND CONSIDERING THE MEMORANDUM ON APPEAL WITHOUT PROOF OF SERVICE TO HEREIN PETITIONER, AND IN VIOLATION OF ART. IV, SEC. 35 OF THE RULES AND REGULATIONS GOVERNING THE REGULATION AND PRACTICE OF PROFESSIONALS; 7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING PETITIONERS LICENSE TO PRACTICE MEDICINE WITHOUT AN EXPERT TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF RESPONDENT EDITHAT [SIC] RAMOLETES INJURY; 8. PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN TOTALLY DISREGARDING THE FINDING OF THE BOARD OF MEDICINE, WHICH HAD THE NECESSARY COMPETENCE AND EXPERTISE TO ESTABLISH THE CAUSE OF RESPONDENT EDITHAS INJURY, AS WELL AS THE TEST IMONY OF THE EXPERT WITNESS AUGUSTO MANALO, M.D. ;[and] 9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING CONCLUSIONS OF FACTS THAT WERE NOT ONLY UNSUPPORTED BY EVIDENCE BUT WERE ACTUALLY 22 CONTRARY TO EVIDENCE ON RECORD. The Court will first deal with the procedural issues. Petitioner claims that the law does not allow complainants to appeal to the PRC from the decision of the Board. She invokes Article IV, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals, which provides:

Sec. 35. The respondent may appeal the decision of the Board within thirty days from receipt thereof to the Commission whose decision shall be final. Complainant, when allowed by law, may interpose an appeal from the Decision of the Board within the same period. (Emphasis supplied) Petitioner asserts that a careful reading of the above law indicates that while the respondent, as a matter of right, may appeal the Decision of the Board to the Commission, the complainant may interpose an appeal from the decision of the Board only when so 23 allowed by law. Petitioner cited Section 26 of Republic Act No. 2382 or "The Medical Act of 1959," to wit: Section 26. Appeal from judgment. The decision of the Board of Medical Examiners (now Medical Board) shall automatically become final thirty days after the date of its promulgation unless the respondent, during the same period, has appealed to the Commissioner of Civil Service (now Professional Regulations Commission) and later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the case, or may file in court a petition for certiorari. Petitioner posits that the reason why the Medical Act of 1959 allows only the respondent in an administrative case to file an appeal with the Commission while the complainant is not allowed to do so is double jeopardy. Petitioner is of the belief that the revocation of 24 license to practice a profession is penal in nature. The Court does not agree. For one, the principle of double jeopardy finds no application in administrative cases. Double jeopardy attaches only: (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the 25 express consent of the accused. These elements were not present in the proceedings before the Board of Medicine, as the proceedings involved in the instant case were administrative and not criminal in nature. The Court has already held that double jeopardy 26 does not lie in administrative cases. Moreover, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals cited by petitioner was subsequently amended to read: Sec. 35. The complainant/respondent may appeal the order, the resolution or the decision of the Board within thirty (30) days from receipt thereof to the Commission whose decision shall be final and executory. Interlocutory order shall not be appealable to the Commission. (Amended by Res. 174, Series of 27 1990). (Emphasis supplied) Whatever doubt was created by the previous provision was settled with said amendment. It is axiomatic that the right to appeal is not a natural right or a part of due process, but a 28 mere statutory privilege that may be exercised only in the manner prescribed by law. In this case, the clear intent of the amendment is to render the right to appeal from a decision of the Board available to both complainants and respondents. Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution No. 06342(A), or the New Rules of Procedure in Administrative Investigations in the Professional Regulations Commission and the Professional Regulatory Boards, which provides for the method of appeal, to wit: Sec. 1. Appeal; Period Non-Extendible.- The decision, order or resolution of the Board shall be final and executory after the lapse of fifteen (15) days from receipt

of the decision, order or resolution without an appeal being perfected or taken by either the respondent or the complainant. A party aggrieved by the decision, order or resolution may file a notice of appeal from the decision, order or resolution of the Board to the Commission within fifteen (15) days from receipt thereof, and serving upon the adverse party a notice of appeal together with the appellants brief or memorandum on appeal, and paying the appeal and legal 29 research fees. x x x The above-stated provision does not qualify whether only the complainant or respondent may file an appeal; rather, the new rules provide that "a party aggrieved" may file a notice of appeal. Thus, either the complainant or the respondent who has been aggrieved by the decision, order or resolution of the Board may appeal to the Commission. It is an elementary rule that when the law speaks in clear and categorical language, there is no 30 need, in the absence of legislative intent to the contrary, for any interpretation. Words and phrases used in the statute should be given their plain, ordinary, and common usage or 31 meaning. Petitioner also submits that appeals from the decisions of the PRC should be with the CA, 32 as Rule 43 of the Rules of Court was precisely formulated and adopted to provide for a 33 uniform rule of appellate procedure for quasi-judicial agencies. Petitioner further contends that a quasi-judicial body is not excluded from the purview of Rule 43 just 34 because it is not mentioned therein. On this point, the Court agrees with the petitioner. Sec. 1, Rule 43 of the Rules of Court provides: Section 1. Scope. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals, and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized by law. (Emphasis supplied) Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly enumerated under Section 1, Rule 43 of the Rules of Court. However, its absence from the enumeration does not, by this fact alone, imply its exclusion from the coverage of said 35 Rule. The Rule expressly provides that it should be applied to appeals from awards, judgments final orders or resolutions of any quasi-judicial agency in the exercise of its quasi-judicial functions. The phrase "among these agencies" confirms that the enumeration 36 made in the Rule is not exclusive to the agencies therein listed. 37 Specifically, the Court, in Yang v. Court of Appeals, ruled 38 that Batas Pambansa (B.P.) Blg. 129 conferred upon the CA exclusive appellate jurisdiction over appeals from decisions of the PRC. The Court held:

The law has since been changed, however, at least in the matter of the particular court to which appeals from the Commission should be taken. On August 14, 1981, Batas Pambansa Bilang 129 became effective and in its Section 29, conferred on the Court of Appeals "exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions except those falling under the appellate jurisdiction of the Supreme Court. x x x." In virtue of BP 129, appeals from the Professional Regulations Commission are now 39 exclusively cognizable by the Court of Appeals. (Emphasis supplied) Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil 40 Procedure, lodged with the CA such jurisdiction over the appeals of decisions made by the PRC. Anent the substantive merits of the case, petitioner questions the PRC decision for being without an expert testimony to support its conclusion and to establish the cause of Edithas injury. Petitioner avers that in cases of medical malpractice, expert testimony is necessary 41 to support the conclusion as to the cause of the injury. Medical malpractice 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 42 surrounding circumstances. In order to successfully pursue such a claim, a patient must prove that the physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would not have done, and that the failure or action caused 43 injury to the patient. There are four elements involved in medical negligence cases: duty, breach, injury and 44 proximate causation. A physician-patient relationship was created when Editha employed the services of the petitioner. As Edithas physician, petitioner was duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a condition under the 45 same circumstances. The breach of these professional duties of skill and care, or their improper performance by a physician surgeon, whereby the patient is injured in body or in 46 health, constitutes actionable malpractice. As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach thereof, expert testimony is 47 essential. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that 48 expert testimony is usually necessary to support the conclusion as to causation. In the present case, respondents did not present any expert testimony to support their claim that petitioner failed to do something which a reasonably prudent physician or surgeon would have done. Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who was clearly an expert on the subject. Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is to testify, either by the study of recognized 49 authorities on the subject or by practical experience. Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored various publications on the subject, and is a professor at the University of the 50 Philippines. According to him, his diagnosis of Edithas case was "Ectopic Pregnancy 51 Interstitial (also referred to as Cornual), Ruptured." In stating that the D&C procedure

was not the proximate cause of the rupture of Edithas uterus resulting in her hysterectomy, Dr. Manalo testified as follows: Atty. Hidalgo: Q: Doctor, we want to be clarified on this matter. The complainant had testified here that the D&C was the proximate cause of the rupture of the uterus. The condition which she found herself in on the second admission. Will you please tell us whether that is true or not? A: Yah, I do not think so for two reasons. One, as I have said earlier, the instrument cannot reach the site of the pregnancy, for it to further push the pregnancy outside the uterus. And, No. 2, I was thinking a while ago about another reason- well, why I dont think so, because it is the triggering factor for the rupture, it could havethe rupture could have occurred much earlier, right after the D&C or a few days after the D&C. Q: In this particular case, doctor, the rupture occurred to have happened minutes prior to the hysterectomy or right upon admission on September 15, 1994 which is about 1 months after the patient was discharged, after the D&C was conducted. Would you tell us whether there is any relation at all of the D&C and the rupture in this particular instance? A: I dont think so for the two reasons that I have just mentioned- that it would not be possible for the instrument to reach the site of pregnancy. And, No. 2, if it is because of the D&C that rupture could have occurred 52 earlier. (Emphases supplied) Clearly, from the testimony of the expert witness and the reasons given by him, it is evident that the D&C procedure was not the proximate cause of the rupture of Edithas uterus. During his cross-examination, Dr. Manalo testified on how he would have addressed Edithas condition should he be placed in a similar circumstance as the petitioner. He stated: Atty. Ragonton: Q: Doctor, as a practicing OB-Gyne, when do you consider that you have done a good, correct and ideal dilatation and curettage procedure? A: Well, if the patient recovers. If the patient gets well. Because even after the procedure, even after the procedure you may feel that you have scraped everything, the patient stops bleeding, she feels well, I think you should still have some reservations, and wait a little more time. Q: If you were the OB-Gyne who performed the procedure on patient Editha Ramolete, would it be your standard practice to check the fetal parts or fetal tissues that were allegedly removed? A: From what I have removed, yes. But in this particular case, I think it was assumed that it was part of the meaty mass which was expelled at the time she was urinating and flushed in the toilet. So theres no way. Q: There was [sic] some portions of the fetal parts that were removed? A: No, it was described as scanty scraping if I remember it rightscanty. Q: And you would not mind checking those scant or those little parts that were removed? A: Well, the fact that it was described means, I assume that it was checked, no. It was described as scanty and the color also, I think was

described. Because it would be very unusual, even improbable that it would not be examined, because when you scrape, the specimens are right there before your eyes. Its in front of you. You can touch it. In fact, some of them will stick to the instrument and therefore to peel it off from the instrument, you have to touch them. So, automatically they are examined closely. Q: As a matter of fact, doctor, you also give telephone orders to your patients through telephone? A: Yes, yes, we do that, especially here in Manila because you know, sometimes a doctor can also be tied-up somewhere and if you have to wait until he arrive at a certain place before you give the order, then it would be a lot of time wasted. Because if you know your patient, if you have handled your patient, some of the symptoms you can interpret that comes with practice. And, I see no reason for not allowing telephone orders unless it is the first time that you will be encountering the patient. That you have no idea what the problem is. Q: But, doctor, do you discharge patients without seeing them? A: Sometimes yes, depending on how familiar I am with the patient. We are on the question of telephone orders. I am not saying that that is the idle [sic] thing to do, but I think the reality of present day practice somehow justifies telephone orders. I have patients whom I have justified and then all of a sudden, late in the afternoon or late in the evening, would suddenly call they have decided that they will go home inasmuch as they anticipated that I will discharge them the following day. So, I just call and ask our resident on duty or the nurse to allow them to go because I have seen that patient and I think I have full grasp of her problems. So, thats when I make this telephone orders. And, of course 53 before giving that order I ask about how she feels. (Emphases supplied) From the foregoing testimony, it is clear that the D&C procedure was conducted in accordance with the standard practice, with the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances, and that there was nothing irregular in the way the petitioner dealt with Editha. Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under 54 Article 2176 of the Civil Code. The defenses in an action for damages, provided for under Article 2179 of the Civil Code are: Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result 55 would not have occurred. An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable consequence of the 56 act or omission. In the present case, the Court notes the findings of the Board of Medicine: When complainant was discharged on July 31, 1994, herein respondent advised her to return on August 4, 1994 or four (4) days after the D&C. This advise was

clear in complainants Discharge Sheet. However, complainant failed to do so. This being the case, the chain of continuity as required in order that the doctrine of proximate cause can be validly invoked was interrupted. Had she 57 returned, the respondent could have examined her thoroughly. x x x (Emphases supplied) Also, in the testimony of Dr. Manalo, he stated further that assuming that there was in fact a misdiagnosis, the same would have been rectified if Editha followed the petitioners order to return for a check-up on August 4, 1994. Dr. Manalo stated: Granting that the obstetrician-gynecologist has been misled (justifiably) up to thus point that there would have been ample opportunity to rectify the misdiagnosis, had the patient returned, as instructed for her follow-up evaluation. It was one and a half months later that the patient sought consultation with another doctor. The continued growth of an ectopic pregnancy, until its eventual rupture, is a dynamic process. Much change in physical findings could be expected in 1 months, including the emergence of 58 suggestive ones. It is undisputed that Editha did not return for a follow-up evaluation, in defiance of the petitioners advise. Editha omitted the diligence required by the circumstances which could have avoided the injury. The omission in not returning for a follow-up evaluation played a substantial part in bringing about Edithas own injury. Had Editha returned, petitioner could have conducted the proper medical tests and procedure necessary to determine Edithas health condition and applied the corresponding treatment w hich could have prevented the rupture of Edithas uterus. The D&C procedure having been conducted in accordance with the standard medical practice, it is clear that Edithas omission was the proximate cause of her own injury and not merely a contributory negligence on her part. Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person injured, which, concurring with the defendants negligence, is the 59 proximate cause of the injury. Difficulty seems to be apprehended in deciding which acts 60 of the injured party shall be considered immediate causes of the accident. Where the immediate cause of an accident resulting in an injury is the plaintiffs own act, which contributed to the principal occurrence as one of its determining factors, he cannot recover 61 damages for the injury. Again, based on the evidence presented in the present case under review, in which no negligence can be attributed to the petitioner, the immediate cause of the accident resulting in Edithas injury was her own omission when she did not return for a follow-up check up, in defiance of petitioners orders. The immediate cause of Edithas injury was her own act; thus, she cannot recover damages from the injury . Lastly, petitioner asserts that her right to due process was violated because she was never informed by either respondents or by the PRC that an appeal was pending before the 62 PRC. Petitioner claims that a verification with the records section of the PRC revealed that on April 15, 1999, respondents filed a Memorandum on Appeal before the PRC, which did 63 not attach the actual registry receipt but was merely indicated therein. Respondents, on the other hand avers that if the original registry receipt was not attached to the Memorandum on Appeal, PRC would not have entertained the appeal or accepted 64 such pleading for lack of notice or proof of service on the other party. Also, the registry receipt could not be appended to the copy furnished to petitioners former counsel, because the registry receipt was already appended to the original copy of the 65 Memorandum of Appeal filed with PRC.

It is a well-settled rule that when service of notice is an issue, the rule is that the person alleging that the notice was served must prove the fact of service. The burden of proving 66 notice rests upon the party asserting its existence. In the present case, respondents did not present any proof that petitioner was served a copy of the Memorandum on Appeal. Thus, respondents were not able to satisfy the burden of proving that they had in fact informed the petitioner of the appeal proceedings before the PRC. 67 In EDI-Staffbuilders International, Inc. v. National Labor Relations Commission, in which the National Labor Relations Commission failed to order the private respondent to furnish the petitioner a copy of the Appeal Memorandum, the Court held that said failure deprived the petitioner of procedural due process guaranteed by the Constitution, which could have served as basis for the nullification of the proceedings in the appeal. The same holds true in the case at bar. The Court finds that the failure of the respondents to furnish the petitioner a copy of the Memorandum of Appeal submitted to the PRC constitutes a violation of due process. Thus, the proceedings before the PRC were null and void. All told, doctors are protected by a special rule of law. They are not guarantors of care. 68 They are not insurers against mishaps or unusual consequences specially so if the patient herself did not exercise the proper diligence required to avoid the injury. WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July 4, 2003 in CA-GR SP No. 62206 is hereby REVERSED and SET ASIDE. The Decision of the Board of Medicine dated March 4, 1999 exonerating petitioner is AFFIRMED. No pronouncement as to costs.

Dr. Rubi Li v. Sps. Tamayo, G.R. No. 165279, June 7, 2011. VILLARAMA, JR., J.: Challenged in this petition for review on certiorari is the Decision dated June 15, [2] 2004 as well as the Resolution dated September 1, 2004 of the Court of Appeals (CA) in [3] CA-G.R. CV No. 58013 which modified the Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904. The factual antecedents: On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a biopsy of the mass located in her lower extremity at the St. Lukes Medical Center (SLMC). Results showed that Angelica was suffering from osteosarcoma, osteoblastic [4] type, a high-grade (highly malignant) cancer of the bone which usually afflicts teenage children. Following this diagnosis and as primary intervention, Angelicas right leg was amputated by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment to eliminate any remaining cancer cells, and hence minimize the chances of recurrence and prevent the disease from spreading to other parts of the patients body ( metastasis), chemotherapy was suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist. On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993, just eleven (11) days after the (intravenous) administration of the first cycle of the chemotherapy regimen. Because SLMC refused to release a death certificate without full payment of their hospital bill, respondents brought the cadaver of Angelica to the Philippine National Police (PNP) Crime Laboratory at Camp Crame for postmortem examination. The Medico-Legal Report issued by said institution indicated the
[1]

cause of death as Hypovolemic shock secondary to multiple organ hemorrhages and [5] Disseminated Intravascular Coagulation. [6] On the other hand, the Certificate of Death issued by SLMC stated the cause of death as follows: Immediate cause : a. Osteosarcoma, Status Post AKA Antecedent cause : b. (above knee amputation) Underlying cause : c. Status Post Chemotherapy [7] On February 21, 1994, respondents filed a damage suit against petitioner, Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC. Respondents charged them with negligence and disregard of Angelicas safety, health and welfare by their careless administration of the chemotherapy drugs, their failure to observe the essential precautions in detecting early the symptoms of fatal blood platelet decrease and stopping early on the chemotherapy, which bleeding led to hypovolemic shock that caused Angelicas untimely demise. Further, it was specifically averred that petitioner assured the respondents that Angelica would recover in view of 95% chance of healing with chemotherapy (Magiging normal na ang anak nyo basta ma-chemo. 95% ang healing) and when asked regarding the side effects, petitioner mentioned only slight vomiting, hair loss and weakness (Magsusuka ng kaunti. Malulugas ang buhok. Manghihina). Respondents thus claimed that they would not have given their consent to chemotherapy had petitioner not falsely assured them of its side effects. [8] In her answer, petitioner denied having been negligent in administering the chemotherapy drugs to Angelica and asserted that she had fully explained to respondents how the chemotherapy will affect not only the cancer cells but also the patients normal body parts, including the lowering of white and red blood cells and platelets. She claimed that what happened to Angelica can be attributed to malignant tumor cells possibly left behind after surgery. Few as they may be, these have the capacity to compete for nutrients such that the body becomes so weak structurally (cachexia) and functionally in the form of lower resistance of the body to combat infection. Such infection becomes uncontrollable and triggers a chain of events (sepsis or septicemia) that may lead to bleeding in the form of Disseminated Intravascular Coagulation (DIC), as what the autopsy report showed in the case of Angelica. Since the medical records of Angelica were not produced in court, the trial and appellate courts had to rely on testimonial evidence, principally the declarations of petitioner and respondents themselves. The following chronology of events was gathered: On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery and discussed with them Angelicas condition. Petitioner told respondents that Angelica should be given two to three weeks to recover from the operation before starting chemotherapy. Respondents were apprehensive due to financial constraints as Reynaldo earns only from P70,000.00 to P150,000.00 a year from his jewelry and watch repairing [9] business. Petitioner, however, assured them not to worry about her professional fee and told them to just save up for the medicines to be used. Petitioner claimed that she explained to respondents that even when a tumor is removed, there are still small lesions undetectable to the naked eye, and that adjuvant chemotherapy is needed to clean out the small lesions in order to lessen the chance of the cancer to recur. She did not give the respondents any assurance that chemotherapy will cure Angelicas cancer. During these consultations with respondents, she explained the following side effects of chemotherapy treatment to respondents: (1) falling hair; (2)

nausea and vomiting; (3) loss of appetite; (4) low count of white blood cells [WBC], red blood cells [RBC] and platelets; (5) possible sterility due to the effects on Angelicas ovary; (6) damage to the heart and kidneys; and (7) darkening of the skin especially when exposed to sunlight. She actually talked with respondents four times, once at the hospital after the surgery, twice at her clinic and the fourth time when Angelicas mother called her through [10] long distance. This was disputed by respondents who countered that petitioner gave them assurance that there is 95% chance of healing for Angelica if she undergoes [11] chemotherapy and that the only side effects were nausea, vomiting and hair loss. Those [12] were the only side-effects of chemotherapy treatment mentioned by petitioner. On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be readmitted after two or three weeks for the chemotherapy. On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with them the results of the laboratory tests requested by petitioner: Angelicas chest x-ray, ultrasound of the liver, creatinine and complete liver function [13] tests. Petitioner proceeded with the chemotherapy by first administering hydration [14] fluids to Angelica. The following day, August 19, petitioner began administering three [15] [16] [17] chemotherapy drugs Cisplatin, Doxorubicin and Cosmegen [18] intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo Marbella and [19] Dr. Grace Arriete. In his testimony, Dr. Marbella denied having any participation in [20] administering the said chemotherapy drugs. On the second day of chemotherapy, August 20, respondents noticed reddish [21] discoloration on Angelicas face. They asked petitioner about it, but she merely [22] quipped, Wala yan. Epekto ng gamot. Petitioner recalled noticing the skin rashes on the nose and cheek area of Angelica. At that moment, she entertained the possibility that [23] Angelica also had systemic lupus and consulted Dr. Victoria Abesamis on the matter. On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus provided with oxygen inhalation apparatus. This time, the reddish discoloration on Angelicas face had extended to her nec k, but petitioner dismissed it again [24] as merely the effect of medicines. Petitioner testified that she did not see any discoloration on Angelicas face, nor did she notice any difficulty in the childs breathing. She claimed that Angelica merely complained of nausea and was given ice [25] chips. On August 22, 1993, at around ten oclock in the morning, upon seeing that their child could not anymore bear the pain, respondents pleaded with petitioner to stop the chemotherapy. Petitioner supposedly replied: Dapat 15 Cosmegen pa iyan. Okay, lets observe. If pwede na, bigyan uli ng chemo. At this point, respondents asked petitioners permission to bring their child home. Later in the evening, Angelica passed black stool and [26] reddish urine. Petitioner countered that there was no record of blackening of stools but only an episode of loose bowel movement (LBM). Petitioner also testified that what Angelica complained of was carpo-pedal spasm, not convulsion or epileptic attack, as respondents call it (petitioner described it in the vernacular as naninigas ang kamay at paa). She then requested for a serum calcium determination and stopped the chemotherapy. When Angelica was given calcium gluconate, the spasm and numbness [27] subsided. The following day, August 23, petitioner yielded to respondents request to take Angelica home. But prior to discharging Angelica, petitioner requested for a repeat serum

calcium determination and explained to respondents that the chemotherapy will be temporarily stopped while she observes Angelicas muscle twitching and serum calcium level. Take-home medicines were also prescribed for Angelica, with instructions to respondents that the serum calcium test will have to be repeated after seven days. Petitioner told respondents that she will see Angelica again after two weeks, but [28] respondents can see her anytime if any immediate problem arises. However, Angelica remained in confinement because while still in the premises of SLMC, her convulsions returned and she also had LBM. Angelica was given oxygen and [29] administration of calcium continued. The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They also noticed that she had a fever and had difficulty [30] breathing. Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified that at around 4:50 that afternoon, Angelica developed difficulty in breathing and had fever. She then requested for an electrocardiogram analysis, and infused calcium gluconate on the [31] patient at a stat dose. She further ordered that Angelica be given Bactrim, a synthetic [32] [33] antibacterial combination drug, to combat any infection on the childs body. By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her anus and urine. When Lina asked petitioner what was happening to her daughter, petitioner replied, Bagsak ang platelets ng anak mo. Four units of platelet concentrates were then transfused to Angelica. Petitioner prescribed Solucortef. Considering that Angelicas fever was high and her white blood cell count was low, petitioner prescribed Leucomax. About four to eight bags of blood, consisting of packed red blood cells, fresh whole blood, or platelet concentrate, were transfused to Angelica. For two days (August 27 to 28), Angelica continued bleeding, but petitioner claimed it was lesser in amount and in frequency. Petitioner also denied that there were [34] gadgets attached to Angelica at that time. On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots that should not be removed. Respondents claimed that Angelica passed about half a liter of blood through her anus at around seven oclock that evening, which petitioner likewise denied. On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric tubes were inserted into her weakened body. An aspiration of the nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was given more platelet concentrate and fresh whole blood, which petitioner claimed improved her condition. Petitioner told Angelica not to remove the endotracheal tube because this may [35] induce further bleeding. She was also transferred to the intensive care unit to avoid infection. The next day, respondents claimed that Angelica became hysterical, vomited blood and her body turned black. Part of Angelicas skin was also noted to be shredding by just rubbing cotton on it. Angelica was so restless she removed those gadgets attached to her, saying Ayaw ko na; there were tears in her eyes and she kept turning her head. Observing her daughter to be at the point of death, Lina asked for a doctor but the [36] latter could not answer her anymore. At this time, the attending physician was Dr. Marbella who was shaking his head saying that Angelicas platelets were down and respondents should pray for their daughter. Reynaldo claimed that he was introduced to a pediatrician who took over his daughters case, Dr. Abesamis who also told him to pray for his daughter. Angelica continued to have difficulty in her breathing and blood was being

suctioned from her stomach. A nurse was posted inside Angelicas room to assist her breathing and at one point they had to revive Angelica by pumping her chest. Thereafter, Reynaldo claimed that Angelica already experienced difficulty in urinating and her bowel consisted of blood-like fluid. Angelica requested for an electric fan as she was in pain. Hospital staff attempted to take blood samples from Angelica but were unsuccessful because they could not even locate her vein. Angelica asked for a fruit but when it was given to her, she only smelled it. At this time, Reynaldo claimed he could not find either petitioner or Dr. Marbella. That night, Angelica became hysterical and started removing those gadgets attached to her. At three oclock in the morning of September 1, a priest came and they prayed before Angelica expired. Petitioner finally came back and [37] supposedly told respondents that there was malfunction or bogged-down machine. By petitioners own account, Angelica was merely irritable that day (August [38] 31). Petitioner noted though that Angelicas skin was indeed sloughing off. She [39] stressed that at 9:30 in the evening, Angelica pulled out her endotracheal tube. On September 1, exactly two weeks after being admitted at SLMC for chemotherapy, Angelica [40] died. The cause of death, according to petitioner, was septicemia, or overwhelming [41] infection, which caused Angelicas other organs to fail. Petitioner attributed this to the [42] patients poor defense mechanism brought about by the cancer itself. While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed that petitioner acted arrogantly and called him names. He was asked to sign a [43] promissory note as he did not have cash to pay the hospital bill. Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, MedicoLegal Officer of the PNP-Crime Laboratory who conducted the autopsy on Angelicas cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed at the Department of Health (DOH) Operations and Management Services. Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1) there were fluids recovered from the abdominal cavity, which is not normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas adjacent to, the esophagus; (4) lungs were heavy with bleeding at the back and lower portion, due to accumulation of fluids; (4) yellowish discoloration of the liver; (5) kidneys showed appearance of facial shock on account of hemorrhages; and (6) reddishness on external surface of the spleen. All these were the end result of hypovolemic shock secondary to multiple organ hemorrhages and disseminated intravascular coagulation. Dr. Vergara opined that this can be attributed to the chemical agents in the drugs given to the victim, which caused platelet reduction resulting to bleeding sufficient to cause the victims death. The time lapse for the production of DIC in the case of Angelica (from the time of diagnosis of sarcoma) was too short, considering the survival rate of about 3 years. The witness conceded that the victim will also die of osteosarcoma even with amputation or chemotherapy, but in this case Angelicas death was not caused by osteosa rcoma. Dr. Vergara admitted that she is not a pathologist but her statements were based on the opinion of an oncologist whom she had interviewed. This oncologist supposedly said that if the victim already had DIC prior to the chemotherapy, the hospital staff could have [44] detected it. On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain to the patient or his relatives every known side effect of the procedure or therapeutic agents to be administered, before securing the consent of the patient or his

relatives to such procedure or therapy. The physician thus bases his assurance to the patient on his personal assessment of the patients condition and his knowledge of the general effects of the agents or procedure that will be allowed on the patient. Dr. Balmaceda stressed that the patient or relatives must be informed of all known side effects [45] based on studies and observations, even if such will aggravate the patients condition. Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity, testified for the defendants. He explained that in case of malignant tumors, there is no guarantee that the ablation or removal of the amputated part will completely cure the cancer. Thus, surgery is not enough. The mortality rate of osteosarcoma at the time of modern chemotherapy and early diagnosis still remains at 80% to 90%. Usually, deaths occur from metastasis, or spread of the cancer to other vital organs like the liver, causing systemic complications. The modes of therapy available are the removal of the primary source of the cancerous growth and then the residual cancer cells or metastasis should be treated with chemotherapy. Dr. Tamayo further explained that patients with osteosarcoma have poor defense mechanism due to the cancer cells in the blood stream. In the case of Angelica, he had previously explained to her parents that after the surgical procedure, chemotherapy is imperative so that metastasis of these cancer cells will hopefully be addressed. He referred the patient to petitioner because he felt that petitioner is a competent oncologist. Considering that this type of cancer is very aggressive and will metastasize early, it will cause the demise of the patient should there be no early intervention (in this case, the patient developed sepsis which caused her death) . Cancer cells in the blood cannot be seen by the naked eye nor detected through bone scan. On cross-examination, Dr. Tamayo stated that of the more than 50 child patients who had osteogenic sarcoma he had handled, he thought that probably all of them died within six months from amputation because he did not see them anymore after follow-up; it is either [46] they died or had seen another doctor. In dismissing the complaint, the trial court held that petitioner was not liable for damages as she observed the best known procedures and employed her highest skill and knowledge in the administration of chemotherapy drugs on Angelica but despite all efforts said patient died. It cited the testimony of Dr. Tamayo who testified that he considered petitioner one of the most proficient in the treatment of cancer and that the patient in this case was afflicted with a very aggressive type of cancer necessitating chemotherapy as [47] adjuvant treatment. Using the standard of negligence laid down in Picart v. Smith, the trial court declared that petitioner has taken the necessary precaution against the adverse effect of chemotherapy on the patient, adding that a wrong decision is not by itself negligence. Respondents were ordered to pay their unpaid hospital bill in the amount [48] of P139,064.43. Respondents appealed to the CA which, while concurring with the trial courts finding that there was no negligence committed by the petitioner in the administration of chemotherapy treatment to Angelica, found that petitioner as her attending physician failed to fully explain to the respondents all the known side effects of chemotherapy. The appellate court stressed that since the respondents have been told of only three side effects of chemotherapy, they readily consented thereto. Had petitioner made known to respondents those other side effects which gravely affected their child -- such as carpopedal spasm, sepsis, decrease in the blood platelet count, bleeding, infections and eventual death -- respondents could have decided differently or adopted a different course of action which could have delayed or prevented the early death of their child.

The CA thus declared: Plaintiffs-appellants child was suffering from a malignant disease. The attending physician recommended that she undergo chemotherapy treatment after surgery in order to increase her chances of survival. Appellants consented to the chemotherapy treatment because they believed in Dr. Rubi Lis representation that the deceased would have a strong chance of survival after chemotherapy and also because of the representation of appellee Dr. Rubi Li that there were only three possible side-effects of the treatment. However, all sorts of painful side-effects resulted from the treatment including the premature death of Angelica. The appellants were clearly and totally unaware of these other side-effects which manifested only during the chemotherapy treatment. This was shown by the fact that every time a problem would take place regarding Angelicas condition (like an unexpected side-effect manifesting itself), they would immediately seek explanation from Dr. Rubi Li. Surely, those unexpected sideeffects culminating in the loss of a love[d] one caused the appellants so much trouble, pain and suffering. On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would entitle plaintiffs-appellants to their claim for damages. xxxx WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is hereby modified to the extent that defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-appellants the following amounts: 1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses; 2. Moral damages of P200,000.00; 3. Exemplary damages of P50,000.00; 4. Attorneys fee of P30,000.00. [49] SO ORDERED. (Emphasis supplied.) Petitioner filed a motion for partial reconsideration which the appellate court denied. Hence, this petition. Petitioner assails the CA in finding her guilty of negligence in not explaining to the respondents all the possible side effects of the chemotherapy on their child, and in holding her liable for actual, moral and exemplary damages and attorneys fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy procedures and in the administration of chemotherapy treatment to Angelica. On her supposed non-disclosure of all possible side effects of chemotherapy, including death, petitioner argues that it was foolhardy to imagine her to be allknowing/omnipotent. While the theoretical side effects of chemotherapy were explained by her to the respondents, as these should be known to a competent doctor, petitioner cannot possibly predict how a particular patients genetic make-up, state of mind, general health and body constitution would respond to the treatment. These are obviously dependent on too many known, unknown and immeasurable variables, thus requiring that Angelica be, as she was, constantly and closely monitored during the treatment. Petitioner

asserts that she did everything within her professional competence to attend to the medical needs of Angelica. Citing numerous trainings, distinctions and achievements in her field and her current position as co-director for clinical affairs of the Medical Oncology, Department of Medicine of SLMC, petitioner contends that in the absence of any clear showing or proof, she cannot be charged with negligence in not informing the respondents all the side effects of chemotherapy or in the pre-treatment procedures done on Angelica. As to the cause of death, petitioner insists that Angelica did not die of platelet depletion but of sepsis which is a complication of the cancer itself. Sepsis itself leads to bleeding and death. She explains that the response rate to chemotherapy of patients with osteosarcoma is high, so much so that survival rate is favorable to the patient. Petitioner then points to some probable consequences if Angelica had not undergone chemotherapy. Thus, without chemotherapy, other medicines and supportive treatment, the patient might have died the next day because of massive infection, or the cancer cells might have spread to the brain and brought the patient into a coma, or into the lungs that the patient could have been hooked to a respirator, or into her kidneys that she would have to undergo dialysis. Indeed, respondents could have spent as much because of these complications. The patient would have been deprived of the chance to survive the ailment, of any hope for life and her quality of life surely compromised. Since she had not been shown to be at fault, petitioner maintains that the CA erred in holding her liable for the [50] damages suffered by the respondents. The issue to be resolved is whether the petitioner can be held liable for failure to fully disclose serious side effects to the parents of the child patient who died while undergoing chemotherapy, despite the absence of finding that petitioner was negligent in administering the said treatment. The petition is meritorious. The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action caused [51] injury to the patient. This Court has recognized that medical negligence cases are best proved by opinions of expert witnesses belonging in the same general neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians stems from the formers realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently [52] evaluating, hence the indispensability of expert testimonies. In this case, both the trial and appellate courts concurred in finding that the alleged negligence of petitioner in the administration of chemotherapy drugs to respondents child was not proven considering that Drs. Vergara and Balmaceda, not being oncologists or cancer specialists, were not qualified to give expert opinion as to whether petitioners lack of skill, knowledge and professional competence in failing to observe the standard of care in her line of practice was the proximate cause of the patients death. Furthermore, respondents case was not at all helped by the non-production of medical records by the

hospital (only the biopsy result and medical bills were submitted to the court). Nevertheless, the CA found petitioner liable for her failure to inform the respondents on all possible side effects of chemotherapy before securing their consent to the said treatment. The doctrine of informed consent within the context of physician-patient relationships goes far back into English common law. As early as 1767, doctors were charged with the tort of battery (i.e., an unauthorized physical contact with a patient) if they had not gained the consent of their patients prior to performing a surgery or procedure. In the United States, the seminal case was Schoendorff v. Society of New York [53] Hospital which involved unwanted treatment performed by a doctor. Justice Benjamin Cardozos oft-quoted opinion upheld the basic right of a patient to give consent to any medical procedure or treatment: Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patients consent, commits an assault, for which he is liable in [54] damages. From a purely ethical norm, informed consent evolved into a general principle of law that a physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the [55] probable benefits. [56] Subsequently, in Canterbury v. Spence the court observed that the duty to disclose should not be limited to medical usage as to arrogate the decision on revelation to the physician alone. Thus, respect for the patients right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians [57] may or may not impose upon themselves. The scope of disclosure is premised on the fact that patients ordinarily are persons unlearned in the medical sciences. Proficiency in diagnosis and therapy is not the full measure of a physicians responsibility. It is also his duty to warn of the dangers lurking in the proposed treatment and to impart information which the patient has every right to expect. Indeed, the patients reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those [58] associated with armslength transactions. The physician is not expected to give the patient a short medical education, the disclosure rule only requires of him a reasonable explanation, which means generally informing the patient in nontechnical terms as to what is at stake; the therapy alternatives open to him, the goals expectably to be achieved, and [59] the risks that may ensue from particular treatment or no treatment. As to the issue of demonstrating what risks are considered material necessitating disclosure, it was held that experts are unnecessary to a showing of the materiality of a risk to a patients decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that should have been made known must further materialize, for otherwise the omission, however unpardonable, is without legal consequence. And, as in malpractice actions generally, there must be a causal relationship between the physicians failure to [60] divulge and damage to the patient. [61] Reiterating the foregoing considerations, Cobbs v. Grant deemed it as integral part of physicians overall obligation to patient, the duty of reasonable disclosure of available choices with respect to proposed therapy and of dangers inherently and potentially involved in each. However, the physician is not obliged to discuss relatively minor risks

inherent in common procedures when it is common knowledge that such risks inherent in procedure of very low incidence. Cited as exceptions to the rule that the patient should not be denied the opportunity to weigh the risks of surgery or treatment are emergency cases where it is evident he cannot evaluate data, and where the patient is a child or [62] incompetent. The court thus concluded that the patients right of self-decision can only be effectively exercised if the patient possesses adequate information to enable him in making an intelligent choice. The scope of the physicians communications to the patient, then must be measured by the patients need, and that need is whatever information is material to the decision. The test therefore for determining whether a potential peril must [63] be divulged is its materiality to the patients decision. Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the physician for failure to inform patient, there must be causal relationship between physicians failure to inform and the injury to patient and such connection arises only if it is established that, had revelation been made, consent to treatment would not have been given. There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent: (1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment. The gravamen in an informed consent case requires the plaintiff to point to significant undisclosed information relating to the treatment which would have altered her [64] decision to undergo it. Examining the evidence on record, we hold that there was adequate disclosure of material risks inherent in the chemotherapy procedure performed with the consent of Angelicas parents. Respondents could not have been unaware in the course of initial treatment and amputation of Angelicas lower extremity, that her immune system was already weak on account of the malignant tumor in her knee. When petitioner informed the respondents beforehand of the side effects of chemotherapy which includes lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart damage and skin darkening, there is reasonable expectation on the part of the doctor that the respondents understood very well that the severity of these side effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease itself, each patients reaction to the chemical agents even with pre-treatment laboratory tests cannot be precisely determined by the physician. That death can possibly result from complications of the treatment or the underlying cancer itself, immediately or sometime after the administration of chemotherapy drugs, is a risk that cannot be ruled out, as with most other major medical procedures, but such conclusion can be reasonably drawn from the general side effects of chemotherapy already disclosed. As a physician, petitioner can reasonably expect the respondents to have considered the variables in the recommended treatment for their daughter afflicted with a life-threatening illness. On the other hand, it is difficult to give credence to respondents claim that petitioner told them of 95% chance of recovery for their daughter, as it was unlikely for doctors like petitioner who were dealing with grave conditions such as cancer to have falsely assured patients of chemotherapys success rate. Besides, informed consent laws in other countries generally require only a reasonable explanation of

potential harms, so specific disclosures such as statistical data, may not be legally [65] necessary. The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be reduced to one simplistic formula applicable in all instances. Further, in a medical malpractice action based on lack of informed consent, the plaintiff must prove both the duty and the breach of that duty through expert [66] testimony. Such expert testimony must show the customary standard of care of [67] physicians in the same practice as that of the defendant doctor. In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOHs Operational and Management Services charged with receiving complaints against hospitals, does not qualify as expert testimony to establish the standard of care in obtaining consent for chemotherapy treatment. In the absence of expert testimony in this regard, the Court feels hesitant in defining the scope of mandatory disclosure in cases of malpractice based on lack of informed consent, much less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be an evolving one. As society has grappled with the juxtaposition between personal autonomy and the medical profession's intrinsic impetus to cure, the law defining adequate disclosure has undergone a dynamic evolution. A standard once guided solely by the ruminations of physicians is now dependent on what a reasonable person in the patients position regards as significant. This change in perspective is especially important as medical breakthroughs move practitioners to the cutting edge of technology, ever encountering new and heretofore unimagined treatments for currently incurable diseases or ailments. An adaptable standard is needed to account for this constant progression. Reasonableness analyses permeate our legal system for the very reason that they are determined by social norms, expanding and contracting with the ebb and flow of societal evolution. As we progress toward the twenty-first century, we now realize that the legal standard of disclosure is not subject to construction as a categorical imperative. Whatever formulae or processes we adopt are only useful as a foundational starting point; the particular quality or quantity of disclosure will remain inextricably bound by the facts of each case.Nevertheless, juries that ultimately determine whether a physician properly informed a patient are inevitably guided by what they perceive as the common expectation of the medical consumera reasonable person in the patients position when deciding to accept or reject a recommended medical [68] procedure. (Emphasis supplied.) WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15, 2004 and the Resolution dated September 1, 2004 of the Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE. The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904 is REINSTATED and UPHELD

PSI v. CA, G.R. No. 126297, February 2, 2010 CORONA, J.: With prior leave of court, petitioner Professional Services, Inc. (PSI) [2] filed a second motion for reconsideration urging referral thereof to the Court en bancand seeking modification of the decision dated January 31, 2007 and resolution dated February 11, 2008 which affirmed its vicarious and direct liability for damages to respondents Enrique Agana and the heirs of Natividad Agana (Aganas). Manila Medical Services, Inc. (MMSI), Asian Hospital, Inc. (AHI), and Private [5] Hospital Association of the Philippines (PHAP) all sought to intervene in these cases invoking the common ground that, unless modified, the assailed decision and resolution will jeopardize the financial viability of private hospitals and jack up the cost of health care. The Special First Division of the Court granted the motions for intervention of [6] MMSI, AHI and PHAP (hereafter intervenors), and referred en consulta to the Court en banc the motion for prior leave of court and the second motion for reconsideration of [7] PSI. Due to paramount public interest, the Court en banc accepted the [8] referral and heard the parties on oral arguments on one particular issue: whether a hospital may be held liable for the negligence of physicians-consultants allowed to practice [9] in its premises. To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr. Ampil) and Dr. Juan Fuentes (Dr. Fuentes), was impleaded by Enrique Agana and Natividad Agana (later [10] substituted by her heirs), in a complaint for damages filed in the Regional Trial Court (RTC) of Quezon City, Branch 96, for the injuries suffered by Natividad when Dr. Ampil [11] and Dr. Fuentes neglected to remove from her body two gauzes which were used in the surgery they performed on her on April 11, 1984 at the Medical City General Hospital. PSI was impleaded as owner, operator and manager of the hospital. In a decision dated March 17, 1993, the RTC held PSI solidarily liable with Dr. Ampil [13] and Dr. Fuentes for damages. On appeal, the Court of Appeals (CA), absolved Dr. Fuentes but affirmed the liability of Dr. Ampil and PSI, subject to the right of PSI to claim [14] reimbursement from Dr. Ampil. On petition for review, this Court, in its January 31, 2007 decision, affirmed the CA [15] [16] decision. PSI filed a motion for reconsideration but the Court denied it in a resolution [17] dated February 11, 2008. The Court premised the direct liability of PSI to the Aganas on the following facts and law:
[12] [3] [4] [1]

First, there existed between PSI and Dr. Ampil an employer-employee relationship as [18] contemplated in the December 29, 1999 decision in Ramos v. Court of Appeals that for purposes of allocating responsibility in medical negligence cases, an employer-employee [19] relationship exists between hospitals and their consultants. Although the Court [20] in Ramos later issued a Resolution dated April 11, 2002 reversing its earlier finding on the existence of an employment relationship between hospital and doctor, a similar reversal was not warranted in the present case because the defense raised by PSI consisted of a mere general denial of control or responsibility over the actions of Dr. [21] Ampil. Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created [22] the public impression that he was its agent. Enrique testified that it was on account of Dr. Ampil's accreditation with PSI that he conferred with said doctor about his wife's [23] (Natividad's) condition. After his meeting with Dr. Ampil, Enrique asked Natividad to [24] personally consult Dr. Ampil. In effect, when Enrigue and Natividad engaged the services of Dr. Ampil, at the back of their minds was that the latter was a staff member of a prestigious hospital. Thus, under the doctrine of apparent authority applied in Nogales, et [25] al. v. Capitol Medical Center, et al., PSI was liable for the negligence of Dr. Ampil. Finally, as owner and operator of Medical City General Hospital, PSI was bound by its duty to provide comprehensive medical services to Natividad Agana, to exercise [26] reasonable care to protect her from harm, to oversee or supervise all persons who practiced medicine within its walls, and to take active steps in fixing any form of negligence [27] committed within its premises. PSI committed a serious breach of its corporate duty [28] when it failed to conduct an immediate investigation into the reported missing gauzes. PSI is now asking this Court to reconsider the foregoing rulings for these reasons: I The declaration in the 31 January 2007 Decision vis-a-vis the 11 February 2009 Resolution that the ruling in Ramos vs. Court of Appeals (G.R. No. 134354, December 29, 1999) that an employer-employee relations exists between hospital and their consultants stays should be set aside for being inconsistent with or contrary to the import of the resolution granting the hospital's motion for reconsideration in Ramos vs. Court of Appeals (G.R. No. 134354, April 11, 2002), which is applicable to PSI since the Aganas failed to prove an employer-employee relationship between PSI and Dr. Ampil and PSI proved that it has no control over Dr. Ampil. In fact, the trial court has found that there is no employer-employee relationship in this case and that the doctor's are independent contractors. II Respondents Aganas engaged Dr. Miguel Ampil as their doctor and did not primarily and specifically look to the Medical City Hospital (PSI) for medical care and support; otherwise stated, respondents

Aganas did not select Medical City Hospital (PSI) to provide medical care because of any apparent authority of Dr. Miguel Ampil as its agent since the latter was chosen primarily and specifically based on his qualifications and being friend and neighbor. III PSI cannot be liable under doctrine of corporate negligence since the proximate cause of Mrs. Agana's injury was the negligence of Dr. [29] Ampil, which is an element of the principle of corporate negligence. In their respective memoranda, intervenors raise parallel arguments that the Court's ruling on the existence of an employer-employee relationship between private hospitals and consultants will force a drastic and complex alteration in the long-established and currently prevailing relationships among patient, physician and hospital, with burdensome operational and financial consequences and adverse effects on all three [30] parties. The Aganas comment that the arguments of PSI need no longer be entertained [31] for they have all been traversed in the assailed decision and resolution. After gathering its thoughts on the issues, this Court holds that PSI is liable to the Aganas, not under the principle of respondeat superior for lack of evidence of an employment relationship with Dr. Ampil but under the principle of ostensible agency for the negligence of Dr. Ampil and, pro hac vice, under the principle of corporate negligence for its failure to perform its duties as a hospital. [32] While in theory a hospital as a juridical entity cannot practice medicine, in reality it utilizes doctors, surgeons and medical practitioners in the conduct of its business [33] of facilitating medical and surgical treatment. Within that reality, three legal relationships crisscross: (1) between the hospital and the doctor practicing within its premises; (2) between the hospital and the patient being treated or examined within its premises and (3) between the patient and the doctor. The exact nature of each relationship determines the basis and extent of the liability of the hospital for the negligence of the doctor. Where an employment relationship exists, the hospital may be held vicariously [34] [35] liable under Article 2176 in relation to Article 2180 of the Civil Code or the principle of respondeat superior. Even when no employment relationship exists but it is shown that the hospital holds out to the patient that the doctor is its agent, the hospital may still be [36] [37] vicariously liable under Article 2176 in relation to Article 1431 and Article 1869 of the [38] Civil Code or the principle of apparent authority. Moreover, regardless of its relationship with the doctor, the hospital may be held directly liable to the patient for its own negligence or failure to follow established standard of conduct to which it should conform [39] as a corporation.

This Court still employs the control test to determine the existence of an employer-employee relationship between hospital and doctor. In Calamba Medical Center, [40] Inc. v. National Labor Relations Commission, et al. it held: Under the "control test", an employment relationship exists between a physician and a hospital if the hospital controls both the means and the details of the process by which the physician is to accomplish his task. xx xx xx As priorly stated, private respondents maintained specific workschedules, as determined by petitioner through its medical director, which consisted of 24-hour shifts totaling forty-eight hours each week and which were strictly to be observed under pain of administrative sanctions. That petitioner exercised control over respondents gains light from the undisputed fact that in the emergency room, the operating room, or any department or ward for that matter, respondents' work is monitored through its nursing supervisors, charge nurses and orderlies. Without the approval or consent of petitioner or its medical director, no operations can be undertaken in those areas. For control test to apply, it is not essential for the employer to actually supervise the performance of duties of the employee, it being enough that it has the right to wield the power. (emphasis supplied)
[41]

In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had no employer-employee relationship, such finding became final and conclusive even to this [47] Court. There was no reason for PSI to have raised it as an issue in its petition. Thus, whatever discussion on the matter that may have ensued was purely academic. Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this particular instance, the concurrent finding of the RTC and the CA that PSI was not the employer of Dr. Ampil is correct. Control as a determinative factor in testing the employeremployee relationship between doctor and hospital under which the hospital could be held vicariously liable to a patient in medical negligence cases is a requisite fact to be established by preponderance of evidence. Here, there was insufficient evidence that PSI exercised the power of control or wielded such power over the means and the details of the specific process by which Dr. Ampil applied his skills in the treatment of Natividad. Consequently, PSI cannot be held vicariously liable for the negligence of Dr. Ampil under the principle of respondeat superior. There is, however, ample evidence that the hospital (PSI) held out to the patient [48] (Natividad) that the doctor (Dr. Ampil) was its agent. Present are the two factors that determine apparent authority: first, the hospital's implied manifestation to the patient which led the latter to conclude that the doctor was the hospital's agent; and second, the patients reliance upon the conduct of the hospital and the doctor, consistent with ordinary [49] care and prudence. Enrique testified that on April 2, 1984, he consulted Dr. Ampil regarding the condition of his wife; that after the meeting and as advised by Dr. Ampil, he asked[his] wife to go to Medical City to be examined by *Dr. Ampil+; and that the next day, April 3, he [50] told his daughter to take her mother to Dr. Ampil. This timeline indicates that it was Enrique who actually made the decision on whom Natividad should consult and where, and that the latter merely acceded to it. It explains the testimony of Natividad that she [51] consulted Dr. Ampil at the instigation of her daughter. Moreover, when asked what impelled him to choose Dr. Ampil, Enrique testified: Atty. Agcaoili On that particular occasion, April 2, 1984, what was your reason for choosing Dr. Ampil to contact with in connection with your wife's illness? A. First, before that, I have known him to be a specialist on that part of the body as a surgeon, second, I have known him to be a staff member of the Medical City which is a prominent and known hospital. And third, because he is a neighbor, I expect more than the usual medical service to be given to us, than his ordinary [52] patients. (emphasis supplied) Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was significantly influenced by the impression that Dr. Ampil was a staff member ofMedical City General Hospital, and that said hospital was well known and prominent.

Even in its December 29, 1999 decision [42] 2002 resolution in Ramos, the Court found the control test decisive.

and April

11,

In the present case, it appears to have escaped the Court's attention that both the RTC and the CA found no employment relationship between PSI and Dr. Ampil, and that the Aganas did not question such finding. In its March 17, 1993 decision, the RTC found that defendant doctors were not employees of PSI in its hospital, they being merely consultants without any employer-employee relationship and in the capacity of [43] independent contractors. The Aganas never questioned such finding. PSI, Dr. Ampil and Dr. Fuentes appealed from the RTC decision but only on the issues of negligence, agency and corporate liability. In its September 6, 1996 decision, the CA mistakenly referred to PSI and Dr. Ampil as employer-employee, but it was clear in its discussion on the matter that it viewed their relationship as one of mere apparent [45] agency. The Aganas appealed from the CA decision, but only to question the exoneration [46] of Dr. Fuentes. PSI also appealed from the CA decision, and it was then that the issue of employment, though long settled, was unwittingly resurrected.
[44]

Enrique looked upon Dr. Ampil not as independent of but as integrally related toMedical City. PSI's acts tended to confirm and reinforce, rather than negate, Enrique's view. It [53] is of record that PSI required a consent for hospital care to be signed preparatory to the surgery of Natividad. The form reads: Permission is hereby given to the medical, nursing and laboratory staff of the Medical City General Hospital to perform such diagnostic procedures and to administer such medications and treatments as may be deemed necessary or advisable by the physicians of this hospital for and during the confinement of xxx. (emphasis supplied) By such statement, PSI virtually reinforced the public impression that Dr. Ampil was a physician of its hospital, rather than one independently practicing in it; that the medications and treatments he prescribed were necessary and desirable; and that the hospital staff was prepared to carry them out. PSI pointed out in its memorandum that Dr. Ampil's hospital affiliation was not the exclusive basis of the Aganas decision to have Natividad treated in MedicalCity General Hospital, meaning that, had Dr. Ampil been affiliated with another [54] hospital, he would still have been chosen by the Aganas as Natividad's surgeon. The Court cannot speculate on what could have been behind the Aganas decision but would rather adhere strictly to the fact that, under the circumstances at that time, Enrique decided to consult Dr. Ampil for he believed him to be a staff member of a prominent and known hospital. After his meeting with Dr. Ampil, Enrique advised his wife Natividad to go to the Medical City General Hospital to be examined by said doctor, and the hospital acted in a way that fortified Enrique's belief. This Court must therefore maintain the ruling that PSI is vicariously liable for the negligence of Dr. Ampil as its ostensible agent. Moving on to the next issue, the Court notes that PSI made the following admission in its Motion for Reconsideration: 51. Clearly, not being an agent or employee of petitioner PSI, PSI [sic] is not liable for Dr. Ampil's acts during the operation. Considering further that Dr. Ampil was personally engaged as a doctor by Mrs. Agana, it is incumbent upon Dr. Ampil, as Captain of the Ship, and as the Agana's doctor to advise her on what to do with her situation vis-a-vis the two missing gauzes. In addition to noting the missing gauzes, regular checkups were made and no signs of complications were exhibited during her stay at the hospital, which could have alerted petitioner PSI's hospital to render and provide post-operation services to and tread on Dr. Ampil's role as the doctor of Mrs. Agana. The absence of negligence of PSI from the patient's admission up to her discharge is borne by the

finding of facts in this case. Likewise evident therefrom is the absence of any complaint from Mrs. Agana after her discharge from the hospital which had she brought to the hospital's attention, could have alerted petitioner PSI to act accordingly and bring the matter to Dr. Ampil's attention. But this was not the case. Ms. Agana complained ONLY to Drs. Ampil and Fuentes, not the hospital. How then could PSI possibly do something to fix the negligence committed by Dr. Ampil when it was [55] not informed about it at all. (emphasis supplied) PSI reiterated its admission when it stated that had Natividad Agana informed the hospital of her discomfort and pain, the hospital would have been obliged to act on [56] it. The significance of the foregoing statements is critical. First, they constitute judicial admission by PSI that while it had no power to control the means or method by which Dr. Ampil conducted the surgery on Natividad Agana, it had the power to review or cause the review of what may have irregularly transpired within its walls strictly for the purpose of determining whether some form of negligence may have attended any procedure done inside its premises, with the ultimate end of protecting its patients. Second, it is a judicial admission that, by virtue of the nature of its business as [57] well as its prominence in the hospital industry, it assumed a duty to tread on the captain of the ship role of any doctor rendering services within its premises for the purpose of ensuring the safety of the patients availing themselves of its services and facilities. Third, by such admission, PSI defined the standards of its corporate conduct under the circumstances of this case, specifically: (a) that it had a corporate duty to Natividad even after her operation to ensure her safety as a patient; (b) that its corporate duty was not limited to having its nursing staff note or record the two missing gauzes and (c) that its corporate duty extended to determining Dr. Ampil's role in it, bringing the matter to his attention, and correcting his negligence. And finally, by such admission, PSI barred itself from arguing in its second motion for reconsideration that the concept of corporate responsibility was not yet in existence at [58] the time Natividad underwent treatment; and that if it had any corporate responsibility, the same was limited to reporting the missing gauzes and did not include taking an active [59] step in fixing the negligence committed. An admission made in the pleading cannot be controverted by the party making such admission and is conclusive as to him, and all proofs submitted by him contrary thereto or inconsistent therewith should be ignored, whether or [60] not objection is interposed by a party. Given the standard of conduct that PSI defined for itself, the next relevant inquiry is whether the hospital measured up to it.

PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil assumed the personal responsibility of informing Natividad about the two missing [61] gauzes. Dr. Ricardo Jocson, who was part of the group of doctors that attended to Natividad, testified that toward the end of the surgery, their group talked about the missing gauzes but Dr. Ampil assured them that he would personally notify the patient [62] about it. Furthermore, PSI claimed that there was no reason for it to act on the report on the two missing gauzes because Natividad Agana showed no signs of complications. She did [63] not even inform the hospital about her discomfort. The excuses proffered by PSI are totally unacceptable. To begin with, PSI could not simply wave off the problem and nonchalantly delegate to Dr. Ampil the duty to review what transpired during the operation. The purpose of such review would have been to pinpoint when, how and by whom two surgical gauzes were mislaid so that necessary remedial measures could be taken to avert any jeopardy to Natividads recovery. Certainly, PSI could not have expected that purpose to be achieved by merely hoping that the person likely to have mislaid the gauzes might be able to retrace his own steps. By its own standard of corporate conduct, PSI's duty to initiate the review was non-delegable. While Dr. Ampil may have had the primary responsibility of notifying Natividad about the missing gauzes, PSI imposed upon itself the separate and independent responsibility of initiating the inquiry into the missing gauzes. The purpose of the first would have been to apprise Natividad of what transpired during her surgery, while the purpose of the second would have been to pinpoint any lapse in procedure that led to the gauze count discrepancy, so as to prevent a recurrence thereof and to determine corrective measures that would ensure the safety of Natividad. That Dr. Ampil negligently failed to notify Natividad did not release PSI from its self-imposed separate responsibility. Corollary to its non-delegable undertaking to review potential incidents of negligence committed within its premises, PSI had the duty to take notice of medical records prepared by its own staff and submitted to its custody, especially when these bear earmarks of a surgery gone awry. Thus, the record taken during the operation of Natividad which reported a gauze count discrepancy should have given PSI sufficient reason to initiate a review. It should not have waited for Natividad to complain. As it happened, PSI took no heed of the record of operation and consequently did not initiate a review of what transpired during Natividads operation. Rather, it shirked its responsibility and passed it on to others to Dr. Ampil whom it expected to inform Natividad, and to Natividad herself to complain before it took any meaningful step. By its inaction, therefore, PSI failed its own standard of hospital care. It committed corporate negligence. It should be borne in mind that the corporate negligence ascribed to PSI is different from the medical negligence attributed to Dr. Ampil. The duties of the hospital are distinct from those of the doctor-consultant practicing within its premises in relation to

the patient; hence, the failure of PSI to fulfill its duties as a hospital corporation gave rise to a direct liability to the Aganas distinct from that of Dr. Ampil. All this notwithstanding, we make it clear that PSIs hospital liability based on ostensible agency and corporate negligence applies only to this case, pro hac vice. It is not intended to set a precedent and should not serve as a basis to hold hospitals liable for every form of negligence of their doctors-consultants under any and all circumstances. The ruling is unique to this case, for the liability of PSI arose from an implied agency with Dr. [64] Ampil and an admitted corporate duty to Natividad. [65] Other circumstances peculiar to this case warrant this ruling, not the least of which being that the agony wrought upon the Aganas has gone on for 26 long years, with Natividad coming to the end of her days racked in pain and agony. Such wretchedness could have been avoided had PSI simply done what was logical: heed the report of a guaze count discrepancy, initiate a review of what went wrong and take corrective measures to ensure the safety of Nativad. Rather, for 26 years, PSI hemmed and hawed at every turn, disowning any such responsibility to its patient. Meanwhile, the options left to the Aganas [66] have all but dwindled, for the status of Dr. Ampil can no longer be ascertained. Therefore, taking all the equities of this case into consideration, this Court believes P15 million would be a fair and reasonable liability of PSI, subject to 12% p.a. interest from the finality of this resolution to full satisfaction. WHEREFORE, the second motion for reconsideration is DENIED and the motions for intervention are NOTED. Professional Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana and Raymund Agana) and Enrique Agana the total amount of P15 million, subject to 12% p.a. interest from the finality of this resolution to full satisfaction. No further pleadings by any party shall be entertained in this case. Let the long-delayed entry of judgment be made in this case upon receipt by all concerned parties of this resolution

Nogales v. Capitol Medical Center, G.R. No. ! 142625, December 19, 2006! CARPIO, J.:

The Case
[1] [2]

This petition for review assails the 6 February 1998 Decision and 21 March [3] 2000 Resolution of the Court of Appeals in CA-G.R. CV No. 45641. The Court of Appeals

affirmed in toto the 22 November 1993 Decision of the Regional Trial Court of Manila, Branch 33, finding Dr. Oscar Estrada solely liable for damages for the death of his patient, Corazon Nogales, while absolving the remaining respondents of any liability. The Court of Appeals denied petitioners motion for reconsideration.

[4]

At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to extract Corazons baby. In the process, a 1.0 x 2.5 cm. piece of cervical tissue was allegedly torn. The baby came out in an apnic, cyanotic, weak and injured condition. Consequently, the baby had to be intubated and resuscitated by Dr. Enriquez and Dr. Payumo. At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which rapidly became profuse. Corazons blood pressure dropped from 130/80 to 60/40 within five minutes. There was continuous profuse vaginal bleeding. The assisting nurse administered hemacel through a gauge 19 needle as a side drip to the ongoing intravenous injection of dextrose. At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with bottled blood. It took approximately 30 minutes for the CMC laboratory, headed by Dr. Perpetua Lacson (Dr. Lacson), to comply with Dr. Estradas order and deliver the blood. At 8:00 a.m., Dr. Noe Espinola (Dr. Espinola), head of the Obstetrics-Gynecology Department of the CMC, was apprised of Corazons condition by telephone. Upon being informed that Corazon was bleeding profusely, Dr. Espinola ordered immediate [13] hysterectomy. Rogelio was made to sign a Consent to Operation. Due to the inclement weather then, Dr. Espinola, who was fetched from his residence by an ambulance, arrived at the CMC about an hour later or at 9:00 a.m. He examined the patient and ordered some resuscitative measures to be administered. Despite Dr. Espinolas efforts, Corazon died at 9:15 a.m. The cause of death was hemorrhage, post [14] partum. On 14 May 1980, petitioners filed a complaint for damages with the Regional Trial [16] Court of Manila against CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for the death of Corazon. Petitioners mainly contended that defendant physicians and CMC personnel were negligent in the treatment and management of Corazons condition. Petitioners charged CMC with negligence in the selection and supervision of defendant physicians and hospital staff. For failing to file their answer to the complaint despite service of summons, the trial [17] court declared Dr. Estrada, Dr. Enriquez, and Nurse Dumlao in default. CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their respective answers denying and opposing the allegations in the complaint. Subsequently, trial ensued. After more than 11 years of trial, the trial court rendered judgment on 22 November 1993 finding Dr. Estrada solely liable for damages. The trial court ruled as follows: The victim was under his pre-natal care, apparently, his fault began from his incorrect and inadequate management and lack of treatment of the pre-eclamptic condition of his patient. It is not disputed that he misapplied the forceps in causing the delivery because it resulted in a large cervical tear which had caused the profuse bleeding which he also
[15]

The Facts Pregnant with her fourth child, Corazon Nogales (Corazon), who was then 37 years old, was under the exclusive prenatal care of Dr. Oscar Estrada (Dr. Estrada) beginning on her fourth month of pregnancy or as early as December 1975. While Corazon was on her last trimester of pregnancy, Dr. Estrada noted an increase in her blood pressure and [5] [6] development of leg edema indicating preeclampsia, which is a dangerous complication [7] of pregnancy. Around midnight of 25 May 1976, Corazon started to experience mild labor pains prompting Corazon and Rogelio Nogales (Spouses Nogales) to see Dr. Estrada at his home. After examining Corazon, Dr. Estrada advised her immediate admission to the Capitol Medical Center (CMC). On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff nurse [8] noted the written admission request of Dr. Estrada. Upon Corazons admission at the CMC, Rogelio Nogales (Rogelio) executed and signed the Consent on Admission and [9] [10] Agreement and Admission Agreement. Corazon was then brought to the labor room of the CMC. Dr. Rosa Uy (Dr. Uy), who was then a resident physician of CMC, conducted an internal examination of Corazon. Dr. Uy then called up Dr. Estrada to notify him of her findings. Based on the Doctors Order Sheet, around 3:00 a.m., Dr. Estrada ordered for 10 mg. of valium to be administered immediately by intramuscular injection. Dr. Estrada later ordered the start of intravenous administration of syntocinon admixed with dextrose, 5%, in lactated Ringers solution, at the rate of eight to ten micro-drops per minute. According to the Nurses Observation Notes, Dr. Joel Enriquez (Dr. Enriquez), an anesthesiologist at CMC, was notified at 4:15 a.m. of Corazons admission. Subsequently, when asked if he needed the services of an anesthesiologist, Dr. Estrada refused. Despite Dr. Estradas refusal, Dr. Enriquez stayed to observe Corazons condition. At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the CMC. At 6:10 a.m., Corazons bag of water ruptured spontaneously. At 6:12 a.m., Corazons cervix was fully dilated. At 6:13 a.m., Corazon started to experience convulsions. At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium sulfate. However, Dr. Ely Villaflor (Dr. Villaflor), who was assisting Dr. Estrada, administered only 2.5 grams of magnesium sulfate.
[12] [11]

failed to control with the application of inadequate injection of magnesium sulfate by his assistant Dra. Ely Villaflor. Dr. Estrada even failed to notice the erroneous administration by nurse Dumlao of hemacel by way of side drip, instead of direct intravenous injection, and his failure to consult a senior obstetrician at an early stage of the problem. On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr. Joel Enriquez, Dr. Lacson, Dr. Espinola, nurse J. Dumlao and CMC, the Court finds no legal justification to find them civilly liable. On the part of Dra. Ely Villaflor, she was only taking orders from Dr. Estrada, the principal physician of Corazon Nogales. She can only make suggestions in the manner the patient maybe treated but she cannot impose her will as to do so would be to substitute her good judgment to that of Dr. Estrada. If she failed to correctly diagnose the true cause of the bleeding which in this case appears to be a cervical laceration, it cannot be safely concluded by the Court that Dra. Villaflor had the correct diagnosis and she failed to inform Dr. Estrada. No evidence was introduced to show that indeed Dra. Villaflor had discovered that there was laceration at the cervical area of the patients internal organ. On the part of nurse Dumlao, there is no showing that when she administered the hemacel as a side drip, she did it on her own. If the correct procedure was directly thru the veins, it could only be because this was what was probably the orders of Dr. Estrada. While the evidence of the plaintiffs shows that Dr. Noe Espinola, who was the Chief of the Department of Obstetrics and Gynecology who attended to the patient Mrs. Nogales, it was only at 9:00 a.m. That he was able to reach the hospital because of typhoon Didang (Exhibit 2). While he was able to give prescription in the manner Corazon Nogales may be treated, the prescription was based on the information given to him by phone and he acted on the basis of facts as presented to him, believing in good faith that such is the correct remedy. He was not with Dr. Estrada when the patient was brought to the hospital at 2:30 oclock a.m. So, whatever errors that Dr. Estrada committed on the patient before 9:00 oclock a.m. are certainly the errors of Dr. Estrada and cannot be the mistake of Dr. Noe Espinola. His failure to come to the hospital on time was due to fortuitous event. On the part of Dr. Joel Enriquez, while he was present in the delivery room, it is not incumbent upon him to call the attention of Dr. Estrada, Dra. Villaflor and also of Nurse Dumlao on the alleged errors committed by them. Besides, as anesthesiologist, he has no authority to control the actuations of Dr. Estrada and Dra. Villaflor. For the Court

to assume that there were errors being committed in the presence of Dr. Enriquez would be to dwell on conjectures and speculations. On the civil liability of Dr. Perpetua Lacson, [s]he is a hematologist and in-charge of the blood bank of the CMC. The Court cannot accept the theory of the plaintiffs that there was delay in delivering the blood needed by the patient. It was testified, that in order that this blood will be made available, a laboratory test has to be conducted to determine the type of blood, cross matching and other matters consistent with medical science so, the lapse of 30 minutes maybe considered a reasonable time to do all of these things, and not a delay as the plaintiffs would want the Court to believe. Admittedly, Dra. Rosa Uy is a resident physician of the Capitol Medical Center. She was sued because of her alleged failure to notice the incompetence and negligence of Dr. Estrada. However, there is no evidence to support such theory. No evidence was adduced to show that Dra. Rosa Uy as a resident physician of Capitol Medical Center, had knowledge of the mismanagement of the patient Corazon Nogales, and that notwithstanding such knowledge, she tolerated the same to happen.

In the pre-trial order, plaintiffs and CMC agreed that defendant CMC did not have any hand or participation in the selection or hiring of Dr. Estrada or his assistant Dra. Ely Villaflor as attending physician[s] of the deceased. In other words, the two (2) doctors were not employees of the hospital and therefore the hospital did not have control over their professional conduct. When Mrs. Nogales was brought to the hospital, it was an emergency case and defendant CMC had no choice but to admit her. Such being the case, there is therefore no legal ground to apply the provisions of Article 2176 and 2180 of the New Civil Code referring to the vicarious liability of an employer for the negligence of its employees. If ever in this case there is fault or negligence in the treatment of the deceased on the part of the attending physicians who were employed by the family of the deceased, such civil liability should be borne by the attending physicians under the principle of respondeat superior. WHEREFORE, premises considered, judgment is hereby rendered finding defendant Dr. Estrada of Number 13 Pitimini St. San Francisco del Monte, Quezon City civilly liable to pay plaintiffs: 1) By way of actual damages in the amount of P105,000.00; 2) By way of moral damages in the amount of P700,000.00; 3) Attorneys fees in the amount of P100,000.00 and to pay the costs of suit.

For failure of the plaintiffs to adduce evidence to support its [sic] allegations against the other defendants, the complaint is hereby ordered dismissed. While the Court looks with disfavor the filing of the present complaint against the other defendants by the herein plaintiffs, as in a way it has caused them personal inconvenience and slight damage on their name and reputation, the Court cannot accepts [sic] however, the theory of the remaining defendants that plaintiffs were motivated in bad faith in the filing of this complaint. For this reason defendants counterclaims are hereby ordered dismissed. SO ORDERED.
[18]

The Court of Appeals Ruling In its Decision of 6 February 1998, the Court of Appeals upheld the trial courts ruling. The Court of Appeals rejected petitioners view that the doctrine inDarling v. [27] Charleston Community Memorial Hospital applies to this case. According to the Court of Appeals, the present case differs from the Darling case since Dr. Estrada is an independent contractor-physician whereas the Darling case involved a physician and a nurse who were employees of the hospital. Citing other American cases, the Court of Appeals further held that the mere fact that a hospital permitted a physician to practice medicine and use its facilities is not sufficient to [28] render the hospital liable for the physicians negligence. A hospital is not responsible [29] for the negligence of a physician who is an independent contractor. The Court of Appeals found the cases of Davidson v. Conole and Campbell v. Emma [31] Laing Stevens Hospital applicable to this case. Quoting Campbell, the Court of Appeals stated that where there is no proof that defendant physician was an employee of defendant hospital or that defendant hospital had reason to know that any acts of malpractice would take place, defendant hospital could not be held liable for its failure to intervene in the relationship of physician-patient between defendant physician and plaintiff. On the liability of the other respondents, the Court of Appeals applied the borrowed servant doctrine considering that Dr. Estrada was an independent contractor who was merely exercising hospital privileges. This doctrine provides that once the surgeon enters the operating room and takes charge of the proceedings, the acts or omissions of operating room personnel, and any negligence associated with such acts or omissions, are [32] imputable to the surgeon. While the assisting physicians and nurses may be employed by the hospital, or engaged by the patient, they normally become the temporary servants or agents of the surgeon in charge while the operation is in progress, and liability may be imposed upon the surgeon for their negligent acts under the doctrine of respondeat [33] superior. The Court of Appeals concluded that since Rogelio engaged Dr. Estrada as the attending physician of his wife, any liability for malpractice must be Dr. Estradas sole responsibility. While it found the amount of damages fair and reasonable, the Court of Appeals held that no interest could be imposed on unliquidated claims or damages. The Issue Basically, the issue in this case is whether CMC is vicariously liable for the negligence of Dr. Estrada. The resolution of this issue rests, on the other hand, on the ascertainment of the relationship between Dr. Estrada and CMC. The Court also believes that a
[30]

Petitioners appealed the trial courts decision. Petitioners claimed that aside from Dr. Estrada, the remaining respondents should be held equally liable for negligence. Petitioners pointed out the extent of each respondents alleged liability. On 6 February 1998, the Court of Appeals affirmed the decision of the trial [19] court. Petitioners filed a motion for reconsideration which the Court of Appeals denied [20] in its Resolution of 21 March 2000. Hence, this petition. Meanwhile, petitioners filed a Manifestation dated 12 April 2002 stating that respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao need no longer be notified of the petition because they are absolutely not involved in the issue raised before [22] the *Court+, regarding the liability of *CMC+. Petitioners stressed that the subject [23] matter of this petition is the liability of CMC for the negligence of Dr. Estrada. The Court issued a Resolution dated 9 September 2002 dispensing with the requirement to submit the correct and present addresses of respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court stated that with the filing of petitioners Manifestation, it should be understood that they are claiming only against respondents CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy who have filed their respective comments. Petitioners are foregoing further claims against respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court noted that Dr. Estrada did not appeal the decision of the Court of Appeals affirming the decision of the Regional Trial Court. Accordingly, the decision of the Court of Appeals, affirming the trial courts judgment, is already final as against Dr. Oscar Estrada. Petitioners filed a motion for reconsideration of the Courts 9 September 2002 Resolution claiming that Dr. Enriquez, Dr. Villaflor and Nurse Dumlao were notified of the petition at their counsels last known addresses. Petitioners reiterated their imputation of negligence on these respondents. The Court denied petitioners Motion for [26] Reconsideration in its 18 February 2004 Resolution.
[25] [24] [21]

determination of the extent of liability of the other respondents is inevitable to finally and completely dispose of the present controversy.

Similarly, in the United States, a hospital which is the employer, master, or principal of a physician employee, servant, or agent, may be held liable for the physicians negligence [34] under the doctrine of respondeat superior. In the present case, petitioners maintain that CMC, in allowing Dr. Estrada to practice and admit patients at CMC, should be liable for Dr. Estradas malpractice. Rogelio claims that he knew Dr. Estrada as an accredited physician of CMC, though he discovered later [35] that Dr. Estrada was not a salaried employee of the CMC. Rogelio further claims that he was dealing with CMC, whose primary concern was the treatment and management of his wifes condition. Dr. Estrada just happened to be the specific person he talked to [36] representing CMC. Moreover, the fact that CMC made Rogelio sign a Consent on [37] Admission and Admission Agreement and a Consent to Operation printed on the letterhead of CMC indicates that CMC considered Dr. Estrada as a member of its medical staff. On the other hand, CMC disclaims liability by asserting that Dr. Estrada was a mere visiting physician and that it admitted Corazon because [38] her physical condition then was classified an emergency obstetrics case. CMC alleges that Dr. Estrada is an independent contractor for whose actuations CMC would be a total stranger. CMC maintains that it had no control or supervision over Dr. Estrada in the exercise of his medical profession. The Court had the occasion to determine the relationship between a hospital and a consultant or visiting physician and the liability of such hospital for that physicians [39] negligence in Ramos v. Court of Appeals, to wit: In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for consultant slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. This is particularly true with respondent hospital. After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physicians performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses,

The Ruling of the Court The petition is partly meritorious. On the Liability of CMC

Dr. Estradas negligence in handling the treatment and management of Corazons condition which ultimately resulted in Corazons death is no longer in issue. Dr. Estrada did not appeal the decision of the Court of Appeals which affirmed the ruling of the trial court finding Dr. Estrada solely liable for damages. Accordingly, the finding of the trial court on Dr. Estradas negligence is already final. Petitioners maintain that CMC is vicariously liable for Dr. Estradas negligence based on Article 2180 in relation to Article 2176 of the Civil Code. These provisions pertinently state: Art. 2180. The obligation imposed by article 2176 is demandable not only for ones own acts or omissions, but also for those of persons for whom one is responsible. xxxx Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. xxxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage. Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated. In other words, private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patients condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioners condition. The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the formers responsibility under a [40] relationship of patria potestas. x x x (Emphasis supplied) While the Court in Ramos did not expound on the control test, such test essentially determines whether an employment relationship exists between a physician and a hospital based on the exercise of control over the physician as to details. Specifically, the employer (or the hospital) must have the right to control both the means and the details of [41] the process by which the employee (or the physician) is to accomplish his task. After a thorough examination of the voluminous records of this case, the Court finds no single evidence pointing to CMCs exercise of control over Dr. Estradas treatment and management of Corazons condition. It is undisputed that throughout Corazons pregnancy, she was under the exclusive prenatal care of Dr. Estrada. At the time of Corazons admission at CMC and during her delivery, it was Dr. Estrada, assisted by Dr. Villaflor, who attended to Corazon. There was no showing that CMC had a part in diagnosing Corazons condition. While Dr. Estrada enjoyed staff privileges at CMC, such fact alone did not make him an employee of CMC.[42] CMC merely allowed Dr. Estrada to use its facilities[43] when Corazon was about to give birth, which CMC considered an emergency. Considering these circumstances, Dr. Estrada is not an employee of CMC, but an independent contractor. The question now is whether CMC is automatically exempt from liability considering that Dr. Estrada is an independent contractor-physician. In general, a hospital is not liable for the negligence of an independent contractorphysician. There is, however, an exception to this principle. The hospital may be liable if the physician is the ostensible agent of the hospital.[44] This exception is also known as the

doctrine of apparent authority.[45] In Gilbert v. Sycamore Municipal Hospital,[46] the Illinois Supreme Court explained the doctrine of apparent authority in this wise: [U]nder the doctrine of apparent authority a hospital can be held vicariously liable for the negligent acts of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the patient knows, or should have known, that the physician is an independent contractor. The elements of the action have been set out as follows: For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. The element of holding out on the part of the hospital does not require an express representation by the hospital that the person alleged to be negligent is an employee. Rather, the element is satisfied if the hospital holds itself out as a provider of emergency room care without informing the patient that the care is provided by independent contractors. The element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff relies upon the hospital to provide complete emergency room care, rather than upon a specific physician.

The doctrine of apparent authority essentially involves two factors to determine the liability of an independent-contractor physician. The first factor focuses on the hospitals manifestations and is sometimes described as an inquiry whether the hospital acted in a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an employee or agent of the hospital.[47] In this regard, the hospital need not make express representations to the patient that the treating physician is an employee of the hospital; rather a representation may be general and implied.[48] The doctrine of apparent authority is a species of the doctrine of estoppel. Article 1431 of the Civil Code provides that *t+hrough estoppel, an admission or representation is rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon. Estoppel rests on this rule: Whenever a party has, by his own declaration, act, or omission, intentionally and deliberately led another to believe a

particular thing true, and to act upon such belief, he cannot, in any litigation arising out of [49] such declaration, act or omission, be permitted to falsify it. In the instant case, CMC impliedly held out Dr. Estrada as a member of its medical staff. Through CMCs acts, CMC clothed Dr. Estrada with apparent authority thereby leading the Spouses Nogales to believe that Dr. Estrada was an employee or agent of CMC. CMC cannot now repudiate such authority. First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical staff and facilities to Dr. Estrada. Upon Dr. Estradas request for Corazons admission, CMC, through its personnel, readily accommodated Corazon and updated Dr. Estrada of her condition. Second, CMC made Rogelio sign consent forms printed on CMC letterhead. Prior to Corazons admission and supposed hysterectomy, CMC asked Rogelio to sign release forms, the contents of which reinforced Rogelios belief that Dr. Estrada was a member of CMCs medical staff.[50] The Consent on Admission and Agreement explicitly provides: KNOW ALL MEN BY THESE PRESENTS: I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar St., Malate Mla., being the father/mother/brother/sister/spouse/relative/ guardian/or person in custody of Ma. Corazon, and representing his/her family, of my own volition and free will, do consent and submit said Ma. Corazon to Dr. Oscar Estrada (hereinafter referred to as Physician) for cure, treatment, retreatment, or emergency measures, that the Physician, personally or by and through the Capitol Medical Center and/or its staff, may use, adapt, or employ such means, forms or methods of cure, treatment, retreatment, or emergency measures as he may see best and most expedient; that Ma. Corazon and I will comply with any and all rules, regulations, directions, and instructions of the Physician, the Capitol Medical Center and/or its staff; and, that I will not hold liable or responsible and hereby waive and forever discharge and hold free the Physician, the Capitol Medical Center and/or its staff, from any and all claims of whatever kind of nature, arising from directly or indirectly, or by reason of said cure, treatment, or retreatment, or emergency measures or intervention of said physician, the Capitol Medical Center and/or its staff. x x x x[51] (Emphasis supplied)

Center and/or whatever succeeding operations, treatment, or emergency measures as may be necessary and most expedient; and, that I will not hold liable or responsible and hereby waive and forever discharge and hold free the Surgeon, his assistants, anesthesiologists, the Capitol Medical Center and/or its staff, from any and all claims of whatever kind of nature, arising from directly or indirectly, or by reason of said operation or operations, treatment, or emergency measures, or intervention of the Surgeon, his assistants, anesthesiologists, the Capitol Medical Center and/or its staff.[52] (Emphasis supplied) Without any indication in these consent forms that Dr. Estrada was an independent contractor-physician, the Spouses Nogales could not have known that Dr. Estrada was an independent contractor. Significantly, no one from CMC informed the Spouses Nogales that Dr. Estrada was an independent contractor. On the contrary, Dr. Atencio, who was then a member of CMC Board of Directors, testified that Dr. Estrada was part of CMCs surgical staff.[53] Third, Dr. Estradas referral of Corazons profuse vaginal bleeding to Dr. Espinola, who was then the Head of the Obstetrics and Gynecology Department of CMC, gave the impression that Dr. Estrada as a member of CMCs medical staff was collaborating with other CMC-employed specialists in treating Corazon. The second factor focuses on the patients reliance. It is sometimes characterized as an inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.[54] The records show that the Spouses Nogales relied upon a perceived employment relationship with CMC in accepting Dr. Estradas services. Rogelio testified that he and his wife specifically chose Dr. Estrada to handle Corazons delivery not only because of their friends recommendation, but more importantly because of Dr. Estradas connection with a reputable hospital, the *CMC+.[55] In other words, Dr. Estradas relationship with CMC played a significant role in the Spouses Nogales decision in accepting Dr. Estradas services as the obstetrician-gynecologist for Corazons delivery. Moreover, as earlier stated, there is no showing that before and during Corazons confinement at CMC, the Spouses Nogales knew or should have known that Dr. Estrada was not an employee of CMC. Further, the Spouses Nogales looked to CMC to provide the best medical care and support services for Corazons delivery. The Court notes that prior to Corazons fourth pregnancy, she used to give birth inside a clinic. Considering Corazons age then, the Spouses Nogales decided to have their fourth child delivered at CMC, which Rogelio regarded one of the best hospitals at the time.[56] This is precisely because the Spouses Nogales feared that Corazon might experience complications during her delivery which would be better addressed and treated in a modern and big hospital such as CMC. Moreover, Rogelios consent in Corazons hysterectomy to be performed by a different physician, namely Dr. Espinola, is a clear indication of Rogelios confidence in CMCs surgical staff.

While the Consent to Operation pertinently reads, thus: I, ROGELIO NOGALES, x x x, of my own volition and free will, do consent and submit said CORAZON NOGALES to Hysterectomy, by the Surgical Staff and Anesthesiologists of Capitol Medical

CMCs defense that all it did was to extend to *Corazon+ its facilities is untenable. The Court cannot close its eyes to the reality that hospitals, such as CMC, are in the business of treatment. In this regard, the Court agrees with the observation made by the Court of Appeals of North Carolina in Diggs v. Novant Health, Inc.,[57] to wit: The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes [sic], as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of hospital facilities expects that the hospital will attempt to cure him, not that its nurses or other employees will act on their own responsibility. x x x (Emphasis supplied)

Despite this Courts pronouncement in its 9 September 2002 Resolution that the filing of petitioners Manifestation confined petitioners claim only against CMC, Dr. Espinola, Dr. Lacson, and Dr. Uy, who have filed their comments, the Court deems it proper to resolve the individual liability of the remaining respondents to put an end finally to this more than two-decade old controversy. a) Dr. Ely Villaflor Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause of Corazons [60] bleeding and to suggest the correct remedy to Dr. Estrada. Petitioners assert that it was Dr. Villaflors duty to correct the error of Nurse Dumlao in the administration of hemacel.

[59]

Likewise unconvincing is CMCs argument that petitioners are estopped from claiming damages based on the Consent on Admission and Consent to Operation. Both release forms consist of two parts. The first part gave CMC permission to administer to Corazon any form of recognized medical treatment which the CMC medical staff deemed advisable. The second part of the documents, which may properly be described as the releasing part, releases CMC and its employees from any and all claims arising from or by reason of the treatment and operation. The documents do not expressly release CMC from liability for injury to Corazon due to negligence during her treatment or operation. Neither do the consent forms expressly exempt CMC from liability for Corazons death due to negligence during such treatment or operation. Such release forms, being in the nature of contracts of adhesion, are construed strictly against hospitals. Besides, a blanket release in favor of hospitals from any and all claims, which includes claims due to bad faith or gross negligence, would be contrary to public policy and thus void. Even simple negligence is not subject to blanket release in favor of establishments like hospitals but may only mitigate liability depending on the [58] circumstances. When a person needing urgent medical attention rushes to a hospital, he cannot bargain on equal footing with the hospital on the terms of admission and operation. Such a person is literally at the mercy of the hospital. There can be no clearer example of a contract of adhesion than one arising from such a dire situation. Thus, the release forms of CMC cannot relieve CMC from liability for the negligent medical treatment of Corazon. On the Liability of the Other Respondents

The Court is not persuaded. Dr. Villaflor admitted administering a lower dosage of magnesium sulfate. However, this was after informing Dr. Estrada that Corazon was no [61] longer in convulsion and that her blood pressure went down to a dangerous level. At that moment, Dr. Estrada instructed Dr. Villaflor to reduce the dosage of magnesium sulfate from 10 to 2.5 grams. Since petitioners did not dispute Dr. Villaflors allegation, Dr. Villaflors defense remains uncontroverted. Dr. Villaflors act of administering a lower dosage of magnesium sulfate was not out of her own volition or was in contravention of Dr. Estradas order. b) Dr. Rosa Uy Dr. Rosa Uys alleged negligence consisted of her failure (1) to call the attention of Dr. Estrada on the incorrect dosage of magnesium sulfate administered by Dr. Villaflor; (2) to take corrective measures; and (3) to correct Nurse Dumlaos wrong method of hemacel administration. The Court believes Dr. Uys claim that as a second year resident physician then at CMC, she was merely authorized to take the clinical history and physical examination of [62] Corazon. However, that routine internal examination did not ipso facto make Dr. Uy liable for the errors committed by Dr. Estrada. Further, petitioners imputation of negligence rests on their baseless assumption that Dr. Uy was present at the delivery room. Nothing shows that Dr. Uy participated in delivering Corazons baby. Further, it is unexpected from Dr. Uy, a mere resident physician at that time, to call the attention of a more experienced specialist, if ever she was present at the delivery room.

c) Dr. Joel Enriquez Petitioners fault Dr. Joel Enriquez also for not calling the attention of Dr. Estrada, Dr. [63] Villaflor, and Nurse Dumlao about their errors. Petitioners insist that Dr. Enriquez should have taken, or at least suggested, corrective measures to rectify such errors.

The Court is not convinced. Dr. Enriquez is an anesthesiologist whose field of expertise is definitely not obstetrics and gynecology. As such, Dr. Enriquez was not expected to correct Dr. Estradas errors. Besides, there was no evidence of Dr. Enriquezs knowledge of any error committed by Dr. Estrada and his failure to act upon such observation. d) Dr. Perpetua Lacson Petitioners fault Dr. Perpetua Lacson for her purported delay in the delivery of blood [64] Corazon needed. Petitioners claim that Dr. Lacson was remiss in her duty of supervising the blood bank staff. As found by the trial court, there was no unreasonable delay in the delivery of blood from the time of the request until the transfusion to Corazon. Dr. Lacson competently [65] explained the procedure before blood could be given to the patient. Taking into account the bleeding time, clotting time and cross-matching, Dr. Lacson stated that it would take [66] approximately 45-60 minutes before blood could be ready for transfusion. Further, no evidence exists that Dr. Lacson neglected her duties as head of the blood bank. e) Dr. Noe Espinola Petitioners argue that Dr. Espinola should not have ordered immediate hysterectomy without determining the underlying cause of Corazons bleeding. Dr. Espinola should have first considered the possibility of cervical injury, and advised a thorough examination of the cervix, instead of believing outright Dr. Estradas diagnosis that the cause of bleeding was uterine atony. Dr. Espinolas order to do hysterectomy which was based on the information he received by phone is not negligence. The Court agrees with the trial courts observation that Dr. Espinola, upon hearing such information about Corazons condition, believed in good faith that hysterectomy was the correct remedy. At any rate, the hysterectomy did not push through because upon Dr. Espinolas arrival, it was already too late. At the time, Corazon was practically dead. f) Nurse J. Dumlao In Moore v. Guthrie Hospital Inc., the US Court of Appeals, Fourth Circuit, held that to recover, a patient complaining of injuries allegedly resulting when the nurse negligently injected medicine to him intravenously instead of intramuscularly had to show that (1) an intravenous injection constituted a lack of reasonable and ordinary care; (2) the nurse injected medicine intravenously; and (3) such injection was the proximate cause of his injury. In the present case, there is no evidence of Nurse Dumlaos alleged failure to follow Dr. Estradas specific instructions. Even assuming Nurse Dumlao defied Dr. Estradas order, there is no showing that side-drip administration of hemacel proximately caused Corazons death. No evidence linking Corazons death and the alleged wrongful hemacel
[67]

administration was introduced. Therefore, there is no basis to hold Nurse Dumlao liable for negligence. On the Award of Interest on Damages The award of interest on damages is proper and allowed under Article 2211 of the Civil Code, which states that in crimes and quasi-delicts, interest as a part of the damages may, [68] in a proper case, be adjudicated in the discretion of the court. WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds respondent Capitol Medical Center vicariously liable for the negligence of Dr. Oscar Estrada. The amounts of P105,000 as actual damages and P700,000 as moral damages should each earn legal interest at the rate of six percent (6%) per annum computed from the date of the judgment of the trial court. The Court affirms the rest of the Decision dated 6 February 1998 and Resolution dated 21 March 2000 of the Court of Appeals in CA-G.R. CV No. 45641

Ramos v. CA, G.R. No. 124354, December 29, 1999. KAPUNAN, J.: The Hippocratic Oath mandates physicians to give primordial consideration to the health and welfare of their patients. If a doctor fails to live up to this precept, he is made accountable for his acts. A mistake, through gross negligence or incompetence or plain human error, may spell the difference between life and death. In this sense, the doctor [1] plays God on his patients fate. In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a hospital should be made liable for the unfortunate comatose [2] condition of a patient scheduled forcholecystectomy. [3] Petitioners seek the reversal of the decision of the Court of Appeals, dated 29 May [4] 1995, which overturned the decision of the Regional Trial Court, dated 30 January 1992, finding private respondents liable for damages arising from negligence in the performance of their professional duties towards petitioner Erlinda Ramos resulting in her comatose condition. The antecedent facts as summarized by the trial court are reproduced hereunder: Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old (Exh. A) robust woman (TSN, October 19, 1989, p. 10). Except for occasional complaints of discomfort due to pains allegedly caused by the presence of a stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as any other woman. Married to Rogelio E. Ramos, an executive of Philippine Long Distance Telephone Company, she has three children whose names are Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19, 1989, pp. 5-6). Because the discomforts somehow interfered with her normal ways, she sought professional advice. She was advised to undergo an operation for the removal of a stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series of examinations which included blood and urine tests (Exhs. A and C) which indicated she was fit for surgery. Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13, 1988, p. 7), she and her husband Rogelio met for the first time Dr. Orlino Hozaka (should be Hosaka;

see TSN, February 20, 1990, p. 3), one of the defendants in this case, on June 10, 1985. They agreed that their date at the operating table at the DLSMC (another defendant), would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she should undergo a cholecystectomy operation after examining the documents (findings from the Capitol Medical Center, FEU Hospital and DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr. Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will get a good anesthesiologist. Dr. Hosaka charged a fee of P16,000.00, which was to include the anesthesiologists fee and which was to be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17). A day before the scheduled date of operation, she was admitted at one of the rooms of the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN, October 19, 1989, p. 11). At around 7:30 A.M. of June 17, 1985 and while still in her room, she was prepared for the operation by the hospital staff. Her sister-in-law, Herminda Cruz, who was the Dean of the College of Nursing at the Capitol Medical Center, was also there for moral support. She reiterated her previous request for Herminda to be with her even during the operation. After praying, she was given injections. Her hands were held by Herminda as they went down from her room to the operating room (TSN, January 13, 1988, pp. 911). Her husband, Rogelio, was also with her (TSN, October 19, 1989, p. 18). At the operating room, Herminda saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer anesthesia. Although not a member of the hospital staff, Herminda introduced herself as Dean of the College of Nursing at the Capitol Medical Center who was to provide moral support to the patient, to them. Herminda was allowed to stay inside the operating room. At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr. Hosaka who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter informed Herminda Cruz about the prospect of a delay in the arrival of Dr. Hosaka. Herminda then went back to the patient who asked, Mindy, wala pa ba ang Doctor? The former replied, Huwag kang mag-alaala, darating na iyon (ibid.). Thereafter, Herminda went out of the operating room and informed the patients husband, Rogelio, that the doctor was not yet around (id., p. 13). When she returned to the operating room, the patient told her, Mindy, inip na inip na ako, ikuha mo ako ng ibang Doctor. So, she went out again and told Rogelio about what the patient said (id., p. 15). Thereafter, she returned to the operating room. At around 10:00 A.M., Rogelio E. Ramos was already dying *and+ waiting for the arrival of the doctor even as he did his best to find somebody who will allow him to pull out his wife from the operating room (TSN, October 19, 1989, pp. 19-20). He also thought of the feeling of his wife, who was inside the operating room waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse remarked, Nandiyan na si Dr. Hosaka, dumating na raw. Upon hearing those words, he went down to the lobby and waited for the operation to be completed (id., pp. 16, 29-30). At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the patient, heard somebody say that Dr. Hosaka is already here. She then saw people inside the operating room moving, doing this and that, *and+ preparing the patient for the operation (TSN, January 13, 1988, p. 16). As she held the hand of Erlinda Ramos, she then

saw Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan (id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She thereafter noticed bluish discoloration of the nailbeds of the left hand of the hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for someone to call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon arrived at the operating room, she saw this anesthesiologist trying to intubate the patient. The patients nailbed became bluish and the patient was placed in a trendelenburg position - a position where the head of the patient is placed in a position lower than her feet which is an indication that there is a decrease of blood supply to the patients brain (Id., pp. 19-20). Immediately thereafter, she went out of the operating room, and she told Rogelio E. Ramos that something wrong was x x x happening (Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9). Meanwhile, Rogelio, who was outside the operating room, saw a respiratory machine being rushed towards the door of the operating room. He also saw several doctors rushing towards the operating room. When informed by Herminda Cruz that something wrong was happening, he told her (Herminda) to be back with the patient inside the operating room (TSN, October 19, 1989, pp. 25-28). Herminda Cruz immediately rushed back, and saw that the patient was still in trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw the patient taken to the Intensive Care Unit (ICU). About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The latter informed the former that something went wrong during the intubation. Reacting to what was told to him, Rogelio reminded the doctor that the condition of his wife would not have happened, had he (Dr. Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31). Doctors Gutierrez and Hosaka were also asked by the hospital to explain what happened to the patient. The doctors explained that the patient had bronchospasm (TSN, November 15, 1990, pp. 26-27). Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on November 15, 1985, the patient was released from the hospital. During the whole period of her confinement, she incurred hospital bills amounting to P93,542.25 which is the subject of a promissory note and affidavit of undertaking executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful afternoon of June 17, 1985, she has been in a comatose condition. She cannot do anything. She cannot move any part of her body. She cannot see or hear. She is living on mechanical means. She suffered brain damage as a result of the absence of oxygen in her brain for four to five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged from the hospital, she has been staying in their residence, still needing constant medical attention, with her husband Rogelio incurring a monthly expense ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989, pp. 32-34). She was also diagnosed to be suffering from diffuse [5] cerebral parenchymal damage (Exh. G; see also TSN, December 21, 1989, p. 6). [6] Thus, on 8 January 1986, petitioners filed a civil case for damages with the Regional Trial Court of Quezon City against herein private respondents alleging negligence in the management and care of Erlinda Ramos. During the trial, both parties presented evidence as to the possible cause of Erlindas injury. Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino

to prove that the damage sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty management of her airway by private respondents during the anesthesia phase. On the other hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that the cause of brain damage was Erlindas allergic reaction to the anesthetic agent, Thiopental Sodium (Pentothal). After considering the evidence from both sides, the Regional Trial Court rendered judgment in favor of petitioners, to wit: After evaluating the evidence as shown in the finding of facts set forth earlier, and applying the aforecited provisions of law and jurisprudence to the case at bar, this Court finds and so holds that defendants are liable to plaintiffs for damages. The defendants were guilty of, at the very least, negligence in the performance of their duty to plaintiff-patient Erlinda Ramos. On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise reasonable care in not only intubating the patient, but also in not repeating the administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard to the fact that the patient was inside the operating room for almost three (3) hours. For after she committed a mistake in intubating [the] patient, the patient's nailbed became bluish and the patient, thereafter, was placed in trendelenburg position, because of the decrease of blood supply to the patient's brain. The evidence further shows that the hapless patient suffered brain damage because of the absence of oxygen in her (patient's) brain for approximately four to five minutes which, in turn, caused the patient to become comatose. On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of Dr. Perfecta Gutierrez whom he had chosen to administer anesthesia on the patient as part of his obligation to provide the patient a `good anesthesiologist', and for arriving for the scheduled operation almost three (3) hours late. On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of negligence of the doctors in their `practice of medicine' in the operating room. Moreover, the hospital is liable for failing through its responsible officials, to cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on time. In having held thus, this Court rejects the defense raised by defendants that they have acted with due care and prudence in rendering medical services to plaintiff-patient. For if the patient was properly intubated as claimed by them, the patient would not have become comatose. And, the fact that another anesthesiologist was called to try to intubate the patient after her (the patient's) nailbed turned bluish, belie their claim. Furthermore, the defendants should have rescheduled the operation to a later date. This, they should have done, if defendants acted with due care and prudence as the patient's case was an elective, not an emergency case. xxx WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the plaintiffs and against the defendants. Accordingly, the latter are ordered to pay, jointly and severally, the former the following sums of money, to wit: 1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda Ramos reckoned from November 15, 1985 or in the total sum of P632,000.00 as of April 15, 1992, subject to its being updated; 2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the further sum of P200,000.00 by way of exemplary damages; and, 4) the costs of the suit. [7] SO ORDERED. Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate court rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The decretal portion of the decision of the appellate court reads: WHEREFORE, for the foregoing premises the appealed decision is hereby REVERSED, and the complaint below against the appellants is hereby ordered DISMISSED. The counterclaim of appellant De Los Santos Medical Center is GRANTED but only insofar as appellees are hereby ordered to pay the unpaid hospital bills amounting to P93,542.25, plus legal interest for justice must be tempered with mercy. [8] SO ORDERED. The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos who was mistakenly addressed as Atty. Rogelio Ramos. No copy of the decision, however, was sent nor received by the Coronel Law Office, then counsel on record of petitioners. Rogelio referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days before the expiration of the reglementary period for filing a motion for reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for extension of time to file a motion for reconsideration. The motion for reconsideration was submitted on 4 July 1995. However, the appellate court denied the motion for extension of time in its Resolution dated 25 July [9] 1995. Meanwhile petitioners engaged the services of another counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit the motion for reconsideration contending that the period to file the appropriate pleading on the assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of Appeals had not yet served a copy thereof to the counsel on record. Despite this explanation, the appellate court still denied the motion to admit the motion for reconsideration of petitioners in its Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing a motion for reconsideration had already expired, to wit: We said in our Resolution on July 25, 1995, that the filing of a Motion for Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo, p. 12) was denied. It is, on the other hand, admitted in the latter Motion that plaintiffs/appellees received a copy of the decision as early as June 9, 1995. Computation wise, the period to file a Motion for Reconsideration expired on June 24. The Motion for Reconsideration, in turn, was received by the Court of Appeals already on July 4, necessarily, the 15-day period already passed. For that alone, the latter should be denied. Even assuming admissibility of the Motion for Reconsideration, but after considering the Comment/Opposition, the former, for lack of merit, is hereby DENIED. [10] SO ORDERED. A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or on 12 April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the present petition for certiorari under Rule 45. The Court granted the motion for extension of time and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period counted from the receipt of the resolution of the Court of

Appeals within which to submit the petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within the extended period given by the Court. Petitioners assail the decision of the Court of Appeals on the following grounds: I IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR. JAMORA; II IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA RAMOS; III [11] IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. Before we discuss the merits of the case, we shall first dispose of the procedural issue on the timeliness of the petition in relation to the motion for reconsideration filed by [12] petitioners with the Court of Appeals. In their Comment, private respondents contend that the petition should not be given due course since the motion for reconsideration of the petitioners on the decision of the Court of Appeals was validly dismissed by the appellate court for having been filed beyond the reglementary period. We do not agree. A careful review of the records reveals that the reason behind the delay in filing the motion for reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other communications received by petitioner Rogelio Ramos, the appellate court apparently mistook him for the counsel on record. Thus, no copy of the decision of the appellate court was furnished to the counsel on record. Petitioner, not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration, referred the same to a legal counsel only on 20 June 1995. It is elementary that when a party is represented by counsel, all notices should be sent to the partys lawyer at his given address. With a few exceptions, notice to a litigant without notice to his counsel on record is no notice at all. In the present case, since a copy of the decision of the appellate court was not sent to the counsel on record of petitioner, there can be no sufficient notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be taken against petitioner. Moreover, since the Court of Appeals already issued a second Resolution, dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and denied the motion for reconsideration of petitioner, we believe that the receipt of the former should be considered in determining the timeliness of the filing of the present petition. Based on this, the petition before us was submitted on time. After resolving the foregoing procedural issue, we shall now look into the merits of the case. For a more logical presentation of the discussion we shall first consider the issue on the applicability of the doctrine of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors shall be tackled in relation to the res ipsa loquitur doctrine. Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. The phrase res ipsa loquitur is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, [13] and present a question of fact for defendant to meet with an explanation. Where the

thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or [14] was caused by the defendants want of care. The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant [15] who is charged with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be [16] deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur isapplied in conjunction with the doctrine of common knowledge. However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an independent or separate ground of [17] liability. Instead, it is considered as merely evidentiary or in the nature of a procedural [18] rule. It is regarded as a mode of proof, or a mere procedural convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof [19] of negligence. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending circumstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going [20] forward with the proof. Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff [21] responsible is eliminated. In the above requisites, the fundamental element is the control of the [22] instrumentality which caused the damage. Such element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage, must show a situation where it is applicable, and must establish that the essential elements of the doctrine were present in a [23] particular incident. [24] Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of that [25] harm. The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial function to determine whether a certain set of [26] circumstances does, as a matter of law, permit a given inference. Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the

proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified [28] to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which [29] are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court [30] from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it [31] occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an [32] operation, injuries sustained on a healthy part of the body which was not under, or in [33] the area, of treatment, removal of the wrong part of the body when another part was [34] intended, knocking out a tooth while a patients jaw was under anesthetic for the [35] removal of his tonsils, and loss of an eye while the patient plaintiff was under the [36] influence of anesthetic, during or following an operation for appendicitis, among others. Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been [37] exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific [38] treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not [39] produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not [40] accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance

[27]

occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man [41] as the negligent cause or causes of the untoward consequence. If there was such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the [42] defendant is called upon to explain the matter, by evidence of exculpation, if he could. We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa loquitur. [43] A case strikingly similar to the one before us is Voss vs. Bridwell, where the Kansas Supreme Court in applying the res ipsa loquitur stated: The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care, custody and control of his physician who had complete and exclusive control over him, but the operation was never performed. At the time of submission he was neurologically sound and physically fit in mind and body, but he suffered irreparable damage and injury rendering him decerebrate and totally incapacitated. The injury was one which does not ordinarily occur in the process of a mastoid operation or in the absence of negligence in the administration of an anesthetic, and in the use and employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia in the absence of negligence. Upon these facts and under these circumstances a layman would be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not as such as would ordinarily have followed if due care had been exercised. Here the plaintiff could not have been guilty of contributory negligence because he was under the influence of anesthetics and unconscious, and the circumstances are such that the true explanation of event is more accessible to the defendants than to the plaintiff for they had the exclusive control of the instrumentalities of anesthesia. Upon all the facts, conditions and circumstances alleged in Count II it is held that a cause of [44] action is stated under the doctrine of res ipsa loquitur. Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be performed on her gall bladder. On that fateful day she delivered her person over to the care, custody and control of private respondents who exercised complete and exclusive control over her. At the time of submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise physically fit in mind and body. However, during the administration of anesthesia and prior to the performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury which does not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not happen in the absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents, who are the physicians-in-charge. Likewise, petitioner

Erlinda could not have been guilty of contributory negligence because she was under the influence of anesthetics which rendered her unconscious. Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a practical administration of justice dictates the application of res ipsa loquitur. Upon these facts and under these circumstances the Court would be able to say, as a matter of common knowledge and observation, if negligence attended the management and care of the patient. Moreover, the liability of the physicians and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda. Thus, upon all these initial determination a case is made out for the application of the doctrine of res ipsa loquitur. Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be within the res ipsa loquitur coverage. Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of negligence allowed therein, the Court now comes to the issue of whether the Court of Appeals erred in finding that private respondents were not negligent in the care of Erlinda during the anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlindas comatose condition. Corollary thereto, we shall also determine if the Court of Appeals erred in relying on the testimonies of the witnesses for the private respondents. In sustaining the position of private respondents, the Court of Appeals relied on the testimonies of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of Appeals rationalized that she was candid enough [45] to admit that she experienced some difficulty in the endotracheal intubation of the patient and thus, cannot be said to be covering her negligence with falsehood. The appellate court likewise opined that private respondents were able to show that the brain damage sustained by Erlinda was not caused by the alleged faulty intubation but was due to the allergic reaction of the patient to the drug Thiopental Sodium (Pentothal), a shortacting barbiturate, as testified on by their expert witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to the wrongful insertion of the tube since the latter, being a nurse, was allegedly not knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict in favor of respondents physicians and hospital and absolved them of any liability towards Erlinda and her family. We disagree with the findings of the Court of Appeals. We hold that private respondents were unable to disprove the presumption of negligence on their part in the care of Erlinda and their negligence was the proximate cause of her piteous condition. In the instant case, the records are helpful in furnishing not only the logical scientific evidence of the pathogenesis of the injury but also in providing the Court the legal nexus upon which liability is based. As will be shown hereinafter, private respondents own testimonies which are reflected in the transcript of stenographic notes are replete of signposts indicative of their negligence in the care and management of Erlinda. With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia phase. As borne by the records, respondent Dra. Gutierrez failed to properly

intubate the patient. This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of Nursing and petitioner's sister-in-law, who was in the operating room right beside the patient when the tragic event occurred. Witness Cruz testified to this effect: ATTY. PAJARES: Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the patient? A: In particular, I could see that she was intubating the patient. Q: Do you know what happened to that intubation process administered by Dra. Gutierrez? ATTY. ALCERA: She will be incompetent Your Honor. COURT: Witness may answer if she knows. A: As I have said, I was with the patient, I was beside the stretcher holding the left hand of the patient and all of a sudden I heard some remarks coming from Dra. Perfecta Gutierrez herself. She was saying Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. xxx ATTY. PAJARES: Q: From whom did you hear those words lumalaki ang tiyan? A: From Dra. Perfecta Gutierrez. xxx After hearing the phrase lumalaki ang tiyan, what did you notice on the person of the patient? A: I notice (sic) some bluish discoloration on the nailbeds of the left hand where I was at. Q: Where was Dr. Orlino Ho[s]aka then at that particular time? A: I saw him approaching the patient during that time. Q: When he approached the patient, what did he do, if any? A: He made an order to call on the anesthesiologist in the person of Dr. Calderon. Q: Did Dr. Calderon, upon being called, arrive inside the operating room? A: Yes sir. Q: What did [s]he do, if any? A: [S]he tried to intubate the patient. Q: What happened to the patient? A: When Dr. Calderon try (sic) to intubate the patient, after a while the patients nailbed became bluish and I saw the patient was placed in trendelenburg position. xxx Q: Do you know the reason why the patient was placed in that trendelenburg position? A: As far as I know, when a patient is in that position, there is a decrease of blood [46] supply to the brain. xxx The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring that:

A perusal of the standard nursing curriculum in our country will show that intubation is not taught as part of nursing procedures and techniques. Indeed, we take judicial notice of the fact that nurses do not, and cannot, intubate. Even on the assumption that she is fully capable of determining whether or not a patient is properly intubated, witness Herminda Cruz, admittedly, did not peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is no evidence that she ever auscultated the patient or that she conducted any type of examination to check if the endotracheal tube was in its proper place, and to determine the condition of the heart, lungs, and other organs. Thus, witness Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the appellee Erlinda Ramos and that it was Dra. Calderon who succeeded in doing so clearly suffer from [47] lack of sufficient factual bases. In other words, what the Court of Appeals is trying to impress is that being a nurse, and considered a layman in the process of intubation, witness Cruz is not competent to testify on whether or not the intubation was a success. We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an anesthesiologist, she can very well testify upon matters on which she is capable of observing such as, the statements and acts of the physician and surgeon, [48] external appearances, and manifest conditions which are observable by any one. This is precisely allowed under the doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. It is the accepted rule that expert testimony is not necessary for the proof of negligence in non-technical matters or those of which an ordinary person may be expected to have knowledge, or where the lack of skill or want of care is so obvious as [49] to render expert testimony unnecessary. We take judicial notice of the fact that anesthesia procedures have become so common, that even an ordinary person can tell if it was administered properly. As such, it would not be too difficult to tell if the tube was properly inserted. This kind of observation, we believe, does not require a medical degree to be acceptable. At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long experience and scholarship led to her appointment as Dean of the Capitol Medical Center School of Nursing, was fully capable of determining whether or not the intubation was a success. She had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing in San Pablo City; and then Dean of the Capitol Medical Center [50] School of Nursing. Reviewing witness Cruz' statements, we find that the same were delivered in a straightforward manner, with the kind of detail, clarity, consistency and spontaneity which would have been difficult to fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to demonstrate through her testimony what truly transpired on that fateful day. Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted that she experienced difficulty in inserting the tube into Erlindas trachea, to wit: ATTY. LIGSAY: Q: In this particular case, Doctora, while you were intubating at your first attempt (sic), you did not immediately see the trachea? DRA. GUTIERREZ: A: Yes sir. Q: Did you pull away the tube immediately?

A: You do not pull the ... Q: Did you or did you not? A: I did not pull the tube. Q: When you said mahirap yata ito, what were you referring to? A: Mahirap yata itong i-intubate, that was the patient. Q: So, you found some difficulty in inserting the tube? [51] A: Yes, because of (sic) my first attempt, I did not see right away. Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she encountered hardship in the insertion of the tube in the trachea of Erlinda because it was positioned more anteriorly (slightly deviated from the normal anatomy of a [52] person) making it harder to locate and, since Erlinda is obese and has a short neck and protruding teeth, it made intubation even more difficult. The argument does not convince us. If this was indeed observed, private respondents adduced no evidence demonstrating that they proceeded to make a thorough assessment of Erlindas airway, prior to the induction of anesthesia, even if this would mean postponing the procedure. From their testimonies, it appears that the observation was made only as an afterthought, as a means of defense. The pre-operative evaluation of a patient prior to the administration of anesthesia is universally observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation and preparation for anesthesia begins when the anesthesiologist reviews the patients medical records and visits with the patient, traditionally, the day before elective [53] surgery. It includes taking the patients medical history, review of current drug therapy, [54] physical examination and interpretation of laboratory data. The physical examination performed by the anesthesiologist is directed primarily toward the central nervous system, [55] cardiovascular system, lungs and upper airway. A thorough analysis of the patient's airway normally involves investigating the following: cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased or artificial teeth, ability [56] to visualize uvula and the thyromental distance. Thus, physical characteristics of the patients upper airway that could make tracheal intubation difficult should be [57] studied. Where the need arises, as when initial assessment indicates possible problems (such as the alleged short neck and protruding teeth of Erlinda) a thorough examination of the patients airway would go a long way towards decreasing patient morbidity and mortality. In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or pre-operative evaluation of Erlinda was done by her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was likewise not properly informed of the possible difficulties she would face during the administration of anesthesia to Erlinda. Respondent Dra. Gutierrez act of seeing her patient for the first time only an hour before the scheduled operative procedure was, therefore, an act of exceptional negligence and professional irresponsibility. The measures cautioning prudence and vigilance in dealing with human lives lie at the core of the physicians centuries-old Hippocratic Oath. Her failure to follow this medical procedure is, therefore, a clear indicia of her negligence. Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with the trial court's ignorance of clinical procedure, hoping that she could get away with it. Respondent Dra. Gutierrez tried to muddle the difference between an

elective surgery and an emergency surgery just so her failure to perform the required preoperative evaluation would escape unnoticed. In her testimony she asserted: ATTY. LIGSAY: Q: Would you agree, Doctor, that it is good medical practice to see the patient a day before so you can introduce yourself to establish good doctor-patient relationship and gain the trust and confidence of the patient? DRA. GUTIERREZ: A: As I said in my previous statement, it depends on the operative procedure of the anesthesiologist and in my case, with elective cases and normal cardio-pulmonary clearance like that, I usually don't do it except on emergency and on cases that have an [58] abnormalities (sic). However, the exact opposite is true. In an emergency procedure, there is hardly enough time available for the fastidious demands of pre-operative procedure so that an anesthesiologist is able to see the patient only a few minutes before surgery, if at all. Elective procedures, on the other hand, are operative procedures that can wait for days, weeks or even months. Hence, in these cases, the anesthesiologist possesses the luxury of time to make a proper assessment, including the time to be at the patient's bedside to do a proper interview and clinical evaluation. There is ample time to explain the method of anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent. Usually, the pre-operative assessment is conducted at least one day before the intended surgery, when the patient is relaxed and cooperative. Erlindas case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all the time to make a thorough evaluation of Erlindas case prior to the operation and prepare her for anesthesia. However, she never saw the patient at the bedside. She herself admitted that she had seen petitioner only in the operating room, and only on the actual date of the cholecystectomy. She negligently failed to take advantage of this important opportunity. As such, her attempt to exculpate herself must fail. Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of the patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty intubation is truly the proximate cause of Erlindas comatose condition. Private respondents repeatedly hammered the view that the cerebral anoxia which [59] led to Erlindas coma was due to bronchospasm mediated by her allergic response to the drug, Thiopental Sodium, introduced into her system. Towards this end, they presented Dr. Jamora, a Fellow of the Philippine College of Physicians and Diplomate of the Philippine Specialty Board of Internal Medicine, who advanced private respondents' theory that the [60] oxygen deprivation which led to anoxic encephalopathy, was due to an unpredictable drug reaction to the short-acting barbiturate. We find the theory of private respondents unacceptable. First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply because he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have been capable of properly enlightening the court about anesthesia practice and procedure and their complications. Dr. Jamora is likewise not an allergologist and could not therefore properly advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist and, as such, could not have been capable, as an expert would, of explaining to the court the pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamoras testimony as an expert witness in the anesthetic practice of Pentothal administration is further supported by his own admission that he formulated his opinions on the drug not from the practical experience gained by a specialist or expert in the administration and use of Sodium Pentothal on patients, but only from reading certain references, to wit: ATTY. LIGSAY: Q: In your line of expertise on pulmonology, did you have any occasion to use pentothal as a method of management? DR. JAMORA: A: We do it in conjunction with the anesthesiologist when they have to intubate our patient. Q: But not in particular when you practice pulmonology? A: No. Q: In other words, your knowledge about pentothal is based only on what you have read from books and not by your own personal application of the medicine pentothal? A: Based on my personal experience also on pentothal. Q: How many times have you used pentothal? A: They used it on me. I went into bronchospasm during my appendectomy. Q: And because they have used it on you and on account of your own personal experience you feel that you can testify on pentothal here with medical authority? [61] A: No. That is why I used references to support my claims. An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the fields of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic encephalopathy belongs to the field of neurology. While admittedly, many bronchospastic-mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within the disciplines of anesthesiology, allergology and pharmacology. On the basis of the foregoing transcript, in which the pulmonologist himself admitted that he could not testify about the drug with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamoras testimony as an expert in the administration of Thiopental Sodium. [62] The provision in the rules of evidence regarding expert witnesses states: Sec. 49. Opinion of expert witness. - The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess, may be received in evidence. Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or she is to testify, either by the study of recognized [63] authorities on the subject or by practical experience. Clearly, Dr. Jamora does not qualify as an expert witness based on the above standard since he lacks the necessary knowledge, skill, and training in the field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the wrong field, private respondents intentionally avoided providing testimony by competent and independent experts in the proper areas. Moreover, private respondents theory, that Thiopental Sodium may have produced Erlinda's coma by triggering an allergic mediated response, has no support in evidence. No evidence of stridor, skin reactions, or wheezing - some of the more common accompanying

signs of an allergic reaction - appears on record. No laboratory data were ever presented to the court. In any case, private respondents themselves admit that Thiopental induced, allergicmediated bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis without supporting medical proof, and against the weight of available evidence, then every anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously asserted by private respondents was a mere afterthought. Such an explanation was advanced in order to absolve them of any and all responsibility for the patients condition. In view of the evidence at hand, we are inclined to believe petitioners stand that it was the faulty intubation which was the proximate cause of Erlindas comatose condition. Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which [64] the result would not have occurred. An injury or damage is proximately caused by an act or a failure to act, whenever it appears from the evidence in the case, that the act or omission played a substantial part in bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably probable [65] consequence of the act or omission. It is the dominant, moving or producing cause. Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably the proximate cause which triggered the chain of events leading to Erlindas brain damage and, ultimately, her comatosed condition. Private respondents themselves admitted in their testimony that the first intubation was a failure. This fact was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez remarked, Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The development of abdominal distention, together with respiratory embarrassment indicates that the endotracheal tube entered the esophagus instead of the respiratory tree. In other words, instead of the intended endotracheal intubation what actually took place was an esophageal intubation. During intubation, such distention indicates that air has entered the gastrointestinal tract through the esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the wrong place. That abdominal distention had been observed during the first intubation suggests that the length of time utilized in inserting the endotracheal tube (up to the time the tube was withdrawn for the second attempt) was fairly significant. Due to the delay in the [66] delivery of oxygen in her lungs Erlinda showed signs of cyanosis. As stated in the testimony of Dr. Hosaka, the lack of oxygen became apparent only after he noticed that the [67] nailbeds of Erlinda were already blue. However, private respondents contend that a second intubation was executed on Erlinda and this one was successfully done. We do not think so. No evidence exists on record, beyond private respondents' bare claims, which supports the contention that the second intubation was successful. Assuming that the endotracheal tube finally found its way into the proper orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of a successful intubation. In fact, cyanosis was again observed immediately after the second intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents insist, that the second intubation was accomplished. Even granting that the tube was successfully inserted during the second attempt, it was obviously too late. As aptly explained by the trial court, Erlinda

already suffered brain damage as a result of the inadequate oxygenation of her brain for [68] about four to five minutes. The above conclusion is not without basis. Scientific studies point out that intubation problems are responsible for one-third (1/3) of deaths and serious injuries associated with [69] anesthesia. Nevertheless, ninety-eight percent (98%) or the vast majority of difficult intubations may be anticipated by performing a thorough evaluation of the patients [70] airway prior to the operation. As stated beforehand, respondent Dra. Gutierrez failed to observe the proper pre-operative protocol which could have prevented this unfortunate incident. Had appropriate diligence and reasonable care been used in the pre-operative evaluation, respondent physician could have been much more prepared to meet the contingency brought about by the perceived anatomic variations in the patients neck and oral area, defects which would have been easily overcome by a prior knowledge of those [71] variations together with a change in technique. In other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative evaluation, would have [72] had little difficulty going around the short neck and protruding teeth. Having failed to observe common medical standards in pre-operative management and intubation, respondent Dra. Gutierrez negligence resulted in cerebral anoxia and eventual coma of Erlinda. We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of [73] the surgical team. As the so-called captain of the ship, it is the surgeons responsibility to see to it that those under him perform their task in the proper manner. Respondent Dr. Hosakas negligence can be found in his failure to exercise the proper authority (as the captain of the operative team) in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no evidence on record exists to show that respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlindas cholecystectomy, and was in fact over three hours late for the latters operation. Because of this, he had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This indicates that he was remiss in his professional duties towards his patient. Thus, he shares equal responsibility for the events which resulted in Erlindas condition. We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up specialist staff with attending and [74] visiting consultants, who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent than real. In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for consultant slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject [75] the application. This is particularly true with respondent hospital. After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and residents, moderate grand rounds and patient audits and perform other

tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physicians performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated. In other words, private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patients condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This being the case, the question now arises as to whether or not respondent [76] hospital is solidarily liable with respondent doctors for petitioners condition. The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the formers responsibility [77] under a relationship of patria potestas. Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family [78] to prevent damage. In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage. In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is consequently solidarily responsible with its physicians for Erlindas condition. Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the testimonies of the witnesses for the private respondents. Indeed, as shown by the above discussions, private respondents were unable to rebut the presumption of negligence. Upon these disquisitions we hold that private respondents are solidarily liable [79] for damages under Article 2176 of the Civil Code. We now come to the amount of damages due petitioners. The trial court awarded a total of P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff, subject to its being updated covering the period from 15 November 1985 up to 15 April 1992, based on monthly expenses for the care of the patient estimated at P8,000.00. At current levels, the P8000/monthly amount established by the trial court at the time of its decision would be grossly inadequate to cover the actual costs of home-based

care for a comatose individual. The calculated amount was not even arrived at by looking at the actual cost of proper hospice care for the patient. What it reflected were the actual expenses incurred and proved by the petitioners after they were forced to bring home the patient to avoid mounting hospital bills. And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice specializing in the care of the chronically ill for the purpose of providing a proper milieu adequate to meet minimum standards of care. In the instant case for instance, Erlinda has to be constantly turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is done by nasogastric tube. Food preparation should be normally made by a dietitian to provide her with the correct daily caloric requirements and vitamin supplements. Furthermore, she has to be seen on a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist to prevent the accumulation of secretions which can lead to respiratory complications. Given these considerations, the amount of actual damages recoverable in suits arising from negligence should at least reflect the correct minimum cost of proper care, not the cost of the care the family is usually compelled to undertake at home to avoid bankruptcy. However, the provisions of the Civil Code on actual or compensatory damages present us with some difficulties. Well-settled is the rule that actual damages which may be claimed by the plaintiff are those suffered by him as he has duly proved. The Civil Code provides: Art. 2199. - Except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages. Our rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur, are difficult to predict. In these cases, the amount of damages which should be awarded, if they are to adequately and correctly respond to the injury caused, should be one which compensates for pecuniary loss incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to be suffered but which could not, from the nature of the case, be [80] made with certainty. In other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct phases. As it would not be equitable - and certainly not in the best interests of the administration of justice - for the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awarded - temperate damages are appropriate. The amount given as temperate damages, though to a certain extent speculative, should take into account the cost of proper care. In the instant case, petitioners were able to provide only home-based nursing care for a comatose patient who has remained in that condition for over a decade. Having premised our award for compensatory damages on the amount provided by petitioners at the onset of litigation, it would be now much more in step with the interests of justice if

the value awarded for temperate damages would allow petitioners to provide optimal care for their loved one in a facility which generally specializes in such care. They should not be compelled by dire circumstances to provide substandard care at home without the aid of professionals, for anything less would be grossly inadequate. Under the circumstances, an [81] award of P1,500,000.00 in temperate damages would therefore be reasonable. [82] In Valenzuela vs. Court of Appeals, this Court was confronted with a situation where the injury suffered by the plaintiff would have led to expenses which were difficult to estimate because while they would have been a direct result of the injury (amputation), and were certain to be incurred by the plaintiff, they were likely to arise only in the future. We awarded P1,000,000.00 in moral damages in that case. Describing the nature of the injury, the Court therein stated: As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic amputation of her left lower extremity at the distal left thigh just above the knee. Because of this, Valenzuela will forever be deprived of the full ambulatory functions of her left extremity, even with the use of state of the art prosthetic technology. Well beyond the period of hospitalization (which was paid for by Li), she will be required to undergo adjustments in her prosthetic devise due to the shrinkage of the stump from the process of healing. These adjustments entail costs, prosthetic replacements and months of physical and occupational rehabilitation and therapy. During her lifetime, the prosthetic devise will have to be replaced and readjusted to changes in the size of her lower limb effected by the biological changes of middle-age, menopause and aging. Assuming she reaches menopause, for example, the prosthetic will have to be adjusted to respond to the changes in bone resulting from a precipitate decrease in calcium levels observed in the bones of all post-menopausal women. In other words, the damage done to her would not only be permanent and lasting, it would also be permanently changing and adjusting to the physiologic changes which her body would normally undergo through the years. The replacements, changes, and adjustments will require corresponding adjustive physical and occupational therapy. All of these adjustments, it has been documented, are painful. x x x. A prosthetic devise, however technologically advanced, will only allow a reasonable amount of functional restoration of the motor functions of the lower limb. The sensory functions are forever lost. The resultant anxiety, [83] sleeplessness, psychological injury, mental and physical pain are inestimable. The injury suffered by Erlinda as a consequence of private respondents negligence is certainly much more serious than the amputation in the Valenzuela case. Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a comatose state for over fourteen years now. The burden of care has so far been heroically shouldered by her husband and children, who, in the intervening years have been deprived of the love of a wife and a mother. Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be virtually impossible to quantify. Even the temperate damages herein awarded would be inadequate if petitioners condition remains unchanged for the next ten years. We recognized, in Valenzuela that a discussion of the victims actual injury would not even scratch the surface of the resulting moral damage because it would be highly

speculative to estimate the amount of emotional and moral pain, psychological damage [84] and injury suffered by the victim or those actually affected by the victims condition. The husband and the children, all petitioners in this case, will have to live with the day to day uncertainty of the patients illness, knowing any hope of recovery is close to nil. They have fashioned their daily lives around the nursing care of petitioner, altering their long term goals to take into account their life with a comatose patient. They, not the respondents, are charged with the moral responsibility of the care of the victim. The familys moral injury and suffering in this case is clearly a real one. For the foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate. Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby awarded. Considering the length and nature of the instant suit we are of the opinion that attorneys fees valued at P100,000.00 are likewise proper. Our courts face unique difficulty in adjudicating medical negligence cases because physicians are not insurers of life and, they rarely set out to intentionally cause injury or death to their patients. However, intent is immaterial in negligence cases because where negligence exists and is proven, the same automatically gives the injured a right to reparation for the damage caused. Established medical procedures and practices, though in constant flux are devised for the purpose of preventing complications. A physicians experience with his patients would sometimes tempt him to deviate from established community practices, and he may end a distinguished career using unorthodox methods without incident. However, when failure to follow established procedure results in the evil precisely sought to be averted by observance of the procedure and a nexus is made between the deviation and the injury or damage, the physician would necessarily be called to account for it. In the case at bar, the failure to observe pre-operative assessment protocol which would have influenced the intubation in a salutary way was fatal to private respondents case. WHEREFORE, the decision and resolution of the appellate court appealed from are hereby modified so as to award in favor of petitioners, and solidarily against private respondents the following: 1)P1,352,000.00 as actual damages computed as of the date of promulgation of this decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each as exemplary damages and attorneys fees; and, 5) the costs of the suit. Mendoza v. Casumpang et al. G.R. No. 197987, March 19, 2012. ABAD, J.: Josephine Casumpang, substituted by her respondent husband Adriano and their children Jennifer Adriane and John Andre, filed an action for damages against petitioner Dr. Mariter Mendoza in 1993 before the Regional Trial Court (RTC) of Iloilo City. On February 13, 1993 Josephine underwent hysterectomy and myomectomy that Dr. Mendoza performed on her at the Iloilo Doctors Hospital. After her operation, Josephine experienced recurring fever, nausea, and vomiting. Three months after the operation, she noticed while taking a bath something protruding from her genital. She tried calling Dr. Mendoza to report it but the latter was unavailable. Josephine instead went to see another physician, Dr. Edna Jamandre-Gumban, who extracted a foul smelling, partially

expelled rolled gauze from her cervix. The discovery of the gauze and the illness she went through prompted Josephine to file a damage suit against Dr. Mendoza before the RTC of Iloilo City. Because Josephine died before trial could end, her husband and their children substituted her in the case. She was a housewife and 40 years old when she died. On March 7, 2005 the RTC rendered judgment, finding Dr. Mendoza guilty of neglect that caused Josephines illness and eventual death and ordering her to pay plaintiffs heirs actual damages of P50,000.00, moral damages of P200,000.00, and attorneys fees of P20,000.00 plus costs of suit. On motion for reconsideration, however, the RTC reversed itself and dismissed the complaint in an order dated June 23, 2005. On appeal, the Court of Appeals (CA) rendered a decision on March 18, 2011, reinstating the RTCs original decision. The CA held that Dr. Mendoza committed a breach of her duty as a physician when a gauze remained in her patients body after surgery. The CA denied her motion for reconsideration on July 18, 2011, prompting her to file the present petition. Petitioner claims that no gauze or surgical material was left in Josephines body after her surgery as evidenced by the surgical sponge count in the hospital record. But she raises at this Courts level a question of fact when parties may raise only questions of law before it in petitions for review on certiorari from the CA. With few exceptions, the factual findings of the latter court are generally binding. None of those exceptions applies [2] to this case. As the RTC pointed out, Josephine did not undergo any other surgical operation. And it would be much unlikely for her or for any woman to inject a roll of gauze into her [3] cervix. As the Court held in Professional Services, Inc. v. Agana: An operation requiring the placing of sponges in the incision is not complete until the sponges are properly removed, and it is settled that the leaving of sponges or other foreign substances in the wound after the incision has been closed is at least prima facie negligence by the operating surgeon. To put it simply, such act is considered so inconsistent with due care as to raise an inference of negligence. There are even legions of authorities to the effect that such act is negligence per se. The Court notes, however, that neither the CA nor the RTC awarded exemplary damages against Dr. Mendoza when, under Article 2229 of the Civil Code, exemplary damages are imposed by way of example or correction for the public good, in addition to moral [4] damages. Exemplary damages may also be awarded in cases of gross negligence. A surgical operation is the responsibility of the surgeon performing it. He must personally ascertain that the counts of instruments and materials used before the surgery and prior to sewing the patient up have been correctly done. To provide an example to the medical profession and to stress the need for constant vigilance in attending to a patients health,
[1]

the award of exemplary damages in this case is in order. Further, in view of Josephines death resulting from petitioners negligence, civil indemnity [5] under Article 2206 of the Civil Code should be given to respondents as heirs. The amount [6] of P50,000.00 is fixed by prevailing jurisprudence for this kind. The Court also deems it just and equitable under Article 2208 of the Civil Code to increase the award of attorneys fees from P20,000.00 to P50,000.00. WHEREFORE, the Court entirely AFFIRMS the decision of the Court of Appeals dated March 18, 2011 with the MODIFICATION ordering petitioner Mariter Mendoza to pay respondents Adriano, Jennifer Adriane and John Andre, all surnamed Casumpang, an additional P50,000.00 as exemplary damages, additional P30,000.00 as attorneys fees and civil indemnity arising from death in the amount of P50,000.00. MEDICAL ACT, as amended Sec. 20. Issuance of Certificates of Registration, grounds for refusal of same. The Commissioner of Civil Service, the chairman, the members and the Secretary of the Board of Medical Examiners shall sign and issue certificates of registration to those who have satisfactorily complied with the requirements of the Board. They shall not issue a certificate of registration to any candidate who has been convicted by a court of competent jurisdiction of any criminal offense involving moral turpitude, or has been found guilty of immoral or dishonorable conduct after the investigation by the Board of Medical Examiners, or has been declared to be of unsound mind. "Sec. 22. Administrative investigations. In addition to the functions provided for in the preceding sections, the Board of Medical Examiners shall perform the following duties: (1) to administer oath to physicians who qualified in the examinations; (2) to study the conditions affecting the practice of medicine in all parts of the Philippines; (3) to exercise the powers conferred upon it by this article with the view of maintaining the ethical and professional standards of the medical profession, (4) to subpoena or subpoena duces tecum witnesses for all purposes required in the discharge of its duties; and (5) to promulgate, with the approval of the Commissioner of Civil Service, such rules and regulations as it may deem necessary for the performance of its duties in harmony with the provisions of this Act and necessary for the proper practice of medicine in the Philippines. "Administrative investigations shall be conducted by at least two members of the Board of Medical Examiners with one legal officer sitting during the investigation, otherwise the proceedings shall be considered void. The existing rules of evidence shall be observed during all administrative investigations. The Board may disapprove applications for examination or registration, reprimand erring physicians, or suspend or revoke registration certificates, if the respondents are found guilty after due investigation Section 23. Procedure and rules. Within five days after the filling of written charges under oath, the respondent physician shall be furnished a copy thereof, without requiring him or her to answer the same, and the Board shall conduct the investigation within five days

after the receipt of such copy by the respondent. The investigation shall be completed as soon as practicable. Section 24. Grounds for reprimand, suspension or revocation of registration certificate. Any of the following shall be sufficient ground for reprimanding a physician, or for suspending or revoking a certificate of registration as physician: (1) Conviction by a court of competent jurisdiction of any criminal offense involving moral turpitude; (2) Immoral or dishonorable conduct; (3) Insanity; (4) Fraud in the acquisition of the certificate of registration; (5) Gross negligence, ignorance or incompetence in the practice of his or her profession resulting in an injury to or death of the patient; (6) Addiction to alcoholic beverages or to any habit forming drug rendering him or her incompetent to practice his or her profession, or to any form of gambling; (7) False or extravagant or unethical advertisements wherein other things than his name, profession, limitation of practice, clinic hours, office and home address, are mentioned. (8) Performance of or aiding in any criminal abortion; (9) Knowingly issuing any false medical certificate; (10) Issuing any statement or spreading any news or rumor which is derogatory to the character and reputation of another physician without justifiable motive; (11) Aiding or acting as a dummy of an unqualified or unregistered person to practice medicine; (12) Violation of any provision of the Code of Ethics as approved by the Philippine Medical Association. Refusal of a physician to attend a patient in danger of death is not a sufficient ground for revocation or suspension of his registration certificate if there is a risk to the physician's life. Sec. 25. Rights of respondents. The respondent physician shall be entitled to be represented by counsel or be heard in person, to have a speedy and public hearing, to confront and to cross-examine witnesses against him or her, and to all other rights guaranteed by the Constitution and provided for in the Rules of Court." Section 26. Appeal from judgment. The decision of the Board of Medical Examiners shall automatically become final thirty days after the date of its promulgation unless the respondent, during the same period, has appealed to the Commissioner of Civil Service and later to the Office of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the case, or may file in court a petition for certiorari. Section 27. Reinstatement. After two years, the Board may order the reinstatement of any physicians whose certificate of registration has been revoked, if the respondent has acted in an exemplary manner in the community wherein he resides and has not committed any illegal, immoral or dishonorable act. ARTICLE IV PENAL AND OTHER PROVISIONS Section 28. Penalties. Any person found guilty of "illegal practice of medicine" shall be punished by a fine of not less than one thousand pesos nor more than ten thousand pesos with subsidiary imprisonment in case of insolvency, or by imprisonment of not less than

one year nor more than five years, or by both such fine and imprisonment, in the discretion of the court. Section 29. Injunctions. The Board of Medical Examiners may file an action to enjoin any person illegally practicing medicine from the performance of any act constituting practice of medicine if the case so warrants until the necessary certificate therefore is secured. Any such person who, after having been so enjoined, continues in the illegal practice of medicine shall be punished for contempt of court. The said injunction shall not relieve the person practicing medicine without certificate of registration from criminal prosecution and punishment as provided in the preceding section. Section 30. Appropriation. To carry out the provisions of this Act, there is hereby appropriated, out of any funds in the National Treasury not otherwise appropriated, the sum of twenty thousand pesos. Section 31. Repealing clause. All Acts, executive orders, administrative orders, rules and regulations, or parts thereof inconsistent with the provisions of this Act are repealed or modified accordingly. Section 32. Effectivity. This Act shall take effect upon its approval: Provided, That if it is approved during the time when examinations for physicians are held, it shall take effect immediately after the said examinations: Provided, further, That section six of this Act shall take effect at the beginning of the academic year nineteen hundred sixty to nineteen hundred sixty-one, and the first paragraph of section seven shall take effect four years thereafter. BATAS PAMBANSA Blg. 702 AN ACT PROHIBITING THE DEMAND OF DEPOSITS OR ADVANCE PAYMENTS FOR THE CONFINEMENT OR TREATMENT OF PATIENTS IN HOSPITALS AND MEDICAL CLINICS IN CERTAIN CASES Section 1. It shall be unlawful for any director, manager or any other officer of a hospital or medical clinic to demand any deposit or any other form of advance payment for confinement or treatment in such hospital or medical clinic in emergency or serious cases. Section 2. Any director, manager or any other officer of a hospital or medical clinic who violates Section 1 of this Act shall be punished by a fine of not less than one thousand pesos but not more than two thousand pesos or imprisonment for not less than fifteen days but not more than thirty days, or both such fine and imprisonment. Section 3. Any person convicted under this Act shall not be entitled to probation under the provisions of Presidential Decree No. 968, as amended, otherwise known as the Probation Law of 1976. Section 4. The Ministry of Health shall promulgate the necessary rules and regulations to carry out the provisions of this Act. Section 5. This Act shall take effect upon its approval. Republic Act No. 8344 August 25, 1997 AN ACT PENALIZING THE REFUSAL OF HOSPITALS AND MEDICAL CLINICS TO ADMINISTER APPROPRIATE INITIAL MEDICAL TREATMENT AND SUPPORT IN EMERGENCY OR SERIOUS CASES, AMENDING FOR THE PURPOSE BATAS PAMBANSA BILANG 702, OTHERWISE KNOWN AS "AN ACT PROHIBITING THE DEMAND OF DEPOSITS OR ADVANCE PAYMENTS FOR THE CONFINEMENT OR TREATMENT OF PATIENTS IN HOSPITALS AND MEDICAL CLINICS IN CERTAIN CASES"

Be it enacted by the Senate and House of Representatives of the Philippines in Congress assembled:: Section 1. Section 1 of Batas Pambansa Bilang 702 is hereby amended to read as follows: "SECTION 1. In emergency or serious cases, it shall be unlawful for any proprietor, president, director, manager or any other officer, and/or medical practitioner or employee of a hospital or medical clinic to request, solicit, demand or accept any deposit or any other form of advance payment as a prerequisite for confinement or medical treatment of a patient in such hospital or medical clinic or to refuse to administer medical treatment and support as dictated by good practice of medicine to prevent death or permanent disability: Provided, That by reason of inadequacy of the medical capabilities of the hospital or medical clinic, the attending physician may transfer the patient to a facility where the appropriate care can be given, after the patient or his next of kin consents to said transfer and after the receiving hospital or medical clinic agrees to the transfer: Provided, however, That when the patient is unconscious, incapable of giving consent and/or unaccompanied, the physician can transfer the patient even without his consent: Provided, further, That such transfer shall be done only after necessary emergency treatment and support have been administered to stabilize the patient and after it has been established that such transfer entails less risks than the patient's continued confinement: Provided, furthermore, That no hospital or clinic, after being informed of the medical indications for such transfer, shall refuse to receive the patient nor demand from the patient or his next of kin any deposit or advance payment: Provided, finally, That strict compliance with the foregoing procedure on transfer shall not be construed as a refusal made punishable by this Act." Section 2. Section 2 of Batas Pambansa Bilang 702 is hereby deleted and in place thereof, new sections 2, 3 and 4 are added, to read as follows: "SEC. 2. For purposes of this Act, the following definitions shall govern: "(a) 'Emergency' - a condition or state of a patient wherein based on the objective findings of a prudent medical officer on duty for the day there is immediate danger and where delay in initial support and treatment may cause loss of life or cause permanent disability to the patient. "(b) 'Serious case' - refers to a condition of a patient characterized by gravity or danger wherein based on the objective findings of a prudent medical officer on duty for the day when left unattended to, may cause loss of life or cause permanent disability to the patient. "(c) 'Confinement' - a state of being admitted in a hospital or medical clinic for medical observation, diagnosis, testing, and treatment consistent with the capability and available facilities of the hospital or clinic. "(d) 'Hospital' - a facility devoted primarily to the diagnosis, treatment and care of individuals suffering from illness, disease, injury or deformity, or in need of obstetrical or other medical and nursing care. It shall also be construed as any institution, building or place where there are facilities and personnel for the continued and prolonged care of patients.

"(e) 'Emergency treatment and support' - any medical or surgical measure within the capability of the hospital or medical clinic that is administered by qualified health care professionals to prevent the death or permanent disability of a patient. "(f) 'Medical clinic' - a place in which patients can avail of medical consultation or treatment on an outpatient basis. "(g) 'Permanent disability' - a condition of physical disability as defined under Article 192-C and Article 193-B and C of Presidential Decree No 442; as amended, otherwise known as the Labor Code of the Philippines. "(h) 'Stabilize' - the provision of necessary care until such time that the patient may be discharged or transferred to another hospital or clinic with a reasonable probability that no physical deterioration would result from or occur during such discharge or transfer. "SEC. 3. After the hospital or medical clinic mentioned above shall have administered medical treatment and support, it may cause the transfer of the patient to an appropriate hospital consistent with the needs of the patient, preferably to a government hospital, specially in the case of poor or indigent patients. "SEC. 4. Any official, medical practitioner or employee of the hospital or medical clinic who violates the provisions of this Act shall, upon conviction by final judgment, be punished by imprisonment of not less than six (6) months and one (1) day but not more than two (2) years and four (4) months, or a fine of not less than Twenty thousand pesos (P20,000.00), but not more than One hundred thousand pesos (P100,000.00) or both, at the discretion of the court: Provided, however, That if such violation was committed pursuant to an established policy of the hospital or clinic or upon instruction of its management, the director or officer of such hospital or clinic responsible for the formulation and implementation of such policy shall, upon conviction by final judgment, suffer imprisonment of four (4) to six (6) years, or a fine of not less than One hundred thousand pesos (P100,000.00), but not more than Five hundred thousand pesos (P500,000.00) or both, at the discretion of the court." Section 3. Section 3 of Batas Pambansa Bilang 702 is hereby repealed. Section 4. Section 4 of Batas Pambansa Bilang 702 shall become Section 5 thereof and shall be amended to read as follows: "SEC. 5. The Department of Health shall promulgate the necessary rules and regulations to carry out the provisions of this Act." Section 5. This Act shall take effect fifteen (15) days after its publication in two (2) national newspapers of general circulation. Approved: August 25, 1997