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EN BANC

PROFESSIONAL SERVICES, G.R. No. 126297
INC.,
Petitioner, Present:
PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- v e r s u s - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
*

DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ
and
MENDOZA, JJ.
**


THE COURT OF APPEALS
and NATIVIDAD and ENRIQUE
AGANA,
Respondents.

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NATIVIDAD [substituted by her G.R. No. 126467
children Marcelino Agana III,
Enrique Agana, Jr.,
Emma Agana-Andaya,
Jesus Agana and Raymund
Agana] and ENRIQUE AGANA,
Petitioners,


- v e r s u s -

THE COURT OF APPEALS and JUAN
FUENTES,
Respondents.

x - - - - - - - - - - - - - - - - - - - x
MIGUEL AMPIL, G.R. No. 127590
Petitioner,

- v e r s u s -

NATIVIDAD and ENRIQUE
AGANA,
Respondents.
Promulgated:
February 2, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

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R E S O L U T I O N
CORONA, J.:

With prior leave of court,
[1]
petitioner Professional
Services, Inc. (PSI) filed asecond motion for
reconsideration
[2]
urging referral thereof to the Court en
banc and 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),
[3]
Asian Hospital,
Inc. (AHI),
[4]
and Private Hospital Association of the Philippines
(PHAP)
[5]
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 MMSI, AHI and PHAP (hereafter
intervenors),
[6]
and referred en consulta to the Court en
banc the motion for prior leave of court and the second motion
for reconsideration of PSI.
[7]



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Due to paramount public interest, the Court en
banc accepted the referral
[8]
andheard 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 in its premises.
[9]


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
substituted by her heirs), in a complaint
[10]
for damages filed in
the Regional Trial Court (RTC) of Quezon City, Branch
96, for the injuries suffered by Natividad when Dr. Ampil and
Dr. Fuentes neglected to remove from her body two
gauzes
[11]
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
[12]
dated March 17, 1993, the RTC held PSI
solidarily liable with Dr. Ampil and Dr. Fuentes for
damages.
[13]
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 reimbursement from Dr.
Ampil.
[14]


On petition for review, this Court, in its January 31,
2007 decision, affirmed the CA decision.
[15]
PSI filed a motion

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for reconsideration
[16]
but the Court denied it in a resolution
dated February 11, 2008.
[17]


The Court premised the direct liability of PSI to the Aganas
on the following facts and law:

First, there existed between PSI and Dr. Ampil an
employer-employee relationship as contemplated in
the December 29, 1999 decision in Ramos v. Court of
Appeals
[18]
that for purposes of allocating responsibility in
medical negligence cases, an employer-employee relationship
exists between hospitals and their consultants.
[19]
Although
the Court in Ramos later issued a Resolution dated April 11,
2002
[20]
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.
Ampil.
[21]


Second, by accrediting Dr. Ampil and advertising his
qualifications, PSI created the public impression that he was its
agent.
[22]
Enrique testified that it was on account of Dr. Ampil's
accreditation with PSI that he conferred with said doctor about

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his wife's (Natividad's) condition.
[23]
After his meeting with Dr.
Ampil, Enrique asked Natividad to personally consult Dr.
Ampil.
[24]
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 al.
v. Capitol Medical Center, et al.,
[25]
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 reasonable care to protect her from harm,
[26]
to
oversee or supervise all persons who practiced medicine within
its walls, and to take active steps in fixing any form of
negligence committed within its premises.
[27]
PSI committed a
serious breach of its corporate duty when it failed to conduct
an immediate investigation into the reported missing gauzes.
[28]


PSI is now asking this Court to reconsider the foregoing
rulings for these reasons:
I


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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.


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III

PSI cannot be liable under doctrine of corporate
negligence since the proximate cause of Mrs. Agana's
injury was the negligence of Dr. Ampil, which is an
element of the principle of corporate negligence.
[29]


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
parties.
[30]



The Aganas comment that the arguments of PSI need no
longer be entertained for they have all been traversed in the
assailed decision and resolution.
[31]


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

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the principle of corporate negligence for its failure to perform
its duties as a hospital.
While in theory a hospital as a juridical entity cannot
practice medicine,
[32]
in reality it utilizes doctors, surgeons and
medical practitioners in the conduct of its business of
facilitating medical and surgical treatment.
[33]
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 liable under Article 2176
[34]
in relation
to Article 2180
[35]
of the Civil Code or the principle ofrespondeat
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 vicariously liable under
Article 2176 in relation to Article 1431
[36]
and Article 1869
[37]
of
the Civil Code or the principle of apparent
authority.
[38]
Moreover, regardless of its relationship with the
doctor, the hospital may be held directly liable to the patient

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for its own negligence or failure to follow established standard
of conduct to which it should conform as a corporation.
[39]


This Court still employs the control test to determine the
existence of an employer-employee relationship between
hospital and doctor. In Calamba Medical Center, Inc. v. National
Labor Relations Commission, et al.
[40]
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 work-schedules, 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,

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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)


Even in its December 29, 1999 decision
[41]
and April 11,
2002 resolution
[42]
inRamos, the Court found the control test
decisive.

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 thatthe 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
independent contractors.
[43]
The Aganas never questioned
such finding.

PSI, Dr. Ampil and Dr. Fuentes appealed
[44]
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-

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employee, but it was clear in its discussion on the matter that it
viewed their relationship as one of mere apparent agency.
[45]


The Aganas appealed from the CA decision, but only
to question the exoneration of Dr. Fuentes.
[46]
PSI also appealed
from the CA decision, and it was then that the issue of
employment, though long settled, was unwittingly resurrected.

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 Court.
[47]
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 employer-employee 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

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vicariously liable for the negligence of Dr. Ampil under the
principle ofrespondeat superior.
There is, however, ample evidence that the hospital (PSI)
held out to the patient (Natividad)
[48]
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 care and prudence.
[49]


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 told his daughter to take her mother to Dr.
Ampil.
[50]
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 consulted Dr. Ampil at the
instigation of her daughter.
[51]


Moreover, when asked what impelled him to choose
Dr. Ampil, Enrique testified:
Atty. Agcaoili


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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 patients.
[52]
(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
of Medical CityGeneral Hospital, and that said hospital was well
known and prominent. Enrique looked upon Dr. Ampil not as
independent of but as integrally related to Medical City.

PSI's acts tended to confirm and reinforce, rather
than negate, Enrique's view. It is of record that PSI required a
consent for hospital care
[53]
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 GeneralHospital to
perform such diagnostic procedures and to administer

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such medications and treatmentsas 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 Medical City GeneralHospital, meaning that, had Dr. Ampil
been affiliated with another hospital, he would still have been
chosen by the Aganas as Natividad's surgeon.
[54]


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.

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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 theAgana'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 check-ups 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

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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 not informed about it at all.
[55]
(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 it.
[56]


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 well as its prominence
[57]
in the
hospital industry, it assumed a duty to tread on the captain

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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
the time Natividad underwent treatment;
[58]
and that if it had
any corporate responsibility, the same was limited to reporting
the missing gauzes and did not include taking an active step in
fixing the negligence committed.
[59]
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 not objection is interposed by a party.
[60]



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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 gauzes.
[61]
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
about it.
[62]
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 not
even inform the hospital about her discomfort.
[63]


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

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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.


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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. Ampil and an admitted corporate duty
to Natividad.
[64]


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Other circumstances peculiar to this case warrant this
ruling,
[65]
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 have all but dwindled, for the status of Dr.
Ampil can no longer be ascertained.
[66]


Therefore, taking all the equities of this case into
consideration, this Court believesP15 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.

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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.

SO ORDERED.


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FIRST DIVISION
[G.R. No. 124354. April 11, 2002]
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf
and as natural guardians of the minors, ROMMEL
RAMOS, ROY RODERICK RAMOS, and RON RAYMOND
RAMOS, petitioners, vs. COURT OF APPEALS, DE LOS
SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and DR.
PERFECTA GUTIERREZ, respondents.
R E S O L U T I O N
KAPUNAN, J.:
Private respondents De Los Santos Medical Center, Dr.
Orlino Hosaka and Dr. Perfecta Gutierrez move for a
reconsideration of the Decision, dated December 29, 1999, of
this Court holding them civilly liable for petitioner Erlinda
Ramos comatose condition after she delivered herself to them
for their professional care and management.
For better understanding of the issues raised in private
respondents respective motions, we will briefly restate the
facts of the case as follows:
Sometime in 1985, petitioner Erlinda Ramos, after seeking
professional medical help, was advised to undergo an operation
for the removal of a stone in her gall bladder
(cholecystectomy). She was referred to Dr. Hosaka, a surgeon,

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who agreed to perform the operation on her. The operation
was scheduled for June 17, 1985 at 9:00 in the morning at
private respondent De Los Santos Medical Center
(DLSMC). Since neither petitioner Erlinda nor her husband,
petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka
recommended to them the services of Dr. Gutierrez.
Petitioner Erlinda was admitted to the DLSMC the day
before the scheduled operation. By 7:30 in the morning of the
following day, petitioner Erlinda was already being prepared for
operation. Upon the request of petitioner Erlinda, her sister-in-
law, Herminda Cruz, who was then Dean of the College of
Nursing at the Capitol Medical Center, was allowed to
accompany her inside the operating room.
At around 9:30 in the morning, Dr. Hosaka had not yet
arrived so Dr. Gutierrez tried to get in touch with him by
phone. Thereafter, Dr. Gutierrez informed Cruz that the
operation might be delayed due to the late arrival of Dr.
Hosaka. In the meantime, the patient, petitioner Erlinda said to
Cruz, Mindy, inip na inip na ako, ikuha mo ako ng ibang
Doctor.
By 10:00 in the morning, when Dr. Hosaka was still not
around, petitioner Rogelio already wanted to pull out his wife
from the operating room. He met Dr. Garcia, who remarked
that he was also tired of waiting for Dr. Hosaka. Dr. Hosaka
finally arrived at the hospital at around 12:10 in the afternoon,
or more than three (3) hours after the scheduled operation.
Cruz, who was then still inside the operating room, heard
about Dr. Hosakas arrival. While she held the hand of Erlinda,

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Cruz saw Dr. Gutierrez trying to intubate the patient. Cruz
heard Dr. Gutierrez utter: ang hirap ma-intubate nito, mali
yata ang pagkakapasok. O lumalaki ang tiyan. Cruz noticed a
bluish discoloration of Erlindas nailbeds on her left hand. She
(Cruz) then heard Dr. Hosaka instruct someone to call Dr.
Calderon, another anesthesiologist. When he arrived, Dr.
Calderon attempted to intubate the patient. The nailbeds of the
patient remained bluish, thus, she was placed in a
trendelenburg position a position where the head of the
patient is placed in a position lower than her feet. At this point,
Cruz went out of the operating room to express her concern to
petitioner Rogelio that Erlindas operation was not going well.
Cruz quickly rushed back to the operating room and saw that
the patient was still in trendelenburg position. At almost 3:00 in
the afternoon, she saw Erlinda being wheeled to the Intensive
Care Unit (ICU). The doctors explained to petitioner Rogelio
that his wife had bronchospasm. Erlinda stayed in the ICU for a
month. She was released from the hospital only four months
later or on November 15, 1985. Since the ill-fated operation,
Erlinda remained in comatose condition until she died on
August 3, 1999.
[1]

Petitioners filed with the Regional Trial Court of Quezon City
a civil case for damages against private respondents. After due
trial, the court a quo rendered judgment in favor of petitioners.
Essentially, the trial court found that private respondents were
negligent in the performance of their duties to Erlinda. On
appeal by private respondents, the Court of Appeals reversed

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the trial courts decision and directed petitioners to pay their
unpaid medical bills to private respondents.
Petitioners filed with this Court a petition for review on
certiorari. The private respondents were then required to
submit their respective comments thereon. On December 29,
1999, this Court promulgated the decision which private
respondents now seek to be reconsidered. The dispositive
portion of said Decision states:
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 exemplary damages and attorneys fees; and
5) the costs of the suit.
[2]

In his Motion for Reconsideration, private respondent Dr.
Hosaka submits the following as grounds therefor:
I
THE HONORABLE SUPREME COURT COMMITTED
REVERSIBLE ERROR WHEN IT HELD RESPONDENT DR.
HOSAKA LIABLE ON THE BASIS OF THE CAPTAIN-OF-THE-
SHIP DOCTRINE.
II

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THE HONORABLE SUPREME COURT ERRED IN HOLDING
RESPONDENT DR. HOSAKA LIABLE DESPITE THE FACT
THAT NO NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.
III
ASSUMING WITHOUT ADMITTING THAT RESPONDENT
DR. HOSAKA IS LIABLE, THE HONORABLE SUPREME
COURT ERRED IN AWARDING DAMAGES THAT WERE
CLEARLY EXCESSIVE AND WITHOUT LEGAL BASIS.
[3]

Private respondent Dr. Gutierrez, for her part, avers that:
A. THE HONORABLE SUPREME COURT MAY HAVE
INADVERTENTLY OVERLOOKED THE FACT THAT THE
COURT OF APPEALS DECISION DATED 29 MAY 1995 HAD
ALREADY BECOME FINAL AND EXECUTORY AS OF 25 JUNE
1995, THEREBY DEPRIVING THIS HONORABLE COURT OF
JURISDICTION OVER THE INSTANT PETITION;
B. THE HONORABLE SUPREME COURT MAY HAVE
INADVERTENTLY OVERLOOKED SEVERAL MATERIAL
FACTUAL CIRCUMSTANCES WHICH, IF PROPERLY
CONSIDERED, WOULD INDUBITABLY LEAD TO NO OTHER
CONCLUSION BUT THAT PRIVATE RESPONDENT DOCTORS
WERE NOT GUILTY OF ANY NEGLIGENCE IN RESPECT OF
THE INSTANT CASE;
B.1 RESPONDENT DOCTOR PERFECTA GUTIERREZ
HAS SUFFICIENTLY DISCHARGED THE BURDEN
OF EVIDENCE BY SUBSTANTIAL PROOF OF HER

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COMPLIANCE WITH THE STANDARDS OF DUE
CARE EXPECTED IN HER RESPECTIVE FIELD OF
MEDICAL SPECIALIZATION.
B.2 RESPONDENT DOCTOR PERFECTA GUTIERREZ
HAS SUFFICIENTLY DISCHARGED THE BURDEN
OF EVIDENCE BY SUBSTANTIAL PROOF OF HER
HAVING SUCCESSFULLY INTUBATED PATIENT
ERLINDA RAMOS
C. THE SUPREME COURT MAY HAVE INADVERTENTLY
PLACED TOO MUCH RELIANCE ON THE TESTIMONY OF
PETITIONERS WITNESS HERMINDA CRUZ, DESPITE THE
EXISTENCE OF SEVERAL FACTUAL CIRCUMSTANCES
WHICH RENDERS DOUBT ON HER CREDIBILITY
D. THE SUPREME COURT MAY HAVE INADVERTENTLY
DISREGARDED THE EXPERT TESTIMONY OF DR. JAMORA
AND DRA. CALDERON
E. THE HONORABLE SUPREME COURT MAY HAVE
INADVERTENTLY AWARDED DAMAGES TO PETITIONERS
DESPITE THE FACT THAT THERE WAS NO NEGLIGENCE ON
THE PART OF RESPONDENT DOCTOR.
[4]

Private respondent De Los Santos Medical Center likewise
moves for reconsideration on the following grounds:
I
THE HONORABLE COURT ERRED IN GIVING DUE COURSE
TO THE INSTANT PETITION AS THE DECISION OF THE

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HONORABLE COURT OF APPEALS HAD ALREADY BECOME
FINAL AND EXECUTORY
II
THE HONORABLE SUPREME COURT ERRED IN FINDING
THAT AN EMPLOYER-EMPLOYEE [RELATIONSHIP] EXISTS
BETWEEN RESPONDENT DE LOS SANTOS MEDICAL
CENTER AND DRS. ORLINO HOSAKA AND PERFECTA
GUTIERREZ
III
THE HONORABLE SUPREME COURT ERRED IN FINDING
THAT RESPONDENT DE LOS SANTOS MEDICAL CENTER IS
SOLIDARILY LIABLE WITH RESPONDENT DOCTORS
IV
THE HONORABLE SUPREME COURT ERRED IN INCREASING
THE AWARD OF DAMAGES IN FAVOR OF PETITIONERS.
[5]

In the Resolution of February 21, 2000, this Court denied the
motions for reconsideration of private respondents Drs. Hosaka
and Gutierrez. They then filed their respective second motions
for reconsideration. The Philippine College of Surgeons filed its
Petition-in-Intervention contending in the main that this Court
erred in holding private respondent Dr. Hosaka liable under the
captain of the ship doctrine. According to the intervenor, said
doctrine had long been abandoned in the United States in
recognition of the developments in modern medical and

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hospital practice.
[6]
The Court noted these pleadings in the
Resolution of July 17, 2000.
[7]

On March 19, 2001, the Court heard the oral arguments of
the parties, including the intervenor. Also present during the
hearing were the amicii curiae: Dr. Felipe A. Estrella, Jr.,
Consultant of the Philippine Charity Sweepstakes, former
Director of the Philippine General Hospital and former
Secretary of Health; Dr. Iluminada T. Camagay, President of the
Philippine Society of Anesthesiologists, Inc. and Professor and
Vice-Chair for Research, Department of Anesthesiology, College
of Medicine-Philippine General Hospital, University of the
Philippines; and Dr. Lydia M. Egay, Professor and Vice-Chair for
Academics, Department of Anesthesiology, College of
Medicine-Philippine General Hospital, University of the
Philippines.
The Court enumerated the issues to be resolved in this case
as follows:
1. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS
LIABLE FOR NEGLIGENCE;
2. WHETHER OR NOT DR. PERFECTA GUTIERREZ
(ANESTHESIOLOGIST) IS LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS
MEDICAL CENTER) IS LIABLE FOR ANY ACT OF
NEGLIGENCE COMMITTED BY THEIR VISITING
CONSULTANT SURGEON AND ANESTHESIOLOGIST.
[8]

We shall first resolve the issue pertaining to private
respondent Dr. Gutierrez. She maintains that the Court erred in

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finding her negligent and in holding that it was the faulty
intubation which was the proximate cause of Erlindas
comatose condition. The following objective facts allegedly
negate a finding of negligence on her part: 1) That the outcome
of the procedure was a comatose patient and not a dead one;
2) That the patient had a cardiac arrest; and 3) That the patient
was revived from that cardiac arrest.
[9]
In effect, Dr. Gutierrez
insists that, contrary to the finding of this Court, the intubation
she performed on Erlinda was successful.
Unfortunately, Dr. Gutierrez claim of lack of negligence on
her part is belied by the records of the case. It has been
sufficiently established that she failed to exercise the standards
of care in the administration of anesthesia on a patient. Dr.
Egay enlightened the Court on what these standards are:
x x x What are the standards of care that an anesthesiologist
should do before we administer anesthesia? The initial step is
the preparation of the patient for surgery and this is a pre-
operative evaluation because the anesthesiologist is
responsible for determining the medical status of the patient,
developing the anesthesia plan and acquainting the patient or
the responsible adult particularly if we are referring with the
patient or to adult patient who may not have, who may have
some mental handicaps of the proposed plans. We do pre-
operative evaluation because this provides for an opportunity
for us to establish identification and personal acquaintance
with the patient. It also makes us have an opportunity to
alleviate anxiety, explain techniques and risks to the patient,
given the patient the choice and establishing consent to

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proceed with the plan. And lastly, once this has been agreed
upon by all parties concerned the ordering of pre-operative
medications. And following this line at the end of the
evaluation we usually come up on writing, documentation is
very important as far as when we train an anesthesiologist we
always emphasize this because we need records for our
protection, well, records. And it entails having brief summary
of patient history and physical findings pertinent to anesthesia,
plan, organize as a problem list, the plan anesthesia technique,
the plan post operative, pain management if appropriate,
special issues for this particular patient. There are needs for
special care after surgery and if it so it must be written down
there and a request must be made known to proper authorities
that such and such care is necessary. And the request for
medical evaluation if there is an indication. When we ask for a
cardio-pulmonary clearance it is not in fact to tell them if this
patient is going to be fit for anesthesia, the decision to give
anesthesia rests on the anesthesiologist. What we ask them is
actually to give us the functional capacity of certain systems
which maybe affected by the anesthetic agent or the technique
that we are going to use. But the burden of responsibility in
terms of selection of agent and how to administer it rest on the
anesthesiologist.
[10]

The conduct of a preanesthetic/preoperative evaluation
prior to an operation, whether elective or emergency, cannot
be dispensed with.
[11]
Such evaluation is necessary for the
formulation of a plan of anesthesia care suited to the needs of
the patient concerned.

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Pre-evaluation for anesthesia involves taking the patients
medical history, reviewing his current drug therapy, conducting
physical examination, interpreting laboratory data, and
determining the appropriate prescription of preoperative
medications as necessary to the conduct of anesthesia.
[12]

Physical examination of the patient entails not only
evaluating the patients central nervous system, cardiovascular
system and lungs but also the upper airway. Examination of the
upper airway would in turn include an analysis of the patients
cervical spine mobility, temporomandibular mobility,
prominent central incisors, deceased or artificial teeth, ability
to visualize uvula and the thyromental distance.
[13]

Nonetheless, Dr. Gutierrez omitted to perform a thorough
preoperative evaluation on Erlinda. As she herself admitted,
she saw Erlinda for the first time on the day of the operation
itself, one hour before the scheduled operation. She
auscultated
[14]
the patients heart and lungs and checked the
latters blood pressure to determine if Erlinda was indeed fit for
operation.
[15]
However, she did not proceed to examine the
patients airway. Had she been able to check petitioner
Erlindas airway prior to the operation, Dr. Gutierrez would
most probably not have experienced difficulty in intubating the
former, and thus the resultant injury could have been avoided.
As we have stated in our Decision:
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

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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.
[16]

Further, there is no cogent reason for the Court to reverse
its finding that it was the faulty intubation on Erlinda that
caused her comatose condition. There is no question that
Erlinda became comatose after Dr. Gutierrez performed a
medical procedure on her. Even the counsel of Dr. Gutierrez
admitted to this fact during the oral arguments:
CHIEF JUSTICE:
Mr. Counsel, you started your argument saying that this
involves a comatose patient?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:

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How do you mean by that, a comatose, a comatose after
any other acts were done by Dr. Gutierrez or comatose
before any act was done by her?
ATTY. GANA:
No, we meant comatose as a final outcome of the
procedure.
CHIEF JUSTICE:
Meaning to say, the patient became comatose after some
intervention, professional acts have been done by Dr.
Gutierrez?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
In other words, the comatose status was a consequence of
some acts performed by D. Gutierrez?
ATTY. GANA:
It was a consequence of the well, (interrupted)
CHIEF JUSTICE:
An acts performed by her, is that not correct?
ATTY. GANA:
Yes, Your Honor.
CHIEF JUSTICE:
Thank you.
[17]


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What is left to be determined therefore is whether Erlindas
hapless condition was due to any fault or negligence on the
part of Dr. Gutierrez while she (Erlinda) was under the latters
care. Dr. Gutierrez maintains that the bronchospasm and
cardiac arrest resulting in the patients comatose condition was
brought about by the anaphylactic reaction of the patient to
Thiopental Sodium (pentothal).
[18]
In the Decision, we explained
why we found Dr. Gutierrez theory unacceptable. In the first
place, Dr. Eduardo Jamora, the witness who was presented to
support her (Dr. Gutierrez) theory, was a pulmonologist. Thus,
he could not be considered an authority on anesthesia practice
and procedure and their complications.
[19]

Secondly, there was no evidence on record to support the
theory that Erlinda developed an allergic reaction to
pentothal. Dr. Camagay enlightened the Court as to the
manifestations of an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical
terminology an allergic reaction is something which is not
usual response and it is further qualified by the release of
a hormone called histamine and histamine has an effect
on all the organs of the body generally release because the
substance that entered the body reacts with the particular
cell, the mass cell, and the mass cell secretes this
histamine. In a way it is some form of response to take
away that which is not mine, which is not part of the
body. So, histamine has multiple effects on the body. So,
one of the effects as you will see you will have redness, if

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you have an allergy you will have tearing of the eyes, you
will have swelling, very crucial swelling sometimes of the
larynges which is your voice box main airway, that swelling
may be enough to obstruct the entry of air to the trachea
and you could also have contraction, constriction of the
smaller airways beyond the trachea, you see you have the
trachea this way, we brought some visual aids but
unfortunately we do not have a projector. And then you
have the smaller airways, the bronchi and then eventually
into the mass of the lungs you have the bronchus. The
difference is that these tubes have also in their walls
muscles and this particular kind of muscles is smooth
muscle so, when histamine is released they close up like
this and that phenomenon is known as bronco
spasm. However, the effects of histamine also on blood
vessels are different. They dilate blood vessel open up and
the patient or whoever has this histamine release has
hypertension or low blood pressure to a point that the
patient may have decrease blood supply to the brain and
may collapse so, you may have people who have this.
[20]

These symptoms of an allergic reaction were not shown to
have been extant in Erlindas case. As we held in our Decision,
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.
[21]

Dr. Gutierrez, however, insists that she successfully
intubated Erlinda as evidenced by the fact that she was revived

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after suffering from cardiac arrest. Dr. Gutierrez faults the
Court for giving credence to the testimony of Cruz on the
matter of the administration of anesthesia when she (Cruz),
being a nurse, was allegedly not qualified to testify
thereon. Rather, Dr. Gutierrez invites the Courts attention to
her synopsis on what transpired during Erlindas intubation:
12:15 p.m. Patient was inducted with sodium pentothal
2.5% (250 mg) given by slow IV. 02 was started by
mask. After pentothal injection this was followed
by IV injection of Norcuron 4mg. After 2 minutes
02 was given by positive pressure for about one
minute. Intubation with endotracheal tube 7.5 m
in diameter was done with slight difficulty (short
neck & slightly prominent upper teeth) chest was
examined for breath sounds & checked if equal on
both sides. The tube was then anchored to the
mouth by plaster & cuff inflated. Ethrane 2% with
02 4 liters was given. Blood pressure was checked
120/80 & heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was
cyanotic. Ethrane was discontinued & 02 given
alone. Cyanosis disappeared. Blood pressure and
heart beats stable.
12:30 p.m. Cyanosis again reappeared this time with
sibilant and sonorous rales all over the
chest. D_5%_H20 & 1 ampule of aminophyline by
fast drip was started. Still the cyanosis was
persistent. Patient was connected to a cardiac

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monitor. Another ampule of of [sic] aminophyline
was given and solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra cardiac
massage and intercardiac injection of adrenalin
was given & heart beat reappeared in less than
one minute. Sodium bicarbonate & another dose
of solu cortef was given by IV. Cyanosis slowly
disappeared & 02 continuously given & assisted
positive pressure. Laboratory exams done (see
results in chart).
Patient was transferred to ICU for further management.
[22]

From the foregoing, it can be allegedly seen that there was
no withdrawal (extubation) of the tube. And the fact that the
cyanosis allegedly disappeared after pure oxygen was supplied
through the tube proved that it was properly placed.
The Court has reservations on giving evidentiary weight to
the entries purportedly contained in Dr. Gutierrez synopsis. It
is significant to note that the said record prepared by Dr.
Gutierrez was made only after Erlinda was taken out of the
operating room. The standard practice in anesthesia is that
every single act that the anesthesiologist performs must be
recorded. In Dr. Gutierrez case, she could not account for at
least ten (10) minutes of what happened during the
administration of anesthesia on Erlinda. The following exchange
between Dr. Estrella, one of the amicii curiae, and Dr. Gutierrez
is instructive:
DR. ESTRELLA

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You mentioned that there were two (2) attempts in the
intubation period?
DR. GUTIERREZ
Yes.
Q There were two attempts. In the first attempt was the
tube inserted or was the laryngoscope only inserted,
which was inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember right
somewhere in the re-direct, a certain lawyer, you were
asked that you did a first attempt and the question was
did you withdraw the tube? And you said you never
withdrew the tube, is that right?
A Yes.
Q Yes. And so if you never withdrew the tube then there
was no, there was no insertion of the tube during that first
attempt. Now, the other thing that we have to settle here
is when cyanosis occurred, is it recorded in the
anesthesia record when the cyanosis, in your recording
when did the cyanosis occur?
A (sic)
Q Is it a standard practice of anesthesia that whatever you
do during that period or from the time of induction to the
time that you probably get the patient out of the
operating room that every single action that you do is so
recorded in your anesthesia record?

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A I was not able to record everything I did not have time
anymore because I did that after the, when the patient
was about to leave the operating room. When there was
second cyanosis already that was the (interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started induction at
12:15?
A Yes, Your Honor.
Q And the first medication you gave was what?
A The first medication, no, first the patient was oxygenated
for around one to two minutes.
Q Yes, so, that is about 12:13?
A Yes, and then, I asked the resident physician to start
giving the pentothal very slowly and that was around one
minute.
Q So, that is about 12:13 no, 12:15, 12:17?
A Yes, and then, after one minute another oxygenation was
given and after (interrupted)
Q 12:18?

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A Yes, and then after giving the oxygen we start the
menorcure which is a relaxant. After that relaxant
(interrupted)
Q After that relaxant, how long do you wait before you do
any manipulation?
A Usually you wait for two minutes or three minutes.
Q So, if our estimate of the time is accurate we are now
more or less 12:19, is that right?
A Maybe.
Q 12:19. And at that time, what would have been done to
this patient?
A After that time you examine the, if there is relaxation of
the jaw which you push it downwards and when I saw that
the patient was relax because that monorcure is a
relaxant, you cannot intubate the patient or insert the
laryngoscope if it is not keeping him relax. So, my first
attempt when I put the laryngoscope on I saw the trachea
was deeply interiorly. So, what I did ask mahirap ata ito
ah. So, I removed the laryngoscope and oxygenated
again the patient.
Q So, more or less you attempted to do an intubation after
the first attempt as you claimed that it was only the
laryngoscope that was inserted.
A Yes.
Q And in the second attempt you inserted the laryngoscope
and now possible intubation?

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A Yes.
Q And at that point, you made a remark, what remark did
you make?
A I said mahirap ata ito when the first attempt I did not
see the trachea right away. That was when I (interrupted)
Q That was the first attempt?
A Yes.
Q What about the second attempt?
A On the second attempt I was able to intubate right away
within two to three seconds.
Q At what point, for purposes of discussion without
accepting it, at what point did you make the comment na
mahirap ata to intubate, mali ata ang pinasukan
A I did not say mali ata ang pinasukan I never said that.
Q Well, just for the information of the group here the
remarks I am making is based on the documents that were
forwarded to me by the Supreme Court. That is why for
purposes of discussion I am trying to clarify this for the
sake of enlightenment. So, at what point did you ever
make that comment?
A Which one, sir?
Q The mahirap intubate ito assuming that you
(interrupted)
A Iyon lang, that is what I only said mahirap intubate
(interrupted)

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Q At what point?
A When the first attempt when I inserted the laryngoscope
for the first time.
Q So, when you claim that at the first attempt you inserted
the laryngoscope, right?
A Yes.
Q But in one of the recordings somewhere at the,
somewhere in the transcript of records that when the
lawyer of the other party try to inquire from you during
the first attempt that was the time when mayroon ba
kayong hinugot sa tube, I do not remember the page now,
but it seems to me it is there. So, that it was on the
second attempt that (interrupted)
A I was able to intubate.
Q And this is more or less about what time 12:21?
A Maybe, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21 and looking
at the anesthesia records from 12:20 to 12:30 there was
no recording of the vital signs. And can we presume that
at this stage there was already some problems in handling
the patient?
A Not yet.
Q But why are there no recordings in the anesthesia
record?
A I did not have time.

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Q Ah, you did not have time, why did you not have time?
A Because it was so fast, I really (at this juncture the
witness is laughing)
Q No, I am just asking. Remember I am not here not to pin
point on anybody I am here just to more or less clarify
certainty more ore less on the record.
A Yes, Sir.
Q And so it seems that there were no recording during that
span of ten (10) minutes. From 12:20 to 12:30, and going
over your narration, it seems to me that the cyanosis
appeared ten (10) minutes after induction, is that right?
A Yes.
Q And that is after induction 12:15 that is 12:25 that was
the first cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just trying to
enlighten, I am just going over the record ano, kung mali
ito kuwan eh di ano. So, ganoon po ano, that it seems to
me that there is no recording from 12:20 to 12:30, so, I am
just wondering why there were no recordings during the
period and then of course the second cyanosis, after the
first cyanosis. I think that was the time Dr. Hosaka came
in?

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A No, the first cyanosis (interrupted).
[23]

We cannot thus give full credence to Dr. Gutierrez synopsis
in light of her admission that it does not fully reflect the events
that transpired during the administration of anesthesia on
Erlinda. As pointed out by Dr. Estrella, there was a ten-minute
gap in Dr. Gutierrez synopsis, i.e., the vital signs of Erlinda were
not recorded during that time. The absence of these data is
particularly significant because, as found by the trial court, it
was the absence of oxygen supply for four (4) to five (5)
minutes that caused Erlindas comatose condition.
On the other hand, the Court has no reason to disbelieve the
testimony of Cruz. As we stated in the Decision, she is
competent to testify on matters which she is capable of
observing such as, the statements and acts of the physician and
surgeon, external appearances and manifest conditions which
are observable by any one.
[24]
Cruz, Erlindas sister-in-law, was
with her inside the operating room. Moreover, being a nurse
and Dean of the Capitol Medical Center School of Nursing at
that, she is not entirely ignorant of anesthetic procedure. Cruz
narrated that she heard Dr. Gutierrez remark, Ang hirap ma-
intubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan. She observed that the nailbeds of Erlinda became bluish
and thereafter Erlinda was placed in trendelenburg
position.
[25]
Cruz further averred that she noticed that the
abdomen of Erlinda became distended.
[26]

The cyanosis (bluish discoloration of the skin or mucous
membranes caused by lack of oxygen or abnormal hemoglobin
in the blood) and enlargement of the stomach of Erlinda

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indicate that the endotracheal tube was improperly inserted
into the esophagus instead of the trachea. Consequently,
oxygen was delivered not to the lungs but to the
gastrointestinal tract. This conclusion is supported by the fact
that Erlinda was placed in trendelenburg position. This indicates
that there was a decrease of blood supply to the patients
brain. The brain was thus temporarily deprived of oxygen
supply causing Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not normally
happen absent any negligence in the administration of
anesthesia and in the use of an endotracheal tube. As was
noted in our Decision, the instruments used in the
administration of anesthesia, including the endotracheal tube,
were all under the exclusive control of private respondents Dr.
Gutierrez and Dr. Hosaka.
[27]
In Voss vs. Bridwell,
[28]
which
involved a patient who suffered brain damage due to the
wrongful administration of anesthesia, and even before the
scheduled mastoid operation could be performed, the Kansas
Supreme Court applied the doctrine of res ipsa
loquitur, reasoning that the injury to the patient therein was
one which does not ordinarily take place in the absence of
negligence in the administration of an anesthetic, and in the
use and employment of an endotracheal tube. The court went
on to say that [o]rdinarily 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

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would ordinarily have followed if due care had been
exercised.
[29]
Considering the application of the doctrine of res
ipsa loquitur, the testimony of Cruz was properly given
credence in the case at bar.
For his part, Dr. Hosaka mainly contends that the Court
erred in finding him negligent as a surgeon by applying the
Captain-of-the-Ship doctrine.
[30]
Dr. Hosaka argues that the
trend in United States jurisprudence has been to reject said
doctrine in light of the developments in medical practice. He
points out that anesthesiology and surgery are two distinct and
specialized fields in medicine and as a surgeon, he is not
deemed to have control over the acts of Dr. Gutierrez. As
anesthesiologist, Dr. Gutierrez is a specialist in her field and has
acquired skills and knowledge in the course of her training
which Dr. Hosaka, as a surgeon, does not possess.
[31]
He states
further that current American jurisprudence on the matter
recognizes that the trend towards specialization in medicine
has created situations where surgeons do not always have the
right to control all personnel within the operating
room,
[32]
especially a fellow specialist.
[33]

Dr. Hosaka cites the case of Thomas v. Raleigh General
Hospital,
[34]
which involved a suit filed by a patient who lost his
voice due to the wrongful insertion of the endotracheal tube
preparatory to the administration of anesthesia in connection
with the laparotomy to be conducted on him. The patient sued
both the anesthesiologist and the surgeon for the injury
suffered by him. The Supreme Court of Appeals of West
Virginia held that the surgeon could not be held liable for the

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loss of the patients voice, considering that the surgeon did not
have a hand in the intubation of the patient. The court rejected
the application of the Captain-of-the-Ship Doctrine, citing the
fact that the field of medicine has become specialized such that
surgeons can no longer be deemed as having control over the
other personnel in the operating room. It held that [a]n
assignment of liability based on actual control more realistically
reflects the actual relationship which exists in a modern
operating room.
[35]
Hence, only the anesthesiologist who
inserted the endotracheal tube into the patients throat was
held liable for the injury suffered by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away
with the Captain-of-the-Ship doctrine does not mean that this
Court will ipso facto follow said trend. Due regard for the
peculiar factual circumstances obtaining in this case justify the
application of the Captain-of-the-Ship doctrine. From the facts
on record it can be logically inferred that Dr. Hosaka exercised a
certain degree of, at the very least, supervision over the
procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the
services of Dr. Gutierrez. In effect, he represented to
petitioners that Dr. Gutierrez possessed the necessary
competence and skills. Drs. Hosaka and Gutierrez had worked
together since 1977. Whenever Dr. Hosaka performed a
surgery, he would always engage the services of Dr. Gutierrez
to administer the anesthesia on his patient.
[36]


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Second, Dr. Hosaka himself admitted that he was the
attending physician of Erlinda. Thus, when Erlinda showed
signs of cyanosis, it was Dr. Hosaka who gave instructions to call
for another anesthesiologist and cardiologist to help resuscitate
Erlinda.
[37]

Third, it is conceded that in performing their responsibilities
to the patient, Drs. Hosaka and Gutierrez worked as a
team. Their work cannot be placed in separate watertight
compartments because their duties intersect with each
other.
[38]

While the professional services of Dr. Hosaka and Dr.
Gutierrez were secured primarily for their performance of acts
within their respective fields of expertise for the treatment of
petitioner Erlinda, and that one does not exercise control over
the other, they were certainly not completely independent of
each other so as to absolve one from the negligent acts of the
other physician.
That they were working as a medical team is evident from
the fact that Dr. Hosaka was keeping an eye on the intubation
of the patient by Dr. Gutierrez, and while doing so, he observed
that the patients nails had become dusky and had to call Dr.
Gutierrezs attention thereto. The Court also notes that the
counsel for Dr. Hosaka admitted that in practice, the
anesthesiologist would also have to observe the surgeons acts
during the surgical process and calls the attention of the
surgeon whenever necessary
[39]
in the course of the
treatment. The duties of Dr. Hosaka and those of Dr. Gutierrez
in the treatment of petitioner Erlinda are therefore not as clear-

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cut as respondents claim them to be. On the contrary, it is
quite apparent that they have a common responsibility to treat
the patient, which responsibility necessitates that they call each
others attention to the condition of the patient while the other
physician is performing the necessary medical procedures.
It is equally important to point out that Dr. Hosaka was
remiss in his duty of attending to petitioner Erlinda promptly,
for he arrived more than three (3) hours late for the scheduled
operation.

The cholecystectomy was set for June 17, 1985 at
9:00 a.m., but he arrived at DLSMC only at around 12:10
p.m. In reckless disregard for his patients well being, Dr.
Hosaka scheduled two procedures on the same day, just thirty
minutes apart from each other, at different hospitals. Thus,
when the first procedure (protoscopy) at the Sta. Teresita
Hospital did not proceed on time, Erlinda was kept in a state of
uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlindas scheduled
operation subjected her to continued starvation and
consequently, to the risk of acidosis,
[40]
or the condition of
decreased alkalinity of the blood and tissues, marked by sickly
sweet breath, headache, nausea and vomiting, and visual
disturbances.
[41]
The long period that Dr. Hosaka made Erlinda
wait for him certainly aggravated the anxiety that she must
have been feeling at the time. It could be safely said that her
anxiety adversely affected the administration of anesthesia on
her. As explained by Dr. Camagay, the patients anxiety usually
causes the outpouring of adrenaline which in turn results in
high blood pressure or disturbances in the heart rhythm:

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DR. CAMAGAY:
x x x Pre-operative medication has three main
functions: One is to alleviate anxiety. Second is to dry up
the secretions and Third is to relieve pain. Now, it is very
important to alleviate anxiety because anxiety is
associated with the outpouring of certain substances
formed in the body called adrenalin. When a patient is
anxious there is an outpouring of adrenalin which would
have adverse effect on the patient. One of it is high blood
pressure, the other is that he opens himself to
disturbances in the heart rhythm, which would have
adverse implications. So, we would like to alleviate
patients anxiety mainly because he will not be in control
of his body there could be adverse results to surgery and
he will be opened up; a knife is going to open up his
body. x x x
[42]

Dr. Hosaka cannot now claim that he was entirely blameless
of what happened to Erlinda. His conduct clearly constituted a
breach of his professional duties to Erlinda:
CHIEF JUSTICE:
Two other points. The first, Doctor, you were talking
about anxiety, would you consider a patient's stay on the
operating table for three hours sufficient enough to
aggravate or magnify his or her anxiety?
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:

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In other words, I understand that in this particular case
that was the case, three hours waiting and the patient was
already on the operating table (interrupted)
DR. CAMAGAY:
Yes.
CHIEF JUSTICE:
Would you therefore conclude that the surgeon
contributed to the aggravation of the anxiety of the
patient?
DR. CAMAGAY:
That this operation did not take place as scheduled is
already a source of anxiety and most operating tables are
very narrow and that patients are usually at risk of falling
on the floor so there are restraints that are placed on
them and they are never, never left alone in the operating
room by themselves specially if they are already pre-
medicated because they may not be aware of some of
their movement that they make which would contribute to
their injury.
CHIEF JUSTICE:
In other words due diligence would require a surgeon to
come on time?
DR. CAMAGAY:
I think it is not even due diligence it is courtesy.
CHIEF JUSTICE:

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Courtesy.
DR. CAMAGAY:
And care.
CHIEF JUSTICE:
Duty as a matter of fact?
DR. CAMAGAY:
Yes, Your Honor.
[43]

Dr. Hosaka's irresponsible conduct of arriving very late for
the scheduled operation of petitioner Erlinda is violative, not
only of his duty as a physician to serve the interest of his
patients with the greatest solicitude, giving them always his
best talent and skill,
[44]
but also of Article 19 of the Civil Code
which requires a person, in the performance of his duties, to
act with justice and give everyone his due.
Anent private respondent DLSMCs liability for the resulting
injury to petitioner Erlinda, we held that respondent hospital is
solidarily liable with respondent doctors therefor under Article
2180 of the Civil Code
[45]
since there exists an employer-
employee relationship between private respondent DLSMC
and Drs. Gutierrez and Hosaka:
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting consultant
staff. While consultants are not, technically employees, x x x
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

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wages. In assessing whether such a relationship in fact exists,
the control test is determining. x x x
[46]

DLSMC however contends that applying the four-fold test in
determining whether such a relationship exists between it and
the respondent doctors, the inescapable conclusion is that
DLSMC cannot be considered an employer of the respondent
doctors.
It has been consistently held that in determining whether an
employer-employee relationship exists between the parties,
the following elements must be present: (1) selection and
engagement of services; (2) payment of wages; (3) the power
to hire and fire; and (4) the power to control not only the end
to be achieved, but the means to be used in reaching such an
end.
[47]

DLSMC maintains that first, a hospital does not hire or
engage the services of a consultant, but rather, accredits the
latter and grants him or her the privilege of maintaining a clinic
and/or admitting patients in the hospital upon a showing by the
consultant that he or she possesses the necessary
qualifications, such as accreditation by the appropriate board
(diplomate), evidence of fellowship and references.
[48]
Second,
it is not the hospital but the patient who pays the consultants
fee for services rendered by the latter.
[49]
Third, a hospital does
not dismiss a consultant; instead, the latter may lose his or her
accreditation or privileges granted by the
hospital.
[50]
Lastly, DLSMC argues that when a doctor refers a
patient for admission in a hospital, it is the doctor who
prescribes the treatment to be given to said patient. The

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hospitals obligation is limited to providing the patient with the
preferred room accommodation, the nutritional diet and
medications prescribed by the doctor, the equipment and
facilities necessary for the treatment of the patient, as well as
the services of the hospital staff who perform the ministerial
tasks of ensuring that the doctors orders are carried out
strictly.
[51]

After a careful consideration of the arguments raised by
DLSMC, the Court finds that respondent hospitals position on
this issue is meritorious. There is no employer-employee
relationship between DLSMC and Drs. Gutierrez and Hosaka
which would hold DLSMC solidarily liable for the injury suffered
by petitioner Erlinda under Article 2180 of the Civil Code.
As explained by respondent hospital, that the admission of a
physician to membership in DLSMCs medical staff as active or
visiting consultant is first decided upon by the Credentials
Committee thereof, which is composed of the heads of the
various specialty departments such as the Department of
Obstetrics and Gynecology, Pediatrics, Surgery with the
department head of the particular specialty applied for as
chairman. The Credentials Committee then recommends to
DLSMC's Medical Director or Hospital Administrator the
acceptance or rejection of the applicant physician, and said
director or administrator validates the committee's
recommendation.
[52]
Similarly, in cases where a disciplinary
action is lodged against a consultant, the same is initiated by
the department to whom the consultant concerned belongs
and filed with the Ethics Committee consisting of the

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department specialty heads. The medical director/hospital
administrator merely acts as ex-officio member of said
committee.
Neither is there any showing that it is DLSMC which pays any
of its consultants for medical services rendered by the latter to
their respective patients. Moreover, the contract between the
consultant in respondent hospital and his patient is separate
and distinct from the contract between respondent hospital
and said patient. The first has for its object the rendition of
medical services by the consultant to the patient, while the
second concerns the provision by the hospital of facilities and
services by its staff such as nurses and laboratory personnel
necessary for the proper treatment of the patient.
Further, no evidence was adduced to show that the injury
suffered by petitioner Erlinda was due to a failure on the part of
respondent DLSMC to provide for hospital facilities and staff
necessary for her treatment.
For these reasons, we reverse the finding of liability on the
part of DLSMC for the injury suffered by petitioner Erlinda.
Finally, the Court also deems it necessary to modify the
award of damages to petitioners in view of the supervening
event of petitioner Erlindas death. In the assailed Decision, the
Court awarded actual damages of One Million Three Hundred
Fifty Two Thousand Pesos (P1,352,000.00) to cover the
expenses for petitioner Erlindas treatment and care from the
date of promulgation of the Decision up to the time the patient
expires or survives.
[53]
In addition thereto, the Court awarded
temperate damages of One Million Five Hundred Thousand

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Pesos (P1,500,000.00) in view of the chronic and continuing
nature of petitioner Erlindas injury and the certainty of further
pecuniary loss by petitioners as a result of said injury, the
amount of which, however, could not be made with certainty
at the time of the promulgation of the decision. The Court
justified such award in this manner:
Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and
that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible
future complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to the
injury caused, should be one which compensates for pecuniary
loss incurred and proved, up to the time of trial; and one which
would meet pecuniary loss certain to be suffered but which
could not, from the nature of the case, be made with certainty.
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.

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As it would not be equitableand certainly not in the best
interests of the administration of justicefor the victim in such
cases to constantly come before the courts and invoke their aid
in seeking adjustments to the compensatory damages
previously awardedtemperate damages are appropriate. The
amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide only home-
based nursing care for a comatose patient who has remained in
that condition for over a decade. Having premised our award
for compensatory damages on the amount provided by
petitioners at the onset of litigation, it would be now much
more in step with the interests of justice if the value awarded
for temperate damages would allow petitioners to provide
optimal care for their loved one in a facility which generally
specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without
the aid of professionals, for anything less would be grossly
inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable.
[54]

However, subsequent to the promulgation of the Decision,
the Court was informed by petitioner Rogelio that petitioner
Erlinda died on August 3, 1999.
[55]
In view of this supervening
event, the award of temperate damages in addition to the
actual or compensatory damages would no longer be justified
since the actual damages awarded in the Decision are sufficient

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to cover the medical expenses incurred by petitioners for the
patient. Hence, only the amounts representing actual, moral
and exemplary damages, attorneys fees and costs of suit
should be awarded to petitioners.
WHEREFORE, the assailed Decision is hereby modified as
follows:
(1) Private respondent De Los Santos Medical Center is
hereby absolved from liability arising from the injury suffered
by petitioner Erlinda Ramos on June 17, 1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta
Gutierrez are hereby declared to be solidarily liable for the
injury suffered by petitioner Erlinda on June 17, 1985 and are
ordered to pay petitioners
(a) P1,352,000.00 as actual damages;
(b) P2,000,000.00 as moral damages;
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorneys fees; and
(e) the costs of the suit.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago,
JJ., concur.



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SECOND DIVISION
G.R. No. 167366 September 26, 2012
DR. PEDRO DENNIS CERENO, and DR. SANTOS
ZAFE, Petitioners,
vs.
COURT OF APPEALS, SPOUSES DIOGENES S. OLAVERE and FE
R. SERRANO, Respondents.
D E C I S I O N
PEREZ, J.:
Before the Court is a Petition for Review on Certiorari
1
under
Rule 45 of the Rules of Court seeking the annulment and setting
aside of the 21 February 2005 decision
2
of the Court of Appeals
(CA) in CA-G.R. CV No. 65800. In the assailed decision, the CA
affirmed in toto the decision of the Regional Trial Court (R TC),
Branch 22, Nag a City finding herein petitioners Dr. Pedro
Dennis Cereno (Dr. Cereno) and Dr. Santos Zafe (Dr. Zafe) liable
for damages.
Culled from the records are the following antecedent facts:
At about 9:15 in the evening of 16 September 1995, Raymond
S. Olavere (Raymond), a victim of a stabbing incident, was
rushed to the emergency room of the Bicol Regional Medical
Center (BRMC). There, Raymond was attended to by Nurse
Arlene Balares (Nurse Balares) and Dr. Ruel Levy Realuyo (Dr.
Realuyo) the emergency room resident physician.

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Subsequently, the parents of Raymondthe spouses Deogenes
Olavere (Deogenes) and Fe R. Serranoarrived at the BRMC.
They were accompanied by one Andrew Olavere, the uncle of
Raymond.
After extending initial medical treatment to Raymond, Dr.
Realuyo recommended that the patient undergo "emergency
exploratory laparotomy." Dr. Realuyo then requested the
parents of Raymond to procure 500 cc of type "O" blood
needed for the operation. Complying with the request,
Deogenes and Andrew Olavere went to the Philippine National
Red Cross to secure the required blood.
At 10:30 P.M., Raymond was wheeled inside the operating
room. During that time, the hospital surgeons, Drs. Zafe and
Cereno, were busy operating on gunshot victim Charles
Maluluy-on. Assisting them in the said operation was Dr.
Rosalina Tatad (Dr. Tatad), who was the only senior
anesthesiologist on duty at BRMC that night. Dr. Tatad also
happened to be the head of Anesthesiology Department of the
BRMC.
Just before the operation on Maluluy-on was finished, another
emergency case involving Lilia Aguila, a woman who was giving
birth to triplets, was brought to the operating room.
At 10:59 P.M., the operation on Charles Maluluy-on was
finished. By that time, however, Dr. Tatad was already working
with the obstetricians who will perform surgery on Lilia Aguila.
There being no other available anesthesiologist to assist them,

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Drs. Zafe and Cereno decided to defer the operation on
Raymond.
Drs. Zafe and Cereno, in the meantime, proceeded to examine
Raymond and they found that the latters blood pressure was
normal and "nothing in him was significant."
3
Dr. Cereno
reported that based on the xray result he interpreted, the fluid
inside the thoracic cavity of Raymond was minimal at around
200-300 cc.
At 11:15 P.M., Deogenes and Andrew Olavere returned to the
BRMC with a bag containing the requested 500 cc type "O"
blood. They handed over the bag of blood to Dr. Realuyo.
After Dr. Tatad finished her work with the Lilia Aguila
operation, petitioners immediately started their operation on
Raymond at around 12:15 A.M. of 17 September 1995. Upon
opening of Raymonds thoracic cavity, they found that 3,200 cc
of blood was stocked therein. The blood was evacuated and
petitioners found a puncture at the inferior pole of the left
lung.
In his testimony, Dr. Cereno stated that considering the loss of
blood suffered by Raymond, he did not immediately transfuse
blood because he had to control the bleeders first.
4

Blood was finally transfused on Raymond at 1:40 A.M. At 1:45
A.M., while the operation was on-going, Raymond suffered a
cardiac arrest. The operation ended at 1:50 A.M. and Raymond
was pronounced dead at 2:30 A.M.

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Raymonds death certificate
5
indicated that the immediate
cause of death was "hypovolemic shock" or the cessation of the
functions of the organs of the body due to loss of blood.
6

Claiming that there was negligence on the part of those who
attended to their son, the parents of Raymond, on 25 October
1995, filed before the RTC, Branch 22, Naga City a complaint for
damages
7
against Nurse Balares, Dr. Realuyo and attending
surgeons Dr. Cereno and Dr. Zafe.
During trial, the parents of Raymond testified on their own
behalf. They also presented the testimonies of Andrew Olavere
and one Loira Oira, the aunt of Raymond. On the other hand,
Dr. Cereno, Dr. Realuyo, Nurse Balares and Security Guard
Diego Reposo testified for the defense. On rebuttal, the parents
of Raymond presented Dr. Tatad, among others.
On 15 October 1999, the trial court rendered a decision
8
the
dispositive portion of which reads:
WHEREFORE, premises considered, this Court hereby renders
judgment:
1. Dismissing the case against Dr. Ruel Levy Realuyo and
Arlene Balares for lack of merit;
2. Ordering defendants Dr. Santos Zafe and Dr. Dennis
Cereno to pay the heirs of Raymond Olavere, jointly and
severally the following amounts:
1. P 50,000.00 for the death of the victim;

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2. P 150,000.00 as moral damages;
3. P 100,000.00 as exemplary damages;
4. P 30,000.00 for attorneys fees; and
5. Cost of suit.
9

x x x x.
The trial court found petitioners negligent in not immediately
conducting surgery on Raymond. It noted that petitioners have
already finished operating on Charles Maluluy-on as early as
10:30 in the evening, and yet they only started the operation
on Raymond at around 12:15 early morning of the following
day. The trial court held that had the surgery been performed
promptly, Raymond would not have lost so much blood and,
therefore, could have been saved.
10

The trial court also held that the non-availability of Dr. Tatad
after the operation on Maluluy-on was not a sufficient excuse
for the petitioners to not immediately operate on Raymond. It
called attention to the testimony of Dr. Tatad herself, which
disclosed the possibility of calling a standby anesthesiologist in
that situation. The trial court opined that the petitioners could
have just requested for the standby anesthesiologist from Dr.
Tatad, but they did not.
Lastly, the trial court faulted petitioners for the delay in the
transfusion of blood on Raymond.

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On appeal, the CA in a decision dated 21 February 2005
affirmed in toto the judgment rendered by the RTC finding
herein petitioners guilty of gross negligence in the performance
of their duties and awarding damages to private respondents.
Hence, this petition for review on certiorari under Rule 45 of
the Rules of Court assailing the CA decision on the following
grounds:
1. THAT THE CA ERRED IN RULING THAT PETITIONERS
WERE GROSSLY NEGLIGENT IN THE PERFORMANCE OF
THEIR DUTIES;
2. THAT THE CA ERRED IN NOT CONSIDERING THE BICOL
REGIONAL MEDICAL CENTER AS AN INDISPENSABLE PARTY
AND SUBSIDIARILY LIABLE SHOULD PETITIONERS BE
FOUND LIABLE FOR DAMAGES; and
3. THAT THE CA ERRED IN NOT FINDING THE AWARD OF
MORAL AND EXEMPLARY DAMAGES AS WELL AS
ATTORNEYS FEES EXORBITANT OR EXCESSIVE.
We grant the petition
It is well-settled that under Rule 45 of the Rules of Court, only
questions of law may be raised. The reason behind this is that
this Court is not a trier of facts and will not re-examine and re-
evaluate the evidence on record.
11
Factual findings of the CA,
affirming that of the trial court, are therefore generally final
and conclusive on this Court. This rule is subject to the
following exceptions: (1) the conclusion is grounded on

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speculations, surmises or conjectures; (2) the inference is
manifestly mistaken, absurd or impossible; (3) there is grave
abuse of discretion; (4) the judgment is based on a
misapprehension of facts; (5) the findings of fact are conflicting;
(6) there is no citation of specific evidence on which the factual
findings are based; (7) the findings of absence of fact are
contradicted by the presence of evidence on record; (8) the
findings of the CA are contrary to those of the trial court; (9)
the CA manifestly overlooked certain relevant and undisputed
facts that, if properly considered, would justify a different
conclusion; (10) the findings of the CA are beyond the issues of
the case; and (11) such findings are contrary to the admissions
of both parties.
12
In this case, We find exceptions (1) and (4) to
be applicable.
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 the failure or action caused injury to
the patient.
13
Stated otherwise, the complainant must prove:
(1) that the health care provider, either by his act or omission,
had been negligent, and (2) that such act or omission
proximately caused the injury complained of.

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The best way to prove these is through the opinions of expert
witnesses belonging in the same 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 evaluating, hence, the
indispensability of expert testimonies.
14

Guided by the foregoing standards, We dissect the issues at
hand.
Petitioners Not Negligent
The trial court first imputed negligence on the part of the
petitioners by their failure to perform the operation on
Raymond immediately after finishing the Maluluy-on operation.
It rejected as an excuse the nonavailability of Dr. Tatad. The
trial court relied on the testimony of Dr. Tatad about a "BRMC
protocol" that introduces the possibility that a standby
anesthesiologist could have been called upon. The pertinent
portions of the testimony of Dr. Tatad provides:
Q: Aside from you and Dr. Rebancos, who was the standby
anesthesiologist?
A: We have a protocol at the Bicol Medical Center to have a
consultant who is on call.
Q: How many of them?
A: One.

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Q: Who is she?
A: Dra. Flores.
Q: What is the first name?
A: Rosalina Flores.
Q: Is she residing in Naga City?
A: In Camaligan.
Q: She is on call anytime when there is an emergency case to be
attended to in the Bicol Medical Center?
A: Yes sir.
15

Dr. Tatad further testified:
Q: Alright (sic), considering that you said you could not attend
to Raymond Olavere because another patient was coming in
the person of Lilia Aguila, did you not suggest to Dr. Cereno to
call the standby anesthesiologist?
A: They are not ones to do that. They have no right to call for
the standby anesthesiologist.
Q: Then, who should call for the standby anesthesiologist?
A: It is me if the surgeon requested.
Q: But in this case, the surgeon did not request you?
A: No. It is their prerogative.

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Q: I just want to know that in this case the surgeon did not
request you to call for the standby anesthesiologist?
A: No sir.
16

From there, the trial court concluded that it was the duty of the
petitioners to request Dr. Tatad to call on Dr. Rosalina Flores,
the standby anesthesiologist. Since petitioners failed to do so,
their inability to promptly perform the operation on Raymond
becomes negligence on their part.
This Court does not agree with the aforesaid conclusion.
First. There is nothing in the testimony of Dr. Tatad, or in any
evidence on the record for that matter, which shows that the
petitioners were aware of the "BRMC protocol" that the
hospital keeps a standby anesthesiologist available on call.
Indeed, other than the testimony of Dr. Tatad, there is no
evidence that proves that any such "BRMC protocol" is being
practiced by the hospitals surgeons at all.
Evidence to the effect that petitioners knew of the "BRMC
protocol" is essential, especially in view of the contrary
assertion of the petitioners that the matter of assigning
anesthesiologists rests within the full discretion of the BRMC
Anesthesiology Department. Without any prior knowledge of
the "BRMC protocol," We find that it is quite reasonable for the
petitioners to assume that matters regarding the
administration of anesthesia and the assignment of
anesthesiologists are concerns of the Anesthesiology
Department, while matters pertaining to the surgery itself fall

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under the concern of the surgeons. Certainly, We cannot hold
petitioners accountable for not complying with something that
they, in the first place, do not know.
Second. Even assuming ex gratia argumenti that there is such
"BRMC protocol" and that petitioners knew about it, We find
that their failure to request for the assistance of the standby
anesthesiologist to be reasonable when taken in the proper
context. There is simply no competent evidence to the
contrary.
From the testimony of Dr. Tatad herself, it is clear that the
matter of requesting for a standby anaesthesiologist is not
within the full discretion of petitioners. The "BRMC protocol"
described in the testimony requires the petitioners to course
such request to Dr. Tatad who, as head of the Department of
Anesthesiology, has the final say of calling the standby
anesthesiologist.
As revealed by the facts, however, after the Maluluy-on
operation, Dr. Tatad was already assisting in the Lilia Aguila
operation. Drs. Zafe and Cereno then proceeded to examine
Raymond and they found that the latters blood pressure was
normal and "nothing in him was significant."
17
Dr. Cereno even
concluded that based on the x-ray result he interpreted, the
fluid inside the thoracic cavity of Raymond was minimal at
around 200-300 cc. Such findings of Drs. Cereno and Zafe were
never challenged and were unrebutted.

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Given that Dr. Tatad was already engaged in another urgent
operation and that Raymond was not showing any symptom of
suffering from major blood loss requiring an immediate
operation, We find it reasonable that petitioners decided to
wait for Dr. Tatad to finish her surgery and not to call the
standby anesthesiologist anymore. There is, after all, no
evidence that shows that a prudent surgeon faced with similar
circumstances would decide otherwise.
Here, there were no expert witnesses presented to testify that
the course of action taken by petitioners were not in accord
with those adopted by other reasonable surgeons in similar
situations. Neither was there any testimony given, except that
of Dr. Tatads, on which it may be inferred that petitioners
failed to exercise the standard of care, diligence, learning and
skill expected from practitioners of their profession. Dr. Tatad,
however, is an expert neither in the field of surgery nor of
surgical practices and diagnoses. Her expertise is in the
administration of anesthesia and not in the determination of
whether surgery ought or not ought to be performed.
Another ground relied upon by the trial court in holding
petitioners negligent was their failure to immediately transfuse
blood on Raymond. Such failure allegedly led to the eventual
death of Raymond through "hypovolemic shock." The trial court
relied on the following testimony of Dr. Tatad:
Q: In this case of Raymond Olavere was blood transfused to him
while he was inside the operating room?

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A: The blood arrived at 1:40 a.m. and that was the time when
this blood was hooked to the patient.
x x x x
Q: Prior to the arrival of the blood, you did not request for
blood?
A: I requested for blood.
Q: From whom?
A: From the attending physician, Dr. Realuyo.
Q: What time was that?
x x x x
A: 9:30.
x x x x
Q: Had this blood been given to you before the operation you
could have transfused the blood to the patient?
A: Of course, yes.
Q: And the blood was transfused only after the operation?
A: Because that was the time when the blood was given to us.
x x x x
Q: Have you monitored the condition of Raymond Olavere?

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A: I monitored the condition during the time when I would
administer anesthesia.
Q: What time was that?
A: 11:45 already.
Q: What was the condition of the blood pressure at that time?
A: 60/40 initial.
Q: With that kind of blood pressure the patient must have been
in critical condition?
A: At the time when the blood pressure was 60/40 I again told
Dr. Cereno that blood was already needed.
Q: With that condition, Doctor, that the patient had 60/40
blood pressure you did not decide on transfusing blood to him?
A: I was asking for blood but there was no blood available.
Q: From whom did you ask?
A: From the surgeon. According to Dr. Zafe there was only 500
cc but still for cross-matching.
18

From the aforesaid testimony, the trial court ruled that there
was negligence on the part of petitioners for their failure to
have the blood ready for transfusion. It was alleged that at
11:15 P.M., the 500 cc of blood was given to Dr. Realuyo by
Raymonds parents. At 11:45 P.M., when Dr. Tatad was asking
for the blood, 30 minutes had passed. Yet, the blood was not

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ready for transfusion as it was still being cross-matched.
19
It
took another two hours before blood was finally transfused to
Raymond at 1:40 A.M. of 17 September 1995.
Again, such is a mistaken conclusion.
First, the alleged delay in the cross-matching of the blood, if
there was any, cannot be attributed as the fault of the
petitioners. The petitioners were never shown to be
responsible for such delay. It is highly unreasonable and the
height of injustice if petitioners were to be sanctioned for
lapses in procedure that does not fall within their duties and
beyond their control.
Second, Dr. Cereno, in his unchallenged testimony, aptly
explained the apparent delay in the transfusion of blood on
Raymond before and during the operation.
Before the operation, Dr. Cereno explained that the reason why
no blood transfusion was made on Raymond was because they
did not then see the need to administer such transfusion, viz:
Q: Now, you stated in your affidavit that prior to the operation
you were informed that there was 500 cc of blood available and
was still to be cross-matched. What time was that when you
were informed that 500 cc of blood was due for crossmatching?
A: I am not sure of the time.
Q: But certainly, you learned of that fact that there was 500 cc
of blood, which was due for crossmatching immediately prior to
the operation?

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A: Yes, sir.
Q: And the operation was done at 12:15 of September 17?
A: Yes, sir.
Q: And that was the reason why you could not use the blood
because it was being crossmatched?
A: No, sir. That was done only for a few minutes. We did not
transfuse at that time because there was no need.There is a
necessity to transfuse blood when we saw there is gross
bleeding inside the body.
20
(Emphasis supplied)
During the operation, on the other hand, Dr. Cereno was
already able to discover that 3,200 cc of blood was stocked in
the thoracic cavity of Raymond due to the puncture in the
latters left lung. Even then, however, immediate blood
transfusion was not feasible because:
Q: Now considering the loss of blood suffered by Raymund
Olavere, why did you not immediately transfuse blood to the
patient and you waited for 45 minutes to elapse before
transfusing the blood?
A: I did not transfuse blood because I had to control the
bleeders. If you will transfuse blood just the same the blood
that you transfuse will be lost. After evacuation of blood and
there is no more bleeding
Q: It took you 45 minutes to evacuate the blood?

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A: The evacuation did not take 45 minutes.
Q: So what was the cause of the delay why you only transfuse
blood after 45 minutes?
A: We have to look for some other lesions. It does not mean
that when you slice the chest you will see the lesions
already.
21

(Emphasis supplied)
Again, the foregoing testimonies of Dr. Cereno went
unchallenged or unrebutted. The parents of Raymond were not
able to present any expert witness to dispute the course of
action taken by the petitioners.
Causation Not Proven
In medical negligence cases, it is settled that the complainant
has the burden of establishing breach of duty on the part of the
doctors or surgeons. It must be proven that such breach of duty
has a causal connection to the resulting death of the
patient.
22
A verdict in malpractice action cannot be based on
speculation or conjecture. Causation must be proven within a
reasonable medical probability based upon competent expert
testimony.
The parents of Raymond failed in this respect. Aside from their
failure to prove negligence on the part of the petitioners, they
also failed to prove that it was petitioners fault that caused the
injury. Their cause stands on the mere assumption that
Raymonds life would have been saved had petitioner surgeons

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immediately operated on him; had the blood been cross-
matched immediately and had the blood been transfused
immediately. There was, however, no proof presented that
Raymonds life would have been saved had those things been
done. Those are mere assumptions and cannot guarantee their
desired result. Such cannot be made basis of a decision in this
case, especially considering that the name, reputation and
career of petitioners are at stake.
The Court understands the parents grief over their sons
death.1wphi1 That notwithstanding, it cannot hold petitioners
liable. It was noted that Raymond, who was a victim of a
stabbing incident, had multiple wounds when brought to the
hospital. Upon opening of his thoracic cavity, it was discovered
that there was gross bleeding inside the body. Thus, the need
for petitioners to control first what was causing the bleeding.
Despite the situation that evening i.e. numerous patients being
brought to the hospital for emergency treatment considering
that it was the height of the Peafrancia Fiesta, it was evident
that petitioners exerted earnest efforts to save the life of
Raymond. It was just unfortunate that the loss of his life was
not prevented.
In the case of Dr. Cruz v. CA, it was held that "[d]octors are
protected by a special law. They are not guarantors of care.
They do not even warrant a good result. They are not insurers
against mishaps or unusual consequences. Furthermore, they
are not liable for honest mistake of judgment"
23


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This Court affirms the ruling of the CA that the BRMC is not an
indispensible party. The core issue as agreed upon by the
parties and stated in the pre-trial order is whether petitioners
were negligent in the performance of their duties. It pertains to
acts/omissions of petitioners for which they could be held
liable. The cause of action against petitioners may be
prosecuted fully and the determination of their liability may be
arrived at without impleading the hospital where they are
employed. As such, the BRMC cannot be considered an
indispensible party without whom no final determination can
be had of an action.
24

IN THE LIGHT OF THE FOREGOING, the instant Petition for
Review on Certiorari is hereby GRANTED. The Court of Appeals
decision dated 21 February 2005 in CA-G.R. CV No. 65800 is
hereby REVERSED and SET ASIDE. No costs.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice



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Republic of the Philippines
Supreme Court
Manila

THIRD DIVISION


DR. EMMANUEL JARCIA,
JR.and DR. MARILOU BASTAN,
Petitioners,




- versus -


G.R. No. 187926

Present:

CARPIO,
*
J.,
PERALTA,
**
Acting
Chairperson,
ABAD,
PEREZ,
***
and
MENDOZA, JJ.

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PEOPLE OF THEPHILIPPINES,
Respondent.


Promulgated:

February 15, 2012

x ----------------------------------------------------------------------------------
----- x

D E C I S I O N

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

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injury. This Court, as this case would show, cannot
and will not let the act go unpunished.
[1]


This is a petition for review under Rule 45 of the Rules of
Court challenging the August 29, 2008 Decision
[2]
of the Court
of Appeals (CA), and its May 19, 2009 Resolution
[3]
in CA-G.R.
CR No. 29559, dismissing the appeal and affirming in toto the
June 14, 2005 Decision
[4]
of the Regional Trial Court, Branch 43,
Manila (RTC), finding the accused guilty beyond reasonable
doubt of simple imprudence resulting to serious physical
injuries.


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

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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 Dr. Pamittan,
[5]
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 BASTAN GUILTY beyond reasonable doubt
of the crime of SIMPLE IMPRUDENCE RESULTING TO
SERIOUS PHYSICAL INJURIES and are hereby
sentenced to suffer the penalty ofONE (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

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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.
[6]


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.


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

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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

2. that the damage impending to be
caused is not immediate of the danger is
not clearly manifest.

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 provided for is
arresto mayor in its minimum period.
[7]



Dissatisfied, the petitioners appealed to the CA.

As earlier stated, the CA affirmed the RTC decision in toto.
The August 29, 2008Decision 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

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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
ofLeonila 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.


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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

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not on the failure of the accused-appellants 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:

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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?
A: 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.

Q: And what did she [tell] you?
A: They told me they will call a resident
doctor, sir.

x x x x x x x x x

Q: Was there a resident doctor [who]
came?
A: Yes, Sir. Dra. Bastan arrived.
Q: Did you tell her what you want on
you to be done?
A: Yes, sir.

Q: What did you [tell] her?
A: I told her, sir, while she was cleaning
the wounds of my son, are you not
going to x-ray up to the knee because
my son was complaining pain from his

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ankle up to the middle part of the right
leg.

Q: And what did she tell you?
A: According to Dra. Bastan, there is no
need to x-ray because it was the ankle
part that was run over.

Q: What did you do or tell her?
A: I told her, sir, why is it that they did
not examine[x] the whole leg. They
just lifted the pants of my son.

Q: So you mean to say there was no
treatment made at all?
A: None, sir.

x x x x x x x x x

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

x x x x x x x x x

Q: And you were present when they
were called?
A: Yes, sir.


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Q: And what was discussed then by
Sis. Retoria?
A: When they were there they admitted
that they have mistakes, sir.

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
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 accused-
appellants. 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

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treatment of the leg of Roy would 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

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presented to Dr. Jarcia and Dra.
Bastan?
A: 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 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: You mean to say there is no
supervisor attending the emergency
room?
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 [know]

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why they dont.Because at that time,
I think, it is the decision. Since the x-
rays.


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.


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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 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 herebyDISMISSED 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]




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The petitioners filed a motion for reconsideration, but it
was denied by the CA in itsMay 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
GROUNDS-

1. 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

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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 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.


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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 ACQUITTING ACCUSED-PETITIONERS OF THE
CRIME CHARGED.
[9]



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.


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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 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

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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 course of things would
not happen if reasonable care had been used.
[10]



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 involved, direct evidence is absent and not
readily available.
[11]


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 action or
contribution of the person injured.
[12]


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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 the
victim at the emergency room.
[13]
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 justly
demand, whereby such other person suffers injury.
[14]


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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 precaution on the
part of the person performing or failing to perform such act.
[15]


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 the
danger is not clearly manifest.
[16]


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.

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: Will you please tell us, for the record, doctor,
what is your specialization?

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A: At present I am the chairman department of
orthopedic in UP-PGH and I had special training in
pediatric orthopedic for two (2) years.

Q: In June 1998, doctor, what was your position
and what was your specialization at that time?
A: Since 1980, I have been specialist in pediatric
orthopedic.

Q: When Alfonso Santiago, Jr. was brought to you
by his mother, what did you do by way of
physicians as first step?
A: 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 swollen and the
patient could not walk, so I requested for the x-
ray of [the] lower leg.

Q: What part of the leg, doctor, did you request to
be examined?
A: 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.


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Q: And what was the result?
A: Well, I can say that it was a spiral fracture of the
mid-tibial, it is the bigger bone of the leg.

Q: And when you say spiral, doctor, how long was
this fracture?
A: When we say spiral, it is a sort of letter S, the
length was about six (6) to eight (8) centimeters.

Q: Mid-tibial, will you please point to us, doctor,
where the tibial is?
(Witness pointing to his lower leg)
A: 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.

Q: And in the course of your examination of Alfonso
Santiago, Jr. did you ask for the history of such
injury?
A: 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.

Q: And as far as you can recall, Doctor, what was
the history of that injury that was told to you?

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A: The patient was sideswiped, I dont know if it is a
car, but it is a vehicular accident.

Q: Who did you interview?
A: The mother.

Q: How about the child himself, Alfonso Santiago,
Jr.?
A: 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.

Q: And were you informed also of his early
medication that was administered on Alfonso
Santiago, Jr.?
A: 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
who happened to be my residents who were [on]
duty at the emergency room.

x x x x

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

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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

x x x

Q: You also said, Doctor, that Dr. Jarcia and Dra.
Bastan are not even an orthopedic specialist.
A: 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.

x x x x

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?
A: 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.

Q: Not the entire body but the entire leg?
A: I think, if my examination requires it, I would.

Q: So, you would conduct first an examination?

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A: Yes, sir.

Q: 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?
A: 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.

x x x x

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?
A: 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 fractured.
[17]
[Emphases
supplied]


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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

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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 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

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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
and due process.
[18]
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, and
ordinarily will not be, considered by a reviewing court.
[19]


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,
[20]
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

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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 duty at the
ER).
[21]
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.


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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 thePhilippines 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 discreditable and
inexcusable.
[22]



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

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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 compensate emotional injury suffered, not to
impose a penalty on the wrongdoer.
[23]


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.


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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) 3,850.00 as actual damages;
(2) 100,000.00 as moral damages;
(3) 50,000.00 as exemplary damages; and
(4) Costs of the suit.

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.

SO ORDERED.


JOSE CATRAL MENDOZA
Associate Justice
WE CONCUR:





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ANTONIO T. CARPIO
Associate Justice




DIOSDADO M. PERALTA ROBERTO A. ABAD
Associate Justice Associate
Justice
Acting Chairperson




JOSE PORTUGAL PEREZ
Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had
been reached in consultation before the case was assigned to
the writer of the opinion of the Courts Division.


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DIOSDADO M. PERALTA
Associate Justice
Acting Chairperson, Third
Division


C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution and
the Division Acting Chairpersons Attestation, I certify that the
conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the
opinion of the Courts Division.




RENATO C. CORONA
Chief Justice



*
Designated as additional member in lieu of Associate Justice
Presbitero J. Velasco, Jr., per Special Order No. 1185
datedFebruary 10, 2012.
**
Designated as Acting Chairperson, per Special Order
No. 1184 dated February 10, 2012.

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***
Designated as additional member in lieu of Associate Justice
Estela M. Perlas-Bernabe, per Special Order No. 1192
datedFebruary 10, 2012.
[1]
See the case of Dr. Batiquin v. Court of Appeals, 327 Phil.
965 (1996).
[2]
Rollo, pp. 50-65. Penned by Associate Justice Isaias Dicdican,
with Associate Justice Juan Q. Enriquez, Jr. and Associate Justice
Marlene Gonzales-Sison, concurring.
[3]
Id. at 67-68.
[4]
Id. at 70-79.
[5]
No first name on record.
[6]
Rollo, p. 79.
[7]
Id. at 78.
[8]
Id. at 58-65.
[9]
Id. at 20-22.
[10]
Also quoted in the case of Layugan v. Intermediate Appellate
Court, 249 Phil. 363, 377 (1988).
[11]
Dr. Batiquin v. CA, supra note 1, at 979-980.
[12]
Reyes v. Sisters of Mercy Hospital, 396 Phil. 87, 98 (2000).
[13]
TSN, September 20, 2004, p. 13.
[14]
Gaid v. People, G.R. No. 171636, April 7, 2009, 584 SCRA
489, 497.
[15]
Id. at 495.
[16]
Id. at 497.

[17]
TSN, September 20, 2004, pp. 9-24.
[18]
Balitaosan v. The Secretary of Education, 457 Phil. 300, 304
(2003).
[19]
Del Rosario v. Bonga, 402 Phil. 949, 957-958 (2001).

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[20]
G.R. No. 178763, April 21, 2009, 586 SCRA 173, 200.
[21]
TSN, September 20, 2004, p. 13.
[22]
As quoted in the case of Ruez, Jr. v. Jurado, 513 Phil. 101,
106 (2005).
[23]
Quezon City Govt. v. Dacara, 499 Phil. 228, 243 (2005).



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EN BANC

DR. RUBI LI,
Petitioner,










- versus -
G.R. No. 165279

Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE
CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
*

ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

SPOUSES REYNALDO and
LINA SOLIMAN, as
parents/heirs of deceased
Angelica Soliman,
Respondents.

Promulgated:

June 7, 2011

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x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - -x

DECISION

VILLARAMA, JR., J.:

Challenged in this petition for review on certiorari is the
Decision
[1]
dated June 15, 2004 as well as the
Resolution
[2]
dated September 1, 2004 of the Court of Appeals
(CA) in CA-G.R. CV No. 58013 which modified the
Decision
[3]
dated September 5, 1997 of
theRegional 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 type,
[4]
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

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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 onSeptember 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 post-mortem examination. The Medico-
Legal Report issued by said institution indicated the cause of
death as Hypovolemic shock secondary to multiple organ
hemorrhages and Disseminated Intravascular Coagulation.
[5]

On the other hand, the Certificate of Death
[6]
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
On February 21, 1994, respondents filed a damage
suit
[7]
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

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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.
In her answer,
[8]
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

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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 business.
[9]
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

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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 long distance.
[10]
This was disputed by
respondents who countered that petitioner gave them
assurance that there is 95% chance of healing for Angelica if she
undergoes chemotherapy and that the only side effects were
nausea, vomiting and hair loss.
[11]
Those were the only side-
effects of chemotherapy treatment mentioned by petitioner.
[12]

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
tests.
[13]
Petitioner proceeded with the chemotherapy by first
administering hydration fluids to Angelica.
[14]

The following day, August 19, petitioner began
administering three chemotherapy drugs
Cisplatin,
[15]
Doxorubicin
[16]
and Cosmegen
[17]

intravenously. Petitioner was supposedly assisted by her
trainees Dr. Leo Marbella
[18]
and Dr. Grace Arriete.
[19]
In his

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testimony, Dr. Marbella denied having any participation in
administering the said chemotherapy drugs.
[20]

On the second day of chemotherapy, August 20,
respondents noticed reddish discoloration on Angelicas
face.
[21]
They asked petitioner about it, but she merely
quipped, Wala yan. Epekto ng gamot.
[22]
Petitioner recalled
noticing the skin rashes on the nose and cheek area of
Angelica. At that moment, she entertained the possibility that
Angelica also had systemic lupus and consulted Dr. Victoria
Abesamis on the matter.
[23]

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 neck, but petitioner
dismissed it again as merely the effect of
medicines.
[24]
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 chips.
[25]

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 reddish urine.
[26]
Petitioner

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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
subsided.
[27]

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 respondents can see her anytime if any immediate problem
arises.
[28]

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
administration of calcium continued.
[29]

The next day, August 24, respondents claimed that
Angelica still suffered from convulsions. They also noticed that

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she had a fever and had difficulty breathing.
[30]
Petitioner
insisted it was carpo-pedal spasm, not convulsions. She verified
that at around 4:50that afternoon, Angelica developed difficulty
in breathing and had fever. She then requested for an
electrocardiogram analysis, and infused calcium gluconate on
the patient at a stat dose. She further ordered that Angelica
be given Bactrim,
[31]
a synthetic antibacterial combination
drug,
[32]
to combat any infection on the childs body.
[33]

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 gadgets
attached to Angelica at that time.
[34]

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.

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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 induce further bleeding.
[35]
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 latter could not answer her anymore.
[36]
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

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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. Atthree oclock in the morning of
September 1, a priest came and they prayed before Angelica
expired. Petitioner finally came back and supposedly told
respondents that there was malfunction or bogged-down
machine.
[37]

By petitioners own account, Angelica was merely irritable
that day (August 31). Petitioner noted though that Angelicas
skin was indeed sloughing off.
[38]
She stressed that at 9:30 in
the evening, Angelica pulled out her endotracheal tube.
[39]
On
September 1, exactly two weeks after being admitted at SLMC
for chemotherapy, Angelica died.
[40]
The cause of death,
according to petitioner, was septicemia, or overwhelming
infection, which caused Angelicas other organs to
fail.
[41]
Petitioner attributed this to the patients poor defense
mechanism brought about by the cancer itself.
[42]

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 promissory note
as he did not have cash to pay the hospital bill.
[43]


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Respondents also presented as witnesses Dr. Jesusa
Nieves-Vergara, Medico-Legal 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 osteosarcoma. Dr. Vergara admitted that she is not a

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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 detected it.
[44]

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 based on studies and observations, even if such will
aggravate the patients condition.
[45]

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

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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 they died
or had seen another doctor.
[46]

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
adjuvant treatment. Using the standard of negligence laid

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down in Picart v. Smith,
[47]
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
ofP139,064.43.
[48]

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 carpo-pedal 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

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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 side-effects 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.
x x x x
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:

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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.
SO ORDERED.
[49]
(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 all-knowing/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

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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

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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 damages suffered by the respondents.
[50]

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 injury to the patient.
[51]

This Court has recognized that medical negligence cases
are best proved by opinions of expert witnesses belonging in

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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 evaluating, hence the indispensability of expert
testimonies.
[52]

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
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prior to performing a surgery or procedure. In the United
States, the seminal case was Schoendorff v. Society of New York
Hospital
[53]
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 damages.
[54]
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 probable benefits.
[55]

Subsequently, in Canterbury v. Spence
[56]
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 may or may
not impose upon themselves.
[57]
The scope of disclosure is
premised on the fact that patients ordinarily are persons

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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 associated with armslength
transactions.
[58]
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 the risks that may ensue from
particular treatment or no treatment.
[59]
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
divulge and damage to the patient.
[60]

Reiterating the foregoing considerations, Cobbs v.
Grant
[61]
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

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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
incompetent.
[62]
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 be divulged is its materiality to
the patients decision.
[63]

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;

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(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 decision to undergo it.
[64]

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

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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 necessary.
[65]

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 testimony.
[66]
Such expert testimony must
show the customary standard of care of physicians in the same
practice as that of the defendant doctor.
[67]

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

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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

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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
procedure.
[68]
(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.
No costs.
SO ORDERED.