Legal Med - Assigned 1

LEGAL MEDICINE ASSIGNED CASES 1
Tin Simbran
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 165279
June 7, 2011
DR. RUBI LI, Petitioner,

vs.
SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of
deceased Angelica Soliman, Respondents.
DECISION
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the
Decision1 dated June 15, 2004 as well as the Resolution2dated
September 1, 2004 of the Court of Appeals (CA) in CA-G.R. CV No.
58013 which modified the Decision3dated September 5, 1997 of the
Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
On July 7, 1993, respondents 11-year old daughter, Angelica
Soliman, underwent a biopsy of the mass located in her lower
extremity at the St. Lukes Medical Center (SLMC). Results showed
that Angelica was suffering from osteosarcoma, osteoblastic
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 was
suggested by Dr. Tamayo. Dr. Tamayo referred Angelica to another
doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she

died on September 1, 1993, just eleven (11) days after the
(intravenous) administration of the first cycle of the chemotherapy
regimen. Because SLMC refused to release a death certificate
without full payment of their hospital bill, respondents brought the
cadaver of Angelica to the Philippine National Police (PNP) Crime
Laboratory at Camp Crame for 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 Death6 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 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.

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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 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.9Petitioner,
however, assured them not to worry about her professional fee and
told them to just save up for the medicines to be used.
Petitioner claimed that she explained to respondents that even
when a tumor is removed, there are still small lesions undetectable
to the naked eye, and that adjuvant chemotherapy is needed to
clean out the small lesions in order to lessen the chance of the
cancer to recur. She did not give the respondents any assurance
that chemotherapy will cure Angelicas cancer. During these
consultations with respondents, she explained the following side
effects of chemotherapy treatment to respondents: (1) falling hair;
(2) nausea and vomiting; (3) loss of appetite; (4) low count of white
blood cells [WBC], red blood cells [RBC] and platelets; (5) possible
sterility due to the effects on Angelicas ovary; (6) damage to the
heart and kidneys; and (7) darkening of the skin especially when
exposed to sunlight. She actually talked with respondents four
times, once at the hospital after the surgery, twice at her clinic and
the fourth time when Angelicas mother called her through 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.11Those 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,15Doxorubicin16 and Cosmegen17
intravenously. Petitioner was supposedly assisted by her trainees
Dr. Leo Marbella18 and Dr. Grace Arriete.19 In his 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.21They 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

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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.251avvphi1
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 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 she had a fever
and had difficulty breathing.30 Petitioner insisted it was carpo-pedal

spasm, not convulsions. She verified that at around 4:50 that
afternoon, Angelica developed difficulty in breathing and had fever.
She then requested for an electrocardiogram analysis, and infused
calcium gluconate on the 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.
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

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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 blood-like fluid.
Angelica requested for an electric fan as she was in pain. Hospital
staff attempted to take blood samples from Angelica but were
unsuccessful because they could not even locate her vein. Angelica
asked for a fruit but when it was given to her, she only smelled it.
At this time, Reynaldo claimed he could not find either petitioner or
Dr. Marbella. That night, Angelica became hysterical and started
removing those gadgets attached to her. At three oclock in the
morning of September 1, a priest came and they prayed before
Angelica expired. Petitioner finally came back and 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
Respondents also presented as witnesses Dr. Jesusa NievesVergara, 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 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

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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 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 crossexamination, 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 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 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 sideeffects 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.

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On this point therefore, [w]e find defendant-appellee Dr. Rubi Li
negligent which would entitle plaintiffs-appellants to their claim for
damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly,
the assailed decision is hereby modified to the extent that
defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffsappellants the following amounts:
1. Actual damages of P139,064.43, plus P9,828.00 for
funeral expenses;
2. Moral damages of P200,000.00;
3. Exemplary damages of P50,000.00;
4. Attorneys fee of P30,000.00.
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 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 pretreatment procedures done on Angelica.
As to the cause of death, petitioner insists that Angelica did not die
of platelet depletion but of sepsis which is a complication of the
cancer itself. Sepsis itself leads to bleeding and death. She explains
that the response rate to chemotherapy of patients with
osteosarcoma is high, so much so that survival rate is favorable to
the patient. Petitioner then points to some probable consequences
if Angelica had not undergone chemotherapy. Thus, without
chemotherapy, other medicines and supportive treatment, the
patient might have died the next day because of massive infection,
or the cancer cells might have spread to the brain and brought the
patient into a coma, or into the lungs that the patient could have
been hooked to a respirator, or into her kidneys that she would
have to undergo dialysis. Indeed, respondents could have spent as
much because of these complications. The patient would have been
deprived of the chance to survive the ailment, of any hope for life
and her "quality of life" surely compromised. Since she had not
been shown to be at fault, petitioner maintains that the CA erred in
holding her liable for the 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

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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 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 nonproduction 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 physicianpatient relationships goes far back into English common law. As
early as 1767, doctors were charged with the tort of "battery" (i.e.,
an unauthorized physical contact with a patient) if they had not
gained the consent of their patients prior to performing a surgery or
procedure. In the United States, the seminal case was Schoendorff
v. Society of New York Hospital53 which involved unwanted
treatment performed by a doctor. Justice Benjamin Cardozos oftquoted 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. Spence56 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 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

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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. Grant61 deemed
it as integral part of physicians overall obligation to patient, the
duty of reasonable disclosure of available choices with respect to
proposed therapy and of dangers inherently and potentially
involved in each. However, the physician is not obliged to discuss
relatively minor risks inherent in common procedures when it is
common knowledge that such risks inherent in procedure of very
low incidence. Cited as exceptions to the rule that the patient
should not be denied the opportunity to weigh the risks of surgery
or treatment are emergency cases where it is evident he cannot
evaluate data, and where the patient is a child or
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; (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 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

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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.66Such 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 establish the
standard of care in obtaining consent for chemotherapy treatment.
In the absence of expert testimony in this regard, the Court feels
hesitant in defining the scope of mandatory disclosure in cases of
malpractice based on lack of informed consent, much less set a
standard of disclosure that, even in foreign jurisdictions, has been
noted to be an evolving one.
As society has grappled with the juxtaposition between personal
autonomy and the medical profession's intrinsic impetus to cure,
the law defining "adequate" disclosure has undergone a dynamic
evolution. A standard once guided solely by the ruminations of
physicians is now dependent on what a reasonable person in the
patients position regards as significant. This change in perspective
is especially important as medical breakthroughs move
practitioners to the cutting edge of technology, ever encountering
new and heretofore unimagined treatments for currently incurable
diseases or ailments. An adaptable standard is needed to account
for this constant progression. Reasonableness analyses permeate
our legal system for the very reason that they are determined by
social norms, expanding and contracting with the ebb and flow of
societal evolution.
As we progress toward the twenty-first century, we now realize that

the legal standard of disclosure is not subject to construction as a
categorical imperative. Whatever formulae or processes we adopt
are only useful as a foundational starting point; the particular
quality or quantity of disclosure will remain inextricably bound by
the facts of each case. Nevertheless, juries that ultimately
determine whether a physician properly informed a patient are
inevitably guided by what they perceive as the common
expectation of the medical consumer"a 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.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO
Associate Justice
CONCHITA CARPIO
MORALES
Associate Justice
PRESBITERO J.
ANTONIO EDUARDO B.

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1
VELASCO, JR.
Associate Justice
NACHURA
Associate Justice
TERESITA J. LEONARDODE CASTRO

Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
(No Part)
MARIANO C. DEL
CASTILLO*
Associate Justice
ROBERTO A. ABAD
Associate Justice
JOSE PORTUGAL PEREZ

Associate Justice
JOSE CATRAL MENDOZA

Associate Justice
MARIA LOURDES P. A. SERENO

Associate Justice
Rollo, pp. 33-63. Penned by Associate Justice Mariano C.

Del Castillo (now a Member of this Court) and concurred in
by Associate Justices Roberto A. Barrios and Magdangal M.
De Leon.
2
Id. at 65.
Id. at 119-162. Penned by Judge Salvador D. Silerio.
Records, p. 174.
Id. at 175.
Id. at 254.
Rollo, pp. 80-89.
Id. at 95-108.
TSN, January 26, 1995, p. 3.
10
CERTIFICATION
Pursuant to Section 13, Article VIII of the 1987 Constitution, 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 Court.
RENATO C. CORONA
Chief Justice
TSN, October 6, 1995, pp. 18-26, 60; TSN, January 27,

1997, pp. 4-5.
11
Rollo, p. 35.
12
Id. at 35 and 81.
13
TSN, October 6, 1995, pp. 39-40; rollo, p. 123.
14
Id. at 40.
15
Footnotes
*
Cisplatin is in a class of drugs known as platinumcontaining compounds. It slows or stops the growth of
cancer cells inside the body.
Source: http://www.nlm.nih.gov/medlineplus/druginfo/meds/
a684036.html. (Site visited on August 21, 2010.)
No part.
10

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16
Doxorubicin is an anti-cancer (antineoplastic or cytotoxic)

chemotherapy drug. It is classified as an "anthracycline
antibiotic."
Source: http://www.chemocare.com/bio/doxorubicin.asp (Site
visited on August 21, 2010.)
31
32
http://www.rxlist.com/bactrim-drug.htm (Site visited

September 2, 2010.)
33
17
Cosmegen is the trade name for Dactinomycin, an anticancer (antineoplastic or cytotoxic) chemotherapy drug
classified as an "alkylating agent."
Source: http://www.chemocare.com/bio/cosmegen.asp (Site
visited on August 21, 2010.)
18
TSN, January 27, 1997, p. 9.
19
Rollo, p. 124.
20
TSN, April 22, 1996, pp. 11-12.
21
Rollo, p. 35.
22
Id. at 120.
23
TSN, October 6, 1995, pp. 27-28.
24
TSN, September 19, 1994, p. 18.
25
Par. 11 of Answer, rollo, p. 100.
Paragraph 14 of Answer, rollo, pp. 101-102.
34
Paragraphs 19-20 of Complaint, rollo, pp. 83; paragraphs

15-17 of Answer, pp. 102-103.
35
Paragraph 17 of Answer, rollo, p. 103.
36
Paragraph 23 of Complaint, rollo, p. 83; TSN, September

19, 1994, pp. 24-25.
37
TSN, December 15, 1994, pp. 13-21.
38
Paragraph 17 of Answer, rollo, p. 103.
39
Id.
40
Rollo, p. 37.
41
TSN, October 6, 1995, p. 33.
42
Id.
43
TSN, December 15, 1994, p. 22.
44
TSN, December 14, 1994, pp. 15-38.
45
TSN, April 28, 1995, pp. 23-25.
46
TSN, May 26, 1996, pp. 5, 8-13, 23.
47
37 Phil. 809 (1918).
48
Rollo, pp. 160-162.
26
TSN, September 19, 1994, p. 19; paragraph 16 of

Complaint, rollo, p. 82.
Id. at 125-126.
27
TSN, October 6, 1995, pp. 28-30; paragraphs 12, 13 & 14

of Answer, rollo, pp. 100-101.
28
Rollo, p. 101.
29
30
Rollo, p. 36.
11

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49
Id. at 58-59, 62-63.
65
50
Id. at 18-23.
66
Arato v. Avedon, 858 P.2d 598 (Cal. 1993).
Mason v. Walsh, 26 Conn.App. 225, 229-30, 00 A.2d 326

(1991).
51
Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5,

1997, 278 SCRA 769, 778.
67
Id., 230, citing Shenefield v. Greenwich Hospital Assn., 10

Conn.App. 239, 248-49, 522 A.2d 829 (1987).
52
Lucas v. Tuao, G.R. No. 178763, April 21, 2009, 586 SCRA
173, 201-202, citing Dr. Cruz v. Court of Appeals, 346 Phil.
872, 884-885 (1997).
53
105 N.E. 92, 93 (N.Y. 1914).
54
Id.
68
"Informed Consent: From the Ambivalence of Arato to the

Thunder of Thor" Issues in Law & Medicine, Winter, 1994 by
Armand Arabian. Sourced at Internet
-http://findarticles.com/p/articles/mi_m6875/is_n3_10/ai_n25
022732/pg_37/?tag=content;col1
55
Blacks Law Dictionary, Fifth Edition, p. 701, citing Ze

Barth v. Swedish Hospital Medical Center, 81 Wash.2d 12,
499 P.2d 1, 8.
56
464 F.2d 772 C.A.D.C., 1972.
57
Id. at 784.
58
Id. at 780-782.
59
Id. at 782.
60
Id. at 790, 791-792.
61
8 Cal.3d 229, 502 P.2d 1 Cal. 1972.
62
Id.
63
Id.
64
Davis v. Kraf, N.E.2d 2010 WL 4026765 Ill.App. 1 Dist.,

2010, citing Coryell v. Smith, 274 Ill.App.3d 543, 210 Ill.Dec.
855, 653 N.E.2d 1317 (1995).
12

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SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 126297
January 31, 2007
PROFESSIONAL SERVICES, INC., Petitioner,

vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467
January 31, 2007
NATIVIDAD (Substituted by her children MARCELINO AGANA

III, ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS
AGANA, and RAYMUND AGANA) and ENRIQUE
AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590
January 31, 2007
MIGUEL AMPIL, Petitioner,

vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.
through this high trust, however technical, complex and esoteric its
character may be, must meet standards of responsibility
commensurate with the undertaking to preserve and protect the
health, and indeed, the very lives of those placed in the hospitals
keeping.1
Assailed in these three consolidated petitions for review on
certiorari is the Court of Appeals Decision2 dated September 6,
1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198 affirming
with modification the Decision3dated March 17, 1993 of the
Regional Trial Court (RTC), Branch 96, Quezon City in Civil Case No.
Q-43322 and nullifying its Order dated September 21, 1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical City
General Hospital (Medical City Hospital) because of difficulty of
bowel movement and bloody anal discharge. After a series of
medical examinations, Dr. Miguel Ampil, petitioner in G.R. No.
127590, diagnosed her to be suffering from "cancer of the
sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff 4 of the
Medical City Hospital, performed an anterior resection surgery on
Natividad. He found that the malignancy in her sigmoid area had
spread on her left ovary, necessitating the removal of certain
portions of it. Thus, Dr. Ampil obtained the consent of Natividads
husband, Enrique Agana, to permit Dr. Juan Fuentes, respondent in
G.R. No. 126467, to perform hysterectomy on her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took
over, completed the operation and closed the incision.
DECISION
SANDOVAL-GUTIERREZ, J.:
However, the operation appeared to be flawed. In the

corresponding Record of Operation dated April 11, 1984, the
attending nurses entered these remarks:
Hospitals, having undertaken one of mankinds most important and

delicate endeavors, must assume the grave responsibility of
pursuing it with appropriate care. The care and service dispensed
"sponge count lacking 2
13

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"announced to surgeon searched (sic) done but to no avail continue
for closure."
On April 24, 1984, Natividad was released from the hospital. Her
hospital and medical bills, including the doctors fees, amounted to
P60,000.00.
After a couple of days, Natividad complained of excruciating pain in
her anal region. She consulted both Dr. Ampil and Dr. Fuentes about
it. They told her that the pain was the natural consequence of the
surgery. Dr. Ampil then recommended that she consult an
oncologist to examine the cancerous nodes which were not
removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to
the United States to seek further treatment. After four months of
consultations and laboratory examinations, Natividad was told she
was free of cancer. Hence, she was advised to return to the
Philippines.
On August 31, 1984, Natividad flew back to the Philippines, still
suffering from pains. Two weeks thereafter, her daughter found a
piece of gauze protruding from her vagina. Upon being informed
about it, Dr. Ampil proceeded to her house where he managed to
extract by hand a piece of gauze measuring 1.5 inches in width. He
then assured her that the pains would soon vanish.
Dr. Ampils assurance did not come true. Instead, the pains
intensified, prompting Natividad to seek treatment at the Polymedic
General Hospital. While confined there, Dr. Ramon Gutierrez
detected the presence of another foreign object in her vagina -- a
foul-smelling gauze measuring 1.5 inches in width which badly
infected her vaginal vault. A recto-vaginal fistula had formed in her
reproductive organs which forced stool to excrete through the
vagina. Another surgical operation was needed to remedy the
damage. Thus, in October 1984, Natividad underwent another
surgery.
On November 12, 1984, Natividad and her husband filed with the
RTC, Branch 96, Quezon City a complaint for damages against the
Professional Services, Inc. (PSI), owner of the Medical City Hospital,

Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322.
They alleged that the latter are liable for negligence for leaving two
pieces of gauze inside Natividads body and malpractice for
concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional
Regulation Commission (PRC) an administrative complaint for gross
negligence and malpractice against Dr. Ampil and Dr. Fuentes,
docketed as Administrative Case No. 1690. The PRC Board of
Medicine heard the case only with respect to Dr. Fuentes because it
failed to acquire jurisdiction over Dr. Ampil who was then in the
United States.
On February 16, 1986, pending the outcome of the above cases,
Natividad died and was duly substituted by her above-named
children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the
Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for negligence
and malpractice, the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs
ordering the defendants PROFESSIONAL SERVICES, INC., DR.
MIGUEL AMPIL and DR. JUAN FUENTES to pay to the plaintiffs, jointly
and severally, except in respect of the award for exemplary
damages and the interest thereon which are the liabilities of
defendants Dr. Ampil and Dr. Fuentes only, as follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total
of US$19,900.00 at the rate of P21.60-US$1.00, as
reimbursement of actual expenses incurred in the
United States of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs
and their physician daughter;
14

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c. The total sum of P45,802.50, representing the cost
of hospitalization at Polymedic Hospital, medical
fees, and cost of the saline solution;
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with

CA-G.R. CV No. 42062.
4. As attorneys fees, the sum of P250,000.00;
Meanwhile, on January 23, 1995, the PRC Board of Medicine

rendered its Decision6 in Administrative Case No. 1690 dismissing
the case against Dr. Fuentes. The Board held that the prosecution
failed to show that Dr. Fuentes was the one who left the two pieces
of gauze inside Natividads body; and that he concealed such fact
from Natividad.
5. Legal interest on items 1 (a), (b), and (c); 2; and 3

hereinabove, from date of filing of the complaint until full
payment; and
On September 6, 1996, the Court of Appeals rendered its Decision

jointly disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No.
32198, thus:
6. Costs of suit.
WHEREFORE, except for the modification that the case against

defendant-appellant Dr. Juan Fuentes is hereby DISMISSED, and
with the pronouncement that defendant-appellant Dr. Miguel Ampil
is liable to reimburse defendant-appellant Professional Services,
Inc., whatever amount the latter will pay or had paid to the
plaintiffs-appellees, the decision appealed from is hereby AFFIRMED
and the instant appeal DISMISSED.
2. As moral damages, the sum of P2,000,000.00;

3. As exemplary damages, the sum of P300,000.00;
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to
the Court of Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a
motion for a partial execution of its Decision, which was granted in
an Order dated May 11, 1993. Thereafter, the sheriff levied upon
certain properties of Dr. Ampil and sold them for P451,275.00 and
delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into an
agreement with PSI and Dr. Fuentes to indefinitely suspend any
further execution of the RTC Decision. However, not long thereafter,
the Aganas again filed a motion for an alias writ of execution
against the properties of PSI and Dr. Fuentes. On September 21,
1993, the RTC granted the motion and issued the corresponding
writ, prompting Dr. Fuentes to file with the Court of Appeals a
petition for certiorari and prohibition, with prayer for preliminary
injunction, docketed as CA-G.R. SP No. 32198. During its pendency,
the Court of Appeals issued a Resolution5 dated October 29, 1993
granting Dr. Fuentes prayer for injunctive relief.
Concomitant with the above, the petition for certiorari and

prohibition filed by herein defendant-appellant Dr. Juan Fuentes in
CA-G.R. SP No. 32198 is hereby GRANTED and the challenged order
of the respondent judge dated September 21, 1993, as well as the
alias writ of execution issued pursuant thereto are hereby
NULLIFIED and SET ASIDE. The bond posted by the petitioner in
connection with the writ of preliminary injunction issued by this
Court on November 29, 1993 is hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and
Professional Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied
in a Resolution7 dated December 19, 1996.
Hence, the instant consolidated petitions.
15

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In G.R. No. 126297, PSI alleged in its petition that the Court of
Appeals erred in holding that: (1) it is estopped from raising the
defense that Dr. Ampil is not its employee; (2) it is solidarily liable
with Dr. Ampil; and (3) it is not entitled to its counterclaim against
the Aganas. PSI contends that Dr. Ampil is not its employee, but a
mere consultant or independent contractor. As such, he alone
should answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court of Appeals
erred in finding that Dr. Fuentes is not guilty of negligence or
medical malpractice, invoking the doctrine of res ipsa loquitur. They
contend that the pieces of gauze are prima facie proofs that the
operating surgeons have been negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of
Appeals erred in finding him liable for negligence and malpractice
sans evidence that he left the two pieces of gauze in Natividads
vagina. He pointed to other probable causes, such as: (1) it was Dr.
Fuentes who used gauzes in performing the hysterectomy; (2) the
attending nurses failure to properly count the gauzes used during
surgery; and (3) the medical intervention of the American doctors
who examined Natividad in the United States of America.
For our resolution are these three vital issues: first, whether the
Court of Appeals erred in holding Dr. Ampil liable for negligence and
malpractice; second, whether the Court of Appeals erred in
absolving Dr. Fuentes of any liability; and third, whether PSI may be
held solidarily liable for the negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Courts
attention to other possible causes of Natividads detriment. He
argues that the Court should not discount either of the following
possibilities: first, Dr. Fuentes left the gauzes in Natividads body
after performing hysterectomy; second, the attending nurses erred
in counting the gauzes; and third, the American doctors were the
ones who placed the gauzes in Natividads body.
Dr. Ampils arguments are purely conjectural and without basis.
Records show that he did not present any evidence to prove that
the American doctors were the ones who put or left the gauzes in
Natividads body. Neither did he submit evidence to rebut the
correctness of the record of operation, particularly the number of
gauzes used. As to the alleged negligence of Dr. Fuentes, we are
mindful that Dr. Ampil examined his (Dr. Fuentes) work and found
it in order.
The glaring truth is that all the major circumstances, taken
together, as specified by the Court of Appeals, directly point to Dr.
Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used gauzes as
sponges to control the bleeding of the patient during the
surgical operation.
Second, immediately after the operation, the nurses who
assisted in the surgery noted in their report that the sponge
count (was) lacking 2; that such anomaly was announced
to surgeon and that a search was done but to no avail
prompting Dr. Ampil to continue for closure x x x.
Third, after the operation, two (2) gauzes were extracted
from the same spot of the body of Mrs. Agana where the
surgery was performed.
An operation requiring the placing of sponges in the incision is not
complete until the sponges are properly removed, and it is settled
that the leaving of sponges or other foreign substances in the
wound after the incision has been closed is at least prima facie
negligence by the operating surgeon.8 To put it simply, such act is
considered so inconsistent with due care as to raise an inference of
negligence. There are even legions of authorities to the effect that
such act is negligence per se.9
16

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Of course, the Court is not blind to the reality that there are times
when danger to a patients life precludes a surgeon from further
searching missing sponges or foreign objects left in the body. But
this does not leave him free from any obligation. Even if it has been
shown that a surgeon was required by the urgent necessities of the
case to leave a sponge in his patients abdomen, because of the
dangers attendant upon delay, still, it is his legal duty to so inform
his patient within a reasonable time thereafter by advising her of
what he had been compelled to do. This is in order that she might
seek relief from the effects of the foreign object left in her body as
her condition might permit. The ruling in Smith v. Zeagler10 is
explicit, thus:
he failed to do so, it was his duty to inform Natividad about it. Dr.
Ampil breached both duties. Such breach caused injury to
Natividad, necessitating her further examination by American
doctors and another surgery. That Dr. Ampils negligence is the
proximate cause12 of Natividads injury could be traced from his act
of closing the incision despite the information given by the
attending nurses that two pieces of gauze were still missing. That
they were later on extracted from Natividads vagina established
the causal link between Dr. Ampils negligence and the injury. And
what further aggravated such injury was his deliberate
concealment of the missing gauzes from the knowledge of
Natividad and her family.
The removal of all sponges used is part of a surgical operation, and

when a physician or surgeon fails to remove a sponge he has
placed in his patients body that should be removed as part of the
operation, he thereby leaves his operation uncompleted and
creates a new condition which imposes upon him the legal duty of
calling the new condition to his patients attention, and
endeavoring with the means he has at hand to minimize and avoid
untoward results likely to ensue therefrom.
II - G.R. No. 126467
Here, Dr. Ampil did not inform Natividad about the missing two
pieces of gauze. Worse, he even misled her that the pain she was
experiencing was the ordinary consequence of her operation. Had
he been more candid, Natividad could have taken the immediate
and appropriate medical remedy to remove the gauzes from her
body. To our mind, what was initially an act of negligence by Dr.
Ampil has ripened into a deliberate wrongful act of deceiving his
patient.
This is a clear case of medical malpractice or more appropriately,
medical negligence. To successfully pursue this kind of case, a
patient must only prove that a health care provider either failed to
do something which a reasonably prudent health care provider
would have done, or that he did something that a reasonably
prudent provider would not have done; and that failure or action
caused injury to the patient.11 Simply put, the elements are duty,
breach, injury and proximate causation. Dr, Ampil, as the lead
surgeon, had the duty to remove all foreign objects, such as
gauzes, from Natividads body before closure of the incision. When
Whether the Court of Appeals Erred in Absolving

Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case
against Dr. Fuentes on the ground that it is contrary to the doctrine
of res ipsa loquitur. According to them, the fact that the two pieces
of gauze were left inside Natividads body is a prima facie evidence
of Dr. Fuentes negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for itself." It is
the rule that the fact of the occurrence of an injury, taken with the
surrounding circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiffs prima facie
case, and present a question of fact for defendant to meet with an
explanation.13Stated differently, where the thing which caused the
injury, without the fault of the injured, is under the exclusive control
of the defendant and the injury is such that it should not have
occurred if he, having such control used proper care, it affords
reasonable evidence, in the absence of explanation that the injury
arose from the defendants want of care, and the burden of proof is
shifted to him to establish that he has observed due care and
diligence.14
17

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From the foregoing statements of the rule, the requisites for the
applicability of the doctrine of res ipsa loquitur are: (1) the
occurrence of an injury; (2) the thing which caused the injury was
under the control and management of the defendant; (3) the
occurrence was such that in the ordinary course of things, would
not have happened if those who had control or management used
proper care; and (4) the absence of explanation by the defendant.
Of the foregoing requisites, the most instrumental is the "control
and management of the thing which caused the injury."15
We find the element of "control and management of the thing
which caused the injury" to be wanting. Hence, the doctrine of res
ipsa loquitur will not lie.
It was duly established that Dr. Ampil was the lead surgeon during
the operation of Natividad. He requested the assistance of Dr.
Fuentes only to perform hysterectomy when he (Dr. Ampil) found
that the malignancy in her sigmoid area had spread to her left
ovary. Dr. Fuentes performed the surgery and thereafter reported
and showed his work to Dr. Ampil. The latter examined it and
finding everything to be in order, allowed Dr. Fuentes to leave the
operating room. Dr. Ampil then resumed operating on Natividad. He
was about to finish the procedure when the attending nurses
informed him that two pieces of gauze were missing. A "diligent
search" was conducted, but the misplaced gauzes were not found.
Dr. Ampil then directed that the incision be closed. During this
entire period, Dr. Fuentes was no longer in the operating room and
had, in fact, left the hospital.
Under the "Captain of the Ship" rule, the operating surgeon is the
person in complete charge of the surgery room and all personnel
connected with the operation. Their duty is to obey his orders. 16 As
stated before, Dr. Ampil was the lead surgeon. In other words, he
was the "Captain of the Ship." That he discharged such role is
evident from his following conduct: (1) calling Dr. Fuentes to
perform a hysterectomy; (2) examining the work of Dr. Fuentes and
finding it in order; (3) granting Dr. Fuentes permission to leave;
and (4) ordering the closure of the incision. To our mind, it was this
act of ordering the closure of the incision notwithstanding that two
pieces of gauze remained unaccounted for, that caused injury to
Natividads body. Clearly, the control and management of the thing
which caused the injury was in the hands of Dr. Ampil, not Dr.
Fuentes.
In this jurisdiction, res ipsa loquitur is not a rule of substantive law,
hence, does not per se create or constitute an independent or
separate ground of liability, being a mere evidentiary rule. 17 In
other words, mere invocation and application of the doctrine does
not dispense with the requirement of proof of negligence. Here, the
negligence was proven to have been committed by Dr. Ampil and
not by Dr. Fuentes.
III - G.R. No. 126297
Whether PSI Is Liable for the Negligence of Dr. Ampil
The third issue necessitates a glimpse at the historical
development of hospitals and the resulting theories concerning
their liability for the negligence of physicians.
Until the mid-nineteenth century, hospitals were generally
charitable institutions, providing medical services to the lowest
classes of society, without regard for a patients ability to
pay.18 Those who could afford medical treatment were usually
treated at home by their doctors.19 However, the days of house
calls and philanthropic health care are over. The modern health
care industry continues to distance itself from its charitable past
and has experienced a significant conversion from a not-for-profit
health care to for-profit hospital businesses. Consequently,
significant changes in health law have accompanied the businessrelated changes in the hospital industry. One important legal
change is an increase in hospital liability for medical malpractice.
Many courts now allow claims for hospital vicarious liability under
the theories of respondeat superior, apparent authority, ostensible
authority, or agency by estoppel. 20
In this jurisdiction, the statute governing liability for negligent acts
is Article 2176 of the Civil Code, which reads:
Art. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
18

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done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and
is governed by the provisions of this Chapter.
A derivative of this provision is Article 2180, the rule governing
vicarious liability under the doctrine of respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is demandable
not only for ones own acts or omissions, but also for those of
persons for whom one is responsible.
x x x
x x x
The owners and managers of an establishment or enterprise are

likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their
assigned tasks even though the former are not engaged in any
business or industry.
x x x
The responsibility treated of in this article shall cease when the

persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
A prominent civilist commented that professionals engaged by an
employer, such as physicians, dentists, and pharmacists, are not
"employees" under this article because the manner in which they
perform their work is not within the control of the latter (employer).
In other words, professionals are considered personally liable for
the fault or negligence they commit in the discharge of their duties,
and their employer cannot be held liable for such fault or
negligence. In the context of the present case, "a hospital cannot
be held liable for the fault or negligence of a physician or surgeon
in the treatment or operation of patients."21
The foregoing view is grounded on the traditional notion that the

professional status and the very nature of the physicians calling
preclude him from being classed as an agent or employee of a
hospital, whenever he acts in a professional capacity. 22 It has been
said that medical practice strictly involves highly developed and
specialized knowledge,23 such that physicians are generally free to
exercise their own skill and judgment in rendering medical services
sans interference.24 Hence, when a doctor practices medicine in a
hospital setting, the hospital and its employees are deemed to
subserve him in his ministrations to the patient and his actions are
of his own responsibility.25
The case of Schloendorff v. Society of New York Hospital26 was then
considered an authority for this view. The "Schloendorff doctrine"
regards a physician, even if employed by a hospital, as an
independent contractor because of the skill he exercises and the
lack of control exerted over his work. Under this doctrine, hospitals
are exempt from the application of the respondeat superior
principle for fault or negligence committed by physicians in the
discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened with
the significant developments in medical care. Courts came to
realize that modern hospitals are increasingly taking active role in
supplying and regulating medical care to patients. No longer were a
hospitals functions limited to furnishing room, food, facilities for
treatment and operation, and attendants for its patients. Thus, in
Bing v. Thunig,27 the New York Court of Appeals deviated from the
Schloendorff doctrine, noting that modern hospitals actually do far
more than provide facilities for treatment. Rather, they regularly
employ, on a salaried basis, a large staff of physicians, interns,
nurses, administrative and manual workers. They charge patients
for medical care and treatment, even collecting for such services
through legal action, if necessary. The court then concluded that
there is no reason to exempt hospitals from the universal rule of
respondeat superior.
In our shores, the nature of the relationship between the hospital
and the physicians is rendered inconsequential in view of our
categorical pronouncement in Ramos v. Court of Appeals 28 that for
purposes of apportioning responsibility in medical negligence
19

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cases, an employer-employee relationship in effect exists between
hospitals and their attending and visiting physicians. This Court
held:
"We now discuss the responsibility of the hospital in this particular
incident. The unique practice (among private hospitals) of filling up
specialist staff with attending and visiting "consultants," who are
allegedly not hospital employees, presents problems in
apportioning responsibility for negligence in medical malpractice
cases. However, the difficulty is more apparent than real.
In the first place, hospitals exercise significant control in the hiring
and firing of consultants and in the conduct of their work within the
hospital premises. Doctors who apply for consultant slots, visiting
or attending, are required to submit proof of completion of
residency, their educational qualifications, generally, evidence of
accreditation by the appropriate board (diplomate), evidence of
fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or
by a review committee set up by the hospital who either accept or
reject the application. x x x.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and
residents, moderate grand rounds and patient audits and perform
other tasks and responsibilities, for the privilege of being able to
maintain a clinic in the hospital, and/or for the privilege of
admitting patients into the hospital. In addition to these, the
physicians performance as a specialist is generally evaluated by a
peer review committee on the basis of mortality and morbidity
statistics, and feedback from patients, nurses, interns and
residents. A consultant remiss in his duties, or a consultant who
regularly falls short of the minimum standards acceptable to the
hospital or its peer review committee, is normally politely
terminated.
In other words, private hospitals, hire, fire and exercise real control
over their attending and visiting consultant staff. While
consultants are not, technically employees, 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 wages. In
assessing whether such a relationship in fact exists, the control test
is determining. Accordingly, on the basis of the foregoing, we rule
that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect
exists between hospitals and their attending and visiting
physicians. "
But the Ramos pronouncement is not our only basis in sustaining
PSIs liability. Its liability is also anchored upon the agency principle
of apparent authority or agency by estoppel and the doctrine of
corporate negligence which have gained acceptance in the
determination of a hospitals liability for negligent acts of health
professionals. The present case serves as a perfect platform to test
the applicability of these doctrines, thus, enriching our
jurisprudence.
Apparent authority, or what is sometimes referred to as the
"holding
out" theory, or doctrine of ostensible agency or agency by
estoppel,29 has its origin from the law of agency. It imposes liability,
not as the result of the reality of a contractual relationship, but
rather because of the actions of a principal or an employer in
somehow misleading the public into believing that the relationship
or the authority exists.30 The concept is essentially one of estoppel
and has been explained in this manner:
"The principal is bound by the acts of his agent with the apparent
authority which he knowingly permits the agent to assume, or
which he holds the agent out to the public as possessing. The
question in every case is whether the principal has by his voluntary
act placed the agent in such a situation that a person of ordinary
prudence, conversant with business usages and the nature of the
particular business, is justified in presuming that such agent has
authority to perform the particular act in question.31
The applicability of apparent authority in the field of hospital
liability was upheld long time ago in Irving v. Doctor Hospital of
20

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Lake Worth, Inc.32 There, it was explicitly stated that "there does
not appear to be any rational basis for excluding the concept of
apparent authority from the field of hospital liability." Thus, in cases
where it can be shown that a hospital, by its actions, has held out a
particular physician as its agent and/or employee and that a patient
has accepted treatment from that physician in the reasonable belief
that it is being rendered in behalf of the hospital, then the hospital
will be liable for the physicians negligence.
Our jurisdiction recognizes the concept of an agency by implication
or estoppel. Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of the
principal, from his silence or lack of action, or his failure to
repudiate the agency, knowing that another person is acting on his
behalf without authority.
In this case, PSI publicly displays in the lobby of the Medical City
Hospital the names and specializations of the physicians associated
or accredited by it, including those of Dr. Ampil and Dr. Fuentes. We
concur with the Court of Appeals conclusion that it "is now
estopped from passing all the blame to the physicians whose
names it proudly paraded in the public directory leading the public
to believe that it vouched for their skill and competence." Indeed,
PSIs act is tantamount to holding out to the public that Medical
City Hospital, through its accredited physicians, offers quality
health care services. By accrediting Dr. Ampil and Dr. Fuentes and
publicly advertising their qualifications, the hospital created the
impression that they were its agents, authorized to perform
medical or surgical services for its patients. As expected, these
patients, Natividad being one of them, accepted the services on the
reasonable belief that such were being rendered by the hospital or
its employees, agents, or servants. The trial court correctly pointed
out:
x x x regardless of the education and status in life of the patient, he
ought not be burdened with the defense of absence of employeremployee relationship between the hospital and the independent
physician whose name and competence are certainly certified to
the general public by the hospitals act of listing him and his
specialty in its lobby directory, as in the case herein. The high costs
of todays medical and health care should at least exact on the

hospital greater, if not broader, legal responsibility for the conduct
of treatment and surgery within its facility by its accredited
physician or surgeon, regardless of whether he is independent or
employed."33
The wisdom of the foregoing ratiocination is easy to discern.
Corporate entities, like PSI, are capable of acting only through other
individuals, such as physicians. If these accredited physicians do
their job well, the hospital succeeds in its mission of offering quality
medical services and thus profits financially. Logically, where
negligence mars the quality of its services, the hospital should not
be allowed to escape liability for the acts of its ostensible agents.
We now proceed to the doctrine of corporate negligence or
corporate responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for
negligence and malpractice is that PSI as owner, operator and
manager of Medical City Hospital, "did not perform the necessary
supervision nor exercise diligent efforts in the supervision of Drs.
Ampil and Fuentes and its nursing staff, resident doctors, and
medical interns who assisted Drs. Ampil and Fuentes in the
performance of their duties as surgeons."34 Premised on the
doctrine of corporate negligence, the trial court held that PSI is
directly liable for such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the
judicial answer to the problem of allocating hospitals liability for
the negligent acts of health practitioners, absent facts to support
the application of respondeat superior or apparent authority. Its
formulation proceeds from the judiciarys acknowledgment that in
these modern times, the duty of providing quality medical service is
no longer the sole prerogative and responsibility of the physician.
The modern hospitals have changed structure. Hospitals now tend
to organize a highly professional medical staff whose competence
and performance need to be monitored by the hospitals
21

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commensurate with their inherent responsibility to provide quality
medical care.35
The doctrine has its genesis in Darling v. Charleston Community
Hospital.36 There, the Supreme Court of Illinois held that "the jury
could have found a hospital negligent, inter alia, in failing to have a
sufficient number of trained nurses attending the patient; failing to
require a consultation with or examination by members of the
hospital staff; and failing to review the treatment rendered to the
patient." On the basis of Darling, other jurisdictions held that a
hospitals corporate negligence extends to permitting a physician
known to be incompetent to practice at the hospital.37 With the
passage of time, more duties were expected from hospitals, among
them: (1) the use of reasonable care in the maintenance of safe
and adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or
supervision of all persons who practice medicine within its walls;
and (4) the formulation, adoption and enforcement of adequate
rules and policies that ensure quality care for its patients.38 Thus, in
Tucson Medical Center, Inc. v. Misevich,39 it was held that a hospital,
following the doctrine of corporate responsibility, has the duty to
see that it meets the standards of responsibilities for the care of
patients. Such duty includes the proper supervision of the members
of its medical staff. And in Bost v. Riley,40 the court concluded that
a patient who enters a hospital does so with the reasonable
expectation that it will attempt to cure him. The hospital
accordingly has the duty to make a reasonable effort to monitor
and oversee the treatment prescribed and administered by the
physicians practicing in its premises.
In the present case, it was duly established that PSI operates the
Medical City Hospital for the purpose and under the concept of
providing comprehensive medical services to the public.
Accordingly, it has the duty to exercise reasonable care to protect
from harm all patients admitted into its facility for medical
treatment. Unfortunately, PSI failed to perform such duty. The
findings of the trial court are convincing, thus:
x x x PSIs liability is traceable to its failure to conduct an
investigation of the matter reported in the nota bene of the count
nurse. Such failure established PSIs part in the dark conspiracy of
silence and concealment about the gauzes. Ethical considerations,

if not also legal, dictated the holding of an immediate inquiry into
the events, if not for the benefit of the patient to whom the duty is
primarily owed, then in the interest of arriving at the truth. The
Court cannot accept that the medical and the healing professions,
through their members like defendant surgeons, and their
institutions like PSIs hospital facility, can callously turn their backs
on and disregard even a mere probability of mistake or negligence
by refusing or failing to investigate a report of such seriousness as
the one in Natividads case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on
Natividad with the assistance of the Medical City Hospitals staff,
composed of resident doctors, nurses, and interns. As such, it is
reasonable to conclude that PSI, as the operator of the hospital, has
actual or constructive knowledge of the procedures carried out,
particularly the report of the attending nurses that the two pieces
of gauze were missing. In Fridena v. Evans,41 it was held that a
corporation is bound by the knowledge acquired by or notice given
to its agents or officers within the scope of their authority and in
reference to a matter to which their authority extends. This means
that the knowledge of any of the staff of Medical City Hospital
constitutes knowledge of PSI. Now, the failure of PSI, despite the
attending nurses report, to investigate and inform Natividad
regarding the missing gauzes amounts to callous negligence. Not
only did PSI breach its duties to oversee or supervise all persons
who practice medicine within its walls, it also failed to take an
active step in fixing the negligence committed. This renders PSI,
not only vicariously liable for the negligence of Dr. Ampil under
Article 2180 of the Civil Code, but also directly liable for its own
negligence under Article 2176. In Fridena, the Supreme Court of
Arizona held:
x x x In recent years, however, the duty of care owed to the patient
by the hospital has expanded. The emerging trend is to hold the
hospital responsible where the hospital has failed to monitor and
review medical services being provided within its walls. See Kahn
Hospital Malpractice Prevention, 27 De Paul . Rev. 23 (1977).
Among the cases indicative of the emerging trend is Purcell v.
Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In Purcell, the
22

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hospital argued that it could not be held liable for the malpractice
of a medical practitioner because he was an independent
contractor within the hospital. The Court of Appeals pointed out
that the hospital had created a professional staff whose
competence and performance was to be monitored and reviewed
by the governing body of the hospital, and the court held that a
hospital would be negligent where it had knowledge or reason to
believe that a doctor using the facilities was employing a method of
treatment or care which fell below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of Appeals
held that a hospital has certain inherent responsibilities regarding
the quality of medical care furnished to patients within its walls and
it must meet the standards of responsibility commensurate with
this undertaking. Beeck v. Tucson General Hospital, 18 Ariz. App.
165, 500 P. 2d 1153 (1972). This court has confirmed the rulings of
the Court of Appeals that a hospital has the duty of supervising the
competence of the doctors on its staff. x x x.
x
In the amended complaint, the plaintiffs did plead that the

operation was performed at the hospital with its knowledge, aid,
and assistance, and that the negligence of the defendants was the
proximate cause of the patients injuries. We find that such general
allegations of negligence, along with the evidence produced at the
trial of this case, are sufficient to support the hospitals liability
based on the theory of negligent supervision."
Anent the corollary issue of whether PSI is solidarily liable with Dr.
Ampil for damages, let it be emphasized that PSI, apart from a
general denial of its responsibility, failed to adduce evidence
showing that it exercised the diligence of a good father of a family
in the accreditation and supervision of the latter. In neglecting to
offer such proof, PSI failed to discharge its burden under the last
paragraph of Article 2180 cited earlier, and, therefore, must be
adjudged solidarily liable with Dr. Ampil. Moreover, as we have
discussed, PSI is also directly liable to the Aganas.
One final word. Once a physician undertakes the treatment and

care of a patient, the law imposes on him certain obligations. In
order to escape liability, he must possess that reasonable degree of
learning, skill and experience required by his profession. At the
same time, he must apply reasonable care and diligence in the
exercise of his skill and the application of his knowledge, and exert
his best judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the challenged
Decision of the Court of Appeals in CA-G.R. CV No. 42062 and CAG.R. SP No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson
RENATO C. CORONA
Associate Justice
ADOLFO S. AZCUNA
Asscociate Justice
(No Part)
CANCIO C. GARCIA
Associate Justice
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby
certified that the conclusions in the above Decision were reached in
opinion of the Courts Division.
23

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REYNATO S. PUNO
Chief Justice
Footnotes
SO ORDERED." See Rollo, G.R. No. 126297, p. 42.

6
Rollo of G.R. No. 126467, pp. 84-89.
Rollo of G.R. No. 127590, p. 40.
No part. Ponente of the assailed Decision in the Court of

Appeals.
Rule v. Cheeseman, 317 P. 2d 472 (1957), citing Russel v.

Newman, 116 Kan. 268 P. 752; Bernsden v. Johnson, 174
Kan. 230, 255 P. 2d 1033.
9
Beeck v. Tucson General Hospital, 500 P. 2d 1153 (1972),

citing Darling v. Charleston Community Memorial Hospital,
33 Ill. 2d 326, 211 N.E. 2d 253.
2
Penned by Associate Justice Cancio C. Garcia (now a

member of the Supreme Court) and concurred in by
Associate Justices Eugenio S. Labitoria and Artemio G.
Tuquero (both retired), Rollo, G.R. Nos. 126297, pp. 36-51;
126467, pp. 27-42; 127590, pp. 23-38.
Smith v. Zeagler, 157 So. 328 Fla. (1934), citing Ruth v.

Johnson, (C.C.A.) 172 F. 191; Reeves v. Lutz, 179 Mo. App.
61, 162 S.W. 280; Rayburn v. Day, 126 Or. 135,268 P. 1002,
59 A.L.R. 1062; Wynne v. Harvey, 96 Wash. 379, 165 P. 67;
Harris v. Fall (C.C.A.) 177 F. 79, 27 L.R.A. (N.S.) 1174; Moore
v. Ivey, (Tex. Civ. App.) 264 S.W. 283; 21 R.C. L. 388.
10
157 So. 328 Fla. (1934)
11
Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5,

1997, 278 SCRA 769.
Penned by Judge Lucas P. Bersamin (now Justice of the

Court of Appeals), Rollo, G.R. No. 126647, pp. 69-83.
4
The medical staff was composed of physicians, both

residents and interns, as well as nurses.
5
The dispositive portion reads:

"WHEREFORE, let a writ of preliminary injunction be
issued upon petitioners posting of bond in the
amount of P20,000.00, ENJOINING public respondents
from implementing the questioned order dated
September 21, 1993 and from further taking any
action in Civil Case No. Q-43322 entitled Natividad
G. Agana, et al., plaintiffs, versus Professional
Services, Inc., et al., defendants pending resolution
of the instant petition.
12
In the leading case of Vda. de Bataclan v. Medina, (102

Phil. 181 [1957]), this Court laid down the following
definition of proximate cause in this jurisdiction as follows:
[T]hat 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. And more
comprehensively, the proximate cause is that acting
first and producing the injury, either immediately or
by setting other events in motion, all constituting a
natural and continuous chain of events, each having
a close causal connection with the immediate
predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result
of the cause which first acted, under which
circumstances that the person responsible for the
first event should, as an ordinarily prudent and
24

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intelligent person, have reasonable ground to expect
at the moment of his act or default that an injury to
some person might probably result therefrom.
13
Ramos v. Court of Appeals, G.R. No. 124354, December

29, 1999, 321 SCRA 584.
14
Africa v. Caltex (Phils.) Inc., 123 Phil. 280 (1966).
23
Arkansas M.R. Co. v. Pearson, id.; Nieto v. State, 952 P. 2d

834 (1997). But see Beeck v. Tucson General Hosp., 18 Ariz.
App. 165, 500 P. 2d 1153 (1972); Paintsville Hosp. Co., 683
SW 2d 255 (1985); Kelley v. Rossi, 395 Mass. 659, 481 NE 2d
1340 (1985) which held that a physicians professional
status does not prevent him or her from being a servant or
agent of the hospital.
24
Fridena v. Evans, 127 Ariz. 516, 522 P. 2d 463 (1980).
25
Kitto v. Gilbert, 39 Colo App 374, 570 P. 2d 544 (1977).
15
Ranos v. Court of Appeals, supra. In Ramos, the phrase

used is "control of the instrumentality which caused the
damage," citing St. Johns Hospital and School of Nursing v.
Chapman, 434 P2d 160 (1967).
26
19
Id.
211 N.Y. 125, 105 N.E. 92, 52 L.R.A., N.S., 505 (1914). The
court in Schloendorff opined that a hospital does not act
through physicians but merely procures them to act on their
own initiative and responsibility. For subsequent application
of the doctrine, see for instance, Hendrickson v. Hodkin, 250
App. Div 649, 294 NYS 982, revd on other grounds, 276 NY
252, 11 NE 2d 899 (1937); Necolayff v. Genesee Hosp., 270
App. Div. 648, 61 NYS 2d 832, affd 296 NY 936, 73 NE2d 117
(1946); Davie v. Lenox Hill Hosp., Inc., 81 NYS 2d 583
(1948); Roth v. Beth El Hosp., Inc., 279 App. Div 917, 110
NYS 2d 583 (1952); Rufino v. US, 126 F. Supp. 132 (1954);
Mrachek v. Sunshine Biscuit, Inc., 308 NY 116, 123 N.E. 2d
801 (1954).
20
Id.
27
2 NY 2d 656, 163 NYS 2d 3, 143 N.E. 2d 3 (1957).
28
Supra at footnote 13.
16
Rural Educational Assn v. Bush, 42 Tenn. App. 34, 298 S.W.

2d 761 (1956).
17
Ramos v. Court of Appeals, supra at footnote 13.
18
Levin, Hospital Vicarious Liability for Negligence by

Independent Contractor Physicians: A New Rule for New
Times, October 17, 2005.
21
Tolentino, The Civil Code of the Philippines, Volume V,

1992 Ed., p. 616.
29
22
Arkansas M.R. Co. v. Pearson, 98 Ark. 442, 153 SW 595

(1911); Runyan v. Goodrum, 147 Ark. 281, 228 SW 397, 13
ALR 1403 (1921); Rosane v. Senger, 112 Colo. 363, 149 P. 2d
372 (superseded by statute on other grounds); Moon v.
Mercy Hosp., 150 Col. 430, 373 P. 2d 944 (1962); Austin v.
Litvak, 682 P. 2d 41, 50 ALR 4th 225 (1984); Western Ins. Co.
v. Brochner, 682 P. 2d 1213 (1983); Rodriguez v. Denver,
702 P. 2d 1349 (1984).
Blacks Law Dictionary (6th Ed. 1990) 1100. The terms

"ostensible agency," "agency by estoppel," "apparent
authority," and "holding out" tend to be used
interchangeably by the courts to refer to this theory of
liability. See for instance, Baker v. Werner, 654 P2d 263
(1982) and Adamski v. Tacoma Gen. Hosp., 20 Wash App.
98, 579 P2d 970 (1978). Agency by estoppel is defined as
"one created by operation of law and established by proof of
such acts of the principal as reasonably lead third persons to
the conclusion of its existence. Arises where principal by
25

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negligence in failing to supervise agents affairs, allows
agent to exercise powers not granted to him, thus justifying
others in believing the agent possesses requisite authority."
Blacks, supra, p. 62. An ostensible agency is "an implied or
presumptive agency which exists where one, either
intentionally or from want of ordinary care, induces another
to believe that a third person is his agent, though he never
in fact, employed him. It is, strictly speaking, no agency at
all, but is in reality based entirely upon estoppel." Apparent
authority refers to "the power to affect the legal relations of
another person by transactions with third persons,
professedly as agent for the other, arising from and in
accordance with the others manifestations to such third
persons." Supra, p. 96.
39
115 Ariz. 34, 545 P2d 958 (1976).
40
262 S.E. 2d 391, cert denied 300 NC 194, 269 S.E. 2d 621
(1980).
41
127 Ariz. 516, 622 P. 2d 463 (1980).
30
Irving v. Doctors Hospital of Lake Worth, Inc., 415 So. 2d

55 (1982), quoting Arthur v. St. Peters Hospital, 169 N.J. 575,
405 A. 2d 443 (1979).
31
Id., citing Hudson v. C., Loan Assn., Inc. v. Horowytz, 116

N.J.L. 605, 608, 186 A 437 (Sup. Ct. 1936).
32
Supra.
33
RTC Decision, p. 9, Rollo of G.R. No. 126467, p. 127.
34
RTC Decision, p. 2, Rollo of G.R. No. 126467, p. 120.
35
Purcell v. Zimbelman, 18 Ariz. App. 75, 500 P2d 335

(1972).
36
Supra at footnote 1.
37
Corleto v. Hospital, 138 N.J. Super. 302, 350 A. 2d 534

(Super. Ct. Law Div.1975); Purcell v. Zimbelman, 18 Ariz.
App. 75,500 P. 2d 335 (1972); Hospital Authority v. Joiner,
229 Ga. 140,189 S.E. 2d 412 (1972).
38
Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581 (1997).
26

Tin Simbran
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 122445 November 18, 1997

DR. NINEVETCH CRUZ, petitioner,
vs.
COURT OF APPEALS and LYDIA UMALI, respondents.
FRANCISCO, J.:
Doctors are protected by a special rule of 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 mistakes of
judgment . . . 1
The present case against petitioner is in the nature of a medical
malpractice suit, which in simplest terms is the 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. 2 In this
jurisdiction, however, such claims are most often brought as a civil
action for damages under Article 2176 of the Civil Code, 3 and in
some instances, as a criminal case under Article 365 of the Revised
Penal Code 4 with which the civil action for damages is impliedly
instituted. It is via the latter type of action that the heirs of the
deceased sought redress for the petitioner's alleged imprudence
and negligence in treating the deceased thereby causing her death.
The petitioner and one Dr. Lina Ercillo who was the attending
anaesthesiologist during the operation of the deceased were

charged with "reckless imprudence and negligence resulting to (sic)
homicide" in an information which reads:
That on or about March 23, 1991, in the City of San
Pablo, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the accused
above named, being then the attending
anaesthesiologist and surgeon, respectively, did then
and there, in a negligence (sic), careless, imprudent,
and incompetent manner, and failing to supply or
store sufficient provisions and facilities necessary to
meet any and all exigencies apt to arise before,
during and/or after a surgical operation causing by
such negligence, carelessness, imprudence, and
incompetence, and causing by such failure, including
the lack of preparation and foresight needed to avert
a tragedy, the untimely death of said Lydia Umali on
the day following said surgical operation. 5
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded
not guilty to the above-mentioned charge. On March 4, 1994, the
Municipal Trial Court in Cities (MTCC) of San Pablo City rendered a
decision, the dispositive portion of which is hereunder quoted as
follows:
WHEREFORE, the court finds the accused Dra. Lina
Ercillo not guilty of the offense charged for
insufficiency of evidence while her co-accused Dra.
Ninevetch Cruz is hereby held responsible for the
death of Lydia Umali on March 24, 1991, and
therefore guilty under Art. 365 of the Revised Penal
Code, and she is hereby sentenced to suffer the
penalty of 2 months and 1 day imprisonment of
arresto mayor with costs. 6
27

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The petitioner appealed her conviction to the Regional Trial
Court (RTC) which affirmed in toto the decision of the
MTCC 7 prompting the petitioner to file a petition for review
with the Court of Appeals but to no avail. Hence this petition
for review on certiorari assailing the decision promulgated
by the Court of Appeals on October 24, 1995 affirming
petitioner's conviction with modification that she is further
directed to pay the heirs of Lydia Umali P50,000.00 as
indemnity for her death. 8
In substance, the petition brought before this Court raises
the issue of whether or not petitioner's conviction of the
crime of reckless imprudence resulting in homicide, arising
from an alleged medical malpractice, is supported by the
evidence on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De
Ocampo, accompanied her mother to the Perpetual Help Clinic and
General Hospital situated in Balagtas Street, San Pablo City,
Laguna. They arrived at the said hospital at around 4:30 in the
afternoon of the same day. 9 Prior to
March 22, 1991, Lydia was examined by the petitioner who found a
"myoma" 10 in her uterus, and scheduled her for a hysterectomy
operation on March 23,
1991. 11 Rowena and her mother slept in the clinic on the evening
of March 22, 1991 as the latter was to be operated on the next day
at 1:00 o'clock in the afternoon. 12 According to Rowena, she
noticed that the clinic was untidy and the window and the floor
were very dusty prompting her to ask the attendant for a rag to
wipe the window and the floor with. 13 Because of the untidy state
of the clinic, Rowena tried to persuade her mother not to proceed
with the operation. 14 The following day, before her mother was
wheeled into the operating room, Rowena asked the petitioner if
the operation could be postponed. The petitioner called Lydia into
her office and the two had a conversation. Lydia then informed
Rowena that the petitioner told her that she must be operated on
as scheduled. 15
Rowena and her other relatives, namely her husband, her sister and
two aunts waited outside the operating room while Lydia underwent
operation. While they were waiting, Dr. Ercillo went out of the
operating room and instructed them to buy tagamet ampules which
Rowena's sister immediately bought. About one hour had passed
when Dr. Ercillo came out again this time to ask them to buy blood
for Lydia. They bought type "A" blood from the St. Gerald Blood
Bank and the same was brought by the attendant into the
operating room. After the lapse of a few hours, the petitioner
informed them that the operation was finished. The operating staff
then went inside the petitioner's clinic to take their snacks. Some
thirty minutes after, Lydia was brought out of the operating room in
a stretcher and the petitioner asked Rowena and the other relatives
to buy additional blood for Lydia. Unfortunately, they were not able
to comply with petitioner's order as there was no more type "A"
blood available in the blood bank. Thereafter, a person arrived to
donate blood which was later transfused to Lydia. Rowena then
noticed her mother, who was attached to an oxygen tank, gasping
for breath. Apparently the oxygen supply had run out and Rowena's
husband together with the driver of the accused had to go to the
San Pablo District Hospital to get oxygen. Lydia was given the fresh
supply of oxygen as soon as it arrived. 16 But at around 10:00
o'clock P.M. she went into shock and her blood pressure dropped to
60/50. Lydia's unstable condition necessitated her transfer to the
San Pablo District Hospital so she could be connected to a
respirator and further examined. 17 The transfer to the San Pablo
District Hospital was without the prior consent of Rowena nor of the
other relatives present who found out about the intended transfer
only when an ambulance arrived to take Lydia to the San Pablo
District Hospital. Rowena and her other relatives then boarded a
tricycle and followed the ambulance. 18
28

Tin Simbran
Upon Lydia's arrival at the San Pablo District Hospital, she was
wheeled into the operating room and the petitioner and Dr. Ercillo
re-operated on her because there was blood oozing from the
abdominal incision. 19 The attending physicians summoned Dr.
Bartolome Angeles, head of the Obstetrics and Gynecology
Department of the San Pablo District Hospital. However, when Dr.
Angeles arrived, Lydia was already in shock and possibly dead as
her blood pressure was already 0/0. Dr. Angeles then informed
petitioner and Dr. Ercillo that there was nothing he could do to help
save the patient.20 While the petitioner was closing the abdominal
wall, the patient died. 21 Thus, on March 24, 1991, at 3:00 o'clock in
the morning, Lydia Umali was pronounced dead. Her death
certificate states "shock" as the immediate cause of death and
"Disseminated Intravascular Coagulation (DIC)" as the antecedent
cause. 22
In convicting the petitioner, the MTCC found the following
circumstances as sufficient basis to conclude that she was indeed
negligent in the performance of the operation:
. . . , the clinic was untidy, there was lack of provision
like blood and oxygen to prepare for any contingency
that might happen during the operation. The manner
and the fact that the patient was brought to the San
Pablo District Hospital for reoperation indicates that
there was something wrong in the manner in which
Dra. Cruz conducted the operation. There was no
showing that before the operation, accused Dra. Cruz
had conducted a cardio pulmonary clearance or any
typing of the blood of the patient. It was (sic) said in
medical parlance that the "the abdomen of the
person is a temple of surprises" because you do not
know the whole thing the moment it was open (sic)
and surgeon must be prepared for any eventuality
thereof. The patient (sic) chart which is a public
document was not presented because it is only there
that we could determine the condition of the patient

before the surgery. The court also noticed in Exh. "F1" that the sister of the deceased wished to postpone
the operation but the patient was prevailed upon by
Dra. Cruz to proceed with the surgery. The court finds
that Lydia Umali died because of the negligence and
carelessness of the surgeon Dra. Ninevetch Cruz
because of loss of blood during the operation of the
deceased for evident unpreparedness and for lack of
skill, the reason why the patient was brought for
operation at the San Pablo City District Hospital. As
such, the surgeon should answer for such
negligence. With respect to Dra. Lina Ercillo, the
anaesthesiologist, there is no evidence to indicate
that she should be held jointly liable with Dra. Cruz
who actually did the operation. 23
The RTC reiterated the abovementioned findings of the MTCC and
upheld the latter's declaration of "incompetency, negligence and
lack of foresight and skill of appellant (herein petitioner) in handling
the subject patient before and after the operation." 24 And likewise
affirming the petitioner's conviction, the Court of Appeals echoed
similar observations, thus:
. . . While we may grant that the untidiness and
filthiness of the clinic may not by itself indicate
negligence, it nevertheless shows the absence of due
care and supervision over her subordinate
employees. Did this unsanitary condition permeate
the operating room? Were the surgical instruments
properly sterilized? Could the conditions in the OR
have contributed to the infection of the patient? Only
the petitioner could answer these, but she opted not
to testify. This could only give rise to the presumption
that she has nothing good to testify on her defense.
Anyway, the alleged "unverified statement of the
29

Tin Simbran
prosecution witness" remains unchallenged and
unrebutted.
Likewise undisputed is the prosecution's version
indicating the following facts: that the accused asked
the patient's relatives to buy Tagamet capsules while
the operation was already in progress; that after an
hour, they were also asked to buy type "A" blood for
the patient; that after the surgery, they were again
asked to procure more type "A" blood, but such was
not anymore available from the source; that the
oxygen given to the patient was empty; and that the
son-in-law of the patient, together with a driver of
the petitioner, had to rush to the San Pablo City
District Hospital to get the much-needed oxygen. All
these conclusively show that the petitioner had not
prepared for any unforeseen circumstances before
going into the first surgery, which was not
emergency in nature, but was elective or prescheduled; she had no ready antibiotics, no prepared
blood, properly typed and cross-matched, and no
sufficient oxygen supply.
Moreover, there are a lot of questions that keep
nagging Us. Was the patient given any cardiopulmonary clearance, or at least a clearance by an
internist, which are standard requirements before a
patient is subjected to surgery. Did the petitioner
determine as part of the pre-operative evaluation,
the bleeding parameters of the patient, such as
bleeding time and clotting time? There is no showing
that these were done. The petitioner just appears to
have been in a hurry to perform the operation, even
as the family wanted a postponement to April 6,
1991. Obviously, she did not prepare the patient;
neither did she get the family's consent to the
operation. Moreover, she did not prepare a medical

chart with instructions for the patient's care. If she
did all these, proof thereof should have been offered.
But there is none. Indeed, these are overwhelming
evidence of recklessness and imprudence. 25
This Court, however, holds differently and finds the foregoing
circumstances insufficient to sustain a judgment of conviction
against the petitioner for the crime of reckless imprudence
resulting in homicide. The elements of reckless 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 reckless 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 a physician has committed an "inexcusable lack of
precaution" in the treatment of his 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. 26 In the recent
case of Leonila Garcia-Rueda v. Wilfred L. Pascasio, et al., 27 this
Court stated that in accepting a case, a doctor in effect represents
that, having the needed training and skill possessed by physicians
and surgeons practicing in the same field, he will employ such
training, care and skill in the treatment of his patients. He therefore
has 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. It is in this aspect of medical malpractice
that expert testimony is essential to establish not only the standard
of care of the profession but also that the physician's conduct in the
treatment and care falls below such standard. 28 Further, inasmuch
as the causes of the injuries involved in malpractice actions are
30

Tin Simbran
determinable only in the light of scientific knowledge, it has been
recognized that expert testimony is usually necessary to support
the conclusion as to causation. 29
Immediately apparent from a review of the records of this case is
the absence of any expert testimony on the matter of the standard
of care employed by other physicians of good standing in the
conduct of similar operations. The prosecution's expert witnesses in
the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the
National Bureau of Investigation (NBI) only testified as to the
possible cause of death but did not venture to illuminate the court
on the matter of the standard of care that petitioner should have
exercised.
All three courts below bewail the inadequacy of the facilities of the
clinic and its untidiness; the lack of provisions such as blood,
oxygen, and certain medicines; the failure to subject the patient to
a cardio-pulmonary test prior to the operation; the omission of any
form of blood typing before transfusion; and even the subsequent
transfer of Lydia to the San Pablo Hospital and the reoperation
performed on her by the petitioner. But while it may be true that
the circumstances pointed out by the courts below seemed beyond
cavil to constitute reckless imprudence on the part of the surgeon,
this conclusion is still best arrived at not through the educated
surmises nor conjectures of laymen, including judges, but by the
unquestionable knowledge of expert witnesses. For whether a
physician or surgeon has exercised the requisite degree of skill and
care in the treatment of his patient is, in the generality of cases, a
matter of expert opinion. 30 The deference of courts to the expert
opinion of qualified physicians stems from its realization that the
latter possess unusual technical skills which laymen in most
instances are incapable of intelligently evaluating. 31 Expert
testimony should have been offered to prove that the
circumstances cited by the courts below are constitutive of conduct
falling below the standard of care employed by other physicians in
good standing when performing the same operation. It must be
remembered that when the qualifications of a physician are

admitted, as in the instant case, there is an inevitable presumption
that in proper cases he takes the necessary precaution and
employs the best of his knowledge and skill in attending to his
clients, unless the contrary is sufficiently established. 32 This
presumption is rebuttable by expert opinion which is so sadly
lacking in the case at bench.
Even granting arguendo that the inadequacy of the facilities and
untidiness of the clinic; the lack of provisions; the failure to conduct
pre-operation tests on the patient; and the subsequent transfer of
Lydia to the San Pablo Hospital and the reoperation performed on
her by the petitioner do indicate, even without expert testimony,
that petitioner was recklessly imprudent in the exercise of her
duties as a surgeon, no cogent proof exists that any of these
circumstances caused petitioner's death. Thus, the absence of the
fourth element of reckless imprudence: that the injury to the
person or property was a consequence of the reckless imprudence.
In litigations involving medical negligence, the plaintiff has the
burden of establishing appellant's negligence and for a reasonable
conclusion of negligence, there must be proof of breach of duty on
the part of the surgeon as well as a causal connection of such
breach and the resulting death of his patient. 33 In Chan Lugay
v. St. Luke's Hospital, Inc., 34 where the attending physician was
absolved of liability for the death of the complainant's wife and
newborn baby, this Court held that:
In order that there may be a recovery for an injury,
however, it must be shown that the "injury for which
recovery is sought must be the legitimate
consequence of the wrong done; the connection
between the negligence and the injury must be a
direct and natural sequence of events, unbroken by
intervening efficient causes." In other words, the
negligence must be the proximate cause of the
31

Tin Simbran
injury. For, "negligence, no matter in what it consists,
cannot create a right of action unless it is the
proximate cause of the injury complained of ." And
"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." 35 (Emphasis supplied.)
Dr. Arizala who conducted an autopsy on the body of the deceased
summarized his findings as follows:
Atty. Cachero:
Q. You mentioned about your Autopsy
Report which has been marked as Exh.
"A-1-b". There appears here a
signature above the typewritten name
Floresto Arizala, Jr., whose signature is
that?
A. That is my signature, sir.
you please explain that in your own

language?
A. There was incision wound (sic) the
area just below the navel, sir.
Q. And the last paragraph of the
postmortem findings which I read:
Uterus, pear-shaped and pale
measuring 7.5 x 5.5 x 5.0 cm. with
some surface nodulation of the fundic
area posteriorly. Cut-section shows
diffusely pale myometrium with areas
of streak induration. The ovaries and
adnexal structures are missing with
the raw surfaces patched with clotted
blood. Surgical sutures were noted on
the operative site.
Intestines and mesenteries are pale
with blood clots noted between the
mesentric folds.
Hemoperitoneum: 300
s.s.,
right paracolic gutter,
50 c.c., left paracolic
gutter
200 c.c., mesentric area,
100 c.c., right pelvic
gutter
stomach empty.
Q. Do you affirm the truth of all the

contents of Exh. "A-1-b"?
A. Only as to the autopsy report no.
91-09, the time and place and
everything after the post mortem
findings, sir.
Q. You mentioned on your "Post
Mortem Findings" about surgical
incision, 14:0 cm., infraumbilical area,
anterior abdominal area, midline, will
Other visceral organs, pale.,
32

Tin Simbran
will you please explain that on (sic) your own
language or in ordinary. . . . . . . . . . . .
A. There was a uterus which was not
attached to the adnexal structures
namely ovaries which were not present
and also sign of previous surgical
operation and there were (sic) clotted
blood, sir.
Q. How about the ovaries and adnexal
structures?
A. They are missing, sir.
Q. You mean to say there are no
ovaries?
A. During that time there are no
ovaries, sir.
Q. And there were likewise sign of
surgical sutures?
A. Yes, sir.
Q. How about the intestines and
mesenteries are place (sic) with blood
clots noted between the mesenteric
folds, will you please explain on (sic)
this?
A. In the peritoneal cavity, they are
mostly perritonial blood . . . . . . . .
Q. And what could have caused this

blood?
A. Well, ordinarily blood is found inside
the blood vessel. Blood were (sic)
outside as a result of the injuries which
destroyed the integrity of the vessel
allowing blood to sip (sic) out, sir.
Q. By the nature of the postmortem
findings indicated in Exh. A-1-B, can
you tell the court the cause of death?
A. Yes, sir. The cause of death is: Gross
findings are compatible with
hemorrhagic shock.
Q. Can you tell the us what could have
caused this hemorrhagic shock?
A. Well hemorrhagic shock is the result
of blood loss.
Q. What could have the efect of that
loss of blood?
A. Unattended hemorrhage,
sir. 36 (Emphasis supplied.)
The foregoing was corroborated by Dr. Nieto Salvador:
Q. And were you able to determine the
cause of death by virtue of the
examination of the specimen
submitted by Dr. Arizala?
33

Tin Simbran
A. Without knowledge of the autopsy
findings it would be difficult for me to
determine the cause of death, sir.
Q. Have you also examined the post
mortem of Dr. Arizala?
A. Yes, sir, and by virtue of the autopsy
report in connection with your
pathology report.
Q. What could have caused the death
of the victim?
A. This pathologic examination are
(sic) compatible with the person who
died, sir.
Q. What could have caused this loss of

blood?
A. Many, sir. A patient who have
undergone surgery. Another may be a
blood vessel may be cut while on
operation and this cause (sic)
bleeding, or may be set in the course
of operation, or may be (sic) he died
after the operation. Of course there
are other cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was
no blood replacement?
A. Yes, sir.
Q. Will you explain to us the meaning

of hemorrhagic compatible?
A. It means that a person died of blood
loss. Meaning a person died of nonreplacement of blood and so the victim
before she died there was shock of
diminish of blood of the
circulation. She died most probably
before the actual complete blood loss,
sir.
Court: Is it possible doctor that the loss
of the blood was due on (sic)
operation?
37
(Emphasis supplied.)
The testimonies of both doctors establish hemorrhage or

hemorrhagic shock as the cause of death. However, as likewise
testified to by the expert witnesses in open court, hemorrhage or
hemorrhagic shock during surgery may be caused by several
different factors. Thus, Dr. Salvador's elaboration on the matter:
Atty. Pascual:
Q. Doctor, among the causes of
hemorrhage that you mentioned you
said that it could be at the moment of
operation when one losses (sic) control
of the presence, is that correct? During
the operation there is lost (sic) of
control of the cut vessel?
A. Based on my pathologist finding, sir.

A. Yes, sir.
34

Tin Simbran
Q. Or there is a failure to ligate a
vessel of considerable size?
A. Not related to this one, the bleeding

here is not related to any cutting or
operation that I (sic) have done.
A. Yes, sir.
Q. Or even if the vessel were ligated
the knot may have slipped later on?
Q. Aside from the DIC what could

another causes (sic) that could be the
cause for the hemorrhage or bleeding
in a patient by an operations (sic)?
A. Yes, sir.
Q. And you also mentioned that it may
be possible also to some clotting
defect, is that correct?
A. May be (sic).
38
A. In general sir, if there was an

operations (sic) and it is possible that
the ligature in the suture was (sic)
become (sic) loose, it is (sic) becomes
loose if proven..
(Emphasis supplied).
xxx xxx xxx
Defense witness, Dr. Bu C. Castro also gave the following expert

opinion:
Q. Doctor even a patient after an
operations (sic) would sufer
hemorrage what would be the possible
causes of such hemorrage (sic)?
A. Among those would be what we call
Intravascular Coagulation and this is
the reason for the bleeding, sir, which
cannot be prevented by anyone, it will
happen to anyone, anytime and to any
persons (sic), sir.
COURT:
What do you think of the cause of the
bleeding, the cutting or the operations
done in the body?
Q. If the person who performed an

autopsy does not find any untight (sic)
clot (sic) blood vessel or any suture
that become (sic) loose the cause of
the bleeding could not be attributed to
the fault of the subject?
A. Definitely, sir.
supplied.)
39
(Emphasis
According to both doctors, the possible causes of hemorrhage

during an operation are: (1) the failure of the surgeon to tie or
suture a cut blood vessel; (2) allowing a cut blood vessel to get out
of control; (3) the subsequent loosening of the tie or suture applied
to a cut blood vessel; and (4) and a clotting defect known as DIC. It
is significant to state at this juncture that the autopsy conducted by
Dr. Arizala on the body of Lydia did not reveal any untied or
unsutured cut blood vessel nor was there any indication that the tie
or suture of a cut blood vessel had become loose thereby causing
35

Tin Simbran
the hemorrhage. 40 Hence the following pertinent portion of Dr.
Arizala's testimony:
Q: Doctor, in examining these
structures did you know whether these
were sutured ligature or plain ligature
A: Ligature, sir.
On the other hand, the findings of all three doctors do not preclude
the probability that DIC caused the hemorrhage and consequently,
Lydia's death. DIC which is a clotting defect creates a serious
bleeding tendency and when massive DIC occurs as a complication
of surgery leaving raw surface, major hemorrhage occurs. 42 And as
testified to by defense witness, Dr. Bu C. Castro, hemorrhage due to
DIC "cannot be prevented, it will happen to anyone,
anytime." 43 He testified further:
Q: We will explain that later on. Did

you recall if the cut structures were
tied by first suturing it and then tying a
knot or the tie was merely placed
around the cut structure and tied?
Q. Now, under that circumstance one

of the possibility as you mentioned in
(sic) DIC?
A: I cannot recall, sir.
Q. And you mentioned that this cannot

be prevented?
Q: As a matter of fact, you cannot

recall because you did not even
bothered (sic) to examine, is that
correct?
A: Well, I bothered enough to know
that they were sutured, sir.
Q: So, therefore, Doctor, you would not
know whether any of the cut structures
were not sutured or tied neither were
you able to determine whether any
loose suture was found in the
peritoneal cavity?
A: I could not recall any loose sutured
(sic), sir. 41
A. Yes, sir.
A. Yes, sir.
Q. Can you even predict if it really
happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of
autopsy that will tell you whether this
patient suffered among such things as
DIC?
A. Well, I did reserve because of the
condition of the patient.
Q. Now, Doctor you said that you went
through the record of the deceased
Lydia Umali looking for the chart, the
36

Tin Simbran
operated (sic) records, the post
mortem findings on the histophanic
(sic) examination based on your
examination of record, doctor, can you
more or less says (sic) what part are
(sic) concerned could have been the
caused (sic) of death of this Lydia
Umali?
A. As far as the medical record is
concern (sic) the caused (sic) of death
is dessimulated (sic) Intra Vascular
Coagulation or the DIC which resulted
to hemorrhage or bleedings, sir.
Q. Doctor based on your findings then
there is knowing (sic) the doctor would
say whether the doctor her (sic) has
been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the
(sic) based on finding they just read
the chart as well as the other record.
He is only reading the record.

ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part
of the surgeon, sir. 44
This Court has no recourse but to rely on the expert testimonies
rendered by both prosecution and defense witnesses that
substantiate rather than contradict petitioner's allegation that the
cause of Lydia's death was DIC which, as attested to by an expert
witness, cannot be attributed to the petitioner's fault or negligence.
The probability that Lydia's death was caused by DIC was
unrebutted during trial and has engendered in the mind of this
Court a reasonable doubt as to the petitioner's guilt. Thus, her
acquittal of the crime of reckless imprudence resulting in homicide.
While we condole with the family of Lydia Umali, our hands are
bound by the dictates of justice and fair dealing which hold
inviolable the right of an accused to be presumed innocent until
proven guilty beyond reasonable doubt. Nevertheless, this Court
finds the petitioner civilly liable for the death of Lydia Umali, for
while a conviction of a crime requires proof beyond reasonable
doubt, only a preponderance of evidence is required to establish
civil liability. 45
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding
made.
COURT:
The petitioner is a doctor in whose hands a patient puts his life and
limb. For insufficiency of evidence this Court was not able to render
a sentence of conviction but it is not blind to the reckless and
imprudent manner in which the petitioner carried out her duties. A
precious life has been lost and the circumstances leading thereto
exacerbated the grief of those left behind. The heirs of the
deceased continue to feel the loss of their mother up to the present
time 46 and this Court is aware that no amount of compassion and
commiseration nor words of bereavement can suffice to assuage
37

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the sorrow felt for the loss of a loved one. Certainly, the award of
moral and exemplary damages in favor of the heirs of Lydia Umali
are proper in the instant case.
negligence, if there is no pre-existing contractual

relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ

is hereby ACQUITTED of the crime of reckless imprudence resulting
in homicide but is ordered to pay the heirs of the deceased Lydia
Umali the amount of FIFTY THOUSAND PESOS (P50,000.00) as civil
liability, ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral
damages, and FIFTY THOUSAND PESOS (P50,000.00) as exemplary
damages.
4 Art. 365. Imprudence and Negligence. Any person

who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a
grave felony, shall suffer the penalty
of arrestomayor in its maximum period to prision
correccional in its medium period; if it would have
constituted a less grave felony, the penalty
of arresto mayor in its minimum and medium periods
shall be imposed; if it would have constituted a light
felony, the penalty, of arresto menor in its maximum
period shall be imposed.
Let a copy of this decision be furnished to the Professional

Regulation Commission (PRC) for appropriate action.
SO ORDERED.
Romero, Melo and Panganiban, JJ., concur.
Narvasa, C.J., is on leave.
Footnotes
1 "THE PHYSICIAN'S LIABILITY AND THE LAW ON
NEGLIGENCE" by Constantino Nuez, p. 1 citingLouis
Nizer, My Life in Court, New York: Double Day & Co.,
1961 in Tolentino, Jr., MEDICINE and LAW,
Proceedings of the Symposium on Current Issues
Common to Medicine and Law U.P. I.aw Center, 1980.
2 Leonila Garcia-Rueda vs. Wifred L. Pascasio, et al.,
G.R. No. 118141, September 5, 1997.
3 ART. 2176. Whoever by act or omission causes
damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or
Any person who, by simple imprudence or

negligence, shall commit an act which would
otherwise constitute a grave felony, shall suffer the
penalty of arresto mayor in its medium and
maximum periods; if it would have constituted a less
serious felony, the penalty of arresto mayor in its
minimum period shall be imposed.
When the execution of the act covered by this article
shall have only resulted in damage to the property of
another, the offender shall be punished by a fine
ranging from an amount equal to the value of said
damages to three times such value, but which shall
in no case be less than twenty-five pesos.
A fine not exceeding two hundred pesos and censure
shall be imposed upon any person who, by simple
imprudence or negligence, shall cause some wrong
which, if done maliciously, would have constituted a
light felony.
38

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In the imposition of these penalties, the courts shall
exercise their sound discretion, without regard to the
rules prescribed in article sixty-four.
Simple imprudence consists in the lack

of precaution displayed in those cases
in which the damage impending to be
caused is not immediate nor the
danger clearly manifest.
The provisions contained in this article shall not be

applicable:
1. When the penalty provided for the
offense is equal to or lower than those
provided in the first two paragraphs of
this article, in which case the courts
shall impose the penalty next lower in
degree than that which should be
imposed, in the period which they may
deem proper to apply.
2. When, by imprudence or negligence
and with violation of the Automobile
Law, the death of a person shall be
caused, in which case the defendant
shall be punished byprision
correccional in its medium and the
maximum periods.
Reckless imprudence consists in
voluntarily, but without malice, doing
or failing to do an act from which
material damage results by reason of
inexcusable lack of precaution on the
part of the person performing or failing
to perform such act, taking into
consideration his employment or
occupation, degree of intelligence,
physical condition and other
circumstances regarding persons, time
and place.
The penalty next higher in degree to

those provided for in this article shall
be imposed upon the offender who
fails to lend on the spot to the injured
parties such help as may be in his
hands to give.
5 INFORMATION,
6 DECISION in Criminal Case No. 25534, March 4,
1994, p. 12; Rollo, p. 65.
7 DECISION in Criminal Case No. 9273-SP, July 26,
1994, p. 4; Rollo, p. 53.
8 DECISION in CA-G.R. CR No. 16388, October 24,
1995, p. 10; Rollo, p. 49.
9 TSN, Rowena Umali De Ocampo, November 10,
1992, pp. 5-6.
10 TSN, Edna Pujanes, September 30, 1992, p. 5.
11 Record of Exhibits, p. 15.
12 TSN, supra, p. 8.
13 Ibid., p. 6.
14 Ibid., p. 8.
39

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15 Ibid., pp. 27-28.
31 MEDICINE and LAW, supra.
16 Ibid., pp. 10-14.
32 Abaya, et al. vs. Favis, 3 CA Reports 450, 454-455

[1963].
17 Record of Exhibits, supra.

33 Ibid.
18 TSN, supra, pp. 15-16.
34 10 CA Reports 415 [1966].
35 Ibid., pp. 427-428.
20 TSN, Dr. Bartolome Angeles, October 7, 1992, pp.
10-12.
36 TSN, Dr. Floresto Arizala, January 20, 1993, pp.

43-46.

37 TSN, Dr. Nieto Salvador, Jr., pp. 10-11.
22 Record of Exhibits, p. 5.
38 TSN, Dr. Nieto Salvador, Ibid., pp. 20-21.
23 DECISION, supra, pp. 11-12; Rollo, pp. 64-65.
24 DECISION, supra, p. 4; Rollo, p. 53.1.
39 TSN, Dr. Bu C. Castro, September 28, 1993, pp.

10-13.
25 DECISION, supra, p. 7; Rollo, pp. 47.
41 TSN, Dr. Floresto Arizala, supra, pp. 27-28.
26 MEDICINE and LAW, supra, p. 24.
42 Robert Berkow, The Merck Manual of Diagnosis

and Therapy, 1987, p. 1170.
27 Supra.
43 TSN, Dr. Bu Castro, supra.
28 MEDICINE and LAW, supra, p. 25; Willard vs.
Hutson, 1 ALR 3d 1092, 1102 [1963]; Snyder vs.
Pantaleo, 122 A. 2d 21, 23 [1956].
29 American Jurisprudence 2d, Vol . 61, p. 510.
30 Willard vs. Hutson, supra.
44 TSN, Dr. Bu C. Castro, supra, pp. 13-15.

45 Padilla vs. Court of Appeals, 129 SCRA 558, 565
[1984]; People vs. Jalandoni, 131 SCRA 454 [1984].
46 Q. When you came to know that your mother was
already dead there in the operating room of the San
40

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Pablo District Hospital, how did you feel being the
daughter?
A. I was crying and crying hysterically.
And I asked why it happened to my
mother, sir.
Q. And up to the present time do you
still feel about the loss of your mother?
A. Yes, sir.
Q. How about your sister and brother?
A. Same with me, sir.
Q. Estimated to money value, how
much I cost you and your sister and
brother the lost of your mother?
A. There is no equivalent, sir. (TSN,
Rowena Umali De Ocampo, supra, p.
18.)
41

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G.R. No. 158996

SUPREME COURT
Manila
Candida, Marta, Godofredo, Baltazar and Lucena, all

surnamed Pineda, the sum of P400,000.00 by way of
moral damages;
SECOND DIVISION
2) Ordering the above-named defendant-appellants

to jointly and severally pay the above-named
plaintiff-appellees the sum of P100,000.00 by way of
exemplary damages;
November 14, 2008
SPOUSES FREDELICTO FLORES (deceased) and FELICISIMA

FLORES, petitioners,
vs.
SPOUSES DOMINADOR PINEDA and VIRGINIA SACLOLO, and
FLORENCIO, CANDIDA, MARTA, GODOFREDO, BALTAZAR and
LUCENA, all surnamed PINEDA, as heirs of the deceased
TERESITA S. PINEDA, and UNITED DOCTORS MEDICAL
CENTER, INC., respondents.
DECISION
BRION, J.:
This petition involves a medical negligence case that was elevated
to this Court through an appeal bycertiorari under Rule 45 of the
Rules of Court. The petition assails the Decision1 of the Court of
Appeals (CA) in CA G.R. CV No. 63234, which affirmed with
modification the Decision2 of the Regional Trial Court (RTC) of
Nueva Ecija, Branch 37 in Civil Case No. SD-1233. The dispositive
portion of the assailed CA decision states:
WHEREFORE, premises considered, the assailed Decision of
the Regional Trial Court of Baloc, Sto. Domingo, Nueva Ecija,
Branch 37 is hereby AFFIRMED but with modifications as
follows:
1) Ordering defendant-appellants Dr. and Dra.
Fredelicto A. Flores and the United Doctors Medical
Center, Inc. to jointly and severally pay the plaintiffappellees - heirs of Teresita Pineda, namely, Spouses
Dominador Pineda and Virginia Saclolo and Florencio,
3) Ordering the above-named defendant-appellants

to jointly and severally pay the above-named
plaintiff-appellees the sum of P36,000.00 by way of
actual and compensatory damages; and
4) Deleting the award of attorney's fees and costs of
suit.
SO ORDERED.
While this case essentially involves questions of facts, we opted for
the requested review in light of questions we have on the findings
of negligence below, on the awarded damages and costs, and on
the importance of this type of ruling on medical practice. 3
BACKGROUND FACTS
Teresita Pineda (Teresita) was a 51-year old unmarried woman
living in Sto. Domingo, Nueva Ecija. She consulted on April 17, 1987
her townmate, Dr. Fredelicto Flores, regarding her medical
condition. She complained of general body weakness, loss of
appetite, frequent urination and thirst, and on-and-off vaginal
bleeding. Dr. Fredelicto initially interviewed the patient and asked
for the history of her monthly period to analyze the probable cause
of the vaginal bleeding. He advised her to return the following week
or to go to the United Doctors Medical Center (UDMC) in Quezon
City for a general check-up. As for her other symptoms, he
suspected that Teresita might be suffering from diabetes and told
her to continue her medications.4
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Teresita did not return the next week as advised. However, when
her condition persisted, she went to further consult Dr. Flores at his
UDMC clinic on April 28, 1987, travelling for at least two hours from
Nueva Ecija to Quezon City with her sister, Lucena Pineda. They
arrived at UDMC at around 11:15 a.m.. Lucena later testified that
her sister was then so weak that she had to lie down on the couch
of the clinic while they waited for the doctor. When Dr. Fredelicto
arrived, he did a routine check-up and ordered Teresita's admission
to the hospital. In the admission slip, he directed the hospital staff
to prepare the patient for an "on call" D&C5 operation to be
performed by his wife, Dr. Felicisima Flores (Dr. Felicisima). Teresita
was brought to her hospital room at around 12 noon; the hospital
staff forthwith took her blood and urine samples for the laboratory
tests6 which Dr. Fredelicto ordered.
At 2:40 p.m. of that same day, Teresita was taken to the operating
room. It was only then that she met Dr. Felicisima, an obstetrician
and gynecologist. The two doctors - Dr. Felicisima and Dr.
Fredelicto, conferred on the patient's medical condition, while the
resident physician and the medical intern gave Dr. Felicisima their
own briefings. She also interviewed and conducted an internal
vaginal examination of the patient which lasted for about 15
minutes. Dr. Felicisima thereafter called up the laboratory for the
results of the tests. At that time, only the results for the blood
sugar (BS), uric acid determination, cholesterol determination, and
complete blood count (CBC) were available. Teresita's BS count was
10.67mmol/l7and her CBC was 109g/l.8
Based on these preparations, Dr. Felicisima proceeded with the
D&C operation with Dr. Fredelicto administering the general
anesthesia. The D&C operation lasted for about 10 to 15 minutes.
By 3:40 p.m., Teresita was wheeled back to her room.
A day after the operation (or on April 29, 1987), Teresita was
subjected to an ultrasound examination as a confirmatory
procedure. The results showed that she had an enlarged uterus
and myoma uteri.9 Dr. Felicisima, however, advised Teresita that
she could spend her recovery period at home. Still feeling weak,
Teresita opted for hospital confinement.
Teresita's complete laboratory examination results came only on

that day (April 29, 1987). Teresita's urinalysis showed a three plus
sign (+++) indicating that the sugar in her urine was very high.
She was then placed under the care of Dr. Amado Jorge, an
internist.
By April 30, 1987, Teresita's condition had worsened. She
experienced difficulty in breathing and was rushed to the intensive
care unit. Further tests confirmed that she was suffering
from Diabetes Mellitus Type II.10 Insulin was administered on the
patient, but the medication might have arrived too late. Due to
complications induced by diabetes, Teresita died in the morning of
May 6, 1987.11
Believing that Teresita's death resulted from the negligent handling
of her medical needs, her family (respondents) instituted an action
for damages against Dr. Fredelicto Flores and Dr. Felicisima Flores
(collectively referred to as the petitioner spouses) before the RTC of
Nueva Ecija.
The RTC ruled in favor of Teresita's family and awarded actual,
moral, and exemplary damages, plus attorney's fees and
costs.12 The CA affirmed the judgment, but modified the amount of
damages awarded and deleted the award for attorney's fees and
costs of suit.13
Through this petition for review on certiorari, the petitioner spouses
-Dr. Fredelicto (now deceased) and Dr. Felicisima Flores - allege that
the RTC and CA committed a reversible error in finding them liable
through negligence for the death of Teresita Pineda.
ASSIGNMENT OF ERRORS
The petitioner spouses contend that they exercised due care and
prudence in the performance of their duties as medical
professionals. They had attended to the patient to the best of their
abilities and undertook the management of her case based on her
complaint of an on-and-off vaginal bleeding. In addition, they claim
that nothing on record shows that the death of Teresita could have
43

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been averted had they employed means other than what they had
adopted in the ministration of the patient.
THE COURT'S RULING
We do not find the petition meritorious.
The respondents' claim for damages is predicated on their
allegation that the decision of the petitioner spouses to proceed
with the D&C operation, notwithstanding Teresita's condition and
the laboratory test results, amounted to negligence. On the other
hand, the petitioner spouses contend that a D&C operation is the
proper and accepted procedure to address vaginal bleeding - the
medical problem presented to them. Given that the patient died
after the D&C, the core issue is whether the decision to proceed
with the D&C operation was an honest mistake of judgment or one
amounting to negligence.
Elements of a Medical Negligence Case
A medical negligence case is a type of claim to redress a wrong
committed by a medical professional, that has caused bodily harm
to or the death of a patient. There are four elements involved in a
medical negligence case, namely: duty, breach, injury, and
proximate causation.14
Duty refers to the standard of behavior which imposes restrictions
on one's conduct.15 The standard in turn refers to the amount of
competence associated with the proper discharge of the profession.
A physician is expected to use at least the same level of care that
any other reasonably competent doctor would use under the same
circumstances. Breach of duty occurs when the physician fails to
comply with these professional standards. If injury results to the
patient as a result of this breach, the physician is answerable for
negligence.16
As in any civil action, the burden to prove the existence of the
necessary elements rests with the plaintiff.17 To successfully pursue
a claim, the plaintiff must prove by preponderance of evidence
that,one, the physician either failed to do something which a
reasonably prudent health care provider would have done, or that

he did something that a reasonably prudent provider would not
have done; and two, the failure or action caused injury to the
patient.18 Expert testimony is therefore essential since the factual
issue of whether a physician or surgeon has exercised the requisite
degree of skill and care in the treatment of his patient is generally a
matter of expert opinion.19
Standard of Care and Breach of Duty
D&C is the classic gynecologic procedure for the evaluation and
possible therapeutic treatment for abnormal vaginal
bleeding.20 That this is the recognized procedure is confirmed by
Drs. Salvador Nieto (Dr. Nieto) and Joselito Mercado (Dr. Mercado),
the expert witnesses presented by the respondents:
DR. NIETO: [W]hat I know among obstetricians, if there is
bleeding, they perform what we call D&C for diagnostic
purposes.
xxx xxx xxx
Q: So are you trying to tell the Court that D&C can be a
diagnostic treatment?
A: Yes, sir. Any doctor knows this.21
Dr. Mercado, however, objected with respect to the time the D&C
operation should have been conducted in Teresita's case. He opined
that given the blood sugar level of Teresita, her diabetic condition
should have been addressed first:
Q: Why do you consider the time of performance of the D&C
not appropriate?
A: Because I have read the record and I have seen the
urinalysis, [there is] spillage in the urine, and blood sugar
was 10.67
44

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Q: What is the significance of the spillage in the urine?
A: It is a sign that the blood sugar is very high.
Q: Does it indicate sickness?
A: 80 to 95% it means diabetes mellitus. The blood sugar
was 10.67.
xxx xxx xxx
COURT: In other words, the operation conducted on the
patient, your opinion, that it is inappropriate?
A: The timing of [when] the D&C [was] done, based on the
record, in my personal opinion, that D&C should be
postponed a day or two.22
The petitioner spouses countered that, at the time of the operation,
there was nothing to indicate that Teresita was afflicted with
diabetes: a blood sugar level of 10.67mmol/l did not necessarily
mean that she was a diabetic considering that this was random
blood sugar;23 there were other factors that might have caused
Teresita's blood sugar to rise such as the taking of blood samples
during lunchtime and while patient was being given intra-venous
dextrose.24 Furthermore, they claim that their principal concern was
to determine the cause of and to stop the vaginal bleeding.
The petitioner spouses' contentions, in our view, miss several
points. First, as early as April 17, 1987, Teresita was already
suspected to be suffering from diabetes.25 This suspicion again
arose right beforethe D&C operation on April 28, 1987 when the
laboratory result revealed Teresita's increased blood sugar
level.26 Unfortunately, the petitioner spouses did not wait for the
full medical laboratory results before proceeding with the D&C, a
fact that was never considered in the courts below. Second, the
petitioner spouses were duly advised that the patient was
experiencing general body weakness, loss of appetite, frequent
urination, and thirst - all of which are classic symptoms of
diabetes.27 When a patient exhibits symptoms typical of a particular
disease, these symptoms should, at the very least, alert the

physician of the possibility that the patient may be afflicted with
the suspected disease:
Expert testimony for the plaintiff showed that] tests should have been ordered immediately on
admission to the hospital in view of the symptoms presented, and that failure to recognize the existence
of diabetes constitutes negligence.28
Third, the petitioner spouses cannot claim that their principal

concern was the vaginal bleeding and should not therefore be held
accountable for complications coming from other sources. This is a
very narrow and self-serving view that even reflects on their
competence.
Taken together, we find that reasonable prudence would have
shown that diabetes and its complications were foreseeable harm
that should have been taken into consideration by the petitioner
spouses. If a patient suffers from some disability that
increases the magnitude of risk to him, that disability must
be taken into account so long as it is or should have been
known to the physician.29 And when the patient is exposed to an
increased risk, it is incumbent upon the physician to take
commensurate and adequate precautions.
Taking into account Teresita's high blood sugar,30 Dr. Mendoza
opined that the attending physician should have postponed the
D&C operation in order to conduct a confirmatory test to make a
conclusive diagnosis of diabetes and to refer the case to an
internist or diabetologist. This was corroborated by Dr. Delfin Tan
(Dr. Tan), an obstetrician and gynecologist, who stated that the
patient's diabetes should have been managed by an internist prior
to, during, and after the operation.31
Apart from bleeding as a complication of pregnancy, vaginal
bleeding is only rarely so heavy and life-threatening that urgent
first-aid measures are required.32 Indeed, the expert witnesses
declared that a D&C operation on a hyperglycemic patient may be
justified only when it is an emergency case - when there is profuse
vaginal bleeding. In this case, we choose not to rely on the
assertions of the petitioner spouses that there was profuse
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bleeding, not only because the statements were self-serving, but
also because the petitioner spouses were inconsistent in their
testimonies. Dr. Fredelicto testified earlier that on April 28, he
personally saw the bleeding,33 but later on said that he did not see
it and relied only on Teresita's statement that she was
bleeding.34 He went on to state that he scheduled the D&C
operation without conducting any physical examination on the
patient.
The likely story is that although Teresita experienced vaginal
bleeding on April 28, it was not sufficiently profuse to necessitate
an immediate emergency D&C operation. Dr. Tan35 and Dr.
Mendoza36 both testified that the medical records of Teresita failed
to indicate that there was profuse vaginal bleeding. The claim that
there was profuse vaginal bleeding although this was not reflected
in the medical records strikes us as odd since the main complaint is
vaginal bleeding. A medical record is the only document that
maintains a long-term transcription of patient care and as such, its
maintenance is considered a priority in hospital practice. Optimal
record-keeping includes all patient inter-actions. The records should
always be clear, objective, and up-to-date.37 Thus, a medical record
that does not indicate profuse medical bleeding speaks loudly and
clearly of what it does not contain.
That the D&C operation was conducted principally to diagnose the
cause of the vaginal bleeding further leads us to conclude that it
was merely an elective procedure, not an emergency case. In an
elective procedure, the physician must conduct a thorough preoperative evaluation of the patient in order to adequately prepare
her for the operation and minimize possible risks and
complications. The internist is responsible for generating a
comprehensive evaluation of all medical problems during the preoperative evaluation.38
The aim of pre-operative evaluation is not to screen broadly
for undiagnosed disease, but rather to identify and quantify
comorbidity that may impact on the operative outcome. This
evaluation is driven by findings on history and physical
examination suggestive of organ system dysfunctionThe
goal is to uncover problem areas that may require
further investigation or be amenable to preoperative

optimization.
If the preoperative evaluation uncovers significant
comorbidity or evidence of poor control of an underlying
disease process, consultation with an internist or medical
specialist may be required to facilitate the work-up and
direct management. In this process, communication
between the surgeons and the consultants is essential to
define realistic goals for this optimization process and to
expedite surgical management.39 [Emphasis supplied.]
Significantly, the evidence strongly suggests that the pre-operative
evaluation was less than complete as the laboratory results were
fully reported only on the day following the D&C operation. Dr.
Felicisima only secured a telephone report of the preliminary
laboratory result prior to the D&C. This preliminary report did not
include the 3+ status of sugar in the patient's urine40 - a result
highly confirmatory of diabetes.
Because the D&C was merely an elective procedure, the patient's
uncontrolled hyperglycemia presented a far greater risk than her
on-and-off vaginal bleeding. The presence of hyperglycemia in a
surgical patient is associated with poor clinical outcomes, and
aggressive glycemic control positively impacts on morbidity and
mortality.41 Elective surgery in people with uncontrolled
diabetes should preferably be scheduled after acceptable glycemic
control has been achieved.42 According to Dr. Mercado, this is done
by administering insulin on the patient.43
The management approach in this kind of patients always
includes insulin therapy in combination with dextrose and
potassium infusion. Insulin xxx promotes glucose uptake by
the muscle and fat cells while decreasing glucose production
by the liver xxx. The net effect is to lower blood glucose
levels.44
The prudent move is to address the patient's hyperglycemic state
immediately and promptly before any other procedure is
undertaken. In this case, there was no evidence that insulin was
46

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administered on Teresita prior to or during the D&C operation.
Insulin was only administered two days after the operation.
As Dr. Tan testified, the patient's hyperglycemic condition should
have been managed not only before and during the operation, but
also immediately after. Despite the possibility that Teresita was
afflicted with diabetes, the possibility was casually ignored even in
the post-operative evaluation of the patient; the concern, as the
petitioner spouses expressly admitted, was limited to the complaint
of vaginal bleeding. Interestingly, while the ultrasound test
confirmed that Teresita had a myoma in her uterus, she was
advised that she could be discharged a day after the operation and
that her recovery could take place at home. This advice implied
that a day after the operation and even after the complete
laboratory results were submitted, the petitioner spouses still did
not recognize any post-operative concern that would require the
monitoring of Teresita's condition in the hospital.
The above facts, point only to one conclusion - that the petitioner
spouses failed, as medical professionals, to comply with their duty
to observe the standard of care to be given to
hyperglycemic/diabetic patients undergoing surgery. Whether this
breach of duty was the proximate cause of Teresita's death is a
matter we shall next determine.
hyperglycemic state and caused her untimely demise. The death

certificate of Teresita lists down the following causes of death:
Immediate cause:
Cardiorespiratory arrest
Antecedent cause:
Septicemic
shock,ketoacidocis
Underlying cause:
Diabetes Mellitus II
Other significant conditions
contributing to death:
Renal Failure - Acute47
Injury and Causation

As previously mentioned, the critical and clinching factor in a
medical negligence case is proof of thecausal
connection between the negligence which the evidence
established and the plaintiff's injuries;45the plaintiff must plead and
prove not only that he had been injured and defendant has been at
fault, but also that the defendant's fault caused the injury. A verdict
in a malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a reasonable medical
probability based upon competent expert testimony.46
The respondents contend that unnecessarily subjecting Teresita to
a D&C operation without adequately preparing her, aggravated her
Stress, whether physical or emotional, is a factor that can

aggravate diabetes; a D&C operation is a form of physical stress.
Dr. Mendoza explained how surgical stress can aggravate the
patient's hyperglycemia: when stress occurs, the diabetic's body,
especially the autonomic system, reacts by secreting hormones
which are counter-regulatory; she can have prolonged
hyperglycemia which, if unchecked, could lead to death. 48 Medical
literature further explains that if the blood sugar has become very
high, the patient becomes comatose (diabetic coma). When this
happens over several days, the body uses its own fat to produce
energy, and the result is high levels of waste products (called
ketones) in the blood and urine (called diabetic ketoacidiosis, a
medical emergency with a significant mortality).49 This was
apparently what happened in Teresita's case; in fact, after she had
been referred to the internist Dr. Jorge, laboratory test showed that
47

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her blood sugar level shot up to 14.0mmol/l, way above the normal
blood sugar range. Thus, between the D&C and death was the
diabetic complication that could have been prevented with the
observance of standard medical precautions. The D&C operation
and Teresita's death due to aggravated diabetic condition is
therefore sufficiently established.
The trial court and the appellate court pinned the liability for
Teresita's death on both the petitioner spouses and this Court finds
no reason to rule otherwise. However, we clarify that Dr.
Fredelicto's negligence is not solely the act of ordering an "on call"
D&C operation when he was mainly ananaesthesiologist who had
made a very cursory examination of the patient's vaginal bleeding
complaint. Rather, it was his failure from the very start to identify
and confirm, despite the patient's complaints and his own
suspicions, that diabetes was a risk factor that should be guarded
against, and his participation in the imprudent decision to proceed
with the D&C operation despite his early suspicion and the
confirmatory early laboratory results. The latter point comes out
clearly from the following exchange during the trial:
Q: On what aspect did you and your wife consult [with] each
other?
A: We discussed on the finding of the laboratory [results]
because the hemoglobin was below normal, the blood sugar
was elevated, so that we have to evaluate these laboratory
results - what it means.
Q: So it was you and your wife who made the evaluation
when it was phoned in?
A: Yes, sir.
Q: Did your wife, before performing D&C ask your opinion
whether or not she can proceed?
A: Yes, anyway, she asked me whether we can do D&C
based on my experience.
Q: And your answer was in the positive

notwithstanding the elevation of blood sugar?
A: Yes, sir, it was both our disposition to do the
D&C. [Emphasis supplied.]50
If Dr. Fredelicto believed himself to be incompetent to treat the
diabetes, not being an internist or a diabetologist (for which reason
he referred Teresita to Dr. Jorge),51 he should have likewise refrained
from making a decision to proceed with the D&C operation since he
was niether an obstetrician nor a gynecologist.
These findings lead us to the conclusion that the decision to
proceed with the D&C operation, notwithstanding Teresita's
hyperglycemia and without adequately preparing her for the
procedure, was contrary to the standards observed by the medical
profession. Deviation from this standard amounted to a breach of
duty which resulted in the patient's death. Due to this negligent
conduct, liability must attach to the petitioner spouses.
Liability of the Hospital
In the proceedings below, UDMC was the spouses Flores' codefendant. The RTC found the hospital jointly and severally liable
with the petitioner spouses, which decision the CA affirmed. In a
Resolution dated August 28, 2006, this Court however denied
UDMC's petition for review on certiorari. Since UDMC's appeal has
been denied and they are not parties to this case, we find it
unnecessary to delve on the matter. Consequently, the RTC's
decision, as affirmed by the CA, stands.
Award of Damages
Both the trial and the appellate court awarded actual damages as
compensation for the pecuniary loss the respondents suffered. The
loss was presented in terms of the hospital bills and expenses the
respondents incurred on account of Teresita's confinement and
death. The settled rule is that a plaintiff is entitled to be
compensated for proven pecuniary loss.52 This proof the
respondents successfully presented. Thus, we affirm the award
48

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of actual damages of P36,000.00 representing the hospital
expenses the patient incurred.
In addition to the award for actual damages, the respondent heirs
of Teresita are likewise entitled toP50,000.00 as death
indemnity pursuant to Article 2206 of the Civil Code, which states
that "the amount of damages for death caused by a xxx quasidelict shall be at least three thousand pesos,53even though there
may have been mitigating circumstances xxx." This is a question of
law that the CA missed in its decision and which we now decide in
the respondents' favor.
The same article allows the recovery of moral damages in case of
death caused by a quasi-delict and enumerates the spouse,
legitimate or illegitimate ascendants or descendants as the persons
entitled thereto. Moral damages are designed to compensate the
claimant for the injury suffered, that is, for the mental anguish,
serious anxiety, wounded feelings which the respondents herein
must have surely felt with the unexpected loss of their daughter.
We affirm the appellate court's award of P400,000.00 by way
of moral damages to the respondents.
We similarly affirm the grant of exemplary damages. Exemplary
damages are imposed by way of example or correction for the
public good.54 Because of the petitioner spouses' negligence in
subjecting Teresita to an operation without first recognizing and
addressing her diabetic condition, the appellate court
awarded exemplary damages to the respondents in the amount
of P100,000.00. Public policy requires such imposition to suppress
the wanton acts of an offender.55 We therefore affirm the CA's
award as an example to the medical profession and to stress that
the public good requires stricter measures to avoid the repetition of
the type of medical malpractice that happened in this case.
With the award of exemplary damages, the grant of attorney's fees
is legally in order.56 We therefore reverse the CA decision deleting
these awards, and grant the respondents the amount
of P100,000.00 as attorney's fees taking into consideration the
legal route this case has taken.
WHEREFORE, we AFFIRM the Decision of the CA dated June 20,

2003 in CA G.R. CV No. 63234 finding petitioner spouses liable for
negligent medical practice. We likewise AFFIRM the awards of
actual and compensatory damages of P36,000.00; moral damages
of P400,000.00; and exemplary damages of P100,000.00.
We MODIFY the CA Decision by additionally granting an award
of P50,000.00 as death indemnity and by reversing the deletion of
the award of attorney's fees and costs and restoring the award
ofP100,000.00 as attorney's fees. Costs of litigation are adjudged
against petitioner spouses.
To summarize, the following awards shall be paid to the family of
the late Teresita Pineda:
1. The sum of P36,000.00 by way of actual and compensatory
damages;
2. The sum of P50,000.00 by way of death indemnity;
3. The sum of P400,000.00 by way of moral damages;
4. The sum of P100,000.00 by way of exemplary damages;
5. The sum of P100,000.00 by way of attorney's fees; and
6. Costs.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
49

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2
LEONARDO A. QUISUMBING
Acting Chief Justice
Chairperson
CONCHITA CARPIO MORALES

Associate Justice
DANTE O. TINGA
Associate Justice
PRESBITERO J. VELASCO, JR.

Associate Justice
Dated September 21, 1998, and penned by Judge Lauro

Sandoval; id., pp. 66-97.
3
See: Dela Cruz v. CA and People of the Philippines,| G.R.

NO. 105213, December 4, 1996, 265 SCRA 299; Valenzuela
v. CA, G.R. No. 115024, February 7, 1996, 253 SCRA 303.
4
TSN, January 14, 1992, pp. 5-8.
"D&C" refers to dilatation and curettage, an operation

in which the cervix of the uterus is expanded, using an
instrument called dilator, and the lining (endometrium) of
the uterus is lightly scraped with a curet (The Bantam
Medical Dictionary, 5th ed., p. 192).
6
The laboratory tests conducted were for complete blood

count, urinalysis, stool examination, blood sugar
examination, BUN determination, uric acid determination,
and cholesterol determination; rollo, p. 12.
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the
Division Chairperson's Attestation, it is hereby certified that the
conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the
Court's Division.
Acting Chief Justice
"mmol/l" refers to millimoles per liter of blood; the

normal fasting blood sugar is between 3.9 to
6.05mmol/l; infra note 19.
8
"g/l" refers to grams per liter of blood; the normal CBC

count is 120 to 170 g/l.
9
Myoma of the uterus; myoma is a benign tumor of muscle

(The Bantam Medical Dictionary, 5thed., p. 437).
10
Footnotes
1
Dated June 30, 2003 and penned by Justice Bienvenido

Reyes, Jr., with Associate Justice Salvador Valdez and
Associate Justice Danilo Pine, concurring; rollo, pp. 43-65.
Diabetes is a condition where the cells of the body

cannot metabolize sugar properly due to a total or relative
lack of insulin. The body then breaks down its own fat,
proteins, and glycogen to produce sugar, resulting in high
sugar levels in the blood (otherwise known
as hyperglycemia,infra note 26), with excess by-products
called ketones being produced by the liver. (Dr. Gordon
French, Clinical Management of Diabetes Mellitus During
Anesthesia and
50

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Surgery,http://www.nda.ox.ac.uk/wfsa/html/u11/u1113_01.ht
m, last visited September 21, 2008).
11
Records, Volume II, Exhibit"B" (Death Certificate); TSN,

July 12, 1988, pp. 5-8.
has fasted for at least 8 hours. The current criteria for the
diagnosis of diabetes mellitus emphasize that fasting
blood glucose is the most reliable and convenient
test for identifying diabetes in asymptomatic
individual. (Harrison's Principles of Internal Medicine,
17th ed., p. 2277)
12
The amount of P36,000.00 by way of actual and

compensatory damages; P1,000,000.00 by way of moral
damages; P500,000.00 by way of exemplary
damages; P30,000.00 by way of attorney's fees,
plus P1,000.00 fee per appearance; rollo, p. 97
13
Supra note 1.
14
Reyes v. Sisters of Mercy Hospital, G.R. No. 130547,

October 3, 2000, 341 SCRA 760.
15
Martin, C.R.A., Law Relating to Medical

Malpractice (2nd ed.), p. 361.
16
61 Am. Jur. 2d 200.
17
REVISED RULES OF COURT, Rule 133, Section 1.
18
Professional Services, Inc. v. Agana, G.R. No. 126297,

January 31, 2007, 513 SCRA 478.
19

October 3, 2000, 341 SCRA 760.
20
21
22
24
TSN, March 5, 1992, p. 5; TSN, February 16, 1993, pp. 1718.

25
TSN, February 28, 1989, p. 20; TSN, March 5, 1992, pp.

17, 20.
26
TSN, September 27, 1994, p. 26; TSN, December 10,

1992, p. 8; TSN, February 28, 1989, p. 36.
27
TSN, September 18, 1990, p. 6; Harrison's Principles of

Internal Medicine (17th ed.), p. 2277.
28
Solis, P., Medical Jurisprudence (1980 ed.), p. 141,

citing Hill v. Stewart, 209 So 2d 809 Miss 1968.
29
30
High blood sugar is also known as hyperglycemia. It

refers to a condition where there is excessive glucose in the
bloodstream (that is, fasting blood sugar level > 6 mmol/l)
due to insufficient insulin in blood and excessive
carbohydrate intake; untreated, it may lead to diabetic
coma. (The Bantam Medical Dictionary, 5th ed., p. 322)
Sabiston Textbook of Surgery (17th ed.), pp. 2255-2256.
31
TSN, June 23, 1989, p. 31.
32
TSN, September 18, 1990, pp. 2-4.
[23] Random blood sugar is defined without regard as to

last meal, as distinguished from fasting blood
sugar where the blood sample has been taken after patient
Winfield and Jolowicz, On Tort (15th ed.), p. 181.
TSN, August 14, 1991, pp. 81-82.
Oxford Textbook of Surgery (2nd ed.), Section 36.1 on

Acute Vaginal Bleeding.
33
TSN, January 14, 1992, p 33.
34
TSN, December 10, 1992, p. 3.
51

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35
TSN, August 14, 1991, pp. 57-58.
36
TSN, October 18, 1990, p. 23.
37
Schwartz's Manual of Surgery (8th ed.), pp. 246-147.
38
Kelly's Textbook of Internal Medicine (4th ed.), Chapter 25

on Pre-operative Medical Evaluation.
Sabiston Textbook of Surgery (17th ed.), p. 222, supra note
20.
49
Gordon French, MD, Clinical Management of Diabetes

Mellitus During Anesthesia and
Surgery, http://www.nda.ox.ac.uk/wfsa/html/u11/u1113_01.h
tm, last visited September 21, 2008; Diabetic ketoacidosis is
acute, life-threatening, metabolic acidosis that represents
the most extreme result of uncontrolled diabetes
mellitus, Kelly's Textbook on Internal Medicine (4th ed.),
Chapter 411 on Diabetic Ketoacidosis, etc.
50
TSN, February 16, 1993, pp. 41-42.
51
TSN, March 5, 1992, p. 9.
52
CIVIL CODE, Article 2199.
39
40
TSN, January 14, 1992, p. 19.
41
Gordon French, MD, Clinical Management of Diabetes

Mellitus During Anesthesia and
Surgery, http://www.nda.ox.ac.uk/wfsa/html/u11/u1113_01.h
tm, last visited September 21, 2008.
53
The amount has been increased to P50,000.00 according

to jurisprudence.
54
CIVIL CODE, Article 2229.
42
Samuel Dagogo-Jack, MD and K. George M.M.

Alberti, Management of Diabetes Mellitus in Surgical
Patients, http://spectrum.diabetesjournals.org/cgi/content/ful
l/15/1/44, last visited September 21, 2008.
43
55
Civil Aeronautics Administration v. CA, G.R. L-51806,

November 8, 1988, 167 SCRA 28.
56
CIVIL CODE, Article 2208 (2).
44
Raymond A. Plodkowski, MD and Steven V.

Edelman, MD, Pre-Surgical Evaluation of Diabetic
Patients, http://clinical.diabetesjournals.org/cgi/conten
t/full/19/2/92, last visited September 21, 2008.
45
61 Am. Jur. 359, p. 527.
46
61 Am. Jur. 2d 359.
47
Records, Volume II, Exh. "B."
48
TSN, August 7, 1990, pp. 6-8.
52

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G.R. No. 192123

SUPREME COURT
Manila
coma.8 His coma lasted for two weeks,9 but he regained

consciousness only after a month.10 He could no longer see, hear or
move.11
FIRST DIVISION
Agitated by her sons helpless and unexpected condition, Ma. Luz

Gercayo (Luz) lodged a complaint for reckless imprudence resulting
in serious physical injuries with the City Prosecutors Office of
Manila against the attending physicians.12
March 10, 2014
DR. FERNANDO P. SOLIDUM, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
This appeal is taken by a physician-anesthesiologist who has been
pronounced guilty of reckless imprudence resulting in serious
physical injuries by the Regional Trial Court (RTC) and the Court of
Appeals (CA). He had been part of the team of anesthesiologists
during the surgical pull-through operation conducted on a threeyear old patient born with an imperforate anus. 1
The antecedents are as follows:
Gerald Albert Gercayo (Gerald) was born on June 2, 1992 2 with an
imperforate anus. Two days after his birth, Gerald underwent
colostomy, a surgical procedure to bring one end of the large
intestine out through the abdominal wall,3 enabling him to excrete
through a colostomy bag attached to the side of his body. 4
Upon a finding of probable cause, the City Prosecutors Office filed

an information solely against Dr. Solidum,13alleging:
That on or about May 17, 1995, in the City of Manila, Philippines,
the said accused, being then an anesthesiologist at the Ospital ng
Maynila, Malate, this City, and as such was tasked to administer the
anesthesia on three-year old baby boy GERALD ALBERT GERCAYO,
represented by his mother, MA. LUZ GERCAYO, the former having
been born with an imperforate anus [no anal opening] and was to
undergo an operation for anal opening [pull through operation], did
then and there willfully, unlawfully and feloniously fail and neglect
to use the care and diligence as the best of his judgment would
dictate under said circumstance, by failing to monitor and regulate
properly the levels of anesthesia administered to said GERALD
ALBERT GERCAYO and using 100% halothane and other anesthetic
medications, causing as a consequence of his said carelessness
and negligence, said GERALD ALBERT GERCAYO suffered a cardiac
arrest and consequently a defect called hypoxic encephalopathy
meaning insufficient oxygen supply in the brain, thereby rendering
said GERALD ALBERT GERCAYO incapable of moving his body,
seeing, speaking or hearing, to his damage and prejudice.
Contrary to law.14
On May 17, 1995, Gerald, then three years old, was admitted at the
Ospital ng Maynila for a pull-through operation.5 Dr. Leandro
Resurreccion headed the surgical team, and was assisted by Dr.
Joselito Luceo, Dr. Donatella Valea and Dr. Joseph Tibio. The
anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and
petitioner Dr. Fernando Solidum (Dr. Solidum). 6 During the
operation, Gerald experienced bradycardia,7 and went into a
The case was initially filed in the Metropolitan Trial Court of Manila,
but was transferred to the RTC pursuant to Section 5 of Republic Act
No. 8369 (The Family Courts Act of 1997),15 where it was docketed
as Criminal Case No. 01-190889.
Judgment of the RTC
53

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On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum
guilty beyond reasonable doubt of reckless imprudence resulting to
serious physical injuries,16 decreeing:
On January 20, 2010, the CA affirmed the conviction of Dr.

Solidum,20 pertinently stating and ruling:
The case appears to be a textbook example of res ipsa loquitur.
WHEREFORE, premises considered, the Court finds accused DR.

FERNANDO P. SOLIDUM GUILTY beyond reasonable doubt as
principal of the crime charged and is hereby sentenced to suffer the
indeterminate penalty of TWO (2) MONTHS and ONE (1) DAY of
arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH and
TEN (10) DAYS of prision correccional as maximum and to
indemnify, jointly and severally with the Ospital ng Maynila, Dr.
Anita So and Dr. Marichu Abella, private complainant Luz Gercayo,
the amount of P500,000.00 as moral damages and P100,000.00 as
exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional
liberty is hereby CANCELLED.
SO ORDERED.17
Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider
their solidary liability,18 the RTC excluded them from solidary
liability as to the damages, modifying its decision as follows:
WHEREFORE, premises considered, the Court finds accused Dr.
Fernando Solidum, guilty beyond reasonable doubt as principal of
the crime charged and is hereby sentenced to suffer the
indeterminate penalty of two (2) months and one (1) day of arresto
mayor as minimum to one (1) year, one (1) month and ten (10)
days of prision correccional as maximum and to indemnify jointly
and severally with Ospital ng Maynila, private complainant Luz
Gercayo the amount of P500,000.00 as moral damages
and P100,000 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional
liberty is hereby cancelled.19
Decision of the CA
xxxx
x x x [P]rior to the operation, the child was evaluated and found fit
to undergo a major operation. As noted by the OSG, the accused
himself testified that pre-operation tests were conducted to ensure
that the child could withstand the surgery. Except for his
imperforate anus, the child was healthy. The tests and other
procedures failed to reveal that he was suffering from any known
ailment or disability that could turn into a significant risk. There
was not a hint that the nature of the operation itself was a
causative factor in the events that finally led to hypoxia.
In short, the lower court has been left with no reasonable
hypothesis except to attribute the accident to a failure in the proper
administration of anesthesia, the gravamen of the charge in this
case. The High Court elucidates in Ramos vs. Court of Appeals 321
SCRA 584
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. When the doctrine is
appropriate, all that the patient must do is prove a nexus between
the particular act or omission complained of and the injury
sustained while under the custody and management of the
defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed
54

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because there is no other way, under usual and ordinary conditions,
by which the patient can obtain redress for injury suffered by him.
The lower court has found that such a nexus exists between the act
complained of and the injury sustained, and in line with the
hornbook rules on evidence, we will afford the factual findings of a
trial court the respect they deserve in the absence of a showing of
arbitrariness or disregard of material facts that might affect the
disposition of the case. People v. Paraiso 349 SCRA 335.
The res ipsa loquitur test has been known to be applied in criminal
cases. Although it creates a presumption of negligence, it need not
offend due process, as long as the accused is afforded the
opportunity to go forward with his own evidence and prove that he
has no criminal intent. It is in this light not inconsistent with the
constitutional presumption of innocence of an accused.
IN VIEW OF THE FOREGOING, the modified decision of the lower
court is affirmed.
SO ORDERED.21
Dr. Solidum filed a motion for reconsideration, but the CA denied
his motion on May 7, 2010.22
Hence, this appeal.
Issues
Dr. Solidum avers that:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING
THE DECISION OF THE LOWER COURT IN UPHOLDING THE
PETITIONERS CONVICTION FOR THE CRIME CHARGED
BASED ON THE TRIAL COURTS OPINION, AND NOT ON THE
BASIS OF THE FACTS ESTABLISHED DURING THE TRIAL.
ALSO, THERE IS A CLEAR MISAPPREHENSION OF FACTS
WHICH IF CORRECTED, WILL RESULT TO THE ACQUITTAL OF

THE PETITIONER. FURTHER, THE HONORABLE COURT ERRED
IN AFFIRMING THE SAID DECISION OF THE LOWER COURT,
AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE
PROSECUTION MUST PROVE THE ALLEGATIONS OF THE
INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON
THE BASIS OF ITS PRESUMPTIVE CONCLUSION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING
THE PRINCIPLE OF RES IPSA LOQUITOR (sic) WHEN THE
DEFENSE WAS ABLE TO PROVE THAT THERE IS NO
NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO
OVERDOSING IN THE APPLICATION OF THE ANESTHETIC
AGENT BECAUSE THERE WAS NO 100% HALOTHANE
ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%)
PERCENT AND THE APPLICATION THEREOF, WAS REGULATED
BY AN ANESTHESIA MACHINE. THUS, THE APPLICATION OF
THE PRINCIPLE OF RES IPSA LOQUITOR (sic) CONTRADICTED
THE ESTABLISHED FACTS AND THE LAW APPLICABLE IN THE
CASE.
III.
THE AWARD OF MORAL DAMAGES AND EXEMPLARY
DAMAGES IS NOT JUSTIFIED THERE BEING NO NEGLIGENCE
ON THE PART OF THE PETITIONER. ASSUMING THAT THE
CHILD IS ENTITLED TO FINANCIAL CONSIDERATION, IT
SHOULD BE ONLY AS A FINANCIAL ASSISTANCE, BECAUSE
THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF
ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO
EXCESSIVE, AND NO FACTUAL AND LEGAL BASIS.23
To simplify, the following are the issues for resolution, namely: (a)
whether or not the doctrine of res ipsa loquitur was applicable
herein; and (b) whether or not Dr. Solidum was liable for criminal
negligence.
Ruling
55

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The appeal is meritorious.
Applicability of the Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as "the thing or the
transaction speaks for itself." The doctrine res ipsa loquitur means
that "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."24 It is simply "a recognition of the
postulate that, as a matter of common knowledge and experience,
the very nature of certain types of occurrences may justify an
inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some
explanation by the defendant who is charged with negligence. It is
grounded in the superior logic of ordinary human experience and
on the basis of such experience or common knowledge, negligence
may be deduced from the mere occurrence of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with the doctrine
of common knowledge."25
Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule
of substantive law, but merely a mode of proof or a mere
procedural convenience. The doctrine, 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
against 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.27
The applicability of the doctrine of res ipsa loquitur in medical
negligence cases was significantly and exhaustively explained in
Ramos v. Court of Appeals,28 where the Court said
Medical malpractice cases do not escape the application of this

doctrine. Thus, res ipsa loquitur has been applied when the
circumstances attendant upon the harm are themselves of such a
character as to justify an inference of negligence as the cause of
that harm. The application of res ipsa loquitur in medical
negligence cases presents a question of law since it is a judicial
function to determine whether a certain set of circumstances does,
as a matter of law, permit a given inference.
Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a negligent act
or that he has deviated from the standard medical procedure, when
the doctrine of res ipsa loquitur is availed by the plaintiff, the need
for expert medical testimony is dispensed with because the injury
itself provides the proof of negligence. The reason is that the
general rule on the necessity of expert testimony applies only to
such matters clearly within the domain of medical science, and not
to matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the facts.
Ordinarily, only physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been treated or
operated upon with a reasonable degree of skill and care. However,
testimony as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions which are
observable by any one may be given by non-expert witnesses.
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. When the doctrine
is appropriate, all that the patient must do is prove a nexus
between the particular act or omission complained of and the injury
sustained while under the custody and management of the
defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed
56

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because there is no other way, under usual and ordinary conditions,
by which the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the
following situations: leaving of a foreign object in the body of the
patient after an operation, injuries sustained on a healthy part of
the body which was not under, or in the area, of treatment, removal
of the wrong part of the body when another part was intended,
knocking out a tooth while a patients jaw was under anesthetic for
the removal of his tonsils, and loss of an eye while the patient
plaintiff was under the influence of anesthetic, during or following
an operation for appendicitis, among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur
has been measurably enlarged, it does not automatically apply to
all cases of medical negligence as to mechanically shift the burden
of proof to the defendant to show that he is not guilty of the
ascribed negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases where a
layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not
as such as would ordinarily have followed if due care had been
exercised. A distinction must be made between the failure to secure
results, and the occurrence of something more unusual and not
ordinarily found if the service or treatment rendered followed the
usual procedure of those skilled in that particular practice. It must
be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves
the merits of a diagnosis or of a scientific treatment. The physician
or surgeon is not required at his peril to explain why any particular
diagnosis was not correct, or why any particular scientific treatment
did not produce the desired result. Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the
desired result of an operation or treatment was not accomplished.
The real question, therefore, is whether or not in the process of the
operation any extraordinary incident or unusual event outside of
the routine performance occurred which is beyond the regular
scope of customary professional activity in such operations, which,
if unexplained would themselves reasonably speak to the average
man as the negligent cause or causes of the untoward

consequence. If there was such extraneous intervention, the
doctrine of res ipsa loquitur may be utilized and the defendant is
called upon to explain the matter, by evidence of exculpation, if he
could.
In order to allow resort to the doctrine, therefore, the following
essential requisites must first be satisfied, to wit: (1) the accident
was of a kind that does not ordinarily occur unless someone is
negligent; (2) the instrumentality or agency that caused the injury
was under the exclusive control of the person charged; and (3) the
injury suffered must not have been due to any voluntary action or
contribution of the person injured.29
The Court considers the application here of the doctrine of res ipsa
loquitur inappropriate. Although it should be conceded without
difficulty that the second and third elements were present,
considering that the anesthetic agent and the instruments were
exclusively within the control of Dr. Solidum, and that the patient,
being then unconscious during the operation, could not have been
guilty of contributory negligence, the first element was undeniably
wanting. Luz delivered Gerald to the care, custody and control of
his physicians for a pull-through operation. Except for the
imperforate anus, Gerald was then of sound body and mind at the
time of his submission to the physicians. Yet, he experienced
bradycardia during the operation, causing loss of his senses and
rendering him immobile. Hypoxia, or the insufficiency of oxygen
supply to the brain that caused the slowing of the heart rate,
scientifically termed as bradycardia, would not ordinarily occur in
the process of a pull-through operation, or during the
administration of anesthesia to the patient, but such fact alone did
not prove that the negligence of any of his attending physicians,
including the anesthesiologists, had caused the injury. In fact, the
anesthesiologists attending to him had sensed in the course of the
operation that the lack of oxygen could have been triggered by the
vago-vagal reflex, prompting them to administer atropine to the
patient.30
This conclusion is not unprecedented. It was similarly reached in
Swanson v. Brigham,31 relevant portions of the decision therein
being as follows:
57

Tin Simbran
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall
Swanson to a hospital for the treatment of infectious
mononucleosis. The patient's symptoms had included a swollen
throat and some breathing difficulty. Early in the morning of January
9 the patient was restless, and at 1:30 a.m. Dr. Brigham examined
the patient. His inspection of the patient's air passage revealed that
it was in satisfactory condition. At 4:15 a.m. Dr. Brigham received a
telephone call from the hospital, advising him that the patient was
having respiratory difficulty. The doctor ordered that oxygen be
administered and he prepared to leave for the hospital. Ten minutes
later, 4:25 a.m., the hospital called a second time to advise the
doctor that the patient was not responding. The doctor ordered that
a medicine be administered, and he departed for the hospital.
When he arrived, the physician who had been on call at the hospital
had begun attempts to revive the patient. Dr. Brigham joined him in
the effort, but the patient died.
The doctor who performed the autopsy concluded that the patient
died between 4:25 a.m. and 4:30 a.m. of asphyxia, as a result of a
sudden, acute closing of the air passage. He also found that the air
passage had been adequate to maintain life up to 2 or 3 minutes
prior to death. He did not know what caused the air passage to
suddenly close.
xxxx
It is a rare occurrence when someone admitted to a hospital for the
treatment of infectious mononucleosis dies of asphyxiation. But
that is not sufficient to invoke res ipsa loquitur. The fact that the
injury rarely occurs does not in itself prove that the injury was
probably caused by someone's negligence. Mason v. Ellsworth, 3
Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad result by itself
enough to warrant the application of the doctrine. Nelson v.
Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser, The
Negligence Case Res Ipsa Loquitur 24:10 (1972). The evidence
presented is insufficient to establish the first element necessary for
application of res ipsa loquitur doctrine. The acute closing of the
patients air passage and his resultant asphyxiation took place over
a very short period of time. Under these circumstances it would not
be reasonable to infer that the physician was negligent. There was
no palpably negligent act. The common experience of mankind
does not suggest that death would not be expected without

negligence. And there is no expert medical testimony to create an
inference that negligence caused the injury.
Negligence of Dr. Solidum
In view of the inapplicability of the doctrine of res ipsa loquitur, the
Court next determines whether the CA correctly affirmed the
conviction of Dr. Solidum for criminal negligence.
Negligence is defined as the failure to observe for the protection of
the interests of another person that degree of care, precaution, and
vigilance that the circumstances justly demand, whereby such
other person suffers injury.32Reckless imprudence, on the other
hand, 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.33
Dr. Solidums conviction by the RTC was primarily based on his
failure to monitor and properly regulate the level of anesthetic
agent administered on Gerald by overdosing at 100% halothane. In
affirming the conviction, the CA observed:
On the witness stand, Dr. Vertido made a significant turnaround. He
affirmed the findings and conclusions in his report except for an
observation which, to all intents and purposes, has become the
storm center of this dispute. He wanted to correct one piece of
information regarding the dosage of the anesthetic agent
administered to the child. He declared that he made a mistake in
reporting a 100% halothane and said that based on the records it
should have been 100% oxygen.
The records he was relying on, as he explains, are the following:
(a) the anesthesia record A portion of the chart in the
record was marked as Exhibit 1-A and 1-B to indicate the
administration at intervals of the anesthetic agent.
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(b) the clinical abstract A portion of this record that reads
as follows was marked Exhibit 3A. 3B Approximately 1 hour
and 45 minutes through the operation, patient was noted to
have bradycardia (CR = 70) and ATSO4 0.2 mg was
immediately administered. However, the bradycardia
persisted, the inhalational agent was shut off, and the
patient was ventilated with 100% oxygen and another dose
of ATSO4 0.2 mg was given. However, the patient did not
respond until no cardiac rate can be auscultated and the
surgeons were immediately told to stop the operation. The
patient was put on a supine position and CPR was initiated.
Patient was given 1 amp of epinephrine initially while
continuously doing cardiac massage still with no cardiac
rate appreciated; another ampule of epinephrine was given
and after 45 secs, patients vital signs returned to normal.
The entire resuscitation lasted approximately 3-5 mins. The
surgeons were then told to proceed to the closure and the
childs vital signs throughout and until the end of surgery
were: BP = 110/70; CR = 116/min and RR = 20-22
cycles/min (on assisted ventilation).
Dr. Vertido points to the crucial passage in the clinical abstract that
the patient was ventilated with 100% oxygen and another dose of
ATSO4 when the bradycardia persisted, but for one reason or
another, he read it as 100% halothane. He was asked to read the
anesthesia record on the percentage of the dosage indicated, but
he could only sheepishly note I cant understand the number. There
are no clues in the clinical abstract on the quantity of the
anesthetic agent used. It only contains the information that the
anesthetic plan was to put the patient under general anesthesia
using a nonrebreathing system with halothane as the sole
anesthetic agent and that 1 hour and 45 minutes after the
operation began, bradycardia occurred after which the inhalational
agent was shut off and the patient administered with 100% oxygen.
It would be apparent that the 100% oxygen that Dr. Vertido said
should be read in lieu of 100% halothane was the pure oxygen
introduced after something went amiss in the operation and the
halothane itself was reduced or shut off.
The key question remains what was the quantity of halothane
used before bradycardia set in?
The implication of Dr. Vertidos admission is that there was no

overdose of the anesthetic agent, and the accused Dr. Solidum
stakes his liberty and reputation on this conclusion. He made the
assurance that he gave his patient the utmost medical care, never
leaving the operating room except for a few minutes to answer the
call of nature but leaving behind the other members of his team
Drs. Abella and Razon to monitor the operation. He insisted that he
administered only a point 1% not 100% halothane, receiving
corroboration from Dr. Abella whose initial MA in the record should
be enough to show that she assisted in the operation and was
therefore conversant of the things that happened. She revealed
that they were using a machine that closely monitored the
concentration of the agent during the operation.
But most compelling is Dr. Solidums interpretation of the
anesthesia record itself, as he takes the bull by the horns, so to
speak. In his affidavit, he says, reading from the record, that the
quantity of halothane used in the operation is one percent (1%)
delivered at time intervals of 15 minutes. He studiedly mentions
the concentration of halothane as reflected in the anesthesia record
(Annex D of the complaint-affidavit) is only one percent (1%) The
numbers indicated in 15 minute increments for halothane is an
indication that only 1% halothane is being delivered to the patient
Gerard Gercayo for his entire operation; The amount of halothane
delivered in this case which is only one percent cannot be
summated because halothane is constantly being rapidly
eliminated by the body during the entire operation.
xxxx
In finding the accused guilty, despite these explanations, the RTC
argued that the volte-face of Dr. Vertido on the question of the
dosage of the anesthetic used on the child would not really validate
the non-guilt of the anesthesiologist. Led to agree that the
halothane used was not 100% as initially believed, he was
nonetheless unaware of the implications of the change in his
testimony. The court observed that Dr. Vertido had described the
condition of the child as hypoxia which is deprivation of oxygen, a
diagnosis supported by the results of the CT Scan. All the
symptoms attributed to a failing central nervous system such as
stupor, loss of consciousness, decrease in heart rate, loss of usual
59

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acuity and abnormal motor function, are manifestations of this
condition or syndrome. But why would there be deprivation of
oxygen if 100% oxygen to 1% halothane was used? Ultimately, to
the court, whether oxygen or halothane was the object of mistake,
the detrimental effects of the operation are incontestable, and they
can only be led to one conclusion if the application of anesthesia
was really closely monitored, the event could not have happened. 34
The Prosecution did not prove the elements of reckless imprudence
beyond reasonable doubt because the circumstances cited by the
CA were insufficient to establish that Dr. Solidum had been guilty of
inexcusable lack of precaution in monitoring the administration of
the anesthetic agent to Gerald. The Court aptly explained in Cruz v.
Court of Appeals35 that:
Whether or not a physician has committed an "inexcusable lack of
precaution" in the treatment of his 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 recent
case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court
stated that in accepting a case, a doctor in effect represents that,
having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training,
care and skill in the treatment of his patients. He therefore has a
duty to use at least the same level of care that any other
the same circumstances. It is in this aspect of medical malpractice
that expert testimony is essential to establish not only the standard
of care of the profession but also that the physician's conduct in the
treatment and care falls below such standard. Further, inasmuch as
the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been
recognized that expert testimony is usually necessary to support
the conclusion as to causation.
xxxx
burden of establishing appellant's negligence and for a reasonable
conclusion of negligence, there must be proof of breach of duty on

the part of the surgeon as well as a causal connection of such
breach and the resulting death of his patient. In Chan Lugay v. St
Luke's Hospital, Inc., where the attending physician was absolved of
liability for the death of the complainants wife and newborn baby,
this Court held that:
"In order that there may be a recovery for an injury, however, it
must be shown that the injury for which recovery is sought must
be the legitimate consequence of the wrong done; the connection
between the negligence and the injury must be a direct and natural
sequence of events, unbroken by intervening efficient causes. In
other words, the negligence must be the proximate cause of the
injury. For, negligence, no matter in what it consists, cannot create
a right of action unless it is the proximate cause of the injury
complained of. And 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."
An action upon medical negligence whether criminal, civil or
administrative calls for the plaintiff to prove by competent
evidence each of the following four elements, namely: (a) the duty
owed by the physician to the patient, as created by the physicianpatient relationship, to act in accordance with the specific norms or
standards established by his profession; (b) the breach of the duty
by the physicians failing to act in accordance with the applicable
standard of care; (3) the causation, i.e., there must be a reasonably
close and causal connection between the negligent act or omission
and the resulting injury; and (4) the damages suffered by the
patient.36
In the medical profession, specific norms or standards to protect
the patient against unreasonable risk, commonly referred to as
standards of care, set the duty of the physician to act in respect of
the patient. Unfortunately, no clear definition of the duty of a
particular physician in a particular case exists. Because most
medical malpractice cases are highly technical, witnesses with
special medical qualifications must provide guidance by giving the
knowledge necessary to render a fair and just verdict. As a result,
the standard of medical care of a prudent physician must be
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determined from expert testimony in most cases; and in the case of
a specialist (like an anesthesiologist), the standard of care by which
the specialist is judged is the care and skill commonly possessed
and exercised by similar specialists under similar circumstances.
The specialty standard of care may be higher than that required of
the general practitioner.37
The standard of care is an objective standard by which the conduct
of a physician sued for negligence or malpractice may be
measured, and it does not depend, therefore, on any individual
physicians own knowledge either. In attempting to fix a standard
by which a court may determine whether the physician has
properly performed the requisite duty toward the patient, expert
medical testimony from both plaintiff and defense experts is
required. The judge, as the trier of fact, ultimately determines the
standard of care, after listening to the testimony of all medical
experts.38
Here, the Prosecution presented no witnesses with special medical
qualifications in anesthesia to provide guidance to the trial court on
what standard of care was applicable. It would consequently be
truly difficult, if not impossible, to determine whether the first three
elements of a negligence and malpractice action were attendant.
Although the Prosecution presented Dr. Benigno Sulit, Jr., an
anesthesiologist himself who served as the Chairman of the
Committee on Ethics and Malpractice of the Philippine Society of
Anesthesiologists that investigated the complaint against Dr.
Solidum, his testimony mainly focused on how his Committee had
conducted the investigation.39 Even then, the report of his
Committee was favorable to Dr. Solidum,40 to wit:
Presented for review by this committee is the case of a 3 year old
male who underwent a pull-thru operation and was administered
general anesthesia by a team of anesthesia residents. The patient,
at the time when the surgeons was manipulating the recto-sigmoid
and pulling it down in preparation for the anastomosis, had
bradycardia. The anesthesiologists, sensing that the cause thereof
was the triggering of the vago-vagal reflex, administered atropine
to block it but despite the administration of the drug in two doses,
cardiac arrest ensued. As the records show, prompt resuscitative
measures were administered and spontaneous cardiac function reestablished in less than five (5) minutes and that oxygen was
continuously being administered throughout, unfortunately, as later
become manifest, patient suffered permanent irreversible brain
damage.
In view of the actuations of the anaesthesiologists and the
administration of anaesthesia, the committee find that the same
were all in accordance with the universally accepted standards of
medical care and there is no evidence of any fault or negligence on
the part of the anaesthesiologists.
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National
Bureau of Investigation, was also presented as a Prosecution
witness, but his testimony concentrated on the results of the
physical examination he had conducted on Gerald, as borne out by
the following portions of his direct examination, to wit:
FISCAL CABARON Doctor, what do you mean by General Anesthetic
Agent?
WITNESS General Anesthetic Agent is a substance used in the
conduction of Anesthesia and in this case, halothane was used as a
sole anesthetic agent.
xxxx
Q Now under paragraph two of page 1 of your report you
mentioned that after one hour and 45 minutes after the operation,
the patient experienced a bradycardia or slowing of heart rate, now
as a doctor, would you be able to tell this Honorable Court as to
what cause of the slowing of heart rate as to Gerald Gercayo?
WITNESS Well honestly sir, I cannot give you the reason why there
was a bradycardia of time because is some reason one way or
another that might caused bradycardia.
FISCAL CABARON What could be the possible reason?
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A Well bradycardia can be caused by anesthetic agent itself and
that is a possibility, were talking about possibility here.
On cross-examination, Dr. Vertido expounded more specifically on

his interpretation of the anesthesia record and the factors that
could have caused Gerald to experience bradycardia, viz:
Q What other possibility do you have in mind, doctor?

A Well, because it was an operation, anything can happen within
that situation.
ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will
you kindly read to this Honorable court your last paragraph and if
you will affirm that as if it is correct?
FISCAL CABARON Now, this representation would like to ask you

about the slowing of heart rate, now what is the immediate cause
of the slowing of the heart rate of a person?
A "The use of General Anesthesia, that is using 100% Halothane

probably will be contributory to the production of Hypoxia and - - -"
WITNESS Well, one of the more practical reason why there is

slowing of the heart rate is when you do a vagal reflex in the neck
wherein the vagal receptors are located at the lateral part of the
neck, when you press that, you produce the slowing of the heart
rate that produce bradycardia.
ATTY COMIA And do you affirm the figure you mentioned in this
Court Doctor?
WITNESS Based on the records, I know the - - Q 100%?
Q I am pro[p]ounding to you another question doctor, what about

the deficiency in the supply of oxygen by the patient, would that
also cause the slowing of the heart rate?
A 100% based on the records.
A Well that is a possibility sir, I mean not as slowing of the heart

rate, if there is a hypoxia or there is a low oxygen level in the blood,
the normal thing for the heart is to pump or to do not a bradycardia
but a to counter act the Hypoxia that is being experienced by the
patient
Q I will show you doctor a clinical record. I am a lawyer I am not a

doctor but will you kindly look at this and tell me where is 100%,
the word "one hundred" or 1-0-0, will you kindly look at this Doctor,
this Xerox copy if you can show to this Honorable Court and even to
this representation the word "one hundred" or 1-0-0 and then call
me.
(sic).
xxxx
xxxx
Q Now, you made mention also doctor that the use of general
anesthesia using 100% halothane and other anesthetic medications
probably were contributory to the production of hypoxia.
A Yes, sir in general sir.41
ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-00 and if there is, you just call me and even the attention of the
Presiding Judge of this Court. Okay, you read one by one.
WITNESS Well, are you only asking 100%, sir?
ATTY. COMIA Im asking you, just answer my question, did you see
there 100% and 100 figures, tell me, yes or no?
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WITNESS Im trying to look at the 100%, there is no 100% there sir.
WITNESS Well, that is a major operation sir.
ATTY. COMIA Okay, that was good, so you Honor please, may we
request also temporarily, because this is just a xerox copy
presented by the fiscal, that the percentage here that the
Halothane administered by Dr. Solidum to the patient is 1% only so
may we request that this portion, temporarily your Honor, we are
marking this anesthesia record as our Exhibit 1 and then this 1%
Halothane also be bracketed and the same be marked as our
Exhibit "1-A".
Q In other words, when you say major operation conducted to this

Gerald, there is a possibility that this Gerald might [be] exposed to
some risk is that correct?
xxxx
ATTY. COMIA Doctor, my attention was called also when you said
that there are so many factors that contributed to Hypoxia is that
correct?
WITNESS Yes, sir.
Q I remember doctor, according to you there are so many factors
that contributed to what you call hypoxia and according to you,
when this Gerald suffered hypoxia, there are other factors that
might lead to this Hypoxia at the time of this operation is that
correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of such other,
some or it might be due to operations being conducted by the
doctor at the time when the operation is being done might also
contribute to that hypoxia is that correct?
A That is a possibility also.
xxxx
ATTY. COMIA How will you classify now the operation conducted to
this Gerald, Doctor?
A That is a possibility sir.

Q And which according to you that Gerald suffered hypoxia is that
correct?
A Yes, sir.
Q And that is one of the risk of that major operation is that correct?
A That is the risk sir.42
At the continuation of his cross-examination, Dr. Vertido maintained
that Geralds operation for his imperforate anus, considered a
major operation, had exposed him to the risk of suffering the same
condition.43 He then corrected his earlier finding that 100%
halothane had been administered on Gerald by saying that it
should be 100% oxygen.44
Dr. Solidum was criminally charged for "failing to monitor and
regulate properly the levels of anesthesia administered to said
Gerald Albert Gercayo and using 100% halothane and other
anesthetic medications."45However, the foregoing circumstances,
taken together, did not prove beyond reasonable doubt that Dr.
Solidum had been recklessly imprudent in administering the
anesthetic agent to Gerald. Indeed, Dr. Vertidos findings did not
preclude the probability that other factors related to Geralds major
operation, which could or could not necessarily be attributed to the
administration of the anesthesia, had caused the hypoxia and had
then led Gerald to experience bradycardia. Dr. Vertido revealingly
concluded in his report, instead, that "although the anesthesiologist
followed the normal routine and precautionary procedures, still
hypoxia and its corresponding side effects did occur."46
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The existence of the probability about other factors causing the
hypoxia has engendered in the mind of the Court a reasonable
doubt as to Dr. Solidums guilt, and moves us to acquit him of the
crime of reckless imprudence resulting to serious physical injuries.
"A reasonable doubt of guilt," according to United States v.
Youthsey:47
x x x is a doubt growing reasonably out of evidence or the lack of it.
It is not a captious doubt; not a doubt engendered merely by
sympathy for the unfortunate position of the defendant, or a dislike
to accept the responsibility of convicting a fellow man. If, having
weighed the evidence on both sides, you reach the conclusion that
the defendant is guilty, to that degree of certainty as would lead
you to act on the faith of it in the most important and crucial affairs
of your life, you may properly convict him. Proof beyond reasonable
doubt is not proof to a mathematical demonstration. It is not proof
beyond the possibility of mistake.
We have to clarify that the acquittal of Dr. Solidum would not
immediately exempt him from civil liability.1wphi1 But we cannot
now find and declare him civilly liable because the circumstances
that have been established here do not present the factual and
legal bases for validly doing so. His acquittal did not derive only
from reasonable doubt. There was really no firm and competent
showing how the injury to Gerard had been caused. That meant
that the manner of administration of the anesthesia by Dr. Solidum
was not necessarily the cause of the hypoxia that caused the
bradycardia experienced by Gerard. Consequently, to adjudge Dr.
Solidum civilly liable would be to speculate on the cause of the
hypoxia. We are not allowed to do so, for civil liability must not rest
on speculation but on competent evidence.
Liability of Ospital ng Maynila
Although the result now reached has resolved the issue of civil
liability, we have to address the unusual decree of the RTC, as
affirmed by the CA, of expressly holding Ospital ng Maynila civilly
liable jointly and severally with Dr. Solidum. The decree was flawed
in logic and in law.
In criminal prosecutions, the civil action for the recovery of civil

liability that is deemed instituted with the criminal action refers
only to that arising from the offense charged.48 It is puzzling,
therefore, how the RTC and the CA could have adjudged Ospital ng
Maynila jointly and severally liable with Dr. Solidum for the
damages despite the obvious fact that Ospital ng Maynila, being an
artificial entity, had not been charged along with Dr. Solidum. The
lower courts thereby acted capriciously and whimsically, which
rendered their judgment against Ospital ng Maynila void as the
product of grave abuse of discretion amounting to lack of
jurisdiction.
Not surprisingly, the flawed decree raises other material concerns
that the RTC and the CA overlooked. We deem it important, then, to
express the following observations for the instruction of the Bench
and Bar.
For one, Ospital ng Maynila was not at all a party in the
proceedings. Hence, its fundamental right to be heard was not
respected from the outset. The R TC and the CA should have been
alert to this fundamental defect. Verily, no person can be
prejudiced by a ruling rendered in an action or proceeding in which
he was not made a party. Such a rule would enforce the
constitutional guarantee of due process of law.
Moreover, Ospital ng Maynila could be held civilly liable only when
subsidiary liability would be properly enforceable pursuant to
Article 103 of the Revised Penal Code. But the subsidiary liability
seems far-fetched here. The conditions for subsidiary liability to
attach to Ospital ng Maynila should first be complied with. Firstly,
pursuant to Article 103 of the Revised Penal Code, Ospital ng
Maynila must be shown to be a corporation "engaged in any kind of
industry." The term industry means any department or branch of
art, occupation or business, especially one that employs labor and
capital, and is engaged in industry. 49 However, Ospital ng Maynila,
being a public hospital, was not engaged in industry conducted for
profit but purely in charitable and humanitarian work.50Secondly,
assuming that Ospital ng Maynila was engaged in industry for
profit, Dr. Solidum must be shown to be an employee of Ospital ng
Maynila acting in the discharge of his duties during the operation
on Gerald. Yet, he definitely was not such employee but a
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consultant of the hospital. And, thirdly, assuming that civil liability
was adjudged against Dr. Solidum as an employee (which did not
happen here), the execution against him was unsatisfied due to his
being insolvent.
WHEREFORE, the Court GRANTS the petition for review on
certiorari; REVERSES AND SETS ASIDE the decision promulgated on
January 20, 2010; ACQUITS Dr. Fernando P. Solidum of the crime of
reckless imprudence resulting to serious physical injuries; and
MAKES no pronouncement on costs of suit.
SO ORDERED.
Footnotes
1
Imperforate anus is a defect that is present from birth

(congenital) in which the opening to the anus is missing or
blocked. The anus is the opening to the rectum through
which stools leave the body.
http://www.nlm.nih.gov/medlinepluslencylarticlelOOI I
47.html. Visited on March 3, 2014.
2
LUCAS P. BERSAMIN
Associate Justice
Rollo, p. 55.
http://www.nlm.nih.gov/medlineplus/ostomy.html. Visited
on March 3, 2014.
WE CONCUR:
Chief Justice
TERESITA J. LEONARDO-DE
MARTIN S. VILLARAMA, JR.
CASTRO
Associate Justice
Associate Justice
BIENVENIDO L. REYES
Associate Justice
Rollo, p. 10.
Id. at 53.
Id. at p. 10.
Bradycardia is an abnormally slow heart rate of less than

60 beats per minute. A normal heartbeat is between 60 and
100 beats per minute.
http://www.intelihealth.com/IH/ihtIH/c/9339/23653.html.
Visited on March 3, 2014.
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that
the conclusions in the above Decision had been reached in
opinion of the Court's Division.
Chief Justice
Rollo, p. 55.
Id.
10
Id. at 11.
11
Id.
12
Id.
65

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13
Id. at 51A-52.
14
Id. at 51A.
15
16
29

October 3, 2000, 341 SCRA 760, 771.
30
Records, p. 110.
31
571 P.2d 217, 18 Wash. App. 647; Wash. Ct. App. 1917.
Id. at 53.
Id. at 53-81.
32
Gaid v. People, G.R. No. 171636, April 7, 2009, 584 SCRA

489, 497.
17
Records, p. 539.
18
Id. at 551-554.
33
Id. at 495.
19
Id. at 561.
34
Rollo, pp. 87-91.
20
Rollo, pp. 10-21; penned by Associate Justice Mario L.

Guaria III (retired), with Associate Justice Sesinando E.
Villon and Associate Justice Franchito N. Diamante
concurring.
21
Id. at 12-21.
22
Id. at 22.
35
G.R. No. 122445, November 18, 1997, 282 SCRA 188, 200202.
36
Flamm, Martin B., Medical Malpractice and the Physician

Defendant, Chapter 11, Legal Medicine, Fourth Edition
(1998), pp. 123-124, American College of Legal Medicine,
Mosby, Inc., St. Louis, Missouri.
37
Id. at 123-124.
38
Id. at 124.
Jarcia, Jr. v. People, G.R. No. 187926, February 15, 2012,

666 SCRA 336, 351.
39
TSN of December 1, 1999.
25
40
Records, p. 110.
41
TSN of November 11, 1997, pp. 16-31.
42
TSN of November 11, 1997, pp. 44-53.
43
TSN of December 10, 1997, pp. 2-3.
44
Id. at 5-10.
23
Id. at 30-31.
24

29, 1999, 321 SCRA 584, 599.
26
27
28
Supra note 24, at 352.

Id.
Supra note 25, at 600-603.
66

Tin Simbran
45
Rollo, p. 51.
46
TSN of December 10, 1997, p. 13.
47
91 Fed. Rep. 864, 868.
48
Section 1, Rule 111, Rules of Court.
49
Regalado, Criminal Law Conspectus, First Edition (2000),

National Book Store, Inc., p. 263.
50
Id. at 264.
67

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SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 159132
December 18, 2008
FE CAYAO-LASAM, petitioner,
vs.
SPOUSES CLARO and EDITHA RAMOLETE, respondents.*
DECISION
AUSTRIA-MARTINEZ, J.:
Before the Court is a Petition for Review on Certiorari under Rule 45
of the Rules of Court filed by Dr. Fe Cayao-Lasam (petitioner)
seeking to annul the Decision1 dated July 4, 2003 of the Court of
Appeals (CA) in CA-G.R. SP No. 62206.
The antecedent facts:
On July 28, 1994, respondent, three months pregnant Editha
Ramolete (Editha) was brought to the Lorma Medical Center (LMC)
in San Fernando, La Union due to vaginal bleeding. Upon advice of
petitioner relayed via telephone, Editha was admitted to the LMC
on the same day. A pelvic sonogram2 was then conducted on Editha
revealing the fetus weak cardiac pulsation.3 The following day,
Edithas repeat pelvic sonogram4 showed that aside from the fetus
weak cardiac pulsation, no fetal movement was also appreciated.
Due to persistent and profuse vaginal bleeding, petitioner advised
Editha to undergo a Dilatation and Curettage Procedure (D&C) or
"raspa."
On July 30, 1994, petitioner performed the D&C procedure. Editha
was discharged from the hospital the following day.
On September 16, 1994, Editha was once again brought at the

LMC, as she was suffering from vomiting and severe abdominal
pains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B.
Mayo and Dr. Juan V. Komiya. Dr. Mayo allegedly informed Editha
that there was a dead fetus in the latters womb. After, Editha
underwent laparotomy,5 she was found to have a massive intraabdominal hemorrhage and a ruptured uterus. Thus, Editha had to
undergo a procedure for hysterectomy6 and as a result, she has no
more chance to bear a child.
On November 7, 1994, Editha and her husband Claro Ramolete
(respondents) filed a Complaint7 for Gross Negligence and
Malpractice against petitioner before the Professional Regulations
Commission (PRC).
Respondents alleged that Edithas hysterectomy was caused by
petitioners unmitigated negligence and professional incompetence
in conducting the D&C procedure and the petitioners failure to
remove the fetus inside Edithas womb.8 Among the alleged acts of
negligence were: first, petitioners failure to check up, visit or
administer medication on Editha during her first day of confinement
at the LMC;9 second, petitioner recommended that a D&C
procedure be performed on Editha without conducting any internal
examination prior to the procedure;10 third, petitioner immediately
suggested a D&C procedure instead of closely monitoring the state
of pregnancy of Editha.11
In her Answer,12 petitioner denied the allegations of negligence and
incompetence with the following explanations: upon Edithas
confirmation that she would seek admission at the LMC, petitioner
immediately called the hospital to anticipate the arrival of Editha
and ordered through the telephone the medicines Editha needed to
take, which the nurses carried out; petitioner visited Editha on the
morning of July 28, 1994 during her rounds; on July 29, 1994, she
performed an internal examination on Editha and she discovered
that the latters cervix was already open, thus, petitioner discussed
the possible D&C procedure, should the bleeding become more
profuse; on July 30 1994, she conducted another internal
examination on Editha, which revealed that the latters cervix was
still open; Editha persistently complained of her vaginal bleeding
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and her passing out of some meaty mass in the process of urination
and bowel movement; thus, petitioner advised Editha to undergo
D&C procedure which the respondents consented to; petitioner was
very vocal in the operating room about not being able to see an
abortus;13 taking the words of Editha to mean that she was passing
out some meaty mass and clotted blood, she assumed that the
abortus must have been expelled in the process of bleeding; it was
Editha who insisted that she wanted to be discharged; petitioner
agreed, but she advised Editha to return for check-up on August 5,
1994, which the latter failed to do.
Petitioner contended that it was Edithas gross negligence and/or
omission in insisting to be discharged on July 31, 1994 against
doctors advice and her unjustified failure to return for check-up as
directed by petitioner that contributed to her life-threatening
condition on September 16, 1994; that Edithas hysterectomy was
brought about by her very abnormal pregnancy known as placenta
increta, which was an extremely rare and very unusual case of
abdominal placental implantation. Petitioner argued that whether
or not a D&C procedure was done by her or any other doctor, there
would be no difference at all because at any stage of gestation
before term, the uterus would rupture just the same.
On March 4, 1999, the Board of Medicine (the Board) of the PRC
rendered a Decision,14 exonerating petitioner from the charges filed
against her. The Board held:
Based on the findings of the doctors who conducted the
laparotomy on Editha, hers is a case of Ectopic Pregnancy
Interstitial. This type of ectopic pregnancy is one that is
being protected by the uterine muscles and manifestations
may take later than four (4) months and only attributes to
two percent (2%) of ectopic pregnancy cases.
When complainant Editha was admitted at Lorma Medical
Center on July 28, 1994 due to vaginal bleeding, an ultrasound was performed upon her and the result of the
Sonogram Test reveals a morbid fetus but did not specify
where the fetus was located. Obstetricians will assume that
the pregnancy is within the uterus unless so specified by the
Sonologist who conducted the ultra-sound. Respondent (Dr.
Lasam) cannot be faulted if she was not able to determine

that complainant Editha is having an ectopic pregnancy
interstitial. The D&C conducted on Editha is necessary
considering that her cervix is already open and so as to stop
the profuse bleeding. Simple curettage cannot remove a
fetus if the patient is having an ectopic pregnancy, since
ectopic pregnancy is pregnancy conceived outside the
uterus and curettage is done only within the uterus.
Therefore, a more extensive operation needed in this case of
pregnancy in order to remove the fetus.15
Feeling aggrieved, respondents went to the PRC on appeal. On
November 22, 2000, the PRC rendered a Decision16 reversing the
findings of the Board and revoking petitioners authority or license
to practice her profession as a physician.17
Petitioner brought the matter to the CA in a Petition for Review
under Rule 43 of the Rules of Court. Petitioner also dubbed her
petition as one for certiorari18 under Rule 65 of the Rules of Court.
In the Decision dated July 4, 2003, the CA held that the Petition for
Review under Rule 43 of the Rules of Court was an improper
remedy, as the enumeration of the quasi-judicial agencies in Rule
43 is exclusive.19 PRC is not among the quasi-judicial bodies whose
judgment or final orders are subject of a petition for review to the
CA, thus, the petition for review of the PRC Decision, filed at the CA,
was improper. The CA further held that should the petition be
treated as a petition for certiorari under Rule 65, the same would
still be dismissed for being improper and premature. Citing Section
2620 of Republic Act (R.A.) No. 2382 or the Medical Act of 1959, the
CA held that the plain, speedy and adequate remedy under the
ordinary course of law which petitioner should have availed herself
of was to appeal to the Office of the President. 21
Hence, herein petition, assailing the decision of the CA on the
following grounds:
1. THE COURT OF APPEALS ERRED ON A QUESTION OF LAW
IN HOLDING THAT THE PROFESSIONAL REGULATION[S]
COMMISSION (PRC) WAS EXCLUDED AMONG THE QUASI-
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JUDICIAL AGENCIES CONTEMPLATED UNDER RULE 43 OF THE
RULES OF CIVIL PROCEDURE;
CONCLUSION AS TO THE CAUSE OF RESPONDENT EDITHAT

[SIC] RAMOLETES INJURY;
2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED

FROM THE PURVIEW OF RULE 43 OF THE RULES OF CIVIL
PROCEDURE, THE PETITIONER WAS NOT PRECLUDED FROM
FILING A PETITION FOR CERTIORARI WHERE THE DECISION
WAS ALSO ISSUED IN EXCESS OF OR WITHOUT
JURISDICTION, OR WHERE THE DECISION WAS A PATENT
NULLITY;
8. PRC COMMITTED AN EVEN GRAVER ABUSE OF

DISCRETION IN TOTALLY DISREGARDING THE FINDING OF
THE BOARD OF MEDICINE, WHICH HAD THE NECESSARY
COMPETENCE AND EXPERTISE TO ESTABLISH THE CAUSE OF
RESPONDENT EDITHAS INJURY, AS WELL AS THE TESTIMONY
OF THE EXPERT WITNESS AUGUSTO MANALO, M.D. ;[and]
3. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY

LAW TO APPEAL FROM THE DECISION OF THE BOARD OF
MEDICINE TO THE PROFESSIONAL REGULATION[S]
COMMISSION;
9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN

MAKING CONCLUSIONS OF FACTS THAT WERE NOT ONLY
UNSUPPORTED BY EVIDENCE BUT WERE ACTUALLY
CONTRARY TO EVIDENCE ON RECORD.22
The Court will first deal with the procedural issues.
4. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF

DISCRETION IN DENYING FOR IMPROPER FORUM THE
PETITION FOR REVIEW/PETITION FOR CERTIORARI WITHOUT
GOING OVER THE MERITS OF THE GROUNDS RELIED UPON
BY THE PETITIONER;
5. PRCS GRAVE OMISSION TO AFFORD HEREIN PETITONER A
CHANCE TO BE HEARD ON APPEAL IS A CLEAR VIOLATION OF
HER CONSTITUTIONAL RIGHT TO DUE PROCESS AND HAS
THE EFFECT OF RENDERING THE JUDGMENT NULL AND
VOID;
6. COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC
COMMITTED GRAVE ABUSE OF DISCRETION, AMOUNTING TO
LACK OF JURISDICTION, IN ACCEPTING AND CONSIDERING
THE MEMORANDUM ON APPEAL WITHOUT PROOF OF
SERVICE TO HEREIN PETITIONER, AND IN VIOLATION OF ART.
IV, SEC. 35 OF THE RULES AND REGULATIONS GOVERNING
THE REGULATION AND PRACTICE OF PROFESSIONALS;
7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN
REVOKING PETITIONERS LICENSE TO PRACTICE MEDICINE
WITHOUT AN EXPERT TESTIMONY TO SUPPORT ITS
Petitioner claims that the law does not allow complainants to

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

law.28 In this case, the clear intent of the amendment is to render
the right to appeal from a decision of the Board available to both
complainants and respondents.
Such conclusion is bolstered by the fact that in 2006, the PRC
issued Resolution No. 06-342(A), or the New Rules of Procedure in
Administrative Investigations in the Professional Regulations
Commission and the Professional Regulatory Boards, which
provides for the method of appeal, to wit:
Sec. 1. Appeal; Period Non-Extendible.- The decision,
order or resolution of the Board shall be final and executory
after the lapse of fifteen (15) days from receipt of the
decision, order or resolution without an appeal being
perfected or taken by either the respondent or the
complainant. A party aggrieved by the decision, order
or resolution may file a notice of appeal from the
decision, order or resolution of the Board to the
Commission within fifteen (15) days from receipt
thereof, and serving upon the adverse party a notice of
appeal together with the appellants brief or memorandum
on appeal, and paying the appeal and legal research fees. x
x x29
The above-stated provision does not qualify whether only the
complainant or respondent may file an appeal; rather, the new
rules provide that "a party aggrieved" may file a notice of appeal.
Thus, either the complainant or the respondent who has been
aggrieved by the decision, order or resolution of the Board may
appeal to the Commission. It is an elementary rule that when the
law speaks in clear and categorical language, there is no need, in
the absence of legislative intent to the contrary, for any
interpretation.30 Words and phrases used in the statute should be
given their plain, ordinary, and common usage or meaning.31
Petitioner also submits that appeals from the decisions of the PRC
should be with the CA, as Rule 4332 of the Rules of Court was
precisely formulated and adopted to provide for a uniform rule of
appellate procedure for quasi-judicial agencies.33 Petitioner further
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contends that a quasi-judicial body is not excluded from the
purview of Rule 43 just because it is not mentioned therein. 34
On this point, the Court agrees with the petitioner.
Sec. 1, Rule 43 of the Rules of Court provides:
Section 1. Scope. - This Rule shall apply to appeals from
judgments or final orders of the Court of Tax Appeals,
and from awards, judgments, final orders or
resolutions of or authorized by any quasi-judicial
agency in the exercise of its quasi-judicial functions.
Among these agencies are the Civil Service Commission,
Central Board of Assessment Appeals, Securities and
Exchange Commission, Office of the President, Land
Registration Authority, Social Security Commission, Civil
Aeronautics Board, Bureau of Patents, Trademarks and
Technology Transfer, National Electrification Administration,
Energy Regulatory Board, National Telecommunications
Commission, Department of Agrarian Reform under Republic
Act No. 6657, Government Service Insurance System,
Employees Compensation Commission, Agricultural
Inventions Board, Insurance Commission, Philippine Atomic
Energy Commission, Board of Investments, Construction
Industry Arbitration Commission, and voluntary arbitrators
authorized by law. (Emphasis supplied)
Indeed, the PRC is not expressly mentioned as one of the agencies
which are expressly enumerated under Section 1, Rule 43 of the
Rules of Court. However, its absence from the enumeration does
not, by this fact alone, imply its exclusion from the coverage of said
Rule.35 The Rule expressly provides that it should be applied to
appeals from awards, judgments final orders or resolutions of
any quasi-judicial agency in the exercise of its quasi-judicial
functions. The phrase "among these agencies" confirms that the
enumeration made in the Rule is not exclusive to the agencies
therein listed.36
Specifically, the Court, in Yang v. Court of Appeals,37 ruled
that Batas Pambansa (B.P.) Blg. 12938 conferred upon the CA
exclusive appellate jurisdiction over appeals from decisions of the

PRC. The Court held:
The law has since been changed, however, at least in the
matter of the particular court to which appeals from the
Commission should be taken. On August 14, 1981, Batas
Pambansa Bilang 129 became effective and in its Section
29, conferred on the Court of Appeals "exclusive appellate
jurisdiction over all final judgments, decisions, resolutions,
orders or awards of Regional Trial Courts and quasi-judicial
agencies, instrumentalities, boards or commissions except
those falling under the appellate jurisdiction of the Supreme
Court. x x x." In virtue of BP 129, appeals from the
Professional Regulations Commission are now
exclusively cognizable by the Court of
Appeals.39 (Emphasis supplied)
Clearly, the enactment of B.P. Blg. 129, the precursor of the
present Rules of Civil Procedure,40 lodged with the CA such
jurisdiction over the appeals of decisions made by the PRC.
Anent the substantive merits of the case, petitioner questions the
PRC decision for being without an expert testimony to support its
conclusion and to establish the cause of Edithas injury. Petitioner
avers that in cases of medical malpractice, expert testimony is
necessary to support the conclusion as to the cause of the injury. 41
Medical malpractice is a particular form of negligence which
consists in the failure of a physician or surgeon to apply to his
practice of medicine that degree of care and skill which is ordinarily
employed by the profession generally, under similar conditions, and
in like surrounding circumstances.42 In order to successfully pursue
such a claim, a patient must prove that the physician or surgeon
either failed to do something which a reasonably prudent physician
or surgeon would not have done, and that the failure or action
caused injury to the patient.43
There are four elements involved in medical negligence cases:
duty, breach, injury and proximate causation.44
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A physician-patient relationship was created when Editha employed
the services of the petitioner. As Edithas physician, petitioner was
duty-bound to use at least the same level of care that any
the same circumstances.45 The breach of these professional duties
of skill and care, or their improper performance by a physician
surgeon, whereby the patient is injured in body or in health,
constitutes actionable malpractice.46 As to this aspect of medical
malpractice, the determination of the reasonable level of care and
the breach thereof, expert testimony is essential.47 Further,
inasmuch as the causes of the injuries involved in malpractice
actions are determinable only in the light of scientific knowledge, it
has been recognized that expert testimony is usually necessary to
support the conclusion as to causation.48
Q:
Doctor, we want to be clarified on this matter. The
complainant had testified here that the D&C was the
proximate cause of the rupture of the uterus. The condition
which she found herself in on the second admission. Will you
please tell us whether that is true or not?
In the present case, respondents did not present any expert

testimony to support their claim that petitioner failed to do
something which a reasonably prudent physician or surgeon would
have done.
Q:
In this particular case, doctor, the rupture occurred to
have happened minutes prior to the hysterectomy or right
upon admission on September 15, 1994 which is about 1
months after the patient was discharged, after the D&C was
conducted. Would you tell us whether there is any relation
at all of the D&C and the rupture in this particular instance?
Petitioner, on the other hand, presented the testimony of Dr.

Augusto M. Manalo, who was clearly an expert on the subject.
Generally, to qualify as an expert witness, one must have acquired
special knowledge of the subject matter about which he or she is to
testify, either by the study of recognized authorities on the subject
or by practical experience.49
Dr. Manalo specializes in gynecology and obstetrics, authored and
co-authored various publications on the subject, and is a professor
at the University of the Philippines.50 According to him, his
diagnosis of Edithas case was "Ectopic Pregnancy Interstitial (also
referred to as Cornual), Ruptured."51 In stating that the D&C
procedure was not the proximate cause of the rupture of Edithas
uterus resulting in her hysterectomy, Dr. Manalo testified as
follows:
Atty. Hidalgo:
A:
Yah, I do not think so for two reasons. One, as I
have said earlier, the instrument cannot reach the site of
the pregnancy, for it to further push the pregnancy outside
the uterus. And, No. 2, I was thinking a while ago about
another reason- well, why I dont think so, because it is the
triggering factor for the rupture, it could havethe rupture
could have occurred much earlier, right after the D&C or a
few days after the D&C.
A:
I dont think so for the two reasons that I have
just mentioned- that it would not be possible for the
instrument to reach the site of pregnancy. And, No. 2,
if it is because of the D&C that rupture could have occurred
earlier.52 (Emphases supplied)
Clearly, from the testimony of the expert witness and the reasons
given by him, it is evident that the D&C procedure was not the
proximate cause of the rupture of Edithas uterus.
During his cross-examination, Dr. Manalo testified on how he would
have addressed Edithas condition should he be placed in a similar
circumstance as the petitioner. He stated:
Atty. Ragonton:
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Q:
Doctor, as a practicing OB-Gyne, when do you consider
that you have done a good, correct and ideal dilatation and
curettage procedure?
A:
Well, if the patient recovers. If the patient gets well.
Because even after the procedure, even after the procedure
you may feel that you have scraped everything, the patient
stops bleeding, she feels well, I think you should still have
some reservations, and wait a little more time.
Q:
If you were the OB-Gyne who performed the procedure
on patient Editha Ramolete, would it be your standard
practice to check the fetal parts or fetal tissues that were
allegedly removed?
A:
From what I have removed, yes. But in this particular
case, I think it was assumed that it was part of the meaty
mass which was expelled at the time she was urinating and
flushed in the toilet. So theres no way.
Q:
There was [sic] some portions of the fetal parts that
were removed?
A:
No, it was described as scanty scraping if I remember it
rightscanty.
Q:
And you would not mind checking those scant or those
little parts that were removed?
A:
Well, the fact that it was described means, I
assume that it was checked, no. It was described as
scanty and the color also, I think was described. Because it
would be very unusual, even improbable that it would
not be examined, because when you scrape, the
specimens are right there before your eyes. Its in
front of you. You can touch it. In fact, some of them
will stick to the instrument and therefore to peel it
off from the instrument, you have to touch them. So,
automatically they are examined closely.
Q:
As a matter of fact, doctor, you also give telephone
orders to your patients through telephone?
A:
Yes, yes, we do that, especially here in Manila because
you know, sometimes a doctor can also be tied-up
somewhere and if you have to wait until he arrive at a
certain place before you give the order, then it would be a
lot of time wasted. Because if you know your patient, if you
have handled your patient, some of the symptoms you can
interpret that comes with practice. And, I see no reason
for not allowing telephone orders unless it is the first
time that you will be encountering the patient. That
you have no idea what the problem is.
Q:
But, doctor, do you discharge patients without seeing
them?
A:
Sometimes yes, depending on how familiar I am with
the patient. We are on the question of telephone orders. I
am not saying that that is the idle [sic] thing to do, but I
think the reality of present day practice somehow
justifies telephone orders. I have patients whom I have
justified and then all of a sudden, late in the afternoon or
late in the evening, would suddenly call they have decided
that they will go home inasmuch as they anticipated that I
will discharge them the following day. So, I just call and ask
our resident on duty or the nurse to allow them to go
because I have seen that patient and I think I have full grasp
of her problems. So, thats when I make this telephone
orders. And, of course before giving that order I ask about
how she feels.53 (Emphases supplied)
From the foregoing testimony, it is clear that the D&C procedure
was conducted in accordance with the standard practice, with the
same level of care that any reasonably competent doctor would use
to treat a condition under the same circumstances, and that there
was nothing irregular in the way the petitioner dealt with Editha.
Medical malpractice, in our jurisdiction, is often brought as a civil
action for damages under Article 217654 of the Civil Code. The
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defenses in an action for damages, provided for under Article 2179
of the Civil Code are:
Art. 2179. When the plaintiffs own negligence was the
immediate and proximate cause of his injury, he
cannot recover damages. But if his negligence was only
contributory, the immediate and proximate cause of the
injury being the defendants lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the
damages to be awarded.
Proximate cause has been defined as that which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces injury, and without which the result would not have
occurred.55 An injury or damage is proximately caused by an act or
a failure to act, whenever it appears from the evidence in the case
that the act or omission played a substantial part in bringing about
or actually causing the injury or damage; and that the injury or
damage was either a direct result or a reasonably probable
consequence of the act or omission.56
In the present case, the Court notes the findings of the Board of
Medicine:
When complainant was discharged on July 31, 1994,
herein respondent advised her to return on August 4,
1994 or four (4) days after the D&C. This advise was
clear in complainants Discharge
Sheet. However, complainant failed to do so. This being
the case, the chain of continuity as required in order that
the doctrine of proximate cause can be validly invoked was
interrupted. Had she returned, the respondent could
have examined her thoroughly.57 x x x (Emphases
supplied)
Also, in the testimony of Dr. Manalo, he stated further that
assuming that there was in fact a misdiagnosis, the same would
have been rectified if Editha followed the petitioners order to
return for a check-up on August 4, 1994. Dr. Manalo stated:
Granting that the obstetrician-gynecologist has been

misled (justifiably) up to thus point that there would
have been ample opportunity to rectify the
misdiagnosis, had the patient returned, as instructed
for her follow-up evaluation. It was one and a half
months later that the patient sought consultation
with another doctor. The continued growth of an ectopic
pregnancy, until its eventual rupture, is a dynamic process.
Much change in physical findings could be expected in 1
months, including the emergence of suggestive ones.58
It is undisputed that Editha did not return for a follow-up evaluation,
in defiance of the petitioners advise. Editha omitted the diligence
required by the circumstances which could have avoided the injury.
The omission in not returning for a follow-up evaluation played a
substantial part in bringing about Edithas own injury. Had Editha
returned, petitioner could have conducted the proper medical tests
and procedure necessary to determine Edithas health condition
and applied the corresponding treatment which could have
prevented the rupture of Edithas uterus. The D&C procedure
having been conducted in accordance with the standard medical
practice, it is clear that Edithas omission was the proximate cause
of her own injury and not merely a contributory negligence on her
part.
Contributory negligence is the act or omission amounting to want
of ordinary care on the part of the person injured, which, concurring
with the defendants negligence, is the proximate cause of the
injury.59 Difficulty seems to be apprehended in deciding which acts
of the injured party shall be considered immediate causes of the
accident.60 Where the immediate cause of an accident resulting in
an injury is the plaintiffs own act, which contributed to the
principal occurrence as one of its determining factors, he cannot
recover damages for the injury.61 Again, based on the evidence
presented in the present case under review, in which no
negligence can be attributed to the petitioner, the
immediate cause of the accident resulting in Edithas injury
was her own omission when she did not return for a followup check up, in defiance of petitioners orders. The
immediate cause of Edithas injury was her own act; thus,
she cannot recover damages from the injury.
75

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Lastly, petitioner asserts that her right to due process was violated
because she was never informed by either respondents or by the
PRC that an appeal was pending before the PRC.62 Petitioner claims
that a verification with the records section of the PRC revealed that
on April 15, 1999, respondents filed a Memorandum on Appeal
before the PRC, which did not attach the actual registry receipt but
was merely indicated therein.63
Respondents, on the other hand avers that if the original registry
receipt was not attached to the Memorandum on Appeal, PRC
would not have entertained the appeal or accepted such pleading
for lack of notice or proof of service on the other party. 64 Also, the
registry receipt could not be appended to the copy furnished to
petitioners former counsel, because the registry receipt was
already appended to the original copy of the Memorandum of
Appeal filed with PRC.65
It is a well-settled rule that when service of notice is an issue, the
rule is that the person alleging that the notice was served must
prove the fact of service. The burden of proving notice rests upon
the party asserting its existence.66 In the present case, respondents
did not present any proof that petitioner was served a copy of the
Memorandum on Appeal. Thus, respondents were not able to
satisfy the burden of proving that they had in fact informed the
petitioner of the appeal proceedings before the PRC.
In EDI-Stafbuilders International, Inc. v. National Labor Relations
Commission,67 in which the National Labor Relations Commission
failed to order the private respondent to furnish the petitioner a
copy of the Appeal Memorandum, the Court held that said failure
deprived the petitioner of procedural due process guaranteed by
the Constitution, which could have served as basis for the
nullification of the proceedings in the appeal. The same holds true
in the case at bar. The Court finds that the failure of the
respondents to furnish the petitioner a copy of the Memorandum of
Appeal submitted to the PRC constitutes a violation of due process.
Thus, the proceedings before the PRC were null and void.
All told, doctors are protected by a special rule of law. They are not
guarantors of care. They are not insurers against mishaps or
unusual consequences68 specially so if the patient herself did not

exercise the proper diligence required to avoid the injury.
WHEREFORE, the petition is GRANTED. The assailed Decision of
the Court of Appeals dated July 4, 2003 in CA-GR SP No. 62206 is
hereby REVERSED and SET ASIDE. The Decision of the Board of
Medicine dated March 4, 1999 exonerating petitioner is AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO
Associate Justice
ANTONIO EDUARDO B. NACHURA

Associate Justice
RUBEN T. REYES
Associate Justice
ATTESTATION
76

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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.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the
Division 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.
REYNATO S. PUNO
Chief Justice
Footnotes
Laparotomy, or abdominal exploration, is a surgical

procedure that allows a surgeon to look and to make needed
repairs or changes inside the abdominal cavity.
<http://uimc.discovery hospital.com/main.php?
id=813>(visited May 28, 2008).
6
Hysterectomy is a surgical removal of the uterus, resulting

in the inability to become pregnant (sterility). It may be
done through the abdomen or the vagina.
<http://www.nlm.nih.gov/
medlineplus/ency/article/002915.htm> (visited May 28,
2008).
7
Rollo, pp. 57-61.
Rollo, p. 59.
Id. at 57.
10
Id. at 57-58.
11
Id. at 58.
12
Id. at 62-74.
13
The Court of Appeals is deleted from the title pursuant to

Section 4, Rule 45 of the Rules of Court.
Abortus is an aborted fetus, specifically a human fetus

less than 12 weeks old or weighing at birth less than 17
ounces. <http://medical.meriamwebster.com/medical/abortus> (visited May 28, 2008).
Penned by Justice Hakim S. Abdulwahid and concurred in

by Justices B.A. Adefuin-Dela Cruz and Jose L. Sabio,
Jr; rollo, pp. 51-56.
14
Rollo, pp. 103-107.
15
Id. at 106.
CA rollo, p. 307.
16
Id. at 123-126.
Id.
17
Id. at 126.
Id. at 111.
18
Rollo, pp. 129-159.
77

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19
Id. at 54.
32
Entitled "Appeals from the Court of Tax Appeals and

Quasi-Judicial Agencies to the Court of Appeals.
20
Section 26 of R.A. No. 2382 provides: "Section 26. Appeal

for Judgment. - The decision of the Board of Medical
Examiners shall automatically become final thirty days after
the date of its promulgation unless the respondent, during
the same period, has appealed to the Commissioner of Civil
Service and later to the Office of the President of the
Philippines. If the final decision is not satisfactory, the
respondent may ask for a review of the case, or may file in
court a petition for certiorari."
21
22
33
Memorandum for the Petitioner, rollo, p. 345.
34
Id.
35
Orosa v. Roa, G.R. No. 140423, July 14, 2006, 495 SCRA
22, 27.
36
Id.
Rollo, pp. 54-55.
37
G.R. No. 48113, June 6, 1990, 186 SCRA 287.
Rollo, pp. 17-18.
38
23
Rollo, pp. 23-24.
24
Id. at 25.
25
Tecson v. Sandiganbayan, 376 Phil. 191, 200 (1999).
Entitled, "The Judiciary Reorganization Act of

1980" effective August 14, 1981.
39
Supra note 37, at 293.
40
Effective July 1, 1997.
41
Rollo, p. 357.
26
De Vera v. Layague, 395 Phil. 253, 261 (2000), citing

Tecson v. Sandiganbayan, 376 Phil. 191 (1999).
27
PRC Yearbook, series of 1998.
28
Remulla v. Manlongat, G.R. No. 148189, November 11,

2004, 442 SCRA 226, 232; Philippine National Bank v.
Garcia, Jr., 437 Phil. 289, 293 (2002); Republic of the
Philippines v. Court of Appeals, 372 Phil. 259, 265 (1999).
29
Article IV, Section 1 of Resolution No. 06-342(A).
42
Reyes v. Sisters of Mercy Hospital, 396 Phil. 87, 95

(2000), citing 61 Am.Jur.2d 337, 205 on Physicians,
Surgeons, etc.
43
Id. at 95-96, citing Garcia-Rueda v. Pascasio, 344 Phil. 323

(1997).
44
Id. at 96.
45
Id.
46
Garcia-Rueda v. Pascasio, supra note 43, at 332.
47
Reyes v. Sisters of Mercy Hospital, supra note 42, at 96.
30
Domingo v. Commission on Audit, 357 Phil. 842, 848

(1998).
31
Id., citing Mustang Lumber Inc. v. Court of Appeals, 327

Phil. 214, 235 (1996).
78

Tin Simbran
48
Cruz v. Court of Appeals, 346 Phil. 872, 884 (1997).
63
Id. at 350.
49
Ramos v. Court of Appeals, 378 Phil. 1198, 1236 (1999).
64
Rollo, p. 318.
50
Rollo, pp. 92-101.
65
Id.
51
Id. at 89.
66
52
CA rollo, pp. 149-151
Petition for Habeas Corpus of Benjamin Vergara v. Judge

Gedorio, Jr., 450 Phil. 623, 634 (2003).
67
53
CA rollo, pp. 175-179.
54
Art. 2176 of the Civil Code provides: "Whoever by act or

omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such
fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is
governed by the provisions of this Chapter."
55
Ramos v. Court of Appeals, supra note 49, at 1237.
56
Ramos v. Court of Appeals, id.
57
Rollo, p. 106.
58
Id. at 80-81.
G.R. No. 145587, October 26, 2007, 537 SCRA 409.
68
Id., citing "The Physicians Liability and the Law on

Negligence" by Constantine Nunez, p. 1, citing Louis Nizer,
My Life in Court, New York: Double Day & Co., 1961 in
Tolentino, Jr., Medicine and Law, Proceedings of the
Symposium on Current Issues Common to Medicine and
Law, U.P Law Center, 1980.
59
Ma-ao Sugar Central Co., Inc. v. Court of Appeals, G.R. No.

83491, August 27, 1990, 189 SCRA 88, 93.
60
Rakes v. Atlantic Gulf and Pacific Co., 7 Phil 359, 374

(1907).
61
Taylor v. Manila Electric Railroad and Light Co., 16 Phil 8

(1910).
62
Rollo, p. 25.
79

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SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 142625
December 19, 2006
ROGELIO P. NOGALES, for himself and on behalf of the

minors, ROGER ANTHONY, ANGELICA, NANCY, and MICHAEL
CHRISTOPHER, all surnamed NOGALES, petitioners,
vs.
CAPITOL MEDICAL CENTER, DR. OSCAR ESTRADA, DR. ELY
VILLAFLOR, DR. ROSA UY, DR. JOEL ENRIQUEZ, DR.
PERPETUA LACSON, DR. NOE ESPINOLA, and NURSE J.
DUMLAO, respondents.
DECISION
The Facts
Pregnant with her fourth child, Corazon Nogales ("Corazon"), who
was then 37 years old, was under the exclusive prenatal care of Dr.
Oscar Estrada ("Dr. Estrada") beginning on her fourth month of
pregnancy or as early as December 1975. While Corazon was on
her last trimester of pregnancy, Dr. Estrada noted an increase in
her blood pressure and development of leg edema5 indicating
preeclampsia,6 which is a dangerous complication of pregnancy. 7
Around midnight of 25 May 1976, Corazon started to experience
mild labor pains prompting Corazon and Rogelio Nogales ("Spouses
Nogales") to see Dr. Estrada at his home. After examining Corazon,
Dr. Estrada advised her immediate admission to the Capitol Medical
Center ("CMC").
On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC
after the staff nurse noted the written admission request8 of Dr.
Estrada. Upon Corazon's admission at the CMC, Rogelio Nogales
("Rogelio") executed and signed the "Consent on Admission and
Agreement"9 and "Admission Agreement."10 Corazon was then
brought to the labor room of the CMC.
Dr. Rosa Uy ("Dr. Uy"), who was then a resident physician of CMC,
conducted an internal examination of Corazon. Dr. Uy then called
up Dr. Estrada to notify him of her findings.
CARPIO, J.:
The Case
This petition for review1 assails the 6 February 1998 Decision2 and
21 March 2000 Resolution3 of the Court of Appeals in CA-G.R. CV
No. 45641. The Court of Appeals affirmed in toto the 22 November
1993 Decision4 of the Regional Trial Court of Manila, Branch 33,
finding Dr. Oscar Estrada solely liable for damages for the death of
his patient, Corazon Nogales, while absolving the remaining
respondents of any liability. The Court of Appeals denied
petitioners' motion for reconsideration.
Based on the Doctor's Order Sheet,11 around 3:00 a.m., Dr. Estrada
ordered for 10 mg. of valium to be administered immediately by
intramuscular injection. Dr. Estrada later ordered the start of
intravenous administration of syntocinon admixed with dextrose,
5%, in lactated Ringers' solution, at the rate of eight to ten microdrops per minute.
According to the Nurse's Observation Notes,12 Dr. Joel Enriquez ("Dr.
Enriquez"), an anesthesiologist at CMC, was notified at 4:15 a.m. of
Corazon's admission. Subsequently, when asked if he needed the
services of an anesthesiologist, Dr. Estrada refused. Despite Dr.
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Estrada's refusal, Dr. Enriquez stayed to observe Corazon's
condition.
At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the
CMC. At 6:10 a.m., Corazon's bag of water ruptured spontaneously.
At 6:12 a.m., Corazon's cervix was fully dilated. At 6:13 a.m.,
Corazon started to experience convulsions.
At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of
magnesium sulfate. However, Dr. Ely Villaflor ("Dr. Villaflor"), who
was assisting Dr. Estrada, administered only 2.5 grams of
magnesium sulfate.
At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low
forceps to extract Corazon's baby. In the process, a 1.0 x 2.5 cm.
piece of cervical tissue was allegedly torn. The baby came out in an
apnic, cyanotic, weak and injured condition. Consequently, the
baby had to be intubated and resuscitated by Dr. Enriquez and Dr.
Payumo.
At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding
which rapidly became profuse. Corazon's blood pressure dropped
from 130/80 to 60/40 within five minutes. There was continuous
profuse vaginal bleeding. The assisting nurse administered hemacel
through a gauge 19 needle as a side drip to the ongoing
intravenous injection of dextrose.
At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching
with bottled blood. It took approximately 30 minutes for the CMC
laboratory, headed by Dr. Perpetua Lacson ("Dr. Lacson"), to
comply with Dr. Estrada's order and deliver the blood.
At 8:00 a.m., Dr. Noe Espinola ("Dr. Espinola"), head of the
Obstetrics-Gynecology Department of the CMC, was apprised of
Corazon's condition by telephone. Upon being informed that
Corazon was bleeding profusely, Dr. Espinola ordered immediate
hysterectomy. Rogelio was made to sign a "Consent to Operation." 13
Due to the inclement weather then, Dr. Espinola, who was fetched
from his residence by an ambulance, arrived at the CMC about an
hour later or at 9:00 a.m. He examined the patient and ordered

some resuscitative measures to be administered. Despite Dr.
Espinola's efforts, Corazon died at 9:15 a.m. The cause of death
was "hemorrhage, post partum."14
On 14 May 1980, petitioners filed a complaint for damages15 with
the Regional Trial Court16 of Manila against CMC, Dr. Estrada, Dr.
Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr. Espinola, and a certain
Nurse J. Dumlao for the death of Corazon. Petitioners mainly
contended that defendant physicians and CMC personnel were
negligent in the treatment and management of Corazon's
condition. Petitioners charged CMC with negligence in the selection
and supervision of defendant physicians and hospital staff.
For failing to file their answer to the complaint despite service of
summons, the trial court declared Dr. Estrada, Dr. Enriquez, and
Nurse Dumlao in default.17 CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola,
and Dr. Lacson filed their respective answers denying and opposing
the allegations in the complaint. Subsequently, trial ensued.
After more than 11 years of trial, the trial court rendered judgment
on 22 November 1993 finding Dr. Estrada solely liable for damages.
The trial court ruled as follows:
The victim was under his pre-natal care, apparently, his fault
began from his incorrect and inadequate management and
lack of treatment of the pre-eclamptic condition of his
patient. It is not disputed that he misapplied the forceps in
causing the delivery because it resulted in a large cervical
tear which had caused the profuse bleeding which he also
failed to control with the application of inadequate injection
of magnesium sulfate by his assistant Dra. Ely Villaflor. Dr.
Estrada even failed to notice the erroneous administration
by nurse Dumlao of hemacel by way of side drip, instead of
direct intravenous injection, and his failure to consult a
senior obstetrician at an early stage of the problem.
On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr.
Joel Enriquez, Dr. Lacson, Dr. Espinola, nurse J. Dumlao and
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CMC, the Court finds no legal justification to find them civilly
liable.
On the part of Dra. Ely Villaflor, she was only taking orders
from Dr. Estrada, the principal physician of Corazon Nogales.
She can only make suggestions in the manner the patient
maybe treated but she cannot impose her will as to do so
would be to substitute her good judgment to that of Dr.
Estrada. If she failed to correctly diagnose the true cause of
the bleeding which in this case appears to be a cervical
laceration, it cannot be safely concluded by the Court that
Dra. Villaflor had the correct diagnosis and she failed to
inform Dr. Estrada. No evidence was introduced to show that
indeed Dra. Villaflor had discovered that there was
laceration at the cervical area of the patient's internal
organ.
On the part of nurse Dumlao, there is no showing that when
she administered the hemacel as a side drip, she did it on
her own. If the correct procedure was directly thru the veins,
it could only be because this was what was probably the
orders of Dr. Estrada.
While the evidence of the plaintiffs shows that Dr. Noe
Espinola, who was the Chief of the Department of Obstetrics
and Gynecology who attended to the patient Mrs. Nogales, it
was only at 9:00 a.m. That he was able to reach the hospital
because of typhoon Didang (Exhibit 2). While he was able to
give prescription in the manner Corazon Nogales may be
treated, the prescription was based on the information given
to him by phone and he acted on the basis of facts as
presented to him, believing in good faith that such is the
correct remedy. He was not with Dr. Estrada when the
patient was brought to the hospital at 2:30 o'clock a.m. So,
whatever errors that Dr. Estrada committed on the patient
before 9:00 o'clock a.m. are certainly the errors of Dr.
Estrada and cannot be the mistake of Dr. Noe Espinola. His
failure to come to the hospital on time was due to fortuitous
event.
On the part of Dr. Joel Enriquez, while he was present in the

delivery room, it is not incumbent upon him to call the
attention of Dr. Estrada, Dra. Villaflor and also of Nurse
Dumlao on the alleged errors committed by them. Besides,
as anesthesiologist, he has no authority to control the
actuations of Dr. Estrada and Dra. Villaflor. For the Court to
assume that there were errors being committed in the
presence of Dr. Enriquez would be to dwell on conjectures
and speculations.
On the civil liability of Dr. Perpetua Lacson, [s]he is a
hematologist and in-charge of the blood bank of the CMC.
The Court cannot accept the theory of the plaintiffs that
there was delay in delivering the blood needed by the
patient. It was testified, that in order that this blood will be
made available, a laboratory test has to be conducted to
determine the type of blood, cross matching and other
matters consistent with medical science so, the lapse of 30
minutes maybe considered a reasonable time to do all of
these things, and not a delay as the plaintiffs would want
the Court to believe.
Admittedly, Dra. Rosa Uy is a resident physician of the
Capitol Medical Center. She was sued because of her alleged
failure to notice the incompetence and negligence of Dr.
Estrada. However, there is no evidence to support such
theory. No evidence was adduced to show that Dra. Rosa Uy
as a resident physician of Capitol Medical Center, had
knowledge of the mismanagement of the patient Corazon
Nogales, and that notwithstanding such knowledge, she
tolerated the same to happen.
In the pre-trial order, plaintiffs and CMC agreed that
defendant CMC did not have any hand or participation in the
selection or hiring of Dr. Estrada or his assistant Dra. Ely
Villaflor as attending physician[s] of the deceased. In other
words, the two (2) doctors were not employees of the
hospital and therefore the hospital did not have control over
their professional conduct. When Mrs. Nogales was brought
to the hospital, it was an emergency case and defendant
CMC had no choice but to admit her. Such being the case,
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there is therefore no legal ground to apply the provisions of
Article 2176 and 2180 of the New Civil Code referring to the
vicarious liability of an employer for the negligence of its
employees. If ever in this case there is fault or negligence in
the treatment of the deceased on the part of the attending
physicians who were employed by the family of the
deceased, such civil liability should be borne by the
attending physicians under the principle of "respondeat
superior".
WHEREFORE, premises considered, judgment is hereby

rendered finding defendant Dr. Estrada of Number 13
Pitimini St. San Francisco del Monte, Quezon City civilly
liable to pay plaintiffs: 1) By way of actual damages in the
amount of P105,000.00; 2) By way of moral damages in the
amount of P700,000.00; 3) Attorney's fees in the amount
of P100,000.00 and to pay the costs of suit.
The Court issued a Resolution dated 9 September

200224 dispensing with the requirement to submit the correct and
present addresses of respondents Dr. Estrada, Dr. Enriquez, Dr.
Villaflor, and Nurse Dumlao. The Court stated that with the filing of
petitioners' Manifestation, it should be understood that they are
claiming only against respondents CMC, Dr. Espinola, Dr. Lacson,
and Dr. Uy who have filed their respective comments. Petitioners
are foregoing further claims against respondents Dr. Estrada, Dr.
Enriquez, Dr. Villaflor, and Nurse Dumlao.
For failure of the plaintiffs to adduce evidence to support its

[sic] allegations against the other defendants, the complaint
is hereby ordered dismissed. While the Court looks with
disfavor the filing of the present complaint against the other
defendants by the herein plaintiffs, as in a way it has caused
them personal inconvenience and slight damage on their
name and reputation, the Court cannot accepts [sic]
however, the theory of the remaining defendants that
plaintiffs were motivated in bad faith in the filing of this
complaint. For this reason defendants' counterclaims are
hereby ordered dismissed.
SO ORDERED.18
Petitioners appealed the trial court's decision. Petitioners claimed
that aside from Dr. Estrada, the remaining respondents should be
held equally liable for negligence. Petitioners pointed out the extent
of each respondent's alleged liability.
On 6 February 1998, the Court of Appeals affirmed the decision of
the trial court.19 Petitioners filed a motion for reconsideration which
the Court of Appeals denied in its Resolution of 21 March 2000. 20
Meanwhile, petitioners filed a Manifestation dated 12 April

200221 stating that respondents Dr. Estrada, Dr. Enriquez, Dr.
Villaflor, and Nurse Dumlao "need no longer be notified of the
petition because they are absolutely not involved in the issue
raised before the [Court], regarding the liability of
[CMC]."22 Petitioners stressed that the subject matter of this
petition is the liability of CMC for the negligence of Dr. Estrada. 23
The Court noted that Dr. Estrada did not appeal the decision of the
Court of Appeals affirming the decision of the Regional Trial Court.
Accordingly, the decision of the Court of Appeals, affirming the trial
court's judgment, is already final as against Dr. Oscar Estrada.
Petitioners filed a motion for reconsideration25 of the Court's 9
September 2002 Resolution claiming that Dr. Enriquez, Dr. Villaflor
and Nurse Dumlao were notified of the petition at their counsels'
last known addresses. Petitioners reiterated their imputation of
negligence on these respondents. The Court denied petitioners'
Motion for Reconsideration in its 18 February 2004 Resolution. 26
The Court of Appeals' Ruling
In its Decision of 6 February 1998, the Court of Appeals upheld the
trial court's ruling. The Court of Appeals rejected petitioners' view
that the doctrine in Darling v. Charleston Community Memorial
Hospital27 applies to this case. According to the Court of Appeals,
the present case differs from the Darling case since Dr. Estrada is
an independent contractor-physician whereas the Darling case
83

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involved a physician and a nurse who were employees of the
hospital.
Citing other American cases, the Court of Appeals further held that
the mere fact that a hospital permitted a physician to practice
medicine and use its facilities is not sufficient to render the hospital
liable for the physician's negligence.28 A hospital is not responsible
for the negligence of a physician who is an independent
contractor.29
The Court of Appeals found the cases of Davidson v.
Conole30 and Campbell v. Emma Laing Stevens Hospital 31applicable
to this case. Quoting Campbell, the Court of Appeals stated that
where there is no proof that defendant physician was an employee
of defendant hospital or that defendant hospital had reason to
know that any acts of malpractice would take place, defendant
hospital could not be held liable for its failure to intervene in the
relationship of physician-patient between defendant physician and
plaintiff.
On the liability of the other respondents, the Court of Appeals
applied the "borrowed servant" doctrine considering that Dr.
Estrada was an independent contractor who was merely exercising
hospital privileges. This doctrine provides that once the surgeon
enters the operating room and takes charge of the proceedings, the
acts or omissions of operating room personnel, and any negligence
associated with such acts or omissions, are imputable to the
surgeon.32 While the assisting physicians and nurses may be
employed by the hospital, or engaged by the patient, they normally
become the temporary servants or agents of the surgeon in charge
while the operation is in progress, and liability may be imposed
upon the surgeon for their negligent acts under the doctrine
of respondeat superior.33
The Court of Appeals concluded that since Rogelio engaged Dr.
Estrada as the attending physician of his wife, any liability for
malpractice must be Dr. Estrada's sole responsibility.
While it found the amount of damages fair and reasonable, the

Court of Appeals held that no interest could be imposed on
unliquidated claims or damages.
The Issue
Basically, the issue in this case is whether CMC is vicariously liable
for the negligence of Dr. Estrada. The resolution of this issue rests,
on the other hand, on the ascertainment of the relationship
between Dr. Estrada and CMC. The Court also believes that a
determination of the extent of liability of the other respondents is
inevitable to finally and completely dispose of the present
controversy.
The Ruling of the Court
The petition is partly meritorious.
On the Liability of CMC
Dr. Estrada's negligence in handling the treatment and
management of Corazon's condition which ultimately resulted in
Corazon's death is no longer in issue. Dr. Estrada did not appeal the
decision of the Court of Appeals which affirmed the ruling of the
trial court finding Dr. Estrada solely liable for damages. Accordingly,
the finding of the trial court on Dr. Estrada's negligence is already
final.
Petitioners maintain that CMC is vicariously liable for Dr. Estrada's
negligence based on Article 2180 in relation to Article 2176 of the
Civil Code. These provisions pertinently state:
Art. 2180. The obligation imposed by article 2176 is
demandable not only for one's own acts or omissions, but
also for those of persons for whom one is responsible.
xxxx
84

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Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of
their assigned tasks, even though the former are not
engaged in any business or industry.
xxxx
The responsibility treated of in this article shall cease when
the persons herein mentioned prove that they observed all
the diligence of a good father of a family to prevent
damage.
Art. 2176. Whoever by act or omission causes damage to
another, there being fault or negligence, is obliged to pay
for the damage done. Such fault or negligence, if there is no
pre-existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of
this Chapter.
Similarly, in the United States, a hospital which is the employer,
master, or principal of a physician employee, servant, or agent,
may be held liable for the physician's negligence under the doctrine
of respondeat superior.34
In the present case, petitioners maintain that CMC, in allowing Dr.
Estrada to practice and admit patients at CMC, should be liable for
Dr. Estrada's malpractice. Rogelio claims that he knew Dr. Estrada
as an accredited physician of CMC, though he discovered later that
Dr. Estrada was not a salaried employee of the CMC.35 Rogelio
further claims that he was dealing with CMC, whose primary
concern was the treatment and management of his wife's
condition. Dr. Estrada just happened to be the specific person he
talked to representing CMC.36 Moreover, the fact that CMC made
Rogelio sign a Consent on Admission and Admission
Agreement37 and a Consent to Operation printed on the letterhead
of CMC indicates that CMC considered Dr. Estrada as a member of
its medical staff.
On the other hand, CMC disclaims liability by asserting that Dr.
Estrada was a mere visiting physician and that it admitted Corazon
because her physical condition then was classified an emergency

obstetrics case.38
CMC alleges that Dr. Estrada is an independent contractor "for
whose actuations CMC would be a total stranger." CMC maintains
that it had no control or supervision over Dr. Estrada in the exercise
of his medical profession.
The Court had the occasion to determine the relationship between
a hospital and a consultant or visiting physician and the liability of
such hospital for that physician's negligence in Ramos v. Court of
Appeals,39 to wit:
In the first place, hospitals exercise significant control in the
hiring and firing of consultants and in the conduct of their
work within the hospital premises. Doctors who apply for
"consultant" slots, visiting or attending, are required to
submit proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are
carefully scrutinized by members of the hospital
administration or by a review committee set up by the
hospital who either accept or reject the application. This is
particularly true with respondent hospital.
After a physician is accepted, either as a visiting or
attending consultant, he is normally required to attend
clinico-pathological conferences, conduct bedside rounds for
clerks, interns and residents, moderate grand rounds and
patient audits and perform other tasks and responsibilities,
for the privilege of being able to maintain a clinic in the
hospital, and/or for the privilege of admitting patients into
the hospital. In addition to these, the physician's
performance as a specialist is generally evaluated by a peer
review committee on the basis of mortality and morbidity
residents. A consultant remiss in his duties, or a consultant
who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is
normally politely terminated.
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In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting "consultant"
staff. While "consultants" are not, technically
employees, a point which respondent hospital asserts
in denying all responsibility for the patient's
condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important
hallmarks of an employer-employee relationship, with
the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control
test is determining. Accordingly, on the basis of the
foregoing, we rule that for the purpose of allocating
responsibility in medical negligence cases, an
employer-employee relationship in effect exists
between hospitals and their attending and visiting
physicians. This being the case, the question now arises as
to whether or not respondent hospital is solidarily liable with
respondent doctors for petitioner's condition.
The basis for holding an employer solidarily responsible for
the negligence of its employee is found in Article 2180 of
the Civil Code which considers a person accountable not
only for his own acts but also for those of others based on
the former's responsibility under a relationship of patria
potestas. x x x40 (Emphasis supplied)
While the Court in Ramos did not expound on the control test, such
test essentially determines whether an employment relationship
exists between a physician and a hospital based on the exercise of
control over the physician as to details. Specifically, the employer
(or the hospital) must have the right to control both the means and
the details of the process by which the employee (or the physician)
is to accomplish his task.41
After a thorough examination of the voluminous records of this
case, the Court finds no single evidence pointing to CMC's exercise
of control over Dr. Estrada's treatment and management of
Corazon's condition. It is undisputed that throughout Corazon's
pregnancy, she was under the exclusive prenatal care of Dr.
Estrada. At the time of Corazon's admission at CMC and during her
delivery, it was Dr. Estrada, assisted by Dr. Villaflor, who attended
to Corazon. There was no showing that CMC had a part in

diagnosing Corazon's condition. While Dr. Estrada enjoyed staff
privileges at CMC, such fact alone did not make him an employee
of CMC.42 CMC merely allowed Dr. Estrada to use its facilities43 when
Corazon was about to give birth, which CMC considered an
emergency. Considering these circumstances, Dr. Estrada is not an
employee of CMC, but an independent contractor.
The question now is whether CMC is automatically exempt from
liability considering that Dr. Estrada is an independent contractorphysician.
In general, a hospital is not liable for the negligence of an
independent contractor-physician. There is, however, an exception
to this principle. The hospital may be liable if the physician is the
"ostensible" agent of the hospital.44This exception is also known as
the "doctrine of apparent authority."45 In Gilbert v. Sycamore
Municipal Hospital,46the Illinois Supreme Court explained the
doctrine of apparent authority in this wise:
[U]nder the doctrine of apparent authority a hospital can be
held vicariously liable for the negligent acts of a physician
providing care at the hospital, regardless of whether the
physician is an independent contractor, unless the patient
knows, or should have known, that the physician is an
independent contractor. The elements of the action have
been set out as follows:
"For a hospital to be liable under the doctrine of apparent
authority, a plaintiff must show that: (1) the hospital, or its
agent, acted in a manner that would lead a reasonable
person to conclude that the individual who was alleged to be
negligent was an employee or agent of the hospital; (2)
where the acts of the agent create the appearance of
authority, the plaintiff must also prove that the hospital had
knowledge of and acquiesced in them; and (3) the plaintiff
acted in reliance upon the conduct of the hospital or its
agent, consistent with ordinary care and prudence."
86

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The element of "holding out" on the part of the hospital does
not require an express representation by the hospital that
the person alleged to be negligent is an employee. Rather,
the element is satisfied if the hospital holds itself out as a
provider of emergency room care without informing the
patient that the care is provided by independent
contractors.
The element of justifiable reliance on the part of the plaintiff
is satisfied if the plaintiff relies upon the hospital to provide
complete emergency room care, rather than upon a specific
physician.
The doctrine of apparent authority essentially involves two factors
to determine the liability of an independent-contractor physician.
The first factor focuses on the hospital's manifestations and is
sometimes described as an inquiry whether the hospital acted in a
manner which would lead a reasonable person to conclude that the
individual who was alleged to be negligent was an employee or
agent of the hospital.47 In this regard, the hospital need not
make express representations to the patient that the
treating physician is an employee of the hospital; rather a
representation may be general and implied.48
The doctrine of apparent authority is a species of the doctrine of
estoppel. Article 1431 of the Civil Code provides that "[t]hrough
estoppel, an admission or representation is rendered conclusive
upon the person making it, and cannot be denied or disproved as
against the person relying thereon." Estoppel rests on this rule:
"Whenever a party has, by his own declaration, act, or omission,
intentionally and deliberately led another to believe a particular
thing true, and to act upon such belief, he cannot, in any litigation
arising out of such declaration, act or omission, be permitted to
falsify it."49
In the instant case, CMC impliedly held out Dr. Estrada as a

member of its medical staff. Through CMC's acts, CMC clothed Dr.
Estrada with apparent authority thereby leading the Spouses
Nogales to believe that Dr. Estrada was an employee or agent of
CMC. CMC cannot now repudiate such authority.
First, CMC granted staff privileges to Dr. Estrada. CMC extended its
medical staff and facilities to Dr. Estrada. Upon Dr. Estrada's
request for Corazon's admission, CMC, through its personnel,
readily accommodated Corazon and updated Dr. Estrada of her
condition.
Second, CMC made Rogelio sign consent forms printed on CMC
letterhead. Prior to Corazon's admission and supposed
hysterectomy, CMC asked Rogelio to sign release forms, the
contents of which reinforced Rogelio's belief that Dr. Estrada was a
member of CMC's medical staff.50 The Consent on Admission and
Agreement explicitly provides:
KNOW ALL MEN BY THESE PRESENTS:
I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del
Pilar St., Malate Mla., being the
father/mother/brother/sister/spouse/relative/ guardian/or
person in custody of Ma. Corazon, and representing his/her
family, of my own volition and free will, do consent and
submit said Ma. Corazon to Dr. Oscar Estrada (hereinafter
referred to as Physician) for cure, treatment, retreatment, or
emergency measures, that the Physician, personally or
by and through the Capitol Medical Center and/or its
staff, may use, adapt, or employ such means, forms
or methods of cure, treatment, retreatment, or
emergency measures as he may see best and most
expedient; that Ma. Corazon and I will comply with
any and all rules, regulations, directions, and
instructions of the Physician, the Capitol Medical
Center and/or its staff; and, that I will not hold liable or
responsible and hereby waive and forever discharge and
hold free the Physician, the Capitol Medical Center and/or its
staff, from any and all claims of whatever kind of nature,
arising from directly or indirectly, or by reason of said cure,
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treatment, or retreatment, or emergency measures or
intervention of said physician, the Capitol Medical Center
and/or its staff.
x x x x51 (Emphasis supplied)
While the Consent to Operation pertinently reads, thus:
I, ROGELIO NOGALES, x x x, of my own volition and free will,
do consent and submit said CORAZON NOGALES to
Hysterectomy, by the Surgical Staff and
Anesthesiologists of Capitol Medical Centerand/or
whatever succeeding operations, treatment, or emergency
measures as may be necessary and most expedient; and,
that I will not hold liable or responsible and hereby waive
and forever discharge and hold free the Surgeon, his
assistants, anesthesiologists, the Capitol Medical Center
and/or its staff, from any and all claims of whatever kind of
nature, arising from directly or indirectly, or by reason of
said operation or operations, treatment, or emergency
measures, or intervention of the Surgeon, his assistants,
anesthesiologists, the Capitol Medical Center and/or its
staff.52 (Emphasis supplied)
Without any indication in these consent forms that Dr. Estrada was
an independent contractor-physician, the Spouses Nogales could
not have known that Dr. Estrada was an independent contractor.
Significantly, no one from CMC informed the Spouses Nogales that
Dr. Estrada was an independent contractor. On the contrary, Dr.
Atencio, who was then a member of CMC Board of Directors,
testified that Dr. Estrada was part of CMC's surgical staff.53
Third, Dr. Estrada's referral of Corazon's profuse vaginal bleeding to
Dr. Espinola, who was then the Head of the Obstetrics and
Gynecology Department of CMC, gave the impression that Dr.
Estrada as a member of CMC's medical staff was collaborating with
other CMC-employed specialists in treating Corazon.
The second factor focuses on the patient's reliance. It is sometimes
characterized as an inquiry on whether the plaintiff acted in
reliance upon the conduct of the hospital or its agent, consistent

with ordinary care and prudence.54
The records show that the Spouses Nogales relied upon a perceived
employment relationship with CMC in accepting Dr. Estrada's
services. Rogelio testified that he and his wife specifically chose Dr.
Estrada to handle Corazon's delivery not only because of their
friend's recommendation, but more importantly because of Dr.
Estrada's "connection with a reputable hospital, the [CMC]." 55 In
other words, Dr. Estrada's relationship with CMC played a
significant role in the Spouses Nogales' decision in accepting Dr.
Estrada's services as the obstetrician-gynecologist for Corazon's
delivery. Moreover, as earlier stated, there is no showing that
before and during Corazon's confinement at CMC, the Spouses
Nogales knew or should have known that Dr. Estrada was not an
employee of CMC.
Further, the Spouses Nogales looked to CMC to provide the best
medical care and support services for Corazon's delivery. The Court
notes that prior to Corazon's fourth pregnancy, she used to give
birth inside a clinic. Considering Corazon's age then, the Spouses
Nogales decided to have their fourth child delivered at CMC, which
Rogelio regarded one of the best hospitals at the time.56 This is
precisely because the Spouses Nogales feared that Corazon might
experience complications during her delivery which would be better
addressed and treated in a modern and big hospital such as CMC.
Moreover, Rogelio's consent in Corazon's hysterectomy to be
performed by a different physician, namely Dr. Espinola, is a clear
indication of Rogelio's confidence in CMC's surgical staff.
CMC's defense that all it did was "to extend to [Corazon] its
facilities" is untenable. The Court cannot close its eyes to the
reality that hospitals, such as CMC, are in the business of
treatment. In this regard, the Court agrees with the observation
made by the Court of Appeals of North Carolina in Diggs v. Novant
Health, Inc.,57 to wit:
"The conception that the hospital does not undertake to
treat the patient, does not undertake to act through its
doctors and nurses, but undertakes instead simply to
procure them to act upon their own responsibility, no longer
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reflects the fact. Present day hospitals, as their manner
of operation plainly demonstrates, do far more than
furnish facilities for treatment. They regularly employ
on a salary basis a large staff of physicians, nurses
and internes [sic], as well as administrative and
manual workers, and they charge patients for
medical care and treatment, collecting for such
services, if necessary, by legal action. Certainly, the
person who avails himself of 'hospital facilities'
expects that the hospital will attempt to cure him,
not that its nurses or other employees will act on
their own responsibility." x x x (Emphasis supplied)
Likewise unconvincing is CMC's argument that petitioners are
estopped from claiming damages based on the Consent on
Admission and Consent to Operation. Both release forms consist of
two parts. The first part gave CMC permission to administer to
Corazon any form of recognized medical treatment which the CMC
medical staff deemed advisable. The second part of the documents,
which may properly be described as the releasing part, releases
CMC and its employees "from any and all claims" arising from or by
reason of the treatment and operation.
The documents do not expressly release CMC from liability for
injury to Corazon due to negligence during her treatment or
operation. Neither do the consent forms expressly exempt CMC
from liability for Corazon's death due to negligence during such
treatment or operation. Such release forms, being in the nature of
contracts of adhesion, are construed strictly against hospitals.
Besides, a blanket release in favor of hospitals "from any and all
claims," which includes claims due to bad faith or gross negligence,
would be contrary to public policy and thus void.
Even simple negligence is not subject to blanket release in favor of

establishments like hospitals but may only mitigate liability
depending on the circumstances.58 When a person needing urgent
medical attention rushes to a hospital, he cannot bargain on equal
footing with the hospital on the terms of admission and operation.
Such a person is literally at the mercy of the hospital. There can be
no clearer example of a contract of adhesion than one arising from
such a dire situation. Thus, the release forms of CMC cannot relieve
CMC from liability for the negligent medical treatment of Corazon.
On the Liability of the Other Respondents
Despite this Court's pronouncement in its 9 September
200259 Resolution that the filing of petitioners' Manifestation
confined petitioners' claim only against CMC, Dr. Espinola, Dr.
Lacson, and Dr. Uy, who have filed their comments, the Court
deems it proper to resolve the individual liability of the remaining
respondents to put an end finally to this more than two-decade old
controversy.
a) Dr. Ely Villaflor
Petitioners blame Dr. Ely Villaflor for failing to diagnose the cause of
Corazon's bleeding and to suggest the correct remedy to Dr.
Estrada.60 Petitioners assert that it was Dr. Villaflor's duty to correct
the error of Nurse Dumlao in the administration of hemacel.
The Court is not persuaded. Dr. Villaflor admitted administering a
lower dosage of magnesium sulfate. However, this was after
informing Dr. Estrada that Corazon was no longer in convulsion and
that her blood pressure went down to a dangerous level.61 At that
moment, Dr. Estrada instructed Dr. Villaflor to reduce the dosage of
magnesium sulfate from 10 to 2.5 grams. Since petitioners did not
dispute Dr. Villaflor's allegation, Dr. Villaflor's defense remains
uncontroverted. Dr. Villaflor's act of administering a lower dosage
of magnesium sulfate was not out of her own volition or was in
contravention of Dr. Estrada's order.
b) Dr. Rosa Uy
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Dr. Rosa Uy's alleged negligence consisted of her failure (1) to call
the attention of Dr. Estrada on the incorrect dosage of magnesium
sulfate administered by Dr. Villaflor; (2) to take corrective
measures; and (3) to correct Nurse Dumlao's wrong method of
hemacel administration.
The Court believes Dr. Uy's claim that as a second year resident
physician then at CMC, she was merely authorized to take the
clinical history and physical examination of Corazon.62 However,
that routine internal examination did not ipso facto make Dr. Uy
liable for the errors committed by Dr. Estrada. Further, petitioners'
imputation of negligence rests on their baseless assumption that
Dr. Uy was present at the delivery room. Nothing shows that Dr. Uy
participated in delivering Corazon's baby. Further, it is unexpected
from Dr. Uy, a mere resident physician at that time, to call the
attention of a more experienced specialist, if ever she was present
at the delivery room.
c) Dr. Joel Enriquez
Petitioners fault Dr. Joel Enriquez also for not calling the attention of
Dr. Estrada, Dr. Villaflor, and Nurse Dumlao about their
errors.63 Petitioners insist that Dr. Enriquez should have taken, or at
least suggested, corrective measures to rectify such errors.
The Court is not convinced. Dr. Enriquez is an anesthesiologist
whose field of expertise is definitely not obstetrics and gynecology.
As such, Dr. Enriquez was not expected to correct Dr. Estrada's
errors. Besides, there was no evidence of Dr. Enriquez's knowledge
of any error committed by Dr. Estrada and his failure to act upon
such observation.
d) Dr. Perpetua Lacson
Petitioners fault Dr. Perpetua Lacson for her purported delay in the
delivery of blood Corazon needed.64Petitioners claim that Dr. Lacson
was remiss in her duty of supervising the blood bank staff.
As found by the trial court, there was no unreasonable delay in the
delivery of blood from the time of the request until the transfusion
to Corazon. Dr. Lacson competently explained the procedure before

blood could be given to the patient.65 Taking into account the
bleeding time, clotting time and cross-matching, Dr. Lacson stated
that it would take approximately 45-60 minutes before blood could
be ready for transfusion.66 Further, no evidence exists that Dr.
Lacson neglected her duties as head of the blood bank.
e) Dr. Noe Espinola
Petitioners argue that Dr. Espinola should not have ordered
immediate hysterectomy without determining the underlying cause
of Corazon's bleeding. Dr. Espinola should have first considered the
possibility of cervical injury, and advised a thorough examination of
the cervix, instead of believing outright Dr. Estrada's diagnosis that
the cause of bleeding was uterine atony.
Dr. Espinola's order to do hysterectomy which was based on the
information he received by phone is not negligence. The Court
agrees with the trial court's observation that Dr. Espinola, upon
hearing such information about Corazon's condition, believed in
good faith that hysterectomy was the correct remedy. At any rate,
the hysterectomy did not push through because upon Dr. Espinola's
arrival, it was already too late. At the time, Corazon was practically
dead.
f) Nurse J. Dumlao
In Moore v. Guthrie Hospital Inc.,67 the US Court of Appeals, Fourth
Circuit, held that to recover, a patient complaining of injuries
allegedly resulting when the nurse negligently injected medicine to
him intravenously instead of intramuscularly had to show that (1)
an intravenous injection constituted a lack of reasonable and
ordinary care; (2) the nurse injected medicine intravenously; and
(3) such injection was the proximate cause of his injury.
In the present case, there is no evidence of Nurse Dumlao's alleged
failure to follow Dr. Estrada's specific instructions. Even assuming
Nurse Dumlao defied Dr. Estrada's order, there is no showing that
side-drip administration of hemacel proximately caused Corazon's
death. No evidence linking Corazon's death and the alleged
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wrongful hemacel administration was introduced. Therefore, there
is no basis to hold Nurse Dumlao liable for negligence.
Penned by Judge Rodolfo G. Palattao.
On the Award of Interest on Damages

The award of interest on damages is proper and allowed under
Article 2211 of the Civil Code, which states that in crimes and
quasi-delicts, interest as a part of the damages may, in a proper
case, be adjudicated in the discretion of the court.68
WHEREFORE, the Court PARTLY GRANTS the petition. The Court
finds respondent Capitol Medical Center vicariously liable for the
negligence of Dr. Oscar Estrada. The amounts of P105,000 as
actual damages andP700,000 as moral damages should each earn
legal interest at the rate of six percent (6%) per annum computed
from the date of the judgment of the trial court. The Court affirms
the rest of the Decision dated 6 February 1998 and Resolution
dated 21 March 2000 of the Court of Appeals in CA-G.R. CV No.
45641.
Edema is the accumulation of excess fluid. It is manifested

by the swelling of the extremities.
(http://www.preeclampsia.org/symptoms.asp)
6
A syndrome occurring in late pregnancy marked by an

increase in blood pressure, swelling of the ankles by fluid,
and the appearance of albumin in the urine, associated with
reduced blood flow to the placenta, therefore putting the
fetus at risk of death, or stillbirth, and putting the mother at
risk of complications from high blood pressure, convulsions
(eclampsia), kidney failure, liver failure and death. Treated
with drugs to lower the blood pressure and to prevent
convulsions, while expediting the delivery of the baby.
(http://www.jansen.com.au/Dictionary_PR.html)
7
Rollo, p. 42.
Exh. "A-4," Folder of Exhibits.
SO ORDERED.
Quisumbing, J., Chairperson, Carpio Morales, Tinga, and Velasco, Jr.,
JJ., concur.
10
11
12
13
14
Rollo, p. 43.
15
Docketed as Civil Case No. 131873.
16
Then Court of First Instance.
17
Records, pp. 92, 93.
Footnotes
1
Under Rule 45 of the Rules of Court.
Penned by Associate Justice Artemio G. Tuquero, with

Associate Justices Jorge S. Imperial and Eubulo G. Verzola,
concurring. Rollo, pp. 42-48.
3
Penned by Associate Justice Eubulo G. Verzola, with

Associate Justices Roberto A. Barrios and Eriberto U. Rosario,
Jr., concurring. Id. at 49.
91

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18
Records, pp. 639-644.
19
Rollo, pp. 42-48.
20
21
22
23
24
25
34
40A Am.Jur.2d Hospitals and Asylums 46, 40A Am.Jur.2d

Hospitals and Asylums 44.
35
TSN, 26 July 1984, pp. 31-32 (Rogelio Nogales).
36
Id. at 43-44.
37
TSN, 4 April 1983, pp. 48-49 (Rogelio Nogales).
38
Records, pp. 43-44.
39
378 Phil. 1198 (1999).
40
Id. at 1240-1241.
Id. at 49.
Id. at 237-240.
Id. at 238.
Id. at 207.
Id. at 258.
Id. at 283-285.
26
Id. at 312.
27
33 Ill.2d 326, 211 N.E.2d 253 (1965).
41
See Diggs v. Novant Health, Inc., 628 S.E.2d 851 (2006)

citing Hylton v. Koontz, 138 N.C.App. 629 (2000).
42
See Jones v. Tallahassee Memorial Regional Healthcare,

Inc., 923 So.2d 1245 (2006).
28
Citing Clary v. Hospital Authority of City of Marietta, 106

Ga.App. 134, 126 S.E.2d 470 (1962).
29
Citing Cramer v. Hofman, 390 F.2d 19, 23

(1968); Holzberg v. Flower and Fifth Ave. Hospitals, 39
A.D.2d 526, 330 N.Y.S.2d 682, 684 (1972); Snelson v.
Margaretville Hospital, 49 A.D.2d 991, 374 N.Y.S.2d 579, 581
(1975).
30
31
43
See Hale v. Sheikholeslam, 724 F.2d 1205 (1984) where

the US Court of Appeals, Fifth Circuit, found the physician an
independent contractor since there is no evidence or
pleading that the doctor received compensation from the
hospital or that the hospital exercised any control over his
treatment of patients. The doctor was merely allowed to use
the facilities of the hospital when, in the doctor's judgment,
hospital care was necessary.
79 A.D.2d 43, 436 N.Y.S.2d 109 (1981).
44
118 A.D.2d 988, 499 N.Y.S.2d 993 (1986).
45
32
Citing Davis v. Glaze, 182 Ga.App. 18, 354 S.E.2d 845, 849
(1987).
Sometimes referred to as the apparent, or ostensible,

agency theory. (King v. Mitchell, 31 A.D.3d 958, 819 N.Y.S.2d
169 [2006]).
46
156 Ill.2d 511, 622 N.E.2d 788 (1993).
47
Diggs v. Novant Health, Inc., supra note 41.
33
Citing Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687

(1944).
Jones v. Philpott, 702 F.Supp. 1210 (1988).
92

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48
Id.
49
De Castro v. Ginete, 137 Phil. 453 (1969), citing Sec. 3,

par. a, Rule 131 of the Rules of Court. See alsoKing v.
Mitchell, 31 A.D.3d 958, 819 N.Y.S.2d 169 (2006) where the
New York Supreme Court, Appellate Division, Third
Department, stated as follows:
As a general proposition, "[a] hospital may not be held for
the acts of an anesthetist who was not an employee of the
hospital, but one of a group of independent
contractors." Vicarious liability for medical malpractice
may be imposed, however, under an apparent, or
ostensible,
agency theory, "or, as it is sometimes called, agency
by estoppel or by holding out." "Essential to the creation
of apparent authority are words or conduct of the principal,
communicated to a third party, that give rise to the
appearance and belief that the agent possesses authority to
act on behalf of the principal." Also, the third party must
reasonably rely upon the appearance of authority created by
the principal. Finally, the third party must accept the
services of the agent in reliance upon the perceived
relationship between the agent and the principal. (emphasis
supplied and internal citations omitted)
50
In Gilbert v. Sycamore Municipal Hospital, supra note 46,

cited in York v. Rush-Presbyterian-St. Luke's Medical
Center (222 Ill.2d 147, 854 N.E.2d 635 [2006]), the Illinois
Supreme Court made a similar observation, thus:
x x x the language employed in the hospital's treatment
consent form could have led plaintiff to reasonably believe
that he would be treated by physicians and employees of
the hospital. We concluded that, upon the record before us,
the plaintiff adduced sufficient evidence to create a genuine
issue of material fact with respect to the reliance element of
the plaintiffs apparent agency claim against the hospital.
51
52
53
TSN, 17 February 1992, p. 69 (Dr. Franklin Atencio).
54
Diggs v. Novant Health, Inc., supra note 41.
55
TSN, 26 July 1984, pp. 12-13 (Rogelio Nogales).
56
Id. at 37.
57
Supra note 41, citing Rabon v. Rowan Memorial Hospital,

Inc., 269 N.C.1, 152 S.E.2d 485 (1967).
58
Article 1172 of the Civil Code provides:
"Responsibility arising from negligence in the performance

of every kind of obligation is also demandable, but such
liability may be regulated by the courts, according to the
circumstances."
59
Rollo, p. 258.
60
CA rollo, pp. 78-79.
61
Records, p. 76.
62
Id. at 59.
63
CA rollo, p. 89.
64
Id. at 90.
65
TSN, 11 November 1991, pp. 9-12.
66
Id. at 14.
93

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67
403 F.2d 366 (1968).
68
People v. Ocampo, G.R. No. 171731, 11 August 2006,

citing People v. Torellos, 448 Phil. 287, 301 (2003). See
also People v. Duban, G.R. No. 141217, 26 September 2003,
412 SCRA 131 and People v. De Vera, 371 Phil. 563 (1999).
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epublic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 160889
April 27, 2007
DR. MILAGROS L. CANTRE, Petitioner,

vs.
SPS. JOHN DAVID Z. GO and NORA S. GO, Respondents.
DECISION
QUISUMBING, J.:
For review on certiorari are the Decision1 dated October 3, 2002
and Resolution2 dated November 19, 2003 of the Court of Appeals
in CA-G.R. CV No. 58184, which affirmed with modification the
Decision3 dated March 3, 1997 of the Regional Trial Court of Quezon
City, Branch 98, in Civil Case No. Q-93-16562.
sphygmomanometer. While petitioner was massaging Noras uterus

for it to contract and stop bleeding, she ordered a droplight to
warm Nora and her baby.4 Nora remained unconscious until she
recovered.
While in the recovery room, her husband, respondent John David Z.
Go noticed a fresh gaping wound two and a half (2 ) by three and
a half (3 ) inches in the inner portion of her left arm, close to the
armpit.5 He asked the nurses what caused the injury. He was
informed it was a burn. Forthwith, on April 22, 1992, John David
filed a request for investigation.6 In response, Dr. Rainerio S. Abad,
the medical director of the hospital, called petitioner and the
assisting resident physician to explain what happened. Petitioner
said the blood pressure cuff caused the injury.
On May 7, 1992, John David brought Nora to the National Bureau of
Investigation for a physical examination, which was conducted by
medico-legal officer Dr. Floresto Arizala, Jr.7 The medico-legal officer
later testified that Noras injury appeared to be a burn and that a
droplight when placed near the skin for about 10 minutes could
cause such burn.8 He dismissed the likelihood that the wound was
caused by a blood pressure cuff as the scar was not around the
arm, but just on one side of the arm.9
The facts, culled from the records, are as follows:

Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and
Gynecology at the Dr. Jesus Delgado Memorial Hospital. She was
the attending physician of respondent Nora S. Go, who was
admitted at the said hospital on April 19, 1992.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a
baby boy. However, at around 3:30 a.m., Nora suffered profuse
bleeding inside her womb due to some parts of the placenta which
were not completely expelled from her womb after delivery.
Consequently, Nora suffered hypovolemic shock, resulting in a drop
in her blood pressure to "40" over "0." Petitioner and the assisting
resident physician performed various medical procedures to stop
the bleeding and to restore Noras blood pressure. Her blood
pressure was frequently monitored with the use of a
On May 22, 1992, Noras injury was referred to a plastic surgeon at

the Dr. Jesus Delgado Memorial Hospital for skin grafting.10 Her
wound was covered with skin sourced from her abdomen, which
consequently bore a scar as well. About a year after, on April 30,
1993, scar revision had to be performed at the same hospital. 11 The
surgical operation left a healed linear scar in Noras left arm about
three inches in length, the thickest portion rising about one-fourth
(1/4) of an inch from the surface of the skin. The costs of the skin
grafting and the scar revision were shouldered by the hospital. 12
Unfortunately, Noras arm would never be the
same.1a\^/phi1.net Aside from the unsightly mark, the pain in her
left arm remains. When sleeping, she has to cradle her wounded
arm. Her movements now are also restricted. Her children cannot
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play with the left side of her body as they might accidentally bump
the injured arm, which aches at the slightest touch.
Thus, on June 21, 1993, respondent spouses filed a complaint 13 for
damages against petitioner, Dr. Abad, and the hospital. Finding in
favor of respondent spouses, the trial court decreed:
In view of the foregoing consideration, judgment is hereby rendered
in favor of the plaintiffs and against the defendants, directing the
latters, (sic) jointly and severally
(a) to pay the sum of Five Hundred Thousand Pesos
(P500,000.00) in moral damages;
(b) to pay the sum of One Hundred Fifty Thousand Pesos
(P150,000.00) exemplary damages;
(c) to pay the sum of Eighty Thousand Pesos (P80,000.00)
nominal damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for and as
attorneys fees; and
(e) to pay Six Thousand Pesos (P6,000.00) litigation
expenses.
SO ORDERED.14
Petitioner, Dr. Abad, and the hospital all appealed to the Court of
Appeals, which affirmed with modification the trial court decision,
thus:
WHEREFORE, in view of all the foregoing, and finding no reversible
error in the appealed Decision dated March 3, 1997 of Branch 98 of
the Regional Trial Court of Quezon City in Civil Case No. Q-9316562, the same is hereby AFFIRMED, with the following
MODIFICATIONS:
1. Ordering defendant-appellant Dra. Milagros [L.] Cantre

only to pay plaintiffs-appellees John David Go and Nora S.
Go the sum of P200,000.00 as moral damages;
2. Deleting the award [of] exemplary damages, attorneys
fees and expenses of litigation;1awphi1.nt
3. Dismissing the complaint with respect to defendantsappellants Dr. Rainerio S. Abad and Delgado Clinic, Inc.;
4. Dismissing the counterclaims of defendants-appellants for
lack of merit; and
5. Ordering defendant-appellant Dra. Milagros [L.] Cantre
only to pay the costs.
SO ORDERED.15
Petitioners motion for reconsideration was denied by the Court of
Appeals. Hence, the instant petition assigning the following as
errors and issues:
I.
WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF
APPEALS COMMITTED GRAVE ABUSE OF THEIR DISCRETION WHEN,
NOTWITHSTANDING THAT BOTH PARTIES HAVE RESTED THEIR
RESPECTIVE CASES, THE LOWER COURT ADMITTED THE
ADDITIONAL EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT
TESTIFIED TO BY ANY WITNESS AND THIS DECISION OF THE LOWER
COURT WAS UPHELD BY THE COURT OF APPEALS LIKEWISE
COMMITTING GRAVE ABUSE OF DISCRETION;
II.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE
OF ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF
EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT THE
PETITIONER HAS NOT AMPLY SHOWED THAT THE DROPLIGHT DID
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NOT TOUCH THE BODY OF MRS. NORA GO, AND THIS DECISION OF
THE LOWER COURT WAS UPHELD BY THE COURT OF APPEALS
LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;
III.
OF ITS DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF
EVIDENCE PRESENTED BY THE PETITIONER, IT RULED THAT
PETITIONER DRA. CANTRE WAS NOT ABLE TO AMPLY EXPLAIN HOW
THE INJURY (BLISTERS) IN THE LEFT INNER ARM OF RESPONDENT
MRS. GO CAME ABOUT;
IV.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE
ABUSE OF ITS DISCRETION WHEN IT MADE A RULING ON THE
RESPONDENTS INJURY QUOTING THE TESTIMONY OF SOMEONE
WHO WAS NOT PRESENT AND HAS NOT SEEN THE ORIGINAL, FRESH
INJURY OF RESPONDENT MRS. NORA GO;
V.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS
DISCRETION RULED THAT PETITIONER DRA. CANTRE SHOULD HAVE
INTENDED TO INFLICT THE INJURY TO SAVE THE LIFE OF
RESPONDENT MRS. GO;
VI.
WHETHER OR NOT THE LOWER COURT AND THE COURT [OF]
APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN,
CONTRARY TO THE DETAILED PROCEDURES DONE BY PETITIONER,
BOTH RULED THAT THE RESPONDENT WAS LEFT TO THE CARE OF
THE NURSING STAFF;
VII.

OF DISCRETION WHEN, CONTRARY TO THE MEDICAL PURPOSES OF
COSMETIC SURGERY, IT RULED THAT THE COSMETIC SURGERY
MADE THE SCARS EVEN MORE UGLY AND DECLARED THE
COSMETIC SURGERY A FAILURE;
VIII.
WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC)
DISCRETION WHEN, CONTRARY TO RESPONDENTS CONTRARY
TESTIMONIES AND THE ABSENCE OF ANY TESTIMONY, IT RULED
THAT THEY ARE ENTITLED TO DAMAGES AND WHICH WAS UPHELD,
ALTHOUGH MODIFIED, BY THE COURT OF APPEALS LIKEWISE
ABUSING ITS DISCRETION.16
Petitioner contends that additional documentary exhibits not
testified to by any witness are inadmissible in evidence because
they deprived her of her constitutional right to confront the
witnesses against her. Petitioner insists the droplight could not
have touched Noras body. She maintains the injury was due to the
constant taking of Noras blood pressure. Petitioner also insinuates
the Court of Appeals was misled by the testimony of the medicolegal officer who never saw the original injury before plastic surgery
was performed. Finally, petitioner stresses that plastic surgery was
not intended to restore respondents injury to its original state but
rather to prevent further complication.
Respondents, however, counter that the genuineness and due
execution of the additional documentary exhibits were duly
admitted by petitioners counsel. Respondents point out that
petitioners blood pressure cuff theory is highly improbable, being
unprecedented in medical history and that the injury was definitely
caused by the droplight. At any rate, they argue, even if the injury
was brought about by the blood pressure cuff, petitioner was still
negligent in her duties as Noras attending physician.
Simply put, the threshold issues for resolution are: (1) Are the
questioned additional exhibits admissible in evidence? (2) Is
petitioner liable for the injury suffered by respondent Nora Go?
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Thereafter, the inquiry is whether the appellate court committed
grave abuse of discretion in its assailed issuances.
1. The accident is of a kind which ordinarily does not occur

in the absence of someones negligence;
As to the first issue, we agree with the Court of Appeals that said
exhibits are admissible in evidence. We note that the questioned
exhibits consist mostly of Noras medical records, which were
produced by the hospital during trial pursuant to a subpoena duces
tecum. Petitioners counsel admitted the existence of the same
when they were formally offered for admission by the trial court. In
any case, given the particular circumstances of this case, a ruling
on the negligence of petitioner may be made based on the res ipsa
loquitur doctrine even in the absence of such additional exhibits.
2. It is caused by an instrumentality within the exclusive

control of the defendant or defendants; and
Petitioners contention that the medico-legal officer who conducted

Noras physical examination never saw her original injury before
plastic surgery was performed is without basis and contradicted by
the records. Records show that the medico-legal officer conducted
the physical examination on May 7, 1992, while the skin grafting
and the scar revision were performed on Nora on May 22, 1992 and
April 30, 1993, respectively.
Coming now to the substantive matter, is petitioner liable for the
injury suffered by respondent Nora Go?
The Hippocratic Oath mandates physicians to give primordial
consideration to the well-being of their patients. If a doctor fails to
live up to this precept, he is accountable for his acts. This
notwithstanding, courts face a unique restraint in adjudicating
medical negligence cases because physicians are not guarantors of
care and, they never set out to intentionally cause injury to their
patients. However, intent is immaterial in negligence cases
because where negligence exists and is proven, it automatically
gives the injured a right to reparation for the damage caused.17
In cases involving medical negligence, the doctrine of res ipsa
loquitur allows the mere existence of an injury to justify a
presumption of negligence on the part of the person who controls
the instrument causing the injury, provided that the following
requisites concur:
3. The possibility of contributing conduct which would make

the plaintiff responsible is eliminated. 18
As to the first requirement, the gaping wound on Noras arm is
certainly not an ordinary occurrence in the act of delivering a baby,
far removed as the arm is from the organs involved in the process
of giving birth. Such injury could not have happened unless
negligence had set in somewhere.
Second, whether the injury was caused by the droplight or by the
blood pressure cuff is of no moment. Both instruments are deemed
within the exclusive control of the physician in charge under the
"captain of the ship" doctrine. This doctrine holds the surgeon in
charge of an operation liable for the negligence of his assistants
during the time when those assistants are under the surgeons
control.19 In this particular case, it can be logically inferred that
petitioner, the senior consultant in charge during the delivery of
Noras baby, exercised control over the assistants assigned to both
the use of the droplight and the taking of Noras blood pressure.
Hence, the use of the droplight and the blood pressure cuff is also
within petitioners exclusive control.
Third, the gaping wound on Noras left arm, by its very nature and
considering her condition, could only be caused by something
external to her and outside her control as she was unconscious
while in hypovolemic shock. Hence, Nora could not, by any stretch
of the imagination, have contributed to her own injury.
Petitioners defense that Noras wound was caused not by the
droplight but by the constant taking of her blood pressure, even if
the latter was necessary given her condition, does not absolve her
from liability. As testified to by the medico-legal officer, Dr. Arizala,
Jr., the medical practice is to deflate the blood pressure cuff
immediately after each use. Otherwise, the inflated band can cause
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injury to the patient similar to what could have happened in this
case. Thus, if Noras wound was caused by the blood pressure cuff,
then the taking of Noras blood pressure must have been done so
negligently as to have inflicted a gaping wound on her arm, 20 for
which petitioner cannot escape liability under the "captain of the
ship" doctrine.
Further, petitioners argument that the failed plastic surgery was
not intended as a cosmetic procedure, but rather as a measure to
prevent complication does not help her case. It does not negate
negligence on her part.
Based on the foregoing, the presumption that petitioner was
negligent in the exercise of her profession stands unrebutted. In
this connection, the Civil Code provides:
ART. 2176. Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage
done.
ART. 2217. Moral damages include physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury. Though
incapable of pecuniary computation, moral damages may be
recovered if they are the proximate result of the defendants
wrongful act or omission.
Clearly, under the law, petitioner is obliged to pay Nora for moral
damages suffered by the latter as a proximate result of petitioners
negligence.
We note, however, that petitioner has served well as Noras
obstetrician for her past three successful deliveries. This is the first
time petitioner is being held liable for damages due to negligence
in the practice of her profession. The fact that petitioner promptly
took care of Noras wound before infection and other complications
set in is also indicative of petitioners good intentions. We also take
note of the fact that Nora was suffering from a critical condition
when the injury happened, such that saving her life became
petitioners elemental concern. Nonetheless, it should be stressed

that all these could not justify negligence on the part of petitioner.
Hence, considering the specific circumstances in the instant case,
we find no grave abuse of discretion in the assailed decision and
resolution of the Court of Appeals. Further, we rule that the Court of
Appeals award of Two Hundred Thousand Pesos (P200,000) as
moral damages in favor of respondents and against petitioner is
just and equitable.21
WHEREFORE, the petition is DENIED. The Decision dated October
3, 2002 and Resolution dated November 19, 2003 of the Court of
Appeals in CA-G.R. CV No. 58184 are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
CONCHITA CARPIO
MORALES
Associate Justice
DANTE O. TINGA
Asscociate Justice
PRESBITERO J. VELASCO, JR.

Associate Justice
ATTESTATION
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Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the
Division 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.
REYNATO S. PUNO
Chief Justice
10
Exhibit "L," folder of exhibits, p. 42.
11
TSN, January 31, 1994, pp. 35-36.
12
TSN, April 29, 1994, p. 16; TSN, June 25, 1996, p. 23.
13
Records, pp. 1-6.
14
Id. at 227.
15
Rollo, p. 67.
16
Id. at 169-171.
17

29, 1999, 321 SCRA 584, 628.
Footnotes
1
Rollo, pp. 43-68.
Id. at 40-41.
Records, pp. 218-227.
TSN, December 5, 1995, pp. 54-55.
TSN, June 25, 1996, p. 9.
Exhibit "A," folder of exhibits, p. 1.
18
Id. at 600.
19
Blacks Law Dictionary 192, (5th ed., 1979).
20
21
See Child Learning Center, Inc. v. Tagorio, G.R. No.

150920, November 25, 2005, 476 SCRA 236, 240.
TSN, September 16, 1994, p. 6; Exhibit "D," folder of

exhibits, p. 7.
8
Id. at 23.
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SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own
behalf and as natural guardians of the minors, ROMMEL
RAMOS, ROY RODERICK RAMOS and RON RAYMOND
RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR.
ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give primordial
consideration to the health and welfare of their patients. If a doctor
fails to live up to this precept, he is made accountable for his acts.
A mistake, through gross negligence or incompetence or plain
human error, may spell the difference between life and death. In
this sense, the doctor plays God on his patient's fate. 1
In the case at bar, the Court is called upon to rule whether a
surgeon, an anesthesiologist and a hospital should be made liable
for the unfortunate comatose condition of a patient scheduled for
cholecystectomy. 2
Petitioners seek the reversal of the decision 3 of the Court of
Appeals, dated 29 May 1995, which overturned the decision 4 of the
Regional Trial Court, dated 30 January 1992, finding private
respondents liable for damages arising from negligence in the

performance of their professional duties towards petitioner Erlinda
Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial court are
reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of
June 17, 1985, a 47-year old (Exh. "A") robust woman
(TSN, October 19, 1989, p. 10). Except for occasional
complaints of discomfort due to pains allegedly
caused by the presence of a stone in her gall bladder
(TSN, January 13, 1988, pp. 4-5), she was as normal
as any other woman. Married to Rogelio E. Ramos, an
executive of Philippine Long Distance Telephone
Company, she has three children whose names are
Rommel Ramos, Roy Roderick Ramos and Ron
Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with
her normal ways, she sought professional advice. She
was advised to undergo an operation for the removal
of a stone in her gall bladder (TSN, January 13, 1988,
p. 5). She underwent a series of examinations which
included blood and urine tests (Exhs. "A" and "C")
which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr.
Buenviaje (TSN, January 13, 1988, p. 7), she and her
husband Rogelio met for the first time Dr. Orlino
Hozaka (should be Hosaka; see TSN, February 20,
1990, p. 3), one of the defendants in this case, on
June 10, 1985. They agreed that their date at the
operating table at the DLSMC (another defendant),
would be on June 17, 1985 at 9:00 A.M.. Dr. Hosaka
decided that she should undergo a
"cholecystectomy" operation after examining the
documents (findings from the Capitol Medical Center,
FEU Hospital and DLSMC) presented to him. Rogelio
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E. Ramos, however, asked Dr. Hosaka to look for a
good anesthesiologist. Dr. Hosaka, in turn, assured
Rogelio that he will get a good anesthesiologist. Dr.
Hosaka charged a fee of P16,000.00, which was to
include the anesthesiologist's fee and which was to
be paid after the operation (TSN, October 19, 1989,
pp. 14-15, 22-23, 31-33; TSN, February 27, 1990, p.
13; and TSN, November 9, 1989, pp. 3-4, 10, 17).
A day before the scheduled date of operation, she
was admitted at one of the rooms of the DLSMC,
located along E. Rodriguez Avenue, Quezon City
(TSN, October 19,1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in
her room, she was prepared for the operation by the
hospital staff. Her sister-in-law, Herminda Cruz, who
was the Dean of the College of Nursing at the Capitol
Medical Center, was also there for moral support. She
reiterated her previous request for Herminda to be
with her even during the operation. After praying,
she was given injections. Her hands were held by
Herminda as they went down from her room to the
operating room (TSN, January 13, 1988, pp. 9-11).
Her husband, Rogelio, was also with her (TSN,
October 19, 1989, p. 18). At the operating room,
Herminda saw about two or three nurses and Dr.
Perfecta Gutierrez, the other defendant, who was to
administer anesthesia. Although not a member of the
hospital staff, Herminda introduced herself as Dean
of the College of Nursing at the Capitol Medical
Center who was to provide moral support to the
patient, to them. Herminda was allowed to stay
inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby
phone to look for Dr. Hosaka who was not yet in
(TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez
thereafter informed Herminda Cruz about the
prospect of a delay in the arrival of Dr. Hosaka.
Herminda then went back to the patient who asked,
"Mindy, wala pa ba ang Doctor"? The former replied,

"Huwag kang mag-alaala, darating na iyon" (Ibid.).
Thereafter, Herminda went out of the operating room
and informed the patient's husband, Rogelio, that the
doctor was not yet around (id., p. 13). When she
returned to the operating room, the patient told her,
"Mindy, inip na inip na ako, ikuha mo ako ng ibang
Doctor." So, she went out again and told Rogelio
about what the patient said (id., p. 15). Thereafter,
she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was "already
dying [and] waiting for the arrival of the doctor" even
as he did his best to find somebody who will allow
him to pull out his wife from the operating room
(TSN, October 19, 1989, pp. 19-20). He also thought
of the feeling of his wife, who was inside the
operating room waiting for the doctor to arrive (ibid.).
At almost 12:00 noon, he met Dr. Garcia who
remarked that he (Dr. Garcia) was also tired of
waiting for Dr. Hosaka to arrive (id., p. 21). While
talking to Dr. Garcia at around 12:10 P.M., he came to
know that Dr. Hosaka arrived as a nurse remarked,
"Nandiyan na si Dr. Hosaka, dumating na raw." Upon
hearing those words, he went down to the lobby and
waited for the operation to be completed (id., pp. 16,
29-30).
At about 12:15 P.M., Herminda Cruz, who was inside
the operating room with the patient, heard somebody
say that "Dr. Hosaka is already here." She then saw
people inside the operating room "moving, doing this
and that, [and] preparing the patient for the
operation" (TSN, January 13, 1988, p. 16). As she
held the hand of Erlinda Ramos, she then saw Dr.
Gutierrez intubating the hapless patient. She
thereafter heard Dr. Gutierrez say, "ang hirap maintubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan" (id., p. 17). Because of the
remarks of Dra. Gutierrez, she focused her attention
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on what Dr. Gutierrez was doing. She thereafter
noticed bluish discoloration of the nailbeds of the left
hand of the hapless Erlinda even as Dr. Hosaka
approached her. She then heard Dr. Hosaka issue an
order for someone to call Dr. Calderon, another
anesthesiologist (id., p. 19). After Dr. Calderon
arrived at the operating room, she saw this
anesthesiologist trying to intubate the patient. The
patient's nailbed became bluish and the patient was
placed in a trendelenburg position a position
where the head of the patient is placed in a position
lower than her feet which is an indication that there
is a decrease of blood supply to the patient's brain
(Id., pp. 19-20). Immediately thereafter, she went out
of the operating room, and she told Rogelio E. Ramos
"that something wrong was . . . happening" (Ibid.).
Dr. Calderon was then able to intubate the patient
(TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating
room, saw a respiratory machine being rushed
towards the door of the operating room. He also saw
several doctors rushing towards the operating room.
When informed by Herminda Cruz that something
wrong was happening, he told her (Herminda) to be
back with the patient inside the operating room (TSN,
October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw
that the patient was still in trendelenburg position
(TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of
that fateful day, she saw the patient taken to the
Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was

able to talk to Dr. Hosaka. The latter informed the
former that something went wrong during the
intubation. Reacting to what was told to him, Rogelio
reminded the doctor that the condition of his wife
would not have happened, had he (Dr. Hosaka)
looked for a good anesthesiologist (TSN, October 19,
1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the
hospital to explain what happened to the patient. The
doctors explained that the patient had bronchospasm
(TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About
four months thereafter or on November 15, 1985, the
patient was released from the hospital.
During the whole period of her confinement, she
incurred hospital bills amounting to P93,542.25 which
is the subject of a promissory note and affidavit of
undertaking executed by Rogelio E. Ramos in favor of
DLSMC. Since that fateful afternoon of June 17, 1985,
she has been in a comatose condition. She cannot do
anything. She cannot move any part of her body. She
cannot see or hear. She is living on mechanical
means. She suffered brain damage as a result of the
absence of oxygen in her brain for four to five
minutes (TSN, November 9, 1989, pp. 21-22). After
being discharged from the hospital, she has been
staying in their residence, still needing constant
medical attention, with her husband Rogelio incurring
a monthly expense ranging from P8,000.00 to
P10,000.00 (TSN, October 19, 1989, pp. 32-34). She
was also diagnosed to be suffering from "diffuse
cerebral parenchymal damage" (Exh. "G"; see
also TSN, December 21, 1989,
p. 6). 5
Thus, on 8 January 1986, petitioners filed a civil case 6 for damages
with the Regional Trial Court of Quezon City against herein private
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respondents alleging negligence in the management and care of
Erlinda Ramos.
During the trial, both parties presented evidence as to the possible
cause of Erlinda's injury. Plaintiff presented the testimonies of Dean
Herminda Cruz and Dr. Mariano Gavino to prove that the sustained
by Erlinda was due to lack of oxygen in her brain caused by the
faulty management of her airway by private respondents during the
anesthesia phase. On the other hand, private respondents primarily
relied on the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain damage was
Erlinda's allergic reaction to the anesthetic agent, Thiopental
Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial
Court rendered judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the finding
of facts set forth earlier, and applying the aforecited
provisions of law and jurisprudence to the case at
bar, this Court finds and so holds that defendants are
liable to plaintiffs for damages. The defendants were
guilty of, at the very least, negligence in the
performance of their duty to plaintiff-patient Erlinda
Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds

that she omitted to exercise reasonable care in not
only intubating the patient, but also in not repeating
the administration of atropine (TSN, August 20, 1991,
pp. 5-10), without due regard to the fact that the
patient was inside the operating room for almost
three (3) hours. For after she committed a mistake in
intubating [the] patient, the patient's nailbed
became bluish and the patient, thereafter, was
placed in trendelenburg position, because of the
decrease of blood supply to the patient's brain. The
evidence further shows that the hapless patient
suffered brain damage because of the absence of
oxygen in her (patient's) brain for approximately four
to five minutes which, in turn, caused the patient to
become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that
he is liable for the acts of Dr. Perfecta Gutierrez
whom he had chosen to administer anesthesia on the
patient as part of his obligation to provide the patient
a good anesthesiologist', and for arriving for the
scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds
that it is liable for the acts of negligence of the
doctors in their "practice of medicine" in the
operating room. Moreover, the hospital is liable for
failing through its responsible officials, to cancel the
scheduled operation after Dr. Hosaka inexcusably
failed to arrive on time.
In having held thus, this Court rejects the defense
raised by defendants that they have acted with due
care and prudence in rendering medical services to
plaintiff-patient. For if the patient was properly
intubated as claimed by them, the patient would not
have become comatose. And, the fact that another
anesthesiologist was called to try to intubate the
patient after her (the patient's) nailbed turned bluish,
belie their claim. Furthermore, the defendants should
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Tin Simbran
have rescheduled the operation to a later date. This,
they should have done, if defendants acted with due
care and prudence as the patient's case was an
elective, not an emergency case.
xxx xxx xxx
WHEREFORE, and in view of the foregoing, judgment
is rendered in favor of the plaintiffs and against the
defendants. Accordingly, the latter are ordered to
pay, jointly and severally, the former the following
sums of money, to wit:
1) the sum of P8,000.00 as actual
monthly expenses for the plaintiff
Erlinda Ramos reckoned from
November 15, 1985 or in the total sum
of P632,000.00 as of April 15, 1992,
subject to its being updated;
2) the sum of P100,000.00 as
reasonable attorney's fees;
3) the sum of P800,000.00 by way of
moral damages and the further sum of
P200,000,00 by way of exemplary
damages; and,
4) the costs of the suit.
SO ORDERED.
Private respondents seasonably interposed an appeal to the Court

of Appeals. The appellate court rendered a Decision, dated 29 May
1995, reversing the findings of the trial court. The decretal portion
of the decision of the appellate court reads:
WHEREFORE, for the foregoing premises the
appealed decision is hereby REVERSED, and the
complaint below against the appellants is hereby
ordered DISMISSED. The counterclaim of appellant

De Los Santos Medical Center is GRANTED but only
insofar as appellees are hereby ordered to pay the
unpaid hospital bills amounting to P93,542.25, plus
legal interest for justice must be tempered with
mercy.
SO ORDERED.
The decision of the Court of Appeals was received on 9 June 1995

by petitioner Rogelio Ramos who was mistakenly addressed as
"Atty. Rogelio Ramos." No copy of the decision, however, was sent
nor received by the Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the appellate court to a
new lawyer, Atty. Ligsay, only on 20 June 1995, or four (4) days
before the expiration of the reglementary period for filing a motion
for reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion for
reconsideration. The motion for reconsideration was submitted on 4
July 1995. However, the appellate court denied the motion for
extension of time in its Resolution dated 25 July 1995. 9Meanwhile,
petitioners engaged the services of another counsel, Atty. Sillano,
to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion
to admit the motion for reconsideration contending that the period
to file the appropriate pleading on the assailed decision had not yet
commenced to run as the Division Clerk of Court of the Court of
Appeals had not yet served a copy thereof to the counsel on record.
Despite this explanation, the appellate court still denied the motion
to admit the motion for reconsideration of petitioners in its
Resolution, dated 29 March 1996, primarily on the ground that the
fifteen-day (15) period for filing a motion for reconsideration had
already expired, to wit:
We said in our Resolution on July 25, 1995, that the
filing of a Motion for Reconsideration cannot be
extended; precisely, the Motion for Extension (Rollo,
p. 12) was denied. It is, on the other hand, admitted
in the latter Motion that plaintiffs/appellees received
a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for
Reconsideration expired on June 24. The Motion for
105

Tin Simbran
Reconsideration, in turn, was received by the Court
of Appeals already on July 4, necessarily, the 15-day
period already passed. For that alone, the latter
should be denied.
Even assuming admissibility of the Motion for the
Reconsideration, but after considering the
Comment/Opposition, the former, for lack of merit, is
hereby DENIED.
SO ORDERED.
10
A copy of the above resolution was received by Atty. Sillano on 11

April 1996. The next day, or on 12 April 1996, Atty. Sillano filed
before this Court a motion for extension of time to file the present
petition for certiorari under Rule 45. The Court granted the motion
for extension of time and gave petitioners additional thirty (30)
days after the expiration of the fifteen-day (15) period counted
from the receipt of the resolution of the Court of Appeals within
which to submit the petition. The due date fell on 27 May 1996. The
petition was filed on 9 May 1996, well within the extended period
given by the Court.
Petitioners assail the decision of the Court of Appeals on the
following grounds:
I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES
OF RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON
AND DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE
RESPONDENTS DID NOT CAUSE THE UNFORTUNATE
COMATOSE CONDITION OF PETITIONER ERLINDA
RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA

LOQUITUR. 11
Before we discuss the merits of the case, we shall first dispose of
the procedural issue on the timeliness of the petition in relation to
the motion for reconsideration filed by petitioners with the Court of
Appeals. In their
Comment, 12 private respondents contend that the petition should
not be given due course since the motion for reconsideration of the
petitioners on the decision of the Court of Appeals was validly
dismissed by the appellate court for having been filed beyond the
reglementary period. We do not agree.
A careful review of the records reveals that the reason behind the
delay in filing the motion for reconsideration is attributable to the
fact that the decision of the Court of Appeals was not sent to then
counsel on record of petitioners, the Coronel Law Office. In fact, a
copy of the decision of the appellate court was instead sent to and
received by petitioner Rogelio Ramos on 9 June 1995 wherein he
was mistakenly addressed as Atty. Rogelio Ramos. Based on the
other communications received by petitioner Rogelio Ramos, the
appellate court apparently mistook him for the counsel on record.
Thus, no copy of the decision of the counsel on record. Petitioner,
not being a lawyer and unaware of the prescriptive period for filing
a motion for reconsideration, referred the same to a legal counsel
only on 20 June 1995.
It is elementary that when a party is represented by counsel, all
notices should be sent to the party's lawyer at his given address.
With a few exceptions, notice to a litigant without notice to his
counsel on record is no notice at all. In the present case, since a
copy of the decision of the appellate court was not sent to the
counsel on record of petitioner, there can be no sufficient notice to
speak of. Hence, the delay in the filing of the motion for
reconsideration cannot be taken against petitioner. Moreover, since
the Court of Appeals already issued a second Resolution, dated 29
March 1996, which superseded the earlier resolution issued on 25
July 1995, and denied the motion for reconsideration of petitioner,
we believed that the receipt of the former should be considered in
determining the timeliness of the filing of the present petition.
Based on this, the petition before us was submitted on time.
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After resolving the foregoing procedural issue, we shall now look
into the merits of the case. For a more logical presentation of the
discussion we shall first consider the issue on the applicability of
the doctrine of res ipsa loquitur to the instant case. Thereafter, the
first two assigned errors shall be tackled in relation to the res ipsa
loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means "the thing
or the transaction speaks for itself." The phrase "res ipsa loquitur''
is a maxim for the rule that the fact of the occurrence of an injury,
taken with the surrounding circumstances, may permit an inference
or raise a presumption of negligence, or make out a
plaintiff's prima faciecase, and present a question of fact for
defendant to meet with an explanation. 13 Where the thing which
caused the injury complained of is shown to be under the
management of the defendant or his servants and the accident is
such as in ordinary course of things does not happen if those who
have its management or control use proper care, it affords
reasonable evidence, in the absence of explanation by the
defendant, that the accident arose from or was caused by the
defendant's want of care. 14
The doctrine of res ipsa loquitur is simply a recognition of the
postulate that, as a matter of common knowledge and experience,
the very nature of certain types of occurrences may justify an
inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some
explanation by the defendant who is charged with negligence. 15 It
is grounded in the superior logic of ordinary human experience and
on the basis of such experience or common knowledge, negligence
may be deduced from the mere occurrence of the accident
itself. 16 Hence, res ipsa loquitur is applied in conjunction with the
doctrine of common knowledge.
However, much has been said that res ipsa loquitur is not a rule of
substantive law and, as such, does not create or constitute an
independent or separate ground of liability. 17 Instead, it is
considered as merely evidentiary or in the nature of a procedural
rule. 18 It is regarded as a mode of proof, or a mere procedural of
convenience since it furnishes a substitute for, and relieves a
plaintiff of, the burden of producing specific proof of
negligence. 19 In other words, mere invocation and application of

the doctrine does not dispense with the requirement of proof of
negligence. It is simply a step in the process of such proof,
permitting the plaintiff to present along with the proof of the
accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence, and
to thereby place on the defendant the burden of going forward with
the proof. 20 Still, before resort to the doctrine may be allowed, the
following requisites must be satisfactorily shown:
1. The accident is of a kind which
ordinarily does not occur in the
absence of someone's negligence;
2. It is caused by an instrumentality
within the exclusive control of the
defendant or defendants; and
3. The possibility of contributing
conduct which would make the plaintiff
responsible is eliminated. 21
In the above requisites, the fundamental element is the "control of
instrumentality" which caused the damage. 22Such element of
control must be shown to be within the dominion of the defendant.
In order to have the benefit of the rule, a plaintiff, in addition to
proving injury or damage, must show a situation where it is
applicable, and must establish that the essential elements of the
doctrine were present in a particular incident. 23
Medical malpractice 24 cases do not escape the application of this
doctrine. Thus, res ipsa loquitur has been applied when the
circumstances attendant upon the harm are themselves of such a
character as to justify an inference of negligence as the cause of
that harm. 25 The application of res ipsa loquitur in medical
negligence cases presents a question of law since it is a judicial
function to determine whether a certain set of circumstances does,
as a matter of law, permit a given inference.26
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Although generally, expert medical testimony is relied upon in
malpractice suits to prove that a physician has done a negligent act
or that he has deviated from the standard medical procedure, when
the doctrine of res ipsa loquitur is availed by the plaintiff, the need
for expert medical testimony is dispensed with because the injury
itself provides the proof of negligence. 27 The reason is that the
general rule on the necessity of expert testimony applies only to
such matters clearly within the domain of medical science, and not
to matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the
facts. 28 Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has
been treated or operated upon with a reasonable degree of skill
and care. However, testimony as to the statements and acts of
physicians and surgeons, external appearances, and manifest
conditions which are observable by any one may be given by nonexpert witnesses. 29 Hence, in cases where theres 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. 30 Where common
knowledge and experience teach that a resulting injury would not
have occurred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an application
of the doctrine of res ipsa loquitur without medical evidence, which
is ordinarily required to show not only what occurred but how and
why it occurred.31 When the doctrine is appropriate, all that the
patient must do is prove a nexus between the particular act or
omission complained of and the injury sustained while under the
custody and management of the defendant without need to
produce expert medical testimony to establish the standard of care.
Resort to res ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the patient can
obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the
following situations: leaving of a foreign object in the body of the
patient after an operation, 32 injuries sustained on a healthy part of
the body which was not under, or in the area, of
treatment, 33 removal of the wrong part of the body when another
part was intended, 34 knocking out a tooth while a patient's jaw was
under anesthetic for the removal of his tonsils, 35 and loss of an eye
while the patient plaintiff was under the influence of anesthetic,
during or following an operation for appendicitis, 36 among others.
Nevertheless, despite the fact that the scope of res ipsa
loquitur has been measurably enlarged, it does not automatically
apply to all cases of medical negligence as to mechanically shift the
burden of proof to the defendant to show that he is not guilty of the
ascribed negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each case. It is
generally restricted to situations in malpractice cases where a
layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not
as such as would ordinarily have followed if due care had been
exercised. 37 A distinction must be made between the failure to
secure results, and the occurrence of something more unusual and
not ordinarily found if the service or treatment rendered followed
the usual procedure of those skilled in that particular practice. It
must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves
the merits of a diagnosis or of a scientific treatment. 38 The
physician or surgeon is not required at his peril to explain why any
particular diagnosis was not correct, or why any particular scientific
treatment did not produce the desired result. 39 Thus, res ipsa
loquitur is not available in a malpractice suit if the only showing is
that the desired result of an operation or treatment was not
accomplished. 40 The real question, therefore, is whether or not in
the process of the operation any extraordinary incident or unusual
event outside of the routine performance occurred which is beyond
the regular scope of customary professional activity in such
operations, which, if unexplained would themselves reasonably
speak to the average man as the negligent cause or causes of the
untoward consequence. 41 If there was such extraneous
interventions, the doctrine of res ipsa loquitur may be utilized and
the defendant is called upon to explain the matter, by evidence of
exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in the case at
bar. As will hereinafter be explained, the damage sustained by
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Erlinda in her brain prior to a scheduled gall bladder operation
presents a case for the application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss
vs. Bridwell, 43 where the Kansas Supreme Court in applying theres
ipsa loquitur stated:
The plaintiff herein submitted himself for a mastoid
operation and delivered his person over to the care,
custody and control of his physician who had
complete and exclusive control over him, but the
operation was never performed. At the time of
submission he was neurologically sound and
physically fit in mind and body, but he suffered
irreparable damage and injury rendering him
decerebrate and totally incapacitated. The injury was
one which does not ordinarily occur in the process of
a mastoid operation or in the absence of negligence
in the administration of an anesthetic, and in the use
and employment of an endoctracheal tube. Ordinarily
a person being put under anesthesia is not rendered
decerebrate as a consequence of administering such
anesthesia in the absence of negligence. Upon these
facts and under these circumstances a layman would
be able to say, as a matter of common knowledge
and observation, that the consequences of
professional treatment were not as such as would
ordinarily have followed if due care had been
exercised.
Here the plaintiff could not have been guilty of
contributory negligence because he was under the
influence of anesthetics and unconscious, and the
circumstances are such that the true explanation of
event is more accessible to the defendants than to
the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and circumstances
alleged in Count II it is held that a cause of action is
stated under the doctrine of res ipsa loquitur. 44
Indeed, the principles enunciated in the aforequoted case apply

with equal force here. In the present case, Erlinda submitted herself
for cholecystectomy and expected a routine general surgery to be
performed on her gall bladder. On that fateful day she delivered her
person over to the care, custody and control of private respondents
who exercised complete and exclusive control over her. At the time
of submission, Erlinda was neurologically sound and, except for a
few minor discomforts, was likewise physically fit in mind and body.
However, during the administration of anesthesia and prior to the
performance of cholecystectomy she suffered irreparable damage
to her brain. Thus, without undergoing surgery, she went out of the
operating room already decerebrate and totally incapacitated.
Obviously, brain damage, which Erlinda sustained, is an injury
which does not normally occur in the process of a gall bladder
operation. In fact, this kind of situation does not in the absence of
negligence of someone in the administration of anesthesia and in
the use of endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia if the proper procedure was
followed. Furthermore, the instruments used in the administration
of anesthesia, including the endotracheal tube, were all under the
exclusive control of private respondents, who are the physicians-incharge. Likewise, petitioner Erlinda could not have been guilty of
contributory negligence because she was under the influence of
anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the
brain) is injured or destroyed while the patient is unconscious and
under the immediate and exclusive control of the physicians, we
hold that a practical administration of justice dictates the
application of res ipsa loquitur. Upon these facts and under these
circumstances the Court would be able to say, as a matter of
common knowledge and observation, if negligence attended the
management and care of the patient. Moreover, the liability of the
physicians and the hospital in this case is not predicated upon an
alleged failure to secure the desired results of an operation nor on
an alleged lack of skill in the diagnosis or treatment as in fact no
operation or treatment was ever performed on Erlinda. Thus, upon
all these initial determination a case is made out for the application
of the doctrine of res ipsa loquitur.
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Nonetheless, in holding that res ipsa loquitur is available to the
present case we are not saying that the doctrine is applicable in
any and all cases where injury occurs to a patient while under
anesthesia, or to any and all anesthesia cases. Each case must be
viewed in its own light and scrutinized in order to be within the res
ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine
and the presumption of negligence allowed therein, the Court now
comes to the issue of whether the Court of Appeals erred in finding
that private respondents were not negligent in the care of Erlinda
during the anesthesia phase of the operation and, if in the
affirmative, whether the alleged negligence was the proximate
cause of Erlinda's comatose condition. Corollary thereto, we shall
also determine if the Court of Appeals erred in relying on the
testimonies of the witnesses for the private respondents.
In the instant case, the records are helpful in furnishing not only the
logical scientific evidence of the pathogenesis of the injury but also
in providing the Court the legal nexus upon which liability is based.
As will be shown hereinafter, private respondents' own testimonies
which are reflected in the transcript of stenographic notes are
replete of signposts indicative of their negligence in the care and
management of Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care of
Erlinda during the anesthesia phase. As borne by the records,
respondent Dra. Gutierrez failed to properly intubate the patient.
This fact was attested to by Prof. Herminda Cruz, Dean of the
Capitol Medical Center School of Nursing and petitioner's sister-inlaw, who was in the operating room right beside the patient when
the tragic event occurred. Witness Cruz testified to this effect:
ATTY. PAJARES:
In sustaining the position of private respondents, the Court of

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

Gutierrez do, if any on the patient?
A: In particular, I could see that she
was intubating the patient.
Q: Do you know what happened to that
intubation process administered by
Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As have said, I was with the patient,
I was beside the stretcher holding the
left hand of the patient and all of a
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sudden heard some remarks coming
from Dra. Perfecta Gutierrez herself.
She was saying "Ang hirap maintubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan.
xxx xxx xxx
ATTY. PAJARES:
Q: From whom did you hear those
words "lumalaki ang tiyan"?
A: From Dra. Perfecta Gutierrez.
xxx xxx xxx
Q: After hearing the phrase "lumalaki
ang tiyan," what did you notice on the
person of the patient?
A: I notice (sic) some bluish
discoloration on the nailbeds of the left
hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then
at that particular time?
Q: Did Dr. Calderon, upon being called,

arrive inside the operating room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to
intubate the patient, after a while the
patient's nailbed became bluish and I
saw the patient was placed in
trendelenburg position.
xxx xxx xxx
Q: Do you know the reason why the
patient was placed in that
trendelenburg position?
A: As far as I know, when a patient is in
that position, there is a decrease of
blood supply to the brain. 46
xxx xxx xxx
A: I saw him approaching the patient

during that time.
Q: When he approached the patient,
what did he do, if any?
A: He made an order to call on the
anesthesiologist in the person of Dr.
Calderon.
The appellate court, however, disbelieved Dean Cruz's testimony in

the trial court by declaring that:
A perusal of the standard nursing curriculum in our
country will show that intubation is not taught as part
of nursing procedures and techniques. Indeed, we
take judicial notice of the fact that nurses do not, and
cannot, intubate. Even on the assumption that she is
fully capable of determining whether or not a patient
is properly intubated, witness Herminda Cruz,
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admittedly, did not peep into the throat of the
patient. (TSN, July 25, 1991, p. 13). More importantly,
there is no evidence that she ever auscultated the
patient or that she conducted any type of
examination to check if the endotracheal tube was in
its proper place, and to determine the condition of
the heart, lungs, and other organs. Thus, witness
Cruz's categorical statements that appellant Dra.
Gutierrez failed to intubate the appellee Erlinda
Ramos and that it was Dra. Calderon who succeeded
in doing so clearly suffer from lack of sufficient
factual bases. 47
In other words, what the Court of Appeals is trying to impress is
that being a nurse, and considered a layman in the process of
intubation, witness Cruz is not competent to testify on whether or
not the intubation was a success.
We do not agree with the above reasoning of the appellate court.
Although witness Cruz is not an anesthesiologist, she can very well
testify upon matters on which she is capable of observing such as,
the statements and acts of the physician and surgeon, external
appearances, and manifest conditions which are observable by any
one. 48 This is precisely allowed under the doctrine of res ipsa
loquitur where the testimony of expert witnesses is not required. It
is the accepted rule that expert testimony is not necessary for the
proof of negligence in non-technical matters or those of which an
ordinary person may be expected to have knowledge, or where the
lack of skill or want of care is so obvious as to render expert
testimony unnecessary. 49 We take judicial notice of the fact that
anesthesia procedures have become so common, that even an
ordinary person can tell if it was administered properly. As such, it
would not be too difficult to tell if the tube was properly inserted.
This kind of observation, we believe, does not require a medical
degree to be acceptable.
At any rate, without doubt, petitioner's witness, an experienced
clinical nurse whose long experience and scholarship led to her
appointment as Dean of the Capitol Medical Center School at
Nursing, was fully capable of determining whether or not the
intubation was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse and clinical

instructor in a teaching hospital, the FEU-NRMF; Dean of the
Laguna College of Nursing in San Pablo City; and then Dean of the
Capitol Medical Center School of Nursing. 50Reviewing witness Cruz'
statements, we find that the same were delivered in a
straightforward manner, with the kind of detail, clarity, consistency
and spontaneity which would have been difficult to fabricate. With
her clinical background as a nurse, the Court is satisfied that she
was able to demonstrate through her testimony what truly
transpired on that fateful day.
Most of all, her testimony was affirmed by no less than respondent
Dra. Gutierrez who admitted that she experienced difficulty in
inserting the tube into Erlinda's trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora,
while you were intubating at your first
attempt (sic), you did not immediately
see the trachea?
DRA. GUTIERREZ:
A: Yes sir.
Q: Did you pull away the tube
immediately?
A: You do not pull the . . .
Q: Did you or did you not?
A: I did not pull the tube.
Q: When you said "mahirap yata ito,"
what were you referring to?
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Tin Simbran
A: "Mahirap yata itong i-intubate," that
was the patient.
Q: So, you found some difficulty in
inserting the tube?
A: Yes, because of (sic) my first
attempt, I did not see right away.
51
Curiously in the case at bar, respondent Dra. Gutierrez made the

haphazard defense that she encountered hardship in the insertion
of the tube in the trachea of Erlinda because it was positioned more
anteriorly (slightly deviated from the normal anatomy of a
person) 52 making it harder to locate and, since Erlinda is obese and
has a short neck and protruding teeth, it made intubation even
more difficult.
The argument does not convince us. If this was indeed observed,
private respondents adduced no evidence demonstrating that they
proceeded to make a thorough assessment of Erlinda's airway,
prior to the induction of anesthesia, even if this would mean
postponing the procedure. From their testimonies, it appears that
the observation was made only as an afterthought, as a means of
defense.
The pre-operative evaluation of a patient prior to the administration
of anesthesia is universally observed to lessen the possibility of
anesthetic accidents. Pre-operative evaluation and preparation for
anesthesia begins when the anesthesiologist reviews the patient's
medical records and visits with the patient, traditionally, the day
before elective surgery. 53 It includes taking the patient's medical
history, review of current drug therapy, physical examination and
interpretation of laboratory data. 54 The physical examination
performed by the anesthesiologist is directed primarily toward the
central nervous system, cardiovascular system, lungs and upper
airway. 55 A thorough analysis of the patient's airway normally
involves investigating the following: cervical spine mobility,
temporomandibular mobility, prominent central incisors, diseased
or artificial teeth, ability to visualize uvula and the thyromental
distance. 56 Thus, physical characteristics of the patient's upper
airway that could make tracheal intubation difficult should be

studied. 57 Where the need arises, as when initial assessment
indicates possible problems (such as the alleged short neck and
protruding teeth of Erlinda) a thorough examination of the patient's
airway would go a long way towards decreasing patient morbidity
and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she saw
Erlinda for the first time on the day of the operation itself, on 17
June 1985. Before this date, no prior consultations with, or preoperative evaluation of Erlinda was done by her. Until the day of
the operation, respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was likewise not
properly informed of the possible difficulties she would face during
the administration of anesthesia to Erlinda. Respondent Dra.
Gutierrez' act of seeing her patient for the first time only an hour
before the scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with human
lives lie at the core of the physician's centuries-old Hippocratic
Oath. Her failure to follow this medical procedure is, therefore, a
clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this
omission by playing around with the trial court's ignorance of
clinical procedure, hoping that she could get away with it.
Respondent Dra. Gutierrez tried to muddle the difference between
an elective surgery and an emergency surgery just so her failure to
perform the required pre-operative evaluation would escape
unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is
good medical practice to see the
patient a day before so you can
introduce yourself to establish good
doctor-patient relationship and gain
the trust and confidence of the
patient?
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DRA. GUTIERREZ:
A: As I said in my previous statement,
it depends on the operative procedure
of the anesthesiologist and in my case,
with elective cases and normal cardiopulmonary clearance like that, I usually
don't do it except on emergency and
on cases that have an abnormalities
(sic). 58
However, the exact opposite is true. In an emergency procedure,
there is hardly enough time available for the fastidious demands of
pre-operative procedure so that an anesthesiologist is able to see
the patient only a few minutes before surgery, if at all. Elective
procedures, on the other hand, are operative procedures that can
wait for days, weeks or even months. Hence, in these cases, the
anesthesiologist possesses the luxury of time to be at the patient's
beside to do a proper interview and clinical evaluation. There is
ample time to explain the method of anesthesia, the drugs to be
used, and their possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at least one
day before the intended surgery, when the patient is relaxed and
cooperative.
Erlinda's case was elective and this was known to respondent Dra.
Gutierrez. Thus, she had all the time to make a thorough evaluation
of Erlinda's case prior to the operation and prepare her for
anesthesia. However, she never saw the patient at the bedside.
She herself admitted that she had seen petitioner only in the
operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take advantage of this
important opportunity. As such, her attempt to exculpate herself
must fail.
Having established that respondent Dra. Gutierrez failed to perform
pre-operative evaluation of the patient which, in turn, resulted to a
wrongful intubation, we now determine if the faulty intubation is
truly the proximate cause of Erlinda's comatose condition.
Private respondents repeatedly hammered the view that the

cerebral anoxia which led to Erlinda's coma was due to
bronchospasm 59 mediated by her allergic response to the drug,
Thiopental Sodium, introduced into her system. Towards this end,
they presented Dr. Jamora, a Fellow of the Philippine College of
Physicians and Diplomate of the Philippine Specialty Board of
Internal Medicine, who advanced private respondents' theory that
the oxygen deprivation which led to anoxic encephalopathy, 60 was
due to an unpredictable drug reaction to the short-acting
barbiturate. We find the theory of private respondents
unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field
of anesthesiology simply because he is not an anesthesiologist.
Since Dr. Jamora is a pulmonologist, he could not have been
capable of properly enlightening the court about anesthesia
practice and procedure and their complications. Dr. Jamora is
likewise not an allergologist and could not therefore properly
advance expert opinion on allergic-mediated processes. Moreover,
he is not a pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit, Thiopental
Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamora's
testimony as an expert witness in the anesthetic practice of
Pentothal administration is further supported by his own admission
that he formulated his opinions on the drug not from the practical
experience gained by a specialist or expert in the administration
and use of Sodium Pentothal on patients, but only from reading
certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on
pulmonology, did you have any
occasion to use pentothal as a method
of management?
DR. JAMORA:
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A: We do it in conjunction with the
anesthesiologist when they have to
intubate our patient.
Q: But not in particular when you
practice pulmonology?
A: No.
Q: In other words, your knowledge
about pentothal is based only on what
you have read from books and not by
your own personal application of the
medicine pentothal?
A: Based on my personal experience
also on pentothal.
Q: How many times have you used
pentothal?
A: They used it on me. I went into
bronchospasm during my
appendectomy.
Q: And because they have used it on
you and on account of your own
personal experience you feel that you
can testify on pentothal here with
medical authority?
A: No. That is why I used references to
support my claims. 61
An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of anesthesia, internal
medicine-allergy, and clinical pharmacology. The resulting anoxic
encephalopathy belongs to the field of neurology. While admittedly,
many bronchospastic-mediated pulmonary diseases are within the
expertise of pulmonary medicine, Dr. Jamora's field, the anesthetic
drug-induced, allergic mediated bronchospasm alleged in this case

is within the disciplines of anesthesiology, allergology and
pharmacology. On the basis of the foregoing transcript, in which the
pulmonologist himself admitted that he could not testify about the
drug with medical authority, it is clear that the appellate court
erred in giving weight to Dr. Jamora's testimony as an expert in the
administration of Thiopental Sodium.
The provision in the rules of evidence
states:
62
regarding expert witnesses
Sec. 49. Opinion of expert witness. The opinion of

a witness on a matter requiring special knowledge,
skill, experience or training which he is shown to
possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have acquired
special knowledge of the subject matter about which he or she is to
testify, either by the study of recognized authorities on the subject
or by practical experience.63 Clearly, Dr. Jamora does not qualify as
an expert witness based on the above standard since he lacks the
necessary knowledge, skill, and training in the field of
anesthesiology. Oddly, apart from submitting testimony from a
specialist in the wrong field, private respondents' intentionally
avoided providing testimony by competent and independent
experts in the proper areas.
Moreover, private respondents' theory, that Thiopental Sodium may
have produced Erlinda's coma by triggering an allergic mediated
response, has no support in evidence. No evidence of stridor, skin
reactions, or wheezing some of the more common accompanying
signs of an allergic reaction appears on record. No laboratory
data were ever presented to the court.
In any case, private respondents themselves admit that Thiopental
induced, allergic-mediated bronchospasm happens only very rarely.
If courts were to accept private respondents' hypothesis without
supporting medical proof, and against the weight of available
evidence, then every anesthetic accident would be an act of God.
Evidently, the Thiopental-allergy theory vigorously asserted by
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private respondents was a mere afterthought. Such an explanation
was advanced in order to advanced in order to absolve them of any
and all responsibility for the patient's condition.
In view of the evidence at hand, we are inclined to believe
petitioners' stand that it was the faulty intubation which was the
proximate cause of Erlinda's comatose condition.
Proximate cause has been defined as that which, in natural and
continuous sequence, unbroken by any efficient intervening cause,
produces injury, and without which the result would not have
occurred. 64 An injury or damage is proximately caused by an act or
a failure to act, whenever it appears from the evidence in the case,
that the act or omission played a substantial part in bringing about
or actually causing the injury or damage; and that the injury or
damage was either a direct result or a reasonably probable
consequence of the act or omission. 65 It is the dominant, moving or
producing cause.
Applying the above definition in relation to the evidence at hand,
faulty intubation is undeniably the proximate cause which triggered
the chain of events leading to Erlinda's brain damage and,
ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that
the first intubation was a failure. This fact was likewise observed by
witness Cruz when she heard respondent Dra. Gutierrez remarked,
"Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan." Thereafter, witness Cruz noticed abdominal
distention on the body of Erlinda. The development of abdominal
distention, together with respiratory embarrassment indicates that
the endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended
endotracheal intubation what actually took place was an
esophageal intubation. During intubation, such distention indicates
that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry into the
esophagus would certainly cause some delay in oxygen delivery
into the lungs as the tube which carries oxygen is in the wrong
place. That abdominal distention had been observed during the
first intubation suggests that the length of time utilized in inserting
the endotracheal tube (up to the time the tube was withdrawn for
the second attempt) was fairly significant. Due to the delay in the
delivery of oxygen in her lungs Erlinda showed signs of
cyanosis. 66 As stated in the testimony of Dr. Hosaka, the lack of
oxygen became apparent only after he noticed that the nailbeds of
Erlinda were already blue. 67 However, private respondents contend
that a second intubation was executed on Erlinda and this one was
successfully done. We do not think so. No evidence exists on
record, beyond private respondents' bare claims, which supports
the contention that the second intubation was successful.
Assuming that the endotracheal tube finally found its way into the
proper orifice of the trachea, the same gave no guarantee of
oxygen delivery, the hallmark of a successful intubation. In fact,
cyanosis was again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could not be
claimed, as private respondents insist, that the second intubation
was accomplished. Even granting that the tube was successfully
inserted during the second attempt, it was obviously too late. As
aptly explained by the trial court, Erlinda already suffered brain
damage as a result of the inadequate oxygenation of her brain for
about four to five minutes. 68
The above conclusion is not without basis. Scientific studies point
out that intubation problems are responsible for one-third (1/3) of
deaths and serious injuries associated with
anesthesia. 69 Nevertheless, ninety-eight percent (98%) or the vast
majority of difficult intubations may be anticipated by performing a
thorough evaluation of the patient's airway prior to the
operation. 70 As stated beforehand, respondent Dra. Gutierrez failed
to observe the proper pre-operative protocol which could have
prevented this unfortunate incident. Had appropriate diligence and
reasonable care been used in the pre-operative evaluation,
respondent physician could have been much more prepared to
meet the contingency brought about by the perceived anatomic
variations in the patient's neck and oral area, defects which would
have been easily overcome by a prior knowledge of those
variations together with a change in technique. 71 In other words,
an experienced anesthesiologist, adequately alerted by a thorough
pre-operative evaluation, would have had little difficulty going
around the short neck and protruding teeth. 72 Having failed to
observe common medical standards in pre-operative management
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and intubation, respondent Dra. Gutierrez' negligence resulted in
cerebral anoxia and eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino
Hosaka as the head of the surgical team. As the so-called "captain
of the ship," 73 it is the surgeon's responsibility to see to it that
those under him perform their task in the proper manner.
Respondent Dr. Hosaka's negligence can be found in his failure to
exercise the proper authority (as the "captain" of the operative
team) in not determining if his anesthesiologist observed proper
anesthesia protocols. In fact, no evidence on record exists to show
that respondent Dr. Hosaka verified if respondent Dra. Gutierrez
properly intubated the patient. Furthermore, it does not escape us
that respondent Dr. Hosaka had scheduled another procedure in a
different hospital at the same time as Erlinda's cholecystectomy,
and was in fact over three hours late for the latter's operation.
Because of this, he had little or no time to confer with his
anesthesiologist regarding the anesthesia delivery. This indicates
that he was remiss in his professional duties towards his patient.
Thus, he shares equal responsibility for the events which resulted in
Erlinda's condition.
We now discuss the responsibility of the hospital in this particular
incident. The unique practice (among private hospitals) of filling up
specialist staff with attending and visiting "consultants," 74 who are
allegedly not hospital employees, presents problems in
apportioning responsibility for negligence in medical malpractice
cases. However, the difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the hiring
and firing of consultants and in the conduct of their work within the
hospital premises. Doctors who apply for "consultant" slots, visiting
or attending, are required to submit proof of completion of
residency, their educational qualifications; generally, evidence of
accreditation by the appropriate board (diplomate), evidence of
fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or
by a review committee set up by the hospital who either accept or
reject the application. 75 This is particularly true with respondent
hospital.
After a physician is accepted, either as a visiting or attending

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

to meet minimum standards of care. In the instant case for
instance, Erlinda has to be constantly turned from side to side to
prevent bedsores and hypostatic pneumonia. Feeding is done by
nasogastric tube. Food preparation should be normally made by a
dietitian to provide her with the correct daily caloric requirements
and vitamin supplements. Furthermore, she has to be seen on a
regular basis by a physical therapist to avoid muscle atrophy, and
by a pulmonary therapist to prevent the accumulation of secretions
which can lead to respiratory complications.
Given these considerations, the amount of actual damages
recoverable in suits arising from negligence should at least reflect
the correct minimum cost of proper care, not the cost of the care
the family is usually compelled to undertake at home to avoid
bankruptcy. However, the provisions of the Civil Code on actual or
compensatory damages present us with some difficulties.
Well-settled is the rule that actual damages which may be claimed
by the plaintiff are those suffered by him as he has duly proved.
The Civil Code provides:
Art. 2199. Except as provided by law or by
stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered
by him as he has duly proved. Such compensation is
referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally assume
that at the time of litigation, the injury suffered as a consequence
of an act of negligence has been completed and that the cost can
be liquidated. However, these provisions neglect to take into
account those situations, as in this case, where the resulting injury
might be continuing and possible future complications directly
arising from the injury, while certain to occur, are difficult to
predict.
In these cases, the amount of damages which should be awarded, if
they are to adequately and correctly respond to the injury caused,
should be one which compensates for pecuniary loss incurred and
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proved, up to the time of trial; and one which would meet
pecuniary loss certain to be suffered but which could not, from the
nature of the case, be made with certainty. 80 In other words,
temperate damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate damages
are provided for. The reason is that these damages cover two
distinct phases.
As it would not be equitable and certainly not in the best
interests of the administration of justice for the victim in such
cases to constantly come before the courts and invoke their aid in
seeking adjustments to the compensatory damages previously
awarded temperate damages are appropriate. The amount given
as temperate damages, though to a certain extent speculative,
should take into account the cost of proper care.
In the instant case, petitioners were able to provide only homebased nursing care for a comatose patient who has remained in
that condition for over a decade. Having premised our award for
compensatory damages on the amount provided by petitioners at
the onset of litigation, it would be now much more in step with the
interests of justice if the value awarded for temperate damages
would allow petitioners to provide optimal care for their loved one
in a facility which generally specializes in such care. They should
not be compelled by dire circumstances to provide substandard
care at home without the aid of professionals, for anything less
would be grossly inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be
reasonable. 81
In Valenzuela vs. Court of Appeals, 82 this Court was confronted with
a situation where the injury suffered by the plaintiff would have led
to expenses which were difficult to estimate because while they
would have been a direct result of the injury (amputation), and
were certain to be incurred by the plaintiff, they were likely to arise
only in the future. We awarded P1,000,000.00 in moral damages in
that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela

underwent a traumatic amputation of her left lower
extremity at the distal left thigh just above the knee.
Because of this, Valenzuela will forever be deprived
of the full ambulatory functions of her left extremity,
even with the use of state of the art prosthetic
technology. Well beyond the period of hospitalization
(which was paid for by Li), she will be required to
undergo adjustments in her prosthetic devise due to
the shrinkage of the stump from the process of
healing.
These adjustments entail costs, prosthetic
replacements and months of physical and
occupational rehabilitation and therapy. During the
lifetime, the prosthetic devise will have to be
replaced and readjusted to changes in the size of her
lower limb effected by the biological changes of
middle-age, menopause and aging. Assuming she
reaches menopause, for example, the prosthetic will
have to be adjusted to respond to the changes in
bone resulting from a precipitate decrease in calcium
levels observed in the bones of all post-menopausal
women. In other words, the damage done to her
would not only be permanent and lasting, it would
also be permanently changing and adjusting to the
physiologic changes which her body would normally
undergo through the years. The replacements,
changes, and adjustments will require corresponding
adjustive physical and occupational therapy. All of
these adjustments, it has been documented, are
painful.
xxx xxx xxx
A prosthetic devise, however technologically
advanced, will only allow a reasonable amount of
functional restoration of the motor functions of the
lower limb. The sensory functions are forever lost.
The resultant anxiety, sleeplessness, psychological
injury, mental and physical pain are inestimable.83
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The injury suffered by Erlinda as a consequence of private
respondents' negligence is certainly much more serious than the
amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident
occurred. She has been in a comatose state for over fourteen years
now. The burden of care has so far been heroically shouldered by
her husband and children, who, in the intervening years have been
deprived of the love of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the
care of petitioner would be virtually impossible to quantify. Even
the temperate damages herein awarded would be inadequate if
petitioner's condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victim's
actual injury would not even scratch the surface of the resulting
moral damage because it would be highly speculative to estimate
the amount of emotional and moral pain, psychological damage
and injury suffered by the victim or those actually affected by the
victim's condition. 84The husband and the children, all petitioners in
this case, will have to live with the day to day uncertainty of the
patient's illness, knowing any hope of recovery is close to nil. They
have fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into account their
life with a comatose patient. They, not the respondents, are
charged with the moral responsibility of the care of the victim. The
family's moral injury and suffering in this case is clearly a real one.
For the foregoing reasons, an award of P2,000,000.00 in moral
damages would be appropriate.
Our courts face unique difficulty in adjudicating medical negligence

cases because physicians are not insurers of life and, they rarely
set out to intentionally cause injury or death to their patients.
However, intent is immaterial in negligence cases because where
negligence exists and is proven, the same automatically gives the
injured a right to reparation for the damage caused.
Established medical procedures and practices, though in constant
flux are devised for the purpose of preventing complications. A
physician's experience with his patients would sometimes tempt
him to deviate from established community practices, and he may
end a distinguished career using unorthodox methods without
incident. However, when failure to follow established procedure
results in the evil precisely sought to be averted by observance of
the procedure and a nexus is made between the deviation and the
injury or damage, the physician would necessarily be called to
account for it. In the case at bar, the failure to observe preoperative assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents' case.
WHEREFORE, the decision and resolution of the appellate court
appealed from are hereby modified so as to award in favor of
petitioners, and solidarily against private respondents the following:
1) P1,352,000.00 as actual damages computed as of the date of
promulgation of this decision plus a monthly payment of P8,000.00
up to the time that petitioner Erlinda Ramos expires or miraculously
survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages
and attorney's fees; and, 5) the costs of the suit.
SO ORDERED.
Finally, by way of example, exemplary damages in the amount of

P100,000.00 are hereby awarded. Considering the length and
nature of the instant suit we are of the opinion that attorney's fees
valued at P100,000.00 are likewise proper.
Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.

Footnotes
1 In the United States alone, a great number of people die
every year as a result of medical mishaps. The 13 December
1999 issue of TIME MAGAZINE featured an article on medical
negligence entitled "Doctors' Deadly Mistakes" which is
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quoted in part: "It is hardly news that medical professionals
make mistakes even dumb, deadly mistakes. What is
shocking is how often it happens. Depending on which
statistics you believe, the number of American killed by
medical screw-ups is somewhere between 44,000 and
98,000 every year the eighth leading cause of death even
by the more conservative figure, ahead of car crashes,
breast cancer and AIDS. More astonishing than the huge
numbers themselves, though, is the fact that public health
officials had known about the problem for years and hadn't
made a concerted effort to do something about it."
15 57B Am Jur 2d, supra note 13 at 499.

16 Ibid.
17 Id. at 502.
18 Ibid.
19 Id.
20 Id. at 503.
2 Cholecystectomy is the surgical excision of the gall

bladder.
3 CA Rollo, pp. 129-140.
4 Records, pp. 270-279.
21 Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden
v. Union Gas System, 182 Kan. 686, 324 P.2d 501; Lamb v.
Hartford Accident and Indemnity Co., Primm v. Kansas Power
& Light Co., 173 Kan. 443, 249 P.2d 647.
5 Id. at 270-275.
22 St. John's Hospital and School of Nursing vs. Chapman,

434 P.2d 160, 166 (1967).
6 Docketed as Civil Case No. Q-46885.
23 57B Am Jur 2d, supra note 13, at 513.
7 Records, pp. 276-278.

8 CA Rollo, p. 166.
24 It is the 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. (Garcia-Rueda
vs. Pascasio, 278 SCRA 769, 788 [1997]).
9 Id. at 145.
25 Voss vs. Bridwell, supra note 21.
10 Id. at 195.
26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).
11 Rollo, p. 19.
27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).
12 Id. at 91-98.
28 Voss vs. Bridwell, supra note 21, at 968 citing McMillen

vs. Foncannon, 127 Kan. 573, 274 P.237.
13 57B Am Jur 2d, 493 (1989).

14 Africa, et al vs. Caltex (Phil.), Inc., et al, 16 SCRA 449,
454 (1966).
29 Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs.

Gibbons, 95 Kan. 802, 149 P. 422, 423.
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30 SOLIS, supra note 27, at 239.
31 Voss vs. Bridwell, supra note 21 at 970-971.
the endotracheal tube between the patient's vocal cords

into the trachea, and then hook the tube to the breathing
bag and anesthetic machine.
32 Armstrong vs. Wallace, 47 P. 2d 740 (1935).
46 TSN, January 13, 1988, pp. 16-20.
33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938).
47 CA Rollo, pp. 134-135.
34 Griffin vs. Norman, 192 NYS 322 (1922).
48 Stockham vs. Hall, supra note 29.
35 Brown vs. Shortilledge, 277 P. 134 (1929).
49 61 Am Jur 2d, 513 (1989).
36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937).
50 TSN, January 13, 1988, p. 3.
37 Voss vs. Bridwell, supra note 21, at 969.
51 TSN, November 15, 1990, p. 11.
38 Id. at 968.
52 TSN, October 9, 1990, p. 13.
39 Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).
53 STOELTING and MILLER, BASICS OF ANESTHESIA, 103

(1994).
40 Voss vs. Bridwell, supra note 21, at 968.

41 Sanders vs. Smith, 27 So.2d 889, 893 (1946).
42 Ibid.
43 Voss vs. Bridwell, supra note 21.
44 Id. at 971.
45 It is the method of intubating a patient through the oral
cavity. Under this procedure, after the patient has been
preoxygenated and paralyzed and is no longer breathing on
his own, the anesthetist inserts an instrument called a
laryngoscope into the patient's oral pharynx. The patient's
neck is hyperextended, that is, bent back as far as possible
so that the anesthetist can see or "visualize" the patient's
epiglottis and vocal cords. The anesthetist will then thread
54 Ibid.
55 Id. at 105 (Emphasis supplied).
56 id. at 106.
57 Id.
58 TSN, November 15, 1990, p. 6.
59 Constriction of the air passages of the lung by spasmodic
contraction of the bronchial muscles (as in asthma).
60 Permanent damage to the brain caused by inadequate
oxygenation.
61 TSN, February 28, 1991, pp. 10-11.
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62 Rule 130, RULES OF COURT.
63 61 Am Jur 2d, supra note 49, 516.
64 BLACK'S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).
65 Ibid.
66 It is a bluish coloration of the skin or mucous membranes
caused by lack of oxygen or abnormal hemoglobin in the
blood.
67 TSN, March 27, 1990, p. 22.
68 Records, p. 274.
69 FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).
70 Ibid.
71 Id. The book provides a thorough discussion on the
management of difficult intubations.
72 Id.
73 Under this doctrine, the surgeon is likened to a ship
captain who must not only be responsible for the safety of
the crew but also of the passengers of the vessel. The head
surgeon is made responsible for everything that goes wrong
within the four corners of the operating room. It enunciates
the liability of the surgeon not only for the wrongful acts of
those who are under his physical control but also those
wherein he has extension of control.
75 These requirements are in fact found in the standard

application forms for visiting and attending physicians of
respondent hospital.
76 The hospital's control over respondent physicians is all
the more significant when one considers the fact that it
controls everything which occurs in an operating room,
through its nursing supervisors and charge nurses. No
operations can be undertaken without the hospital's direct
or indirect consent.
77 VITUG, COMPENDIUM OF CIVIL LAW AND
JURISPRUDENCE, 822 (1993).
78 Art. 2180 of the Civil Code provides:
79 Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the
damage done.
80 Art. 2224, CIVIL CODE.
81 Should petitioner remain in the same condition for
another ten years, the amount awarded in the form of
temperate damages would in fact, be inadequate.
82 253 SCRA 303 (1996).
83 Id. at 327-328.
84 Id. at 328.
74 The term "consultant" is loosely used by hospitals to

distinguish their attending and visiting physicians from the
residents, who are also physicians. In most hospitals abroad,
the term visiting or attending physician, not consultant, is
used.
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SUPREME COURT
Manila
G.R. No. 187926
February 15, 2012
Dr. EMMANUEL JARCIA, Jr. and Dr. MARILOU

BASTAN, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
Even early on, patients have consigned their lives to the skill of
their doctors. Time and again, it can be said that the most
important goal of the medical profession is the preservation of life
and health of the people. Corollarily, when a physician departs from
his sacred duty and endangers instead the life of his patient, he
must be made liable for the resulting injury. This Court, as this case
would show, cannot and will 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 Decision2 of the Court of
Appeals (CA), and its May 19, 2009 Resolution3 in CA-G.R. CR No.
29559, dismissing the appeal and affirming in toto the June 14,
2005 Decision4 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 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. 01196646.
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 of ONE (1) MONTH and ONE (1) DAY to TWO (2)
MONTHS and to indemnify MRS. BELINDA SANTIAGO the amount
of P 3,850.00 representing medical expenses without subsidiary
imprisonment in case of insolvency and to pay the costs.
It appearing that Dr. Pamittan has not been apprehended nor
voluntarily surrendered despite warrant issued for her arrest, let
warrant be issued for her arrest and the case against her be
ARCHIVED, to be reinstated upon her apprehension.
SO ORDERED.6
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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 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, 2008 Decision of the CA pertinently reads:
This Court holds concurrently and finds the foregoing
circumstances sufficient to sustain a judgment of conviction against
the accused-appellants for the crime of simple imprudence
resulting in serious physical injuries. The elements of imprudence
are: (1) that the offender does or fails to do an act; (2) that the
doing or the failure to do that act is voluntary; (3) that it be without
malice; (4) that material damage results from the imprudence; and
(5) that there is inexcusable lack of precaution on the part of the
offender, taking into consideration his employment or occupation,
degree of intelligence, physical condition, and other circumstances
regarding persons, time and place.
Whether or not Dr. Jarcia and Dr. Bastan had committed an
"inexcusable lack of precaution" in the treatment of their patient is
to be determined according to the standard of care observed by
other members of the profession in good standing under similar
circumstances, bearing in mind the advanced state of the
profession at the time of treatment or the present state of medical
science. In the case of Leonila Garcia-Rueda v. Pascasio, the
Supreme Court stated that, in accepting a case, a doctor in effect
represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will
employ such training, care and skill in the treatment of his patients.
He therefore has a duty to use at least the same level of care that
any other reasonably competent doctor would use to treat a
condition under the same circumstances.
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.
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We are not convinced.
The prosecution is however after the cause which prolonged the
pain and suffering of Roy and not on the failure of the accusedappellants to correctly diagnose the extent of the injury sustained
by Roy.
For a more logical presentation of the discussion, we shall first
consider the applicability of the doctrine of res ipsa loquitur to the
instant case. Res ipsa loquitur is a Latin phrase which literally
means "the thing or the transaction speaks for itself. The doctrine
of res ipsa loquitur is simply a recognition of the postulate that, as
a matter of common knowledge and experience, the very nature of
certain types of occurrences may justify an inference of negligence
on the part of the person who controls the instrumentality causing
the injury in the absence of some explanation by the accusedappellant who is charged with negligence. It is grounded in the
superior logic of ordinary human experience and, on the basis of
such experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with the doctrine
of common knowledge.
The specific acts of negligence was narrated by Mrs. Santiago who
accompanied her son during the latters ordeal at the hospital. She
testified as follows:
Fiscal Formoso:
Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or
Dra. Pamittan to confirm whether you should go home or not?
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.
xxx
xxx
xxx
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 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.
xxx
xxx
xxx
xxx
xxx
xxx
A: I just listened to them, sir. And I just asked if I will still return my
son.
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xxx
xxx
xxx
xxx
xxx
xxx
Q: And you were present when they were called?

A: Yes, sir.
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 accusedappellants. In order to have the benefit of the rule, a plaintiff, in
addition to proving injury or damage, must show a situation where
it is applicable and must establish that the essential elements of
the doctrine were present in a particular incident. The early
treatment of the leg of 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 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] 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,
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testimony as to the statements and acts of physicians, external
appearances, and manifest conditions which are observable by any
one may be given by non-expert witnesses. Hence, in cases where
the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court from its fund
of common knowledge can determine the proper standard of care.
Where common knowledge and experience teach that a resulting
injury would not have occurred to the patient if due care had been
exercised, an inference of negligence may be drawn giving rise to
an application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. In the case at bench, we
give credence to the testimony of Mrs. Santiago by applying the
doctrine of res ipsa loquitur.
Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending
upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the
consequences of professional care were not as such as would
ordinarily have followed if due care had been exercised. A
distinction must be made between the failure to secure results and
the occurrence of something more unusual and not ordinarily found
if the service or treatment rendered followed the usual procedure of
those skilled in that particular practice. The latter circumstance is
the primordial issue that confronted this Court and we find
application of the doctrine of res ipsa loquitur to be in order.
WHEREFORE, in view of the foregoing, the appeal in this case is
hereby DISMISSED and the assailed decision of the trial court
finding accused-appellants guilty beyond reasonable doubt of
simple imprudence resulting in serious physical injuries is
hereby AFFIRMED in toto.
SO ORDERED.8
The petitioners filed a motion for reconsideration, but it was denied
by the CA in its May 19, 2009 Resolution.

The petitioners pray for the reversal of the decision of both the RTC
and the CA anchored on the following
GROUNDS1. IN AFFIRMING ACCUSED-PETITIONERS
CONVICTION, THE COURT OF APPEALS ERRED
IN NOT HOLDING THAT THE ACTUAL, DIRECT,
IMMEDIATE, AND PROXIMATE CAUSE OF THE
PHYSICAL INJURY OF THE PATIENT (FRACTURE
OF THE LEG BONE OR TIBIA), WHICH REQUIRED
MEDICAL ATTENDANCE FOR MORE THAN THIRTY
(30) DAYS AND INCAPACITATED HIM FROM
PERFORMING HIS CUSTOMARY DUTY DURING
THE SAME PERIOD OF TIME, WAS THE
VEHICULAR ACCIDENT WHERE THE PATIENTS
RIGHT LEG WAS HIT BY A TAXI, NOT THE
FAILURE OF THE ACCUSED-PETITIONERS TO
SUBJECT THE PATIENTS WHOLE LEG TO AN XRAY EXAMINATION.
2. THE COURT OF APPEALS ERRED IN
DISREGARDING ESTABLISHED FACTS CLEARLY
NEGATING PETITIONERS ALLEGED NEGLIGENCE
OR IMPRUDENCE. SIGNIFICANTLY, THE COURT
OF APPEALS UNJUSTIFIABLY DISREGARDED THE
OPINION OF THE PROSECUTIONS EXPERT
WITNESS, DR. CIRILO TACATA, THAT
PETITIONERS WERE NOT GUILTY OF
NEGLIGENCE OR IMPRUDENCE COMPLAINED OF.
3. THE COURT OF APPEALS ERRED IN HOLDING
THAT THE FAILURE OF PETITIONERS TO SUBJECT
THE PATIENTS WHOLE LEG TO AN X-RAY
EXAMINATION PROLONGED THE PAIN AND
SUFFERING OF THE PATIENT, SUCH
CONCLUSION BEING UNSUPPORTED BY, AND
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EVEN CONTRARY TO, THE EVIDENCE ON
RECORD.
4. ASSUMING ARGUENDO THAT THE PATIENT
EXPERIENCED PROLONGED PAIN AND
SUFFERING, THE COURT OF APPEALS ERRED IN
NOT HOLDING THAT THE ALLEGED PAIN AND
SUFFERING WERE DUE TO THE UNJUSTIFIED
FAILURE OF THE PATIENTS MOTHER, A NURSE
HERSELF, TO IMMEDIATELY BRING THE PATIENT
BACK TO THE HOSPITAL, AS ADVISED BY THE
PETITIONERS, AFTER HE COMPLAINED OF
SEVERE PAIN IN HIS RIGHT LEG WHEN HE
REACHED HOME AFTER HE WAS SEEN BY
PETITIONERS AT THE HOSPITAL. THUS, THE
PATIENTS ALLEGED INJURY (PROLONGED PAIN
AND SUFFERING) WAS DUE TO HIS OWN
MOTHERS ACT OR OMISSION.
5. THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT NO PHYSICIAN-PATIENT
RELATIONSHIP EXISTED BETWEEN PETITIONERS
AND PATIENT ALFONSO SANTIAGO, JR.,
PETITIONERS NOT BEING THE LATTERS
ATTENDING PHYSICIAN AS THEY WERE MERELY
REQUESTED BY THE EMERGENCY ROOM (ER)
NURSE TO SEE THE PATIENT WHILE THEY WERE
PASSING BY THE ER FOR THEIR LUNCH.
6. THE COURT OF APPEALS GRAVELY ERRED IN
NOT 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.
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 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 thatprima
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
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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
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
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?
A: At present I am the chairman department of orthopedic in UPPGH 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.
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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.
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?
A: The patient was sideswiped, I dont know if it is a car, but it is a
vehicular accident.
Q: What part of the leg, doctor, did you request to be examined?
Q: Who did you interview?
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.
A: The mother.
Q: And what was the result?
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.
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?
Q: How about the child himself, Alfonso Santiago, Jr.?
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.
(Witness pointing to his lower leg)

xxxx
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: At the emergency room, at the Manila Doctors Hospital, the

supervisor there is a consultant that usually comes from a family
medicine. They see where a certain patient have to go and then if
they cannot manage it, they refer it to the consultant on duty. Now
at that time, I dont why they dont Because at that time, I think,
it is the decision. Since the x-rays
131

Tin Simbran
xxx
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.
xxxx
Q: But if initially, Alfonso Santiago, Jr. and his case was presented to
you at the emergency room, you would have subjected the entire
foot to x-ray even if the history that was given to Dr. Jarcia and Dra.
Bastan is the same?
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?
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.
xxxx
Q: Doctor, if you know that the patient sustained a fracture

on the ankle and on the foot and the history that was told
to you is the region that was hit is the region of the foot,
will the doctor subject the entire leg for x-ray?
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]
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 Xray 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
132

Tin Simbran
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 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 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.
133

Tin Simbran
All told, the petitioners were, indeed, negligent but only civilly, and
not criminally, liable as the facts show.
Article II, Section 1 of the Code of Medical Ethics of the Medical
Profession in the Philippines states:
A physician should attend to his patients faithfully and
conscientiously. He should secure for them all possible benefits that
may depend upon his professional skill and care. As the sole
tribunal to adjudge the physicians failure to fulfill his obligation to
his patients is, in most cases, his own conscience, violation of this
rule on his part is 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.
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.1wphi1 Article 2229 of the Civil Code
provides that exemplary damages may be imposed by way of
example or correction for the public good.
WHEREFORE, the petition is PARTLY GRANTED. The Decision of
the Court of Appeals dated August 29, 2008 isREVERSED 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:
As to the Award of Damages
(1) P 3,850.00 as actual damages;
While no criminal negligence was found in the petitioners failure to

administer the necessary medical attention to Roy Jr., the Court
holds them civilly liable for the resulting damages to their patient.
While it was the taxi driver who ran over the foot or leg of Roy Jr.,
their negligence was doubtless contributory.
(2) P 100,000.00 as moral damages;
It appears undisputed that the amount of P 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 P 100,000.00 and P 50,000.00,
respectively, is proper in this case.
(3) P 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:
It is settled that moral damages are not punitive in nature, but are
designed to compensate and alleviate in some way the physical
134

Tin Simbran
ANTONIO T. CARPIO*
Associate Justice
DIOSDADO M. PERALTA**
Associate Justice
Acting Chairperson
ROBERTO A. ABAD
Associate Justice
**
Designated as Acting Chairperson, per Special Order No.

1184 dated February 10, 2012.
***
Designated as additional member in lieu of Associate

Justice Estela M. Perlas-Bernabe, per Special Order No. 1192
dated February 10, 2012.
JOSE PORTUGAL PEREZ***

Associate Justice
ATTESTATION

See the case of Dr. Batiquin v. Court of Appeals, 327 Phil.

965 (1996).
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.
Id. at 70-79.
No first name on record.
CERTIFICATION
Rollo, p. 79.
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.
Id. at 78.
Id. at 58-65.
Id. at 20-22.
DIOSDADO M. PERALTA
Associate Justice
Acting Chairperson, Third Division
RENATO C. CORONA
Chief Justice
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
Footnotes
*
Designated as additional member in lieu of Associate

Justice Presbitero J. Velasco, Jr., per Special Order No. 1185
dated February 10, 2012.
135

Tin Simbran
14
Gaid v. People, G.R. No. 171636, April 7, 2009, 584 SCRA

489, 497.
15
20
G.R. No. 178763, April 21, 2009, 586 SCRA 173, 200.
21
Id. at 495.
22
16
Id. at 497.
17
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).
18
Balitaosan v. The Secretary of Education, 457 Phil. 300,

304 (2003).
-end19
Del Rosario v. Bonga, 402 Phil. 949, 957-958 (2001).
136

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LEGAL MEDICINE ASSIGNED CASES 1

DR. RUBI LI, Petitioner,

On August 18, 1993, Angelica was admitted to SLMC. However, she

LEGAL MEDICINE ASSIGNED CASES 1

LEGAL MEDICINE ASSIGNED CASES 1

and had difficulty breathing.30 Petitioner insisted it was carpo-pedal

LEGAL MEDICINE ASSIGNED CASES 1

LEGAL MEDICINE ASSIGNED CASES 1

LEGAL MEDICINE ASSIGNED CASES 1

the respondents, as these should be known to a competent doctor,

LEGAL MEDICINE ASSIGNED CASES 1

LEGAL MEDICINE ASSIGNED CASES 1

There are four essential elements a plaintiff must prove in a

LEGAL MEDICINE ASSIGNED CASES 1

As we progress toward the twenty-first century, we now realize that

LEGAL MEDICINE ASSIGNED CASES 1

TERESITA J. LEONARDODE CASTRO

JOSE PORTUGAL PEREZ

JOSE CATRAL MENDOZA

MARIA LOURDES P. A. SERENO

Rollo, pp. 33-63. Penned by Associate Justice Mariano C.

Id. at 119-162. Penned by Judge Salvador D. Silerio.

Rollo, pp. 80-89.

TSN, January 26, 1995, p. 3.

TSN, October 6, 1995, pp. 18-26, 60; TSN, January 27,

Id. at 35 and 81.

TSN, October 6, 1995, pp. 39-40; rollo, p. 123.

LEGAL MEDICINE ASSIGNED CASES 1

Doxorubicin is an anti-cancer (antineoplastic or cytotoxic)

http://www.rxlist.com/bactrim-drug.htm (Site visited

TSN, January 27, 1997, p. 9.

TSN, April 22, 1996, pp. 11-12.

TSN, October 6, 1995, pp. 27-28.

TSN, September 19, 1994, p. 18.

Par. 11 of Answer, rollo, p. 100.

Paragraph 14 of Answer, rollo, pp. 101-102.

Paragraphs 19-20 of Complaint, rollo, pp. 83; paragraphs

Paragraph 17 of Answer, rollo, p. 103.

Paragraph 23 of Complaint, rollo, p. 83; TSN, September

TSN, December 15, 1994, pp. 13-21.

Paragraph 17 of Answer, rollo, p. 103.

TSN, October 6, 1995, p. 33.

TSN, December 15, 1994, p. 22.

TSN, December 14, 1994, pp. 15-38.

TSN, April 28, 1995, pp. 23-25.

TSN, May 26, 1996, pp. 5, 8-13, 23.

37 Phil. 809 (1918).

Rollo, pp. 160-162.

TSN, September 19, 1994, p. 19; paragraph 16 of

TSN, October 6, 1995, pp. 28-30; paragraphs 12, 13 & 14

TSN, September 19, 1994, p. 22.

LEGAL MEDICINE ASSIGNED CASES 1

Id. at 58-59, 62-63.

Arato v. Avedon, 858 P.2d 598 (Cal. 1993).

Mason v. Walsh, 26 Conn.App. 225, 229-30, 00 A.2d 326

Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5,

Id., 230, citing Shenefield v. Greenwich Hospital Assn., 10

105 N.E. 92, 93 (N.Y. 1914).

"Informed Consent: From the Ambivalence of Arato to the

Blacks Law Dictionary, Fifth Edition, p. 701, citing Ze

464 F.2d 772 C.A.D.C., 1972.

Id. at 790, 791-792.

8 Cal.3d 229, 502 P.2d 1 Cal. 1972.