LEGAL MEDICINE 1

PRACTICE OF MEDICINE
[G.R. No. 144681. June 21, 2004]
PROFESSIONAL REGULATION
COMMISSION (PRC), petitioners, vs.
ARLENE V. DE GUZMAN, respondents.
DECISION
TINGA, J.:
This petition for review under Rule 45 of the
1997 Rules of Civil Procedure seeks to nullify
the Decision, [1] dated May 16, 2000, of the
Court of Appeals in CA-G.R. SP No. 37283. The
appellate court affirmed the judgment [2]
dated December 19, 1994, of the Regional
Trial Court (RTC) of Manila, Branch 52, in Civil
Case No. 93-66530. The trial court allowed the
respondents to take their physicians oath and
to register as duly licensed physicians.
Equally challenged is the Resolution [3]
promulgated on August 25, 2000 of the Court
of Appeals, denying petitioners Motion for
Reconsideration.
The facts of this case are as follows:
The respondents are all graduates of the
Fatima College of Medicine, Valenzuela City,
Metro Manila. They passed the Physician
Licensure Examination conducted in February
1993 by the Board of Medicine (Board).
Petitioner Professional Regulation Commission
(PRC) then released their names as successful
examinees in the medical licensure
examination.
Shortly thereafter, the Board observed that
the grades of the seventy-nine successful
examinees from Fatima College in the two
most difficult subjects in the medical licensure
exam, Biochemistry (Bio-Chem) and

Obstetrics and Gynecology (OB-Gyne), were

unusually and exceptionally high. Eleven
Fatima examinees scored 100% in Bio-Chem
and ten got 100% in OB-Gyne, another eleven
got 99% in Bio-Chem, and twenty-one scored
99% in OB-Gyne. The Board also observed
that many of those who passed from Fatima
got marks of 95% or better in both subjects,
and no one got a mark lower than 90%. A
comparison of the performances of the
candidates from other schools was made. The
Board observed that strangely, the unusually
high ratings were true only for Fatima College
examinees. It was a record-breaking
phenomenon in the history of the Physician
Licensure Examination.
On June 7, 1993, the Board issued Resolution
No. 19, withholding the registration as
physicians of all the examinees from the
Fatima College of Medicine. [4] The PRC asked
the National Bureau of Investigation (NBI) to
investigate whether any anomaly or
irregularity marred the February 1993
Physician Licensure Examination.
Prior to the NBI investigation, the Board
requested Fr. Bienvenido F. Nebres, S.J., an
expert mathematician and authority in
statistics, and later president of the Ateneo de
Manila University, to conduct a statistical
analysis of the results in Bio-Chem and ObGyne of the said examination.
On June 10, 1993, Fr. Nebres submitted his
report. He reported that a comparison of the
scores in Bio-Chem and Ob-Gyne, of the
Fatima College examinees with those of
examinees from De La Salle University and
Perpetual Help College of Medicine showed
that the scores of Fatima College examinees
were not only incredibly high but unusually
clustered close to each other. He concluded
that there must be some unusual reason

creating the clustering of scores in the two

subjects. It must be a cause strong enough to
eliminate the normal variations that one
should expect from the examinees [of Fatima
College] in terms of talent, effort, energy, etc.
[5]

aside the mandatory injunctive writ, docketed

as CA-G.R. SP No. 31701.
On October 21, 1993, the appellate court
decided CA-G.R. SP No. 31701, with the
dispositive portion of the Decision ordaining
as follows:

For its part, the NBI found that the

questionable passing rate of Fatima
examinees in the [1993] Physician
Examination leads to the conclusion that the
Fatima examinees gained early access to the
test questions. [6]
On July 5, 1993, respondents Arlene V. De
Guzman, Violeta V. Meneses, Celerina S.
Navarro, Jose Ramoncito P. Navarro, Arnel V.
Herrera, and Geraldine Elizabeth M. Pagilagan
(Arlene V. De Guzman et al., for brevity) filed
a special civil action for mandamus, with
prayer for preliminary mandatory injunction
docketed as Civil Case No. 93-66530 with the
Regional Trial Court (RTC) of Manila, Branch
52. Their petition was adopted by the other
respondents as intervenors.

WHEREFORE, this petition is GRANTED.

Accordingly, the writ of preliminary
mandatory injunction issued by the lower
court against petitioners is hereby nullified
and set aside.

Meanwhile, the Board issued Resolution No.

26, dated July 21, 1993, charging respondents
with immorality, dishonest conduct, fraud,
and deceit in connection with the Bio-Chem
and Ob-Gyne examinations. It recommended
that the test results of the Fatima examinees
be nullified. The case was docketed as Adm.
Case No. 1687 by the PRC.
On July 28, 1993, the RTC issued an Order in
Civil Case No. 93-66530 granting the
preliminary mandatory injunction sought by
the respondents. It ordered the petitioners to
administer the physicians oath to Arlene V. De
Guzman et al., and enter their names in the
rolls of the PRC.
The petitioners then filed a special civil action
for certiorari with the Court of Appeals to set

SO ORDERED. [7]
Arlene V. de Guzman, et al., then elevated the
foregoing Decision to this Court in G.R. No.
112315. In our Resolution dated May 23,
1994, we denied the petition for failure to
show reversible error on the part of the
appellate court.
Meanwhile, on November 22, 1993, during the
pendency of the instant petition, the pre-trial
conference in Civil Case No. 93-66530 was
held. Then, the parties, agreed to reduce the
testimonies of their respective witnesses to
sworn questions-and-answers. This was
without prejudice to cross-examination by the
opposing counsel.
On December 13, 1993, petitioners counsel
failed to appear at the trial in the mistaken
belief that the trial was set for December 15.
The trial court then ruled that petitioners
waived their right to cross-examine the
witnesses.
On January 27, 1994, counsel for petitioners
filed a Manifestation and Motion stating the
reasons for her non-appearance and praying
that the cross-examination of the witnesses
for the opposing parties be reset. The trial
court denied the motion for lack of notice to
adverse counsel. It also denied the Motion for
Reconsideration that followed on the ground

LEGAL MEDICINE 2
that adverse counsel was notified less than
three (3) days prior to the hearing.
Meanwhile, to prevent the PRC and the Board
from proceeding with Adm. Case No. 1687,
the respondents herein moved for the
issuance of a restraining order, which the
lower court granted in its Order dated April 4,
1994.
The petitioners then filed with this Court a
petition for certiorari docketed as G.R. No.
115704, to annul the Orders of the trial court
dated November 13, 1993, February 28, 1994,
and April 4, 1994. We referred the petition to
the Court of Appeals where it was docketed as
CA-G.R. SP No. 34506.
On August 31, 1994, the appellate court
decided CA-G.R. SP No. 34506 as follows:
WHEREFORE, the present petition for
certiorari with prayer for temporary
restraining order/preliminary injunction is
GRANTED and the Orders of December 13,
1993, February 7, 1994, February 28, 1994,
and April 4, 1994 of the RTC-Manila, Branch
52, and all further proceedings taken by it in
Special Civil Action No. 93-66530 are hereby
DECLARED NULL and VOID. The said RTCManila is ordered to allow petitioners counsel
to cross-examine the respondents witnesses,
to allow petitioners to present their evidence
in due course of trial, and thereafter to decide
the case on the merits on the basis of the
evidence of the parties. Costs against
respondents.
IT IS SO ORDERED. [8]

partial reconsideration of the appellate courts

decision in CA-G.R. SP No. 34506, and for the
outright dismissal of Civil Case No. 93-66530.
The petitioners asked for the suspension of
the proceedings.
In its Order dated September 23, 1994, the
trial court granted the aforesaid motion,
cancelled the scheduled hearing dates, and
reset the proceedings to October 21 and 28,
1994.

[9] to take the physicians oath and to register

them as physicians.
It should be made clear that this decision is
without prejudice to any administrative
disciplinary action which may be taken
against any of the petitioners for such causes
and in the manner provided by law and
consistent with the requirements of the
Constitution as any other professionals.
No costs.SO ORDERED. [10]

Meanwhile, on October 25, 1994, the Court of

Appeals denied the partial motion for
reconsideration in CA-G.R. SP No. 34506.
Thus, petitioners filed with the Supreme Court
a petition for review docketed as G.R. No.
117817, entitled Professional Regulation
Commission, et al. v. Court of Appeals, et al.

As a result of these developments, petitioners

filed with this Court a petition for review on
certiorari docketed as G.R. No. 118437,
entitled Professional Regulation Commission
v. Hon. David G. Nitafan, praying inter alia,
that (1) G.R. No. 118437 be consolidated with
G.R. No. 117817; (2) the decision of the Court
of Appeals dated August 31, 1994 in CA-G.R.
SP No. 34506 be nullified for its failure to
decree the dismissal of Civil Case No. 9366530, and in the alternative, to set aside the
decision of the trial court in Civil Case No. 9366530, order the trial court judge to inhibit
himself, and Civil Case No. 93-66530 be reraffled to another branch.

On November 11, 1994, counsel for the

petitioners failed to appear at the trial of Civil
Case No. 93-66530. Upon motion of the
respondents herein, the trial court ruled that
herein petitioners waived their right to crossexamine the herein respondents. Trial was
reset to November 28, 1994.
On November 25, 1994, petitioners counsel
moved for the inhibition of the trial court
judge for alleged partiality. On November 28,
1994, the day the Motion to Inhibit was to be
heard, petitioners failed to appear. Thus, the
trial court denied the Motion to Inhibit and
declared Civil Case No. 93-66530 deemed
submitted for decision.
On December 19, 1994, the trial court handed
down its judgment in Civil Case No. 93-66530,
the fallo of which reads:

On December 26, 1994, the petitioners herein

filed their Notice of Appeal [11] in Civil Case
No. 93-66530, thereby elevating the case to
the Court of Appeals, where it was docketed
as CA-G.R. SP No. 37283.
In our Resolution of June 7, 1995, G.R. No.
118437 was consolidated with G.R. No.
117817.
On July 9, 1998, we disposed of G.R. Nos.
117817 and 118437 in this wise:
WHEREFORE, the petition in G.R. No. 117817
The trial was then set and notices were sent
is DISMISSED for being moot. The petition in
to the parties.
WHEREFORE, judgment is rendered ordering
G.R. No. 118437 is likewise DISMISSED on the
A day before the first hearing, on September
the respondents to allow the petitioners and
ground that there is a pending appeal before
22, 1994, the petitioners filed an Urgent Exintervenors (except those with asterisks and
the Court of Appeals. Assistant Solicitor
Parte Manifestation and Motion praying for the footnotes in pages 1 & 2 of this decision) [sic], General Amparo M. Cabotaje-Tang is advised

to be more circumspect in her dealings with

the courts as a repetition of the same or
similar acts will be dealt with accordingly.
SO ORDERED. [12]
While CA-G.R. SP No. 37283 was awaiting
disposition by the appellate court, Arnel V.
Herrera, one of the original petitioners in Civil
Case No. 93-66530, joined by twenty-seven
intervenors, to wit: Fernando F. Mandapat,
Ophelia C. Hidalgo, Bernadette T. Mendoza,
Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa
A. Regodon, Ma. Eloisa Q. Mallari-Largoza,
Cheryl R. Triguero, Joseph A. Jao, Bernadette
H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura
M. Santos, Maritel M. Echiverri, Bernadette C.
Escusa, Carlosito C. Domingo, Alicia S. Lizano,
Elnora R. Raqueno-Rabaino, Saibzur N.
Edding, Derileen D. Dorado-Edding, Robert B.
Sanchez, Maria Rosario L. Leonor-Lacandula,
Geraldine Elizabeth M. Pagilagan-Palma,
Margarita Belinda L. Vicencio-Gamilla,
Herminigilda E. Conejos, Leuvina P. ChicoPaguio, Elcin C. Arriola-Ocampo, and Jose
Ramoncito P. Navarro, manifested that they
were no longer interested in proceeding with
the case and moved for its dismissal. A similar
manifestation and motion was later filed by
intervenors Mary Jean I. Yeban-Merlan,
Michael L. Serrano, Norma G. Lafavilla, Arnulfo
A. Salvador, Belinda C. Rabara, Yolanda P.
Unica, Dayminda G. Bontuyan, Clarissa B.
Baclig, Ma. Luisa S. Gutierrez, Rhoneil R.
Deveraturda, Aleli A. Gollayan, Evelyn C.
Cundangan, Frederick D. Francisco, Violeta V.
Meneses, Melita J. Caedo, Clarisa SJ. Nicolas,
Federico L. Castillo, Karangalan D. Serrano,
Danilo A. Villaver, Grace E. Uy, Lydia C. Chan,
and Melvin M. Usita. The Court of Appeals
ruled that its decision in CA-G.R. SP No. 37283
would not apply to them.

LEGAL MEDICINE 3
On May 16, 2000, the Court of Appeals
decided CA-G.R. SP No. 37283, with the
following fallo, to wit:
WHEREFORE, finding no reversible error in the
decision appealed from, We hereby AFFIRM
the same and DISMISS the instant appeal.
No pronouncement as to costs.
SO ORDERED. [13]
In sustaining the trial courts decision, the
appellate court ratiocinated that the
respondents complied with all the statutory
requirements for admission into the licensure
examination for physicians in February 1993.
They all passed the said examination. Having
fulfilled the requirements of Republic Act No.
2382, [14] they should be allowed to take
their oaths as physicians and be registered in
the rolls of the PRC.
Hence, this petition raising the following
issues:
I
WHETHER OR NOT RESPONDENTS HAVE A
VALID CAUSE OF ACTION FOR MANDAMUS
AGAINST PETITIONERS IN THE LIGHT OF THE
RESOLUTION OF THIS HONORABLE COURT IN
G.R. NO. 112315 AFFIRMING THE COURT OF
APPEALS DECISION DECLARING THAT IF EVER
THERE IS SOME DOUBT AS TO THE MORAL
FITNESS OF EXAMINEES, THE ISSUANCE OF
LICENSE TO PRACTICE MEDICINE IS NOT
AUTOMATICALLY GRANTED TO THE
SUCCESSFUL EXAMINEES.
II
WHETHER OR NOT THE PETITION FOR
MANDAMUS COULD PROCEED DESPITE THE
PENDENCY OF ADMINISTRATIVE CASE NO.
1687, WHICH WAS PRECISELY LODGED TO
DETERMINE THE MORAL FITNESS OF
RESPONDENTS TO BECOME DOCTORS. [15]

To our mind, the only issue is: Did the Court of

Appeals commit a reversible error of law in
sustaining the judgment of the trial court that
respondents are entitled to a writ of
mandamus?
The petitioners submit that a writ of
mandamus will not lie in this case. They point
out that for a writ of mandamus to issue, the
applicant must have a well-defined, clear and
certain legal right to the thing demanded and
it is the duty of the respondent to perform the
act required. Thus, mandamus may be availed
of only when the duty sought to be performed
is a ministerial and not a discretionary one.
The petitioners argue that the appellate
courts decision in CA-G.R. SP No. 37283
upholding the decision of the trial court in
Civil Case No. 93-66530 overlooked its own
pronouncement in CA-G.R. SP No. 31701. The
Court of Appeals held in CA-G.R. SP No. 31701
that the issuance of a license to engage in the
practice of medicine becomes discretionary
on the PRC if there exists some doubt that the
successful examinee has not fully met the
requirements of the law. The petitioners stress
that this Courts Resolution dated May 24,
1994 in G.R. No. 112315 held that there was
no showing that the Court of Appeals had
committed any reversible error in rendering
the questioned judgment in CA-G.R. SP No.
31701. The petitioners point out that our
Resolution in G.R. No. 112315 has long
become final and executory.
Respondents counter that having passed the
1993 licensure examinations for physicians,
the petitioners have the obligation to
administer to them the oath as physicians and
to issue their certificates of registration as
physicians pursuant to Section 20 [16] of Rep.
Act No. 2382. The Court of Appeals in CA-G.R.
SP No. 37283, found that respondents
complied with all the requirements of Rep. Act
No. 2382. Furthermore, respondents were

admitted by the Medical Board to the

licensure examinations and had passed the
same. Hence, pursuant to Section 20 of Rep.
Act No. 2382, the petitioners had the
obligation to administer their oaths as
physicians and register them.
Mandamus is a command issuing from a court
of competent jurisdiction, in the name of the
state or the sovereign, directed to some
inferior court, tribunal, or board, or to some
corporation or person requiring the
performance of a particular duty therein
specified, which duty results from the official
station of the party to whom the writ is
directed, or from operation of law. [17]
Section 3 of Rule 65 [18] of the 1997 Rules of
Civil Procedure outlines two situations when a
writ of mandamus may issue, when any
tribunal, corporation, board, officer or person
unlawfully (1) neglects the performance of an
act which the law specifically enjoins as a
duty resulting from an office, trust, or station;
or (2) excludes another from the use and
enjoyment of a right or office to which the
other is entitled.
We shall discuss the issues successively.
1. On The Existence of a Duty of the Board of
Medicine To Issue Certificates of Registration
as Physicians under Rep. Act No. 2382.
For mandamus to prosper, there must be a
showing that the officer, board, or official
concerned, has a clear legal duty, not
involving discretion. [19] Moreover, there
must be statutory authority for the
performance of the act, [20] and the
performance of the duty has been refused.
[21] Thus, it must be pertinently asked now:
Did petitioners have the duty to administer
the Hippocratic Oath and register respondents
as physicians under the Medical Act of 1959?

As found by the Court of Appeals, on which we

agree on the basis of the records:
It bears emphasizing herein that petitionerappellees and intervenor-appellees have fully
complied with all the statutory requirements
for admission into the licensure examinations
for physicians conducted and administered by
the respondent-appellants on February 12, 14,
20 and 21, 1993. Stress, too, must be made of
the fact that all of them successfully passed
the same examinations. [22]
The crucial query now is whether the Court of
Appeals erred in concluding that petitioners
should allow the respondents to take their
oaths as physicians and register them, steps
which would enable respondents to practice
the medical profession [23] pursuant to
Section 20 of the Medical Act of 1959?
The appellate court relied on a single
provision, Section 20 of Rep. Act No. 2382, in
concluding that the petitioners had the
ministerial obligation to administer the
Hippocratic Oath to respondents and register
them as physicians. But it is a basic rule in
statutory construction that each part of a
statute should be construed in connection
with every other part to produce a
harmonious whole, not confining construction
to only one section. [24] The intent or
meaning of the statute should be ascertained
from the statute taken as a whole, not from
an isolated part of the provision. Accordingly,
Section 20 of Rep. Act No. 2382, as amended
should be read in conjunction with the other
provisions of the Act. Thus, to determine
whether the petitioners had the ministerial
obligation to administer the Hippocratic Oath
to respondents and register them as
physicians, recourse must be had to the
entirety of the Medical Act of 1959.
A careful reading of Section 20 of the Medical
Act of 1959 discloses that the law uses the

LEGAL MEDICINE 4
word shall with respect to the issuance of
certificates of registration. Thus, the
petitioners shall sign and issue certificates of
registration to those who have satisfactorily
complied with the requirements of the Board.
In statutory construction the term shall is a
word of command. It is given imperative
meaning. Thus, when an examinee satisfies
the requirements for the grant of his
physicians license, the Board is obliged to
administer to him his oath and register him as
a physician, pursuant to Section 20 and par.
(1) of Section 22 [25] of the Medical Act of
1959.
However, the surrounding circumstances in
this case call for serious inquiry concerning
the satisfactory compliance with the Board
requirements by the respondents. The
unusually high scores in the two most difficult
subjects was phenomenal, according to Fr.
Nebres, the consultant of PRC on the matter,
and raised grave doubts about the integrity, if
not validity, of the tests. These doubts have
to be appropriately resolved.
Under the second paragraph of Section 22,
the Board is vested with the power to conduct
administrative investigations and disapprove
applications for examination or registration,
pursuant to the objectives of Rep. Act No.
2382 as outlined in Section 1 [26] thereof. In
this case, after the investigation, the Board
filed before the PRC, Adm. Case No. 1687
against the respondents to ascertain their
moral and mental fitness to practice
medicine, as required by Section 9 [27] of
Rep. Act No. 2382. In its Decision dated July 1,
1997, the Board ruled:
WHEREFORE, the BOARD hereby CANCELS the
respondents[] examination papers in the
Physician Licensure Examinations given in

February 1993 and further DEBARS them from

taking any licensure examination for a period
of ONE (1) YEAR from the date of the
promulgation of this DECISION. They may, if
they so desire, apply for the scheduled
examinations for physicians after the lapse of
the period imposed by the BOARD.
SO ORDERED. [28]

must have satisfactorily passed the

corresponding Board Examination. Section 22,
in turn, provides that the oath may only be
administered to physicians who qualified in
the examinations. The operative word here is
satisfactorily, defined as sufficient to meet a
condition or obligation or capable of dispelling
doubt or ignorance. [31] Gleaned from Board
Resolution No. 26, the licensing authority
Until the moral and mental fitness of the
apparently did not find that the respondents
respondents could be ascertained, according
satisfactorily passed the licensure
to petitioners, the Board has discretion to hold examinations. The Board instead sought to
in abeyance the administration of the
nullify the examination results obtained by
Hippocratic Oath and the issuance of the
the respondents.
certificates to them. The writ of mandamus
2. On the Right Of The Respondents To Be
does not lie to compel performance of an act
Registered As Physicians
which is not duly authorized.
The function of mandamus is not to establish
The respondents nevertheless argue that
a right but to enforce one that has been
under Section 20, the Board shall not issue a
established by law. If no legal right has been
certificate of registration only in the following violated, there can be no application of a legal
instances: (1) to any candidate who has been remedy, and the writ of mandamus is a legal
convicted by a court of competent jurisdiction remedy for a legal right. [32] There must be a
of any criminal offense involving moral
well-defined, clear and certain legal right to
turpitude; (2) or has been found guilty of
the thing demanded. [33] It is long
immoral or dishonorable conduct after the
established rule that a license to practice
investigation by the Board; or (3) has been
medicine is a privilege or franchise granted by
declared to be of unsound mind. They aver
the government. [34]
that none of these circumstances are present It is true that this Court has upheld the
in their case.
constitutional right [35] of every citizen to
Petitioners reject respondents argument. We
select a profession or course of study subject
are informed that in Board Resolution No. 26,
to a fair, reasonable, and equitable admission
[29] dated July 21, 1993, the Board resolved
and academic requirements. [36] But like all
to file charges against the examinees from
rights and freedoms guaranteed by the
Fatima College of Medicine for immorality,
Charter, their exercise may be so regulated
dishonesty, fraud, and deceit in the
pursuant to the police power of the State to
Obstetrics-Gynecology and Biochemistry
safeguard health, morals, peace, education,
examinations. It likewise sought to cancel the order, safety, and general welfare of the
examination results obtained by the
people. [37] Thus, persons who desire to
examinees from the Fatima College.
engage in the learned professions requiring
scientific or technical knowledge may be
Section 8 [30] of Rep. Act No. 2382
required to take an examination as a
prescribes, among others, that a person who
prerequisite to engaging in their chosen
aspires to practice medicine in the Philippines, careers. This regulation takes particular

pertinence in the field of medicine, to protect

the public from the potentially deadly effects
of incompetence and ignorance among those
who would practice medicine. In a previous
case, it may be recalled, this Court has
ordered the Board of Medical Examiners to
annul both its resolution and certificate
authorizing a Spanish subject, with the degree
of Licentiate in Medicine and Surgery from the
University of Barcelona, Spain, to practice
medicine in the Philippines, without first
passing the examination required by the
Philippine Medical Act. [38] In another case
worth noting, we upheld the power of the
State to upgrade the selection of applicants
into medical schools through admission tests.
[39]
It must be stressed, nevertheless, that the
power to regulate the exercise of a profession
or pursuit of an occupation cannot be
exercised by the State or its agents in an
arbitrary, despotic, or oppressive manner. A
political body that regulates the exercise of a
particular privilege has the authority to both
forbid and grant such privilege in accordance
with certain conditions. Such conditions may
not, however, require giving up ones
constitutional rights as a condition to
acquiring the license. [40] Under the view that
the legislature cannot validly bestow an
arbitrary power to grant or refuse a license on
a public agency or officer, courts will
generally strike down license legislation that
vests in public officials discretion to grant or
refuse a license to carry on some ordinarily
lawful business, profession, or activity without
prescribing definite rules and conditions for
the guidance of said officials in the exercise of
their power. [41]
In the present case, the aforementioned
guidelines are provided for in Rep. Act No.
2382, as amended, which prescribes the

LEGAL MEDICINE 5
requirements for admission to the practice of
medicine, the qualifications of candidates for
the board examinations, the scope and
conduct of the examinations, the grounds for
denying the issuance of a physicians license,
or revoking a license that has been issued.
Verily, to be granted the privilege to practice
medicine, the applicant must show that he
possesses all the qualifications and none of
the disqualifications.

93-66530 were inconsistent reliefs. In G.R. No.

118437, the petitioners sought to nullify the
decision of the Court of Appeals in CA-G.R. SP
No. 34506 insofar as it did not order the
dismissal of Civil Case No. 93-66530. In our
consolidated decision, dated July 9, 1998, in
G.R. Nos. 117817 & 118437, this Court
speaking through Justice Bellosillo opined
that:
Indeed, the issue as to whether the Court of
Appeals erred in not ordering the dismissal of
Furthermore, it must appear that he has fully
Civil Case No. 93-66530 sought to be resolved
complied with all the conditions and
in the instant petition has been rendered
requirements imposed by the law and the
meaningless by an event taking place prior to
licensing authority. Should doubt taint or mar
the filing of this petition and denial thereof
the compliance as being less than
should follow as a logical consequence. [42]
satisfactory, then the privilege will not issue.
There is no longer any justiciable controversy
For said privilege is distinguishable from a
so that any declaration thereon would be of
matter of right, which may be demanded if
no practical use or value. [43] It should be
denied. Thus, without a definite showing that
recalled that in its decision of 19 December
the aforesaid requirements and conditions
1994 the trial court granted the writ of
have been satisfactorily met, the courts may
mandamus prayed for by private respondents,
not grant the writ of mandamus to secure said which decision was received by petitioners on
privilege without thwarting the legislative will. 20 December 1994. Three (3) days after, or
on 23 December 1994, petitioners filed the
3. On the Ripeness of the Petition for
instant petition. By then, the remedy available
Mandamus
to them was to appeal the decision to the
Lastly, the petitioners herein contend that the Court of Appeals, which they in fact did, by
Court of Appeals should have dismissed the
filing a notice of appeal on 26 December
petition for mandamus below for being
1994. [44]
premature. They argue that the
The petitioners have shown no cogent reason
administrative remedies had not been
for us to reverse the aforecited ruling. Nor will
exhausted. The records show that this is not
their reliance upon the doctrine of the
the first time that petitioners have sought the exhaustion of administrative remedies in the
dismissal of Civil Case No. 93-66530. This
instant case advance their cause any.
issue was raised in G.R. No. 115704, which
petition we referred to the Court of Appeals,
Section 26 [45] of the Medical Act of 1959
where it was docketed as CA-G.R. SP No.
provides for the administrative and judicial
34506. On motion for reconsideration in CAremedies that respondents herein can avail to
G.R. SP No. 34506, the appellate court denied question Resolution No. 26 of the Board of
the motion to dismiss on the ground that the
Medicine, namely: (a) appeal the unfavorable
prayers for the nullification of the order of the judgment to the PRC; (b) should the PRC
trial court and the dismissal of Civil Case No.
ruling still be unfavorable, to elevate the

matter on appeal to the Office of the

President; and (c) should they still be
unsatisfied, to ask for a review of the case or
to bring the case to court via a special civil
action of certiorari. Thus, as a rule,
mandamus will not lie when administrative
remedies are still available. [46] However, the
doctrine of exhaustion of administrative
remedies does not apply where, as in this
case, a pure question of law is raised. [47] On
this issue, no reversible error may, thus, be
laid at the door of the appellate court in CAG.R. SP No. 37283, when it refused to dismiss
Civil Case No. 93-66530.

Aleli A. Gollayan, Evelyn C. Cundangan,

Frederick D. Francisco, Violeta V. Meneses,
Melita J. Caedo, Clarisa SJ. Nicolas, Federico L.
Castillo, Karangalan D. Serrano, Danilo A.
Villaver, Grace E. Uy, Lydia C. Chan, and
Melvin M. Usita. Following these
manifestations and motions, the appellate
court in CA-G.R. SP No. 37283 decreed that its
ruling would not apply to them. Thus,
inasmuch as the instant case is a petition for
review of the appellate courts ruling in CAG.R. SP No. 37283, a decision which is
inapplicable to the aforementioned
respondents will similarly not apply to them.

As we earlier pointed out, herein respondents

Arnel V. Herrera, Fernando F. Mandapat,
Ophelia C. Hidalgo, Bernadette T. Mendoza,
Ruby B. Lantin-Tan, Fernando T. Cruz, Marissa
A. Regodon, Ma. Eloisa Q. Mallari-Largoza,
Cheryl R. Triguero, Joseph A. Jao, Bernadette
H. Cabuhat, Evelyn S. Acosta-Cabanes, Laura
M. Santos, Maritel M. Echiverri, Bernadette C.
Escusa, Carlosito C. Domingo, Alicia S. Lizano,
Elnora R. Raqueno-Rabaino, Saibzur N.
Edding, Derileen D. Dorado-Edding, Robert B.
Sanchez, Maria Rosario Leonor-Lacandula,
Geraldine Elizabeth M. Pagilagan-Palma,
Margarita Belinda L. Vicencio-Gamilla,
Herminigilda E. Conejos, Leuvina P. ChicoPaguio, Elcin C. Arriola-Ocampo, and Jose
Ramoncito P. Navarro manifested to the Court
of Appeals during the pendency of CA-G.R. SP
No. 37283, that they were no longer
interested in proceeding with the case and
moved for its dismissal insofar as they were
concerned. A similar manifestation and
motion were later filed by intervenors Mary
Jean I. Yeban-Merlan, Michael L. Serrano,
Norma G. Lafavilla, Arnulfo A. Salvador,
Belinda C. Rabarra, Yolanda P. Unica,
Dayminda G. Bontuyan, Clarissa B. Baclig, Ma.
Luisa S. Gutierrez, Rhoneil R. Deveraturda,

As to Achilles J. Peralta, Evelyn O. Ramos,

Sally B. Bunagan, Rogelio B. Ancheta, Oscar
H. Padua, Jr., Evelyn D. Grajo, Valentino P.
Arboleda, Carlos M. Bernardo, Jr., Mario D.
Cuaresma, Violeta C. Felipe, Percival H.
Pangilinan, Corazon M. Cruz and Samuel B.
Bangoy, herein decision shall not apply
pursuant to the Orders of the trial court in
Civil Case No. 93-66530, dropping their
names from the suit.
Consequently, this Decision is binding only on
the remaining respondents, namely: Arlene V.
de Guzman, Celerina S. Navarro, Rafael I.
Tolentino, Bernardita B. Sy, Gloria T. Jularbal,
Hubert S. Nazareno, Nancy J. Chavez, Ernesto
L. Cue, Herminio V. Fernandez, Jr., Maria
Victoria M. Lacsamana and Merly D. Sta. Ana,
as well as the petitioners.
WHEREFORE, the instant petition is GRANTED.
Accordingly, (1) the assailed decision dated
May 16, 2000, of the Court of Appeals, in CAG.R. SP No. 37283, which affirmed the
judgment dated December 19, 1994, of the
Regional Trial Court of Manila, Branch 52, in
Civil Case No. 93-66530, ordering petitioners
to administer the physicians oath to herein

LEGAL MEDICINE 6
respondents as well as the resolution dated
August 25, 2000, of the appellate court,
denying the petitioners motion for
reconsideration, are REVERSED and SET
ASIDE; and (2) the writ of mandamus, issued
in Civil Case No. 93-66530, and affirmed by
the appellate court in CA-G.R. SP No. 37283 is
NULLIFIED AND SET ASIDE. SO ORDERED.

G.R. No. 89572 December 21, 1989

DEPARTMENT OF EDUCATION, CULTURE
AND SPORTS (DECS) and DIRECTOR OF
CENTER FOR EDUCATIONAL
MEASUREMENT, petitioners, vs.
ROBERTO REY C. SAN DIEGO and JUDGE
TERESITA DIZON-CAPULONG, in her
capacity as Presiding Judge of the
Regional Trial Court of Valenzuela, Metro
Manila, Branch 172, respondents.
Ramon M. Guevara for private respondent.
CRUZ, J.:
The issue before us is mediocrity. The
question is whether a person who has thrice
failed the National Medical Admission Test
(NMAT) is entitled to take it again.
The petitioner contends he may not, under its
rule thath) A student shall be allowed only three (3)
chances to take the NMAT. After three (3)
successive failures, a student shall not be
allowed to take the NMAT for the fourth time.
The private respondent insists he can, on
constitutional grounds.
But first the facts.
The private respondent is a graduate of the
University of the East with a degree of
Bachelor of Science in Zoology. The petitioner

claims that he took the NMAT three times and

flunked it as many times. 1 When he applied
to take it again, the petitioner rejected his
application on the basis of the aforesaid rule.
He then went to the Regional Trial Court of
Valenzuela, Metro Manila, to compel his
admission to the test.
In his original petition for mandamus, he first
invoked his constitutional rights to academic
freedom and quality education. By agreement
of the parties, the private respondent was
allowed to take the NMAT scheduled on April
16, 1989, subject to the outcome of his
petition. 2 In an amended petition filed with
leave of court, he squarely challenged the
constitutionality of MECS Order No. 12, Series
of 1972, containing the above-cited rule. The
additional grounds raised were due process
and equal protection.
After hearing, the respondent judge rendered
a decision on July 4, 1989, declaring the
challenged order invalid and granting the
petition. Judge Teresita Dizon-Capulong held
that the petitioner had been deprived of his
right to pursue a medical education through
an arbitrary exercise of the police power. 3
We cannot sustain the respondent judge. Her
decision must be reversed.
In Tablarin v. Gutierrez, 4 this Court upheld
the constitutionality of the NMAT as a
measure intended to limit the admission to
medical schools only to those who have
initially proved their competence and
preparation for a medical education. Justice
Florentino P. Feliciano declared for a
unanimous Court:
Perhaps the only issue that needs some
consideration is whether there is some

reasonable relation between the prescribing

of passing the NMAT as a condition for
admission to medical school on the one hand,
and the securing of the health and safety of
the general community, on the other hand.
This question is perhaps most usefully
approached by recalling that the regulation of
the pratice of medicine in all its branches has
long been recognized as a reasonable method
of protecting the health and safety of the
public. That the power to regulate and control
the practice of medicine includes the power to
regulate admission to the ranks of those
authorized to practice medicine, is also well
recognized. Thus, legislation and
administrative regulations requiring those
who wish to practice medicine first to take
and pass medical board examinations have
long ago been recognized as valid exercises of
governmental power. Similarly, the
establishment of minimum medical
educational requirements-i.e., the completion
of prescribed courses in a recognized medical
school-for admission to the medical
profession, has also been sustained as a
legitimate exercise of the regulatory authority
of the state. What we have before us in the
instant case is closely related: the regulation
of access to medical schools. MECS Order No.
52, s. 1985, as noted earlier, articulates the
rationale of regulation of this type: the
improvement of the professional and technical
quality of the graduates of medical schools,
by upgrading the quality of those admitted to
the student body of the medical schools. That
upgrading is sought by selectivity in the
process of admission, selectivity consisting,
among other things, of limiting admission to
those who exhibit in the required degree the
aptitude for medical studies and eventually
for medical practice. The need to maintain,
and the difficulties of maintaining, high
standards in our professional schools in

general, and medical schools in particular, in

the current state of our social and economic
development, are widely known.
We believe that the government is entitled to
prescribe an admission test like the NMAT as a
means of achieving its stated objective of
"upgrading the selection of applicants into
[our] medical schools" and of "improv[ing] the
quality of medical education in the country."
Given the widespread use today of such
admission tests in, for instance, medical
schools in the United States of America (the
Medical College Admission Test [MCAT] and
quite probably, in other countries with far
more developed educational resources than
our own, and taking into account the failure or
inability of the petitioners to even attempt to
prove otherwise, we are entitled to hold that
the NMAT is reasonably related to the
securing of the ultimate end of legislation and
regulation in this area. That end, it is useful to
recall, is the protection of the public from the
potentially deadly effects of incompetence
and ignorance in those who would undertake
to treat our bodies and minds for disease or
trauma.
However, the respondent judge agreed with
the petitioner that the said case was not
applicable. Her reason was that it upheld only
the requirement for the admission test and
said nothing about the so-called "three-flunk
rule."
We see no reason why the rationale in the
Tablarin case cannot apply to the case at bar.
The issue raised in both cases is the academic
preparation of the applicant. This may be
gauged at least initially by the admission test
and, indeed with more reliability, by the threeflunk rule. The latter cannot be regarded any
less valid than the former in the regulation of
the medical profession.

LEGAL MEDICINE 7
There is no need to redefine here the police
power of the State. Suffice it to repeat that
the power is validly exercised if (a) the
interests of the public generally, as
distinguished from those of a particular class,
require the interference of the State, and (b)
the means employed are reasonably
necessary to the attainment of the object
sought to be accomplished and not unduly
oppressive upon individuals. 5
In other words, the proper exercise of the
police power requires the concurrence of a
lawful subject and a lawful method.

A person cannot insist on being a physician if

he will be a menace to his patients. If one who
wants to be a lawyer may prove better as a
plumber, he should be so advised and
adviced. Of course, he may not be forced to
be a plumber, but on the other hand he may
not force his entry into the bar. By the same
token, a student who has demonstrated
promise as a pianist cannot be shunted aside
to take a course in nursing, however
appropriate this career may be for others.

The right to quality education invoked by the

private respondent is not absolute. The
Constitution also provides that "every citizen
The subject of the challenged regulation is
has the right to choose a profession or course
certainly within the ambit of the police power. of study, subject to fair, reasonable and
It is the right and indeed the responsibility of
equitable admission and academic
the State to insure that the medical profession requirements. 6
is not infiltrated by incompetents to whom
The private respondent must yield to the
patients may unwarily entrust their lives and
challenged rule and give way to those better
health.
prepared. Where even those who have
The method employed by the challenged
qualified may still not be accommodated in
regulation is not irrelevant to the purpose of
our already crowded medical schools, there is
the law nor is it arbitrary or oppressive. The
all the more reason to bar those who, like him,
three-flunk rule is intended to insulate the
have been tested and found wanting.
medical schools and ultimately the medical
profession from the intrusion of those not
The contention that the challenged rule
qualified to be doctors.
violates the equal protection clause is not
While every person is entitled to aspire to be
well-taken. A law does not have to operate
a doctor, he does not have a constitutional
with equal force on all persons or things to be
right to be a doctor. This is true of any other
conformable to Article III, Section 1 of the
calling in which the public interest is involved; Constitution.
and the closer the link, the longer the bridge
There can be no question that a substantial
to one's ambition. The State has the
distinction exists between medical students
responsibility to harness its human resources
and other students who are not subjected to
and to see to it that they are not dissipated
the NMAT and the three-flunk rule. The
or, no less worse, not used at all. These
medical profession directly affects the very
resources must be applied in a manner that
lives of the people, unlike other careers
will best promote the common good while
which, for this reason, do not require more
also giving the individual a sense of
vigilant regulation. The accountant, for
satisfaction.
example, while belonging to an equally
respectable profession, does not hold the

same delicate responsibility as that of the

physician and so need not be similarly
treated.
There would be unequal protection if some
applicants who have passed the tests are
admitted and others who have also qualified
are denied entrance. In other words, what the
equal protection requires is equality among
equals.
The Court feels that it is not enough to simply
invoke the right to quality education as a
guarantee of the Constitution: one must show
that he is entitled to it because of his
preparation and promise. The private
respondent has failed the NMAT five times. 7
While his persistence is noteworthy, to say
the least, it is certainly misplaced, like a
hopeless love.
No depreciation is intended or made against
the private respondent. It is stressed that a
person who does not qualify in the NMAT is
not an absolute incompetent unfit for any
work or occupation. The only inference is that
he is a probably better, not for the medical
profession, but for another calling that has not
excited his interest.
In the former, he may be a bungler or at least
lackluster; in the latter, he is more likely to
succeed and may even be outstanding. It is
for the appropriate calling that he is entitled
to quality education for the full harnessing of
his potentials and the sharpening of his latent
talents toward what may even be a brilliant
future.
We cannot have a society of square pegs in
round holes, of dentists who should never
have left the farm and engineers who should
have studied banking and teachers who could
be better as merchants.
It is time indeed that the State took decisive
steps to regulate and enrich our system of
education by directing the student to the

course for which he is best suited as

determined by initial tests and evaluations.
Otherwise, we may be "swamped with
mediocrity," in the words of Justice Holmes,
not because we are lacking in intelligence but
because we are a nation of misfits.
WHEREFORE, the petition is GRANTED. The
decision of the respondent court dated
January 13, 1989, is REVERSED, with costs
against the private respondent. It is so
ordered.

MEDICAL NEGLIGENCE CASES

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.
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

LEGAL MEDICINE 8
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 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
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 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 complaint13 for damages against
petitioner, Dr. Abad, and the hospital. Finding
in favor of respondent spouses, the trial court
decreed:

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:

II.
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-93-16562, 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
defendants-appellants Dr. Rainerio S. Abad
and Delgado Clinic, Inc.;

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

4. Dismissing the counterclaims of

defendants-appellants for lack of merit; and

(a) to pay the sum of Five Hundred Thousand

Pesos (P500,000.00) in moral damages;

SO ORDERED.15

(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.

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;

5. Ordering defendant-appellant Dra. Milagros

[L.] Cantre only to pay the costs.

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

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 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.
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
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

LEGAL MEDICINE 9
HAVE INTENDED TO INFLICT THE INJURY TO
SAVE THE LIFE OF RESPONDENT MRS. GO;

respondents injury to its original state but

rather to prevent further complication.

VI.

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.

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.
WHETHER OR NOT THE LOWER COURT
COMMITTED GRAVE ABUSE 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.

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?
Thereafter, the inquiry is whether the
appellate court committed grave abuse of
discretion in its assailed issuances.
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.

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 wellbeing 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:

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
2. It is caused by an instrumentality within the to by the medico-legal officer, Dr. Arizala, Jr.,
exclusive control of the defendant or
the medical practice is to deflate the blood
defendants; and
pressure cuff immediately after each use.
Otherwise, the inflated band can cause injury
3. The possibility of contributing conduct
to the patient similar to what could have
which would make the plaintiff responsible is
happened in this case. Thus, if Noras wound
Petitioner contends that additional
eliminated.18
was caused by the blood pressure cuff, then
documentary exhibits not testified to by any
the taking of Noras blood pressure must have
witness are inadmissible in evidence because
As to the first requirement, the gaping wound been done so negligently as to have inflicted
they deprived her of her constitutional right to
on Noras arm is certainly not an ordinary
a gaping wound on her arm,20 for which
confront the witnesses against her. Petitioner
occurrence
in
the
act
of
delivering
a
baby,
far
Petitioners contention that the medico-legal
petitioner cannot escape liability under the
insists the droplight could not have touched
removed as the arm is from the organs
officer who conducted Noras physical
"captain of the ship" doctrine.
Noras body. She maintains the injury was due examination never saw her original injury
involved in the process of giving birth. Such
to the constant taking of Noras blood
injury could not have happened unless
before plastic surgery was performed is
Further, petitioners argument that the failed
pressure. Petitioner also insinuates the Court
without basis and contradicted by the records. negligence had set in somewhere.
plastic surgery was not intended as a
of Appeals was misled by the testimony of the Records show that the medico-legal officer
cosmetic procedure, but rather as a measure
medico-legal officer who never saw the
conducted the physical examination on May 7, Second, whether the injury was caused by the to prevent complication does not help her
original injury before plastic surgery was
droplight or by the blood pressure cuff is of no case. It does not negate negligence on her
1992, while the skin grafting and the scar
performed. Finally, petitioner stresses that
moment. Both instruments are deemed within part.
revision were performed on Nora on May 22,
plastic surgery was not intended to restore
the exclusive control of the physician in
1992 and April 30, 1993, respectively.
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

1. The accident is of a kind which ordinarily

does not occur in the absence of someones
negligence;

LEGAL MEDICINE 10
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:

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.

ART. 2176. Whoever by act or omission causes

damage to another, there being fault or
No pronouncement as to costs. SO ORDERED.
negligence, is obliged to pay for the damage
[G.R. No. 118231. July 5, 1996]
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.

DR. VICTORIA L. BATIQUIN and ALLAN

BATIQUIN, petitioners, vs. COURT OF
APPEALS, SPOUSES QUEDO D. ACOGIDO
and FLOTILDE G. VILLEGAS, respondents.

Clearly, under the law, petitioner is obliged to

pay Nora for moral damages suffered by the
latter as a proximate result of petitioners
negligence.

Throughout history, patients have consigned

their fates and lives to the skill of their
doctors. For a breach of this trust, men have
been quick to demand retribution. Some
4,000 years ago, the Code of
Hammurabi[1] then already provided: "If a
physician make a deep incision upon a man
with his bronze lancet and cause the man's
death, or operate on the eye socket of a man
with his bronze lancet and destroy the man's
eyes, they shall cut off his
hand."[2] Subsequently, Hippocrates[3] wrote
what was to become part of the healer's oath:
"I will follow that method of treatment which
according to my ability and judgment, I
consider for the benefit of my patients, and
abstain from whatever is deleterious and
mischievous . . . . While I continue to keep this
oath unviolated may it be granted me to
enjoy life and practice the art, respected by
all men at all times but should I trespass and
violate this oath, may the reverse be my lot."
At present, the primary objective of the
medical profession is the preservation of life
and maintenance of the health of the people.

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

DECISION
DAVIDE, JR., J.:

[4]

Needless to say then, when a physician strays

from his sacred duty and endangers instead
the life of his patient, he must be made to

answer therefor. Although society today

cannot and will not tolerate the punishment
meted out by the ancients, neither will it and
this Court, as this case would show, let the act
go uncondemned.
The petitioners appeal from the decision[5] of
the Court of Appeals of 11 May 1994 in CAG.R. CV No. 30851, which reversed the
decision[6] of 21 December 1990 of Branch 30
of the Regional Trial Court (RTC) of Negros
Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as
follows:
Dr. Batiquin was a Resident Physician at the
Negros Oriental Provincial Hospital,
Dumaguete City from January 9, 1978 to
September 1989. Between 1987 and
September, 1989 she was also the Actg. Head
of the Department of Obstetrics and
Gynecology at the said Hospital.
Mrs. Villegas is a married woman who
submitted to Dr. Batiquin for prenatal care as
the latter's private patient sometime before
September 21, 1988.
In the morning of September 21, 1988 Dr.
Batiquin, with the assistance of Dr. Doris
Teresita Sy who was also a Resident Physician
at the same Hospital, C.I. and O.R. Nurse
Arlene Diones and some student nurses
performed a simple cesarean section on Mrs.
Villegas at the Negros Oriental Provincial
Hospital and after 45 minutes Mrs. Villegas
delivered her first child, Rachel Acogido, at
about 11:45 that morning. Thereafter, Plaintiff
remained confined at the Hospital until
September 27, 1988 during which period of
confinement she was regularly visited by Dr.
Batiquin. On September 28, 1988, Mrs.
Villegas checked out of the Hospital . . . and
on the same day she paid Dr. Batiquin, thru
the latter's secretary, the amount of
P1,500.00 as "professional fee" . . . .

Soon after leaving the Hospital Mrs. Villegas

began to suffer abdominal pains and
complained of being feverish. She also
gradually lost her appetite, so she consulted
Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines . . . which
she had been taking up to December, 1988.
In the meantime, Mrs. Villegas was given a
Medical Certificate by Dr. Batiquin on October
31, 1988 . . . certifying to her physical fitness
to return to her work on November 7,
1988. So, on the second week of November,
1988 Mrs. Villegas returned to her work at the
Rural Bank of Ayungon, Negros Oriental.
The abdominal pains and fever kept on
recurring and bothered Mrs. Villegas no end
and despite the medications administered by
Dr. Batiquin. When the pains become
unbearable and she was rapidly losing weight
she consulted Dr. Ma. Salud Kho at the Holy
Child's Hospital in Dumaguete City on January
20, 1989.
The evidence of Plaintiffs show that when Dr.
Ma. Salud Kho examined Mrs. Villegas at the
Holy Child's Hospital on January 20, 1989 she
found Mrs. Villegas to be feverish, pale and
was breathing fast. Upon examination she felt
an abdominal mass one finger below the
umbilicus which she suspected to be either a
tumor of the uterus or an ovarian cyst, either
of which could be cancerous. She had an x-ray
taken of Mrs. Villegas' chest, abdomen and
kidney. She also took blood tests of Plaintiff. A
blood count showed that Mrs. Villegas had
[an] infection inside her abdominal cavity. The
result of all those examinations impelled Dr.
Kho to suggest that Mrs. Villegas submit to
another surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs.
Villegas she found whitish-yellow discharge
inside, an ovarian cyst on each of the left and
right ovaries which gave out pus, dirt and pus
behind the uterus, and a piece of rubber
materials on the right side of the uterus
embedded on [sic] the ovarian cyst, 2 inches

LEGAL MEDICINE 11
by 3/4 inch in size. This piece of rubber
material which Dr. Kho described as a "foreign
body" looked like a piece of a "rubber
glove" . . . and which is [sic] also "rubberdrain like . . . . It could have been a torn
section of a surgeon's gloves or could have
come from other sources. And this foreign
body was the cause of the infection of the
ovaries and consequently of all the discomfort
suffered by Mrs. Villegas after her delivery on
September 21, 1988.[7]
The piece of rubber allegedly found near
private respondent Flotilde Villegas' uterus
was not presented in court, and although Dr.
Ma. Salud Kho testified that she sent it to a
pathologist in Cebu City for examination,[8] it
was not mentioned in the pathologist's
Surgical Pathology Report.[9]
Aside from Dr. Kho's testimony, the evidence
which mentioned the piece of rubber are a
Medical Certificate,[10] a Progress Record,[11] an
Anesthesia Record,[12] a Nurse's Record,[13] and
a Physician's Discharge Summary.[14] The trial
court, however, regarded these documentary
evidence as mere hearsay, "there being no
showing that the person or persons who
prepared them are deceased or unable to
testify on the facts therein stated . . . . Except
for the Medical Certificate (Exhibit "F"), all the
above documents were allegedly prepared by
persons other than Dr. Kho, and she merely
affixed her signature on some of them to
express her agreement thereto . . . ."[15] The
trial court also refused to give weight to Dr.
Kho's testimony regarding the subject piece of
rubber as Dr. Kho "may not have had firsthand knowledge" thereof,[16] as could be
gleaned from her statement, thus:
A . . . I have heard somebody that [sic] says
[sic] there is [sic] a foreign body that goes
with the tissues but unluckily I don't know
where the rubber was.[17]
The trial court deemed vital Dr. Victoria
Batiquin's testimony that when she
confronted Dr. Kho regarding the piece of

rubber, "Dr. Kho answered that there was

rubber indeed but that she threw it
away."[18] This statement, the trial court noted,
was never denied nor disputed by Dr. Kho,
leading it to conclude:

exercised due diligence, appellee Dr. Batiquin

would have found the rubber and removed it
before closing the operating area.[20]

There are now two different versions on the

whereabouts of that offending "rubber" (1)
that it was sent to the Pathologist in Cebu as
testified to in Court by Dr. Kho and (2) that Dr.
Kho threw it away as told by her to
Defendant. The failure of the Plaintiffs to
reconcile these two different versions serve
only to weaken their claim against Defendant
Batiquin.[19]

Appellants' evidence show[s] that they paid a

total of P17,000.00 [deposit of P7,100.00
(Exh. G-1-A) plus hospital and medical
expenses together with doctor's fees in the
total amount P9,900.00 (Exhs. G and G-2)] for
the second operation that saved her life.

All told, the trial court held in favor of the

petitioners herein.
The Court of Appeals reviewed the entirety of
Dr. Kho's testimony and, even without
admitting the private respondents'
documentary evidence, deemed Dr. Kho's
positive testimony to definitely establish that
a piece of rubber was found near private
respondent Villegas' uterus. Thus, the Court of
Appeals reversed the decision of the trial
court, holding:
4. The fault or negligence of appellee Dr.
Batiquin is established by preponderance of
evidence. The trial court itself had narrated
what happened to appellant Flotilde after the
cesarean operation made by appellee doctor .
. . . After the second operation, appellant
Flotilde became well and healthy. Appellant
Flotilde's troubles were caused by the
infection due to the "rubber" that was left
inside her abdomen. Both appellants testified
that after the operation made by appellee
doctor, they did not go to any other doctor
until they finally decided to see another
doctor in January, 1989 when she was not
getting any better under the care of appellee
Dr. Batiquin . . . . Appellee Dr. Batiquin
admitted on the witness stand that she alone
decided when to close the operating area;
that she examined the portion she operated
on before closing the same . . . . Had she

The appellate court then ruled:

For the miseries appellants endured for more

than three (3) months, due to the negligence
of appellee Dr. Batiquin, they are entitled to
moral damages in the amount of
P100,000.00; exemplary damages in the
amount of P20,000.00 and attorney's fees in
the amount of P25,000.00.
The fact that appellant Flotilde can no longer
bear children because her uterus and ovaries
were removed by Dr. Kho is not taken into
consideration as it is not shown that the
removal of said organs were the direct result
of the rubber left by appellee Dr. Batiquin
near the uterus. What is established is that
the rubber left by appellee cause infection,
placed the life of appellant Flotilde in jeopardy
and caused appellants fear, worry and anxiety
....
WHEREFORE, the appealed judgment,
dismissing the complaint for damages is
REVERSED and SET ASIDE. Another judgment
is hereby entered ordering defendantsappellees to pay plaintiffs-appellants the
amounts of P17,000.00 as and for actual
damages; P100,000.00 as and for moral
damages; P20,000.00 as and for exemplary
damages; and P25,000.00 as and for
attorney's fees plus the cost of litigation.
SO ORDERED.[21]
From the above judgment, the petitioners
appealed to this Court claiming that the
appellate court; (1) committed grave abuse of

discretion by resorting to findings of fact not

supported by the evidence on record, and (2)
exceeded its discretion, amounting to lack or
excess of jurisdiction, when it gave credence
to testimonies punctured with contradictions
and falsities.
The private respondents commented that the
petition raised only questions of fact, which
were not proper for review by this Court.
While the rule is that only questions of law
may be raised in a petition for review
on certiorari, there are exceptions, among
which are when the factual findings of the trial
court and the appellate court conflict, when
the appealed decision is clearly contradicted
by the evidence on record, or when the
appellate court misapprehended the facts.[22]
After deciphering the cryptic petition, we find
that the focal point of the instant appeal is the
appreciation of Dr. Kho's testimony. The
petitioners contend that the Court of Appeals
misappreciated the following portion of Dr.
Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back
of my mind, just in case this would turn out to
be a medico-legal case, I have heard
somebody that [sic] says [sic] there is [sic] a
foreign body that goes with the tissues but
unluckily I don't know where the rubber
was. It was not in the Lab, it was not in Cebu.
[23]
(Italics supplied)
The petitioners prefer the trial court's
interpretation of the above testimony, i.e.,
that Dr. Kho's knowledge of the piece of
rubber was based on hearsay. The Court of
Appeals, on the other hand, concluded that
the underscored phrase was taken out of
context by the trial court. According to the
Court of Appeals, the trial court should have
likewise considered the other portions of Dr.
Kho's testimony, especially the following:

LEGAL MEDICINE 12
Q So you did actually conduct the operation
on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was
whitish-yellow discharge inside the abdomen,
there was an ovarian cyst on the left and side
and there was also an ovarian cyst on the
right which, on opening up or freeing it up
from the uterus, turned out to be pus. Both
ovaries turned out . . . to have pus. And then,
cleaning up the uterus, at the back of the
uterus it was very dirty, it was full of pus. And
there was a [piece of] rubber, we found a
[piece of] rubber on the right side.[24]
We agree with the Court of Appeals. The
phrase relied upon by the trial court does not
negate the fact that Dr. Kho saw a piece of
rubber in private respondent Villegas'
abdomen, and that she sent it to a laboratory
and then to Cebu City for examination by a
pathologist.[25] Not even the Pathologist's
Report, although devoid of any mention of a
piece of rubber, could alter what Dr. Kho
saw. Furthermore, Dr. Kho's knowledge of the
piece of rubber could not be based on other
than first hand knowledge for, as she asserted
before the trial court:
Q But you are sure you have seen [the piece
of rubber]?
A Oh yes. I was not the only one who saw it.[26]
The petitioners emphasize that the private
respondents never reconciled Dr. Kho's
testimony with Dr. Batiquin's claim on the
witness stand that when Dr. Batiquin
confronted Dr. Kho about the foreign body,
the latter said that there was a piece of
rubber but that she threw it away. Although
hearsay, Dr. Batiquin's claim was not objected
to, and hence, the same is admissible [27] but it
carries no probative value.[28] Nevertheless,
assuming otherwise, Dr. Batiquin's statement

cannot belie the fact that Dr. Kho found a

piece of rubber near private respondent
Villegas' uterus. And even if we were to doubt
Dr. Kho as to what she did to the piece of
rubber, i.e., whether she threw it away or sent
it to Cebu City, we are not justified in
distrusting her as to her recovery of a piece of
rubber from private respondent Villegas'
abdomen. On this score, it is perfectly
reasonable to believe the testimony of a
witness with respect to some facts and
disbelieve his testimony with respect to other
facts. And it has been aptly said that even
when a witness is found to have deliberately
falsified in some material particulars, it is not
required that the whole of his uncorroborated
testimony be rejected, but such portions
thereof deemed worthy of belief may be
credited.[29]

unimpaired.[34] The trial court's following

declaration shows that while it was critical of
the lack of care with which Dr. Kho handled
the piece of rubber, it was not prepared to
doubt Dr. Kho's credibility, thus only
supporting out appraisal of Dr. Kho's
trustworthiness:

It is here worth nothing that the trial court

paid heed to the following portions of Dr.
Batiquin's testimony: that no rubber drain was
used in the operation,[30] and that there was
neither any tear on Dr. Batiquin's gloves after
the operation nor blood smears on her hands
upon removing her gloves.[31] Moreover, the
trial court pointed out that the absence of a
rubber drain was corroborated by Dr. Doris Sy,
Dr. Batiquin's assistant during the operation
on private respondent Villegas.[32] But the trial
court failed to recognize that the assertions of
Drs. Batiquin and Sy were denials or negative
testimonies. Well-settled is the rule that
positive testimony is stronger than negative
testimony.[33] Of course, as the petitioners
advocate, such positive testimony must come
from a credible source, which leads us to the
second assigned error.

The doctrine of [r]es ipsa loquitur as a rule of

evidence is peculiar to the law of negligence
which recognizes that prima facie negligence
may be established without direct proof and
As such, the rule of res ipsa loquitur comes to furnishes a substitute for specific proof of
fore. This Court has had occasion to delve into negligence. The doctrine is not a rule of
the nature and operation of this doctrine:
substantive law, but merely a mode of proof
or a mere procedural convenience. The rule,
This doctrine [res ipsa loquitur] is stated thus: when applicable to the facts and
"Where the thing which causes injury is shown circumstances of a particular case, is not
to be under the management of the
intended to and does not dispense with the
defendant, and the accident is such as in the
requirement of proof of culpable negligence
ordinary course of things does not happen if
on the party charged. It merely determines
those who have the management use proper
and regulates what shall
care, it affords reasonable evidence, in the
be prima facie evidence thereof and facilitates
absence of an explanation by the defendant,
the burden of plaintiff of proving a breach of
that the accident arose from want of care." Or the duty of due care. The doctrine can be
as Black's Law Dictionary puts it:
invoked when and only when, under the
circumstances involved, direct evidence is
Res ipsa loquitur. The thing speaks for
absent and not readily available.[36]
itself. Rebuttable presumption or inference
that defendant was negligent, which arises
In the instant case, all the requisites for
upon proof that [the] instrumentality causing
recourse to the doctrine are present. First, the
injury was in defendant's exclusive control,
entire proceedings of the cesarean section
and that the accident was one which ordinary were under the exclusive control of Dr.
does not happen in absence of
Batiquin. In this light, the private respondents
negligence. Res ipsa loquitur is [a] rule of
were bereft of direct evidence as to the actual
evidence whereby negligence of [the] alleged culprit or the exact cause of the foreign object
wrongdoer may be inferred from [the] mere

While the petitioners claim that contradictions

and falsities punctured Dr. Kho's testimony, a
reading of the said testimony reveals no such
infirmity and establishes Dr. Kho as a credible
witness. Dr. Kho was frank throughout her
turn on the witness stand. Furthermore, no
motive to state any untruth was ever imputed
against Dr. Kho, leaving her trustworthiness

This is not to say that she was less than

honest when she testified about her findings,
but it can also be said that she did not take
the most appropriate precaution to preserve
that "piece of rubber" as an eloquent
evidence of what she would reveal should
there be a "legal problem" which she claim[s]
to have anticipated.[35]
Considering that we have assessed Dr. Kho to
be a credible witness, her positive testimony
[that a piece of rubber was indeed found in
private respondent Villegas' abdomen]
prevails over the negative testimony in favor
of the petitioners.

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 [sic] was such that in the ordinary
course of things would not happen if
reasonable care had been used.
xxx xxx xxx

LEGAL MEDICINE 13
finding its way into private respondent
Villegas' body, which, needless to say, does
not occur unless through the intervention of
negligence. Second, since aside from the
cesarean section, private respondent Villegas
underwent no other operation which could
have caused the offending piece of rubber to
appear in her uterus, it stands to reason that
such could only have been a by-product of the
cesarean section performed by Dr.
Batiquin. The petitioners, in this regard, failed
to overcome the presumption of negligence
arising from resort to the doctrine ofres ipsa
loquitur. Dr. Batiquin is therefore liable for
negligently leaving behind a piece of rubber
in private respondent Villegas' abdomen and
for all the adverse effects thereof.
As a final word, this Court reiterates its
recognition of the vital role the medical
profession plays in the lives of the people,
[37]
and State's compelling interest to enact
measures to protect the public from "the
potentially deadly effects of incompetence
and ignorance in those who would undertake
to treat our bodies and minds for disease or
trauma."[38] Indeed, a physician is bound to
serve the interest of his patients "with the
greatest of solicitude, giving them always his
best talent and skill."[39] Through her tortious
conduct, the petitioner endangered the life of
Flotilde Villegas, in violation of her
profession's rigid ethical code and in
contravention of the legal standards set forth
for professionals, in the general,[40] and
members of the medical profession,[41] in
particular.
WHEREFORE, the challenged decision of 11
May 1994 of the Court of Appeals in CA-G.R.
CV No. 30851 is hereby AFFIRMED in toto.
Costs against the petitioners. SO ORDERED.
G.R. No. 159132
2008

December 18,

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 viatelephone, 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 intra-abdominal hemorrhage and a
ruptured uterus. Thus, Editha had to undergo

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

LEGAL MEDICINE 14
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

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 QUASIJUDICIAL AGENCIES CONTEMPLATED UNDER
RULE 43 OF THE RULES OF CIVIL PROCEDURE;

2. EVEN ASSUMING, ARGUENDO, THAT PRC

WAS EXCLUDED FROM THE PURVIEW OF RULE
43 OF THE RULES OF CIVIL PROCEDURE, THE
PETITIONER WAS NOT PRECLUDED FROM
FILING A PETITION FOR CERTIORARI WHERE
Feeling aggrieved, respondents went to the
THE DECISION WAS ALSO ISSUED IN EXCESS
PRC on appeal. On November 22, 2000, the
OF OR WITHOUT JURISDICTION, OR WHERE
PRC rendered a Decision16 reversing the
findings of the Board and revoking petitioners THE DECISION WAS A PATENT NULLITY;
authority or license to practice her profession
3. HEREIN RESPONDENTS-SPOUSES ARE NOT
as a physician.17
ALLOWED BY LAW TO APPEAL FROM THE
DECISION OF THE BOARD OF MEDICINE TO
Petitioner brought the matter to the CA in a
Petition for Review under Rule 43 of the Rules THE PROFESSIONAL REGULATION[S]
COMMISSION;
of Court. Petitioner also dubbed her petition
as one for certiorari18 under Rule 65 of the
Rules of Court.

4. THE COURT OF APPEALS COMMITTED

GRAVE ABUSE OF DISCRETION IN DENYING
In the Decision dated July 4, 2003, the CA held FOR IMPROPER FORUM THE PETITION FOR
REVIEW/PETITION FOR CERTIORARI WITHOUT
that the Petition for Review under Rule 43 of
GOING OVER THE MERITS OF THE GROUNDS
the Rules of Court was an improper remedy,
RELIED UPON BY THE PETITIONER;
as the enumeration of the quasijudicial 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

5. PRCS GRAVE OMISSION TO AFFORD

HEREIN PETITONER A CHANCE TO BE HEARD
ON APPEAL IS A CLEAR VIOLATION OF HER
CONSTITUTIONAL RIGHT TO DUE PROCESS
AND HAS THE EFFECT OF RENDERING THE
JUDGMENT NULL AND VOID;
6. COROLLARY TO THE FOURTH ASSIGNED
ERROR, PRC COMMITTED GRAVE ABUSE OF
DISCRETION, AMOUNTING TO LACK OF
JURISDICTION, IN ACCEPTING AND

CONSIDERING THE MEMORANDUM ON APPEAL

WITHOUT PROOF OF SERVICE TO HEREIN
PETITIONER, AND IN VIOLATION OF ART. IV,
SEC. 35 OF THE RULES AND REGULATIONS
GOVERNING THE REGULATION AND PRACTICE
OF PROFESSIONALS;
7. PRC COMMITTED GRAVE ABUSE OF
DISCRETION IN REVOKING PETITIONERS
LICENSE TO PRACTICE MEDICINE WITHOUT AN
EXPERT TESTIMONY TO SUPPORT ITS
CONCLUSION AS TO THE CAUSE OF
RESPONDENT EDITHAT [SIC] RAMOLETES
INJURY;
8. PRC COMMITTED AN EVEN GRAVER ABUSE
OF DISCRETION IN TOTALLY DISREGARDING
THE FINDING OF THE BOARD OF MEDICINE,
WHICH HAD THE NECESSARY COMPETENCE
AND EXPERTISE TO ESTABLISH THE CAUSE OF
RESPONDENT EDITHAS INJURY, AS WELL AS
THE TESTIMONY OF THE EXPERT WITNESS
AUGUSTO MANALO, M.D. ;[and]
9. PRC COMMITTED GRAVE ABUSE OF
DISCRETION IN MAKING CONCLUSIONS OF
FACTS THAT WERE NOT ONLY UNSUPPORTED
BY EVIDENCE BUT WERE ACTUALLY CONTRARY
TO EVIDENCE ON RECORD.22
The Court will first deal with the procedural
issues.
Petitioner claims that the law does not allow
complainants to appeal to the PRC from the
decision of the Board. She invokes Article IV,
Section 35 of the Rules and Regulations
Governing the Regulation and Practice of
Professionals, which provides:
Sec. 35. The respondent may appeal the
decision of the Board within thirty days from
receipt thereof to the Commission whose
decision shall be final. Complainant, when
allowed by law, may interpose an appeal
from the Decision of the Board within
the same period. (Emphasis supplied)

Petitioner asserts that a careful reading of the

above law indicates that while the
respondent, as a matter of right, may appeal
the Decision of the Board to the Commission,
the complainant may interpose an appeal
from the decision of the Board only when so
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 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

LEGAL MEDICINE 15
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. 06342(A), or the New Rules of Procedure in
Administrative Investigations in the
Professional Regulations Commission and the
Professional Regulatory Boards, which
provides for the method of appeal, to wit:
Sec. 1. Appeal; Period NonExtendible.- 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 quasijudicial agencies.33 Petitioner further 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 quasijudicial 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 conferre
d 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 quasijudicial 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
A physician-patient relationship was created
when Editha employed the services of the
petitioner. As Edithas physician, petitioner
was duty-bound to use at least the same level
of care that any reasonably competent doctor
would use to treat a condition under the 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

LEGAL MEDICINE 16
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
In the present case, respondents did not
present any expert testimony to support their
claim that petitioner failed to do something
which a reasonably prudent physician or
surgeon would have done.
Petitioner, on the other hand, presented the
testimony of Dr. Augusto M. Manalo, who was
clearly an expert on the subject.
Generally, to qualify as an expert witness, one
must have acquired special knowledge of the
subject matter about which he or she is to
testify, either by the study of recognized
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:
Q:
Doctor, we want to be clarified on this
matter. The complainant had testified here
that the D&C was the proximate cause of the
rupture of the uterus. The condition which she
found herself in on the second admission. Will
you please tell us whether that is true or not?

A:
Yah, I do not think so for two
reasons. One, as I have said earlier, the
instrument cannot reach the site of the
pregnancy, for it to further push the
pregnancy outside the uterus. And, No. 2, I
was thinking a while ago about another
reason- well, why I dont think so, because it
is the triggering factor for the rupture, it could
havethe rupture could have occurred much
earlier, right after the D&C or a few days after
the D&C.
Q:
In this particular case, doctor, the
rupture occurred to have happened minutes
prior to the hysterectomy or right upon
admission on September 15, 1994 which is
about 1 months after the patient was
discharged, after the D&C was conducted.
Would you tell us whether there is any
relation at all of the D&C and the rupture in
this particular instance?
A:
I dont think so for the two reasons
that I have just mentioned- that it would
not be possible for the instrument to
reach the site of pregnancy. And, No. 2, if
it is because of the D&C that rupture could
have occurred 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:
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?

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:
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.

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
Q:
There was [sic] some portions of the
somehow justifies telephone orders. I
fetal parts that were removed?
have patients whom I have justified and then
all of a sudden, late in the afternoon or late in
A:
No, it was described as scanty scraping if the evening, would suddenly call they have
I remember it rightscanty.
decided that they will go home inasmuch as
they anticipated that I will discharge them the
Q:
And you would not mind checking those
following day. So, I just call and ask our
scant or those little parts that were removed? resident on duty or the nurse to allow them to
go because I have seen that patient and I
A:
Well, the fact that it was described
think I have full grasp of her problems. So,
means, I assume that it was checked, no. thats when I make this telephone orders.
It was described as scanty and the color also, And, of course before giving that order I ask
I think was described. Because it would be
about how she feels.53 (Emphases supplied)
very unusual, even improbable that it
would not be examined, because when
From the foregoing testimony, it is clear that
you scrape, the specimens are right
the D&C procedure was conducted in
there before your eyes. Its in front of
accordance with the standard practice, with
you. You can touch it. In fact, some of
the same level of care that any reasonably
them will stick to the instrument and
competent doctor would use to treat a
therefore to peel it off from the
condition under the same circumstances, and
instrument, you have to touch them. So, that there was nothing irregular in the way
automatically they are examined closely. the petitioner dealt with Editha.
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

Medical malpractice, in our jurisdiction, is

often brought as a civil action for damages
under Article 217654 of the Civil Code. The
defenses in an action for damages, provided
for under Article 2179 of the Civil Code are:

LEGAL MEDICINE 17
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 obstetriciangynecologist 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

petitioner, the immediate cause of the

accident resulting in Edithas injury was
her own omission when she did not
return for a follow-up check up, in
defiance of petitioners orders. The
immediate cause of Edithas injury was
her own act; thus, she cannot recover
damages from the injury.

Lastly, petitioner asserts that her right to due

process was violated because she was never
informed by either respondents or by the PRC
that an appeal was pending before the
It is undisputed that Editha did not return for
PRC.62 Petitioner claims that a verification with
a follow-up evaluation, in defiance of the
the records section of the PRC revealed that
petitioners advise. Editha omitted the
on April 15, 1999, respondents filed a
diligence required by the circumstances which Memorandum on Appeal before the PRC,
could have avoided the injury. The omission in which did not attach the actual registry
not returning for a follow-up evaluation played receipt but was merely indicated therein.63
a substantial part in bringing about Edithas
Respondents, on the other hand avers that if
own injury. Had Editha returned, petitioner
the original registry receipt was not attached
could have conducted the proper medical
to the Memorandum on Appeal, PRC would
tests and procedure necessary to determine
not have entertained the appeal or accepted
Edithas health condition and applied the
such pleading for lack of notice or proof of
corresponding treatment which could have
service on the other party.64 Also, the registry
prevented the rupture of Edithas uterus. The
receipt could not be appended to the copy
D&C procedure having been conducted in
furnished to petitioners former counsel,
accordance with the standard medical
practice, it is clear that Edithas omission was because the registry receipt was already
the proximate cause of her own injury and not appended to the original copy of the
merely a contributory negligence on her part. Memorandum of Appeal filed with PRC.65
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

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-Staffbuilders 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.
G.R. No. 142625
2006

December 19,

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
CARPIO, J.:

LEGAL MEDICINE 18
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.
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.
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 micro-drops 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. 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.

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.
At 6:22 a.m., Dr. Estrada, assisted by Dr.
Espinola, and a certain Nurse J. Dumlao for
Villaflor, applied low forceps to extract
the death of Corazon. Petitioners mainly
Corazon's baby. In the process, a 1.0 x 2.5 cm. contended that defendant physicians and
piece of cervical tissue was allegedly torn.
CMC personnel were negligent in the
The baby came out in an apnic, cyanotic,
treatment and management of Corazon's
weak and injured condition. Consequently, the condition. Petitioners charged CMC with
baby had to be intubated and resuscitated by negligence in the selection and supervision of
Dr. Enriquez and Dr. Payumo.
defendant physicians and hospital staff.
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

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 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

LEGAL MEDICINE 19
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, 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.
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

stressed that the subject matter of this

petition is the liability of CMC for the
negligence of Dr. Estrada.23
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.
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
Meanwhile, petitioners filed a Manifestation
that the doctrine in Darling v. Charleston
dated 12 April 200221 stating that respondents Community Memorial Hospital27 applies to this
Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and
case. According to the Court of Appeals, the
Nurse Dumlao "need no longer be notified of
present case differs from the Darling case
the petition because they are absolutely not
since Dr. Estrada is an independent
involved in the issue raised before the [Court], contractor-physician whereas the Darling case
regarding the liability of [CMC]."22 Petitioners
Hence, this petition.

LEGAL MEDICINE 20
involved a physician and a nurse who were
employees of the hospital.

malpractice must be Dr. Estrada's sole

responsibility.

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

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 Court of Appeals found the cases

of Davidson v. Conole30 and Campbell v.
Emma Laing Stevens Hospital31applicable 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 physicianpatient 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

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.

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.

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

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 statistics, and feedback from

LEGAL MEDICINE 21
patients, nurses, interns and residents. A
consultant remiss in his duties, or a
consultant who regularly falls short of the
minimum standards acceptable to the
hospital or its peer review committee, is
normally politely terminated.
In other words, private hospitals, hire, fire and
exercise real control over their attending and
visiting "consultant" staff. While
"consultants" are not, technically
employees, a point which respondent
hospital asserts in denying all
responsibility for the patient's condition,
the control exercised, the hiring, and the
right to terminate consultants all fulfill
the important hallmarks of an employeremployee 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 employeremployee 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 the physician is an independent contractor.
to control both the means and the details of
The elements of the action have been set out
the process by which the employee (or the
as follows:
physician) is to accomplish his task.41
"For a hospital to be liable under the doctrine
After a thorough examination of the
of apparent authority, a plaintiff must show
voluminous records of this case, the Court
that: (1) the hospital, or its agent, acted in a
finds no single evidence pointing to CMC's
manner that would lead a reasonable person
exercise of control over Dr. Estrada's
to conclude that the individual who was
treatment and management of Corazon's
alleged to be negligent was an employee or
condition. It is undisputed that throughout
agent of the hospital; (2) where the acts of
Corazon's pregnancy, she was under the
the agent create the appearance of authority,
exclusive prenatal care of Dr. Estrada. At the
the plaintiff must also prove that the hospital
time of Corazon's admission at CMC and
had knowledge of and acquiesced in them;
during her delivery, it was Dr. Estrada,
and (3) the plaintiff acted in reliance upon the
assisted by Dr. Villaflor, who attended to
conduct of the hospital or its agent, consistent
Corazon. There was no showing that CMC had with ordinary care and prudence."
a part in diagnosing Corazon's condition.
The element of "holding out" on the part of
While Dr. Estrada enjoyed staff privileges at
the hospital does not require an express
CMC, such fact alone did not make him an
representation by the hospital that the person
employee of CMC.42 CMC merely allowed Dr.
alleged to be negligent is an employee.
Estrada to use its facilities43 when Corazon
Rather, the element is satisfied if the hospital
was about to give birth, which CMC
holds itself out as a provider of emergency
considered an emergency. Considering these
circumstances, Dr. Estrada is not an employee room care without informing the patient that
the care is provided by independent
of CMC, but an independent contractor.
contractors.
The question now is whether CMC is
The element of justifiable reliance on the part
automatically exempt from liability
considering that Dr. Estrada is an independent of the plaintiff is satisfied if the plaintiff relies
upon the hospital to provide complete
contractor-physician.
emergency room care, rather than upon a
In general, a hospital is not liable for the
specific physician.
negligence of an independent contractorThe doctrine of apparent authority essentially
physician. There is, however, an exception to
this principle. The hospital may be liable if the involves two factors to determine the liability
of an independent-contractor physician.
physician is the "ostensible" agent of the
hospital.44This exception is also known as the
"doctrine of apparent authority."45 In Gilbert v. The first factor focuses on the hospital's
manifestations and is sometimes described as
Sycamore Municipal Hospital,46 the Illinois
an inquiry whether the hospital acted in a
Supreme Court explained the doctrine of
manner which would lead a reasonable person
apparent authority in this wise:
to conclude that the individual who was
alleged to be negligent was an employee or
[U]nder the doctrine of apparent authority a
agent of the hospital.47 In this regard, the
hospital can be held vicariously liable for the
negligent acts of a physician providing care at hospital need not make express
representations to the patient that the
the hospital, regardless of whether the
physician is an independent contractor, unless treating physician is an employee of the
the patient knows, or should have known, that

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

LEGAL MEDICINE 22
father/mother/brother/sister/spouse/relative/
guardian/or person in custody of Ma. Corazon,
and representing his/her family, of my own
volition and free will, do consent and submit
said Ma. Corazon to Dr. Oscar Estrada
(hereinafter referred to as Physician) for cure,
treatment, retreatment, or emergency
measures, that the Physician, personally
or by and through the Capitol Medical
Center and/or its staff, may use, adapt,
or employ such means, forms or
methods of cure, treatment,
retreatment, or emergency measures as
he may see best and most expedient;
that Ma. Corazon and I will comply with
any and all rules, regulations, directions,
and instructions of the Physician, the
Capitol Medical Center and/or its staff;
and, that I will not hold liable or responsible
and hereby waive and forever discharge and
hold free the Physician, the Capitol Medical
Center and/or its staff, from any and all claims
of whatever kind of nature, arising from
directly or indirectly, or by reason of said
cure, treatment, or retreatment, or
emergency measures or intervention of said
physician, the Capitol Medical Center and/or
its staff.
x x x 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 obstetriciangynecologist 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.

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
CMC's defense that all it did was "to extend to negligence during her treatment or operation.
[Corazon] its facilities" is untenable. The Court Neither do the consent forms expressly
cannot close its eyes to the reality that
exempt CMC from liability for Corazon's death
hospitals, such as CMC, are in the business of due to negligence during such treatment or
treatment. In this regard, the Court agrees
operation. Such release forms, being in the
with the observation made by the Court of
nature of contracts of adhesion, are construed
Appeals of North Carolina in Diggs v. Novant
strictly against hospitals. Besides, a blanket
Health, Inc.,57 to wit:
release in favor of hospitals "from any and all
claims," which includes claims due to bad
"The conception that the hospital does not
faith or gross negligence, would be contrary
undertake to treat the patient, does not
to public policy and thus void.
undertake to act through its doctors and
nurses, but undertakes instead simply to
Even simple negligence is not subject to
procure them to act upon their own
blanket release in favor of establishments like
responsibility, no longer reflects the
hospitals but may only mitigate liability
fact. Present day hospitals, as their
depending on the circumstances.58 When a
manner of operation plainly
person needing urgent medical attention
demonstrates, do far more than furnish
rushes to a hospital, he cannot bargain on
facilities for treatment. They regularly
equal footing with the hospital on the terms of
employ on a salary basis a large staff of
admission and operation. Such a person is
physicians, nurses and internes [sic], as
literally at the mercy of the hospital. There
well as administrative and manual
can be no clearer example of a contract of
workers, and they charge patients for
adhesion than one arising from such a dire

LEGAL MEDICINE 23
situation. Thus, the release forms of CMC
cannot relieve CMC from liability for the
negligent medical treatment of Corazon.

(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
Despite this Court's pronouncement in its 9
Corazon.62 However, that routine internal
59
September 2002 Resolution that the filing of examination did not ipso facto make Dr. Uy
petitioners' Manifestation confined petitioners' liable for the errors committed by Dr. Estrada.
claim only against CMC, Dr. Espinola, Dr.
Further, petitioners' imputation of negligence
Lacson, and Dr. Uy, who have filed their
rests on their baseless assumption that Dr. Uy
comments, the Court deems it proper to
was present at the delivery room. Nothing
resolve the individual liability of the remaining shows that Dr. Uy participated in delivering
respondents to put an end finally to this more Corazon's baby. Further, it is unexpected from
than two-decade old controversy.
Dr. Uy, a mere resident physician at that time,
to call the attention of a more experienced
a) Dr. Ely Villaflor
specialist, if ever she was present at the
delivery room.
Petitioners blame Dr. Ely Villaflor for failing to
diagnose the cause of Corazon's bleeding and c) Dr. Joel Enriquez
to suggest the correct remedy to Dr.
Estrada.60 Petitioners assert that it was Dr.
Petitioners fault Dr. Joel Enriquez also for not
Villaflor's duty to correct the error of Nurse
calling the attention of Dr. Estrada, Dr.
Dumlao in the administration of hemacel.
Villaflor, and Nurse Dumlao about their
errors.63 Petitioners insist that Dr. Enriquez
The Court is not persuaded. Dr. Villaflor
should have taken, or at least suggested,
admitted administering a lower dosage of
corrective measures to rectify such errors.
magnesium sulfate. However, this was after
informing Dr. Estrada that Corazon was no
The Court is not convinced. Dr. Enriquez is an
longer in convulsion and that her blood
anesthesiologist whose field of expertise is
pressure went down to a dangerous level.61 At definitely not obstetrics and gynecology. As
that moment, Dr. Estrada instructed Dr.
such, Dr. Enriquez was not expected to correct
Villaflor to reduce the dosage of magnesium
Dr. Estrada's errors. Besides, there was no
sulfate from 10 to 2.5 grams. Since
evidence of Dr. Enriquez's knowledge of any
petitioners did not dispute Dr. Villaflor's
error committed by Dr. Estrada and his failure
allegation, Dr. Villaflor's defense remains
to act upon such observation.
uncontroverted. Dr. Villaflor's act of
administering a lower dosage of magnesium
d) Dr. Perpetua Lacson
sulfate was not out of her own volition or was
Petitioners fault Dr. Perpetua Lacson for her
in contravention of Dr. Estrada's order.
purported delay in the delivery of blood
b) Dr. Rosa Uy
Corazon needed.64Petitioners claim that Dr.
Lacson was remiss in her duty of supervising
Dr. Rosa Uy's alleged negligence consisted of
the blood bank staff.
her failure (1) to call the attention of Dr.
Estrada on the incorrect dosage of
As found by the trial court, there was no
magnesium sulfate administered by Dr.
unreasonable delay in the delivery of blood
Villaflor; (2) to take corrective measures; and
from the time of the request until the
On the Liability of the Other
Respondents

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.

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 wrongful
hemacel administration was introduced.
Therefore, there is no basis to hold Nurse
Dumlao liable for negligence.

e) Dr. Noe Espinola

On the Award of Interest on Damages
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.

The award of interest on damages is proper

and allowed under Article 2211 of the Civil
Code, which states that in crimes and quasidelicts, 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. SO ORDERED.
G.R. No. 126297
PROFESSIONAL SERVICES, INC., v
Petitioner, THE COURT OF APPEALS
and NATIVIDAD and ENRIQUE AGANA,
Respondents.
x-------------------x
NATIVIDAD [substituted by her G.R. No.
126467

LEGAL MEDICINE 24
children Marcelino Agana III, Enrique
Agana, Jr., Emma Agana-Andaya, Jesus
Agana and Raymund Agana] and
ENRIQUE AGANA, Petitioners,

PHAP (hereafter intervenors),[6] and

referred en consulta to the Court en banc the
motion for prior leave of court and the second
motion for reconsideration of PSI.[7]

Due to paramount public interest, the

Court en banc accepted the
referral[8] and heard the parties on oral
arguments on one particular issue: whether a
hospital may be held liable for the negligence
of physicians-consultants allowed to practice
in its premises.[9]

versus-

THE COURT OF APPEALS and JUAN

FUENTES,
Respondents.
x-------------------x
MIGUEL AMPIL, Petitioner,
- v e r s u s - NATIVIDAD and ENRIQUE
AGANA, Respondents.
Promulgated: February 2, 2010
x----------------------------- - - - - - - - - -x
RESOLUTION
CORONA, J.:
With prior leave of court,[1] petitioner
Professional Services, Inc. (PSI) filed a second
motion for reconsideration[2] urging referral
thereof to the Court en bancand seeking
modification of the decision dated January 31,
2007 and resolution dated February 11, 2008
which affirmed its vicarious and direct liability
for damages to respondents Enrique Agana
and the heirs of Natividad Agana (Aganas).

To recall the salient facts, PSI, together with

Dr. Miguel Ampil (Dr. Ampil) and Dr. Juan
Fuentes (Dr. Fuentes), was impleaded
by Enrique Agana and Natividad Agana (later
substituted by her heirs), in a complaint[10] for
damages filed in the Regional Trial Court (RTC)
of Quezon City, Branch 96, for the injuries
suffered by Natividad when Dr. Ampil and Dr.
Fuentes neglected to remove from her body
two gauzes[11] which were used in the surgery
they performed on her on April 11, 1984 at
the Medical City General Hospital. PSI was
impleaded as owner, operator and manager of
the hospital.
In a decision[12] dated March 17, 1993, the RTC
held PSI solidarily liable with Dr. Ampil and Dr.
Fuentes for damages.[13] On appeal, the Court
of Appeals (CA), absolved Dr. Fuentes but
affirmed the liability of Dr. Ampil and PSI,
subject to the right of PSI to claim
reimbursement from Dr. Ampil.[14]
On petition for review, this Court, in
its January 31, 2007 decision, affirmed the CA
decision.[15] PSI filed a motion for
reconsideration[16] but the Court denied it in a
resolution dated February 11, 2008.[17]

Manila Medical Services, Inc. (MMSI),[3] Asian

Hospital, Inc. (AHI),[4] and Private Hospital
Association of the Philippines (PHAP)[5] all
sought to intervene in these cases invoking
the common ground that, unless modified, the
The Court premised the direct liability of PSI
assailed decision and resolution will
to the Aganas on the following facts and law:
jeopardize the financial viability of private
hospitals and jack up the cost of health care.
First, there existed between PSI and Dr. Ampil
an employer-employee relationship as
The Special First Division of the Court granted
contemplated in the December 29,
the motions for intervention of MMSI, AHI and
1999 decision in Ramos v. Court of

Appeals[18] that for purposes of allocating

responsibility in medical negligence cases, an
employer-employee relationship exists
between hospitals and their consultants.
[19]
Although the Court in Ramos later issued a
Resolution dated April 11, 2002[20] reversing
its earlier finding on the existence of an
employment relationship between hospital
and doctor, a similar reversal was not
warranted in the present case because the
defense raised by PSI consisted of a mere
general denial of control or responsibility over
the actions of Dr. Ampil.[21]
Second, by accrediting Dr. Ampil and
advertising his qualifications, PSI created the
public impression that he was its agent.
[22]
Enrique testified that it was on account of
Dr. Ampil's accreditation with PSI that he
conferred with said doctor about his wife's
(Natividad's) condition.[23] After his meeting
with Dr. Ampil, Enrique asked Natividad to
personally consult Dr. Ampil.[24] In effect, when
Enrigue and Natividad engaged the services
of Dr. Ampil, at the back of their minds was
that the latter was a staff member of a
prestigious hospital. Thus, under the doctrine
of apparent authority applied in Nogales, et
al. v. Capitol Medical Center, et al.,[25] PSI was
liable for the negligence of Dr. Ampil.
Finally, as owner and operator
of Medical City General Hospital, PSI was
bound by its duty to provide comprehensive
medical services to Natividad Agana, to
exercise reasonable care to protect her from
harm,[26] to oversee or supervise all persons
who practiced medicine within its walls, and
to take active steps in fixing any form of
negligence committed within its premises.
[27]
PSI committed a serious breach of its
corporate duty when it failed to conduct an
immediate investigation into the reported
missing gauzes.[28]
PSI is now asking this Court to reconsider the
foregoing rulings for these reasons:
I

The declaration in the 31 January 2007

Decision vis-a-vis the 11 February 2009
Resolution that the ruling in Ramos vs. Court
of Appeals (G.R. No. 134354, December 29,
1999) that an employer-employee relations
exists between hospital and their consultants
stays should be set aside for being
inconsistent with or contrary to the import of
the resolution granting the hospital's motion
for reconsideration in Ramos vs. Court of
Appeals (G.R. No. 134354, April 11, 2002),
which is applicable to PSI since the Aganas
failed to prove an employer-employee
relationship between PSI and Dr. Ampil and
PSI proved that it has no control over Dr.
Ampil. In fact, the trial court has found that
there is no employer-employee relationship in
this case and that the doctor's are
independent contractors.
II
Respondents Aganas engaged Dr. Miguel
Ampil as their doctor and did not primarily
and specifically look to the Medical City
Hospital (PSI) for medical care and support;
otherwise stated, respondents Aganas did not
select Medical City Hospital (PSI) to provide
medical care because of any apparent
authority of Dr. Miguel Ampil as its agent
since the latter was chosen primarily and
specifically based on his qualifications and
being friend and neighbor.
III
PSI cannot be liable under doctrine of
corporate negligence since the proximate
cause of Mrs. Agana's injury was the
negligence of Dr. Ampil, which is an element
of the principle of corporate negligence.[29]
In their respective memoranda, intervenors
raise parallel arguments that the Court's
ruling on the existence of an employeremployee relationship between private
hospitals and consultants will force a drastic
and complex alteration in the long-established
and currently prevailing relationships among

LEGAL MEDICINE 25
patient, physician and hospital, with
be held directly liable to the patient for its
burdensome operational and financial
own negligence or failure to follow established
consequences and adverse effects on all three standard of conduct to which it should
parties.[30]
conform as a corporation.[39]
The Aganas comment that the arguments of
PSI need no longer be entertained for they
have all been traversed in the assailed
decision and resolution.[31]
After gathering its thoughts on the issues,
this Court holds that PSI is liable to the
Aganas, not under the principle of respondeat
superior for lack of evidence of an
employment relationship with Dr. Ampil but
under the principle of ostensible agency for
the negligence of Dr. Ampil and, pro hac
vice, under the principle of corporate
negligence for its failure to perform its duties
as a hospital.
While in theory a hospital as a juridical entity
cannot practice medicine,[32] in reality it
utilizes doctors, surgeons and medical
practitioners in the conduct of its business of
facilitating medical and surgical treatment.
[33]
Within that reality, three legal relationships
crisscross: (1) between the hospital and the
doctor practicing within its premises; (2)
between the hospital and the patient being
treated or examined within its premises and
(3) between the patient and the doctor. The
exact nature of each relationship determines
the basis and extent of the liability of the
hospital for the negligence of the doctor.
Where an employment relationship exists, the
hospital may be held vicariously liable under
Article 2176[34] in relation to Article 2180[35] of
the Civil Code or the principle of respondeat
superior. Even when no employment
relationship exists but it is shown that the
hospital holds out to the patient that the
doctor is its agent, the hospital may still be
vicariously liable under Article 2176 in relation
to Article 1431[36] and Article 1869[37] of the
Civil Code or the principle of apparent
authority.[38] Moreover, regardless of its
relationship with the doctor, the hospital may

This Court still employs the control test to

determine the existence of an employeremployee relationship between hospital and
doctor. In Calamba Medical Center, Inc. v.
National Labor Relations Commission, et al.
[40]
it held:
Under the "control test", an employment
relationship exists between a physician and a
hospital if the hospital controls both the
means and the details of the process by which
the physician is to accomplish his task.
xx xx xx
As priorly stated, private respondents
maintained specific work-schedules, as
determined by petitioner through its medical
director, which consisted of 24-hour shifts
totaling forty-eight hours each week and
which were strictly to be observed under pain
of administrative sanctions.
That petitioner exercised control over
respondents gains light from the
undisputed fact that in the emergency
room, the operating room, or any
department or ward for that matter,
respondents' work is monitored through
its nursing supervisors, charge nurses
and orderlies. Without the approval or
consent of petitioner or its medical
director, no operations can be
undertaken in those areas. For control
test to apply, it is not essential for the
employer to actually supervise the
performance of duties of the employee,
it being enough that it has the right to
wield the power. (emphasis supplied)
Even in its December 29,
1999 decision[41] and April 11,
2002 resolution[42] in Ramos, the Court found
the control test decisive.

In the present case, it appears to have

escaped the Court's attention that both the
RTC and the CA found no employment
relationship between PSI and Dr. Ampil, and
that the Aganas did not question such
finding. In its March 17, 1993 decision, the
RTC found that defendant doctors were not
employees of PSI in its hospital, they being
merely consultants without any employeremployee relationship and in the capacity of
independent contractors.[43] The Aganas never
questioned such finding.
PSI, Dr. Ampil and Dr. Fuentes
appealed[44] from the RTC decision but only on
the issues of negligence, agency and
corporate liability. In its September 6,
1996 decision, the CA mistakenly referred to
PSI and Dr. Ampil as employer-employee, but
it was clear in its discussion on the matter
that it viewed their relationship as one of
mere apparent agency.[45]
The Aganas appealed from the CA decision,
but only to question the exoneration of Dr.
Fuentes.[46] PSI also appealed from the CA
decision, and it was then that the issue of
employment, though long settled, was
unwittingly resurrected.
In fine, as there was no dispute over the RTC
finding that PSI and Dr. Ampil had no
employer-employee relationship, such finding
became final and conclusive even to this
Court.[47] There was no reason for PSI to have
raised it as an issue in its petition. Thus,
whatever discussion on the matter that may
have ensued was purely academic.
Nonetheless, to allay the anxiety of the
intervenors, the Court holds that, in this
particular instance, the concurrent finding of
the RTC and the CA that PSI was not the
employer of Dr. Ampil is correct. Control as a
determinative factor in testing the employeremployee relationship between doctor and
hospital under which the hospital could be
held vicariously liable to a patient in medical
negligence cases is a requisite fact to be

established by preponderance of evidence.

Here, there was insufficient evidence that PSI
exercised the power of control or wielded such
power over the means and the details of the
specific process by which Dr. Ampil applied his
skills in the treatment of
Natividad. Consequently, PSI cannot be held
vicariously liable for the negligence of Dr.
Ampil under the principle of respondeat
superior.
There is, however, ample evidence that the
hospital (PSI) held out to the patient
(Natividad)[48] that the doctor (Dr. Ampil) was
its agent. Present are the two factors that
determine apparent authority: first, the
hospital's implied manifestation to the patient
which led the latter to conclude that the
doctor was the hospital's agent; and second,
the patients reliance upon the conduct of the
hospital and the doctor, consistent with
ordinary care and prudence.[49]
Enrique testified that on April 2, 1984, he
consulted Dr. Ampil regarding the condition of
his wife; that after the meeting and as
advised by Dr. Ampil, he asked[his] wife to go
to Medical City to be examined by [Dr. Ampil];
and that the next day, April 3, he told his
daughter to take her mother to Dr. Ampil.
[50]
This timeline indicates that it was Enrique
who actually made the decision on whom
Natividad should consult and where, and that
the latter merely acceded to it. It explains the
testimony of Natividad that she consulted Dr.
Ampil at the instigation of her daughter.[51]
Moreover, when asked what impelled him to
choose Dr. Ampil, Enrique testified:
Atty. Agcaoili
On that particular occasion, April 2, 1984,
what was your reason for choosing Dr. Ampil
to contact with in connection with your wife's
illness?
A. First, before that, I have known him to be a
specialist on that part of the body as a

LEGAL MEDICINE 26
surgeon, second, I have known him to be
a staff member of the Medical City which is
aprominent and known hospital. And third,
because he is a neighbor, I expect more than
the usual medical service to be given to us,
than his ordinary patients.[52] (emphasis
supplied)
Clearly, the decision made by Enrique for
Natividad to consult Dr. Ampil was
significantly influenced by the impression that
Dr. Ampil was a staff member
ofMedical City General Hospital, and that said
hospital was well known and prominent.
Enrique looked upon Dr. Ampil not as
independent of but as integrally related
to Medical City.
PSI's acts tended to confirm and reinforce,
rather than negate, Enrique's view. It is of
record that PSI required a consent for hospital
care[53] to be signed preparatory to the
surgery of Natividad. The form reads:

hospital, he would still have been chosen by

the Aganas as Natividad's surgeon.[54]
The Court cannot speculate on what could
have been behind the Aganas decision but
would rather adhere strictly to the fact that,
under the circumstances at that time,
Enrique decided to consult Dr. Ampil for he
believed him to be a staff member of a
prominent and known hospital. After his
meeting with Dr. Ampil, Enrique advised his
wife Natividad to go to
the Medical City General Hospital to be
examined by said doctor, and the hospital
acted in a way that fortified Enrique's belief.
This Court must therefore maintain the ruling
that PSI is vicariously liable for the negligence
of Dr. Ampil as its ostensible agent.
Moving on to the next issue, the Court notes
that PSI made the following admission in its
Motion for Reconsideration:

51. Clearly, not being an agent or employee

of petitioner PSI, PSI [sic] is not liable for Dr.
Ampil's acts during the operation. Considering
further that Dr. Ampil was personally engaged
as a doctor by Mrs. Agana, it is incumbent
upon Dr. Ampil, as Captain of the Ship, and as
the Agana's doctor to advise her on what to
do with her situation vis-a-vis the two missing
gauzes. In addition to noting the missing
gauzes, regular check-ups were made
By such statement, PSI virtually reinforced the and no signs of complications were
public impression that Dr. Ampil was a
exhibited during her stay at the hospital,
physician of its hospital, rather than one
which could have alerted petitioner PSI's
independently practicing in it; that the
hospital to render and provide postmedications and treatments he prescribed
operation services to and tread on Dr.
were necessary and desirable; and that the
Ampil's role as the doctor of Mrs. Agana.
hospital staff was prepared to carry them out. The absence of negligence of PSI from
the patient's admission up to her
PSI pointed out in its memorandum that Dr.
discharge is borne by the finding of facts
Ampil's hospital affiliation was not the
in this case. Likewise evident therefrom
exclusive basis of the Aganas decision to have is the absence of any complaint from
Natividad treated
Mrs. Agana after her discharge from the
in MedicalCity General Hospital, meaning that, hospital which had she brought to the
had Dr. Ampil been affiliated with another
hospital's attention, could have alerted
petitioner PSI to act accordingly and
Permission is hereby given to the medical,
nursing and laboratory staff of
the Medical City General Hospital to perform
such diagnostic procedures and to administer
such medications and treatments as may be
deemed necessary or advisable by
the physicians of this hospital for and
during the confinement of xxx. (emphasis
supplied)

bring the matter to Dr. Ampil's attention.

But this was not the case. Ms. Agana
complained ONLY to Drs. Ampil and
Fuentes, not the hospital. How then
could PSI possibly do something to fix
the negligence committed by Dr. Ampil
when it was not informed about it at all.
[55]
(emphasis supplied)
PSI reiterated its admission when it stated
that had Natividad Agana informed the
hospital of her discomfort and pain, the
hospital would have been obliged to act on
it.[56]
The significance of the foregoing statements
is critical.
First, they constitute judicial admission by PSI
that while it had no power to control the
means or method by which Dr. Ampil
conducted the surgery on Natividad Agana, it
had the power to review or cause the
review of what may have irregularly
transpired within its walls strictly for the
purpose of determining whether some form of
negligence may have attended any procedure
done inside its premises, with the ultimate
end of protecting its patients.

Second, it is a judicial admission that, by

virtue of the nature of its business as well as
its prominence[57] in the hospital industry, it
assumed a duty to tread on the captain of the
ship role of any doctor rendering services
within its premises for the purpose of
ensuring the safety of the patients availing
themselves of its services and facilities.
Third, by such admission, PSI defined the
standards of its corporate conduct under the
circumstances of this case, specifically: (a)
that it had a corporate duty to Natividad even
after her operation to ensure her safety as a
patient; (b) that its corporate duty was not
limited to having its nursing staff note or
record the two missing gauzes and (c) that its

corporate duty extended to determining Dr.

Ampil's role in it, bringing the matter to his
attention, and correcting his negligence.
And finally, by such admission, PSI barred
itself from arguing in its second motion for
reconsideration that the concept of corporate
responsibility was not yet in existence at the
time Natividad underwent treatment;[58] and
that if it had any corporate responsibility, the
same was limited to reporting the missing
gauzes and did not include taking an active
step in fixing the negligence committed.
[59]
An admission made in the pleading cannot
be controverted by the party making such
admission and is conclusive as to him, and all
proofs submitted by him contrary thereto or
inconsistent therewith should be ignored,
whether or not objection is interposed by a
party.[60]
Given the standard of conduct that
PSI defined for itself, the next relevant
inquiry is whether the hospital measured up
to it.
PSI excuses itself from fulfilling its corporate
duty on the ground that Dr. Ampil assumed
the personal responsibility of informing
Natividad about the two missing gauzes.[61] Dr.
Ricardo Jocson, who was part of the group of
doctors that attended to Natividad, testified
that toward the end of the surgery, their
group talked about the missing gauzes but Dr.
Ampil assured them that he would personally
notify the patient about it.[62] Furthermore, PSI
claimed that there was no reason for it to act
on the report on the two missing gauzes
because Natividad Agana showed no signs of
complications. She did not even inform the
hospital about her discomfort.[63]
The excuses proffered by PSI are totally
unacceptable.
To begin with, PSI could not simply wave off
the problem and nonchalantly delegate to Dr.
Ampil the duty to review what transpired
during the operation. The purpose of such

LEGAL MEDICINE 27
review would have been to pinpoint when,
how and by whom two surgical gauzes were
mislaid so that necessary remedial measures
could be taken to avert any jeopardy to
Natividads recovery. Certainly, PSI could not
have expected that purpose to be achieved
by merely hoping that the person likely to
have mislaid the gauzes might be able to
retrace his own steps. By its own standard of
corporate conduct, PSI's duty to initiate the
review was non-delegable.
While Dr. Ampil may have had the primary
responsibility of notifying Natividad about the
missing gauzes, PSI imposed upon itself the
separate and independent responsibility of
initiating the inquiry into the missing gauzes.
The purpose of the first would have been to
apprise Natividad of what transpired during
her surgery, while the purpose of the second
would have been to pinpoint any lapse in
procedure that led to the gauze count
discrepancy, so as to prevent a recurrence
thereof and to determine corrective measures
that would ensure the safety of
Natividad. That Dr. Ampil negligently failed to
notify Natividad did not release PSI from its
self-imposed separate responsibility.

Natividad herself to complain before it took

any meaningful step. By its inaction,
therefore, PSI failed its own standard of
hospital care. It committed corporate
negligence.
It should be borne in mind that the corporate
negligence ascribed to PSI is different from
the medical negligence attributed to Dr.
Ampil. The duties of the hospital are distinct
from those of the doctor-consultant practicing
within its premises in relation to the patient;
hence, the failure of PSI to fulfill its duties as a
hospital corporation gave rise to a direct
liability to the Aganas distinct from that of Dr.
Ampil.
All this notwithstanding, we make it clear that
PSIs hospital liability based on ostensible
agency and corporate negligence applies only
to this case, pro hac vice. It is not intended to
set a precedent and should not serve as a
basis to hold hospitals liable for every form of
negligence of their doctors-consultants under
any and all circumstances. The ruling is
unique to this case, for the liability of PSI
arose from an implied agency with Dr. Ampil
and an admitted corporate duty to Natividad.
[64]

Corollary to its non-delegable undertaking to

review potential incidents of negligence
committed within its premises, PSI had the
duty to take notice of medical records
prepared by its own staff and submitted to its
custody, especially when these bear earmarks
of a surgery gone awry. Thus, the record taken
during the operation of Natividad which
reported a gauze count discrepancy should
have given PSI sufficient reason to initiate a
review. It should not have waited for Natividad
to complain.

Other circumstances peculiar to this case

warrant this ruling,[65] not the least of which
being that the agony wrought upon the
Aganas has gone on for 26 long years, with
Natividad coming to the end of her days
racked in pain and agony. Such wretchedness
could have been avoided had PSI simply done
what was logical:heed the report of a guaze
count discrepancy, initiate a review of what
went wrong and take corrective measures to
ensure the safety of Nativad. Rather, for 26
years, PSI hemmed and hawed at every turn,
As it happened, PSI took no heed of the record disowning any such responsibility to its
of operation and consequently did not initiate patient. Meanwhile, the options left to the
a review of what transpired during Natividads Aganas have all but dwindled, for the status
operation. Rather, it shirked its responsibility
of Dr. Ampil can no longer be ascertained.[66]
and passed it on to others to Dr. Ampil whom
Therefore, taking all the equities of this case
it expected to inform Natividad, and to
into consideration, this Court believes P15

million would be a fair and reasonable liability

of PSI, subject to 12% p.a. interest from the
finality of this resolution to full satisfaction.
WHEREFORE, the second motion for
reconsideration is DENIED and the motions
for intervention are NOTED.
Professional Services, Inc. is ORDERED pro
hac vice to pay Natividad (substituted by her
children Marcelino Agana III, Enrique Agana,
Jr., Emma Agana-Andaya, Jesus Agana and
Raymund Agana) and Enrique Agana the total
amount of P15 million, subject to 12% p.a.
interest from the finality of this resolution to
full satisfaction.
No further pleadings by any party shall be
entertained in this case.
Let the long-delayed entry of judgment be
made in this case upon receipt by all
concerned parties of this resolution. SO
ORDERED.
[G.R. No. 124354. April 11, 2002]
ROGELIO E. RAMOS and ERLINDA
RAMOS, in their own behalf and as
natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK
RAMOS, and RON RAYMOND
RAMOS, petitioners, vs. COURT OF
APPEALS, DE LOS SANTOS MEDICAL
CENTER, DR. ORLINO HOSAKA and DR.
PERFECTA GUTIERREZ, respondents.
RESOLUTION
KAPUNAN, J.:
Private respondents De Los Santos Medical
Center, Dr. Orlino Hosaka and Dr. Perfecta
Gutierrez move for a reconsideration of the
Decision, dated December 29, 1999, of this
Court holding them civilly liable for petitioner
Erlinda Ramos comatose condition after she
delivered herself to them for their professional
care and management.

For better understanding of the issues raised

in private respondents respective motions, we
will briefly restate the facts of the case as
follows:
Sometime in 1985, petitioner Erlinda Ramos,
after seeking professional medical help, was
advised to undergo an operation for the
removal of a stone in her gall bladder
(cholecystectomy).She was referred to Dr.
Hosaka, a surgeon, who agreed to perform the
operation on her. The operation was
scheduled for June 17, 1985 at 9:00 in the
morning at private respondent De Los Santos
Medical Center (DLSMC). Since neither
petitioner Erlinda nor her husband, petitioner
Rogelio, knew of any anesthesiologist, Dr.
Hosaka recommended to them the services of
Dr. Gutierrez.
Petitioner Erlinda was admitted to the DLSMC
the day before the scheduled operation. By
7:30 in the morning of the following day,
petitioner Erlinda was already being prepared
for operation. Upon the request of petitioner
Erlinda, her sister-in-law, Herminda Cruz, who
was then Dean of the College of Nursing at
the Capitol Medical Center, was allowed to
accompany her inside the operating room.
At around 9:30 in the morning, Dr. Hosaka had
not yet arrived so Dr. Gutierrez tried to get in
touch with him by phone. Thereafter, Dr.
Gutierrez informed Cruz that the operation
might be delayed due to the late arrival of Dr.
Hosaka. In the meantime, the patient,
petitioner Erlinda said to Cruz, Mindy, inip na
inip na ako, ikuha mo ako ng ibang Doctor.
By 10:00 in the morning, when Dr. Hosaka
was still not around, petitioner Rogelio already
wanted to pull out his wife from the operating
room. He met Dr. Garcia, who remarked that
he was also tired of waiting for Dr. Hosaka. Dr.
Hosaka finally arrived at the hospital at
around 12:10 in the afternoon, or more than
three (3) hours after the scheduled operation.

LEGAL MEDICINE 28
Cruz, who was then still inside the operating
room, heard about Dr. Hosakas arrival. While
she held the hand of Erlinda, Cruz saw Dr.
Gutierrez trying to intubate the patient. Cruz
heard Dr. Gutierrez utter: ang hirap maintubate nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan. Cruz noticed a bluish
discoloration of Erlindas nailbeds on her left
hand. She (Cruz) then heard Dr. Hosaka
instruct someone to call Dr. Calderon, another
anesthesiologist. When he arrived, Dr.
Calderon attempted to intubate the patient.
The nailbeds of the patient remained bluish,
thus, she was placed in a trendelenburg
position a position where the head of the
patient is placed in a position lower than her
feet. At this point, Cruz went out of the
operating room to express her concern to
petitioner Rogelio that Erlindas operation was
not going well.
Cruz quickly rushed back to the operating
room and saw that the patient was still in
trendelenburg position. At almost 3:00 in the
afternoon, she saw Erlinda being wheeled to
the Intensive Care Unit (ICU). The doctors
explained to petitioner Rogelio that his wife
had bronchospasm. Erlinda stayed in the ICU
for a month. She was released from the
hospital only four months later or on
November 15, 1985. Since the ill-fated
operation, Erlinda remained in comatose
condition until she died on August 3, 1999.[1]
Petitioners filed with the Regional Trial Court
of Quezon City a civil case for damages
against private respondents. After due trial,
the court a quo rendered judgment in favor of
petitioners. Essentially, the trial court found
that private respondents were negligent in the
performance of their duties to Erlinda. On
appeal by private respondents, the Court of
Appeals reversed the trial courts decision and
directed petitioners to pay their unpaid
medical bills to private respondents.
Petitioners filed with this Court a petition for
review on certiorari. The private respondents

were then required to submit their respective

comments thereon. On December 29, 1999,
this Court promulgated the decision which
private respondents now seek to be
reconsidered. The dispositive portion of said
Decision states:
WHEREFORE, the decision and resolution of
the appellate court appealed from are hereby
modified so as to award in favor of
petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00
as actual damages computed as of the date of
promulgation of this decision plus a monthly
payment of P8,000.00 up to the time that
petitioner Erlinda Ramos expires or
miraculously survives; 2) P2,000,000.00 as
moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each
exemplary damages and attorneys fees; and
5) the costs of the suit.[2]
In his Motion for Reconsideration, private
respondent Dr. Hosaka submits the following
as grounds therefor:
I. THE HONORABLE SUPREME COURT
COMMITTED REVERSIBLE ERROR WHEN IT
HELD RESPONDENT DR. HOSAKA LIABLE ON
THE BASIS OF THE CAPTAIN-OF-THE-SHIP
DOCTRINE.
II. THE HONORABLE SUPREME COURT ERRED
IN HOLDING RESPONDENT DR. HOSAKA
LIABLE DESPITE THE FACT THAT NO
NEGLIGENCE CAN BE ATTRIBUTABLE TO HIM.
III. ASSUMING WITHOUT ADMITTING THAT
RESPONDENT DR. HOSAKA IS LIABLE, THE
HONORABLE SUPREME COURT ERRED IN
AWARDING DAMAGES THAT WERE CLEARLY
EXCESSIVE AND WITHOUT LEGAL BASIS.[3]
Private respondent Dr. Gutierrez, for her part,
avers that:
A. THE HONORABLE SUPREME COURT MAY
HAVE INADVERTENTLY OVERLOOKED THE
FACT THAT THE COURT OF APPEALS DECISION

DATED 29 MAY 1995 HAD ALREADY BECOME

FINAL AND EXECUTORY AS OF 25 JUNE 1995,
THEREBY DEPRIVING THIS HONORABLE COURT
OF JURISDICTION OVER THE INSTANT
PETITION;
B. THE HONORABLE SUPREME COURT MAY
HAVE INADVERTENTLY OVERLOOKED SEVERAL
MATERIAL FACTUAL CIRCUMSTANCES WHICH,
IF PROPERLY CONSIDERED, WOULD
INDUBITABLY LEAD TO NO OTHER
CONCLUSION BUT THAT PRIVATE
RESPONDENT DOCTORS WERE NOT GUILTY OF
ANY NEGLIGENCE IN RESPECT OF THE
INSTANT CASE;
B.1 RESPONDENT DOCTOR PERFECTA
GUTIERREZ HAS SUFFICIENTLY DISCHARGED
THE BURDEN OF EVIDENCE BY SUBSTANTIAL
PROOF OF HER COMPLIANCE WITH THE
STANDARDS OF DUE CARE EXPECTED IN HER
RESPECTIVE FIELD OF MEDICAL
SPECIALIZATION.
B.2 RESPONDENT DOCTOR PERFECTA
GUTIERREZ HAS SUFFICIENTLY DISCHARGED
THE BURDEN OF EVIDENCE BY SUBSTANTIAL
PROOF OF HER HAVING SUCCESSFULLY
INTUBATED PATIENT ERLINDA RAMOS
C. THE SUPREME COURT MAY HAVE
INADVERTENTLY PLACED TOO MUCH
RELIANCE ON THE TESTIMONY OF
PETITIONERS WITNESS HERMINDA CRUZ,
DESPITE THE EXISTENCE OF SEVERAL
FACTUAL CIRCUMSTANCES WHICH RENDERS
DOUBT ON HER CREDIBILITY
D. THE SUPREME COURT MAY HAVE
INADVERTENTLY DISREGARDED THE EXPERT
TESTIMONY OF DR. JAMORA AND DRA.
CALDERON
E. THE HONORABLE SUPREME COURT MAY
HAVE INADVERTENTLY AWARDED DAMAGES
TO PETITIONERS DESPITE THE FACT THAT
THERE WAS NO NEGLIGENCE ON THE PART OF
RESPONDENT DOCTOR.[4]

Private respondent De Los Santos Medical

Center likewise moves for reconsideration on
the following grounds:
I. THE HONORABLE COURT ERRED IN GIVING
DUE COURSE TO THE INSTANT PETITION AS
THE DECISION OF THE HONORABLE COURT OF
APPEALS HAD ALREADY BECOME FINAL AND
EXECUTORY
II. THE HONORABLE SUPREME COURT ERRED
IN FINDING THAT AN EMPLOYER-EMPLOYEE
[RELATIONSHIP] EXISTS BETWEEN
RESPONDENT DE LOS SANTOS MEDICAL
CENTER AND DRS. ORLINO HOSAKA AND
PERFECTA GUTIERREZ
III. THE HONORABLE SUPREME COURT ERRED
IN FINDING THAT RESPONDENT DE LOS
SANTOS MEDICAL CENTER IS SOLIDARILY
LIABLE WITH RESPONDENT DOCTORS
IV. THE HONORABLE SUPREME COURT ERRED
IN INCREASING THE AWARD OF DAMAGES IN
FAVOR OF PETITIONERS.[5]
In the Resolution of February 21, 2000, this
Court denied the motions for reconsideration
of private respondents Drs. Hosaka and
Gutierrez. They then filed their respective
second motions for reconsideration. The
Philippine College of Surgeons filed its
Petition-in-Intervention contending in the
main that this Court erred in holding private
respondent Dr. Hosaka liable under the
captain of the ship doctrine. According to the
intervenor, said doctrine had long been
abandoned in the United States in recognition
of the developments in modern medical and
hospital practice.[6] The Court noted these
pleadings in the Resolution of July 17, 2000.[7]
On March 19, 2001, the Court heard the oral
arguments of the parties, including the
intervenor. Also present during the hearing
were the amicii curiae: Dr. Felipe A. Estrella,
Jr., Consultant of the Philippine Charity
Sweepstakes, former Director of the Philippine
General Hospital and former Secretary of

LEGAL MEDICINE 29
Health; Dr. Iluminada T. Camagay, President of
the Philippine Society of Anesthesiologists,
Inc. and Professor and Vice-Chair for
Research, Department of Anesthesiology,
College of Medicine-Philippine General
Hospital, University of the Philippines; and Dr.
Lydia M. Egay, Professor and Vice-Chair for
Academics, Department of Anesthesiology,
College of Medicine-Philippine General
Hospital, University of the Philippines.

anesthesia on a patient. Dr. Egay enlightened

the Court on what these standards are:

x x x What are the standards of care that an

anesthesiologist should do before we
administer anesthesia? The initial step is the
preparation of the patient for surgery and this
is a pre-operative evaluation because the
anesthesiologist is responsible for
determining the medical status of the patient,
developing the anesthesia plan and
The Court enumerated the issues to be
acquainting the patient or the responsible
resolved in this case as follows:
adult particularly if we are referring with the
patient or to adult patient who may not have,
1. WHETHER OR NOT DR. ORLINO HOSAKA
who may have some mental handicaps of the
(SURGEON) IS LIABLE FOR NEGLIGENCE;
proposed plans. We do pre-operative
evaluation because this provides for an
2. WHETHER OR NOT DR. PERFECTA
opportunity for us to establish identification
GUTIERREZ (ANESTHESIOLOGIST) IS LIABLE
and personal acquaintance with the patient. It
FOR NEGLIGENCE; AND
also makes us have an opportunity to
alleviate anxiety, explain techniques and risks
3. WHETHER OR NOT THE HOSPITAL (DELOS
to the patient, given the patient the choice
SANTOS MEDICAL CENTER) IS LIABLE FOR ANY and establishing consent to proceed with the
ACT OF NEGLIGENCE COMMITTED BY THEIR
plan. And lastly, once this has been agreed
VISITING CONSULTANT SURGEON AND
upon by all parties concerned the ordering of
ANESTHESIOLOGIST.[8]
pre-operative medications. And following this
line at the end of the evaluation we usually
We shall first resolve the issue pertaining to
come up on writing, documentation is very
private respondent Dr. Gutierrez. She
important as far as when we train an
maintains that the Court erred in finding her
anesthesiologist we always emphasize this
negligent and in holding that it was the faulty because we need records for our protection,
intubation which was the proximate cause of
well, records. And it entails having brief
Erlindas comatose condition. The following
summary of patient history and physical
objective facts allegedly negate a finding of
findings pertinent to anesthesia, plan,
negligence on her part: 1) That the outcome
organize as a problem list, the plan
of the procedure was a comatose patient and
anesthesia technique, the plan post operative,
not a dead one; 2) That the patient had a
pain management if appropriate, special
cardiac arrest; and 3) That the patient was
issues for this particular patient. There are
revived from that cardiac arrest.[9] In effect,
needs for special care after surgery and if it
Dr. Gutierrez insists that, contrary to the
so it must be written down there and a
finding of this Court, the intubation she
request must be made known to proper
performed on Erlinda was successful.
authorities that such and such care is
necessary. And the request for medical
Unfortunately, Dr. Gutierrez claim of lack of
evaluation if there is an indication. When we
negligence on her part is belied by the
ask for a cardio-pulmonary clearance it is not
records of the case. It has been sufficiently
in fact to tell them if this patient is going to be
established that she failed to exercise the
fit for anesthesia, the decision to give
standards of care in the administration of
anesthesia rests on the

anesthesiologist. What we ask them is

actually to give us the functional capacity of
certain systems which maybe affected by the
anesthetic agent or the technique that we are
going to use. But the burden of responsibility
in terms of selection of agent and how to
administer it rest on the anesthesiologist.[10]

have been avoided. As we have stated in our

Decision:

In the case at bar, respondent Dra. Gutierrez

admitted that she saw Erlinda for the first
time on the day of the operation itself, on 17
June 1985. Before this date, no prior
consultations with, or pre-operative
The conduct of a preanesthetic/preoperative
evaluation of Erlinda was done by her. Until
evaluation prior to an operation, whether
the day of the operation, respondent Dra.
elective or emergency, cannot be dispensed
Gutierrez was unaware of the physiological
with.[11] Such evaluation is necessary for the
make-up and needs of Erlinda. She was
formulation of a plan of anesthesia care suited likewise not properly informed of the possible
to the needs of the patient concerned.
difficulties she would face during the
administration of anesthesia to
Pre-evaluation for anesthesia involves taking
Erlinda. Respondent Dra. Gutierrez act of
the patients medical history, reviewing his
seeing her patient for the first time only an
current drug therapy, conducting physical
hour before the scheduled operative
examination, interpreting laboratory data, and procedure was, therefore, an act of
determining the appropriate prescription of
exceptional negligence and professional
preoperative medications as necessary to the irresponsibility. The measures cautioning
conduct of anesthesia.[12]
prudence and vigilance in dealing with human
lives lie at the core of the physicians
Physical examination of the patient entails not centuries-old Hippocratic Oath. Her failure to
only evaluating the patients central nervous
follow this medical procedure is, therefore, a
system, cardiovascular system and lungs but
clear indicia of her negligence.[16]
also the upper airway. Examination of the
upper airway would in turn include an analysis Further, there is no cogent reason for the
of the patients cervical spine mobility,
Court to reverse its finding that it was the
temporomandibular mobility, prominent
faulty intubation on Erlinda that caused her
central incisors, deceased or artificial teeth,
comatose condition. There is no question that
ability to visualize uvula and the thyromental
Erlinda became comatose after Dr. Gutierrez
distance.[13]
performed a medical procedure on her. Even
the counsel of Dr. Gutierrez admitted to this
Nonetheless, Dr. Gutierrez omitted to perform fact during the oral arguments:
a thorough preoperative evaluation on
Erlinda. As she herself admitted, she saw
CHIEF JUSTICE:
Erlinda for the first time on the day of the
operation itself, one hour before the
Mr. Counsel, you started your argument
scheduled operation. She auscultated[14] the
saying that this involves a comatose patient?
patients heart and lungs and checked the
ATTY. GANA: Yes, Your Honor.
latters blood pressure to determine if Erlinda
was indeed fit for operation.[15] However, she
CHIEF JUSTICE: How do you mean by that, a
did not proceed to examine the patients
airway. Had she been able to check petitioner comatose, a comatose after any other acts
were done by Dr. Gutierrez or comatose
Erlindas airway prior to the operation, Dr.
before any act was done by her?
Gutierrez would most probably not have
experienced difficulty in intubating the
former, and thus the resultant injury could

LEGAL MEDICINE 30
ATTY. GANA: No, we meant comatose as a
final outcome of the procedure.
CHIEF JUSTICE: Meaning to say, the patient
became comatose after some intervention,
professional acts have been done by Dr.
Gutierrez?
ATTY. GANA: Yes, Your Honor.
CHIEF JUSTICE: In other words, the comatose
status was a consequence of some acts
performed by D. Gutierrez?
ATTY. GANA: It was a consequence of the well,
(interrupted)
CHIEF JUSTICE: An acts performed by her, is
that not correct?
ATTY. GANA: Yes, Your Honor.
CHIEF JUSTICE: Thank you.[17]
What is left to be determined therefore is
whether Erlindas hapless condition was due to
any fault or negligence on the part of Dr.
Gutierrez while she (Erlinda) was under the
latters care. Dr. Gutierrez maintains that the
bronchospasm and cardiac arrest resulting in
the patients comatose condition was brought
about by the anaphylactic reaction of the
patient to Thiopental Sodium (pentothal).[18] In
the Decision, we explained why we found Dr.
Gutierrez theory unacceptable. In the first
place, Dr. Eduardo Jamora, the witness who
was presented to support her (Dr. Gutierrez)
theory, was a pulmonologist. Thus, he could
not be considered an authority on anesthesia
practice and procedure and their
complications.[19]
Secondly, there was no evidence on record to
support the theory that Erlinda developed an
allergic reaction to pentothal. Dr. Camagay
enlightened the Court as to the
manifestations of an allergic reaction in this
wise:

DR. CAMAGAY: All right, let us qualify an

allergic reaction. In medical terminology an
allergic reaction is something which is not
usual response and it is further qualified by
the release of a hormone called histamine and
histamine has an effect on all the organs of
the body generally release because the
substance that entered the body reacts with
the particular cell, the mass cell, and the
mass cell secretes this histamine. In a way it
is some form of response to take away that
which is not mine, which is not part of the
body. So, histamine has multiple effects on
the body. So, one of the effects as you will see
you will have redness, if you have an allergy
you will have tearing of the eyes, you will
have swelling, very crucial swelling
sometimes of the larynges which is your voice
box main airway, that swelling may be
enough to obstruct the entry of air to the
trachea and you could also have contraction,
constriction of the smaller airways beyond the
trachea, you see you have the trachea this
way, we brought some visual aids but
unfortunately we do not have a projector. And
then you have the smaller airways, the
bronchi and then eventually into the mass of
the lungs you have the bronchus. The
difference is that these tubes have also in
their walls muscles and this particular kind of
muscles is smooth muscle so, when histamine
is released they close up like this and that
phenomenon is known as bronco
spasm. However, the effects of histamine also
on blood vessels are different. They dilate
blood vessel open up and the patient or
whoever has this histamine release has
hypertension or low blood pressure to a point
that the patient may have decrease blood
supply to the brain and may collapse so, you
may have people who have this.[20]
These symptoms of an allergic reaction were
not shown to have been extant in Erlindas
case. As we held in our Decision, no evidence
of stridor, skin reactions, or wheezing some of
the more common accompanying signs of an
allergic reaction appears on record. No

laboratory data were ever presented to the

court.[21]
Dr. Gutierrez, however, insists that she
successfully intubated Erlinda as evidenced
by the fact that she was revived after
suffering from cardiac arrest. Dr. Gutierrez
faults the Court for giving credence to the
testimony of Cruz on the matter of the
administration of anesthesia when she (Cruz),
being a nurse, was allegedly not qualified to
testify thereon. Rather, Dr. Gutierrez invites
the Courts attention to her synopsis on what
transpired during Erlindas intubation:
12:15 p.m. Patient was inducted with sodium
pentothal 2.5% (250 mg) given by slow IV. 02
was started by mask. After pentothal injection
this was followed by IV injection of Norcuron
4mg. After 2 minutes 02 was given by positive
pressure for about one minute. Intubation
with endotracheal tube 7.5 m in diameter was
done with slight difficulty (short neck &
slightly prominent upper teeth) chest was
examined for breath sounds & checked if
equal on both sides. The tube was then
anchored to the mouth by plaster & cuff
inflated. Ethrane 2% with 02 4 liters was
given.Blood pressure was checked 120/80 &
heart rate regular and normal 90/min.
12:25 p.m. After 10 minutes patient was
cyanotic. Ethrane was discontinued & 02
given alone. Cyanosis disappeared. Blood
pressure and heart beats stable.
12:30 p.m. Cyanosis again reappeared this
time with sibilant and sonorous rales all over
the chest. D_5%_H20 & 1 ampule of
aminophyline by fast drip was started. Still
the cyanosis was persistent.Patient was
connected to a cardiac monitor. Another
ampule of of [sic] aminophyline was given
and solu cortef was given.
12:40 p.m. There was cardiac arrest. Extra
cardiac massage and intercardiac injection of
adrenalin was given & heart beat reappeared
in less than one minute. Sodium bicarbonate

& another dose of solu cortef was given by

IV. Cyanosis slowly disappeared & 02
continuously given & assisted positive
pressure. Laboratory exams done (see results
in chart).
Patient was transferred to ICU for further
management.[22]
From the foregoing, it can be allegedly seen
that there was no withdrawal (extubation) of
the tube. And the fact that the cyanosis
allegedly disappeared after pure oxygen was
supplied through the tube proved that it was
properly placed.
The Court has reservations on giving
evidentiary weight to the entries purportedly
contained in Dr. Gutierrez synopsis. It is
significant to note that the said record
prepared by Dr. Gutierrez was made only after
Erlinda was taken out of the operating
room. The standard practice in anesthesia is
that every single act that the anesthesiologist
performs must be recorded. In Dr. Gutierrez
case, she could not account for at least ten
(10) minutes of what happened during the
administration of anesthesia on Erlinda. The
following exchange between Dr. Estrella, one
of the amicii curiae, and Dr. Gutierrez is
instructive:
DR. ESTRELLA: You mentioned that there were
two (2) attempts in the intubation period?
DR. GUTIERREZ: Yes.
Q There were two attempts. In the first
attempt was the tube inserted or was the
laryngoscope only inserted, which was
inserted?
A All the laryngoscope.
Q All the laryngoscope. But if I remember
right somewhere in the re-direct, a certain
lawyer, you were asked that you did a first
attempt and the question was did you

LEGAL MEDICINE 31
withdraw the tube? And you said you never
withdrew the tube, is that right?

A Yes, and then, I asked the resident physician

to start giving the pentothal very slowly and
that was around one minute.

A Yes.

Q And in the second attempt you inserted the

laryngoscope and now possible intubation?

A When the first attempt when I inserted the

laryngoscope for the first time.

A Yes.

Q So, when you claim that at the first attempt

you inserted the laryngoscope, right?

Q So, that is about 12:13 no, 12:15, 12:17?

Q Yes. And so if you never withdrew the tube
then there was no, there was no insertion of
the tube during that first attempt. Now, the
other thing that we have to settle here is
when cyanosis occurred, is it recorded in the
anesthesia record when the cyanosis, in your
recording when did the cyanosis occur?
A (sic)
Q Is it a standard practice of anesthesia that
whatever you do during that period or from
the time of induction to the time that you
probably get the patient out of the operating
room that every single action that you do is so
recorded in your anesthesia record?
A I was not able to record everything I did not
have time anymore because I did that after
the, when the patient was about to leave the
operating room. When there was second
cyanosis already that was the (interrupted)
Q When was the first cyanosis?
A The first cyanosis when I was (interrupted)
Q What time, more or less?
A I think it was 12:15 or 12:16.
Q Well, if the record will show you started
induction at 12:15?
A Yes, Your Honor.
Q And the first medication you gave was
what?
A The first medication, no, first the patient
was oxygenated for around one to two
minutes.
Q Yes, so, that is about 12:13?

A Yes, and then, after one minute another

oxygenation was given and after (interrupted)

Q And at that point, you made a remark, what

remark did you make?

Q 12:18?

A I said mahirap ata ito when the first attempt

I did not see the trachea right away. That was
when I (interrupted)

A Yes, and then after giving the oxygen we

start the menorcure which is a relaxant. After
that relaxant (interrupted)

Q That was the first attempt?

A Yes.

Q After that relaxant, how long do you wait

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

Q What about the second attempt?

A On the second attempt I was able to
intubate right away within two to three
seconds.
Q At what point, for purposes of discussion
without accepting it, at what point did you
make the comment na mahirap ata to
intubate, mali ata ang pinasukan
A I did not say mali ata ang pinasukan I never
said that.
Q Well, just for the information of the group
here the remarks I am making is based on the
documents that were forwarded to me by the
Supreme Court. That is why for purposes of
discussion I am trying to clarify this for the
sake of enlightenment. So, at what point did
you ever make that comment?
A Which one, sir?

Q The mahirap intubate ito assuming that you

(interrupted)
Q So, more or less you attempted to do an
intubation after the first attempt as you
claimed that it was only the laryngoscope that A Iyon lang, that is what I only said mahirap
intubate (interrupted)
was inserted.
A Yes.

Q At what point?

A Yes.
Q But in one of the recordings somewhere at
the, somewhere in the transcript of records
that when the lawyer of the other party try to
inquire from you during the first attempt that
was the time when mayroon ba kayong
hinugot sa tube, I do not remember the page
now, but it seems to me it is there. So, that it
was on the second attempt that (interrupted)
A I was able to intubate.
Q And this is more or less about what time
12:21?
A Maybe, I cannot remember the time, Sir.
Q Okay, assuming that this was done at 12:21
and looking at the anesthesia records from
12:20 to 12:30 there was no recording of the
vital signs. And can we presume that at this
stage there was already some problems in
handling the patient?
A Not yet.
Q But why are there no recordings in the
anesthesia record?
A I did not have time.
Q Ah, you did not have time, why did you not
have time?
A Because it was so fast, I really (at this
juncture the witness is laughing)
Q No, I am just asking. Remember I am not
here not to pin point on anybody I am here
just to more or less clarify certainty more ore
less on the record.

LEGAL MEDICINE 32
A Yes, Sir.
Q And so it seems that there were no
recording during that span of ten (10)
minutes. From 12:20 to 12:30, and going over
your narration, it seems to me that the
cyanosis appeared ten (10) minutes after
induction, is that right?
A Yes.
Q And that is after induction 12:15 that is
12:25 that was the first cyanosis?
A Yes.
Q And that the 12:25 is after the 12:20?
A We cannot (interrupted)
Q Huwag ho kayong makuwan, we are just
trying to enlighten, I am just going over the
record ano, kung mali ito kuwan eh di ano. So,
ganoon po ano, that it seems to me that there
is no recording from 12:20 to 12:30, so, I am
just wondering why there were no recordings
during the period and then of course the
second cyanosis, after the first cyanosis. I
think that was the time Dr. Hosaka came in?
A No, the first cyanosis (interrupted).[23]
We cannot thus give full credence to Dr.
Gutierrez synopsis in light of her admission
that it does not fully reflect the events that
transpired during the administration of
anesthesia on Erlinda.As pointed out by Dr.
Estrella, there was a ten-minute gap in Dr.
Gutierrez synopsis, i.e., the vital signs of
Erlinda were not recorded during that time.
The absence of these data is particularly
significant because, as found by the trial
court, it was the absence of oxygen supply for
four (4) to five (5) minutes that caused
Erlindas comatose condition.
On the other hand, the Court has no reason to
disbelieve the testimony of Cruz. As we stated
in the Decision, she is competent to testify on

matters which she is capable of observing

such as, the statements and acts of the
physician and surgeon, external appearances
and manifest conditions which are observable
by any one.[24] Cruz, Erlindas sister-in-law, was
with her inside the operating room. Moreover,
being a nurse and Dean of the Capitol Medical
Center School of Nursing at that, she is not
entirely ignorant of anesthetic procedure.
Cruz narrated that she heard Dr. Gutierrez
remark, Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan. She
observed that the nailbeds of Erlinda became
bluish and thereafter Erlinda was placed in
trendelenburg position.[25] Cruz further
averred that she noticed that the abdomen of
Erlinda became distended.[26]
The cyanosis (bluish discoloration of the skin
or mucous membranes caused by lack of
oxygen or abnormal hemoglobin in the blood)
and enlargement of the stomach of Erlinda
indicate that the endotracheal tube was
improperly inserted into the esophagus
instead of the trachea. Consequently, oxygen
was delivered not to the lungs but to the
gastrointestinal tract. This conclusion is
supported by the fact that Erlinda was placed
in trendelenburg position. This indicates that
there was a decrease of blood supply to the
patients brain. The brain was thus temporarily
deprived of oxygen supply causing Erlinda to
go into coma.

the doctrine of res ipsa loquitur, reasoning

that the injury to the patient therein was one
which does not ordinarily take place in the
absence of negligence in the administration of
an anesthetic, and in the use and
employment of an endotracheal tube. The
court went on to say that [o]rdinarily a person
being put under anesthesia is not rendered
decerebrate as a consequence of
administering such anesthesia in the absence
of negligence. Upon these facts and under
these circumstances, a layman would be able
to say, as a matter of common knowledge and
observation, that the consequences of
professional treatment were not as such as
would ordinarily have followed if due care had
been exercised.[29] Considering the application
of the doctrine of res ipsa loquitur, the
testimony of Cruz was properly given
credence in the case at bar.

For his part, Dr. Hosaka mainly contends that

the Court erred in finding him negligent as a
surgeon by applying the Captain-of-the-Ship
doctrine.[30] Dr. Hosaka argues that the trend
in United States jurisprudence has been to
reject said doctrine in light of the
developments in medical practice. He points
out that anesthesiology and surgery are two
distinct and specialized fields in medicine and
as a surgeon, he is not deemed to have
control over the acts of Dr. Gutierrez. As
anesthesiologist, Dr. Gutierrez is a specialist
in her field and has acquired skills and
The injury incurred by petitioner Erlinda does
knowledge in the course of her training which
not normally happen absent any negligence in Dr. Hosaka, as a surgeon, does not possess.
[31]
the administration of anesthesia and in the
He states further that current American
use of an endotracheal tube. As was noted in
jurisprudence on the matter recognizes that
our Decision, the instruments used in the
the trend towards specialization in medicine
administration of anesthesia, including the
has created situations where surgeons do not
endotracheal tube, were all under the
always have the right to control all personnel
exclusive control of private respondents Dr.
within the operating room,[32] especially a
Gutierrez and Dr. Hosaka.[27]In Voss vs.
fellow specialist.[33]
[28]
Bridwell, which involved a patient who
suffered brain damage due to the wrongful
Dr. Hosaka cites the case of Thomas v.
administration of anesthesia, and even before Raleigh General Hospital,[34] which involved a
the scheduled mastoid operation could be
suit filed by a patient who lost his voice due
performed, the Kansas Supreme Court applied to the wrongful insertion of the endotracheal

tube preparatory to the administration of

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

LEGAL MEDICINE 33
Second, Dr. Hosaka himself admitted that he
was the attending physician of Erlinda. Thus,
when Erlinda showed signs of cyanosis, it was
Dr. Hosaka who gave instructions to call for
another anesthesiologist and cardiologist to
help resuscitate Erlinda.[37]
Third, it is conceded that in performing their
responsibilities to the patient, Drs. Hosaka
and Gutierrez worked as a team. Their work
cannot be placed in separate watertight
compartments because their duties intersect
with each other.[38]
While the professional services of Dr. Hosaka
and Dr. Gutierrez were secured primarily for
their performance of acts within their
respective fields of expertise for the
treatment of petitioner Erlinda, and that one
does not exercise control over the other, they
were certainly not completely independent of
each other so as to absolve one from the
negligent acts of the other physician.
That they were working as a medical team is
evident from the fact that Dr. Hosaka was
keeping an eye on the intubation of the
patient by Dr. Gutierrez, and while doing so,
he observed that the patients nails had
become dusky and had to call Dr. Gutierrezs
attention thereto. The Court also notes that
the counsel for Dr. Hosaka admitted that in
practice, the anesthesiologist would also have
to observe the surgeons acts during the
surgical process and calls the attention of the
surgeon whenever necessary[39] in the course
of the treatment. The duties of Dr. Hosaka and
those of Dr. Gutierrez in the treatment of
petitioner Erlinda are therefore not as clearcut as respondents claim them to be. On the
contrary, it is quite apparent that they have a
common responsibility to treat the patient,
which responsibility necessitates that they
call each others attention to the condition of
the patient while the other physician is
performing the necessary medical procedures.
It is equally important to point out that Dr.
Hosaka was remiss in his duty of attending to

petitioner Erlinda promptly, for he arrived

more than three (3) hours late for the
scheduled
operation. The cholecystectomy was set
for June 17, 1985 at 9:00 a.m., but he arrived
at DLSMC only at around 12:10 p.m. In
reckless disregard for his patients well being,
Dr. Hosaka scheduled two procedures on the
same day, just thirty minutes apart from each
other, at different hospitals. Thus, when the
first procedure (protoscopy) at the Sta.
Teresita Hospital did not proceed on time,
Erlinda was kept in a state of uncertainty at
the DLSMC.
The unreasonable delay in petitioner Erlindas
scheduled operation subjected her to
continued starvation and consequently, to the
risk of acidosis,[40] or the condition of
decreased alkalinity of the blood and tissues,
marked by sickly sweet breath, headache,
nausea and vomiting, and visual disturbances.
[41]
The long period that Dr. Hosaka made
Erlinda wait for him certainly aggravated the
anxiety that she must have been feeling at
the time. It could be safely said that her
anxiety adversely affected the administration
of anesthesia on her. As explained by Dr.
Camagay, the patients anxiety usually causes
the outpouring of adrenaline which in turn
results in high blood pressure or disturbances
in the heart rhythm:
DR. CAMAGAY:
x x x Pre-operative medication has three main
functions: One is to alleviate anxiety. Second
is to dry up the secretions and Third is to
relieve pain. Now, it is very important to
alleviate anxiety because anxiety is
associated with the outpouring of certain
substances formed in the body called
adrenalin. When a patient is anxious there is
an outpouring of adrenalin which would have
adverse effect on the patient. One of it is high
blood pressure, the other is that he opens
himself to disturbances in the heart rhythm,
which would have adverse implications. So,

we would like to alleviate patients anxiety

mainly because he will not be in control of his
body there could be adverse results to
surgery and he will be opened up; a knife is
going to open up his body. x x x[42]

CHIEF JUSTICE: Courtesy.

Dr. Hosaka cannot now claim that he was

entirely blameless of what happened to
Erlinda. His conduct clearly constituted a
breach of his professional duties to Erlinda:

DR. CAMAGAY: Yes, Your Honor.[43]

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

DR. CAMAGAY: And care.

CHIEF JUSTICE: Duty as a matter of fact?

Dr. Hosaka's irresponsible conduct of arriving

very late for the scheduled operation of
petitioner Erlinda is violative, not only of his
duty as a physician to serve the interest of his
patients with the greatest solicitude, giving
them always his best talent and skill,[44] but
also of Article 19 of the Civil Code which
requires a person, in the performance of his
duties, to act with justice and give everyone
his due.
Anent private respondent DLSMCs liability for
the resulting injury to petitioner Erlinda, we
held that respondent hospital is solidarily
liable with respondent doctors therefor under
Article 2180 of the Civil Code[45] since there
exists an employer-employee relationship
between private respondent DLSMC and Drs.
Gutierrez and Hosaka:
In other words, private hospitals, hire, fire and
exercise real control over their attending and
visiting consultant staff. While consultants are
not, technically employees, x x x the control
exercised, the hiring and the right to
terminate consultants all fulfill the important
hallmarks of an employer-employee
relationship, with the exception of the
payment of wages. In assessing whether such
a relationship in fact exists, the control test is
determining. x x x[46]
DLSMC however contends that applying the
four-fold test in determining whether such a
relationship exists between it and the
respondent doctors, the inescapable
conclusion is that DLSMC cannot be
considered an employer of the respondent
doctors.

LEGAL MEDICINE 34
It has been consistently held that in
determining whether an employer-employee
relationship exists between the parties, the
following elements must be present: (1)
selection and engagement of services; (2)
payment of wages; (3) the power to hire and
fire; and (4) the power to control not only the
end to be achieved, but the means to be used
in reaching such an end.[47]
DLSMC maintains that first, a hospital does
not hire or engage the services of a
consultant, but rather, accredits the latter and
grants him or her the privilege of maintaining
a clinic and/or admitting patients in the
hospital upon a showing by the consultant
that he or she possesses the necessary
qualifications, such as accreditation by the
appropriate board (diplomate), evidence of
fellowship and references.[48] Second, it is not
the hospital but the patient who pays the
consultants fee for services rendered by the
latter.[49] Third, a hospital does not dismiss a
consultant; instead, the latter may lose his or
her accreditation or privileges granted by the
hospital.[50] Lastly, DLSMC argues that when a
doctor refers a patient for admission in a
hospital, it is the doctor who prescribes the
treatment to be given to said patient. The
hospitals obligation is limited to providing the
patient with the preferred room
accommodation, the nutritional diet and
medications prescribed by the doctor, the
equipment and facilities necessary for the
treatment of the patient, as well as the
services of the hospital staff who perform the
ministerial tasks of ensuring that the doctors
orders are carried out strictly.[51]
After a careful consideration of the arguments
raised by DLSMC, the Court finds that
respondent hospitals position on this issue is
meritorious. There is no employer-employee
relationship between DLSMC and Drs.
Gutierrez and Hosaka which would hold
DLSMC solidarily liable for the injury suffered
by petitioner Erlinda under Article 2180 of the
Civil Code.

As explained by respondent hospital, that the

admission of a physician to membership in
DLSMCs medical staff as active or visiting
consultant is first decided upon by the
Credentials Committee thereof, which is
composed of the heads of the various
specialty departments such as the
Department of Obstetrics and Gynecology,
Pediatrics, Surgery with the department head
of the particular specialty applied for as
chairman. The Credentials Committee then
recommends to DLSMC's Medical Director or
Hospital Administrator the acceptance or
rejection of the applicant physician, and said
director or administrator validates the
committee's recommendation.[52] Similarly, in
cases where a disciplinary action is lodged
against a consultant, the same is initiated by
the department to whom the consultant
concerned belongs and filed with the Ethics
Committee consisting of the department
specialty heads. The medical director/hospital
administrator merely acts as ex-officio
member of said committee.

For these reasons, we reverse the finding of

liability on the part of DLSMC for the injury
suffered by petitioner Erlinda.
Finally, the Court also deems it necessary to
modify the award of damages to petitioners in
view of the supervening event of petitioner
Erlindas death. In the assailed Decision, the
Court awarded actual damages of One Million
Three Hundred Fifty Two Thousand Pesos
(P1,352,000.00) to cover the expenses for
petitioner Erlindas treatment and care from
the date of promulgation of the Decision up to
the time the patient expires or survives.[53] In
addition thereto, the Court awarded
temperate damages of One Million Five
Hundred Thousand Pesos (P1,500,000.00) in
view of the chronic and continuing nature of
petitioner Erlindas injury and the certainty of
further pecuniary loss by petitioners as a
result of said injury, the amount of which,
however, could not be made with certainty at
the time of the promulgation of the
decision. The Court justified such award in
this manner:

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 equitableand certainly not
in the best interests of the administration of
justicefor the victim in such cases to
constantly come before the courts and invoke
their aid in seeking adjustments to the
compensatory damages previously
awardedtemperate damages are
appropriate. The amount given as temperate
damages, though to a certain extent
speculative, should take into account the cost
of proper care.

In the instant case, petitioners were able to

provide only home-based nursing care for a
comatose patient who has remained in that
condition for over a decade. Having premised
our award for compensatory damages on the
amount provided by petitioners at the onset
Neither is there any showing that it is DLSMC
Our rules on actual or compensatory damages of litigation, it would be now much more in
which pays any of its consultants for medical
generally assume that at the time of litigation, step with the interests of justice if the value
services rendered by the latter to their
the injury suffered as a consequence of an act awarded for temperate damages would allow
respective patients. Moreover, the contract
petitioners to provide optimal care for their
between the consultant in respondent hospital of negligence has been completed and that
the cost can be liquidated. However, these
loved one in a facility which generally
and his patient is separate and distinct from
specializes in such care. They should not be
the contract between respondent hospital and provisions neglect to take into account those
situations, as in this case, where the resulting compelled by dire circumstances to provide
said patient. The first has for its object the
injury might be continuing and possible future substandard care at home without the aid of
rendition of medical services by the
complications directly arising from the injury,
professionals, for anything less would be
consultant to the patient, while the second
while certain to occur, are difficult to predict.
grossly inadequate. Under the circumstances,
concerns the provision by the hospital of
an award of P1,500,000.00 in temperate
facilities and services by its staff such as
nurses and laboratory personnel necessary for In these cases, the amount of damages which damages would therefore be reasonable.[54]
should be awarded, if they are to adequately
the proper treatment of the patient.
and correctly respond to the injury caused,
However, subsequent to the promulgation of
should be one which compensates for
the Decision, the Court was informed by
Further, no evidence was adduced to show
pecuniary loss incurred and proved, up to the petitioner Rogelio that petitioner Erlinda died
that the injury suffered by petitioner Erlinda
on August 3, 1999.[55] In view of this
was due to a failure on the part of respondent time of trial; and one which would meet
pecuniary
loss
certain
to
be
suffered
but
supervening event, the award of temperate
DLSMC to provide for hospital facilities and
which could not, from the nature of the case,
damages in addition to the actual or
staff necessary for her treatment.
be made with certainty. In other words,
compensatory damages would no longer be
temperate damages can and should be
justified since the actual damages awarded in
awarded on top of actual or compensatory
the Decision are sufficient to cover the

LEGAL MEDICINE 35
medical expenses incurred by petitioners for
the patient. Hence, only the amounts
representing actual, moral and exemplary
damages, attorneys fees and costs of suit
should be awarded to petitioners.

At 10:30 P.M., Raymond was brought inside

the operating room. During that time, the
hospital surgeons, Drs. Zafe and Cereno, were
busy operating on gunshot victim Charles
Maluluy-on. Assisting them in the said
operation was Dr. Rosalina Tatad (Dr. Tatad),
WHEREFORE, the assailed Decision is hereby who was the only senior anesthesiologist on
modified as follows:
duty at BRMC that night. Just before the
operation on Maluluy-on was finished, another
(1) Private respondent De Los Santos Medical
emergency case involving Lilia Aguila, a
Center is hereby absolved from liability arising woman who was giving birth to triplets, was
from the injury suffered by petitioner Erlinda
brought to the operating room.
Ramos on June 17, 1985;
(2) Private respondents Dr. Orlino Hosaka and
Dr. Perfecta Gutierrez are hereby declared to
be solidarily liable for the injury suffered by
petitioner Erlinda on June 17, 1985 and are
ordered to pay petitioners
(a) P1,352,000.00 as actual damages;
(b) P2,000,000.00 as moral damages;
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorneys fees; and
(e) the costs of the suit. SO ORDERED.
G.R. No. 167366 : September 26, 2012
DR. PEDRO DENNIS CERENO, and DR.
SANTOS ZAFE, Petitioners, v. COURT OF
APPEALS, SPOUSES DIOGENES S.
OLAVERE and FE R. SERRANO,
Respondents.
PEREZ, J.:

FACTS: At about 9:15 in the evening of 16

September 1995, Raymond S. Olavere
(Raymond), a victim of a stabbing incident,
was rushed to the Bicol Regional Medical
Center (BRMC). Dr. Realuyo, the emergency
room resident physician, recommended that
Raymond should undergo blood transfusion.

Drs. Zafe and Cereno, in the meantime,

proceeded to examine Raymond and they
found that the latters blood pressure was
normal and "nothing in him was significant."
There being no other available
anesthesiologist to assist them, Drs. Zafe and
Cereno decided to defer the operation on
Raymond.
At 11:15 P.M., the relatives of Raymond
brought the bag of blood to be used for blood
transfusion. Drs. Cereno and Zafe
immediately started their operation on
Raymond at around 12:15 A.M. of 17
September 1995. Upon opening of Raymonds
thoracic cavity, they found that 3,200 cc of
blood was stocked therein. Dr. Cereno did not
immediately transfuse the blood since the
bleeders had to be controlled first. Blood was
finally transfused on Raymond at 1:40 A.M.
However, during the operation, Raymond died
due to massive loss of blood.
Claiming that there was negligence on the
part of those who attended to their son, the
parents of Raymond (herein respondents)
filed a complaint for damages against Drs.
Zafe and Cereno. The RTC found Drs. Zafe and
Cereno negligent for not immediately
conducting surgery on Raymond. On appeal,
the CA affirmed RTCs findings.
ISSUE: Whether or not Drs. Zafe and Cereno
are guilty of gross negligence in the
performance of their duties?

G.R. No. 187926

HELD: The petition is granted.
CIVIL LAW: medical negligence
The type of lawsuit which has been called
medical malpractice or, more appropriately,
medical negligence, is that type of claim
which a victim has available to him or her to
redress a wrong committed by a medical
professional which has caused bodily harm. In
order to successfully pursue such a claim, a
patient must prove that a health care
provider, in most cases a physician, either
failed to do something which a reasonably
prudent health care provider would have
done, or that he or she did something that a
reasonably prudent provider would not have
done; and that the failure or action caused
injury to the patient.
Given that Dr. Tatad was already engaged in
another urgent operation and that Raymond
was not showing any symptom of suffering
from major blood loss requiring an immediate
operation, We find it reasonable that
petitioners decided to wait for Dr. Tatad to
finish her surgery and not to call the standby
anesthesiologist anymore. There is, after all,
no evidence that shows that a prudent
surgeon faced with similar circumstances
would decide otherwise.
In medical negligence cases, it is settled that
the complainant has the burden of
establishing breach of duty on the part of the
doctors or surgeons. It must be proven that
such breach of duty has a causal connection
to the resulting death of the patient.
Upon opening of his thoracic cavity, it was
discovered that there was gross bleeding
inside the body. Thus, the need for petitioners
to control first what was causing the bleeding.
Petition is GRANTED. The CA is REVERSED and
SET ASIDE.

DR. EMMANUEL JARCIA, JR.and DR.

MARILOU BASTAN, Petitioners,
- versus PEOPLE OF THEPHILIPPINES,
Respondent
Promulgated:
February 15, 2012
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 Decision[2] of the Court of
Appeals (CA), and its May 19, 2009
Resolution[3] in CA-G.R. CR No. 29559,
dismissing the appeal and affirming in
toto the June 14, 2005 Decision[4] of the
Regional Trial Court, Branch 43, Manila (RTC),
finding the accused guilty beyond reasonable
doubt of simple imprudence resulting to
serious physical injuries.
THE FACT
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

LEGAL MEDICINE 36
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. 01-196646.
On June 14, 2005, the RTC found the
petitioners guilty beyond reasonable doubt of
the crime of Simple Imprudence Resulting to
Serious Physical Injuries. The decretal portion
of the RTC decision reads:
WHEREFORE, premises considered, the Court
finds accused DR. EMMANUEL JARCIA,
JR. and DR. MARILOU BASTAN GUILTY
beyond reasonable doubt of the crime of
SIMPLE IMPRUDENCE RESULTING TO SERIOUS
PHYSICAL INJURIES and are hereby sentenced
to suffer the penalty of ONE (1) MONTH and
ONE (1) DAY to TWO (2) MONTHS and to
indemnify MRS. BELINDA SANTIAGO the
amount of 3,850.00 representing medical
expenses without subsidiary imprisonment in
case of insolvency and to pay the costs.

It appearing that Dr. Pamittan has not been

apprehended nor voluntarily surrendered
despite warrant issued for her arrest, let
warrant be issued for her arrest and the case
against her be ARCHIVED, to be reinstated
upon her apprehension.
SO ORDERED.[6]
The RTC explained:
After a thorough and in depth evaluation of
the evidence adduced by the prosecution and
the defense, this court finds that the evidence
of the prosecution is the more credible,
concrete and sufficient to create that moral
certainty in the mind of the Court that
accused herein [are] criminally
responsible. The Court believes that accused
are negligent when both failed to exercise the
necessary and reasonable prudence in
ascertaining the extent of injury of Alfonso
Santiago, Jr.
However, the negligence exhibited by the two
doctors does not approximate negligence of a
reckless nature but merely amounts to simple
imprudence. Simple imprudence consists in
the lack 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.

reasonable conclusion of negligence, there

must be proof of breach of duty on the part of
the physician as well as a causal connection
As earlier stated, the CA affirmed the RTC
of such breach and the resulting injury of his
decision in toto. The August 29, 2008 Decision patient.The connection between the
of the CA pertinently reads:
negligence and the injury must be a direct
and natural sequence of events, unbroken by
This Court holds concurrently and finds the
intervening efficient causes. In other words,
foregoing circumstances sufficient to sustain a the negligence must be the proximate cause
judgment of conviction against the accusedof the injury. Negligence, no matter in what it
appellants for the crime of simple imprudence consists, cannot create a right of action unless
resulting in serious physical injuries. The
it is the proximate cause of the injury
elements of imprudence are: (1) that the
complained of. The proximate cause of an
offender does or fails to do an act; (2) that the injury is that cause which, in natural and
doing or the failure to do that act is voluntary; continuous sequence, unbroken by any
(3) that it be without malice; (4) that material efficient intervening cause, produces the
damage results from the imprudence; and (5) injury and without which the result would not
that there is inexcusable lack of precaution on have occurred.
the part of the offender, taking into
consideration his employment or occupation,
In the case at bench, the accused-appellants
degree of intelligence, physical condition, and questioned the imputation against them and
other circumstances regarding persons, time
argued that there is no causal connection
and place.
between their failure to diagnose the fracture
and the injury sustained by Roy.
Whether or not Dr. Jarcia and Dr. Bastan had
committed an inexcusable lack of precaution
We are not convinced.
in the treatment of their patient is to be
determined according to the standard of care
The prosecution is however after the cause
observed by other members of the profession which prolonged the pain and suffering
in good standing under similar circumstances, of Roy and not on the failure of the accusedbearing in mind the advanced state of the
appellants to correctly diagnose the extent of
profession at the time of treatment or the
the injury sustained by Roy.
present state of medical science. In the case
For a more logical presentation of the
of Leonila Garcia-Rueda v. Pascasio, the
discussion, we shall first consider the
Supreme Court stated that, in accepting a
applicability of the doctrine of res ipsa
case, a doctor in effect represents that,
loquitur to the instant case. Res ipsa
having the needed training and skill
loquitur is a Latin phrase which literally
possessed by physicians and surgeons
means the thing or the transaction speaks for
practicing in the same field, he will employ
itself. The doctrine of res ipsa loquitur is
such training, care and skill in the treatment
of his patients. He therefore has a duty to use simply a recognition of the postulate that, as
a matter of common knowledge and
at least the same level of care that any other
experience, the very nature of certain types of
reasonably competent doctor would use to
occurrences may justify an inference of
treat a condition under the same
negligence on the part of the person who
circumstances.
controls the instrumentality causing the injury
In litigations involving medical negligence, the in the absence of some explanation by the
plaintiff has the burden of establishing
accused-appellant who is charged with
accused-appellants negligence, and for a
negligence. It is grounded in the superior logic

LEGAL MEDICINE 37
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:

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.

Q: Now, he is an intern did you not consult the x x x x x x x x x

doctors, Dr. Jarcia or Dra. Pamittan to confirm
A: I just listened to them, sir. And I just asked
whether you should go home or not?
if I will still return my son.
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.
xxxxxxxxx
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?

xxxxxxxxx
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 mistaken, sir.
Still, before resort to the doctrine may be
allowed, the following requisites must be
satisfactorily shown:
1.
The accident is of a kind which
ordinarily does not occur in the absence of
someones negligence;
2.
It is caused by an instrumentality within
the exclusive control of the defendant or
defendants; and
3. The possibility of contributing conduct
which would make the plaintiff responsible is
eliminated.

In the above requisites, the fundamental

element is the control of the instrumentality
which caused the damage. Such element of
control must be shown to be within the
dominion of the accused-appellants. In order
to have the benefit of the rule, a plaintiff, in
addition to proving injury or damage, must
show a situation where it is applicable and
must establish that the essential elements of
the doctrine were present in a particular
incident. The early treatment of the leg
of Roywould have lessen his suffering if not
entirely relieve him from the fracture. A boy of
tender age whose leg was hit by a vehicle
would engender a well-founded belief that his
condition may worsen without proper medical
attention. As junior residents who only
practice general surgery and without
specialization with the case consulted before
them, they should have referred the matter to
a specialist. This omission alone constitutes
simple imprudence on their part. When Mrs.
Santiago insisted on having another x-ray of
her child on the upper part of his leg, they
refused to do so. The mother would not have
asked them if they had no exclusive control or
prerogative to request an x-ray test. Such is a
fact because a radiologist would only conduct
the x-ray test upon request of a physician.

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, 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
The testimony of Mrs. Santiago was
proper proof of injury to the patient, without
corroborated by a bone specialist Dr. Tacata.
the aid of expert testimony, where the court
He further testified based on his personal
from its fund of common knowledge can
knowledge, and not as an expert, as he
determine the proper standard of care. Where
examined himself the child Roy. He testified
common knowledge and experience teach
as follows:
that a resulting injury would not have
occurred to the patient if due care had been
Fiscal Macapagal:
exercised, an inference of negligence may be
Q: And was that the correct respon[se] to the
drawn giving rise to an application of the
medical problem that was presented to Dr.
doctrine of res ipsa loquitur without medical
Jarcia and Dra. Bastan?
evidence, which is ordinarily required to show
not only what occurred but how and why it
A: I would say at that stage, yes. Because
occurred. In the case at bench, we give
they have presented the patient and the
credence to the testimony of Mrs. Santiago by
history. At sabi nila, nadaanan lang po ito. And applying the doctrine of res ipsa loquitur.
then, considering their year of residency they
are still junior residents, and they are not also Res ipsa loquitur is not a rigid or ordinary
orthopedic residents but general surgery
doctrine to be perfunctorily used but a rule to

LEGAL MEDICINE 38
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. Hence, this
petition.
The petitioners pray for the reversal of the
decision of both the RTC and the CA anchored
on the following
GROUNDS1. IN AFFIRMING ACCUSED-PETITIONERS
CONVICTION, THE COURT OF APPEALS
ERRED IN NOT HOLDING THAT THE
ACTUAL, DIRECT, IMMEDIATE, AND
PROXIMATE CAUSE OF THE PHYSICAL
INJURY OF THE PATIENT (FRACTURE OF
THE LEG BONE OR TIBIA), WHICH
REQUIRED MEDICAL ATTENDANCE FOR
MORE THAN THIRTY (30) DAYS AND
INCAPACITATED HIM FROM PERFORMING

HIS CUSTOMARY DUTY DURING THE

SAME PERIOD OF TIME, WAS THE
VEHICULAR ACCIDENT WHERE THE
PATIENTS RIGHT LEG WAS HIT BY A TAXI,
NOT THE FAILURE OF THE ACCUSEDPETITIONERS TO SUBJECT THE PATIENTS
WHOLE LEG TO AN X-RAY EXAMINATION.
2. THE COURT OF APPEALS ERRED IN
DISREGARDING ESTABLISHED FACTS
CLEARLY NEGATING PETITIONERS
ALLEGED NEGLIGENCE OR IMPRUDENCE.
SIGNIFICANTLY, THE COURT OF APPEALS
UNJUSTIFIABLY DISREGARDED THE
OPINION OF THE PROSECUTIONS EXPERT
WITNESS, DR. CIRILO TACATA, THAT
PETITIONERS WERE NOT GUILTY OF
NEGLIGENCE OR IMPRUDENCE
COMPLAINED OF.
3. THE COURT OF APPEALS ERRED IN
HOLDING THAT THE FAILURE OF
PETITIONERS TO SUBJECT THE PATIENTS
WHOLE LEG TO AN X-RAY EXAMINATION
PROLONGED THE PAIN AND SUFFERING
OF THE PATIENT, SUCH CONCLUSION
BEING UNSUPPORTED BY, AND EVEN
CONTRARY TO, THE EVIDENCE ON
RECORD.
4. ASSUMING ARGUENDO THAT THE
PATIENT EXPERIENCED PROLONGED PAIN
AND SUFFERING, THE COURT OF
APPEALS ERRED IN NOT HOLDING THAT
THE ALLEGED PAIN AND SUFFERING
WERE DUE TO THE UNJUSTIFIED FAILURE
OF THE PATIENTS MOTHER, A NURSE
HERSELF, TO IMMEDIATELY BRING THE
PATIENT BACK TO THE HOSPITAL, AS
ADVISED BY THE PETITIONERS, AFTER HE
COMPLAINED OF SEVERE PAIN IN HIS
RIGHT LEG WHEN HE REACHED HOME
AFTER HE WAS SEEN BY PETITIONERS AT
THE HOSPITAL. THUS, THE PATIENTS
ALLEGED INJURY (PROLONGED PAIN AND
SUFFERING) WAS DUE TO HIS OWN
MOTHERS ACT OR OMISSION.

5. THE COURT OF APPEALS ERRED IN

NOT HOLDING THAT NO PHYSICIANPATIENT 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.

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
6. THE COURT OF APPEALS GRAVELY
reasonably to belief that in the absence of
ERRED IN NOT ACQUITTING ACCUSEDnegligence it would not have occurred and
PETITIONERS OF THE CRIME CHARGED.[9]
that thing which caused injury is shown to
have been under the management and
The foregoing can be synthesized into two
control of the alleged wrongdoer. Under this
basic issues: [1] whether or not the doctrine
doctrine, the happening of an injury permits
of res ipsa loquitur is applicable in this case;
an inference of negligence where plaintiff
and [2] whether or not the petitioners are
produces substantial evidence that the injury
liable for criminal negligence.
was caused by an agency or instrumentality
under the exclusive control and management
THE COURTS RULING
of defendant, and that the occurrence was
such that in the ordinary course of things
The CA is correct in finding that there was
would not happen if reasonable care had been
negligence on the part of the petitioners. After used.[10]
a perusal of the records, however, the Court is
not convinced that the petitioners are guilty
The doctrine of res ipsa loquitur as a rule of
of criminal negligence complained of. The
evidence is unusual to the law of negligence
Court is also of the view that the CA erred in
which recognizes that prima
applying the doctrine of res ipsa loquitur in
facie negligence may be established without
this particular case.
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
The Doctrine of Res Ipsa Loquitur
convenience. The rule, when applicable to the
facts and circumstances of a given case, is
This doctrine of res ipsa loquitur means
not meant to and does not dispense with the
"Where the thing which causes injury is shown
requirement of proof of culpable negligence
to be under the management of the
on the party charged. It merely determines
defendant, and the accident is such as in the
and regulates what shall
ordinary course of things does not happen if
be prima facie evidence thereof and helps the
those who have the management use proper
plaintiff in proving a breach of the duty. The
care, it affords reasonable evidence, in the
doctrine can be invoked when and only when,
absence of an explanation by the defendant,
under the circumstances involved, direct
that the accident arose from want of care."
evidence is absent and not readily available.
The Black's Law Dictionary defines the said
[11]
doctrine. Thus:
As to the Application of

LEGAL MEDICINE 39
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.

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?

Q: When Alfonso Santiago, Jr. was brought to

you by his mother, what did you do by way of
physicians as first step
A: As usual, I examined the patient physically
and, at that time as I have said, the patient
could not walk so I [began] to suspect that
probably he sustained a fracture as a result of
a vehicular accident. So I examined the
patient at that time, the involved leg, I dont
know if that is left or right, the involved leg
then was swollen and the patient could not
walk, so I requested for the x-ray of [the]
lower leg.
Q: What part of the leg, doctor, did you
request to be examined?
A: If we refer for an x-ray, usually, we
suspect a fracture whether in
approximal, middle or lebistal tinial, we
usually x-ray the entire extremity.
Q: And what was the result?
A: Well, I can say that it was a spiral fracture
of the mid-tibial, it is the bigger bone of the
leg.
Q: And when you say spiral, doctor, how long
was this fracture?
A: When we say spiral, it is a sort of letter S,
the length was about six (6) to eight (8)
centimeters.

A: At present I am the chairman department

of orthopedic in UP-PGH and I had special
training in pediatric orthopedic for two (2)
years.

Q: Mid-tibial, will you please point to us,

doctor, where the tibial is?

Q: In June 1998, doctor, what was your

position and what was your specialization at
that time?

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.

Negligence is defined as the failure to observe A: Since 1980, I have been specialist in
pediatric orthopedic.
for the protection of the interests of another
person that degree of care, precaution, and
vigilance which the circumstances justly

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: Who did you interview?
A: The mother.
Q: How about the child himself, Alfonso
Santiago, Jr.?
A: Normally, we do not interview the child
because, usually, at his age, the answers are
not accurate. So, it was the mother that I
interviewed.
Q: And were you informed also of his early
medication that was administered on Alfonso
Santiago, Jr.?
A: No, not actually medication. I was informed
that this patient was seen initially at the
emergency room by the two (2) physicians
that you just mentioned, Dr. Jarcia and Dra.
Bastan, that time who happened to be my
residents who were [on] duty at the
emergency room.
xxxx

(Witness pointing to his lower leg)

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

LEGAL MEDICINE 40
xxx

xxxx

the Court is bound by the dictates of justice

which hold inviolable the right of the accused
Q: You also said, Doctor, that Dr. Jarcia and
Q: Doctor, if you know that the patient
to be presumed innocent until proven guilty
Dra. Bastan are not even an orthopedic
sustained a fracture on the ankle and on beyond reasonable doubt. The Court,
specialist.
the foot and the history that was told to
nevertheless, finds the petitioners civilly liable
you is the region that was hit is the
for their failure to sufficiently attend to Roy
A: They are general surgeon residents.
region of the foot, will the doctor subject Jr.s medical needs when the latter was rushed
You have to man[x] the emergency
the entire leg for x-ray?
to the ER, for while a criminal conviction
room, including neurology, orthopedic,
requires proof beyond reasonable doubt, only
general surgery, they see everything at
A: I am an orthopedic surgeon, you have
a preponderance of evidence is required to
the emergency room.
to subject an x-ray of the leg. Because
establish civil liability. Taken into account also
you have to consider the kind of fracture was the fact that there was no bad faith on
xxxx
that the patient sustained would you say their part.
the exact mechanism of injury. For
Q: But if initially, Alfonso Santiago, Jr.
example spiral, paikot yung bale nya, so Dr. Jarcia and Dr. Bastan cannot pass on the
and his case was presented to you at the it was possible that the leg was run over, liability to the taxi driver who hit the victim. It
emergency room, you would have
the patient fell, and it got twisted. Thats may be true that the actual, direct,
subjected the entire foot to x-ray even if why the leg seems to be fractured.
immediate, and proximate cause of the injury
[17]
the history that was given to Dr. Jarcia
[Emphases supplied]
(fracture of the leg bone or tibia) of Roy Jr.
and Dra. Bastan is the same?
was the vehicular accident when he was hit
It can be gleaned from the testimony of Dr.
by a taxi. The petitioners, however, cannot
A: I could not directly say yes, because it Tacata that a thorough examination was not
simply invoke such fact alone to excuse
would still depend on my examination,
performed on Roy Jr. As residents on duty at
themselves from any liability. If this would be
we cannot subject the whole body for xthe emergency room, Dr. Jarcia and Dr. Bastan so, doctors would have a ready defense
ray if we think that the damaged was
were expected to know the medical protocol
should they fail to do their job in attending to
only the leg.
in treating leg fractures and in attending to
victims of hit-and-run, maltreatment, and
victims of car accidents. There was, however, other crimes of violence in which the actual,
Q: Not the entire body but the entire leg? no precise evidence and scientific explanation direct, immediate, and proximate cause of the
pointing to the fact that the delay in the
injury is indubitably the act of the
A: I think, if my examination requires it, I application of the cast to the patients
perpetrator/s.
would.
fractured leg because of failure to
immediately diagnose the specific injury of
In failing to perform an extensive medical
Q: So, you would conduct first an
the patient, prolonged the pain of the child or examination to determine the extent of Roy
examination?
aggravated his condition or even caused
Jr.s injuries, Dr. Jarcia and Dr. Bastan were
further complications. Any person may opine
remiss of their duties as members of the
A: Yes, sir.
that had patient Roy Jr. been treated properly
medical profession. Assuming for the sake of
and given the extensive X-ray examination,
argument that they did not have the capacity
Q: And do you think that with that
the extent and severity of the injury, spiral
to make such thorough evaluation at that
examination that you would have
fracture of the mid-tibial part or the bigger
stage, they should have referred the patient
conducted you would discover the
bone of the leg, could have been detected
to another doctor with sufficient training and
necessity subjecting the entire foot for
early on and the prolonged pain and suffering experience instead of assuring him and his
x-ray?
of Roy Jr. could have been prevented. But still, mother that everything was all right
that opinion, even how logical it may seem
A: It is also possible but according to
would not, and could not, be enough basis to
This Court cannot also stamp its imprimatur
them, the foot and the ankle were
hold one criminally liable; thus, a reasonable
on the petitioners contention that no
swollen and not the leg, which
doubt as to the petitioners guilt.
physician-patient relationship existed
sometimes normally happens that the
between them and patient Roy Jr., since they
actual fractured bone do not get swollen.
Although the Court sympathizes with the
were not his attending physicians at that
plight of the mother and the child in this case,

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

LEGAL MEDICINE 41
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.

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.

The Court, likewise, finds the petitioners also

liable for exemplary damages in the said
amount. Article 2229 of the Civil Code
provides that exemplary damages may be
imposed by way of example or correction for
the public good.

WHEREFORE, the petition is PARTLY

GRANTED. The Decision of the Court of
Appeals dated August 29, 2008 is REVERSED
Damages
and SET ASIDE. A new judgment is
entered ACQUITTING Dr. Emmanuel Jarcia, Jr.
While no criminal negligence was found in the and Dr. Marilou Bastan of the crime of
petitioners failure to administer the necessary reckless imprudence resulting to serious
medical attention to Roy Jr., the Court holds
physical injuries but declaring them civilly
them civilly liable for the resulting damages to liable in the amounts of:
To repeat for clarity and emphasis, if these
their patient. While it was the taxi driver who
doctors knew from the start that they were
ran over the foot or leg of Roy Jr., their
(1) 3,850.00 as actual damages;
not in the position to attend to Roy Jr., a
negligence was doubtless contributory.
vehicular accident victim, with the degree of
(2) 100,000.00 as moral damages;
diligence and commitment expected of every
It appears undisputed that the amount of
doctor in a case like this, they should have
3,850.00, as expenses incurred by patient
(3) 50,000.00 as exemplary damages; and
not made a baseless assurance that
Roy Jr., was adequately supported by receipts.
everything was all right. By doing so, they
(4) Costs of the suit.
deprived Roy Jr. of adequate medical attention The Court, therefore, finds the petitioners
liable
to
pay
this
amount
by
way
of
actual
that placed him in a more dangerous situation
with interest at the rate of 6% per
damages
than he was already in. What petitioners
annum from the date of the filing of the
should have done, and could have done, was
Information. The rate shall be 12%
The
Court
is
aware
that
no
amount
of
to refer Roy Jr. to another doctor who could
interest per annum from the finality of
compassion
can
suffice
to
ease
the
sorrow
felt
competently and thoroughly examine his
judgment until fully paid. SO ORDERED.
by the family of the child at that time.
injuries.
Certainly, the award of moral and exemplary
DR. RUBI LI,
G.R. No. 165279
damages in favor of Roy Jr. in the amount of
All told, the petitioners were, indeed,
100,000.00 and 50,000.00, respectively, is
negligent but only civilly, and not criminally,
Petitioner,
proper in this case.
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]

Resolution[2] dated September 1, 2004 of the

Court of Appeals (CA) in CA-G.R. CV No. 58013
which modified the
Decision[3] dated September 5, 1997 of
the Regional Trial Court of Legazpi City,
Branch 8 in Civil Case No. 8904.
The factual antecedents:

As to the Award of

It is settled that moral damages are not

punitive in nature, but are designed to
compensate and alleviate in some way the
physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation,
wounded feelings, moral shock, social
humiliation, and similar injury unjustly
inflicted on a person. Intended for the
restoration of the psychological or
emotional status quo ante, the award of moral
damages is designed to compensate
emotional injury suffered, not to impose a
penalty on the wrongdoer.[23]

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.

VILLARAMA, JR., J.:

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]

Challenged in this petition for review on

certiorari is the Decision[1] dated June 15,
2004 as well as the

On the other hand, the Certificate of

Death[6] issued by SLMC stated the cause of
death as follows:

- versus SPOUSES REYNALDO and LINA

SOLIMAN, as parents/heirs of
deceased Angelica Soliman,
Respondents.
DECISION

LEGAL MEDICINE 42
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.
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.[9] Petitioner,
however, assured them not to worry about
her professional fee and told them to just
save up for the medicines to be used.
Petitioner claimed that she explained to
respondents that even when a tumor is
removed, there are still small lesions
undetectable to the naked eye, and that
adjuvant chemotherapy is needed to clean
out the small lesions in order to lessen the
chance of the cancer to recur. She did not
give the respondents any assurance that
chemotherapy will cure Angelicas
cancer. During these consultations with
respondents, she explained the following side
effects of chemotherapy treatment to
respondents: (1) falling hair; (2) nausea and
vomiting; (3) loss of appetite; (4) low count of
white blood cells [WBC], red blood cells [RBC]
and platelets; (5) possible sterility due to the

effects on Angelicas ovary; (6) damage to the

heart and kidneys; and (7) darkening of the
skin especially when exposed to sunlight. She
actually talked with respondents four times,
once at the hospital after the surgery, twice at
her clinic and the fourth time when Angelicas
mother called her through long distance.
[10]
This was disputed by respondents who
countered that petitioner gave them
assurance that there is 95% chance of healing
for Angelica if she undergoes chemotherapy
and that the only side effects were nausea,
vomiting and hair loss.[11] Those were the only
side-effects of chemotherapy treatment
mentioned by petitioner.[12]

had systemic lupus and consulted Dr. Victoria

Abesamis on the matter.[23]

On July 27, 1993, SLMC discharged Angelica,

with instruction from petitioner that she be
readmitted after two or three weeks for the
chemotherapy.

The following day, August 19, petitioner

began administering three chemotherapy
drugs Cisplatin,[15] Doxorubicin[16] and
Cosmegen[17] intravenously.Petitioner was
supposedly assisted by her trainees Dr. Leo
Marbella[18] and Dr. Grace Arriete.[19] In his
testimony, Dr. Marbella denied having any
participation in administering the said
chemotherapy drugs.[20]

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]

On the second day of chemotherapy, August

20, respondents noticed reddish discoloration
on Angelicas face.[21] They asked petitioner
about it, but she merely quipped, Wala yan.
Epekto ng gamot.[22] Petitioner recalled
noticing the skin rashes on the nose and
cheek area of Angelica. At that moment, she
entertained the possibility that Angelica also

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

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 xray, ultrasound of the liver, creatinine and
complete liver function tests.[13] Petitioner
proceeded with the chemotherapy by first
administering hydration fluids to Angelica.[14]

On the third day of chemotherapy, August 21,

Angelica had difficulty breathing and was thus
provided with oxygen inhalation apparatus.
This time, the reddish discoloration on
Angelicas face had extended to her neck, but
petitioner dismissed it again as merely the
effect of medicines.[24] Petitioner testified that
she did not see any discoloration on Angelicas
face, nor did she notice any difficulty in the
childs breathing. She claimed that Angelica
merely complained of nausea and was given
ice chips.[25]

LEGAL MEDICINE 43
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]

were gadgets attached to Angelica at that

time.[34]

they had to revive Angelica by pumping her

chest. Thereafter, Reynaldo claimed that
Angelica already experienced difficulty in
On August 29, Angelica developed ulcers in
urinating and her bowel consisted of bloodher mouth, which petitioner said were blood
like fluid. Angelica requested for an electric
clots that should not be
fan as she was in pain. Hospital staff
removed. Respondents claimed that Angelica
attempted to take blood samples from
passed about half a liter of blood through her
Angelica but were unsuccessful because they
anus at around seven oclock that evening,
could not even locate her vein. Angelica
However, Angelica remained in confinement
which petitioner likewise denied.
asked for a fruit but when it was given to her,
because while still in the premises of SLMC,
she only smelled it. At this time, Reynaldo
On August 30, Angelica continued
her convulsions returned and she also had
claimed he could not find either petitioner or
bleeding. She was restless as endotracheal
LBM. Angelica was given oxygen and
Dr. Marbella. That night, Angelica became
and nasogastric tubes were inserted into her
administration of calcium continued.[29]
hysterical and started removing those
weakened body. An aspiration of the
gadgets attached to her. At three oclock in the
The next day, August 24, respondents claimed nasogastric tube inserted to Angelica also
morning of September 1, a priest came and
that Angelica still suffered from convulsions.
revealed a bloody content. Angelica was given they prayed before Angelica
They also noticed that she had a fever and
more platelet concentrate and fresh whole
expired. Petitioner finally came back and
had difficulty breathing.[30] Petitioner insisted
blood, which petitioner claimed improved her
supposedly told respondents that there was
it was carpo-pedal spasm, not convulsions.
condition. Petitioner told Angelica not to
malfunction or bogged-down machine.[37]
She verified that at around 4:50 that
remove the endotracheal tube because this
afternoon, Angelica developed difficulty in
may induce further bleeding.[35] She was also
By petitioners own account, Angelica was
breathing and had fever. She then requested
transferred to the intensive care unit to avoid merely irritable that day (August
for an electrocardiogram analysis, and infused infection.
31). Petitioner noted though that Angelicas
calcium gluconate on the patient at a stat
skin was indeed sloughing off.[38] She stressed
The next day, respondents claimed that
dose. She further ordered that Angelica be
that at 9:30 in the evening, Angelica pulled
Angelica became hysterical, vomited blood
given Bactrim,[31] a synthetic antibacterial
out her endotracheal tube.[39] On September
[32]
and
her
body
turned
black.
Part
of
Angelicas
combination drug,
to combat any infection
1, exactly two weeks after being admitted at
skin was also noted to be shredding by just
on the childs body.[33]
SLMC for chemotherapy, Angelica died.[40] The
rubbing cotton on it. Angelica was so restless
cause of death, according to petitioner, was
By August 26, Angelica was bleeding through
she removed those gadgets attached to her,
septicemia, or overwhelming infection, which
the mouth. Respondents also saw blood on
saying Ayaw ko na; there were tears in her
caused Angelicas other organs to fail.
[41]
her anus and urine. When Lina asked
eyes and she kept turning her
Petitioner attributed this to the patients
petitioner what was happening to her
head. Observing her daughter to be at the
poor defense mechanism brought about by
daughter, petitioner replied, Bagsak ang
point of death, Lina asked for a doctor but the the cancer itself.[42]
platelets ng anak mo. Four units of platelet
latter could not answer her anymore.[36] At
concentrates were then transfused to
this time, the attending physician was Dr.
While he was seeking the release of Angelicas
Angelica. Petitioner prescribed Solucortef.
Marbella who was shaking his head saying
cadaver from SLMC, Reynaldo claimed that
Considering that Angelicas fever was high and that Angelicas platelets were down and
petitioner acted arrogantly and called him
her white blood cell count was low, petitioner
respondents should pray for their
names. He was asked to sign a promissory
prescribed Leucomax. About four to eight
daughter. Reynaldo claimed that he was
note as he did not have cash to pay the
bags of blood, consisting of packed red blood
introduced to a pediatrician who took over his hospital bill.[43]
cells, fresh whole blood, or platelet
daughters case, Dr. Abesamis who also told
concentrate, were transfused to Angelica. For him to pray for his daughter. Angelica
Respondents also presented as witnesses Dr.
two days (August 27 to 28), Angelica
continued to have difficulty in her breathing
Jesusa Nieves-Vergara, Medico-Legal Officer of
continued bleeding, but petitioner claimed it
and blood was being suctioned from her
the PNP-Crime Laboratory who conducted the
was lesser in amount and in
stomach. A nurse was posted inside Angelicas autopsy on Angelicas cadaver, and Dr.
frequency. Petitioner also denied that there
room to assist her breathing and at one point
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

LEGAL MEDICINE 44
procedure or therapy. The physician thus
bases his assurance to the patient on his
personal assessment of the patients condition
and his knowledge of the general effects of
the agents or procedure that will be allowed
on the patient. Dr. Balmaceda stressed that
the patient or relatives must be informed of
all known side effects based on studies and
observations, even if such will aggravate the
patients condition.[45]

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.

course of action which could have delayed or

prevented the early death of their child.

1.
Actual damages of P139,064.43, plus
P9,828.00 for funeral expenses;

The CA thus declared:

2.

Moral damages of P200,000.00;

3.

Exemplary damages of P50,000.00;

4.

Attorneys fee of P30,000.00.

Plaintiffs-appellants child was suffering from a

malignant disease. The attending physician
recommended that she undergo
In dismissing the complaint, the trial court
chemotherapy treatment after surgery in
held that petitioner was not liable for
order to increase her chances of
damages as she observed the best known
survival. Appellants consented to the
procedures and employed her highest skill
chemotherapy treatment because they
Dr. Jaime Tamayo, the orthopaedic surgeon
and knowledge in the administration of
believed in Dr. Rubi Lis representation that the
who operated on Angelicas lower extremity,
chemotherapy drugs on Angelica but despite
deceased would have a strong chance of
testified for the defendants. He explained that all efforts said patient died. It cited the
in case of malignant tumors, there is no
testimony of Dr. Tamayo who testified that he survival after chemotherapy and also because
of the representation of appellee Dr. Rubi Li
guarantee that the ablation or removal of the
considered petitioner one of the most
that there were only three possible sideamputated part will completely cure the
proficient in the treatment of cancer and that
effects of the treatment. However, all sorts of
cancer. Thus, surgery is not enough. The
the patient in this case was afflicted with a
painful side-effects resulted from the
mortality rate of osteosarcoma at the time of
very aggressive type of cancer necessitating
treatment including the premature death of
modern chemotherapy and early diagnosis
chemotherapy as adjuvant treatment. Using
still remains at 80% to 90%. Usually, deaths
the standard of negligence laid down in Picart Angelica. The appellants were clearly and
totally unaware of these other sideoccur from metastasis, or spread of the
v. Smith,[47] the trial court declared that
cancer to other vital organs like the liver,
petitioner has taken the necessary precaution effects which manifested only during the
chemotherapy treatment. This was
causing systemic complications. The modes of against the adverse effect of chemotherapy
therapy available are the removal of the
on the patient, adding that a wrong decision is shown by the fact that every time a
problem would take place regarding
primary source of the cancerous growth and
not by itself negligence. Respondents were
then the residual cancer cells or metastasis
ordered to pay their unpaid hospital bill in the Angelicas condition (like an unexpected
side-effect manifesting itself), they
should be treated with chemotherapy. Dr.
amount of P139,064.43.[48]
would immediately seek explanation
Tamayo further explained that patients with
Respondents appealed to the CA which,
from Dr. Rubi Li. Surely, those unexpected
osteosarcoma have poor defense mechanism
side-effects culminating in the loss of a
due to the cancer cells in the blood stream. In while concurring with the trial courts finding
that there was no negligence committed by
love[d] one caused the appellants so much
the case of Angelica, he had previously
the petitioner in the administration of
trouble, pain and suffering.
explained to her parents that after the
chemotherapy treatment to Angelica, found
surgical procedure, chemotherapy is
On this point therefore, [w]e find defendantimperative so that metastasis of these cancer that petitioner as her attending physician
appellee Dr. Rubi Li negligent which would
failed to fully explain to the respondents all
cells will hopefully be addressed. He referred
entitle plaintiffs-appellants to their claim for
the known side effects of chemotherapy. The
the patient to petitioner because he felt that
damages.
appellate court stressed that since the
petitioner is a competent
respondents have been told of only three side
oncologist. Considering that this type of
xxxx
cancer is very aggressive and will metastasize effects of chemotherapy, they readily
consented thereto. Had petitioner made
early, it will cause the demise of the patient
should there be no early intervention (in this known to respondents those other side effects WHEREFORE, the instant appeal is hereby
GRANTED. Accordingly, the assailed decision
case, the patient developed sepsis which which gravely affected their child -- such as
is hereby modified to the extent that
caused her death). Cancer cells in the blood carpo-pedal spasm, sepsis, decrease in the
defendant-appellee Dr. Rubi Li is ordered to
blood
platelet
count,
bleeding,
infections
and
cannot be seen by the naked eye nor
pay the plaintiffs-appellants the following
eventual death -- respondents could have
detected through bone scan. On crossamounts:
decided differently or adopted a different
examination, Dr. Tamayo stated that of the
more than 50 child patients who had

[46]

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 allknowing/omnipotent. While the theoretical
side effects of chemotherapy were explained
by her to the respondents, as these should be
known to a competent doctor,petitioner
cannot possibly predict how a particular
patients genetic make-up, state of mind,
general health and body constitution would
respond to the treatment. These are obviously
dependent on too many known, unknown and
immeasurable variables, thus requiring that
Angelica be, as she was, constantly and
closely monitored during the
treatment. Petitioner asserts that she did
everything within her professional
competence to attend to the medical needs of
Angelica.

LEGAL MEDICINE 45
Citing numerous trainings, distinctions and
achievements in her field and her current
position as co-director for clinical affairs of the
Medical Oncology, Department of Medicine of
SLMC, petitioner contends that in the absence
of any clear showing or proof, she cannot be
charged with negligence in not informing the
respondents all the side effects of
chemotherapy or in the pre-treatment
procedures done on Angelica.
As to the cause of death, petitioner insists
that Angelica did not die of platelet depletion
but of sepsis which is a complication of the
cancer itself. Sepsis itself leads to bleeding
and death. She explains that the response
rate to chemotherapy of patients with
osteosarcoma is high, so much so that
survival rate is favorable to the
patient.Petitioner then points to some
probable consequences if Angelica had not
undergone chemotherapy. Thus, without
chemotherapy, other medicines and
supportive treatment, the patient might have
died the next day because of massive
infection, or the cancer cells might have
spread to the brain and brought the patient
into a coma, or into the lungs that the patient
could have been hooked to a respirator, or
into her kidneys that she would have to
undergo dialysis. Indeed, respondents could
have spent as much because of these
complications. The patient would have been
deprived of the chance to survive the ailment,
of any hope for life and her quality of life
surely compromised. Since she had not been
shown to be at fault, petitioner maintains that
the CA erred in holding her liable for the
damages suffered by the respondents.[50]
The issue to be resolved is whether the
petitioner can be held liable for failure to fully
disclose serious side effects to the parents of
the child patient who died while undergoing
chemotherapy, despite the absence of finding
that petitioner was negligent in administering
the said treatment.

The petition is meritorious.

petitioner liable for her failure to inform the

respondents on all possible side effects of
chemotherapy before securing their consent
to the said treatment.

physicians rather than one which physicians

may or may not impose upon themselves.
[57]
The type of lawsuit which has been called
The scope of disclosure is premised on the
medical malpractice or, more appropriately,
fact that patients ordinarily are persons
medical negligence, is that type of claim
unlearned in the medical sciences. Proficiency
which a victim has available to him or her to
The doctrine of informed consent within the
in diagnosis and therapy is not the full
redress a wrong committed by a medical
context of physician-patient relationships
measure of a physicians responsibility. It is
professional which has caused bodily harm. In goes far back into English common law. As
also his duty to warn of the dangers lurking in
order to successfully pursue such a claim, a
early as 1767, doctors were charged with the
the proposed treatment and to impart
patient must prove that a health care
tort of battery (i.e., an unauthorized physical
information which the patient has every right
provider, in most cases a physician, either
contact with a patient) if they had not gained
to expect. Indeed, the patients reliance upon
failed to do something which a reasonably
the consent of their patients prior to
the physician is a trust of the kind which
prudent health care provider would have
performing a surgery or procedure. In
traditionally has exacted obligations beyond
done, or that he or she did something that a
the United States, the seminal case
those associated with armslength
reasonably prudent provider would not have
was Schoendorff v. Society of New York
transactions.[58] The physician is not expected
[53]
done; and that that failure or action caused
Hospital
which involved unwanted
to give the patient a short medical education,
injury to the patient.[51]
treatment performed by a doctor. Justice
the disclosure rule only requires of him a
Benjamin Cardozos oft-quoted opinion upheld reasonable explanation, which means
This Court has recognized that medical
the basic right of a patient to give consent to
generally informing the patient in
negligence cases are best proved by opinions any medical procedure or treatment: Every
nontechnical terms as to what is at stake; the
of expert witnesses belonging in the same
human being of adult years and sound mind
therapy alternatives open to him, the goals
general neighborhood and in the same
has a right to determine what shall be done
expectably to be achieved, and the risks that
general line of practice as defendant
with his own body; and a surgeon who
may ensue from particular treatment or no
physician or surgeon. The deference of courts performs an operation without his patients
treatment.[59] As to the issue of demonstrating
to the expert opinion of qualified physicians
consent, commits an assault, for which he is
what risks are considered material
stems from the formers realization that the
liable in damages.[54] From a purely ethical
necessitating disclosure, it was held that
latter possess unusual technical skills which
norm, informed consent evolved into a
experts are unnecessary to a showing of the
laymen in most instances are incapable of
general principle of law that a physician has a materiality of a risk to a patients decision on
intelligently evaluating, hence the
duty to disclose what a reasonably prudent
treatment, or to the reasonably, expectable
indispensability of expert testimonies.[52]
physician in the medical community in the
effect of risk disclosure on the decision. Such
exercise of reasonable care would disclose to
unrevealed risk that should have been made
In this case, both the trial and appellate
his patient as to whatever grave risks of injury known must further materialize, for otherwise
courts concurred in finding that the alleged
might be incurred from a proposed course of
the omission, however unpardonable, is
negligence of petitioner in the administration
treatment, so that a patient, exercising
without legal consequence. And, as in
of chemotherapy drugs to respondents child
ordinary care for his own welfare, and faced
malpractice actions generally, there must be
was not proven considering that Drs. Vergara
with a choice of undergoing the proposed
a causal relationship between the physicians
and Balmaceda, not being oncologists or
treatment, or alternative treatment, or none
failure to divulge and damage to the patient.
cancer specialists, were not qualified to give
at all, may intelligently exercise his judgment [60]
expert opinion as to whether petitioners lack
by reasonably balancing the probable risks
of skill, knowledge and professional
against the probable benefits.[55]
Reiterating the foregoing
competence in failing to observe the standard
considerations, Cobbs v. Grant[61] deemed it
of care in her line of practice was the
Subsequently, in Canterbury v. Spence[56] the
as integral part of physicians overall
proximate cause of the patients
court observed that the duty to disclose
obligation to patient, the duty of reasonable
death. Furthermore, respondents case was
should not be limited to medical usage as to
disclosure of available choices with respect to
not at all helped by the non-production of
arrogate the decision on revelation to the
proposed therapy and of dangers inherently
medical records by the hospital (only the
physician alone. Thus, respect for the patients and potentially involved in each. However, the
biopsy result and medical bills were submitted right of self-determination on particular
physician is not obliged to discuss relatively
to the court). Nevertheless, the CA found
therapy demands a standard set by law for
minor risks inherent in common procedures

LEGAL MEDICINE 46
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 selfdecision 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 lifethreatening illness. On the other hand, it is
difficult to give credence to respondents claim
that petitioner told them of 95% chance of
recovery for their daughter, as it was unlikely
for doctors like petitioner who were dealing
with grave conditions such as cancer to have
falsely assured patients of chemotherapys
success rate.Besides, informed consent laws
in other countries generally require only a
reasonable explanation of potential harms, so

specific disclosures such as statistical data,

may not be legally necessary.[65]
The element of ethical duty to disclose
material risks in the proposed medical
treatment cannot thus be reduced to one
simplistic formula applicable in all
instances.Further, in a medical malpractice
action based on lack of informed consent, the
plaintiff must prove both the duty and the
breach of that duty through expert testimony.
[66]
Such expert testimony must show the
customary standard of care of physicians in
the same practice as that of the defendant
doctor.[67]
In this case, the testimony of Dr. Balmaceda
who is not an oncologist but a Medical
Specialist of the DOHs Operational and
Management Services charged with receiving
complaints against hospitals, does not qualify
as expert testimony to establish the standard
of care in obtaining consent for chemotherapy
treatment. In the absence of expert testimony
in this regard, the Court feels hesitant in
defining the scope of mandatory disclosure in
cases of malpractice based on lack of
informed consent, much less set a standard of
disclosure that, even in foreign jurisdictions,
has been noted to be an evolving one.
As society has grappled with the juxtaposition
between personal autonomy and the medical
profession's intrinsic impetus to cure, the law
defining adequate disclosure has undergone a
dynamic evolution. A standard once guided
solely by the ruminations of physicians is now
dependent on what a reasonable person in
the patients position regards as
significant. This change in perspective is
especially important as medical
breakthroughs move practitioners to the
cutting edge of technology, ever encountering
new and heretofore unimagined treatments
for currently incurable diseases or ailments.
An adaptable standard is needed to account
for this constant progression. Reasonableness
analyses permeate our legal system for the

very reason that they are determined by

social norms, expanding and contracting with
the ebb and flow of societal evolution.

As we progress toward the twenty-first

century, we now realize that the legal
standard of disclosure is not subject to
construction as a categorical
imperative.Whatever formulae or processes
we adopt are only useful as a foundational
starting point; the particular quality or
quantity of disclosure will remain
inextricably bound by the facts of each
case. Nevertheless, juries that ultimately
determine whether a physician properly
informed a patient are inevitably guided by
what they perceive as the common
expectation of the medical consumera
reasonable person in the patients position
when deciding to accept or reject a
recommended medical 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.
MEDICAL WITNESS AND EVIDENCE
G.R. No. 194259

March 16, 2011

PEOPLE OF THE PHILIPPINES, PlaintiffAppellee,

vs.
JIMMY ALVERIO, Accused-Appellant.

LEGAL MEDICINE 47
DECISION

accused Alverio, Henry Toledo (Toledo), and

Lily Toledo as its witnesses.

not tell him anything. Upon reaching home,

AAA told her parents about what happened.14

The Prosecutions Version of Facts

Version of the Defense

In the afternoon of June 2, 2002, AAA, along

with her friends Belen Sabanag (Sabanag) and
Aileen Sinangote (Sinangote), went to the
house of her grandmother to attend a dance
event.5 At around 8:30 in the evening, they
proceeded to the dance hall because the
dance would start at around 9 oclock.6 During
the dance, Sabanag and Sinangote danced
with Alverio but AAA did not.7 At 2 oclock in
the morning of June 3, 2002, AAA noticed that
her friends were no longer at the dance so
she decided to go home to her grandmothers
house.8

Alverios defense, on the other hand, was

confined to his denial of the accusation and
an alibi, to wit:

VELASCO, JR., J.:

The Case
This is an appeal from the March 25, 2010
Decision1 of the Court of Appeals (CA) in CAG.R. CR-H.C. No. 00020, which affirmed the
August 26, 2004 Decision in Criminal Case No.
CB-02-195 of the Regional Trial Court (RTC),
Branch 37 in Caibiran, Naval, Biliran.2 The RTC
convicted accused Jimmy Alverio (Alverio) of
rape.
The Facts
The charge against Alverio stemmed from the
following Information:
That on or about the 3rd day of June, 2002, at
about 2:00 oclock early dawn, more or less,
at [PPP],3 Philippines, and within the
jurisdiction of this Honorable Court, while
[AAA] was on her way to her grandmothers
house from the benefit dance, herein accused,
a cousin of herein complainant, with lewd
designs, and by means of force and
intimidation, get hold of her arm and did then
and there drag her to the back of the
barangay hall, by holding her hair and forcibly
laid her to the ground, willfully, unlawfully and
feloniously poked her a short bladed weapon
known as pisao forcibly took off her pants
and panty and succeeded in having carnal
knowledge with her against her will to her
damage and prejudice.
Contrary to law.4

As she was nearing the barangay hall, Alverio

suddenly appeared and took hold of AAA. She
tried to resist him but he was too strong and
he managed to pull her away. AAA started to
cry while she was being dragged towards the
back of the barangay hall.9 There, Alverio held
her hair, undressed her, and started to kiss
her.10 AAA kept on resisting and even punched
Alverio after he kissed her, at which point,
Alverio told her that it was painful and that he
might retaliate if she continued.11 This caused
AAA to stop resisting and Alverio then
proceeded to insert his penis in her vagina
repeatedly.12
After having carnal knowledge with her,
Alverio stood up and put on his clothes. He
warned AAA that if she told anyone about
what happened, he will kill her.13 After
threatening her, he left.

On July 3, 2003, Alverio, with the assistance of During this entire incident, Alverio was armed
his counsel de oficio, was arraigned, and he
with a knife which he used to poke AAAs side.
pleaded "not guilty" to the charge against
him. After the pre-trial, trial on the merits
Dazed, AAA could not muster enough strength
ensued.
to go home. She just sat on the road beside
the barangay hall until 5 oclock in the
During the trial, the prosecution offered the
morning when her Uncle Intoy passed by. He
sole testimony of the private complainant. On brought her home to her parents but she did
the other hand, the defense presented

Sometime around 7:30 in the evening of June

2, 2002, Alverio recalled that he was in the
barangay chapel with his friend, Toledo,
waiting for the dance to begin.15 The dance
hall was just adjacent to the barangay chapel.
At 8:30 in the evening, the dance started. He
danced with some persons whose names he
could no longer recall.16But he categorically
remembered that he did not see AAA in the
dance area.17
At 12:00 midnight, Alverio and Toledo walked
home to Toledos house, where Alverio was
staying.18 On their way home, they passed by
the barangay hall.19 Upon reaching home,
they slept and woke up at 5:30 in the morning
of June 3, 2002.20

On appeal to the CA, Alverio disputed the trial

courts finding of his guilt beyond reasonable
doubt of the crime charged. He argued that
the presumption of innocence should prevail
especially considering that the prosecution
only had a single testimony to support the
charge of rape.
Ruling of the Appellate Court
On March 25, 2010, the CA affirmed the
judgment of the RTC. The dispositive portion
of the CA Decision reads:
IN LIGHT OF ALL THE FOREGOING, the
Decision of the Regional Trial Court, Branch
37, Caibiran, Naval, Biliran in Criminal Case
No. CB-02-195 convicting the accusedappellant is AFFIRMED with MODIFICATION in
that he is also hereby adjudged liable to pay
the victim the amount of Php50,000.00 as
moral damages.
His penalty of reclusion perpetua and the
award of civil indemnity of Php50,000.00
stands.

In his testimony, Alverio admitted that he and Costs against the accused-appellant.
AAA are cousins, their mothers being sisters. 21
SO ORDERED.25
His testimony was corroborated by
The Issue
Toledo22 and Toledos mother, Lily Toledo.23
Ruling of the Trial Court
After trial, the RTC convicted Alverio. The
dispositive portion of its August 26, 2004
Decision reads:
WHEREFORE, premises considered, judgment
is hereby rendered finding the accused JIMMY
ALVERIO guilty beyond reasonable doubt of
the crime of rape. With no aggravating or
mitigating circumstance, he is sentenced to
the lesser penalty of reclusion perpetua; to
indemnify [AAA] Fifty Thousand (P50,000.00)
Pesos; and to pay the costs.
SO ORDERED.24

Alverio now comes before this Court with the

lone assignment of error contending that
"[t]he trial court gravely erred in finding the
accused-appellant guilty beyond reasonable
doubt of rape."26
The Courts Ruling
We sustain Alverios conviction.
In his Brief, Alverio argues that the trial court
should have taken the lone testimony of the
complainant with caution and that the
testimony should have been weighed
carefully, taking into consideration the
constitutional precept that in all criminal

LEGAL MEDICINE 48
prosecutions, the accused must be presumed
innocent unless the contrary is proved.
Alverio raises three (3) grounds in support of
his argument. First, he assails the trial court
for giving credence to the sole testimony of
the victim. He claims that the prosecution
should have presented other witnesses to
corroborate the testimony of the victim.
Second, he contends that the medical
certificate presented as evidence was not
testified to by the signatory himself and
should therefore not be considered as
corroborative evidence. Lastly, he claims that
the trial court gravely erred in convicting him
of the crime of rape for failure of the
prosecution to prove his guilt beyond
reasonable doubt.
After a careful perusal of the records of this
case, however, the Court is satisfied that the
prosecutions evidence sufficiently
established Alverios guilt with moral
certainty.
In People v. Malate,27 We reiterated the
principles with which courts are guided in
determining the guilt or innocence of the
accused in rape cases, viz:

victims testimony is credible, or clear and

convincing or sufficient to prove the elements
of the offense beyond a reasonable
doubt."28 As such, appellate courts generally
do not disturb the findings of the trial court
with regard to the assessment of the
credibility of witnesses,29 the reason being
that the trial court has the "unique
opportunity to observe the witnesses first
hand and note their demeanor, conduct and
attitude under grilling examination." 30 More
importantly, courts generally give full
credence to the testimony of a complainant
for rape, especially one who is only a minor.31
The exceptions to this rule are when the trial
courts findings of facts and conclusions are
not supported by the evidence on record, or
when certain facts of substance and value
likely to change the outcome of the case have
been overlooked by the lower court, or when
the assailed decision is based on a
misapprehension of facts.32However, this
Court finds none of these exceptions present
in the instant case.
The victim testified in a steadfast and
straightforward manner, to wit:
PROS. JOCOBO:

x x x (1) an accusation of rape can be made

with facility and while the accusation is
difficult to prove, it is even more difficult for
the person accused, though innocent, to
disprove the charge; (2) considering that, in
the nature of things, only two persons are
usually involved in the crime of rape, the
testimony of the complainant should be
scrutinized with great caution; and (3) the
evidence of the prosecution must stand or fall
on its own merit, and cannot be allowed to
draw strength from the weakness of the
evidence for the defense.
Moreover, in that same case, this Court held
that "in cases involving the prosecution for
forcible rape x x x corroboration of the
victims testimony is not a necessary
condition to a conviction for rape where the

Q Now can you tell now [since] there are no

more persons around except you and the
accused can tell to the Court, or were you
able to reach in the house of your lola?
A When I was walking I was suddenly held by
Jimmy Alverio.
Q Where were you already walking did Jimmy
Alverio suddenly held you?
A Near Brgy. Hall of Brgy. Maurang.
Q What happened next after you were held by
Jimmy Alverio near the brgy. hall of Maurang?
A He tried to pull me but then I resisted, and
Jimmy insisted by pulling me until I cried.

Q Then even if you were already crying what

next happened?
A He drag me towards the back of the Brgy
hall.
Q Did you in fact drag to the brgy. hall?
A Yes sir.
Q While you were at the back of the brgy. hall
can you tell this Honorable Court what
happened?
A [He] held my hair and he tried to undressed
me but I resisted.
Q Since he tried to undressed [sic] you and
you were resisted [sic] was he able or was he
successful in undressing you?
A Yes sir.
Q Despite of your resistance?
A Yes sir.
Q When you were already undressed what
happened, can you tell this to the Honorable
Court?
A He tried kissed [sic] me several times and I
resisted and I boxed him.
Q After you have boxed him after kissing you
what next happened?
A He said that is painful I might retaliate with
you.
Q After hearing on that what did Jimmy had
done to you?

ATTY. SABANDAL:
I would like to request Your Honor that the
prosecution would discontinue and
encouraging very much because its up to the
witness to answer Your Honor the question.
Since previously it would [seem] that the
witness could be able to answer only after so
much question
PROS. JOBOCO:
Your Honor please according to the circular on
examining minors we will to give full support
and we to understand the minors especially if
victims of minor cases.
ATTY. SABANDAL:
It was not established that she is a minor,
Your Honor.
COURT:
She is 14 years old.
FROM THE COURT:
Q Now you said that you were undressed by
Jimmy Alverio, do you mean to say that you
were already naked when you said
undressed?
A Yes sir.
Q And when Jimmy Alverio kissing you several
times were you already naked?
A Yes sir.
xxxx

A I just cried I did not mind him anymore.

Q What did Jimmy do more while he was

kissing several times and you were naked?

Q How about Jimmy what was he doing?

COURT INTERPRETER:

A He continued kissing me.

At this juncture Your Honor the witness is

crying.

Q After kissing you what next follow?

LEGAL MEDICINE 49
COURT:

COURT:

Q And when you were naked was Jimmy also

naked?

How many times did Jimmy insert his penis to

your vagina?

A Yes sir.

A three (3) times.

xxxx

Q After the three (3) times intercourse with

you what did Jimmy do to you?

Q You were naked and Jimmy Alverio was also

naked and Jimmy Alverio was kissing you so
many times, what more did Jimmy Alverio do
to you?

A He stood up and he dressed himself and he

left me.
Q Did he not leave words to you?

A He inserted his penis.

Q What were your position, were you
standing, or you were lying down?
A Lying position.

A He told me that if you will told anybody in

your family, your mother and your father I will
kill you.
Q Was she have arm [sic] at that time of the
incident?

Q Or something was placed on the ground?

A Yes sir.
A On the ground.
Q What arm or firearm or what?
COURT:
A a knife.
Alright Pros. Joboco you can proceed the
continuation of your direct examination.

Q Did he use that in forcing you to do the

sexual acts?

PROS. JOBOCO:
A Yes sir.
Q When you said when Jimmy Alverio was
inserted his penis where was inserted?

Q By what means did he threatened you?

A to my vagina.

A He poke it at my side.

Q And when Jimmy inserted his penis to your

vagina what did you feel?

Q Now what would you mean, he poke it at

my side, what did you do?

A I felt pain.

A I remain there crying.33

Q And when you felt pain what did you do?

It is strikingly clear from the above transcript

that AAAs testimony was very coherent and
candid. Thus, We find no reason to overturn
the findings of the trial court.

A I kept on crying.
PROS. JOBOCO:
I think that would be all Your Honor I think the
witness already crying.

In addition, Alverio submits that although the

medical certificate was presented as
evidence, its contents were never testified to

by the signatory himself and, as such, cannot

be considered as corroborative of the claim of
the victim that she was raped.

MODIFICATION. As modified, the ruling of the

trial court should read as follows:

WHEREFORE, premises considered, judgment

is hereby rendered finding the accused JIMMY
ALVERIO guilty beyond reasonable doubt of
the crime of rape. With no aggravating or
mitigating circumstance, he is sentenced to
the lesser penalty of reclusion perpetua; to
pay [AAA] Fifty Thousand (P50,000.00) Pesos
as civil indemnity, Fifty Thousand
(P50,000.00) as moral damages and Thirty
The elements needed to prove the crime of
Thousand (P30,000.00) as exemplary
rape under paragraph 1(a) of Article 266-A of
damages with interest of six percent (6%) per
the Revised Penal Code are: (1) the offender is annum on all awards of damages from the
a man; (2) the offender had carnal knowledge finality of judgment until fully paid; and to pay
of a woman; and (3) the act is accomplished
the costs. SO ORDERED.
by using force or intimidation. All these
elements were sufficiently proved by the
[G.R. No. 130612. May 11, 1999]
prosecution. The testimony of AAA
overwhelmingly proves that Alverio raped her PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs. BERNARDINO DOMANTAY, @
with the use of force and intimidation.
JUNIOR OTOT, accused-appellant.
Furthermore, Alverios defense of alibi cannot
DECISION
stand versus the positive identification of
AAA. Nothing is more settled in criminal law
MENDOZA, J.:
jurisprudence than the rule that alibi and
denial cannot prevail over the positive and
categorical testimony and identification of the This case is here on appeal from the
decision[1] of the Regional Trial Court of
accused by the complainant.36
Dagupan City (Branch 57), finding accusedappellant guilty of rape with homicide and
Accordingly, We find that the prosecution has
sentencing him to death, and to indemnify the
discharged its burden of proving the guilt of
heirs of the victim in the amount
Alverio beyond reasonable doubt.
of P480,000.00, and to pay the costs.
As to the award of damages, the CA was
The facts hark back to the afternoon of
correct in awarding PhP 50,000 as moral
October 17, 1996, at around 4 oclock, when
damages without need of proof. However, in
line with current jurisprudence,37 an additional the body of six-year old Jennifer Domantay
was found sprawled amidst a bamboo grove
award of PhP 30,000 as exemplary damages
should likewise be given, as well as interest of in Guilig, Malasiqui, Pangasinan. The childs
body bore several stab wounds. Jennifer had
six percent (6%) per annum on all damages
been missing since lunch time.
awarded from the finality of judgment until
Such argument, however, cannot prosper.
Medical evidence is dispensable and merely
corroborative in proving the crime of rape.
Besides, a medical certificate is not even
necessary to prove the crime of rape.34 The
gravamen of rape is carnal knowledge of a
woman through force and intimidation.35

fully paid.
WHEREFORE, the appeal is DENIED. The CA
Decision in CA-G.R. CR-H.C. No. 00020 finding
accused-appellant Jimmy Alverio guilty of the
crime charged is AFFIRMED with

The medical examination conducted the

following day by Dr. Ma. Fe Leticia Macaranas,
the rural health physician of Malasiqui,
showed that Jennifer died of multiple organ
failure and hypovolemic shock secondary to

LEGAL MEDICINE 50
38 stab wounds at the back. Dr. Macaranas
found no lacerations or signs of inflammation
of the outer and inner labia and the vaginal
walls of the victims genitalia, although the
vaginal canal easily admitted the little finger
with minimal resistance. Noting possible
commission of acts of lasciviousness, Dr.
Macaranas recommended an autopsy by a
medico-legal expert of the NBI.[2]
The investigation by the Malasiqui police
pointed to accused-appellant Bernardino
Domantay, a cousin of the victims
grandfather, as the lone suspect in the
gruesome crime. At around 6:30 in the
evening of that day, police officers
Montemayor, de la Cruz, and de Guzman of
the Malasiqui Philippine National Police (PNP)
picked up accused-appellant at the Malasiqui
public market and took him to the police
station where accused-appellant, upon
questioning by SPO1 Antonio Espinoza,
confessed to killing Jennifer Domantay. He
likewise disclosed that at around 3:30 that
afternoon, he had given the fatal weapon
used, a bayonet, to Elsa and Jorge Casingal,
his aunt and uncle respectively, in Poblacion
Sur, Bayambang, Pangasinan. The next day,
October 18, 1996, SPO1 Espinoza and another
policeman took accused-appellant to
Bayambang and recovered the bayonet from
a tricycle belonging to the Casingal
spouses. The police officers executed a
receipt to evidence the confiscation of the
weapon.[3]
On the basis of the post-mortem findings of
Dr. Macaranas, SPO4 Juan Carpizo, the
Philippine National Police chief investigator at
Malasiqui, filed, on October 21, 1996, a
criminal complaint for murder against
accused-appellant before the Municipal Trial
Court (MTC) of Malasiqui. On October 25,
1996, Dr. Ronald Bandonill, medico-legal
expert of the NBI, performed an autopsy on
the embalmed body of Jennifer. The result of
his examination of the victims genitalia
indicated that the childs hymen had been

completely lacerated on the right side. Based

on this finding, SPO4 Carpizo amended the
criminal complaint against accused-appellant
to rape with homicide. Subsequently, the
following information was filed:[4]
That on or about the 17th day of October,
1996, in the afternoon, in barangay Guilig,
Municipality of Malasiqui, province of
Pangasinan, Philippines and within the
jurisdiction of this Honorable Court, the
above-named accused, with lewd design and
armed with a bayonnete, did then and there,
wilfully, unlawfully and feloniously have
sexual intercourse with Jennifer Domantay, a
minor of 6 years old against her will and
consent, and on the same occasion, the said
accused with intent to kill, then and there,
wilfully, unlawfully and feloniously stab with
the use of a bayonnete, the said Jennifer
Domantay, inflicting upon her multiple stab
wounds, which resulted to her death, to the
damage and prejudice of her heirs.
At the trial, the prosecution presented seven
witnesses, namely, Edward, Jiezl, Lorenzo, all
surnamed Domantay, Joselito Mejia, Antonio
Espinoza, Celso Manuel, and Dr. Ronald
Bandonill, to establish its charge that
accused-appellant had raped and killed
Jennifer Domantay.
Edward Domantay testified that in the
morning of October 17, 1996, accusedappellant and his two brothers-in-law, Jaime
Caballero and Daudencio Macasaeb, had a
round of drinks in front of the latters house in
Guilig, Malasiqui, Pangasinan. Edward
Domantay said that he was in front of
Macasaebs house, tending to some pigeons in
his yard.[5] After the group had consumed
several bottles of San Miguel gin, accusedappellant gave money to Edward Domantay
and asked him to buy two bottles of gin and a
bottle of Sprite.[6] Edward said he joined the
group and sat between Daudencio Macasaeb
and accused-appellant.[7] Edward said that
accused-appellant, who, apparently had one

too many then, rolled up his shirt and said: No

diad Antipolo tan L[i]pa et walay massacre,
diad Guilig wala, walay massacren kod dia,
walay onakis-akis (In Antipolo and Lipa, there
were massacres; here in Guilig, there will also
be a massacre. I will massacre somebody
here, and they will cry and cry). Edward
Domantay saw that tucked in the left side of
accused-appellants waistline was a bayonet
without a cover handle.[8] It was not the first
time that Edward had seen accused-appellant
with the knife as the latter usually carried it
with him.[9]
Jiezl Domantay, 10, likewise testified. She said
that, at about 2 oclock in the afternoon on
October 17, 1996, she and four other children
were playing in front of their house in Guilig,
Malasiqui, Pangasinan. Jiezl saw accusedappellant and Jennifer Domantay walking
towards the bamboo grove of Amparo
Domantay where Jennifers body was later
found. Accused-appellant was about two
meters ahead of Jennifer. The bamboo grove
was about 8 to 10 meters from the house of
Jiezl Domantay.[10]
Lorenzo Domantay, a relative of the victim,
corroborated Jiezls testimony that accusedappellant had gone to Amparo Domantays
bamboo grove in the afternoon of October 17,
1996.Lorenzo said that that afternoon, on his
way to his farm, he saw accused-appellant
about 30 meters away, standing at the spot in
the bamboo grove where Jennifers body was
later found.Accused-appellant appeared
restless and worried as he kept looking
around. However, as Lorenzo was in a hurry,
he did not try to find out why accusedappellant appeared to be nervous.[11]
Prosecution witness Joselito Mejia, a tricycle
driver, said that, in the afternoon of October
17, 1996, he was about to take his lunch at
home in Alacan, a neighboring barangay
about half a kilometer from Guilig, when
accused-appellant implored Mejia to take him
to Malasiqui at once. Mejia told accused-

appellant that he was going to take his lunch

first, but the latter pleaded with him, saying
they will not be gone for long. Mejia,
therefore, agreed. Mejia noticed that accusedappellant was nervous and afraid. Accusedappellant later changed his mind. Instead of
going to the town proper, he alighted near the
Mormons church, outside Malasiqui.[12]
In addition, the prosecution presented SPO1
Antonio Espinoza and Celso Manuel who
testified that, on separate occasions, accusedappellant had confessed to the brutal killing of
Jennifer Domantay.
SPO1 Espinoza testified that he investigated
accused-appellant after the latter had been
brought to the Malasiqui police station in the
evening of October 17, 1996. Before he
commenced his questioning, he apprised
accused-appellant of his constitutional right to
remain silent and to have competent and
independent counsel, in English, which was
later translated into Pangasinense.
[13]
According to SPO1 Espinoza, accusedappellant agreed to answer the questions of
the investigator even in the absence of
counsel and admitted killing the
victim. Accused-appellant also disclosed the
location of the bayonet he used in killing the
victim.[14] On cross-examination, Espinoza
admitted that at no time during the course of
his questioning was accused-appellant
assisted by counsel. Neither was accusedappellants confession reduced in writing.
[15]
Espinozas testimony was admitted by the
trial court over the objection of the defense.
Celso Manuel, for his part, testified that he is
a radio reporter of station DWPR, an AM
station based in Dagupan City. He covers the
third district of Pangasinan, including
Malasiqui.Sometime in October 1996, an
uncle of the victim came to Dagupan City and
informed the station about Jennifer
Domantays case.[16] On October 23, 1996,
Manuel went to Malasiqui to interview
accused-appellant who was then detained in

LEGAL MEDICINE 51
the municipal jail. He described what
transpired during the interview thus:[17]
PROS. QUINIT:
Q Did you introduce yourself as a media
practitioner?
A Yes, sir.
Q How did you introduce yourself to the
accused?
A I showed to Bernardino Domantay alias
Junior Otot my I.D. card and I presented
myself as a media practitioner with my tape
recorder [in] my hand, sir.
Q What was his reaction to your request for
an interview?
A He was willing to state what had happened,
sir.
Q What are those matters which you brought
out in that interview with the accused
Bernardino Domantay alias Junior Otot?
A I asked him what was his purpose for
human interests sake as a reporter, why did
he commit that alleged crime. And I asked
also if he committed the crime and he
answered yes. Thats it.

Opo sabi niya, Ibig mo bang sabihin Jun, ikaw

ang pumatay kay Jennifer?, Ako nga po. The
[l]ast part of my interview, Kung nakikinig ang
mga magulang ni Jennifer, ano ang gusto
mong iparating?, kung gusto nilang
makamtan ang hustisya ay tatanggapin
ko. That is what he said, and I also asked
Junior Otot, what was his purpose, and he
said, it was about the boundary dispute, and
he used that little girl in his revenge.
On cross-examination, Manuel explained that
the interview was conducted in the jail, about
two to three meters away from the police
station. An uncle of the victim was with him
and the nearest policemen present were
about two to three meters from him, including
those who were in the radio room.[18] There
was no lawyer present. Before interviewing
accused-appellant, Manuel said he talked to
the chief of police and asked permission to
interview accused-appellant.[19] On
questioning by the court, Manuel said that it
was the first time he had been called to
testify regarding an interview he had
conducted.[20] As in the case of the testimony
of SPO1 Espinoza, the defense objected to the
admission of Manuels testimony, but the
lower court allowed it.

Dr. Bandonill, the NBI medico-legal who

conducted an autopsy of the victim on
October 25, 1996, testified that Jennifer
Domantay died as a result of the numerous
....
stab wounds she sustained on her back,[21] the
average depth of which was six inches.[22] He
PROS. QUINIT:
opined that the wounds were probably caused
by a pointed sharp-edged instrument.[23] He
Q You mentioned about accused admitting to
you on the commi[ssion] of the crime, how did also noted contusions on the forehead, neck,
and breast bone of the victim.[24] As for the
you ask him that?
results of the genital examination of the
victim, Dr. Bandonill said he found that the
A I asked him very politely.
laceration on the right side of the hymen was
caused within 24 hours of her death. He
Q More or less what have you asked him on
added that the genital area showed signs of
that particular matter?
inflammation.[25]
A I asked Junior Otot, Bernardino Domantay,
Kung pinagsisisihan mo ba ang iyong ginawa?

Pacifico Bulatao, the photographer who took

the pictures of the scene of the crime and of
the victim after the latters body was brought
to her parents house, identified and
authenticated the five pictures (Exhibits A, B,
C, D, and E) offered by the prosecution.
The defense then presented accusedappellant as its lone witness. Accusedappellant denied the allegations against him.
He testified he is an uncle of Jennifer
Domantay (he and her grandfather are
cousins) and that he worked as a janitor at
the Malasiqui Municipal Hall. He said that at
around 1 oclock in the afternoon of October
17, 1996, he was bathing his pigs outside the
house of his brother-in-law Daudencio
Macasaeb in Guilig, Malasiqui, Pangasinan. He
confirmed that Daudencio was then having
drinks in front of his (Macasaebs) house.
Accused-appellant claimed, however, that he
did not join in the drinking and that it was
Edward Domantay, whom the prosecution had
presented as witness, and a certain Jaime
Caballero who joined the party. He also
claimed that it was he whom Macasaeb had
requested to buy some more liquor, for which
reason he gave money to Edward Domantay
so that the latter could get two bottles of gin,
a bottle of Sprite, and a pack of cigarettes.
[26]
He denied Edward Domantays claim that
he (accused-appellant) had raised his shirt to
show a bayonet tucked in his waistline and
that he had said he would massacre someone
in Guilig.[27]
Accused-appellant also confirmed that, at
about 2 oclock in the afternoon, he went to
Alacan passing on the trail beside the bamboo
grove of Amparo Domantay. But he said he
did not know that Jennifer Domantay was
following him. He further confirmed that in
Alacan, he took a tricycle to Malasiqui. The
tricycle was driven by Joselito Mejia. He said
he alighted near the Mormon church, just
outside of the town proper of Malasiqui to
meet his brother. As his brother did not come,
accused-appellant proceeded to town and

reported for work. That night, while he was in

the Malasiqui public market, he was picked up
by three policemen and brought to the
Malasiqui police station where he was
interrogated by SPO1 Espinoza regarding the
killing of Jennifer Domantay. He denied having
owned to the killing of Jennifer Domantay to
SPO1 Espinoza. He denied he had a grudge
against the victims parents because of a
boundary dispute.[28] With respect to his
extrajudicial confession to Celso Manuel, he
admitted that he had been interviewed by the
latter, but he denied that he ever admitted
anything to the former.[29]
As already stated, the trial court found
accused-appellant guilty as charged. The
dispositive portion of its decision reads:[30]
WHEREFORE, in light of all the foregoing, the
Court hereby finds the accused, Bernardino
Domantay @ Junior Otot guilty beyond
reasonable doubt with the crime of Rape with
Homicide defined and penalized under Article
335 of the Revised Penal Code in relation and
as amended by Republic Act No. 7659 and
accordingly, the Court hereby sentences him
to suffer the penalty of death by lethal
injection, and to indemnify the heirs of the
victim in the total amount of Four Hundred
Eighty Thousand Pesos (P480,000.00),[31] and
to pay the costs.
SO ORDERED.
In this appeal, accused-appellant alleges that:
[32]

I. THE COURT A QUO ERRED IN APPRECIATING

THE EXTRAJUDICIAL CONFESSION[S] MADE BY
THE ACCUSED-APPELLANT.
II. THE COURT A QUO ERRED IN CONVICTING
THE ACCUSED DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND
REASONABLE DOUBT.
First. Accused-appellant contends that his
alleged confessions to SPO1 Antonio Espinoza

LEGAL MEDICINE 52
and Celso Manuel are inadmissible in
evidence because they had been obtained in
violation of Art. III, 12(1) of the Constitution
and that, with these vital pieces of evidence
excluded, the remaining proof of his alleged
guilt, consisting of circumstantial evidence, is
inadequate to establish his guilt beyond
reasonable doubt.[33]
Art. III, 12 of the Constitution in part provides:
(1) Any person under investigation for the
commission of an offense shall have the right
to be informed of his right to remain silent
and to have competent and independent
counsel preferably of his own choice. If the
person cannot afford the services of counsel,
he must be provided with one. These rights
cannot be waived except in writing and in the
presence of counsel.
....

brutal slaying of Jennifer Domantay. He was,

therefore, already under custodial
investigation and the rights guaranteed in Art.
III, 12(1) of the Constitution applied to him.
SPO1 Espinoza narrated what transpired
during accused-appellants interrogation:[38]
[I] interrogated Bernardino Domantay, prior to
the interrogation conducted to him, I informed
him of his constitutional right as follows; that
he has the right to remain silent; that he has
the right to a competent lawyer of his own
choice and if he can not afford [a counsel]
then he will be provided with one, and further
informed [him] that all he will say will be
reduced into writing and will be used the
same in the proceedings of the case, but he
told me that he will cooperate even in the
absence of his counsel; that he admitted to
me that he killed Jennifer Domantay, and he
revealed also the weapon used [and] where
he gave [it] to.

(3) Any confession or admission obtained in

violation of this section or section 17 hereof
shall be inadmissible in evidence.

But though he waived the assistance of

counsel, the waiver was neither put in writing
nor made in the presence of counsel. For this
reason, the waiver is invalid and his
This provision applies to the stage of custodial confession is inadmissible. SPO1 Espinozas
investigation, that is, when the investigation
testimony on the alleged confession of
is no longer a general inquiry into an unsolved accused-appellant should have been excluded
crime but starts to focus on a particular
by the trial court. So is the bayonet
person as a suspect.[34] R.A. No. 7438 has
inadmissible in evidence, being, as it were,
extended the constitutional guarantee to
the fruit of the poisonous tree. As explained
situations in which an individual has not been in People v. Alicando:[39]
formally arrested but has merely been invited
for questioning.[35]
. . . According to this rule, once the primary
Decisions[36] of this Court hold that for an
extrajudicial confession to be admissible, it
must satisfy the following requirements: (1) it
must be voluntary; (2) it must be made with
the assistance of competent and independent
counsel; (3) it must be express; and (4) it
must be in writing.
In the case at bar, when accused-appellant
was brought to the Malasiqui police station in
the evening of October 17, 1996,[37] he was
already a suspect, in fact the only one, in the

source (the tree) is shown to have been

unlawfully obtained, any secondary or
derivative evidence (the fruit) derived from it
is also inadmissible.Stated otherwise, illegally
seized evidence is obtained as a direct result
of the illegal act, whereas the "fruit of the
poisonous tree is at least once removed from
the illegally seized evidence, but it is equally
inadmissible. The rule is based on the
principle that evidence illegally obtained by
the State should not be used to gain other
evidence because the originally illegal

obtained evidencetaints all evidence

subsequently obtained.
We agree with the Solicitor General, however,
that accused-appellants confession to the
radio reporter, Celso Manuel, is
admissible. In People v. Andan,[40] the accused
in a rape with homicide case confessed to the
crime during interviews with the media. In
holding the confession admissible, despite the
fact that the accused gave his answers
without the assistance of counsel, this Court
said:[41]
[A]ppellants [oral] confessions to the
newsmen are not covered by Section 12(1)
and (3) of Article III of the Constitution. The
Bill of Rights does not concern itself with the
relation between a private individual and
another individual. It governs the relationship
between the individual and the State. The
prohibitions therein are primarily addressed to
the State and its agents.
Accused-appellant claims, however, that the
atmosphere in the jail when he was
interviewed was tense and intimidating and
was similar to that which prevails in a
custodial investigation.[42]We are not
persuaded. Accused-appellant was
interviewed while he was inside his cell. The
interviewer stayed outside the cell and the
only person besides him was an uncle of the
victim.Accused-appellant could have refused
to be interviewed, but instead, he agreed. He
answered questions freely and
spontaneously. According to Celso Manuel, he
said he was willing to accept the
consequences of his act.

Accused-appellant contends that it is . . . not

altogether improbable for the police
investigators to ask the police reporter
(Manuel) to try to elicit some incriminating
information from the accused.[44] This is pure
conjecture. Although he testified that he had
interviewed inmates before, there is no
evidence to show that Celso was a police beat
reporter. Even assuming that he was, it has
not been shown that, in conducting the
interview in question, his purpose was to elicit
incriminating information from accusedappellant. To the contrary, the media are
known to take an opposite stance against the
government by exposing official wrongdoings.
Indeed, there is no showing that the radio
reporter was acting for the police or that the
interview was conducted under circumstances
where it is apparent that accused-appellant
confessed to the killing out of fear. As already
stated, the interview was conducted on
October 23, 1996, 6 days after accusedappellant had already confessed to the killing
to the police.
Accused-appellants extrajudicial confession is
corroborated by evidence of corpus delicti,
namely, the fact of death of Jennifer
Domantay. In addition, the circumstantial
evidence furnished by the other prosecution
witnesses dovetails in material points with his
confession. He was seen walking toward the
bamboo grove, followed by the victim. Later,
he was seen standing near the bamboo grove
where the childs body was found. Rule 133 of
the Revised Rules on Evidence provides:

3. Extrajudicial confession, not sufficient

ground for conviction. An extrajudicial
Celso Manuel admitted that there were indeed confession made by an accused, shall not be
some police officers around because about
sufficient ground for conviction, unless
two to three meters from the jail were the
corroborated by evidence ofcorpus delicti.
police station and the radio room.[43] We do
not think the presence of the police officers
4. Evidence necessary in treason cases. No
exerted any undue pressure or influence on
person charged with treason shall be
accused-appellant and coerced him
convicted unless on the testimony of two
into giving his confession.
witnesses to the same overt act, or on
confession in open court.

LEGAL MEDICINE 53
Accused-appellant argues that it was
improbable for a brutal killing to have been
committed without the children who were
playing about eight to ten meters from
Amparo Domantays grove, where the crime
took place, having heard any commotion.
[45]
The contention has no merit. Accusedappellant could have covered the young
childs mouth to prevent her from making any
sound.In fact, Dr. Bandonill noted a five by
two inch (5 x 2) contusion on the left side of
the victims forehead, which he said could
have been caused by a hard blunt instrument
or by impact as her head hit the ground.
[46]
The blow could have rendered her
unconscious, thus precluding her from
shouting or crying.
Accused-appellant also contends that the
testimony of Jiezl Domantay contradicts that
of Lorenzo Domantay because while Jiezl said
she had seen accused-appellant walking
towards the bamboo grove, followed by the
victim, at around 2 oclock in the afternoon on
October 17, 1996, Lorenzo said he saw
accused-appellant standing near the bamboo
grove at about the same time.
These witnesses, however, did not testify
concerning what they saw at exactly the same
time. What they told the court was what they
had seen at around 2 oclock in the
afternoon. There could have been a difference
in time, however little it was, between the
time Jiezl saw accused-appellant and the
victim walking and the time Lorenzo saw
accused-appellant near the place where the
victims body was later found. Far from
contradicting each other, these witnesses
confirmed what each had said each one
saw. What is striking about their testimonies
is that while Jiezl said she saw accusedappellant going toward the bamboo grove
followed by the victim at around 2 oclock in
the afternoon on October 17, 1996, Lorenzo
said he had seen accused-appellant near the
bamboo grove at around that time. He
described accused-appellant as nervous and

worried. There is no reason to doubt the claim

of these witnesses. Lorenzo is a relative of
accused-appellant.There is no reason he
would testify falsely against the latter. Jiezl, on
the other hand, is also surnamed Domantay
and could also be related to accusedappellant and has not been shown to have
any reason to testify falsely against accusedappellant. At the time of the incident, she was
only 10 years old.
For the foregoing reasons, the Court is
convinced of accused-appellants guilt with
respect to the killing of the child. It is clear
that the prosecution has proven beyond
reasonable doubt that accused-appellant is
guilty of homicide. Art. 249 of the Revised
Penal Code provides:
Any person who, not falling within the
provisions of Article 246 [parricide] shall kill
another without the attendance of any of the
circumstances enumerated in the next
preceding article [murder], shall be deemed
guilty of homicide and be punished
by reclusion temporal.

wounds is not a test for determining whether

there was cruelty as an aggravating
circumstance.[49] The test . . . is whether the
accused deliberately and sadistically
augmented the victims suffering thus . . .
there must be proof that the victim was made
to agonize before the [the accused] rendered
the blow which snuffed out [her] life.[50] In this
case, there is no such proof of cruelty. Dr.
Bandonill testified that any of the major
wounds on the victims back could have
caused her death as they penetrated her
heart, lungs and liver, kidney and intestines.
[51]

Second. There is, however, no sufficient

evidence to hold accused-appellant guilty of
raping Jennifer Domantay. Art. 335 of the
Revised Penal Code, as amended, in part
provides:
ART. 335. When and how rape is
committed. Rape is committed by having
carnal knowledge of a woman under any of
the following circumstances.

But we think the lower court erred in finding

that the killing was committed with cruelty.
[48]
The trial court appears to have been led to
this conclusion by the number of wounds
inflicted on the victim. But the number of

....
REMARKS: 1) Findings at the genital area
indicate the probability of penetration of that
area by a hard, rigid instrument.
Hymenal laceration is not necessary to prove
rape;[55] neither does its presence prove its
commission. As held in People v. Ulili,[56] a
medical certificate or the testimony of the
physician is presented not to prove that the
victim was raped but to show that the latter
had lost her virginity. Consequently, standing
alone, a physicians finding that the hymen of
the alleged victim was lacerated does not
prove rape. It is only when this is corroborated
by other evidence proving carnal knowledge
that rape may be deemed to have been
established.[57]

This conclusion is based on the medically

accepted fact that a hymenal tear may be
caused by objects other than the male sex
2. When the woman is deprived of reason or
organ[58] or may arise from other causes.[59] Dr.
otherwise unconscious; and
Bandonill himself admitted this. He testified
that the right side of the victims hymen had
3. When the woman is under twelve years of
been completely lacerated while the
age or is demented.
surrounding genital area showed signs of
inflammation.[60] He opined that the laceration
As the victim here was six years old, only
had been inflicted within 24 hours of the
carnal knowledge had to be proved to
victims death and that the inflammation was
establish rape. Carnal knowledge is defined as due to a trauma in that area.[61] When asked
the act of a man having sexual intercourse or by the private prosecutor whether the
sexual bodily connections with a woman.
lacerations of the hymen could have been
[52]
For this purpose, it is enough if there was
caused by the insertion of a male organ he
even the slightest contact of the male sex
said this was possible. But he also said when
organ with the labia of the victims genitalia.
questioned by the defense that the
[53]
However, there must be proof, by direct or lacerations could have been caused by
indirect evidence, of such contact.
something blunt other than the male
organ. Thus, he testified:[62]
Dr. Ronald Bandonills report on the genital
examination he had performed on the
PROS. F. QUINIT:
deceased reads:[54]
1. By using force or intimidation;

The killing was committed with the generic

aggravating circumstance of abuse of
superior strength. The record shows that the
victim, Jennifer Domantay, was six years old
at the time of the killing. She was a child of
small build, 46 in height.[47] It is clear then
that she could not have put up much of a
defense against accused-appellants assault,
the latter being a fully grown man of 29
years. Indeed, the physical evidence supports
a finding of abuse of superior
strength: accused-appellant had a weapon,
while the victim was not shown to have had
any; there were 38 stab wounds; and all the
knife wounds are located at the back of
Jennifers body.

GENITAL EXAMINATION; showed a complete

laceration of the right side of the hymen. The
surrounding genital area shows signs of
inflamation.

LEGAL MEDICINE 54
Q Now, what might have caused the complete
laceration of the right side of the hymen,
doctor?

Q But this laceration may also have been

caused by other factors other the human
male organ, is that correct?

A Well, sir, if you look at my report there is a

remark and it says there; findings at the
genital area indicated the probability of
penetration of that area by a hard rigid
instrument.

A A hard bl[u]nt instrument, sir could show.

Q Could it have been caused by a human

organ?
A If the human male organ is erect, fully erect
and hard then it is possible, sir.

Q My question is other than the human male

organ?
A Possible, sir.
....
COURT:

....

Q You mentioned that the hymen was

lacerated on the right side?

ATTY. VALDEZ:

A Yes, your Honor.

Q In your remarks; finding at the genital area

indicates the probability of penetration of that
area by a hard rigid instrument, this may
have also been caused by a dagger used in
the killing of Jennifer Domantay is that
correct?

Q And if there is a complete erection by a

human organ is this possible that the
laceration can only be on the right side of the
hymen?

A Well, sir when I say hard rigid instrument it

should not be sharp pointed and sharp rigid, it
should be a hard bl[u]nt instrument.

Q How about if the penetration was done by a

finger, was it the same as the human organ?

A Yes, your Honor, its possible.

A Well, it depends on the size of the finger

Q Do you consider a bolo a bl[u]nt instrument, that penetrat[es] the organ, if the finger is
small it could the superficial laceration, and if
or a dagger?
the finger is large then it is possible your
honor.
A The dagger is a sharp rigid but it is not a
bl[u]nt instrument, sir.
Q This Genital Examination showed a
complete laceration of the right side of the
hymen, this may have been possibly caused
by a dagger, is it not?

Q How about two fingers?

A Possible, sir.

To be sure, this Court has sustained a number

of convictions for rape with homicide based
A No, sir. I wont say that this would have been on purely circumstantial evidence. In those
instances, however, the prosecution was able
caused by a dagger, because a dagger would
have made at its incision . . . not a laceration, to present other tell-tale signs of rape such as
the location and description of the victims
sir.
clothings, especially her undergarments, the
position of the body when found and the like.
[63]
In People v. Macalino,[64] for instance, the

Court affirmed a conviction for the rape of a

two year-old child on the basis of
circumstantial evidence:[65]

Although it is not unnatural to find contusions

on the posterior side, these are usually
caused by the downward pressure on the
victims body during the sexual assault.[70]It is
The Court notes that the testimony or medical unquestionably different when, as in this
opinion of Dr. Gajardo that the fresh laceration case, all the stab wounds (except for a minor
had been produced by sexual intercourse is
cut in the lower left leg) had their entry points
corroborated by the testimony given by
at the back running from the upper left
complainant Elizabeth that when she rushed
shoulder to the lower right buttocks.
upstairs upon hearing her daughter suddenly
cry out, she found appellant Macalino beside
It is noteworthy that the deceased was fully
the child buttoning his own pants and that she clothed in blue shorts and white shirt when
found some sticky fluid on the childs buttocks her body was brought to her parents house
and some blood on her private
immediately after it was found.
[71]
part. (Emphasis in the original)
Furthermore, there is a huge bloodstain in
the back portion of her shorts.[72] This must be
In contrast, in the case at bar, there is no
because she was wearing this piece of
circumstantial evidence from which to infer
clothing when the stab wounds were inflicted
that accused-appellant sexually abused the
or immediately thereafter, thus allowing the
victim. The only circumstance from which
blood to seep into her shorts to such an
such inference might be made is that
extent. As accused-appellant would naturally
accused-appellant was seen with the victim
have to pull down the girls lower garments in
walking toward the place where the girls body order to consummate the rape, then, he must
was found. Maybe he raped the girl. Maybe he have, regardless of when the stab wounds
did not. Maybe he simply inserted a blunt
were inflicted, pulled up the victims shorts
object into her organ, thus causing the
and undergarments after the alleged
lacerations in the hymen. Otherwise, there is
rape, otherwise, the victims shorts would not
no circumstance from which it might
have been stained so extensively. Again, this
reasonably be inferred that he abused
is contrary to ordinary human experience.
her, e.g., that he was zipping up his pants,
that there was spermatozoa in the girls
Even assuming that Jennifer had been raped,
vaginal canal.
there is no sufficient proof that it was
accused-appellant who had raped her. He did
Indeed, the very autopsy report of Dr.
not confess to having raped the victim.
Bandonill militates against the finding of rape.
In describing the stab wounds on the body of
From the foregoing, we cannot find that
the victim, he testified:[66]
accused-appellant also committed rape. In the
special complex crime of rape with homicide,
[A]fter examining the body I took note that
both the rape and the homicide must be
there were several stab wounds . . . these
established beyond reasonable doubt.[73]
were all found at the back area sir . . .
extending from the back shoulder down to the Third. The trial court ordered accusedlower back area from the left to the right.
appellant to pay the heirs of Jennifer
Domantay the amount of P30,000.00 as
Considering the relative physical positions of
actual damages. However, the list of
the accused and the victim in crimes of rape,
expenses produced by the victims father,
the usual location of the external bodily
Jaime Domantay, only totaled P28,430.00. Of
injuries of the victim is on the face,[67] neck,
this amount, only P12,000.00 was supported
[68]
and anterior portion[69] of her body.
by a receipt. Art. 2199 of the Civil Code

LEGAL MEDICINE 55
provides that a party may recover actual or
compensatory damages only for such loss as
he has duly proved. Therefore, the award of
actual damages should be reduced to
P12,000.00.
In addition, the heirs of Jennifer Domantay are
entitled to recover exemplary damages in
view of the presence of the aggravating
circumstance of abuse of superior
strength. Art. 2230 of the Civil Code provides
for the payment of exemplary damages when
the crime is committed with one or more
aggravating circumstance. An amount
of P25,000.00 is deemed appropriate.[74]
In accordance with our rulings in People v.
Robles[75] and People v. Mengote,[76] the
indemnity should be fixed at P50,000.00 and
the moral damages at P50,000.00.[77]
WHEREFORE, the judgment of the trial court
is SET ASIDE and another one is rendered
FINDING accused-appellant guilty of homicide
with the aggravating circumstance of abuse of
superior strength and sentencing him to a
prison term of 12 years of prision mayor, as
minimum, to 20 years of reclusion
temporal, as maximum, and ORDERING him
to pay the heirs of Jennifer Domantay the
amounts of P50,000.00, as
indemnity, P50,000.00, as moral
damages, P25,000.00, as exemplary
damages, and P12,000.00, as actual
damages, and the costs.
SO ORDERED.
[G.R. No. 159738. December 9, 2004]
UNION MOTOR
CORPORATION, petitioner, vs. NATIONAL
LABOR RELATIONS COMMISSION and
ALEJANDRO A. ETIS, respondents.
DECISION
CALLEJO, SR., J.:

This is a petition for review on certiorari filed

by petitioner Union Motor Corporation of the
April 10, 2003 Decision[1] of the Court of
Appeals (CA) in CA-G.R. SP No. 73602 which
affirmed the decision of the National Labor
Relations Commission (NLRC) holding that
respondent Alejandro A. Etis was illegally
dismissed from his employment.
On October 23, 1993, the respondent was
hired by the petitioner as an automotive
mechanic at the service department in the
latters Paco Branch. In 1994, he was
transferred to the Caloocan City Branch,
where his latest monthly salary
was P6,330.00. During his employment, he
was awarded the Top Technician for the month
of May in 1995 and Technician of the Year
(1995). He also became a member of the
Exclusive P40,000.00 Club and received the
Model Employee Award in the same year.
On September 22, 1997, the respondent
made a phone call to Rosita dela Cruz, the
company nurse, and informed her that he had
to take a sick leave as he had a painful and
unbearable toothache. The next day, he again
phoned Dela Cruz and told her that he could
not report for work because he still had to
consult a doctor. Finding that the respondents
ailment was due to a tooth inflammation, the
doctor referred him to a dentist for further
management.[2] Dr. Rodolfo Pamor, a dentist,
then scheduled the respondents tooth
extraction on September 27, 1997, hoping
that, by that time, the inflammation would
have subsided. Upon instructions from the
management, Mr. Dumagan, a company
security guard, visited the respondent in his
house on September 24, 1997 and confirmed
that the latter was ill.
On September 27, 1997, Dr. Pamor
rescheduled the respondents tooth extraction
on October 4, 1997 because the inflammation
had not yet subsided and recommended that
he rest. Thus, the respondent was not able to

report for work due to the painful and

unbearable toothache.
On October 2, 1997, the petitioner issued an
Inter Office Memorandum[3] through Angelo B.
Nicolas, the manager of its Human Resources
Department, terminating the services of the
respondent for having incurred more than five
(5) consecutive absences without proper
notification. The petitioner considered the
consecutive absences of the respondent as
abandonment of office under Section 6.1.1,
Article III of the Company Rules.
On October 4, 1997, Dr. Pamor successfully
extracted the respondents tooth. As soon as
he had recovered, the respondent reported for
work, but was denied entry into the companys
premises. He was also informed that his
employment had already been
terminated. The respondent sought help from
the union which, in turn, included his
grievance in the arbitration before the
National Conciliation and Mediation Board
(NCMB). Pending the resolution thereof, the
respondent wrote to the petitioner asking for
the reconsideration of his dismissal,[4] which
was denied. Sometime thereafter, the unions
complaints were dismissed by the NCMB.

On October 19, 2000, the Labor Arbiter

rendered a Decision dismissing the
complaint. The Labor Arbiter ruled that the
respondents failure to report for work for ten
(10) days without an approved leave of
absence was equivalent to gross neglect of
duty, and that his claim that he had been
absent due to severe toothache leading to a
tooth extraction was unsubstantiated. The
Labor Arbiter stressed that unnotarized
medical certificates were self-serving and had
no probative weight.
Aggrieved, the respondent appealed the
decision to the NLRC, docketed as NLRC NCR
CA No. 027002-01. He alleged therein that
I.THE HONORABLE LABOR ARBITER
COMMITTED GRAVE ABUSE OF DISCRETION IN
DISMISSING THE COMPLAINT.
II.THERE ARE SERIOUS ERRORS IN THE
FINDINGS OF FACTS WHICH WOULD CAUSE
GRAVE OR IRREPARABLE DAMAGE OR INJURY
TO HEREIN COMPLAINANT.[7]
On November 29, 2001, the NLRC issued a
Resolution reversing the decision of the Labor
Arbiter. The dispositive portion of the
resolution reads:

Left with no other recourse, the respondent

filed, on May 18, 1999, a complaint for illegal
dismissal before the arbitration branch of the
NLRC against the petitioner and/or Benito
Cua, docketed as NLRC-NCR Case No. 00-0505691-99.[5]

WHEREFORE, the assailed decision

dated October 19, 2000 is SET ASIDE and
REVERSED. Accordingly, the respondentappellee is hereby ordered to immediately
reinstate complainant to his former position
without loss of seniority rights and other
The respondent alleged that he was dismissed benefits and payment of his full backwages
from the time of his actual dismissal up to the
from his employment without just and legal
time of his reinstatement.
basis. For its part, the petitioner averred that
his dismissal was justified by his ten (10)
unauthorized absences. It posited that, under All other claims are dismissed for lack of
merit.[8]
Article 282 of the Labor Code, an employees
gross and habitual neglect of his duties is a
just cause for termination. It further alleged
that the respondents repetitive and habitual
acts of being absent without notification
constituted nothing less than abandonment,
which is a form of neglect of duties.[6]

The NLRC upheld the claim of the respondent

that his successive absences due to severe
toothache was known to management. It
ruled that the medical certificates issued by
the doctor and dentist who attended to the

LEGAL MEDICINE 56
respondent substantiated the latters medical
problem. It also declared that the lack of
notarization of the said certificates was not a
valid justification for their rejection as
evidence. The NLRC declared that the
respondents absence for ten (10) consecutive
days could not be classified as gross and
habitual neglect of duty under Article 282 of
the Labor Code.
The NLRC resolved to deny the motion for
reconsideration of the petitioner, per its
Resolution[9] dated August 26, 2002.
The petitioner, thereafter, filed a petition for
certiorari under Rule 65 of the Rules of Court
before the CA, docketed as CA-G.R. SP No.
73602. It raised the following issues:
Whether or not the public respondent gravely
abused it[s] discretion, amounting to lack or
excess of jurisdiction in reversing the decision
of the labor arbiter a quo and finding that
private respondent Alejandro A. Etis was
illegally dismissed.
Whether or not public respondent gravely
abused its discretion in reinstating private
respondent Alejandro A. Etis to his former
position without loss of seniority rights and
awarding him full backwages.[10]
In its Decision[11] dated April 10, 2003, the CA
affirmed in toto the November 29,
2001 Resolution of the NLRC.
The CA agreed with the ruling of the NLRC
that medical certificates need not be
notarized in order to be admitted in evidence
and accorded full probative weight. It held
that the medical certificates which bore the
names and licenses of the doctor and the
dentist who attended to the respondent
adequately substantiated the latters illness,
as well as the tooth extraction procedure
performed on him by the dentist. The CA
concluded that since the respondents
absences were substantiated, the petitioners

termination of his employment was without

legal and factual basis.

as well as the submissions of the parties, and

resolve the factual issues.

The CA similarly pointed out that even if the

ten-day absence of the respondent was
unauthorized, the same was not equivalent to
gross and habitual neglect of duty. The CA
took into consideration the respondents
unblemished service, from 1993 up to the
time of his dismissal, and the latters proven
dedication to his job evidenced by no less
than the following awards: Top Technician of
the Year (1995), Member of the
Exclusive P40,000.00 Club, and Model
Employee of the Year (1995).

The petitioner avers that the respondents

absences were unauthorized, and that the
latter failed to notify the petitioner in writing
of such absences, the reasons therefor, and
his (respondents) whereabouts as prescribed
by the company rules. The petitioner avers
that its security guard caught the respondent
at home, fit to work. The petitioner further
asserts that it was justified in dismissing the
respondent under Section 6.1.1, Article III of
the Company Rules which reads:

The motion for reconsideration of the

petitioner was denied by the appellate
court. Hence, the petition at bar.
The petitioner raises the following issues for
the Courts resolution:
I.WHETHER OR NOT THE HONORABLE COURT
OF APPEALS COMMITTED REVERSIBLE ERROR
IN GIVING MUCH EVIDENTIARY WEIGHT TO
THE MEDICAL CERTIFICATES SUBMITTED BY
THE PRIVATE RESPONDENT.

An employee who commits unauthorized

absences continuously for five (5) consecutive
working days without notice shall be
considered as having abandoned his job and
shall be terminated for cause with applicable
laws.
The petitioner contends that the respondents
dismissal was also justified under Article
282(b) of the Labor Code, which provides that
an employer may dismiss an employee due to
gross and habitual neglect of his duties.
The contention of the petitioner has no merit.

II.WHETHER OR NOT THE HONORABLE LABOR

ARBITER COMMITTED A REVERSIBLE ERROR IN The NLRC ruled that the respondent notified
RULING THAT PRIVATE RESPONDENT WAS
the petitioner of his illness through the
ILLEGALLY DISMISSED.[12]
company nurse, and that the petitioner even
dispatched a security guard to the
As had been enunciated in numerous cases,
respondents house to ascertain the reason of
the issues that can be delved with in a
his absences, thus:
petition for review under Rule 45 are limited
to questions of law. The Court is not tasked to The termination by respondent-appellee of
calibrate and assess the probative weight of
complainants service despite knowledge of
evidence adduced by the parties during trial
complainants ailment, as shown by the
all over again.[13] Well-established is the
telephone calls made by the latter to the
principle that findings of fact of quasi-judicial
company nurse and the actual confirmation
bodies, like the NLRC, are accorded with
made by respondents company guard, who
respect, even finality, if supported by
personally visited complainants residence,
substantial evidence.[14] However, if, as in this clearly establishes the illegality of
case, the findings of the Labor Arbiter clash
complainants dismissal. The documentary
with those of the NLRC and CA, this Court is
testimonies of the nurse, Miss Rosita dela
compelled to go over the records of the case,
Cruz, regarding complainants telephone calls
and the confirmation made by respondents

security guard, Mr. Dumagan, are evidentiary

matters which are relevant and material and
must be considered to the fullest by the Labor
Arbiter a quo. These circumstantial facts were
miserably set aside by the Labor Arbiter a
quo wherein he concluded that complainant
committed gross neglect of duty on alleged
continued absences is to our mind, not fully
substantiated and ought not be given
credence by this Commission. Time and
again, this Tribunal impresses that, in labor
proceedings, in case of doubt, the doubt must
be reasonably in favor of labor. Maybe doubts
hang in this case but these doubts must be
resolved in favor of labor as mandated by law
and our jurisprudence. From the facts of this
case, it is only but reasonable to conclude
that complainants service was, indeed,
terminated without legal or valid
cause. Where the law protects the right of
employer to validly exercise management
prerogative such as to terminate the services
of an employee, such exercise must be with
legal cause as enumerated in Article 282 of
the Labor Code or by authorized cause as
defined in Article 283 of the Labor Code.[15]
The CA affirmed the findings of facts of the
NLRC.
We agree with the rulings of the NLRC and the
CA. We note that the company rules do not
require that the notice of an employees
absence and the reasons therefor be in
writing and for such notice to be given to any
specific office and/or employee of the
petitioner. Hence, the notice may be verbal; it
is enough then that an officer or employee of
the petitioner, competent and responsible
enough to receive such notice for and in
behalf of the petitioner, was informed of such
absence and the corresponding reason.
The evidence on record shows that the
respondent informed the petitioner of his
illness through the company nurse. The
security guard who was dispatched by the
petitioner to verify the information received

LEGAL MEDICINE 57
by the company nurse, confirmed the
respondents illness. We find and so hold that
the respondent complied with the requisite of
giving notice of his illness and the reason for
his absences to the petitioner.
We reject the petitioners contention that the
medical certificates adduced in evidence by
the respondent to prove (a) his illness, the
nature and the duration of the procedures
performed by the dentist on him; and (b) the
period during which he was incapacitated to
work are inadmissible in evidence and barren
of probative weight simply because they were
not notarized, and the medical certificate
dated September 23, 1997 was not written on
paper bearing the dentists letterhead. Neither
do we agree with the petitioners argument
that even assuming that the respondent was
ill and had been advised by his dentist to rest,
the same does not appear on the medical
certificate datedSeptember 23, 1997; hence,
it behooved the respondent to report for work
on September 23, 1997. The ruling of the
Court in Maligsa v. Atty. Cabanting[16] is not
applicable in this case.
It bears stressing that the petitioner made the
same arguments in the NLRC and the CA, and
both tribunals ruled as follows:
First, We concur with the ratiocination of
respondent NLRC when it ruled that a medical
certificate need not be notarized, to quote:
xxx. He was dismissed by reason of the fact
that the Medical Certificate submitted by the
complainant should not be given credence for
not being notarized and that no affidavit was
submitted by the nurse to prove that the
complainant, indeed, called the respondents
office by telephone.
After full scrutiny and judicious evaluation of
the records of this case, We find the appeal to
be meritorious. Regrettably, the Labor
Arbiter a quo clearly failed to appreciate
complainants pieces of evidence. Nowhere in
our jurisprudence requires that all medical

certificates be notarized to be accepted as a

valid evidence. In this case, there is [neither]
difficulty nor an obstacle to claim that the
medical certificates presented by complainant
are genuine and authentic. Indeed, the
physician and the dentist who examined the
complainant, aside from their respective
letterheads, had written their respective
license numbers below their names and
signatures. These facts have not been
impugned nor rebutted by respondentappellee throughout the proceedings of his
case.Common sense dictates that an ordinary
worker does not need to have these medical
certificates to be notarized for proper
presentation to his company to prove his
ailment; hence, the Labor Arbiter a quo, in
cognizance with the liberality and the
appreciation on the rules on evidence, must
not negate the acceptance of these medical
certificates as valid pieces of evidence.
We believe, as we ought to hold, that the
medical certificates can prove clearly and
convincingly the complainants allegation that
he consulted a physician because of tooth
inflammation onSeptember 23, 1997 and a
dentist who later advised him to rest and,
thus, clinically extended his tooth extraction
due to severe pain and
inflammation. Admittingly, it was only
on October 4, 1997 that complainants tooth
was finally extracted.
From these disquisitions, it is clear that the
absences of private respondent are justifiable.

medical certificates to attest to the cause of

his absence. The respondent could not have
anticipated the cause of his illness, thus, to
require prior approval would be unreasonable.
[19]
While it is true that the petitioner had
objected to the veracity of the medical
certificates because of lack of notarization, it
has been said that verification of documents
is not necessary in order that the said
documents could be considered as substantial
evidence.[20] The medical certificates were
properly signed by the physicians; hence,
they bear all the earmarks of regularity in
their issuance and are entitled to full
probative weight.[21]
The petitioner, likewise, failed to prove the
factual basis for its dismissal of the
respondent on the ground of gross and
habitual negligence under Article 282(b) of
the Labor Code of the Philippines, or even
under Section 6.1.1, Rule III of the Company
Rules.
Dismissal is the ultimate penalty that can be
meted to an employee. Thus, it must be
based on just cause and must be supported
by clear and convincing evidence.[22] To effect
a valid dismissal, the law requires not only
that there be just and valid cause for
termination; it, likewise, enjoins the employer
to afford the employee the opportunity to be
heard and to defend himself.[23] Article 282 of
the Labor Code enumerates the just causes
for the termination of employment by the
employer:

[17]

To warrant removal from service, the

negligence should not merely be gross but
also habitual. Gross negligence implies a want
or absence of or failure to exercise slight care
or diligence, or the entire absence of care. It
evinces a thoughtless disregard of
consequences without exerting any effort to
avoid them.[24] The petitioner has not
sufficiently shown that the respondent had
willfully disobeyed the company rules and
regulation. The petitioner also failed to prove
that the respondent abandoned his job. The
bare fact that the respondent incurred
excusable and unavoidable absences does not
amount to an abandonment of his
employment.
The petitioners claim of gross and habitual
neglect of duty pales in comparison to the
respondents unblemished record. The
respondent did not incur any intermittent
absences. His only recorded absence was the
consecutive ten-day unauthorized absence,
albeit due to painful and unbearable
toothache. The petitioners claim that the
respondent had manifested poor work
attitude was belied by its own recognition of
the respondents dedication to his job as
evidenced by the latters awards: Top
Technician of the Year (1995), Member of the
Exclusive P40,000.00 Club, and Model
Employee of the Year (1995).
IN LIGHT OF ALL THE FOREGOING, the
petition is DENIED DUE COURSE. The Decision
of the Court of Appeals in CA-G.R. SP No.
73602 is AFFIRMED.

ART. 282. TERMINATION BY EMPLOYER

We agree with the NLRC and the appellate
court. In light of the findings of facts of the
NLRC and the CA, the petitioner cannot find
solace in the ruling of this Court inMaligsa v.
Atty. Cabantnig.[18]
While the records do not reveal that the
respondent filed the required leave of
absence for the period during which he
suffered from a toothache, he immediately
reported for work upon recovery, armed with

SO ORDERED.
An employer may terminate an employment
for any of the following causes:
(a) Serious misconduct or willful disobedience
by the employee of the lawful orders of his
employer or representative in connection with
his work;
(b) Gross and habitual neglect by the
employee of his duties.

Atienza v. Sioson
GR No. 177407 February 14 2012
DECISION
NACHURA, J.:

LEGAL MEDICINE 58
Before us is a petition for review
on certiorari under Rule 45 of the Rules of
Court, assailing the Decision[1] dated
September 22, 2006 of the Court of Appeals
(CA) in CA-G.R. SP No. 87755. The CA
dismissed the petition for certiorari filed by
petitioner Rico Rommel Atienza (Atienza),
which, in turn, assailed the Orders[2]issued by
public respondent Board of Medicine (BOM) in
Administrative Case No. 1882.
The facts, fairly summarized by the appellate
court, follow.
Due to her lumbar pains, private respondent
Editha Sioson went to Rizal Medical Center
(RMC) for check-up on February 4, 1995.
Sometime in 1999, due to the same problem,
she was referred to Dr. Pedro Lantin III of RMC
who, accordingly, ordered several diagnostic
laboratory tests. The tests revealed that her
right kidney is normal. It was ascertained,
however, that her left kidney is nonfunctioning and non-visualizing. Thus, she
underwent kidney operation in September,
1999.
On February 18, 2000, private respondents
husband, Romeo Sioson (as complainant),
filed a complaint for gross negligence and/or
incompetence before the [BOM] against the
doctors who allegedly participated in the
fateful kidney operation, namely: Dr. Judd dela
Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio
Florendo and petitioner Rico Rommel Atienza.
It was alleged in the complaint that the gross
negligence and/or incompetence committed
by the said doctors, including petitioner,
consists of the removal of private respondents
fully functional right kidney, instead of the left
non-functioning and non-visualizing kidney.
The complaint was heard by the [BOM]. After
complainant Romeo Sioson presented his
evidence, private respondent Editha Sioson,
also named as complainant there, filed her
formal offer of documentary evidence.
Attached to the formal offer of documentary

evidence are her Exhibits A to D, which she

offered for the purpose of proving that her
kidneys were both in their proper anatomical
locations at the time she was operated. She
described her exhibits, as follows:
EXHIBIT A the certified photocopy of the X-ray
Request form dated December 12, 1996,
which is also marked as Annex 2 as it was
actually originally the Annex to x x x Dr. Pedro
Lantin, IIIs counter affidavit filed with the City
Prosecutor of Pasig City in connection with the
criminal complaint filed by [Romeo Sioson]
with the said office, on which are handwritten
entries which are the interpretation of the
results of the ultrasound examination.
Incidentally, this exhibit happens to be the
same as or identical to the certified
photocopy of the document marked as Annex
2 to the Counter-Affidavit dated March 15,
2000, filed by x x x Dr. Pedro Lantin, III, on
May 4, 2000, with this Honorable Board in
answer to this complaint;
EXHIBIT B the certified photo copy of the Xray request form dated January 30, 1997,
which is also marked as Annex 3 as it was
actually likewise originally an Annex to x x x
Dr. Pedro Lantin, IIIs counter-affidavit filed
with the Office of the City Prosecutor of Pasig
City in connection with the criminal complaint
filed by the herein complainant with the said
office, on which are handwritten entries which
are the interpretation of the results of the
examination. Incidentally, this exhibit
happens to be also the same as or identical to
the certified photo copy of the document
marked as Annex 3 which is likewise dated
January 30, 1997, which is appended as such
Annex 3 to the counter-affidavit dated March
15, 2000, filed by x x x Dr. Pedro Lantin, III on
May 4, 2000, with this Honorable Board in
answer to this complaint.
EXHIBIT C the certified photocopy of the X-ray
request form dated March 16, 1996, which is
also marked as Annex 4, on which are
handwritten entries which are the

interpretation of the results of the

examination.
EXHIBIT D the certified photocopy of the X-ray
request form dated May 20, 1999, which is
also marked as Annex 16, on which are
handwritten entries which are the
interpretation of the results of the
examination. Incidentally, this exhibit appears
to be the draft of the typewritten final report
of the same examination which is the
document appended as Annexes 4 and 1
respectively to the counter-affidavits filed by x
x x Dr. Judd dela Vega and Dr. Pedro Lantin, III
in answer to the complaint. In the case of Dr.
dela Vega however, the document which is
marked as Annex 4 is not a certified
photocopy, while in the case of Dr. Lantin, the
document marked as Annex 1 is a certified
photocopy. Both documents are of the same
date and typewritten contents are the same
as that which are written on Exhibit D.

Let the hearing be set on July 19, 2004 all at

1:30 p.m. for the reception of the evidence of
the respondents. SO ORDERED.
Petitioner moved for reconsideration of the
abovementioned Order basically on the same
reasons stated in his comment/objections to
the formal offer of exhibits.
The [BOM] denied the motion for
reconsideration of petitioner in its Order dated
October 8, 2004. It concluded that it should
first admit the evidence being offered so that
it can determine its probative value when it
decides the case. According to the Board, it
can determine whether the evidence is
relevant or not if it will take a look at it
through the process of admission. x x x.[3]
Disagreeing with the BOM, and as previously
adverted to, Atienza filed a petition
for certiorari with the CA, assailing the BOMs
Orders which admitted Editha Siosons
(Edithas) Formal Offer of Documentary
Evidence. The CA dismissed the petition
for certiorari for lack of merit.

Petitioner filed his comments/objections to

private respondents [Editha Siosons] formal
offer of exhibits. He alleged that said exhibits
are inadmissible because the same are mere
Hence, this recourse positing the following
photocopies, not properly identified and
issues:
authenticated, and intended to establish
matters which are hearsay. He added that the
exhibits are incompetent to prove the purpose I. PROCEDURAL ISSUE:
for which they are offered.
WHETHER PETITIONER ATIENZA AVAILED OF
THE PROPER REMEDY WHEN HE FILED THE
Dispositions of the Board of Medicine
PETITION FOR CERTIORARI DATED 06
DECEMBER 2004 WITH THE COURT OF
The formal offer of documentary exhibits of
APPEALS UNDER RULE 65 OF THE RULES OF
private respondent [Editha Sioson] was
COURT TO ASSAIL THE ORDERS DATED 26
admitted by the [BOM] per its Order dated
MAY 2004 AND 08 OCTOBER 2004 OF
May 26, 2004. It reads:
RESPONDENT BOARD.
The Formal Offer of Documentary Evidence of
II. SUBSTANTIVE ISSUE:
[Romeo Sioson], the Comments/Objections of
[herein petitioner] Atienza, [therein
WHETHER THE COURT OF APPEALS
respondents] De la Vega and Lantin, and the
COMMITTED GRAVE REVERSIBLE ERROR AND
Manifestation of [therein] respondent
DECIDED A QUESTION OF SUBSTANCE IN A
Florendo are hereby ADMITTED by the [BOM]
WAY NOT IN ACCORDANCE WITH LAW AND
for whatever purpose they may serve in the
THE APPLICABLE DECISIONS OF THE
resolution of this case.
HONORABLE COURT WHEN IT UPHELD THE

LEGAL MEDICINE 59
ADMISSION OF INCOMPETENT AND
INADMISSIBLE EVIDENCE BY RESPONDENT
BOARD, WHICH CAN RESULT IN THE
DEPRIVATION OF PROFESSIONAL LICENSE A
PROPERTY RIGHT OR ONES LIVELIHOOD.[4]
We find no reason to depart from the ruling of
the CA.
Petitioner is correct when he asserts that a
petition for certiorari is the proper remedy to
assail the Orders of the BOM, admitting in
evidence the exhibits of Editha. As the
assailed Orders were interlocutory, these
cannot be the subject of an appeal separate
from the judgment that completely or finally
disposes of the case.[5] At that stage, where
there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of
law, the only and remaining remedy left to
petitioner is a petition for certiorari under
Rule 65 of the Rules of Court on the ground of
grave abuse of discretion amounting to lack
or excess of jurisdiction.

such as the BOM.[6] Although trial courts are

enjoined to observe strict enforcement of the
rules of evidence,[7] in connection with
evidence which may appear to be of doubtful
relevancy, incompetency, or admissibility, we
have held that:
[I]t is the safest policy to be liberal, not
rejecting them on doubtful or technical
grounds, but admitting them unless plainly
irrelevant, immaterial or incompetent, for the
reason that their rejection places them
beyond the consideration of the court, if they
are thereafter found relevant or competent;
on the other hand, their admission, if they
turn out later to be irrelevant or incompetent,
can easily be remedied by completely
discarding them or ignoring them.[8]
From the foregoing, we emphasize the
distinction between the admissibility of
evidence and the probative weight to be
accorded the same pieces of
evidence. PNOCShipping and Transport
Corporation v. Court of Appeals[9] teaches:

substantive rights of either party shall not

vitiate the proceedings.[10]
As pointed out by the appellate court, the
admission of the exhibits did not prejudice the
substantive rights of petitioner because, at
any rate, the fact sought to be proved
thereby, that the two kidneys of Editha were
in their proper anatomical locations at the
time she was operated on, is presumed under
Section 3, Rule 131 of the Rules of Court:
Sec. 3. Disputable presumptions. The
following presumptions are satisfactory if
uncontradicted, but may be contradicted and
overcome by other evidence:
xxxx
(y) That things have happened according to
the ordinary course of nature and the ordinary
habits of life.

The exhibits are certified photocopies of X-ray

Request Forms dated December 12, 1996,
January 30, 1997, March 16, 1996, and May
However, the writ of certiorari will not issue
20, 1999, filed in connection with Edithas
absent a showing that the BOM has acted
Admissibility of evidence refers to the
medical case. The documents contain
without or in excess of jurisdiction or with
question of whether or not the circumstance
grave abuse of discretion. Embedded in the
(or evidence) is to be considered at all. On the handwritten entries interpreting the results of
the examination. These exhibits were actually
CAs finding that the BOM did not exceed its
other hand, the probative value of evidence
attached as annexes to Dr. Pedro Lantin IIIs
jurisdiction or act in grave abuse of discretion refers to the question of whether or not it
counter affidavit filed with the Office of the
is the issue of whether the exhibits of Editha
proves an issue.
City Prosecutor of Pasig City, which was
contained in her Formal Offer of Documentary
investigating the criminal complaint for
Second, petitioners insistence that the
Evidence are inadmissible.
negligence filed by Editha against the doctors
admission of Edithas exhibits violated his
of Rizal Medical Center (RMC) who handled
Petitioner argues that the exhibits formally
substantive rights leading to the loss of his
her surgical procedure. To lay the predicate
offered in evidence by Editha: (1) violate the
medical license is misplaced. Petitioner
best evidence rule; (2) have not been properly mistakenly relies on Section 20, Article I of the for her case, Editha offered the exhibits in
evidence to prove that her kidneys were both
identified and authenticated; (3) are
Professional Regulation Commission Rules of
in their proper anatomical locations at the
completely hearsay; and (4) are incompetent
Procedure, which reads:
time of her operation.
to prove their purpose. Thus, petitioner
Section 20. Administrative investigation shall
contends that the exhibits are inadmissible
be conducted in accordance with these Rules. The fact sought to be established by the
evidence.
admission of Edithas exhibits, that her
The Rules of Court shall only apply in these
kidneys were both in their proper anatomical
We disagree.
proceedings by analogy or on a suppletory
locations at the time of her operation, need
character and whenever practicable and
To begin with, it is well-settled that the rules
not be proved as it is covered by mandatory
convenient. Technical errors in the admission
of evidence are not strictly applied in
judicial notice.[11]
of evidence which do not prejudice the
proceedings before administrative bodies

Unquestionably, the rules of evidence are

merely the means for ascertaining the truth
respecting a matter of fact.[12] Thus, they
likewise provide for some facts which are
established and need not be proved, such as
those covered by judicial notice, both
mandatory and discretionary.[13] Laws of
nature involving the physical sciences,
specifically biology,[14] include the structural
make-up and composition of living things such
as human beings. In this case, we may take
judicial notice that Edithas kidneys before,
and at the time of, her operation, as with
most human beings, were in their proper
anatomical locations.
Third, contrary to the assertion of petitioner,
the best evidence rule is inapplicable. Section
3 of Rule 130 provides:
1. Best Evidence Rule
Sec. 3. Original document must be produced;
exceptions. When the subject of inquiry is the
contents of a document, no evidence shall be
admissible other than the original document
itself, except in the following cases:
(a) When the original has been lost or
destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b) When the original is in the custody or
under the control of the party against whom
the evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original consists of numerous
accounts or other documents which cannot be
examined in court without great loss of time
and the fact sought to be established from
them is only the general result of the whole;
and
(d) When the original is a public record in the
custody of a public officer or is recorded in a
public office.

LEGAL MEDICINE 60
The subject of inquiry in this case is whether
respondent doctors before the BOM are liable
for gross negligence in removing the right
functioning kidney of Editha instead of the left
non-functioning kidney, not the proper
anatomical locations of Edithas kidneys. As
previously discussed, the proper anatomical
locations of Edithas kidneys at the time of her
operation at the RMC may be established not
only through the exhibits offered in evidence.

SGT. RODOLFO M. DESOLONG, A1C

CORDOVA G. ESTELO, MSGT. PABLO S.
MARTINEZ, SGT. RUBEN AQUINO, SGT.
ARNULFO ARTATES, A1C FELIZARDO
TARAN, petitioners, vs. SANDIGANBAYAN
and PEOPLE OF THE
PHILIPPINES,respondents.
RESOLUTION
PUNO, J.:

Finally, these exhibits do not constitute

hearsay evidence of the anatomical locations
of Edithas kidneys. To further drive home the
point, the anatomical positions, whether left
or right, of Edithas kidneys, and the removal
of one or both, may still be established
through a belated ultrasound or x-ray of her
abdominal area.

Before us is a Motion To Re-Open Case With

Leave Of Court filed by petitioners who were
convicted and sentenced to reclusion
perpetua by the Sandiganbayan in Criminal
Cases Nos. 10010 and 10011 for the double
murder of Senator Benigno Aquino, Jr. and
Rolando Galman on August 21, 1983.[1]

In fact, the introduction of secondary

evidence, such as copies of the exhibits, is
allowed.[15] Witness Dr. Nancy Aquino testified
that the Records Office of RMC no longer had
the originals of the exhibits because [it]
transferred from the previous building, x x x
to the new building.[16] Ultimately, since the
originals cannot be produced, the BOM
properly admitted Edithas formal offer of
evidence and, thereafter, the BOM shall
determine the probative value thereof when it
decides the case.

Petitioners were members of the military who

acted as Senator Aquinos security detail upon
his arrival in Manila from his three-year
sojourn in the United States. They were
charged, together with several other
members of the military, before the
Sandiganbayan for the killing of Senator
Aquino who was fatally shot as he was coming
down from the aircraft of China Airlines at the
Manila International Airport. Petitioners were
also indicted for the killing of Rolando Galman
who was also gunned down at the airport
tarmac.

WHEREFORE, the petition is DENIED. The

Decision of the Court of Appeals in CA-G.R. SP
No. 87755 is AFFIRMED. Costs against
petitioner.
SO ORDERED.
[G.R. Nos. 96027-28. March 08, 2005]
BRIG. GEN. LUTHER A. CUSTODIO*, CAPT.
ROMEO M. BAUTISTA, 2nd LT. JESUS D.
CASTRO, SGT. CLARO L. LAT, SGT.
ARNULFO B. DE MESA, C1C ROGELIO B.
MORENO, C1C MARIO E. LAZAGA, SGT.
FILOMENO D. MIRANDA, SGT. ROLANDO
C. DE GUZMAN, SGT. ERNESTO M. MATEO,

On December 2, 1985, the Sandiganbayan

rendered a Decision in Criminal Cases Nos.
10010-10011 acquitting all the accused,
which include the petitioners. However, the
proceedings before the Sandiganbayan were
later found by this Court to be a sham trial.
The Court thus nullified said proceedings, as
well as the judgment of acquittal, and ordered
a re-trial of the cases.[2]
A re-trial ensued before the Sandiganbayan.
In its decision dated September 28, 1990, the
Sandiganbayan, while acquitting the other
accused, found the petitioners guilty as

principals of the crime of murder in both

Criminal Cases Nos. 10010 and 10011. It
sentenced them to reclusion perpetua in each
case.[3] The judgment became final after this
Court denied petitioners petition for review of
the Sandiganbayan decision for failure to
show reversible error in the questioned
decision,[4] as well as their subsequent motion
for reconsideration.[5]
In August 2004, petitioners sought legal
assistance from the Chief Public Attorney who,
in turn, requested the Independent Forensic
Group of the University of the Philippines to
make a thorough review of the forensic
evidence in the double murder case. The
petitioners, assisted by the Public Attorneys
Office, now want to present the findings of the
forensic group to this Court and ask the Court
to allow the re-opening of the cases and the
holding of a third trial to determine the
circumstances surrounding the death of
Senator Benigno Aquino, Jr. and Rolando
Galman.
Petitioners invoke the following grounds for
the re-opening of the case:
I
Existence of newly discovered pieces of
evidence that were not available during the
second trial of the above-entitled cases which
could have altered the judgment of the
Sandiganbayan, specifically:
A) Independent forensic evidence uncovering
the false forensic claims that led to the unjust
conviction of the petitioners-movants.
B) A key defense eyewitness to the actual
killing of Senator Benigno Aquino, Jr.
II
There was a grave violation of due process by
reason of:
A) Insufficient legal assistance of counsel;

B) Deprivation of right to counsel of choice;

C) Testimonies of defense witnesses were
under duress;
D) Willful suppression of evidence;
E) Use of false forensic evidence that led to
the unjust conviction of the petitionersmovants.
III. There was serious misapprehension of
facts on the part of the Sandiganbayan based
on false forensic evidence, which entitles
petitioners-movants to a re-trial.[6]
Petitioners seek to present as new evidence
the findings of the forensic group composed
of Prof. Jerome B. Bailen, a forensic
anthropologist from the University of the
Philippines, Atty. Erwin P. Erfe, M.D., a medicolegal practitioner, Benito E. Molino, M.D., a
forensic consultant and Human Rights and
Peace Advocate, and Anastacio N. Rosete, Jr.,
D.M.D., a forensic dentistry consultant. Their
report essentially concludes that it was not
possible, based on the forensic study of the
evidence in the double murder case, that C1C
Rogelio Moreno fired at Senator Aquino as
they descended the service stairway from the
aircraft. They posit that Senator Aquino was
shot while he was walking on the airport
tarmac toward the waiting AVSECOM van
which was supposed to transport him from the
airport to Fort Bonifacio. This is contrary to
the finding of the Sandiganbayan in the
second trial that it was C1C Moreno, the
security escort positioned behind Senator
Aquino, who shot the latter. The report also
suggests that the physical evidence in these
cases may have been misinterpreted and
manipulated to mislead the court. Thus,
petitioners assert that the September 28,
1990 decision of the Sandiganbayan should
be voided as it was based on false forensic
evidence. Petitioners submit that the review
by the forensic group of the physical evidence
in the double murder case constitutes newly
discovered evidence which would entitle

LEGAL MEDICINE 61
them to a new trial under Rule 121 of the
2000 Rules of Criminal Procedure. In addition
to the report of the forensic group, petitioners
seek to present the testimony of an alleged
eyewitness, the driver of the waiting
AVSECOM van, SPO4 Ruben M. Cantimbuhan.
In his affidavit submitted to this Court, SPO4
Cantimbuhan states that he saw a man in
blue uniform similar to that of the Philippine
Airlines maintenance crew, suddenly fire at
Senator Aquino as the latter was about to
board the van. The man in blue was later
identified as Rolando Galman.

(a) That errors of law or irregularities

prejudicial to the substantial rights of the
accused have been committed during the
trial;

Petitioners pray that the Court issue a

resolution:

Sec. 6. Effects of granting a new trial or

reconsideration. The effects of granting a
new trial or reconsideration are the following:

1. [a]nnulling and setting aside this Honorable

Courts Resolutions dated July 23, 1991 and
September 10, 1991;
2. [a]nnulling and setting aside the Decision
of the Sandiganbayan (3rd Division) dated
September 28, 1990 in People vs. Custodio, et
al., Case No. 10010-10011[;]

(b) That new and material evidence has

been discovered which the accused
could not with reasonable diligence have
discovered and produced at the trial and
which if introduced and admitted would
probably change the judgment.
xxx

(a) When a new trial is granted on the ground

of errors of law or irregularities committed
during the trial, all the proceedings and
evidence affected thereby shall be set aside
and taken anew. The court may, in the
interest of justice, allow the introduction of
additional evidence.

3. [o]rdering the re-opening of this case; [and] (b) When a new trial is granted on the ground
of newly discovered evidence, the evidence
4. [o]rdering the Sandiganbayan to allow the
already adduced shall stand and the newlyreception of additional defense evidence/rediscovered and such other evidence as the
trial in the above entitled cases.[7]
court may, in the interest of justice, allow to
be introduced shall be taken and considered
The issue now is whether petitioners are
together with the evidence already in the
entitled to a third trial under Rule 121 of the record.
2000 Rules of Criminal Procedure.
(c) In all cases, when the court grants new
The pertinent sections of Rule 121 of the 2000 trial or reconsideration, the original judgment
Rules of Criminal Procedure provide:
shall be set aside or vacated and a new
judgment rendered accordingly. (emphasis
Section 1. New Trial or
supplied)
reconsideration. At any time before a
judgment of conviction becomes final, the
In line with the objective of the Rules of Court
court may, on motion of the accused or at its
to set guidelines in the dispensation of justice,
own instance but with the consent of the
but without shackling the hands that dispense
accused, grant a new trial or reconsideration.
it, the remedy of new trial has been described
as a new invention to temper the severity of a
Sec. 2. Grounds for a new trial. The court
judgment or prevent the failure of justice.
[8]
shall grant a new trial on any of the following
Thus, the Rules allow the courts to grant a
grounds:
new trial when there are errors of law or

irregularities prejudicial to the substantial

rights of the accused committed during the
trial, or when there exists newly discovered
evidence. In the proceedings for new trial, the
errors of law or irregularities are expunged
from the record or new evidence is
introduced. Thereafter, the original judgment
is vacated and a new one is rendered.[9]
Under the Rules, a person convicted of a
crime may avail of the remedy of new trial
before the judgment of conviction becomes
final. Petitioners admit that the decision of the
Sandiganbayan in Criminal Cases Nos. 10010
and 10011 became final and executory upon
denial of their petition for review filed before
this Court and their motion for
reconsideration. Entry of judgment has in fact
been made on September 30, 1991.
[10]
Nonetheless, they maintain that equitable
considerations exist in this case to justify the
relaxation of the Rules and re-open the case
to accord petitioners the opportunity to
present evidence that will exonerate them
from the charges against them. We do not
find merit in their submission.
Petitioners anchor their motion on the ground
of newly discovered evidence. Courts are
generally reluctant in granting motions for
new trial on the ground of newly discovered
evidence for it is presumed that the moving
party has had ample opportunity to prepare
his case carefully and to secure all the
necessary evidence before the trial. Such
motions are treated with great
caution due to the danger of perjury and the
manifest injustice of allowing a party to allege
that which may be the consequence of his
own neglect to defeat an adverse judgment.
Hence, the moving party is often required to
rebut a presumption that the judgment is
correct and that there has been a lack of due
diligence, and to establish other facts
essential to warrant the granting of a new trial
on the ground of newly discovered evidence.
[11]
This Court has repeatedly held that before
a new trial may be granted on the ground of

newly discovered evidence, it must be

shown (1) that the evidence was discovered
after trial; (2) that such evidence could not
have been discovered and produced at the
trial even with the exercise of reasonable
diligence; (3) that it is material, not merely
cumulative, corroborative, or impeaching; and
(4) the evidence is of such weight that it
would probably change the judgment if
admitted. If the alleged newly discovered
evidence could have been very well presented
during the trial with the exercise of
reasonable diligence, the same cannot be
considered newly discovered.[12]
These standards, also known as the Berry
rule, trace their origin to the 1851 case
of Berry vs. State of Georgia[13] where the
Supreme Court of Georgia held:
Applications for new trial on account of newly
discovered evidence, are not favored by the
Courts. x x x Upon the following points there
seems to be a pretty general concurrence of
authority, viz; that it is incumbent on a party
who asks for a new trial, on the ground of
newly discovered evidence, to satisfy the
Court, 1st. That the evidence has come to his
knowledge since the trial. 2d. That it was not
owing to the want of due diligence that it did
not come sooner. 3d. That it is so material
that it would produce a different verdict, if the
new trial were granted. 4th. That it is not
cumulative only viz; speaking to facts, in
relation to which there was evidence on the
trial. 5th. That the affidavit of the witness
himself should be produced, or its absence
accounted for. And 6th, a new trial will not be
granted, if the only object of the testimony is
to impeach the character or credit of a
witness. (citations omitted)
These guidelines have since been followed by
our courts in determining the propriety of
motions for new trial based on newly
discovered evidence.
It should be emphasized that the applicant for
new trial has the burden of showing that the

LEGAL MEDICINE 62
new evidence he seeks to present has
complied with the requisites to justify the
holding of a new trial.
The threshold question in resolving a
motion for new trial based on newly
discovered evidence is whether the proferred
evidence is in fact a newly discovered
evidence which could not have been
discovered by due diligence. The question
of whether evidence is newly discovered
has two aspects: a temporal one, i.e.,
when was the evidence discovered, and
a predictive one, i.e., when should or could
it have been discovered. It is to the latter that
the requirement of due diligence has
relevance.[14] We have held that in order that a
particular piece of evidence may be properly
regarded as newly discovered to justify new
trial, what is essential is not so much the time
when the evidence offered first sprang into
existence nor the time when it first came to
the knowledge of the party now submitting it;
what is essential is that the offering party had
exercised reasonable diligence in seeking
to locate such evidence before or during trial
but had nonetheless failed to secure it.[15]
The Rules do not give an exact definition of
due diligence, and whether the movant has
exercised due diligence depends upon the
particular circumstances of each case.
[16]
Nonetheless, it has been observed that the
phrase is often equated with reasonable
promptness to avoid prejudice to the
defendant. In other words, the concept of due
diligence has both a time component and
a good faith component. The movant for a
new trial must not only act in a timely fashion
in gathering evidence in support of the
motion; he must act reasonably and in good
faith as well. Due diligence contemplates that
the defendant acts reasonably and in good
faith to obtain the evidence, in light of the
totality of the circumstances and the facts
known to him.[17]

Applying the foregoing tests, we find that

petitioners purported evidence does not
qualify as newly discovered evidence that
would justify the re-opening of the case and
the holding of a third trial.

f. Various books and articles on forensic and

the medico-legal field[;]

The report of the forensic group may not be

considered as newly discovered evidence as
petitioners failed to show that it was
impossible for them to secure an independent
forensic study of the physical evidence during
the trial of the double murder case. It
appears from their report that the
forensic group used the same physical
and testimonial evidence proferred
during the trial, but made their own
analysis and interpretation of said
evidence. They cited the materials and
methods that they used for their study, viz:

METHODS:

MATERIALS AND METHODS

g. Results of Forensic experiments conducted

in relation to the case.

a. Review of the forensic exhibits presented in

the court;
b. Review of TSNs relevant to the forensic
review;
c. Study of and research on the guns, slugs
and ammunitions allegedly involved in the
crime;
d. Interviews/re-enactment of the crime based
on the militarys accounts, both in the Bilibid
Prison where the convicts are confined and
the MIA (now NAIA) stairway and tarmac;

MATERIALS:

e. Conduct of ocular inspection and

measurements on the actual crime scene
a. Court records of the case, especially
photographs of: a) the stairway where the late (stairway and tarmac) at the old Manila
Sen. Aquino and his escorts descended; b) the International Airport (now NAIA);
part of the tarmac where the lifeless bodies of
f. Retracing the slugs trajectory based on the
the late Sen. Aquino and Galman fell; and c)
autopsy reports and experts testimonies using
the autopsy conducted by the NBI Medicoan actual human skull;
legal team headed by Dr. Mu[]oz; and the
autopsy report of the late Sen. Benigno
Aquino[,] Jr. signed by Dr. Mu[]oz and Dr. Solis; g. X-rays of the skull with the retraced
trajectory based on the autopsy report and
experts testimonies;
b. The gun and live ammunitions collected at
the crime scene;
c. A reference human skull photos and X-rays
of the same to demonstrate wound location
and bullet trajectory;

h. Evaluation of the presented facts and

opinions of local experts in relation to
accepted forensic findings in international
publications on forensic science, particularly
on guns and [gunshot] wound injuries;

d. The reports of interviews and statements

by the convicted military escorts, and other
witnesses;

i. Forensic experiments and simulations of

events in relation to this case.[18]

e. Re-enactment of the killing of Aquino based

on the military escorts[] version, by the
military escorts themselves in the Bilibid
Prison and by volunteers at the NAIA Tarmac;

These materials were available to the parties

during the trial and there was nothing that
prevented the petitioners from using them at
the time to support their theory that it was

not the military, but Rolando Galman, who

killed Senator Aquino. Petitioners, in their
present motion, failed to present any new
forensic evidence that could not have been
obtained by the defense at the time of the
trial even with the exercise of due diligence. If
they really wanted to seek and offer the
opinion of other forensic experts at the time
regarding the physical evidence gathered at
the scene of the crime, there was ample
opportunity for them to do so before the case
was finally submitted and decided.[19]
A reading of the Sandiganbayan decision
dated September 28, 1990 shows a thorough
study by the court of the forensic evidence
presented during the trial, viz:
COURT FINDINGS
As to the physical evidence
Great significance has to be accorded the
trajectory of the single bullet that penetrated
the head and caused the death of Sen.
Benigno Aquino, Jr. Basic to the question as to
trajectory ought to be the findings during the
autopsy. The prosector in the autopsy, Dr.
Bienvenido Muoz, NBI Medico-Legal Officer,
reported in his Autopsy Report No. N-83-2236, that the trajectory of the gunshot, the
wound of entrance having been located at the
mastoid region, left, below the external
auditory meatus, and the exit wound having
been at the anterior portion of the mandible,
was forward, downward and medially.
(Autopsy Report No. N-83-22-36, Exhibit
NNNN-2-t-2)
A controversy as to this trajectory came about
when, upon being cross-examined by counsel
for the defense, Dr. Bienvenido Muoz made a
significant turn-about by stating that the
correct trajectory of the fatal bullet was
upward, downward, and medially. The present
position of Dr. Muoz is premised upon the
alleged fact that he found the petrous bone
fractured, obviously hit by the fatal bullet. He
concluded, in view of this finding, that the

LEGAL MEDICINE 63
fatal bullet must have gone upward from the
wound of entrance. Since the fatal bullet
exited at the mandible, it is his belief that the
petrous bone deflected the trajectory of the
bullet and, thus, the bullet proceeded
downwards from the petrous bone to the
mandible.
This opinion of Dr. Bienvenido Muoz in this
regard notwithstanding, We hold that the
trajectory of the fatal bullet which killed Sen.
Benigno Aquino, Jr. was, indeed, forward,
downward and medially. For the reason that
the wound of entrance was at a higher
elevation than the wound of exit, there can be
no other conclusion but that the trajectory
was downward. The bullet when traveling at a
fast rate of speed takes a straight path from
the wound of entrance to the wound of exit. It
is unthinkable that the bullet, while projected
upwards, would, instead of exiting to the roof
of the head, go down to the mandible
because it was allegedly deflected by a
petrous bone which though hard is in fact a
mere spongy protuberance, akin to a
cartilage.
Clear is proof of the downward trajectory of
the fatal bullet; First, as Dr. Pedro Solis and Dr.
Ceferino Cunanan, the immediate superiors of
Dr. Bienvenido Muoz, manifested before the
Court, that, since the wound of entrance
appeared ovaloid and there is what is known
as a contusion collar which was widest at the
superior portion, indicating an acute angle of
approach, a downward trajectory of the bullet
is indicated. This phenomenon indicates that
the muzzle of the fatal gun was at a level
higher than that of the point of entry of the
fatal bullet.
There was no showing as to whether a probe
could have been made from the wound of
entrance to the petrous bone. Out of curiosity,
Dr. Juanito Billote tried to insert a probe from
the wound of exit into the petrous bone. He
was unsuccessful notwithstanding four or five
attempts. If at all, this disproves the theory of

Dr. Muoz that the trajectory was upward,

downward and medially. On the other hand,
Dr. Juanito Billote and photographer Alexander
Loinaz witnessed the fact that Dr. Muoz[s]
understudy, Alejandrino Javier, had
successfully made a probe from the wound of
entrance directly towards the wound of exit.
Alejandrino Javier shouted with excitement
upon his success and Alexander Loinaz
promptly photographed this event with
Alejandrino Javier holding the protruding end
of the probe at the mandible. (Exhibit XXXXX39-A)
To be sure, had the main bullet hit the petrous
bone, this spongy mash of cartilage would
have been decimated or obliterated. The fact
that the main bullet was of such force, power
and speed that it was able to bore a hole into
the mandible and crack it, is an indication
that it could not have been stopped or
deflected by a mere petrous bone. By its
power and force, it must have been propelled
by a powerful gun. It would have been
impossible for the main bullet to have been
deflected form an upward course by a mere
spongy protuberance. Granting that it was so
deflected, however, it could not have
maintained the same power and force as
when it entered the skull at the mastoid
region so as to crack the mandible and make
its exit there.

tendency of being radiated towards the

petrous bone.
Thus, the fracture in the occipital bone, of the
temporal bone, and of the parietal bone, Dr.
Pedro Solis pointed out, had been caused by
the aforesaid kinetic force. When a force is
applied to the mastoid region of the head, Dr.
Pedro Solis emphasized, a radiation of forces
is distributed all over the cranial back,
including, although not limited to, the parietal
bone. The skull, Dr. Solis explains, is a box-like
structure. The moment you apply pressure on
the portion, a distortion, tension or some
other mechanical defect is caused. This
radiation of forces produces what is known as
the spider web linear fracture which goes to
different parts of the body. The so-called
fracturing of the petrous portion of the left
temporal bone is one of the consequences of
the kinetic force forcefully applied to the
mastoid region.
The fact that there was found a fracture of the
petrous bone is not necessarily indicative of
the theory that the main bullet passed
through the petrous bone.

Doubt was expressed by Dr. Pedro Solis as to

whether the metal fragments alleged by Dr.
Bienvenido Muoz to have been found by him
inside the skull or at the wound of exit were
really parts of the main bullet which killed the
Senator. When Dr. Pedro Solis examined these
But what caused the fracture of the petrous
bone? Was there a cause of the fracture, other fragments, he found that two (2) of the
than that the bullet had hit it? Dr. Pedro Solis, fragments were larger in size, and were of
maintaining the conclusion that the trajectory such shapes, that they could not have gone
out of the wound of exit considering the size
of the bullet was downward, gave the
and shape of the exit wound.
following alternative explanations for the
fracture of the petrous bone
Finding of a downward trajectory of the fatal
First, the petrous bone could have been hit by bullet fatal to the credibility of defense
a splinter of the main bullet, particularly, that witnesses.
which was found at the temporal region; and,
The finding that the fatal bullet which killed
Sen. Benigno Aquino, Jr. was directed
Second, the fracture must have been caused
downwards sustains the allegation of
by the kinetic force applied to the point of
entrance at the mastoid region which had the prosecution eyewitnesses to the effect that
Sen. Benigno Aquino, Jr. was shot by a military

soldier at the bridge stairs while he was being

brought down from the plane. Rebecca
Quijano saw that the senator was shot by the
military man who was directly behind the
Senator while the Senator and he were
descending the stairs. Rebecca Quijanos
testimony in this regard is echoed by Jessie
Barcelona, Ramon Balang, Olivia Antimano,
and Mario Laher, whose testimonies this Court
finds likewise as credible.
The downward trajectory of the bullet having
been established, it stands to reason that the
gun used in shooting the Senator was fired
from an elevation higher than that of the
wound of entrance at the back of the head of
the Senator. This is consistent with the
testimony of prosecution witnesses to the
effect that the actual killer of the Senator shot
as he stood at the upper step of the stairs, the
second or third behind Senator Aquino, while
Senator Aquino and the military soldiers
bringing him were at the bridge stairs. This is
likewise consistent with the statement of
Sandra Jean Burton that the shooting of
Senator Aquino occurred while the Senator
was still on the bridge stairs, a conclusion
derived from the fact that the fatal shot was
fired ten (10) seconds after Senator Aquino
crossed the service door and was led down
the bridge stairs.
It was the expert finding of Dr. Matsumi
Suzuki that, as was gauged from the sounds
of the footsteps of Senator Aquino, as the
Senator went down the bridge stairs, the
shooting of the Senator occurred while the
Senator had stepped on the 11th step from the
top.
At the ocular inspection conducted by this
Court, with the prosecution and the defense in
attendance, it should be noted that the
following facts were established as regards
the bridge stairs:
Observations:

LEGAL MEDICINE 64
The length of one block covering the tarmac
196;

bullet was forward, downward, and

medially . . .

The width of one block covering the tarmac

10;

II.The wound of entrance having been at a

higher elevation than the wound of exit, there
can be no other conclusion but that the
trajectory was downward. The fatal bullet,
whether it be a Smith and Wesson Caliber .
357 magnum revolver or a .45 caliber, must
have traveled at a fast rate of speed and it
stands to reason that it took a straight path
from the wound of entrance to the wound of
exit. A hole indicating this straight path was
proven to have existed. If, as contended on
cross-examination by Dr. Bienvenido Muoz,
that the bullet was projected upwards, it
ought to have exited at the roof of the head.
The theory that the fatal bullet was deflected
by a mere petrous bone is inconceivable.

The distance from the base of the staircase

leading to the emergency tube to the Ninoy
marker at the tarmac 126;
There are 20 steps in the staircase including
the landing;
The distance from the first rung of the
stairway up to the 20th rung which is the
landing of stairs 208;
Distance from the first rung of the stairway up
to the 20th rung until the edge of the exit door
2311;
Distance from the 4th rung up to the exit door
21;
Distance from the 5th rung up to the exit door
1911;
Length of one rung including railpost 34;
Space between two rungs of stairway 9;
Width of each rung 11-1/2;
Length of each rung (end to end) 29:
Height of railpost from edge of rung to railing
25.
(underlining supplied)[20]
The Sandiganbayan again exhaustively
analyzed and discussed the forensic evidence
in its resolution dated November 15, 1990
denying the motion for reconsideration filed
by the convicted accused. The court held:
The Autopsy Report No. N-83-2236, Exhibit
NNNN-2-t-2 indicated a downward trajectory
of the fatal bullet when it stated that the fatal

III.Since the wound of entrance appeared

ovaloid and there is what is known as a
contusion collar which was widest at the
superior portion, indicating an acute angle of
approach, a downward trajectory of the fatal
bullet is conclusively indicated. This
phenomenon indicates that the muzzle of the
fatal gun was at a level higher than that of
the point of entry of the fatal bullet.
IV.There was no hole from the petrous bone to
the mandible where the fatal bullet had exited
and, thus, there is no support to the theory of
Dr. Bienvenido Muoz that the fatal bullet had
hit the petrous bone on an upward trajectory
and had been deflected by the petrous bone
towards the mandible. Dr. Juanito Billotes
testimony in this regard had amplified the
matter with clarity.
These physical facts, notwithstanding the
arguments and protestations of counsel for
the defense as now and heretofore avowed,
compel the Court to maintain the holding: (1)
that the trajectory of the fatal bullet which hit
and killed Senator Benigno Aquino, Jr. was
forward, downward and medially; (2) that the
Senator was shot by a person who stood at a
higher elevation than he; and (3) that the

Senator was shot and killed by CIC Rogelio

Moreno on the bridge stairs and not on the
tarmac, in conspiracy with the rest of the
accused convicted herein.[21]
This Court affirmed said findings of the
Sandiganbayan when it denied the petition for
review in its resolution of July 25, 1991. The
Court ruled:

of this petition is best left to the judgment of

the Sandiganbayan.[22]
The report of the forensic group
essentially reiterates the theory
presented by the defense during the
trial of the double murder case. Clearly,
the report is not newly discovered, but rather
recently sought, which is not allowed by the
Rules.[23] If at all, it only serves to discredit the
version of the prosecution which had already
been weighed and assessed, and thereafter
upheld by the Sandiganbayan.

The Court has carefully considered and

deliberated upon all the contentions of the
petitioners but finds no basis for the
allegation that the respondent Sandiganbayan
has gravely erred in resolving the factual
The same is true with the statement of the
issues.
alleged eyewitness, SPO4 Cantimbuhan. His
narration merely corroborates the testimonies
The attempt to place a constitutional
of other defense witnesses during the trial
dimension in the petition is a labor in vain.
that they saw Senator Aquino already walking
Basically, only questions of fact are raised.
on the airport tarmac toward the AVSECOM
Not only is it axiomatic that the factual
van when a man in blue-gray uniform darted
findings of the Sandiganbayan are final unless from behind and fired at the back of the
they fall within specifically recognized
Senators head.[24] The Sandiganbayan,
exceptions to the rule but from the petition
however, did not give weight to their account
and its annexes alone, it is readily apparent
as it found the testimonies of prosecution
that the respondent Court correctly resolved
eyewitnesses Rebecca Quijano and Jessie
the factual issues.
Barcelona more credible. Quijano and
Barcelona testified that they saw the soldier
The trajectory of the fatal bullet, whether or
behind Senator Aquino on the stairway aim
not the victim was descending the stairway or and fire a gun on the latters nape. As earlier
was on the tarmac when shot, the
quoted, the Sandiganbayan found their
circumstances showing conspiracy, the
testimonies to be more consistent with the
participants in the conspiracy, the individual
physical evidence. SPO4 Cantimbuhans
roles of the accused and their respective parts testimony will not in any way alter the courts
in the conspiracy, the absence of evidence
decision in view of the eyewitness account of
against thirteen accused and their co-accused Quijano and Barcelona, taken together with
Col. Vicente B. Tigas, Jr., the lack of credibility the physical evidence presented during the
of the witnesses against former Minister Jose
trial. Certainly, a new trial will only be
D. Aspiras, Director Jesus Z. Singson, Col.
allowed if the new evidence is of such
Arturo A. Custodio, Hermilo Gosuico, Major
weight that it would probably change
General Prospero Olivas, and the shooting of
the judgment if admitted.[25] Also, new
Rolando Galman are all factual matters
trial will not be granted if the new
w[h]ich the respondent court discussed with
evidence is merely cumulative,
fairness and at length. The petitioners
corroborative or impeaching.
insistence that a few witnesses in their favor
should be believed while that of some
As additional support to their motion for new
witnesses against them should be discredited trial, petitioners also claim that they were
goes into the question of credibility of
denied due process because they were
witnesses, a matter which under the records

LEGAL MEDICINE 65
deprived of adequate legal assistance by
counsel. We are not persuaded. The records
will bear out that petitioners were ably
represented by Atty. Rodolfo U. Jimenez during
the trial and when the case was elevated to
this Court. An experienced lawyer in criminal
cases, Atty. Jimenez vigorously defended the
petitioners cause throughout the entire
proceedings. The records show that the
defense presented a substantial number of
witnesses and exhibits during the trial. After
the Sandiganbayan rendered its decision, Atty.
Jimenez filed a petition for review with this
Court, invoking all conceivable grounds to
acquit the petitioners. When the Court denied
the petition for review, he again filed a motion
for reconsideration exhausting his deep
reservoir of legal talent. We therefore find
petitioners claim to be unblushingly
unsubstantiated. We note that they did not
allege any specific facts in their present
motion to show that Atty. Jimenez had been
remiss in his duties as counsel. Petitioners are

therefore bound by the acts and decisions of

their counsel as regards the conduct of the
case. The general rule is that the client is
bound by the action of his counsel in the
conduct of his case and cannot be heard to
complain that the result of the litigation might
have been different had his counsel
proceeded differently.[26] We held in People
vs. Umali:[27]
In criminal as well as civil cases, it has
frequently been held that the fact that
blunders and mistakes may have been made
in the conduct of the proceedings in the trial
court, as a result of the ignorance,
inexperience, or incompetence of counsel,
does not furnish a ground for a new trial.
If such grounds were to be admitted as
reasons for reopening cases, there would
never be an end to a suit so long as new
counsel could be employed who could allege
and show that prior counsel had not been

sufficiently diligent, or experienced, or

learned.

IN VIEW WHEREOF, the motion is DENIED.

SO ORDERED.

So it has been held that mistakes of attorneys

as to the competency of a witness, the
sufficiency, relevancy, materiality, or
immateriality of a certain evidence, the
proper defense, or the burden of proof are not
proper grounds for a new trial; and in general
the client is bound by the action of his counsel
in the conduct of his case, and can not be
heard to complain that the result of the
litigation might have been different had
counsel proceeded differently. (citations
omitted)
Finally, we are not moved by petitioners
assertion that the forensic evidence may have
been manipulated and misinterpreted during
the trial of the case. Again, petitioners did not
allege concrete facts to support their crass
claim. Hence, we find the same to be
unfounded and purely speculative.