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Andamo vs.

Intermediate Appellate
Court
G.R. No. 74761 November 6, 1990
Fernan, C.J.
Doctrine: It must be stressed that the
use of ones property is not without
limitations. Article 431 of the Civil Code
provides that the owner of a thing
cannot make use thereof in such a
manner as to injure the rights of a third
person. SIC UTERE TUO UT ALIENUM
NON LAEDAS.
Facts: Petitioner spouses Andamo
owned a parcel of land situated in Biga
Silang, Cavite which is adjacent to that
of private respondent corporation,
Missionaries of Our lady of La Salette,
Inc. Within the land of the latter,
waterpaths and contrivances, including
an artificial lake, were constructed,
which allegedly inundated and eroded
petitioners land, caused a young man to
drown, damagaed petitioners crops and
plants, washed away costly fences,
endangered the livesofthepetitioners
and their laborers and some other
destructions.
This prompted petitioner spouses to file
a criminal action for destruction by
means of inundation under Article 324 of
the RPC and a civil action for damages.
Issue: Whether petitioner spouses
Andamo can claim damages for
destruction caused by respondents
waterpaths and contrivances on the
basis of Articles 2176 and 2177 of the
Civil Code on quasi-delicts.
Held: Yes. A careful examination of the
aforequoted complaint shows that the
civil action is one under Articles 2176
and 2177 of the Civil Code on quasidelicts. All the elements of a quasi-delict
are present, to wit: (a) damages suffered
by the plaintiff, (b) fault or negligence of
the defendant, or some other person for
whose acts he must respond; and (c)

the connection of cause and effect


between the fault or negligence of the
defendant and the damages incurred by
the plaintiff. 11
Clearly, from petitioners complaint, the
waterpaths and contrivances built by
respondent corporation are alleged to
have inundated the land of petitioners.
There is therefore, an assertion of a
causal connection between the act of
building these waterpaths and the
damage sustained by petitioners. Such
action if proven constitutes fault or
negligence which may be the basis for
the recovery of damages.
It must be stressed that the use of ones
property is not without limitations. Article
431 of the Civil Code provides that the
owner of a thing cannot make use
thereof in such a manner as to injure the
rights of a third person. SIC UTERE
TUO UT ALIENUM NON LAEDAS.
Moreover, adjoining landowners have
mutual and reciprocal duties which
require that each must use his own land
in a reasonable manner so as not to
infringe upon the rights and interests of
others. Although we recognize the right
of an owner to build structures on his
land, such structures must be so
constructed and maintained using all
reasonable care so that they cannot be
dangerous to adjoining landowners and
can withstand the usual and expected
forces of nature. If the structures cause
injury or damage to an adjoining
landowner or a third person, the latter
can claim indemnification for the injury
or damage suffered.
Caveat: Anyone who claims this
digest as his own without proper
authority shall be held liable under
the law of Karma.

Singson vs BPI

Subsequently, two checks issued by the


plaintiff Julian C. Singson, one in favor

23 SCRA 1117

of B. M. Glass Service and another in

FACTS: Singson, was one of the


defendants in a civil case, in which
judgment had been rendered sentencing
him

and

his

co-defendants

therein

Lobregat and Villa-Abrille & Co., to pay


a sum of money to the plaintiff therein.
Said

judgment

became

final

and

executory as only against Ville-Abrille for


its failure to file an appeal. A writ of
garnishment was subsequently served
upon BPI in which the Singsons had
a current account insofar as VillaAbrilles credits against the Bank were
concerned.
Upon receipt of the said Writ of
Garnishment, a clerk of the bank, upon

favor of the Lega Corporation, were


dishonored by the bank. B. M. Glass
Service then wrote to Singson that the
check was not honored by BPI because
his account therein had already been
garnished

and

that

they

are

now

constrained to close his credit account


with them.
Singson wrote to BPI, claiming that his
name was not included in the Writ of
Execution and Notice of Garnishment,
which was served upon the bank. The
defendants lost no time to rectify the
mistake that had been inadvertently
committed.
Thus this action for damages.

reading the name of the Singson in the


title of the Writ of Garnishment as a

ISSUE: WON the existence of a contract

party defendants, without further reading

between the parties bars a plaintiffs

the body and informing himself that said

claim for damages based on torts?

garnishment was merely intended for


the deposits of defendant Villa-Abrille &
Co., et al, prepared a letter informing
Singson of the garnishment of his
deposits by the plaintiff in that case.

HELD: NO. The existence of a contract


between the parties does not bar the
commission of a tort by the one against
the order and the consequent recovery
of damages therefore. Indeed, this view
has been, in effect, reiterated in a

comparatively recent case. Thus, in Air


France vs. Carrascoso, involving an
airplane passenger who, despite his
first-class ticket, had
ousted

from

been

his

illegally
first-class

accommodation and compelled to take a


seat in the tourist compartment, was
held entitled to recover damages from
the air-carrier, upon the ground of tort on
the latters part, for, although the relation
between a passenger and a carrier is
contractual both in origin and nature
the act that breaks the contract may
also be a tort.
In view, however, of the facts obtaining
in the case at bar, and considering,
particularly, the circumstance, that the
wrong done to the plaintiff was remedied
as soon as the President of the bank
realized

the

mistake

he

and

his

subordinate employee had committed,


the Court finds that an award of nominal
damages the amount of which need
not be proven in the sum of P1,000,
in addition to attorneys fees in the sum
of P500, would suffice to vindicate
plaintiffs rights.
Vda. da Bataclan v. Medina
Facts:

The deceased Juan Bataclan was


among the passengers of Medina
Transportation, driven by Conrado
Saylon and operated by Mariano
Medina. On its way from Cavite to
Pasay, the front tires burst and the
vehicle fell into a canal. Some
passengers were able to escape by
themselves or with some help, while
there were 4, including Bataclan, who
could not get out. Their cries were heard
in the neighbourhood. Then there came
about 10 men, one of them carrying a
torch. As they approached the bus, it
caught fire and the passengers died.
The fire was due to gasoline leak and
the torch. Salud Villanueva Vda. de
Bataclan, in her name and on behalf of
her 5 minor children, sought to claim
damages from the bus company. The
CFI favored the plaintiff, and the Court
of Appeals forwarded the case to the
Supreme Court due to the amount
involved.
Issue:
What was the proximate cause of the
death of Juan and the other
passengers?
Held:
We agree with the trial court that the
case involves a breach of contract of
transportation for hire, the Medina
Transportation having undertaken to
carry Bataclan safely to his destination,
Pasay City. We also agree with the trial
court that there was negligence on the
part of the defendant, through his agent,
the driver Saylon. There is evidence to
show that at the time of the blow out, the
bus was speeding, as testified to by one
of the passengers, and as shown by the
fact that according to the testimony of

the witnesses, including that of the


defense, from the point where one of the
front tires burst up to the canal where
the bus overturned after zig-zaging,
there was a distance of about 150
meters. The chauffeur, after the blowout, must have applied the brakes in
order to stop the bus, but because of the
velocity at which the bus must have
been running, its momentum carried it
over a distance of 150 meters before it
fell into the canal and turned turtle.
There is no question that under the
circumstances, the defendant carrier is
liable. The only question is to what
degree. A satisfactory definition of
proximate cause is found in Volume 38,
pages 695-696 of American
jurisprudence, cited by plaintiffsappellants in their brief. It is as follows:
. . . 'that cause, which, in natural and
continuous sequence, unbroken by
any efficient intervening cause,
produces the injury, and without
which the result would not have
occurred.' And more
comprehensively, 'the proximate
legal cause is that acting first and
producing the injury, either
immediately or by setting other
events in motion, all constituting a
natural and continuous chain of
events, each having a close causal
connection with its immediate
predecessor, the final event in the
chain immediately effecting the injury
as a natural and probable result of
the cause which first acted, under
such circumstances that the person
responsible for the first event should,
as an ordinary prudent and intelligent
person, have reasonable ground to
expect at the moment of his act or

default that an injury to some person


might probably result therefrom.
In the present case under the
circumstances obtaining in the same,
we do not hesitate to hold that the
proximate cause was the overturning of
the bus, this for the reason that when
the vehicle turned not only on its side
but completely on its back, the leaking
of the gasoline from the tank was not
unnatural or unexpected; that the
coming of the men with a lighted torch
was in response to the call for help,
made not only by the passengers, but
most probably, by the driver and the
conductor themselves, and that because
it was dark (about 2:30 in the morning),
the rescuers had to carry a light with
them, and coming as they did from a
rural area where lanterns and flashlights
were not available; and what was more
natural than that said rescuers should
innocently approach the vehicle to
extend the aid and effect the rescue
requested from them. In other words,
the coming of the men with a torch was
to be expected and was a natural
sequence of the overturning of the bus,
the trapping of some of its passengers
and the call for outside help. What is
more, the burning of the bus can also in
part be attributed to the negligence of
the carrier, through is driver and its
conductor. According to the witness, the
driver and the conductor were on the
road walking back and forth. They, or at
least, the driver should and must have
known that in the position in which the
overturned bus was, gasoline could and
must have leaked from the gasoline tank
and soaked the area in and around the
bus, this aside from the fact that
gasoline when spilled, specially over a
large area, can be smelt and directed
even from a distance, and yet neither

the driver nor the conductor would


appear to have cautioned or taken steps
to warn the rescuers not to bring the
lighted torch too near the bus.
Reyes vs. Sisters of Mercy HospitalG.R
No. 130547 (October 3, 2000)A.
Legal IssueWhether or not Sisters of
Mercy Hospital is liable for the death of
Jorge Reyes.B.
FactsPetitioner, Leah Alesna Reyes, is
the wife of the deceased patient, Jorge
Reyes. Five days
before the latters
death, Jorge has been suffering from re
curring fever with chills. The doctors
confirmed through the Widal test that
Jorge has typhoid fever. However, he
did not respond tothe treatment and
died. The cause of his death was
Ventric
ular Arrythemia Secondary to
Hyperpyrexia and typhoid fever.
Consequently, petitioner filed the instant
case for damages before the Regional
Trial Court of Cebu City, which
dismissed the case and was affirmed by
theCourt of Appeals.The contention was
that Jorge did not die of typhoid fever.
Instead, his death was due tothe
wrongful administration of
chloromycetin. They contended that had
respondent doctorsexercised due care
and diligence, they would not have
recommended and rushed the
performanceof the Widal Test, hastily
concluded that Jorge was suffering from
typhoid fever, and
administered chloromycetin without first
conducting sufficient tests on the
patients
compatibility with said drug.C.

RulingSisters of Mercy Hospital is not


liable for the death of Jorge Reyes.D.
Reasoning of the CourtThere is no
showing that the attending physician in
this case deviated from the usualcourse
of treatment with respect to typhoid
fever. Jorge was given antibiotic
choloromycetin andsome dose of
triglobe after compatibility test was
made by the doctor and found that no
adversereactions manifested which
would necessitate replacement of the
medicines. Indeed, the
standardcontemplated is not what is
actually the average merit among all
known practitioners from
the best to the worst and from the most t
o the least experienced, but the reasona
ble average meritamong the ordinarily
good physicians. Here, the doctors did
not depart from the reasonablestandard
recommended by the experts as they in
fact observed the due care required
under thecircumstances.E.
PolicyIn Medical Negligence cases, it is
incumbent upon the plaintiff to establish
that the usual procedure in treating
the illness is not followed by the doctor.
Failure to prove this, the doctor isnot
liable. Physicians are not insurers of the
success of every procedure undertaken
and if
the procedure was shown to be properly
done but did not work, they cannot be fa
ulted for suchresult
ROGELIO E. RAMOS and ERLINDA
RAMOS, in their own behalf
and as natural guardians of the
minors, ROMMEL RAMOS,
ROY RODERICK RAMOS and
RON RAYMOND
RAMOS, petitioners, vs.
COURT OF APPEALS, DELOS
SANTOS MEDICAL CENTER,

DR. ORLINO HOSAKA and


DRA. PERFECTA
GUTIERREZ, respondents.
DECISION
KAPUNAN, J.:
The Hippocratic Oath mandates
physicians to give primordial
consideration to the health and welfare
of their patients. If a doctor fails to live
up to this precept, he is made
accountable for his acts. A mistake,
through gross negligence or
incompetence or plain human error, may
spell the difference between life and
death. In this sense, the doctor plays
God on his patients fate.[1]
In the case at bar, the Court is
called upon to rule whether a surgeon,
an anesthesiologist and a hospital
should be made liable for the
unfortunate comatose condition of a
patient scheduled for cholecystectomy.[2]
Petitioners seek the reversal of the
decision[3] of the Court of Appeals, dated
29 May 1995, which overturned the
decision[4]of the Regional Trial Court,
dated 30 January 1992, finding private
respondents liable for damages arising
from negligence in the performance of
their professional duties towards
petitioner Erlinda Ramos resulting in her
comatose condition.
The antecedent facts as
summarized by the trial court are
reproduced hereunder:
Plaintiff Erlinda Ramos was, until the
afternoon of June 17, 1985, a 47-year
old (Exh. A) robust woman (TSN,
October 19, 1989, p. 10). Except for
occasional complaints of discomfort due
to pains allegedly caused by the

presence of a stone in her gall bladder


(TSN, January 13, 1988, pp. 4-5), she
was as normal as any other
woman. Married to Rogelio E. Ramos,
an executive of Philippine Long
Distance Telephone Company, she has
three children whose names are
Rommel Ramos, Roy Roderick Ramos
and Ron Raymond Ramos (TSN,
October 19, 1989, pp. 5-6).
Because the discomforts somehow
interfered with her normal ways, she
sought professional advice. She was
advised to undergo an operation for the
removal of a stone in her gall bladder
(TSN, January 13, 1988, p. 5). She
underwent a series of examinations
which included blood and urine tests
(Exhs. A and C) which indicated she
was fit for surgery.
Through the intercession of a mutual
friend, Dr. Buenviaje (TSN, January 13,
1988, p. 7), she and her husband
Rogelio met for the first time Dr. Orlino
Hozaka (should be Hosaka; see TSN,
February 20, 1990, p. 3), one of the
defendants in this case, on June 10,
1985. They agreed that their date at the
operating table at the DLSMC (another
defendant), would be on June 17, 1985
at 9:00 A.M.. Dr. Hosaka decided that
she should undergo a cholecystectomy
operation after examining the
documents (findings from the Capitol
Medical Center, FEU Hospital and
DLSMC) presented to him.Rogelio E.
Ramos, however, asked Dr. Hosaka to
look for a good anesthesiologist. Dr.
Hosaka, in turn, assured Rogelio that he
will get a good anesthesiologist. Dr.
Hosaka charged a fee of P16,000.00,
which was to include the
anesthesiologists fee and which was to
be paid after the operation (TSN,

October 19, 1989, pp. 14-15, 22-23, 3133; TSN, February 27, 1990, p. 13; and
TSN, November 9, 1989, pp. 3-4, 10,
17).

went back to the patient who asked,


Mindy, wala pa ba ang Doctor? The
former replied, Huwag kang mag-alaala,
darating na iyon (ibid.).

A day before the scheduled date of


operation, she was admitted at one of
the rooms of the DLSMC, located along
E. Rodriguez Avenue, Quezon City
(TSN, October 19, 1989, p. 11).

Thereafter, Herminda went out of the


operating room and informed the
patients husband, Rogelio, that the
doctor was not yet around (id., p.
13). When she returned to the operating
room, the patient told her, Mindy, inip na
inip na ako, ikuha mo ako ng ibang
Doctor. So, she went out again and told
Rogelio about what the patient said (id.,
p. 15). Thereafter, she returned to the
operating room.

At around 7:30 A.M. of June 17, 1985


and while still in her room, she was
prepared for the operation by the
hospital staff. Her sister-in-law,
Herminda Cruz, who was the Dean of
the College of Nursing at the Capitol
Medical Center, was also there for moral
support. She reiterated her previous
request for Herminda to be with her
even during the operation. After praying,
she was given injections. Her hands
were held by Herminda as they went
down from her room to the operating
room (TSN, January 13, 1988, pp. 911). Her husband, Rogelio, was also
with her (TSN, October 19, 1989, p.
18). At the operating room, Herminda
saw about two or three nurses and Dr.
Perfecta Gutierrez, the other defendant,
who was to administer
anesthesia. Although not a member of
the hospital staff, Herminda introduced
herself as Dean of the College of
Nursing at the Capitol Medical Center
who was to provide moral support to the
patient, to them. Herminda was allowed
to stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez
reached a nearby phone to look for Dr.
Hosaka who was not yet in (TSN,
January 13, 1988, pp. 11-12). Dr.
Gutierrez thereafter informed Herminda
Cruz about the prospect of a delay in
the arrival of Dr. Hosaka. Herminda then

At around 10:00 A.M., Rogelio E.


Ramos was already dying [and] waiting
for the arrival of the doctor even as he
did his best to find somebody who will
allow him to pull out his wife from the
operating room (TSN, October 19, 1989,
pp. 19-20). He also thought of the
feeling of his wife, who was inside the
operating room waiting for the doctor to
arrive (ibid.). At almost 12:00 noon, he
met Dr. Garcia who remarked that he
(Dr. Garcia) was also tired of waiting for
Dr. Hosaka to arrive (id., p. 21). While
talking to Dr. Garcia at around 12:10
P.M., he came to know that Dr. Hosaka
arrived as a nurse remarked, Nandiyan
na si Dr. Hosaka, dumating na
raw. Upon hearing those words, he went
down to the lobby and waited for the
operation to be completed (id., pp. 16,
29-30).
At about 12:15 P.M., Herminda Cruz,
who was inside the operating room with
the patient, heard somebody say that
Dr. Hosaka is already here. She then
saw people inside the operating room
moving, doing this and that, [and]
preparing the patient for the operation

(TSN, January 13, 1988, p. 16). As she


held the hand of Erlinda Ramos, she
then saw Dr. Gutierrez intubating the
hapless patient. She thereafter heard
Dr. Gutierrez say, ang hirap ma-intubate
nito, mali yata ang pagkakapasok. O
lumalaki ang tiyan (id., p. 17). Because
of the remarks of Dra. Gutierrez, she
focused her attention on what Dr.
Gutierrez was doing. She thereafter
noticed bluish discoloration of the
nailbeds of the left hand of the hapless
Erlinda even as Dr. Hosaka approached
her.She then heard Dr. Hosaka issue an
order for someone to call Dr. Calderon,
another anesthesiologist (id., p.
19). After Dr. Calderon arrived at the
operating room, she saw this
anesthesiologist trying to intubate the
patient. The patients nailbed became
bluish and the patient was placed in a
trendelenburg position - a position
where the head of the patient is placed
in a position lower than her feet which is
an indication that there is a decrease of
blood supply to the patients brain (Id.,
pp. 19-20). Immediately thereafter, she
went out of the operating room, and she
told Rogelio E. Ramos that something
wrong was x x x happening (Ibid.). Dr.
Calderon was then able to intubate the
patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside
the operating room, saw a respiratory
machine being rushed towards the door
of the operating room. He also saw
several doctors rushing towards the
operating room. When informed by
Herminda Cruz that something wrong
was happening, he told her (Herminda)
to be back with the patient inside the
operating room (TSN, October 19, 1989,
pp. 25-28).

Herminda Cruz immediately rushed


back, and saw that the patient was still
in trendelenburg position (TSN, January
13, 1988, p. 20). At almost 3:00 P.M. of
that fateful day, she saw the patient
taken to the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E.
Ramos was able to talk to Dr.
Hosaka. The latter informed the former
that something went wrong during the
intubation. Reacting to what was told to
him, Rogelio reminded the doctor that
the condition of his wife would not have
happened, had he (Dr. Hosaka) looked
for a good anesthesiologist (TSN,
October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were
also asked by the hospital to explain
what happened to the patient. The
doctors explained that the patient had
bronchospasm (TSN, November 15,
1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a
month. About four months thereafter or
on November 15, 1985, the patient was
released from the hospital.
During the whole period of her
confinement, she incurred hospital bills
amounting to P93,542.25 which is the
subject of a promissory note and
affidavit of undertaking executed by
Rogelio E. Ramos in favor of
DLSMC. Since that fateful afternoon of
June 17, 1985, she has been in a
comatose condition. She cannot do
anything. She cannot move any part of
her body. She cannot see or hear. She
is living on mechanical means. She
suffered brain damage as a result of the
absence of oxygen in her brain for four
to five minutes (TSN, November 9,
1989, pp. 21-22). After being discharged

from the hospital, she has been staying


in their residence, still needing constant
medical attention, with her husband
Rogelio incurring a monthly expense
ranging fromP8,000.00 to P10,000.00
(TSN, October 19, 1989, pp. 3234). She was also diagnosed to be
suffering from diffuse cerebral
parenchymal damage (Exh. G; see also
TSN, December 21, 1989, p. 6).[5]
Thus, on 8 January 1986,
petitioners filed a civil case[6] for
damages with the Regional Trial Court
of Quezon City against herein private
respondents alleging negligence in the
management and care of Erlinda
Ramos.
During the trial, both parties
presented evidence as to the possible
cause of Erlindas injury. Plaintiff
presented the testimonies of Dean
Herminda Cruz and Dr. Mariano Gavino
to prove that the damage sustained by
Erlinda was due to lack of oxygen in her
brain caused by the faulty management
of her airway by private respondents
during the anesthesia phase. On the
other hand, private respondents
primarily relied on the expert testimony
of Dr. Eduardo Jamora, a pulmonologist,
to the effect that the cause of brain
damage was Erlindas allergic reaction to
the anesthetic agent, Thiopental Sodium
(Pentothal).
After considering the evidence from
both sides, the Regional Trial Court
rendered judgment in favor of
petitioners, to wit:
After evaluating the evidence as shown
in the finding of facts set forth earlier,
and applying the aforecited provisions of
law and jurisprudence to the case at bar,
this Court finds and so holds that

defendants are liable to plaintiffs for


damages. The defendants were guilty
of, at the very least, negligence in the
performance of their duty to plaintiffpatient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez,
this Court finds that she omitted to
exercise reasonable care in not only
intubating the patient, but also in not
repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10),
without due regard to the fact that the
patient was inside the operating room
for almost three (3) hours. For after she
committed a mistake in intubating [the]
patient, the patient's nailbed became
bluish and the patient, thereafter, was
placed in trendelenburg position,
because of the decrease of blood supply
to the patient's brain. The evidence
further shows that the hapless patient
suffered brain damage because of the
absence of oxygen in her (patient's)
brain for approximately four to five
minutes which, in turn, caused the
patient to become comatose.
On the part of Dr. Orlino Hosaka, this
Court finds that he is liable for the acts
of Dr. Perfecta Gutierrez whom he had
chosen to administer anesthesia on the
patient as part of his obligation to
provide the patient a `good
anesthesiologist', and for arriving for the
scheduled operation almost three (3)
hours late.
On the part of DLSMC (the hospital),
this Court finds that it is liable for the
acts of negligence of the doctors in their
`practice of medicine' in the operating
room. Moreover, the hospital is liable for
failing through its responsible officials, to
cancel the scheduled operation after Dr.

Hosaka inexcusably failed to arrive on


time.

4) the costs of the suit.


SO ORDERED.[7]

In having held thus, this Court rejects


the defense raised by defendants that
they have acted with due care and
prudence in rendering medical services
to plaintiff-patient. For if the patient was
properly intubated as claimed by them,
the patient would not have become
comatose. And, the fact that another
anesthesiologist was called to try to
intubate the patient after her (the
patient's) nailbed turned bluish, belie
their claim. Furthermore, the defendants
should have rescheduled the operation
to a later date. This, they should have
done, if defendants acted with due care
and prudence as the patient's case was
an elective, not an emergency case.
xxx
WHEREFORE, and in view of the
foregoing, judgment is rendered in favor
of the plaintiffs and against the
defendants. Accordingly, the latter are
ordered to pay, jointly and severally, the
former the following sums of money, to
wit:
1) the sum of P8,000.00 as actual
monthly expenses for the plaintiff Erlinda
Ramos reckoned from November 15,
1985 or in the total sum of P632,000.00
as of April 15, 1992, subject to its being
updated;
2) the sum of P100,000.00 as
reasonable attorney's fees;
3) the sum of P800,000.00 by way of
moral damages and the further sum
of P200,000.00 by way of exemplary
damages; and,

Private respondents seasonably


interposed an appeal to the Court of
Appeals. The appellate court rendered a
Decision, dated 29 May 1995, reversing
the findings of the trial court. The
decretal portion of the decision of the
appellate court reads:
WHEREFORE, for the foregoing
premises the appealed decision is
hereby REVERSED, and the complaint
below against the appellants is hereby
ordered DISMISSED. The counterclaim
of appellant De Los Santos Medical
Center is GRANTED but only insofar as
appellees are hereby ordered to pay the
unpaid hospital bills amounting
to P93,542.25, plus legal interest for
justice must be tempered with mercy.
SO ORDERED.[8]
The decision of the Court of Appeals
was received on 9 June 1995 by
petitioner Rogelio Ramos who was
mistakenly addressed as Atty. Rogelio
Ramos. No copy of the decision,
however, was sent nor received by the
Coronel Law Office, then counsel on
record of petitioners. Rogelio referred
the decision of the appellate court to a
new lawyer, Atty. Ligsay, only on 20
June 1995, or four (4) days before the
expiration of the reglementary period for
filing a motion for reconsideration. On
the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of
time to file a motion for
reconsideration. The motion for
reconsideration was submitted on 4 July
1995. However, the appellate court
denied the motion for extension of time

in its Resolution dated 25 July 1995.


[9]
Meanwhile petitioners engaged the
services of another counsel, Atty.
Sillano, to replace Atty. Ligsay. Atty.
Sillano filed on 7 August 1995 a motion
to admit the motion for reconsideration
contending that the period to file the
appropriate pleading on the assailed
decision had not yet commenced to run
as the Division Clerk of Court of the
Court of Appeals had not yet served a
copy thereof to the counsel on
record. Despite this explanation, the
appellate court still denied the motion to
admit the motion for reconsideration of
petitioners in its Resolution, dated 29
March 1996, primarily on the ground
that the fifteen-day (15) period for filing
a motion for reconsideration had already
expired, to wit:

A copy of the above resolution was


received by Atty. Sillano on 11 April
1996. The next day, or on 12 April 1996,
Atty. Sillano filed before this Court a
motion for extension of time to file the
present petition for certiorari under Rule
45. The Court granted the motion for
extension of time and gave petitioners
additional thirty (30) days after the
expiration of the fifteen-day (15) period
counted from the receipt of the
resolution of the Court of Appeals within
which to submit the petition. The due
date fell on 27 May 1996. The petition
was filed on 9 May 1996, well within the
extended period given by the Court.
Petitioners assail the decision of the
Court of Appeals on the following
grounds:
I

We said in our Resolution on July 25,


1995, that the filing of a Motion for
Reconsideration cannot be extended;
precisely, the Motion for Extension
(Rollo, p. 12) was denied. It is, on the
other hand, admitted in the latter Motion
that plaintiffs/appellees received a copy
of the decision as early as June 9,
1995. Computation wise, the period to
file a Motion for Reconsideration expired
on June 24. The Motion for
Reconsideration, in turn, was received
by the Court of Appeals already on July
4, necessarily, the 15-day period already
passed. For that alone, the latter should
be denied.
Even assuming admissibility of the
Motion for Reconsideration, but after
considering the Comment/Opposition,
the former, for lack of merit, is hereby
DENIED.
SO ORDERED.[10]

IN PUTTING MUCH RELIANCE ON


THE TESTIMONIES OF
RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON
AND DR. JAMORA;
II
IN FINDING THAT THE
NEGLIGENCE OF THE
RESPONDENTS DID NOT CAUSE
THE UNFORTUNATE COMATOSE
CONDITION OF PETITIONER
ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF
RES IPSA LOQUITUR.[11]
Before we discuss the merits of the
case, we shall first dispose of the
procedural issue on the timeliness of the
petition in relation to the motion for

reconsideration filed by petitioners with


the Court of Appeals. In their Comment,
[12]
private respondents contend that the
petition should not be given due course
since the motion for reconsideration of
the petitioners on the decision of the
Court of Appeals was validly dismissed
by the appellate court for having been
filed beyond the reglementary
period. We do not agree.
A careful review of the records
reveals that the reason behind the delay
in filing the motion for reconsideration is
attributable to the fact that the decision
of the Court of Appeals was not sent to
then counsel on record of petitioners,
the Coronel Law Office. In fact, a copy
of the decision of the appellate court
was instead sent to and received by
petitioner Rogelio Ramos on 9 June
1995 wherein he was mistakenly
addressed as Atty. Rogelio
Ramos. Based on the other
communications received by petitioner
Rogelio Ramos, the appellate court
apparently mistook him for the counsel
on record.Thus, no copy of the decision
of the appellate court was furnished to
the counsel on record. Petitioner, not
being a lawyer and unaware of the
prescriptive period for filing a motion for
reconsideration, referred the same to a
legal counsel only on 20 June 1995.
It is elementary that when a party is
represented by counsel, all notices
should be sent to the partys lawyer at
his given address. With a few
exceptions, notice to a litigant without
notice to his counsel on record is no
notice at all. In the present case, since a
copy of the decision of the appellate
court was not sent to the counsel on
record of petitioner, there can be no
sufficient notice to speak of. Hence, the
delay in the filing of the motion for

reconsideration cannot be taken against


petitioner. Moreover, since the Court of
Appeals already issued a second
Resolution, dated 29 March 1996, which
superseded the earlier resolution issued
on 25 July 1995, and denied the motion
for reconsideration of petitioner, we
believe that the receipt of the former
should be considered in determining the
timeliness of the filing of the present
petition. Based on this, the petition
before us was submitted on time.
After resolving the foregoing
procedural issue, we shall now look into
the merits of the case. For a more
logical presentation of the discussion we
shall first consider the issue on the
applicability of the doctrine of res ipsa
loquitur to the instant case. Thereafter,
the first two assigned errors shall be
tackled in relation to the res ipsa
loquitur doctrine.
Res ipsa loquitur is a Latin phrase
which literally means the thing or the
transaction speaks for itself. The
phrase res ipsa loquitur is a maxim for
the rule that the fact of the occurrence of
an injury, taken with the surrounding
circumstances, may permit an inference
or raise a presumption of negligence, or
make out a plaintiffs prima facie case,
and present a question of fact for
defendant to meet with an explanation.
[13]
Where the thing which caused the
injury complained of is shown to be
under the management of the defendant
or his servants and the accident is such
as in ordinary course of things does not
happen if those who have its
management or control use proper care,
it affords reasonable evidence, in the
absence of explanation by the
defendant, that the accident arose from
or was caused by the defendants want
of care.[14]

The doctrine of res ipsa loquitur is


simply a recognition of the postulate
that, as a matter of common knowledge
and experience, the very nature of
certain types of occurrences may justify
an inference of negligence on the part of
the person who controls the
instrumentality causing the injury in the
absence of some explanation by the
defendant who is charged with
negligence.[15] It is grounded in the
superior logic of ordinary human
experience and on the basis of such
experience or common knowledge,
negligence may be deduced from the
mere occurrence of the accident itself.
[16]
Hence, res ipsa loquitur is applied in
conjunction with the doctrine of common
knowledge.
However, much has been said
that res ipsa loquitur is not a rule of
substantive law and, as such, does not
create or constitute an independent or
separate ground of liability.[17] Instead, it
is considered as merely evidentiary or in
the nature of a procedural rule.[18] It is
regarded as a mode of proof, or a mere
procedural convenience since it
furnishes a substitute for, and relieves a
plaintiff of, the burden of producing
specific proof of negligence.[19] In other
words, mere invocation and application
of the doctrine does not dispense with
the requirement of proof of
negligence. It is simply a step in the
process of such proof, permitting the
plaintiff to present along with the proof of
the accident, enough of the attending
circumstances to invoke the doctrine,
creating an inference or presumption of
negligence, and to thereby place on the
defendant the burden of going forward
with the proof.[20] Still, before resort to
the doctrine may be allowed, the
following requisites must be
satisfactorily shown:

1. The accident is of a kind


which ordinarily does not
occur in the absence of
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.[21]
In the above requisites, the
fundamental element is the control of
the instrumentality which caused the
damage.[22] Such element of control
must be shown to be within the
dominion of the defendant. In order to
have the benefit of the rule, a plaintiff, in
addition to proving injury or damage,
must show a situation where it is
applicable, and must establish that the
essential elements of the doctrine were
present in a particular incident.[23]
Medical malpractice[24]cases do not
escape the application of this
doctrine. Thus, res ipsa loquitur has
been applied when the circumstances
attendant upon the harm are themselves
of such a character as to justify an
inference of negligence as the cause of
that harm.[25] The application of res ipsa
loquiturin medical negligence cases
presents a question of law since it is a
judicial function to determine whether a
certain set of circumstances does, as a
matter of law, permit a given inference.
[26]

Although generally, expert medical


testimony is relied upon in malpractice
suits to prove that a physician has done
a negligent act or that he has deviated
from the standard medical procedure,
when the doctrine of res ipsa loquitur is

availed by the plaintiff, the need for


expert medical testimony is dispensed
with because the injury itself provides
the proof of negligence.[27] The reason is
that the general rule on the necessity of
expert testimony applies only to such
matters clearly within the domain of
medical science, and not to matters that
are within the common knowledge of
mankind which may be testified to by
anyone familiar with the facts.
[28]
Ordinarily, only physicians and
surgeons of skill and experience are
competent to testify as to whether a
patient has been treated or operated
upon with a reasonable degree of skill
and care. However, testimony as to the
statements and acts of physicians and
surgeons, external appearances, and
manifest conditions which are
observable by any one may be given by
non-expert witnesses.[29]Hence, in cases
where the res ipsa loquitur is applicable,
the court is permitted to find a physician
negligent upon proper proof of injury to
the patient, without the aid of expert
testimony, where the court from its fund
of common knowledge can determine
the proper standard of care.[30] Where
common knowledge and experience
teach that a resulting injury would not
have occurred to the patient if due care
had been exercised, an inference of
negligence may be drawn giving rise to
an application of the doctrine of res ipsa
loquitur without medical evidence, which
is ordinarily required to show not only
what occurred but how and why it
occurred.[31] When the doctrine is
appropriate, all that the patient must do
is prove a nexus between the particular
act or omission complained of and the
injury sustained while under the custody
and management of the defendant
without need to produce expert medical
testimony to establish the standard of

care. Resort to res ipsa loquitur is


allowed because there is no other way,
under usual and ordinary conditions, by
which the patient can obtain redress for
injury suffered by him.
Thus, courts of other jurisdictions
have applied the doctrine in the
following situations: leaving of a foreign
object in the body of the patient after an
operation,[32] injuries sustained on a
healthy part of the body which was not
under, or in the area, of treatment,
[33]
removal of the wrong part of the body
when another part was intended,
[34]
knocking out a tooth while a patients
jaw was under anesthetic for the
removal of his tonsils,[35] and loss of an
eye while the patient plaintiff was under
the influence of anesthetic, during or
following an operation for appendicitis,
[36]
among others.
Nevertheless, despite the fact that
the scope of res ipsa loquitur has been
measurably enlarged, it does not
automatically apply to all cases of
medical negligence as to mechanically
shift the burden of proof to the
defendant to show that he is not guilty of
the ascribed negligence. Res ipsa
loquitur is not a rigid or ordinary doctrine
to be perfunctorily used but a rule to be
cautiously applied, depending upon the
circumstances of each case. It is
generally restricted to situations in
malpractice cases where a layman is
able to say, as a matter of common
knowledge and observation, that the
consequences of professional care were
not as such as would ordinarily have
followed if due care had been exercised.
[37]
A distinction must be made between
the failure to secure results, and the
occurrence of something more unusual
and not ordinarily found if the service or
treatment rendered followed the usual

procedure of those skilled in that


particular practice. It must be conceded
that the doctrine of res ipsa loquitur can
have no application in a suit against a
physician or surgeon which involves the
merits of a diagnosis or of a scientific
treatment.[38] The physician or surgeon is
not required at his peril to explain why
any particular diagnosis was not correct,
or why any particular scientific treatment
did not produce the desired result.
[39]
Thus, res ipsa loquitur is not available
in a malpractice suit if the only showing
is that the desired result of an operation
or treatment was not accomplished.
[40]
The real question, therefore, is
whether or not in the process of the
operation any extraordinary incident or
unusual event outside of the routine
performance occurred which is beyond
the regular scope of customary
professional activity in such operations,
which, if unexplained would themselves
reasonably speak to the average man
as the negligent cause or causes of the
untoward consequence.[41] If there was
such extraneous interventions, the
doctrine of res ipsa loquiturmay be
utilized and the defendant is called upon
to explain the matter, by evidence of
exculpation, if he could.[42]
We find the doctrine of res ipsa
loquitur appropriate in the case at
bar. As will hereinafter be explained, the
damage sustained by Erlinda in her
brain prior to a scheduled gall bladder
operation presents a case for the
application of res ipsa loquitur.
A case strikingly similar to the one
before us is Voss vs. Bridwell,[43] where
the Kansas Supreme Court in applying
the res ipsa loquitur stated:
The plaintiff herein submitted himself for
a mastoid operation and delivered his

person over to the care, custody and


control of his physician who had
complete and exclusive control over
him, but the operation was never
performed. At the time of submission he
was neurologically sound and physically
fit in mind and body, but he suffered
irreparable damage and injury rendering
him decerebrate and totally
incapacitated. The injury was one which
does not ordinarily occur in the process
of a mastoid operation or in the absence
of negligence in the administration of an
anesthetic, and in the use and
employment of an endoctracheal
tube. Ordinarily a person being put
under anesthesia is not rendered
decerebrate as a consequence of
administering such anesthesia in the
absence of negligence. Upon these
facts and under these circumstances a
layman would be able to say, as a
matter of common knowledge and
observation, that the consequences of
professional treatment were not as such
as would ordinarily have followed if due
care had been exercised.
Here the plaintiff could not have been
guilty of contributory negligence
because he was under the influence of
anesthetics and unconscious, and the
circumstances are such that the true
explanation of event is more accessible
to the defendants than to the plaintiff for
they had the exclusive control of the
instrumentalities of anesthesia.
Upon all the facts, conditions and
circumstances alleged in Count II it is
held that a cause of action is stated
under the doctrine of res ipsa loquitur.[44]
Indeed, the principles enunciated in
the aforequoted case apply with equal
force here. In the present case, Erlinda

submitted herself
forcholecystectomy and expected a
routine general surgery to be performed
on her gall bladder. On that fateful day
she delivered her person over to the
care, custody and control of private
respondents who exercised complete
and exclusive control over her. At the
time of submission, Erlinda was
neurologically sound and, except for a
few minor discomforts, was likewise
physically fit in mind and body. However,
during the administration of anesthesia
and prior to the performance
of cholecystectomy she suffered
irreparable damage to her brain. Thus,
without undergoing surgery, she went
out of the operating room already
decerebrate and totally
incapacitated. Obviously, brain damage,
which Erlinda sustained, is an injury
which does not normally occur in the
process of a gall bladder operation. In
fact, this kind of situation does not
happen in the absence of negligence of
someone in the administration of
anesthesia and in the use of
endotracheal tube. Normally, a person
being put under anesthesia is not
rendered decerebrate as a
consequence of administering such
anesthesia if the proper procedure was
followed. Furthermore, the instruments
used in the administration of anesthesia,
including the endotracheal tube, were all
under the exclusive control of private
respondents, who are the physicians-incharge. Likewise, petitioner Erlinda
could not have been guilty of
contributory negligence because she
was under the influence of anesthetics
which rendered her unconscious.
Considering that a sound and
unaffected member of the body (the
brain) is injured or destroyed while the
patient is unconscious and under the

immediate and exclusive control of the


physicians, we hold that a practical
administration of justice dictates the
application of res ipsa loquitur. Upon
these facts and under these
circumstances the Court would be able
to say, as a matter of common
knowledge and observation, if
negligence attended the management
and care of the patient. Moreover, the
liability of the physicians and the
hospital in this case is not predicated
upon an alleged failure to secure the
desired results of an operation nor on an
alleged lack of skill in the diagnosis or
treatment as in fact no operation or
treatment was ever performed on
Erlinda. Thus, upon all these initial
determination a case is made out for the
application of the doctrine of res ipsa
loquitur.
Nonetheless, in holding that res
ipsa loquitur is available to the present
case we are not saying that the doctrine
is applicable in any and all cases where
injury occurs to a patient while under
anesthesia, or to any and all anesthesia
cases. Each case must be viewed in its
own light and scrutinized in order to be
within the res ipsa loquitur coverage.
Having in mind the applicability of
the res ipsa loquitur doctrine and the
presumption of negligence allowed
therein, the Court now comes to the
issue of whether the Court of Appeals
erred in finding that private respondents
were not negligent in the care of Erlinda
during the anesthesia phase of the
operation and, if in the affirmative,
whether the alleged negligence was the
proximate cause of Erlindas comatose
condition. Corollary thereto, we shall
also determine if the Court of Appeals
erred in relying on the testimonies of the
witnesses for the private respondents.

In sustaining the position of private


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

Court the legal nexus upon which


liability is based. As will be shown
hereinafter, private respondents own
testimonies which are reflected in the
transcript of stenographic notes are
replete of signposts indicative of their
negligence in the care and management
of Erlinda.
With regard to Dra. Gutierrez, we
find her negligent in the care of Erlinda
during the anesthesia phase. As borne
by the records, respondent Dra.
Gutierrez failed to properly intubate the
patient. This fact was attested to by
Prof. Herminda Cruz, Dean of the
Capitol Medical Center School of
Nursing and petitioner's sister-in-law,
who was in the operating room right
beside the patient when the tragic event
occurred. Witness Cruz testified to this
effect:
ATTY. PAJARES:
Q: In particular, what did Dra.
Perfecta Gutierrez do, if any on
the patient?
A: In particular, I could see that she
was intubating the patient.
Q: Do you know what happened to
that intubation process
administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your
Honor.
COURT:
Witness may answer if she
knows.
A: As I have said, I was with the
patient, I was beside the stretcher
holding the left hand of the
patient and all of a sudden I
heard some remarks coming from

Dra. Perfecta Gutierrez


herself. She was saying Ang
hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki
ang tiyan.
xxx
ATTY. PAJARES:
Q: From whom did you hear those
words lumalaki ang tiyan?
A: From Dra. Perfecta Gutierrez.
xxx
After hearing the phrase lumalaki
ang tiyan, what did you notice on
the person of the patient?
A: I notice (sic) some bluish
discoloration on the nailbeds of
the left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka
then at that particular time?
A: I saw him approaching the patient
during that time.
Q: When he approached the patient,
what did he do, if any?
A: He made an order to call on the
anesthesiologist in the person of
Dr. Calderon.
Q: Did Dr. Calderon, upon being
called, arrive inside the operating
room?
A: Yes sir.
Q: What did [s]he do, if any?
A: [S]he tried to intubate the patient.
Q: What happened to the patient?
A: When Dr. Calderon try (sic) to
intubate the patient, after a while
the patients nailbed became
bluish and I saw the patient was
placed in trendelenburg position.

xxx
Q: Do you know the reason why the
patient was placed in that
trendelenburg position?
A: As far as I know, when a patient is
in that position, there is a
decrease of blood supply to the
brain.[46]
xxx
The appellate court, however,
disbelieved Dean Cruz's testimony in
the trial court by declaring that:
A perusal of the standard nursing
curriculum in our country will show that
intubation is not taught as part of
nursing procedures and
techniques. Indeed, we take judicial
notice of the fact that nurses do not, and
cannot, intubate. Even on the
assumption that she is fully capable of
determining whether or not a patient is
properly intubated, witness Herminda
Cruz, admittedly, did not peep into the
throat of the patient. (TSN, July 25,
1991, p. 13). More importantly, there is
no evidence that she ever auscultated
the patient or that she conducted any
type of examination to check if the
endotracheal tube was in its proper
place, and to determine the condition of
the heart, lungs, and other
organs. Thus, witness Cruz's categorical
statements that appellant Dra. Gutierrez
failed to intubate the appellee Erlinda
Ramos and that it was Dra. Calderon
who succeeded in doing so clearly suffer
from lack of sufficient factual bases.[47]
In other words, what the Court of
Appeals is trying to impress is that being
a nurse, and considered a layman in the
process of intubation, witness Cruz is

not competent to testify on whether or


not the intubation was a success.
We do not agree with the above
reasoning of the appellate
court. Although witness Cruz is not an
anesthesiologist, she can very well
testify upon matters on which she is
capable of observing such as, the
statements and acts of the physician
and surgeon, external appearances, and
manifest conditions which are
observable by any one.[48] This is
precisely allowed under the doctrine
of res ipsa loquitur where the testimony
of expert witnesses is not required. It is
the accepted rule that expert testimony
is not necessary for the proof of
negligence in non-technical matters or
those of which an ordinary person may
be expected to have knowledge, or
where the lack of skill or want of care is
so obvious as to render expert
testimony unnecessary.[49] We take
judicial notice of the fact that anesthesia
procedures have become so common,
that even an ordinary person can tell if it
was administered properly. As such, it
would not be too difficult to tell if the
tube was properly inserted. This kind of
observation, we believe, does not
require a medical degree to be
acceptable.
At any rate, without doubt,
petitioner's witness, an experienced
clinical nurse whose long experience
and scholarship led to her appointment
as Dean of the Capitol Medical Center
School of Nursing, was fully capable of
determining whether or not the
intubation was a success. She had
extensive clinical experience starting as
a staff nurse in Chicago, Illinois; staff
nurse and clinical instructor in a
teaching hospital, the FEU-NRMF; Dean
of the Laguna College of Nursing in San

Pablo City; and then Dean of the Capitol


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

Curiously in the case at bar,


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

mobility, prominent central incisors,


diseased or artificial teeth, ability to
visualize uvula and the thyromental
distance.[56] Thus, physical
characteristics of the patients upper
airway that could make tracheal
intubation difficult should be studied.
[57]
Where the need arises, as when initial
assessment indicates possible problems
(such as the alleged short neck and
protruding teeth of Erlinda) a thorough
examination of the patients airway
would go a long way towards
decreasing patient morbidity and
mortality.
In the case at bar, respondent Dra.
Gutierrez admitted that she saw Erlinda
for the first time on the day of the
operation itself, on 17 June
1985. Before this date, no prior
consultations with, or pre-operative
evaluation of Erlinda was done by
her. Until the day of the operation,
respondent Dra. Gutierrez was unaware
of the physiological make-up and needs
of Erlinda. She was likewise not properly
informed of the possible difficulties she
would face during the administration of
anesthesia to Erlinda. Respondent Dra.
Gutierrez act of seeing her patient for
the first time only an hour before the
scheduled operative procedure was,
therefore, an act of exceptional
negligence and professional
irresponsibility. The measures
cautioning prudence and vigilance in
dealing with human lives lie at the core
of the physicians centuries-old
Hippocratic Oath. Her failure to follow
this medical procedure is, therefore, a
clearindicia of her negligence.
Respondent Dra. Gutierrez,
however, attempts to gloss over this
omission by playing around with the trial
court's ignorance of clinical procedure,

hoping that she could get away with


it. Respondent Dra. Gutierrez tried to
muddle the difference between an
elective surgery and an emergency
surgery just so her failure to perform the
required pre-operative evaluation would
escape unnoticed. In her testimony she
asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is
good medical practice to see the patient
a day before so you can introduce
yourself to establish good doctor-patient
relationship and gain the trust and
confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it
depends on the operative procedure of
the anesthesiologist and in my case,
with elective cases and normal cardiopulmonary clearance like that, I usually
don't do it except on emergency and on
cases that have an abnormalities (sic).
[58]

However, the exact opposite is


true. In an emergency procedure, there
is hardly enough time available for the
fastidious demands of pre-operative
procedure so that an anesthesiologist is
able to see the patient only a few
minutes before surgery, if at all. Elective
procedures, on the other hand, are
operative procedures that can wait for
days, weeks or even months. Hence, in
these cases, the anesthesiologist
possesses the luxury of time to make a
proper assessment, including the time to
be at the patient's bedside to do a
proper interview and clinical
evaluation. There is ample time to
explain the method of anesthesia, the

drugs to be used, and their possible


hazards for purposes of informed
consent. Usually, the pre-operative
assessment is conducted at least one
day before the intended surgery, when
the patient is relaxed and cooperative.
Erlindas case was elective and this
was known to respondent Dra.
Gutierrez. Thus, she had all the time to
make a thorough evaluation of Erlindas
case prior to the operation and prepare
her for anesthesia. However, she never
saw the patient at the bedside. She
herself admitted that she had seen
petitioner only in the operating room,
and only on the actual date of
the cholecystectomy. She negligently
failed to take advantage of this
important opportunity. As such, her
attempt to exculpate herself must fail.
Having established that respondent
Dra. Gutierrez failed to perform preoperative evaluation of the patient
which, in turn, resulted to a wrongful
intubation, we now determine if the
faulty intubation is truly the proximate
cause of Erlindas comatose condition.
Private respondents repeatedly
hammered the view that the cerebral
anoxia which led to Erlindas coma was
due to bronchospasm[59] mediated by
her allergic response to the drug,
Thiopental Sodium, introduced into her
system. Towards this end, they
presented Dr. Jamora, a Fellow of the
Philippine College of Physicians and
Diplomate of the Philippine Specialty
Board of Internal Medicine, who
advanced private respondents' theory
that the oxygen deprivation which led to
anoxic encephalopathy,[60] was due to an
unpredictable drug reaction to the shortacting barbiturate. We find the theory
ofprivate respondents unacceptable.

First of all, Dr. Jamora cannot be


considered an authority in the field of
anesthesiology simply because he is not
an anesthesiologist. Since Dr. Jamora is
a pulmonologist, he could not have been
capable of properly enlightening the
court about anesthesia practice and
procedure and their complications. Dr.
Jamora is likewise not an allergologist
and could not therefore properly
advance expert opinion on allergicmediated processes. Moreover, he is
not a pharmacologist and, as such,
could not have been capable, as an
expert would, of explaining to the court
the pharmacologic and toxic effects of
the supposed culprit, Thiopental Sodium
(Pentothal).
The inappropriateness and
absurdity of accepting Dr. Jamoras
testimony as an expert witness in the
anesthetic practice of Pentothal
administration is further supported by
his own admission that he formulated
his opinions on the drug not from the
practical experience gained by a
specialist or expert in the administration
and use of Sodium Pentothal on
patients, but only from reading certain
references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on
pulmonology, did you have any
occasion to use pentothal as a
method of management?
DR. JAMORA:
A: We do it in conjunction with the
anesthesiologist when they have
to intubate our patient.
Q: But not in particular when you
practice pulmonology?
A: No.

Q: In other words, your knowledge


about pentothal is based only on
what you have read from books
and not by your own personal
application of the medicine
pentothal?
A: Based on my personal experience
also on pentothal.
Q: How many times have you used
pentothal?
A: They used it on me. I went into
bronchospasm during my
appendectomy.
Q: And because they have used it on
you and on account of your own
personal experience you feel that
you can testify on pentothal here
with medical authority?
A: No. That is why I used references
to support my claims.[61]
An anesthetic accident caused by a
rare drug-induced bronchospasm
properly falls within the fields of
anesthesia, internal medicine-allergy,
and clinical pharmacology. The resulting
anoxic encephalopathy belongs to the
field of neurology. While admittedly,
many bronchospastic-mediated
pulmonary diseases are within the
expertise of pulmonary medicine, Dr.
Jamora's field, the anesthetic druginduced, allergic mediated
bronchospasm alleged in this case is
within the disciplines of anesthesiology,
allergology and pharmacology. On the
basis of the foregoing transcript, in
which the pulmonologist himself
admitted that he could not testify about
the drug with medical authority, it is clear
that the appellate court erred in giving
weight to Dr. Jamoras testimony as an
expert in the administration of
Thiopental Sodium.

The provision in the rules of


evidence[62]regarding expert witnesses
states:
Sec. 49. Opinion of expert
witness. - The opinion of a
witness on a matter requiring
special knowledge, skill,
experience or training which he
is shown to possess, may be
received in evidence.
Generally, to qualify as an expert
witness, one must have acquired special
knowledge of the subject matter about
which he or she is to testify, either by the
study of recognized authorities on the
subject or by practical experience.
[63]
Clearly, Dr. Jamora does not qualify
as an expert witness based on the
above standard since he lacks the
necessary knowledge, skill, and training
in the field of anesthesiology. Oddly,
apart from submitting testimony from a
specialist in the wrong field, private
respondents intentionally avoided
providing testimony by competent and
independent experts in the proper
areas.
Moreover, private respondents
theory, that Thiopental Sodium may
have produced Erlinda's coma by
triggering an allergic mediated
response, has no support in
evidence. No evidence of stridor, skin
reactions, or wheezing - some of the
more common accompanying signs of
an allergic reaction - appears on
record. No laboratory data were ever
presented to the court.
In any case, private respondents
themselves admit that Thiopental
induced, allergic-mediated
bronchospasm happens only very
rarely. If courts were to accept private
respondents' hypothesis without

supporting medical proof, and against


the weight of available evidence, then
every anesthetic accident would be an
act of God. Evidently, the Thiopentalallergy theory vigorously asserted by
private respondents was a mere
afterthought. Such an explanation was
advanced in order to absolve them of
any and all responsibility for the patients
condition.
In view of the evidence at hand, we
are inclined to believe petitioners stand
that it was the faulty intubation which
was the proximate cause of Erlindas
comatose condition.
Proximate cause has been defined
as that which, in natural and continuous
sequence, unbroken by any efficient
intervening cause, produces injury, and
without which the result would not have
occurred.[64] An injury or damage is
proximately caused by an act or a failure
to act, whenever it appears from the
evidence in the case, that the act or
omission played a substantial part in
bringing about or actually causing the
injury or damage; and that the injury or
damage was either a direct result or a
reasonably probable consequence of
the act or omission.[65] It is the dominant,
moving or producing cause.
Applying the above definition in
relation to the evidence at hand, faulty
intubation is undeniably the proximate
cause which triggered the chain of
events leading to Erlindas brain damage
and, ultimately, her comatosed
condition.
Private respondents themselves
admitted in their testimony that the first
intubation was a failure. This fact was
likewise observed by witness Cruz when
she heard respondent Dra. Gutierrez
remarked, Ang hirap ma-intubate nito,

mali yata ang pagkakapasok. O lumalaki


ang tiyan. Thereafter, witness Cruz
noticed abdominal distention on the
body of Erlinda. The development of
abdominal distention, together with
respiratory embarrassment indicates
that the endotracheal tube entered the
esophagus instead of the respiratory
tree. In other words, instead of the
intended endotracheal intubation what
actually took place was an esophageal
intubation. During intubation, such
distention indicates that air has entered
the gastrointestinal tract through the
esophagus instead of the lungs through
the trachea. Entry into the esophagus
would certainly cause some delay in
oxygen delivery into the lungs as the
tube which carries oxygen is in the
wrong place. That abdominal distention
had been observed during the first
intubation suggests that the length of
time utilized in inserting the
endotracheal tube (up to the time the
tube was withdrawn for the second
attempt) was fairly significant. Due to
the delay in the delivery of oxygen in her
lungs Erlinda showed signs of cyanosis.
[66]
As stated in the testimony of Dr.
Hosaka, the lack of oxygen became
apparent only after he noticed that the
nailbeds of Erlinda were already blue.
[67]
However, private respondents
contend that a second intubation was
executed on Erlinda and this one was
successfully done. We do not think
so. No evidence exists on record,
beyond private respondents' bare
claims, which supports the contention
that the second intubation was
successful. Assuming that the
endotracheal tube finally found its way
into the proper orifice of the trachea, the
same gave no guarantee of oxygen
delivery, the hallmark of a successful
intubation. In fact, cyanosis was again

observed immediately after the second


intubation. Proceeding from this event
(cyanosis), it could not be claimed, as
private respondents insist, that the
second intubation was
accomplished.Even granting that the
tube was successfully inserted during
the second attempt, it was obviously too
late. As aptly explained by the trial court,
Erlinda already suffered brain damage
as a result of the inadequate
oxygenation of her brain for about four
to five minutes.[68]
The above conclusion is not without
basis. Scientific studies point out that
intubation problems are responsible for
one-third (1/3) of deaths and serious
injuries associated with anesthesia.
[69]
Nevertheless, ninety-eight percent
(98%) or the vast majority of difficult
intubations may be anticipated by
performing a thorough evaluation of the
patients airway prior to the operation.
[70]
As stated beforehand, respondent
Dra. Gutierrez failed to observe the
proper pre-operative protocol which
could have prevented this unfortunate
incident. Had appropriate diligence and
reasonable care been used in the preoperative evaluation, respondent
physician could have been much more
prepared to meet the contingency
brought about by the perceived
anatomic variations in the patients neck
and oral area, defects which would have
been easily overcome by a prior
knowledge of those variations together
with a change in technique.[71] In other
words, an experienced anesthesiologist,
adequately alerted by a thorough preoperative evaluation, would have had
little difficulty going around the short
neck and protruding teeth.[72] Having
failed to observe common medical
standards in pre-operative management
and intubation, respondent Dra.

Gutierrez negligence resulted in


cerebral anoxia and eventual coma of
Erlinda.
We now determine the responsibility
of respondent Dr. Orlino Hosaka as the
head of the surgical team. As the socalled captain of the ship,[73] it is the
surgeons responsibility to see to it that
those under him perform their task in the
proper manner. Respondent Dr.
Hosakas negligence can be found in his
failure to exercise the proper authority
(as the captain of the operative team) in
not determining if his anesthesiologist
observed proper anesthesia
protocols. In fact, no evidence on record
exists to show that respondent Dr.
Hosaka verified if respondent Dra.
Gutierrez properly intubated the
patient.Furthermore, it does not escape
us that respondent Dr. Hosaka had
scheduled another procedure in a
different hospital at the same time as
Erlindascholecystectomy, and was in
fact over three hours late for the latters
operation. Because of this, he had little
or no time to confer with his
anesthesiologist regarding the
anesthesia delivery. This indicates that
he was remiss in his professional duties
towards his patient. Thus, he shares
equal responsibility for the events which
resulted in Erlindas condition.
We now discuss the responsibility of
the hospital in this particular
incident. The unique practice (among
private hospitals) of filling up specialist
staff with attending and visiting
consultants,[74] who are allegedly not
hospital employees, presents problems
in apportioning responsibility for
negligence in medical malpractice
cases. However, the difficulty is only
more apparent than real.

In the first place, hospitals exercise


significant control in the hiring and firing
of consultants and in the conduct of their
work within the hospital
premises. Doctors who apply for
consultant slots, visiting or attending,
are required to submit proof of
completion of residency, their
educational qualifications; generally,
evidence of accreditation by the
appropriate board (diplomate), evidence
of fellowship in most cases, and
references. These requirements are
carefully scrutinized by members of the
hospital administration or by a review
committee set up by the hospital who
either accept or reject the application.
[75]
This is particularly true with
respondent hospital.
After a physician is accepted, either
as a visiting or attending consultant, he
is normally required to attend clinicopathological conferences, conduct
bedside rounds for clerks, interns and
residents, moderate grand rounds and
patient audits and perform other tasks
and responsibilities, for the privilege of
being able to maintain a clinic in the
hospital, and/or for the privilege of
admitting patients into the hospital. In
addition to these, the physicians
performance as a specialist is generally
evaluated by a peer review committee
on the basis of mortality and morbidity
statistics, and feedback from patients,
nurses, interns and residents. A
consultant remiss in his duties, or a
consultant who regularly falls short of
the minimum standards acceptable to
the hospital or its peer review
committee, is normally politely
terminated.
In other words, private hospitals,
hire, fire and exercise real control over
their attending and visiting consultant

staff. While consultants are not,


technically employees, a point which
respondent hospital asserts in denying
all responsibility for the patients
condition, the control exercised, the
hiring, and the right to terminate
consultants all fulfill the important
hallmarks of an employer-employee
relationship, with the exception of the
payment of wages. In assessing
whether such a relationship in fact
exists, the control test is
determining. Accordingly, on the basis of
the foregoing, we rule that for the
purpose of allocating responsibility in
medical negligence cases, an 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 petitioners condition.[76]
The basis for holding an employer
solidarily responsible for the negligence
of its employee is found in Article 2180
of the Civil Code which considers a
person accountable not only for his own
acts but also for those of others based
on the formers responsibility under a
relationship of patria potestas.[77] Such
responsibility ceases when the persons
or entity concerned prove that they have
observed the diligence of a good father
of the family to prevent damage.[78] In
other words, while the burden of proving
negligence rests on the plaintiffs, once
negligence is shown, the burden shifts
to the respondents (parent, guardian,
teacher or employer) who should prove
that they observed the diligence of a
good father of a family to prevent
damage.
In the instant case, respondent
hospital, apart from a general denial of

its responsibility over respondent


physicians, failed to adduce evidence
showing that it exercised the diligence of
a good father of a family in the hiring
and supervision of the latter. It failed to
adduce evidence with regard to the
degree of supervision which it exercised
over its physicians. In neglecting to offer
such proof, or proof of a similar nature,
respondent hospital thereby failed to
discharge its burden under the last
paragraph of Article 2180. Having failed
to do this, respondent hospital is
consequently solidarily responsible with
its physicians for Erlindas condition.
Based on the foregoing, we hold
that the Court of Appeals erred in
accepting and relying on the testimonies
of the witnesses for the private
respondents. Indeed, as shown by the
above discussions, private respondents
were unable to rebut the presumption of
negligence. Upon these disquisitions we
hold that private respondents are
solidarily liable for damages under
Article 2176[79] of the Civil Code.
We now come to the amount of
damages due petitioners. The trial court
awarded a total of P632,000.00 pesos
(should be P616,000.00) in
compensatory damages to the plaintiff,
subject to its being updated covering the
period from 15 November 1985 up to 15
April 1992, based on monthly expenses
for the care of the patient estimated
at P8,000.00.
At current levels, the P8000/monthly
amount established by the trial court at
the time of its decision would be grossly
inadequate to cover the actual costs of
home-based care for a comatose
individual. The calculated amount was
not even arrived at by looking at the
actual cost of proper hospice care for
the patient. What it reflected were the

actual expenses incurred and proved by


the petitioners after they were forced to
bring home the patient to avoid
mounting hospital bills.
And yet ideally, a comatose patient
should remain in a hospital or be
transferred to a hospice specializing in
the care of the chronically ill for the
purpose of providing a proper milieu
adequate to meet minimum standards of
care. In the instant case for instance,
Erlinda has to be constantly turned from
side to side to prevent bedsores and
hypostatic pneumonia. Feeding is done
by nasogastric tube. Food preparation
should be normally made by a dietitian
to provide her with the correct daily
caloric requirements and vitamin
supplements. Furthermore, she has to
be seen on a regular basis by a physical
therapist to avoid muscle atrophy, and
by a pulmonary therapist to prevent the
accumulation of secretions which can
lead to respiratory complications.
Given these considerations, the
amount of actual damages recoverable
in suits arising from negligence should
at least reflect the correct minimum cost
of proper care, not the cost of the care
the family is usually compelled to
undertake at home to avoid
bankruptcy. However, the provisions of
the Civil Code on actual or
compensatory damages present us with
some difficulties.
Well-settled is the rule that actual
damages which may be claimed by the
plaintiff are those suffered by him as he
has duly proved. The Civil Code
provides:
Art. 2199. - Except as provided by law
or by stipulation, one is entitled to an
adequate compensation only for such
pecuniary loss suffered by him as he

has duly proved. Such compensation is


referred to as actual or compensatory
damages.
Our rules on actual or compensatory
damages generally assume that at the
time of litigation, the injury suffered as a
consequence of an act of negligence
has been completed and that the cost
can be liquidated. However, these
provisions neglect to take into account
those situations, as in this case, where
the resulting injury might be continuing
and possible future complications
directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of
damages which should be awarded, if
they are to adequately and correctly
respond to the injury caused, should be
one which compensates for pecuniary
loss incurred and proved, up to the time
of trial; and one which would meet
pecuniary loss certain to be suffered but
which could not, from the nature of the
case, be made with certainty.[80] In other
words, temperate damages can and
should be awarded on top of actual or
compensatory damages in instances
where the injury is chronic and
continuing. And because of the unique
nature of such cases, no incompatibility
arises when both actual and temperate
damages are provided for. The reason is
that these damages cover two distinct
phases.
As it would not be equitable - and
certainly not in the best interests of the
administration of justice - for the victim
in such cases to constantly come before
the courts and invoke their aid in
seeking adjustments to the
compensatory damages previously
awarded - temperate damages are
appropriate. The amount given as

temperate damages, though to a certain


extent speculative, should take into
account the cost of proper care.
In the instant case, petitioners were
able to provide only home-based
nursing care for a comatose patient who
has remained in that condition for over a
decade. Having premised our award for
compensatory damages on the amount
provided by petitioners at the onset of
litigation, it would be now much more in
step with the interests of justice if the
value awarded for temperate damages
would allow petitioners to provide
optimal care for their loved one in a
facility which generally specializes in
such care. They should not be
compelled by dire circumstances to
provide substandard care at home
without the aid of professionals, for
anything less would be grossly
inadequate. Under the circumstances,
an award of P1,500,000.00 in temperate
damages would therefore be
reasonable.[81]
In Valenzuela vs. Court of Appeals,
this Court was confronted with a
situation where the injury suffered by the
plaintiff would have led to expenses
which were difficult to estimate because
while they would have been a direct
result of the injury (amputation), and
were certain to be incurred by the
plaintiff, they were likely to arise only in
the future. We awarded P1,000,000.00
in moral damages in that case.
[82]

Describing the nature of the injury,


the Court therein stated:
As a result of the accident, Ma.
Lourdes Valenzuela underwent a
traumatic amputation of her left
lower extremity at the distal left
thigh just above the
knee. Because of this,

Valenzuela will forever be


deprived of the full ambulatory
functions of her left extremity,
even with the use of state of the
art prosthetic technology. Well
beyond the period of
hospitalization (which was paid
for by Li), she will be required to
undergo adjustments in her
prosthetic devise due to the
shrinkage of the stump from the
process of healing.
These adjustments entail costs,
prosthetic replacements and
months of physical and
occupational rehabilitation and
therapy. During her lifetime, the
prosthetic devise will have to be
replaced and readjusted to
changes in the size of her lower
limb effected by the biological
changes of middle-age,
menopause and
aging. Assuming she reaches
menopause, for example, the
prosthetic will have to be
adjusted to respond to the
changes in bone resulting from a
precipitate decrease in calcium
levels observed in the bones of
all post-menopausal women. In
other words, the damage done to
her would not only be permanent
and lasting, it would also be
permanently changing and
adjusting to the physiologic
changes which her body
would normally undergo through
the years. The replacements,
changes, and adjustments will
require corresponding adjustive
physical and occupational
therapy. All of these adjustments,
it has been documented, are
painful.

x x x.
A prosthetic devise, however
technologically advanced, will
only allow a reasonable amount
of functional restoration of the
motor functions of the lower
limb. The sensory functions are
forever lost. The resultant
anxiety, sleeplessness,
psychological injury, mental and
physical pain are inestimable.[83]
The injury suffered by Erlinda as a
consequence of private respondents
negligence is certainly much more
serious than the amputation in
theValenzuela case.
Petitioner Erlinda Ramos was in her
mid-forties when the incident
occurred. She has been in a comatose
state for over fourteen years now. The
burden of care has so far been
heroically shouldered by her husband
and children, who, in the intervening
years have been deprived of the love of
a wife and a mother.
Meanwhile, the actual physical,
emotional and financial cost of the care
of petitioner would be virtually
impossible to quantify. Even the
temperate damages herein awarded
would be inadequate if petitioners
condition remains unchanged for the
next ten years.
We recognized, in Valenzuela that a
discussion of the victims actual injury
would not even scratch the surface of
the resulting moral damage because it
would be highly speculative to estimate
the amount of emotional and moral pain,
psychological damage and injury
suffered by the victim or those actually
affected by the victims condition.[84] The
husband and the children, all petitioners
in this case, will have to live with the day

to day uncertainty of the patients illness,


knowing any hope of recovery is close
to nil. They have fashioned their daily
lives around the nursing care of
petitioner, altering their long term goals
to take into account their life with a
comatose patient. They, not the
respondents, are charged with the moral
responsibility of the care of the
victim. The familys moral injury and
suffering in this case is clearly a real
one. For the foregoing reasons, an
award of P2,000,000.00 in moral
damages would be appropriate.
Finally, by way of example,
exemplary damages in the amount
of P100,000.00 are hereby
awarded. Considering the length and
nature of the instant suit we are of the
opinion that attorneys fees valued
at P100,000.00 are likewise proper.
Our courts face unique difficulty in
adjudicating medical negligence cases
because physicians are not insurers of
life and, they rarely set out to
intentionally cause injury or death to
their patients. However, intent is
immaterial in negligence cases because
where negligence exists and is proven,
the same automatically gives the injured
a right to reparation for the damage
caused.
Established medical procedures and
practices, though in constant flux are
devised for the purpose of preventing
complications. A physicians experience
with his patients would sometimes tempt
him to deviate from established
community practices, and he may end a
distinguished career using unorthodox
methods without incident. However,
when failure to follow established
procedure results in the evil precisely
sought to be averted by observance of
the procedure and a nexus is made

between the deviation and the injury or


damage, the physician would
necessarily be called to account for it. In
the case at bar, the failure to observe
pre-operative assessment protocol
which would have influenced the
intubation in a salutary way was fatal to
private respondents case.
WHEREFORE, the decision and
resolution of the appellate court
appealed from are hereby modified so
as to award in favor of petitioners, and
solidarily against private respondents
the following: 1) P1,352,000.00 as
actual damages computed as of the
date of promulgation of this decision
plus a monthly payment of P8,000.00 up
to the time that petitioner Erlinda Ramos
expires or miraculously survives;
2) P2,000,000.00 as moral damages,
3)P1,500,000.00 as temperate
damages; 4) P100,000.00 each as
exemplary damages and attorneys fees;
and, 5) the costs of the suit.
SO ORDERED.
McKee v. Intermediate Appellate
Court
FACTS: It was the 8
th
of January in 1977, at around 9:00 or
10:00 in the morning, somewhere
between Angeles City and
SanFernando, Pampanga. Jose Koh
was driving his daughter, Araceli Koh
McKee, and her minor children,
Christopher, George, andKim, as well as
Kims babysitter, Loida Bondoc, from
San Fernando, Pampanga in the
direction of Angeles City (northward) in
aFord Escort.Meanwhile, a cargo truck
owned by Jaime Tayag and Rosalinda
Manalo, driven by Ruben Galang, was
headed in theopposite direction, from
Angeles City to San Fernando

(southward), going to Manila. The cargo


truck was considerable in size as itwas
carrying 200 hundred cavans of rice,
which weighed 10 metric tons.As the
Escort approached one Pulong-Pulo
Bridge from the southern portion, 2 boys
suddenly ran from the right side ofthe
road into the Escorts lane. As the boys
were going back and forth, unsure of
whether to cross all the way or turn
back, Jose blew his horn. He was
then forced to swerve left and into the
lane Galang was driving in. Jose
switched his headlights on, appliedhis
brakes, and attempted to return to his
lane. However, he failed to get back into
the right lane, and collided with the
cargo truck.The collision occurred on
the bridge.The collision resulted in the
deaths of the driver, Jose, the one-yearold, Kim, and her babysitter, Loida, on
whose lap shewas sitting. Loida was
seated in the passenger seat. Araceli,
Christopher, and George, who were
sitting in the back of the Escort,received
physical injuries from the collision.An
information was filed against Ruben
Galang, charging him for reckless
imprudence resulting in multiple
homicide, physical injuries, and damage
to property. He was found guilty beyond
reasonable doubt of the charges in the i
nformation. Theconviction was affirmed
by the CA and achieved finality after the
denial by the CA of his MR and the
denial by the SC of hisPetition for
Review.Two civil cases were filed. The
first one, by the wife and children of
Jose Koh, and the second one by
Araceli and herhusband for the death of
Kim and injuries to Araceli and her other
children. The respondents were
impleaded against as theemployers of
Ruben Galang Galang was not
included. The cases here are based on
quasi-delict. These cases were

eventuallyconsolidated.The trial court


dismissed the civil cases and awarded
the respondents damages and
attorneys fees.On appeal to the
Intermediate Appellate Court, the
dismissal was reversed. This was based
on its finding that it wasGalangs
inattentiveness or reckless imprudence
that caused the accident. However,
upon filing by the respondents of an MR,
theIAC set aside its original decision
and upheld that of the trial court
because the fact that Kohs car invaded
the lane of the truck andthe collision
occurred while still in Galangs lane
gave rise to the presumption that Koh
was negligent.ISSUE: Was the IAC
correct in reversing their original
decision?HELD: NO. The petition has
merit.
Procedural (not important): Given the
circumstances, the cases (civil
and criminal) should have
been consolidated to
prevent separate appreciation of the
evidence. To be fair, the petitioners did
move to adopt the testimonies of the
witnesses in the criminalcase but the
motion was denied. The nonconsolidation resulted in two
conflicting decisions. In any case,
the guilty verdict ofGalang was
deemed by the Court as irrelevant
to the case at bar.
On the basis of this presumed
negligence, the appellate court
immediately concluded that it was Jose
Kohs negligencethat was the immediate
and proximate cause of the collision.
This is an unwarranted deduction as the
evidence for the petitionersconvincingly
shows that the car swerved into the

trucks lane because as it approached


the southern end of the bridge, two
boysdarted across the road from the
right sidewalk into the lane of the
car.Aracelis testimony was pretty much
what was stated in the facts plus the fact
that when Jose swerved to the left, the
truckwas immediately noticed. This is
why he switched his headlights on to
warn the trucks driver to slow down and
let the Escortreturn to its lane. When
asked as to how she could tell that the
truck did not slow down, Araceli said
that the truck just kept oncoming,
indicating that it didnt reduce its speed.
She posited that if it did, there wouldnt
have been a collision. Her
testimonyremained intact, even upon
cross-examination that Joses entry
into Galangs lane was necessary to
avoid what was, in his mindat the time, a
greater peril death or injury to the two
idiots. This is hardly negligent
behavior.Her testimony was
corroborated by one Eugenio Tanhueco
1
, who was an impartial eyewitness. He
said that the truck,moving at 50 to
60kph, only stopped upon collision.
Also, when the police investigated the
scene of the collision, they
foundskidmarks under the truck instead
of behind it. This indicated that Galang
only applied the brakes moments before
the collision.While Galang claimed that
he had stopped when the Escort was
within 10 meters of the truck but this
only served to substantiateTanhuecos
statement that he stopped only upon
collision, considering the speed at which
he was going
2