THIRD DIVISION

[G.R. No. 118231. July 5, 1996]

DR. VICTORIA L. BATIQUIN and ALLAN BATIQUIN, petitioners, vs.
COURT OF APPEALS, SPOUSES QUEDO D. ACOGIDO and FLOTILDE
G. VILLEGAS, respondents.
DECISION
DAVIDE, JR., J.:
Throughout history, patients have consigned their fates and lives to the
skill of their doctors. For a breach of this trust, men have been quick to
demand retribution. Some 4,000 years ago, the Code of Hammurabi [1]
then already provided: "If a physician make a deep incision upon a man
with his bronze lancet and cause the man's death, or operate on the eye
socket of a man with his bronze lancet and destroy the man's eyes, they
shall cut off his hand." [2] Subsequently, Hippocrates [3] wrote what was to
become part of the healer's oath: "I will follow that method of treatment
which according to my ability and judgment, I consider for the benefit of
my patients, and abstain from whatever is deleterious and mischievous . . .
. While I continue to keep this oath unviolated may it be granted me to
enjoy life and practice the art, respected by all men at all times but should
I trespass and violate this oath, may the reverse be my lot." At present, the
primary objective of the medical profession is the preservation of life and
maintenance of the health of the people. [4]
Needless to say then, when a physician strays from his sacred duty and
endangers instead the life of his patient, he must be made to answer
therefor. Although society today cannot and will not tolerate the
punishment meted out by the ancients, neither will it and this Court, as
this case would show, let the act go uncondemned.
The petitioners appeal from the decision [5] of the Court of Appeals of 11
May 1994 in CA-G.R. CV No. 30851, which reversed the decision [6] of 21
December 1990 of Branch 30 of the Regional Trial Court (RTC) of Negros
Oriental in Civil Case No. 9492.
The facts, as found by the trial court, are as follows:
Dr. Batiquin was a Resident Physician at the Negros Oriental Provincial
Hospital, Dumaguete City from January 9, 1978 to September 1989.
Between 1987 and September, 1989 she was also the Actg. Head of the
Department of Obstetrics and Gynecology at the said Hospital.
Mrs. Villegas is a married woman who submitted to Dr. Batiquin for
prenatal care as the latter's private patient sometime before September
21, 1988.
In the morning of September 21, 1988 Dr. Batiquin, with the assistance of
Dr. Doris Teresita Sy who was also a Resident Physician at the same
Hospital, C.I. and O.R. Nurse Arlene Diones and some student nurses
performed a simple cesarean section on Mrs. Villegas at the Negros
Oriental Provincial Hospital and after 45 minutes Mrs. Villegas delivered her
first child, Rachel Acogido, at about 11:45 that morning. Thereafter,
Plaintiff remained confined at the Hospital until September 27, 1988 during
which period of confinement she was regularly visited by Dr. Batiquin. On
September 28, 1988, Mrs. Villegas checked out of the Hospital . . . and on
the same day she paid Dr. Batiquin, thru the latter's secretary, the amount
of P1,500.00 as "professional fee" . . . .

Soon after leaving the Hospital Mrs. Villegas began to suffer abdominal
pains and complained of being feverish. She also gradually lost her
appetite, so she consulted Dr. Batiquin at the latter's polyclinic who
prescribed for her certain medicines . . . which she had been taking up to
December, 1988.
In the meantime, Mrs. Villegas was given a Medical Certificate by Dr.
Batiquin on October 31, 1988 . . . certifying to her physical fitness to return
to her work on November 7, 1988. So, on the second week of November,
1988 Mrs. Villegas returned to her work at the Rural Bank of Ayungon,
Negros Oriental.
The abdominal pains and fever kept on recurring and bothered Mrs.
Villegas no end and despite the medications administered by Dr. Batiquin.
When the pains become unbearable and she was rapidly losing weight she
consulted Dr. Ma. Salud Kho at the Holy Child's Hospital in Dumaguete City
on January 20, 1989.
The evidence of Plaintiffs show that when Dr. Ma. Salud Kho examined Mrs.
Villegas at the Holy Child's Hospital on January 20, 1989 she found Mrs.
Villegas to be feverish, pale and was breathing fast. Upon examination she
felt an abdominal mass one finger below the umbilicus which she
suspected to be either a tumor of the uterus or an ovarian cyst, either of
which could be cancerous. She had an x-ray taken of Mrs. Villegas' chest,
abdomen and kidney. She also took blood tests of Plaintiff. A blood count
showed that Mrs. Villegas had [an] infection inside her abdominal cavity.
The result of all those examinations impelled Dr. Kho to suggest that Mrs.
Villegas submit to another surgery to which the latter agreed.
When Dr. Kho opened the abdomen of Mrs. Villegas she found whitishyellow discharge inside, an ovarian cyst on each of the left and right
ovaries which gave out pus, dirt and pus behind the uterus, and a piece of
rubber materials on the right side of the uterus embedded on [sic] the
ovarian cyst, 2 inches by 3/4 inch in size. This piece of rubber material
which Dr. Kho described as a "foreign body" looked like a piece of a "rubber
glove" . . . and which is [sic] also "rubber-drain like . . . . It could have been
a torn section of a surgeon's gloves or could have come from other
sources. And this foreign body was the cause of the infection of the ovaries
and consequently of all the discomfort suffered by Mrs. Villegas after her
delivery on September 21, 1988. [7]
The piece of rubber allegedly found near private respondent Flotilde
Villegas' uterus was not presented in court, and although Dr. Ma. Salud Kho
testified that she sent it to a pathologist in Cebu City for examination, [8] it
was not mentioned in the pathologist's Surgical Pathology Report. [9]
Aside from Dr. Kho's testimony, the evidence which mentioned the piece of
rubber are a Medical Certificate, [10] a Progress Record, [11] an Anesthesia
Record, [12] a Nurse's Record, [13] and a Physician's Discharge Summary. [14]
The trial court, however, regarded these documentary evidence as mere
hearsay, "there being no showing that the person or persons who prepared
them are deceased or unable to testify on the facts therein stated . . . .
Except for the Medical Certificate (Exhibit "F"), all the above documents
were allegedly prepared by persons other than Dr. Kho, and she merely
affixed her signature on some of them to express her agreement thereto . .
. ." [15] The trial court also refused to give weight to Dr. Kho's testimony

regarding the subject piece of rubber as Dr. Kho "may not have had firsthand knowledge" thereof, [16] as could be gleaned from her statement,
thus:
A . . . I have heard somebody that [sic] says [sic] there is [sic] a foreign
body that goes with the tissues but unluckily I don't know where the rubber
was. [17]
The trial court deemed vital Dr. Victoria Batiquin's testimony that when she
confronted Dr. Kho regarding the piece of rubber, "Dr. Kho answered that
there was rubber indeed but that she threw it away." [18] This statement,
the trial court noted, was never denied nor disputed by Dr. Kho, leading it
to conclude:
There are now two different versions on the whereabouts of that offending
"rubber" (1) that it was sent to the Pathologist in Cebu as testified to in
Court by Dr. Kho and (2) that Dr. Kho threw it away as told by her to
Defendant. The failure of the Plaintiffs to reconcile these two different
versions serve only to weaken their claim against Defendant Batiquin. [19]
All told, the trial court held in favor of the petitioners herein.
The Court of Appeals reviewed the entirety of Dr. Kho's testimony and,
even without admitting the private respondents' documentary evidence,
deemed Dr. Kho's positive testimony to definitely establish that a piece of
rubber was found near private respondent Villegas' uterus. Thus, the Court
of Appeals reversed the decision of the trial court, holding:
4. The fault or negligence of appellee Dr. Batiquin is established by
preponderance of evidence. The trial court itself had narrated what
happened to appellant Flotilde after the cesarean operation made by
appellee doctor . . . . After the second operation, appellant Flotilde became
well and healthy. Appellant Flotilde's troubles were caused by the infection
due to the "rubber" that was left inside her abdomen. Both appellants
testified that after the operation made by appellee doctor, they did not go
to any other doctor until they finally decided to see another doctor in
January, 1989 when she was not getting any better under the care of
appellee Dr. Batiquin . . . . Appellee Dr. Batiquin admitted on the witness
stand that she alone decided when to close the operating area; that she
examined the portion she operated on before closing the same . . . . Had
she exercised due diligence, appellee Dr. Batiquin would have found the
rubber and removed it before closing the operating area. [20]
The appellate court then ruled:
Appellants' evidence show[s] that they paid a total of P17,000.00 [deposit
of P7,100.00 (Exh. G-1-A) plus hospital and medical expenses together with
doctor's fees in the total amount P9,900.00 (Exhs. G and G-2)] for the
second operation that saved her life.
For the miseries appellants endured for more than three (3) months, due to
the negligence of appellee Dr. Batiquin, they are entitled to moral damages
in the amount of P100,000.00; exemplary damages in the amount of
P20,000.00 and attorney's fees in the amount of P25,000.00.
The fact that appellant Flotilde can no longer bear children because her
uterus and ovaries were removed by Dr. Kho is not taken into consideration
as it is not shown that the removal of said organs were the direct result of
the rubber left by appellee Dr. Batiquin near the uterus. What is
established is that the rubber left by appellee cause infection, placed the

life of appellant Flotilde in jeopardy and caused appellants fear, worry and
anxiety . . . .
WHEREFORE, the appealed judgment, dismissing the complaint for
damages is REVERSED and SET ASIDE. Another judgment is hereby
entered ordering defendants-appellees to pay plaintiffs-appellants the
amounts of P17,000.00 as and for actual damages; P100,000.00 as and for
moral damages; P20,000.00 as and for exemplary damages; and
P25,000.00 as and for attorney's fees plus the cost of litigation.
SO ORDERED. [21]
From the above judgment, the petitioners appealed to this Court claiming
that the appellate court; (1) committed grave abuse of discretion by
resorting to findings of fact not supported by the evidence on record, and
(2) exceeded its discretion, amounting to lack or excess of jurisdiction,
when it gave credence to testimonies punctured with contradictions and
falsities.
The private respondents commented that the petition raised only questions
of fact, which were not proper for review by this Court.
While the rule is that only questions of law may be raised in a petition for
review on certiorari, there are exceptions, among which are when the
factual findings of the trial court and the appellate court conflict, when the
appealed decision is clearly contradicted by the evidence on record, or
when the appellate court misapprehended the facts. [22]
After deciphering the cryptic petition, we find that the focal point of the
instant appeal is the appreciation of Dr. Kho's testimony. The petitioners
contend that the Court of Appeals misappreciated the following portion of
Dr. Kho's testimony:
Q What is the purpose of the examination?
A Just in case, I was just thinking at the back of my mind, just in case this
would turn out to be a medico-legal case, I have heard somebody that [sic]
says [sic] there is [sic] a foreign body that goes with the tissues but
unluckily I don't know where the rubber was. It was not in the Lab, it was
not in Cebu. [23] (Italics supplied)
The petitioners prefer the trial court's interpretation of the above
testimony, i.e., that Dr. Kho's knowledge of the piece of rubber was based
on hearsay. The Court of Appeals, on the other hand, concluded that the
underscored phrase was taken out of context by the trial court. According
to the Court of Appeals, the trial court should have likewise considered the
other portions of Dr. Kho's testimony, especially the following:
Q So you did actually conduct the operation on her?
A Yes, I did.
Q And what was the result?
A Opening up her abdomen, there was whitish-yellow discharge inside the
abdomen, there was an ovarian cyst on the left and side and there was
also an ovarian cyst on the right which, on opening up or freeing it up from
the uterus, turned out to be pus. Both ovaries turned out . . . to have pus.
And then, cleaning up the uterus, at the back of the uterus it was very
dirty, it was full of pus. And there was a [piece of] rubber, we found a
[piece of] rubber on the right side. [24]
We agree with the Court of Appeals. The phrase relied upon by the trial
court does not negate the fact that Dr. Kho saw a piece of rubber in private

respondent Villegas' abdomen, and that she sent it to a laboratory and

then to Cebu City for examination by a pathologist. [25] Not even the
Pathologist's Report, although devoid of any mention of a piece of rubber,
could alter what Dr. Kho saw. Furthermore, Dr. Kho's knowledge of the
piece of rubber could not be based on other than first hand knowledge for,
as she asserted before the trial court:
Q But you are sure you have seen [the piece of rubber]?
A Oh yes. I was not the only one who saw it. [26]
The petitioners emphasize that the private respondents never reconciled
Dr. Kho's testimony with Dr. Batiquin's claim on the witness stand that
when Dr. Batiquin confronted Dr. Kho about the foreign body, the latter
said that there was a piece of rubber but that she threw it away. Although
hearsay, Dr. Batiquin's claim was not objected to, and hence, the same is
admissible [27] but it carries no probative value. [28] Nevertheless, assuming
otherwise, Dr. Batiquin's statement cannot belie the fact that Dr. Kho found
a piece of rubber near private respondent Villegas' uterus. And even if we
were to doubt Dr. Kho as to what she did to the piece of rubber, i.e.,
whether she threw it away or sent it to Cebu City, we are not justified in
distrusting her as to her recovery of a piece of rubber from private
respondent Villegas' abdomen. On this score, it is perfectly reasonable to
believe the testimony of a witness with respect to some facts and
disbelieve his testimony with respect to other facts. And it has been aptly
said that even when a witness is found to have deliberately falsified in
some material particulars, it is not required that the whole of his
uncorroborated testimony be rejected, but such portions thereof deemed
worthy of belief may be credited. [29]
It is here worth nothing that the trial court paid heed to the following
portions of Dr. Batiquin's testimony: that no rubber drain was used in the
operation, [30] and that there was neither any tear on Dr. Batiquin's gloves
after the operation nor blood smears on her hands upon removing her
gloves. [31] Moreover, the trial court pointed out that the absence of a
rubber drain was corroborated by Dr. Doris Sy, Dr. Batiquin's assistant
during the operation on private respondent Villegas. [32] But the trial court
failed to recognize that the assertions of Drs. Batiquin and Sy were denials
or negative testimonies. Well-settled is the rule that positive testimony is
stronger than negative testimony. [33] Of course, as the petitioners
advocate, such positive testimony must come from a credible source,
which leads us to the second assigned error.
While the petitioners claim that contradictions and falsities punctured Dr.
Kho's testimony, a reading of the said testimony reveals no such infirmity
and establishes Dr. Kho as a credible witness. Dr. Kho was frank throughout
her turn on the witness stand. Furthermore, no motive to state any untruth
was ever imputed against Dr. Kho, leaving her trustworthiness unimpaired.
[34]
The trial court's following declaration shows that while it was critical of
the lack of care with which Dr. Kho handled the piece of rubber, it was not
prepared to doubt Dr. Kho's credibility, thus only supporting out appraisal
of Dr. Kho's trustworthiness:
This is not to say that she was less than honest when she testified about
her findings, but it can also be said that she did not take the most
appropriate precaution to preserve that "piece of rubber" as an eloquent

evidence of what she would reveal should there be a "legal problem" which
she claim[s] to have anticipated. [35]
Considering that we have assessed Dr. Kho to be a credible witness, her
positive testimony [that a piece of rubber was indeed found in private
respondent Villegas' abdomen] prevails over the negative testimony in
favor of the petitioners.
As such, the rule of res ipsa loquitur comes to fore. This Court has had
occasion to delve into the nature and operation of this doctrine:
This doctrine [res ipsa loquitur] is stated thus: "Where the thing which
causes injury is shown to be under the management of the defendant, and
the accident is such as in the ordinary course of things does not happen if
those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the
accident arose from want of care." Or as Black's Law Dictionary puts it:
Res ipsa loquitur. The thing speaks for itself. Rebuttable presumption or
inference that defendant was negligent, which arises upon proof that [the]
instrumentality causing injury was in defendant's exclusive control, and
that the accident was one which ordinary does not happen in absence of
negligence. Res ipsa loquitur is [a] rule of evidence whereby negligence of
[the] alleged wrongdoer may be inferred from [the] mere fact that [the]
accident happened provided [the] character of [the] accident and
circumstances attending it lead reasonably to belief that in [the] absence
of negligence it would not have occurred and that thing which caused
injury is shown to have been under [the] management and control of [the]
alleged wrongdoer . . . . Under [this] doctrine . . . the happening of an
injury permits an inference of negligence where plaintiff produces
substantial evidence that [the] injury was caused by an agency or
instrumentality under [the] exclusive control and management of
defendant, and that the occurrence [sic] was such that in the ordinary
course of things would not happen if reasonable care had been used.
xxx xxx xxx
The doctrine of [r]es ipsa loquitur as a rule of evidence is peculiar to the
law of negligence which recognizes that prima facie negligence may be
established without direct proof and furnishes a substitute for specific proof
of negligence. The doctrine is not a rule of substantive law, but merely a
mode of proof or a mere procedural convenience. The rule, when
applicable to the facts and circumstances of a particular case, is not
intended to and does not dispense with the requirement of proof of
culpable negligence on the party charged. It merely determines and
regulates what shall be prima facie evidence thereof and facilitates the
burden of plaintiff of proving a breach of the duty of due care. The doctrine
can be invoked when and only when, under the circumstances involved,
direct evidence is absent and not readily available. [36]
In the instant case, all the requisites for recourse to the doctrine are
present. First, the entire proceedings of the cesarean section were under
the exclusive control of Dr. Batiquin. In this light, the private respondents
were bereft of direct evidence as to the actual culprit or the exact cause of
the foreign object finding its way into private respondent Villegas' body,
which, needless to say, does not occur unless through the intervention of
negligence. Second, since aside from the cesarean section, private

respondent Villegas underwent no other operation which could have

caused the offending piece of rubber to appear in her uterus, it stands to
reason that such could only have been a by-product of the cesarean
section performed by Dr. Batiquin. The petitioners, in this regard, failed to
overcome the presumption of negligence arising from resort to the doctrine
of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving
behind a piece of rubber in private respondent Villegas' abdomen and for
all the adverse effects thereof.
As a final word, this Court reiterates its recognition of the vital role the
medical profession plays in the lives of the people, [37] and State's
compelling interest to enact measures to protect the public from "the
potentially deadly effects of incompetence and ignorance in those who
would undertake to treat our bodies and minds for disease or trauma." [38]
Indeed, a physician is bound to serve the interest of his patients "with the
greatest of solicitude, giving them always his best talent and skill." [39]
Through her tortious conduct, the petitioner endangered the life of Flotilde
Villegas, in violation of her profession's rigid ethical code and in
contravention of the legal standards set forth for professionals, in the
general, [40] and members of the medical profession, in particular.
WHEREFORE, the challenged decision of 11 May 1994 of the Court
of Appeals in CA-G.R. CV No. 30851 is hereby AFFIRMED in toto.
Costs against the petitioners.
SO ORDERED.

SECOND DIVISION
[G.R. No. 118141. September 5, 1997]
LEONILA GARCIA-RUEDA, petitioner, vs. WILFREDO L. PASCASIO,
RAUL R. ARNAU, ABELARDO L. APORTADERA JR., Honorable
CONDRADO M. VASQUEZ, all of the Office of the Ombudsman;
JESUS F. GUERRERO, PORFIRIO MACARAEG, and GREGORIO A.
ARIZALA, all of the Office of the City Prosecutor, Manila,
respondents.
DECISION
ROMERO, J.:
May this Court review the findings of the Office of the Ombudsman? The
general rule has been enunciated in Ocampo v. Ombudsman [1] which
states:
In the exercise of its investigative power, this Court has consistently held
that courts will not interfere with the discretion of the fiscal or the
Ombudsman to determine the specificity and adequacy of the averments
of the offense charged. He may dismiss the complaint forthwith if he finds
it to be insufficient in form and substance or if he otherwise finds no
ground to continue with the inquiry; or he may proceed with the
investigation of the complaint if, in his view, it is in due and proper form.
Does the instant case warrant a departure from the foregoing general rule?
When a patient dies soon after surgery under circumstances which indicate
that the attending surgeon and anaesthesiologist may have been guilty of
negligence but upon their being charged, a series of nine prosecutors toss

the responsibility of conducting a preliminary investigation to each other

with contradictory recommendations, ping-pong style, perhaps the
distraught widow is not to be blamed if she finally decides to accuse the
City Prosecutors at the end of the line for partiality under the Anti-Graft
and Corrupt Practices Act. Nor may she be entirely faulted for finally filing a
petition before this Court against the Ombudsman for grave abuse of
discretion in dismissing her complaint against said City Prosecutors on the
ground of lack of evidence. Much as we sympathize with the bereaved
widow, however, this Court is of the opinion that the general rule still finds
application in instant case. In other words, the respondent Ombudsman did
not commit grave abuse of discretion in deciding against filing the
necessary information against public respondents of the Office of the City
Prosecutor.
The following facts are borne out by the records.
Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent
surgical operation at the UST hospital for the removal of a stone blocking
his ureter. He was attended by Dr. Domingo Antonio, Jr. who was the
surgeon, while Dr. Erlinda Balatbat-Reyes was the anaesthesiologist. Six
hours after the surgery, however, Florencio died of complications of
unknown cause, according to officials of the UST Hospital. [2]
Not satisfied with the findings of the hospital, petitioner requested the
National Bureau of Investigation (NBI) to conduct an autopsy on her
husbands body. Consequently, the NBI ruled that Florencios death was due
to lack of care by the attending physician in administering anaesthesia.
Pursuant to its findings, the NBI recommended that Dr. Domingo Antonio
and Dr. Erlinda Balatbat-Reyes be charged for Homicide through Reckless
Imprudence before the Office of the City Prosecutor.
During the preliminary investigation, what transpired was a confounding
series of events which we shall try to disentangle. The case was initially
assigned to Prosecutor Antonio M. Israel, who had to inhibit himself
because he was related to the counsel of one of the doctors. As a result,
the case was re-raffled to Prosecutor Norberto G. Leono who was, however,
disqualified on motion of the petitioner since he disregarded prevailing
laws and jurisprudence regarding preliminary investigation. The case was
then referred to Prosecutor Ramon O. Carisma, who issued a resolution
recommending that only Dr. Reyes be held criminally liable and that the
complaint against Dr. Antonio be dismissed.
The case took another perplexing turn when Assistant City Prosecutor
Josefina Santos Sioson, in the interest of justice and peace of mind of the
parties, recommended that the case be re-raffled on the ground that
Prosecutor Carisma was partial to the petitioner. Thus, the case was
transferred to Prosecutor Leoncia R. Dimagiba, where a volte face occurred
again with the endorsement that the complaint against Dr. Reyes be
dismissed and instead, a corresponding information be filed against Dr.
Antonio. Petitioner filed a motion for reconsideration, questioning the
findings of Prosecutor Dimagiba.
Pending the resolution of petitioners motion for reconsideration regarding
Prosecutor Dimagibas resolution, the investigative pingpong continued
when the case was again assigned to another prosecutor, Eudoxia T.
Gualberto, who recommended that Dr. Reyes be included in the criminal

information of Homicide through Reckless Imprudence. While the

recommendation of Prosecutor Gualberto was pending, the case was
transferred to Senior State Prosecutor Gregorio A. Arizala, who resolved to
exonerate Dr. Reyes from any wrongdoing, a resolution which was
approved by both City Prosecutor Porfirio G. Macaraeg and City Prosecutor
Jesus F. Guerrero.
Aggrieved, petitioner filed graft charges specifically for violation of Section
3(e) of Republic Act No. 3019 [3] against Prosecutors Guerrero, Macaraeg,
and Arizala for manifest partiality in favor of Dr. Reyes before the Office of
the Ombudsman. However, on July 11, 1994, the Ombudsman issued the
assailed resolution dismissing the complaint for lack of evidence.
In fine, petitioner assails the exercise of the discretionary power of the
Ombudsman to review the recommendations of the government
prosecutors and to approve and disapprove the same. Petitioner faults the
Ombudsman for, allegedly in grave abuse of discretion, refusing to find
that there exists probable cause to hold public respondent City Prosecutors
liable for violation of Section 3(e) of R.A. No. 3019.
Preliminarily, the powers and functions of the Ombudsman have generally
been categorized into the following: investigatory powers, prosecutory
power, public assistance function, authority to inquire and obtain
information, and function to adopt, institute and implement preventive
measures. [4]
As protector of the people, the Office of the Ombudsman has the power,
function and duty to act promptly on complaints filed in any form or
manner against public officials and to investigate any act or omission of
any public official when such act or omission appears to be illegal, unjust,
improper or inefficient. [5]
While the Ombudsman has the full discretion to determine whether or not
a criminal case should be filed, this Court is not precluded from reviewing
the Ombudsmans action when there is an abuse of discretion, in which
case Rule 65 of the Rules of Court may exceptionally be invoked pursuant
to Section I, Article VIII of the 1987 Constitution. [6]
In this regard, grave abuse of discretion has been defined as where a
power is exercised in an arbitrary or despotic manner by reason of passion
or personal hostility so patent and gross as to amount to evasion of
positive duty or virtual refusal to perform a duty enjoined by, or in
contemplation of law. [7]
From a procedural standpoint, it is certainly odd why the successive
transfers from one prosecutor to another were not sufficiently explained in
the Resolution of the Ombudsman. Being the proper investigating authority
with respect to misfeasance, non-feasance and malfeasance of public
officials, the Ombudsman should have been more vigilant and assiduous in
determining the reasons behind the buckpassing to ensure that no
irregularity took place.
Whether such transfers were due to any outside pressure or ulterior motive
is a matter of evidence. One would have expected the Ombudsman,
however, to inquire into what could hardly qualify as standard operating
procedure, given the surrounding circumstances of the case.
While it is true that a preliminary investigation is essentially inquisitorial,
and is often the only means to discover who may be charged with a crime,

its function is merely to determine the existence of probable cause. [8]

Probable cause has been defined as the existence of such fact and
circumstances as would excite the belief, in a reasonable mind, acting on
the facts within the knowledge of the prosecution, that the person charged
was guilty of the crime for which he was prosecuted. [9]
Probable cause is a reasonable ground of presumption that a matter is, or
may be, well founded, such a state of facts in the mind of the prosecutor as
would lead a person of ordinary caution and prudence to believe, or
entertain an honest or strong suspicion, that a thing is so. The term does
not mean actual and positive cause nor does it import absolute certainty. It
is merely based on opinion and reasonable belief. Thus, a finding of
probable cause does not require an inquiry into whether there is sufficient
evidence to procure a conviction. It is enough that it is believed that the
act or omission complained of constitutes the offense charged. Precisely,
there is a trial for the reception of evidence of the prosecution in support of
the charge. [10]
In the instant case, no less than the NBI pronounced after conducting an
autopsy that there was indeed negligence on the part of the attending
physicians in administering the anaesthesia. [11] The fact of want of
competence or diligence is evidentiary in nature, the veracity of which can
best be passed upon after a full-blown trial for it is virtually impossible to
ascertain the merits of a medical negligence case without extensive
investigation, research, evaluation and consultations with medical experts.
Clearly, the City Prosecutors are not in a competent position to pass
judgment on such a technical matter, especially when there are conflicting
evidence and findings. The bases of a partys accusation and defenses are
better ventilated at the trial proper than at the preliminary investigation.
A word on medical malpractice or negligence cases.
In its simplest terms, the type of lawsuit which has been called medical
malpractice or, more appropriately, medical negligence, is that type of
claim which a victim has available to him or her to redress a wrong
committed by a medical professional which has caused bodily harm.
In order to successfully pursue such a claim, a patient must prove that a
health care provider, in most cases a physician, either failed to do
something which a reasonably prudent health care provider would have
done, or that he or she did something that a reasonably prudent provider
would not have done; and that that failure or action caused injury to the
patient. [12]
Hence, there are four elements involved in medical negligence cases: duty,
breach, injury and proximate causation.
Evidently, when the victim employed the services of Dr. Antonio and Dr.
Reyes, a physician-patient relationship was created. In accepting the case,
Dr. Antonio and Dr. Reyes in effect represented that, having the needed
training and skill possessed by physicians and surgeons practicing in the
same field, they will employ such training, care and skill in the treatment of
their patients. [13] They have a duty to use at least the same level of care
that any other reasonably competent doctor would use to treat a condition
under the same circumstances. The breach of these professional duties of
skill and care, or their improper performance, by a physician surgeon
whereby the patient is injured in body or in health, constitutes actionable

malpractice. [14] Consequently, in the event that any injury results to the
patient from want of due care or skill during the operation, the surgeons
may be held answerable in damages for negligence. [15]
Moreover, in malpractice or negligence cases involving the administration
of anaesthesia, the necessity of expert testimony and the availability of the
charge of res ipsa loquitur to the plaintiff, have been applied in actions
against anaesthesiologists to hold the defendant liable for the death or
injury of a patient under excessive or improper anaesthesia. [16] Essentially,
it requires two-pronged evidence: evidence as to the recognized standards
of the medical community in the particular kind of case, and a showing
that the physician in question negligently departed from this standard in
his treatment. [17]
Another element in medical negligence cases is causation which is divided
into two inquiries: whether the doctors actions in fact caused the harm to
the patient and whether these were the proximate cause of the patients
injury. [18] Indeed here, a causal connection is discernible from the
occurrence of the victims death after the negligent act of the
anaesthesiologist in administering the anesthesia, a fact which, if
confirmed, should warrant the filing of the appropriate criminal case. To be
sure, the allegation of negligence is not entirely baseless. Moreover, the
NBI deduced that the attending surgeons did not conduct the necessary
interview of the patient prior to the operation. It appears that the cause of
the death of the victim could have been averted had the proper drug been
applied to cope with the symptoms of malignant hyperthermia. Also, we
cannot ignore the fact that an antidote was readily available to counteract
whatever deleterious effect the anaesthesia might produce. [19] Why these
precautionary measures were disregarded must be sufficiently explained.
The City Prosecutors were charged with violating Section 3(e) of the AntiGraft and Corrupt Practices Act which requires the following facts:
1. The accused is a public officer discharging administrative or official
functions or private persons charged in conspiracy with them;
2. The public officer committed the prohibited act during the performance
of his official duty or in relation to his public position;
3. The public officer acted with manifest partiality, evident bad faith or
gross, inexcusable negligence; and
4. His action caused undue injury to the Government or any private party,
or gave any party any unwarranted benefit, advantage or preference to
such parties. [20]
Why did the complainant, petitioner in instant case, elect to charge
respondents under the above law?
While a party who feels himself aggrieved is at liberty to choose the
appropriate weapon from the armory, it is with no little surprise that this
Court views the choice made by the complainant widow.
To our mind, the better and more logical remedy under the circumstances
would have been to appeal the resolution of the City Prosecutors
dismissing the criminal complaint to the Secretary of Justice under the
Department of Justices Order No. 223, [21] otherwise known as the 1993
Revised Rules on Appeals From Resolutions In Preliminary
Investigations/Reinvestigations, as amended by Department Order No.
359, Section 1 of which provides:

Section 1. What May Be Appealed. - Only resolutions of the Chief State

Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor
dismissing a criminal complaint may be the subject of an appeal to the
Secretary of Justice except as otherwise provided in Section 4 hereof.
What action may the Secretary of Justice take on the appeal? Section 9 of
Order No. 223 states: The Secretary of Justice may reverse, affirm or
modify the appealed resolution. On the other hand, He may motu proprio
or on motion of the appellee, dismiss outright the appeal on specified
grounds. [22]
In exercising his discretion under the circumstances, the Ombudsman
acted within his power and authority in dismissing the complaint against
the Prosecutors and this Court will not interfere with the same.
WHEREFORE, in view of the foregoing, the instant petition is
DISMISSED, without prejudice to the filing of an appeal by the petitioner
with the Secretary of Justice assailing the dismissal of her criminal
complaint by the respondent City Prosecutors. No costs.
SO ORDERED.
THIRD DIVISION
[G.R. No. 122445. November 18, 1997]
DR. NINEVETCH CRUZ, petitioner, vs. COURT OF APPEALS and
LYDIA UMALI, respondents.
DECISION
FRANCISCO, J.:
"Doctors are protected by a special law. They are not guarantors of care.
They do not even warrant a good result. They are not insurers against
mishap or unusual consequences. Furthermore they are not liable for
honest mistake of judgment" [1]
The present case against petitioner is in the nature of a medical
malpractice suit, which in simplest term is the type of claim which a victim
has available to him or her to redress a wrong committed by a medical
professional which has cause bodily harm. [2] In this jurisdiction, however,
such claims are most often brought as a civil action for damages under
Article 2176 of the Civil Code, [3] and in some instances, as a criminal case
under Article 365 of the Revised Penal Code [4] with which the civil action
for damages is impliedly instituted. It is via the latter type of action that
the heirs of the deceased sought redress for the petitioner's alleged
imprudence and negligence in treating the deceased thereby causing her
death. The petitioner and one Dr. Lina Ercillo who was the attending
anaesthesiologist during the operation of the deceased were charged with
"reckless imprudence and negligence resulting to (sic) homicide" in an
information which reads:
"That on or about March 23, 1991, in the City of San Pablo, Republic of the
Philippines and within the jurisdiction of this Honorable Court, the accused
abovenamed, being then the attending anaesthesiologist and surgeon,
respectively, did then and there, in a negligence (sic), careless, imprudent,
and incompetent manner, and failing to supply or store sufficient
provisions and facilities necessary to meet any and all exigencies apt to
arise before, during and/or after a surgical operation causing by such

negligence, carelessness, imprudence, and incompetence, and causing by

such failure, including the lack of preparation and foresight needed to
avert a tragedy, the untimely death of said Lydia Umali on the day
following said surgical operation." [5]
Trial ensued after both the petitioner and Dr. Lina Ercillo pleaded not guilty
to the above-mentioned charge. On March 4, 1994, the Municipal Trial
Court in Cities (MTCC) of San Pablo City rendered a decision, the dispositive
portion of which is hereunder quoted as follows:
"WHEREFORE, the court finds the accused Dr. Lina Ercillo not guilty of the
offense charged for insufficiency of evidence while her co-accused Dra.
Ninevetch Cruz is hereby held responsible for the death of Lydia Umali on
March 24, 1991, and therefore guilty under Art. 365 of the Revised Penal
Code, and she is hereby sentenced to suffer the penalty of 2 months and 1
day imprisonment of arresto mayor with costs." [6]
The petitioner appealed her conviction to the Regional Trial Court (RTC)
which affirmed in toto the decision of the MTCC [7] prompting the petitioner
to file a petition for review with the Court of Appeals but to no avail. Hence
this petition for review on certiorari assailing the decision promulgated by
the Court of Appeals on October 24, 1995 affirming petitioner's conviction
with modification that she is further directed to pay the heirs of Lydia Umali
P50,000.00 as indemnity for her death. [8]
In substance, the petition brought before this Court raises the issue of
whether or not petitioner's conviction of the crime of reckless imprudence
resulting in homicide, arising from an alleged medical malpractice, is
supported by the evidence on record.
First the antecedent facts.
On March 22, 1991, prosecution witness, Rowena Umali De Ocampo,
accompanied her mother to the Perpetual Help Clinic and General Hospital
situated in Balagtas Street, San Pablo City, Laguna. They arrived at the
said hospital at around 4:30 in the afternoon of the same day. [9] Prior to
March 22, 1991, Lydia was examined by the petitioner who found a
"myoma" [10] in her uterus, and scheduled her for a hysterectomy operation
on March 23, 1991. [11] Rowena and her mother slept in the clinic on the
evening of March 22, 1991 as the latter was to be operated on the next
day at 1:00 o'clock in the afternoon. [12] According to Rowena, she noticed
that the clinic was untidy and the window and the floor were very dusty
prompting her to ask the attendant for a rag to wipe the window and the
floor with. [13] Because of the untidy state of the clinic, Rowena tried to
persuade her mother not to proceed with the operation. [14] The following
day, before her mother was wheeled into the operating room, Rowena
asked the petitioner if the operation could be postponed. The petitioner
called Lydia into her office and the two had a conversation. Lydia then
informed Rowena that the petitioner told her that she must be operated on
as scheduled. [15]
Rowena and her other relatives, namely her husband, her sister and two
aunts waited outside the operating room while Lydia underwent operation.
While they were waiting, Dr. Ercillo went out of the operating room and
instructed them to buy tagamet ampules which Rowena's sister
immediately bought. About one hour had passed when Dr. Ercillo came out
again this time to ask them to buy blood for Lydia. They bought type "A"

blood from the St. Gerald Blood Bank and the same was brought by the
attendant into the operating room. After the lapse of a few hours, the
petitioner informed them that the operation was finished. The operating
staff then went inside the petitioner's clinic to take their snacks. Some
thirty minutes after, Lydia was brought out of the operating room in a
stretcher and the petitioner asked Rowena and the other relatives to buy
additional blood for Lydia. Unfortunately, they were not able to comply with
petitioner's order as there was no more type "A" blood available in the
blood bank. Thereafter, a person arrived to donate blood which was later
transfused to Lydia. Rowena then noticed her mother, who was attached to
an oxygen tank, gasping for breath. Apparently the oxygen supply had run
out and Rowena's husband together with the driver of the accused had to
go to the San Pablo District Hospital to get oxygen. Lydia was given the
fresh supply of oxygen as soon as it arrived. [16] But at around 10:00 o'clock
P.M. she went into shock and her blood pressure dropped to 60/50. Lydia's
unstable condition necessitated her transfer to the San Pablo District
Hospital so she could be connected to a respirator and further examined.
[17]
The transfer to the San Pablo City District Hospital was without the prior
consent of Rowena nor of the other relatives present who found out about
the intended transfer only when an ambulance arrived to take Lydia to the
San Pablo District Hospital. Rowena and her other relatives then boarded a
tricycle and followed the ambulance. [18]
Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled
into the operating room and the petitioner and Dr. Ercillo re-operated on
her because there was blood oozing from the abdominal incision. [19] The
attending physicians summoned Dr. Bartolome Angeles, head of the
Obstetrics and Gynecology Department of the San Pablo District Hospital.
However, when Dr. Angeles arrived, Lydia was already in shock and
possibly dead as her blood pressure was already 0/0. Dr. Angeles then
informed petitioner and Dr. Ercillo that there was nothing he could do to
help save the patient. [20] While petitioner was closing the abdominal wall,
the patient died. [21] Thus, on March 24, 1991, at 3:00 o'clock in the
morning, Lydia Umali was pronounced dead. Her death certificate states
"shock" as the immediate cause of death and "Disseminated Intravascular
Coagulation (DIC)" as the antecedent cause. [22]
In convicting the petitioner, the MTCC found the following circumstances as
sufficient basis to conclude that she was indeed negligent in the
performance of the operation:
"x x x, the clinic was untidy, there was lack of provision like blood and
oxygen to prepare for any contingency that might happen during the
operation. The manner and the fact that the patient was brought to the
San Pablo District Hospital for reoperation indicates that there was
something wrong in the manner in which Dra. Cruz conducted the
operation. There was no showing that before the operation, accused Dr.
Cruz had conducted a cardio pulmonary clearance or any typing of the
blood of the patient. It was (sic) said in medical parlance that the
"abdomen of the person is a temple of surprises" because you do not know
the whole thing the moment it was open (sic) and surgeon must be
prepared for any eventuality thereof. The patient (sic) chart which is a
public document was not presented because it is only there that we could

determine the condition of the patient before the surgery. The court also
noticed in Exh. "F-1" that the sister of the deceased wished to postpone
the operation but the patient was prevailed upon by Dra. Cruz to proceed
with the surgery. The court finds that Lydia Umali died because of the
negligence and carelessness of the surgeon Dra. Ninevetch Cruz because
of loss of blood during the operation of the deceased for evident
unpreparedness and for lack of skill, the reason why the patient was
brought for operation at the San Pablo City District Hospital. As such, the
surgeon should answer for such negligence. With respect to Dra. Lina
Ercillo, the anaesthesiologist, there is no evidence to indicate that she
should be held jointly liable with Dra. Cruz who actually did the operation."
[23]

The RTC reiterated the abovementioned findings of the MTCC and upheld
the latter's declaration of "incompetency, negligence and lack of foresight
and skill of appellant (herein petitioner) in handling the subject patient
before and after the operation." [24] And likewise affirming the petitioner's
conviction, the Court of Appeals echoed similar observations, thus:
"x x x. While we may grant that the untidiness and filthiness of the clinic
may not by itself indicate negligence, it nevertheless shows the absence of
due care and supervision over her subordinate employees. Did this
unsanitary condition permeate the operating room? Were the surgical
instruments properly sterilized? Could the conditions in the OR have
contributed to the infection of the patient? Only the petitioner could
answer these, but she opted not to testify. This could only give rise to the
presumption that she has nothing good to testify on her defense. Anyway,
the alleged "unverified statement of the prosecution witness" remains
unchallenged and unrebutted.
Likewise undisputed is the prosecution's version indicating the following
facts: that the accused asked the patient's relatives to buy Tagamet
capsules while the operation was already in progress; that after an hour,
they were also asked to buy type "A" blood for the patient; that after the
surgery, they were again asked to procure more type "A" blood, but such
was not anymore available from the source; that the oxygen given to the
patient was empty; and that the son-in-law of the patient, together with a
driver of the petitioner, had to rush to the San Pablo City District Hospital
to get the much-needed oxygen. All these conclusively show that the
petitioner had not prepared for any unforeseen circumstances before going
into the first surgery, which was not emergency in nature, but was elective
or pre-scheduled; she had no ready antibiotics, no prepared blood, properly
typed and cross-matched, and no sufficient oxygen supply.
Moreover, there are a lot of questions that keep nagging Us. Was the
patient given any cardio-pulmonary clearance, or at least a clearance by
an internist, which are standard requirements before a patient is subjected
to surgery. Did the petitioner determine as part of the pre-operative
evaluation, the bleeding parameters of the patient, such as bleeding time
and clotting time? There is no showing that these were done. The
petitioner just appears to have been in a hurry to perform the operation,
even as the family wanted the postponement to April 6, 1991. Obviously,
she did not prepare the patient; neither did she get the family's consent to
the operation. Moreover, she did not prepare a medical chart with

instructions for the patient's care. If she did all these, proof thereof should
have been offered. But there is none. Indeed, these are overwhelming
evidence of recklessness and imprudence." [25]
This court, however, holds differently and finds the foregoing
circumstances insufficient to sustain a judgment of conviction against the
petitioner for the crime of reckless imprudence resulting in homicide. The
elements of reckless imprudence are: (1) that the offender does or fails to
do an act; (2) that the doing or the failure to do that act is voluntary; (3)
that it be without malice; (4) that material damage results from the
reckless imprudence; and (5) that there is inexcusable lack of precaution
on the part of the offender, taking into consideration his employment or
occupation, degree of intelligence, physical condition, and other
circumstances regarding persons, time and place.
Whether or not a physician has committed an "inexcusable lack of
precaution" in the treatment of his patient is to be determined according to
the standard of care observed by other members of the profession in good
standing under similar circumstances bearing in mind the advanced state
of the profession at the time of treatment or the present state of medical
science. [26] In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio,
et. al., [27] this Court stated that in accepting a case, a doctor in effect
represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will employ such
training, care and skill in the treatment of his patients. He therefore has a
duty to use at least the same level of care that any other reasonably
competent doctor would use to treat a condition under the same
circumstances. It is in this aspect of medical malpractice that expert
testimony is essential to establish not only the standard of care of the
profession but also that the physician's conduct in the treatment and care
falls below such standard. [28] Further, inasmuch as the causes of the
injuries involved in malpractice actions are determinable only in the light of
scientific knowledge, it has been recognized that expert testimony is
usually necessary to support the conclusion as to causation. [29]
Immediately apparent from a review of the records of this case is the
absence of any expert testimony on the matter of the standard of care
employed by other physicians of good standing in the conduct of similar
operations. The prosecution's expert witnesses in the persons of Dr.
Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of
Investigation (NBI) only testified as to the possible cause of death but did
not venture to illuminate the court on the matter of the standard of care
that petitioner should have exercised.
All three courts below bewail the inadequacy of the facilities of the clinic
and its untidiness; the lack of provisions such as blood, oxygen, and certain
medicines; the failure to subject the patient to a cardio-pulmonary test
prior to the operation; the omission of any form of blood typing before
transfusion; and even the subsequent transfer of Lydia to the San Pablo
Hospital and the reoperation performed on her by the petitioner. But while
it may be true that the circumstances pointed out by the courts below
seemed beyond cavil to constitute reckless imprudence on the part of the
surgeon, this conclusion is still best arrived at not through the educated
surmises nor conjectures of laymen, including judges, but by the

unquestionable knowledge of expert witnesses. For whether a physician or

surgeon has exercised the requisite degree of skill and care in the
treatment of his patient is, in the generality of cases, a matter of expert
opinion. [30] The deference of courts to the expert opinion of qualified
physicians stems from its realization that the latter possess unusual
technical skills which laymen in most instances are incapable of
intelligently evaluating. [31] Expert testimony should have been offered to
prove that the circumstances cited by the courts below are constitutive of
conduct falling below the standard of care employed by other physicians in
good standing when performing the same operation. It must be
remembered that when the qualifications of a physician are admitted, as in
the instant case, there is an inevitable presumption that in proper cases he
takes the necessary precaution and employs the best of his knowledge and
skill in attending to his clients, unless the contrary is sufficiently
established. [32] This presumption is rebuttable by expert opinion which is
so sadly lacking in the case at bench.
Even granting arguendo that the inadequacy of the facilities and untidiness
of the clinic; the lack of provisions; the failure to conduct pre-operation
tests on the patient; and the subsequent transfer of Lydia to the San Pablo
Hospital and the reoperation performed on her by the petitioner do
indicate, even without expert testimony, that petitioner was recklessly
imprudent in the exercise of her duties as a surgeon, no cogent proof
exists that any of these circumstances caused petitioner's death. Thus, the
absence of the fourth element of reckless imprudence: that the injury to
the person or property was a consequence of the reckless imprudence.
In litigations involving medical negligence, the plaintiff has the burden of
establishing appellant's negligence and for a reasonable conclusion of
negligence, there must be proof of breach of duty on the part of the
surgeon as well as a casual connection of such breach and the resulting
death of his patient. [33] In Chan Lugay v. St Luke's Hospital, Inc., [34] where
the attending physician was absolved of liability for the death of the
complainant's wife and newborn baby, this court held that:
"In order that there may be a recovery for an injury, however, it must be
shown that the 'injury for which recovery is sought must be the legitimate
consequence of the wrong done; the connection between the negligence
and the injury must be a direct and natural sequence of events, unbroken
by intervening efficient causes.' In other words, the negligence must be the
proximate cause of the injury. For, 'negligence, no matter in what it
consists, cannot create a right of action unless it is the proximate cause of
the injury complained of.' And 'the proximate cause of an injury is that
cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the
result would not have occurred.''' [35] (Underscoring supplied.)
Dr. Arizala who conducted an autopsy on the body of the deceased
summarized his findings as follows:
"Atty. Cachero:
Q. You mentioned about your Autopsy Report which has been marked as
Exh. "A-1-b". There appears here a signature above the typewritten name
Floresto Arizala, Jr., whose signature is that?
A. That is my signature, sir.

Q. Do you affirm the truth of all the contents of Exh. "A-1-b"?

A. Only as to the autopsy report no. 91-09, the time and place and
everything after the post mortem findings, sir.
Q. You mentioned on your "Post Mortem Findings" about surgical incision,
14:0 cm., infraumbilical area, anterior abdominal area, midline, will you
please explain that in your own language?
A. There was incision wound (sic) the area just below the navel, sir.
Q. And the last paragraph of the postmortem findings which I read: Uterus,
pear-shaped and pale measuring 7.5 x 5.5 x 5.0 cm, with some surface
nodulation of the fundic area posteriorly. Cut-section shows diffusely pale
myometrium with areas of streak induration. The ovaries and adnexal
structures are missing with the raw surfaces patched with clotted blood.
Surgical sutures were noted on the operative site.
Intestines and mesenteries are pale with blood clots noted between the
mesentric folds.
Hemoperitonium: 300 s.s.,
right paracolic gutter,
50 c.c., left paracolic gutter
200 c.c., mesentric area,
100 c.c., right pelvic gutter
stomach empty.
Other visceral organs, pale.',
will you please explain that on (sic) your own language or in ordinary
A. There was a uterus which was not attached to the adnexal structures
namely ovaries which were not present and also sign of previous surgical
operation and there were (sic) clotted blood, sir.
Q. How about the ovaries and adnexal structures?
A. They are missing, sir.
Q. You mean to say there are no ovaries?
A. During that time there are no ovaries, sir.
Q. And there were likewise sign of surgical sutures?
A. Yes, sir.
Q. How about the intestines and mesenteries are place (sic) with blood
clots noted between the mesenteric folds, will you please explain on (sic)
this?
A. In the peritoneal cavity, they are mostly perritonial blood.
Q. And what could have caused this blood?
A. Well, ordinarily blood is found inside the blood vessel. Blood were (sic)
outside as a result of the injuries which destroyed the integrity of the
vessel allowing blood to sip (sic) out, sir.
Q. By the nature of the postmortem findings indicated in Exh. A-1-B, can
you tell the court the cause of death?
A. Yes, sir. The cause of death is: Gross findings are compatible with
hemorrhagic shock.
Q. Can you tell the us what could have caused this hemorrhagic shock?
A. Well hemorrhagic shock is the result of blood loss.
Q. What could have the effect of that loss of blood?
A. Unattended hemorrhage, sir. [36] (Underscoring supplied.)

The foregoing was corroborated by Dr. Nieto Salvador:

"Q. And were you able to determine the cause of death by virtue of the
examination of the specimen submitted by Dr. Arizala?
A. Without knowledge of the autopsy findings it would be difficult for me to
determine the cause of death, sir.
Q. Have you examined the post mortem of Dr. Arizala?
A. Yes, sir, and by virtue of the autopsy report in connection with your
pathology report.
Q. What could have caused the death of the victim?
A. This pathologic examination are (sic) compatible with the person who
died, sir.
Q. Will you explain to us the meaning of hemorrhagic compatible?
A. It means that a person died of blood loss. Meaning a person died of nonreplacement of blood and so the victim before she died there was shock of
diminish of blood of the circulation. She died most probably before the
actual complete blood loss, sir.
Court: Is it possible doctor that the loss of the blood was due on (sic)
operation?
A. Based on my pathology findings, sir.
Q. What could have caused this loss of blood?
A. Many, sir. A patient who have undergone surgery. Another may be a
blood vessel may be cut while on operation and this cause (sic) bleeding,
or may be set in the course of the operation, or may be (sic) he died after
the operation. Of course there are other cause (sic).
Atty. Cachero:
Q. Especially so doctor when there was no blood replacement?
A. Yes, sir." [37] (Underscoring supplied.)
The testimonies of both doctors establish hemorrhage or hemorrhagic
shock as the cause of death. However, as likewise testified to by the expert
witnesses in open court, hemorrhage or hemorrhagic shock during surgery
may be caused by several different factors. Thus, Dr. Salvador's
elaboration on the matter:
"Atty. Pascual:
Q. Doctor, among the causes of hemorrhage that you mentioned you said
that it could be at the moment of operation when one losses (sic) control of
the presence, is that correct? During the operation there is lost (sic) of
control of the cut vessel?
A. Yes, sir.
Q. Or there is a failure to ligate a vessel of considerable size?
A. Yes, sir.
Q. Or even if the vessel were ligated the knot may have slipped later on?
A. Yes, sir.
Q. And you also mentioned that it may be possible also to some clotting
defect, is that correct?
A. May be (sic)." [38] (Underscoring supplied).
Defense witness, Dr. Bu C. Castro also gave the following expert opinion:
"Q. Doctor even a patient after an operations (sic) would suffer hemorrage
what would be the possible causes of such hemorrage (sic)?
A. Among those would be what we call Intravascular Coagulation and this
is the reason for the bleeding, sir, which cannot be prevented by anyone, it

will happen to anyone, anytime and to any persons (sic), sir.

COURT:
What do you think of the cause of the bleeding, the cutting or the
operations done in the body?
A. Not related to this one, the bleeding here is not related to any cutting or
operation that I (sic) have done.
Q. Aside from the DIC what could another causes (sic) that could be the
cause for the hemorrhage or bleeding in a patient by an operations (sic)?
A. In general sir, if there was an operations (sic) and it is possible that the
ligature in the suture was (sic) become (sic) loose, it is (sic) becomes loose
if proven.
xxxxxxxxx
Q. If the person who performed an autopsy does not find any untight (sic)
clot (sic) blood vessel or any suture that become (sic) loose the cause of
the bleeding could not be attributed to the fault of the subject?
A. Definitely, sir." [39] (Underscoring supplied.)
According to both doctors, the possible causes of hemorrhage during an
operation are: (1) the failure of the surgeon to tie or suture a cut blood
vessel; (2) allowing a cut blood vessel to get out of control; (3) the
subsequent loosening of the tie or suture applied to a cut blood vessel; and
(4) and a clotting defect known as DIC. It is significant to state at this
juncture that the autopsy conducted by Dr. Arizala on the body of Lydia did
not reveal any untied or unsutured cut blood vessel nor was there any
indication that the tie or suture of a cut blood vessel had become loose
thereby causing the hemorrhage. [40] Hence the following pertinent portion
of Dr. Arizala's testimony:
"Q: Doctor, in examining these structures did you know whether these
were sutured ligature or plain ligature
A: Ligature, sir.
Q: We will explain that later on. Did you recall if the cut structures were
tied by first suturing it and then tying a knot or the tie was merely placed
around the cut structure and tied?
A: I cannot recall, sir.
Q: As a matter of fact, you cannot recall because you did not even
bothered (sic) to examine, is that correct?
A: Well, I bothered enough to know that they were sutured, sir.
Q: So, therefore, Doctor, you would not know whether any of the cut
structures were not sutured or tied neither were you able to determine
whether any loose suture was found in the peritoneal cavity?
A: I could not recall any loose sutured (sic), sir." [41]
On the other hand, the findings of all three doctors do not preclude the
probability that DIC caused the hemorrhage and consequently, Lydia's
death. DIC which is a clotting defect creates a serious bleeding tendency
and when massive DIC occurs as a complication of surgery leaving raw
surface, major hemorrhage occurs. [42] And as testified to by defense
witness, Dr. Bu C. Castro, hemorrhage due to DIC "cannot be prevented, it
will happen to anyone, anytime." [43] He testified further:
"Q. Now, under the circumstance one of the possibility as you mentioned in
(sic) DIC?
A. Yes, sir.

10

Q. And you mentioned that it cannot be prevented?

A. Yes, sir.
Q. Can you even predict if it really happen (sic)?
A. Possible, sir.
Q. Are there any specific findings of autopsy that will tell you whether this
patient suffered among such things as DIC?
A. Well, I did reserve because of the condition of the patient.
Q. Now, Doctor you said that you went through the record of the deceased
Lydia Umali looking for the chart, the operated (sic) records, the post
mortem findings on the histophanic (sic) examination based on your
examination of record, doctor, can you more or less says (sic) what part
are (sic) concerned could have been the caused (sic) of death of this Lydia
Umali?
A. As far as the medical record is concern (sic) the caused (sic) of death is
dessimulated (sic) Intra Vascular Coagulation or the DIC which resulted to
hemorrhage or bleedings, sir.
Q. Doctor based on your findings then there is knowing (sic) the doctor
would say whether the doctor her (sic) has been (sic) fault?
ATTY. MALVEDA:
We will moved (sic) to strike out the (sic) based on finding they just read
the chart as well as the other record.
ATTY. PASCUAL:
Precisely based on this examination.
ATTY. MALVEDA:
Not finding, there was no finding made.
COURT:
He is only reading the record.
ATTY. PASCUAL:
Yes, sir.
A. No, sir, there is no fault on the part of the surgeon, sir." [44]

This court has no recourse but to rely on the expert testimonies rendered
by both prosecution and defense witnesses that substantiate rather than
contradict petitioner's allegation that the cause of Lydia's death was DIC
which, as attested to by an expert witness, cannot be attributed to the
petitioner's fault or negligence. The probability that Lydia's death was
caused by DIC was unrebutted during trial and has engendered in the mind
of this Court a reasonable doubt as to the petitioner's guilt. Thus, her
acquittal of the crime of reckless imprudence resulting in homicide. While
we condole with the family of Lydia Umali, our hands are bound by the
dictates of justice and fair dealing which hold inviolable the right of an
accused to be presumed innocent until proven guilty beyond reasonable
doubt. Nevertheless, this Court finds the petitioner civilly liable for the
death of Lydia Umali, for while a conviction of a crime requires proof
beyond reasonable doubt, only a preponderance of evidence is required to
establish civil liability. [45]
The petitioner is a doctor in whose hands a patient puts his life and limb.
For insufficiency of evidence this Court was not able to render a sentence

of conviction but it is not blind to the reckless and imprudent manner in

which the petitioner carried out her duties. A precious life has been lost
and the circumstances leading thereto exacerbated the grief of those left
behind. The heirs of the deceased continue to feel the loss of their mother
up to the present time [46] and this Court is aware that no amount of
compassion and commiseration nor words of bereavement can suffice to
assuage the sorrow felt for the loss of a loved one. Certainly, the award of
moral and exemplary damages in favor of the heirs of Lydia Umali are
proper in the instant case.
WHEREFORE, premises considered, petitioner DR. NINEVETCH CRUZ
is hereby ACQUITTED of the crime of reckless imprudence resulting in
homicide but is ordered to pay the heirs of the deceased Lydia Umali the
amount of FIFTY THOUSAND PESOS (P50,000.00) as civil liability, ONE
HUNDRED THOUSAND PESOS (P100,000.00) as moral damages, and FIFTY
THOUSAND PESOS (P50,000.00) as exemplary damages.
Let the copy of this decision be furnished to the Professional
Regulation Commission (PRC) for appropriate action.
SO ORDERED
FIRST DIVISION
[G.R. No. 124354. December 29, 1999]
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and
as natural guardians of the minors, ROMMEL RAMOS, ROY
RODERICK RAMOS and RON RAYMOND RAMOS, petitioners, vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO
HOSAKA and DRA. PERFECTA GUTIERREZ, respondents.
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

11

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

na inip na ako, ikuha mo ako ng ibang Doctor. So, she went out again and
told Rogelio about what the patient said (id., p. 15). Thereafter, she
returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was already dying [and] waiting for
the arrival of the doctor even as he did his best to find somebody who will
allow him to pull out his wife from the operating room (TSN, October 19,
1989, pp. 19-20). He also thought of the feeling of his wife, who was inside
the operating room waiting for the doctor to arrive (ibid.). At almost 12:00
noon, he met Dr. Garcia who remarked that he (Dr. Garcia) was also tired of
waiting for Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia at
around 12:10 P.M., he came to know that Dr. Hosaka arrived as a nurse
remarked, Nandiyan na si Dr. Hosaka, dumating na raw. Upon hearing
those words, he went down to the lobby and waited for the operation to be
completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating room
with the patient, heard somebody say that Dr. Hosaka is already here. She
then saw people inside the operating room moving, doing this and that,
[and] preparing the patient for the operation (TSN, January 13, 1988, p.
16). As she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez
intubating the hapless patient. She thereafter heard Dr. Gutierrez say, ang
hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan
(id., p. 17). Because of the remarks of Dra. Gutierrez, she focused her
attention on what Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless Erlinda even as
Dr. Hosaka approached her. She then heard Dr. Hosaka issue an order for
someone to call Dr. Calderon, another anesthesiologist (id., p. 19). After Dr.
Calderon arrived at the operating room, she saw this anesthesiologist
trying to intubate the patient. The patients nailbed became bluish and the
patient was placed in a trendelenburg position - a position where the head
of the patient is placed in a position lower than her feet which is an
indication that there is a decrease of blood supply to the patients brain (Id.,
pp. 19-20). Immediately thereafter, she went out of the operating room,
and she told Rogelio E. Ramos that something wrong was x x x happening
(Ibid.). Dr. Calderon was then able to intubate the patient (TSN, July 25,
1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a respiratory
machine being rushed towards the door of the operating room. He also saw
several doctors rushing towards the operating room. When informed by
Herminda Cruz that something wrong was happening, he told her
(Herminda) to be back with the patient inside the operating room (TSN,
October 19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the patient was still
in trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00
P.M. of that fateful day, she saw the patient taken to the Intensive Care
Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka.
The latter informed the former that something went wrong during the
intubation. Reacting to what was told to him, Rogelio reminded the doctor
that the condition of his wife would not have happened, had he (Dr.
Hosaka) looked for a good anesthesiologist (TSN, October 19, 1989, p. 31).

12

Doctors Gutierrez and Hosaka were also asked by the hospital to explain
what happened to the patient. The doctors explained that the patient had
bronchospasm (TSN, November 15, 1990, pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four months thereafter
or on November 15, 1985, the patient was released from the hospital.
During the whole period of her confinement, she incurred hospital bills
amounting to P93,542.25 which is the subject of a promissory note and
affidavit of undertaking executed by Rogelio E. Ramos in favor of DLSMC.
Since that fateful afternoon of June 17, 1985, she has been in a comatose
condition. She cannot do anything. She cannot move any part of her body.
She cannot see or hear. She is living on mechanical means. She suffered
brain damage as a result of the absence of oxygen in her brain for four to
five minutes (TSN, November 9, 1989, pp. 21-22). After being discharged
from the hospital, she has been staying in their residence, still needing
constant medical attention, with her husband Rogelio incurring a monthly
expense ranging from P8,000.00 to P10,000.00 (TSN, October 19, 1989,
pp. 32-34). She was also diagnosed to be suffering from diffuse cerebral
parenchymal damage (Exh. G; see also TSN, December 21, 1989, p. 6). [5]
Thus, on 8 January 1986, petitioners filed a civil case [6] for damages
with the Regional Trial Court of Quezon City against herein private
respondents alleging negligence in the management and care of Erlinda
Ramos.
During the trial, both parties presented evidence as to the possible
cause of Erlindas injury. Plaintiff presented the testimonies of Dean
Herminda Cruz and Dr. Mariano Gavino to prove that the damage sustained
by Erlinda was due to lack of oxygen in her brain caused by the faulty
management of her airway by private respondents during the anesthesia
phase. On the other hand, private respondents primarily relied on the
expert testimony of Dr. Eduardo Jamora, a pulmonologist, to the effect that
the cause of brain damage was Erlindas allergic reaction to the anesthetic
agent, Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional Trial
Court rendered judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set forth
earlier, and applying the aforecited provisions of law and jurisprudence to
the case at bar, this Court finds and so holds that defendants are liable to
plaintiffs for damages. The defendants were guilty of, at the very least,
negligence in the performance of their duty to plaintiff-patient Erlinda
Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to
exercise reasonable care in not only intubating the patient, but also in not
repeating the administration of atropine (TSN, August 20, 1991, pp. 5-10),
without due regard to the fact that the patient was inside the operating
room for almost three (3) hours. For after she committed a mistake in
intubating [the] patient, the patient's nailbed became bluish and the
patient, thereafter, was placed in trendelenburg position, because of the
decrease of blood supply to the patient's brain. The evidence further shows
that the hapless patient suffered brain damage because of the absence of
oxygen in her (patient's) brain for approximately four to five minutes
which, in turn, caused the patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the
acts of Dr. Perfecta Gutierrez whom he had chosen to administer
anesthesia on the patient as part of his obligation to provide the patient a
`good anesthesiologist', and for arriving for the scheduled operation
almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable for the
acts of negligence of the doctors in their `practice of medicine' in the
operating room. Moreover, the hospital is liable for failing through its
responsible officials, to cancel the scheduled operation after Dr. Hosaka
inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by defendants
that they have acted with due care and prudence in rendering medical
services to plaintiff-patient. For if the patient was properly intubated as
claimed by them, the patient would not have become comatose. And, the
fact that another anesthesiologist was called to try to intubate the patient
after her (the patient's) nailbed turned bluish, belie their claim.
Furthermore, the defendants should have rescheduled the operation to a
later date. This, they should have done, if defendants acted with due care
and prudence as the patient's case was an elective, not an emergency
case.
xxx
WHEREFORE, and in view of the foregoing, judgment is rendered in favor of
the plaintiffs and against the defendants. Accordingly, the latter are
ordered to pay, jointly and severally, the former the following sums of
money, to wit:
1) the sum of P8,000.00 as actual monthly expenses for the plaintiff Erlinda
Ramos reckoned from November 15, 1985 or in the total sum of
P632,000.00 as of April 15, 1992, subject to its being updated;
2) the sum of P100,000.00 as reasonable attorney's fees;
3) the sum of P800,000.00 by way of moral damages and the further sum
of P200,000.00 by way of exemplary damages; and,
4) the costs of the suit.
SO ORDERED. [7]
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

13

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:
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]
A copy of the above resolution was received by Atty. Sillano on 11
April 1996. The next day, or on 12 April 1996, Atty. Sillano filed before this
Court a motion for extension of time to file the present petition for
certiorari under Rule 45. The Court granted the motion for extension of
time and gave petitioners additional thirty (30) days after the expiration of
the fifteen-day (15) period counted from the receipt of the resolution of the
Court of Appeals within which to submit the petition. The due date fell on
27 May 1996. The petition was filed on 9 May 1996, well within the
extended period given by the Court.
Petitioners assail the decision of the Court of Appeals on the
following grounds:
I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS DRA.
GUTIERREZ, DRA. CALDERON AND DR. JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT CAUSE
THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER ERLINDA
RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. [11]
Before we discuss the merits of the case, we shall first dispose of the
procedural issue on the timeliness of the petition in relation to the motion

for reconsideration filed by petitioners with the Court of Appeals. In their

Comment, [12] private respondents contend that the petition should not be
given due course since the motion for reconsideration of the petitioners on
the decision of the Court of Appeals was validly dismissed by the appellate
court for having been filed beyond the reglementary period. We do not
agree.
A careful review of the records reveals that the reason behind the
delay in filing the motion for reconsideration is attributable to the fact that
the decision of the Court of Appeals was not sent to then counsel on record
of petitioners, the Coronel Law Office. In fact, a copy of the decision of the
appellate court was instead sent to and received by petitioner Rogelio
Ramos on 9 June 1995 wherein he was mistakenly addressed as Atty.
Rogelio Ramos. Based on the other communications received by petitioner
Rogelio Ramos, the appellate court apparently mistook him for the counsel
on record. Thus, no copy of the decision of the 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

14

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 loquitur in medical negligence cases presents a question of law
since it is a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given inference. [26]
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

15

loquitur can have no application in a suit against a physician or surgeon

which involves the merits of a diagnosis or of a scientific treatment. [38] The
physician or surgeon is not required at his peril to explain why any
particular diagnosis was not correct, or why any particular scientific
treatment did not produce the desired result. [39] Thus, res ipsa loquitur is
not available in a malpractice suit if the only showing is that the desired
result of an operation or treatment was not accomplished. [40] The real
question, therefore, is whether or not in the process of the operation any
extraordinary incident or unusual event outside of the routine performance
occurred which is beyond the regular scope of customary professional
activity in such operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent cause or causes of
the untoward consequence. [41] If there was such extraneous interventions,
the doctrine of res ipsa loquitur may be utilized and the defendant is called
upon to explain the matter, by evidence of exculpation, if he could. [42]
We find the doctrine of res ipsa loquitur appropriate in the case at
bar. As will hereinafter be explained, the damage sustained by 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 for
cholecystectomy and expected a routine general surgery to be performed
on her gall bladder. On that fateful day she delivered her person over to
the care, custody and control of private respondents who exercised
complete and exclusive control over her. At the time of submission, Erlinda

was neurologically sound and, except for a few minor discomforts, was
likewise physically fit in mind and body. However, during the administration
of anesthesia and prior to the performance of cholecystectomy she
suffered irreparable damage to her brain. Thus, without undergoing
surgery, she went out of the operating room already decerebrate and
totally incapacitated. Obviously, brain damage, which Erlinda sustained, is
an injury which does not normally occur in the process of a gall bladder
operation. In fact, this kind of situation does not happen in the absence of
negligence of someone in the administration of anesthesia and in the use
of endotracheal tube. Normally, a person being put under anesthesia is not
rendered decerebrate as a consequence of administering such anesthesia
if the proper procedure was followed. Furthermore, the instruments used in
the administration of anesthesia, including the endotracheal tube, were all
under the exclusive control of private respondents, who are the physiciansin-charge. Likewise, petitioner Erlinda could not have been guilty of
contributory negligence because she was under the influence of
anesthetics which rendered her unconscious.
Considering that a sound and unaffected member of the body (the
brain) is injured or destroyed while the patient is unconscious and under
the immediate and exclusive control of the physicians, we hold that a
practical administration of justice dictates the application of res ipsa
loquitur. Upon these facts and under these circumstances the Court would
be able to say, as a matter of common knowledge and observation, if
negligence attended the management and care of the patient. Moreover,
the liability of the physicians and the hospital in this case is not predicated
upon an alleged failure to secure the desired results of an operation nor on
an alleged lack of skill in the diagnosis or treatment as in fact no operation
or treatment was ever performed on Erlinda. Thus, upon all these initial
determination a case is made out for the application of the doctrine of res
ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the
present case we are not saying that the doctrine is applicable in any and
all cases where injury occurs to a patient while under anesthesia, or to any
and all anesthesia cases. Each case must be viewed in its own light and
scrutinized in order to be within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur doctrine and
the presumption of negligence allowed therein, the Court now comes to the
issue of whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda during the anesthesia
phase of the operation and, if in the affirmative, whether the alleged
negligence was the proximate cause of Erlindas comatose condition.
Corollary thereto, we shall also determine if the Court of Appeals erred in
relying on the testimonies of the witnesses for the private respondents.
In sustaining the position of private respondents, the Court of
Appeals relied on the testimonies of Dra. Gutierrez, Dra. Calderon and Dr.
Jamora. In giving weight to the testimony of Dra. Gutierrez, the Court of
Appeals rationalized that she was candid enough 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

16

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 maintubate 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

17

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 FEUNRMF; 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 clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over this
omission by playing around with the trial court's ignorance of clinical
procedure, hoping that she could get away with it. Respondent Dra.
Gutierrez tried to muddle the difference between an elective surgery and
an emergency surgery just so her failure to perform the required preoperative evaluation would escape unnoticed. In her testimony she
asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to see the
patient a day before so you can introduce yourself to establish good
doctor-patient relationship and gain the trust and confidence of the
patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the operative
procedure of the anesthesiologist and in my case, with elective cases and
normal cardio-pulmonary clearance like that, I usually don't do it except on
emergency and on cases that have an abnormalities (sic). [58]
However, the exact opposite is true. In an emergency procedure,
there is hardly enough time available for the fastidious demands of preoperative 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

18

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 preoperative assessment is conducted at least one day before the intended
surgery, when the patient is relaxed and cooperative.
Erlindas case was elective and this was known to respondent Dra.
Gutierrez. Thus, she had all the time to make a thorough evaluation of
Erlindas case prior to the operation and prepare her for anesthesia.
However, she never saw the patient at the bedside. She herself admitted
that she had seen petitioner only in the operating room, and only on the
actual date of the cholecystectomy. She negligently failed to take
advantage of this important opportunity. As such, her attempt to exculpate
herself must fail.
Having established that respondent Dra. Gutierrez failed to perform
pre-operative evaluation of the patient which, in turn, resulted to a
wrongful intubation, we now determine if the faulty intubation is truly the
proximate cause of Erlindas comatose condition.
Private respondents repeatedly hammered the view that the cerebral
anoxia which 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 short-acting barbiturate. We find the
theory of private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in the field
of anesthesiology simply because he is not an anesthesiologist. Since Dr.
Jamora is a pulmonologist, he could not have been capable of properly
enlightening the court about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist and could not
therefore properly advance expert opinion on allergic-mediated processes.
Moreover, he is not a pharmacologist and, as such, could not have been
capable, as an expert would, of explaining to the court the pharmacologic
and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).
The inappropriateness and absurdity of accepting Dr. Jamoras
testimony as an expert witness in the anesthetic practice of Pentothal
administration is further supported by his own admission that he
formulated his opinions on the drug not from the practical experience
gained by a specialist or expert in the administration and use of Sodium
Pentothal on patients, but only from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have any occasion to
use pentothal as a method of management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when they have to
intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based only on what

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

19

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 maintubate 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, ninetyeight 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 pre-operative evaluation, respondent
physician could have been much more prepared to meet the contingency
brought about by the perceived anatomic variations in the patients neck
and oral area, defects which would have been easily overcome by a prior
knowledge of those variations together with a change in technique. [71] In
other words, an experienced anesthesiologist, adequately alerted by a
thorough pre-operative evaluation, would have had little difficulty going
around the short neck and protruding teeth. [72] Having failed to observe
common medical standards in pre-operative management and intubation,
respondent Dra. Gutierrez negligence resulted in cerebral anoxia and
eventual coma of Erlinda.
We now determine the responsibility of respondent Dr. Orlino Hosaka
as the head of the surgical team. As the so-called captain of the ship, [73] it
is the surgeons responsibility to see to it that those under him perform
their task in the proper manner. Respondent Dr. Hosakas negligence can be
found in his failure to exercise the proper authority (as the captain of the
operative team) in not determining if his anesthesiologist observed proper
anesthesia protocols. In fact, no evidence on record exists to show that
respondent Dr. Hosaka verified if respondent Dra. Gutierrez properly
intubated the patient. Furthermore, it does not escape us that respondent
Dr. Hosaka had scheduled another procedure in a different hospital at the
same time as Erlindas cholecystectomy, and was in fact over three hours
late for the latters operation. Because of this, he had little or no time to
confer with his anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties towards his patient.
Thus, he shares equal responsibility for the events which resulted in
Erlindas condition.
We now discuss the responsibility of the hospital in this particular
incident. The unique practice (among private hospitals) of filling up
specialist staff with attending and 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.

20

After a physician is accepted, either as a visiting or attending

consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and perform other tasks and
responsibilities, for the privilege of being able to maintain a clinic in the
hospital, and/or for the privilege of admitting patients into the hospital. In
addition to these, the physicians performance as a specialist is generally
evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and
residents. A consultant remiss in his duties, or a consultant who regularly
falls short of the minimum standards acceptable to the hospital or its peer
review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control
over their attending and visiting consultant staff. While consultants are not,
technically employees, a point which respondent hospital asserts in
denying all responsibility for the patients condition, the control exercised,
the hiring, and the right to terminate consultants all fulfill the important
hallmarks of an employer-employee relationship, with the exception of the
payment of wages. In assessing whether such a relationship in fact exists,
the control test is determining. Accordingly, on the basis of the foregoing,
we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This being
the case, the question now arises as to whether or not respondent 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

21

awarded on top of actual or compensatory damages in instances where the

injury is chronic and continuing. And because of the unique nature of such
cases, no incompatibility arises when both actual and temperate damages
are provided for. The reason is that these damages cover two distinct
phases.
As it would not be equitable - and certainly not in the best interests
of the administration of justice - for the victim in such cases to constantly
come before the courts and invoke their aid in seeking adjustments to the
compensatory damages previously awarded - temperate damages are
appropriate. The amount given as temperate damages, though to a certain
extent speculative, should take into account the cost of proper care.
In the instant case, petitioners were able to provide only homebased nursing care for a comatose patient who has remained in that
condition for over a decade. Having premised our award for compensatory
damages on the amount provided by petitioners at the onset of litigation, it
would be now much more in step with the interests of justice if the value
awarded for temperate damages would allow petitioners to provide optimal
care for their loved one in a facility which generally specializes in such
care. They should not be compelled by dire circumstances to provide
substandard care at home without the aid of professionals, for anything
less would be grossly inadequate. Under the circumstances, an award of
P1,500,000.00 in temperate damages would therefore be reasonable. [81]
In Valenzuela vs. Court of Appeals, [82] this Court was confronted with
a situation where the injury suffered by the plaintiff would have led to
expenses which were difficult to estimate because while they would have
been a direct result of the injury (amputation), and were certain to be
incurred by the plaintiff, they were likely to arise only in the future. We
awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic
amputation of her left lower extremity at the distal left thigh just above the
knee. Because of this, Valenzuela will forever be deprived of the full
ambulatory functions of her left extremity, even with the use of state of the
art prosthetic technology. Well beyond the period of hospitalization (which
was paid for by Li), she will be required to undergo adjustments in her
prosthetic devise due to the shrinkage of the stump from the process of
healing.
These adjustments entail costs, prosthetic replacements and months of
physical and occupational rehabilitation and therapy. During 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 the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the incident
occurred. She has been in a comatose state for over fourteen years now.
The burden of care has so far been heroically shouldered by her husband
and children, who, in the intervening years have been deprived of the love
of a wife and a mother.
Meanwhile, the actual physical, emotional and financial cost of the
care of petitioner would be virtually impossible to quantify. Even the
temperate damages herein awarded would be inadequate if petitioners
condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of the victims actual
injury would not even scratch the surface of the resulting moral damage
because it would be highly speculative to estimate the amount of
emotional and moral pain, psychological damage 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

22

averted by observance of the procedure and a nexus is made between the

deviation and the injury or damage, the physician would necessarily be
called to account for it. In the case at bar, the failure to observe preoperative assessment protocol which would have influenced the intubation
in a salutary way was fatal to private respondents case.
WHEREFORE, the decision and resolution of the appellate court appealed
from are hereby modified so as to award in favor of petitioners, and
solidarily against private respondents the following: 1) P1,352,000.00 as
actual damages computed as of the date of promulgation of this decision
plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda
Ramos expires or miraculously survives; 2) P2,000,000.00 as moral
damages, 3) P1,500,000.00 as temperate damages; 4) P100,000.00 each
as exemplary damages and attorneys fees; and, 5) the costs of the suit.
SO ORDERED.
SECOND DIVISION
[G.R. No. 130547. October 3, 2000]
LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, and minors LLOYD
and KRISTINE, all surnamed REYES, represented by their mother,
LEAH ALESNA REYES, petitioners, vs. SISTERS OF MERCY
HOSPITAL, SISTER ROSE PALACIO, DR. MARVIE BLANES, and DR.
MARLYN RICO, respondents.
DECISION
MENDOZA, J.:
This is a petition for review of the decision [1] of the Court of Appeals
in CA-G.R. CV No. 36551 affirming the decision of the Regional Trial Court,
Branch IX, Cebu City which dismissed a complaint for damages filed by
petitioners against respondents.
The facts are as follows:
Petitioner Leah Alesna Reyes is the wife of the late Jorge Reyes. The
other petitioners, namely, Rose Nahdja, Johnny, Lloyd, and Kristine, all
surnamed Reyes, were their children. Five days before his death on January
8, 1987, Jorge had been suffering from a recurring fever with chills. After he
failed to get relief from some home medication he was taking, which
consisted of analgesic, antipyretic, and antibiotics, he decided to see the
doctor.
On January 8, 1987, he was taken to the Mercy Community Clinic by
his wife. He was attended to by respondent Dr. Marlyn Rico, resident
physician and admitting physician on duty, who gave Jorge a physical
examination and took his medical history. She noted that at the time of his
admission, Jorge was conscious, ambulatory, oriented, coherent, and with
respiratory distress. [2] Typhoid fever was then prevalent in the locality, as
the clinic had been getting from 15 to 20 cases of typhoid per month. [3]
Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered
a Widal Test, a standard test for typhoid fever, to be performed on Jorge.
Blood count, routine urinalysis, stool examination, and malarial smear were
also made. [4] After about an hour, the medical technician submitted the
results of the test from which Dr. Rico concluded that Jorge was positive for
typhoid fever. As her shift was only up to 5:00 p.m., Dr. Rico indorsed Jorge

to respondent Dr. Marvie Blanes.

Dr. Marvie Blanes attended to Jorge at around six in the evening. She
also took Jorges history and gave him a physical examination. Like Dr. Rico,
her impression was that Jorge had typhoid fever. Antibiotics being the
accepted treatment for typhoid fever, she ordered that a compatibility test
with the antibiotic chloromycetin be done on Jorge. Said test was
administered by nurse Josephine Pagente who also gave the patient a dose
of triglobe. As she did not observe any adverse reaction by the patient to
chloromycetin, Dr. Blanes ordered the first five hundred milligrams of said
antibiotic to be administered on Jorge at around 9:00 p.m. A second dose
was administered on Jorge about three hours later just before midnight.
At around 1:00 a.m. of January 9, 1987, Dr. Blanes was called as
Jorges temperature rose to 41C. The patient also experienced chills and
exhibited respiratory distress, nausea, vomiting, and convulsions. Dr.
Blanes put him under oxygen, used a suction machine, and administered
hydrocortisone, temporarily easing the patients convulsions. When he
regained consciousness, the patient was asked by Dr. Blanes whether he
had a previous heart ailment or had suffered from chest pains in the past.
Jorge replied he did not. [5] After about 15 minutes, however, Jorge again
started to vomit, showed restlessness, and his convulsions returned. Dr.
Blanes re-applied the emergency measures taken before and, in addition,
valium was administered. Jorge, however, did not respond to the treatment
and slipped into cyanosis, a bluish or purplish discoloration of the skin or
mucous membrane due to deficient oxygenation of the blood. At around
2:00 a.m., Jorge died. He was forty years old. The cause of his death was
Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever.
On June 3, 1987, petitioners filed before the Regional Trial Court of
Cebu City a complaint [6] for damages against respondents Sisters of Mercy,
Sister Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and nurse Josephine
Pagente. On September 24, 1987, petitioners amended their complaint to
implead respondent Mercy Community Clinic as additional defendant and
to drop the name of Josephine Pagente as defendant since she was no
longer connected with respondent hospital. Their principal contention was
that Jorge did not die of typhoid fever. [7] Instead, his death was due to the
wrongful administration of chloromycetin. They contended that had
respondent doctors exercised due care and diligence, they would not have
recommended and rushed the performance of 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. They charged respondent clinic and its
directress, Sister Rose Palacio, with negligence in failing to provide
adequate facilities and in hiring negligent doctors and nurses. [8]
Respondents denied the charges. During the pre-trial conference,
the parties agreed to limit the issues on the following: (1) whether the
death of Jorge Reyes was due to or caused by the negligence,
carelessness, imprudence, and lack of skill or foresight on the part of
defendants; (2) whether respondent Mercy Community Clinic was negligent
in the hiring of its employees; and (3) whether either party was entitled to
damages. The case was then heard by the trial court during which, in
addition to the testimonies of the parties, the testimonies of doctors as

23

expert witnesses were presented.

Petitioners offered the testimony of Dr. Apolinar Vacalares, Chief
Pathologist at the Northern Mindanao Training Hospital, Cagayan de Oro
City. On January 9, 1987, Dr. Vacalares performed an autopsy on Jorge
Reyes to determine the cause of his death. However, he did not open the
skull to examine the brain. His findings [9] showed that the gastro-intestinal
tract was normal and without any ulceration or enlargement of the
nodules. Dr. Vacalares testified that Jorge did not die of typhoid fever. He
also stated that he had not seen a patient die of typhoid fever within five
days from the onset of the disease.
For their part, respondents offered the testimonies of Dr. Peter
Gotiong and Dr. Ibarra Panopio. Dr. Gotiong is a diplomate in internal
medicine whose expertise is microbiology and infectious diseases. He is
also a consultant at the Cebu City Medical Center and an associate
professor of medicine at the South Western University College of Medicine
in Cebu City. He had treated over a thousand cases of typhoid patients.
According to Dr. Gotiong, the patients history and positive Widal Test
results ratio of 1:320 would make him suspect that the patient had typhoid
fever. As to Dr. Vacalares observation regarding the absence of ulceration
in Jorges gastro-intestinal tract, Dr. Gotiong said that such hyperplasia in
the intestines of a typhoid victim may be microscopic. He noted that since
the toxic effect of typhoid fever may lead to meningitis, Dr. Vacalares
autopsy should have included an examination of the brain. [10]
The other doctor presented was Dr. Ibarra Panopio, a member of the
American Board of Pathology, examiner of the Philippine Board of
Pathology from 1978 to 1991, fellow of the Philippine Society of
Pathologist, associate professor of the Cebu Institute of Medicine, and chief
pathologist of the Andres Soriano Jr. Memorial Hospital in Toledo City. Dr.
Panopio stated that although he was partial to the use of the culture test
for its greater reliability in the diagnosis of typhoid fever, the Widal Test
may also be used. Like Dr. Gotiong, he agreed that the 1:320 ratio in Jorges
case was already the maximum by which a conclusion of typhoid fever
may be made. No additional information may be deduced from a higher
dilution. [11] He said that Dr. Vacalares autopsy on Jorge was incomplete and
thus inconclusive.
On September 12, 1991, the trial court rendered its decision
absolving respondents from the charges of negligence and dismissing
petitioners action for damages. The trial court likewise dismissed
respondents counterclaim, holding that, in seeking damages from
respondents, petitioners were impelled by the honest belief that Jorges
death was due to the latters negligence.
Petitioners brought the matter to the Court of Appeals. On July 31,
1997, the Court of Appeals affirmed the decision of the trial court.
Hence this petition.
Petitioners raise the following assignment of errors:
I. THE HONORABLE COURT OF APPEALS COMMITTED A REVERSIBLE ERROR
WHEN IT RULED THAT THE DOCTRINE OF RES IPSA LOQUITUR IS NOT
APPLICABLE IN THE INSTANT CASE.
II. THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR
WHEN IT MADE AN UNFOUNDED ASSUMPTION THAT THE LEVEL OF

MEDICAL PRACTICE IS LOWER IN ILIGAN CITY.

III. THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED
FOR A LESSER STANDARD OF CARE AND DEGREE OF DILIGENCE FOR
MEDICAL PRACTICE IN ILIGAN CITY WHEN IT APPRECIATE[D] NO DOCTORS
NEGLIGENCE IN THE TREATMENT OF JORGE REYES.
Petitioners action is for medical malpractice. This is a particular form
of negligence which consists in the failure of a physician or surgeon to
apply to his practice of medicine that degree of care and skill which is
ordinarily employed by the profession generally, under similar conditions,
and in like surrounding circumstances. [12] In order to successfully pursue
such a claim, a patient must prove that the physician or surgeon either
failed to do something which a reasonably prudent physician or surgeon
would have done, or that he or she did something that a reasonably
prudent physician or surgeon would not have done, and that the failure or
action caused injury to the patient. [13] There are thus four elements
involved in medical negligence cases, namely: duty, breach, injury, and
proximate causation.
In the present case, there is no doubt that a physician-patient
relationship existed between respondent doctors and Jorge Reyes.
Respondents were thus duty-bound to use at least the same level of care
that any reasonably competent doctor would use to treat a condition under
the same circumstances. It is breach of this duty which constitutes
actionable malpractice. [14] As to this aspect of medical malpractice, the
determination of the reasonable level of care and the breach thereof,
expert testimony is essential. Inasmuch as the causes of the injuries
involved in malpractice actions are determinable only in the light of
scientific knowledge, it has been recognized that expert testimony is
usually necessary to support the conclusion as to causation. [15]
Res Ipsa Loquitur

There is a case when expert testimony may be dispensed with, and

that is under the doctrine of res ipsa loquitur. As held in Ramos v. Court of
Appeals: [16]
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 loquitor is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the proof of
negligence. The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the domain of
medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone familiar with
the facts. Ordinarily, only physicians and surgeons of skill and experience
are competent to testify as to whether a patient has been treated or
operated upon with a reasonable degree of skill and care. However,
testimony as to the statements and acts of physicians and surgeons,
external appearances, and manifest conditions which are observable by
any one may be given by non-expert witnesses. Hence, in cases where the
res ipsa loquitur is applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient, without the aid of
expert testimony, where the court from its fund of common knowledge can

24

determine the proper standard of care. Where common knowledge and

experience teach that a resulting injury would not have occurred to the
patient if due care had been exercised, an inference of negligence may be
drawn giving rise to an application of the doctrine of res ipsa loquitur
without medical evidence, which is ordinarily required to show not only
what occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained while
under the custody and management of the defendant without need to
produce expert medical testimony to establish the standard of care. Resort
to res ipsa loquitor 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, injuries sustained on a healthy part of the body which was not
under, or in the area, of treatment, removal of the wrong part of the body
when another part was intended, knocking out a tooth while a patients jaw
was under anesthetic for the removal of his tonsils, and loss of an eye
while the patient was under the influence of anesthetic, during or following
an operation for appendicitis, among others. [17]
Petitioners asserted in the Court of Appeals that the doctrine of res
ipsa loquitur applies to the present case because Jorge Reyes was merely
experiencing fever and chills for five days and was fully conscious,
coherent, and ambulant when he went to the hospital. Yet, he died after
only ten hours from the time of his admission.
This contention was rejected by the appellate court.
Petitioners now contend that all requisites for the application of res
ipsa loquitur were present, namely: (1) the accident was of a kind which
does not ordinarily occur unless someone is negligent; (2) the
instrumentality or agency which caused the injury was under the exclusive
control of the person in charge; and (3) the injury suffered must not have
been due to any voluntary action or contribution of the person injured. [18]
The contention is without merit. We agree with the ruling of the
Court of Appeals. In the Ramos case, the question was whether a surgeon,
an anesthesiologist, and a hospital should be made liable for the comatose
condition of a patient scheduled for cholecystectomy. [19] In that case, the
patient was given anesthesia prior to her operation. Noting that the patient
was neurologically sound at the time of her operation, the Court applied
the doctrine of res ipsa loquitur as mental brain damage does not normally
occur in a gallblader operation in the absence of negligence of the
anesthesiologist. Taking judicial notice that anesthesia procedures had
become so common that even an ordinary person could tell if it was
administered properly, we allowed the testimony of a witness who was not
an expert. In this case, while it is true that the patient died just a few hours
after professional medical assistance was rendered, there is really nothing
unusual or extraordinary about his death. Prior to his admission, the
patient already had recurring fevers and chills for five days unrelieved by
the analgesic, antipyretic, and antibiotics given him by his wife. This shows
that he had been suffering from a serious illness and professional medical

help came too late for him.

Respondents alleged failure to observe due care was not
immediately apparent to a layman so as to justify application of res ipsa
loquitur. The question required expert opinion on the alleged breach by
respondents of the standard of care required by the circumstances.
Furthermore, on the issue of the correctness of her diagnosis, no
presumption of negligence can be applied to Dr. Marlyn Rico. As held in
Ramos:
. . . . Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily
used but a rule to be cautiously applied, depending upon the
circumstances of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a matter of common
knowledge and observation, that the consequences of professional care
were not as such as would ordinarily have followed if due care had been
exercised. A distinction must be made between the failure to secure
results, and the occurrence of something more unusual and not ordinarily
found if the service or treatment rendered followed the usual procedure of
those skilled in that particular practice. It must be conceded that the
doctrine of res ipsa loquitur can have no application in a suit against a
physician or a surgeon which involves the merits of a diagnosis or of a
scientific treatment. The physician or surgeon is not required at his peril to
explain why any particular diagnosis was not correct, or why any particular
scientific treatment did not produce the desired result. [20]
Specific Acts of Negligence

We turn to the question whether petitioners have established

specific acts of negligence allegedly committed by respondent doctors.
Petitioners contend that: (1) Dr. Marlyn Rico hastily and erroneously
relied upon the Widal test, diagnosed Jorges illness as typhoid fever, and
immediately prescribed the administration of the antibiotic chloromycetin;
[21]
and (2) Dr. Marvie Blanes erred in ordering the administration of the
second dose of 500 milligrams of chloromycetin barely three hours after
the first was given. [22] Petitioners presented the testimony of Dr. Apolinar
Vacalares, Chief Pathologist of the Northern Mindanao Training Hospital,
Cagayan de Oro City, who performed an autopsy on the body of Jorge
Reyes. Dr. Vacalares testified that, based on his findings during the
autopsy, Jorge Reyes did not die of typhoid fever but of shock
undetermined, which could be due to allergic reaction or chloromycetin
overdose. We are not persuaded.
First. While petitioners presented Dr. Apolinar Vacalares as an expert
witness, we do not find him to be so as he is not a specialist on infectious
diseases like typhoid fever. Furthermore, although he may have had
extensive experience in performing autopsies, he admitted that he had yet
to do one on the body of a typhoid victim at the time he conducted the
postmortem on Jorge Reyes. It is also plain from his testimony that he has
treated only about three cases of typhoid fever. Thus, he testified that: [23]
ATTY. PASCUAL:
Q Why? Have you not testified earlier that you have never seen a patient
who died of typhoid fever?
A In autopsy. But, that was when I was a resident physician yet.
Q But you have not performed an autopsy of a patient who died of typhoid

25

fever?
A I have not seen one.
Q And you testified that you have never seen a patient who died of typhoid
fever within five days?
A I have not seen one.
Q How many typhoid fever cases had you seen while you were in the
general practice of medicine?
A In our case we had no widal test that time so we cannot consider that the
typhoid fever is like this and like that. And the widal test does not specify
the time of the typhoid fever.
Q The question is: how many typhoid fever cases had you seen in your
general practice regardless of the cases now you practice?
A I had only seen three cases.
Q And that was way back in 1964?
A Way back after my training in UP.
Q Clinically?
A Way back before my training.
He is thus not qualified to prove that Dr. Marlyn Rico erred in her diagnosis.
Both lower courts were therefore correct in discarding his testimony, which
is really inadmissible.
In Ramos, the defendants presented the testimony of a
pulmonologist to prove that brain injury was due to oxygen deprivation
after the patient had bronchospasms [24] triggered by her allergic response
to a drug, [25] and not due to faulty intubation by the anesthesiologist. As
the issue was whether the intubation was properly performed by an
anesthesiologist, we rejected the opinion of the pulmonologist on the
ground that he was not: (1) an anesthesiologist who could enlighten the
court about anesthesia practice, procedure, and their complications; nor
(2) an allergologist who could properly advance expert opinion on allergic
mediated processes; nor (3) a pharmacologist who could explain the
pharmacologic and toxic effects of the drug allegedly responsible for the
bronchospasms.
Second. On the other hand, the two doctors presented by respondents
clearly were experts on the subject. They vouched for the correctness of
Dr. Marlyn Ricos diagnosis. Dr. Peter Gotiong, a diplomate whose
specialization is infectious diseases and microbiology and an associate
professor at the Southwestern University College of Medicine and the
Gullas College of Medicine, testified that he has already treated over a
thousand cases of typhoid fever. [26] According to him, when a case of
typhoid fever is suspected, the Widal test is normally used, [27] and if the
1:320 results of the Widal test on Jorge Reyes had been presented to him
along with the patients history, his impression would also be that the
patient was suffering from typhoid fever. [28] As to the treatment of the
disease, he stated that chloromycetin was the drug of choice. [29] He also
explained that despite the measures taken by respondent doctors and the
intravenous administration of two doses of chloromycetin, complications of
the disease could not be discounted. His testimony is as follows: [30]
ATTY. PASCUAL:
Q If with that count with the test of positive for 1 is to 320, what treatment
if any would be given?

A If those are the findings that would be presented to me, the first thing I
would consider would be typhoid fever.
Q And presently what are the treatments commonly used?
A Drug of choice of chloramphenical.
Q Doctor, if given the same patient and after you have administered
chloramphenical about 3 1/2 hours later, the patient associated with chills,
temperature - 41oC, what could possibly come to your mind?
A Well, when it is change in the clinical finding, you have to think of
complication.
Q And what will you consider on the complication of typhoid?
A One must first understand that typhoid fever is toximia. The problem is
complications are caused by toxins produced by the bacteria . . . whether
you have suffered complications to think of -- heart toxic myocardities;
then you can consider a toxic meningitis and other complications and
perforations and bleeding in the ilium.
Q Even that 40-year old married patient who received medication of
chloromycetin of 500 milligrams intravenous, after the skin test, and
received a second dose of chloromycetin of 500 miligrams, 3 hours later,
the patient developed chills . . . rise in temperature to 41oC, and then
about 40 minutes later the temperature rose to 100 oF, cardiac rate of 150
per minute who appeared to be coherent, restless, nauseating, with
seizures: what significance could you attach to these clinical changes?
A I would then think of toxemia, which was toxic meningitis and probably a
toxic meningitis because of the high cardiac rate.
Q Even if the same patient who, after having given intramuscular valium,
became conscious and coherent about 20 minutes later, have seizure and
cyanosis and rolling of eyeballs and vomitting . . . and death: what
significance would you attach to this development?
A We are probably dealing with typhoid to meningitis.
Q In such case, Doctor, what finding if any could you expect on the postmortem examination?
A No, the finding would be more on the meninges or covering of the brain.
Q And in order to see those changes would it require opening the skull?
A Yes.
As regards Dr. Vacalares finding during the autopsy that the deceaseds
gastro-intestinal tract was normal, Dr. Rico explained that, while
hyperplasia [31] in the payers patches or layers of the small intestines is
present in typhoid fever, the same may not always be grossly visible and a
microscope was needed to see the texture of the cells. [32]
Respondents also presented the testimony of Dr. Ibarra T. Panopio
who is a member of the Philippine and American Board of Pathology, an
examiner of the Philippine Board of Pathology, and chief pathologist at the
MetroCebu Community Hospital, Perpetual Succor Hospital, and the Andres
Soriano Jr. Memorial Medical Center. He stated that, as a clinical
pathologist, he recognized that the Widal test is used for typhoid patients,
although he did not encourage its use because a single test would only
give a presumption necessitating that the test be repeated, becoming
more conclusive at the second and third weeks of the disease. [33] He
corroborated Dr. Gotiongs testimony that the danger with typhoid fever is
really the possible complications which could develop like perforation,

26

hemorrhage, as well as liver and cerebral complications. [34] As regards the

1:320 results of the Widal test on Jorge Reyes, Dr. Panopio stated that no
additional information could be obtained from a higher ratio. [35] He also
agreed with Dr. Gotiong that hyperplasia in the payers patches may be
microscopic. [36]
Indeed, the standard contemplated is not what is actually the
average merit among all known practitioners from the best to the worst
and from the most to the least experienced, but the reasonable average
merit among the ordinarily good physicians. [37] Here, Dr. Marlyn Rico did
not depart from the reasonable standard recommended by the experts as
she in fact observed the due care required under the circumstances.
Though the Widal test is not conclusive, it remains a standard diagnostic
test for typhoid fever and, in the present case, greater accuracy through
repeated testing was rendered unobtainable by the early death of the
patient. The results of the Widal test and the patients history of fever with
chills for five days, taken with the fact that typhoid fever was then
prevalent as indicated by the fact that the clinic had been getting about 15
to 20 typhoid cases a month, were sufficient to give upon any doctor of
reasonable skill the impression that Jorge Reyes had typhoid fever.
Dr. Rico was also justified in recommending the administration of the
drug chloromycetin, the drug of choice for typhoid fever. The burden of
proving that Jorge Reyes was suffering from any other illness rested with
the petitioners. As they failed to present expert opinion on this,
preponderant evidence to support their contention is clearly absent.
Third. Petitioners contend that respondent Dr. Marvie Blanes, who took
over from Dr. Rico, was negligent in ordering the intravenous
administration of two doses of 500 milligrams of chloromycetin at an
interval of less than three hours. Petitioners claim that Jorge Reyes died of
anaphylactic shock [38] or possibly from overdose as the second dose
should have been administered five to six hours after the first, per
instruction of Dr. Marlyn Rico. As held by the Court of Appeals, however:
That chloromycetin was likewise a proper prescription is best established
by medical authority. Wilson, et. al., in Harrisons Principle of Internal
Medicine, 12th ed. write that chlorampenicol (which is the generic of
chloromycetin) is the drug of choice for typhoid fever and that no drug has
yet proven better in promoting a favorable clinical response.
Chlorampenicol (Chloromycetin) is specifically indicated for bacterial
meningitis, typhoid fever, rickettsial infections, bacteriodes infections, etc.
(PIMS Annual, 1994, p. 211) The dosage likewise including the first
administration of five hundred milligrams (500 mg.) at around nine oclock
in the evening and the second dose at around 11:30 the same night was
still within medically acceptable limits, since the recommended dose of
chloromycetin is one (1) gram every six (6) hours. (cf. Pediatric Drug
Handbook, 1st Ed., Philippine Pediatric Society, Committee on Therapeutics
and Toxicology, 1996). The intravenous route is likewise correct. (Mansser,
ONick, Pharmacology and Therapeutics) Even if the test was not
administered by the physician-on-duty, the evidence introduced that it was
Dra. Blanes who interpreted the results remain uncontroverted. (Decision,
pp. 16-17) Once more, this Court rejects any claim of professional
negligence in this regard.

....
As regards anaphylactic shock, the usual way of guarding against it prior to
the administration of a drug, is the skin test of which, however, it has been
observed: Skin testing with haptenic drugs is generally not reliable. Certain
drugs cause nonspecific histamine release, producing a weal-and-flare
reaction in normal individuals. Immunologic activation of mast cells
requires a polyvalent allergen, so a negative skin test to a univalent
haptenic drug does not rule out anaphylactic sensitivity to that drug. (Terr,
Anaphylaxis and Urticaria in Basic and Clinical Immunology, p. 349) What
all this means legally is that even if the deceased suffered from an
anaphylactic shock, this, of itself, would not yet establish the negligence of
the appellee-physicians for all that the law requires of them is that they
perform the standard tests and perform standard procedures. The law
cannot require them to predict every possible reaction to all drugs
administered. The onus probandi was on the appellants to establish, before
the trial court, that the appellee-physicians ignored standard medical
procedure, prescribed and administered medication with recklessness and
exhibited an absence of the competence and skills expected of general
practitioners similarly situated. [39]
Fourth. Petitioners correctly observe that the medical profession is one
which, like the business of a common carrier, is affected with public
interest. Moreover, they assert that since the law imposes upon common
carriers the duty of observing extraordinary diligence in the vigilance over
the goods and for the safety of the passengers, [40] physicians and
surgeons should have the same duty toward their patients. [41] They also
contend that the Court of Appeals erred when it allegedly assumed that the
level of medical practice is lower in Iligan City, thereby reducing the
standard of care and degree of diligence required from physicians and
surgeons in Iligan City.
The standard of extraordinary diligence is peculiar to common
carriers. The Civil Code provides:
Art. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence in
the vigilance over the goods and for the safety of the passengers
transported by them, according to the circumstances of each case. . . .
The practice of medicine is a profession engaged in only by qualified
individuals. It is a right earned through years of education, training, and by
first obtaining a license from the state through professional board
examinations. Such license may, at any time and for cause, be revoked by
the government. In addition to state regulation, the conduct of doctors is
also strictly governed by the Hippocratic Oath, an ancient code of
discipline and ethical rules which doctors have imposed upon themselves
in recognition and acceptance of their great responsibility to society. Given
these safeguards, there is no need to expressly require of doctors the
observance of extraordinary diligence. As it is now, the practice of
medicine is already conditioned upon the highest degree of diligence. And,
as we have already noted, the standard contemplated for doctors is simply
the reasonable average merit among ordinarily good physicians. That is
reasonable diligence for doctors or, as the Court of Appeals called it, the
reasonable skill and competence . . . that a physician in the same or similar

27

locality . . . should apply.

WHEREFORE, the instant petition is DENIED and the decision of the Court
of Appeals is AFFIRMED.
SO ORDERED.
FIRST DIVISION
G.R. No. 126297
January 31, 2007
PROFESSIONAL SERVICES, INC., Petitioner,
vs.
NATIVIDAD and ENRIQUE AGANA, Respondents.
x-----------------------x
G.R. No. 126467
January 31, 2007
NATIVIDAD (Substituted by her children MARCELINO AGANA III,
ENRIQUE AGANA, JR., EMMA AGANA ANDAYA, JESUS AGANA, and
RAYMUND AGANA) and ENRIQUE AGANA, Petitioners,
vs.
JUAN FUENTES, Respondent.
x- - - - - - - - - - - - - - - - - - - -- - - - x
G.R. No. 127590
January 31, 2007
MIGUEL AMPIL, Petitioner,
vs.
NATIVIDAD AGANA and ENRIQUE AGANA, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Hospitals, having undertaken one of mankinds most important and
delicate endeavors, must assume the grave responsibility of pursuing it
with appropriate care. The care and service dispensed through this high
trust, however technical, complex and esoteric its character may be, must
meet standards of responsibility commensurate with the undertaking to
preserve and protect the health, and indeed, the very lives of those placed
in the hospitals keeping.1
Assailed in these three consolidated petitions for review on certiorari is the
Court of Appeals Decision2 dated September 6, 1996 in CA-G.R. CV No.
42062 and CA-G.R. SP No. 32198 affirming with modification the Decision 3
dated March 17, 1993 of the Regional Trial Court (RTC), Branch 96, Quezon
City in Civil Case No. Q-43322 and nullifying its Order dated September 21,
1993.
The facts, as culled from the records, are:
On April 4, 1984, Natividad Agana was rushed to the Medical City General
Hospital (Medical City Hospital) because of difficulty of bowel movement
and bloody anal discharge. After a series of medical examinations, Dr.
Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her to be suffering
from "cancer of the sigmoid."
On April 11, 1984, Dr. Ampil, assisted by the medical staff 4 of the Medical
City Hospital, performed an anterior resection surgery on Natividad. He
found that the malignancy in her sigmoid area had spread on her left
ovary, necessitating the removal of certain portions of it. Thus, Dr. Ampil
obtained the consent of Natividads husband, Enrique Agana, to permit Dr.
Juan Fuentes, respondent in G.R. No. 126467, to perform hysterectomy on

her.
After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over,
completed the operation and closed the incision.
However, the operation appeared to be flawed. In the corresponding
Record of Operation dated April 11, 1984, the attending nurses entered
these remarks:
"sponge count lacking 2
"announced to surgeon searched (sic) done but to no avail continue for
closure."
On April 24, 1984, Natividad was released from the hospital. Her hospital
and medical bills, including the doctors fees, amounted to P60,000.00.
After a couple of days, Natividad complained of excruciating pain in her
anal region. She consulted both Dr. Ampil and Dr. Fuentes about it. They
told her that the pain was the natural consequence of the surgery. Dr.
Ampil then recommended that she consult an oncologist to examine the
cancerous nodes which were not removed during the operation.
On May 9, 1984, Natividad, accompanied by her husband, went to the
United States to seek further treatment. After four months of consultations
and laboratory examinations, Natividad was told she was free of cancer.
Hence, she was advised to return to the Philippines.
On August 31, 1984, Natividad flew back to the Philippines, still suffering
from pains. Two weeks thereafter, her daughter found a piece of gauze
protruding from her vagina. Upon being informed about it, Dr. Ampil
proceeded to her house where he managed to extract by hand a piece of
gauze measuring 1.5 inches in width. He then assured her that the pains
would soon vanish.
Dr. Ampils assurance did not come true. Instead, the pains intensified,
prompting Natividad to seek treatment at the Polymedic General Hospital.
While confined there, Dr. Ramon Gutierrez detected the presence of
another foreign object in her vagina -- a foul-smelling gauze measuring 1.5
inches in width which badly infected her vaginal vault. A recto-vaginal
fistula had formed in her reproductive organs which forced stool to excrete
through the vagina. Another surgical operation was needed to remedy the
damage. Thus, in October 1984, Natividad underwent another surgery.
On November 12, 1984, Natividad and her husband filed with the RTC,
Branch 96, Quezon City a complaint for damages against the Professional
Services, Inc. (PSI), owner of the Medical City Hospital, Dr. Ampil, and Dr.
Fuentes, docketed as Civil Case No. Q-43322. They alleged that the latter
are liable for negligence for leaving two pieces of gauze inside Natividads
body and malpractice for concealing their acts of negligence.
Meanwhile, Enrique Agana also filed with the Professional Regulation
Commission (PRC) an administrative complaint for gross negligence and
malpractice against Dr. Ampil and Dr. Fuentes, docketed as Administrative
Case No. 1690. The PRC Board of Medicine heard the case only with
respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr.
Ampil who was then in the United States.
On February 16, 1986, pending the outcome of the above cases, Natividad
died and was duly substituted by her above-named children (the Aganas).
On March 17, 1993, the RTC rendered its Decision in favor of the Aganas,
finding PSI, Dr. Ampil and Dr. Fuentes liable for negligence and malpractice,

28

the decretal part of which reads:

WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the
defendants PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR.
JUAN FUENTES to pay to the plaintiffs, jointly and severally, except in
respect of the award for exemplary damages and the interest thereon
which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as
follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of US$19,900.00 at the
rate of P21.60-US$1.00, as reimbursement of actual expenses incurred in
the United States of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician
daughter;
c. The total sum of P45,802.50, representing the cost of hospitalization at
Polymedic Hospital, medical fees, and cost of the saline solution;
2. As moral damages, the sum of P2,000,000.00;
3. As exemplary damages, the sum of P300,000.00;
4. As attorneys fees, the sum of P250,000.00;
5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from
date of filing of the complaint until full payment; and
6. Costs of suit.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court
of Appeals, docketed as CA-G.R. CV No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a
partial execution of its Decision, which was granted in an Order dated May
11, 1993. Thereafter, the sheriff levied upon certain properties of Dr. Ampil
and sold them for P451,275.00 and delivered the amount to the Aganas.
Following their receipt of the money, the Aganas entered into an
agreement with PSI and Dr. Fuentes to indefinitely suspend any further
execution of the RTC Decision. However, not long thereafter, the Aganas
again filed a motion for an alias writ of execution against the properties of
PSI and Dr. Fuentes. On September 21, 1993, the RTC granted the motion
and issued the corresponding writ, prompting Dr. Fuentes to file with the
Court of Appeals a petition for certiorari and prohibition, with prayer for
preliminary injunction, docketed as CA-G.R. SP No. 32198. During its
pendency, the Court of Appeals issued a Resolution 5 dated October 29,
1993 granting Dr. Fuentes prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R.
CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its
Decision6 in Administrative Case No. 1690 dismissing the case against Dr.
Fuentes. The Board held that the prosecution failed to show that Dr.
Fuentes was the one who left the two pieces of gauze inside Natividads
body; and that he concealed such fact from Natividad.
On September 6, 1996, the Court of Appeals rendered its Decision jointly
disposing of CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case against defendantappellant Dr. Juan Fuentes is hereby DISMISSED, and with the
pronouncement that defendant-appellant Dr. Miguel Ampil is liable to

reimburse defendant-appellant Professional Services, Inc., whatever

amount the latter will pay or had paid to the plaintiffs-appellees, the
decision appealed from is hereby AFFIRMED and the instant appeal
DISMISSED.
Concomitant with the above, the petition for certiorari and prohibition filed
by herein defendant-appellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is
hereby GRANTED and the challenged order of the respondent judge dated
September 21, 1993, as well as the alias writ of execution issued pursuant
thereto are hereby NULLIFIED and SET ASIDE. The bond posted by the
petitioner in connection with the writ of preliminary injunction issued by
this Court on November 29, 1993 is hereby cancelled.
Costs against defendants-appellants Dr. Miguel Ampil and Professional
Services, Inc.
SO ORDERED.
Only Dr. Ampil filed a motion for reconsideration, but it was denied in a
Resolution7 dated December 19, 1996.
Hence, the instant consolidated petitions.
In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals
erred in holding that: (1) it is estopped from raising the defense that Dr.
Ampil is not its employee; (2) it is solidarily liable with Dr. Ampil; and (3) it
is not entitled to its counterclaim against the Aganas. PSI contends that Dr.
Ampil is not its employee, but a mere consultant or independent
contractor. As such, he alone should answer for his negligence.
In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in
finding that Dr. Fuentes is not guilty of negligence or medical malpractice,
invoking the doctrine of res ipsa loquitur. They contend that the pieces of
gauze are prima facie proofs that the operating surgeons have been
negligent.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals
erred in finding him liable for negligence and malpractice sans evidence
that he left the two pieces of gauze in Natividads vagina. He pointed to
other probable causes, such as: (1) it was Dr. Fuentes who used gauzes in
performing the hysterectomy; (2) the attending nurses failure to properly
count the gauzes used during surgery; and (3) the medical intervention of
the American doctors who examined Natividad in the United States of
America.
For our resolution are these three vital issues: first, whether the Court of
Appeals erred in holding Dr. Ampil liable for negligence and malpractice;
second, whether the Court of Appeals erred in absolving Dr. Fuentes of any
liability; and third, whether PSI may be held solidarily liable for the
negligence of Dr. Ampil.
I - G.R. No. 127590
Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.
Dr. Ampil, in an attempt to absolve himself, gears the Courts attention to
other possible causes of Natividads detriment. He argues that the Court
should not discount either of the following possibilities: first, Dr. Fuentes
left the gauzes in Natividads body after performing hysterectomy; second,
the attending nurses erred in counting the gauzes; and third, the American
doctors were the ones who placed the gauzes in Natividads body.

29

Dr. Ampils arguments are purely conjectural and without basis. Records
show that he did not present any evidence to prove that the American
doctors were the ones who put or left the gauzes in Natividads body.
Neither did he submit evidence to rebut the correctness of the record of
operation, particularly the number of gauzes used. As to the alleged
negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his (Dr.
Fuentes) work and found it in order.
The glaring truth is that all the major circumstances, taken together, as
specified by the Court of Appeals, directly point to Dr. Ampil as the
negligent party, thus:
First, it is not disputed that the surgeons used gauzes as sponges to control
the bleeding of the patient during the surgical operation.
Second, immediately after the operation, the nurses who assisted in the
surgery noted in their report that the sponge count (was) lacking 2; that
such anomaly was announced to surgeon and that a search was done but
to no avail prompting Dr. Ampil to continue for closure x x x.
Third, after the operation, two (2) gauzes were extracted from the same
spot of the body of Mrs. Agana where the surgery was performed.
An operation requiring the placing of sponges in the incision is not
complete until the sponges are properly removed, and it is settled that the
leaving of sponges or other foreign substances in the wound after the
incision has been closed is at least prima facie negligence by the operating
surgeon.8 To put it simply, such act is considered so inconsistent with due
care as to raise an inference of negligence. There are even legions of
authorities to the effect that such act is negligence per se. 9
Of course, the Court is not blind to the reality that there are times when
danger to a patients life precludes a surgeon from further searching
missing sponges or foreign objects left in the body. But this does not leave
him free from any obligation. Even if it has been shown that a surgeon was
required by the urgent necessities of the case to leave a sponge in his
patients abdomen, because of the dangers attendant upon delay, still, it is
his legal duty to so inform his patient within a reasonable time thereafter
by advising her of what he had been compelled to do. This is in order that
she might seek relief from the effects of the foreign object left in her body
as her condition might permit. The ruling in Smith v. Zeagler 10 is explicit,
thus:
The removal of all sponges used is part of a surgical operation, and when a
physician or surgeon fails to remove a sponge he has placed in his
patients body that should be removed as part of the operation, he thereby
leaves his operation uncompleted and creates a new condition which
imposes upon him the legal duty of calling the new condition to his
patients attention, and endeavoring with the means he has at hand to
minimize and avoid untoward results likely to ensue therefrom.
Here, Dr. Ampil did not inform Natividad about the missing two pieces of
gauze. Worse, he even misled her that the pain she was experiencing was
the ordinary consequence of her operation. Had he been more candid,
Natividad could have taken the immediate and appropriate medical
remedy to remove the gauzes from her body. To our mind, what was
initially an act of negligence by Dr. Ampil has ripened into a deliberate
wrongful act of deceiving his patient.

This is a clear case of medical malpractice or more appropriately, medical

negligence. To successfully pursue this kind of case, a patient must only
prove that a health care provider either failed to do something which a
reasonably prudent health care provider would have done, or that he did
something that a reasonably prudent provider would not have done; and
that failure or action caused injury to the patient. 11 Simply put, the
elements are duty, breach, injury and proximate causation. Dr, Ampil, as
the lead surgeon, had the duty to remove all foreign objects, such as
gauzes, from Natividads body before closure of the incision. When he
failed to do so, it was his duty to inform Natividad about it. Dr. Ampil
breached both duties. Such breach caused injury to Natividad,
necessitating her further examination by American doctors and another
surgery. That Dr. Ampils negligence is the proximate cause 12 of Natividads
injury could be traced from his act of closing the incision despite the
information given by the attending nurses that two pieces of gauze were
still missing. That they were later on extracted from Natividads vagina
established the causal link between Dr. Ampils negligence and the injury.
And what further aggravated such injury was his deliberate concealment of
the missing gauzes from the knowledge of Natividad and her family.
II - G.R. No. 126467
Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability
The Aganas assailed the dismissal by the trial court of the case against Dr.
Fuentes on the ground that it is contrary to the doctrine of res ipsa loquitur.
According to them, the fact that the two pieces of gauze were left inside
Natividads body is a prima facie evidence of Dr. Fuentes negligence.
We are not convinced.
Literally, res ipsa loquitur means "the thing speaks for itself." It is the rule
that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of
negligence, or make out a plaintiffs prima facie case, and present a
question of fact for defendant to meet with an explanation. 13 Stated
differently, where the thing which caused the injury, without the fault of
the injured, is under the exclusive control of the defendant and the injury is
such that it should not have occurred if he, having such control used
proper care, it affords reasonable evidence, in the absence of explanation
that the injury arose from the defendants want of care, and the burden of
proof is shifted to him to establish that he has observed due care and
diligence.14
From the foregoing statements of the rule, the requisites for the
applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of
an injury; (2) the thing which caused the injury was under the control and
management of the defendant; (3) the occurrence was such that in the
ordinary course of things, would not have happened if those who had
control or management used proper care; and (4) the absence of
explanation by the defendant. Of the foregoing requisites, the most
instrumental is the "control and management of the thing which caused
the injury."15
We find the element of "control and management of the thing which
caused the injury" to be wanting. Hence, the doctrine of res ipsa loquitur

30

will not lie.

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

Article 2176 of the Civil Code, which reads:

Art. 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done. Such fault
or negligence, if there is no pre-existing contractual relation between the
parties, is called a quasi-delict and is governed by the provisions of this
Chapter.
A derivative of this provision is Article 2180, the rule governing vicarious
liability under the doctrine of respondeat superior, thus:
ART. 2180. The obligation imposed by Article 2176 is demandable not only
for ones own acts or omissions, but also for those of persons for whom one
is responsible.
x x x
x x x
The owners and managers of an establishment or enterprise are likewise
responsible for damages caused by their employees in the service of the
branches in which the latter are employed or on the occasion of their
functions.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks even
though the former are not engaged in any business or industry.
x x x
x x x
The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good
father of a family to prevent damage.
A prominent civilist commented that professionals engaged by an
employer, such as physicians, dentists, and pharmacists, are not
"employees" under this article because the manner in which they perform
their work is not within the control of the latter (employer). In other words,
professionals are considered personally liable for the fault or negligence
they commit in the discharge of their duties, and their employer cannot be
held liable for such fault or negligence. In the context of the present case,
"a hospital cannot be held liable for the fault or negligence of a physician
or surgeon in the treatment or operation of patients."21
The foregoing view is grounded on the traditional notion that the
professional status and the very nature of the physicians calling preclude
him from being classed as an agent or employee of a hospital, whenever
he acts in a professional capacity.22 It has been said that medical practice
strictly involves highly developed and specialized knowledge, 23 such that
physicians are generally free to exercise their own skill and judgment in
rendering medical services sans interference.24 Hence, when a doctor
practices medicine in a hospital setting, the hospital and its employees are
deemed to subserve him in his ministrations to the patient and his actions
are of his own responsibility. 25
The case of Schloendorff v. Society of New York Hospital26 was then
considered an authority for this view. The "Schloendorff doctrine" regards a
physician, even if employed by a hospital, as an independent contractor
because of the skill he exercises and the lack of control exerted over his
work. Under this doctrine, hospitals are exempt from the application of the
respondeat superior principle for fault or negligence committed by
physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened with the

31

significant developments in medical care. Courts came to realize that

modern hospitals are increasingly taking active role in supplying and
regulating medical care to patients. No longer were a hospitals functions
limited to furnishing room, food, facilities for treatment and operation, and
attendants for its patients. Thus, in Bing v. Thunig, 27 the New York Court of
Appeals deviated from the Schloendorff doctrine, noting that modern
hospitals actually do far more than provide facilities for treatment. Rather,
they regularly employ, on a salaried basis, a large staff of physicians,
interns, nurses, administrative and manual workers. They charge patients
for medical care and treatment, even collecting for such services through
legal action, if necessary. The court then concluded that there is no reason
to exempt hospitals from the universal rule of respondeat superior.
In our shores, the nature of the relationship between the hospital and the
physicians is rendered inconsequential in view of our categorical
pronouncement in Ramos v. Court of Appeals28 that for purposes of
apportioning responsibility in medical negligence cases, an employeremployee relationship in effect exists between hospitals and their
attending and visiting physicians. This Court held:
"We now discuss the responsibility of the hospital in this particular incident.
The unique practice (among private hospitals) of filling up specialist staff
with attending and visiting "consultants," who are allegedly not hospital
employees, presents problems in apportioning responsibility for negligence
in medical malpractice cases. However, the difficulty is more apparent than
real.
In the first place, hospitals exercise significant control in the hiring and
firing of consultants and in the conduct of their work within the hospital
premises. Doctors who apply for consultant slots, visiting or attending,
are required to submit proof of completion of residency, their educational
qualifications, generally, evidence of accreditation by the appropriate
board (diplomate), evidence of fellowship in most cases, and references.
These requirements are carefully scrutinized by members of the hospital
administration or by a review committee set up by the hospital who either
accept or reject the application. x x x.
After a physician is accepted, either as a visiting or attending consultant,
he is normally required to attend clinico-pathological conferences, conduct
bedside rounds for clerks, interns and residents, moderate grand rounds
and patient audits and perform other tasks and responsibilities, for the
privilege of being able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In addition to these, the
physicians performance as a specialist is generally evaluated by a peer
review committee on the basis of mortality and morbidity statistics, and
feedback from patients, nurses, interns and residents. A consultant remiss
in his duties, or a consultant who regularly falls short of the minimum
standards acceptable to the hospital or its peer review committee, is
normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over
their attending and visiting consultant staff. While consultants are not,
technically employees, x x x, the control exercised, the hiring, and the right
to terminate consultants all fulfill the important hallmarks of an employeremployee relationship, with the exception of the payment of wages. In

assessing whether such a relationship in fact exists, the control test is

determining. Accordingly, on the basis of the foregoing, we rule that for the
purpose of allocating responsibility in medical negligence cases, an
employer-employee relationship in effect exists between hospitals and
their attending and visiting physicians. "
But the Ramos pronouncement is not our only basis in sustaining PSIs
liability. Its liability is also anchored upon the agency principle of apparent
authority or agency by estoppel and the doctrine of corporate negligence
which have gained acceptance in the determination of a hospitals liability
for negligent acts of health professionals. The present case serves as a
perfect platform to test the applicability of these doctrines, thus, enriching
our jurisprudence.
Apparent authority, or what is sometimes referred to as the "holding
out" theory, or doctrine of ostensible agency or agency by estoppel, 29 has
its origin from the law of agency. It imposes liability, not as the result of the
reality of a contractual relationship, but rather because of the actions of a
principal or an employer in somehow misleading the public into believing
that the relationship or the authority exists.30 The concept is essentially
one of estoppel and has been explained in this manner:
"The principal is bound by the acts of his agent with the apparent authority
which he knowingly permits the agent to assume, or which he holds the
agent out to the public as possessing. The question in every case is
whether the principal has by his voluntary act placed the agent in such a
situation that a person of ordinary prudence, conversant with business
usages and the nature of the particular business, is justified in presuming
that such agent has authority to perform the particular act in question. 31
The applicability of apparent authority in the field of hospital liability was
upheld long time ago in Irving v. Doctor Hospital of Lake Worth, Inc. 32
There, it was explicitly stated that "there does not appear to be any
rational basis for excluding the concept of apparent authority from the field
of hospital liability." Thus, in cases where it can be shown that a hospital,
by its actions, has held out a particular physician as its agent and/or
employee and that a patient has accepted treatment from that physician in
the reasonable belief that it is being rendered in behalf of the hospital,
then the hospital will be liable for the physicians negligence.
Our jurisdiction recognizes the concept of an agency by implication or
estoppel. Article 1869 of the Civil Code reads:
ART. 1869. Agency may be express, or implied from the acts of the
principal, from his silence or lack of action, or his failure to repudiate the
agency, knowing that another person is acting on his behalf without
authority.
In this case, PSI publicly displays in the lobby of the Medical City Hospital
the names and specializations of the physicians associated or accredited
by it, including those of Dr. Ampil and Dr. Fuentes. We concur with the
Court of Appeals conclusion that it "is now estopped from passing all the
blame to the physicians whose names it proudly paraded in the public
directory leading the public to believe that it vouched for their skill and
competence." Indeed, PSIs act is tantamount to holding out to the public
that Medical City Hospital, through its accredited physicians, offers quality
health care services. By accrediting Dr. Ampil and Dr. Fuentes and publicly

32

advertising their qualifications, the hospital created the impression that

they were its agents, authorized to perform medical or surgical services for
its patients. As expected, these patients, Natividad being one of them,
accepted the services on the reasonable belief that such were being
rendered by the hospital or its employees, agents, or servants. The trial
court correctly pointed out:
x x x regardless of the education and status in life of the patient, he ought
not be burdened with the defense of absence of employer-employee
relationship between the hospital and the independent physician whose
name and competence are certainly certified to the general public by the
hospitals act of listing him and his specialty in its lobby directory, as in the
case herein. The high costs of todays medical and health care should at
least exact on the hospital greater, if not broader, legal responsibility for
the conduct of treatment and surgery within its facility by its accredited
physician or surgeon, regardless of whether he is independent or
employed."33
The wisdom of the foregoing ratiocination is easy to discern. Corporate
entities, like PSI, are capable of acting only through other individuals, such
as physicians. If these accredited physicians do their job well, the hospital
succeeds in its mission of offering quality medical services and thus profits
financially. Logically, where negligence mars the quality of its services, the
hospital should not be allowed to escape liability for the acts of its
ostensible agents.
We now proceed to the doctrine of corporate negligence or corporate
responsibility.
One allegation in the complaint in Civil Case No. Q-43332 for negligence
and malpractice is that PSI as owner, operator and manager of Medical City
Hospital, "did not perform the necessary supervision nor exercise diligent
efforts in the supervision of Drs. Ampil and Fuentes and its nursing staff,
resident doctors, and medical interns who assisted Drs. Ampil and Fuentes
in the performance of their duties as surgeons." 34 Premised on the doctrine
of corporate negligence, the trial court held that PSI is directly liable for
such breach of duty.
We agree with the trial court.
Recent years have seen the doctrine of corporate negligence as the judicial
answer to the problem of allocating hospitals liability for the negligent acts
of health practitioners, absent facts to support the application of
respondeat superior or apparent authority. Its formulation proceeds from
the judiciarys acknowledgment that in these modern times, the duty of
providing quality medical service is no longer the sole prerogative and
responsibility of the physician. The modern hospitals have changed
structure. Hospitals now tend to organize a highly professional medical
staff whose competence and performance need to be monitored by the
hospitals commensurate with their inherent responsibility to provide
quality medical care.35
The doctrine has its genesis in Darling v. Charleston Community Hospital. 36
There, the Supreme Court of Illinois held that "the jury could have found a
hospital negligent, inter alia, in failing to have a sufficient number of
trained nurses attending the patient; failing to require a consultation with
or examination by members of the hospital staff; and failing to review the

treatment rendered to the patient." On the basis of Darling, other

jurisdictions held that a hospitals corporate negligence extends to
permitting a physician known to be incompetent to practice at the
hospital.37 With the passage of time, more duties were expected from
hospitals, among them: (1) the use of reasonable care in the maintenance
of safe and adequate facilities and equipment; (2) the selection and
retention of competent physicians; (3) the overseeing or supervision of all
persons who practice medicine within its walls; and (4) the formulation,
adoption and enforcement of adequate rules and policies that ensure
quality care for its patients.38 Thus, in Tucson Medical Center, Inc. v.
Misevich,39 it was held that a hospital, following the doctrine of corporate
responsibility, has the duty to see that it meets the standards of
responsibilities for the care of patients. Such duty includes the proper
supervision of the members of its medical staff. And in Bost v. Riley, 40 the
court concluded that a patient who enters a hospital does so with the
reasonable expectation that it will attempt to cure him. The hospital
accordingly has the duty to make a reasonable effort to monitor and
oversee the treatment prescribed and administered by the physicians
practicing in its premises.
In the present case, it was duly established that PSI operates the Medical
City Hospital for the purpose and under the concept of providing
comprehensive medical services to the public. Accordingly, it has the duty
to exercise reasonable care to protect from harm all patients admitted into
its facility for medical treatment. Unfortunately, PSI failed to perform such
duty. The findings of the trial court are convincing, thus:
x x x PSIs liability is traceable to its failure to conduct an investigation of
the matter reported in the nota bene of the count nurse. Such failure
established PSIs part in the dark conspiracy of silence and concealment
about the gauzes. Ethical considerations, if not also legal, dictated the
holding of an immediate inquiry into the events, if not for the benefit of the
patient to whom the duty is primarily owed, then in the interest of arriving
at the truth. The Court cannot accept that the medical and the healing
professions, through their members like defendant surgeons, and their
institutions like PSIs hospital facility, can callously turn their backs on and
disregard even a mere probability of mistake or negligence by refusing or
failing to investigate a report of such seriousness as the one in Natividads
case.
It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad
with the assistance of the Medical City Hospitals staff, composed of
resident doctors, nurses, and interns. As such, it is reasonable to conclude
that PSI, as the operator of the hospital, has actual or constructive
knowledge of the procedures carried out, particularly the report of the
attending nurses that the two pieces of gauze were missing. In Fridena v.
Evans,41 it was held that a corporation is bound by the knowledge acquired
by or notice given to its agents or officers within the scope of their
authority and in reference to a matter to which their authority extends.
This means that the knowledge of any of the staff of Medical City Hospital
constitutes knowledge of PSI. Now, the failure of PSI, despite the attending
nurses report, to investigate and inform Natividad regarding the missing
gauzes amounts to callous negligence. Not only did PSI breach its duties to

33

oversee or supervise all persons who practice medicine within its walls, it
also failed to take an active step in fixing the negligence committed. This
renders PSI, not only vicariously liable for the negligence of Dr. Ampil under
Article 2180 of the Civil Code, but also directly liable for its own negligence
under Article 2176. In Fridena, the Supreme Court of Arizona held:
x x x In recent years, however, the duty of care owed to the patient by the
hospital has expanded. The emerging trend is to hold the hospital
responsible where the hospital has failed to monitor and review medical
services being provided within its walls. See Kahn Hospital Malpractice
Prevention, 27 De Paul . Rev. 23 (1977).
Among the cases indicative of the emerging trend is Purcell v.
Zimbelman, 18 Ariz. App. 75,500 P. 2d 335 (1972). In Purcell, the hospital
argued that it could not be held liable for the malpractice of a medical
practitioner because he was an independent contractor within the hospital.
The Court of Appeals pointed out that the hospital had created a
professional staff whose competence and performance was to be
monitored and reviewed by the governing body of the hospital, and the
court held that a hospital would be negligent where it had knowledge or
reason to believe that a doctor using the facilities was employing a method
of treatment or care which fell below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of Appeals held that
a hospital has certain inherent responsibilities regarding the quality of
medical care furnished to patients within its walls and it must meet the
standards of responsibility commensurate with this undertaking. Beeck v.
Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This
court has confirmed the rulings of the Court of Appeals that a hospital has
the duty of supervising the competence of the doctors on its staff. x x x.
x
x
x
x
x x
In the amended complaint, the plaintiffs did plead that the operation was
performed at the hospital with its knowledge, aid, and assistance, and that
the negligence of the defendants was the proximate cause of the patients
injuries. We find that such general allegations of negligence, along with the
evidence produced at the trial of this case, are sufficient to support the
hospitals liability based on the theory of negligent supervision."
Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for
damages, let it be emphasized that PSI, apart from a general denial of its
responsibility, failed to adduce evidence showing that it exercised the
diligence of a good father of a family in the accreditation and supervision
of the latter. In neglecting to offer such proof, PSI failed to discharge its
burden under the last paragraph of Article 2180 cited earlier, and,
therefore, must be adjudged solidarily liable with Dr. Ampil. Moreover, as
we have discussed, PSI is also directly liable to the Aganas.
One final word. Once a physician undertakes the treatment and care of a
patient, the law imposes on him certain obligations. In order to escape
liability, he must possess that reasonable degree of learning, skill and
experience required by his profession. At the same time, he must apply
reasonable care and diligence in the exercise of his skill and the application
of his knowledge, and exert his best judgment.
WHEREFORE, we DENY all the petitions and AFFIRM the challenged
Decision of the Court of Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP

No. 32198.
Costs against petitioners PSI and Dr. Miguel Ampil.
SO ORDERED.
EN BANC
G.R. No. 165279
June 7, 2011
DR. RUBI LI, Petitioner,
vs.
SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of
deceased Angelica Soliman, Respondents.
DECISION
VILLARAMA, JR., J.:
Challenged in this petition for review on certiorari is the Decision 1 dated
June 15, 2004 as well as the Resolution 2 dated September 1, 2004 of the
Court of Appeals (CA) in CA-G.R. CV No. 58013 which modified the
Decision3 dated September 5, 1997 of the Regional Trial Court of Legazpi
City, Branch 8 in Civil Case No. 8904.
The factual antecedents:
On July 7, 1993, respondents 11-year old daughter, Angelica Soliman,
underwent a biopsy of the mass located in her lower extremity at the St.
Lukes Medical Center (SLMC). Results showed that Angelica was suffering
from osteosarcoma, osteoblastic type,4 a high-grade (highly malignant)
cancer of the bone which usually afflicts teenage children. Following this
diagnosis and as primary intervention, Angelicas right leg was amputated
by Dr. Jaime Tamayo in order to remove the tumor. As adjuvant treatment
to eliminate any remaining cancer cells, and hence minimize the chances
of recurrence and prevent the disease from spreading to other parts of the
patients body (metastasis), chemotherapy was suggested by Dr. Tamayo.
Dr. Tamayo referred Angelica to another doctor at SLMC, herein petitioner
Dr. Rubi Li, a medical oncologist.
On August 18, 1993, Angelica was admitted to SLMC. However, she died on
September 1, 1993, just eleven (11) days after the (intravenous)
administration of the first cycle of the chemotherapy regimen. Because
SLMC refused to release a death certificate without full payment of their
hospital bill, respondents brought the cadaver of Angelica to the Philippine
National Police (PNP) Crime Laboratory at Camp Crame for post-mortem
examination. The Medico-Legal Report issued by said institution indicated
the cause of death as "Hypovolemic shock secondary to multiple organ
hemorrhages and Disseminated Intravascular Coagulation." 5
On the other hand, the Certificate of Death6 issued by SLMC stated the
cause of death as follows:
Immediate cause : a. Osteosarcoma, Status Post AKA
Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy
On February 21, 1994, respondents filed a damage suit7 against petitioner,
Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr. Arriete and SLMC.
Respondents charged them with negligence and disregard of Angelicas
safety, health and welfare by their careless administration of the
chemotherapy drugs, their failure to observe the essential precautions in

34

detecting early the symptoms of fatal blood platelet decrease and stopping
early on the chemotherapy, which bleeding led to hypovolemic shock that
caused Angelicas untimely demise. Further, it was specifically averred that
petitioner assured the respondents that Angelica would recover in view of
95% chance of healing with chemotherapy ("Magiging normal na ang anak
nyo basta ma-chemo. 95% ang healing") and when asked regarding the
side effects, petitioner mentioned only slight vomiting, hair loss and
weakness ("Magsusuka ng kaunti. Malulugas ang buhok. Manghihina").
Respondents thus claimed that they would not have given their consent to
chemotherapy had petitioner not falsely assured them of its side effects.
In her answer,8 petitioner denied having been negligent in administering
the chemotherapy drugs to Angelica and asserted that she had fully
explained to respondents how the chemotherapy will affect not only the
cancer cells but also the patients normal body parts, including the
lowering of white and red blood cells and platelets. She claimed that what
happened to Angelica can be attributed to malignant tumor cells possibly
left behind after surgery. Few as they may be, these have the capacity to
compete for nutrients such that the body becomes so weak structurally
(cachexia) and functionally in the form of lower resistance of the body to
combat infection. Such infection becomes uncontrollable and triggers a
chain of events (sepsis or septicemia) that may lead to bleeding in the
form of Disseminated Intravascular Coagulation (DIC), as what the autopsy
report showed in the case of Angelica.
Since the medical records of Angelica were not produced in court, the trial
and appellate courts had to rely on testimonial evidence, principally the
declarations of petitioner and respondents themselves. The following
chronology of events was gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after
Angelicas surgery and discussed with them Angelicas condition. Petitioner
told respondents that Angelica should be given two to three weeks to
recover from the operation before starting chemotherapy. Respondents
were apprehensive due to financial constraints as Reynaldo earns only
from P70,000.00 to P150,000.00 a year from his jewelry and watch
repairing business.9 Petitioner, however, assured them not to worry about
her professional fee and told them to just save up for the medicines to be
used.
Petitioner claimed that she explained to respondents that even when a
tumor is removed, there are still small lesions undetectable to the naked
eye, and that adjuvant chemotherapy is needed to clean out the small
lesions in order to lessen the chance of the cancer to recur. She did not
give the respondents any assurance that chemotherapy will cure
Angelicas cancer. During these consultations with respondents, she
explained the following side effects of chemotherapy treatment to
respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite;
(4) low count of white blood cells [WBC], red blood cells [RBC] and
platelets; (5) possible sterility due to the effects on Angelicas ovary; (6)
damage to the heart and kidneys; and (7) darkening of the skin especially
when exposed to sunlight. She actually talked with respondents four times,
once at the hospital after the surgery, twice at her clinic and the fourth
time when Angelicas mother called her through long distance. 10 This was

disputed by respondents who countered that petitioner gave them

assurance that there is 95% chance of healing for Angelica if she
undergoes chemotherapy and that the only side effects were nausea,
vomiting and hair loss.11 Those were the only side-effects of chemotherapy
treatment mentioned by petitioner.12
On July 27, 1993, SLMC discharged Angelica, with instruction from
petitioner that she be readmitted after two or three weeks for the
chemotherapy.
On August 18, 1993, respondents brought Angelica to SLMC for
chemotherapy, bringing with them the results of the laboratory tests
requested by petitioner: Angelicas chest x-ray, ultrasound of the liver,
creatinine and complete liver function tests.13 Petitioner proceeded with
the chemotherapy by first administering hydration fluids to Angelica. 14
The following day, August 19, petitioner began administering three
chemotherapy drugs Cisplatin,15 Doxorubicin16 and Cosmegen17
intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo
Marbella18 and Dr. Grace Arriete.19 In his testimony, Dr. Marbella denied
having any participation in administering the said chemotherapy drugs. 20
On the second day of chemotherapy, August 20, respondents noticed
reddish discoloration on Angelicas face.21 They asked petitioner about it,
but she merely quipped, "Wala yan. Epekto ng gamot."22 Petitioner recalled
noticing the skin rashes on the nose and cheek area of Angelica. At that
moment, she entertained the possibility that Angelica also had systemic
lupus and consulted Dr. Victoria Abesamis on the matter. 23
On the third day of chemotherapy, August 21, Angelica had difficulty
breathing and was thus provided with oxygen inhalation apparatus. This
time, the reddish discoloration on Angelicas face had extended to her
neck, but petitioner dismissed it again as merely the effect of medicines. 24
Petitioner testified that she did not see any discoloration on Angelicas
face, nor did she notice any difficulty in the childs breathing. She claimed
that Angelica merely complained of nausea and was given ice
chips.251avvphi1
On August 22, 1993, at around ten oclock in the morning, upon seeing
that their child could not anymore bear the pain, respondents pleaded with
petitioner to stop the chemotherapy. Petitioner supposedly replied: "Dapat
15 Cosmegen pa iyan. Okay, lets observe. If pwede na, bigyan uli ng
chemo." At this point, respondents asked petitioners permission to bring
their child home. Later in the evening, Angelica passed black stool and
reddish urine.26 Petitioner countered that there was no record of blackening
of stools but only an episode of loose bowel movement (LBM). Petitioner
also testified that what Angelica complained of was carpo-pedal spasm, not
convulsion or epileptic attack, as respondents call it (petitioner described it
in the vernacular as "naninigas ang kamay at paa"). She then requested for
a serum calcium determination and stopped the chemotherapy. When
Angelica was given calcium gluconate, the spasm and numbness
subsided.27
The following day, August 23, petitioner yielded to respondents request to
take Angelica home. But prior to discharging Angelica, petitioner requested
for a repeat serum calcium determination and explained to respondents
that the chemotherapy will be temporarily stopped while she observes

35

Angelicas muscle twitching and serum calcium level. Take-home medicines

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

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

36

in this case Angelicas death was not caused by osteosarcoma. Dr. Vergara
admitted that she is not a pathologist but her statements were based on
the opinion of an oncologist whom she had interviewed. This oncologist
supposedly said that if the victim already had DIC prior to the
chemotherapy, the hospital staff could have detected it. 44
On her part, Dr. Balmaceda declared that it is the physicians duty to
inform and explain to the patient or his relatives every known side effect of
the procedure or therapeutic agents to be administered, before securing
the consent of the patient or his relatives to such procedure or therapy.
The physician thus bases his assurance to the patient on his personal
assessment of the patients condition and his knowledge of the general
effects of the agents or procedure that will be allowed on the patient. Dr.
Balmaceda stressed that the patient or relatives must be informed of all
known side effects based on studies and observations, even if such will
aggravate the patients condition.45
Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas
lower extremity, testified for the defendants. He explained that in case of
malignant tumors, there is no guarantee that the ablation or removal of
the amputated part will completely cure the cancer. Thus, surgery is not
enough. The mortality rate of osteosarcoma at the time of modern
chemotherapy and early diagnosis still remains at 80% to 90%. Usually,
deaths occur from metastasis, or spread of the cancer to other vital organs
like the liver, causing systemic complications. The modes of therapy
available are the removal of the primary source of the cancerous growth
and then the residual cancer cells or metastasis should be treated with
chemotherapy. Dr. Tamayo further explained that patients with
osteosarcoma have poor defense mechanism due to the cancer cells in the
blood stream. In the case of Angelica, he had previously explained to her
parents that after the surgical procedure, chemotherapy is imperative so
that metastasis of these cancer cells will hopefully be addressed. He
referred the patient to petitioner because he felt that petitioner is a
competent oncologist. Considering that this type of cancer is very
aggressive and will metastasize early, it will cause the demise of the
patient should there be no early intervention (in this case, the patient
developed sepsis which caused her death). Cancer cells in the blood
cannot be seen by the naked eye nor detected through bone scan. On
cross-examination, Dr. Tamayo stated that of the more than 50 child
patients who had osteogenic sarcoma he had handled, he thought that
probably all of them died within six months from amputation because he
did not see them anymore after follow-up; it is either they died or had seen
another doctor.46
In dismissing the complaint, the trial court held that petitioner was not
liable for damages as she observed the best known procedures and
employed her highest skill and knowledge in the administration of
chemotherapy drugs on Angelica but despite all efforts said patient died. It
cited the testimony of Dr. Tamayo who testified that he considered
petitioner one of the most proficient in the treatment of cancer and that
the patient in this case was afflicted with a very aggressive type of cancer
necessitating chemotherapy as adjuvant treatment. Using the standard of
negligence laid down in Picart v. Smith,47 the trial court declared that

petitioner has taken the necessary precaution against the adverse effect of
chemotherapy on the patient, adding that a wrong decision is not by itself
negligence. Respondents were ordered to pay their unpaid hospital bill in
the amount of P139,064.43.48
Respondents appealed to the CA which, while concurring with the trial
courts finding that there was no negligence committed by the petitioner in
the administration of chemotherapy treatment to Angelica, found that
petitioner as her attending physician failed to fully explain to the
respondents all the known side effects of chemotherapy. The appellate
court stressed that since the respondents have been told of only three side
effects of chemotherapy, they readily consented thereto. Had petitioner
made known to respondents those other side effects which gravely
affected their child -- such as carpo-pedal spasm, sepsis, decrease in the
blood platelet count, bleeding, infections and eventual death -respondents could have decided differently or adopted a different course of
action which could have delayed or prevented the early death of their
child.
The CA thus declared:
Plaintiffs-appellants child was suffering from a malignant disease. The
attending physician recommended that she undergo chemotherapy
treatment after surgery in order to increase her chances of survival.
Appellants consented to the chemotherapy treatment because they
believed in Dr. Rubi Lis representation that the deceased would have a
strong chance of survival after chemotherapy and also because of the
representation of appellee Dr. Rubi Li that there were only three possible
side-effects of the treatment. However, all sorts of painful side-effects
resulted from the treatment including the premature death of Angelica.
The appellants were clearly and totally unaware of these other side-effects
which manifested only during the chemotherapy treatment. This was
shown by the fact that every time a problem would take place regarding
Angelicas condition (like an unexpected side-effect manifesting itself),
they would immediately seek explanation from Dr. Rubi Li. Surely, those
unexpected side-effects culminating in the loss of a love[d] one caused the
appellants so much trouble, pain and suffering.
On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent
which would entitle plaintiffs-appellants to their claim for damages.
xxxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the
assailed decision is hereby modified to the extent that defendant-appellee
Dr. Rubi Li is ordered to pay the plaintiffs-appellants the following amounts:
1. Actual damages of P139,064.43, plus P9,828.00 for funeral expenses;
2. Moral damages of P200,000.00;
3. Exemplary damages of P50,000.00;
4. Attorneys fee of P30,000.00.
SO ORDERED.49 (Emphasis supplied.)
Petitioner filed a motion for partial reconsideration which the appellate
court denied.
Hence, this petition.
Petitioner assails the CA in finding her guilty of negligence in not explaining
to the respondents all the possible side effects of the chemotherapy on

37

their child, and in holding her liable for actual, moral and exemplary
damages and attorneys fees. Petitioner emphasized that she was not
negligent in the pre-chemotherapy procedures and in the administration of
chemotherapy treatment to Angelica.
On her supposed non-disclosure of all possible side effects of
chemotherapy, including death, petitioner argues that it was foolhardy to
imagine her to be all-knowing/omnipotent. While the theoretical side
effects of chemotherapy were explained by her to the respondents, as
these should be known to a competent doctor, petitioner cannot possibly
predict how a particular patients genetic make-up, state of mind, general
health and body constitution would respond to the treatment. These are
obviously dependent on too many known, unknown and immeasurable
variables, thus requiring that Angelica be, as she was, constantly and
closely monitored during the treatment. Petitioner asserts that she did
everything within her professional competence to attend to the medical
needs of Angelica.
Citing numerous trainings, distinctions and achievements in her field and
her current position as co-director for clinical affairs of the Medical
Oncology, Department of Medicine of SLMC, petitioner contends that in the
absence of any clear showing or proof, she cannot be charged with
negligence in not informing the respondents all the side effects of
chemotherapy or in the pre-treatment procedures done on Angelica.
As to the cause of death, petitioner insists that Angelica did not die of
platelet depletion but of sepsis which is a complication of the cancer itself.
Sepsis itself leads to bleeding and death. She explains that the response
rate to chemotherapy of patients with osteosarcoma is high, so much so
that survival rate is favorable to the patient. Petitioner then points to some
probable consequences if Angelica had not undergone chemotherapy.
Thus, without chemotherapy, other medicines and supportive treatment,
the patient might have died the next day because of massive infection, or
the cancer cells might have spread to the brain and brought the patient
into a coma, or into the lungs that the patient could have been hooked to a
respirator, or into her kidneys that she would have to undergo dialysis.
Indeed, respondents could have spent as much because of these
complications. The patient would have been deprived of the chance to
survive the ailment, of any hope for life and her "quality of life" surely
compromised. Since she had not been shown to be at fault, petitioner
maintains that the CA erred in holding her liable for the damages suffered
by the respondents.50
The issue to be resolved is whether the petitioner can be held liable for
failure to fully disclose serious side effects to the parents of the child
patient who died while undergoing chemotherapy, despite the absence of
finding that petitioner was negligent in administering the said treatment.
The petition is meritorious.
The type of lawsuit which has been called medical malpractice or, more
appropriately, medical negligence, is that type of claim which a victim has
available to him or her to redress a wrong committed by a medical
professional which has caused bodily harm. In order to successfully pursue
such a claim, a patient must prove that a health care provider, in most
cases a physician, either failed to do something which a reasonably

prudent health care provider would have done, or that he or she did
something that a reasonably prudent provider would not have done; and
that that failure or action caused injury to the patient. 51
This Court has recognized that medical negligence cases are best proved
by opinions of expert witnesses belonging in the same general
neighborhood and in the same general line of practice as defendant
physician or surgeon. The deference of courts to the expert opinion of
qualified physicians stems from the formers realization that the latter
possess unusual technical skills which laymen in most instances are
incapable of intelligently evaluating, hence the indispensability of expert
testimonies.52
In this case, both the trial and appellate courts concurred in finding that
the alleged negligence of petitioner in the administration of chemotherapy
drugs to respondents child was not proven considering that Drs. Vergara
and Balmaceda, not being oncologists or cancer specialists, were not
qualified to give expert opinion as to whether petitioners lack of skill,
knowledge and professional competence in failing to observe the standard
of care in her line of practice was the proximate cause of the patients
death. Furthermore, respondents case was not at all helped by the nonproduction of medical records by the hospital (only the biopsy result and
medical bills were submitted to the court). Nevertheless, the CA found
petitioner liable for her failure to inform the respondents on all possible
side effects of chemotherapy before securing their consent to the said
treatment.
The doctrine of informed consent within the context of physician-patient
relationships goes far back into English common law. As early as 1767,
doctors were charged with the tort of "battery" (i.e., an unauthorized
physical contact with a patient) if they had not gained the consent of their
patients prior to performing a surgery or procedure. In the United States,
the seminal case was Schoendorff v. Society of New York Hospital 53 which
involved unwanted treatment performed by a doctor. Justice Benjamin
Cardozos oft-quoted opinion upheld the basic right of a patient to give
consent to any medical procedure or treatment: "Every human being of
adult years and sound mind has a right to determine what shall be done
with his own body; and a surgeon who performs an operation without his
patients consent, commits an assault, for which he is liable in damages." 54
From a purely ethical norm, informed consent evolved into a general
principle of law that a physician has a duty to disclose what a reasonably
prudent physician in the medical community in the exercise of reasonable
care would disclose to his patient as to whatever grave risks of injury might
be incurred from a proposed course of treatment, so that a patient,
exercising ordinary care for his own welfare, and faced with a choice of
undergoing the proposed treatment, or alternative treatment, or none at
all, may intelligently exercise his judgment by reasonably balancing the
probable risks against the probable benefits.55
Subsequently, in Canterbury v. Spence56 the court observed that the duty
to disclose should not be limited to medical usage as to arrogate the
decision on revelation to the physician alone. Thus, respect for the
patients right of self-determination on particular therapy demands a
standard set by law for physicians rather than one which physicians may or

38

may not impose upon themselves.57 The scope of disclosure is premised on

the fact that patients ordinarily are persons unlearned in the medical
sciences. Proficiency in diagnosis and therapy is not the full measure of a
physicians responsibility. It is also his duty to warn of the dangers lurking
in the proposed treatment and to impart information which the patient has
every right to expect. Indeed, the patients reliance upon the physician is a
trust of the kind which traditionally has exacted obligations beyond those
associated with armslength transactions.58 The physician is not expected to
give the patient a short medical education, the disclosure rule only
requires of him a reasonable explanation, which means generally informing
the patient in nontechnical terms as to what is at stake; the therapy
alternatives open to him, the goals expectably to be achieved, and the
risks that may ensue from particular treatment or no treatment.59 As to the
issue of demonstrating what risks are considered material necessitating
disclosure, it was held that experts are unnecessary to a showing of the
materiality of a risk to a patients decision on treatment, or to the
reasonably, expectable effect of risk disclosure on the decision. Such
unrevealed risk that should have been made known must further
materialize, for otherwise the omission, however unpardonable, is without
legal consequence. And, as in malpractice actions generally, there must be
a causal relationship between the physicians failure to divulge and
damage to the patient.60
Reiterating the foregoing considerations, Cobbs v. Grant61 deemed it as
integral part of physicians overall obligation to patient, the duty of
reasonable disclosure of available choices with respect to proposed
therapy and of dangers inherently and potentially involved in each.
However, the physician is not obliged to discuss relatively minor risks
inherent in common procedures when it is common knowledge that such
risks inherent in procedure of very low incidence. Cited as exceptions to
the rule that the patient should not be denied the opportunity to weigh the
risks of surgery or treatment are emergency cases where it is evident he
cannot evaluate data, and where the patient is a child or incompetent. 62
The court thus concluded that the patients right of self-decision can only
be effectively exercised if the patient possesses adequate information to
enable him in making an intelligent choice. The scope of the physicians
communications to the patient, then must be measured by the patients
need, and that need is whatever information is material to the decision.
The test therefore for determining whether a potential peril must be
divulged is its materiality to the patients decision. 63
Cobbs v. Grant further reiterated the pronouncement in Canterbury v.
Spence that for liability of the physician for failure to inform patient, there
must be causal relationship between physicians failure to inform and the
injury to patient and such connection arises only if it is established that,
had revelation been made, consent to treatment would not have been
given.
There are four essential elements a plaintiff must prove in a malpractice
action based upon the doctrine of informed consent: "(1) the physician had
a duty to disclose material risks; (2) he failed to disclose or inadequately
disclosed those risks; (3) as a direct and proximate result of the failure to
disclose, the patient consented to treatment she otherwise would not have

consented to; and (4) plaintiff was injured by the proposed treatment." The
gravamen in an informed consent case requires the plaintiff to "point to
significant undisclosed information relating to the treatment which would
have altered her decision to undergo it.64
Examining the evidence on record, we hold that there was adequate
disclosure of material risks inherent in the chemotherapy procedure
performed with the consent of Angelicas parents. Respondents could not
have been unaware in the course of initial treatment and amputation of
Angelicas lower extremity, that her immune system was already weak on
account of the malignant tumor in her knee. When petitioner informed the
respondents beforehand of the side effects of chemotherapy which
includes lowered counts of white and red blood cells, decrease in blood
platelets, possible kidney or heart damage and skin darkening, there is
reasonable expectation on the part of the doctor that the respondents
understood very well that the severity of these side effects will not be the
same for all patients undergoing the procedure. In other words, by the
nature of the disease itself, each patients reaction to the chemical agents
even with pre-treatment laboratory tests cannot be precisely determined
by the physician. That death can possibly result from complications of the
treatment or the underlying cancer itself, immediately or sometime after
the administration of chemotherapy drugs, is a risk that cannot be ruled
out, as with most other major medical procedures, but such conclusion can
be reasonably drawn from the general side effects of chemotherapy
already disclosed.
As a physician, petitioner can reasonably expect the respondents to have
considered the variables in the recommended treatment for their daughter
afflicted with a life-threatening illness. On the other hand, it is difficult to
give credence to respondents claim that petitioner told them of 95%
chance of recovery for their daughter, as it was unlikely for doctors like
petitioner who were dealing with grave conditions such as cancer to have
falsely assured patients of chemotherapys success rate. Besides, informed
consent laws in other countries generally require only a reasonable
explanation of potential harms, so specific disclosures such as statistical
data, may not be legally necessary.65
The element of ethical duty to disclose material risks in the proposed
medical treatment cannot thus be reduced to one simplistic formula
applicable in all instances. Further, in a medical malpractice action based
on lack of informed consent, "the plaintiff must prove both the duty and
the breach of that duty through expert testimony.66 Such expert testimony
must show the customary standard of care of physicians in the same
practice as that of the defendant doctor. 67
In this case, the testimony of Dr. Balmaceda who is not an oncologist but a
Medical Specialist of the DOHs Operational and Management Services
charged with receiving complaints against hospitals, does not qualify as
expert testimony to establish the standard of care in obtaining consent for
chemotherapy treatment. In the absence of expert testimony in this
regard, the Court feels hesitant in defining the scope of mandatory
disclosure in cases of malpractice based on lack of informed consent, much
less set a standard of disclosure that, even in foreign jurisdictions, has
been noted to be an evolving one.

39

As society has grappled with the juxtaposition between personal autonomy

and the medical profession's intrinsic impetus to cure, the law defining
"adequate" disclosure has undergone a dynamic evolution. A standard
once guided solely by the ruminations of physicians is now dependent on
what a reasonable person in the patients position regards as significant.
This change in perspective is especially important as medical
breakthroughs move practitioners to the cutting edge of technology, ever
encountering new and heretofore unimagined treatments for currently
incurable diseases or ailments. An adaptable standard is needed to
account for this constant progression. Reasonableness analyses permeate
our legal system for the very reason that they are determined by social
norms, expanding and contracting with the ebb and flow of societal
evolution.
As we progress toward the twenty-first century, we now realize that the
legal standard of disclosure is not subject to construction as a categorical
imperative. Whatever formulae or processes we adopt are only useful as a
foundational starting point; the particular quality or quantity of disclosure
will remain inextricably bound by the facts of each case. Nevertheless,
juries that ultimately determine whether a physician properly informed a
patient are inevitably guided by what they perceive as the common
expectation of the medical consumer"a reasonable person in the
patients position when deciding to accept or reject a recommended
medical procedure."68 (Emphasis supplied.)
WHEREFORE, the petition for review on certiorari is GRANTED. The Decision
dated June 15, 2004 and the Resolution dated September 1, 2004 of the
Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE.
The Decision dated September 5, 1997 of the Regional Trial Court of
Legazpi City, Branch 8, in Civil Case No. 8904 is REINSTATED and UPHELD.
No costs.
SO ORDERED.
G.R. No. 187926
February 15, 2012
Dr. EMMANUEL JARCIA, Jr. and Dr. MARILOU BASTAN, Petitioners,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
MENDOZA, J.:
Even early on, patients have consigned their lives to the skill of their
doctors. Time and again, it can be said that the most important goal of the
medical profession is the preservation of life and health of the people.
Corollarily, when a physician departs from his sacred duty and endangers
instead the life of his patient, he must be made liable for the resulting
injury. This Court, as this case would show, cannot and will not let the act
go unpunished.1
This is a petition for review under Rule 45 of the Rules of Court challenging
the August 29, 2008 Decision2 of the Court of Appeals (CA), and its May 19,
2009 Resolution3 in CA-G.R. CR No. 29559, dismissing the appeal and
affirming in toto the June 14, 2005 Decision4 of the Regional Trial Court,
Branch 43, Manila (RTC), finding the accused guilty beyond reasonable

doubt of simple imprudence resulting to serious physical injuries.

THE FACTS
Belinda Santiago (Mrs. Santiago) lodged a complaint with the National
Bureau of Investigation (NBI) against the petitioners, Dr. Emmanuel Jarcia,
Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr. Bastan), for their alleged neglect
of professional duty which caused her son, Roy Alfonso Santiago (Roy Jr.),
to suffer serious physical injuries. Upon investigation, the NBI found that
Roy Jr. was hit by a taxicab; that he was rushed to the Manila Doctors
Hospital for an emergency medical treatment; that an X-ray of the victims
ankle was ordered; that the X-ray result showed no fracture as read by Dr.
Jarcia; that Dr. Bastan entered the emergency room (ER) and, after
conducting her own examination of the victim, informed Mrs. Santiago that
since it was only the ankle that was hit, there was no need to examine the
upper leg; that eleven (11) days later, Roy Jr. developed fever, swelling of
the right leg and misalignment of the right foot; that Mrs. Santiago brought
him back to the hospital; and that the X-ray revealed a right mid-tibial
fracture and a linear hairline fracture in the shaft of the bone.
The NBI indorsed the matter to the Office of the City Prosecutor of Manila
for preliminary investigation. Probable cause was found and a criminal case
for reckless imprudence resulting to serious physical injuries, was filed
against Dr. Jarcia, Dr. Bastan and Dr. Pamittan,5 before the RTC, docketed
as Criminal Case No. 01-196646.
On June 14, 2005, the RTC found the petitioners guilty beyond reasonable
doubt of the crime of Simple Imprudence Resulting to Serious Physical
Injuries. The decretal portion of the RTC decision reads:
WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL
JARCIA, JR. and DR. MARILOU BASTAN GUILTY beyond reasonable doubt of
the crime of SIMPLE IMPRUDENCE RESULTING TO SERIOUS PHYSICAL
INJURIES and are hereby sentenced to suffer the penalty of ONE (1) MONTH
and ONE (1) DAY to TWO (2) MONTHS and to indemnify MRS. BELINDA
SANTIAGO the amount of P 3,850.00 representing medical expenses
without subsidiary imprisonment in case of insolvency and to pay the
costs.
It appearing that Dr. Pamittan has not been apprehended nor voluntarily
surrendered despite warrant issued for her arrest, let warrant be issued for
her arrest and the case against her be ARCHIVED, to be reinstated upon
her apprehension.
SO ORDERED.6
The RTC explained:
After a thorough and in depth evaluation of the evidence adduced by the
prosecution and the defense, this court finds that the evidence of the
prosecution is the more credible, concrete and sufficient to create that
moral certainty in the mind of the Court that accused herein [are]
criminally responsible. The Court believes that accused are negligent when
both failed to exercise the necessary and reasonable prudence in
ascertaining the extent of injury of Alfonso Santiago, Jr.
However, the negligence exhibited by the two doctors does not
approximate negligence of a reckless nature but merely amounts to simple
imprudence. Simple imprudence consists in the lack of precaution
displayed in those cases in which the damage impending to be caused is

40

not the immediate nor the danger clearly manifest. The elements of simple
imprudence are as follows.
1. that there is lack of precaution on the part of the offender; and
2. that the damage impending to be caused is not immediate of the danger
is not clearly manifest.
Considering all the evidence on record, The Court finds the accused guilty
for simple imprudence resulting to physical injuries. Under Article 365 of
the Revised Penal Code, the penalty provided for is arresto mayor in its
minimum period.7
Dissatisfied, the petitioners appealed to the CA.
As earlier stated, the CA affirmed the RTC decision in toto. The August 29,
2008 Decision of the CA pertinently reads:
This Court holds concurrently and finds the foregoing circumstances
sufficient to sustain a judgment of conviction against the accusedappellants for the crime of simple imprudence resulting in serious physical
injuries. The elements of imprudence are: (1) that the offender does or fails
to do an act; (2) that the doing or the failure to do that act is voluntary; (3)
that it be without malice; (4) that material damage results from the
imprudence; and (5) that there is inexcusable lack of precaution on the
part of the offender, taking into consideration his employment or
occupation, degree of intelligence, physical condition, and other
circumstances regarding persons, time and place.
Whether or not Dr. Jarcia and Dr. Bastan had committed an "inexcusable
lack of precaution" in the treatment of their patient is to be determined
according to the standard of care observed by other members of the
profession in good standing under similar circumstances, bearing in mind
the advanced state of the profession at the time of treatment or the
present state of medical science. In the case of Leonila Garcia-Rueda v.
Pascasio, the Supreme Court stated that, in accepting a case, a doctor in
effect represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will employ such
training, care and skill in the treatment of his patients. He therefore has a
duty to use at least the same level of care that any other reasonably
competent doctor would use to treat a condition under the same
circumstances.
In litigations involving medical negligence, the plaintiff has the burden of
establishing accused-appellants negligence, and for a reasonable
conclusion of negligence, there must be proof of breach of duty on the part
of the physician as well as a causal connection of such breach and the
resulting injury of his patient. The connection between the negligence and
the injury must be a direct and natural sequence of events, unbroken by
intervening efficient causes. In other words, the negligence must be the
proximate cause of the injury. Negligence, no matter in what it consists,
cannot create a right of action unless it is the proximate cause of the injury
complained of. The proximate cause of an injury is that cause which, in
natural and continuous sequence, unbroken by any efficient intervening
cause, produces the injury and without which the result would not have
occurred.
In the case at bench, the accused-appellants questioned the imputation
against them and argued that there is no causal connection between their

failure to diagnose the fracture and the injury sustained by Roy.

We are not convinced.
The prosecution is however after the cause which prolonged the pain and
suffering of Roy and not on the failure of the accused-appellants to
correctly diagnose the extent of the injury sustained by Roy.
For a more logical presentation of the discussion, we shall first consider the
applicability of the doctrine of res ipsa loquitur to the instant case. Res
ipsa loquitur is a Latin phrase which literally means "the thing or the
transaction speaks for itself. The doctrine of res ipsa loquitur is simply a
recognition of the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may justify an
inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some explanation by
the accused-appellant who is charged with negligence. It is grounded in
the superior logic of ordinary human experience and, on the basis of such
experience or common knowledge, negligence may be deduced from the
mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in
conjunction with the doctrine of common knowledge.
The specific acts of negligence was narrated by Mrs. Santiago who
accompanied her son during the latters ordeal at the hospital. She
testified as follows:
Fiscal Formoso:
Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra.
Pamittan to confirm whether you should go home or not?
A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you
let us go home and you dont even clean the wounds of my son.
Q: And what did she [tell] you?
A: They told me they will call a resident doctor, sir.
xxx
xxx
xxx
Q: Was there a resident doctor [who] came?
A: Yes, Sir. Dra. Bastan arrived.
Q: Did you tell her what you want on you to be done?
A: Yes, sir.
Q: What did you [tell] her?
A: I told her, sir, while she was cleaning the wounds of my son, are you not
going to x-ray up to the knee because my son was complaining pain from
his ankle up to the middle part of the right leg.
Q: And what did she tell you?
A: According to Dra. Bastan, there is no need to x-ray because it was the
ankle part that was run over.
Q: What did you do or tell her?
A: I told her, sir, why is it that they did not examine[x] the whole leg. They
just lifted the pants of my son.
Q: So you mean to say there was no treatment made at all?
A: None, sir.
xxx
xxx
xxx
xxx
xxx
xxx
A: I just listened to them, sir. And I just asked if I will still return my son.
xxx
xxx
xxx
xxx
xxx
xxx

41

Q: And you were present when they were called?

A: Yes, sir.
Q: And what was discussed then by Sis. Retoria?
A: When they were there they admitted that they have mistakes, sir.
Still, before resort to the doctrine may be allowed, the following requisites
must be satisfactorily shown:
1. The accident is of a kind which ordinarily does not occur in the absence
of someones negligence;
2. It is caused by an instrumentality within the exclusive control of the
defendant or defendants; and
3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated.
In the above requisites, the fundamental element is the "control of the
instrumentality" which caused the damage. Such element of control must
be shown to be within the dominion of the accused-appellants. In order to
have the benefit of the rule, a plaintiff, in addition to proving injury or
damage, must show a situation where it is applicable and must establish
that the essential elements of the doctrine were present in a particular
incident. The early treatment of the leg of Roy would have lessen his
suffering if not entirely relieve him from the fracture. A boy of tender age
whose leg was hit by a vehicle would engender a well-founded belief that
his condition may worsen without proper medical attention. As junior
residents who only practice general surgery and without specialization with
the case consulted before them, they should have referred the matter to a
specialist. This omission alone constitutes simple imprudence on their part.
When Mrs. Santiago insisted on having another x-ray of her child on the
upper part of his leg, they refused to do so. The mother would not have
asked them if they had no exclusive control or prerogative to request an xray test. Such is a fact because a radiologist would only conduct the x-ray
test upon request of a physician.
The testimony of Mrs. Santiago was corroborated by a bone specialist Dr.
Tacata. He further testified based on his personal knowledge, and not as an
expert, as he examined himself the child Roy. He testified as follows:
Fiscal Macapagal:
Q: And was that the correct respon[se] to the medical problem that was
presented to Dr. Jarcia and Dra. Bastan?
A: I would say at that stage, yes. Because they have presented the patient
and the history. "At sabi nila, nadaanan lang po ito." And then, considering
their year of residency they are still junior residents, and they are not also
orthopedic residents but general surgery residents, its entirely different
thing. Because if you are an orthopedic resident, I am not trying to say
but if I were an orthopedic resident, there would be more precise and
accurate decision compare to a general surgery resident in so far as
involved.
Q: You mean to say there is no supervisor attending the emergency room?
A: At the emergency room, at the Manila Doctors Hospital, the supervisor
there is a consultant that usually comes from a family medicine. They see
where a certain patient have to go and then if they cannot manage it, they
refer it to the consultant on duty. Now at that time, I dont [know] why they
dont.Because at that time, I think, it is the decision. Since the x-rays.

Ordinarily, only physicians and surgeons of skill and experience are

competent to testify as to whether a patient has been treated or operated
upon with a reasonable degree of skill and care. However, testimony as to
the statements and acts of physicians, external appearances, and manifest
conditions which are observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is applicable, the
court is permitted to find a physician negligent upon proper proof of injury
to the patient, without the aid of expert testimony, where the court from its
fund of common knowledge can determine the proper standard of care.
Where common knowledge and experience teach that a resulting injury
would not have occurred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred. In
the case at bench, we give credence to the testimony of Mrs. Santiago by
applying the doctrine of res ipsa loquitur.
Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used
but a rule to be cautiously applied, depending upon the circumstances of
each case. It is generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not as such
as would ordinarily have followed if due care had been exercised. A
distinction must be made between the failure to secure results and the
occurrence of something more unusual and not ordinarily found if the
service or treatment rendered followed the usual procedure of those skilled
in that particular practice. The latter circumstance is the primordial issue
that confronted this Court and we find application of the doctrine of res
ipsa loquitur to be in order.
WHEREFORE, in view of the foregoing, the appeal in this case is hereby
DISMISSED and the assailed decision of the trial court finding accusedappellants guilty beyond reasonable doubt of simple imprudence resulting
in serious physical injuries is hereby AFFIRMED in toto.
SO ORDERED.8
The petitioners filed a motion for reconsideration, but it was denied by the
CA in its May 19, 2009 Resolution.
Hence, this petition.
The petitioners pray for the reversal of the decision of both the RTC and the
CA anchored on the following
GROUNDS1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE COURT
OF APPEALS ERRED IN NOT HOLDING THAT THE ACTUAL, DIRECT,
IMMEDIATE, AND PROXIMATE CAUSE OF THE PHYSICAL INJURY OF
THE PATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICH
REQUIRED MEDICAL ATTENDANCE FOR MORE THAN THIRTY (30)
DAYS AND INCAPACITATED HIM FROM PERFORMING HIS
CUSTOMARY DUTY DURING THE SAME PERIOD OF TIME, WAS THE
VEHICULAR ACCIDENT WHERE THE PATIENTS RIGHT LEG WAS HIT
BY A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO
SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION.
2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED

42

FACTS CLEARLY NEGATING PETITIONERS ALLEGED NEGLIGENCE OR

IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS
UNJUSTIFIABLY DISREGARDED THE OPINION OF THE
PROSECUTIONS EXPERT WITNESS, DR. CIRILO TACATA, THAT
PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE
COMPLAINED OF.
3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE
OF PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN XRAY EXAMINATION PROLONGED THE PAIN AND SUFFERING OF THE
PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN
CONTRARY TO, THE EVIDENCE ON RECORD.
4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED
PROLONGED PAIN AND SUFFERING, THE COURT OF APPEALS ERRED
IN NOT HOLDING THAT THE ALLEGED PAIN AND SUFFERING WERE
DUE TO THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A
NURSE HERSELF, TO IMMEDIATELY BRING THE PATIENT BACK TO
THE HOSPITAL, AS ADVISED BY THE PETITIONERS, AFTER HE
COMPLAINED OF SEVERE PAIN IN HIS RIGHT LEG WHEN HE
REACHED HOME AFTER HE WAS SEEN BY PETITIONERS AT THE
HOSPITAL. THUS, THE PATIENTS ALLEGED INJURY (PROLONGED
PAIN AND SUFFERING) WAS DUE TO HIS OWN MOTHERS ACT OR
OMISSION.
5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO
PHYSICIAN-PATIENT RELATIONSHIP EXISTED BETWEEN
PETITIONERS AND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS
NOT BEING THE LATTERS ATTENDING PHYSICIAN AS THEY WERE
MERELY REQUESTED BY THE EMERGENCY ROOM (ER) NURSE TO
SEE THE PATIENT WHILE THEY WERE PASSING BY THE ER FOR
THEIR LUNCH.
6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING
ACCUSED-PETITIONERS OF THE CRIME CHARGED."9
The foregoing can be synthesized into two basic issues: [1] whether or not
the doctrine of res ipsa loquitur is applicable in this case; and [2] whether
or not the petitioners are liable for criminal negligence.
THE COURTS RULING
The CA is correct in finding that there was negligence on the part of the
petitioners. After a perusal of the records, however, the Court is not
convinced that the petitioners are guilty of criminal negligence complained
of. The Court is also of the view that the CA erred in applying the doctrine
of res ipsa loquitur in this particular case.
As to the Application of The Doctrine of Res Ipsa Loquitur
This doctrine of res ipsa loquitur means "Where the thing which causes
injury is shown to be under the management of the defendant, and the
accident is such as in the ordinary course of things does not happen if
those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the
accident arose from want of care." The Black's Law Dictionary defines the
said doctrine. Thus:
The thing speaks for itself. Rebuttable presumption or inference that
defendant was negligent, which arises upon proof that the instrumentality

causing injury was in defendant's exclusive control, and that the accident
was one which ordinarily does not happen in absence of negligence. Res
ipsa loquitur is a rule of evidence whereby negligence of the alleged
wrongdoer may be inferred from the mere fact that the accident happened
provided the character of the accident and circumstances attending it lead
reasonably to belief that in the absence of negligence it would not have
occurred and that thing which caused injury is shown to have been under
the management and control of the alleged wrongdoer. Under this
doctrine, the happening of an injury permits an inference of negligence
where plaintiff produces substantial evidence that the injury was caused by
an agency or instrumentality under the exclusive control and management
of defendant, and that the occurrence was such that in the ordinary course
of things would not happen if reasonable care had been used. 10
The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law
of negligence which recognizes that prima facie negligence may be
established without direct proof and furnishes a substitute for specific proof
of negligence. The doctrine, however, is not a rule of substantive law, but
merely a mode of proof or a mere procedural convenience. The rule, when
applicable to the facts and circumstances of a given case, is not meant to
and does not dispense with the requirement of proof of culpable
negligence on the party charged. It merely determines and regulates what
shall be prima facie evidence thereof and helps the plaintiff in proving a
breach of the duty. The doctrine can be invoked when and only when,
under the circumstances involved, direct evidence is absent and not
readily available.11
The requisites for the application of the doctrine of res ipsa loquitur are: (1)
the accident was of a kind which does not ordinarily occur unless someone
is negligent; (2) the instrumentality or agency which caused the injury was
under the exclusive control of the person in charge; and (3) the injury
suffered must not have been due to any voluntary action or contribution of
the person injured.12
In this case, the circumstances that caused patient Roy Jr.s injury and the
series of tests that were supposed to be undergone by him to determine
the extent of the injury suffered were not under the exclusive control of
Drs. Jarcia and Bastan. It was established that they are mere residents of
the Manila Doctors Hospital at that time who attended to the victim at the
emergency room.13 While it may be true that the circumstances pointed
out by the courts below seem doubtless to constitute reckless imprudence
on the part of the petitioners, this conclusion is still best achieved, not
through the scholarly assumptions of a layman like the patients mother,
but by the unquestionable knowledge of expert witness/es. As to whether
the petitioners have exercised the requisite degree of skill and care in
treating patient Roy, Jr. is generally a matter of expert opinion.
As to Dr. Jarcia and Dr. Bastans negligence
The totality of the evidence on record clearly points to the negligence of
the petitioners. At the risk of being repetitious, the Court, however, is not
satisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this case.
Negligence is defined as the failure to observe for the protection of the
interests of another person that degree of care, precaution, and vigilance
which the circumstances justly demand, whereby such other person suffers

43

injury.14
Reckless imprudence consists of voluntarily doing or failing to do, without
malice, an act from which material damage results by reason of an
inexcusable lack of precaution on the part of the person performing or
failing to perform such act.15
The elements of simple negligence are: (1) that there is lack of precaution
on the part of the offender, and (2) that the damage impending to be
caused is not immediate or the danger is not clearly manifest. 16
In this case, the Court is not convinced with moral certainty that the
petitioners are guilty of reckless imprudence or simple negligence. The
elements thereof were not proved by the prosecution beyond reasonable
doubt.
The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric
orthopedic, although pointing to some medical procedures that could have
been done by Dr. Jarcia and Dr. Bastan, as physicians on duty, was not
clear as to whether the injuries suffered by patient Roy Jr. were indeed
aggravated by the petitioners judgment call and their diagnosis or
appreciation of the condition of the victim at the time they assessed him.
Thus:
Q: Will you please tell us, for the record, doctor, what is your
specialization?
A: At present I am the chairman department of orthopedic in UP-PGH and I
had special training in pediatric orthopedic for two (2) years.
Q: In June 1998, doctor, what was your position and what was your
specialization at that time?
A: Since 1980, I have been specialist in pediatric orthopedic.
Q: When Alfonso Santiago, Jr. was brought to you by his mother, what did
you do by way of physicians as first step?
A: As usual, I examined the patient physically and, at that time as I have
said, the patient could not walk so I [began] to suspect that probably he
sustained a fracture as a result of a vehicular accident. So I examined the
patient at that time, the involved leg, I dont know if that is left or right, the
involved leg then was swollen and the patient could not walk, so I
requested for the x-ray of [the] lower leg.
Q: What part of the leg, doctor, did you request to be examined?
A: If we refer for an x-ray, usually, we suspect a fracture whether in
approximal, middle or lebistal tinial, we usually x-ray the entire extremity.
Q: And what was the result?
A: Well, I can say that it was a spiral fracture of the mid-tibial, it is the
bigger bone of the leg.
Q: And when you say spiral, doctor, how long was this fracture?
A: When we say spiral, it is a sort of letter S, the length was about six (6) to
eight (8) centimeters.
Q: Mid-tibial, will you please point to us, doctor, where the tibial is?
(Witness pointing to his lower leg)
A: The tibial is here, there are two bones here, the bigger one is the tibial
and the smaller one is the fibula. The bigger one is the one that get
fractured.
Q: And in the course of your examination of Alfonso Santiago, Jr. did you
ask for the history of such injury?

A: Yes, actually, that was a routine part of our examination that once a
patient comes in, before we actually examine the patient, we request for a
detailed history. If it is an accident, then, we request for the exact
mechanism of injuries.
Q: And as far as you can recall, Doctor, what was the history of that injury
that was told to you?
A: The patient was sideswiped, I dont know if it is a car, but it is a
vehicular accident.
Q: Who did you interview?
A: The mother.
Q: How about the child himself, Alfonso Santiago, Jr.?
A: Normally, we do not interview the child because, usually, at his age, the
answers are not accurate. So, it was the mother that I interviewed.
Q: And were you informed also of his early medication that was
administered on Alfonso Santiago, Jr.?
A: No, not actually medication. I was informed that this patient was seen
initially at the emergency room by the two (2) physicians that you just
mentioned, Dr. Jarcia and Dra. Bastan, that time who happened to be my
residents who were [on] duty at the emergency room.
xxxx
A: At the emergency room, at the Manila Doctors Hospital, the supervisor
there is a consultant that usually comes from a family medicine. They see
where a certain patient have to go and then if they cannot manage it, they
refer it to the consultant on duty. Now at that time, I dont why they dont
Because at that time, I think, it is the decision. Since the x-rays
xxx
Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an
orthopedic specialist.
A: They are general surgeon residents. You have to man[x] the
emergency room, including neurology, orthopedic, general
surgery, they see everything at the emergency room.
xxxx
Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at
the emergency room, you would have subjected the entire foot to x-ray
even if the history that was given to Dr. Jarcia and Dra. Bastan is the same?
A: I could not directly say yes, because it would still depend on my
examination, we cannot subject the whole body for x-ray if we think that
the damaged was only the leg.
Q: Not the entire body but the entire leg?
A: I think, if my examination requires it, I would.
Q: So, you would conduct first an examination?
A: Yes, sir.
Q: And do you think that with that examination that you would have
conducted you would discover the necessity subjecting the entire foot for
x-ray?
A: It is also possible but according to them, the foot and the ankle were
swollen and not the leg, which sometimes normally happens that the
actual fractured bone do not get swollen.
xxxx
Q: Doctor, if you know that the patient sustained a fracture on the

44

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

his mother that everything was all right.

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

45

criminally, liable as the facts show.

Article II, Section 1 of the Code of Medical Ethics of the Medical Profession
in the Philippines states:
A physician should attend to his patients faithfully and conscientiously. He
should secure for them all possible benefits that may depend upon his
professional skill and care. As the sole tribunal to adjudge the physicians
failure to fulfill his obligation to his patients is, in most cases, his own
conscience, violation of this rule on his part is discreditable and
inexcusable.22
Established medical procedures and practices, though in constant
instability, are devised for the purpose of preventing complications. In this
case, the petitioners failed to observe the most prudent medical procedure
under the circumstances to prevent the complications suffered by a child
of tender age.
As to the Award of Damages
While no criminal negligence was found in the petitioners failure to
administer the necessary medical attention to Roy Jr., the Court holds them
civilly liable for the resulting damages to their patient. While it was the taxi
driver who ran over the foot or leg of Roy Jr., their negligence was
doubtless contributory.
It appears undisputed that the amount of P 3,850.00, as expenses incurred
by patient Roy Jr., was adequately supported by receipts. The Court,
therefore, finds the petitioners liable to pay this amount by way of actual
damages.
The Court is aware that no amount of compassion can suffice to ease the
sorrow felt by the family of the child at that time. Certainly, the award of
moral and exemplary damages in favor of Roy Jr. in the amount of P
100,000.00 and P 50,000.00, respectively, is proper in this case.
It is settled that moral damages are not punitive in nature, but are
designed to compensate and alleviate in some way the physical suffering,
mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury unjustly
inflicted on a person. Intended for the restoration of the psychological or
emotional status quo ante, the award of moral damages is designed to
compensate emotional injury suffered, not to impose a penalty on the
wrongdoer.23
The Court, likewise, finds the petitioners also liable for exemplary damages
in the said amount.1wphi1 Article 2229 of the Civil Code provides that
exemplary damages may be imposed by way of example or correction for
the public good.
WHEREFORE, the petition is PARTLY GRANTED. The Decision of the
Court of Appeals dated August 29, 2008 is REVERSED and SET ASIDE. A
new judgment is entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr.
Marilou Bastan of the crime of reckless imprudence resulting to serious
physical injuries but declaring them civilly liable in the amounts of:
(1) P 3,850.00 as actual damages;
(2) P 100,000.00 as moral damages;
(3) P 50,000.00 as exemplary damages; and
(4) Costs of the suit.
with interest at the rate of 6% per annum from the date of the filing of the

Information. The rate shall be 12% interest per annum from the finality of
judgment until fully paid.
SO ORDERED.
FIRST DIVISION
G.R. No. 192123
March 10, 2014
DR. FERNANDO P. SOLIDUM, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BERSAMIN, J.:
This appeal is taken by a physician-anesthesiologist who has been
pronounced guilty of reckless imprudence resulting in serious physical
injuries by the Regional Trial Court (RTC) and the Court of Appeals (CA). He
had been part of the team of anesthesiologists during the surgical pullthrough operation conducted on a three-year old patient born with an
imperforate anus.1
The antecedents are as follows:
Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an
imperforate anus. Two days after his birth, Gerald underwent colostomy, a
surgical procedure to bring one end of the large intestine out through the
abdominal wall,3 enabling him to excrete through a colostomy bag
attached to the side of his body.4
On May 17, 1995, Gerald, then three years old, was admitted at the Ospital
ng Maynila for a pull-through operation.5 Dr. Leandro Resurreccion headed
the surgical team, and was assisted by Dr. Joselito Luceo, Dr. Donatella
Valea and Dr. Joseph Tibio. The anesthesiologists included Dr. Marichu
Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr. Solidum). 6
During the operation, Gerald experienced bradycardia,7 and went into a
coma.8 His coma lasted for two weeks,9 but he regained consciousness only
after a month.10 He could no longer see, hear or move.11
Agitated by her sons helpless and unexpected condition, Ma. Luz Gercayo
(Luz) lodged a complaint for reckless imprudence resulting in serious
physical injuries with the City Prosecutors Office of Manila against the
attending physicians.12
Upon a finding of probable cause, the City Prosecutors Office filed an
information solely against Dr. Solidum,13 alleging:
That on or about May 17, 1995, in the City of Manila, Philippines, the said
accused, being then an anesthesiologist at the Ospital ng Maynila, Malate,
this City, and as such was tasked to administer the anesthesia on threeyear old baby boy GERALD ALBERT GERCAYO, represented by his mother,
MA. LUZ GERCAYO, the former having been born with an imperforate anus
[no anal opening] and was to undergo an operation for anal opening [pull
through operation], did then and there willfully, unlawfully and feloniously
fail and neglect to use the care and diligence as the best of his judgment
would dictate under said circumstance, by failing to monitor and regulate
properly the levels of anesthesia administered to said GERALD ALBERT
GERCAYO and using 100% halothane and other anesthetic medications,
causing as a consequence of his said carelessness and negligence, said

46

GERALD ALBERT GERCAYO suffered a cardiac arrest and consequently a

defect called hypoxic encephalopathy meaning insufficient oxygen supply
in the brain, thereby rendering said GERALD ALBERT GERCAYO incapable of
moving his body, seeing, speaking or hearing, to his damage and
prejudice.
Contrary to law.14
The case was initially filed in the Metropolitan Trial Court of Manila, but was
transferred to the RTC pursuant to Section 5 of Republic Act No. 8369 (The
Family Courts Act of 1997),15 where it was docketed as Criminal Case No.
01-190889.
Judgment of the RTC
On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty
beyond reasonable doubt of reckless imprudence resulting to serious
physical injuries,16 decreeing:
WHEREFORE, premises considered, the Court finds accused DR. FERNANDO
P. SOLIDUM GUILTY beyond reasonable doubt as principal of the crime
charged and is hereby sentenced to suffer the indeterminate penalty of
TWO (2) MONTHS and ONE (1) DAY of arresto mayor as minimum to ONE
(1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision correccional as
maximum and to indemnify, jointly and severally with the Ospital ng
Maynila, Dr. Anita So and Dr. Marichu Abella, private complainant Luz
Gercayo, the amount of P500,000.00 as moral damages and P100,000.00
as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is
hereby CANCELLED.
SO ORDERED.17
Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their
solidary liability,18 the RTC excluded them from solidary liability as to the
damages, modifying its decision as follows:
WHEREFORE, premises considered, the Court finds accused Dr. Fernando
Solidum, guilty beyond reasonable doubt as principal of the crime charged
and is hereby sentenced to suffer the indeterminate penalty of two (2)
months and one (1) day of arresto mayor as minimum to one (1) year, one
(1) month and ten (10) days of prision correccional as maximum and to
indemnify jointly and severally with Ospital ng Maynila, private
complainant Luz Gercayo the amount of P500,000.00 as moral damages
and P100,000 as exemplary damages and to pay the costs.
Accordingly, the bond posted by the accused for his provisional liberty is
hereby cancelled.19
Decision of the CA
On January 20, 2010, the CA affirmed the conviction of Dr. Solidum, 20
pertinently stating and ruling:
The case appears to be a textbook example of res ipsa loquitur.
xxxx
x x x [P]rior to the operation, the child was evaluated and found fit to
undergo a major operation. As noted by the OSG, the accused himself
testified that pre-operation tests were conducted to ensure that the child
could withstand the surgery. Except for his imperforate anus, the child was
healthy. The tests and other procedures failed to reveal that he was
suffering from any known ailment or disability that could turn into a

significant risk. There was not a hint that the nature of the operation itself
was a causative factor in the events that finally led to hypoxia.
In short, the lower court has been left with no reasonable hypothesis
except to attribute the accident to a failure in the proper administration of
anesthesia, the gravamen of the charge in this case. The High Court
elucidates in Ramos vs. Court of Appeals 321 SCRA 584
In cases where the res ipsa loquitur is applicable, the court is permitted to
find a physician negligent upon proper proof of injury to the patient,
without the aid of expert testimony, where the court from its fund of
common knowledge can determine the proper standard of care.
Where common knowledge and experience teach that a resulting injury
would not have occurred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an application of the
doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred.
When the doctrine is appropriate, all that the patient must do is prove a
nexus between the particular act or omission complained of and the injury
sustained while under the custody and management of the defendant
without need to produce expert medical testimony to establish the
standard of care. Resort to res ipsa loquitur is allowed because there is no
other way, under usual and ordinary conditions, by which the patient can
obtain redress for injury suffered by him.
The lower court has found that such a nexus exists between the act
complained of and the injury sustained, and in line with the hornbook rules
on evidence, we will afford the factual findings of a trial court the respect
they deserve in the absence of a showing of arbitrariness or disregard of
material facts that might affect the disposition of the case. People v.
Paraiso 349 SCRA 335.
The res ipsa loquitur test has been known to be applied in criminal cases.
Although it creates a presumption of negligence, it need not offend due
process, as long as the accused is afforded the opportunity to go forward
with his own evidence and prove that he has no criminal intent. It is in this
light not inconsistent with the constitutional presumption of innocence of
an accused.
IN VIEW OF THE FOREGOING, the modified decision of the lower court is
affirmed.
SO ORDERED.21
Dr. Solidum filed a motion for reconsideration, but the CA denied his
motion on May 7, 2010.22
Hence, this appeal.
Issues
Dr. Solidum avers that:
I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION
OF THE LOWER COURT IN UPHOLDING THE PETITIONERS CONVICTION FOR
THE CRIME CHARGED BASED ON THE TRIAL COURTS OPINION, AND NOT
ON THE BASIS OF THE FACTS ESTABLISHED DURING THE TRIAL. ALSO,
THERE IS A CLEAR MISAPPREHENSION OF FACTS WHICH IF CORRECTED,
WILL RESULT TO THE ACQUITTAL OF THE PETITIONER. FURTHER, THE
HONORABLE COURT ERRED IN AFFIRMING THE SAID DECISION OF THE

47

LOWER COURT, AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT

THE PROSECUTION MUST PROVE THE ALLEGATIONS OF THE INFORMATION
BEYOND REASONABLE DOUBT, AND NOT ON THE BASIS OF ITS
PRESUMPTIVE CONCLUSION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE
OF RES IPSA LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE TO PROVE
THAT THERE IS NO NEGLIGENCE ON THE PART OF THE PETITIONER, AND NO
OVERDOSING IN THE APPLICATION OF THE ANESTHETIC AGENT BECAUSE
THERE WAS NO 100% HALOTHANE ADMINISTERED TO THE CHILD, BUT
ONLY ONE (1%) PERCENT AND THE APPLICATION THEREOF, WAS
REGULATED BY AN ANESTHESIA MACHINE. THUS, THE APPLICATION OF THE
PRINCIPLE OF RES IPSA LOQUITOR (sic) CONTRADICTED THE ESTABLISHED
FACTS AND THE LAW APPLICABLE IN THE CASE.
III.
THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT
JUSTIFIED THERE BEING NO NEGLIGENCE ON THE PART OF THE
PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL
CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL ASSISTANCE,
BECAUSE THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF
ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE, AND NO
FACTUAL AND LEGAL BASIS.23
To simplify, the following are the issues for resolution, namely: (a) whether
or not the doctrine of res ipsa loquitur was applicable herein; and (b)
whether or not Dr. Solidum was liable for criminal negligence.
Ruling
The appeal is meritorious.
Applicability of the Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as "the thing or the transaction
speaks for itself." The doctrine res ipsa loquitur means that "where the
thing which causes injury is shown to be under the management of the
defendant, and the accident is such as in the ordinary course of things
does not happen if those who have the management use proper care, it
affords reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care." 24 It is simply "a
recognition of the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may justify an
inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some explanation by
the defendant who is charged with negligence. It is grounded in the
superior logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be deduced from the
mere occurrence of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with the doctrine of
common knowledge."25
Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of
substantive law, but merely a mode of proof or a mere procedural
convenience. The doctrine, when applicable to the facts and circumstances
of a given case, is not meant to and does not dispense with the
requirement of proof of culpable negligence against the party charged. It

merely determines and regulates what shall be prima facie evidence

thereof, and helps the plaintiff in proving a breach of the duty. The doctrine
can be invoked when and only when, under the circumstances involved,
direct evidence is absent and not readily available. 27
The applicability of the doctrine of res ipsa loquitur in medical negligence
cases was significantly and exhaustively explained in Ramos v. Court of
Appeals,28 where the Court said
Medical malpractice cases do not escape the application of this doctrine.
Thus, res ipsa loquitur has been applied when the circumstances attendant
upon the harm are themselves of such a character as to justify an
inference of negligence as the cause of that harm. The application of res
ipsa loquitur in medical negligence cases presents a question of law since
it is a judicial function to determine whether a certain set of circumstances
does, as a matter of law, permit a given inference.
Although generally, expert medical testimony is relied upon in malpractice
suits to prove that a physician has done a negligent act or that he has
deviated from the standard medical procedure, when the doctrine of res
ipsa loquitur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the proof of
negligence. The reason is that the general rule on the necessity of expert
testimony applies only to such matters clearly within the domain of
medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone familiar with
the facts. Ordinarily, only physicians and surgeons of skill and experience
are competent to testify as to whether a patient has been treated or
operated upon with a reasonable degree of skill and care. However,
testimony as to the statements and acts of physicians and surgeons,
external appearances, and manifest conditions which are observable by
any one may be given by non-expert witnesses. Hence, in cases where the
res ipsa loquitur is applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient, without the aid of
expert testimony, where the court from its fund of common knowledge can
determine the proper standard of care. Where common knowledge and
experience teach that a resulting injury would not have occurred to the
patient if due care had been exercised, an inference of negligence may be
drawn giving rise to an application of the doctrine of res ipsa loquitur
without medical evidence, which is ordinarily required to show not only
what occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained while
under the custody and management of the defendant without need to
produce expert medical testimony to establish the standard of care. Resort
to res ipsa loquitur is allowed because there is no other way, under usual
and ordinary conditions, by which the patient can obtain redress for injury
suffered by him.
Thus, courts of other jurisdictions have applied the doctrine in the following
situations: leaving of a foreign object in the body of the patient after an
operation, injuries sustained on a healthy part of the body which was not
under, or in the area, of treatment, removal of the wrong part of the body
when another part was intended, knocking out a tooth while a patients jaw

48

was under anesthetic for the removal of his tonsils, and loss of an eye
while the patient plaintiff was under the influence of anesthetic, during or
following an operation for appendicitis, among others.
Nevertheless, despite the fact that the scope of res ipsa loquitur has been
measurably enlarged, it does not automatically apply to all cases of
medical negligence as to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed negligence. Res ipsa
loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a
rule to be cautiously applied, depending upon the circumstances of each
case. It is generally restricted to situations in malpractice cases where a
layman is able to say, as a matter of common knowledge and observation,
that the consequences of professional care were not as such as would
ordinarily have followed if due care had been exercised. A distinction must
be made between the failure to secure results, and the occurrence of
something more unusual and not ordinarily found if the service or
treatment rendered followed the usual procedure of those skilled in that
particular practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or surgeon
which involves the merits of a diagnosis or of a scientific treatment. The
physician or surgeon is not required at his peril to explain why any
particular diagnosis was not correct, or why any particular scientific
treatment did not produce the desired result. Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the desired result
of an operation or treatment was not accomplished. The real question,
therefore, is whether or not in the process of the operation any
extraordinary incident or unusual event outside of the routine performance
occurred which is beyond the regular scope of customary professional
activity in such operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent cause or causes of
the untoward consequence. If there was such extraneous intervention, the
doctrine of res ipsa loquitur may be utilized and the defendant is called
upon to explain the matter, by evidence of exculpation, if he could.
In order to allow resort to the doctrine, therefore, the following essential
requisites must first be satisfied, to wit: (1) the accident was of a kind that
does not ordinarily occur unless someone is negligent; (2) the
instrumentality or agency that caused the injury was under the exclusive
control of the person charged; and (3) the injury suffered must not have
been due to any voluntary action or contribution of the person injured. 29
The Court considers the application here of the doctrine of res ipsa loquitur
inappropriate. Although it should be conceded without difficulty that the
second and third elements were present, considering that the anesthetic
agent and the instruments were exclusively within the control of Dr.
Solidum, and that the patient, being then unconscious during the
operation, could not have been guilty of contributory negligence, the first
element was undeniably wanting. Luz delivered Gerald to the care, custody
and control of his physicians for a pull-through operation. Except for the
imperforate anus, Gerald was then of sound body and mind at the time of
his submission to the physicians. Yet, he experienced bradycardia during
the operation, causing loss of his senses and rendering him immobile.
Hypoxia, or the insufficiency of oxygen supply to the brain that caused the

slowing of the heart rate, scientifically termed as bradycardia, would not

ordinarily occur in the process of a pull-through operation, or during the
administration of anesthesia to the patient, but such fact alone did not
prove that the negligence of any of his attending physicians, including the
anesthesiologists, had caused the injury. In fact, the anesthesiologists
attending to him had sensed in the course of the operation that the lack of
oxygen could have been triggered by the vago-vagal reflex, prompting
them to administer atropine to the patient.30
This conclusion is not unprecedented. It was similarly reached in Swanson
v. Brigham,31 relevant portions of the decision therein being as follows:
On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to
a hospital for the treatment of infectious mononucleosis. The patient's
symptoms had included a swollen throat and some breathing difficulty.
Early in the morning of January 9 the patient was restless, and at 1:30 a.m.
Dr. Brigham examined the patient. His inspection of the patient's air
passage revealed that it was in satisfactory condition. At 4:15 a.m. Dr.
Brigham received a telephone call from the hospital, advising him that the
patient was having respiratory difficulty. The doctor ordered that oxygen be
administered and he prepared to leave for the hospital. Ten minutes later,
4:25 a.m., the hospital called a second time to advise the doctor that the
patient was not responding. The doctor ordered that a medicine be
administered, and he departed for the hospital. When he arrived, the
physician who had been on call at the hospital had begun attempts to
revive the patient. Dr. Brigham joined him in the effort, but the patient
died.
The doctor who performed the autopsy concluded that the patient died
between 4:25 a.m. and 4:30 a.m. of asphyxia, as a result of a sudden,
acute closing of the air passage. He also found that the air passage had
been adequate to maintain life up to 2 or 3 minutes prior to death. He did
not know what caused the air passage to suddenly close.
xxxx
It is a rare occurrence when someone admitted to a hospital for the
treatment of infectious mononucleosis dies of asphyxiation. But that is not
sufficient to invoke res ipsa loquitur. The fact that the injury rarely occurs
does not in itself prove that the injury was probably caused by someone's
negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970). Nor
is a bad result by itself enough to warrant the application of the doctrine.
Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser,
The Negligence Case Res Ipsa Loquitur 24:10 (1972). The evidence
presented is insufficient to establish the first element necessary for
application of res ipsa loquitur doctrine. The acute closing of the patients
air passage and his resultant asphyxiation took place over a very short
period of time. Under these circumstances it would not be reasonable to
infer that the physician was negligent. There was no palpably negligent
act. The common experience of mankind does not suggest that death
would not be expected without negligence. And there is no expert medical
testimony to create an inference that negligence caused the injury.
Negligence of Dr. Solidum
In view of the inapplicability of the doctrine of res ipsa loquitur, the Court
next determines whether the CA correctly affirmed the conviction of Dr.

49

Solidum for criminal negligence.

Negligence is defined as the failure to observe for the protection of the
interests of another person that degree of care, precaution, and vigilance
that the circumstances justly demand, whereby such other person suffers
injury.32 Reckless imprudence, on the other hand, consists of voluntarily
doing or failing to do, without malice, an act from which material damage
results by reason of an inexcusable lack of precaution on the part of the
person performing or failing to perform such act.33
Dr. Solidums conviction by the RTC was primarily based on his failure to
monitor and properly regulate the level of anesthetic agent administered
on Gerald by overdosing at 100% halothane. In affirming the conviction,
the CA observed:
On the witness stand, Dr. Vertido made a significant turnaround. He
affirmed the findings and conclusions in his report except for an
observation which, to all intents and purposes, has become the storm
center of this dispute. He wanted to correct one piece of information
regarding the dosage of the anesthetic agent administered to the child. He
declared that he made a mistake in reporting a 100% halothane and said
that based on the records it should have been 100% oxygen.
The records he was relying on, as he explains, are the following:
(a) the anesthesia record A portion of the chart in the record was marked
as Exhibit 1-A and 1-B to indicate the administration at intervals of the
anesthetic agent.
(b) the clinical abstract A portion of this record that reads as follows was
marked Exhibit 3A. 3B Approximately 1 hour and 45 minutes through the
operation, patient was noted to have bradycardia (CR = 70) and ATSO4 0.2
mg was immediately administered. However, the bradycardia persisted,
the inhalational agent was shut off, and the patient was ventilated with
100% oxygen and another dose of ATSO4 0.2 mg was given. However, the
patient did not respond until no cardiac rate can be auscultated and the
surgeons were immediately told to stop the operation. The patient was put
on a supine position and CPR was initiated. Patient was given 1 amp of
epinephrine initially while continuously doing cardiac massage still with
no cardiac rate appreciated; another ampule of epinephrine was given and
after 45 secs, patients vital signs returned to normal. The entire
resuscitation lasted approximately 3-5 mins. The surgeons were then told
to proceed to the closure and the childs vital signs throughout and until
the end of surgery were: BP = 110/70; CR = 116/min and RR = 20-22
cycles/min (on assisted ventilation).
Dr. Vertido points to the crucial passage in the clinical abstract that the
patient was ventilated with 100% oxygen and another dose of ATSO4 when
the bradycardia persisted, but for one reason or another, he read it as
100% halothane. He was asked to read the anesthesia record on the
percentage of the dosage indicated, but he could only sheepishly note I
cant understand the number. There are no clues in the clinical abstract on
the quantity of the anesthetic agent used. It only contains the information
that the anesthetic plan was to put the patient under general anesthesia
using a nonrebreathing system with halothane as the sole anesthetic agent
and that 1 hour and 45 minutes after the operation began, bradycardia
occurred after which the inhalational agent was shut off and the patient

administered with 100% oxygen. It would be apparent that the 100%

oxygen that Dr. Vertido said should be read in lieu of 100% halothane was
the pure oxygen introduced after something went amiss in the operation
and the halothane itself was reduced or shut off.
The key question remains what was the quantity of halothane used
before bradycardia set in?
The implication of Dr. Vertidos admission is that there was no overdose of
the anesthetic agent, and the accused Dr. Solidum stakes his liberty and
reputation on this conclusion. He made the assurance that he gave his
patient the utmost medical care, never leaving the operating room except
for a few minutes to answer the call of nature but leaving behind the other
members of his team Drs. Abella and Razon to monitor the operation. He
insisted that he administered only a point 1% not 100% halothane,
receiving corroboration from Dr. Abella whose initial MA in the record
should be enough to show that she assisted in the operation and was
therefore conversant of the things that happened. She revealed that they
were using a machine that closely monitored the concentration of the
agent during the operation.
But most compelling is Dr. Solidums interpretation of the anesthesia
record itself, as he takes the bull by the horns, so to speak. In his affidavit,
he says, reading from the record, that the quantity of halothane used in
the operation is one percent (1%) delivered at time intervals of 15 minutes.
He studiedly mentions the concentration of halothane as reflected in the
anesthesia record (Annex D of the complaint-affidavit) is only one percent
(1%) The numbers indicated in 15 minute increments for halothane is an
indication that only 1% halothane is being delivered to the patient Gerard
Gercayo for his entire operation; The amount of halothane delivered in this
case which is only one percent cannot be summated because halothane is
constantly being rapidly eliminated by the body during the entire
operation.
xxxx
In finding the accused guilty, despite these explanations, the RTC argued
that the volte-face of Dr. Vertido on the question of the dosage of the
anesthetic used on the child would not really validate the non-guilt of the
anesthesiologist. Led to agree that the halothane used was not 100% as
initially believed, he was nonetheless unaware of the implications of the
change in his testimony. The court observed that Dr. Vertido had described
the condition of the child as hypoxia which is deprivation of oxygen, a
diagnosis supported by the results of the CT Scan. All the symptoms
attributed to a failing central nervous system such as stupor, loss of
consciousness, decrease in heart rate, loss of usual acuity and abnormal
motor function, are manifestations of this condition or syndrome. But why
would there be deprivation of oxygen if 100% oxygen to 1% halothane was
used? Ultimately, to the court, whether oxygen or halothane was the object
of mistake, the detrimental effects of the operation are incontestable, and
they can only be led to one conclusion if the application of anesthesia
was really closely monitored, the event could not have happened. 34
The Prosecution did not prove the elements of reckless imprudence beyond
reasonable doubt because the circumstances cited by the CA were
insufficient to establish that Dr. Solidum had been guilty of inexcusable

50

lack of precaution in monitoring the administration of the anesthetic agent

to Gerald. The Court aptly explained in Cruz v. Court of Appeals 35 that:
Whether or not a physician has committed an "inexcusable lack of
precaution" in the treatment of his patient is to be determined according to
the standard of care observed by other members of the profession in good
standing under similar circumstances bearing in mind the advanced state
of the profession at the time of treatment or the present state of medical
science. In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et.
al., this Court stated that in accepting a case, a doctor in effect represents
that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care
and skill in the treatment of his patients. He therefore has a duty to use at
least the same level of care that any other reasonably competent doctor
would use to treat a condition under the same circumstances. It is in this
aspect of medical malpractice that expert testimony is essential to
establish not only the standard of care of the profession but also that the
physician's conduct in the treatment and care falls below such standard.
Further, inasmuch as the causes of the injuries involved in malpractice
actions are determinable only in the light of scientific knowledge, it has
been recognized that expert testimony is usually necessary to support the
conclusion as to causation.
xxxx
In litigations involving medical negligence, the plaintiff has the burden of
establishing appellant's negligence and for a reasonable conclusion of
negligence, there must be proof of breach of duty on the part of the
surgeon as well as a causal connection of such breach and the resulting
death of his patient. In Chan Lugay v. St Luke's Hospital, Inc., where the
attending physician was absolved of liability for the death of the
complainants wife and newborn baby, this Court held that:
"In order that there may be a recovery for an injury, however, it must be
shown that the injury for which recovery is sought must be the legitimate
consequence of the wrong done; the connection between the negligence
and the injury must be a direct and natural sequence of events, unbroken
by intervening efficient causes. In other words, the negligence must be
the proximate cause of the injury. For, negligence, no matter in what it
consists, cannot create a right of action unless it is the proximate cause of
the injury complained of. And the proximate cause of an injury is that
cause, which, in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and without which the
result would not have occurred."
An action upon medical negligence whether criminal, civil or
administrative calls for the plaintiff to prove by competent evidence each
of the following four elements, namely: (a) the duty owed by the physician
to the patient, as created by the physician-patient relationship, to act in
accordance with the specific norms or standards established by his
profession; (b) the breach of the duty by the physicians failing to act in
accordance with the applicable standard of care; (3) the causation, i.e.,
there must be a reasonably close and causal connection between the
negligent act or omission and the resulting injury; and (4) the damages
suffered by the patient.36

In the medical profession, specific norms or standards to protect the

patient against unreasonable risk, commonly referred to as standards of
care, set the duty of the physician to act in respect of the patient.
Unfortunately, no clear definition of the duty of a particular physician in a
particular case exists. Because most medical malpractice cases are highly
technical, witnesses with special medical qualifications must provide
guidance by giving the knowledge necessary to render a fair and just
verdict. As a result, the standard of medical care of a prudent physician
must be determined from expert testimony in most cases; and in the case
of a specialist (like an anesthesiologist), the standard of care by which the
specialist is judged is the care and skill commonly possessed and exercised
by similar specialists under similar circumstances. The specialty standard
of care may be higher than that required of the general practitioner. 37
The standard of care is an objective standard by which the conduct of a
physician sued for negligence or malpractice may be measured, and it
does not depend, therefore, on any individual physicians own knowledge
either. In attempting to fix a standard by which a court may determine
whether the physician has properly performed the requisite duty toward
the patient, expert medical testimony from both plaintiff and defense
experts is required. The judge, as the trier of fact, ultimately determines
the standard of care, after listening to the testimony of all medical
experts.38
Here, the Prosecution presented no witnesses with special medical
qualifications in anesthesia to provide guidance to the trial court on what
standard of care was applicable. It would consequently be truly difficult, if
not impossible, to determine whether the first three elements of a
negligence and malpractice action were attendant.
Although the Prosecution presented Dr. Benigno Sulit, Jr., an
anesthesiologist himself who served as the Chairman of the Committee on
Ethics and Malpractice of the Philippine Society of Anesthesiologists that
investigated the complaint against Dr. Solidum, his testimony mainly
focused on how his Committee had conducted the investigation. 39 Even
then, the report of his Committee was favorable to Dr. Solidum, 40 to wit:
Presented for review by this committee is the case of a 3 year old male
who underwent a pull-thru operation and was administered general
anesthesia by a team of anesthesia residents. The patient, at the time
when the surgeons was manipulating the recto-sigmoid and pulling it down
in preparation for the anastomosis, had bradycardia. The anesthesiologists,
sensing that the cause thereof was the triggering of the vago-vagal reflex,
administered atropine to block it but despite the administration of the drug
in two doses, cardiac arrest ensued. As the records show, prompt
resuscitative measures were administered and spontaneous cardiac
function re-established in less than five (5) minutes and that oxygen was
continuously being administered throughout, unfortunately, as later
become manifest, patient suffered permanent irreversible brain damage.
In view of the actuations of the anaesthesiologists and the administration
of anaesthesia, the committee find that the same were all in accordance
with the universally accepted standards of medical care and there is no
evidence of any fault or negligence on the part of the anaesthesiologists.
Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of

51

Investigation, was also presented as a Prosecution witness, but his

testimony concentrated on the results of the physical examination he had
conducted on Gerald, as borne out by the following portions of his direct
examination, to wit:
FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?
WITNESS General Anesthetic Agent is a substance used in the conduction
of Anesthesia and in this case, halothane was used as a sole anesthetic
agent.
xxxx
Q Now under paragraph two of page 1 of your report you mentioned that
after one hour and 45 minutes after the operation, the patient experienced
a bradycardia or slowing of heart rate, now as a doctor, would you be able
to tell this Honorable Court as to what cause of the slowing of heart rate as
to Gerald Gercayo?
WITNESS Well honestly sir, I cannot give you the reason why there was a
bradycardia of time because is some reason one way or another that might
caused bradycardia.
FISCAL CABARON What could be the possible reason?
A Well bradycardia can be caused by anesthetic agent itself and that is a
possibility, were talking about possibility here.
Q What other possibility do you have in mind, doctor?
A Well, because it was an operation, anything can happen within that
situation.
FISCAL CABARON Now, this representation would like to ask you about the
slowing of heart rate, now what is the immediate cause of the slowing of
the heart rate of a person?
WITNESS Well, one of the more practical reason why there is slowing of the
heart rate is when you do a vagal reflex in the neck wherein the vagal
receptors are located at the lateral part of the neck, when you press that,
you produce the slowing of the heart rate that produce bradycardia.
Q I am pro[p]ounding to you another question doctor, what about the
deficiency in the supply of oxygen by the patient, would that also cause
the slowing of the heart rate?
A Well that is a possibility sir, I mean not as slowing of the heart rate, if
there is a hypoxia or there is a low oxygen level in the blood, the normal
thing for the heart is to pump or to do not a bradycardia but a to counter
act the Hypoxia that is being experienced by the patient
(sic).
xxxx
Q Now, you made mention also doctor that the use of general anesthesia
using 100% halothane and other anesthetic medications probably were
contributory to the production of hypoxia.
A Yes, sir in general sir.41
On cross-examination, Dr. Vertido expounded more specifically on his
interpretation of the anesthesia record and the factors that could have
caused Gerald to experience bradycardia, viz:
ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you
kindly read to this Honorable court your last paragraph and if you will
affirm that as if it is correct?
A "The use of General Anesthesia, that is using 100% Halothane probably

will be contributory to the production of Hypoxia and - - - -"

ATTY COMIA And do you affirm the figure you mentioned in this Court
Doctor?
WITNESS Based on the records, I know the - - Q 100%?
A 100% based on the records.
Q I will show you doctor a clinical record. I am a lawyer I am not a doctor
but will you kindly look at this and tell me where is 100%, the word "one
hundred" or 1-0-0, will you kindly look at this Doctor, this Xerox copy if you
can show to this Honorable Court and even to this representation the word
"one hundred" or 1-0-0 and then call me.
xxxx
ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if
there is, you just call me and even the attention of the Presiding Judge of
this Court. Okay, you read one by one.
WITNESS Well, are you only asking 100%, sir?
ATTY. COMIA Im asking you, just answer my question, did you see there
100% and 100 figures, tell me, yes or no?
WITNESS Im trying to look at the 100%, there is no 100% there sir.
ATTY. COMIA Okay, that was good, so you Honor please, may we request
also temporarily, because this is just a xerox copy presented by the fiscal,
that the percentage here that the Halothane administered by Dr. Solidum
to the patient is 1% only so may we request that this portion, temporarily
your Honor, we are marking this anesthesia record as our Exhibit 1 and
then this 1% Halothane also be bracketed and the same be marked as our
Exhibit "1-A".
xxxx
ATTY. COMIA Doctor, my attention was called also when you said that there
are so many factors that contributed to Hypoxia is that correct?
WITNESS Yes, sir.
Q I remember doctor, according to you there are so many factors that
contributed to what you call hypoxia and according to you, when this
Gerald suffered hypoxia, there are other factors that might lead to this
Hypoxia at the time of this operation is that correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of such other, some or it
might be due to operations being conducted by the doctor at the time
when the operation is being done might also contribute to that hypoxia is
that correct?
A That is a possibility also.
xxxx
ATTY. COMIA How will you classify now the operation conducted to this
Gerald, Doctor?
WITNESS Well, that is a major operation sir.
Q In other words, when you say major operation conducted to this Gerald,
there is a possibility that this Gerald might [be] exposed to some risk is
that correct?
A That is a possibility sir.
Q And which according to you that Gerald suffered hypoxia is that correct?
A Yes, sir.

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

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

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