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,
[3]
Hippocrates 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 whitish-yellow discharge inside, an ovarian cyst on each
of the left and right ovaries which gave out pus, dirt and pus
behind the uterus, and a piece of rubber materials on the right
side of the uterus embedded on [sic] the ovarian cyst, 2 inches
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 first-hand 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. Wellsettled 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,[41] in particular.

DECISION

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.

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:

Costs against the petitioners.

SO ORDERED.
Narvasa,
C.J.,
(Chairman),
Francisco, and Panganiban, JJ., concur.

Melo,

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.

ROMERO, J.:

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 GarciaRueda, 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 reraffled 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.

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.

The City Prosecutors were charged with violating Section 3(e)

of the Anti-Graft and Corrupt Practices Act which requires the
following facts:

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.

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?

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:

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.
Regalado, (Chairman),
JJ., concur.

Puno,

Mendoza, and Torres,

Jr.,

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:

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 forcholecystectomy.[2]

Plaintiff Erlinda Ramos was, until the afternoon of June 17,

1985, a 47-year old (Exh. A) robust woman (TSN, October 19,
1989, p. 10). Except for occasional complaints of discomfort
due to pains allegedly caused by the presence of a stone in her
gall bladder (TSN, January 13, 1988, pp. 4-5), she was as
normal as any other woman. Married to Rogelio E. Ramos, an
executive of Philippine Long Distance Telephone Company,
she has three children whose names are Rommel Ramos, Roy
Roderick Ramos and Ron Raymond Ramos (TSN, October 19,
1989, pp. 5-6).
Because the discomforts somehow interfered with her normal
ways, she sought professional advice. She was advised to
undergo an operation for the removal of a stone in her gall
bladder (TSN, January 13, 1988, p. 5). She underwent a series
of examinations which included blood and urine tests (Exhs. A
and C) which indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje
(TSN, January 13, 1988, p. 7), she and her husband Rogelio
met for the first time Dr. Orlino Hozaka (should be Hosaka; see
TSN, February 20, 1990, p. 3), one of the defendants in this
case, on June 10, 1985. They agreed that their date at the
operating table at the DLSMC (another defendant), would be

on June 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she
should undergo a cholecystectomy operation after examining
the documents (findings from the Capitol Medical Center, FEU
Hospital and DLSMC) presented to him. Rogelio E. Ramos,
however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he
will get a good anesthesiologist. Dr. Hosaka charged a fee
of P16,000.00, which was to include the anesthesiologists fee
and which was to be paid after the operation (TSN, October 19,
1989, pp. 14-15, 22-23, 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. 1920). He also thought of the feeling of his wife, who was inside
the operating room waiting for the doctor to arrive (ibid.). At
almost 12:00 noon, he met Dr. Garcia who remarked that he
(Dr. Garcia) was also tired of waiting for Dr. Hosaka to arrive
(id., p. 21). While talking to Dr. Garcia at around 12:10 P.M.,
he came to know that Dr. Hosaka arrived as a nurse remarked,
Nandiyan na si Dr. Hosaka, dumating na raw. Upon hearing
those words, he went down to the lobby and waited for the
operation to be completed (id., pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the
operating room with the patient, heard somebody say that Dr.
Hosaka is already here. She then saw people inside the
operating room moving, doing this and that, [and] preparing
the patient for the operation (TSN, January 13, 1988, p. 16). As

she held the hand of Erlinda Ramos, she then saw Dr. Gutierrez
intubating the hapless patient. She thereafter heard Dr.
Gutierrez say, ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan (id., p. 17). Because of the
remarks of Dra. Gutierrez, she focused her attention on what
Dr. Gutierrez was doing. She thereafter noticed bluish
discoloration of the nailbeds of the left hand of the hapless
Erlinda even as Dr. Hosaka approached her. She then heard Dr.
Hosaka issue an order for someone to call Dr. Calderon,
another anesthesiologist (id., p. 19). After Dr. Calderon arrived
at the operating room, she saw this anesthesiologist trying to
intubate the patient. The patients nailbed became bluish and the
patient was placed in a trendelenburg position - a position
where the head of the patient is placed in a position lower than
her feet which is an indication that there is a decrease of blood
supply to the patients brain (Id., pp. 19-20). Immediately
thereafter, she went out of the operating room, and she told
Rogelio E. Ramos that something wrong was x x x happening
(Ibid.). Dr. Calderon was then able to intubate the patient
(TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw
a respiratory machine being rushed towards the door of the
operating room. He also saw several doctors rushing towards
the operating room.When informed by Herminda Cruz that
something wrong was happening, he told her (Herminda) to be
back with the patient inside the operating room (TSN, October
19, 1989, pp. 25-28).
Herminda Cruz immediately rushed back, and saw that the
patient was still in trendelenburg position (TSN, January 13,
1988, p. 20). At almost 3:00 P.M. of that fateful day, she saw
the patient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk

to Dr. Hosaka. The latter informed the former that something
went wrong during the intubation. Reacting to what was told to
him, Rogelio reminded the doctor that the condition of his wife
would not have happened, had he (Dr. Hosaka) looked for a
good anesthesiologist (TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital
to explain what happened to the patient. The doctors explained
that the patient had bronchospasm (TSN, November 15, 1990,
pp. 26-27).
Erlinda Ramos stayed at the ICU for a month. About four
months thereafter or on November 15, 1985, the patient was
released from the hospital.
During the whole period of her confinement, she incurred
hospital bills amounting to P93,542.25 which is the subject of a
promissory note and affidavit of undertaking executed by
Rogelio E. Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a comatose
condition. She cannot do anything. She cannot move any part
of her body. She cannot see or hear. She is living on
mechanical means. She suffered brain damage as a result of the
absence of oxygen in her brain for four to five minutes (TSN,
November 9, 1989, pp. 21-22). After being discharged from the
hospital, she has been staying in their residence, still needing
constant medical attention, with her husband Rogelio incurring
a monthly expense ranging 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 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
Reconsideration,

admissibility of
but
after

the Motion
considering

for
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.

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 isapplied in conjunction with the doctrine of common
knowledge.

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.

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:

Res ipsa loquitur is a Latin phrase which literally means the

thing or the transaction speaks for itself. The phrase res ipsa
loquitur is a maxim for the rule that the fact of the occurrence
of an injury, taken with the surrounding circumstances, may
permit an inference or raise a presumption of negligence, or
make out a plaintiffs prima facie case, and present a question
of fact for defendant to meet with an explanation.[13] Where the
thing which caused the injury complained of is shown to be
under the management of the defendant or his servants and the
accident is such as in ordinary course of things does not happen
if those who have its management or control use proper care, it
affords reasonable evidence, in the absence of explanation by
the defendant, that the accident arose from or was caused by
the defendants want of care.[14]
The doctrine of res ipsa loquitur is simply a recognition of the
postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may
justify an inference of negligence on the part of the person who
controls the instrumentality causing the injury in the absence of
some explanation by the defendant who is charged with

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
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 physicians-in-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 that the brain damage sustained by Erlinda was
not caused by the alleged faulty intubation but was due to the
allergic reaction of the patient to the drug Thiopental Sodium
(Pentothal), a short-acting barbiturate, as testified on by their
expert witness, Dr. Jamora. On the other hand, the appellate
court rejected the testimony of Dean Herminda Cruz offered in
favor of petitioners that the cause of the brain injury was
traceable to the wrongful insertion of the tube since the latter,
being a nurse, was allegedly not knowledgeable in the process
of intubation. In so holding, the appellate court returned a
verdict in favor of respondents physicians and hospital and
absolved them of any liability towards Erlinda and her family.
We disagree with the findings of the Court of Appeals. We hold
that private respondents were unable to disprove the
presumption of negligence on their part in the care of Erlinda
and their negligence was the proximate cause of her piteous
condition.
In the instant case, the records are helpful in furnishing not
only the logical scientific evidence of the pathogenesis of the
injury but also in providing the Court the legal nexus upon
which liability is based. As will be shown hereinafter, private
respondents own testimonies which are reflected in the
transcript of stenographic notes are replete of signposts

indicative of their negligence in the care and management of

Erlinda.
With regard to Dra. Gutierrez, we find her negligent in the care
of Erlinda during the anesthesia phase. As borne by the
records, respondent Dra. Gutierrez failed to properly intubate
the patient. This fact was attested to by Prof. Herminda Cruz,
Dean of the Capitol Medical Center School of Nursing and
petitioner's sister-in-law, who was in the operating room right
beside the patient when the tragic event occurred. Witness Cruz
testified to this effect:
ATTY. PAJARES:
Q: In particular, what did Dra. Perfecta Gutierrez do, if any on
the patient?
A: In particular, I could see that she was intubating the patient.
Q: Do you know what happened to that intubation process
administered by Dra. Gutierrez?
ATTY. ALCERA:
She will be incompetent Your Honor.
COURT:
Witness may answer if she knows.
A: As I have said, I was with the patient, I was beside the
stretcher holding the left hand of the patient and all of a sudden
I heard some remarks coming from Dra. Perfecta Gutierrez
herself. She was saying Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan.
xxx

ATTY. PAJARES:
Q: From whom did you hear those words lumalaki ang tiyan?

Q: Do you know the reason why the patient was placed in that
trendelenburg position?

A: From Dra. Perfecta Gutierrez.

A: As far as I know, when a patient is in that position, there is a

decrease of blood supply to the brain.[46]

xxx

xxx

After hearing the phrase lumalaki ang tiyan, what did you
notice on the person of the patient?

The appellate court, however, disbelieved Dean Cruz's

testimony in the trial court by declaring that:

A: I notice (sic) some bluish discoloration on the nailbeds of

the left hand where I was at.

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]

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

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 nontechnical matters or those of which an ordinary person may be
expected to have knowledge, or where the lack of skill or want
of care is so obvious as to render expert testimony unnecessary.
[49]
We take judicial notice of the fact that anesthesia procedures
have become so common, that even an ordinary person can tell
if it was administered properly. As such, it would not be too
difficult to tell if the tube was properly inserted. This kind of
observation, we believe, does not require a medical degree to
be acceptable.

ATTY. LIGSAY:

At any rate, without doubt, petitioner's witness, an experienced

clinical nurse whose long experience and scholarship led to her
appointment as Dean of the Capitol Medical Center School of
Nursing, was fully capable of determining whether or not the
intubation was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse and
clinical instructor in a teaching hospital, the FEU-NRMF; Dean
of the Laguna College of Nursing in San Pablo City; and then
Dean of the Capitol Medical Center School of Nursing.
[50]
Reviewing witness Cruz' statements, we find that the same
were delivered in a straightforward manner, with the kind of
detail, clarity, consistency and spontaneity which would have
been difficult to fabricate. With her clinical background as a
nurse, the Court is satisfied that she was able to demonstrate
through her testimony what truly transpired on that fateful day.

Q: When you said mahirap yata ito, what were you referring
to?

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:

The argument does not convince us. If this was indeed

observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough

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.

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.

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 pre-operative evaluation
would escape unnoticed. In her testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical practice to
see the patient a day before so you can introduce yourself to
establish good doctor-patient relationship and gain the trust and
confidence of the patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the
operative procedure of the anesthesiologist and in my case,
with elective cases and normal 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 pre-operative procedure so that an
anesthesiologist is able to see the patient only a few minutes
before surgery, if at all. Elective procedures, on the other hand,
are operative procedures that can wait for days, weeks or even
months. Hence, in these cases, the anesthesiologist possesses
the luxury of time to make a proper assessment, including the
time to be at the patient's bedside to do a proper interview and
clinical evaluation. There is ample time to explain the method
of anesthesia, the drugs to be used, and their possible hazards
for purposes of informed consent. Usually, the pre-operative
assessment is conducted at least one day before the intended
surgery, when the patient is relaxed and cooperative.
Erlindas case was elective and this was known to respondent
Dra. Gutierrez. Thus, she had all the time to make a thorough
evaluation of Erlindas case prior to the operation and prepare
her for anesthesia.However, she never saw the patient at the
bedside. She herself admitted that she had seen petitioner only
in the operating room, and only on the actual date of
the cholecystectomy. She negligently failed to take advantage
of this important opportunity. As such, her attempt to exculpate
herself must fail.
Having established that respondent Dra. Gutierrez failed to
perform 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.

appellate court erred in giving weight to Dr. Jamoras testimony

as an expert in the administration of Thiopental Sodium.

Q: But not in particular when you practice pulmonology?

The provision in the rules of evidence [62]regarding expert

witnesses states:

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

Sec. 49. Opinion of expert witness. - The opinion of a witness

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

afterthought. Such an explanation was advanced in order to

absolve them of any and all responsibility for the patients
condition.
In view of the evidence at hand, we are inclined to believe
petitioners stand that it was the faulty intubation which was the
proximate cause of Erlindas comatose condition.
Proximate cause has been defined as that which, in natural and
continuous sequence, unbroken by any efficient intervening
cause, produces injury, and without which the result would not
have occurred.[64] An injury or damage is proximately caused
by an act or a failure to act, whenever it appears from the
evidence in the case, that the act or omission played a
substantial part in bringing about or actually causing the injury
or damage; and that the injury or damage was either a direct
result or a reasonably probable consequence of the act or
omission.[65] It is the dominant, moving or producing cause.
Applying the above definition in relation to the evidence at
hand, faulty intubation is undeniably the proximate cause
which triggered the chain of events leading to Erlindas brain
damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony that
the first intubation was a failure. This fact was likewise
observed by witness Cruz when she heard respondent Dra.
Gutierrez remarked, Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan. Thereafter, witness Cruz
noticed abdominal distention on the body of Erlinda. The
development of abdominal distention, together with respiratory
embarrassment indicates that the endotracheal tube entered the
esophagus instead of the respiratory tree. In other words,
instead of the intended endotracheal intubation what actually
took place was an esophageal intubation. During intubation,

such distention indicates that air has entered the gastrointestinal

tract through the esophagus instead of the lungs through the
trachea. Entry into the esophagus would certainly cause some
delay in oxygen delivery into the lungs as the tube which
carries oxygen is in the wrong place. That abdominal distention
had been observed during the first intubation suggests that the
length of time utilized in inserting the endotracheal tube (up to
the time the tube was withdrawn for the second attempt) was
fairly significant. Due to the delay in the delivery of oxygen in
her lungs Erlinda showed signs of cyanosis.[66] As stated in the
testimony of Dr. Hosaka, the lack of oxygen became apparent
only after he noticed that the nailbeds of Erlinda were already
blue.[67] However, private respondents contend that a second
intubation was executed on Erlinda and this one was
successfully done. We do not think so. No evidence exists on
record, beyond private respondents' bare claims, which
supports the contention that the second intubation was
successful. Assuming that the endotracheal tube finally found
its way into the proper orifice of the trachea, the same gave no
guarantee of oxygen delivery, the hallmark of a successful
intubation. In fact, cyanosis was again observed immediately
after the second intubation. Proceeding from this event
(cyanosis), it could not be claimed, as private respondents
insist, that the second intubation was accomplished. Even
granting that the tube was successfully inserted during the
second attempt, it was obviously too late. As aptly explained
by the trial court, Erlinda already suffered brain damage as a
result of the inadequate oxygenation of her brain for about four
to five minutes.[68]
The above conclusion is not without basis. Scientific studies
point out that intubation problems are responsible for one-third
(1/3) of deaths and serious injuries associated with anesthesia.
[69]
Nevertheless, ninety-eight percent (98%) or the vast majority

of difficult intubations may be anticipated by performing a

thorough evaluation of the patients airway prior to the
operation.[70] As stated beforehand, respondent Dra. Gutierrez
failed to observe the proper pre-operative protocol which could
have prevented this unfortunate incident. Had appropriate
diligence and reasonable care been used in the 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.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinicopathological conferences, conduct bedside rounds for clerks,
interns and residents, moderate grand rounds and patient audits
and perform other tasks and responsibilities, for the privilege of
being able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In addition to
these, the physicians performance as a specialist is generally
evaluated by a peer review committee on the basis of mortality
and morbidity statistics, and feedback from patients, nurses,

interns and residents. A consultant remiss in his duties, or a

consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is
normally politely terminated.
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting consultant staff. While
consultants are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the
patients condition, the control exercised, the hiring, and the
right to terminate consultants all fulfill the important hallmarks
of an employer-employee relationship, with the exception of
the payment of wages. In assessing whether such a relationship
in fact exists, the control test is determining. Accordingly, on
the basis of the foregoing, we rule that for the purpose of
allocating responsibility in medical negligence cases, an
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
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 atP100,000.00 are likewise proper.
Our courts face unique difficulty in adjudicating medical
negligence cases because physicians are not insurers of life
and, they rarely set out to intentionally cause injury or death to
their patients.However, intent is immaterial in negligence cases
because where negligence exists and is proven, the same
automatically gives the injured a right to reparation for the
damage caused.
Established medical procedures and practices, though in
constant flux are devised for the purpose of preventing
complications. A physicians experience with his patients would
sometimes tempt him to deviate from established community
practices, and he may end a distinguished career using

unorthodox methods without incident. However, when failure

to follow established procedure results in the evil precisely
sought to be averted by observance of the procedure and a
nexus is made between the deviation and the injury or damage,
the physician would necessarily be called to account for it. In
the case at bar, the failure to observe pre-operative assessment
protocol which would have influenced the intubation in a
salutary way was fatal to private respondents case.
WHEREFORE, the decision and resolution of the appellate
court appealed from are hereby modified so as to award in
favor of petitioners, and solidarily against private respondents
the following: 1)P1,352,000.00 as actual damages computed as
of the date of promulgation of this decision plus a monthly
payment of P8,000.00 up to the time that petitioner Erlinda
Ramos expires or miraculously survives; 2) P2,000,000.00 as
moral damages, 3) P1,500,000.00 as temperate damages;
4) P100,000.00 each as exemplary damages and attorneys fees;
and, 5) the costs of the suit.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, Pardo and YnaresSantiago, JJ., concur.

ROGELIO P. NOGALES, G.R. No. 142625

for himself and on behalf of the minors,
CAPITOL MEDICAL CENTER,
Respondents. December 19, 2006

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

DECISION

CARPIO, J.:

care of Dr. Oscar Estrada (Dr. Estrada) beginning on her fourth

month of pregnancy or as early as December 1975. While
Corazon was on her last trimester of pregnancy, Dr. Estrada
noted an increase in her blood pressure and development of leg
edema[5] indicating preeclampsia,[6] which is a dangerous
complication of pregnancy.[7]

Around midnight of 25 May 1976, Corazon started to

experience mild labor pains prompting Corazon and Rogelio
Nogales (Spouses Nogales) to see Dr. Estrada at his
home.After examining Corazon, Dr. Estrada advised her
immediate admission to the Capitol Medical Center (CMC).

The Case

This
petition
for
review[1] assails
the 6
February
[2]
1998 Decision and 21 March 2000 Resolution[3] of the Court
of Appeals in CA-G.R. CV No. 45641. The Court of Appeals
affirmed in toto the 22 November 1993 Decision[4] of the
Regional Trial Court of Manila, Branch 33, finding Dr. Oscar
Estrada solely liable for damages for the death of his patient,
Corazon Nogales, while absolving the remaining respondents
of any liability. The Court of Appeals denied petitioners motion
for reconsideration.

On 26 May 1976, Corazon was admitted at 2:30 a.m. at the

CMC after the staff nurse noted the written admission
request[8] of Dr. Estrada. Upon Corazons admission at the
CMC, Rogelio Nogales (Rogelio) executed and signed the
Consent on Admission and Agreement[9] and Admission
Agreement.[10] Corazon was then brought to the labor room of
the CMC.

Dr. Rosa Uy (Dr. Uy), who was then a resident physician of

CMC, conducted an internal examination of Corazon. Dr. Uy
then called up Dr. Estrada to notify him of her findings.

The Facts

Pregnant with her fourth child, Corazon Nogales (Corazon),

who was then 37 years old, was under the exclusive prenatal

Based on the Doctors Order Sheet,[11] around 3:00 a.m., Dr.

Estrada ordered for 10 mg. of valium to be administered
immediately by intramuscular injection. Dr. Estrada later
ordered the start of intravenous administration of syntocinon

admixed with dextrose, 5%, in lactated Ringers solution, at the

rate of eight to ten micro-drops per minute.

According to the Nurses Observation Notes,[12] Dr. Joel

Enriquez (Dr. Enriquez), an anesthesiologist at CMC, was
notified at 4:15 a.m. of Corazons admission. Subsequently,
when asked if he needed the services of an anesthesiologist, Dr.
Estrada refused. Despite Dr. Estradas refusal, Dr. Enriquez
stayed to observe Corazons condition.

At 6:00 a.m., Corazon was transferred to Delivery Room No. 1

of the CMC. At 6:10 a.m., Corazons bag of water ruptured
spontaneously. At 6:12 a.m., Corazons cervix was fully dilated.
At 6:13 a.m., Corazon started to experience convulsions.

At 6:27 a.m., Corazon began to manifest moderate vaginal

bleeding which rapidly became profuse. Corazons blood
pressure dropped from 130/80 to 60/40 within five
minutes.There was continuous profuse vaginal bleeding. The
assisting nurse administered hemacel through a gauge 19
needle as a side drip to the ongoing intravenous injection of
dextrose.

At 7:45 a.m., Dr. Estrada ordered blood typing and cross

matching with bottled blood. It took approximately 30 minutes
for the CMC laboratory, headed by Dr. Perpetua Lacson (Dr.
Lacson), to comply with Dr. Estradas order and deliver the
blood.

At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of

magnesium sulfate. However, Dr. Ely Villaflor (Dr. Villaflor),
who was assisting Dr. Estrada, administered only 2.5 grams of
magnesium sulfate.

At 8:00 a.m., Dr. Noe Espinola (Dr. Espinola), head of the

Obstetrics-Gynecology Department of the CMC, was apprised
of Corazons condition by telephone. Upon being informed that
Corazon was bleeding profusely, Dr. Espinola ordered
immediate hysterectomy. Rogelio was made to sign a Consent
to Operation.[13]

At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low

forceps to extract Corazons baby. In the process, a 1.0 x 2.5
cm. piece of cervical tissue was allegedly torn. The baby came
out in an apnic, cyanotic, weak and injured
condition. Consequently, the baby had to be intubated and
resuscitated by Dr. Enriquez and Dr. Payumo.

Due to the inclement weather then, Dr. Espinola, who was

fetched from his residence by an ambulance, arrived at the
CMC about an hour later or at 9:00 a.m. He examined the
patient and ordered some resuscitative measures to be
administered. Despite Dr. Espinolas efforts, Corazon died
at 9:15 a.m. The cause of death was hemorrhage, post partum.
[14]

On 14 May 1980, petitioners filed a complaint for

damages[15] with the Regional Trial Court[16] of Manila against
CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr.
Lacson, Dr. Espinola, and a certain Nurse J. Dumlao for the
death of Corazon. Petitioners mainly contended that defendant
physicians and CMC personnel were negligent in the treatment
and management of Corazons condition. Petitioners charged
CMC with negligence in the selection and supervision of
defendant physicians and hospital staff.

of hemacel by way of side drip, instead of direct intravenous

injection, and his failure to consult a senior obstetrician at an
early stage of the problem.

For failing to file their answer to the complaint despite service

of summons, the trial court declared Dr. Estrada, Dr. Enriquez,
and Nurse Dumlao in default.[17] CMC, Dr. Villaflor, Dr. Uy,
Dr. Espinola, and Dr. Lacson filed their respective answers
denying
and
opposing
the
allegations
in
the
complaint. Subsequently, trial ensued.

On the part of Dra. Ely Villaflor, she was only taking orders
from Dr. Estrada, the principal physician of Corazon
Nogales. She can only make suggestions in the manner the
patient maybe treated but she cannot impose her will as to do
so would be to substitute her good judgment to that of Dr.
Estrada. If she failed to correctly diagnose the true cause of the
bleeding which in this case appears to be a cervical laceration,
it cannot be safely concluded by the Court that Dra. Villaflor
had the correct diagnosis and she failed to inform Dr.
Estrada. No evidence was introduced to show that indeed Dra.
Villaflor had discovered that there was laceration at the
cervical area of the patients internal organ.

After more than 11 years of trial, the trial court rendered

judgment on 22 November 1993 finding Dr. Estrada solely
liable for damages. The trial court ruled as follows:

The victim was under his pre-natal care, apparently, his fault
began from his incorrect and inadequate management and lack
of treatment of the pre-eclamptic condition of his patient. It is
not disputed that he misapplied the forceps in causing the
delivery because it resulted in a large cervical tear which had
caused the profuse bleeding which he also failed to control
with the application of inadequate injection of magnesium
sulfate by his assistant Dra. Ely Villaflor. Dr. Estrada even
failed to notice the erroneous administration by nurse Dumlao

On the part however of Dra. Ely Villaflor, Dra. Rosa Uy, Dr.
Joel Enriquez, Dr. Lacson, Dr. Espinola, nurse J. Dumlao and
CMC, the Court finds no legal justification to find them civilly
liable.

On the part of nurse Dumlao, there is no showing that when

she administered the hemacel as a side drip, she did it on her
own. If the correct procedure was directly thru the veins, it
could only be because this was what was probably the orders of
Dr. Estrada.

While the evidence of the plaintiffs shows that Dr. Noe

Espinola, who was the Chief of the Department of Obstetrics
and Gynecology who attended to the patient Mrs. Nogales, it
was only at 9:00 a.m. That he was able to reach the hospital
because of typhoon Didang (Exhibit 2). While he was able to
give prescription in the manner Corazon Nogales may be
treated, the prescription was based on the information given to
him by phone and he acted on the basis of facts as presented to
him, believing in good faith that such is the correct remedy. He
was not with Dr. Estrada when the patient was brought to the
hospital at 2:30 oclock a.m. So, whatever errors that Dr.
Estrada committed on the patient before 9:00 oclock a.m. are
certainly the errors of Dr. Estrada and cannot be the mistake of
Dr. Noe Espinola. His failure to come to the hospital on time
was due to fortuitous event.

On the part of Dr. Joel Enriquez, while he was present in the

delivery room, it is not incumbent upon him to call the
attention of Dr. Estrada, Dra. Villaflor and also of Nurse
Dumlao on the alleged errors committed by them. Besides, as
anesthesiologist, he has no authority to control the actuations of
Dr. Estrada and Dra. Villaflor. For the Court to assume that
there were errors being committed in the presence of Dr.
Enriquez would be to dwell on conjectures and speculations.

On the civil liability of Dr. Perpetua Lacson, [s]he is a

hematologist and in-charge of the blood bank of the CMC. The
Court cannot accept the theory of the plaintiffs that there was
delay in delivering the blood needed by the patient. It was
testified, that in order that this blood will be made available, a
laboratory test has to be conducted to determine the type of

blood, cross matching and other matters consistent with

medical science so, the lapse of 30 minutes maybe considered a
reasonable time to do all of these things, and not a delay as the
plaintiffs would want the Court to believe.

Admittedly, Dra. Rosa Uy is a resident physician of

the Capitol Medical Center. She was sued because of her
alleged failure to notice the incompetence and negligence of
Dr. Estrada. However, there is no evidence to support such
theory. No evidence was adduced to show that Dra. Rosa Uy as
a resident physician of Capitol Medical Center, had knowledge
of the mismanagement of the patient Corazon Nogales, and that
notwithstanding such knowledge, she tolerated the same to
happen.

In the pre-trial order, plaintiffs and CMC agreed that defendant

CMC did not have any hand or participation in the selection or
hiring of Dr. Estrada or his assistant Dra. Ely Villaflor as
attending physician[s] of the deceased. In other words, the two
(2) doctors were not employees of the hospital and therefore
the hospital did not have control over their professional
conduct.When Mrs. Nogales was brought to the hospital, it was
an emergency case and defendant CMC had no choice but to
admit her. Such being the case, there is therefore no legal
ground to apply the provisions of Article 2176 and 2180 of the
New Civil Code referring to the vicarious liability of an
employer for the negligence of its employees. If ever in this
case there is fault or negligence in the treatment of the
deceased on the part of the attending physicians who were
employed by the family of the deceased, such civil liability

should be borne by the attending physicians under the principle

of respondeat superior.

should be held equally liable for negligence. Petitioners

pointed out the extent of each respondents alleged liability.

WHEREFORE, premises considered, judgment is hereby

rendered finding defendant Dr. Estrada of Number 13 Pitimini
St. San Francisco del Monte, Quezon City civilly liable to pay
plaintiffs: 1) By way of actual damages in the amount
of P105,000.00; 2) By way of moral damages in the amount
of P700,000.00; 3) Attorneys fees in the amount
of P100,000.00 and to pay the costs of suit.

On 6 February 1998, the Court of Appeals affirmed the

decision of the trial court.[19] Petitioners filed a motion for
reconsideration which the Court of Appeals denied in its
Resolution of 21 March 2000.[20]

For failure of the plaintiffs to adduce evidence to support

its [sic] allegations against the other defendants, the complaint
is hereby ordered dismissed. While the Court looks with
disfavor the filing of the present complaint against the other
defendants by the herein plaintiffs, as in a way it has caused
them personal inconvenience and slight damage on their name
and reputation, the Court cannot accepts [sic] however, the
theory of the remaining defendants that plaintiffs were
motivated in bad faith in the filing of this complaint. For this
reason defendants counterclaims are hereby ordered dismissed.

SO ORDERED.[18]

Petitioners appealed the trial courts decision. Petitioners

claimed that aside from Dr. Estrada, the remaining respondents

Hence, this petition.

Meanwhile, petitioners filed a Manifestation dated 12 April

2002[21] stating that respondents Dr. Estrada, Dr. Enriquez, Dr.
Villaflor, and Nurse Dumlao need no longer be notified of the
petition because they are absolutely not involved in the issue
raised before the [Court], regarding the liability of [CMC].
[22]
Petitioners stressed that the subject matter of this petition is
the liability of CMC for the negligence of Dr. Estrada.[23]

The Court issued a Resolution dated 9 September

2002[24] dispensing with the requirement to submit the correct
and present addresses of respondents Dr. Estrada, Dr. Enriquez,
Dr. Villaflor, and Nurse Dumlao. The Court stated that with the
filing of petitioners Manifestation, it should be understood that
they are claiming only against respondents CMC, Dr. Espinola,
Dr. Lacson, and Dr. Uy who have filed their respective
comments. Petitioners are foregoing further claims against
respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse
Dumlao.

The Court noted that Dr. Estrada did not appeal the decision of
the Court of Appeals affirming the decision of the Regional
Trial Court. Accordingly, the decision of the Court of Appeals,
affirming the trial courts judgment, is already final as against
Dr. Oscar Estrada.

Petitioners filed a motion for reconsideration[25] of the Courts 9

September 2002 Resolution claiming that Dr. Enriquez, Dr.
Villaflor and Nurse Dumlao were notified of the petition at
their counsels last known addresses. Petitioners reiterated their
imputation of negligence on these respondents. The Court
denied petitioners Motion for Reconsideration in its 18
February 2004 Resolution.[26]

Citing other American cases, the Court of Appeals further held

that the mere fact that a hospital permitted a physician to
practice medicine and use its facilities is not sufficient to
render the hospital liable for the physicians negligence.[28] A
hospital is not responsible for the negligence of a physician
who is an independent contractor.[29]

The Court of Appeals found the cases of Davidson v.

Conole[30] and Campbell
v.
Emma
Laing
Stevens
Hospital[31] applicable to this case. Quoting Campbell, the
Court of Appeals stated that where there is no proof that
defendant physician was an employee of defendant hospital or
that defendant hospital had reason to know that any acts of
malpractice would take place, defendant hospital could not be
held liable for its failure to intervene in the relationship of
physician-patient between defendant physician and plaintiff.

The Court of Appeals Ruling

In its Decision of 6 February 1998, the Court of Appeals

upheld the trial courts ruling. The Court of Appeals rejected
petitioners view that the doctrine in Darling v. Charleston
Community
Memorial
Hospital[27] applies
to
this
case. According to the Court of Appeals, the present case
differs from the Darling case since Dr. Estrada is an
independent contractor-physician whereas the Darling case
involved a physician and a nurse who were employees of the
hospital.

On the liability of the other respondents, the Court of Appeals

applied the borrowed servant doctrine considering that Dr.
Estrada was an independent contractor who was merely
exercising hospital privileges. This doctrine provides that once
the surgeon enters the operating room and takes charge of the
proceedings, the acts or omissions of operating room
personnel, and any negligence associated with such acts or
omissions, are imputable to the surgeon.[32] While the assisting
physicians and nurses may be employed by the hospital, or
engaged by the patient, they normally become the temporary
servants or agents of the surgeon in charge while the operation
is in progress, and liability may be imposed upon the surgeon
for their negligent acts under the doctrine of respondeat
superior.[33]

The Court of Appeals concluded that since Rogelio engaged

Dr. Estrada as the attending physician of his wife, any liability
for malpractice must be Dr. Estradas sole responsibility.

While it found the amount of damages fair and reasonable, the

Court of Appeals held that no interest could be imposed on
unliquidated claims or damages.

The Issue

Basically, the issue in this case is whether CMC is vicariously

liable for the negligence of Dr. Estrada. The resolution of this
issue rests, on the other hand, on the ascertainment of the
relationship between Dr. Estrada and CMC. The Court also
believes that a determination of the extent of liability of the
other respondents is inevitable to finally and completely
dispose of the present controversy.

Dr. Estradas negligence in handling the treatment and

management of Corazons condition which ultimately resulted
in Corazons death is no longer in issue. Dr. Estrada did not
appeal the decision of the Court of Appeals which affirmed the
ruling of the trial court finding Dr. Estrada solely liable for
damages. Accordingly, the finding of the trial court on Dr.
Estradas negligence is already final.

Petitioners maintain that CMC is vicariously liable for Dr.

Estradas negligence based on Article 2180 in relation to Article
2176 of the Civil Code. These provisions pertinently state:

Art. 2180. The obligation imposed by article 2176 is

demandable not only for ones own acts or omissions, but also
for those of persons for whom one is responsible.

xxxx

The Ruling of the Court

The petition is partly meritorious.

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.

On the Liability of CMC

xxxx

The responsibility treated of in this article shall cease when the

persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.

Art. 2176. Whoever by act or omission causes damage to

another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.

and management of his wifes condition. Dr. Estrada just

happened to be the specific person he talked to representing
CMC.[36] Moreover, the fact that CMC made Rogelio sign a
Consent on Admission and Admission Agreement[37] and a
Consent to Operation printed on the letterhead of CMC
indicates that CMC considered Dr. Estrada as a member of its
medical staff.

On the other hand, CMC disclaims liability by asserting that

Dr. Estrada was a mere visiting physician and that it admitted
Corazon because her physical condition then wasclassified an
emergency obstetrics case.[38]

CMC alleges that Dr. Estrada is an independent contractor for

whose actuations CMC would be a total stranger. CMC
maintains that it had no control or supervision over Dr. Estrada
in the exercise of his medical profession.
Similarly, in the United States, a hospital which is the
employer, master, or principal of a physician employee,
servant, or agent, may be held liable for the physicians
negligence under the doctrine of respondeat superior.[34]

In the present case, petitioners maintain that CMC, in allowing

Dr. Estrada to practice and admit patients at CMC, should be
liable for Dr. Estradas malpractice. Rogelio claims that he
knew Dr. Estrada as an accredited physician of CMC, though
he discovered later that Dr. Estrada was not a salaried
employee of the CMC.[35] Rogelio further claims that he was
dealing with CMC, whose primary concern was the treatment

The Court had the occasion to determine the relationship

between a hospital and a consultant or visiting physician and
the liability of such hospital for that physicians negligence
in Ramos v. Court of Appeals,[39] to wit:

In the first place, hospitals exercise significant control in the

hiring and firing of consultants and in the conduct of their work
within the hospital premises. Doctors who apply for consultant
slots, visiting or attending, are required to submit proof of
completion of residency, their educational qualifications;
generally, evidence of accreditation by the appropriate board

(diplomate), evidence of fellowship in most cases, and

references. These requirements are carefully scrutinized by
members of the hospital administration or by a review
committee set up by the hospital who either accept or reject the
application. This is particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinicopathological conferences, conduct bedside rounds for clerks,
interns and residents, moderate grand rounds and patient audits
and perform other tasks and responsibilities, for the privilege of
being able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In addition to
these, the physicians performance as a specialist is generally
evaluated by a peer review committee on the basis of mortality
and morbidity statistics, and feedback from patients, nurses,
interns and residents. A consultant remiss in his duties, or a
consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is
normally politely terminated.
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting consultant staff. While
consultants are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for
the patients condition, the control exercised, the hiring, and
the right to terminate consultants all fulfill the important
hallmarks of an employer-employee relationship, with the
exception of the payment of wages. In assessing whether
such a relationship in fact exists, the control test is
determining. Accordingly, on the basis of the foregoing, we
rule that for the purpose of allocating responsibility in
medical negligence cases, an 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.
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. x x
x[40] (Emphasis supplied)

While the Court in Ramos did not expound on the control test,
such test essentially determines whether an employment
relationship exists between a physician and a hospital based on
the exercise of control over the physician as to
details. Specifically, the employer (or the hospital) must have
the right to control both the means and the details of the
process by which the employee (or the physician) is to
accomplish his task.[41]

After a thorough examination of the voluminous records of this

case, the Court finds no single evidence pointing to CMCs
exercise of control over Dr. Estradas treatment and
management of Corazons condition. It is undisputed that
throughout Corazons pregnancy, she was under the exclusive
prenatal care of Dr. Estrada. At the time of Corazons admission
at CMC and during her delivery, it was Dr. Estrada, assisted by
Dr. Villaflor, who attended to Corazon. There was no showing
that CMC had a part in diagnosing Corazons condition. While
Dr. Estrada enjoyed staff privileges at CMC, such fact alone
did not make him an employee of CMC.[42] CMC merely

allowed Dr. Estrada to use its facilities[43] when Corazon was

about to give birth, which CMC considered an emergency.
Considering these circumstances, Dr. Estrada is not an
employee of CMC, but an independent contractor.
The question now is whether CMC is automatically exempt
from liability considering that Dr. Estrada is an independent
contractor-physician.
In general, a hospital is not liable for the negligence of an
independent contractor-physician. There is, however, an
exception to this principle. The hospital may be liable if the
physician is the ostensible agent of the hospital.[44] This
exception is also known as the doctrine of apparent authority.
[45] In Gilbert v. Sycamore Municipal Hospital,[46] the Illinois
Supreme Court explained the doctrine of apparent authority in
this wise:

[U]nder the doctrine of apparent authority a hospital can be

held vicariously liable for the negligent acts of a physician
providing care at the hospital, regardless of whether the
physician is an independent contractor, unless the patient
knows, or should have known, that the physician is an
independent contractor. The elements of the action have been
set out as follows:
For a hospital to be liable under the doctrine of apparent
authority, a plaintiff must show that: (1) the hospital, or its
agent, acted in a manner that would lead a reasonable person to
conclude that the individual who was alleged to be negligent
was an employee or agent of the hospital; (2) where the acts of
the agent create the appearance of authority, the plaintiff must
also prove that the hospital had knowledge of and acquiesced

in them; and (3) the plaintiff acted in reliance upon the conduct
of the hospital or its agent, consistent with ordinary care and
prudence.

The element of holding out on the part of the hospital does not
require an express representation by the hospital that the person
alleged to be negligent is an employee. Rather, the element is
satisfied if the hospital holds itself out as a provider of
emergency room care without informing the patient that the
care is provided by independent contractors.

The element of justifiable reliance on the part of the plaintiff is

satisfied if the plaintiff relies upon the hospital to provide
complete emergency room care, rather than upon a specific
physician.

The doctrine of apparent authority essentially involves two

factors to determine the liability of an independent-contractor
physician.

The first factor focuses on the hospitals manifestations and is

sometimes described as an inquiry whether the hospital acted
in a manner which would lead a reasonable person to conclude
that the individual who was alleged to be negligent was an
employee or agent of the hospital.[47] In this regard, the
hospital need not make express representations to the
patient that the treating physician is an employee of the

hospital; rather a representation may be general and

implied.[48]

The doctrine of apparent authority is a species of the doctrine

of estoppel. Article 1431 of the Civil Code provides that
[t]hrough estoppel, an admission or representation is rendered
conclusive upon the person making it, and cannot be denied or
disproved as against the person relying thereon. Estoppel rests
on this rule: Whenever a party has, by his own declaration, act,
or omission, intentionally and deliberately led another to
believe a particular thing true, and to act upon such belief, he
cannot, in any litigation arising out of such declaration, act or
omission, be permitted to falsify it.[49]

In the instant case, CMC impliedly held out Dr. Estrada as a

member of its medical staff. Through CMCs acts, CMC
clothed Dr. Estrada with apparent authority thereby leading the
Spouses Nogales to believe that Dr. Estrada was an employee
or agent of CMC. CMC cannot now repudiate such authority.

First, CMC granted staff privileges to Dr. Estrada. CMC

extended its medical staff and facilities to Dr. Estrada. Upon
Dr. Estradas request for Corazons admission, CMC, through its
personnel, readily accommodated Corazon and updated Dr.
Estrada of her condition.

Second, CMC made Rogelio sign consent forms printed on

CMC letterhead. Prior to Corazons admission and supposed
hysterectomy, CMC asked Rogelio to sign release forms, the

contents of which reinforced Rogelios belief that Dr. Estrada

was a member of CMCs medical staff.[50] The Consent on
Admission and Agreement explicitly provides:

KNOW ALL MEN BY THESE PRESENTS:

I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del

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

x x x x[51] (Emphasis supplied)

While the Consent to Operation pertinently reads, thus:

I, ROGELIO NOGALES, x x x, of my own volition and free

will, do consent and submit said CORAZON NOGALES to
Hysterectomy, by the Surgical Staff and Anesthesiologists of
Capitol Medical Center and/or whatever succeeding
operations, treatment, or emergency measures as may be
necessary and most expedient; and, that I will not hold liable or
responsible and hereby waive and forever discharge and hold
free the Surgeon, his assistants, anesthesiologists, the Capitol
Medical Center and/or its staff, from any and all claims of
whatever kind of nature, arising from directly or indirectly, or
by reason of said operation or operations, treatment, or
emergency measures, or intervention of the Surgeon, his
assistants, anesthesiologists, the Capitol Medical Center and/or
its staff.[52] (Emphasis supplied)

Without any indication in these consent forms that Dr. Estrada

was an independent contractor-physician, the Spouses Nogales
could not have known that Dr. Estrada was an independent
contractor. Significantly, no one from CMC informed the
Spouses Nogales that Dr. Estrada was an independent
contractor. On the contrary, Dr. Atencio, who was then a
member of CMC Board of Directors, testified that Dr. Estrada
was part of CMCs surgical staff.[53]

Third, Dr. Estradas referral of Corazons profuse vaginal

bleeding to Dr. Espinola, who was then the Head of the
Obstetrics and Gynecology Department of CMC, gave the
impression that Dr. Estrada as a member of CMCs medical
staff was collaborating with other CMC-employed specialists
in treating Corazon.

The second factor focuses on the patients reliance. It is

sometimes characterized as an inquiry on whether the plaintiff
acted in reliance upon the conduct of the hospital or itsagent,
consistent with ordinary care and prudence.[54]

The records show that the Spouses Nogales relied upon a

perceived employment relationship with CMC in accepting Dr.
Estradas services. Rogelio testified that he and his wife
specifically chose Dr. Estrada to handle Corazons delivery not
only because of their friends recommendation, but more
importantly because of Dr. Estradas connection with a
reputable hospital, the [CMC].[55] In other words, Dr. Estradas
relationship with CMC played a significant role in the Spouses
Nogales decision in accepting Dr. Estradas services as the
obstetrician-gynecologist for Corazons delivery. Moreover, as
earlier stated, there is no showing that before and during
Corazons confinement at CMC, the Spouses Nogales knew or
should have known that Dr. Estrada was not an employee of
CMC.

Further, the Spouses Nogales looked to CMC to provide the

best medical care and support services for Corazons
delivery. The Court notes that prior to Corazons fourth

pregnancy, she used to give birth inside a clinic. Considering

Corazons age then, the Spouses Nogales decided to have their
fourth child delivered at CMC, which Rogelio regarded one of
the best hospitals at the time.[56] This is precisely because the
Spouses Nogales feared that Corazon might experience
complications during her delivery which would be better
addressed and treated in a modern and big hospital such as
CMC. Moreover, Rogelios consent in Corazons hysterectomy
to be performed by a different physician, namely Dr. Espinola,
is a clear indication of Rogelios confidence in CMCs surgical
staff.

CMCs defense that all it did was to extend to [Corazon] its

facilities is untenable. The Court cannot close its eyes to the
reality that hospitals, such as CMC, are in the business of
treatment. In this regard, the Court agrees with the observation
made by the Court of Appeals of North Carolina in Diggs v.
Novant Health, Inc.,[57] to wit:

The conception that the hospital does not undertake to treat the
patient, does not undertake to act through its doctors and
nurses, but undertakes instead simply to procure them to act
upon their own responsibility, no longer reflects the
fact. Present day hospitals, as their manner of operation
plainly demonstrates, do far more than furnish facilities for
treatment. They regularly employ on a salary basis a large
staff of physicians, nurses and internes [sic], as well as
administrative and manual workers, and they charge
patients for medical care and treatment, collecting for such
services, if necessary, by legal action. Certainly, the person
who avails himself of hospital facilities expects that the

hospital will attempt to cure him, not that its nurses or

other employees will act on their own responsibility. x x x
(Emphasis supplied)

Likewise unconvincing is CMCs argument that petitioners are

estopped from claiming damages based on the Consent on
Admission and Consent to Operation. Both release forms
consist of two parts. The first part gave CMC permission to
administer to Corazon any form of recognized medical
treatment which the CMC medical staff deemed advisable. The
second part of the documents, which may properly be
described as the releasing part, releases CMC and its
employees from any and all claims arising from or by reason of
the treatment and operation.

The documents do not expressly release CMC from liability for

injury to Corazon due to negligence during her treatment or
operation. Neither do the consent forms expressly exempt
CMC from liability for Corazons death due to
negligence during such treatment or operation. Such release
forms, being in the nature of contracts of adhesion, are
construed strictly against hospitals. Besides, a blanket release
in favor of hospitals from any and all claims, which includes
claims due to bad faith or gross negligence, would be contrary
to public policy and thus void.

Even simple negligence is not subject to blanket release in

favor of establishments like hospitals but may only mitigate

liability depending on the circumstances.[58] When a person

needing urgent medical attention rushes to a hospital, he cannot
bargain on equal footing with the hospital on the terms of
admission and operation. Such a person is literally at the mercy
of the hospital. There can be no clearer example of a contract
of adhesion than one arising from such a dire situation. Thus,
the release forms of CMC cannot relieve CMC from liability
for the negligent medical treatment of Corazon.

On the Liability of the Other Respondents

Despite this Courts pronouncement in its 9 September

2002[59] Resolution that the filing of petitioners Manifestation
confined petitioners claim only against CMC, Dr. Espinola, Dr.
Lacson, and Dr. Uy, who have filed their comments, the Court
deems it proper to resolve the individual liability of the
remaining respondents to put an end finally to this more than
two-decade old controversy.

The Court is not persuaded. Dr. Villaflor admitted

administering a lower dosage of magnesium sulfate. However,
this was after informing Dr. Estrada that Corazon was no
longer in convulsion and that her blood pressure went down to
a dangerous level.[61] At that moment, Dr. Estrada instructed Dr.
Villaflor to reduce the dosage of magnesium sulfate from 10 to
2.5 grams. Since petitioners did not dispute Dr. Villaflors
allegation, Dr. Villaflors defense remains uncontroverted. Dr.
Villaflors act of administering a lower dosage of magnesium
sulfate was not out of her own volition or was in contravention
of Dr. Estradas order.

b) Dr. Rosa Uy

Dr. Rosa Uys alleged negligence consisted of her failure (1) to

call the attention of Dr. Estrada on the incorrect dosage of
magnesium sulfate administered by Dr. Villaflor; (2) to take
corrective measures; and (3) to correct Nurse Dumlaos wrong
method of hemacel administration.

a) Dr. Ely Villaflor

Petitioners blame Dr. Ely Villaflor for failing to diagnose the

cause of Corazons bleeding and to suggest the correct remedy
to Dr. Estrada.[60] Petitioners assert that it was Dr. Villaflors
duty to correct the error of Nurse Dumlao in the administration
of hemacel.

The Court believes Dr. Uys claim that as a second year resident
physician then at CMC, she was merely authorized to take the
clinical history and physical examination of Corazon.
[62]
However, that routine internal examination did not ipso
facto make Dr. Uy liable for the errors committed by Dr.
Estrada. Further, petitioners imputation of negligence rests on
their baseless assumption that Dr. Uy was present at the
delivery room. Nothing shows that Dr. Uy participated in
delivering Corazons baby. Further, it is unexpected from Dr.
Uy, a mere resident physician at that time, to call the attention

of a more experienced specialist, if ever she was present at the

delivery room.

c) Dr. Joel Enriquez

Petitioners fault Dr. Joel Enriquez also for not calling the
attention of Dr. Estrada, Dr. Villaflor, and Nurse Dumlao about
their errors.[63] Petitioners insist that Dr. Enriquez should have
taken, or at least suggested, corrective measures to rectify such
errors.

The Court is not convinced. Dr. Enriquez is an anesthesiologist

whose field of expertise is definitely not obstetrics and
gynecology. As such, Dr. Enriquez was not expected to correct
Dr. Estradas errors. Besides, there was no evidence of Dr.
Enriquezs knowledge of any error committed by Dr. Estrada
and his failure to act upon such observation.

d) Dr. Perpetua Lacson

Petitioners fault Dr. Perpetua Lacson for her purported delay in

the delivery of blood Corazon needed. [64] Petitioners claim that
Dr. Lacson was remiss in her duty of supervising the blood
bank staff.

As found by the trial court, there was no unreasonable delay in

the delivery of blood from the time of the request until the
transfusion to Corazon. Dr. Lacson competently explained the
procedure before blood could be given to the patient.[65] Taking
into account the bleeding time, clotting time and crossmatching, Dr. Lacson stated that it would take approximately
45-60 minutes before blood could be ready for transfusion.
[66]
Further, no evidence exists that Dr. Lacson neglected her
duties as head of the blood bank.

e) Dr. Noe Espinola

Petitioners argue that Dr. Espinola should not have ordered

immediate hysterectomy without determining the underlying
cause of Corazons bleeding. Dr. Espinola should have first
considered the possibility of cervical injury, and advised a
thorough examination of the cervix, instead of believing
outright Dr. Estradas diagnosis that the cause of bleeding was
uterine atony.

Dr. Espinolas order to do hysterectomy which was based on the

information he received by phone is not negligence. The Court
agrees with the trial courts observation that Dr. Espinola, upon
hearing such information about Corazons condition, believed in
good faith that hysterectomy was the correct remedy. At any
rate, the hysterectomy did not push through because upon Dr.
Espinolas arrival, it was already too late. At the time, Corazon
was practically dead.

f) Nurse J. Dumlao
In Moore v. Guthrie Hospital Inc.,[67] the US Court of Appeals,
Fourth Circuit, held that to recover, a patient complaining of
injuries allegedly resulting when the nurse negligently injected
medicine to him intravenously instead of intramuscularly had
to show that (1) an intravenous injection constituted a lack of
reasonable and ordinary care; (2) the nurse injected medicine
intravenously; and (3) such injection was the proximate cause
of his injury.

liable for the negligence of Dr. Oscar Estrada. The amounts

of P105,000 as actual damages and P700,000 as moral
damages should each earn legal interest at the rate of six
percent (6%) per annum computed from the date of the
judgment of the trial court. The Court affirms the rest of the
Decision dated 6 February 1998 and Resolution dated 21
March 2000 of the Court of Appeals in CA-G.R. CV No. 4564
SO ORDERED.

G.R. No. 126297

In the present case, there is no evidence of Nurse Dumlaos
alleged failure to follow Dr. Estradas specific
instructions. Even assuming Nurse Dumlao defied Dr. Estradas
order, there is no showing that side-drip administration of
hemacel proximately caused Corazons death. No evidence
linking Corazons death and the alleged wrongful hemacel
administration was introduced. Therefore, there is no basis to
hold Nurse Dumlao liable for negligence.

On the Award of Interest on Damages

The award of interest on damages is proper and allowed

under Article 2211 of the Civil Code, which states that in
crimes and quasi-delicts, interest as a part of the damages may,
in a proper case, be adjudicated in the discretion of the court.[68]

WHEREFORE, the Court PARTLY GRANTS the petition.

The Court finds respondent Capitol Medical Center vicariously

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
vs.
NATIVIDAD
AGANA
AGANA, Respondents.

AMPIL, Petitioner,
and

ENRIQUE

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 Decision3 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 abovenamed children (the Aganas).

On March 17, 1993, the RTC rendered its Decision in favor of

the Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for
negligence and malpractice, the decretal part of which reads:
WHEREFORE, judgment is hereby rendered for the plaintiffs
ordering the defendants PROFESSIONAL SERVICES, INC.,
DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the
plaintiffs, jointly and severally, except in respect of the award
for exemplary damages and the interest thereon which are the
liabilities of defendants Dr. Ampil and Dr. Fuentes only, as
follows:
1. As actual damages, the following amounts:
a. The equivalent in Philippine Currency of the total of
US$19,900.00 at the rate of P21.60-US$1.00, as
reimbursement of actual expenses incurred in the United States
of America;
b. The sum of P4,800.00 as travel taxes of plaintiffs and their
physician daughter;
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
Resolution5 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 CAG.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case
against defendant-appellant Dr. Juan Fuentes is hereby
DISMISSED, and with the pronouncement that defendantappellant Dr. Miguel Ampil is liable to reimburse defendantappellant 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

argues that the Court should not discount either of the

following possibilities: first, Dr. Fuentes left the gauzes in
Natividads body after performing hysterectomy; second, the
attending nurses erred in counting the gauzes; and third, the
American doctors were the ones who placed the gauzes in
Natividads body.
Dr. Ampils arguments are purely conjectural and without
basis. Records show that he did not present any evidence to
prove that the American doctors were the ones who put or left
the gauzes in Natividads body. Neither did he submit evidence
to rebut the correctness of the record of operation, particularly
the number of gauzes used. As to the alleged negligence of Dr.
Fuentes, we are mindful that Dr. Ampil examined his (Dr.
Fuentes) work and found it in order.
The glaring truth is that all the major circumstances, taken
together, as specified by the Court of Appeals, directly point to
Dr. Ampil as the negligent party, thus:
First, it is not disputed that the surgeons used gauzes as
sponges to control the bleeding of the patient during the
surgical operation.
Second, immediately after the operation, the nurses who
assisted in the surgery noted in their report that the sponge
count (was) lacking 2; that such anomaly was announced to
surgeon and that a search was done but to no avail prompting
Dr. Ampil to continue for closure x x x.

Liable for Negligence and Malpractice.

Third, after the operation, two (2) gauzes were extracted from
the same spot of the body of Mrs. Agana where the surgery was
performed.

Dr. Ampil, in an attempt to absolve himself, gears the Courts

attention to other possible causes of Natividads detriment. He

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. Zeagler10 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
cause12 of Natividads injury could be traced from his act of
closing the incision despite the information given by the
attending nurses that two pieces of gauze were still missing.
That they were later on extracted from Natividads vagina
established the causal link between Dr. Ampils negligence and
the injury. And what further aggravated such injury was his
deliberate concealment of the missing gauzes from the
knowledge of Natividad and her family.
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 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 preexisting contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of this Chapter.
A derivative of this provision is Article 2180, the rule
governing vicarious liability under the doctrine of respondeat
superior, thus:
ART. 2180. The obligation imposed by Article 2176 is
demandable not only for ones own acts or omissions, but also
for those of persons for whom one is responsible.
x x x

x x x

The owners and managers of an establishment or enterprise are

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

The responsibility treated of in this article shall cease when the

persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
A prominent civilist commented that professionals engaged by
an employer, such as physicians, dentists, and pharmacists, are
not "employees" under this article because the manner in which
they perform their work is not within the control of the latter
(employer). In other words, professionals are considered

personally liable for the fault or negligence they commit in the

discharge of their duties, and their employer cannot be held
liable for such fault or negligence. In the context of the present
case, "a hospital cannot be held liable for the fault or
negligence of a physician or surgeon in the treatment or
operation of patients."21
The foregoing view is grounded on the traditional notion that
the professional status and the very nature of the physicians
calling preclude him from being classed as an agent or
employee of a hospital, whenever he acts in a professional
capacity.22 It has been said that medical practice strictly
involves highly developed and specialized knowledge,23 such
that physicians are generally free to exercise their own skill and
judgment
in
rendering
medical
services
sans
24
interference. Hence, when a doctor practices medicine in a
hospital setting, the hospital and its employees are deemed to
subserve him in his ministrations to the patient and his actions
are of his own responsibility.25
The case of Schloendorff v. Society of New York
Hospital26 was then considered an authority for this view. The
"Schloendorff doctrine" regards a physician, even if employed
by a hospital, as an independent contractor because of the skill
he exercises and the lack of control exerted over his work.
Under this doctrine, hospitals are exempt from the application
of the respondeat superior principle for fault or negligence
committed by physicians in the discharge of their profession.
However, the efficacy of the foregoing doctrine has weakened
with the significant developments in medical care. Courts came
to realize that modern hospitals are increasingly taking active
role in supplying and regulating medical care to patients. No
longer were a hospitals functions limited to furnishing room,
food, facilities for treatment and operation, and attendants for

its patients. Thus, in Bing v. Thunig, 27 the New York Court of

Appeals deviated from the Schloendorff doctrine, noting that
modern hospitals actually do far more than provide facilities
for treatment. Rather, they regularly employ, on a salaried
basis, a large staff of physicians, interns, nurses, administrative
and manual workers. They charge patients for medical care and
treatment, even collecting for such services through legal
action, if necessary. The court then concluded that there is no
reason to exempt hospitals from the universal rule of
respondeat superior.
In our shores, the nature of the relationship between the
hospital and the physicians is rendered inconsequential in view
of our categorical pronouncement in Ramos v. Court of
Appeals28 that for purposes of apportioning responsibility in
medical negligence cases, an employer-employee relationship
in effect exists between hospitals and their attending and
visiting physicians. This Court held:
"We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting "consultants," who are allegedly not hospital
employees, presents problems in apportioning responsibility
for negligence in medical malpractice cases. However, the
difficulty is more apparent than real.
In the first place, hospitals exercise significant control in the
hiring and firing of consultants and in the conduct of their work
within the hospital premises. Doctors who apply for
consultant slots, visiting or attending, are required to submit
proof of completion of residency, their educational
qualifications, generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully

scrutinized by members of the hospital administration or by a

review committee set up by the hospital who either accept or
reject the application. x x x.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinicopathological conferences, conduct bedside rounds for clerks,
interns and residents, moderate grand rounds and patient audits
and perform other tasks and responsibilities, for the privilege of
being able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In addition to
these, the physicians performance as a specialist is generally
evaluated by a peer review committee on the basis of mortality
and morbidity statistics, and feedback from patients, nurses,
interns and residents. A consultant remiss in his duties, or a
consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is
normally politely terminated.
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting consultant staff.
While consultants are not, technically employees, 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 employeremployee 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 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 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

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.

because petitioners brief was not filed on time. Indeed, in so

doing, the appellate court is merely abiding by the Rules of
Court.
The Case
Before us is a Petition for Certiorari and Mandamus under
Rule 65 of the Rules of Court, praying for the setting aside of
the January 13, 1999[1] and the April 26, 1999[2] Resolutions of
the Court of Appeals (CA) in CA-GR CV No. 58804. The first
Resolution is worded as follows:
Upon consideration of the motion to dismiss appeal filed by
plaintiff-appellee and the Judicial Records Divisions Report
that no appellant[]s brief has been filed as of December 9,
1998, the appeal is hereby ordered DISMISSED pursuant to
Section 1 (e), Rule 50, 1997 Rules of Civil Procedure.[3]
The second Resolution denied petitioners Motion for
Reconsideration/Petition for Relief & Motion to Admit
Appellants Brief.[4]
The Facts
In his Memorandum, Petitioner Robert del Mar alleges as
follows:

ROBERT DEL MAR, petitioner, vs. COURT OF APPEALS

and NORMA EBERSOLE DEL MAR, respondents.
DECISION
PANGANIBAN, J.:
The Court of Appeals cannot be faulted with reversible error,
much less grave abuse of discretion, for dismissing a petition

1. The private respondent, Norma Ebersole Del Mar, and her

sister, Florence Ebersole Finch, inherited three (3) parcels of
land covered by TCT Nos. T-58397, T-58398 and T-58402,
situated in Mabini, Santiago City, with a total area of 29,736
square meters, more or less. On December 6, 1974, Florence
Ebersole Finch, a resident of New York, USA, executed a
general power of attorney naming and constituting private
respondent as her attorney-in-fact with regard to the subject
property.

2. On January 29, 1975, private respondent, acting for herself

and as attorney-in-fact of Florence Ebersole Finch, executed
Deeds of Absolute Sale in favor of petitioner covering the three
aforementioned parcels of land. The private respondent is the
mother of herein petitioner.
3. On March 25, 1976, Florence Ebersole Finch executed a
Deed of Confirmation in New York, USA, confirming and
ratifying all the acts and deeds executed by Norma Ebersole del
Mar, in conveying properties to Robert E. del Mar, as
appearing in Document Nos. 1780, Page 57, Book No. 14,
Series of 1975; 1781, Page 58, Book No. 14, Series of 1975;
and 1782, Page 58, Book No. 14, Series of 1975, of the
Notarial Registry of Paulo Pascua, a notary public for and in
the Province of Isabela, Philippines. This document was
authenticated by Wenceslao J.O. Quirolgico, Vice-Consul of
the Philippine Consulate Office in New York, USA.
4. After x x x said parcels of land were sub-divided into several
lots, x x x petitioner obtained the following Certificates of Title
in his name: TCT Nos. T-32251, T-82257, T-282260, and T82263, all on April 18, 1975; T-116117 on January 11, 1979; T17549 on March 16, 1979; and T-13664 on October 15, 1981.
5. After the peaceful and continuous possession by petitioner of
the subject properties for more than twenty-two (22) years, a
complaint for reconveyance was filed by x x x private
respondent against x x x petitioner on May 15, 1997,
alleging, inter-alia, that x x x petitioner obtained the
aforementioned Certificates of Title through fraud and deceit.
Private respondent claimed that x x x said properties were left
by her under the administration of petitioner, who allegedly
transferred the ownership of x x x said realty in his name by
causing the issuance of Certificates of Title in his name without
her knowledge and consent. However, records show that before

she left for the United States, private respondent executed the
corresponding Deeds of Absolute Sale in favor of petitioner.
This case, entitled Norma Ebersole del Mar represented by
Gerald del Mar vs. Roberto del Mar and the Register of Deeds,
Province of Isabela was filed before the Regional Trial Court
of Santiago City, Branch 35 and docketed as Civil Case No.
2373.
6. In his Answer, x x x petitioner claimed that x x x private
respondent and her co-owner, Florence Ebersole Finch, sold x
x x said properties to him before the former left for the United
States. Moreover, the properties were transferred for good,
sufficient and valuable consideration, hence the sale was lawful
and valid.
7. During the pre-trial conference, neither x x x petitioner nor
his counsel, Atty. Federico Abuan, appeared, by reason of
which the trial court issued an order declaring petitioner as in
default. The non-appearance was due to the failure of Atty.
Abuan, Jr. to inform petitioners attorney-in-fact, Angelita
Austria, of the scheduled hearing. Said petitioner filed a motion
for reconsideration but the same was denied, and x x x private
respondent was allowed to adduce her evidence ex-parte. On
the same day that x x x said motion was denied, the trial court
rendered its October 21, 1997 [D]ecision in favor of x x x
private respondent and against x x x petitioner, the dispositive
portion of which reads:
WHEREFORE, judgment is rendered against [petitioner] and
in favor of [private respondent], as follows:
1. Ordering the Register of Deeds of Ilagan, Isabela to cancel
Titles Nos. T-82257; T-82261, T-82260, T-82263, T-82264, T234664, T-116117 and T-822659;

2. Ordering Robert E. del Mar to reconvey the ownership of

properties to [private respondent] and in case of failure on the
part of [petitioner], the Register of Deeds is directed to execute
the necessary deed of reconveyance in favor of [private
respondent];
3. Enjoining permanently [petitioner] or any person acting for
and in [his] behalf from committing or doing any act of
disposition or alienation of the properties;
4. Ordering [petitioner] to pay the amount of FIVE HUNDRED
THOUSAND (P500,000.00) as moral damages to [private
respondent];
5. Ordering [petitioner] to pay the amount of TWO
HUNDRED FIFTY THOUSAND PESOS ([P]250,000.00) as
attorneys fees.
6. Cost of the suit.[5]
On the other hand, private respondent counters with the
following allegations in her Memorandum:
The parcels of land covered by the land titles that are sought to
be nullified x x x are all owned by [private] respondent
NORMA EBERSOLE DEL MAR by way of inheritance from
her lawful [ascendants]. The original titles were all issued in
her name and favor.
In the early 1970s [private] respondent x x x together with her
two children, GERALD and FLORENCE went to the United
States with the intent of obtaining domicile there[i]n and
leaving behind the other son x x x petitioner x x x, and
entrusting [to] his [administration] x x x their properties.

In 1974, [private respondent] came back to the Philippines and

stayed up until 1978 and thereafter went back to the US.
During her stay, the properties were intact.
Sometime in 1996, [private respondent] discovered that the
properties were already in the name of [petitioner]. [Private
respondent] protested because she never had done any act of
transfer of the properties in favor of [petitioner], because her
intent was to have these properties to be eventually x x x
divided into THREE (3) equal parts for her THREE (3)
children x x x. The transfer was [without] the knowledge of
[private respondent]. It was fraudulent and unlawful x x x.
Private respondent also claims that petitioner had been duly
served summons, but neither he nor his counsel appeared for
pretrial. Hence, petitioner was declared in default. While he did
receive the Order of Default, he never bothered to have it
lifted. So, trial proceeded and evidence ex parte for private
respondent was received by the trial court.[6]
Petitioner filed a Notice of Appeal. On January 7, 1998, Noel
T. Tomas, legal researcher and officer in charge of the Regional
Trial Court (RTC) of Santiago City (Branch 35), forwarded to
the CA the records of Civil Case No. 35-2373.[7] Buenaventura
B. Miguel, chief of the Judicial Records Division of the
appellate court, thereafter wrote a letter[8] dated August 13,
1998, addressed to Atty. Federico Abuan Jr., counsel for
petitioner, stating the following:
Pursuant to the resolution en banc of the Supreme Court, dated
February 23, 1984, you are hereby required to file with this
court SEVEN (7) printed copies of the brief, or SEVEN (7)
eleven inches in leng[th] by eight and a half inches in width commonly known letter size[,] written double space, copies of
said brief together with the proof of service of TWO (2) printed

typewritten or mimeographed copies hereof upon the appellee.

The decision of Trial Court shall be appended to the brief.[9]
On December 8, 1998, Atty. Amado C. Vallejo Jr., counsel for
private respondent, moved to dismiss[10] the appeal on the
ground that petitioner had failed to file the required brief within
the reglementary period.
Ruling of the Court of Appeals
As already stated, the CA granted the Motion to Dismiss via
the first assailed Resolution.
As regards petitioners Motion for Reconsideration/Petition for
Relief & Motion to Admit Appellants Brief, the appellate
courts denial is justified by the following reasons:
Clearly, the subject motion/petition can not be in the nature of
a Petition for Relief for Denial of Appeal under Rule 38 of the
Rules of Court. Section 2 of Rule 38 provides that When a judgment or final order is rendered by any court in a
case, and a party thereto, by fraud, accident, or excusable
negligence, has been prevented from taking an appeal, he may
file a petition in such court and in the same case praying that
the appeal be given due course.
In the present case, the appellant was not prevented from
taking an appeal as in fact, notice of appeal was timely filed by
the appellant on 11 November 1997 from the challenged
decision. The instant motion/petition, though denominated as
such will be properly treated simply as a motion for
reconsideration [of] the order of dismissal.
From the allegations in the subject motion for reconsideration,
this Court finds no cogent reason to disturb the dismissal of the
appellant. The appellants brief became due [i]n October 1998.

The movant claims ignorance of the fact that counsel failed to

file the appellants brief. There being no showing that counsels
failure to file the appellants brief was due to gross negligence,
the rule that negligence of counsel is binding upon the client
must be applied. Besides, it appears from the records that
herein appellant, as party-defendant in the proceedings below,
was declared in default for his and counsels non-appearance
during the pre-trial conference. Having lost the opportunity to
present evidence in view of the default order, the appellant,
through his attorney-in-fact, should have shown more vigor in
protecting his statutory right of appeal. He should have
jealously guarded this opportunity, knowing that this could
well be his last chance to protect his rights. The interest of
justice so conveniently invoked by the appellant now will be
better served if this dispute will be put to an end for failure of
the appellant to observe the degree of vigilance needed to
protect his remedies in law.[11]
Hence, this Petition.[12]
The Issues
Petitioner, in his Memorandum,[13] raises the following issues:
Who between the petitioner and the private respondent has a
better right to the properties in question.
Whether or not the Respondent Court of Appeals committed
grave abuse of di[s]cretion in ruling in favor of private
respondent.
For reasons that will be evident later on, the issues will be
tackled in reverse order.
The Courts Ruling
The Petition has no merit.

First Issue:
Effect of Failure to File a Brief
Petitioner argues that the CA gravely abused its discretion in
dismissing his appeal for his mere failure to file his Brief
within the reglementary period.
We disagree. Rule 50, Section 1(e) of the Revised Rules of
Court, expressly authorizes the CA to dismiss an appeal
for, inter alia, failure of appellant to serve and file the required
number of copies of his brief or memorandum within the time
provided by these Rules.
Certiorari as a special civil action can be availed of when the
following requisites concur: (a) a tribunal, board or officer
exercising judicial functions has acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack
or in excess of jurisdiction; and (b) there is no appeal or plain,
speedy and adequate remedy in the ordinary course of law for
annulling or modifying the proceeding.[14]
Petitioner claims that Atty. Abuans failure to file the required
pleading constituted fraud against him, and that his absence
from the country while the appeal was pending constituted a
mistake that was excusable.
We disagree. It is well-settled that the negligence of counsel
binds the client.[15] Exceptions to this rule arise when (1) such
negligence is so gross, palpable, reckless and inexcusable that
the client is deprived of the due process of law; and (2) the
application of such due process results in the outright
deprivation of ones property through a technicality.[16]
The negligence of Atty. Abuan does not fall under these
exceptions. His negligence in this case was his inexcusable

failure to file the required appellants Brief, thus causing the

dismissal of the appeal of petitioner. But the latter was not
without fault. He was aware of Atty. Abuans failure to appear
at the pretrial conference, a failure that had placed him in
default. Because petitioner was in default, private respondents
evidence was received ex parte by the RTC. No wonder, the
trial court decided against him. Yet, he retained Atty. Abuans
services for the appeal. One is bound by the decisions of ones
counsel regarding the conduct of the case, especially where the
former does not complain against the manner in which the
latter handled the case.[17]
In effect, petitioner consented to the shabby and negligent
treatment of his case by his counsel. Hence, he should not
complain now of the negligence or fraud done to him by his
lawyer. A partys counsel cannot be blamed for negligence, if
the party was likewise guilty of the same.[18] Clients should
suffer the consequences of the negligence, mistake or lack of
competence of the counsel whom they themselves hired, and
whom they had full authority to fire at any time and replace
with another.[19]
Petitioner cannot be said to have been denied due process,
because he was afforded the opportunity to be heard. In fact, he
filed an Answer to private respondents Complaint. That he did
not present evidence in his favor was the effect of his being in
default and his continued failure to move that such status be
lifted. His claim that he was abroad is unavailing.
We cannot attribute grave abuse of discretion to the Court of
Appeals which merely followed Rule 50 in dismissing the
appeal.
Second Issue:
Petitioners Defenses

Petitioner avers that he has in his favor the following valid and
meritorious defenses: (1) valid purchase of the disputed lots,
(2) acquisitive prescription, and (3) prescription and laches
barring private respondents action. He proposes to prove these
arguments with the following documents: (1) an alleged Deed
of Sale dated January 29, 1975 purportedly signed by private
respondent on her own behalf and as the agent of her sister
Florence; (2) a Confirmation of Sale allegedly signed by
Florence; and (3) an alleged Certificate of Authentication of the
confirmation issued by a Philippine vice consul in New York,
USA.
Assuming arguendo that this Petition is granted and the CA is
required to pass upon the RTCs judgment, how can the CA give
any probative value to the above documents, when they were
not presented before the trial court? Be it remembered that
petitioner had been declared in default, and that he did not even
ask for the lifting of the Default Order. Hence, the grant of the
Petition will be not only legally unsound, but also practically
useless. It will just clog the CAs docket.
Finally, after the CA denied his Motion for Reconsideration,
petitioner allowed the reglementary period for filing an appeal
to lapse, opting instead to file this Petition for Certiorari. Wellsettled is the rule that certiorari is not a substitute for a lost
appeal.[20] Even if for this reason alone, the Petition should not
be given due course.
WHEREFORE, the Petition is DISMISSED. Costs against
petitioner.
SO ORDERED.

DOMINGO
DE
GUZMAN, petitioner,
vs. THE
SANDIGANBAYAN (Second Division) and the PEOPLE
OF THE PHILIPPINES, respondents.

SYLLABUS
1. REMEDIAL LAW; RULES OF PROCEDURE; MAY BE
LIBERALLY CONSTRUED TO SERVE THE END OF
JUSTICE. - The power of this Court to suspend its own rules
or to except a particular case from its operations whenever the
purposes of justice require it, cannot be questioned. In not a
few instances, this Court ordered a new trial in criminal cases
on grounds not mentioned in the statute, viz: retraction of
witness, negligence or incompetency of counsel, improvident
plea of guilty, disqualification of an attorney de officio to
represent the accused in trial court, and where a judgment was
rendered on a stipulation of facts entered into by both the
prosecution and the defense. Similarly, in a considerable host
of cases has this prerogative been invoked to relax even
procedural rules of the most mandatory character in terms of
compliance, such as the period to appeal. Let us not forget that
the rules of procedure should be viewed as mere tools designed
to facilitate the attainment of justice. Their strict and rigid
application, which would result in technicalities that tend to
frustrate rather than promote substantial justice, must always
be avoided. Even the Rules of Court envision this
liberality. This power to suspend or even disregard the rules
can be so pervasive and encompassing so as to alter even that
which this Court itself has already declared to be final, as we
are now compelled to do in this case.
2. ID.; ID.; ID.; APPLICABLE IN CASE A PARTY WAS
PENALIZED DUE TO THE NEGLIGENCE OF HIS
COUNSEL. - Petitioners present dilemma is certainly not
something reducible to pesos and centavos. No less than his
liberty is at stake here. And he is just about to lose it simply
because his former lawyers pursued a carelessly contrived
procedural strategy of insisting on what has already become an

imprudent remedy, as aforediscussed, which thus forbade

petitioner from offering his evidence all the while available for
presentation
before
the
Sandiganbayan. Under
the
circumstances, higher interests of justice and equity demand
that petitioner be not penalized for the costly importunings of
his previous lawyers based on the same principles why this
Court had, on many occasions where it granted new trial,
excused parties from the negligence or mistakes of counsel. To
cling to the general rule in this case is only to condone rather
than rectify a serious injustice to petitioners whose only fault
was to repose his faith and entrust his innocence to his previous
lawyers.
3. ID.; SUPREME COURT; NOT TRIER OF FACTS. - The
receipts and other documents constituting his evidence which
he failed to present in the Sandiganbayan are entitled to be
appreciated, however, by that forum and not this Court, for the
general rule is that we are not triers of facts. Without
prejudging the result of such appreciation, petitioners
documentary evidences prima facie appear strong when
reckoned with the lone prosecution witness Angeles testimony,
indicating that official training programs were indeed actually
conducted and that the P200,000.00 cash advance he received
were spent entirely for those programs.
APPEARANCES OF COUNSEL
Zambrano, Gruba & Associates for petitioner.
The Solicitor General for respondents.
R ES OLUTIO N
FRANCISCO, J.:

The Court in its June 16, 1994 En Banc Resolution [1] denied
with finality petitioners motion for reconsideration of the
Courts April 12, 1994 Decision[2] affirming his conviction by
the Sandiganbayan[3] of violation of Section 3(e) of the AntiGraft and Corrupt Practices Act[4] for his alleged failure to
account for P200,000.00 received for certain official training
programs of the Department of Agriculture. Entry of judgment
was ordered to be made in due course. [5] Six (6) years and one
(1) month as minimum, to nine (9) years and one (1) day as
maximum in jail await petitioner.
As the Sandiganbayan and the Court saw it then, petitioners
guilt was duly established by 1) lone prosecution witness
Josephine Angeles[6] testimony that no such training programs
were held at the designated places,[7] and 2) petitioners failure
to present a single receipt to support due disbursement of the
P200,000.00, resulting from his former lawyers insistence in
filing a demurrer to evidence despite prior leave for that
purpose having been denied by the Sandiganbayan.
To avert his looming imprisonment and with full awareness
that he has nothing in our Rules of Court to rely on, petitioner
takes a novel recourse by filing the instant Omnibus Motion
For Leave to Vacate First Motion For Reconsideration In The
Light Of The Present Developments And To Consider Evidence
Presented Herein And To Set Aside Conviction. [8] This was
filed on petitioners behalf by a new counsel, as shown by the
Entry of Appearance and Motion For Leave To Submit
Attached Omnibus Motion filed on June 27, 1994[9] after
petitioners former lawyers withdrew their appearance.[10]
In this Omnibus Motion, petitioner, for the first time, seeks to
be relieved from what he considers as the serious and costly
mistake of his former lawyers[11] in demurring to the
prosecution evidence after court leave was denied, the effect of

which deprived him of presenting before the Sandiganbayan

the pieces of documentary evidence that would have
completely belied the accusation against him. Annexed to the
Omnibus Motion are photocopies of the list of expenses and
receipts[12] in support of the liquidation voucher (Exhibit E)
showing due disbursement of the P200,000.00 received for
training programs actually conducted - the original records of
which are all along kept in the Records Section of the Bureau
of Plant Industry as per letter of the Bureau Director Emillano
P. Gianzon[13] and which are readily available. Petitioner now
appeals to the Courts sense ofjustice and equity that these
documents be summoned and appreciated by the Court itself or
by the Sandiganbayan after remanding the case thereto, if only
to give him the final chance to prove his innocence.
When required by the Court to comment on the Omnibus
Motion,[14] the Solicitor General, representing respondents, was
granted no less than eight (8) extensions to do so, [15] the last
one with warning that no further extension will be given. None
was filed. Instead, the Solicitor General filed a ninth (9th)
motion for extension which was denied considering the
warning contained in the eighth (8th) extension.[16] The tenth
(10th) motion for extension was merely noted by the Court.
[17]
Thereafter, the Court in a Resolution dated August 15, 1995
required the Solicitor Generals Office to 1) SHOW CAUSE
why it should not be disciplinarily dealt with for its repeated
failure to file comment and 2) file its comment, both within ten
(10) days from notice. In compliance therewith, the Solicitor
Generals Office filed its Comment and Explanation. The Court
accepted such Explanation, noted the Comment filed and
required petitioner to file a Reply thereto within ten (10) days
from notice in a Resolution dated October 10, 1995. A Reply
was thus filed by petitioner in due time.

The Solicitor Generals Office advances the following

arguments in its Comment:
1. Petitioners Omnibus Motion is violative of the Courts
adopted policy on second motions for reconsideration as
expressed in a Resolution dated April 7, 1988 stating that:
Where the Court has resolved to deny a motion for
reconsideration and decrees the denial to be final, no motion
for leave to file second motion for reconsideration shall be
entertained.
2. Petitioner is bound by the mistake of his former lawyers,
assuming that the latter indeed committed one.
3. Even granting the petitioner is not bound by his former
lawyers mistake, the documentary evidence petitioner now
attempts to present would nonetheless not cast at all a
reasonable doubt on his guilt for violation of Section 3 of R.A.
No. 3019, as amended, to warrant a reversal of his conviction
by the Sandiganbayan.
Petitioners Reply, on the other hand, contains the following
counter-arguments:
1. The Omnibus Motion is not violative of the prohibition on
second motions for reconsideration since such motion does not
seek leave to file a second motion for reconsideration but for
leave to vacate the first Motion For Reconsideration filed on
May 6, 1994 and in its stead to admit the Omnibus Motion
containing the petitioners documentary evidence and
arguments.Thus, petitioners Motion to vacate the first motion
for reconsideration is but necessary to his defense that he
should be excused from the mistake of his former lawyers.

2. Adherence to the general rule that the client is bound by his

counsels mistake is to deprive petitioner of his liberty through a
technicality.
3. The pieces of evidence petitioner is now presenting for
appreciation either by this Court or the Sandiganbayan will,
contrary to the OSGs claim, disprove his guilt of the charge
levelled against him.
After carefully considering anew petitioners plight and keeping
in mind that substantial rights must ultimately reign supreme
over technicalities, this Court is swayed to reconsider.
The power of this Court to suspend its own rules or to except a
particular case from its operations whenever the purposes of
justice require it, cannot be questioned. [18] In not a few
instances, this Court ordered a new trial in criminal cases on
grounds not mentioned in the statute, viz: retraction of witness,
[19]
negligence or incompetency of counsel,[20] improvident plea
of guilty,[21] disqualification of an attorney de oficio to
represent the accused in trial court,[22] and where a judgment
was rendered on a stipulation of facts entered into by both the
prosecution and the defense.[23] Similarly, in a considerable host
of cases has this prerogative been invoked to relax even
procedural rules of the most mandatory character in terms of
compliance, such as the period to appeal. Take for instance the
relatively recent case of PNB, et al. v. CA, et al.[24] where the
Court once again extended this liberality of allowing an appeal
filed beyond the reglementary 15-day period. It should be
noted that Mr. Justice Melo, while dissenting therein,
[25]
nonetheless made this crucial observation:
The majority opinion, with due respect would suspend the rule
- actually the law - for what it says are petitioners detailed
demonstration of the merits of the appeal without, however,

delving on such so-called merits. The simple merits of ones

case, lost through neglect, to my mind should not automatically
call for the suspension of applicable rules, laws, or
jurisprudence. At the very least, before this may be done
transcendental matters, surely, life, liberty, or the security of
the State, should be at risk, but obviously, not simple matters
which can be reduced to pesos and centavos. (Italics supplied)
Clearly, when transcendental matters like life, liberty or State
security are involved, suspension of the rules is likely to be
welcomed more generously.
Petitioners present dilemma is certainly not something
reducible to pesos and centavos. No less than his liberty is at
stake here. And he is just about to lose it simply because his
former lawyers pursued a carelessly contrived procedural
strategy of insisting on what has already become an imprudent
remedy, as aforediscussed, which thus forbade petitioner from
offering his evidence all the while available for presentation
before the Sandiganbayan. Under the circumstances, higher
interests of justice and equity demand that petitioner be not
penalized for the costly importunings of his previous lawyers
based on the same principles why this Court had, on many
occasions where it granted new trial, excused parties from the
negligence or mistakes of counsel.[26] To cling to the general
rule in this case is only to condone rather than rectify a serious
injustice to petitioners whose only fault was to repose his faith
and
entrust
his
innocence
to
his
previous
lawyers. Consequently, the receipts and other documents
constituting his evidence which he failed to present in the
Sandiganbayan are entitled to be appreciated, however, by that
forum and not this Court, for the general rule is that we are not
triers of facts. Without prejudging the result of such
appreciation, petitioners documentary evidences prima

facie appear strong when reckoned with the lone prosecution

witness Angeles testimony, indicating that official training
programs were indeed actually conducted and that the
P200,000.00 cash advance he received were spent entirely for
those programs. In this connection, the Court in US v. Dungca,
[27]
had occasion to state that:
xxx, the rigor of the rule might in an exceptional case be
relaxed, this would be done only under very exceptional
circumstances, and in cases where a review of the whole record
taken together with the evidence improvidently omitted would
clearly justify the conclusion that the omission had resulted in
the conviction of one innocent of the crime charged.(Italics
supplied)
Let us not forget that the rules of procedure should be viewed
as mere tools designed to facilitate the attainment of
justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote
substantial justice, must always be avoided. Even the Rules of
Court envision this liberality.[28] This power to suspend or even
disregard the rules can be so pervasive and encompassing so as
to alter even that which this Court itself has already declared to
be final, as we are now compelled to do in this case. And this is
not without additional basis. For in Ronquillo v. Marasigan,
[29]
the Court held that:
The fact that the decision x x x has become final, does not
preclude a modification or an alteration thereof because even
with the finality of judgment, when its execution becomes
impossible or unjust, as in the instant case, it may be modified
or altered to harmonize the same with justice and the facts.
(Italics supplied)

The Rules of Court was conceived and promulgated to set forth

guidelines in the dispensation of justice but not to bind and
chain the hand that dispenses it, for otherwise, courts will be
mere slaves to or robots of technical rules, shorn of judicial
discretion. That is precisely why courts in rendering real justice
have always been, as they in fact ought to be, conscientiously
guided by the norm that when on the balance, technicalities
take a backseat against substantive rights, and not the other
way around. Truly then, technicalities, in the appropriate
language of Justice Makalintal, should give way to the realities
of the situation.[30] And the grim reality petitioner will surely
face, if we do not compassionately bend backwards and flex
technicalities in this instance, is the disgrace and misery of
incarceration for a crime which he might not have committed
after all. More so, considering that petitioners record as public
servant remained unscathed until his prosecution. Indeed, while
guilt shall not escape, innocence should not suffer.[31]
In resume, this is a situation where a rigid application of rules
of procedure must bow to the overriding goal of courts of
justice to render justice where justice is due - to secure to every
individual all possible legal means to prove his innocence of a
crime of which he is charged. To borrow Justice Padilla s
words in People v. CA, et al.,[32] (where substantial justice was
upheld anew in allowing therein accuseds appeal despite the
withdrawal of his notice of appeal and his subsequent escape
from confinement) that if only to truly make the courts really
genuine instruments in the administration of justice, the Court
believes it imperative, in order to assure against any possible
miscarriage of justice resulting from petitioners failure to
present his crucial evidence through no fault of his, that this
case be remanded to the Sandiganbayan for reception and
appreciation of petitioners evidence.

WHEREFORE, petitioners Omnibus Motion is GRANTED

and the Courts April 12, 1994 Decision and June 16, 1994
Resolution are hereby RECONSIDERED. Accordingly, let this
case be REMANDED to the Sandiganbayan for reception and
appreciation of petitioners evidence. No costs.
SO ORDERED.

G.R. No. L-32611

November 3, 1930

CULION ICE, FISH AND ELECTRIC CO., INC., plaintiffappellee,

vs.
PHILIPPINE MOTORS CORPORATION, defendantappellant.
Gibbs
and
McDonough
Benj. S. Ohnick for appellee.

for

appellant.

STREET, J.:
This action was instituted in the Court of First Instance of
Manila by the Culion Ice, Fish & Electric Co., Inc., for the
purpose of recovering from the Philippine Motors Corporation
the sum of P11,350, with interest and costs. Upon hearing the
cause the trial court gave judgment in favor of the plaintiff to
recover of the defendant the sum of P9,850, with interest at 6
per centum per annum from March 24,1927, the date of the
filing of the complaint, until satisfaction of the judgment, with
costs. From this judgment the defendant appealed.
The plaintiff and defendant are domestic corporations; and at
the time of the incident with which we are here concerned,
H.D. Cranston was the representative of the plaintiff in the City
of Manila. At the same time the plaintiff was the registered
owner of the motor schooner Gwendoline, which was used in
the fishing trade in the Philippine Islands. In January, 1925,
Cranston decided, if practicable, to have the engine on
the Gwendoline changed from a gasoline consumer to a crude
oil burner, expecting thereby to effect economy in the cost of

running the boat. He therefore made known his desire to

McLeod & Co., a firm dealing in tractors, and was told by Mc
Kellar, of said company, that he might make inquiries of the
Philippine Motors Corporations, which had its office on
Ongpin Street, in the City of Manila. Cranston accordingly
repaired to the office of the Philippine Motors Corporation and
had a conference with C.E. Quest, its manager, who agreed to
do the job, with the understanding that payment should be
made upon completion of the work.
The Philippine Motors Corporation was at this time engaged in
business as an automobile agency, but, under its charter, it had
authority to deal in all sorts of machinery engines and motors,
as well as to build, operate, buy and sell the same and the
equipment therof. Quest, as general manager, had full charge of
the corporations in all its branches.
As a result of the aforesaid interview, Quest, in company with
Cranston, visited the Gwendoline while it lay at anchor in the
Pasig River, and the work of effecting the change in the engine
was begun and conducted under the supervision of Quest,
chiefly by a mechanic whom Quest took with him to the boat.
In this work Quest had the assistance of the members of the
crew of the Gwendoline, who had been directed by Cranston to
place themselves under Quest's directions.
Upon preliminary inspection of the engine, Quest came to the
conclusion that the principal thing necessary to accomplish the
end in view was to install a new carburetor, and a Zenith
carburetor was chosen as the one most adapted to the purpose.
After this appliance had been installed, the engine was tried
with gasoline as a fuel, supplied from the tank already in use.
The result of this experiment was satisfactory. The next
problem was to introduce into the carburetor the baser fuel,
consisting of a low grade of oil mixed with distillate. For this

purpose a temporary tank to contain the mixture was placed on

deck above and at a short distance from the compartment
covering the engine. This tank was connected with the
carburetor by a piece of tubing, which was apparently not well
fitted at the point where it was connected with the tank. Owing
to this fact the fuel mixture leaked from the tank and dripped
sown into the engine compartment. The new fuel line and that
already in use between the gasoline tank and carburetor were
so fixed that it was possible to change from the gasoline fuel to
the mixed fuel. The purpose of this arrangement was to enable
the operator to start the engine on gasoline and then, after the
engine had been operating for a few moments, to switch to the
new fuel supply. lawphil.net

connection again had to be made with the gasoline line to get a

new start. After this had been done the mechanic, or engineer,
switched to the tube connecting with the new mixture. A
moment later a back fire occurred in the cylinder chamber. This
caused a flame to shoot back into the carburetor, and instantly
the carburetor and adjacent parts were covered with a mass of
flames, which the members of the crew were unable to subdue.
They were therefore compelled, as the fire spread, to take to a
boat, and their escape was safely effected, but
theGwendoline was reduced to a mere hulk. The salvage from,
the wreck, when sold, brought only the sum of P150. The value
of the boat, before the accident occured, as the court found,
was P10,000.

In the course of the preliminary work upon the carburetor and

its connections, it was observed that the carburetor was
flooding, and that the gasoline, or other fuel, was trickling
freely from the lower part to the carburetor to the floor. This
fact was called to Quest's attention, but he appeared to think
lightly of the matter and said that, when the engine had gotten
to running well, the flooding would disappear.

A study of the testimony lead us to the conclusion that the loss

of this boat was chargeable to the negligence and lack of skill
of Quest. The temporary tank in which the mixture was
prepared was apparently at too great an elevation from the
carburetor, with the result that when the fuel line was opened,
the hydrostatic pressure in the carburetor was greater than the
delicate parts of the carburetor could sustain. This was no
doubt the cause of the flooding of the carburetor; and the result
was that; when the back fire occurred, the external parts of the
carburetor, already saturated with gasoline, burst into flames,
whence the fire was quickly communicated to the highly
inflammable material near-by. Ordinarily a back fire from an
engine would not be followed by any disaster, but in this case
the leak along the pipe line and the flooding of the carburetor
had created a dangerous situation, which a prudent mechanic,
versed in repairs of this nature, would have taken precautions
to avoid. The back fire may have been due either to the fact
that the spark was too advanced or the fuel improperly mixed.

After preliminary experiments and adjustments had been made

the boat was taken out into the bay for a trial run at about 5
p.m. or a little later, on the evening of January 30,1925. The
first part of the course was covered without any untoward
development, other than he fact that the engine stopped a few
times, owing no doubt to the use of an improper mixture of
fuel. In the course of the trial Quest remained outside of the
engine compartment and occupied himself with making
distillate, with a view to ascertaining what proportion of the
two elements would give best results in the engine.
As the boat was coming in from this run, at about 7:30 p.m.
and when passing near Cavite, the engine stopped, and

In this connection it must be remembered that when a person

holds himself out as being competent to do things requiring
professional skill, he will be held liable for negligence if he
fails to exhibit the care and skill of one ordinarily skilled in the
particular work which he attempts to do. The proof shows that
Quest had had ample experience in fixing the engines of
automobiles and tractors, but it does not appear that he was
experienced in the doing of similar work on boats. For this
reason, possibly the dripping of the mixture form the tank on
deck and the flooding of the carburetor did not convey to his
mind an adequate impression of the danger of fire. But a person
skilled in that particular sort of work would, we think have
been sufficiently warned from those circumstances to cause
him to take greater and adequate precautions against the
danger. In other words Quest did not use the skill that would
have been exhibited by one ordinarily expert in repairing
gasoline engines on boats. There was here, in our opinion, on
the part of Quest, a blameworthy antecedent inadvertence to
possible harm, and this constitutes negligence. The burning of
the Gwendoline may be said to have resulted from accident, but
this accident was in no sense an unavoidable accident. It would
not have occured but for Quest's carelessness or lack of skill.
The test of liability is not whether the injury was accidental in a
sense, but whether Quest was free from blame.
We therefore see no escape from the conclusion that this
accident is chargeable to lack of skill or negligence in effecting
the changes which Quest undertook to accomplish; and even
supposing that our theory as to the exact manner in which the
accident occurred might appear to be in some respects
incorrect, yet the origin of the fire in not so inscrutable as to
enable us to say that it was casus fortuitus.

The trial judge seems to have proceeded on the idea that,

inasmuch as Quest had control of the Gwendolineduring the
experimental run, the defendant corporation was in the position
of a bailee and that, as a consequence, the burden of proof was
on the defendant to exculpate itself from responsibility by
proving that the accident was not due to the fault of Quest. We
are unable to accede to this point of view. Certainly, Quest was
not in charge of the navigation of the boat on this trial run. His
employment contemplated the installation of new parts in the
engine only, and it seems rather strained to hold that the
defendant corporation had thereby become bailee of the boat.
As a rule workmen who make repairs on a ship in its owner's
yard, or a mechanic who repairs a coach without taking it to his
shop, are not bailees, and their rights and liabilities are
determined by the general rules of law, under their contract.
The true bailee acquires possession and what is usually spoken
of as special property in the chattel bailed. As a consequence of
such possession and special property, the bailee is given a lien
for his compensation. These ideas seem to be incompatible
with the situation now under consideration. But though
defendant cannot be held liable in the supposition that the
burden of proof had not been sustained by it in disproving the
negligence of its manager, we are nevertheless of the opinion
that the proof shows by a clear preponderance that the accident
to the Gwendoline and the damages resulting therefrom are
chargeable to the negligence or lack of skill of Quest.
This action was instituted about two years after the accident in
question had occured, and after Quest had ceased to be
manager of the defendant corporation and had gone back to the
United States. Upon these facts, the defendant bases the
contention that the action should be considered stale. It is
sufficient reply to say that the action was brought within the

period limited by the statute of limitations and the situation is

not one where the defense of laches can be properly invoked.

it. Santos removed the diamond by twisting the setting with a

pair of pliers, breaking the gem in the process.[7]

It results that the judgment appealed from, awarding damages

to the plaintiff in the amount of P9,850, with interest, must be
affirmed; and it is so ordered, with costs against the appellant.

Petitioner required the respondents to replace the diamond with

the same size and quality. When they refused, the petitioner
was forced to buy a replacement in the amount of P30,000.[8]

TOMASA SARMIENTO, petitioner, vs. SPS. LUIS &

ROSE SUN-CABRIDO and MARIA LOURDES
SUN, respondents.
DECISION
CORONA, J.:
This appeal by certiorari stems from the Decision [1] of
respondent Court of Appeals promulgated on November 26,
1999 in CA-G.R. SP No. 47431 declaring the private
respondents not liable for damages.
Petitioner, Tomasa Sarmiento, states that sometime in April
1994, a friend, Dra. Virginia Lao, requested her to find
somebody to reset a pair of diamond earrings into two gold
rings.[2]Accordingly, petitioner sent a certain Tita Payag with
the pair of earrings to Dingdings Jewelry Shop, owned and
managed by respondent spouses Luis and Rose Cabrido,
[3]
which accepted the job order for P400.[4]
Petitioner provided 12 grams of gold to be used in crafting the
pair of ring settings.[5] After 3 days, Tita Payag delivered to the
jewelry shop one of Dra. Laos diamond earrings which was
earlier appraised as worth .33 carat and almost perfect in cut
and clarity.[6] Respondent Ma. Lourdes (Marilou) Sun went on
to dismount the diamond from its original setting.
Unsuccessful, she asked their goldsmith, Zenon Santos, to do

Respondent Rose Cabrido, manager of Dingdings Jewelry

Shop, denied having entered into any transaction with Tita
Payag whom she met only after the latter came to the jewelry
shop to seek compensation from Santos for the broken piece of
jewelry.[9] However, it was possible that Payag may have
availed of their services as she could not have known every
customer who came to their shop. Rose disclosed that she
usually arrived at 11:00 a.m. When she was not around, her
mother and sister tended the shop.[10]
Marilou admitted knowing Payag who came to Dingdings
Jewelry Shop to avail of their services regarding a certain piece
of jewelry. After a short conversation, Payag went inside the
shop to see Santos. When the precious stone was broken by
Santos, Payag demanded P15,000 from him. As the latter had
no money, she turned to Marilou for reimbursement apparently
thinking that Marilou was the owner of the shop.[11]
For his part, Santos recalled that Payag requested him to
dismount what appeared to him was a sapphire. While clipping
the setting with the use of a small pair of pliers, the stone
accidentally broke. Santos denied being an employee of
Dingdings Jewelry Shop.[12]
Attempts to settle the controversy before the barangay
lupon proved futile.[13] Consequently, petitioner filed a
complaint for damages on June 28, 1994 with the Municipal
Trial Court in Cities (MTCC) of Tagbilaran City docketed as

Civil Case No. 2339 which rendered a decision [14] in favor of

the petitioner, the dispositive portion of which reads:
WHEREFORE, Decision is hereby rendered in favor of
plaintiff Tomasa Sarmiento and against defendants Spouses
Luis and Rose Sun-Cabrido, ordering defendants to pay jointly
and severally the amount of Thirty Thousand Pesos
(P30,000.00) as actual or compensatory damages; Three
Thousand Pesos (P3,000.00) as moral damages; Five Thousand
Pesos (P5,000.00) as attorneys fees; Two Thousand Pesos
(P2,000.00) as litigation expenses, with legal interest of 6% per
annum from the date of this decision and 12% per annum from
the date when this decision becomes final until the amounts
shall have been fully paid and to pay the costs.
This case as against defendant Maria Lourdes Sun as well as
defendants counterclaim are dismissed for lack of merit.
SO ORDERED.
On appeal, the Regional Trial Court (RTC) of Tagbilaran City,
Branch 3, reversed the decision of the MTCC, thus absolving
the respondents of any responsibility arising from breach of
contract.[15] Finding no reversible error, the Court of Appeals
(CA) affirmed the judgment of the RTC in its Decision
promulgated on November 26, 1999.[16]
Unable to accept the decision, the petitioner filed the instant
petition for review with the following assigned errors:
I

THE COURT OF APPEALS ERRED IN MAINTAINING

AND SO HOLDING THAT ZENON SANTOS IS NOT AN
EMPLOYEE OF DEFENDANT (herein respondent) ROSE
SUN-CABRIDO, AND IS THEREFORE ANSWERABLE
FOR HIS OWN ACTS OR OMISSIONS
II
THE HONORABLE COURT OF APPEALS ERRED IN
SUSTAINING THE REGIONAL TRIAL COURTS
PRONOUNCEMENTS THAT THERE EXISTS NO
AGREEMENT BETWEEN THE PETITIONER AND
RESPONDENTS THAT THE LATTER WOULD ANSWER
FOR ANY LIABILITY SHOULD THE DIAMOND BE
DAMAGED IN THE PROCESS OF DISMOUNTING THEM
FROM THE EARRINGS.
Essentially, petitioner claims that the dismounting of the
diamond from its original setting was part of the obligation
assumed by the private respondents under the contract of
service.Thus, they should be held liable for damages arising
from its breakage. On the other hand, the version of the private
respondents, upheld by the RTC and the CA, is that their
agreement with the petitioner was for crafting two gold rings
mounted with diamonds only and did not include the
dismounting of the said diamonds from their original setting.
[17]
Consequently, the crux of the instant controversy is the
scope of the obligation assumed by the private respondents
under the verbal contract of service with the petitioner.
The Court notes that, during the trial, private respondents
vigorously denied any transaction between Dingdings Jewelry
Shop and the petitioner, through Tita Payag. Rose Cabrido, for
instance, denied having ever met Payag before the latter came
to seek reimbursement for the value of the broken

diamond. Likewise, while Marilou acknowledged acquaintance

with Payag, she nevertheless denied accepting any job order
from her. Debunking their protestations, however, the MTCC
of Tagbilaran City rendered its decision on November 26, 1999
in favor of herein petitioner.

intended to spare the jewelry shop of the task but she did
not. Instead, petitioner was charged P400 for the job order
which was readily accepted. Thus, a perfected contract to reset
the pair of diamond earrings arose between the petitioner,
through Payag, and Dingdings Jewelry Shop, through Marilou.

Apparently realizing the weakness and futility of their position,

private respondents conceded, on appeal, the existence of an
agreement with the petitioner for crafting a pair of gold rings
mounted with diamonds. This apparent concession by the
private respondents, however, was really nothing but an
ingenious maneuver, designed to preclude, just the same, any
recovery for damages by the petitioner. Thus, while ostensibly
admitting the existence of the said agreement, private
respondents, nonetheless denied assuming any obligation to
dismount the diamonds from their original settings.[18]

Marilous subsequent actuations were even more revealing as

regards the scope of obligation assumed by the jewelry shop.
After the new settings were completed in 3 days, she called up
the petitioner to bring the diamond earrings to be reset.
[21]
Having initially examined one of them, Marilou went on to
dismount the diamond from its original setting. Unsuccessful,
she then delegated the task to their goldsmith, Zenon Santos.
Having acted the way she did, Marilou cannot now deny the
shops obligation to reset the pair of earrings.

The inconsistent position of the private respondents impugns

their credibility. They cannot be permitted to adopt a certain
stance, only to vacillate later to suit their interest. We are
therefore inclined to agree with the MTCC in giving credence
to the version of the petitioner. The MTCC had the unique
opportunity to actually observe the behavior and demeanor of
thewitnesses as they testified during the trial.[19]

Obligations arising from contracts have the force of law

between the contracting parties.[22] Corollarily, those who in the
performance of their obligations are guilty of fraud, negligence
or delay and those who in any manner contravene the tenor
thereof, are liable for damages.[23] The fault or negligence of
the obligor consists in the omission of that diligence which is
required by the nature of the obligation and corresponds with
the circumstances of the persons, of the time and of the place.
[24]

At any rate, the contemporaneous and subsequent acts of the

parties[20] support the version of the petitioner. Thus, when Tita
Payag asked Marilou of Dingdings Jewelry Shop to reset a pair
of diamond earrings, she brought with her the said pieces of
jewelry so that the diamonds which were still mounted could
be measured and the new ring settings crafted accordingly. On
the said occasion, Marilou expressed no reservation regarding
the dismounting of the diamonds which, after all, was an
integral part of petitioners job order. She should have instructed
Payag to have them dismounted first if Marilou had actually

In the case at bar, it is beyond doubt that Santos acted

negligently in dismounting the diamond from its original
setting. It appears to be the practice of the trade to use a
miniature wire saw in dismounting precious gems, such as
diamonds, from their original settings.[25] However, Santos
employed a pair of pliers in clipping the original setting, thus
resulting in breakage of the diamond. The jewelry shop failed
to perform its obligation with the ordinary diligence required
by the circumstances. It should be pointed out that Marilou

examined the diamond before dismounting it from the original

setting and found the same to be in order. Its subsequent
breakage in the hands of Santos could only have been caused
by his negligence in using the wrong equipment. Res ipsa
loquitur.
Private respondents seek to avoid liability by passing the buck
to Santos who claimed to be an independent worker. They also
claim, rather lamely, that Marilou simply happened to drop by
at Dingdings Jewelry Shop when Payag arrived to place her job
order.[26]
We do not think so.
The facts show that Santos had been working at Dingdings
Jewelry Shop as goldsmith for about 6 months accepting job
orders through referrals from private respondents.[27] On the
other hand, Payag stated that she had transacted with
Dingdings Jewelry Shop on at least 10 previews occasions,
always through Marilou.[28] The preponderance of evidence
supports the view that Marilou and Zenon Santos were
employed at Dingdings Jewelry Shop in order to perform
activities which were usually necessary or desirable in its
business.[29]
We therefore hold that an obligation to pay actual damages
arose in favor of the petitioner against the respondents spouses
who admittedly owned and managed Dingdings Jewelry
Shop. It was proven that petitioner replaced the damaged
jewelry in the amount of P30,000.[30]

The facts of the case also justify the award of moral

damages. As a general rule, moral damages are not recoverable
in actions for damages predicated on a breach of contract for it
is not one of the items enumerated under Article 2219 of the
Civil Code.[31] Moral damages may be awarded in a breach of
contract only when there is proof that defendant acted in bad
faith, or was guilty of gross negligence amounting to bad faith,
or in wanton disregard of his contractual obligation.[32] Santos
was a goldsmith for more than 40 years. [33] Given his long
experience in the trade, he should have known that using a pair
of pliers instead of a miniature wire saw in dismounting a
precious stone like a diamond would have entailed an
unnecessary risk of breakage. He went on with it
anyway. Hence, respondent spouses are liable for P10,000 as
moral damages due to the gross negligence of their employee.
However, private respondents refusal to pay the value of the
damaged jewelry emanated from an honest belief that they
were not responsible therefor, hence, negating any basis for the
award of attorneys fees.[34]
WHEREFORE, the instant petition is GRANTED and the
assailed decision of the Court of Appeals dated November 26,
1999 is hereby reversed and set aside. Private respondents Luis
Cabrido and Rose Sun-Cabrido are hereby ordered to pay,
jointly and severally, the amount of P30,000 as actual damages
and P10,000 as moral damages in favor of the petitioner.
No costs.
SO ORDERED.