584 SUPREME COURT REPORTS ANNOTATED
585
Ramos vs. Court of Appeals
G.R. No. 124354. December 29, 1999.
*
ROGELIO E. RAMOS and ERLINDA RAMOS, in their
own behalf and as natural guardians of the minors,
ROMMEL RAMOS, ROY RODERICK RAMOS and
RON RAYMOND RAMOS, petitioners,vs. COURT OF
APPEALS, DELOS SANTOS MEDICAL CENTER, DR.
ORLINO HOSAKA and DRA. PERFECTA
GUTIERREZ, respondents.
Remedial Law; Pleadings and Practice; When a party is
represented by counsel, all notices should be sent to the partys
lawyer at his given address.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.
Same; Evidence; Res Ipsa Loquitur; Doctrine of Res Ipsa
Loquitur.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. Where the thing which caused the
injury complained of is shown to be under the management
of the defen-
________________
*FIRST DIVISION.
VOL. 321, DECEMBER 29, 1999 585
Ramos vs. Court of Appeals
dant 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.
Same; Same; Same; Same; Res Ipsa Loquitur is applied
in conjunction with the doctrine of common knowledge.The
doctrine of res ipsa loquituris simply a recognition of the
postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences
may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury
in the absence of some explanation by the defendant who is
charged with negligence. It is grounded in the superior logic
of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident itself.
Hence, res ipsa loquitur is applied in conjunction with the
doctrine of common knowledge.
Same; Same; Same; Same; Mere invocation and
application of the doctrine does not dispense with the
requirement of proof of negligence; Requisites before resort to
the doctrine may be allowed.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. Instead, it is considered as merely
evidentiary or in the nature of a procedural rule. 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. 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. Still, before resort to the
doctrine may be allowed, the following requisites must be
satisfactorily shown: 1. The accident is of a kind which
ordinarily does not occur in the absence of someones
negligence; 2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants; and 3. The
possibility of contributing conduct which would make the
plaintiff responsible is eliminated.
586
586 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
Same; Same; Same; Same; When the doctrine of res ipsa
loqui-tur is availed by the plaintiff, the need for expert
medical testimony is dispensed with because the injury itself
provides the proof of negligence.Although generally, expert
medical testimony is relied upon in malpractice suits to prove
that a physician has done a negligent act or that he has
deviated from the standard medical procedure, when the
doctrine of res ipsa loquitur is availed by the plaintiff, the
need for expert medical testimony is dispensed with because
the injury itself provides the proof of negligence. The reason
is that the general rule on the necessity of expert testimony
applies only to such matters clearly within the domain of
medical science, and not to matters that are within the
common knowledge of mankind which may be testified to by
anyone familiar with the facts. Ordinarily, only physicians
and surgeons of skill and experience are competent to testify
as to whether a patient has been treated or operated upon
with a reasonable degree of skill and care. However,
testimony as to the statements and acts of physicians and
surgeons, external appearances, and manifest conditions
which are observable by any one may be given by non-expert
witnesses.
Same; Same; Same; Same; 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.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.
Same; Same; Same; Same; 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.It must be conceded that the doctrine of res
ipsa loquitur can have no application in a suit against a
physician or surgeon which involves the merits of a diagnosis
or of a scientific treatment. The physician or surgeon is not
required at his peril to explain why any particular diagnosis
was not correct, or why any particular scientific treatment
did not produce
587
VOL. 321, DECEMBER 29, 1999 587
Ramos vs. Court of Appeals
the desired result. Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the
desired result of an operation or treatment was not
accomplished.
Hospitals; Damages; Proximate Cause Defined.
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. 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. It is the dominant,
moving or producing cause.
Same; Same; 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.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.
Same; Same; The basis for holding an employer
solidarily responsible for the negligence of its employee is
found in Article 2180 of the Civil Code.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. 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. In other words, while the
burden of proving negligence rests
588
588 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
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.
Same; Same; Amount of damages awarded may be a
continuing one where the injury is chronic and continuing, as
when the patient is comatose.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. 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.
PETITION for review on certiorari of a decision of the
Court of Appeals.
The facts are stated in the opinion of the Court.
Luis C.A. Sillano for petitioners.
Macarius S. Galutera for private respondent De
los Santos Medical Center.
Tanjuatco, Sta. Maria, Tanjuatco collaborating
counsel for DLSMC.
Antonio H. Abad & Associates for respondent
doctors.
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
589
VOL. 321, DECEMBER 29, 1999
Ramos vs. Court of Appeals
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.
Petitioners seek the reversal of the decision of the
3
Court of Appeals, dated 29 May 1995, which overturned
the decision of the Regional Trial Court, dated 30
4
January 1992, finding private respondents liable for
damages arising from negligence in the performance of
their professional duties towards petitioner Erlinda
Ramos resulting in her comatose condition.
The antecedent facts as summarized by the trial
court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17,
1985, a 47-year old (Exh. A) robust woman (TSN, October
19, 1989, p. 10). Except for occasional complaints of
discomfort due to pains allegedly caused by the presence of a
stone in her gall bladder (TSN, January 13, 1988, pp. 4-5),
she was as normal as any other woman. Married to Rogelio
E. Ramos, an executive of Philippine Long Distance
Telephone Company, she has three children whose names
are
________________
1 In the United States alone, a great number of people die every year
as a result of medical mishaps. The 13 December 1999 issue of TIME
MAGAZINE featured an article on medical negligence entitled Doctors
Deadly Mistakes which is quoted in part: It is hardly news that medical
professionals make mistakeseven dumb, deadly mistakes. What is
shocking is how often it happens. Depending on which statistics you
589 believe, the number of Americans killed by medical screw-ups is
somewhere between 44,000 and 98,000 every yearthe eighth leading
cause of death even by the more conservative figure, ahead of car crashes,
breast cancer and AIDS. More astonishing than the huge numbers
themselves, though, is the fact that public health officials had known
about the problem for years and hadnt made a concerted effort to do
something about it.
2 Cholecystectomy is the surgical excision of the gall bladder.
3 CA Rollo, pp. 129-140.
4 Records, pp. 270-279.
2
590
590 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
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 timeDr. 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
591
VOL. 321, DECEMBER 29, 1999 591
Ramos vs. Court of Appeals
support to the patient, to them. Herminda was allowed to
stay inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby
phone to look for Dr. Hosaka who was not yet in (TSN,
January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter
informed Herminda Cruz about the prospect of a delay in the
arrival of Dr. Hosaka. Herminda then went back to the
patient who asked, Mindy, wala pa ba ang Doctor? The
former replied, Huwag kang mag-alaala, darating na iyon
(ibid.).
Thereafter, Herminda went out of the operating room and
informed the patients husband, Rogelio, that the doctor was
not yet around (id., p. 13). When she returned to the
operating room, the patient told her, Mindy, inip na inip na
ako, ikuha mo ako ng ibang Doctor. So, she went out again
and told Rogelio about what the patient said (id., p. 15).
Thereafter, she returned to the operating room.
At around 10:00 A.M., Rogelio E. Ramos was already
dying [and] waiting for the arrival of the doctor even as he
did his best to find somebody who will allow him to pull out
his wife from the operating room (TSN, October 19, 1989, pp.
19-20). He also thought of the feeling of his wife, who was
inside the operating room waiting for the doctor to arrive
(ibid.). At almost 12:00 noon, he met Dr. Garcia who
remarked that he (Dr. Garcia) was also tired of waiting for
Dr. Hosaka to arrive (id., p. 21). While talking to Dr. Garcia
at around 12:10 P.M., he came to know that Dr. Hosaka
arrived as a nurse remarked, Nandiyan na si Dr. Hosaka,
dumating na raw. Upon hearing those words, he went down
to the lobby and waited for the operation to be completed (id.,
pp. 16, 29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the
operating room with the patient, heard somebody say that
Dr. Hosaka is already here. She then saw people inside the
operating room moving, doing this and that, [and] preparing
the patient for the operation (TSN, January 13, 1988, p. 16).
As she held the hand of Erlinda Ramos, she then saw Dr.
Gutierrez intubating the hapless patient. She thereafter
heard Dr. Gutierrez say, ang hirap maintubate 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 oper-
592
592 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
ating room, she saw this anesthesiologist trying to intubate
the patient. The patients nailbed became bluish and the
patient was placed in a trendelenburg positiona 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
593
VOL. 321, DECEMBER 29, 1999
Ramos vs. Court of Appeals
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 for damages with the Regional Trial Court of
6
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
593 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
________________
5 Id. at 270-275.
6 Docketed as Civil Case No. Q-46885.
594
594 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
after she committed a mistake in intubating [the] patient,
the patients nailbed became bluish and the patient,
thereafter, was placed in trendelenburg position, because of
the decrease of blood supply to the patients brain. The
evidence further shows that the hapless patient suffered
brain damage because of the absence of oxygen in her
(patients) 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 patients) 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 patients 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. 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. 2)the sum of P100,000.00 as reasonable attorneys
fees;
3. 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,
595
VOL. 321, DECEMBER 29, 1999 595
Ramos vs. Court of Appeals
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. Meanwhile, petitioners engaged the services of
9 Comment/Opposition, the former, for lack of merit, is hereby
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 plead-
________________
7 Records, pp. 276-278.
8 CA Rollo, p. 166.
9 Id. at 145.
596
596 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
ing on the assailed decision had not yet commenced to
run as the Division Clerk of Court of the Court of
Appeals had not yet served a copy thereof to the counsel
on record. Despite this explanation, the appellate court
still denied the motion to admit the motion for
reconsideration of petitioners in its Resolution, dated 29
March 1996, primarily on the ground that the fifteen-
day (15) period for filing a motion for reconsideration
had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of
a Motion for Reconsideration cannot be extended; precisely,
the Motion for Extension (Rollo, p. 12) was denied. It is, on
the other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as
June 9, 1995. Computation wise, the period to file a Motion
for Reconsideration expired on June 24. The Motion for
Reconsideration, in turn, was received by the Court of
Appeals already on July 4, necessarily, the 15-day period
already passed. For that alone, the latter should be denied.
Even assuming admissibility of the Motion for
Reconsideration, but after considering the
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:
________________
Id. at 195.
10
597
VOL. 321, DECEMBER 29, 1999 597
Ramos vs. Court of Appeals
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 Id. at 91-98.
12

RAMOS; 598
598 SUPREME COURT REPORTS ANNOTATED
III Ramos vs. Court of Appeals
nished to the counsel on record. Petitioner, not being a
IN NOT APPLYING THE DOCTRINE OF RES IPSA
lawyer and unaware of the prescriptive period for filing
LOQUITUR. 11

a motion for reconsideration, referred the same to a

Before we discuss the merits of the case, we shall first
legal counsel only on 20 June 1995.
dispose of the procedural issue on the timeliness of the
It is elementary that when a party is represented by
petition in relation to the motion for reconsideration
counsel, all notices should be sent to the partys lawyer
filed by petitioners with the Court of Appeals. In their
at his given address. With a few exceptions, notice to a
Comment, private respondents contend that the
12

litigant without notice to his counsel on record is no

petition should not be given due course since the motion
notice at all. In the present case, since a copy of the
for reconsideration of the petitioners on the decision of
decision of the appellate court was not sent to the
the Court of Appeals was validly dismissed by the
counsel on record of petitioner, there can be no sufficient
appellate court for having been filed beyond the
notice to speak of. Hence, the delay in the filing of the
reglementary period. We do not agree.
motion for reconsideration cannot be taken against
A careful review of the records reveals that the
petitioner. Moreover, since the Court of Appeals already
reason behind the delay in filing the motion for
issued a second Resolution, dated 29 March 1996, which
reconsideration is attributable to the fact that the
superseded the earlier resolution issued on 25 July
decision of the Court of Appeals was not sent to then
1995, and denied the motion for reconsideration of
counsel on record of petitioners, the Coronel Law Office.
petitioner, we believe that the receipt of the former
In fact, a copy of the decision of the appellate court was
should be considered in determining the timeliness of
instead sent to and received by petitioner Rogelio
the filing of the present petition. Based on this, the
Ramos on 9 June 1995 wherein he was mistakenly
petition before us was submitted on time.
addressed as Atty. Rogelio Ramos. Based on the other
After resolving the foregoing procedural issue, we
communications received by petitioner Rogelio Ramos,
shall now look into the merits of the case. For a more
the appellate court apparently mistook him for the
logical presentation of the discussion we shall first
counsel on record. Thus, no copy of the decision of the
consider the issue on the applicability of the doctrine
appellate court was fur-
________________ of res ipsa loquitur to the instant case. Thereafter, the
first two assigned errors shall be tackled in relation to
11 Rollo, p. 19. the res ipsa loquitur doctrine.
 Res ipsa loquitur is a Latin phrase which literally
means the thing or the transaction speaks for itself.
The phrase res ipsa loquitur is a maxim for the rule
that the fact of the occurrence of an injury, taken with
the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or make
out a plaintiffs prima facie case, and present a question
of fact for defendant to meet with an
explanation. Where the thing which caused the injury
13
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 man-
________________
1357B Am Jur 2d, 493 (1989).
599
VOL. 321, DECEMBER 29, 1999 599 of the attending circumstances to invoke the doctrine,
Ramos vs. Court of Appeals
agement or control use proper care, it affords
reasonable evidence, in the absence of explanation by
the defendant, that the accident arose from or was
caused by the defendants want of care. 14
The doctrine of res ipsa loquitur is simply a
recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain
types of occurrences may justify an inference of
negligence on the part of the person who controls the
instrumentality causing the injury in the absence of
some explanation by the defendant who is charged with
negligence. It is grounded in the superior logic of
15
ordinary human experience and on the basis of such
experience or common knowledge, negligence may be
deduced from the mere occurrence of the accident
itself. Hence,res ipsa loquitur is applied in conjunction
16
with the doctrine of common knowledge.
However, much has been said that res ipsa
loquitur is not a rule of substantive law and, as such,
does not create or constitute an independent or separate
ground of liability. Instead, it is considered as merely
17
evidentiary or in the nature of a procedural rule. It is 18
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. In other words, mere invocation
19
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
creating an inference or presumption of negligence, and
to thereby place on the defendant the burden
________________
Africa, et al. vs. Caltex (Phil.), Inc., et al., 16 SCRA 449, 454
14
(1966).
57B Am Jur 2d, supra note 13 at 499.
15
Ibid.16
Id. at 502.
17
Ibid.18
Id. 19
600
600 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
of going forward with the proof. Still, before resort to
20
the doctrine may be allowed, the following requisites
must be satisfactorily shown:
 1. 1.The accident is of a kind which ordinarily does
not occur in the absence of someones
negligence;
2. 2.It is caused by an instrumentality within the
exclusive control of the defendant or defendants;
and
3. 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. Such element of control must be shown to be
22
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 cases do not escape the
24
application of this doctrine. Thus, res ipsa loquitur has
been applied when the circumstances attendant upon
the harm are themselves of such a character as to justify
an inference of negligence as the cause of that
harm. The application of res ipsa loquitur in medical
25
negligence cases presents a question of law since it is
________________
20Id. at 503.
21Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union
Gas System,182 Kan. 686, 324 P.2d 501; Lamb v. Hartford Accident
and Indemnity Co., Primm v. Kansas Power & Light Co., 173 Kan. 443,
249 P.2d 647.
22 St. Johns Hospital and School of Nursing vs. Chapman, 434 P.2d
160, 166 (1967).
23 57B Am Jur 2d, supra note 13, at 513.
24 It is the type of claim which a victim has available to him or her
to redress a wrong committed by a medical professional which has
caused bodily harm. (Garcia-Rueda vs. Pascasio, 278 SCRA 769, 778
[1997]).
25 Voss vs. Bridwell, supra note 21.
601
VOL. 321, DECEMBER 29, 1999 601
Ramos vs. Court of Appeals
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. The reason is that the general rule
27
on the necessity of expert testimony applies only to such
matters clearly within the domain of medical science,
and not to matters that are within the common
knowledge of mankind which may be testified to by
anyone familiar with the facts. Ordinarily, only
28
physicians and surgeons of skill and experience are
competent to testify as to whether a patient has been
treated or operated upon with a reasonable degree of
skill and care. However, testimony as to the statements
and acts of physicians and surgeons, external
appearances, and manifest conditions which are
observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa
29
loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the
patient, without the aid of expert testimony, where the
court from its fund of common knowledge can determine
the proper standard of care. Where common knowledge
30
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
________________
26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).
27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).
28 Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs.
Foncannon, 127 Kan. 573, 274 P. 237.
Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs.
29
Gibbons, 95 Kan. 802, 149 P. 422, 423.
30 SOLIS, supra note 27, at 239.
602
602 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
occurred. When the doctrine is appropriate, all that the
31
patient must do is prove a nexus between the particular
act or omission complained of and the injury sustained
while under the custody and management of the
defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res
ipsa loquitur is allowed because there is no other way,
under usual and ordinary conditions, by which the
patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the
doctrine in the following situations: leaving of a foreign
object in the body of the patient after an
operation, injuries sustained on a healthy part of the
32
body which was not under, or in the area, of
treatment, removal of the wrong part of the body when
33
another part was intended, knocking out a tooth while
34
a patients jaw was under anesthetic for the removal of
his tonsils, and loss of an eye while the patient plaintiff
35
was under the influence of anesthetic, during or
following an operation for appendicitis, among others.
36
Nevertheless, despite the fact that the scope of res
ipsa loquiturhas been measurably enlarged, it does not
automatically apply to all cases of medical negligence as
to mechanically shift the burden of proof to the
defendant to show that he is not guilty of the ascribed
negligence. Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances
of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the
consequences of professional care were not as such as
would ordinarily have followed if due care had been
exercised. A distinction must
37
________________
31 Voss vs. Bridwell, supra note 21 at 970-971.
32 Armstrong vs. Wallace, 47 P. 2d 740 (1935).
33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938).
34 Griffin vs. Norman, 192 NYS 322 (1922).
35 Brown vs. Shortilledge, 277 P. 134 (1929).
36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937).
37 Voss vs. Bridwell, supra note 21, at 969.
 603
VOL. 321, DECEMBER 29, 1999
Ramos vs. Court of Appeals
be made between the failure to secure results, and the
occurrence of something more unusual and not
ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that
particular practice. It must be conceded that the
doctrine of res ipsa loquitur can have no application in
a suit against a physician or surgeon which involves the
merits of a diagnosis or of a scientific treatment. The
38
physician or surgeon is not required at his peril to
explain why any particular diagnosis was not correct, or
why any particular scientific treatment did not produce
the desired result. Thus, res ipsa loquitur is not
39
available in a malpractice suit if the only showing is
that the desired result of an operation or treatment was
not accomplished. The real question, therefore, is
40
whether or not in the process of the operation any
extraordinary incident or unusual event outside of the
routine performance occurred which is beyond the
regular scope of customary professional activity in such
operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent
cause or causes of the untoward consequence. If there
41
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
603 application of res ipsa loquitur.
A case strikingly similar to the one before us is Voss
vs. Bridwell, where the Kansas Supreme Court in
43
applying the res ipsa loquitur stated:
________________
38 Id. at 968.
39 Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).
40 Voss vs. Bridwell, supra note 21, at 968.
41 Sanders vs. Smith, 27 So. 2d 889, 893 (1946).
42 Ibid.
43 Voss vs. Bridwell, supra note 21.
604
604 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
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 Normally, a person being put under anesthesia is not
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 Furthermore, the instruments used in the
the doctrine of res ipsa loquitur.
44
Indeed, the principles enunciated in the aforequoted
case apply with equal force here. In the present case,
Erlinda submitted herself forcholecystectomy and
expected a routine general surgery to be performed on
her gall bladder. On that fateful day she delivered her
person over to the care, custody and control of private
respondents who exercised complete and exclusive
control over her. At the time of submission, Erlinda was
neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and
body. However, during the administration of anesthesia
and prior to the performance of cholecystectomy she
suffered irreparable damage to her brain. Thus, without
undergoing surgery, she
________________
44Id. at 971.
605
VOL. 321, DECEMBER 29, 1999 605
Ramos vs. Court of Appeals
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.
rendered decerebrate as a consequence of administering
such anesthesia if the proper procedure was followed.
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 loquiturcoverage.
Having in mind the applicability of the res ipsa
loquitur doctrine and the presumption of negligence
allowed therein,
606
606 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
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 of the patient and thus,
45
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
________________
45 It is the method of intubating a patient through the oral cavity.
Under this procedure, after the patient has been preoxygenated and
paralyzed and is no longer breathing on his own, the anesthetist
inserts an instrument called a laryngoscope into the patients oral
pharynx. The patients neck is hyperextended, that is, bent back as far
as possible so that the anesthetist can see or visualize the patients
epiglottis and vocal cords. The anesthetist will then thread the
endotracheal tube between the patients vocal cords into the trachea,
and then hook the tube to the breathing bag and anesthetic machine.
607
VOL. 321, DECEMBER 29, 1999 607
Ramos vs. Court of Appeals
and hospital and absolved them of any liability towards
Er-linda 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 petitioners 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
608
608 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
Gutierrez herself. She was saying Ang hirap maintubate
nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.
xxx
ATTY. PAJARES:
Q: From whom did you hear those words lumalaki ang
tiyan?
A: From Dra. Perfecta Gutierrez.
xxx
Q. After hearing the phrase lumalaki ang tiyan, what did
you notice on the person of the patient?
A: I notice (sic) some bluish discoloration on the nailbeds
ofthe left hand where I was at.
Q: Where was Dr. Orlino Ho[s]aka then at that
particulartime?
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
thepatient was placed in trendelenburg position.
xxx
Q: Do you know the reason why the patient was placed in
that trendelenburg position?
A:
As far as I know, when a patient is in that position, there
is a decrease of blood supply to the brain.46
xxx
________________
46TSN, January 13, 1988, pp. 16-20.
609
VOL. 321, DECEMBER 29, 1999 609 testimony of expert witnesses is not required. It is the
Ramos vs. Court of Appeals
The appellate court, however, disbelieved Dean Cruzs
testimony in the trial court by declaring that:
A perusal of the standard nursing curriculum in our country
will show that intubation is not taught as part of nursing
procedures and techniques. Indeed, we take judicial notice of
the fact that nurses do not, and cannot, intubate. Even on
the assumption that she is fully capable of determining
whether or not a patient is properly intubated, witness
Herminda Cruz, admittedly, did not peep into the throat of
the patient. (TSN, July 25, 1991, p. 13). More importantly,
there is no evidence that she ever auscultated the patient or
that she conducted any type of examination to check if the
endotracheal tube was in its proper place, and to determine
the condition of the heart, lungs, and other organs. Thus,
witness Cruzs categorical statements that appellant Dra.
Gutierrez failed to intubate the appellee Erlinda Ramos and
that it was Dra. Calderon who succeeded in doing so clearly
suffer from lack of sufficient factual bases.
47
In other words, what the Court of Appeals is trying to
impress is that being a nurse, and considered a layman
in the process of intubation, witness Cruz is not
competent to testify on whether or not the intubation
was a success.
We do not agree with the above reasoning of the
appellate
court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters
on which she is capable of observing such as, the
statements and acts of the physician and surgeon,
external appearances, and manifest conditions which
are observable by any one. This is precisely allowed
48
under the doctrine of res ipsa loquitur where 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
________________
CA Rollo, pp. 134-135.
47
Stockham vs. Hall, supra note 29.
48
610
610 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
unnecessary. We take judicial notice of the fact that
49
anesthesia procedures have become so common, that
even an ordinary person can tell if it was administered
properly. As such, it would not be too difficult to tell if
the tube was properly inserted. This kind of
observation, we believe, does not require a medical
degree to be acceptable.
 At any rate, without doubt, petitioners witness, an 61 Am Jur 2d, 513 (1989).
49

TSN, January 13, 1988, p. 3.

experienced clinical nurse whose long experience and
50

611
scholarship led to her appointment as Dean of the VOL. 321, 611
Capitol Medical Center School of Nursing, was fully
DECEMBER 29, 1999
capable of determining whether or not the intubation
Ramos vs. Court of Appeals
was a success. She had extensive clinical experience
starting as a staff nurse in Chicago, Illinois; staff nurse Q: Did you or did you not?
and clinical instructor in a teaching hospital, the FEU- A: I did not pull the tube.
NRMF; Dean of the Laguna College of Nursing in San Q: When you said mahirap yata ito,
Pablo City; and then Dean of the Capitol Medical what were you referring to?
Center School of Nursing. Reviewing witness Cruz
50
A: Mahirap yata itong i-intubate, that
statements, we find that the same were delivered in a was the patient.
straightforward manner, with the kind of detail, clarity, Q: So, you found some difficulty in
consistency and spontaneity which would have been inserting the tube?
difficult to fabricate. With her clinical background as a A: Yes, because of (sic) my first
nurse, the Court is satisfied that she was able to attempt, I did not see right away. 51

demonstrate through her testimony what truly
transpired on that fateful day.
Most of all, her testimony was affirmed by no less
than respondent Dra. Gutierrez who admitted that she
experienced difficulty in inserting the tube into
Erlindas trachea, to wit:
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) making it harder to locate and, since Erlinda is
52

ATTY. LIGSAY: obese and has a short neck and protruding teeth, it
Q: In this particular case, Doctora, while you were intubating made intubation even more difficult.
at your first attempt (sic), you did not immediately see the The argument does not convince us. If this was
trachea? indeed observed, private respondents adduced no
DRA. GUTIERREZ: evidence demonstrating that they proceeded to make a
A: Yes sir. thorough assessment of Erlindas airway, prior to the
Q: Did you pull away the tube immediately? induction of anesthesia, even if this would mean
A: You do not pull the . . . 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. It 53
includes taking the patients medical history, review of
current drug therapy, physical examination and
interpretation of laboratory data. The physical
54
examination performed by the
________________
51 TSN, November 15, 1990, p. 11.
52 TSN, October 9, 1990, p. 13.
53 STOELTING and MILLER, BASICS OF ANESTHESIA, 103
(1994).
54 Ibid.
612
612 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
anesthesiologist is directed primarily toward the
central nervous system, cardiovascular system, lungs
and upper airway. A thorough analysis of the patients
55
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. Thus, physical characteristics of the patients
56
upper airway that could make tracheal intubation
difficult should be studied. Where the need arises, as
57
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
courts 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
________________
55 Id. at 105 (Italics supplied).
Id. at 106.
56
57 Id.
613
 VOL. 321, DECEMBER 29, 1999
Ramos vs. Court of Appeals
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
gainthe 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 dont do it except on
emergency and on cases that have an abnormalities (sic).
However, the exact opposite is true. In an emergency
procedure, there is hardly enough time available for the
fastidious demands of preoperative procedure so that an
anesthesiologist is able to see the patient only a few
minutes before surgery, if at all. Elective procedures, on
the other hand, are operative procedures that can wait
for days, weeks or even months. Hence, in these cases,
the anesthesiologist possesses the luxury of time to
make a proper assessment, including the time to be at
the patients 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
613 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
________________
TSN, November 15, 1990, p. 6.
58
614
614 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
petitioner only in the operating room, and only on the
actual date of the cholecystectomy. She negligently
58 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 mediated by her allergic
59
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 re-spondents
theory that the oxygen deprivation which led to anoxic
encephalopathy, was due to an unpredictable drug
60
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
________________
59 Constriction of the air passages of the lung by spasmodic
contraction of the bronchial muscles (as in asthma).
60 Permanent damage to the brain caused by inadequate
oxygenation.
615
VOL. 321, DECEMBER 29, 1999 615 anesthesia, internal medicine-allergy, and clinical
Ramos vs. Court of Appeals
practice of Pentothal administration is further
supported by his own admission that he formulated his
opinions on the drug not from the practical experience
gained by a specialist or expert in the administration
and use of Sodium Pentothal on patients, but only from
reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you have
any occasion to use pentothal as a method of
management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist when
they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is based
only on what you have read from books and not by your
own personal application of the medicine pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during my
appendectomy.
Q: And because they have used it on you and on account of
your own personal experience you feel that you can testify
on pentothal here with medical authority?
A: No. That is why I used references to support my claims. 61
An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of
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.
Jamoras 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
________________
TSN, February 28, 1991, pp. 10-11.
61
616
616 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
the foregoing transcript, in which the pulmonologist
himself admitted that he could not testify about the
drug with medical authority, it is clear that the
appellate court erred in giving weight to Dr. Jamoras
testimony as an expert in the administration of
Thiopental Sodium.
The provision in the rules of evidence regarding
62
expert witnesses states:
Sec. 49. Opinion of expert witness.The opinion of a witness
on a matter requiring special knowledge, skill, experience or
training which he is shown to possess, may be received in
evidence.
Generally, to qualify as an expert witness, one must
have acquired special knowledge of the subject matter
about which he or she is to testify, either by the study
of recognized authorities on the subject or by practical
experience. Clearly, Dr. Jamora does not qualify as an
63
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 Erlindas coma
by triggering an allergic mediated response, has no
support in evidence. No evidence of stridor, skin
reactions, or wheezingsome of the more common
accompanying signs of an allergic reactionappears 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
________________
Rule 130, RULES OF COURT.
62
61 Am Jur 2d, supra note 49, 516.
63
617
VOL. 321, DECEMBER 29, 1999 617
Ramos vs. Court of Appeals
would be an act of God. Evidently, the
Thiopentalallergy theory vigorously asserted by private
respondents was a mere afterthought. Such an
explanation was advanced in order to absolve them of
any and all responsibility for the patients condition.
In view of the evidence at hand, we are inclined to
believe petitioners stand that it was the faulty
intubation which was the proximate cause of Erlindas
comatose condition.
Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any
efficient intervening cause, produces injury, and
without which the result would not have occurred. An64
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. It is the dominant, moving or
65
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
________________
BLACKS LAW DICTIONARY (FIFTH EDITION), 1103 (1979).
64
Ibid.
65
618
618 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
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. As stated in the testimony of Dr. Hosaka, the
66
lack of oxygen became apparent only after he noticed
that the nailbeds of Erlinda were already
blue. However, private respondents contend that a
67
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 anes-
________________
66 It is a bluish coloration of the skin or mucous membranes caused
by lack of oxygen or abnormal hemoglobin in the blood.
67 TSN, March 27, 1990, p. 22.
68 Records, p. 274.
619
VOL. 321, DECEMBER 29, 1999
Ramos vs. Court of Appeals
thesia. Nevertheless, ninety-eight percent (98%) or the
69
vast majority of difficult intubations may be anticipated
by performing a thorough evaluation of the patients
airway prior to the operation. As stated beforehand,
70
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. In other words,
71
an experienced anesthesiologist, adequately alerted by
a thorough pre-operative evaluation, would have had
little difficulty going around the short neck and
protruding teeth. Having failed to observe common
72
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, it is the surgeons
73
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
________________
619
69 FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).
70 Ibid.
71 Id., The book provides a thorough discussion on the management
of difficult intubations.
72 Id.
73 Under this doctrine, the surgeon is likened to a ship captain who
must not only be responsible for the safety of the crew but also of the
passengers of the vessel. The head surgeon is made responsible for
everything that goes wrong within the four corners of the operating
room. It enunciates the liability of the surgeon not only for the
wrongful acts of those who are under his physical control but also those
wherein he has extension of control.
620
620 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
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 also physicians. In most hospitals abroad, the term visiting or
attending physician, not consultant, is used.
the same time as Erlindascholecystectomy, and was in
621
fact over three hours late for the latters operation. VOL. 321, DECEMBER 29, 1999 621
Because of this, he had little or no time to confer with
Ramos vs. Court of Appeals
his anesthesiologist regarding the anesthesia delivery.
the application. This is particularly true with
This indicates that he was remiss in his professional
75

respondent hospital.
duties towards his patient. Thus, he shares equal
After a physician is accepted, either as a visiting or
responsibility for the events which resulted in Erlindas
attending consultant, he is normally required to attend
condition.
clinico-pathological conferences, conduct bedside
We now discuss the responsibility of the hospital in
rounds for clerks, interns and residents, moderate
this particular incident. The unique practice (among
grand rounds and patient audits and perform other
private hospitals) of filling up specialist staff with
tasks and responsibilities, for the privilege of being able
attending and visiting consultants, who are allegedly
74

to maintain a clinic in the hospital, and/or for the

not hospital employees, presents problems in
privilege of admitting patients into the hospital. In
apportioning responsibility for negligence in medical
addition to these, the physicians performance as a
malpractice cases. However, the difficulty is only more
specialist is generally evaluated by a peer review
apparent than real.
committee on the basis of mortality and morbidity
In the first place, hospitals exercise significant
statistics, and feedback from patients, nurses, interns
control in the hiring and firing of consultants and in the
and residents. A consultant remiss in his duties, or a
conduct of their work within the hospital premises.
consultant who regularly falls short of the minimum
Doctors who apply for consultant slots, visiting or
standards acceptable to the hospital or its peer review
attending, are required to submit proof of completion of
committee, is normally politely terminated.
residency, their educational qualifications; generally,
In other words, private hospitals, hire, fire and
evidence of accreditation by the appropriate board
exercise real control over their attending and visiting
(diplomate), evidence of fellowship in most cases, and
consultant staff. While consultants are not,
references. These requirements are carefully
technically employees, a point which respondent
scrutinized by members of the hospital administration
hospital asserts in denying all responsibility for the
or by a review committee set up by the hospital who
patients condition, the control exercised, the hiring,
either accept or reject
________________ and the right to terminate consultants all fulfill the
important hallmarks of an employer-employee
74 The term consultant is loosely used by hospitals to distinguish
relationship, with the exception of the payment of
their attending and visiting physicians from the residents, who are
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
________________
75 These requirements are in fact found in the standard application
forms for visiting and attending physicians of respondent hospital.
76 The hospitals control over respondent physicians is all the more
significant when one considers the fact that it controls every-
622
622 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
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. Such responsibility
77
ceases when the persons or entity concerned prove that
they have observed the diligence of a good father of the
family to prevent damage. In other words, while the
78
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 supervi-
________________
thing which occurs in an operating room, through its nursing
supervisors and charge nurses. No operations can be undertaken
without the hospitals direct or indirect consent.
77 VITUG, COMPENDIUM OF CIVIL LAW AND
JURISPRUDENCE, 822 (1993).
78 Art. 2180 of the Civil Code provides: 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.
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live in
their company.
Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and live in their
company.
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.
623
VOL. 321, DECEMBER 29, 1999 623
Ramos vs. Court of Appeals
sion 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 of the Civil Code.
79
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 P8,000/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.
________________
79 Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done.
624
624 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
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
625
VOL. 321, DECEMBER 29, 1999
Ramos vs. Court of Appeals
with certainty. In other words, temperate damages can
80
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 equitableand certainly not in the
best interests of the administration of justicefor the
victim in such cases to constantly come before the courts
and invoke their aid in seeking adjustments to the
compensatory damages previously awarded
temperate damages are appropriate. The amount given
as temperate damages, though to a certain extent
speculative, should take into account the cost of proper
care.
In the instant case, petitioners were able to provide
only home-based nursing care for a comatose patient
who has remained in that condition for over a decade.
Having premised our award for compensatory damages
on the amount provided by petitioners at the onset of
litigation, it would be now much more in step with the
interests of justice if the value awarded for temperate
damages would allow petitioners to provide optimal
care for their loved one in a facility which generally
specializes in such care. They should not be compelled
by dire circumstances to provide substandard care at
home without the aid of professionals, for anything less
would be grossly inadequate. Under the circumstances,
an award of P1,500,000.00 in temperate damages would
625 therefore be reasonable. 81
In Valenzuela vs. Court of Appeals, this Court was
82
confronted with a situation where the injury suffered by
the plaintiff would have led to expenses which were
difficult to
________________
Art. 2224, CIVIL CODE.
80
Should petitioner remain in the same condition for another ten
81
years, the amount awarded in the form of temperate damages would
in fact, be inadequate.
253 SCRA 303 (1996).
82
626
626 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
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 postmenopausal
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 wouldnormally 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
________________
Id. at 327-328.
83
627
VOL. 321, DECEMBER 29, 1999 627
Ramos vs. Court of Appeals
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. The husband and the
84
children, all petitioners in this case, will have to live
with the day to day uncertainty of the patients illness,
knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into
account their life with a comatose patient. They, not the
respondents, are charged with the moral responsibility
of the care of the victim. The familys moral injury and
suffering in this case is clearly a real one. For the
foregoing reasons, an award of P2,000,000.00 in moral
damages would be appropriate.
Finally, by way of example, exemplary damages in
the amount of P100,000.00 are hereby awarded.
Considering the length and nature of the instant suit
we are of the opinion that attorneys fees valued at
P100,000.00 are likewise proper.
________________
Id. at 328.
84
628
628 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
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
preoperative assessment protocol which would have
influenced the intubation in a salutary way was fatal to
private respondents case.
WHEREFORE, the decision and resolution of the
appellate court appealed from are hereby modified so as
to award in favor of petitioners, and solidarily against
private respondents the following: 1) P1,352,000.00 as
actual damages computed as of the date of
promulgation of this decision plus a monthly payment
of P8,000.00 up to the time that petitioner Erlinda
Ramos expires or miraculously survives; 2)
P2,000,000.00 as moral damages; 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary
damages and attorneys fees; and, 5) the costs of the
suit.
SO ORDERED.
Davide, Jr. (C.J.,
Chairman), Puno, Pardo and Ynares-Santiago,
JJ., concur.
Judgment modified.
629
VOL. 321, DECEMBER 29, 1999 629
 Land Bank of the Philippines vs. Court of Appeals
Note.Proximate cause is determined on the facts
of each case upon mixed considerations of logic, common
sense, policy and precedent. (Philippine Bank of
Commerce vs. Court of Appeals, 269 SCRA 695 [1997])

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