G.R. No.

159132 December 18, 2008

FE CAYAO-LASAM, petitioner,
vs.
SPOUSES CLARO and EDITHA RAMOLETE, respondents.*

DECISION

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court filed by Dr. Fe Cayao-Lasam
(petitioner) seeking to annul the Decision1 dated July 4, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 62206.

The antecedent facts:

On July 28, 1994, respondent, three months pregnant Editha Ramolete (Editha) was brought to the Lorma Medical Center
(LMC) in San Fernando, La Union due to vaginal bleeding. Upon advice of petitioner relayed via telephone, Editha was
admitted to the LMC on the same day. A pelvic sonogram2 was then conducted on Editha revealing the fetus weak cardiac
pulsation.3 The following day, Edithas repeat pelvic sonogram4 showed that aside from the fetus weak cardiac pulsation, no
fetal movement was also appreciated. Due to persistent and profuse vaginal bleeding, petitioner advised Editha to undergo a
Dilatation and Curettage Procedure (D&C) or "raspa."

On July 30, 1994, petitioner performed the D&C procedure. Editha was discharged from the hospital the following day.

On September 16, 1994, Editha was once again brought at the LMC, as she was suffering from vomiting and severe
abdominal pains. Editha was attended by Dr. Beatriz de la Cruz, Dr. Victor B. Mayo and Dr. Juan V. Komiya. Dr. Mayo
allegedly informed Editha that there was a dead fetus in the latters womb. After, Editha underwent laparotomy, 5 she was found
to have a massive intra-abdominal hemorrhage and a ruptured uterus. Thus, Editha had to undergo a procedure for
hysterectomy6 and as a result, she has no more chance to bear a child.

On November 7, 1994, Editha and her husband Claro Ramolete (respondents) filed a Complaint 7 for Gross Negligence and
Malpractice against petitioner before the Professional Regulations Commission (PRC).

Respondents alleged that Edithas hysterectomy was caused by petitioners unmitigated negligence and professional
incompetence in conducting the D&C procedure and the petitioners failure to remove the fetus inside Edithas womb.8 Among
the alleged acts of negligence were: first, petitioners failure to check up, visit or administer medication on Editha during her
first day of confinement at the LMC;9 second, petitioner recommended that a D&C procedure be performed on Editha without
conducting any internal examination prior to the procedure;10 third, petitioner immediately suggested a D&C procedure instead
of closely monitoring the state of pregnancy of Editha.11

In her Answer,12 petitioner denied the allegations of negligence and incompetence with the following explanations: upon
Edithas confirmation that she would seek admission at the LMC, petitioner immediately called the hospital to anticipate the
arrival of Editha and ordered through the telephone the medicines Editha needed to take, which the nurses carried out;
petitioner visited Editha on the morning of July 28, 1994 during her rounds; on July 29, 1994, she performed an internal
examination on Editha and she discovered that the latters cervix was already open, thus, petitioner discussed the possible
D&C procedure, should the bleeding become more profuse; on July 30 1994, she conducted another internal examination on
Editha, which revealed that the latters cervix was still open; Editha persistently complained of her vaginal bleeding and her
passing out of some meaty mass in the process of urination and bowel movement; thus, petitioner advised Editha to undergo
D&C procedure which the respondents consented to; petitioner was very vocal in the operating room about not being able to
see an abortus;13 taking the words of Editha to mean that she was passing out some meaty mass and clotted blood, she
assumed that the abortus must have been expelled in the process of bleeding; it was Editha who insisted that she wanted to
be discharged; petitioner agreed, but she advised Editha to return for check-up on August 5, 1994, which the latter failed to do.

Petitioner contended that it was Edithas gross negligence and/or omission in insisting to be discharged on July 31, 1994
against doctors advice and her unjustified failure to return for check-up as directed by petitioner that contributed to her life-
threatening condition on September 16, 1994; that Edithas hysterectomy was brought about by her very abnormal pregnancy
known as placenta increta, which was an extremely rare and very unusual case of abdominal placental implantation. Petitioner
argued that whether or not a D&C procedure was done by her or any other doctor, there would be no difference at all because
at any stage of gestation before term, the uterus would rupture just the same.

On March 4, 1999, the Board of Medicine (the Board) of the PRC rendered a Decision, 14 exonerating petitioner from the
charges filed against her. The Board held:

Based on the findings of the doctors who conducted the laparotomy on Editha, hers is a case of Ectopic Pregnancy
Interstitial. This type of ectopic pregnancy is one that is being protected by the uterine muscles and manifestations
may take later than four (4) months and only attributes to two percent (2%) of ectopic pregnancy cases.

When complainant Editha was admitted at Lorma Medical Center on July 28, 1994 due to vaginal bleeding, an ultra-
sound was performed upon her and the result of the Sonogram Test reveals a morbid fetus but did not specify where
the fetus was located. Obstetricians will assume that the pregnancy is within the uterus unless so specified by the
Sonologist who conducted the ultra-sound. Respondent (Dr. Lasam) cannot be faulted if she was not able to determine
that complainant Editha is having an ectopic pregnancy interstitial. The D&C conducted on Editha is necessary
considering that her cervix is already open and so as to stop the profuse bleeding. Simple curettage cannot remove a
fetus if the patient is having an ectopic pregnancy, since ectopic pregnancy is pregnancy conceived outside the uterus
and curettage is done only within the uterus. Therefore, a more extensive operation needed in this case of pregnancy
in order to remove the fetus.15

Feeling aggrieved, respondents went to the PRC on appeal. On November 22, 2000, the PRC rendered a Decision 16 reversing
the findings of the Board and revoking petitioners authority or license to practice her profession as a physician. 17

Petitioner brought the matter to the CA in a Petition for Review under Rule 43 of the Rules of Court. Petitioner also dubbed her
petition as one for certiorari18 under Rule 65 of the Rules of Court.

In the Decision dated July 4, 2003, the CA held that the Petition for Review under Rule 43 of the Rules of Court was an
improper remedy, as the enumeration of the quasi-judicial agencies in Rule 43 is exclusive.19 PRC is not among the quasi-
judicial bodies whose judgment or final orders are subject of a petition for review to the CA, thus, the petition for review of the
PRC Decision, filed at the CA, was improper. The CA further held that should the petition be treated as a petition
for certiorari under Rule 65, the same would still be dismissed for being improper and premature. Citing Section 26 20 of
Republic Act (R.A.) No. 2382 or the Medical Act of 1959, the CA held that the plain, speedy and adequate remedy under the
ordinary course of law which petitioner should have availed herself of was to appeal to the Office of the President. 21

Hence, herein petition, assailing the decision of the CA on the following grounds:
 1. THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE PROFESSIONAL
REGULATION[S] COMMISSION (PRC) WAS EXCLUDED AMONG THE QUASI-JUDICIAL AGENCIES
CONTEMPLATED UNDER RULE 43 OF THE RULES OF CIVIL PROCEDURE;

2. EVEN ASSUMING, ARGUENDO, THAT PRC WAS EXCLUDED FROM THE PURVIEW OF RULE 43 OF THE
RULES OF CIVIL PROCEDURE, THE PETITIONER WAS NOT PRECLUDED FROM FILING A PETITION FOR
CERTIORARI WHERE THE DECISION WAS ALSO ISSUED IN EXCESS OF OR WITHOUT JURISDICTION, OR
WHERE THE DECISION WAS A PATENT NULLITY;

3. HEREIN RESPONDENTS-SPOUSES ARE NOT ALLOWED BY LAW TO APPEAL FROM THE DECISION OF THE
BOARD OF MEDICINE TO THE PROFESSIONAL REGULATION[S] COMMISSION;

4. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DENYING FOR IMPROPER
FORUM THE PETITION FOR REVIEW/PETITION FOR CERTIORARI WITHOUT GOING OVER THE MERITS OF
THE GROUNDS RELIED UPON BY THE PETITIONER;

5. PRCS GRAVE OMISSION TO AFFORD HEREIN PETITONER A CHANCE TO BE HEARD ON APPEAL IS A

CLEAR VIOLATION OF HER CONSTITUTIONAL RIGHT TO DUE PROCESS AND HAS THE EFFECT OF
RENDERING THE JUDGMENT NULL AND VOID;

6. COROLLARY TO THE FOURTH ASSIGNED ERROR, PRC COMMITTED GRAVE ABUSE OF DISCRETION,
AMOUNTING TO LACK OF JURISDICTION, IN ACCEPTING AND CONSIDERING THE MEMORANDUM ON
APPEAL WITHOUT PROOF OF SERVICE TO HEREIN PETITIONER, AND IN VIOLATION OF ART. IV, SEC. 35 OF
THE RULES AND REGULATIONS GOVERNING THE REGULATION AND PRACTICE OF PROFESSIONALS;

7. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN REVOKING PETITIONERS LICENSE TO PRACTICE

MEDICINE WITHOUT AN EXPERT TESTIMONY TO SUPPORT ITS CONCLUSION AS TO THE CAUSE OF
RESPONDENT EDITHAT [SIC] RAMOLETES INJURY;

8. PRC COMMITTED AN EVEN GRAVER ABUSE OF DISCRETION IN TOTALLY DISREGARDING THE FINDING
OF THE BOARD OF MEDICINE, WHICH HAD THE NECESSARY COMPETENCE AND EXPERTISE TO ESTABLISH
THE CAUSE OF RESPONDENT EDITHAS INJURY, AS WELL AS THE TESTIMONY OF THE EXPERT WITNESS
AUGUSTO MANALO, M.D. ;[and]

9. PRC COMMITTED GRAVE ABUSE OF DISCRETION IN MAKING CONCLUSIONS OF FACTS THAT WERE NOT
ONLY UNSUPPORTED BY EVIDENCE BUT WERE ACTUALLY CONTRARY TO EVIDENCE ON RECORD.22

The Court will first deal with the procedural issues.

Petitioner claims that the law does not allow complainants to appeal to the PRC from the decision of the Board. She invokes
Article IV, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals, which provides:

Sec. 35. The respondent may appeal the decision of the Board within thirty days from receipt thereof to the
Commission whose decision shall be final. Complainant, when allowed by law, may interpose an appeal from the
Decision of the Board within the same period. (Emphasis supplied)
Petitioner asserts that a careful reading of the above law indicates that while the respondent, as a matter of right, may appeal
the Decision of the Board to the Commission, the complainant may interpose an appeal from the decision of the Board only
when so allowed by law.23 Petitioner cited Section 26 of Republic Act No. 2382 or "The Medical Act of 1959," to wit:

Section 26. Appeal from judgment. The decision of the Board of Medical Examiners (now Medical Board) shall
automatically become final thirty days after the date of its promulgation unless the respondent, during the same period,
has appealed to the Commissioner of Civil Service (now Professional Regulations Commission) and later to the Office
of the President of the Philippines. If the final decision is not satisfactory, the respondent may ask for a review of the
case, or may file in court a petition for certiorari.

Petitioner posits that the reason why the Medical Act of 1959 allows only the respondent in an administrative case to file an
appeal with the Commission while the complainant is not allowed to do so is double jeopardy. Petitioner is of the belief that the
revocation of license to practice a profession is penal in nature.24

The Court does not agree.

For one, the principle of double jeopardy finds no application in administrative cases. Double jeopardy attaches only: (1) upon
a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when
the defendant was acquitted or convicted, or the case was dismissed or otherwise terminated without the express consent of
the accused.25 These elements were not present in the proceedings before the Board of Medicine, as the proceedings involved
in the instant case were administrative and not criminal in nature. The Court has already held that double jeopardy does not lie
in administrative cases.26

Moreover, Section 35 of the Rules and Regulations Governing the Regulation and Practice of Professionals cited by petitioner
was subsequently amended to read:

Sec. 35. The complainant/respondent may appeal the order, the resolution or the decision of the Board within thirty
(30) days from receipt thereof to the Commission whose decision shall be final and executory. Interlocutory order shall
not be appealable to the Commission. (Amended by Res. 174, Series of 1990).27(Emphasis supplied)

Whatever doubt was created by the previous provision was settled with said amendment. It is axiomatic that the right to appeal
is not a natural right or a part of due process, but a mere statutory privilege that may be exercised only in the manner
prescribed by law.28 In this case, the clear intent of the amendment is to render the right to appeal from a decision of the Board
available to both complainants and respondents.

Such conclusion is bolstered by the fact that in 2006, the PRC issued Resolution No. 06-342(A), or the New Rules of
Procedure in Administrative Investigations in the Professional Regulations Commission and the Professional Regulatory
Boards, which provides for the method of appeal, to wit:

Sec. 1. Appeal; Period Non-Extendible.- The decision, order or resolution of the Board shall be final and executory
after the lapse of fifteen (15) days from receipt of the decision, order or resolution without an appeal being perfected or
taken by either the respondent or the complainant. A party aggrieved by the decision, order or resolution may file
a notice of appeal from the decision, order or resolution of the Board to the Commission within fifteen (15)
days from receipt thereof, and serving upon the adverse party a notice of appeal together with the appellants brief
or memorandum on appeal, and paying the appeal and legal research fees. x x x 29
The above-stated provision does not qualify whether only the complainant or respondent may file an appeal; rather, the new
rules provide that "a party aggrieved" may file a notice of appeal. Thus, either the complainant or the respondent who has been
aggrieved by the decision, order or resolution of the Board may appeal to the Commission. It is an elementary rule that when
the law speaks in clear and categorical language, there is no need, in the absence of legislative intent to the contrary, for any
interpretation.30 Words and phrases used in the statute should be given their plain, ordinary, and common usage or meaning. 31

Petitioner also submits that appeals from the decisions of the PRC should be with the CA, as Rule 43 32 of the Rules of Court
was precisely formulated and adopted to provide for a uniform rule of appellate procedure for quasi-judicial
agencies.33 Petitioner further contends that a quasi-judicial body is not excluded from the purview of Rule 43 just because it is
not mentioned therein.34

On this point, the Court agrees with the petitioner.

Sec. 1, Rule 43 of the Rules of Court provides:

Section 1. Scope. - This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals,
and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency in the
exercise of its quasi-judicial functions. Among these agencies are the Civil Service Commission, Central Board of
Assessment Appeals, Securities and Exchange Commission, Office of the President, Land Registration Authority,
Social Security Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer,
National Electrification Administration, Energy Regulatory Board, National Telecommunications Commission,
Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System, Employees
Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine Atomic Energy
Commission, Board of Investments, Construction Industry Arbitration Commission, and voluntary arbitrators authorized
by law. (Emphasis supplied)

Indeed, the PRC is not expressly mentioned as one of the agencies which are expressly enumerated under Section 1, Rule 43
of the Rules of Court. However, its absence from the enumeration does not, by this fact alone, imply its exclusion from the
coverage of said Rule.35 The Rule expressly provides that it should be applied to appeals from awards, judgments final orders
or resolutions of any quasi-judicial agency in the exercise of its quasi-judicial functions. The phrase "among these agencies"
confirms that the enumeration made in the Rule is not exclusive to the agencies therein listed. 36

Specifically, the Court, in Yang v. Court of Appeals,37 ruled that Batas Pambansa (B.P.) Blg. 12938 conferred upon the CA
exclusive appellate jurisdiction over appeals from decisions of the PRC. The Court held:

The law has since been changed, however, at least in the matter of the particular court to which appeals from the
Commission should be taken. On August 14, 1981, Batas Pambansa Bilang 129 became effective and in its Section
29, conferred on the Court of Appeals "exclusive appellate jurisdiction over all final judgments, decisions, resolutions,
orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions except
those falling under the appellate jurisdiction of the Supreme Court. x x x." In virtue of BP 129, appeals from the
Professional Regulations Commission are now exclusively cognizable by the Court of Appeals. 39 (Emphasis
supplied)

Clearly, the enactment of B.P. Blg. 129, the precursor of the present Rules of Civil Procedure,40 lodged with the CA such
jurisdiction over the appeals of decisions made by the PRC.
Anent the substantive merits of the case, petitioner questions the PRC decision for being without an expert testimony to
support its conclusion and to establish the cause of Edithas injury. Petitioner avers that in cases of medical malpractice, expert
testimony is necessary to support the conclusion as to the cause of the injury.41

Medical malpractice is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his
practice of medicine that degree of care and skill which is ordinarily employed by the profession generally, under similar
conditions, and in like surrounding circumstances.42 In order to successfully pursue such a claim, a patient must prove that the
physician or surgeon either failed to do something which a reasonably prudent physician or surgeon would not have done, and
that the failure or action caused injury to the patient.43

There are four elements involved in medical negligence cases: duty, breach, injury and proximate causation. 44

A physician-patient relationship was created when Editha employed the services of the petitioner. As Edithas physician,
petitioner was duty-bound to use at least the same level of care that any reasonably competent doctor would use to treat a
condition under the same circumstances.45 The breach of these professional duties of skill and care, or their improper
performance by a physician surgeon, whereby the patient is injured in body or in health, constitutes actionable
malpractice.46 As to this aspect of medical malpractice, the determination of the reasonable level of care and the breach
thereof, expert testimony is essential.47 Further, inasmuch as the causes of the injuries involved in malpractice actions are
determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to
support the conclusion as to causation.48

In the present case, respondents did not present any expert testimony to support their claim that petitioner failed to do
something which a reasonably prudent physician or surgeon would have done.

Petitioner, on the other hand, presented the testimony of Dr. Augusto M. Manalo, who was clearly an expert on the subject.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the subject matter about which he or
she is to testify, either by the study of recognized authorities on the subject or by practical experience. 49

Dr. Manalo specializes in gynecology and obstetrics, authored and co-authored various publications on the subject, and is a
professor at the University of the Philippines.50 According to him, his diagnosis of Edithas case was "Ectopic Pregnancy
Interstitial (also referred to as Cornual), Ruptured."51 In stating that the D&C procedure was not the proximate cause of the
rupture of Edithas uterus resulting in her hysterectomy, Dr. Manalo testified as follows:

Atty. Hidalgo:

Q: Doctor, we want to be clarified on this matter. The complainant had testified here that the D&C was the proximate
cause of the rupture of the uterus. The condition which she found herself in on the second admission. Will you please
tell us whether that is true or not?

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

A: I dont think so for the two reasons that I have just mentioned- that it would not be possible for the
instrument to reach the site of pregnancy. And, No. 2, if it is because of the D&C that rupture could have occurred
earlier.52 (Emphases supplied)

Clearly, from the testimony of the expert witness and the reasons given by him, it is evident that the D&C procedure was not
the proximate cause of the rupture of Edithas uterus.

During his cross-examination, Dr. Manalo testified on how he would have addressed Edithas condition should he be placed in
a similar circumstance as the petitioner. He stated:

Atty. Ragonton:

Q: Doctor, as a practicing OB-Gyne, when do you consider that you have done a good, correct and ideal dilatation
and curettage procedure?

A: Well, if the patient recovers. If the patient gets well. Because even after the procedure, even after the procedure
you may feel that you have scraped everything, the patient stops bleeding, she feels well, I think you should still have
some reservations, and wait a little more time.

Q: If you were the OB-Gyne who performed the procedure on patient Editha Ramolete, would it be your standard
practice to check the fetal parts or fetal tissues that were allegedly removed?

A: From what I have removed, yes. But in this particular case, I think it was assumed that it was part of the meaty
mass which was expelled at the time she was urinating and flushed in the toilet. So theres no way.

Q: There was [sic] some portions of the fetal parts that were removed?

A: No, it was described as scanty scraping if I remember it rightscanty.

Q: And you would not mind checking those scant or those little parts that were removed?

A: Well, the fact that it was described means, I assume that it was checked, no. It was described as scanty and
the color also, I think was described. Because it would be very unusual, even improbable that it would not be
examined, because when you scrape, the specimens are right there before your eyes. Its in front of you. You
can touch it. In fact, some of them will stick to the instrument and therefore to peel it off from the instrument,
you have to touch them. So, automatically they are examined closely.

Q: As a matter of fact, doctor, you also give telephone orders to your patients through telephone?

A: Yes, yes, we do that, especially here in Manila because you know, sometimes a doctor can also be tied-up
somewhere and if you have to wait until he arrive at a certain place before you give the order, then it would be a lot of
 time wasted. Because if you know your patient, if you have handled your patient, some of the symptoms you can
interpret that comes with practice. And, I see no reason for not allowing telephone orders unless it is the first
time that you will be encountering the patient. That you have no idea what the problem is.

Q: But, doctor, do you discharge patients without seeing them?

A: Sometimes yes, depending on how familiar I am with the patient. We are on the question of telephone orders. I
am not saying that that is the idle [sic] thing to do, but I think the reality of present day practice somehow justifies
telephone orders. I have patients whom I have justified and then all of a sudden, late in the afternoon or late in the
evening, would suddenly call they have decided that they will go home inasmuch as they anticipated that I will
discharge them the following day. So, I just call and ask our resident on duty or the nurse to allow them to go because
I have seen that patient and I think I have full grasp of her problems. So, thats when I make this telephone orders.
And, of course before giving that order I ask about how she feels. 53 (Emphases supplied)

From the foregoing testimony, it is clear that the D&C procedure was conducted in accordance with the standard practice, with
the same level of care that any reasonably competent doctor would use to treat a condition under the same circumstances,
and that there was nothing irregular in the way the petitioner dealt with Editha.

Medical malpractice, in our jurisdiction, is often brought as a civil action for damages under Article 2176 54 of the Civil Code.
The defenses in an action for damages, provided for under Article 2179 of the Civil Code are:

Art. 2179. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being
the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be
awarded.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening
cause, produces injury, and without which the result would not have occurred.55 An injury or damage is proximately caused by
an act or a failure to act, whenever it appears from the evidence in the case that the act or omission played a substantial part in
bringing about or actually causing the injury or damage; and that the injury or damage was either a direct result or a reasonably
probable consequence of the act or omission.56

In the present case, the Court notes the findings of the Board of Medicine:

When complainant was discharged on July 31, 1994, herein respondent advised her to return on August 4, 1994
or four (4) days after the D&C. This advise was clear in complainants Discharge Sheet. However, complainant
failed to do so. This being the case, the chain of continuity as required in order that the doctrine of proximate cause
can be validly invoked was interrupted. Had she returned, the respondent could have examined her
thoroughly.57 x x x (Emphases supplied)

Also, in the testimony of Dr. Manalo, he stated further that assuming that there was in fact a misdiagnosis, the same would
have been rectified if Editha followed the petitioners order to return for a check-up on August 4, 1994. Dr. Manalo stated:

Granting that the obstetrician-gynecologist has been misled (justifiably) up to thus point that there would
have been ample opportunity to rectify the misdiagnosis, had the patient returned, as instructed for her
follow-up evaluation. It was one and a half months later that the patient sought consultation with another
 doctor. The continued growth of an ectopic pregnancy, until its eventual rupture, is a dynamic process. Much change
in physical findings could be expected in 1 months, including the emergence of suggestive ones. 58

It is undisputed that Editha did not return for a follow-up evaluation, in defiance of the petitioners advise. Editha omitted the
diligence required by the circumstances which could have avoided the injury. The omission in not returning for a follow-up
evaluation played a substantial part in bringing about Edithas own injury. Had Editha returned, petitioner could have conducted
the proper medical tests and procedure necessary to determine Edithas health condition and applied the corresponding
treatment which could have prevented the rupture of Edithas uterus. The D&C procedure having been conducted in
accordance with the standard medical practice, it is clear that Edithas omission was the proximate cause of her own injury and
not merely a contributory negligence on her part.

Contributory negligence is the act or omission amounting to want of ordinary care on the part of the person injured, which,
concurring with the defendants negligence, is the proximate cause of the injury.59 Difficulty seems to be apprehended in
deciding which acts of the injured party shall be considered immediate causes of the accident. 60Where the immediate cause of
an accident resulting in an injury is the plaintiffs own act, which contributed to the principal occurrence as one of its
determining factors, he cannot recover damages for the injury.61 Again, based on the evidence presented in the present
case under review, in which no negligence can be attributed to the petitioner, the immediate cause of the accident
resulting in Edithas injury was her own omission when she did not return for a follow-up check up, in defiance of
petitioners orders. The immediate cause of Edithas injury was her own act; thus, she cannot recover damages from
the injury.

Lastly, petitioner asserts that her right to due process was violated because she was never informed by either respondents or
by the PRC that an appeal was pending before the PRC.62 Petitioner claims that a verification with the records section of the
PRC revealed that on April 15, 1999, respondents filed a Memorandum on Appeal before the PRC, which did not attach the
actual registry receipt but was merely indicated therein.63

Respondents, on the other hand avers that if the original registry receipt was not attached to the Memorandum on Appeal,
PRC would not have entertained the appeal or accepted such pleading for lack of notice or proof of service on the other
party.64 Also, the registry receipt could not be appended to the copy furnished to petitioners former counsel, because the
registry receipt was already appended to the original copy of the Memorandum of Appeal filed with PRC. 65

It is a well-settled rule that when service of notice is an issue, the rule is that the person alleging that the notice was served
must prove the fact of service. The burden of proving notice rests upon the party asserting its existence. 66 In the present case,
respondents did not present any proof that petitioner was served a copy of the Memorandum on Appeal. Thus, respondents
were not able to satisfy the burden of proving that they had in fact informed the petitioner of the appeal proceedings before the
PRC.

In EDI-Staffbuilders International, Inc. v. National Labor Relations Commission,67 in which the National Labor Relations
Commission failed to order the private respondent to furnish the petitioner a copy of the Appeal Memorandum, the Court held
that said failure deprived the petitioner of procedural due process guaranteed by the Constitution, which could have served as
basis for the nullification of the proceedings in the appeal. The same holds true in the case at bar. The Court finds that the
failure of the respondents to furnish the petitioner a copy of the Memorandum of Appeal submitted to the PRC constitutes a
violation of due process. Thus, the proceedings before the PRC were null and void.

All told, doctors are protected by a special rule of law. They are not guarantors of care. They are not insurers against mishaps
or unusual consequences68 specially so if the patient herself did not exercise the proper diligence required to avoid the injury.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals dated July 4, 2003 in CA-GR SP No.
62206 is hereby REVERSED and SET ASIDE. The Decision of the Board of Medicine dated March 4, 1999 exonerating
petitioner is AFFIRMED. No pronouncement as to costs.

SO ORDERED.

G.R. No. 178763 April 21, 2009

PETER PAUL PATRICK LUCAS, FATIMA GLADYS LUCAS, ABBEYGAIL LUCAS AND GILLIAN LUCAS,Petitioners,
vs.
DR. PROSPERO MA. C. TUAO, Respondent.

DECISION

CHICO-NAZARIO, J.:

In this petition for review on certiorari1 under Rule 45 of the Revised Rules of Court, petitioners Peter Paul Patrick Lucas,
Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas seek the reversal of the 27 September 2006 Decision2 and 3 July
2007 Resolution,3 both of the Court of Appeals in CA-G.R. CV No. 68666, entitled "Peter Paul Patrick Lucas, Fatima Gladys
Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao."

In the questioned decision and resolution, the Court of Appeals affirmed the 14 July 2000 Decision of the Regional Trial Court
(RTC), Branch 150, Makati City, dismissing the complaint filed by petitioners in a civil case entitled, "Peter Paul Patrick Lucas,
Fatima Gladys Lucas, Abbeygail Lucas and Gillian Lucas v. Prospero Ma. C. Tuao," docketed as Civil Case No. 92-2482.

From the record of the case, the established factual antecedents of the present petition are:

Sometime in August 1988, petitioner Peter Paul Patrick Lucas (Peter) contracted "sore eyes" in his right eye.

On 2 September 1988, complaining of a red right eye and swollen eyelid, Peter made use of his health care insurance issued
by Philamcare Health Systems, Inc. (Philamcare), for a possible consult. The Philamcare Coordinator, Dr. Edwin Oca, M.D.,
referred Peter to respondent, Dr. Prospero Ma. C. Tuao, M.D. (Dr. Tuao), an ophthalmologist at St. Lukes Medical Center,
for an eye consult.

Upon consultation with Dr. Tuao, Peter narrated that it had been nine (9) days since the problem with his right eye began; and
that he was already taking Maxitrol to address the problem in his eye. According to Dr. Tuao, he performed "ocular routine
examination" on Peters eyes, wherein: (1) a gross examination of Peters eyes and their surrounding area was made; (2)
Peters visual acuity were taken; (3) Peters eyes were palpated to check the intraocular pressure of each; (4) the motility of
Peters eyes was observed; and (5) the ophthalmoscopy4 on Peters eyes was used. On that particular consultation, Dr. Tuao
diagnosed that Peter was suffering from conjunctivitis5 or "sore eyes." Dr. Tuao then prescribed Spersacet-C6 eye drops for
Peter and told the latter to return for follow-up after one week.

As instructed, Peter went back to Dr. Tuao on 9 September 1988. Upon examination, Dr. Tuao told Peter that the "sore
eyes" in the latters right eye had already cleared up and he could discontinue the Spersacet-C. However, the same eye
developed Epidemic Kerato Conjunctivitis (EKC),7 a viral infection. To address the new problem with Peters right eye, Dr.
Tuao prescribed to the former a steroid-based eye drop called Maxitrol,8 a dosage of six (6) drops per day.9 To recall, Peter
had already been using Maxitrol prior to his consult with Dr. Tuao.

On 21 September 1988, Peter saw Dr. Tuao for a follow-up consultation. After examining both of Peters eyes, Dr. Tuao
instructed the former to taper down10 the dosage of Maxitrol, because the EKC in his right eye had already resolved. Dr. Tuao
specifically cautioned Peter that, being a steroid, Maxitrol had to be withdrawn gradually; otherwise, the EKC might recur. 11

Complaining of feeling as if there was something in his eyes, Peter returned to Dr. Tuao for another check-up on 6 October
1988. Dr. Tuao examined Peters eyes and found that the right eye had once more developed EKC. So, Dr. Tuao instructed
Peter to resume the use of Maxitrol at six (6) drops per day.

On his way home, Peter was unable to get a hold of Maxitrol, as it was out of stock. Consequently, Peter was told by Dr. Tuano
to take, instead, Blephamide12 another steroid-based medication, but with a lower concentration, as substitute for the
unavailable Maxitrol, to be used three (3) times a day for five (5) days; two (2) times a day for five (5) days; and then just once
a day.13

Several days later, on 18 October 1988, Peter went to see Dr. Tuao at his clinic, alleging severe eye pain, feeling as if his
eyes were about to "pop-out," a headache and blurred vision. Dr. Tuao examined Peters eyes and discovered that the EKC
was again present in his right eye. As a result, Dr. Tuao told Peter to resume the maximum dosage of Blephamide.

Dr. Tuao saw Peter once more at the formers clinic on 4 November 1988. Dr. Tuaos examination showed that only the
periphery of Peters right eye was positive for EKC; hence, Dr. Tuao prescribed a lower dosage of Blephamide.

It was also about this time that Fatima Gladys Lucas (Fatima), Peters spouse, read the accompanying literature of Maxitrol
and found therein the following warning against the prolonged use of such steroids:

WARNING:

Prolonged use may result in glaucoma, with damage to the optic nerve, defects in visual acuity and fields of vision, and
posterior, subcapsular cataract formation. Prolonged use may suppress the host response and thus increase the hazard of
secondary ocular infractions, in those diseases causing thinning of the cornea or sclera, perforations have been known to
occur with the use of topical steroids. In acute purulent conditions of the eye, steroids may mask infection or enhance existing
infection. If these products are used for 10 days or longer, intraocular pressure should be routinely monitored even though it
may be difficult in children and uncooperative patients.

Employment of steroid medication in the treatment of herpes simplex requires great caution.

xxxx

ADVERSE REACTIONS:

Adverse reactions have occurred with steroid/anti-infective combination drugs which can be attributed to the steroid
component, the anti-infective component, or the combination. Exact incidence figures are not available since no denominator
of treated patients is available.
Reactions occurring most often from the presence of the anti-infective ingredients are allergic sensitizations. The reactions due
to the steroid component in decreasing order to frequency are elevation of intra-ocular pressure (IOP) with possible
development of glaucoma, infrequent optic nerve damage; posterior subcapsular cataract formation; and delayed wound
healing.

Secondary infection: The development of secondary has occurred after use of combination containing steroids and
antimicrobials. Fungal infections of the correa are particularly prone to develop coincidentally with long-term applications of
steroid. The possibility of fungal invasion must be considered in any persistent corneal ulceration where steroid treatment has
been used.

Secondary bacterial ocular infection following suppression of host responses also occurs.

On 26 November 1988, Peter returned to Dr. Tuaos clinic, complaining of "feeling worse." 14 It appeared that the EKC had
spread to the whole of Peters right eye yet again. Thus, Dr. Tuao instructed Peter to resume the use of Maxitrol. Petitioners
averred that Peter already made mention to Dr. Tuao during said visit of the above-quoted warning against the prolonged use
of steroids, but Dr. Tuao supposedly brushed aside Peters concern as mere paranoia, even assuring him that the former was
taking care of him (Peter).

Petitioners further alleged that after Peters 26 November 1988 visit to Dr. Tuao, Peter continued to suffer pain in his right
eye, which seemed to "progress," with the ache intensifying and becoming more frequent.

Upon waking in the morning of 13 December 1988, Peter had no vision in his right eye. Fatima observed that Peters right eye
appeared to be bloody and swollen.15 Thus, spouses Peter and Fatima rushed to the clinic of Dr. Tuao. Peter reported to Dr.
Tuao that he had been suffering from constant headache in the afternoon and blurring of vision.

Upon examination, Dr. Tuao noted the hardness of Peters right eye. With the use of a tonometer 16 to verify the exact
intraocular pressure17 (IOP) of Peters eyes, Dr. Tuao discovered that the tension in Peters right eye was 39.0 Hg, while that
of his left was 17.0 Hg.18 Since the tension in Peters right eye was way over the normal IOP, which merely ranged from 10.0
Hg to 21.0 Hg,19 Dr. Tuao ordered20 him to immediately discontinue the use of Maxitrol and prescribed to the latter
Diamox21 and Normoglaucon, instead.22 Dr. Tuao also required Peter to go for daily check-up in order for the former to closely
monitor the pressure of the latters eyes.

On 15 December 1988, the tonometer reading of Peters right eye yielded a high normal level, i.e., 21.0 Hg. Hence, Dr.
Tuao told Peter to continue using Diamox and Normoglaucon. But upon Peters complaint of "stomach pains and tingling
sensation in his fingers,"23 Dr. Tuao discontinued Peters use of Diamox.24

Peter went to see another ophthalmologist, Dr. Ramon T. Batungbacal (Dr. Batungbacal), on 21 December 1988, who
allegedly conducted a complete ophthalmological examination of Peters eyes. Dr. Batungbacals diagnosis was
Glaucoma25 O.D.26 He recommended Laser Trabeculoplasty27 for Peters right eye.

When Peter returned to Dr. Tuao on 23 December 1988,28 the tonometer measured the IOP of Peters right eye to be 41.0
Hg,29 again, way above normal. Dr. Tuao addressed the problem by advising Peter to resume taking Diamox along with
Normoglaucon.

During the Christmas holidays, Peter supposedly stayed in bed most of the time and was not able to celebrate the season with
his family because of the debilitating effects of Diamox.30
On 28 December 1988, during one of Peters regular follow-ups with Dr. Tuao, the doctor conducted another ocular routine
examination of Peters eyes. Dr. Tuao noted the recurrence of EKC in Peters right eye. Considering, however, that the IOP of
Peters right eye was still quite high at 41.0 Hg, Dr. Tuao was at a loss as to how to balance the treatment of Peters EKC vis-
-vis the presence of glaucoma in the same eye. Dr. Tuao, thus, referred Peter to Dr. Manuel B. Agulto, M.D. (Dr. Agulto),
another ophthalmologist specializing in the treatment of glaucoma.31 Dr. Tuaos letter of referral to Dr. Agulto stated that:

Referring to you Mr. Peter Lucas for evaluation & possible management. I initially saw him Sept. 2, 1988 because of
conjunctivitis. The latter resolved and he developed EKC for which I gave Maxitrol. The EKC was recurrent after stopping
steroid drops. Around 1 month of steroid treatment, he noted blurring of vision & pain on the R. however, I continued the
steroids for the sake of the EKC. A month ago, I noted iris atrophy, so I took the IOP and it was definitely elevated. I stopped
the steroids immediately and has (sic) been treating him medically.

It seems that the IOP can be controlled only with oral Diamox, and at the moment, the EKC has recurred and Im in a fix
whether to resume the steroid or not considering that the IOP is still uncontrolled. 32

On 29 December 1988, Peter went to see Dr. Agulto at the latters clinic. Several tests were conducted thereat to evaluate the
extent of Peters condition. Dr. Agulto wrote Dr. Tuao a letter containing the following findings and recommendations:

Thanks for sending Peter Lucas. On examination conducted vision was 20/25 R and 20/20L. Tension curve 19 R and 15 L at
1210 H while on Normoglaucon BID OD & Diamox tab every 6h po.

Slit lamp evaluation33 disclosed subepithelial corneal defect outer OD. There was circumferential peripheral iris atrophy, OD.
The lenses were clear.

Funduscopy34 showed vertical cup disc of 0.85 R and 0.6 L with temporal slope R>L.

Zeiss gonioscopy35 revealed basically open angles both eyes with occasional PAS,36 OD.

Rolly, I feel that Peter Lucas has really sustained significant glaucoma damage. I suggest that we do a baseline visual fields
and push medication to lowest possible levels. If I may suggest further, I think we should prescribe Timolol 37 BID38 OD in lieu of
Normoglaucon. If the IOP is still inadequate, we may try Depifrin39 BID OD (despite low PAS). Im in favor of retaining Diamox
or similar CAI.40

If fields show further loss in say 3 mos. then we should consider trabeculoplasty.

I trust that this approach will prove reasonable for you and Peter.41

Peter went to see Dr. Tuao on 31 December 1988, bearing Dr. Agultos aforementioned letter. Though Peters right and left
eyes then had normal IOP of 21.0 Hg and 17.0 Hg, respectively, Dr. Tuao still gave him a prescription for Timolol B.I.D. so
Peter could immediately start using said medication. Regrettably, Timolol B.I.D. was out of stock, so Dr. Tuao instructed Peter
to just continue using Diamox and Normoglaucon in the meantime.

Just two days later, on 2 January 1989, the IOP of Peters right eye remained elevated at 21.0 Hg,42 as he had been without
Diamox for the past three (3) days.
On 4 January 1989, Dr. Tuao conducted a visual field study 43 of Peters eyes, which revealed that the latter had tubular
vision44 in his right eye, while that of his left eye remained normal. Dr. Tuao directed Peter to religiously use the Diamox and
Normoglaucon, as the tension of the latters right eye went up even further to 41.0 Hg in just a matter of two (2) days, in the
meantime that Timolol B.I.D. and Depifrin were still not available in the market. Again, Dr. Tuao advised Peter to come for
regular check-up so his IOP could be monitored.

Obediently, Peter went to see Dr. Tuao on the 7th, 13th, 16th and 20th of January 1989 for check-up and IOP monitoring.

In the interregnum, however, Peter was prodded by his friends to seek a second medical opinion. On 13 January 1989, Peter
consulted Dr. Jaime Lapuz, M.D. (Dr. Lapuz), an ophthalmologist, who, in turn, referred Peter to Dr. Mario V. Aquino, M.D. (Dr.
Aquino), another ophthalmologist who specializes in the treatment of glaucoma and who could undertake the long term care of
Peters eyes.

According to petitioners, after Dr. Aquino conducted an extensive evaluation of Peters eyes, the said doctor informed Peter
that his eyes were relatively normal, though the right one sometimes manifested maximum borderline tension. Dr. Aquino also
confirmed Dr. Tuaos diagnosis of tubular vision in Peters right eye. Petitioners claimed that Dr. Aquino essentially told Peter
that the latters condition would require lifetime medication and follow-ups.

In May 1990 and June 1991, Peter underwent two (2) procedures of laser trabeculoplasty to attempt to control the high IOP of
his right eye.

Claiming to have steroid-induced glaucoma45 and blaming Dr. Tuao for the same, Peter, joined by: (1) Fatima, his spouse46;
(2) Abbeygail, his natural child47; and (3) Gillian, his legitimate child48 with Fatima, instituted on 1 September 1992, a civil
complaint for damages against Dr. Tuao, before the RTC, Branch 150, Quezon City. The case was docketed as Civil Case
No. 92-2482.

In their Complaint, petitioners specifically averred that as the "direct consequence of [Peters] prolonged use of Maxitrol, [he]
suffered from steroid induced glaucoma which caused the elevation of his intra-ocular pressure. The elevation of the intra-
ocular pressure of [Peters right eye] caused the impairment of his vision which impairment is not curable and may even lead to
total blindness."49

Petitioners additionally alleged that the visual impairment of Peters right eye caused him and his family so much grief.
Because of his present condition, Peter now needed close medical supervision forever; he had already undergone two (2)
laser surgeries, with the possibility that more surgeries were still needed in the future; his career in sports casting had suffered
and was continuing to suffer;50 his anticipated income had been greatly reduced as a result of his "limited" capacity; he
continually suffered from "headaches, nausea, dizziness, heart palpitations, rashes, chronic rhinitis, sinusitis,"51 etc.; Peters
relationships with his spouse and children continued to be strained, as his condition made him highly irritable and sensitive; his
mobility and social life had suffered; his spouse, Fatima, became the breadwinner in the family; 52 and his two children had
been deprived of the opportunity for a better life and educational prospects. Collectively, petitioners lived in constant fear of
Peter becoming completely blind.53

In the end, petitioners sought pecuniary award for their supposed pain and suffering, which were ultimately brought about by
Dr. Tuaos grossly negligent conduct in prescribing to Peter the medicine Maxitrol for a period of three (3) months, without
monitoring Peters IOP, as required in cases of prolonged use of said medicine, and notwithstanding Peters constant
complaint of intense eye pain while using the same. Petitioners particularly prayed that Dr. Tuao be adjudged liable for the
following amounts:
 1. The amount of 2,000,000.00 to plaintiff Peter Lucas as and by way of compensation for his impaired vision.

2. The amount of 300,000.00 to spouses Lucas as and by way of actual damages plus such additional amounts that
may be proven during trial.

3. The amount of 1,000,000.00 as and by way of moral damages.

4. The amount of 500,000.00 as and by way of exemplary damages.

5. The amount of 200,000.00 as and by way of attorneys fees plus costs of suit.54

In rebutting petitioners complaint, Dr. Tuao asserted that the "treatment made by [him] more than three years ago has no
causal connection to [Peters] present glaucoma or condition."55 Dr. Tuao explained that "[d]rug-induced glaucoma is
temporary and curable, steroids have the side effect of increasing intraocular pressure. Steroids are prescribed to treat
Epidemic Kerato Conjunctivitis or EKC which is an infiltration of the cornea as a result of conjunctivitis or sore eyes." 56 Dr.
Tuao also clarified that (1) "[c]ontrary to [petitioners] fallacious claim, [he] did NOT continually prescribe the drug Maxitrol
which contained steroids for any prolonged period"57 and "[t]he truth was the Maxitrol was discontinued x x x as soon as EKC
disappeared and was resumed only when EKC reappeared"58; (2) the entire time he was treating Peter, he "continually
monitored the intraocular pressure of [Peters eyes] by palpating the eyes and by putting pressure on the eyeballs," and no
hardening of the same could be detected, which meant that there was no increase in the tension or IOP, a possible side
reaction to the use of steroid medications; and (3) it was only on 13 December 1988 that Peter complained of a headache and
blurred vision in his right eye, and upon measuring the IOP of said eye, it was determined for the first time that the IOP of the
right eye had an elevated value.

But granting for the sake of argument that the "steroid treatment of [Peters] EKC caused the steroid induced glaucoma,"59 Dr.
Tuao argued that:

[S]uch condition, i.e., elevated intraocular pressure, is temporary. As soon as the intake of steroids is discontinued, the
intraocular pressure automatically is reduced. Thus, [Peters] glaucoma can only be due to other causes not attributable to
steroids, certainly not attributable to [his] treatment of more than three years ago x x x.

From a medical point of view, as revealed by more current examination of [Peter], the latters glaucoma can only be long
standing glaucoma, open angle glaucoma, because of the large C:D ratio. The steroids provoked the latest glaucoma to be
revealed earlier as [Peter] remained asymptomatic prior to steroid application. Hence, the steroid treatment was in fact
beneficial to [Peter] as it revealed the incipient open angle glaucoma of [Peter] to allow earlier treatment of the same. 60

In a Decision dated 14 July 2000, the RTC dismissed Civil Case No. 92-2482 "for insufficiency of evidence."61 The decretal
part of said Decision reads:

Wherefore, premises considered, the instant complaint is dismissed for insufficiency of evidence. The counter claim (sic) is
likewise dismissed in the absence of bad faith or malice on the part of plaintiff in filing the suit.62

The RTC opined that petitioners failed to prove by preponderance of evidence that Dr. Tuao was negligent in his treatment of
Peters condition. In particular, the record of the case was bereft of any evidence to establish that the steroid medication and its
dosage, as prescribed by Dr. Tuao, caused Peters glaucoma. The trial court reasoned that the "recognized standards of the
medical community has not been established in this case, much less has causation been established to render [Tuao]
liable."63 According to the RTC:

[Petitioners] failed to establish the duty required of a medical practitioner against which Peter Pauls treatment by defendant
can be compared with. They did not present any medical expert or even a medical doctor to convince and expertly explain to
the court the established norm or duty required of a physician treating a patient, or whether the non taking (sic) by Dr. Tuao of
Peter Pauls pressure a deviation from the norm or his non-discovery of the glaucoma in the course of treatment constitutes
negligence. It is important and indispensable to establish such a standard because once it is established, a medical practitioner
who departed thereof breaches his duty and commits negligence rendering him liable. Without such testimony or
enlightenment from an expert, the court is at a loss as to what is then the established norm of duty of a physician against which
defendants conduct can be compared with to determine negligence.64

The RTC added that in the absence of "any medical evidence to the contrary, this court cannot accept [petitioners] claim that
the use of steroid is the proximate cause of the damage sustained by [Peters] eye." 65

Correspondingly, the RTC accepted Dr. Tuaos medical opinion that "Peter Paul must have been suffering from normal
tension glaucoma, meaning, optic nerve damage was happening but no elevation of the eye pressure is manifested, that the
steroid treatment actually unmasked the condition that resulted in the earlier treatment of the glaucoma. There is nothing in the
record to contradict such testimony. In fact, plaintiffs Exhibit S even tends to support them."

Undaunted, petitioners appealed the foregoing RTC decision to the Court of Appeals. Their appeal was docketed as CA-G.R.
CV No. 68666.

On 27 September 2006, the Court of Appeals rendered a decision in CA-G.R. CV No. 68666 denying petitioners recourse and
affirming the appealed RTC Decision. The fallo of the judgment of the appellate court states:

WHEREFORE, the Decision appealed from is AFFIRMED.66

The Court of Appeals faulted petitioners because they

[D]id not present any medical expert to testify that Dr. Tuanos prescription of Maxitrol and Blephamide for the treatment of
EKC on Peters right eye was not proper and that his palpation of Peters right eye was not enough to detect adverse reaction
to steroid. Peter testified that Dr. Manuel Agulto told him that he should not have used steroid for the treatment of EKC or that
he should have used it only for two (2) weeks, as EKC is only a viral infection which will cure by itself. However, Dr. Agulto was
not presented by [petitioners] as a witness to confirm what he allegedly told Peter and, therefore, the latters testimony is
hearsay. Under Rule 130, Section 36 of the Rules of Court, a witness can testify only to those facts which he knows of his own
personal knowledge, x x x. Familiar and fundamental is the rule that hearsay testimony is inadmissible as evidence. 67

Like the RTC, the Court of Appeals gave great weight to Dr. Tuaos medical judgment, specifically the latters explanation
that:

[W]hen a doctor sees a patient, he cannot determine whether or not the latter would react adversely to the use of steroids, that
it was only on December 13, 1989, when Peter complained for the first time of headache and blurred vision that he observed
that the pressure of the eye of Peter was elevated, and it was only then that he suspected that Peter belongs to the 5% of the
population who reacts adversely to steroids.68
Petitioners Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated 3 July 2007.

Hence, this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court premised on the following
assignment of errors:

I.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN AFFIRMING THE DECISION OF THE TRIAL
COURT DISMISSING THE PETITIONERS COMPLAINT FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND
OF INSUFFICIENCY OF EVIDENCE;

II.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN DISMISSING THE PETITIONERS COMPLAINT
FOR DAMAGES AGAINST THE RESPONDENT ON THE GROUND THAT NO MEDICAL EXPERT WAS PRESENTED BY
THE PETITIONERS TO PROVE THEIR CLAIM FOR MEDICAL NEGLIGENCE AGAINST THE RESPONDENT; AND

III.

THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR IN NOT FINDING THE RESPONDENT LIABLE TO
THE PETITIONERS FOR ACTUAL, MORAL AND EXEMPLARY DAMAGES, ASIDE FROM ATTORNEYS FEES, COSTS OF
SUIT, AS A RESULT OF HIS GROSS NEGLIGENCE.69

A reading of the afore-quoted reversible errors supposedly committed by the Court of Appeals in its Decision and Resolution
would reveal that petitioners are fundamentally assailing the finding of the Court of Appeals that the evidence on record is
insufficient to establish petitioners entitlement to any kind of damage. Therefore, it could be said that the sole issue for our
resolution in the Petition at bar is whether the Court of Appeals committed reversible error in affirming the judgment of the RTC
that petitioners failed to prove, by preponderance of evidence, their claim for damages against Dr. Tuao.

Evidently, said issue constitutes a question of fact, as we are asked to revisit anew the factual findings of the Court of Appeals,
as well as of the RTC. In effect, petitioners would have us sift through the evidence on record and pass upon whether there is
sufficient basis to establish Dr. Tuaos negligence in his treatment of Peters eye condition. This question clearly involves a
factual inquiry, the determination of which is not within the ambit of this Courts power of review under Rule 45 of the 1997
Rules Civil Procedure, as amended.70

Elementary is the principle that this Court is not a trier of facts; only errors of law are generally reviewed in petitions for review
on certiorari criticizing decisions of the Court of Appeals. Questions of fact are not entertained. 71

Nonetheless, the general rule that only questions of law may be raised on appeal in a petition for review under Rule 45 of the
Rules of Court admits of certain exceptions, including the circumstance when the finding of fact of the Court of Appeals is
premised on the supposed absence of evidence, but is contradicted by the evidence on record. Although petitioners may not
explicitly invoke said exception, it may be gleaned from their allegations and arguments in the instant Petition.1avvphi1.zw+

Petitioners contend, that "[c]ontrary to the findings of the Honorable Court of Appeals, [they] were more than able to establish
that: Dr. Tuao ignored the standard medical procedure for ophthalmologists, administered medication with recklessness, and
exhibited an absence of competence and skills expected from him."72 Petitioners reject the necessity of presenting expert
and/or medical testimony to establish (1) the standard of care respecting the treatment of the disorder affecting Peters eye;
and (2) whether or not negligence attended Dr. Tuaos treatment of Peter, because, in their words

That Dr. Tuao was grossly negligent in the treatment of Peters simple eye ailment is a simple case of cause and effect. With
mere documentary evidence and based on the facts presented by the petitioners, respondent can readily be held liable for
damages even without any expert testimony. In any case, however, and contrary to the finding of the trial court and the Court
of Appeals, there was a medical expert presented by the petitioner showing the recklessness committed by [Dr. Tuao] Dr.
Tuao himself. [Emphasis supplied.]

They insist that Dr. Tuao himself gave sufficient evidence to establish his gross negligence that ultimately caused the
impairment of the vision of Peters right eye,73 i.e., that "[d]espite [Dr. Tuaos] knowledge that 5% of the population reacts
adversely to Maxitrol, [he] had no qualms whatsoever in prescribing said steroid to Peter without first determining whether or
not the (sic) Peter belongs to the 5%."74

We are not convinced. The judgments of both the Court of Appeals and the RTC are in accord with the evidence on record,
and we are accordingly bound by the findings of fact made therein.

Petitioners position, in sum, is that Peters glaucoma is the direct result of Dr. Tuaos negligence in his improper
administration of the drug Maxitrol; "thus, [the latter] should be liable for all the damages suffered and to be suffered by
[petitioners]."75 Clearly, the present controversy is a classic illustration of a medical negligence case against a physician based
on the latters professional negligence. In this type of suit, the patient or his heirs, in order to prevail, is required to prove by
preponderance of evidence that the physician failed to exercise that degree of skill, care, and learning possessed by other
persons in the same profession; and that as a proximate result of such failure, the patient or his heirs suffered damages.

For lack of a specific law geared towards the type of negligence committed by members of the medical profession, such claim
for damages is almost always anchored on the alleged violation of Article 2176 of the Civil Code, which states that:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the
damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-
delict and is governed by the provisions of this Chapter.

In medical negligence cases, also called medical malpractice suits, there exist a physician-patient relationship between the
doctor and the victim. But just like any other proceeding for damages, four essential (4) elements i.e., (1) duty; (2) breach; (3)
injury; and (4) proximate causation,76 must be established by the plaintiff/s. All the four (4) elements must co-exist in order to
find the physician negligent and, thus, liable for damages.

When a patient engages the services of a physician, a physician-patient relationship is generated. And in accepting a case, the
physician, for all intents and purposes, represents that he has the needed training and skill possessed by physicians and
surgeons practicing in the same field; and that he will employ such training, care, and skill in the treatment of the
patient.77 Thus, in treating his patient, a physician is under a duty to [the former] to exercise that degree of care, skill and
diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and
exercise in like cases.78 Stated otherwise, the physician has the duty to use at least the same level of care that any other
reasonably competent physician would use to treat the condition under similar circumstances.

This standard level of care, skill and diligence is a matter best addressed by expert medical testimony, because the standard of
care in a medical malpractice case is a matter peculiarly within the knowledge of experts in the field. 79
There is breach of duty of care, skill and diligence, or the improper performance of such duty, by the attending physician when
the patient is injured in body or in health [and this] constitutes the actionable malpractice.80 Proof of such breach must likewise
rest upon the testimony of an expert witness that the treatment accorded to the patient failed to meet the standard level of
care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily
possess and exercise in like cases.

Even so, proof of breach of duty on the part of the attending physician is insufficient, for there must be a causal connection
between said breach and the resulting injury sustained by the patient. Put in another way, in order that there may be a
recovery for an injury, it must be shown that the "injury for which recovery is sought must be the legitimate consequence of the
wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken
by intervening efficient causes";81 that is, the negligence must be the proximate cause of the injury. And the proximate cause of
an injury is that cause, which, in the natural and continuous sequence, unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have occurred.82

Just as with the elements of duty and breach of the same, in order to establish the proximate cause [of the injury] by a
preponderance of the evidence in a medical malpractice action, [the patient] must similarly use expert testimony, because the
question of whether the alleged professional negligence caused [the patients] injury is generally one for specialized expert
knowledge beyond the ken of the average layperson; using the specialized knowledge and training of his field, the experts role
is to present to the [court] a realistic assessment of the likelihood that [the physicians] alleged negligence caused [the
patients] injury.83

From the foregoing, it is apparent that medical negligence cases are best proved by opinions of expert witnesses belonging in
the same general neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of
courts to the expert opinion of qualified physicians [or surgeons] stems from the formers realization that the latter possess
unusual technical skills which laymen in most instances are incapable of intelligently evaluating;84 hence, the indispensability of
expert testimonies.

In the case at bar, there is no question that a physician-patient relationship developed between Dr. Tuao and Peter when
Peter went to see the doctor on 2 September 1988, seeking a consult for the treatment of his sore eyes. Admittedly, Dr. Tuao,
an ophthalmologist, prescribed Maxitrol when Peter developed and had recurrent EKC. Maxitrol or neomycin/polymyxin B
sulfates/dexamethasone ophthalmic ointment is a multiple-dose anti-infective steroid combination in sterile form for topical
application.85 It is the drug which petitioners claim to have caused Peters glaucoma.

However, as correctly pointed out by the Court of Appeals, "[t]he onus probandi was on the patient to establish before the trial
court that the physicians ignored standard medical procedure, prescribed and administered medication with recklessness and
exhibited an absence of the competence and skills expected of general practitioners similarly situated." 86 Unfortunately, in this
case, there was absolute failure on the part of petitioners to present any expert testimony to establish: (1) the standard of care
to be implemented by competent physicians in treating the same condition as Peters under similar circumstances; (2) that, in
his treatment of Peter, Dr. Tuao failed in his duty to exercise said standard of care that any other competent physician would
use in treating the same condition as Peters under similar circumstances; and (3) that the injury or damage to Peters right
eye, i.e., his glaucoma, was the result of his use of Maxitrol, as prescribed by Dr. Tuao. Petitioners failure to prove the first
element alone is already fatal to their cause.

Petitioners maintain that Dr. Tuao failed to follow in Peters case the required procedure for the prolonged use of Maxitrol. But
what is actually the required procedure in situations such as in the case at bar? To be precise, what is the standard operating
procedure when ophthalmologists prescribe steroid medications which, admittedly, carry some modicum of risk?
Absent a definitive standard of care or diligence required of Dr. Tuao under the circumstances, we have no means to
determine whether he was able to comply with the same in his diagnosis and treatment of Peter. This Court has no yardstick
upon which to evaluate or weigh the attendant facts of this case to be able to state with confidence that the acts complained of,
indeed, constituted negligence and, thus, should be the subject of pecuniary reparation.

Petitioners assert that prior to prescribing Maxitrol, Dr. Tuao should have determined first whether Peter was a "steroid
responder."87 Yet again, petitioners did not present any convincing proof that such determination is actually part of the
standard operating procedure which ophthalmologists should unerringly follow prior to prescribing steroid medications.

In contrast, Dr. Tuao was able to clearly explain that what is only required of ophthalmologists, in cases such as Peters, is
the conduct of standard tests/procedures known as "ocular routine examination," 88 composed of five (5) tests/procedures
specifically, gross examination of the eyes and the surrounding area; taking of the visual acuity of the patient; checking the
intraocular pressure of the patient; checking the motility of the eyes; and using ophthalmoscopy on the patients eye and he
did all those tests/procedures every time Peter went to see him for follow-up consultation and/or check-up.

We cannot but agree with Dr. Tuaos assertion that when a doctor sees a patient, he cannot determine immediately whether
the latter would react adversely to the use of steroids; all the doctor can do is map out a course of treatment recognized as
correct by the standards of the medical profession. It must be remembered that a physician is not an insurer of the good result
of treatment. The mere fact that the patient does not get well or that a bad result occurs does not in itself indicate failure to
exercise due care.89 The result is not determinative of the performance [of the physician] and he is not required to be
infallible.90

Moreover, that Dr. Tuao saw it fit to prescribe Maxitrol to Peter was justified by the fact that the latter was already using the
same medication when he first came to see Dr. Tuao on 2 September 1988 and had exhibited no previous untoward reaction
to that particular drug. 91

Also, Dr. Tuao categorically denied petitioners claim that he never monitored the tension of Peters eyes while the latter was
on Maxitrol. Dr. Tuao testified that he palpated Peters eyes every time the latter came for a check-up as part of the doctors
ocular routine examination, a fact which petitioners failed to rebut. Dr. Tuaos regular conduct of examinations and tests to
ascertain the state of Peters eyes negate the very basis of petitioners complaint for damages. As to whether Dr. Tuaos
actuations conformed to the standard of care and diligence required in like circumstances, it is presumed to have so conformed
in the absence of evidence to the contrary.

Even if we are to assume that Dr. Tuao committed negligent acts in his treatment of Peters condition, the causal connection
between Dr. Tuaos supposed negligence and Peters injury still needed to be established. The critical and clinching factor in
a medical negligence case is proof of the causal connection between the negligence which the evidence established and the
plaintiffs injuries.92 The plaintiff must plead and prove not only that he has been injured and defendant has been at fault, but
also that the defendants fault caused the injury. A verdict in a malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a reasonable medical probability based upon competent expert testimony. 93

The causation between the physicians negligence and the patients injury may only be established by the presentation of proof
that Peters glaucoma would not have occurred but for Dr. Tuaos supposed negligent conduct. Once more, petitioners failed
in this regard.

Dr. Tuao does not deny that the use of Maxitrol involves the risk of increasing a patients IOP. In fact, this was the reason why
he made it a point to palpate Peters eyes every time the latter went to see him -- so he could monitor the tension of Peters
eyes. But to say that said medication conclusively caused Peters glaucoma is purely speculative. Peter was diagnosed with
open-angle glaucoma. This kind of glaucoma is characterized by an almost complete absence of symptoms and a chronic,
insidious course.94 In open-angle glaucoma, halos around lights and blurring of vision do not occur unless there has been a
sudden increase in the intraocular vision.95 Visual acuity remains good until late in the course of the disease.96 Hence, Dr.
Tuao claims that Peters glaucoma "can only be long standing x x x because of the large C:D97 ratio," and that "[t]he steroids
provoked the latest glaucoma to be revealed earlier" was a blessing in disguise "as [Peter] remained asymptomatic prior to
steroid application."

Who between petitioners and Dr. Tuao is in a better position to determine and evaluate the necessity of using Maxitrol to cure
Peters EKC vis--vis the attendant risks of using the same?

That Dr. Tuao has the necessary training and skill to practice his chosen field is beyond cavil. Petitioners do not dispute Dr.
Tuaos qualifications that he has been a physician for close to a decade and a half at the time Peter first came to see him;
that he has had various medical training; that he has authored numerous papers in the field of ophthalmology, here and
abroad; that he is a Diplomate of the Philippine Board of Ophthalmology; that he occupies various teaching posts (at the time
of the filing of the present complaint, he was the Chair of the Department of Ophthalmology and an Associate Professor at the
University of the Philippines-Philippine General Hospital and St. Lukes Medical Center, respectively); and that he held an
assortment of positions in numerous medical organizations like the Philippine Medical Association, Philippine Academy of
Ophthalmology, Philippine Board of Ophthalmology, Philippine Society of Ophthalmic Plastic and Reconstructive Surgery,
Philippine Journal of Ophthalmology, Association of Philippine Ophthalmology Professors, et al.

It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable
presumption that in proper cases, he takes the necessary precaution and employs the best of his knowledge and skill in
attending to his clients, unless the contrary is sufficiently established.98 In making the judgment call of treating Peters EKC with
Maxitrol, Dr. Tuao took the necessary precaution by palpating Peters eyes to monitor their IOP every time the latter went for
a check-up, and he employed the best of his knowledge and skill earned from years of training and practice.

In contrast, without supporting expert medical opinions, petitioners bare assertions of negligence on Dr. Tuaos part, which
resulted in Peters glaucoma, deserve scant credit.

Our disposition of the present controversy might have been vastly different had petitioners presented a medical expert to
establish their theory respecting Dr. Tuaos so-called negligence. In fact, the record of the case reveals that petitioners
counsel recognized the necessity of presenting such evidence. Petitioners even gave an undertaking to the RTC judge that Dr.
Agulto or Dr. Aquino would be presented. Alas, no follow-through on said undertaking was made.1avvphi1

The plaintiff in a civil case has the burden of proof as he alleges the affirmative of the issue. However, in the course of trial in a
civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to
controvert plaintiffs prima facie case; otherwise, a verdict must be returned in favor of plaintiff. 99 The party having the burden
of proof must establish his case by a preponderance of evidence. 100 The concept of "preponderance of evidence" refers to
evidence which is of greater weight or more convincing than that which is offered in opposition to it; 101 in the last analysis, it
means probability of truth. It is evidence which is more convincing to the court as worthy of belief than that which is offered in
opposition thereto.102 Rule 133, Section 1 of the Revised Rules of Court provides the guidelines for determining preponderance
of evidence, thus:

In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining
where the preponderance or superior weight of evidence on the issues involved lies the court may consider all the facts and
circumstances of the case, the witnesses manner of testifying, their intelligence, their means and opportunity of knowing the
facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony,
their interest or want of interest, and also their personal credibility so far as the same legitimately appear upon the trial. The
court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

Herein, the burden of proof was clearly upon petitioners, as plaintiffs in the lower court, to establish their case by a
preponderance of evidence showing a reasonable connection between Dr. Tuaos alleged breach of duty and the damage
sustained by Peters right eye. This, they did not do. In reality, petitioners complaint for damages is merely anchored on a
statement in the literature of Maxitrol identifying the risks of its use, and the purported comment of Dr. Agulto another doctor
not presented as witness before the RTC concerning the prolonged use of Maxitrol for the treatment of EKC.

It seems basic that what constitutes proper medical treatment is a medical question that should have been presented to
experts. If no standard is established through expert medical witnesses, then courts have no standard by which to gauge the
basic issue of breach thereof by the physician or surgeon. The RTC and Court of Appeals, and even this Court, could not be
expected to determine on its own what medical technique should have been utilized for a certain disease or injury. Absent
expert medical opinion, the courts would be dangerously engaging in speculations.

All told, we are hard pressed to find Dr. Tuao liable for any medical negligence or malpractice where there is no evidence, in
the nature of expert testimony, to establish that in treating Peter, Dr. Tuao failed to exercise reasonable care, diligence and
skill generally required in medical practice. Dr. Tuaos testimony, that his treatment of Peter conformed in all respects to
standard medical practice in this locality, stands unrefuted. Consequently, the RTC and the Court of Appeals correctly held that
they had no basis at all to rule that petitioners were deserving of the various damages prayed for in their Complaint.

WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The assailed Decision dated 27
September 2006 and Resolution dated 3 July 2007, both of the Court of Appeals in CA-G.R. CV No. 68666, are hereby
AFFIRMED. No cost.

SO ORDERED.

G.R. No. 165279 June 7, 2011

DR. RUBI LI, Petitioner,

vs.
SPOUSES REYNALDO and LINA SOLIMAN, as parents/heirs of deceased Angelica Soliman, Respondents.

DECISION

VILLARAMA, JR., J.:

Challenged in this petition for review on certiorari is the Decision1 dated June 15, 2004 as well as the Resolution2dated
September 1, 2004 of the Court of Appeals (CA) in CA-G.R. CV No. 58013 which modified the Decision3dated September 5,
1997 of the Regional Trial Court of Legazpi City, Branch 8 in Civil Case No. 8904.

The factual antecedents:

On July 7, 1993, respondents 11-year old daughter, Angelica Soliman, underwent a biopsy of the mass located in her lower
extremity at the St. Lukes Medical Center (SLMC). Results showed that Angelica was suffering from osteosarcoma,
osteoblastic type,4 a high-grade (highly malignant) cancer of the bone which usually afflicts teenage children. Following this
diagnosis and as primary intervention, Angelicas right leg was amputated by Dr. Jaime Tamayo in order to remove the tumor.
As adjuvant treatment to eliminate any remaining cancer cells, and hence minimize the chances of recurrence and prevent the
disease from spreading to other parts of the patients body (metastasis), chemotherapy was suggested by Dr. Tamayo. Dr.
Tamayo referred Angelica to another doctor at SLMC, herein petitioner Dr. Rubi Li, a medical oncologist.

On August 18, 1993, Angelica was admitted to SLMC. However, she died on September 1, 1993, just eleven (11) days after
the (intravenous) administration of the first cycle of the chemotherapy regimen. Because SLMC refused to release a death
certificate without full payment of their hospital bill, respondents brought the cadaver of Angelica to the Philippine National
Police (PNP) Crime Laboratory at Camp Crame for post-mortem examination. The Medico-Legal Report issued by said
institution indicated the cause of death as "Hypovolemic shock secondary to multiple organ hemorrhages and Disseminated
Intravascular Coagulation."5

On the other hand, the Certificate of Death6 issued by SLMC stated the cause of death as follows:

Immediate cause : a. Osteosarcoma, Status Post AKA

Antecedent cause : b. (above knee amputation)

Underlying cause : c. Status Post Chemotherapy

On February 21, 1994, respondents filed a damage suit7 against petitioner, Dr. Leo Marbella, Mr. Jose Ledesma, a certain Dr.
Arriete and SLMC. Respondents charged them with negligence and disregard of Angelicas safety, health and welfare by their
careless administration of the chemotherapy drugs, their failure to observe the essential precautions in detecting early the
symptoms of fatal blood platelet decrease and stopping early on the chemotherapy, which bleeding led to hypovolemic shock
that caused Angelicas untimely demise. Further, it was specifically averred that petitioner assured the respondents that
Angelica would recover in view of 95% chance of healing with chemotherapy ("Magiging normal na ang anak nyo basta ma-
chemo. 95% ang healing") and when asked regarding the side effects, petitioner mentioned only slight vomiting, hair loss and
weakness ("Magsusuka ng kaunti. Malulugas ang buhok. Manghihina"). Respondents thus claimed that they would not have
given their consent to chemotherapy had petitioner not falsely assured them of its side effects.

In her answer,8 petitioner denied having been negligent in administering the chemotherapy drugs to Angelica and asserted that
she had fully explained to respondents how the chemotherapy will affect not only the cancer cells but also the patients normal
body parts, including the lowering of white and red blood cells and platelets. She claimed that what happened to Angelica can
be attributed to malignant tumor cells possibly left behind after surgery. Few as they may be, these have the capacity to
compete for nutrients such that the body becomes so weak structurally (cachexia) and functionally in the form of lower
resistance of the body to combat infection. Such infection becomes uncontrollable and triggers a chain of events (sepsis or
septicemia) that may lead to bleeding in the form of Disseminated Intravascular Coagulation (DIC), as what the autopsy report
showed in the case of Angelica.

Since the medical records of Angelica were not produced in court, the trial and appellate courts had to rely on testimonial
evidence, principally the declarations of petitioner and respondents themselves. The following chronology of events was
gathered:
On July 23, 1993, petitioner saw the respondents at the hospital after Angelicas surgery and discussed with them Angelicas
condition. Petitioner told respondents that Angelica should be given two to three weeks to recover from the operation before
starting chemotherapy. Respondents were apprehensive due to financial constraints as Reynaldo earns only from 70,000.00
to 150,000.00 a year from his jewelry and watch repairing business.9Petitioner, however, assured them not to worry about
her professional fee and told them to just save up for the medicines to be used.

Petitioner claimed that she explained to respondents that even when a tumor is removed, there are still small lesions
undetectable to the naked eye, and that adjuvant chemotherapy is needed to clean out the small lesions in order to lessen the
chance of the cancer to recur. She did not give the respondents any assurance that chemotherapy will cure Angelicas cancer.
During these consultations with respondents, she explained the following side effects of chemotherapy treatment to
respondents: (1) falling hair; (2) nausea and vomiting; (3) loss of appetite; (4) low count of white blood cells [WBC], red blood
cells [RBC] and platelets; (5) possible sterility due to the effects on Angelicas ovary; (6) damage to the heart and kidneys; and
(7) darkening of the skin especially when exposed to sunlight. She actually talked with respondents four times, once at the
hospital after the surgery, twice at her clinic and the fourth time when Angelicas mother called her through long
distance.10 This was disputed by respondents who countered that petitioner gave them assurance that there is 95% chance of
healing for Angelica if she undergoes chemotherapy and that the only side effects were nausea, vomiting and hair
loss.11 Those were the only side-effects of chemotherapy treatment mentioned by petitioner.12

On July 27, 1993, SLMC discharged Angelica, with instruction from petitioner that she be readmitted after two or three weeks
for the chemotherapy.

On August 18, 1993, respondents brought Angelica to SLMC for chemotherapy, bringing with them the results of the laboratory
tests requested by petitioner: Angelicas chest x-ray, ultrasound of the liver, creatinine and complete liver function
tests.13 Petitioner proceeded with the chemotherapy by first administering hydration fluids to Angelica.14

The following day, August 19, petitioner began administering three chemotherapy drugs Cisplatin,15 Doxorubicin16and
Cosmegen17 intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo Marbella18 and Dr. Grace Arriete.19 In
his testimony, Dr. Marbella denied having any participation in administering the said chemotherapy drugs. 20

On the second day of chemotherapy, August 20, respondents noticed reddish discoloration on Angelicas face. 21They asked
petitioner about it, but she merely quipped, "Wala yan. Epekto ng gamot."22 Petitioner recalled noticing the skin rashes on the
nose and cheek area of Angelica. At that moment, she entertained the possibility that Angelica also had systemic lupus and
consulted Dr. Victoria Abesamis on the matter.23

On the third day of chemotherapy, August 21, Angelica had difficulty breathing and was thus provided with oxygen inhalation
apparatus. This time, the reddish discoloration on Angelicas face had extended to her neck, but petitioner dismissed it again
as merely the effect of medicines.24 Petitioner testified that she did not see any discoloration on Angelicas face, nor did she
notice any difficulty in the childs breathing. She claimed that Angelica merely complained of nausea and was given ice
chips.251avvphi1

On August 22, 1993, at around ten oclock in the morning, upon seeing that their child could not anymore bear the pain,
respondents pleaded with petitioner to stop the chemotherapy. Petitioner supposedly replied: "Dapat 15 Cosmegen pa iyan.
Okay, lets observe. If pwede na, bigyan uli ng chemo." At this point, respondents asked petitioners permission to bring their
child home. Later in the evening, Angelica passed black stool and reddish urine. 26 Petitioner countered that there was no
record of blackening of stools but only an episode of loose bowel movement (LBM). Petitioner also testified that what Angelica
complained of was carpo-pedal spasm, not convulsion or epileptic attack, as respondents call it (petitioner described it in the
vernacular as "naninigas ang kamay at paa"). She then requested for a serum calcium determination and stopped the
chemotherapy. When Angelica was given calcium gluconate, the spasm and numbness subsided. 27

The following day, August 23, petitioner yielded to respondents request to take Angelica home. But prior to discharging
Angelica, petitioner requested for a repeat serum calcium determination and explained to respondents that the chemotherapy
will be temporarily stopped while she observes Angelicas muscle twitching and serum calcium level. Take-home medicines
were also prescribed for Angelica, with instructions to respondents that the serum calcium test will have to be repeated after
seven days. Petitioner told respondents that she will see Angelica again after two weeks, but respondents can see her anytime
if any immediate problem arises.28

However, Angelica remained in confinement because while still in the premises of SLMC, her "convulsions" returned and she
also had LBM. Angelica was given oxygen and administration of calcium continued.29

The next day, August 24, respondents claimed that Angelica still suffered from convulsions. They also noticed that she had a
fever and had difficulty breathing.30 Petitioner insisted it was carpo-pedal spasm, not convulsions. She verified that at around
4:50 that afternoon, Angelica developed difficulty in breathing and had fever. She then requested for an electrocardiogram
analysis, and infused calcium gluconate on the patient at a "stat dose." She further ordered that Angelica be given Bactrim, 31 a
synthetic antibacterial combination drug,32 to combat any infection on the childs body.33

By August 26, Angelica was bleeding through the mouth. Respondents also saw blood on her anus and urine. When Lina
asked petitioner what was happening to her daughter, petitioner replied, "Bagsak ang platelets ng anak mo." Four units of
platelet concentrates were then transfused to Angelica. Petitioner prescribed Solucortef. Considering that Angelicas fever was
high and her white blood cell count was low, petitioner prescribed Leucomax. About four to eight bags of blood, consisting of
packed red blood cells, fresh whole blood, or platelet concentrate, were transfused to Angelica. For two days (August 27 to
28), Angelica continued bleeding, but petitioner claimed it was lesser in amount and in frequency. Petitioner also denied that
there were gadgets attached to Angelica at that time.34

On August 29, Angelica developed ulcers in her mouth, which petitioner said were blood clots that should not be removed.
Respondents claimed that Angelica passed about half a liter of blood through her anus at around seven oclock that evening,
which petitioner likewise denied.

On August 30, Angelica continued bleeding. She was restless as endotracheal and nasogastric tubes were inserted into her
weakened body. An aspiration of the nasogastric tube inserted to Angelica also revealed a bloody content. Angelica was given
more platelet concentrate and fresh whole blood, which petitioner claimed improved her condition. Petitioner told Angelica not
to remove the endotracheal tube because this may induce further bleeding. 35She was also transferred to the intensive care unit
to avoid infection.

The next day, respondents claimed that Angelica became hysterical, vomited blood and her body turned black. Part of
Angelicas skin was also noted to be shredding by just rubbing cotton on it. Angelica was so restless she removed those
gadgets attached to her, saying "Ayaw ko na"; there were tears in her eyes and she kept turning her head. Observing her
daughter to be at the point of death, Lina asked for a doctor but the latter could not answer her anymore. 36 At this time, the
attending physician was Dr. Marbella who was shaking his head saying that Angelicas platelets were down and respondents
should pray for their daughter. Reynaldo claimed that he was introduced to a pediatrician who took over his daughters case,
Dr. Abesamis who also told him to pray for his daughter. Angelica continued to have difficulty in her breathing and blood was
being suctioned from her stomach. A nurse was posted inside Angelicas room to assist her breathing and at one point they
had to revive Angelica by pumping her chest. Thereafter, Reynaldo claimed that Angelica already experienced difficulty in
urinating and her bowel consisted of blood-like fluid. Angelica requested for an electric fan as she was in pain. Hospital staff
attempted to take blood samples from Angelica but were unsuccessful because they could not even locate her vein. Angelica
asked for a fruit but when it was given to her, she only smelled it. At this time, Reynaldo claimed he could not find either
petitioner or Dr. Marbella. That night, Angelica became hysterical and started removing those gadgets attached to her. At three
oclock in the morning of September 1, a priest came and they prayed before Angelica expired. Petitioner finally came back
and supposedly told respondents that there was "malfunction" or bogged-down machine.37

By petitioners own account, Angelica was merely irritable that day (August 31). Petitioner noted though that Angelicas skin
was indeed sloughing off.38 She stressed that at 9:30 in the evening, Angelica pulled out her endotracheal tube. 39 On
September 1, exactly two weeks after being admitted at SLMC for chemotherapy, Angelica died.40 The cause of death,
according to petitioner, was septicemia, or overwhelming infection, which caused Angelicas other organs to fail. 41 Petitioner
attributed this to the patients poor defense mechanism brought about by the cancer itself. 42

While he was seeking the release of Angelicas cadaver from SLMC, Reynaldo claimed that petitioner acted arrogantly and
called him names. He was asked to sign a promissory note as he did not have cash to pay the hospital bill.43

Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara, Medico-Legal Officer of the PNP-Crime Laboratory who
conducted the autopsy on Angelicas cadaver, and Dr. Melinda Vergara Balmaceda who is a Medical Specialist employed at
the Department of Health (DOH) Operations and Management Services.

Testifying on the findings stated in her medico-legal report, Dr. Vergara noted the following: (1) there were fluids recovered
from the abdominal cavity, which is not normal, and was due to hemorrhagic shock secondary to bleeding; (2) there was
hemorrhage at the left side of the heart; (3) bleeding at the upper portion of and areas adjacent to, the esophagus; (4) lungs
were heavy with bleeding at the back and lower portion, due to accumulation of fluids; (4) yellowish discoloration of the liver;
(5) kidneys showed appearance of facial shock on account of hemorrhages; and (6) reddishness on external surface of the
spleen. All these were the end result of "hypovolemic shock secondary to multiple organ hemorrhages and disseminated
intravascular coagulation." Dr. Vergara opined that this can be attributed to the chemical agents in the drugs given to the
victim, which caused platelet reduction resulting to bleeding sufficient to cause the victims death. The time lapse for the
production of DIC in the case of Angelica (from the time of diagnosis of sarcoma) was too short, considering the survival rate of
about 3 years. The witness conceded that the victim will also die of osteosarcoma even with amputation or chemotherapy, but
in this case Angelicas death was not caused by osteosarcoma. Dr. Vergara admitted that she is not a pathologist but her
statements were based on the opinion of an oncologist whom she had interviewed. This oncologist supposedly said that if the
victim already had DIC prior to the chemotherapy, the hospital staff could have detected it. 44

On her part, Dr. Balmaceda declared that it is the physicians duty to inform and explain to the patient or his relatives every
known side effect of the procedure or therapeutic agents to be administered, before securing the consent of the patient or his
relatives to such procedure or therapy. The physician thus bases his assurance to the patient on his personal assessment of
the patients condition and his knowledge of the general effects of the agents or procedure that will be allowed on the patient.
Dr. Balmaceda stressed that the patient or relatives must be informed of all known side effects based on studies and
observations, even if such will aggravate the patients condition. 45

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelicas lower extremity, testified for the defendants. He
explained that in case of malignant tumors, there is no guarantee that the ablation or removal of the amputated part will
completely cure the cancer. Thus, surgery is not enough. The mortality rate of osteosarcoma at the time of modern
chemotherapy and early diagnosis still remains at 80% to 90%. Usually, deaths occur from metastasis, or spread of the cancer
to other vital organs like the liver, causing systemic complications. The modes of therapy available are the removal of the
primary source of the cancerous growth and then the residual cancer cells or metastasis should be treated with chemotherapy.
Dr. Tamayo further explained that patients with osteosarcoma have poor defense mechanism due to the cancer cells in the
blood stream. In the case of Angelica, he had previously explained to her parents that after the surgical procedure,
chemotherapy is imperative so that metastasis of these cancer cells will hopefully be addressed. He referred the patient to
petitioner because he felt that petitioner is a competent oncologist. Considering that this type of cancer is very aggressive and
will metastasize early, it will cause the demise of the patient should there be no early intervention (in this case, the patient
developed sepsis which caused her death). Cancer cells in the blood cannot be seen by the naked eye nor detected through
bone scan. On cross-examination, Dr. Tamayo stated that of the more than 50 child patients who had osteogenic sarcoma he
had handled, he thought that probably all of them died within six months from amputation because he did not see them
anymore after follow-up; it is either they died or had seen another doctor.46

In dismissing the complaint, the trial court held that petitioner was not liable for damages as she observed the best known
procedures and employed her highest skill and knowledge in the administration of chemotherapy drugs on Angelica but despite
all efforts said patient died. It cited the testimony of Dr. Tamayo who testified that he considered petitioner one of the most
proficient in the treatment of cancer and that the patient in this case was afflicted with a very aggressive type of cancer
necessitating chemotherapy as adjuvant treatment. Using the standard of negligence laid down in Picart v. Smith,47 the trial
court declared that petitioner has taken the necessary precaution against the adverse effect of chemotherapy on the patient,
adding that a wrong decision is not by itself negligence. Respondents were ordered to pay their unpaid hospital bill in the
amount of 139,064.43.48

Respondents appealed to the CA which, while concurring with the trial courts finding that there was no negligence committed
by the petitioner in the administration of chemotherapy treatment to Angelica, found that petitioner as her attending physician
failed to fully explain to the respondents all the known side effects of chemotherapy. The appellate court stressed that since the
respondents have been told of only three side effects of chemotherapy, they readily consented thereto. Had petitioner made
known to respondents those other side effects which gravely affected their child -- such as carpo-pedal spasm, sepsis,
decrease in the blood platelet count, bleeding, infections and eventual death -- respondents could have decided differently or
adopted a different course of action which could have delayed or prevented the early death of their child.

The CA thus declared:

Plaintiffs-appellants child was suffering from a malignant disease. The attending physician recommended that she undergo
chemotherapy treatment after surgery in order to increase her chances of survival. Appellants consented to the chemotherapy
treatment because they believed in Dr. Rubi Lis representation that the deceased would have a strong chance of survival after
chemotherapy and also because of the representation of appellee Dr. Rubi Li that there were only three possible side-effects of
the treatment. However, all sorts of painful side-effects resulted from the treatment including the premature death of Angelica.
The appellants were clearly and totally unaware of these other side-effects which manifested only during the chemotherapy
treatment. This was shown by the fact that every time a problem would take place regarding Angelicas condition (like an
unexpected side-effect manifesting itself), they would immediately seek explanation from Dr. Rubi Li. Surely, those unexpected
side-effects culminating in the loss of a love[d] one caused the appellants so much trouble, pain and suffering.

On this point therefore, [w]e find defendant-appellee Dr. Rubi Li negligent which would entitle plaintiffs-appellants to their claim
for damages.

xxxx
WHEREFORE, the instant appeal is hereby GRANTED. Accordingly, the assailed decision is hereby modified to the extent that
defendant-appellee Dr. Rubi Li is ordered to pay the plaintiffs-appellants the following amounts:

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

2. Moral damages of P200,000.00;

3. Exemplary damages of P50,000.00;

4. Attorneys fee of P30,000.00.

SO ORDERED.49 (Emphasis supplied.)

Petitioner filed a motion for partial reconsideration which the appellate court denied.

Hence, this petition.

Petitioner assails the CA in finding her guilty of negligence in not explaining to the respondents all the possible side effects of
the chemotherapy on their child, and in holding her liable for actual, moral and exemplary damages and attorneys fees.
Petitioner emphasized that she was not negligent in the pre-chemotherapy procedures and in the administration of
chemotherapy treatment to Angelica.

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

Citing numerous trainings, distinctions and achievements in her field and her current position as co-director for clinical affairs of
the Medical Oncology, Department of Medicine of SLMC, petitioner contends that in the absence of any clear showing or proof,
she cannot be charged with negligence in not informing the respondents all the side effects of chemotherapy or in the pre-
treatment procedures done on Angelica.

As to the cause of death, petitioner insists that Angelica did not die of platelet depletion but of sepsis which is a complication of
the cancer itself. Sepsis itself leads to bleeding and death. She explains that the response rate to chemotherapy of patients
with osteosarcoma is high, so much so that survival rate is favorable to the patient. Petitioner then points to some probable
consequences if Angelica had not undergone chemotherapy. Thus, without chemotherapy, other medicines and supportive
treatment, the patient might have died the next day because of massive infection, or the cancer cells might have spread to the
brain and brought the patient into a coma, or into the lungs that the patient could have been hooked to a respirator, or into her
kidneys that she would have to undergo dialysis. Indeed, respondents could have spent as much because of these
complications. The patient would have been deprived of the chance to survive the ailment, of any hope for life and her "quality
of life" surely compromised. Since she had not been shown to be at fault, petitioner maintains that the CA erred in holding her
liable for the damages suffered by the respondents.50
The issue to be resolved is whether the petitioner can be held liable for failure to fully disclose serious side effects to the
parents of the child patient who died while undergoing chemotherapy, despite the absence of finding that petitioner was
negligent in administering the said treatment.

The petition is meritorious.

The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim
which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily
harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician,
either failed to do something which a reasonably prudent health care provider would have done, or that he or she did
something that a reasonably prudent provider would not have done; and that that failure or action caused injury to the patient.51

This Court has recognized that medical negligence cases are best proved by opinions of expert witnesses belonging in the
same general neighborhood and in the same general line of practice as defendant physician or surgeon. The deference of
courts to the expert opinion of qualified physicians stems from the formers realization that the latter possess unusual technical
skills which laymen in most instances are incapable of intelligently evaluating, hence the indispensability of expert
testimonies.52

In this case, both the trial and appellate courts concurred in finding that the alleged negligence of petitioner in the
administration of chemotherapy drugs to respondents child was not proven considering that Drs. Vergara and Balmaceda, not
being oncologists or cancer specialists, were not qualified to give expert opinion as to whether petitioners lack of skill,
knowledge and professional competence in failing to observe the standard of care in her line of practice was the proximate
cause of the patients death. Furthermore, respondents case was not at all helped by the non-production of medical records by
the hospital (only the biopsy result and medical bills were submitted to the court). Nevertheless, the CA found petitioner liable
for her failure to inform the respondents on all possible side effects of chemotherapy before securing their consent to the said
treatment.

The doctrine of informed consent within the context of physician-patient relationships goes far back into English common law.
As early as 1767, doctors were charged with the tort of "battery" (i.e., an unauthorized physical contact with a patient) if they
had not gained the consent of their patients prior to performing a surgery or procedure. In the United States, the seminal case
was Schoendorff v. Society of New York Hospital53 which involved unwanted treatment performed by a doctor. Justice
Benjamin Cardozos oft-quoted opinion upheld the basic right of a patient to give consent to any medical procedure or
treatment: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body;
and a surgeon who performs an operation without his patients consent, commits an assault, for which he is liable in
damages."54 From a purely ethical norm, informed consent evolved into a general principle of law that a physician has a duty to
disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to
his patient as to whatever grave risks of injury might be incurred from a proposed course of treatment, so that a patient,
exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed treatment, or alternative
treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the
probable benefits.55

Subsequently, in Canterbury v. Spence56 the court observed that the duty to disclose should not be limited to medical usage as
to arrogate the decision on revelation to the physician alone. Thus, respect for the patients right of self-determination on
particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose
upon themselves.57 The scope of disclosure is premised on the fact that patients ordinarily are persons unlearned in the
medical sciences. Proficiency in diagnosis and therapy is not the full measure of a physicians responsibility. It is also his duty
to warn of the dangers lurking in the proposed treatment and to impart information which the patient has every right to expect.
Indeed, the patients reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those
associated with armslength transactions.58 The physician is not expected to give the patient a short medical education, the
disclosure rule only requires of him a reasonable explanation, which means generally informing the patient in nontechnical
terms as to what is at stake; the therapy alternatives open to him, the goals expectably to be achieved, and the risks that may
ensue from particular treatment or no treatment.59 As to the issue of demonstrating what risks are considered material
necessitating disclosure, it was held that experts are unnecessary to a showing of the materiality of a risk to a patients
decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision. Such unrevealed risk that
should have been made known must further materialize, for otherwise the omission, however unpardonable, is without legal
consequence. And, as in malpractice actions generally, there must be a causal relationship between the physicians failure to
divulge and damage to the patient.60

Reiterating the foregoing considerations, Cobbs v. Grant61 deemed it as integral part of physicians overall obligation to patient,
the duty of reasonable disclosure of available choices with respect to proposed therapy and of dangers inherently and
potentially involved in each. However, the physician is not obliged to discuss relatively minor risks inherent in common
procedures when it is common knowledge that such risks inherent in procedure of very low incidence. Cited as exceptions to
the rule that the patient should not be denied the opportunity to weigh the risks of surgery or treatment are emergency cases
where it is evident he cannot evaluate data, and where the patient is a child or incompetent. 62 The court thus concluded that
the patients right of self-decision can only be effectively exercised if the patient possesses adequate information to enable him
in making an intelligent choice. The scope of the physicians communications to the patient, then must be measured by the
patients need, and that need is whatever information is material to the decision. The test therefore for determining whether a
potential peril must be divulged is its materiality to the patients decision. 63

Cobbs v. Grant further reiterated the pronouncement in Canterbury v. Spence that for liability of the physician for failure to
inform patient, there must be causal relationship between physicians failure to inform and the injury to patient and such
connection arises only if it is established that, had revelation been made, consent to treatment would not have been given.

There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent:
"(1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a
direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have
consented to; and (4) plaintiff was injured by the proposed treatment." The gravamen in an informed consent case requires the
plaintiff to "point to significant undisclosed information relating to the treatment which would have altered her decision to
undergo it.64

Examining the evidence on record, we hold that there was adequate disclosure of material risks inherent in the chemotherapy
procedure performed with the consent of Angelicas parents. Respondents could not have been unaware in the course of initial
treatment and amputation of Angelicas lower extremity, that her immune system was already weak on account of the
malignant tumor in her knee. When petitioner informed the respondents beforehand of the side effects of chemotherapy which
includes lowered counts of white and red blood cells, decrease in blood platelets, possible kidney or heart damage and skin
darkening, there is reasonable expectation on the part of the doctor that the respondents understood very well that the severity
of these side effects will not be the same for all patients undergoing the procedure. In other words, by the nature of the disease
itself, each patients reaction to the chemical agents even with pre-treatment laboratory tests cannot be precisely determined
by the physician. That death can possibly result from complications of the treatment or the underlying cancer itself, immediately
or sometime after the administration of chemotherapy drugs, is a risk that cannot be ruled out, as with most other major
medical procedures, but such conclusion can be reasonably drawn from the general side effects of chemotherapy already
disclosed.
As a physician, petitioner can reasonably expect the respondents to have considered the variables in the recommended
treatment for their daughter afflicted with a life-threatening illness. On the other hand, it is difficult to give credence to
respondents claim that petitioner told them of 95% chance of recovery for their daughter, as it was unlikely for doctors like
petitioner who were dealing with grave conditions such as cancer to have falsely assured patients of chemotherapys success
rate. Besides, informed consent laws in other countries generally require only a reasonable explanation of potential harms, so
specific disclosures such as statistical data, may not be legally necessary.65

The element of ethical duty to disclose material risks in the proposed medical treatment cannot thus be reduced to one
simplistic formula applicable in all instances. Further, in a medical malpractice action based on lack of informed consent, "the
plaintiff must prove both the duty and the breach of that duty through expert testimony. 66 Such expert testimony must show the
customary standard of care of physicians in the same practice as that of the defendant doctor. 67

In this case, the testimony of Dr. Balmaceda who is not an oncologist but a Medical Specialist of the DOHs Operational and
Management Services charged with receiving complaints against hospitals, does not qualify as expert testimony to establish
the standard of care in obtaining consent for chemotherapy treatment. In the absence of expert testimony in this regard, the
Court feels hesitant in defining the scope of mandatory disclosure in cases of malpractice based on lack of informed consent,
much less set a standard of disclosure that, even in foreign jurisdictions, has been noted to be an evolving one.

As society has grappled with the juxtaposition between personal autonomy and the medical profession's intrinsic impetus to
cure, the law defining "adequate" disclosure has undergone a dynamic evolution. A standard once guided solely by the
ruminations of physicians is now dependent on what a reasonable person in the patients position regards as significant. This
change in perspective is especially important as medical breakthroughs move practitioners to the cutting edge of technology,
ever encountering new and heretofore unimagined treatments for currently incurable diseases or ailments. An adaptable
standard is needed to account for this constant progression. Reasonableness analyses permeate our legal system for the very
reason that they are determined by social norms, expanding and contracting with the ebb and flow of societal evolution.

As we progress toward the twenty-first century, we now realize that the legal standard of disclosure is not subject to
construction as a categorical imperative. Whatever formulae or processes we adopt are only useful as a foundational starting
point; the particular quality or quantity of disclosure will remain inextricably bound by the facts of each case. Nevertheless,
juries that ultimately determine whether a physician properly informed a patient are inevitably guided by what they perceive as
the common expectation of the medical consumer"a reasonable person in the patients position when deciding to accept or
reject a recommended medical procedure."68 (Emphasis supplied.)

WHEREFORE, the petition for review on certiorari is GRANTED. The Decision dated June 15, 2004 and the Resolution dated
September 1, 2004 of the Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE.

The Decision dated September 5, 1997 of the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904 is
REINSTATED and UPHELD.

No costs.

SO ORDERED.
G.R. No. 177407 February 9, 2011

RICO ROMMEL ATIENZA, Petitioner,

vs.
BOARD OF MEDICINE and EDITHA SIOSON, Respondents.

DECISION

NACHURA, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, assailing the Decision 1 dated September 22,
2006 of the Court of Appeals (CA) in CA-G.R. SP No. 87755. The CA dismissed the petition for certiorari filed by petitioner
Rico Rommel Atienza (Atienza), which, in turn, assailed the Orders2 issued by public respondent Board of Medicine (BOM) in
Administrative Case No. 1882.

The facts, fairly summarized by the appellate court, follow.

Due to her lumbar pains, private respondent Editha Sioson went to Rizal Medical Center (RMC) for check-up on February 4,
1995. Sometime in 1999, due to the same problem, she was referred to Dr. Pedro Lantin III of RMC who, accordingly, ordered
several diagnostic laboratory tests. The tests revealed that her right kidney is normal. It was ascertained, however, that her left
kidney is non-functioning and non-visualizing. Thus, she underwent kidney operation in September, 1999.

On February 18, 2000, private respondents husband, Romeo Sioson (as complainant), filed a complaint for gross negligence
and/or incompetence before the [BOM] against the doctors who allegedly participated in the fateful kidney operation, namely:
Dr. Judd dela Vega, Dr. Pedro Lantin, III, Dr. Gerardo Antonio Florendo and petitioner Rico Rommel Atienza.

It was alleged in the complaint that the gross negligence and/or incompetence committed by the said doctors, including
petitioner, consists of the removal of private respondents fully functional right kidney, instead of the left non-functioning and
non-visualizing kidney.

The complaint was heard by the [BOM]. After complainant Romeo Sioson presented his evidence, private respondent Editha
Sioson, also named as complainant there, filed her formal offer of documentary evidence. Attached to the formal offer of
documentary evidence are her Exhibits "A" to "D," which she offered for the purpose of proving that her kidneys were both in
their proper anatomical locations at the time she was operated. She described her exhibits, as follows:

"EXHIBIT A the certified photocopy of the X-ray Request form dated December 12, 1996, which is also marked as
Annex 2 as it was actually originally the Annex to x x x Dr. Pedro Lantin, IIIs counter affidavit filed with the City
Prosecutor of Pasig City in connection with the criminal complaint filed by [Romeo Sioson] with the said office, on
which are handwritten entries which are the interpretation of the results of the ultrasound examination. Incidentally, this
exhibit happens to be the same as or identical to the certified photocopy of the document marked as Annex 2 to the
Counter-Affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III, on May 4, 2000, with this Honorable Board
in answer to this complaint;
 "EXHIBIT B the certified photo copy of the X-ray request form dated January 30, 1997, which is also marked as
Annex 3 as it was actually likewise originally an Annex to x x x Dr. Pedro Lantin, IIIs counter-affidavit filed with the
Office of the City Prosecutor of Pasig City in connection with the criminal complaint filed by the herein complainant with
the said office, on which are handwritten entries which are the interpretation of the results of the examination.
Incidentally, this exhibit happens to be also the same as or identical to the certified photo copy of the document
marked as Annex 3 which is likewise dated January 30, 1997, which is appended as such Annex 3 to the counter-
affidavit dated March 15, 2000, filed by x x x Dr. Pedro Lantin, III on May 4, 2000, with this Honorable Board in answer
to this complaint.

"EXHIBIT C the certified photocopy of the X-ray request form dated March 16, 1996, which is also marked as Annex
4, on which are handwritten entries which are the interpretation of the results of the examination.

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

Petitioner filed his comments/objections to private respondents [Editha Siosons] formal offer of exhibits. He alleged that said
exhibits are inadmissible because the same are mere photocopies, not properly identified and authenticated, and intended to
establish matters which are hearsay. He added that the exhibits are incompetent to prove the purpose for which they are
offered.

Dispositions of the Board of Medicine

The formal offer of documentary exhibits of private respondent [Editha Sioson] was admitted by the [BOM] per its Order dated
May 26, 2004. It reads:

"The Formal Offer of Documentary Evidence of [Romeo Sioson], the Comments/Objections of [herein petitioner] Atienza,
[therein respondents] De la Vega and Lantin, and the Manifestation of [therein] respondent Florendo are hereby ADMITTED by
the [BOM] for whatever purpose they may serve in the resolution of this case.

"Let the hearing be set on July 19, 2004 all at 1:30 p.m. for the reception of the evidence of the respondents.

"SO ORDERED."

Petitioner moved for reconsideration of the abovementioned Order basically on the same reasons stated in his
comment/objections to the formal offer of exhibits.

The [BOM] denied the motion for reconsideration of petitioner in its Order dated October 8, 2004. It concluded that it should
first admit the evidence being offered so that it can determine its probative value when it decides the case. According to the
Board, it can determine whether the evidence is relevant or not if it will take a look at it through the process of admission. x x
x.3
Disagreeing with the BOM, and as previously adverted to, Atienza filed a petition for certiorari with the CA, assailing the BOMs
Orders which admitted Editha Siosons (Edithas) Formal Offer of Documentary Evidence. The CA dismissed the petition for
certiorari for lack of merit.

Hence, this recourse positing the following issues:

I. PROCEDURAL ISSUE:

WHETHER PETITIONER ATIENZA AVAILED OF THE PROPER REMEDY WHEN HE FILED THE PETITION FOR
CERTIORARI DATED 06 DECEMBER 2004 WITH THE COURT OF APPEALS UNDER RULE 65 OF THE RULES OF
COURT TO ASSAIL THE ORDERS DATED 26 MAY 2004 AND 08 OCTOBER 2004 OF RESPONDENT BOARD.

II. SUBSTANTIVE ISSUE:

WHETHER THE COURT OF APPEALS COMMITTED GRAVE REVERSIBLE ERROR AND DECIDED A QUESTION
OF SUBSTANCE IN A WAY NOT IN ACCORDANCE WITH LAW AND THE APPLICABLE DECISIONS OF THE
HONORABLE COURT WHEN IT UPHELD THE ADMISSION OF INCOMPETENT AND INADMISSIBLE EVIDENCE
BY RESPONDENT BOARD, WHICH CAN RESULT IN THE DEPRIVATION OF PROFESSIONAL LICENSE A
PROPERTY RIGHT OR ONES LIVELIHOOD.4

We find no reason to depart from the ruling of the CA.

Petitioner is correct when he asserts that a petition for certiorari is the proper remedy to assail the Orders of the BOM,
admitting in evidence the exhibits of Editha. As the assailed Orders were interlocutory, these cannot be the subject of an
appeal separate from the judgment that completely or finally disposes of the case.5 At that stage, where there is no appeal, or
any plain, speedy, and adequate remedy in the ordinary course of law, the only and remaining remedy left to petitioner is a
petition for certiorari under Rule 65 of the Rules of Court on the ground of grave abuse of discretion amounting to lack or
excess of jurisdiction.

However, the writ of certiorari will not issue absent a showing that the BOM has acted without or in excess of jurisdiction or
with grave abuse of discretion. Embedded in the CAs finding that the BOM did not exceed its jurisdiction or act in grave abuse
of discretion is the issue of whether the exhibits of Editha contained in her Formal Offer of Documentary Evidence are
inadmissible.

Petitioner argues that the exhibits formally offered in evidence by Editha: (1) violate the best evidence rule; (2) have not been
properly identified and authenticated; (3) are completely hearsay; and (4) are incompetent to prove their purpose. Thus,
petitioner contends that the exhibits are inadmissible evidence.

We disagree.

To begin with, it is well-settled that the rules of evidence are not strictly applied in proceedings before administrative bodies
such as the BOM.6 Although trial courts are enjoined to observe strict enforcement of the rules of evidence,7in connection with
evidence which may appear to be of doubtful relevancy, incompetency, or admissibility, we have held that:

[I]t is the safest policy to be liberal, not rejecting them on doubtful or technical grounds, but admitting them unless plainly
irrelevant, immaterial or incompetent, for the reason that their rejection places them beyond the consideration of the court, if
they are thereafter found relevant or competent; on the other hand, their admission, if they turn out later to be irrelevant or
incompetent, can easily be remedied by completely discarding them or ignoring them. 8

From the foregoing, we emphasize the distinction between the admissibility of evidence and the probative weight to be
accorded the same pieces of evidence. PNOC Shipping and Transport Corporation v. Court of Appeals 9 teaches:

Admissibility of evidence refers to the question of whether or not the circumstance (or evidence) is to be considered at all. On
the other hand, the probative value of evidence refers to the question of whether or not it proves an issue.

Second, petitioners insistence that the admission of Edithas exhibits violated his substantive rights leading to the loss of his
medical license is misplaced. Petitioner mistakenly relies on Section 20, Article I of the Professional Regulation Commission
Rules of Procedure, which reads:

Section 20. Administrative investigation shall be conducted in accordance with these Rules. The Rules of Court shall only
apply in these proceedings by analogy or on a suppletory character and whenever practicable and convenient. Technical
errors in the admission of evidence which do not prejudice the substantive rights of either party shall not vitiate the
proceedings.10

As pointed out by the appellate court, the admission of the exhibits did not prejudice the substantive rights of petitioner
because, at any rate, the fact sought to be proved thereby, that the two kidneys of Editha were in their proper anatomical
locations at the time she was operated on, is presumed under Section 3, Rule 131 of the Rules of Court:

Sec. 3. Disputable presumptions. The following presumptions are satisfactory if uncontradicted, but may be contradicted and
overcome by other evidence:

xxxx

(y) That things have happened according to the ordinary course of nature and the ordinary habits of life.

The exhibits are certified photocopies of X-ray Request Forms dated December 12, 1996, January 30, 1997, March 16, 1996,
and May 20, 1999, filed in connection with Edithas medical case. The documents contain handwritten entries interpreting the
results of the examination. These exhibits were actually attached as annexes to Dr. Pedro Lantin IIIs counter affidavit filed with
the Office of the City Prosecutor of Pasig City, which was investigating the criminal complaint for negligence filed by Editha
against the doctors of Rizal Medical Center (RMC) who handled her surgical procedure. To lay the predicate for her case,
Editha offered the exhibits in evidence to prove that her "kidneys were both in their proper anatomical locations at the time" of
her operation.

The fact sought to be established by the admission of Edithas exhibits, that her "kidneys were both in their proper anatomical
locations at the time" of her operation, need not be proved as it is covered by mandatory judicial notice.11

Unquestionably, the rules of evidence are merely the means for ascertaining the truth respecting a matter of fact.12Thus, they
likewise provide for some facts which are established and need not be proved, such as those covered by judicial notice, both
mandatory and discretionary.13 Laws of nature involving the physical sciences, specifically biology,14 include the structural
make-up and composition of living things such as human beings. In this case, we may take judicial notice that Edithas kidneys
before, and at the time of, her operation, as with most human beings, were in their proper anatomical locations.
Third, contrary to the assertion of petitioner, the best evidence rule is inapplicable.1awphil Section 3 of Rule 130 provides:

1. Best Evidence Rule

Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document, no
evidence shall be admissible other than the original document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the
offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the
latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be examined in court without
great loss of time and the fact sought to be established from them is only the general result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.

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

Finally, these exhibits do not constitute hearsay evidence of the anatomical locations of Edithas kidneys. To further drive home
the point, the anatomical positions, whether left or right, of Edithas kidneys, and the removal of one or both, may still be
established through a belated ultrasound or x-ray of her abdominal area.

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

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 87755 is AFFIRMED. Costs
against petitioner.

SO ORDERED.

G.R. No. 187926 February 15, 2012

Dr. EMMANUEL JARCIA, Jr. and Dr. MARILOU BASTAN, Petitioners,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

MENDOZA, J.:
Even early on, patients have consigned their lives to the skill of their doctors. Time and again, it can be said that the most
important goal of the medical profession is the preservation of life and health of the people. Corollarily, when a physician
departs from his sacred duty and endangers instead the life of his patient, he must be made liable for the resulting injury. This
Court, as this case would show, cannot and will not let the act go unpunished.1

This is a petition for review under Rule 45 of the Rules of Court challenging the August 29, 2008 Decision 2 of the Court of
Appeals (CA), and its May 19, 2009 Resolution3 in CA-G.R. CR No. 29559, dismissing the appeal and affirming in toto the June
14, 2005 Decision4 of the Regional Trial Court, Branch 43, Manila (RTC), finding the accused guilty beyond reasonable doubt
of simple imprudence resulting to serious physical injuries.

THE FACTS

Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of Investigation (NBI) against the petitioners, Dr.
Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr. Bastan), for their alleged neglect of professional duty which
caused her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical injuries. Upon investigation, the NBI found that Roy
Jr. was hit by a taxicab; that he was rushed to the Manila Doctors Hospital for an emergency medical treatment; that an X-ray
of the victims ankle was ordered; that the X-ray result showed no fracture as read by Dr. Jarcia; that Dr. Bastan entered the
emergency room (ER) and, after conducting her own examination of the victim, informed Mrs. Santiago that since it was only
the ankle that was hit, there was no need to examine the upper leg; that eleven (11) days later, Roy Jr. developed fever,
swelling of the right leg and misalignment of the right foot; that Mrs. Santiago brought him back to the hospital; and that the X-
ray revealed a right mid-tibial fracture and a linear hairline fracture in the shaft of the bone.

The NBI indorsed the matter to the Office of the City Prosecutor of Manila for preliminary investigation. Probable cause was
found and a criminal case for reckless imprudence resulting to serious physical injuries, was filed against Dr. Jarcia, Dr. Bastan
and Dr. Pamittan,5 before the RTC, docketed as Criminal Case No. 01-196646.

On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of the crime of Simple Imprudence Resulting
to Serious Physical Injuries. The decretal portion of the RTC decision reads:

WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL JARCIA, JR. and DR. MARILOU BASTAN
GUILTY beyond reasonable doubt of the crime of SIMPLE IMPRUDENCE RESULTING TO SERIOUS PHYSICAL INJURIES
and are hereby sentenced to suffer the penalty of ONE (1) MONTH and ONE (1) DAY to TWO (2) MONTHS and to indemnify
MRS. BELINDA SANTIAGO the amount of 3,850.00 representing medical expenses without subsidiary imprisonment in
case of insolvency and to pay the costs.

It appearing that Dr. Pamittan has not been apprehended nor voluntarily surrendered despite warrant issued for her arrest, let
warrant be issued for her arrest and the case against her be ARCHIVED, to be reinstated upon her apprehension.

SO ORDERED.6

The RTC explained:

After a thorough and in depth evaluation of the evidence adduced by the prosecution and the defense, this court finds that the
evidence of the prosecution is the more credible, concrete and sufficient to create that moral certainty in the mind of the Court
that accused herein [are] criminally responsible. The Court believes that accused are negligent when both failed to exercise the
necessary and reasonable prudence in ascertaining the extent of injury of Alfonso Santiago, Jr.
However, the negligence exhibited by the two doctors does not approximate negligence of a reckless nature but merely
amounts to simple imprudence. Simple imprudence consists in the lack of precaution displayed in those cases in which the
damage impending to be caused is not the immediate nor the danger clearly manifest. The elements of simple imprudence are
as follows.

1. that there is lack of precaution on the part of the offender; and

2. that the damage impending to be caused is not immediate of the danger is not clearly manifest.

Considering all the evidence on record, The Court finds the accused guilty for simple imprudence resulting to physical injuries.
Under Article 365 of the Revised Penal Code, the penalty provided for is arresto mayor in its minimum period. 7

Dissatisfied, the petitioners appealed to the CA.

As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008 Decision of the CA pertinently reads:

This Court holds concurrently and finds the foregoing circumstances sufficient to sustain a judgment of conviction against the
accused-appellants for the crime of simple imprudence resulting in serious physical injuries. The elements of imprudence are:
(1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without
malice; (4) that material damage results from the imprudence; and (5) that there is inexcusable lack of precaution on the part of
the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other
circumstances regarding persons, time and place.

Whether or not Dr. Jarcia and Dr. Bastan had committed an "inexcusable lack of precaution" in the treatment of their patient is
to be determined according to the standard of care observed by other members of the profession in good standing under
similar circumstances, bearing in mind the advanced state of the profession at the time of treatment or the present state of
medical science. In the case of Leonila Garcia-Rueda v. Pascasio, the Supreme Court stated that, in accepting a case, a
doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the
same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least
the same level of care that any other reasonably competent doctor would use to treat a condition under the same
circumstances.

In litigations involving medical negligence, the plaintiff has the burden of establishing accused-appellants negligence, and for a
reasonable conclusion of negligence, there must be proof of breach of duty on the part of the physician as well as a causal
connection of such breach and the resulting injury of his patient. The connection between the negligence and the injury must
be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be
the proximate cause of the injury. Negligence, no matter in what it consists, cannot create a right of action unless it is the
proximate cause of the injury complained of. The proximate cause of an injury is that cause which, in natural and continuous
sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have
occurred.

In the case at bench, the accused-appellants questioned the imputation against them and argued that there is no causal
connection between their failure to diagnose the fracture and the injury sustained by Roy.

We are not convinced.

The prosecution is however after the cause which prolonged the pain and suffering of Roy and not on the failure of the
accused-appellants to correctly diagnose the extent of the injury sustained by Roy.

For a more logical presentation of the discussion, we shall first consider the applicability of the doctrine of res ipsa loquitur to
the instant case. Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for itself. The
doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the
very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the
instrumentality causing the injury in the absence of some explanation by the accused-appellant who is charged with
negligence. It is grounded in the superior logic of ordinary human experience and, on the basis of such experience or common
knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in
conjunction with the doctrine of common knowledge.

The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son during the latters ordeal at the
hospital. She testified as follows:

Fiscal Formoso:

Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra. Pamittan to confirm whether you should go home or
not?

A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us go home and you dont even clean the
wounds of my son.

Q: And what did she [tell] you?

A: They told me they will call a resident doctor, sir.

xxx xxx xxx

Q: Was there a resident doctor [who] came?

A: Yes, Sir. Dra. Bastan arrived.

Q: Did you tell her what you want on you to be done?

A: Yes, sir.

Q: What did you [tell] her?

A: I told her, sir, while she was cleaning the wounds of my son, are you not going to x-ray up to the knee because my son was
complaining pain from his ankle up to the middle part of the right leg.

Q: And what did she tell you?

A: According to Dra. Bastan, there is no need to x-ray because it was the ankle part that was run over.
Q: What did you do or tell her?

A: I told her, sir, why is it that they did not examine[x] the whole leg. They just lifted the pants of my son.

Q: So you mean to say there was no treatment made at all?

A: None, sir.

xxx xxx xxx

xxx xxx xxx

A: I just listened to them, sir. And I just asked if I will still return my son.

xxx xxx xxx

xxx xxx xxx

Q: And you were present when they were called?

A: Yes, sir.

Q: And what was discussed then by Sis. Retoria?

A: When they were there they admitted that they have mistakes, sir.

Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence;

2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated.

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

Fiscal Macapagal:

Q: And was that the correct respon[se] to the medical problem that was presented to Dr. Jarcia and Dra. Bastan?

A: I would say at that stage, yes. Because they have presented the patient and the history. "At sabi nila, nadaanan lang po ito."
And then, considering their year of residency they are still junior residents, and they are not also orthopedic residents but
general surgery residents, its entirely different thing. Because if you are an orthopedic resident, I am not trying to saybut if I
were an orthopedic resident, there would be more precise and accurate decision compare to a general surgery resident in so
far as involved.

Q: You mean to say there is no supervisor attending the emergency room?

A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that usually comes from a
family medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to the consultant
on duty. Now at that time, I dont [know] why they dont.Because at that time, I think, it is the decision. Since the x-rays.

Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been
treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of
physicians, external appearances, and manifest conditions which are observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon
proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge
can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not
have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what
occurred but how and why it occurred. In the case at bench, we give credence to the testimony of Mrs. Santiago by applying
the doctrine of res ipsa loquitur.

Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously applied, depending upon
the circumstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a
matter of common knowledge and observation, that the consequences of professional care were not as such as would
ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results and
the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual
procedure of those skilled in that particular practice. The latter circumstance is the primordial issue that confronted this Court
and we find application of the doctrine of res ipsa loquitur to be in order.

WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSED and the assailed decision of the trial
court finding accused-appellants guilty beyond reasonable doubt of simple imprudence resulting in serious physical injuries is
hereby AFFIRMED in toto.

SO ORDERED.8

The petitioners filed a motion for reconsideration, but it was denied by the CA in its May 19, 2009 Resolution.
Hence, this petition.

The petitioners pray for the reversal of the decision of both the RTC and the CA anchored on the following

GROUNDS-

1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE COURT OF APPEALS ERRED IN NOT HOLDING

THAT THE ACTUAL, DIRECT, IMMEDIATE, AND PROXIMATE CAUSE OF THE PHYSICAL INJURY OF THE
PATIENT (FRACTURE OF THE LEG BONE OR TIBIA), WHICH REQUIRED MEDICAL ATTENDANCE FOR MORE
THAN THIRTY (30) DAYS AND INCAPACITATED HIM FROM PERFORMING HIS CUSTOMARY DUTY DURING
THE SAME PERIOD OF TIME, WAS THE VEHICULAR ACCIDENT WHERE THE PATIENTS RIGHT LEG WAS HIT
BY A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG
TO AN X-RAY EXAMINATION.

2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED FACTS CLEARLY NEGATING

PETITIONERS ALLEGED NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS
UNJUSTIFIABLY DISREGARDED THE OPINION OF THE PROSECUTIONS EXPERT WITNESS, DR. CIRILO
TACATA, THAT PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE COMPLAINED OF.

3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF PETITIONERS TO SUBJECT THE
PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION PROLONGED THE PAIN AND SUFFERING OF THE
PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND EVEN CONTRARY TO, THE EVIDENCE ON
RECORD.

4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED PROLONGED PAIN AND SUFFERING, THE
COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ALLEGED PAIN AND SUFFERING WERE DUE TO
THE UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A NURSE HERSELF, TO IMMEDIATELY BRING THE
PATIENT BACK TO THE HOSPITAL, AS ADVISED BY THE PETITIONERS, AFTER HE COMPLAINED OF
SEVERE PAIN IN HIS RIGHT LEG WHEN HE REACHED HOME AFTER HE WAS SEEN BY PETITIONERS AT
THE HOSPITAL. THUS, THE PATIENTS ALLEGED INJURY (PROLONGED PAIN AND SUFFERING) WAS DUE
TO HIS OWN MOTHERS ACT OR OMISSION.

5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO PHYSICIAN-PATIENT RELATIONSHIP

EXISTED BETWEEN PETITIONERS AND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS NOT BEING THE
LATTERS ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTED BY THE EMERGENCY ROOM (ER)
NURSE TO SEE THE PATIENT WHILE THEY WERE PASSING BY THE ER FOR THEIR LUNCH.

6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING ACCUSED-PETITIONERS OF THE CRIME
CHARGED."9

The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine of res ipsa loquitur is applicable in this
case; and [2] whether or not the petitioners are liable for criminal negligence.

THE COURTS RULING

The CA is correct in finding that there was negligence on the part of the petitioners. After a perusal of the records, however, the
Court is not convinced that the petitioners are guilty of criminal negligence complained of. The Court is also of the view that the
CA erred in applying the doctrine of res ipsa loquitur in this particular case.

As to the Application of The Doctrine of Res Ipsa Loquitur

This doctrine of res ipsa loquitur means "Where the thing which causes injury is shown to be under the management of the
defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management
use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose
from want of care." The Black's Law Dictionary defines the said doctrine. Thus:

The thing speaks for itself. Rebuttable presumption or inference that defendant was negligent, which arises upon proof that the
instrumentality causing injury was in defendant's exclusive control, and that the accident was one which ordinarily does not
happen in absence of negligence. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be
inferred from the mere fact that the accident happened provided the character of the accident and circumstances attending it
lead reasonably to belief that in the absence of negligence it would not have occurred and that thing which caused injury is
shown to have been under the management and control of the alleged wrongdoer. Under this doctrine, the happening of an
injury permits an inference of negligence where plaintiff produces substantial evidence that the injury was caused by an
agency or instrumentality under the exclusive control and management of defendant, and that the occurrence was such that in
the ordinary course of things would not happen if reasonable care had been used.10

The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of negligence which recognizes that prima
facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The
doctrine, however, is not a rule of substantive law, but merely a mode of proof or a mere procedural convenience. The rule,
when applicable to the facts and circumstances of a given case, is not meant to and does not dispense with the requirement of
proof of culpable negligence on the party charged. It merely determines and regulates what shall be prima facie evidence
thereof and helps the plaintiff in proving a breach of the duty. The doctrine can be invoked when and only when, under the
circumstances involved, direct evidence is absent and not readily available.11

The requisites for the application of the doctrine of res ipsa loquitur are: (1) the accident was of a kind which does not ordinarily
occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control
of the person in charge; and (3) the injury suffered must not have been due to any voluntary action or contribution of the
person injured.12

In this case, the circumstances that caused patient Roy Jr.s injury and the series of tests that were supposed to be undergone
by him to determine the extent of the injury suffered were not under the exclusive control of Drs. Jarcia and Bastan. It was
established that they are mere residents of the Manila Doctors Hospital at that time who attended to the victim at the
emergency room.13 While it may be true that the circumstances pointed out by the courts below seem doubtless to constitute
reckless imprudence on the part of the petitioners, this conclusion is still best achieved, not through the scholarly assumptions
of a layman like the patients mother, but by the unquestionable knowledge of expert witness/es. As to whether the petitioners
have exercised the requisite degree of skill and care in treating patient Roy, Jr. is generally a matter of expert opinion.

As to Dr. Jarcia and Dr. Bastans negligence

The totality of the evidence on record clearly points to the negligence of the petitioners. At the risk of being repetitious, the
Court, however, is not satisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this case.
Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care,
precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. 14

Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which material damage results
by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act.15

The elements of simple negligence are: (1) that there is lack of precaution on the part of the offender, and (2) that the damage
impending to be caused is not immediate or the danger is not clearly manifest. 16

In this case, the Court is not convinced with moral certainty that the petitioners are guilty of reckless imprudence or simple
negligence. The elements thereof were not proved by the prosecution beyond reasonable doubt.

The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric orthopedic, although pointing to some medical
procedures that could have been done by Dr. Jarcia and Dr. Bastan, as physicians on duty, was not clear as to whether the
injuries suffered by patient Roy Jr. were indeed aggravated by the petitioners judgment call and their diagnosis or appreciation
of the condition of the victim at the time they assessed him. Thus:

Q: Will you please tell us, for the record, doctor, what is your specialization?

A: At present I am the chairman department of orthopedic in UP-PGH and I had special training in pediatric orthopedic for two
(2) years.

Q: In June 1998, doctor, what was your position and what was your specialization at that time?

A: Since 1980, I have been specialist in pediatric orthopedic.

Q: When Alfonso Santiago, Jr. was brought to you by his mother, what did you do by way of physicians as first step?

A: As usual, I examined the patient physically and, at that time as I have said, the patient could not walk so I [began] to suspect
that probably he sustained a fracture as a result of a vehicular accident. So I examined the patient at that time, the involved
leg, I dont know if that is left or right, the involved leg then was swollen and the patient could not walk, so I requested for the x-
ray of [the] lower leg.

Q: What part of the leg, doctor, did you request to be examined?

A: If we refer for an x-ray, usually, we suspect a fracture whether in approximal, middle or lebistal tinial, we usually x-ray the
entire extremity.

Q: And what was the result?

A: Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone of the leg.

Q: And when you say spiral, doctor, how long was this fracture?

A: When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8) centimeters.
Q: Mid-tibial, will you please point to us, doctor, where the tibial is?

(Witness pointing to his lower leg)

A: The tibial is here, there are two bones here, the bigger one is the tibial and the smaller one is the fibula. The bigger one is
the one that get fractured.

Q: And in the course of your examination of Alfonso Santiago, Jr. did you ask for the history of such injury?

A: Yes, actually, that was a routine part of our examination that once a patient comes in, before we actually examine the
patient, we request for a detailed history. If it is an accident, then, we request for the exact mechanism of injuries.

Q: And as far as you can recall, Doctor, what was the history of that injury that was told to you?

A: The patient was sideswiped, I dont know if it is a car, but it is a vehicular accident.

Q: Who did you interview?

A: The mother.

Q: How about the child himself, Alfonso Santiago, Jr.?

A: Normally, we do not interview the child because, usually, at his age, the answers are not accurate. So, it was the mother
that I interviewed.

Q: And were you informed also of his early medication that was administered on Alfonso Santiago, Jr.?

A: No, not actually medication. I was informed that this patient was seen initially at the emergency room by the two (2)
physicians that you just mentioned, Dr. Jarcia and Dra. Bastan, that time who happened to be my residents who were [on] duty
at the emergency room.

xxxx

A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant that usually comes from a
family medicine. They see where a certain patient have to go and then if they cannot manage it, they refer it to the consultant
on duty. Now at that time, I dont why they dont Because at that time, I think, it is the decision. Since the x-rays

xxx

Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic specialist.

A: They are general surgeon residents. You have to man[x] the emergency room, including neurology, orthopedic,
general surgery, they see everything at the emergency room.

xxxx
Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the emergency room, you would have subjected
the entire foot to x-ray even if the history that was given to Dr. Jarcia and Dra. Bastan is the same?

A: I could not directly say yes, because it would still depend on my examination, we cannot subject the whole body for x-ray if
we think that the damaged was only the leg.

Q: Not the entire body but the entire leg?

A: I think, if my examination requires it, I would.

Q: So, you would conduct first an examination?

A: Yes, sir.

Q: And do you think that with that examination that you would have conducted you would discover the necessity subjecting the
entire foot for x-ray?

A: It is also possible but according to them, the foot and the ankle were swollen and not the leg, which sometimes normally
happens that the actual fractured bone do not get swollen.

xxxx

Q: Doctor, if you know that the patient sustained a fracture on the ankle and on the foot and the history that was told
to you is the region that was hit is the region of the foot, will the doctor subject the entire leg for x-ray?

A: I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you have to consider the kind of
fracture that the patient sustained would you say the exact mechanism of injury. For example spiral, "paikot yung
bale nya," so it was possible that the leg was run over, the patient fell, and it got twisted. Thats why the leg seems to
be fractured.17 [Emphases supplied]

It can be gleaned from the testimony of Dr. Tacata that a thorough examination was not performed on Roy Jr. As residents on
duty at the emergency room, Dr. Jarcia and Dr. Bastan were expected to know the medical protocol in treating leg fractures
and in attending to victims of car accidents. There was, however, no precise evidence and scientific explanation pointing to the
fact that the delay in the application of the cast to the patients fractured leg because of failure to immediately diagnose the
specific injury of the patient, prolonged the pain of the child or aggravated his condition or even caused further complications.
Any person may opine that had patient Roy Jr. been treated properly and given the extensive X-ray examination, the extent
and severity of the injury, spiral fracture of the mid-tibial part or the bigger bone of the leg, could have been detected early on
and the prolonged pain and suffering of Roy Jr. could have been prevented. But still, that opinion, even how logical it may
seem would not, and could not, be enough basis to hold one criminally liable; thus, a reasonable doubt as to the petitioners
guilt.

Although the Court sympathizes with the plight of the mother and the child in this case, the Court is bound by the dictates of
justice which hold inviolable the right of the accused to be presumed innocent until proven guilty beyond reasonable doubt. The
Court, nevertheless, finds the petitioners civilly liable for their failure to sufficiently attend to Roy Jr.s medical needs when the
latter was rushed to the ER, for while a criminal conviction requires proof beyond reasonable doubt, only a preponderance of
evidence is required to establish civil liability. Taken into account also was the fact that there was no bad faith on their part.
Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the victim. It may be true that the actual, direct,
immediate, and proximate cause of the injury (fracture of the leg bone or tibia) of Roy Jr. was the vehicular accident when he
was hit by a taxi. The petitioners, however, cannot simply invoke such fact alone to excuse themselves from any liability. If this
would be so, doctors would have a ready defense should they fail to do their job in attending to victims of hit-and-run,
maltreatment, and other crimes of violence in which the actual, direct, immediate, and proximate cause of the injury is
indubitably the act of the perpetrator/s.

In failing to perform an extensive medical examination to determine the extent of Roy Jr.s injuries, Dr. Jarcia and Dr. Bastan
were remiss of their duties as members of the medical profession. Assuming for the sake of argument that they did not have
the capacity to make such thorough evaluation at that stage, they should have referred the patient to another doctor with
sufficient training and experience instead of assuring him and his mother that everything was all right.

This Court cannot also stamp its imprimatur on the petitioners contention that no physician-patient relationship existed
between them and patient Roy Jr., since they were not his attending physicians at that time. They claim that they were merely
requested by the ER nurse to see the patient while they were passing by the ER for their lunch. Firstly, this issue was never
raised during the trial at the RTC or even before the CA. The petitioners, therefore, raise the want of doctor-patient relationship
for the first time on appeal with this Court. It has been settled that "issues raised for the first time on appeal cannot be
considered because a party is not permitted to change his theory on appeal. To allow him to do so is unfair to the other party
and offensive to the rules of fair play, justice and due process." 18 Stated differently, basic considerations of due process dictate
that theories, issues and arguments not brought to the attention of the trial court need not be, and ordinarily will not be,
considered by a reviewing court.19

Assuming again for the sake of argument that the petitioners may still raise this issue of "no physicianpatient relationship," the
Court finds and so holds that there was a "physicianpatient" relationship in this case.

In the case of Lucas v. Tuao,20 the Court wrote that "[w]hen a patient engages the services of a physician, a physician-patient
relationship is generated. And in accepting a case, the physician, for all intents and purposes, represents that he has the
needed training and skill possessed by physicians and surgeons practicing in the same field; and that he will employ such
training, care, and skill in the treatment of the patient. Thus, in treating his patient, a physician is under a duty to exercise that
degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice
ordinarily possess and exercise in like cases. Stated otherwise, the physician has the obligation to use at least the same level
of care that any other reasonably competent physician would use to treat the condition under similar circumstances."

Indubitably, a physician-patient relationship exists between the petitioners and patient Roy Jr. Notably, the latter and his
mother went to the ER for an immediate medical attention. The petitioners allegedly passed by and were requested to attend to
the victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents on duty at the ER).21 They obliged and
examined the victim, and later assured the mother that everything was fine and that they could go home. Clearly, a physician-
patient relationship was established between the petitioners and the patient Roy Jr.

To repeat for clarity and emphasis, if these doctors knew from the start that they were not in the position to attend to Roy Jr., a
vehicular accident victim, with the degree of diligence and commitment expected of every doctor in a case like this, they should
have not made a baseless assurance that everything was all right. By doing so, they deprived Roy Jr. of adequate medical
attention that placed him in a more dangerous situation than he was already in. What petitioners should have done, and could
have done, was to refer Roy Jr. to another doctor who could competently and thoroughly examine his injuries.

All told, the petitioners were, indeed, negligent but only civilly, and not criminally, liable as the facts show.
Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the Philippines states:

A physician should attend to his patients faithfully and conscientiously. He should secure for them all possible benefits that
may depend upon his professional skill and care. As the sole tribunal to adjudge the physicians failure to fulfill his obligation to
his patients is, in most cases, his own conscience, violation of this rule on his part is discreditable and inexcusable. 22

Established medical procedures and practices, though in constant instability, are devised for the purpose of preventing
complications. In this case, the petitioners failed to observe the most prudent medical procedure under the circumstances to
prevent the complications suffered by a child of tender age.

As to the Award of Damages

While no criminal negligence was found in the petitioners failure to administer the necessary medical attention to Roy Jr., the
Court holds them civilly liable for the resulting damages to their patient. While it was the taxi driver who ran over the foot or leg
of Roy Jr., their negligence was doubtless contributory.

It appears undisputed that the amount of 3,850.00, as expenses incurred by patient Roy Jr., was adequately supported by
receipts. The Court, therefore, finds the petitioners liable to pay this amount by way of actual damages.

The Court is aware that no amount of compassion can suffice to ease the sorrow felt by the family of the child at that time.
Certainly, the award of moral and exemplary damages in favor of Roy Jr. in the amount of 100,000.00 and 50,000.00,
respectively, is proper in this case.

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

The Court, likewise, finds the petitioners also liable for exemplary damages in the said amount.1wphi1 Article 2229 of the Civil
Code provides that exemplary damages may be imposed by way of example or correction for the public good.

WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated August 29, 2008
is REVERSED and SET ASIDE. A new judgment is entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of
the crime of reckless imprudence resulting to serious physical injuries but declaring them civilly liable in the amounts of:

(1) 3,850.00 as actual damages;

(2) 100,000.00 as moral damages;

(3) 50,000.00 as exemplary damages; and

(4) Costs of the suit.

with interest at the rate of 6% per annum from the date of the filing of the Information. The rate shall be 12% interest per
annum from the finality of judgment until fully paid.
SO ORDERED.

G.R. No. 167366 September 26, 2012

DR. PEDRO DENNIS CERENO, and DR. SANTOS ZAFE, Petitioners,

vs.
COURT OF APPEALS, SPOUSES DIOGENES S. OLAVERE and FE R. SERRANO, Respondents.

DECISION

PEREZ, J.:

Before the Court is a Petition for Review on Certiorari 1 under Rule 45 of the Rules of Court seeking the annulment and setting
aside of the 21 February 2005 decision2 of the Court of Appeals (CA) in CA-G.R. CV No. 65800. In the assailed decision, the
CA affirmed in toto the decision of the Regional Trial Court (R TC), Branch 22, Nag a City finding herein petitioners Dr. Pedro
Dennis Cereno (Dr. Cereno) and Dr. Santos Zafe (Dr. Zafe) liable for damages.

Culled from the records are the following antecedent facts:

At about 9:15 in the evening of 16 September 1995, Raymond S. Olavere (Raymond), a victim of a stabbing incident, was
rushed to the emergency room of the Bicol Regional Medical Center (BRMC). There, Raymond was attended to by Nurse
Arlene Balares (Nurse Balares) and Dr. Ruel Levy Realuyo (Dr. Realuyo) the emergency room resident physician.

Subsequently, the parents of Raymondthe spouses Deogenes Olavere (Deogenes) and Fe R. Serranoarrived at the
BRMC. They were accompanied by one Andrew Olavere, the uncle of Raymond.

After extending initial medical treatment to Raymond, Dr. Realuyo recommended that the patient undergo "emergency
exploratory laparotomy." Dr. Realuyo then requested the parents of Raymond to procure 500 cc of type "O" blood needed for
the operation. Complying with the request, Deogenes and Andrew Olavere went to the Philippine National Red Cross to secure
the required blood.

At 10:30 P.M., Raymond was wheeled inside the operating room. During that time, the hospital surgeons, Drs. Zafe and
Cereno, were busy operating on gunshot victim Charles Maluluy-on. Assisting them in the said operation was Dr. Rosalina
Tatad (Dr. Tatad), who was the only senior anesthesiologist on duty at BRMC that night. Dr. Tatad also happened to be the
head of Anesthesiology Department of the BRMC.

Just before the operation on Maluluy-on was finished, another emergency case involving Lilia Aguila, a woman who was giving
birth to triplets, was brought to the operating room.

At 10:59 P.M., the operation on Charles Maluluy-on was finished. By that time, however, Dr. Tatad was already working with
the obstetricians who will perform surgery on Lilia Aguila. There being no other available anesthesiologist to assist them, Drs.
Zafe and Cereno decided to defer the operation on Raymond.

Drs. Zafe and Cereno, in the meantime, proceeded to examine Raymond and they found that the latters blood pressure was
normal and "nothing in him was significant."3 Dr. Cereno reported that based on the xray result he interpreted, the fluid inside
the thoracic cavity of Raymond was minimal at around 200-300 cc.
At 11:15 P.M., Deogenes and Andrew Olavere returned to the BRMC with a bag containing the requested 500 cc type "O"
blood. They handed over the bag of blood to Dr. Realuyo.

After Dr. Tatad finished her work with the Lilia Aguila operation, petitioners immediately started their operation on Raymond at
around 12:15 A.M. of 17 September 1995. Upon opening of Raymonds thoracic cavity, they found that 3,200 cc of blood was
stocked therein. The blood was evacuated and petitioners found a puncture at the inferior pole of the left lung.

In his testimony, Dr. Cereno stated that considering the loss of blood suffered by Raymond, he did not immediately transfuse
blood because he had to control the bleeders first.4

Blood was finally transfused on Raymond at 1:40 A.M. At 1:45 A.M., while the operation was on-going, Raymond suffered a
cardiac arrest. The operation ended at 1:50 A.M. and Raymond was pronounced dead at 2:30 A.M.

Raymonds death certificate5 indicated that the immediate cause of death was "hypovolemic shock" or the cessation of the
functions of the organs of the body due to loss of blood.6

Claiming that there was negligence on the part of those who attended to their son, the parents of Raymond, on 25 October
1995, filed before the RTC, Branch 22, Naga City a complaint for damages7 against Nurse Balares, Dr. Realuyo and attending
surgeons Dr. Cereno and Dr. Zafe.

During trial, the parents of Raymond testified on their own behalf. They also presented the testimonies of Andrew Olavere and
one Loira Oira, the aunt of Raymond. On the other hand, Dr. Cereno, Dr. Realuyo, Nurse Balares and Security Guard Diego
Reposo testified for the defense. On rebuttal, the parents of Raymond presented Dr. Tatad, among others.

On 15 October 1999, the trial court rendered a decision8 the dispositive portion of which reads:

WHEREFORE, premises considered, this Court hereby renders judgment:

1. Dismissing the case against Dr. Ruel Levy Realuyo and Arlene Balares for lack of merit;

2. Ordering defendants Dr. Santos Zafe and Dr. Dennis Cereno to pay the heirs of Raymond Olavere, jointly and
severally the following amounts:

1. 50,000.00 for the death of the victim;

2. 150,000.00 as moral damages;

3. 100,000.00 as exemplary damages;

4. 30,000.00 for attorneys fees; and

5. Cost of suit.9

x x x x.
The trial court found petitioners negligent in not immediately conducting surgery on Raymond. It noted that petitioners have
already finished operating on Charles Maluluy-on as early as 10:30 in the evening, and yet they only started the operation on
Raymond at around 12:15 early morning of the following day. The trial court held that had the surgery been performed
promptly, Raymond would not have lost so much blood and, therefore, could have been saved. 10

The trial court also held that the non-availability of Dr. Tatad after the operation on Maluluy-on was not a sufficient excuse for
the petitioners to not immediately operate on Raymond. It called attention to the testimony of Dr. Tatad herself, which disclosed
the possibility of calling a standby anesthesiologist in that situation. The trial court opined that the petitioners could have just
requested for the standby anesthesiologist from Dr. Tatad, but they did not.

Lastly, the trial court faulted petitioners for the delay in the transfusion of blood on Raymond.

On appeal, the CA in a decision dated 21 February 2005 affirmed in toto the judgment rendered by the RTC finding herein
petitioners guilty of gross negligence in the performance of their duties and awarding damages to private respondents.

Hence, this petition for review on certiorari under Rule 45 of the Rules of Court assailing the CA decision on the following
grounds:

1. THAT THE CA ERRED IN RULING THAT PETITIONERS WERE GROSSLY NEGLIGENT IN THE
PERFORMANCE OF THEIR DUTIES;

2. THAT THE CA ERRED IN NOT CONSIDERING THE BICOL REGIONAL MEDICAL CENTER AS AN
INDISPENSABLE PARTY AND SUBSIDIARILY LIABLE SHOULD PETITIONERS BE FOUND LIABLE FOR
DAMAGES; and

3. THAT THE CA ERRED IN NOT FINDING THE AWARD OF MORAL AND EXEMPLARY DAMAGES AS WELL AS
ATTORNEYS FEES EXORBITANT OR EXCESSIVE.

We grant the petition

It is well-settled that under Rule 45 of the Rules of Court, only questions of law may be raised. The reason behind this is that
this Court is not a trier of facts and will not re-examine and re-evaluate the evidence on record.11 Factual findings of the CA,
affirming that of the trial court, are therefore generally final and conclusive on this Court. This rule is subject to the following
exceptions: (1) the conclusion is grounded on speculations, surmises or conjectures; (2) the inference is manifestly mistaken,
absurd or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the
findings of fact are conflicting; (6) there is no citation of specific evidence on which the factual findings are based; (7) the
findings of absence of fact are contradicted by the presence of evidence on record; (8) the findings of the CA are contrary to
those of the trial court; (9) the CA manifestly overlooked certain relevant and undisputed facts that, if properly considered,
would justify a different conclusion; (10) the findings of the CA are beyond the issues of the case; and (11) such findings are
contrary to the admissions of both parties.12 In this case, We find exceptions (1) and (4) to be applicable.

The type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim
which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily
harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a
physician, either failed to do something which a reasonably prudent health care provider would have done, or that he
or she did something that a reasonably prudent provider would not have done; and that the failure or action caused
injury to the patient.13 Stated otherwise, the complainant must prove: (1) that the health care provider, either by his act or
omission, had been negligent, and (2) that such act or omission proximately caused the injury complained of.

The best way to prove these is through the opinions of expert witnesses belonging in the same neighborhood and in the same
general line of practice as defendant physician or surgeon. The deference of courts to the expert opinion of qualified physicians
stems from the formers realization that the latter possess unusual technical skills which laymen in most instances are
incapable of intelligently evaluating, hence, the indispensability of expert testimonies.14

Guided by the foregoing standards, We dissect the issues at hand.

Petitioners Not Negligent

The trial court first imputed negligence on the part of the petitioners by their failure to perform the operation on Raymond
immediately after finishing the Maluluy-on operation. It rejected as an excuse the nonavailability of Dr. Tatad. The trial court
relied on the testimony of Dr. Tatad about a "BRMC protocol" that introduces the possibility that a standby anesthesiologist
could have been called upon. The pertinent portions of the testimony of Dr. Tatad provides:

Q: Aside from you and Dr. Rebancos, who was the standby anesthesiologist?

A: We have a protocol at the Bicol Medical Center to have a consultant who is on call.

Q: How many of them?

A: One.

Q: Who is she?

A: Dra. Flores.

Q: What is the first name?

A: Rosalina Flores.

Q: Is she residing in Naga City?

A: In Camaligan.

Q: She is on call anytime when there is an emergency case to be attended to in the Bicol Medical Center?

A: Yes sir.15

Dr. Tatad further testified:

Q: Alright (sic), considering that you said you could not attend to Raymond Olavere because another patient was coming in the
person of Lilia Aguila, did you not suggest to Dr. Cereno to call the standby anesthesiologist?
A: They are not ones to do that. They have no right to call for the standby anesthesiologist.

Q: Then, who should call for the standby anesthesiologist?

A: It is me if the surgeon requested.

Q: But in this case, the surgeon did not request you?

A: No. It is their prerogative.

Q: I just want to know that in this case the surgeon did not request you to call for the standby anesthesiologist?

A: No sir.16

From there, the trial court concluded that it was the duty of the petitioners to request Dr. Tatad to call on Dr. Rosalina Flores,
the standby anesthesiologist. Since petitioners failed to do so, their inability to promptly perform the operation on Raymond
becomes negligence on their part.

This Court does not agree with the aforesaid conclusion.

First. There is nothing in the testimony of Dr. Tatad, or in any evidence on the record for that matter, which shows that the
petitioners were aware of the "BRMC protocol" that the hospital keeps a standby anesthesiologist available on call. Indeed,
other than the testimony of Dr. Tatad, there is no evidence that proves that any such "BRMC protocol" is being practiced by the
hospitals surgeons at all.

Evidence to the effect that petitioners knew of the "BRMC protocol" is essential, especially in view of the contrary assertion of
the petitioners that the matter of assigning anesthesiologists rests within the full discretion of the BRMC Anesthesiology
Department. Without any prior knowledge of the "BRMC protocol," We find that it is quite reasonable for the petitioners to
assume that matters regarding the administration of anesthesia and the assignment of anesthesiologists are concerns of the
Anesthesiology Department, while matters pertaining to the surgery itself fall under the concern of the surgeons. Certainly, We
cannot hold petitioners accountable for not complying with something that they, in the first place, do not know.

Second. Even assuming ex gratia argumenti that there is such "BRMC protocol" and that petitioners knew about it, We find that
their failure to request for the assistance of the standby anesthesiologist to be reasonable when taken in the proper context.
There is simply no competent evidence to the contrary.

From the testimony of Dr. Tatad herself, it is clear that the matter of requesting for a standby anaesthesiologist is not within the
full discretion of petitioners. The "BRMC protocol" described in the testimony requires the petitioners to course such request to
Dr. Tatad who, as head of the Department of Anesthesiology, has the final say of calling the standby anesthesiologist.

As revealed by the facts, however, after the Maluluy-on operation, Dr. Tatad was already assisting in the Lilia Aguila operation.
Drs. Zafe and Cereno then proceeded to examine Raymond and they found that the latters blood pressure was normal and
"nothing in him was significant."17 Dr. Cereno even concluded that based on the x-ray result he interpreted, the fluid inside the
thoracic cavity of Raymond was minimal at around 200-300 cc. Such findings of Drs. Cereno and Zafe were never challenged
and were unrebutted.
Given that Dr. Tatad was already engaged in another urgent operation and that Raymond was not showing any symptom of
suffering from major blood loss requiring an immediate operation, We find it reasonable that petitioners decided to wait for Dr.
Tatad to finish her surgery and not to call the standby anesthesiologist anymore. There is, after all, no evidence that shows that
a prudent surgeon faced with similar circumstances would decide otherwise.

Here, there were no expert witnesses presented to testify that the course of action taken by petitioners were not in accord with
those adopted by other reasonable surgeons in similar situations. Neither was there any testimony given, except that of Dr.
Tatads, on which it may be inferred that petitioners failed to exercise the standard of care, diligence, learning and skill
expected from practitioners of their profession. Dr. Tatad, however, is an expert neither in the field of surgery nor of surgical
practices and diagnoses. Her expertise is in the administration of anesthesia and not in the determination of whether surgery
ought or not ought to be performed.

Another ground relied upon by the trial court in holding petitioners negligent was their failure to immediately transfuse blood on
Raymond. Such failure allegedly led to the eventual death of Raymond through "hypovolemic shock." The trial court relied on
the following testimony of Dr. Tatad:

Q: In this case of Raymond Olavere was blood transfused to him while he was inside the operating room?

A: The blood arrived at 1:40 a.m. and that was the time when this blood was hooked to the patient.

xxxx

Q: Prior to the arrival of the blood, you did not request for blood?

A: I requested for blood.

Q: From whom?

A: From the attending physician, Dr. Realuyo.

Q: What time was that?

xxxx

A: 9:30.

xxxx

Q: Had this blood been given to you before the operation you could have transfused the blood to the patient?

A: Of course, yes.

Q: And the blood was transfused only after the operation?

A: Because that was the time when the blood was given to us.
xxxx

Q: Have you monitored the condition of Raymond Olavere?

A: I monitored the condition during the time when I would administer anesthesia.

Q: What time was that?

A: 11:45 already.

Q: What was the condition of the blood pressure at that time?

A: 60/40 initial.

Q: With that kind of blood pressure the patient must have been in critical condition?

A: At the time when the blood pressure was 60/40 I again told Dr. Cereno that blood was already needed.

Q: With that condition, Doctor, that the patient had 60/40 blood pressure you did not decide on transfusing blood to him?

A: I was asking for blood but there was no blood available.

Q: From whom did you ask?

A: From the surgeon. According to Dr. Zafe there was only 500 cc but still for cross-matching.18

From the aforesaid testimony, the trial court ruled that there was negligence on the part of petitioners for their failure to have
the blood ready for transfusion. It was alleged that at 11:15 P.M., the 500 cc of blood was given to Dr. Realuyo by Raymonds
parents. At 11:45 P.M., when Dr. Tatad was asking for the blood, 30 minutes had passed. Yet, the blood was not ready for
transfusion as it was still being cross-matched.19 It took another two hours before blood was finally transfused to Raymond at
1:40 A.M. of 17 September 1995.

Again, such is a mistaken conclusion.

First, the alleged delay in the cross-matching of the blood, if there was any, cannot be attributed as the fault of the petitioners.
The petitioners were never shown to be responsible for such delay. It is highly unreasonable and the height of injustice if
petitioners were to be sanctioned for lapses in procedure that does not fall within their duties and beyond their control.

Second, Dr. Cereno, in his unchallenged testimony, aptly explained the apparent delay in the transfusion of blood on Raymond
before and during the operation.

Before the operation, Dr. Cereno explained that the reason why no blood transfusion was made on Raymond was because
they did not then see the need to administer such transfusion, viz:

Q: Now, you stated in your affidavit that prior to the operation you were informed that there was 500 cc of blood available and
was still to be cross-matched. What time was that when you were informed that 500 cc of blood was due for crossmatching?
A: I am not sure of the time.

Q: But certainly, you learned of that fact that there was 500 cc of blood, which was due for crossmatching immediately prior to
the operation?

A: Yes, sir.

Q: And the operation was done at 12:15 of September 17?

A: Yes, sir.

Q: And that was the reason why you could not use the blood because it was being crossmatched?

A: No, sir. That was done only for a few minutes. We did not transfuse at that time because there was no need. There is a
necessity to transfuse blood when we saw there is gross bleeding inside the body. 20 (Emphasis supplied)

During the operation, on the other hand, Dr. Cereno was already able to discover that 3,200 cc of blood was stocked in the
thoracic cavity of Raymond due to the puncture in the latters left lung. Even then, however, immediate blood transfusion was
not feasible because:

Q: Now considering the loss of blood suffered by Raymund Olavere, why did you not immediately transfuse blood to the patient
and you waited for 45 minutes to elapse before transfusing the blood?

A: I did not transfuse blood because I had to control the bleeders. If you will transfuse blood just the same the blood
that you transfuse will be lost. After evacuation of blood and there is no more bleeding

Q: It took you 45 minutes to evacuate the blood?

A: The evacuation did not take 45 minutes.

Q: So what was the cause of the delay why you only transfuse blood after 45 minutes?

A: We have to look for some other lesions. It does not mean that when you slice the chest you will see the lesions
already.21

(Emphasis supplied)

Again, the foregoing testimonies of Dr. Cereno went unchallenged or unrebutted. The parents of Raymond were not able to
present any expert witness to dispute the course of action taken by the petitioners.

Causation Not Proven

In medical negligence cases, it is settled that the complainant has the burden of establishing breach of duty on the part of the
doctors or surgeons. It must be proven that such breach of duty has a causal connection to the resulting death of the
patient.22 A verdict in malpractice action cannot be based on speculation or conjecture. Causation must be proven within a
reasonable medical probability based upon competent expert testimony.
The parents of Raymond failed in this respect. Aside from their failure to prove negligence on the part of the petitioners, they
also failed to prove that it was petitioners fault that caused the injury. Their cause stands on the mere assumption that
Raymonds life would have been saved had petitioner surgeons immediately operated on him; had the blood been cross-
matched immediately and had the blood been transfused immediately. There was, however, no proof presented that
Raymonds life would have been saved had those things been done. Those are mere assumptions and cannot guarantee their
desired result. Such cannot be made basis of a decision in this case, especially considering that the name, reputation and
career of petitioners are at stake.

The Court understands the parents grief over their sons death.1wphi1 That notwithstanding, it cannot hold petitioners liable.
It was noted that Raymond, who was a victim of a stabbing incident, had multiple wounds when brought to the hospital. Upon
opening of his thoracic cavity, it was discovered that there was gross bleeding inside the body. Thus, the need for petitioners to
control first what was causing the bleeding. Despite the situation that evening i.e. numerous patients being brought to the
hospital for emergency treatment considering that it was the height of the Peafrancia Fiesta, it was evident that petitioners
exerted earnest efforts to save the life of Raymond. It was just unfortunate that the loss of his life was not prevented.

In the case of Dr. Cruz v. CA, it was held that "[d]octors are protected by a special law. They are not guarantors of care. They
do not even warrant a good result. They are not insurers against mishaps or unusual consequences. Furthermore, they are not
liable for honest mistake of judgment"23

This Court affirms the ruling of the CA that the BRMC is not an indispensible party. The core issue as agreed upon by the
parties and stated in the pre-trial order is whether petitioners were negligent in the performance of their duties. It pertains to
acts/omissions of petitioners for which they could be held liable. The cause of action against petitioners may be prosecuted
fully and the determination of their liability may be arrived at without impleading the hospital where they are employed. As
such, the BRMC cannot be considered an indispensible party without whom no final determination can be had of an action. 24

IN THE LIGHT OF THE FOREGOING, the instant Petition for Review on Certiorari is hereby GRANTED. The Court of Appeals
decision dated 21 February 2005 in CA-G.R. CV No. 65800 is hereby REVERSED and SET ASIDE. No costs.

SO ORDERED.

G.R. No. 163753 January 15, 2014

DR. ENCARNACION C. LUMANTAS, M.D., Petitioner,

vs.
HANZ CALAPIZ, REPRESENTED BY HIS PARENTS, HILARIO CALAPIZ, JR. and HERLITA CALAPIZ,Respondent.

DECISION

BERSAMIN, J.:

The acquittal of the accused does not necessarily mean his absolution from civil liability.

The Case
In this appeal, an accused desires the reversal of the decision promulgated on February 20, 2003, 1 whereby the Court of
Appeals (CA) affirmed the judgment rendered on August 6, 1999 by the Regional Trial Court (RTC), Branch 13, in Oroquieta
City ordering him to pay moral damages despite his acquittal of the crime of reckless imprudence resulting in serious physical
injuries charged against him.2

Antecedents

On January 16, 1995, Spouses Hilario Calapiz, Jr. and Herlita Calapiz brought their 8-year-old son, Hanz Calapiz (Hanz), to
the Misamis Occidental Provincial Hospital, Oroquieta City, for an emergency appendectomy. Hanz was attended to by the
petitioner, who suggested to the parents that Hanz also undergo circumcision at no added cost to spare him the pain. With the
parents consent, the petitioner performed the coronal type of circumcision on Hanz after his appendectomy. On the following
day, Hanz complained of pain in his penis, which exhibited blisters. His testicles were swollen. The parents noticed that the
child urinated abnormally after the petitioner forcibly removed the catheter, but the petitioner dismissed the abnormality as
normal. On January 30, 1995, Hanz was discharged from the hospital over his parents protestations, and was directed to
continue taking antibiotics.

On February 8, 1995, Hanz was confined in a hospital because of the abscess formation between the base and the shaft of his
penis. Presuming that the ulceration was brought about by Hanzs appendicitis, the petitioner referred him to Dr. Henry Go, an
urologist, who diagnosed the boy to have a damaged urethra. Thus, Hanz underwent cystostomy, and thereafter was operated
on three times to repair his damaged urethra.

When his damaged urethra could not be fully repaired and reconstructed, Hanzs parents brought a criminal charge against the
petitioner for reckless imprudence resulting to serious physical injuries. On April 17, 1997, the information 3 was filed in the
Municipal Trial Court in Cities of Oroquieta City (MTCC), to which the latter pleaded not guilty on May 22, 1998. 4 Under the
order of April 30, 1999, the case was transferred to the RTC pursuant to Supreme Court Circular No. 11-99.5

At the trial, the Prosecution presented several witnesses, including Dr. Rufino Agudera as an expert witness and as the
physician who had operated on Hanz twice to repair the damaged urethra. Dr. Agudera testified that Hanz had been diagnosed
to have urethral stricture and cavernosal injury left secondary to trauma that had necessitated the conduct of two operations to
strengthen and to lengthen the urethra. Although satisfactorily explaining that the injury to the urethra had been caused by
trauma, Dr. Agudera could not determine the kind of trauma that had caused the injury.

In his defense, the petitioner denied the charge. He contended that at the time of his examination of Hanz on January 16,
1995, he had found an accumulation of pus at the vicinity of the appendix two to three inches from the penis that had required
immediate surgical operation; that after performing the appendectomy, he had circumcised Hanz with his parents consent by
using a congo instrument, thereby debunking the parents claim that their child had been cauterized; that he had then cleared
Hanz on January 27, 1995 once his fever had subsided; that he had found no complications when Hanz returned for his follow
up check-up on February 2, 1995; and that the abscess formation between the base and the shaft of the penis had been
brought about by Hanzs burst appendicitis.

Ruling of the RTC

In its decision rendered on August 6, 1999,6 the RTC acquitted the petitioner of the crime charged for insufficiency of the
evidence. It held that the Prosecutions evidence did not show the required standard of care to be observed by other members
of the medical profession under similar circumstances. Nonetheless, the RTC ruled that the petitioner was liable for moral
damages because there was a preponderance of evidence showing that Hanz had received the injurious trauma from his
circumcision by the petitioner. The decision disposed as follows:

WHEREFORE, for insufficiency of evidence, this court renders judgment acquitting the accused, Dr. Encarnacion Lumantas, of
reckless imprudence resulting in serious physical injuries, but ordering him to pay Hanz Calapiz 50,000.00 as moral
damages. No costs.

SO ORDERED.

Ruling of the CA

On appeal, the CA affirmed the RTC,7 sustaining the award of moral damages. It opined that even if the petitioner had been
acquitted of the crime charged, the acquittal did not necessarily mean that he had not incurred civil liability considering that the
Prosecution had preponderantly established the sufferings of Hanz as the result of the circumcision.

The petitioner moved for reconsideration, but the CA denied the motion on April 28, 2004.8

Hence, this appeal.

Issue

Whether the CA erred in affirming the petitioners civil liability despite his acquittal of the crime of reckless imprudence resulting
in serious physical injuries.

Ruling

The petition for review lacks merit.

It is axiomatic that every person criminally liable for a felony is also civilly liable. 9 Nevertheless, the acquittal of an accused of
the crime charged does not necessarily extinguish his civil liability. In Manantan v. Court of Appeals, 10the Court elucidates on
the two kinds of acquittal recognized by our law as well as on the different effects of acquittal on the civil liability of the
accused, viz:

Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused.1wphi1 First is an acquittal
on the ground that the accused is not the author of the act or omission complained of. This instance closes the door to civil
liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable
for such act or omission. There being no delict, civil liability ex delicto is out of the question, and the civil action, if any, which
may be instituted must be based on grounds other than the delict complained of. This is the situation contemplated in Rule 111
of the Rules of Court. The second instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case,
even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved
by preponderance of evidence only.

The Rules of Court requires that in case of an acquittal, the judgment shall state "whether the evidence of the prosecution
absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reasonable doubt. In either case,
the judgment shall determine if the act or omission from which the civil liability might arise did not exist." 11
Conformably with the foregoing, therefore, the acquittal of an accused does not prevent a judgment from still being rendered
against him on the civil aspect of the criminal case unless the court finds and declares that the fact from which the civil liability
might arise did not exist.

Although it found the Prosecutions evidence insufficient to sustain a judgment of conviction against the petitioner for the crime
charged, the RTC did not err in determining and adjudging his civil liability for the same act complained of based on mere
preponderance of evidence.12 In this connection, the Court reminds that the acquittal for insufficiency of the evidence did not
require that the complainants recovery of civil liability should be through the institution of a separate civil action for that
purpose.13

The petitioners contention that he could not be held civilly liable because there was no proof of his negligence deserves scant
consideration. The failure of the Prosecution to prove his criminal negligence with moral certainty did not forbid a finding
against him that there was preponderant evidence of his negligence to hold him civilly liable.14With the RTC and the CA both
finding that Hanz had sustained the injurious trauma from the hands of the petitioner on the occasion of or incidental to the
circumcision, and that the trauma could have been avoided, the Court must concur with their uniform findings. In that regard,
the Court need not analyze and weigh again the evidence considered in the proceedings a quo. The Court, by virtue of its not
being a trier of facts, should now accord the highest respect to the factual findings of the trial court as affirmed by the CA in the
absence of a clear showing by the petitioner that such findings were tainted with arbitrariness, capriciousness or palpable
error.

Every person is entitled to the physical integrity of his body.1wphi1 Although we have long advocated the view that any
physical injury, like the loss or diminution of the use of any part of ones body, is not equatable to a pecuniary loss, and is not
susceptible of exact monetary estimation, civil damages should be assessed once that integrity has been violated. The
assessment is but an imperfect estimation of the true value of ones body. The usual practice is to award moral damages for
the physical injuries sustained.15 In Hanzs case, the undesirable outcome of the circumcision performed by the petitioner
forced the young child to endure several other procedures on his penis in order to repair his damaged urethra. Surely, his
physical and moral sufferings properly warranted the amount of 50,000.00 awarded as moral damages.

Many years have gone by since Hanz suffered the injury. Interest of 6% per annum should then be imposed on the award as a
sincere means of adjusting the value of the award to a level that is not only reasonable but just and commensurate. Unless we
make the adjustment in the permissible manner by prescribing legal interest on the award, his sufferings would be unduly
compounded. For that purpose, the reckoning of interest should be from the filing of the criminal information on April 17, 1997,
the making of the judicial demand for the liability of the petitioner.

WHEREFORE, the Court AFFIRMS the decision promulgated on February 20, 2003, with the modification that legal interest of
6% per annum to start from April 17, 1997 is imposed on the award of:50,000.00 as moral damages; and ORDERS the
petitioner to pay the costs of suit.

SO ORDERED.

G.R. No. 163879 July 30, 2014

DR. ANTONIO P. CABUGAO, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO M. PALMA and ROSARIO F. PALMA, Respondents.
x-----------------------x

G.R. No. 165805

DR. CLENIO YNZON, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES and SPOUSES RODOLFO M. PALMA AND ROSARIO F. PALMA, Respondents.

DECISION

PERALTA, J.:

Before this Court are appeals via Rule 45 from the Decision1 dated June 4, 2004 of the Court of Appeals in CA-G.R. CR No.
27293, affirming the Decision2 dated February 28,2003 of the Regional Trial Court (RTC), convicting appellant Dr. Antonio P.
Cabugao (Dr. Cabugao) and Dr. Clenio Ynzon (Dr. Ynzon) of the crime of Reckless Imprudence Resulting to Homicide.

The Information3 alleged

That on or about June 17, 2000in the City of Dagupan, Philippines, and within the jurisdiction of this Honorable Court, the
abovenamed accused, DR. ANTONIO P.CABUGAO and DR. CLENIO YNZON, being then the attending physicians of one
RODOLFO PALMA, JR., a minor 10 years old, confederating and acting jointly with one another, did, then and there, willfully,
unlawfully and feloniously fail through negligence, carelessness and imprudence to perform immediate operation upon their
patient, RODOLFO PALMA, JR. of acute appendicitis, when they, the said physicians, should have been done so considering
that examinations conducted upon their patient Rodolfo Palma, Jr. seriously manifest todo so, causing by such negligence,
carelessness, and imprudence the victim, RODOLFO PALMA JR., to die due to:

"CARDIORESPIRATORY ARREST, METABOLIC ENCEPHALOPATHY, SEPTICEMIA (ACUTE APPENDICITIS), CEREBRAL

ANEURYSM RUPTURED (?)"

As per Certificate of Death issued by accused Dr. Antonio P. Cabugao, to the damage and prejudice of the legal heirs of said
deceased RODOLFO PALMA, JR. and other consequential damages relative thereto.

CONTRARY to Article 365, 1st par. of the Revised Penal Code.

Dagupan City, Philippines, January 29, 2001.

Arising from the same events, the Court resolved to consolidate these cases.4 The facts, as culled from the records, are as
follows:

On June 14, 2000, at around 4 o'clock in the afternoon, ten (10)-year old Rodolfo F. Palma, Jr. (JR) complained of abdominal
pain to his mother, Rosario Palma. At 5 oclock that sameafternoon, Palma's mother and father, Atty. Rodolfo Palma Sr.,
brought JR to the clinic of accused Dr. Cabugao. Dr. Cabugao, a general practitioner, specializing in familymedicine gave
medicines for the pain and told Palma's parents to call him up if his stomach pains continue. Due to persistent abdominal
pains, at 4:30 in the early morning of June 15, 2000, they returnedto Dr. Cabugao, who advised them to bring JR to the
Nazareth General Hospital in Dagupan City, for confinement. JR was admitted at the said hospital at 5:30 in the morning. 5
Blood samples were taken from JR for laboratory testing. The complete blood count conveyed the following result: wbc 27.80
x 10 9/L; lymphocytes 0.10 and neutrophils 0.90. Diagnostic ultrasound was likewise conducted on the patient's lower
abdomen by radiologist, Dr. Ricky V. Querubin, with the following findings:

Normal liver, bile ducts, gallbladder, pancreas, spleen, kidneys and urinary bladder.

There is no free peritoneal fluid.

There is localized tenderness in the paraumbilical region, more so in the supra and right paraumbilical areas.

There is a vague elongated hypoechoic focus in the right periumbilical region roughly about 47 x 18 mm surrounded by
undistended gas-filled bowels. This is suggestive of an inflammatory process wherein appendiceal or periappendiceal
pathology cannot be excluded. Clinical correlation is essential."6

Dr. Cabugao did a rectal examination noting the following: "rectal: good sphincter, negative tenderness, negative mass." The
initial impression was Acute Appendicitis,7 and hence, he referred the case to his co-accused, Dr. Ynzon, a surgeon.8 In the
later part of the morning of June 15, 2000, Dr. Ynzon went to the hospital and readthe CBC and ultrasound results. The
administration of massive antibiotics and pain reliever to JRwere ordered. Thereafter, JR was placed on observation for
twenty-four (24) hours.

In the morning of June 16, 2000, JR complained again of abdominal pain and his parents noticeda swelling in his scrotum. In
the afternoon of the same day, JR vomitted out greenish stuff three (3) times and had watery bowels also three (3) times. The
nurses on-duty relayed JR's condition to Dr. Ynzon who merely gaveorders via telephone.9Accused continued medications to
alleviate JR's abdominal spasms and diarrhea. By midnight, JR again vomitted twice, had loose bowel movements and was
unable to sleep. The following morning, June 17,2000, JR's condition worsened, he had a running fever of 38C. JR's fever
remained uncontrolled and he became unconscious, he was given Aeknil (1 ampule) and Valium (1 ampule). JR's condition
continued to deteriorate that by 2 o'clock in the afternoon, JR's temperature soared to 42C, had convulsions and finally died.

The Death Certificate10 dated June 19, 2000 prepared by Dr. Cabugao indicated the following causes of death:

Immediate cause: CARDIORESPIRATORY ARREST

Antecedent cause: METABOLIC ENCEPHALOPATHY

Underlying cause: SEPTICEMIA (ACUTE APPENDICITIS)

Other significant conditionscontributing to death:

CEREBRAL ANEURYSM RUPTURED (?)

No post-mortem examination was conducted on JR. On February 1, 2001, an Information was filed against accused for
reckless imprudence resulting to homicide. At their arraignment, both accused, duly assisted by counsel, pleaded not guilty to
the charge.

On February 28, 2003, in convicting both the accused, the trial court found the following circumstances as sufficient basis to
conclude that accused were indeed negligent in the performance of their duties:
It is unquestionable that JR was under the medical care of the accused from the time of his admission for confinement at the
Nazareth General Hospital until his death. Upon his admission, the initial working diagnosis was to consider acute appendicitis.
To assist the accused in the consideration of acute appendicitis, Dr. Cabugao requested for a complete blood count (CBC) and
a diagnostic ultrasound on JR. The findings of the CBC and ultrasound showed that an inflammatory process or infection was
going on inside the body of JR. Said inflammatory process was happening in the periumbilical region where the appendix could
be located. The initial diagnosis of acute appendicitis appears to be a distinct possibility. x x x.

Dr. Ynzon ordered medications to treat the symptoms being manifested by JR. Thereafter, he ordered that JR be observed for
24 hours. However, the accused, as the attending physicians, did not personally monitor JR in order to check on subtle
changes that may occur. Rather, they left the monitoring and actual observation to resident physicians who are just on
residency training and in doing so, they substituted their own expertise, skill and competence with those of physicians who are
merely new doctors still on training. Not having personally observed JR during this 24-hour critical period of observation, the
accused relinquished their duty and thereby were unable to give the proper and correct evaluation as to the real condition of
JR. In situations where massive infection is going on as shown by the aggressive medication of antibiotics, the condition of the
patient is serious which necessitated personal, not delegated, attention of attending physicians, namely JR and the accused in
this case.

xxxx

Throughout the course of the hospitalization and treatment of JR, the accused failed to address the acute appendicitis which
was the initial diagnosis. They did not take steps to find out if indeed acute appendicitis was what was causing the massive
infection that was ongoing inside the body of JR even when the inflammatory process was located at the paraumbilical region
where the appendix can be located. x x x

There may have been other diseases but the records do not show that the accused took steps to find outwhat disease exactly
was plaguing JR. It was their duty to find out the disease causing the health problem of JR, but they did not perform any
process of elimination. Appendicitis, according to expert testimonies, could be eliminated only by surgery but no surgery was
done by the accused. But the accused could not have found out the real disease of JR because they were treating merely and
exclusively the symptoms by means of the different medications to arrest the manifested symptoms. In fact, by treating the
symptoms alone, the accused were recklessly and wantonly ignoring the same as signs of the graver health problem of JR.
This gross negligence on the part of the accused allowed the infection to spread inside the body of JR unabated. The infection
obviously spread so fastand was so massive that within a period of only two and a half (2 ) days from the day of admission to
the hospital on June 15, 2000, JR who was otherwise healthy died [of] Septicemia (Acute Appendicitis) on June 17, 2000. 11

On June 4, 2004, in affirming the accused' conviction, the Court of Appeals gave similar observations, to wit:

The foregoing expert testimony clearly revealed such want of reasonable skill and care on the part of JR's attending
physicians, appellants Dr. Cabugao and Dr. Ynzon in neglecting to monitor effectively and sufficiently the
developments/changes during the observation period and act upon the situation after said 24-hour period when his abdominal
pain subsisted, his condition even worsened with the appearance of more serious symptoms of nausea, vomiting and diarrhea.
Considering the brief visit only made on regular rounds, the records clearly show such gross negligence in failing to take
appropriate steps to determine the real cause of JR's abdominal pain so that the crucial decision to perform surgery
(appendectomy) had even been ruled out precisely because of the inexcusable neglect to undertake suchefficient diagnosis by
process of elimination, as correctly pointed out by the trial court. As has been succinctly emphasized by Dr. Mateo, acute
appendicitis was the working diagnosis, and with the emergence of symptoms after the 24-hour observation (high fever,
vomiting, diarrhea) still, appellants ruled out surgery, not even considering exploratory laparoscopy. Dr. Mateo also expressed
the opinion that the decision to operate could have been made after the result of the ultrasound test, considering that acute
appendicitis was the initial diagnosis by Dr. Cabugao after he had conducted a rectal examination.

Medical records buttress the trial court's finding that in treating JR, appellants have demonstrated indifference and neglect of
the patient's condition as a serious case. Indeed, appendicitis remains a clinical emergencyand a surgical disease, as correctly
underscored by Dr. Mateo, a practicing surgeon who has already performed over a thousand appendectomy. In fact,
appendectomy is the only rational therapy for acute appendicitis; it avoids clinical deterioration and may avoid chronic or
recurrent appendicitis. Although difficult, prompt recognition and immediate treatment of the disease prevent complications.
Under the factual circumstances, the inaction, neglect and indifference of appellants who, after the day of admission and after
being apprised of the ongoing infection from the CBC and initial diagnosis as acute appendicitis from rectal examination and
ultrasound testand only briefly visited JR once during regular rounds and gave medication orders by telephone constitutes
gross negligenceleading to the continued deterioration of the patient, his infection having spread in sofast a pace that he died
within just two and a half (2 ) days stay inthe hospital. Authorities state that if the clinical picture is unclear a short period of 4
to 6 hours of watchful waiting and a CT scan may improve diagnostic accuracy and help to hasten diagnosis.Even assuming
that JR's case had an atypical presentation in view of the location of his appendix, laboratory tests could have helped to
confirm diagnosis, as Dr. Mateo opined thatthe possibility of JR having a retrocecal appendicitis should have been a strong
consideration. Lamentably, however, as found by the trial court, appellants had not taken steps towards correct diagnosis and
demonstrated laxity even when JR was already running a high fever in the morning of June 17, 2000 and continued vomiting
with diarrhea, his abdominal pain becoming more intense. This is the reason why private complainants were not even apprised
of the progress of appellants' diagnosis appellants have nothing to report because they did nothing towards the end and
merely gave medications to address the symptoms.12

Thus, these appeals brought beforethis Court raising the following arguments:

WHETHER THE CAUSE OF ACCUSATION AS CONTAINED IN THE INFORMATION IS "FAILURE TO PERFORM

IMMEDIATE OPERATION UPON THE PATIENT ROFOLFO PALMA JR. OF ACUTE APPENDICITIS;

II

WHETHER THE SUBJECT INFORMATION APPEARS TO HAVE ACCUSED BOTH ACCUSED DOCTORS OF
CONSPIRACY AND THE APPEALED DECISION SEEMS TO HAVE TREATED BOTH ACCUSED DOCTORS TO BE IN
CONSPIRACY;

III

WHETHER PETITIONER DR. CABUGAO IS A GENERAL PRACTITIONER (NOT A SURGEON) AND HAVE EXCLUDED
SURGERY FROM THE LIMITS OFHIS PRACTICE, AND IT WAS NOT AND NEVER HIS DUTY TO OPERATE THE PATIENT
RODOLFO PALMA JR., THAT WAS WHY HE REFERRED SUBJECT PATIENT TO A SURGEON, DR. CLENIO YNZON;

IV

WHETHER THE DEFENSE NEVER STATED THAT THERE IS GUARANTEE THAT DOING SURGERY WOULD HAVE
SAVED THE PATIENT;
V

WHETHER THE WITNESSES FOR THE PROSECUTION INCLUDING PROSECUTION'S EXPERT WITNESSES EVER
DECLARED/TESTIFIED THAT PETITIONER DR. CABUGAO HAD THE DUTY TO PERFORM IMMEDIATE OPERATION ON
RODOLFO PALMA, JR., AND THEY FAILED TO STATE/SHOW THAT THE PROXIMATE CAUSE OF DEATH OF JR WAS
ACUTE APPENDICITIS;

VI

WHETHER THE EXPERT WITNESSES PRESENTED BY THE PROSECUTION EVER QUESTIONED THE MANAGEMENT
AND CARE APPLIED BY PETITIONER DR. CABUGAO;

VII

WHETHER THE EXPERT WITNESSES PRESENTED BY THE DEFENSE ARE UNANIMOUS IN APPROVING THE METHOD
OF TREATMENT APPLIED BY BOTH ACCUSED DOCTORS ON SUBJECT PATIENT, AND THEY DECLARED/AFFIRMED
THAT THEY WOULD FIRST PLACE SUBJECT THE PATIENT UNDER OBSERVATION, AND WOULD NOT PERFORM
IMMEDIATE OPERATION;

VIII

WHETHER THE CONVICTION OF PETITIONER DR. YNZON WAS ESTABLISHED WITH THE REQUIRED QUANTUM OF
PROOF BEYOND REASONABLE DOUBT THAT THE PATIENT WAS SPECIFICALLY SUFFERING FROM AND DIED OF
ACUTE APPENDICITIS; and

IX

WHETHER THE FAILURE TO CONDUCT THE SPECIFIC SURGICAL OPERATION KNOWN AS APPENDECTOMY
CONSTITUTED CRIMINAL NEGLIGENCE.

In a nutshell, the petition brought before this Court raises the issue of whether or not petitioners' conviction of the crime of
reckless imprudence resulting in homicide, arising from analleged medical malpractice, is supported by the evidence on record.

Worth noting is that the assigned errors are actually factual in nature, which as a general rule, findings of factof the trial court
and the Court of Appeals are binding and conclusiveupon this Court, and we will not normally disturb such factual findings
unless the findings of the court are palpably unsupported by the evidence on record or unless the judgment itself is based on
misapprehension of facts. Inthe instant case, we find the need to make certain exception.

AS TO DR. YNZON'S LIABILITY:

Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which material damage results
by reason of an inexcusable lack of precautionon the part of the person performing or failing to perform such act.13 The
elements of reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that
act is voluntary; (3) that it bewithout malice; (4) that material damage results from the reckless imprudence; and (5) that there
is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of
intelligence, physical condition, and other circumstances regarding persons, time and place.14
With respect to Dr. Ynzon, all the requisites of the offense have been clearly established by the evidence on record. The court
a quoand the appellate court were one in concluding that Dr. Ynzon failed to observe the required standard of care expected
from doctors.

In the instant case, it was sufficiently established that to prevent certain death, it was necessary to perform surgery on JR
immediately. Even the prosecutions own expert witness, Dr. Antonio Mateo, 15 testified during cross-examination that he would
perform surgery on JR:

ATTY. CASTRO:

Q. Given these data soft non-tender abdomen, ambulatory, watery diarrhea, Exhibit C which is the ultrasound result, with that
laboratory would you operate the patient?

A Yes, I would do surgery.

Q And you should have done surgery with this particular case?"

A Yes, sir.16

xxxx

COURT:

Q You stated a while ago doctor thatyou are going to [do] surgery to the patient, why doctor, if you are notgoing to do surgery,
what will happen?

A If this would be appendicitis, the usual progress would be that it would be ruptured and generalized peritonitis and eventually
septicemia, sir.

Q What do you mean by that doctor?

A That means that infection would spread throughout the body, sir.

Q If unchecked doctor, what will happen?

A It will result to death.17

xxxx

Q And what would have you doneif you entertain other considerations from the time the patient was admitted?

A From the time the patient was admitted until the report of the sonologist, I would have made a decision by then.

Q And when to decide the surgery would it be a particular exact time, would it be the same for all surgeons?

A If you are asking acute appendicitis, it would be about 24 hours because acute appendicitis is a 24-hour disease, sir.
Q. And would it be correct to say that it depends on the changes on the condition of the patient?

A. Yes, sir.

Q. So, are you saying more than 24 hours when there are changes?

A. If there are changes in the patient pointing towards appendicitis then you have to decide right there and then, sir.

Q. So if there are changes in the patient pointing to appendicitis?

A. It depends now on what you are trying to wait for in the observation period, sir.

Q. So precisely if the change is a condition which bring you in doubt that there is something else other than appendicitis, would
you extend over a period of 24 hours?

A. It depends on the emergent development, sir.

Q. That is the point, if you are the attending physician and there is a change not pointing to appendicitis, would you extend
over a period of 24 hours?

A. In 24 hours you have to decide, sir.

xxxx

Q. And that is based on the assessment of the attending physician?

A. Yes, sir.18

Dr. Mateo further testified on cross-examination:

ATTY. CASTRO:

Q: So you will know yourself, as far as the record is concerned, because if you will agree with me, you did not even touch the
patient?

A. Yes, I based my opinion on what is put on record, sir. The records show that after the observation period, the abdominal
pain is still there plus there are already other signs and symptoms which are not seen or noted.

Q. But insofar as you yourself not having touched the abdomen of the patient, would you give a comment on that?

A. Yes, based on the record, after 24 hours of observation, the pain apparently was still there and there was more vomiting and
there was diarrhea. In my personal opinion, I think the condition of the patient was deteriorating.

Q. Even though you have not touched the patient?

A. I based on what was on the record, sir.19

From the foregoing, it is clear that if JRs condition remained unchecked it would ultimately result in his death, as what actually
happened in the present case. Another expert witness for the defense, Dr. Vivencio Villaflor, Jr. testified on direct examination
that he would perform a personal and thorough physical examination of the patient as frequent as every 4 to 6 hours, to wit:

ATTY. CASTRO:

Q. As an expert doctor, if you were faced with a history of abdominal pain with nausea, vomiting, fever, anurecia (sic), elevated
white blood cell count, physical examination of a positive psoas sign, observation of the sonologist of abdominal tenderness
and the ultrasound findings of the probability of appendiceal (sic) pathology, what will you do if you have faced these problems,
Doctor?

A. I will examine the patient thoroughly and it will depend on my physical examination and that isprobably every 4 to 6 hours,
sir.20

On cross-examination, Dr. Villaflor affirmed:

Cross Exam. By Atty. Marteja:

Q. x x x However, there are corrections and admissions made at that time, your Honor, do I understand thatT/C does not mean
ruled out but rather to consider the matter?

A. Yes, now that I have seen the records of the patient, it says here, impression and T/C means to consider the appendicitis.

Q. Isn't it that it is worth then to say that the initial working diagnosis on Rodolfo Palma, Jr., otherwise known as JR, to whom I
shall now refer to as JR, the primary consideration then is acute appendicitis, is that correct to say Doctor?

A. I think so, that is the impression.

Q. x x x Now if it is to be considered as the primary consideration in the initial working diagnosis, isn't it a fact that it has tobe
ruled out in order to consider it as not the disease of JR?

A. Yes. Sir.

Q. Isn't it a fact thatto rule out acute appendicitis as not the disease of JR, surgery or operation must be done, isn't it Doctor?

A. You have to correlate all the findings.

Q. Is it yes or no, Doctor?

A. Yes.

Q. So, you are saying then that in order to rule out acute appendicitis there must be an operation, that is right Doctor?

A. No, sir. If your diagnosis is toreally determine if it is an acute appendicitis, you have to operate. 21

xxxx
Q. Now Doctor, considering the infection, considering that there was a [symptom] that causes pain, considering that JR
likewise was feverish and that he was vomiting, does that not show a disease of acute appendicitis Doctor?

A. Its possible.

Q. So that if that is possible, are we getting the impression then Doctor what you have earlier mentioned that the only way to
rule out the suspect which is acute appendicitis is by surgery, you have said that earlier Doctor, I just want any confirmation of
it?

A. Yes, sir.22

Verily, whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in
the generality of cases, a matter of expert opinion. The deference of courts to the expert opinions of qualified physicians stems
from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently
evaluating.23 From the testimonies of the expert witnesses presented, it was irrefutably proven that Dr. Ynzon failed to practice
that degree of skill and care required in the treatment of his patient.

As correctly observed by the appellate court, Dr. Ynzon revealed want of reasonable skill and care in attending to the needs of
JR by neglecting to monitor effectively the developmentsand changes on JR's condition during the observation period, and to
act upon the situation after the 24-hour period when his abdominal pain persisted and his condition worsened. Lamentable, Dr.
Ynzon appeared to have visited JRbriefly only during regular rounds in the mornings. He was not there during the crucial times
on June 16, 2000 when JR's condition started to deteriorate until JR's death. As the attending surgeon, he should be primarily
responsible in monitoring the condition of JR, as he is in the best position considering his skills and experience to know if the
patient's condition had deteriorated. While the resident-doctors-onduty could likewise monitor the patientscondition, he is the
one directly responsible for the patient as the attending surgeon. Indeed, it is reckless and gross negligence of duty to relegate
his personal responsibility to observe the condition of the patient. Again, acute appendicitis was the working diagnosis, and
with the emergence of graver symptoms after the 24-hour observation, Dr. Ynzon ruled out surgery for no apparent reason.
We, likewise, note that the records are devoid of showing of any reasonable cause which would lead Dr. Ynzon tooverrule
appendectomy despite the initial diagnosis of appendicitis. Neitherwas there any showing that he was entertaining another
diagnosis nor he took appropriate steps towards another diagnosis.

Among the elements constitutive of reckless imprudence, what perhaps is most central to a finding of guilt is the conclusive
determination that the accused has exhibited, by his voluntary act without malice, an inexcusable lack of precaution. It is that
which supplies the criminal intent so indispensable as tobring an act of mere negligence and imprudence under the operation
of the penal law. This is because a conscious indifference to the consequences of the conduct is all that is required from the
standpoint of the frame of mind of the accused.24 Quasioffenses penalize the mental attitudeor condition behind the act, the
dangerous recklessness, the lack of care or foresight, the "imprudencia punible," unlike willful offenses which punish the
intentional criminal act.25 This is precisely where this Court found Dr. Ynzon to be guilty of - his seemingly indifference to the
deteriorating condition of JR that he as a consequence, failed to exercise lack of precaution which eventually led to JR's death.

To be sure, whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to
be determined according to the standard of care observed by other members of the profession in good standing under similar
circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical
science. In accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians
and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He,
therefore, has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a
condition under the same circumstances.26 Sadly, Dr. Ynzon did not display that degree of care and precaution demanded by
the circumstances.

AS TO DR. CABUGAO'S LIABILITY:

Every criminal conviction requires of the prosecution to prove two things the fact of the crime, i.e., the presence of all the
elements of the crime for which the accused stands charged, and the fact that the accused is the perpetrator of the crime.
Based on the above disquisitions, however, the prosecution failed to prove these two things. The Court is not convinced with
moral certainty that Dr. Cabugao isguilty of reckless imprudence as the elements thereof were not proven by the prosecution
beyond a reasonable doubt.

Both the trial court and the appellate court bewail the failure to perform appendectomy on JR, or the failure to determine the
source of infection which caused the deterioration of JR's condition. However, a review of the records fail to show that Dr.
Cabugao is in any position to perform the required appendectomy.

Immediately apparent from a review of the records of this case is the fact that Dr. Cabugao is not a surgeon,but a general
practitioner specializing in family medicine;27 thus, even if he wanted to, he cannot do an operation, much less an
appendectomy on JR. It is precisely for this reason why he referred JR to Dr. Ynzon after he suspected appendicitis. Dr.
Mateo, the prosecutions expert witness, emphasized the role of the surgeon during direct examination, to wit:

ATTY. MARTEJA:

Q. You had mentioned that under this circumstances and condition, you have mentioned that surgery is the solution, would you
have allowed then a 24 hour observation?

A. If there is a lingering doubt, inshort period of observation of 18-24 hours can be allowed provided that there would be close
monitoring of the patient, sir.

Q. Would you please tell us who would be doing the monitoring doctor?

A. The best person should be the first examiner, the best surgeon, sir.

Q. So that would you say that it is incumbent on the surgeon attending to the case to have been the one to observe within the
period of observation?

A. Yes, because he will be in the best position to observe the sudden changes in the condition of the patient, sir.

Q. And how often would in your experience doctor, how often would the surgeon re-assist (sic) the condition of the patient
during the period of observation?

A. Most foreign authors would recommend every four (4) hours, some centers will recommend hourly or every two hours but
here in the Philippines, would recommend for 4 to 6 hours, sir. 28

Dr. Cabugaos supervision does not cease upon his endorsement of his patient to the surgeon. Here, Dr. Cabugao has shown
to have exerted all efforts to monitor his patient and under these circumstances he did not have any cause to doubt Dr.
Ynzons competence and diligence. Expert testimonies have been offered to prove the circumstances surrounding the case of
JR and the need to perform an operation. Defense witness, Dr. Villaflor, on cross examination testified, to wit:

Q. Isn't it a fact that torule out acute appendicitis as notthe disease of JR, surgery or operation mustbe done, isn't it Doctor?

A. You have to [correlate] all the findings.

Q. Is it yes or no, Doctor?

A. Yes.

Q. So, you are saying then that in order to rule out acute appendicitis there must be an operation, that is right Doctor?

A. No, sir. If your diagnosis is to really determine if it is an acute appendicitis, you have to operate. 29

xxxx

Q. Now Doctor, considering the infection, considering that there was a [symptom] that causes pain, considering that JR
likewise was feverish and that he was vomitting, does that not show a disease of acute appendicitis Doctor?

A. Its possible.

Q. So that if that is possible, are we getting the impression then Doctor what you have earlier mentioned that the only way to
rule out the suspect which is acute appendicitis is by surgery, you have said that earlier Doctor, I just want any confirmation of
it?

A. Yes, sir.30

Neither do we find evidence that Dr. Cabugao has been negligent or lacked the necessary precaution in his performance of his
duty as a family doctor. On the contrary, a perusal ofthe medical records would show that during the 24-hour monitoring on JR,
it was Dr. Cabugao who frequently made orders on the administration of antibiotics and pain relievers. There was also
repetitive instructions from Dr. Cabugao to refer JR to Dr. Ynzon as it appeared that he is suspecting appendicitis. The referral
of JR to Dr. Ynzon, a surgeon, is actually an exercise of precaution as he knew that appendicitis is not within his scope of
expertise. This clearly showed that he employed the best of his knowledge and skill in attending to JR's condition, even after
the referral of JR to Dr. Ynzon. To be sure, the calculated assessment of Dr. Cabugao to refer JRto a surgeon who has
sufficient training and experience to handle JRs case belies the finding that he displayed inexcusable lack of precaution in
handling his patient.31

We likewise note that Dr. Cabugao was out of town when JR's condition began to deteriorate. Even so, before he left, he made
endorsement and notified the resident-doctor and nurses-on-duty that he will be on leave.

Moreover, while both appeared to be the attending physicians of JR during his hospital confinement, it cannot be said that the
finding of guilt on Dr. Ynzon necessitates the same finding on the co-accused Dr. Cabugao. Conspiracy is inconsistent with the
idea of a felony committed by means of culpa.32 Thus, the accused-doctors to be found guilty of reckless imprudence resulting
in homicide, it must be shown that both accused-doctors demonstratedan act executed without malice or criminal intent but
with lack of foresight, carelessness, or negligence. Noteworthy, the evidence on record clearly points to the reckless
imprudence of Dr. Ynzon; however, the same cannot be said in Dr. Cabugao's case.

AS TO CIVIL LIABILITY

While this case is pending appeal, counsel for petitioner Dr. Ynzon informed the Court that the latter died on December 23,
2011 due to "multiorgan failure" as evidenced by a copy of death certificate.33 Thus, the effect of death, pending appeal of his
conviction of petitioner Dr. Ynzon with regard to his criminal and pecuniary liabilities should be in accordance to People v.
Bayotas,34 wherein the Court laid down the rules in case the accused dies prior to final judgment:

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability
based solely thereon. As opined by Justice Regalado, in this regard, "the death of the accused prior to final judgment
terminates his criminal liability and only the civil liability directly arising from and based solely on the offense
committed, i.e.,civil liability ex delictoin senso strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be
predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other sources of
obligation fromwhich the civil liability may arise as a result of the same act or omission:

a) Law

b) Contracts

c) Quasi-contracts

d) x x x x x x x x x

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be pursued
but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985 Rules on Criminal
Procedure as amended. This separate civil action may be enforced either againstthe executor/administrator or the
estate of the accused, depending on the source of obligation upon which the same is based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by
prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the private-
offended party instituted together therewith the civil action. In such case, the statute of limitationson the civil liability is
deemed interrupted during the pendency of the criminal case, conformably with provisions of Article 1155 of the Civil
Code, that should thereby avoid any apprehension on a possible privation of right by prescription. 35

In view of the foregoing, it is clear that the death of the accused Dr. Ynzon pending appeal of his conviction extinguishes his
criminal liability. However, the recovery of civil liability subsists as the same is not based on delictbut by contract and the
reckless imprudence he was guilty of under Article 365 of the Revised Penal Code.1wphi1For this reason, a separate civil
action may be enforced either against the executor/administrator or the estate of the accused, depending on the source of
obligation upon which the same is based,36 and in accordance with Section 4, Rule 111 of the Rules on Criminal Procedure,
we quote:
Sec. 4. Effect of death on civil actions. The death of the accused after arraignment and during the pendency of the criminal
action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted under section 3 of
this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against
the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. The heirs
of the accused may besubstituted for the deceased without requiring the appointment of an executor or administrator and the
court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty
(30) days from notice.

A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these rules for
prosecuting claims against the estate of the deceased.

If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may
file against the estate of the deceased. (Emphases ours)

In sum, upon the extinction of the criminal liability and the offended party desires to recover damages from the same act or
omission complained of, the party may file a separate civil action based on the other sources of obligation in accordance with
Section 4, Rule 111.37 If the same act or omission complained of arises from quasi-delict,as in this case, a separate civil action
must be filed against the executor or administrator of the estate of the accused, pursuant to Section 1, Rule 87 of the Rules of
Court:38

Section 1. Actions which may and which may not be brought against executor or administrator. No action upon a claim for
the recovery of money or debtor interest thereon shall be commenced against the executor or administrator; but to recover real
or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an
injury to person or property, real or personal, may be commenced against him. (Emphases ours)

Conversely, if the offended party desires to recover damages from the same act or omission complained of arising from
contract, the filing of a separate civil action must be filed against the estate, pursuant to Section 5, Rule 86 of the Rules of
Court, to wit:

Section 5. Claims which must be filed under the notice. If not filed, barred; exceptions. All claims for money against the
decent, arising from contract, express or implied, whether the same be due, not due, or contingent, all claims for funeral
expenses and expense for the last sickness of the decedent, and judgment for money against the decent, must be filed within
the time limited in the notice; otherwise they are barred forever, except that they may be set forth as counterclaims in any
action that the executor or administrator may bring against the claimants. Where an executor or administrator commencesan
action, or prosecutes an action already commenced by the deceased in his lifetime, the debtor may set forth by answer the
claims he has against the decedent, instead of presenting them independently to the court as herein provided, and mutual
claims may be set off against each other in such action; and if final judgment is rendered in favor of the defendant, the amount
so determined shall be considered the true balance against the estate, as though the claim had been presented directly
beforethe court in the administration proceedings. Claims not yet due, or contingent, may be approved at their present value.

As a final note, we reiterate thatthe policy against double recovery requires that only one action be maintained for the same act
or omission whether the action is brought against the executor or administrator, or the estate. 39 The heirs of JR must choose
which of the available causes of action for damages they will bring.
WHEREFORE, premises considered, petitioner DR. ANTONIO P. CABUGAO is hereby ACQUITTEDof the crime of reckless
imprudence resulting to homicide.

Due to the death of accused Dr. Clenio Ynzon prior to the disposition of this case, his criminal liability is extinguished; however,
his civil liability subsists. A separate civil action may be filed either against the executor/administrator, or the estateof Dr.
Ynzon, depending on the source of obligation upon which the same are based.

SO ORDERED.

G.R. No. 171127 March 11, 2015

NOEL CASUMPANG, RUBY SANGA-MIRANDA and SAN JUAN DEDIOS HOSPITAL, Petitioners,
vs.
NELSON CORTEJO, Respondent.

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

G.R. No. 171217

DRA. RUBY SANGA-MIRANDA, Petitioner,

vs.
NELSON CORTEJO, Respondent.

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

G.R. No. 171228

SAN JUAN DEDIOS HOSPITAL, Petitioner,

vs.
NELSON CORTEJO, Respondent.

DECISION

BRION, J.:

We resolve the three (3) consolidated petitions for review on Certiorari1 involving medical negligence, commonly assailing the
October 29, 2004 decision2 and the January 12, 2006 resolution3 of the Court of Appeals (CA) in CA-G.R. CV No. 56400. This
CA decision affirmed en totothe ruling of the Regional Trial Court (RTC), Branch 134, Makati City.

The RTC awarded Nelson Cortejo (respondent) damages in the total amount of 595,000.00, for the wrongful death of his son
allegedly due to the medical negligence of the petitioning doctors and the hospital.

Factual Antecedents

The common factual antecedents are briefly summarized below.

On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo brought her 11-year old son, Edmer Cortejo (Edmer), to
the Emergency Room of the San Juan de Dios Hospital (SJDH) because of difficulty in breathing, chest pain, stomach pain,
and fever.4

Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined Edmer. In her testimony, Mrs. Cortejo narrated that in the
morning of April 20, 1988, Edmer had developed a slight fever that lasted for one day; a few hours upon discovery, she
brought Edmer to their family doctor; and two hours after administering medications, Edmers fever had subsided.5

After taking Edmers medical history, Dr. Livelo took his vital signs, body temperature, and blood pressure.6 Based on these
initial examinations and the chest x-ray test that followed, Dr. Livelo diagnosed Edmer with "bronchopneumonia. 7 " Edmers
blood was also taken for testing, typing, and for purposes of administering antibiotics. Afterwards, Dr. Livelo gave Edmer an
antibiotic medication to lessen his fever and to loosen his phlegm.

Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care card and was referred to an accredited Fortune
Care coordinator, who was then out of town. She was thereafter assigned to Dr. Noel Casumpang (Dr. Casumpang), a
pediatrician also accredited with Fortune Care.8

At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time examined Edmer in his room. Using only a
stethoscope, he confirmed the initial diagnosis of "Bronchopneumonia."9

At that moment, Mrs. Cortejo recalled entertaining doubts on the doctors diagnosis. She immediately advised Dr. Casumpang
that Edmer had a high fever, and had no colds or cough10 but Dr. Casumpang merely told her that her sons "blood pressure is
just being active,"11 and remarked that "thats the usual bronchopneumonia, no colds, no phlegm." 12 Dr. Casumpang next
visited and examined Edmer at 9:00 in the morning the following day.13 Still suspicious about his sons illness, Mrs. Cortejo
again called Dr. Casumpangs attention and stated that Edmer had a fever, throat irritation, as well as chest and stomach pain.
Mrs. Cortejo also alerted Dr. Casumpang about the traces of blood in Edmers sputum. Despite these pieces of information,
however, Dr. Casumpang simply nodded, inquired if Edmer has an asthma, and reassured Mrs. Cortejo that Edmers illness is
bronchopneumonia.14

At around 11:30 in the morning of April 23, 1988, Edmer vomited "phlegm with blood streak" 15 prompting the respondent
(Edmers father) to request for a doctor at the nurses station.16 Forty-five minutes later, Dr. Ruby Miranda-Sanga (Dr. Sanga),
one of the resident physicians of SJDH, arrived. She claimed that although aware that Edmer had vomited "phlegm with blood
streak," she failed to examine the blood specimen because the respondent washed it away. She then advised the respondent
to preserve the specimen for examination.

Thereafter, Dr. Sanga conducted a physical check-up covering Edmers head, eyes, nose, throat, lungs, skin and abdomen;
and found that Edmer had a low-grade non-continuing fever, and rashes that were not typical of dengue fever.17 Her medical
findings state:

the patients rapid breathing and then the lung showed sibilant and the patients nose is flaring which is a sign that the patient
is in respiratory distress; the abdomen has negative finding; the patient has low grade fever and not continuing; and the rashes
in the patients skin were not

"Hermans Rash" and not typical of dengue fever.18

At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing Dr. Sanga, the respondent showed her Edmers blood
specimen, and reported that Edmer had complained of severe stomach pain and difficulty in moving his right leg. 19

Dr. Sanga then examined Edmers "sputum with blood" and noted that he was bleeding. Suspecting that he could be afflicted
with dengue, she inserted a plastic tube in his nose, drained the liquid from his stomach with ice cold normal saline solution,
and gave an instruction not to pull out the tube, or give the patient any oral medication.

Dr. Sanga thereafter conducted a tourniquet test, which turned out to be negative. 20 She likewise ordered the monitoring of the
patients blood pressure and some blood tests. Edmers blood pressure was later found to be normal. 21

At 4:40 in the afternoon, Dr. Sanga called up Dr. Casumpang at his clinic and told him about Edmers condition. 22Upon being
informed, Dr. Casumpang ordered several procedures done including: hematocrit, hemoglobin, blood typing, blood transfusion
and tourniquet tests.

The blood test results came at about 6:00 in the evening.

Dr. Sanga advised Edmers parents that the blood test results showed that Edmer was suffering from "Dengue Hemorrhagic
Fever." One hour later, Dr. Casumpang arrived at Edmers room and he recommended his transfer to the Intensive Care Unit
(ICU), to which the respondent consented. Since the ICU was then full, Dr. Casumpang suggested to the respondent that they
hire a private nurse. The respondent, however, insisted on transferring his son to Makati Medical Center.

After the respondent had signed the waiver, Dr. Casumpang, for the last time, checked Edmers condition, found that his blood
pressure was stable, and noted that he was "comfortable." The respondent requested for an ambulance but he was informed
that the driver was nowhere to be found. This prompted him to hire a private ambulance that cost him 600.00.23

At 12:00 midnight, Edmer, accompanied by his parents and by Dr. Casumpang, was transferred to Makati Medical Center.

Dr. Casumpang immediately gave the attending physician the patients clinical history and laboratory exam results. Upon
examination, the attending physician diagnosed "Dengue Fever Stage IV" that was already in its irreversible stage.

Edmer died at 4:00 in the morning of April 24, 1988.24 His Death Certificate indicated the cause of death as "Hypovolemic
Shock/hemorrhagic shock;" "Dengue Hemorrhagic Fever Stage IV."

Believing that Edmers death was caused by the negligent and erroneous diagnosis of his doctors, the respondent instituted an
action for damages against SJDH, and its attending physicians: Dr. Casumpang and Dr. Sanga (collectively referred to as the
"petitioners") before the RTC of Makati City.

The Ruling of the Regional Trial Court

In a decision25 dated May 30, 1997, the RTC ruled in favor of the respondent, and awarded actual and moral damages, plus
attorney's fees and costs.

In ruling that the petitioning doctors were negligent, the RTC found untenable the petitioning doctors contention that Edmers
initial symptoms did not indicate dengue fever. It faulted them for heavily relying on the chest x-ray result and for not
considering the other manifestations that Edmers parents had relayed. It held that in diagnosing and treating an illness, the
physicians conduct should be judged not only by what he/she saw and knew, but also by what he/she could have reasonably
seen and known. It also observed that based on Edmers signs and symptoms, his medical history and physical examination,
and also the information that the petitioning doctors gathered from his family members, dengue fever was a reasonably
foreseeable illness; yet, the petitioning doctors failed to take a second look, much less, consider these indicators of dengue.

The trial court also found that aside from their self-serving testimonies, the petitioning doctors did not present other evidence to
prove that they exercised the proper medical attention in diagnosing and treating the patient, leading it to conclude that they
were guilty of negligence. The RTC also held SJDH solidarily liable with the petitioning doctors for damages based on the
following findings of facts: first, Dr. Casumpang, as consultant, is an ostensible agent of SJDH because before the hospital
engaged his medical services, it scrutinized and determined his fitness, qualifications, and competence as a medical
practitioner; and second, Dr. Sanga, as resident physician, is an employee of SJDH because like Dr. Casumpang, the hospital,
through its screening committee, scrutinized and determined her qualifications, fitness,and competence before engaging her
services; the hospital also exercised control over her work.

The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, ordering the latter to pay
solidarily and severally plaintiff the following:

(1) Moral damages in the amount of 500,000.00;

(2) Costs of burial and funeral in the amount of 45,000.00;

(3) Attorneys fees of 50,000.00; and

(4) Cost of this suit.

SO ORDERED.

The petitioners appealed the decision to the CA.

The Ruling of the Court of Appeals

In its decision dated October 29, 2004, the CA affirmed en toto the RTCs ruling, finding that SJDH and its attending physicians
failed to exercise the minimum medical care, attention, and treatment expected of an ordinary doctor under like circumstances.

The CA found the petitioning doctors failure to read even the most basic signs of "dengue fever" expected of an ordinary
doctor as medical negligence. The CA also considered the petitioning doctors testimonies as self-serving, noting that they
presented no other evidence to prove that they exercised due diligence in diagnosing Edmers illness.

The CA likewise found Dr. Rodolfo Jaudians (Dr. Jaudian) testimony admissible. It gave credence to his opinion 26that: (1)
given the exhibited symptoms of the patient, dengue fever should definitely be considered, and bronchopneumonia could be
reasonably ruled out; and (2) dengue fever could have been detected earlier than 7:30 in the evening of April 23, 1988
because the symptoms were already evident; and agreed with the RTC that the petitioning doctors should not have solely
relied on the chest-x-ray result, as it was not conclusive.
On SJDHs solidary liability, the CA ruled that the hospitals liability is based on Article 2180 of the Civil Code. The CA opined
that the control which the hospital exercises over its consultants, the hospitals power to hire and terminate their services, all
fulfill the employer-employee relationship requirement under Article 2180.

Lastly, the CA held that SJDH failed to adduce evidence showing that it exercised the diligence of a good father of a family in
the hiring and the supervision of its physicians.

The petitioners separately moved to reconsider the CA decision, but the CA denied their motion in its resolution of January 12,
2006; hence, the present consolidated petitions pursuant to Rule 45 of the Rules of Court.

The Petitions

I. Dr. Casumpangs Position (G.R. No. 171127)

Dr. Casumpang contends that he gave his patient medical treatment and care to the best of his abilities, and within the proper
standard of care required from physicians under similar circumstances. He claims that his initial diagnosis of
bronchopneumonia was supported by the chest x-ray result.

Dr. Casumpang also contends that dengue fever occurs only after several days of confinement. He alleged that when he had
suspected that Edmer might be suffering from dengue fever, he immediately attended and treated him.

Dr. Casumpang likewise raised serious doubts on Dr. Jaudians credibility, arguing that the CA erred in appreciating his
testimony as an expert witness since he lacked the necessary training, skills, and experience as a specialist in dengue fever
cases.

II. Dr. Sangas Position (G.R. No. 171217)

In her petition, Dr. Sanga faults the CA for holding her responsible for Edmers wrong diagnosis, stressing that the function of
making the diagnosis and undertaking the medical treatment devolved upon Dr. Casumpang, the doctor assigned to Edmer,
and who confirmed "bronchopneumonia."

Dr. Sanga also alleged that she exercised prudence in performing her duties as a physician, underscoring that it was her
professional intervention that led to the correct diagnosis of "Dengue Hemorrhagic Fever." Furthermore, Edmers Complete
Blood Count (CBC) showed leukopenia and an increase in balance as shown by the differential count, demonstrating that
Edmers infection, more or less, is of bacterial and not viral in nature.

Dr. Sanga as well argued that there is no causal relation between the alleged erroneous diagnosis and medication for
"Bronchopneumonia," and Edmers death due to "Dengue Hemorrhagic Fever."

Lastly, she claimed that Dr. Jaudianis not a qualified expert witness since he never presented any evidence of formal residency
training and fellowship status in Pediatrics.

III. SJDHs Position (G.R. No. 171228)

SJDH, on the other hand, disclaims liability by asserting that Dr. Casumpang and Dr. Sanga are mere independent contractors
and "consultants" (not employees) of the hospital. SJDH alleges that since it did not exercise control or supervision over the
consultants exercise of medical profession, there is no employer-employee relationship between them, and consequently,
Article 2180 of the Civil Code does not apply.

SJDH likewise anchored the absence of employer-employee relationship on the following circumstances: (1) SJDH does not
hire consultants; it only grants them privileges to admit patients in the hospital through accreditation; (2) SJDH does not pay
the consultants wages similar to an ordinary employee; (3) the consultants earn their own professional fees directly from their
patients; SJDH does not fire or terminate their services; and (4) SJDH does not control or interfere with the manner and the
means the consultants use in the treatment of their patients. It merely provides them with adequate space in exchange for
rental payment.

Furthermore, SJDH claims that the CA erroneously applied the control test when it treated the hospitals practice of accrediting
consultants as an exercise of control. It explained that the control contemplated by law is that which the employer exercises
over the: (i) end result; and the (ii) manner and means to be used to reach this end, and not any kind of control, however
significant, in accrediting the consultants.

SJDH moreover contends that even if the petitioning doctors are considered employees and not merely consultants of the
hospital, SJDH cannot still be held solidarily liable under Article 2180 of the Civil Code because it observed the diligence of a
good father of a family in their selection and supervision as shown by the following: (1) the adequate measures that the
hospital undertakes to ascertain the petitioning doctors qualifications and medical competence; and (2) the documentary
evidence that the petitioning doctors presented to prove their competence in the field of pediatrics. 27

SJDH likewise faults the CA for ruling that the petitioning doctors are its agents, claiming that this theory, aside from being
inconsistent with the CAs finding of employment relationship, is unfounded because: first, the petitioning doctors are
independent contractors, not agents of SJDH; and second, as a medical institution, SJDH cannot practice medicine, much
more, extend its personality to physicians to practice medicine on its behalf.

Lastly, SJDH maintains that the petitioning doctors arrived at an intelligently deduced and correct diagnosis. It claimed that
based on Edmer's signs and symptoms at the time of admission (i.e., one day fever, 28 bacterial infection,29 and lack of
hemorrhagic manifestations30), there was no reasonable indication yet that he was suffering from dengue fever, and
accordingly, their failure to diagnose dengue fever, does not constitute negligence on their part.

The Case for the Respondent

In his comment, the respondent submits that the issues the petitioners raised are mainly factual in nature, which a petition for
review on certiorari under Rule 45 of the Rules of Courts does not allow.

In any case, he contends that the petitioning doctors were negligent in conducting their medical examination and diagnosis
based on the following: (1) the petitioning doctors failed to timely diagnose Edmers correct illness due to their non-observance
of the proper and acceptable standard of medical examination; (2) the petitioning doctors medical examination was not
comprehensive, as they were always in a rush; and (3) the petitioning doctors employed a guessing game in diagnosing
bronchopneumonia.

The respondent also alleges that there is a causal connection between the petitioning doctors negligence and Edmers
untimely death, warranting the claim for damages.
The respondent, too, asserted that SJDH is also negligent because it was not equipped with proper paging system, has no
bronchoscope, and its doctors are not proportionate to the number of its patients. He also pointed out that out of the seven
resident physicians in the hospital, only two resident physicians were doing rounds at the time of his sons confinement.

The Issues

The case presents to us the following issues:

1. Whether or not the petitioning doctors had committed "inexcusable lack of precaution" in diagnosing and in treating
the patient;

2. Whether or not the petitioner hospital is solidarily liable with the petitioning doctors;

3. Whether or not there is a causal connection between the petitioners negligent act/omission and the patients
resulting death; and

4. Whether or not the lower courts erred in considering Dr. Rodolfo Tabangcora Jaudian as an expert witness.

Our Ruling

We find the petition partly meritorious.

A Petition for Review on Certiorari

under Rule 45 of the Rules of Court
is Limited to Questions of Law.

The settled rule is that the Courts jurisdiction in a petition for review on certiorari under Rule 45 of the Rules of Court is limited
only to the review of pure questions of law. It is not the Courts function to inquire on the veracity of the appellate courts factual
findings and conclusions; this Court is not a trier of facts.31

A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact
when the doubt arises as to the truth or falsity of the alleged facts. 32

These consolidated petitions before us involve mixed questions of fact and law. As a rule, we do not resolve questions of fact.
However, in determining the legal question of whether the respondent is entitled to claim damages under Article 2176 of the
Civil Code for the petitioners alleged medical malpractice, the determination of the factual issues i.e., whether the petitioning
doctors were grossly negligent in diagnosing the patients illness, whether there is causal relation between the petitioners
act/omission and the patients resulting death, and whether Dr. Jaudian is qualified as an expert witness must necessarily be
resolved. We resolve these factual questions solely for the purpose of determining the legal issues raised.

Medical Malpractice Suit as a

Specialized Area of Tort Law

The claim for damages is based on the petitioning doctors negligence in diagnosing and treating the deceased Edmer, the
child of the respondent. It is a medical malpractice suit, an action available to victims to redress a wrong committed by medical
professionals who caused bodily harm to, or the death of, a patient.33 As the term is used, the suit is brought whenever a
medical practitioner or health care provider fails to meet the standards demanded by his profession, or deviates from this
standard, and causes injury to the patient.

To successfully pursue a medical malpractice suit, the plaintiff (in this case, the deceased patients heir) must prove that the
doctor either failed to do what a reasonably prudent doctor would have done, or did what a reasonably prudent doctor would
not have done; and the act or omission had caused injury to the patient. 34 The patients heir/s bears the burden of proving
his/her cause of action.

The Elements of a Medical Malpractice Suit

The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4) proximate causation.

Duty refers to the standard of behavior that imposes restrictions on one's conduct.35 It requires proof of professional
relationship between the physician and the patient. Without the professional relationship, a physician owes no duty to the
patient, and cannot therefore incur any liability.

A physician-patient relationship is created when a patient engages the services of a physician, 36 and the latter accepts or
agrees to provide care to the patient.37 The establishment of this relationship is consensual,38 and the acceptance by the
physician essential. The mere fact that an individual approaches a physician and seeks diagnosis, advice or treatment does
not create the duty of care unless the physician agrees.39

The consent needed to create the relationship does not always need to be express.40 In the absence of an express agreement,
a physician-patient relationship may be implied from the physicians affirmative action to diagnose and/or treat a patient, or in
his participation in such diagnosis and/or treatment.41 The usual illustration would be the case of a patient who goes to a
hospital or a clinic, and is examined and treated by the doctor. In this case, we can infer, based on the established and
customary practice in the medical community that a patient-physician relationship exists.

Once a physician-patient relationship is established, the legal duty of care follows. The doctor accordingly becomes duty-
bound to use at least the same standard of care that a reasonably competent doctor would use to treat a medical condition
under similar circumstances.

Breach of duty occurs when the doctor fails to comply with, or improperly performs his duties under professional standards.
This determination is both factual and legal, and is specific to each individual case.42

If the patient, as a result of the breach of duty, is injured in body or in health, actionable malpractice is committed, entitling the
patient to damages.43

To successfully claim damages, the patient must lastly prove the causal relation between the negligence and the injury. This
connection must be direct, natural, and should be unbroken by any intervening efficient causes. In other words, the negligence
must be the proximate cause of the injury.44 The injury or damage is proximately caused by the physicians negligence when it
appears, based on the evidence and the expert testimony, that the negligence played an integral part in causing the injury or
damage, and that the injury or damage was either a direct result, or a reasonably probable consequence of the physicians
negligence.45

a. The Relationship Between Dr. Casumpang and Edmer

In the present case, the physician-patient relationship between Dr. Casumpang and Edmer was created when the latters
parents sought the medical services of Dr. Casumpang, and the latter knowingly accepted Edmer as a patient. Dr.
Casumpangs acceptance is implied from his affirmative examination, diagnosis and treatment of Edmer. On the other hand,
Edmers parents, on their sons behalf, manifested their consent by availing of the benefits of their health care plan, and by
accepting the hospitals assigned doctor without objections.

b. The Relationship Between Dr. Sanga and Edmer

With respect to Dr. Sanga, her professional relationship with Edmer arose when she assumed the obligation to provide
resident supervision over the latter. As second year resident doctor tasked to do rounds and assist other physicians, Dr. Sanga
is deemed to have agreed to the creation of physician-patient relationship with the hospitals patients when she participated in
the diagnosis and prescribed a course of treatment for Edmer.

The undisputed evidence shows that Dr. Sanga examined Edmer twice (at around 12:00 and 3:30 in the afternoon of April 23,
1988),and in both instances, she prescribed treatment and participated in the diagnosis of Edmers medical condition. Her
affirmative acts amounted to her acceptance of the physician-patient relationship, and incidentally, the legal duty of care that
went with it.

In Jarcia, Jr. v. People of the Philippines,46 the Court found the doctors who merely passed by and were requested to attend to
the patient, liable for medical malpractice. It held that a physician-patient relationship was established when they examined the
patient, and later assured the mother that everything was fine.

In the US case of Mead v. Legacy Health System,47 the Court also considered the rendering of an opinion in the course of the
patients care as the doctors assent to the physician-patient relationship. It ruled that the relationship was formed because of
the doctors affirmative action. Likewise, in Wax v. Johnson,48 the court found that a physician patient relationship was formed
between a physician who "contracts, agrees, undertakes, or otherwise assumes" the obligation to provide resident supervision
at a teaching hospital, and the patient with whom the doctor had no direct or indirect contract.

Standard of Care and Breach of Duty

A determination of whether or not the petitioning doctors met the required standard of care involves a question of mixed fact
and law; it is factual as medical negligence cases are highly technical in nature, requiring the presentation of expert witnesses
to provide guidance to the court on matters clearly falling within the domain of medical science, and legal, insofar as the Court,
after evaluating the expert testimonies, and guided by medical literature, learned treatises, and its fund of common knowledge,
ultimately determines whether breach of duty took place. Whether or not Dr. Casumpang and Dr. Sanga committed a breach of
duty is to be measured by the yardstick of professional standards observed by the other members of the medical profession in
good standing under similar circumstances.49 It is in this aspect of medical malpractice that expert testimony is essential to
establish not only the professional standards observed in the medical community, but also that the physicians conduct in the
treatment of care falls below such standard.50

In the present case, expert testimony is crucial in determining first, the standard medical examinations, tests, and procedures
that the attending physicians should have undertaken in the diagnosis and treatment of dengue fever; and second, the dengue
fever signs and symptoms that the attending physicians should have noticed and considered.

Both the RTC and the CA relied largely on Dr. Jaudians expert testimony on dengue diagnosis and management to support
their finding that the petitioning doctors were guilty of breach of duty of care.
Dr. Jaudian testified that Edmers rapid breathing, chest and stomach pain, fever, and the presence of blood in his saliva are
classic symptoms of dengue fever. According to him, if the patient was admitted for chest pain, abdominal pain, and difficulty in
breathing coupled with fever, dengue fever should definitely be considered;51 if the patient spits coffee ground with the
presence of blood, and the patients platelet count drops to 47,000, it becomes a clear case of dengue fever, and
bronchopneumonia can be reasonably ruled out.52

Furthermore, the standard of care according to Dr. Jaudian is to administer oxygen inhalation, analgesic, and fluid infusion or
dextrose.53 If the patient had twice vomited fresh blood and thrombocytopenia has already occurred, the doctor should order
blood transfusion, monitoring of the patient every 30 minutes, hemostatic to stop bleeding, and oxygen if there is difficulty in
breathing.54

We find that Dr. Casumpang, as Edmers attending physician, did not act according to these standards and, hence, was guilty
of breach of duty. We do not find Dr. Sanga liable for the reasons discussed below.

Dr. Casumpangs Negligence

a. Negligence in the Diagnosis

At the trial, Dr. Casumpang declared that a doctors impression regarding a patients illness is 90% based on the physical
examination, the information given by the patient or the latters parents, and the patients medical history.55 He testified that he
did not consider either dengue fever or dengue hemorrhagic fever because the patients history showed that Edmer had low
breath and voluntary submission, and that he was up and about playing basketball.56He based his diagnosis of
bronchopneumonia on the following observations: "difficulty in breathing, clearing run nostril, harsh breath sound, tight air, and
sivilant sound."57

It will be recalled that during Dr. Casumpangs first and second visits to Edmer, he already had knowledge of Edmers
laboratory test result (CBC), medical history, and symptoms (i.e., fever, rashes, rapid breathing, chest and stomach pain, throat
irritation, difficulty in breathing, and traces of blood in the sputum). However, these information did not lead Dr. Casumpang to
the possibility that Edmer could be suffering from either dengue fever, or dengue hemorrhagic fever, as he clung to his
diagnosis of broncho pneumonia. This means that given the symptoms exhibited, Dr. Casumpang already ruled out the
possibility of other diseases like dengue.

In other words, it was lost on Dr. Casumpang that the characteristic symptoms of dengue (as Dr. Jaudian testified) are:
patients rapid breathing; chest and stomach pain; fever; and the presence of blood in his saliva. All these manifestations were
present and known to Dr. Casumpang at the time of his first and second visits to Edmer. While he noted some of these
symptoms in confirming bronchopneumonia, he did not seem to have considered the patients other manifestations in ruling out
dengue fever or dengue hemorrhagic fever.58 To our mind, Dr. Casumpang selectively appreciated some, and not all of the
symptoms; worse, he casually ignored the pieces of information that could have been material in detecting dengue fever. This
is evident from the testimony of Mrs. Cortejo:

TSN, Mrs. Cortejo, November 27, 1990

Q: Now, when Dr. Casumpang visited your son for the first time at 5:30 p.m., what did he do, if any?

A: He examined my son by using stethoscope and after that, he confirmed to me that my son was suffering from broncho
pneumonia.
Q: After he confirmed that your son was suffering broncho pneumonia, what did you say if any?

A: Again, I told Dr. Casumpang, how come it was broncho pneumonia when my son has no cough or colds.

Q: What was the answer of Dr. Casumpang to your statement?

xxxx

A: And then, Dr. Casumpang answered "THATS THE USUAL BRONCHO PNEUMONIA, NO COLDS, NO PHLEGM."

Q: How long did Dr. Casumpang stay in your sons room?

A: He stayed for a minute or 2.

xxxx

Q: When Dr. Casumpang arrived at 9:00 oclock a.m. on April 23, what did you tell him, if any?

xxxx

A: I told Dr. Casumpang After examining my son using stethoscope and nothing more, I told Dr. Casumpang about the
traces of blood in my sons sputum and I told him what is all about and he has throat irritation.

Q: What did he tell you?

A: He just nodded his head but he did not take the initiative of looking at the throat of my son.

Q: So what happened after that?

A: I also told Dr. Casumpang about his chest pain and also stomach pain.

Q: So what did Dr. Casumpang do after you have narrated all these complaints of your son?

A: Nothing. He also noticed the rapid breathing of my son and my son was almost moving because of rapid breathing and he is
swaying in the bed.

Q: Do you know what action was taken by Dr. Casumpang when you told him that your son is experiencing a rapid breathing?

A: No action. He just asked me if my son has an asthma but I said none.

Q: So how long did Dr. Casumpang stay and attended your son on April 23?

A: More or less two (2) minutes then I followed him up to the door and I repeated about the fever of my son.

Q: What did he tell you, if any, regarding that information you gave him that your son had a fever?
A: He said, that is broncho pneumonia, Its only being active now. [Emphasis supplied]

We also find it strange why Dr. Casumpang did not even bother to check Edmers throat despite knowing that as early as 9:00
in the morning of April 23, 1988, Edmer had blood streaks in his sputum. Neither did Dr. Casumpang order confirmatory tests
to confirm the source of bleeding. The Physicians Progress Notes59 stated: "Blood streaks on phlegm can be due to bronchial
irritation or congestion," which clearly showed that Dr. Casumpang merely assumed, without confirmatory physical
examination, that bronchopneumonia caused the bleeding.

Dr. Jaudian likewise opined that Dr. Casumpangs medical examination was not comprehensive enough to reasonably lead to
a correct diagnosis.60 Dr. Casumpang only used a stethoscope in coming up with the diagnosis that Edmer was suffering from
bronchopneumonia; he never confirmed this finding with the use of a bronchoscope. Furthermore, Dr. Casumpang based his
diagnosis largely on the chest x-ray result that is generally inconclusive.61

Significantly, it was only at around 5:00 in the afternoon of April 23, 1988 (after Edmers third episode of bleeding) that Dr.
Casumpang ordered the conduct of hematocrit, hemoglobin, blood typing, blood transfusion and tourniquet tests. These tests
came too late, as proven by: (1) the blood test results that came at about 6:00 in the evening, confirming that Edmers illness
had developed to "Dengue Hemorrhagic Fever;" and (2) Dr. Jaudians testimony that "dengue fever could have been detected
earlier than 7:30 in the evening of April 23, 1988 because the symptoms were already evident." 62

In Spouses Flores v. Spouses Pineda,63 a case involving a medical malpractice suit, the Court ruled that the petitioner doctors
were negligent because they failed to immediately order tests to confirm the patients illness. Despite the doctors suspicion
that the patient could be suffering from diabetes, the former still proceeded to the D&C operation. In that case, expert
testimony showed that tests should have been ordered immediately on admission to the hospital in view of the symptoms
presented. The Court held:

When a patient exhibits symptoms typical of a particular disease, these symptoms should, at the very least, alert the physician
of the possibility that the patient may be afflicted with the suspected disease.

The Court also ruled that reasonable prudence would have shown that diabetes and its complications were foreseeable harm.
However, the petitioner doctors failed to take this into consideration and proceeded with the D&C operation. Thus, the Court
ruled that they failed to comply with their duty to observe the standard of care to be given to hyperglycemic/diabetic patients.

Similarly, in Jarcia,64 involving the negligence of the doctors in failing to exercise reasonable prudence in ascertaining the
extent of the patients injuries, this Court declared that:

In failing to perform an extensive medical examination to determine the extent of Roy Jr.s injuries, Dr. Jarcia and Dr. Bastan
were remiss of their duties as members of the medical profession. Assuming for the sake of argument that they did not have
the capacity to make such thorough evaluation at that stage, they should have referred the patient to another doctor with
sufficient training and experience instead of assuring him and his mother that everything was all right. [Emphasis supplied]

Even assuming that Edmers symptoms completely coincided with the diagnosis of bronchopneumonia (so that this diagnosis
could not be considered "wrong"), we still find Dr. Casumpang guilty of negligence.

First, we emphasize that we do not decide the correctness of a doctors diagnosis, or the accuracy of the medical findings and
treatment. Our duty in medical malpractice cases is to decide based on the evidence adduced and expert opinion presented
whether a breach of duty took place.
Second, we clarify that a wrong diagnosis is not by itself medical malpractice. 65 Physicians are generally not liable for damages
resulting from a bona fide error of judgment. Nonetheless, when the physicians erroneous diagnosis was the result of
negligent conduct (e.g., neglect of medical history, failure to order the appropriate tests, failure to recognize symptoms), it
becomes an evidence of medical malpractice.

Third, we also note that medicine is not an exact science;66 and doctors, or even specialists, are not expected to give a 100%
accurate diagnosis in treating patients who come to their clinic for consultations. Error is possible as the exercise of judgment
is called for in considering and reading the exhibited symptoms, the results of tests, and in arriving at definitive conclusions.
But in doing all these, the doctor must have acted according to acceptable medical practice standards.

In the present case, evidence on record established that in confirming the diagnosis of bronchopneumonia, Dr. Casumpang
selectively appreciated some and not all of the symptoms presented, and failed to promptly conduct the appropriate tests to
confirm his findings. In sum, Dr. Casumpang failed to timely detect dengue fever, which failure, especially when reasonable
prudence would have shown that indications of dengue were evident and/or foreseeable, constitutes negligence.

a. Negligence in the Treatment and Management of Dengue

Apart from failing to promptly detect dengue fever, Dr. Casumpang also failed to promptly undertake the proper medical
management needed for this disease.

As Dr. Jaudian opined, the standard medical procedure once the patient had exhibited the classic symptoms of dengue fever
should have been: oxygen inhalation, use of analgesic, and infusion of fluids or dextrose; 67 and once the patient had twice
vomited fresh blood, the doctor should have ordered: blood transfusion, monitoring of the patient every 30 minutes, hemostatic
to stop bleeding, and oxygen if there is difficulty in breathing.68

Dr. Casumpang failed to measure up to these standards. The evidence strongly suggests that he ordered a transfusion of
platelet concentrate instead of blood transfusion. The tourniquet test was only conducted after Edmers second episode of
bleeding, and the medical management (as reflected in the records) did not include antibiotic therapy and complete physical
examination. Dr. Casumpangs testimony states:

Q: Now, after entertaining After considering that the patient Edmer Cortero was already suffering from dengue hemorrhagic
fever, what did you do, if any?

A: We ordered close monitoring of the blood pressure, the cardiac rate and respiratory rate of the patient.

Q: Now, was your instructions carried on?

A: Yes, sir.

Q: What was the blood pressure of the patient?

A: During those times, the blood pressure of the patient was even normal during those times.

Q: How about the respiratory rate?

A: The respiratory rate was fast because the patient in the beginning since admission had difficulty in breathing.
Q: Then, after that, what did you do with the patient? Doctor?

A: We transfused platelet concentrate and at the same time, we monitor [sic] the patient.

Q: Then, who monitor [sic] the patient?

A: The pediatric resident on duty at that time.

Q: Now, what happened after that?

Q: While monitoring the patient, all his vital signs were _____; his blood pressure was normal so we continued with the
supportive management at that time.

Q: Now, after that?

A: In the evening of April 23, 1988, I stayed in the hospital and I was informed by the pediatric resident on duty at around 11:15
in the evening that the blood pressure of the patient went down to .60 palpatory.

Q: What did you do upon receipt of that information?

A: I immediately went up to the room of the patient and we changed the IV fluid from the present fluid which was D5 0.3
sodium chloride to lactated ringers solution.

Q: You mean to say you increased the dengue [sic] of the intervenus [sic] fluid?

A: We changed the IV fluid because lactated ringers was necessary to resume the volume and to bring back the blood
pressure, to increase the blood pressure. [Emphasis supplied]

Although Dr. Casumpang presented the testimonies of Dr. Rodolfo Jagonap and Dr. Ellewelyn Pasion (Dr. Pasion), Personnel
Officer and Medical Director of SJDH, respectively as well as the testimonies of Dr. Livelo and Dr. Reyes (the radiologist who
read Edmers chest x-ray result), these witnesses failed to dispute the standard of action that Dr. Jaudian established in his
expert opinion. We cannot consider them expert witnesses either for the sole reason that they did not testify on the standard of
care in dengue cases.69

On the whole, after examining the totality of the adduced evidence, we find that the lower courts correctly did not rely on Dr.
Casumpangs claim that he exercised prudence and due diligence in handling Edmers case. Aside from being self-serving, his
claim is not supported by competent evidence. As the lower courts did, we rely on the uncontroverted fact that he failed, as a
medical professional, to observe the most prudent medical procedure under the circumstances in diagnosing and treating
Edmer.

Dr. Sanga is Not Liable for Negligence

In considering the case of Dr. Sanga, the junior resident physician who was on-duty at the time of Edmers confinement, we
see the need to draw distinctions between the responsibilities and corresponding liability of Dr. Casumpang, as the attending
physician, and that of Dr. Sanga.
In his testimony, Dr. Pasion declared that resident applicants are generally doctors of medicine licensed to practice in the
Philippines and who would like to pursue a particular specialty.70 They are usually the front line doctors responsible for the first
contact with the patient. During the scope of the residency program,71 resident physicians (or "residents")72 function under the
supervision of attending physicians73 or of the hospitals teaching staff. Under this arrangement, residents operate merely as
subordinates who usually defer to the attending physician on the decision to be made and on the action to be taken.

The attending physician, on the other hand, is primarily responsible for managing the residents exercise of duties. While
attending and resident physicians share the collective responsibility to deliver safe and appropriate care to the patients,74 it is
the attending physician who assumes the principal responsibility of patient care.75 Because he/she exercises a supervisory role
over the resident, and is ultimately responsible for the diagnosis and treatment of the patient, the standards applicable to and
the liability of the resident for medical malpractice is theoretically less than that of the attending physician. These relative
burdens and distinctions, however, do not translate to immunity from the legal duty of care for residents, 76 or from the
responsibility arising from their own negligent act.

In Jenkins v. Clark,77 the Ohio Court of Appeals held that the applicable standard of care in medical malpractice cases
involving first-year residents was that of a reasonably prudent physician and not that of interns. According to Jenkins:

It is clear that the standard of care required of physicians is not an individualized one but of physicians in general in the
community. In order to establish medical malpractice, it must be shown by a preponderance of the evidence that a physician
did some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under
like or similar conditions or circumstances, or that he failed or omitted to do some particular thing or things that a physician or
surgeon of ordinary skill, care and diligence would have done under like or similar conditions or circumstances, and that the
inquiry complained of was the direct result of such doing or failing to do such thing or things.

We note that the standard of instruction given by the court was indeed a proper one. It clearly informed the jury that the
medical care required is that of reasonably careful physicians or hospital emergency room operators, not of interns or
residents. [Emphasis supplied]

A decade later, Centman v. Cobb,78 affirmed the Jenkins ruling and held that interns and first-year residents are "practitioners
of medicine required to exercise the same standard of care applicable to physicians with unlimited licenses to practice." The
Indiana Court held that although a first-year resident practices under a temporary medical permit, he/she impliedly contracts
that he/she has the reasonable and ordinary qualifications of her profession and that he/she will exercise reasonable skill,
diligence, and care in treating the patient.

We find that Dr. Sanga was not independently negligent. Although she had greater patient exposure, and was subject to the
same standard of care applicable to attending physicians, we believe that a finding of negligence should also depend on
several competing factors, among them, her authority to make her own diagnosis, the degree of supervision of the attending
physician over her, and the shared responsibility between her and the attending physicians.

In this case, before Dr. Sanga attended to Edmer, both Dr. Livelo and Dr. Casumpang had diagnosed Edmer with
bronchopneumonia. In her testimony, Dr. Sanga admitted that she had been briefed about Edmers condition, his medical
history, and initial diagnosis;79 and based on these pieces of information, she confirmed the finding of bronchopneumonia.

Dr. Sanga likewise duly reported to Dr. Casumpang, who admitted receiving updates regarding Edmers condition.80There is
also evidence supporting Dr. Sangas claim that she extended diligent care to Edmer. In fact, when she suspected during
Edmers second episode of bleeding that Edmer could be suffering from dengue fever, she wasted no time in conducting the
necessary tests, and promptly notified Dr. Casumpang about the incident. Indubitably, her medical assistance led to the finding
of dengue fever.

We note however, that during Edmers second episode of bleeding,81 Dr. Sanga failed to immediately examine and note the
cause of the blood specimen. Like Dr. Casumpang, she merely assumed that the blood in Edmers phlegm was caused by
bronchopneumonia. Her testimony states:

TSN, June 8, 1993:

Q: Let us get this clear, you said that the father told you the patient cocked [sic] out phlegm.

A: With blood streak.

Q: Now, you stated specimen, were you not able to examine the specimen?

A: No, sir, I did not because according to the father he wash [sic] his hands.

xxxx

Q: Now, from you knowledge, what does that indicate if the patient expels a phlegm and blood streak?

A: If a patient cocked [sic] out phlegm then the specimen could have come from the lung alone. 82 [Emphasis supplied]

xxxx

TSN, June 17, 1993:

Q: Now, in the first meeting you had, when that was relayed to you by the father that Edmer Cortejo had coughed out blood,
what medical action did you take?

A: I examined the patient and I thought that, that coughed out phlegm was a product of broncho pneumonia.

xxxx

Q: So what examination did you specifically conduct to see that there was no internal bleeding? A: At that time I did not do
anything to determine the cause of coughing of the blood because I presumed that it was a mucous (sic) produced by broncho
pneumonia, And besides the patient did not even show any signs of any other illness at that time. 83

Based on her statements we find that Dr. Sanga was not entirely faultless. Nevertheless, her failure to discern the import of
Edmers second bleeding does not necessarily amount to negligence as the respondent himself admitted that Dr. Sanga failed
to examine the blood specimen because he wash edit away. In addition, considering the diagnosis previously made by two
doctors, and the uncontroverted fact that the burden of final diagnosis pertains to the attending physician (in this case, Dr.
Casumpang), we believe that Dr. Sangas error was merely an honest mistake of judgment influenced in no small measure by
her status in the hospital hierarchy; hence, she should not be held liable for medical negligence.

Dr. Jaudians Professional Competence and Credibility

One of the critical issues the petitioners raised in the proceedings before the lower court and before this Court was Dr.
Jaudians competence and credibility as an expert witness. The petitioners tried to discredit his expert testimony on the ground
that he lacked the proper training and fellowship status in pediatrics.

Criteria in Qualifying as an Expert Witness

The competence of an expert witness is a matter for the trial court to decide upon in the exercise of its discretion. The test of
qualification is necessarily a relative one, depending upon the subject matter of the investigation, and the fitness of the expert
witness.84 In our jurisdiction, the criterion remains to be the expert witness special knowledge experience and practical training
that qualify him/her to explain highly technical medical matters to the Court.

In Ramos v. Court of Appeals,85 the Court found the expert witness, who is a pulmonologist, not qualified to testify on the field
of anesthesiology. Similarly, in Cereno v. Court of Appeals,86 a 2012 case involving medical negligence, the Court excluded the
testimony of an expert witness whose specialty was anesthesiology, and concluded that an anesthesiologist cannot be
considered an expert in the field of surgery or even in surgical practices and diagnosis.

Interestingly in this case, Dr. Jaudian, the expert witness was admittedly not a pediatrician but a practicing physician who
specializes in pathology.87 He likewise does not possess any formal residency training in pediatrics. Nonetheless, both the
lower courts found his knowledge acquired through study and practical experience sufficient to advance an expert opinion on
dengue-related cases.

We agree with the lower courts.

A close scrutiny of Ramos and Cereno reveals that the Court primarily based the witnesses disqualification to testify as an
expert on their incapacity to shed light on the standard of care that must be observed by the defendant-physicians. That the
expert witnesses specialties do not match the physicians practice area only constituted, at most, one of the considerations
that should not be taken out of context. After all, the sole function of a medical expert witness, regardless of his/her specialty, is
to afford assistance to the courts on medical matters, and to explain the medical facts in issue.

Furthermore, there was no reasonable indication in Ramos and Cereno that the expert witnesses possess a sufficient
familiarity with the standard of care applicable to the physicians specialties. US jurisprudence on medical malpractice
demonstrated the trial courts wide latitude of discretion in allowing a specialist from another field to testify against a defendant
specialist.

In Brown v. Sims,88 a neurosurgeon was found competent to give expert testimony regarding a gynecologist's standard of pre-
surgical care. In that case, the court held that since negligence was not predicated on the gynecologists negligent
performance of the operation, but primarily on the claim that the pre-operative histories and physicals were inadequate, the
neurosurgeon was competent to testify as an expert.

Frost v. Mayo Clinic89 also allowed an orthopedic surgeon to testify against a neurologist in a medical malpractice action. The
court considered that the orthopedic surgeons opinion on the "immediate need for decompression" need not come from a
specialist in neurosurgery. The court held that:

It is well established that "the testimony of a qualified medical doctor cannot be excluded simply because he is not a specialist
x x x." The matter of "x x x training and specialization of the witness goes to the weight rather than admissibility x x x."
xxxx

It did not appear to the court that a medical doctor had to be a specialist in neurosurgery to express the opinions permitted to
be expressed by plaintiffs doctors, e.g., the immediate need for a decompression in the light of certain neurological deficits in a
post-laminectomy patient. As stated above, there was no issue as to the proper execution of the neurosurgery. The medical
testimony supported plaintiffs theory of negligence and causation. (Citations omitted)

In another case,90 the court declared that it is the specialists knowledge of the requisite subject matter, rather than his/her
specialty that determines his/her qualification to testify.

Also in Evans v. Ohanesian,91 the court set a guideline in qualifying an expert witness:

To qualify a witness as a medical expert, it must be shown that the witness (1) has the required professional knowledge,
learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject; and (2) is familiar
with the standard required of a physician under similar circumstances; where a witness has disclosed sufficient knowledge of
the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes more to the weight of the
evidence than to its admissibility.

xxxx

Nor is it critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of the
subject. Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty
in which he is not directly engaged but as to which he has an opinion based on education, experience, observation, or
association wit that specialty, his opinion is competent.(Emphasis supplied)

Finally, Brown v. Mladineo92 adhered to the principle that the witness familiarity, and not the classification by title or specialty,
which should control issues regarding the expert witness qualifications:

The general rule as to expert testimony in medical malpractice actions is that "a specialist in a particular branch within a
profession will not be required." Most courts allow a doctor to testify if they are satisfied of his familiarity with the standards of a
specialty, though he may not practice the specialty himself. One court explained that "it is the scope of the witness knowledge
and not the artificial classification by title that should govern the threshold question of admissibility. (Citations omitted)

Application to the Present Case

In the case and the facts before us, we find that Dr. Jaudian is competent to testify on the standard of care in dengue fever
cases.1avvphi1

Although he specializes in pathology, it was established during trial that he had attended not less than 30 seminars held by the
Pediatric Society, had exposure in pediatrics, had been practicing medicine for 16 years, and had handled not less than 50
dengue related cases.

As a licensed medical practitioner specializing in pathology, who had practical and relevant exposure in pediatrics and dengue
related cases, we are convinced that Dr. Jaudian demonstrated sufficient familiarity with the standard of care to be applied in
dengue fever cases. Furthermore, we agree that he possesses knowledge and experience sufficient to qualify him to speak
with authority on the subject.
The Causation Between Dr. Casumpangs
Negligent Act/Omission, and the Patients
Resulting Death was Adequately Proven

Dr. Jaudians testimony strongly suggests that due to Dr. Casumpangs failure to timely diagnose Edmer with dengue, the latter
was not immediately given the proper treatment. In fact, even after Dr. Casumpang had discovered Edmers real illness, he still
failed to promptly perform the standard medical procedure. We agree with these findings.

As the respondent had pointed out, dengue fever, if left untreated, could be a life threatening disease. As in any fatal diseases,
it requires immediate medical attention.93 With the correct and timely diagnosis, coupled with the proper medical management,
dengue fever is not a life threatening disease and could easily be cured.94

Furthermore, as Dr. Jaudian testified, with adequate intensive care, the mortality rate of dengue fever should fall to less than
2%. Hence, the survival of the patient is directly related to early and proper management of the illness. 95

To reiterate, Dr. Casumpang failed to timely diagnose Edmer with dengue fever despite the presence of its characteristic
symptoms; and as a consequence of the delayed diagnosis, he also failed to promptly manage Edmers illness. Had he
immediately conducted confirmatory tests, (i.e., tourniquet tests and series of blood tests)and promptly administered the proper
care and management needed for dengue fever, the risk of complications or even death, could have been substantially
reduced.

Furthermore, medical literature on dengue shows that early diagnosis and management of dengue is critical in reducing the
risk of complications and avoiding further spread of the virus.96 That Edmer later died of "Hypovolemic Shock/hemorrhagic
shock," "Dengue Hemorrhagic Fever Stage IV," a severe and fatal form of dengue fever, established the causal link between
Dr. Casumpangs negligence and the injury.

Based on these considerations, we rule that the respondent successfully proved the element of causation.

Liability of SJDH

We now discuss the liability of the hospital.

The respondent submits that SJDH should not only be held vicariously liable for the petitioning doctors negligence but also for
its own negligence. He claims that SJDH fell short of its duty of providing its patients with the necessary facilities and
equipment as shown by the following circumstances:

(a) SJDH was not equipped with proper paging system;

(b) the number of its doctors is not proportionate to the number of patients;

(c) SJDH was not equipped with a bronchoscope;

(d) when Edmers oxygen was removed, the medical staff did not immediately provide him with portable oxygen;

(e) when Edmer was about to be transferred to another hospital, SJDHs was not ready and had no driver; and
 (f) despite Edmers critical condition, there was no doctor attending to him from 5:30 p.m. of April 22, to 9:00 a.m. of
April 23, 1988.

SJDH on the other hand disclaims liability by claiming that the petitioning doctors are not its employees but are mere
consultants and independent contractors.

We affirm the hospitals liability not on the basis of Article 2180 of the Civil Code, but on the basis of the doctrine of apparent
authority or agency by estoppel.

There is No Employer-Employee Relationship

Between SJDH and the Petitioning Doctors

In determining whether an employer-employee relationship exists between the parties, the following elements must be present:
(1) selection and engagement of services; (2) payment of wages; (3) the power to hire and fire; and (4) the power to control not
only the end to be achieved, but the means to be used in reaching such an end. 97

Control, which is the most crucial among the elements, is not present in this case.

Based on the records, no evidence exists showing that SJDH exercised any degree of control over the means, methods of
procedure and manner by which the petitioning doctors conducted and performed their medical profession. SJDH did not
control their diagnosis and treatment. Likewise, no evidence was presented to show that SJDH monitored, supervised, or
directed the petitioning doctors in the treatment and management of Edmers case. In these lights, the petitioning doctors were
not employees of SJDH, but were mere independent contractors.

SJDH is Solidarily Liable Based

on The Principle of Agency or Doctrine
of Apparent Authority

Despite the absence of employer-employee relationship between SJDH and the petitioning doctors, SJDH is not free from
liability.98

As a rule, hospitals are not liable for the negligence of its independent contractors. However, it may be found liable if the
physician or independent contractor acts as an ostensible agent of the hospital. This exception is also known as the "doctrine
of apparent authority."99

The US case of Gilbert v. Sycamore Municipal Hospital100 abrogated the hospitals immunity to vicarious liability of independent
contractor physicians. In that case, the Illinois Supreme Court held that under the doctrine of apparent authority, hospitals
could be found vicariously liable for the negligence of an independent contractor:

Therefore, we hold that, under the doctrine of apparent authority, a hospital can be held vicariously liable for the negligent acts
of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the
patient knows, or should have known, that the physician is an independent contractor. The elements of the action have been
set out as follows:
For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the hospital, or its agent,
acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be negligent was an
employee or agent of the hospital; (2) where the acts of the agent create the appearance of authority, the plaintiff must also
prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance upon the conduct of the
hospital or its agent, consistent with ordinary care and prudence. (Emphasis supplied)

The doctrine was applied in Nogales v. Capitol Medical Center101 where this Court, through the ponencia of Associate Justice
Antonio T. Carpio, discussed the two factors in determining hospital liability as follows:

The first factor focuses on the hospitals manifestations and is sometimes described as an inquiry whether the hospital acted in
a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an
employee or agent of the hospital. In this regard, the hospital need not make express representations to the patient that the
treating physician is an employee of the hospital; rather a representation may be general and implied.

xxxx

The second factor focuses on the patient's reliance. It is sometimes characterized as an inquiry on whether the plaintiff acted in
reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. (Citation omitted)

In sum, a hospital can be held vicariously liable for the negligent acts of a physician (or an independent contractor) providing
care at the hospital if the plaintiff can prove these two factors: first, the hospitals manifestations; and second, the patients
reliance.

a. Hospitals manifestations

It involves an inquiry on whether the hospital acted in a manner that would lead a reasonable person to conclude that the
individual alleged to be negligent was an employee or agent of the hospital. As pointed out in Nogales, the hospital need not
make express representations to the patient that the physician or independent contractor is an employee of the hospital;
representation may be general and implied.102

In Pamperin v. Trinity Memorial Hospital,103 questions were raised on "what acts by the hospital or its agent are sufficient to
lead a reasonable person to conclude that the individual was an agent of the hospital." In ruling that the hospitals
manifestations can be proven without the express representation by the hospital, the court relied on several cases from other
jurisdictions, and held that:

(1) the hospital, by providing emergency room care and by failing to advise patients that they were being treated by the
hospitals agent and not its employee, has created the appearance of agency; and

(2) patients entering the hospital through the emergency room, could properly assume that the treating doctors and
staff of the hospital were acting on its behalf.1wphi1

In this case, the court considered the act of the hospital of holding itself out as provider of complete medical care, and
considered the hospital to have impliedly created the appearance of authority.

b. Patients reliance
It involves an inquiry on whether the plaintiff acted in reliance on the conduct of the hospital or its agent, consistent with
ordinary care and prudence.104

In Pamperin, the court held that the important consideration in determining the patients reliance is: whether the plaintiff is
seeking care from the hospital itself or whether the plaintiff is looking to the hospital merely as a place for his/her personal
physician to provide medical care.105 Thus, this requirement is deemed satisfied if the plaintiff can prove that he/she relied
upon the hospital to provide care and treatment, rather than upon a specific physician. In this case, we shall limit the
determination of the hospitals apparent authority to Dr. Casumpang, in view of our finding that Dr. Sanga is not liable for
negligence.

SJDH Clothed Dr. Casumpang With Apparent Authority

SJDH impliedly held out and clothed Dr. Casumpang with apparent authority leading the respondent to believe that he is an
employee or agent of the hospital.

Based on the records, the respondent relied on SJDH rather than upon Dr. Casumpang, to care and treat his son Edmer. His
testimony during trial showed that he and his wife did not know any doctors at SJDH; they also did not know that Dr.
Casumpang was an independent contractor. They brought their son to SJDH for diagnosis because of their family doctors
referral. The referral did not specifically point to Dr. Casumpang or even to Dr. Sanga, but to SJDH. Significantly, the
respondent had relied on SJDHs representation of Dr. Casumpangs authority. To recall, when Mrs. Cortejo presented her
Fortune Care card, she was initially referred to the Fortune Care coordinator, who was then out of town. She was thereafter
referred to Dr. Casumpang, who is also accredited with Fortune Care. In both instances, SJDH through its agent failed to
advise Mrs. Cortejo that Dr. Casumpang is an independent contractor.

Mrs. Cortejo accepted Dr. Casumpangs services on the reasonable belief that such were being provided by SJDH or its
employees, agents, or servants. By referring Dr. Casumpang to care and treat for Edmer, SJDH impliedly held out Dr.
Casumpang, not only as an accredited member of Fortune Care, but also as a member of its medical staff. SJDH cannot now
disclaim liability since there is no showing that Mrs. Cortejo or the respondent knew, or should have known, that Dr.
Casumpang is only an independent contractor of the hospital. In this case, estoppel has already set in.

We also stress that Mrs. Cortejos use of health care plan (Fortune Care) did not affect SJDHs liability. The only effect of the
availment of her Fortune Care card benefits is that her choice of physician is limited only to physicians who are accredited with
Fortune Care. Thus, her use of health care plan in this case only limited the choice of doctors (or coverage of services, amount
etc.) and not the liability of doctors or the hospital.

WHEREFORE, premises considered, this Court PARTLY GRANTS the consolidated petitions. The Court finds Dr. Noel
Casumpang and San Juan de Dios Hospital solidarily liable for negligent medical practice. We SET ASIDE the finding of
liability as to Dr. Ruby Miranda-Sanga. The amounts of 45,000.00 as actual damages and 500,000.00 as moral damages
should each earn legal interest at the rate of six percent (6%) per annum computed from the date of the judgment of the trial
court. The Court AFFIRMS the rest of the Decision dated October 29, 2004 and the Resolution dated January 12, 2006 in CA-
G.R. CV No. 56400.

SO ORDERED.
BRION, J.:
We resolve the three (3) consolidated petitions for review on certiorari[1] involving medical negligence, commonly assailing the
October 29, 2004 decision[2] and the January 12, 2006 resolution[3] of the Court of Appeals (CA) in CA-G.R. CV No. 56400.
This CA decision affirmed en toto the ruling of the Regional Trial Court (RTC), Branch 134, Makati City.

The RTC awarded Nelson Cortejo (respondent) damages in the total amount of P595,000.00, for the wrongful death of his son
allegedly due to the medical negligence of the petitioning doctors and the hospital.

Factual Antecedents

The common factual antecedents are briefly summarized below.

On April 22, 1988, at about 11:30 in the morning, Mrs. Jesusa Cortejo brought her 11-year old son, Edmer Cortejo (Edmer), to
the Emergency Room of the San Juan de Dios Hospital (SJDH) because of difficulty in breathing, chest pain, stomach pain,
and fever.[4]

Dr. Ramoncito Livelo (Dr. Livelo) initially attended to and examined Edmer. In her testimony, Mrs. Cortejo narrated that in the
morning of April 20, 1988, Edmer had developed a slight fever that lasted for one day; a few hours upon discovery, she
brought Edmer to their family doctor; and two hours after administering medications, Edmer's fever had subsided. [5]

After taking Edmer's medical history, Dr. Livelo took his vital signs, body temperature, and blood pressure. [6] Based on these
initial examinations and the chest x-ray test that followed, Dr. Livelo diagnosed Edmer with "bronchopneumonia." [7] Edmer's
blood was also taken for testing, typing, and for purposes of administering antibiotics. Afterwards, Dr. Livelo gave Edmer an
antibiotic medication to lessen his fever and to loosen his phlegm.

Mrs. Cortejo did not know any doctor at SJDH. She used her Fortune Care card and was referred to an accredited Fortune
Care coordinator, who was then out of town. She was thereafter assigned to Dr. Noel Casumpang (Dr. Casumpang), a
pediatrician also accredited with Fortune Care.[8]

At 5:30 in the afternoon of the same day, Dr. Casumpang for the first time examined Edmer in his room. Using only a
stethoscope, he confirmed the initial diagnosis of "Bronchopneumonia."[9]

At that moment, Mrs. Cortejo recalled entertaining doubts on the doctor's diagnosis. She immediately advised Dr. Casumpang
that Edmer had a high fever, and had no colds or cough[10] but Dr. Casumpang merely told her that her son's "bloodpressure is
just being active,"[11]and remarked that "that's the usual bronchopneumonia, no colds, no phlegm."[12]

Dr. Casumpang next visited and examined Edmer at 9:00 in the morning the following day. [13] Still suspicious about his son's
illness, Mrs. Cortejo again called Dr. Casumpang's attention and stated that Edmer had a fever, throat irritation, as well as
chest and stomach pain. Mrs. Cortejo also alerted Dr. Casumpang about the traces of blood in Edmer's sputum. Despite these
pieces of information, however, Dr. Casumpang simply nodded, inquired if Edmer has an asthma, and reassured Mrs. Cortejo
that Edmer's illness is bronchopneumonia.[14]
At around 11:30 in the morning of April 23, 1988, Edmer vomited "phlegm with blood streak" [15] prompting the respondent
(Edmer's father) to request for a doctor at the nurses' station.[16]

Forty-five minutes later, Dr. Ruby Sanga-Miranda (Dr. Miranda), one of the resident physicians of SJDH, arrived. She claimed
that although aware that Edmer had vomited "phlegm with blood streak," she failed to examine the blood specimen because
the respondent washed it away. She then advised the respondent to preserve the specimen for examination.

Thereafter, Dr. Miranda conducted a physical check-up covering Edmer's head, eyes, nose, throat, lungs, skin and abdomen;
and found that Edmer had a low-grade non-continuing fever, and rashes that were not typical of dengue fever.[17] Her medical
findings state:

the patient's rapid breathing and then the lung showed sibilant and the patient's nose is flaring which is a sign that the patient is
in respiratory distress; the abdomen has negative finding; the patient has low grade fever and not continuing; and the rashes in
the patient's skin were not "Herman's Rash" and not typical of dengue fever. [18]
At 3:00 in the afternoon, Edmer once again vomited blood. Upon seeing Dr. Miranda, the respondent showed her Edmer's
blood specimen, and reported that Edmer had complained of severe stomach pain and difficulty in moving his right leg. [19]

Dr. Miranda then examined Edmer's "sputum with blood" and noted that he was bleeding. Suspecting that he could be afflicted
with dengue, she inserted a plastic tube in his nose, drained the liquid from his stomach with ice cold normal saline solution,
and gave an instruction not to pull out the tube, or give the patient any oral medication.

Dr. Miranda thereafter conducted a tourniquet test, which turned out to be negative.[20] She likewise ordered the monitoring of
the patient's blood pressure and some blood tests. Edmer's blood pressure was later found to be normal. [21]

At 4:40 in the afternoon, Dr. Miranda called up Dr. Casumpang at his clinic and told him about Edmer's condition.[22] Upon
being informed, Dr. Casumpang ordered several procedures done including: hematocrit, hemoglobin, blood typing, blood
transfusion and tourniquet tests.

The blood test results came at about 6:00 in the evening.

Dr. Miranda advised Edmer's parents that the blood test results showed that Edmer was suffering from "Dengue Hemorrhagic
Fever." One hour later, Dr. Casumpang arrived at Edmer's room and he recommended his transfer to the Intensive Care Unit
(ICU), to which the respondent consented. Since the ICU was then full, Dr. Casumpang suggested to the respondent that they
hire a private nurse. The respondent, however, insisted on transferring his son to Makati Medical Center.

After the respondent had signed the waiver, Dr. Casumpang, for the last time, checked Edmer's condition, found that his blood
pressure was stable, and noted that he was "comfortable." The respondent requested for an ambulance but he was informed
that the driver was nowhere to be found. This prompted him to hire a private ambulance that cost him P600.00.[23]

At 12:00 midnight, Edmer, accompanied by his parents and by Dr. Casumpang, was transferred to Makati Medical Center.

Dr. Casumpang immediately gave the attending physician the patient's clinical history and laboratory exam results. Upon
examination, the attending physician diagnosed "Dengue Fever Stage IV" that was already in its irreversible stage.

Edmer died at 4:00 in the morning of April 24, 1988.[24] His Death Certificate indicated the cause of death as "Hypovolemic
Shock/hemorrhagic shock;" "Dengue Hemorrhagic Fever Stage IV."
Believing that Edmer's death was caused by the negligent and erroneous diagnosis of his doctors, the respondent instituted an
action for damages against SJDH, and its attending physicians: Dr. Casumpang and Dr. Miranda (collectively referred to as the
"petitioners") before the RTC of Makati City.

The Ruling of the Regional Trial Court

In a decision[25] dated May 30, 1997, the RTC ruled in favor of the respondent, and awarded actual and moral damages, plus
attorney's fees and costs.

In ruling that the petitioning doctors were negligent, the RTC found untenable the petitioning doctors' contention that Edmer's
initial symptoms did not indicate dengue fever. It faulted them for heavily relying on the chest x-ray result and for not
considering the other manifestations that Edmer's parents had relayed. It held that in diagnosing and treating an illness, the
physician's conduct should be judged not only by what he/she saw and knew, but also by what he/she could have reasonably
seen and known. It also observed that based on Edmer's signs and symptoms, his medical history and physical examination,
and also the information that the petitioning doctors gathered from his family members, dengue fever was a reasonably
foreseeable illness; yet, the petitioning doctors failed to take a second look, much less, consider these indicators of dengue.

The trial court also found that aside from their self-serving testimonies, the petitioning doctors did not present other evidence to
prove that they exercised the proper medical attention in diagnosing and treating the patient, leading it to conclude that they
were guilty of negligence.

The RTC also held SJDH solidarity liable with the petitioning doctors for damages based on the following findings of facts: first,
Dr. Casumpang, as consultant, is an ostensible agent of SJDH because before the hospital engaged his medical services, it
scrutinized and determined his fitness, qualifications, and competence as a medical practitioner; and second, Dr. Miranda, as
resident physician, is an employee of SJDH because like Dr. Casumpang, the hospital, through its screening committee,
scrutinized and determined her qualifications, fitness, and competence before engaging her services; the hospital also
exercised control over her work.

The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, ordering the latter to pay
solidarity and severally plaintiff the following:

(1) Moral damages in the amount of P500,000.00;

(2) Costs of burial and funeral in the amount of P45,000.00;

(3) Attorney's fees of P50,000.00; and

(4) Cost of this suit.

SO ORDERED.
The petitioners appealed the decision to the CA.

The Ruling of the Court of Appeals

In its decision dated October 29, 2004, the CA affirmed en toto the RTC's ruling, finding that SJDH and its attending physicians
failed to exercise the minimum medical care, attention, and treatment expected of an ordinary doctor under like circumstances.

The CA found the petitioning doctors' failure to read even the most basic signs of "dengue fever" expected of an ordinary
doctor as medical negligence. The CA also considered the petitioning doctors' testimonies as self-serving, noting that they
presented no other evidence to prove that they exercised due diligence in diagnosing Edmer's illness.

The CA likewise found Dr. Rodolfo Jaudian's (Dr. Jaudian) testimony admissible. It gave credence to his opinion[26] that: (1)
given the exhibited symptoms of the patient, dengue fever should definitely be considered, and bronchopneumonia could be
reasonably ruled out; and (2) dengue fever could have been detected earlier than 7:30 in the evening of April 23, 1988
because the symptoms were already evident; and agreed with the RTC that the petitioning doctors should not have solely
relied on the chest-x-ray result, as it was not conclusive.

On SJDH's solidary liability, the CA ruled that the hospital's liability is based on Article 2180 of the Civil Code. The CA opined
that the control which the hospital exercises over its consultants, the hospital's power to hire and terminate their services, all
fulfill the employer-employee relationship requirement under Article 2180.

Lastly, the CA held that SJDH failed to adduce evidence showing that it exercised the diligence of a good father of a family in
the hiring and the supervision of its physicians.

The petitioners separately moved to reconsider the CA decision, but the CA denied their motion in its resolution of January 12,
2006; hence, the present consolidated petitions pursuant to Rule 45 of the Rules of Court.

The Petitions

I. Dr. Casumpang's Position (G.R. No. 171127)

Dr. Casumpang contends that he gave his patient medical treatment and care to the best of his abilities, and within the proper
standard of care required from physicians under similar circumstances. He claims that his initial diagnosis of
bronchopneumonia was supported by the chest x-ray result.

Dr. Casumpang also contends that dengue fever occurs only after several days of confinement. He alleged that when he had
suspected that Edmer might be suffering from dengue fever, he immediately attended and treated him.

Dr. Casumpang likewise raised serious doubjs on Dr. Jaudian's credibility, arguing that the CA erred in appreciating his
testimony as an expert witness since he lacked the necessary training, skills, and experience as a specialist in dengue fever
cases.

II. Dr. Miranda's Position (G.R. No. 171217)

In her petition, Dr. Miranda faults the CA for holding her responsible for Edmer's wrong diagnosis, stressing that the function of
making the diagnosis and undertaking the medical treatment devolved upon Dr. Casumpang, the doctor assigned to Edmer,
and who confirmed "bronchopneumonia."

Dr. Miranda also alleged that she exercised prudence in performing her duties as a physician, underscoring that it was her
professional intervention that led to the correct diagnosis of "Dengue Hemorrhagic Fever." Furthermore, Edmer's Complete
Blood Count (CBC) showed leukopenia and an increase in balance as shown by the differential count, demonstrating that
Edmer's infection, more or less, is of bacterial and not viral in nature.

Dr. Miranda as well argued that there is no causal relation between the alleged erroneous diagnosis and medication for
"Bronchopneumonia," and Edmer's death due to "Dengue Hemorrhagic Fever."

Lastly, she claimed that Dr. Jaudian is not a qualified expert witness since he never presented any evidence of formal
residency training and fellowship status in Pediatrics.

III. SJDH's Position (G.R. No. 171228)

SJDH, on the other hand, disclaims liability by asserting that Dr. Casumpang and Dr. Miranda are mere independent
contractors and "consultants" (not employees) of the hospital. SJDH alleges that since it did not exercise control or supervision
over the consultants' exercise of medical profession, there is no employer-employee relationship between them, and
consequently, Article 2180 of the Civil Code does not apply.

SJDH likewise anchored the absence of, employer-employee relationship on the following circumstances: (1) SJDH does not
hire consultants; it only grants them privileges to admit patients in the hospital through accreditation; (2) SJDH does not pay
the consultants wages similar to an ordinary employee; (3) the consultants earn their own professional fees directly from their
patients; SJDH does not fire or terminate their services; and (4) SJDH does not control or interfere with the manner and the
means the consultants use in the treatment of their patients. It merely provides them with adequate space in exchange for
rental payment.

Furthermore, SJDH claims that the CA erroneously applied the control test when it treated the hospital's practice of accrediting
consultants as an exercise of control. It explained that the control contemplated by law is that which the employer exercises
over the: (i) end result; and the (ii) manner and means to be used to reach this end, and not any kind of control, however
significant, in accrediting the consultants.

SJDH moreover contends that even if the petitioning doctors are considered employees and not merely consultants of the
hospital, SJDH cannot still be held solidarity liable under Article 2180 of the Civil Code because it observed the diligence of a
good father of a family in their selection and supervision as shown by the following: (1) the adequate measures that the
hospital undertakes to ascertain the petitioning doctors' qualifications and medical competence; and (2) the documentary
evidence that the petitioning doctors presented to prove their competence in the field of pediatrics. [27]

SJDH likewise faults the CA for ruling that the petitioning doctors are its agents, claiming that this theory, aside from being
inconsistent with the CA's finding of employment relationship, is unfounded because: first, the petitioning doctors are
independent contractors, not agents of SJDH; and second, as a medical institution, SJDH cannot practice medicine, much
more, extend its personality to physicians to practice medicine on its behalf.

Lastly, SJDH maintains that the petitioning doctors arrived at an intelligently deduced and correct diagnosis. It claimed that
based on Edmer's signs and symptoms at the time of admission (i.e., one day fever,[28] bacterial infection,[29] and lack of
hemorrhagic manifestations[30]), there was no reasonable indication yet that he was suffering from dengue fever, and
accordingly, their failure to diagnose dengue fever, does not constitute negligence on their part.

The Case for the Respondent

In his comment, the respondent submits that the issues the petitioners raised are mainly factual in nature, which a petition for
review on certiorari under Rule 45 of the Rules of Court does not allow.

In any case, he contends that the petitioning doctors were negligent in conducting their medical examination and diagnosis
based on the following: (1) the petitioning doctors failed to timely diagnose Edmer's correct illness due to their non-observance
of the proper and acceptable standard of medical examination; (2) the petitioning doctors' medical examination was not
comprehensive, as they were always in a rush; and (3) the petitioning doctors employed a guessing game in diagnosing
bronchopneumonia.

The respondent also alleges that there is a causal connection between the petitioning doctors' negligence and Edmer's
untimely death, warranting the claim for damages.

The respondent, too, asserted that SJDH is also negligent because it was not equipped with proper paging system, has no
bronchoscope, and its doctors are not proportionate to the number of its patients. He also pointed out that out of the seven
resident physicians in the hospital, only two resident physicians were doing rounds at the time of his son's confinement.

The Issues

The case presents to us the following issues:

1. Whether or not the petitioning doctors had committed "inexcusable lack of precaution" in diagnosing and in treating the
patient;

2. Whether or not the petitioner hospital is solidarity liable with the petitioning doctors;

3. Whether or not there is a causal connection between the petitioners' negligent act/omission and the patient's resulting
death; and

4. Whether or not the lower courts erred in considering Dr. Rodolfo Tabangcora Jaudian as an expert witness.

Our Ruling

We find the petition partly meritorious.

A Petition for Review on Certiorari under Rule 45 of the Rules of Court is Limited to Questions of Law.

The settled rule is that the Court's jurisdiction in a petition for review on certiorari under Rule 45 of the Rules of Court is limited
only to the review of pure questions of law. It is not the Court's function to inquire on the veracity of the appellate court's factual
findings and conclusions; this Court is not a trier of facts.[31]
A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact
when the doubt arises as to the truth or falsity of the alleged facts.[32]

These consolidated petitions before us involve mixed questions of fact and law. As a rule, we do not resolve questions of
fact. However, in determining the legal question of whether the respondent is entitled to claim damages under Article 2176 of
the Civil Code for the petitioners' alleged medical malpractice, the determination of the factual issues - i.e., whether the
petitioning doctors were grossly negligent in diagnosing the patient's illness, whether there is causal relation between the
petitioners' act/omission and the patient's resulting death, and whether Dr. Jaudian is qualified as an expert witness - must
necessarily be resolved. We resolve these factual questions solely for the purpose of determining the legal issues raised.

Medical Malpractice Suit as a Specialized Area of Tort Law

The claim for damages is based on the petitioning doctors' negligence in diagnosing and treating the deceased Edmer, the
child of the respondent. It is a medical malpractice suit, an action available to victims to redress a wrong committed by
medical professionals who caused bodily harm to, or the death of, a patient. [33] As the term is used, the suit is brought
whenever a medical practitioner or health care provider fails to meet the standards demanded by his profession, or deviates
from this standard, and causes injury to the patient.

To successfully pursue a medical malpractice suit, the plaintiff (in this case, the deceased patient's heir) must prove that the
doctor either failed to do what a reasonably prudent doctor would have done, or did what a reasonably prudent doctor would
not have done; and the act or omission had caused injury to the patient. [34] The patient's heir/s bears the burden of proving
his/her cause of action.

The Elements of a Medical Malpractice Suit

The elements of medical negligence are: (1) duty; (2) breach; (3) injury; and (4) proximate causation.

Duty refers to the standard of behavior that imposes restrictions on one's conduct. [35] It requires proof of professional
relationship between the physician and the patient. Without the professional relationship, a physician owes no duty to the
patient, and cannot therefore incur any liability.

A physician-patient relationship is created when a patient engages the services of a physician,[36] and the latter accepts or
agrees to provide care to the patient.[37] The establishment of this relationship is consensual,[38] and the acceptance by the
physician essential. The mere fact that an individual approaches a physician and seeks diagnosis, advice or treatment does
not create the duty of care unless the physician agrees.[39]

The consent needed to create the relationship does not always need to be express. [40] In the absence of an express
agreement, a physician-patient relationship may be implied from the physician's affirmative action to diagnose and/or treat a
patient, or in his participation in such diagnosis and/or treatment. [41] The usual illustration would be the case of a patient who
goes to a hospital or a clinic, and is examined and treated by the doctor. In this case, we can infer, based on the established
and customary practice in the medical community that a patient-physician relationship exists.

Once a physician-patient relationship is established, the legal duty of care follows. The doctor accordingly becomes duty-
bound to use at least the same standard of care that a reasonably competent doctor would use to treat a medical condition
under similar circumstances.

Breach of duty occurs when the doctor fails to comply with, or improperly performs his duties under professional standards.
This determination is both factual and legal, and is specific to each individual case.[42]

If the patient, as a result of the breach of duty, is injured in body or in health, actionable malpractice is committed, entitling the
patient to damages.[43]

To successfully claim damages, the patient must lastly prove the causal relation between the negligence and the injury. This
connection must be direct, natural, and should be unbroken by any intervening efficient causes. In other words, the
negligence must be the proximate cause of the injury.[44] The injury or damage is proximately caused by the physician's
negligence when it appears, based on the evidence and the expert testimony, that the negligence played an integral part in
causing the injury or damage, and that the injury or damage was either a direct result, or a reasonably probable consequence
of the physician's negligence.[45]

a. The Relationship Between Dr. Casumpang and Edmer

In the present case, the physician-patient relationship between Dr. Casumpang and Edmer was created when the latter's
parents sought the medical services of Dr. Casumpang, and the latter knowingly accepted Edmer as a patient. Dr.
Casumpang's acceptance is implied from his affirmative examination, diagnosis and treatment of Edmer. On the other hand,
Edmer's parents, on their son's behalf, manifested their consent by availing of the benefits of their health care plan, and by
accepting the hospital's assigned doctor without objections.

b. The Relationship Between Dr. Miranda and Edmer

With respect to Dr. Miranda, her professional relationship with Edmer arose when she assumed the obligation to provide
resident supervision over the latter. As second year resident doctor tasked to do rounds and assist other physicians, Dr.
Miranda is deemed to have agreed to the creation of physician-patient relationship with the hospital's patients when she
participated in the diagnosis and prescribed a course of treatment for Edmer.

The undisputed evidence shows that Dr. Miranda examined Edmer twice (at around 12:00 and 3:30 in the afternoon of April
23, 1988), and in both instances, she prescribed treatment and participated in the diagnosis of Edmer's medical condition. Her
affirmative acts amounted to her acceptance of the physician-patient relationship, and incidentally, the legal duty of care that
went with it.

In Jarcia, Jr. v. People of the Philippines,[46] the Court found the doctors who merely passed by and were requested to attend
to the patient, liable for medical malpractice. It held that a physician-patient relationship was established when they examined
the patient, and later assured the mother that everything was fine.

In the US case of Mead v. Legacy Health System,[47] the Court also considered the rendering of an opinion in the course of the
patient's care as the doctor's assent to the physician-patient relationship. It ruled that the relationship was formed because of
the doctor's affirmative action.

Likewise, in Wax v. Johnson,[48] the court found that a physician-patient relationship was formed between a physician who
"contracts, agrees, undertakes, or otherwise assumes" the obligation to provide resident supervision at a teaching hospital,
and the patient with whom the doctor had no direct or indirect contract.

Standard of Care and Breach of Duty

A determination of whether or not the petitioning doctors met the required standard of care involves a question of mixed fact
and law; it is factual as medical negligence cases are highly technical in nature, requiring the presentation of expert witnesses
to provide guidance to the court on matters clearly falling within the domain of medical science, and legal, insofar as the Court,
after evaluating the expert testimonies, and guided by medical literature, learned treatises, and its fund of common knowledge,
ultimately determines whether breach of duty took place.

Whether or not Dr. Casumpang and Dr. Miranda committed a breach of duty is to be measured by the yardstick of professional
standards observed by the other members of the medical profession in good standing under similar circumstances. [49] It is in
this aspect of medical malpractice that expert testimony is essential to establish not only the professional standards observed
in the medical community, but also that the physician's conduct in the treatment of care falls below such standard. [50]

In the present case, expert testimony is crucial in determining first, the standard medical examinations, tests, and procedures
that the attending physicians should have undertaken in the diagnosis and treatment of dengue fever; and second, the dengue
fever signs and symptoms that the attending physicians should have noticed and considered.

Both the RTC and the CA relied largely on Dr. Jaudian's expert testimony on dengue diagnosis and management to support
their finding that the petitioning doctors were guilty of breach of duty of care.

Dr. Jaudian testified that Edmer's rapid breathing, chest and stomach pain, fever, and the presence of blood in his saliva are
classic symptoms of dengue fever. According to him, if the patient was admitted for chest pain, abdominal pain, and difficulty in
breathing coupled with fever, dengue fever should definitely be considered; [51] if the patient spits coffee ground with the
presence of blood, and the patient's platelet count drops to 47,000, it becomes a clear case of dengue fever, and
bronchopneumonia can be reasonably ruled out.[52]

Furthermore, the standard of care according to Dr. Jaudian is to administer oxygen inhalation, analgesic, and fluid infusion or
dextrose.[53] If the patient had twice vomited fresh blood and thrombocytopenia has already occurred, the doctor should
order blood transfusion, monitoring of the patient every 30 minutes, hemostatic to stop bleeding, and oxygen if there is difficulty
in breathing.[54]

We find that Dr. Casumpang, as Edmer's attending physician, did not act according to these standards and, hence,
was guilty of breach of duty. We do not find Dr. Miranda liable for the reasons discussed below.

Dr. Casumpang's Negligence

a. Negligence in the Diagnosis

At the trial, Dr. Casumpang declared that a doctor's impression regarding a patient's illness is 90% based on the physical
examination, the information given by the patient or the latter's parents, and the patient's medical history. [55] He testified that he
did not consider either dengue fever or dengue hemorrhagic fever because the patient's history showed that Edmer had low
breath and voluntary submission, and that he was up and about playing basketball.[56] He based his diagnosis of
bronchopneumonia on the following observations: "difficulty in breathing, clearing run nostril, harsh breath sound, tight air, and
sivilant sound."[57]

It will be recalled that during Dr. Casumpang's first and second visits to Edmer, he already had knowledge of Edmer's
laboratory test result (CBC), medical history, and symptoms (i.e., fever, rashes, rapid breathing, chest and stomach pain, throat
irritation, difficulty in breathing, and traces of blood in the sputum). However, these information did not lead Dr. Casumpang
to the possibility that Edmer could be suffering from either dengue fever, or dengue hemorrhagic fever, as he clung to
his diagnosis of broncho pneumonia. This means that given the symptoms exhibited, Dr. Casumpang already ruled out the
possibility of other diseases like dengue.

In other words, it was lost on Dr. Casumpang that the characteristic symptoms of dengue (as Dr. Jaudian testified)
are: patient's rapid breathing; chest and stomach pain; fever; and the presence of blood in his saliva. All these manifestations
were present and known to Dr. Casumpang at the time of his first and second visits to Edmer. While he noted some of these
symptoms in confirming bronchopneumonia, he did not seem to have considered the patient's other manifestations in ruling out
dengue fever or dengue hemorrhagic fever.[58] To our mind, Dr. Casumpang selectively appreciated some, and not all of the
symptoms; worse, he casually ignored the pieces of information that could have been material in detecting dengue fever. This
is evident from the testimony of Mrs. Cortejo:

TSN, Mrs. Cortejo, November 27, 1990

Q: Now, when Dr. Casumpang visited your son for the first time at 5:30 p.m., what did he do, if any?
He examined my son by using stethoscope and after that, he confirmed to me that my son was suffering from broncho
A:
pneumonia.
Q: After he confirmed that your son was suffering broncho pneumonia, what did you say if any?
A: Again, I told Dr. Casumpang, how come it was broncho pneumonia when my son has no cough or colds.
Q: What was the answer of Dr. Casumpang to your statement?

xxxx

A: And then, Dr. Casumpang answered "THAT'S THE USUAL BRONCHO PNEUMONIA, NO COLDS, NO PHLEGM."
Q: How long did Dr. Casumpang stay in your son's room?
A: He stayed for a minute or 2.

xxxx

Q: Q: When Dr. Casumpang arrived at 9:00 o'clock a.m. on April 23, what did you tell him, if any?

xxxx

I told Dr. Casumpang... After examining my son using stethoscope and nothing more, I told Dr. Casumpang
A:
about the traces of blood in my son's sputum and I told him what is all about and he has throat irritation.
Q: What did he tell you?
A: He just nodded his head but he did not take the initiative of looking at the throat of my son.
Q: So what happened after that?
A: I also told Dr. Casumpang about his chest pain and also stomach pain.
Q: So what did Dr. Casumpang do after you have narrated all these complaints of your son?
Nothing. He also noticed the rapid breathing of my son and my son was almost moving because of rapid
A:
breathing and he is swaying in the bed.
Do you know what action was taken by Dr. Casumpang when you told him that your son is experiencing a rapid
Q:
breathing?
A: No action. He just asked me if my son has an asthma but I said none.
Q: So how long did Dr. Casumpang stay and attended your son on April 23?
A: More or less two (2) minutes then I followed him up to the door and I repeated about the fever of my son.
Q: What did he tell you, if any, regarding that information you gave him that your son had a fever?
A: He said, that is broncho pneumonia, It's only being active now. [Emphasis supplied]
We also find it strange why Dr. Casumpang did not even bother to check Edmer's throat despite knowing that as early as 9:00
in the morning of April 23, 1988, Edmer had blood streaks in his sputum. Neither did Dr. Casumpang order confirmatory tests
to confirm the source of bleeding. The Physician's Progress Notes[59] stated: "Blood streaks on phlegm can be due to bronchial
irritation or congestion" which clearly showed that Dr. Casumpang merely assumed, without confirmatory physical examination,
that bronchopneumonia caused the bleeding.

Dr. Jaudian likewise opined that Dr. Casumpang's medical examination was not comprehensive enough to reasonably lead to
a correct diagnosis.[60] Dr. Casumpang only used a stethoscope in coming up with the diagnosis that Edmer was suffering from
bronchopneumonia; he never confirmed this finding with the use of a bronchoscope. Furthermore, Dr. Casumpang based his
diagnosis largely on the chest x-ray result that is generally inconclusive.[61]

Significantly, it was only at around 5:00 in the afternoon of April 23, 1988 (after Edmer's third episode of bleeding) that Dr.
Casumpang ordered the conduct of hematocrit, hemoglobin, blood typing, blood transfusion and tourniquet tests. These tests
came too late, as proven by: (1) the blood test results that came at about 6:00 in the evening, confirming that Edmer's illness
had developed to "Dengue Hemorrhagic Fever" and (2) Dr. Jaudian's testimony that "dengue fever could have been detected
earlier than 7:30 in the evening of April 23, 1988 because the symptoms were already evident."[62]

In Spouses Flores v. Spouses Pineda,[63] a case involving a medical malpractice suit, the Court ruled that the petitioner doctors
were negligent because they failed to immediately order tests to confirm the patient's illness. Despite the doctors' suspicion
that the patient could be suffering from diabetes, the former still proceeded to the D&C operation. In that case, expert
testimony showed that tests should have been ordered immediately on admission to the hospital in view of the symptoms
presented. The Court held:

When a patient exhibits symptoms typical of a particular disease, these symptoms should, at the very least, alert the physician
of the possibility that the patient may be afflicted with the suspected disease.
The Court also ruled that reasonable prudence would have shown that diabetes and its complications were foreseeable harm.
However, the petitioner doctors failed to take this into consideration and proceeded with the D&C operation. Thus, the Court
ruled that they failed to comply with their duty to observe the standard of care to be given to hyperglycemic/diabetic patients.

Similarly, in Jarcia,[64] involving the negligence of the doctors in failing to exercise reasonable prudence in ascertaining the
extent of the patient's injuries, this Court declared that:

In failing to perform an extensive medical examination to determine the extent of Roy Jr.'s injuries, Dr. Jarcia and Dr.
Bastan were remiss of their duties as members of the medical profession. Assuming for the sake of argument that they
did not have the capacity to make such thorough evaluation at that stage, they should have referred the patient to another
doctor with sufficient training and experience instead of assuring him and his mother that everything was all right. [Emphasis
supplied]
Even assuming that Edmer's symptoms completely coincided with the diagnosis of bronchopneumonia (so that this diagnosis
could not be considered "wrong"), we still find Dr. Casumpang guilty of negligence.

First, we emphasize that we do not decide the correctness of a doctor's diagnosis, or the accuracy of the medical
findings and treatment. Our duty in medical malpractice cases is to decide - based on the evidence adduced and expert
opinion presented - whether a breach of duty took place.

Second, we clarify that a wrong diagnosis is not by itself medical malpractice.[65] Physicians are generally not liable for
damages resulting from a bona fide error of judgment. Nonetheless, when the physician's erroneous diagnosis was the result
of negligent conduct (e.g., neglect of medical history, failure to order the appropriate tests, failure to recognize symptoms), it
becomes an evidence of medical malpractice.

Third, we also note that medicine is not an exact science;[66] and doctors, or even specialists, are not expected to give a 100%
accurate diagnosis in treating patients who come to their clinic for consultations. Error is possible as the exercise of judgment
is called for in considering and reading the exhibited symptoms, the results of tests, and in arriving at definitive conclusions.
But in doing all these, the doctor must have acted according to acceptable medical practice standards.

In the present case, evidence on record established that in confirming the diagnosis of bronchopneumonia, Dr. Casumpang
selectively appreciated some and not all of the symptoms presented, and failed to promptly conduct the appropriate tests to
confirm his findings. In sum, Dr. Casumpang failed to timely detect dengue fever, which failure, especially when reasonable
prudence would have shown that indications of dengue were evident and/or foreseeable, constitutes negligence.

a. Negligence in the Treatment and Management of Dengue

Apart from failing to promptly detect dengue fever, Dr. Casumpang also failed to promptly undertake the proper medical
management needed for this disease.

As Dr. Jaudian opined, the standard medical procedure once the patient had exhibited the classic symptoms of dengue fever
should have been: oxygen inhalation, use of analgesic, and infusion of fluids or dextrose;[67] and once the patient had twice
vomited fresh blood, the doctor should have ordered: blood transfusion, monitoring of the patient every 30 minutes, hemostatic
to stop bleeding, and oxygen if there is difficulty in breathing.[68]

Dr. Casumpang failed to measure up to these standards. The evidence strongly suggests that he ordered a transfusion of
platelet concentrate instead of blood transfusion. The tourniquet test was only conducted after Edmer's second episode of
bleeding, and the medical management (as reflected in the records) did not include antibiotic therapy and complete physical
examination.

Dr. Casumpang's testimony states:

Now, after entertaining - After considering that the patient Edmer Cortero was already suffering from dengue
Q:
hemorrhagic fever, what did you do, if any?
A: We ordered close monitoring of the blood pressure, the cardiac rate and respiratory rate of the patient.
Q: Now, was your instructions carried on?
A: Yes, sir.
Q: What was the blood pressure of the patient?
A: During those times, the blood pressure of the patient was even normal during those times.
Q: How about the respiratory rate?
A: The respiratory rate was fast because the patient in the beginning since admission had difficulty in breathing.
Q: Then, after that, what did you do with the patient? Doctor?
A: We transfused platelet concentrate and at the same time, we monitor [sic] the patient.
Q: Then, who monitor [sic] the patient?
A: The pediatric resident on duty at that time.
Q: Now, what happened after that?
While monitoring the patient, all his vital signs were ________; his blood pressure was normal so we continued with the
Q:
supportive management at that time.
Q: Now, after that?
In the evening of April 23, 1988,1 stayed in the hospital and I was informed by the pediatric resident on duty at around
A:
11:15 in the evening that the blood pressure of the patient went down to .60 palpatory.
Q: What did you do upon receipt of that information?
I immediately went up to the room of the patient and we changed the IV fluid from the present fluid which was
A:
D5 0.3 sodium chloride to lactated ringers solution.
Q: You mean to say you increased the dengue [sic] of the intervenus [sic] fluid?
We changed the IV fluid because lactated ringers was necessary to resume the volume and to bring back the
A:
blood pressure, to increase the blood pressure. [Emphasis supplied]
Although Dr. Casumpang presented the testimonies of Dr. Rodolfo Jagonap and Dr. Ellewelyn Pasion (Dr. Pasion), Personnel
Officer and Medical Director of SJDH, respectively as well as the testimonies of Dr. Livelo and Dr. Reyes (the radiologist who
read Edmer's chest x-ray result), these witnesses failed to dispute the standard of action that Dr. Jaudian established in his
expert opinion. We cannot consider them expert witnesses either for the sole reason that they did not testify on the standard of
care in dengue cases.[69]

On the whole, after examining the totality of the adduced evidence, we find that the lower courts correctly did not rely on Dr.
Casumpang's claim that he exercised prudence and due diligence in handling Edmer's case. Aside from being self-serving, his
claim is not supported by competent evidence. As the lower courts did, we rely on the uncontroverted fact that he failed, as a
medical professional, to observe the most prudent medical procedure under the circumstances in diagnosing and treating
Edmer.

Dr. Miranda is Not Liable for Negligence

In considering the case of Dr. Miranda, the junior resident physician who was on-duty at the time of Edmer's confinement, we
see the need to draw distinctions between the responsibilities and corresponding liability of Dr. Casumpang, as the attending
physician, and that of Dr. Miranda.

In his testimony, Dr. Pasion declared that resident applicants are generally doctors of medicine licensed to practice in the
Philippines and who would like to pursue a particular specialty.[70] They are usually the front line doctors responsible for the first
contact with the patient. During the scope of the residency program, [71] resident physicians (or "residents")[72] function under the
supervision of attending physicians[73] or of the hospital's teaching staff. Under this arrangement, residents operate merely as
subordinates who usually defer to the attending physician on the decision to be made and on the action to be taken.

The attending physician, on the other hand, is primarily responsible for managing the resident's exercise of duties. While
attending and resident physicians share the collective responsibility to deliver safe and appropriate care to the patients, [74] it is
the attending physician who assumes the principal responsibility of patient care. [75] Because he/she exercises a supervisory
role over the resident, and is ultimately responsible for the diagnosis and treatment of the patient, the standards applicable to
and the liability of the resident for medical malpractice is theoretically less than that of the attending physician. These relative
burdens and distinctions, however, do not translate to immunity from the legal duty of care for residents, [76] or from the
responsibility arising from their own negligent act.

In Jenkins v. Clark,[77] the Ohio Court of Appeals held that the applicable standard of care in medical malpractice cases
involving first-year residents was that of a reasonably prudent physician and not that of interns. According to Jenkins:

It is clear that the standard of care required of physicians is not an individualized one but of physicians in general in the
community. In order to establish medical malpractice, it must be shown by a preponderance of the evidence that a physician
did some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under
like or similar conditions or circumstances, or that he failed or omitted to do some particular thing or things that a physician or
surgeon of ordinary skill, care and diligence would have done under like or similar conditions or circumstances, and that the
inquiry complained of was the direct result of such doing or failing to do such thing or things.

We note that the standard of instruction given by the court was indeed a proper one. It clearly informed the jury that the
medical care required is that of reasonably careful physicians or hospital emergency room operators, not of interns
or residents. [Emphasis supplied]
A decade later, Centman v. Cobb,[78] affirmed the Jenkins ruling and held that interns and first-year residents are "practitioners
of medicine required to exercise the same standard of care applicable to physicians with unlimited licenses to practice." The
Indiana Court held that although a first-year resident practices under a temporary medical permit, he/she impliedly contracts
that he/she has the reasonable and ordinary qualifications of her profession and that he/she will exercise reasonable skill,
diligence, and care in treating the patient.

We find that Dr. Miranda was not independently negligent. Although she had greater patient exposure, and was' subject to
the same standard of care applicable to attending physicians, we believe that a finding of negligence should also depend on
several competing factors, among them, her authority to make her own diagnosis, the degree of supervision of the attending
physician over her, and the shared responsibility between her and the attending physicians.

In this case, before Dr. Miranda attended to Edmer, both Dr. Livelo and Dr. Casumpang had diagnosed Edmer with
bronchopneumonia. In her testimony, Dr. Miranda admitted that she had been briefed about Edmer's condition, his medical
history, and initial diagnosis;[79]and based on these pieces of information, she confirmed the, finding of bronchopneumonia.

Dr. Miranda likewise duly reported to Dr. Casumpang, who admitted receiving updates regarding Edmer's condition. [80] There is
also evidence supporting Dr. Miranda's claim that she extended diligent care to Edmer. In fact, when she suspected - during
Edmer's second episode of bleeding - that Edmer could be suffering from dengue fever, she wasted no time in conducting the
necessary tests, and promptly notified Dr. Casumpang about the incident. Indubitably, her medical assistance led to the finding
of dengue fever.

We note however, that during Edmer's second episode of bleeding, [81] Dr. Miranda failed to immediately examine and note the
cause of the blood specimen. Like Dr. Casumpang, she merely assumed that the blood in Edmer's phlegm was caused by
bronchopneumonia. Her testimony states:

TSN, June 8, 1993:

Q: Let us get this clear, you said that the father told you the patient cocked [sic] out phlegm.
A: With blood streak.
Q: Now, you stated specimen, were you not able to examine the specimen?
A: No, sir, I did not because according to the father he wash [sic] his hands.

xxxx

Q: Now, from you knowledge, what does that indicate if the patient expels a phlegm and blood streak?
A: If a patient cocked [sic] out phlegm then the specimen could have come from the lung alone.[82] [Emphasis supplied]

xxxx
TSN, June 17, 1993:

Now, in the first meeting you had, when that was relayed to you by the father that Edmer Cortejo had coughed out blood,
Q:
what medical action did you take?
A: I examined the patient and I thought that, that coughed out phlegm was a product of broncho pneumonia.

xxxx

Q: So what examination did you specifically conduct to see that there was no internal bleeding?
At that time I did not do anything to determine the cause of coughing of the blood because I presumed that it
A: was a mucous (sic) produced by broncho pneumonia, And besides the patient did not even show any signs of
any other illness at that time.[83]
Based on her statements we find that Dr. Miranda was not entirely faultless. Nevertheless, her failure to discern the import
of Edmer's second bleeding does not necessarily amount to negligence as the respondent himself admitted that Dr.
Miranda failed to examine the blood specimen because he washed it away. In addition, considering the diagnosis previously
made by two doctors, and the uncontroverted fact that the burden of final diagnosis pertains to the attending physician (in this
case, Dr. Casumpang), we believe that Dr. Miranda's error was merely an honest mistake of judgment influenced in no small
measure by her status in the hospital hierarchy; hence, she should not be held liable for medical negligence.

Dr. Jaudian 's Professional Competence and Credibility

One of the critical issues the petitioners raised in the proceedings before the lower court and before this Court was Dr.
Jaudian's competence and credibility as an expert witness. The petitioners tried to discredit his expert testimony on the ground
that he lacked the proper training and fellowship status in pediatrics.

Criteria in Qualifying as an Expert Witness

The competence of an expert witness is a matter for the trial court to decide upon in the exercise of its discretion. The test of
qualification is necessarily a relative one, depending upon the subject matter of the investigation, and the fitness of the expert
witness.[84] In our jurisdiction, the criterion remains to be the expert witness' special knowledge experience and practical
training that qualify him/her to explain highly technical medical matters to the Court.

In Ramos v. Court of Appeals,[85] the Court found the expert witness, who is a pulmonologist, not qualified to testify on the field
of anesthesiology. Similarly, in Cereno v. Court of Appeals,[86] a 2012 case involving medical negligence, the Court excluded
the testimony of an expert witness whose specialty was anesthesiology, and concluded that an anesthesiologist cannot be
considered an expert in the field of surgery or even in surgical practices and diagnosis.

Interestingly in this case, Dr. Jaudian, the expert witness was admittedly not a pediatrician but a practicing physician who
specializes in pathology.[87] He likewise does not possess any formal residency training in pediatrics. Nonetheless, both the
lower courts found his knowledge acquired through study and practical experience sufficient to advance an expert opinion on
dengue-related cases.

We agree with the lower courts.

A close scrutiny of Ramos and Cereno reveals that the Court primarily based the witnesses' disqualification to testify as an
expert on their incapacity to shed light on the standard of care that must be observed by the defendant-physicians. That the
expert witnesses' specialties do not match the physicians' practice area only constituted, at most, one of the considerations
that should not be taken out of context. After all, the sole function of a medical expert witness, regardless of his/her specialty, is
to afford assistance to the courts on medical matters, and to explain the medical facts in issue.

Furthermore, there was no reasonable indication in Ramos and Cereno that the expert witnesses possess a sufficient
familiarity with the standard of care applicable to the physicians' specialties.

US jurisprudence on medical malpractice demonstrated the trial courts' wide latitude of discretion in allowing a specialist from
another field to testify against a defendant specialist.

In Brown v. Sims,[88] a neurosurgeon was found competent to give expert testimony regarding a gynecologist's standard of pre-
surgical care. In that case, the court held that since negligence was not predicated on the gynecologist's negligent performance
of the operation, but primarily on the claim that the pre-operative histories and physicals were inadequate, the neurosurgeon
was competent to testify as an expert.

Frost v. Mayo Clinic[89] also allowed an orthopedic surgeon to testify against a neurologist in a medical malpractice action. The
court considered that the orthopedic surgeon's opinion on the "immediate need for decompression" need not come from a
specialist in neurosurgery. The court held that:

It is well established that "the testimony of a qualified medical doctor cannot be excluded simply because he is not a specialist
x x x." The matter of "x x x training and specialization of the witness goes to the weight rather than admissibility x x x."

xxxx

It did not appear to the court that a medical doctor had to be a specialist in neurosurgery to express the opinions permitted to
be expressed by plaintiffs' doctors, e.g., the immediate need for a decompression in the light of certain neurological deficits in a
post-laminectomy patient. As stated above, there was no issue as to the proper execution of the neurosurgery. The medical
testimony supported plaintiffs' theory of negligence and causation. (Citations omitted)
In another case,[90] the court declared that it is the specialist's knowledge of the requisite subject matter, rather than
his/her specialty that determines his/her qualification to testify.

Also in Evans v. Ohanesian,[91] the court set a guideline in qualifying an expert witness:

To qualify a witness as a medical expert, it must be shown that the witness (1) has the required professional knowledge,
learning and skill of the subject under inquiry sufficient to qualify him to speak with authority on the subject; and (2)
is familiar with the standard required of a physician under similar circumstances; where a witness has disclosed
sufficient knowledge of the subject to entitle his opinion to go to the jury, the question of the degree of his knowledge goes
more to the weight of the evidence than to its admissibility.

xxxx

Nor is it critical whether a medical expert is a general practitioner or a specialist so long as he exhibits knowledge of the
subject. Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a
specialty in which he is not directly engaged but as to which he has an opinion based on education, experience,
observation, or association wit that specialty, his opinion is competent. (Emphasis supplied)
Finally, Brown v. Mladineo[92] adhered to the principle that the witness' familiarity, and not the classification by title or specialty,
which should control issues regarding the expert witness' qualifications:

The general rule as to expert testimony in medical malpractice actions is that "a specialist in a particular branch within a
profession will not be required." Most courts allow a doctor to testify if they are satisfied of his familiarity with the standards of a
specialty, though he may not practice the specialty himself. One court explained that "it is the scope of the witness' knowledge
and not the artificial classification by title that should govern the threshold question of admissibility. (Citations omitted)
Application to the Present Case

In the case and the facts before us, we find that Dr. Jaudian is competent to testify on the standard of care in dengue fever
cases.

Although he specializes in pathology, it was established during trial that he had attended not less than 30 seminars held by the
Pediatric Society, had exposure in pediatrics, had been practicing medicine for 16 years, and had handled not less than 50
dengue related cases.

As a licensed medical practitioner specializing in pathology, who had practical and relevant exposure in pediatrics and dengue
related cases, we are convinced that Dr. Jaudian demonstrated sufficient familiarity with the standard of care to be applied in
dengue fever cases. Furthermore, we agree that he possesses knowledge and experience sufficient to qualify him to speak
with authority on the subject.

The Causation Between Dr. Casumpang's Negligent Act/Omission, and the Patient's Resulting Death was Adequately
Proven

Dr. Jaudian's testimony strongly suggests that due to Dr. Casumpang's failure to timely diagnose Edmer with dengue, the latter
was not immediately given the proper treatment. In fact, even after Dr. Casumpang had discovered Edmer's real illness, he still
failed to promptly perform the standard medical procedure. We agree with these findings.

As the respondent had pointed out, dengue fever, if left untreated, could be a life threatening disease. As in any fatal diseases,
it requires immediate medical attention.[93] With the correct and timely diagnosis, coupled with the proper medical
management, dengue fever is not a life-threatening disease and could easily be cured.[94]

Furthermore, as Dr. Jaudian testified, with adequate intensive care, the mortality rate of dengue fever should fall to less than
2%. Hence, the survival of the patient is directly related to early and proper management of the illness. [95]

To reiterate, Dr. Casumpang failed to timely diagnose Edmer with dengue fever despite the presence of its characteristic
symptoms; and as a consequence of the delayed diagnosis, he also failed to promptly manage Edmer's illness. Had he
immediately conducted confirmatory tests, (i.e., tourniquet tests and series of blood tests) and promptly administered the
proper care and management needed for dengue fever, the risk of complications or even death, could have been substantially
reduced.

Furthermore, medical literature on dengue shows that early diagnosis and management of dengue is critical in reducing the
risk of complications and avoiding further spread of the virus.[96] That Edmer later died of "Hypovolemic Shock/hemorrhagic
shock," "Dengue Hemorrhagic Fever Stage IV," a severe and fatal form of dengue fever, established the causal link between
Dr. Casumpang's negligence and the injury.
Based on these considerations, we rule that the respondent successfully proved the element of causation.

Liability of SJDH

We now discuss the liability of the hospital.

The respondent submits that SJDH should not only be held vicariously liable for the petitioning doctors' negligence but also for
its own negligence. He claims that SJDH fell short of its duty of providing its patients with the necessary facilities and
equipment as shown by the following circumstances:

(a) SJDH was not equipped with proper paging system;

(b) the number of its doctors is not proportionate to the number of patients;

(c) SJDH was not equipped with a bronchoscope;

(d) when Edmer's oxygen was removed, the medical staff did not immediately provide him with portable oxygen;

(e) when Edmer was about to be transferred to another hospital, SJDH's was not ready and had no driver; and

despite Edmer's critical condition, there was no doctor attending to him from 5:30 p.m. of April 22, to 9:00 a.m. of April
(f)
23, 1988.
SJDH on the other hand disclaims liability by claiming that the petitioning doctors are not its employees but are mere
consultants and independent contractors.

We affirm the hospital's liability not on the basis of Article 2180 of the Civil Code, but on the basis of the doctrine of apparent
authority or agency by estoppel.

There is No Employer-Employee Relationship Between SJDH and the Petitioning Doctors

In determining whether an employer-employee relationship exists between the parties, the following elements must be present:
(1) selection and engagement of services; (2) payment of wages; (3) the power to hire and fire; and (4) the power to control not
only the end to be achieved, but the means to be used in reaching such an end.[97]

Control, which is the most crucial among the elements, is not present in this case.

Based on the records, no evidence exists showing that SJDH exercised any degree of control over the means, methods of
procedure and manner by which the petitioning doctors conducted and performed their medical profession. SJDH did not
control their diagnosis and treatment. Likewise, no evidence was presented to show that SJDH monitored, supervised, or
directed the petitioning doctors in the treatment and management of Edmer's case. In these lights, the petitioning doctors were
not employees of SJDH, but were mere independent contractors.

SJDH is Solidarity Liable Based on The Principle of Agency or Doctrine of Apparent Authority

Despite the absence of employer-employee relationship between SJDH and the petitioning doctors, SJDH is not free from
liability.[98]
As a rule, hospitals are not liable for the negligence of its independent contractors. However, it may be found liable if the
physician or independent contractor acts as an ostensible agent of the hospital. This exception is also known as the "doctrine
of apparent authority."[99]

The US case of Gilbert v. Sycamore Municipal Hospital[100] abrogated the hospitals' immunity to vicarious liability of
independent contractor physicians. In that case, the Illinois Supreme Court held that under the doctrine of apparent authority,
hospitals could be found vicariously liable for the negligence of an independent contractor:

Therefore, we hold that, under the doctrine of apparent authority, a hospital can be held vicariously liable for the negligent acts
of a physician providing care at the hospital, regardless of whether the physician is an independent contractor, unless the
patient knows, or should have known, that the physician is an independent contractor. The elements of the action have been
set out as follows:

For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that: (1) the hospital, or its agent,
acted in a manner that would lead a reasonable person to conclude that the individual who was alleged to be
negligent was an employee or agent of the hospital; (2) where the acts of the agent create the appearance of
authority, the plaintiff must also prove that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff
acted in reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.
(Emphasis supplied)
The doctrine was applied in Nogales v. Capitol Medical Center[101] where this Court, through the ponencia of Associate Justice
Antonio T. Carpio, discussed the two factors in determining hospital liability as follows:

The first factor focuses on the hospital's manifestations and is sometimes described as an inquiry whether the hospital acted in
a manner which would lead a reasonable person to conclude that the individual who was alleged to be negligent was an
employee or agent of the hospital. In this regard, the hospital need not make express representations to the patient that the
treating physician is an employee of the hospital; rather a representation may be general and implied.

xxxx

The second factor focuses on the patient's reliance. It is sometimes characterized as an inquiry on whether the plaintiff acted in
reliance upon the conduct of the hospital or its agent, consistent with ordinary care and prudence. (Citation omitted)
In sum, a hospital can be held vicariously liable for the negligent acts of a physician (or an independent contractor) providing
care at the hospital if the plaintiff can prove these two factors: first, the hospital's manifestations; and second, the patient's
reliance.

a. Hospital's manifestations

It involves an inquiry on whether the hospital acted in a manner that would lead a reasonable person to conclude that the
individual alleged to be negligent was an employee or agent of the hospital. As pointed out in Nogales, the hospital need not
make express representations to the patient that the physician or independent contractor is an employee of the hospital;
representation may be general and implied.[102]

In Pamperin v. Trinity Memorial Hospital,[103] questions were raised on "what acts by the hospital or its agent are sufficient to
lead a reasonable person to conclude that the individual was an agent of the hospital." In ruling that the hospital's
manifestations can be proven without the express representation by the hospital, the court relied on several cases from other
jurisdictions, and held that:

the hospital, by providing emergency room care and by failing to advise patients that they were being treated by the
(1)
hospital's agent and not its employee, has created the appearance of agency; and

patients entering the hospital through the emergency room, could properly assume that the treating doctors and staff of
(2)
the hospital were acting on its behalf.
In this case, the court considered the act of the hospital of holding itself out as provider of complete medical care, and
considered the hospital to have impliedly created the appearance of authority.

b. Patient's reliance

It involves an inquiry on whether the plaintiff acted in reliance on the conduct of the hospital or its agent, consistent with
ordinary care and prudence.[104]

In Pamperin, the court held that the important consideration in determining the patient's reliance is: whether the plaintiff is
seeking care from the hospital itself or whether the plaintiff is looking to the hospital merely as a place for his/her personal
physician to provide medical care.[105]

Thus, this requirement is deemed satisfied if the plaintiff can prove that he/she relied upon the hospital to provide care and
treatment, rather than upon a specific physician. In this case, we shall limit the determination of the hospital's apparent
authority to Dr. Casumpang, in view of our finding that Dr. Miranda is not liable for negligence.

SJDH Clothed Dr. Casumpang With Apparent Authority

SJDH impliedly held out and clothed Dr. Casumpang with apparent authority leading the respondent to believe that he is an
employee or agent of the hospital.

Based on the records, the respondent relied on SJDH rather than upon Dr. Casumpang, to care and treat his son Edmer. His
testimony during trial showed that he and his wife did not know any doctors at SJDH; they also did not know that Dr.
Casumpang was an independent contractor. They brought their son to SJDH for diagnosis because of their family doctor's
referral. The referral did not specifically point to Dr. Casumpang or even to Dr. Miranda, but to SJDH.

Significantly, the respondent had relied on SJDH's representation of Dr. Casumpang's authority. To recall, when Mrs. Cortejo
presented her Fortune Care card, she was initially referred to the Fortune Care coordinator, who was then out of town. She
was thereafter referred to Dr. Casumpang, who is also accredited with Fortune Care. In both instances, SJDH through its agent
failed to advise Mrs. Cortejo that Dr. Casumpang is an independent contractor.

Mrs. Cortejo accepted Dr. Casumpang's services on the reasonable belief that such were being provided by SJDH or its
employees, agents, or servants. By referring Dr. Casumpang to care and treat for Edmer, SJDH impliedly held out Dr.
Casumpang, not only as an accredited member of Fortune Care, but also as a member of its medical staff. SJDH
cannot now disclaim liability since there is no showing that Mrs. Cortejo or the respondent knew, or should have known, that
Dr. Casumpang is only an independent contractor of the hospital. In this case, estoppel has already set in.

We also stress that Mrs. Cortejo's use of health care plan (Fortune Care) did not affect SJDH's liability. The only effect of the
availment of her Fortune Care card benefits is that her choice of physician is limited only to physicians who are accredited with
Fortune Care. Thus, her use of health care plan in this case only limited the choice of doctors (or coverage of services, amount
etc.) and not the liability of doctors or the hospital.

WHEREFORE, premises considered, this Court PARTLY GRANTS the consolidated petitions. The Court finds Dr. Noel
Casumpang and San Juan de Dios Hospital solidarity liable for negligent medical practice. We SET ASIDE the finding of
liability as to Dr. Ruby Sanga-Miranda. The amounts of P45,000.00 as actual damages and P500,000.00 as moral damages
should each earn legal interest at the rate of six percent (6%) per annum computed from the date of the judgment of the trial
court. The Court AFFIRMS the rest of the Decision dated October 29, 2004 and the Resolution dated January 12, 2006 in CA-
G.R. CV No. 56400.

SO ORDERED.

G.R. No. 204095 June 15, 2015

DR. JAIME T. CRUZ, Petitioner,

vs.
FELICISIMO V. AGAS, JR., Respondent.

DECISION

MENDOZA, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court assails the May 22, 2012 Decision1 and October 18,
2012 Resolution2 of the Court of Appeals (CA), in CA-G.R. SP No. 111910, which affirmed the March 2, 20073 and September
23, 20094 Resolutions of the Secretary of Justice. The said resolutions let stand the February 16, 2004 Resolution of the Office
of the Prosecutor of Quezon City, dismissing the complaint of petitioner Dr. Jaime T. Cruz (Dr. Cruz) for Serious Physical
Injuries through Reckless Imprudence and Medical Malpractice against respondent, Dr. Felicisimo V. Agas, Jr. (Dr. Agas).

The Antecedents

In his Complaint-Affidavit5 for Serious Physical Injuries through Reckless Imprudence and Medical Malpractice against Dr.
Agas, Dr. Cruz alleged, among others, that sometime in May 2003, he engaged the services of St. Lukes Medical Center
(SLMC)for a medical check-up; that after being admitted in SLMC on May 28, 2003,he underwent stool, urine, blood, and other
body fluid tests conducted by the employees and doctors of the said hospital; that on May 29, 2003, he was sent to the Gastro-
Enterology Department for a scheduled gastroscopy and colonoscopy; that because the specialist assigned to perform the
procedure was nowhere to be found, he gave the colonoscopy results to the attending female anesthesiologist for the
information and consideration of the assigned specialist; that, thereafter, he was sedated and the endoscopic examination was
carried out; that when he regained consciousness, he felt that something went wrong during the procedure because he felt
dizzy, had cold clammy perspiration and experienced breathing difficulty; that he could not stand or sit upright because he felt
so exhausted and so much pain in his abdomen; that when he was about to urinate in the comfort room, he collapsed; that he
tried to consult the specialist who performed the colonoscopy but he was nowhere to be found; and that his cardiologist, Dra.
Agnes Del Rosario, was able to observe his critical condition and immediately referred him to the surgical department which
suspected that he had hemorrhage in his abdomen and advised him to undergo an emergency surgical operation.

Dr. Cruz further averred that he agreed to the operation and upon waking up at the ICU on May 30, 2003, he found out that the
doctors did an exploratory laparatomy because of the internal bleeding; that he learned that the doctors cut a portion of the left
side of his colon measuring 6-8 inches because it had a partial tear of the colonic wall which caused the internal bleeding; that
despite the painkillers, he was under tremendous pain in the incision area during his recovery period in the ICU and had fever;
and that he had intravenous tubes attached to his arms, subclavian artery on the left part of his chest and a nasogastric tube
through his nose.

Dr. Cruz claimed that Dr. Agas admitted that he was the one who performed the colonoscopy procedure but the latter insisted
that nothing went wrong. On June 7, 2003,he was discharged from SLMC. Nevertheless, he complained that he had a hard
time digesting his food; that he was frequently fed every two hours because he easily got full; that he had fresh blood stools
every time he moved his bowel; that he had lost his appetite and had gastric acidity; that he slept most of the day; and that he
was in good physical condition before the colonoscopy procedure. He asserted that at the time of the filing of the complaint, he
was still weak, tired and in pain.

Defense of Dr. Agas

Dr. Agas, on the other hand, countered that Dr. Cruz failed to prove the basic elements of reckless imprudence or negligence.
He averred that Dr. Cruz unfairly made it appear that he did not know that he would perform the procedure. He explained that
before the start of the colonoscopy procedure, he was able to confer with Dr. Cruz and review his medical history which was
taken earlier by a fellow gastrointestinal physician. He claimed that the gastroscopy and colonoscopy procedures conducted on
Dr. Cruz were completely successful considering that the latter did not manifest any significant adverse reaction or body
resistance during the procedures and that his vital signs were normal throughout the procedure. 6

Dr. Agas added that certifications and sworn statements were submitted by the Assistant Medical Director for Professional
Services, the Director of the Institute of Digestive Diseases, the anesthesiologist, and the hospital nurse attesting to the fact
that the intraperitonial bleeding which developed after the colonoscopy procedure, was immediately recognized, evaluated,
carefully managed, and corrected; that he provided an adequate and reasonable standard of care to Dr. Cruz; that the
endoscopist followed all precautionary measures; that the colonoscopy procedure was done properly; that he was not
negligent or reckless in conducting the colonoscopy procedure; that he did not deviate from any standard medical norm,
practice or procedure; and that he exercised competence and diligence in rendering medical services to Dr. Cruz.7

Antecedents at the Prosecution Level

On February 16, 2004, the Office of the City Prosecutor (OCP) issued a resolution dismissing the complaint for Serious
Physical Injuries through Reckless Imprudence and Medical Malpractice. Aggrieved, Dr. Cruz filed a petition for review with the
Department of Justice (DOJ)but the same was dismissed in its March 2, 2007 Resolution. Dr. Cruz filed a motion for
reconsideration but it was denied by the DOJ in its September 23, 2009 Resolution.8

At the Court of Appeals

Not satisfied, Dr. Cruz filed a petition for certiorari before the CA questioning the unfavorable DOJ resolutions. On May 22,
2012, the CA rendered a decision affirming the said DOJ resolutions. The CA explained that, as a matter of sound judicial
policy, courts would not interfere with the public prosecutors wide discretion of determining probable cause in a preliminary
investigation unless such executive determination was tainted with manifest error or grave abuse of discretion. It stated that the
public prosecutors finding of lack of probable cause against Dr. Agas was in accordance with law and that his alleged
negligence was not adequately established by Dr. Cruz.

The CA also declared that Dr. Cruz failed to state in his Complaint-Affidavit the specific procedures that Dr. Agas failed to do
which a reasonable prudent doctor would have done, or specific norms he failed to observe which a reasonably prudent doctor
would have complied with. The CA pointed out that Dr. Agas was able to satisfactorily explain in his Counter-Affidavit that the
complications suffered by Dr. Cruz was not caused by his negligence or was the result of medical malpractice. Dr. Agas
explained as follows:

That the complication was due to the abnormal condition and configuration of the digestive system, colon in particular, of the
complainant and not from any negligent act in connection with the conduct of colonoscopy. The surgical findings (xxx) revealed
marked adhesions in the sigmoid colon which is not and never within my control. That the tear in the serosa (the outermost
layer of the colonic wall which has 4 layers) happened likely because of the marked interloop adhesions and tortuousity of the
sigmoid segment of the colon. These adhesions that connect the serosa to the peritoneal lining of each loop detached from the
serosa during the procedure. It is not possible to detect the presence of marked adhesions prior to the endoscopic procedure
because no clinical findings, laboratory tests or diagnostic imaging such as x-ray, ultrasound or computed tomography (CT
scan) of the abdomen can diagnose these conditions. This can only be detected by surgically opening up the abdomen.
Moreover, marked adhesions and serosal tear, in particular, cannot likewise be detected by colonoscopy because they are in
the outer wall of the colon and only the inner lining of the colon is within the view of the colonoscope (camera). 9

The CA further wrote that the counter-affidavit of Dr. Agas was supported by the sworn affidavit of Dr. Jennifel S. Bustos, an
anesthesiologist at the SLMC and the affidavit of Evelyn E. Daulat, a nurse at SLMC, both swearing under oath that Dr. Agas
was not negligent in conducting a gastroscopy and colonoscopy procedure on Dr. Cruz and the certification issued by the
Hospital Ethics Committee which stated that Dr. Cruz was given an adequate and reasonable standard of care; that Dr. Agas
followed all precautionary measures in safeguarding Dr. Cruz from any possible complications; and that the colonoscopy was
done properly.

Hence, this petition.

ISSUE

WHETHER OR NOT THE CA WAS CORRECT IN AFFIRMING THE DECISION OF THE DOJ THAT NO PROBABLE CAUSE
EXISTS FOR FILING AN INFORMATION AGAINST THE RESPONDENT, THAT THE RESPONDENT WAS NOT
NEGLIGENT AND THAT THERE WAS NO DENIAL OF DUE PROCESS.

Non-interference with Executive

Determination of Probable Cause
in Preliminary Investigations

Under the doctrine of separation of powers, courts have no right to directly decide on matters over which full discretionary
authority has been delegated to the Executive Branch of the Government, or to substitute their own judgment for that of the
Executive Branch, represented in this case by the Department of Justice. The settled policy is that the courts will not interfere
with the executive determination of probable cause for the purpose of filing an Information, in the absence of grave abuse of
discretion. That abuse of discretion must be so patent and gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law or to act at all in contemplation of law, such as where the power is exercised in an
arbitrary and despotic manner by reason of passion or hostility.

Medical Negligence and

Malpractice Not Established

In the case at bench, Dr. Cruz failed to show that the DOJ gravely abused its discretion in finding that there was lack of
probable cause and dismissing the complaint against Dr. Agas for Serious Physical Injuries through Reckless Imprudence and
Medical Malpractice.

A medical negligence case can prosper if the patient can present solid proof that the doctor, like in this case, either failed to do
something which a reasonably prudent doctor would have done, or that he did something that a reasonably prudent doctor
would not have done, and such failure or action caused injury to the patient.

To successfully pursue this kind of case, a patient must only prove that a health care provider either failed to do something
which a reasonably prudent health care provider would have done, or that he did something that a reasonably prudent provider
would not have done; and that failure or action caused injury to the patient. Simply put, the elements are duty, breach, injury
and proximate causation.10

In this case, Dr. Cruz has the burden of showing the negligence or recklessness of Dr. Agas. Although there is no dispute that
Dr. Cruz sustained internal hemorrhage due to a tear in the serosa of his sigmoid colon, he failed to show that it was caused by
Dr. Agass negligent and reckless conduct of the colonoscopy procedure. In other words, Dr. Cruz failed to show and explain
that particular negligent or reckless act or omission committed by Dr. Agas. Stated differently, Dr. Cruz did not demonstrate
that there was "inexcusable lack of precaution" on the part of Dr. Agas.

Res Ipsa Loquitur Doctrine

Not Applicable Against Respondent

Literally, res ipsa loquitur means the thing speaks for itself. It is the rule that the fact of the occurrence of an injury, taken with
the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima
facie case, and present a question of fact for defendant to meet with an explanation. 11

The requisites for the applicability of the doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which
caused the injury was under the control and management of the defendant; (3) the occurrence was such that in the ordinary
course of things, would not have happened if those who had control or management used proper care; and (4) the absence of
explanation by the defendant. Of the foregoing requisites, the most instrumental is the control and management of the thing
which caused the injury.12

In this case, the Court agrees with Dr. Agas that his purported negligence in performing the colonoscopy on Dr. Cruz was not
immediately apparent to a layman to justify the application of res ipsa loquitur doctrine.

Dr. Agas was able to establish that the internal bleeding sustained by Dr. Cruz was due to the abnormal condition and
configuration of his sigmoid colon which was beyond his control considering that the said condition could not be detected
before a colonoscopic procedure. Dr. Agas adequately explained that no clinical findings, laboratory tests, or diagnostic
imaging, such as x-rays, ultrasound or computed tomography (CT) scan of the abdomen, could have detected this condition
prior to an endoscopic procedure. Specifically, Dr. Agas wrote:

On the other hand, in the present case, the correlation between petitioners injury, i.e., tear in the serosa of sigmoid colon, and
the colonoscopy conducted by respondent to the petitioner clearly requires the presentation of an expert opinion considering
that no perforation of the sigmoid colon was ever noted during the laparotomy. It cannot be overemphasized that the
colonoscope inserted by the respondent only passed through the inside of petitioners sigmoid colon while the damaged tissue,
i.e., serosa, which caused the bleeding, is located in the outermost layer of the colon. It is therefore impossible for the
colonoscope to touch, scratch, or even tear the serosa since the said membrane is beyond reach of the colonoscope in the
absence of perforation on the colon.13

Dr. Cruz failed to rebut this.

WHEREFORE, the petition is DENIED.

G.R. No. 192973 September 29, 2014

PEDRITO DELA TORRE, Petitioner,

vs.
DR. ARTURO IMBUIDO, DRA. NORMA IMBUIDO in their capacity as owners and operators of DIVINE SPIRIT GENERAL
HOSPITAL and/or DR. NESTOR PASAMBA, Respondents.

RESOLUTION

REYES, J.:

This resolves the petition for review on certiorari1 filed by petitioner Pedrito Dela Torre (Pedrito) assailing the Decision2 dated
December 15, 2009 and Resolution3 dated July 27, 2010 of the Court of Appeals (CA) in CA-G.R. CV No. 78534.

The case stemmed from a complaint4 for damages filed by Pedrito against herein respondents Dr. ArturoImbuido and Dr.
Norma Imbuido (Dr. Norma), in their capacity as the ownersand operators of the Divine Spirit General Hospital in Olongapo
City, and Dr. Nestor Pasamba (Dr. Nestor) (respondents). Pedrito alleged in his complaint that he was married to one Carmen
Castillo Dela Torre(Carmen), who died while admitted at the Divine Spirit General Hospital on February 13, 1992. Carmen was
due to give birth on February 2,1992 and was brought at around 11:30 p.m. on that day by Pedrito to the Divine Spirit General
Hospital. When Carmen still had not delivered her baby at the expected time, Dr. Norma discussed with Pedrito the possibility
of a caesarean section operation.5

At around 3:00 p.m. on February 3, 1992, Carmen was brought to the hospitals operating room for her caesarian section
operation, which was to be performed by Dr. Nestor. By 5:30 p.m. of the same day, Pedrito was informed of his wifes delivery
of a baby boy. In the early morning of February 4, 1992, Carmen experienced abdominal pain and difficulty in urinating. She
was diagnosed to be suffering from urinary tract infection (UTI), and was prescribed medications by Dr. Norma. On February
10, 1992, Pedrito noticed that Carmens stomach was getting bigger, but Dr. Norma dismissed the patients condition as mere
flatulence (kabag).6

When Carmens stomach still grewbigger despite medications, Dr. Norma advised Pedrito of the possibility of a second
operation on Carmen. Dr. Norma, however, provided no detailson its purpose and the doctor who would perform it. At around
3:00 p.m. on February 12, 1992, Carmen had her second operation. Later in the evening, Dr. Norma informed Pedrito that
"everything was going on fine with [his] wife."7

The condition of Carmen, however, did not improve. It instead worsened that on February 13, 1992, she vomited dark red
blood. At 9:30 p.m. on the same day, Carmen died.8 Per her certificate of death upon information provided by the hospital,the
immediate cause of Carmens death was "cardio-respiratory arrest secondary to cerebro vascular accident, hypertension and
chronic nephritis induced by pregnancy."9 An autopsy Report10 prepared by Dr. Richard Patilano(Dr. Patilano), Medico-Legal
Officer-Designate of Olongapo City, however, provided that the cause of Carmens death was "shock due to peritonitis, severe,
with multiple intestinal adhesions; Status post C[a]esarian Section and Exploratory Laparotomy."

Pedrito claimed in his complaint that the respondents "failed to exercise the degree of diligence required of them" as members
of the medical profession, and were "negligent for practicing surgery on [Carmen] in the most unskilled, ignorant and cruel
manner, x x x[.]"11

In their answer12 to the complaint, the respondents argued that they "observed the required standard of medical care in
attending to the needs of Carmen."13 The respondents explained that Carmen was admitted in Divine Spirit General Hospital
for "pregnancy in labor and pre-eclampsia." Her condition was closely monitored during her confinement. A caesarian section
operation became necessary, as she manifested no significant progress for the spontaneous delivery of her baby. 14 No
unusual events were observed during the course of Carmens caesarian section operation. The second surgery, however,
became necessary due to suspected intestinal obstruction and adhesions. This procedure was fully explained to Carmen and
Pedrito prior to its conduct. During the second operation, the diagnosis of intestinal obstruction and adhesion was confirmed
but resolved by her doctors. Despite the observance of due care by the doctors, however, Carmen died on February 13,
1992.15

The respondents included in their answer a counterclaim for 48,515.58 as unpaid hospital charges, professional fees and
medicines, 3,000,000.00 for moral damages, 1,500,000.00 for exemplary damages, and attorneys fees.16

After the pre-trial conference, trial proper ensued. To support his claim, Pedrito presented the testimony of Dr. Patilano, the
medicolegal officer who conducted an autopsy on the body of Carmen upon a telephone request made by the City Health
Officer of Olongapo City, Dr. Generoso Espinosa. Among Dr. Patilanos observations, as narrated in the lower courts decision,
were as follows:

In the intestines, [Dr. Patilano] found outthat it was more reddish than the normal condition which is supposed to bepinkish.
There was presence of adhesions, meaning, it sticks to each other and these areas were dilated. There were constricted
areas. He concluded that there might have been foreign organic matters in the intestines. He did not see any swelling but
assuming that there was, it would be concomitant to the enlargement. x x x He came to the conclusion that the cause of death
was peritonitis, with the multiple adhesions status in the post caesarian section. In connection with peritonitis, this is the
inflammation of the abdomen. This peritonitis in the abdominal cavity may be caused by several conditions which are
supposed to be infections, entrance of foreign bodies in the intestines in connection with ruptured peptic ulcer or [may be]
somewhere in the spleen. The entrance of foreign object in the abdominal cavities may cause severe infections of the intra-
abdominal cavities resulting [in] multiple adhesions of the intestines. In cases of surgical operation, it [may be] due to the
conditions of the instruments used, the materials used in the operating room being not aseptic and the ladies assisting the
operation were not in uniform. x x x.17
Dr. Patilano claimed that peritonitis could have been prevented through proper medical procedures and medicines. He also
stated that if the cause of Carmens death was actually cerebro-vascular accident, there would have been ruptured blood
vessels and blood clot in her head; but there were none in Carmens case. 18

Among those who testified to refutePedritos claim was Dr. Nestor. He claimed that when Carmen was referred to him on
February 3, 1992, she was in full term uterine pregnancy, with pre-eclampsia, fetal distress and active labor pains. A caesarian
section operation became necessary to terminate the pregnancy for her safety. Carmen was ready to go home four days after
giving birth, but was advised by the doctors to stay more because of her persistent hypertension. 19

The second surgery performed on Carmen was necessary after she showed symptoms of intestinal obstruction, which
happens as the intestines get twisted due to adhesions and the normal flow of intestinal contents are obstructed. For Dr.
Nestor, this occurrence was not preventable since any interference of the abdominal cavity would irritate the serosa of the
intestines, inviting adhesions that could cause obstruction. Surgery could remedy the adhesions and obstruction.20 Both
Carmen and Pedrito gave their written consent to this second procedure. 21

Dr. Bienvenido G. Torres (Dr. Torres), Chief of the Medico-Legal Division of the Philippine National Police (PNP) Crime
Laboratory Service,22 also testified for the respondents.He claimed that based on Dr. Patilanos report, vital internal organs of
Carmen, such as her brain, lungs, kidneys, liver and adrenal glands, were not examined during the autopsy. 23

On January 28, 2003, the Regional Trial Court (RTC) of Olongapo City, Branch 75, rendered its Decision 24 in favor of Pedrito.
The trial court gave greater weight to the testimony of Dr. Patilano and thus disposed of the case as follows:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the defendants, ordering
the latter to pay jointly and severally, the former, the following sums of money, to wit:

1.) the sum of Php 28,759.46 as actual damages;

2.) the sum of Fifty Thousand (Php 50,000.00) Pesos as indemnity for the death of Carmen dela Torre;

3.) the sum of Fifty Thousand (Php 50,000.00) Pesos as moral damages and the further sum of Twenty Thousand
(Php 20,000.00) Pesos as exemplary damages;

4.) the sum of Twenty Thousand (Php 20,000.00) Pesos as attorneys fees; and

5.) the costs of [suit].

SO ORDERED.25

Dissatisfied with the RTC ruling, the respondents appealed to the CA. On December 15, 2009, the CA rendered its Decision
reversing and setting aside the decision of the RTC. For the appellate court, it was not established that the respondents failed
to exercisethe degree of diligence required of them by their profession as doctors. The CA also granted the respondents
counterclaim for the amount of 48,515.58, as it held:

WHEREFORE, the Decision of the Regional Trial Court of Olongapo City dated January 28, 2003 in Civil Case No. 165-0-92 is
hereby REVERSED AND SET ASIDE.
Plaintiff-appellee is directed to pay the unpaid balance for hospital bills, professional fees and other expenses in the amount of
[P]48,515.58.

SO ORDERED.26

Hence, this petition for review on certiorariin which Pedrito insists that the respondents should be held liable for the death of
Carmen.

The petition is denied.

"[M]edical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or
her to redress a wrong committed by a medical professionalwhich has caused bodily harm." In order to successfully pursue
such a claim, a patient, or his or her family as in this case, "must prove that a health care provider, in most cases a physician,
either failed to do something which a reasonably prudent health care provider would have done, or that he or she did
something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient."27

The Court emphasized in Lucas, et al. v. Tuao28 that in medical negligence cases, there is a physician-patient relationship
between the doctor and the victim, but just like in any other proceeding for damages, four essential elements must be
established by the plaintiff, namely: (1) duty; (2) breach; (3) injury; and (4) proximate causation. All four elements must be
present in order to find the physician negligent and, thus, liable for damages.29

It is settled that a physicians duty tohis patient relates to his exercise of the degree of care, skill and diligence which
physicians in the same general neighborhood, and in the same general line of practice, ordinarily possess and exercise in like
cases. There is breach of this duty when the patient is injured in body or in health. Proof of this breach rests upon the
testimony of an expert witness that the treatment accorded to the patient failed to meet the standard level of care, skill and
diligence. To justify an award of damages, the negligence of the doctor must be established to be the proximate cause of the
injury.30

Through the instant petition, Pedritoseeks the reinstatement of the decision of the RTC whose finding of the respondents
medical negligence depended mainly on the testimony of Dr. Patilano. Upon review, however, the Court agrees with the CA
that the report and testimony of Dr. Patilano failed to justify Pedritos entitlement to the damages awarded by the RTC.

For the trial court to give weightto Dr. Patilanos report, it was necessary to show first Dr. Patilanos specialization and
competence to testify on the degree of care, skill and diligence needed for the treatment of Carmens case. Considering that it
was not duly established that Dr. Patilano practiced and was an expert inthe fields that involved Carmens condition, he could
not have accurately identified the said degree of care, skill, diligence and the medical procedures that should have been
applied by her attending physicians.

Similarly, such duty, degree of care, skill and diligence were not sufficiently established in this case because the testimony of
Dr. Patilano was based solely on the results of his autopsy on the cadaver of Carmen. His study and assessment were
restrictedby limitations that denied his full evaluation of Carmens case. He could have only deduced from the injuries apparent
in Carmens body, and in the condition when the body was examined. Judging from his testimony, Dr. Patilano did not even
take full consideration of the medical history of Carmen, her actual health condition at the time of hospital admission, and her
condition as it progressed while she was being monitored and treated by the respondents. There was also no reference to the
respondents defense that the emergency caesarian section operation had to be performed in order to protect the lives and
safety of Carmen and her then unborn child. For lack of sufficient information on Carmens health condition while still alive, Dr.
Patilano could not have fully evaluated the suitability of the respondents decisions in handling Carmens medical condition as it
turned critical.

On the other hand, the CA pointed out that Dr. Nestor, a surgeon, possessed the reasonable degree of learning, skill and
experience required by his profession for the treatment ofCarmen. The respondents also emphasized in their pleadings
beforethe RTC that Dr. Nestor had his training and experience in surgery and obstetrics since 1970.1wphi1Without sufficient
proof from the claimant on a different degree of care, skill and diligence that should be expected from the respondents, it could
not be said with certainty that a breachwas actually committed.

Moreover, while Dr. Patilano opined that Carmen died of peritonitis which could be due to the poor state of the hospital
equipment and medical supplies used during her operation, there was no sufficient proof that any such fault actually attended
the surgery of Carmen, caused her illness and resulted in her death. It is also significant that the Chief of the Medico-Legal
Division of the PNP Crime Laboratory Service, Dr. Torres, testified before the trial court that based on the autopsy report
issued by Dr. Patilano, the latter did not comply with the basic autopsy procedure when he examined the cadaver of Carmen.
Dr. Patilano did not appear to have thoroughly examined Carmens vital organs such as her heart, lungs, uterus and brain
during the autopsy. His findings were then inconclusive on the issue of the actual cause of Carmen's death, and the claim of
negligence allegedly committed by the respondents.

As the Court held in Spouses Flores v. Spouses Pineda, et al.,31 the critical and clinching factor in a medical negligence case is
proof of the causal connection between the negligence and the injuries. The claimant must prove not only the injury but also
the defendant's fault, and that such fault caused the injury. A verdict in a malpractice action cannot be based on speculation or
conjecture. Causation must be proven within a reasonable medical probability based upon competent expert
testimony,32 which the Court finds absent in the case at bar. As regards the respondents' counterclaim, the CA's award of
48,515.58 is sustained, considering that among the parties' stipulations during the pre-trial indicated:

5. That at the time of the death of the patient Carmen C. dela Torrell there was an unpaid balance for hospital bills,
professional fees and other expenses in the amount of 48,515.58, incurred by plaintiff when the patient was confined at said
hospital from February 3 to 13, 1992.33

WHEREFORE, the petition is DENIED. The Decision dated December 15, 2009 and Resolution dated July 27, 2010 of the
Court of Appeals in CA-G.R. CV No. 78534 are AFFIRMED.

SO ORDERED.

G.R. No. 210445, December 07, 2015

NILO B. ROSIT, Petitioner, v. DAVAO DOCTORS HOSPITAL AND DR. ROLANDO G. GESTUVO, Respondent.

DECISION

VELASCO JR., J.:

The Case
This is a petition filed under Rule 45 of the Rules of Court assailing the Decision and Resolution dated January 22, 2013 1 and
November 7, 2013,2 respectively, of the Court of Appeals, Cagayan De Oro City (CA), in CA-G.R. CV No. 00911-MIN. The CA
Decision reversed the Decision dated September 14, 20043of the Regional Trial Court, Branch 33 in Davao City-(RTC) in Civil
Case No. 27,354-99, a suit for damages thereat which Nilo B. Rosit (Rosit) commenced against Dr. Rolando Gestuvo (Dr.
Gestuvo).

Factual Antecedents

On January 15, 1999, Rosit figured in a motorcycle accident. The X-ray soon taken the next day at the Davao Doctors Hospital
(DDH) showed that he fractured his jaw. Rosit was then referred to Dr. Gestuvo, a specialist in mandibular injuries, 4 who, on
January 19, 1999, operated on Rosit.

During the operation, Dr. Gestuvo used a metal plate fastened to the jaw with metal screws to immobilize the mandible. As the
operation required the smallest screws available, Dr. Gestuvo cut the screws on hand to make them smaller. Dr. Gestuvo knew
that there were smaller titanium screws available in Manila, but did not so inform Rosit supposing that the latter would not be
able to afford the same.5

Following the procedure, Rosit could not properly open and close his mouth and was in pain. X-rays done on Rosit two (2)
days after the operation showed that the fracture in his jaw was aligned but the screws used on him touched his molar. Given
the X-ray results, Dr. Gestuvo referred Rosit to a dentist. The dentist who checked Rosit, Dr. Pangan, opined that another
operation is necessary and that it is to be performed in Cebu.6

Alleging that the dentist told him that the operation conducted on his mandible was improperly done, Rosit went back to Dr.
Gestuvo to demand a loan to defray the cost of the additional operation as well as the expenses of the trip to Cebu. Dr.
Gestuvo gave Rosit P4,500.

Rosit went to Cebu on February 19, 1999, still suffering from pain and could hardly open his mouth.

In Cebu, Dr. Pangan removed the plate and screws thus installed by Dr. Gestuvo and replaced them with smaller titanium plate
and screws. Dr. Pangan also extracted Rosit's molar that was hit with a screw and some bone fragments. Three days after the
operation, Rosit was able to eat and speak well and could open and close his mouth normally.7

On his return to Davao, Rosit demanded that Dr. Gestuvo reimburse him for the cost of the operation and the expenses he
incurred in Cebu amounting to P140,000, as well as for the P50,000 that Rosit would have to spend for the removal of the plate
and screws that Dr. Pangan installed. Dr. Gestuvo refused to pay. 8

Thus, Rosit filed a civil case for damages and attorney's fees with the RTC against Dr. Gestuvo and DDH, the suit docketed as
Civil Case No. 27,354-99.

The Ruling of the Regional Trial Court

The RTC freed DDH from liability on the ground that it exercised the proper diligence in the selection and supervision of Dr.
Gestuvo, but adjudged Dr. Gestuvo negligent and ruled, thus:
FOR ALL THE FOREGOING, finding the plaintiff Nilo B. Rosit to have preponderantly established his cause of action in the
complaint against defendant Dr. Rolando G. Gestuvo only, judgment is hereby rendered for the plaintiff and against said
defendant, ordering the defendant DR. ROLANDO G. GESTUVO to pay unto plaintiff NILO B. ROSIT the
following:chanRoblesvirtualLawlibrary
 a) the sum of ONE HUNDRED FORTY THOUSAND ONE HUNDRED NINETY NINE PESOS and 13/100
(P140,199.13) representing reimbursement of actual expenses incurred by plaintiff in the operation and re-operation
of his mandible;

b) the sum of TWENTY NINE THOUSAND AND SIXTY EIGHT PESOS (P29,068.00) representing reimbursement of
the filing fees and appearance fees;

c) the sum of ONE HUNDRED FIFTY THOUSAND PESOS (P150,000.00) as and for attorney's fees;

d) the amount of FIFTY THOUSAND PESOS (P50,000.00) as moral damages;

e) the amount of TEN THOUSAND PESOS (P10,000.00) as exemplary damages; and

f) the costs of the suit.

For lack of merit, the complaint against defendant DAVAO DOCTORS HOSPITAL and the defendants' counterclaims are
hereby ordered DISMISSED.

Cost against Dr. Rolando G. Gestuvo.

SO ORDERED.
In so ruling, the trial court applied the res ipsa loquitur principle holding that "the need for expert, medical testimony may be
dispensed with because the injury itself provides the proof of negligence."

Therefrom, both parties appealed to the CA.

The Ruling of the Court of Appeals

In its January 22, 2013 Decision, the CA modified the appealed judgment by deleting the awards made by the trial court,
disposing as follows:
WHEREFORE, the appeal filed by Gestuvo is GRANTED. The Decision dated September 14, 2004 of the Regional Trial Court,
Branch 33, Davao City, rendered in Civil Case No. 27,354-99 is hereby MODIFIED. The monetary awards adjudged in favor of
Nilo B. Rosit are hereby DELETED for lack of basis.

SO ORDERED.
Unlike the RTC, the CA ruled that the res ipsa loquitur principle is not applicable and that the testimony of an expert witness is
necessary for a finding of negligence. The appellate court also gave credence to Dr. Pangan's letter stating the opinion that Dr.
Gestuvo did not commit gross negligence in his emergency management of Rosit's fractured mandible.

Rosit's motion for reconsideration was denied in the CA's November 7, 2013 Resolution.

Hence, the instant appeal.

The Issue

The ultimate issue for our resolution is whether the appellate court correctly absolved Dr. Gestuvo from liability.

The Court's Ruling

The petition is impressed with merit.

In Flores v. Pineda,9 the Court explained the concept of a medical negligence case and the elements required for its
prosecution, viz:chanRoblesvirtualLawlibrary

A medical negligence case is a type of claim to redress a wrong committed by a medical professional, that has caused bodily
harm to or the death of a patient. There are four elements involved in a medical negligence case, namely: duty, breach,
injury, and proximate causation.

Duty refers to the standard of behavior which imposes restrictions on one's conduct. The standard in turn refers to the amount
of competence associated with the proper discharge of the profession. A physician is expected to use at least the same level of
care that any other reasonably competent doctor would use under the same circumstances. Breach of duty occurs when the
physician fails to comply with these professional standards. If injury results to the patient as a result of this breach, the
physician is answerable for negligence. (Emphasis supplied)

An expert witness is not necessary as the res ipsa loquitur doctrine is applicable

To establish medical negligence, this Court has held that an expert testimony is generally required to define the standard of
behavior by which the court may determine whether the physician has properly performed the requisite duty toward the patient.
This is so considering that the requisite degree of skill and care in the treatment of a patient is usually a matter of expert
opinion.10

Solidum v. People of the Philippines11 provides an exception. There, the Court explained that where the application of the
principle of res ipsa loquitur is warranted, an expert testimony may be dispensed with in medical negligence cases:
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. x x x

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of
the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment,
removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient's jaw was under
anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of anesthetic,
during or following an operation for appendicitis, among others.
We have further held that resort to the doctrine of res ipsa loquitur as an exception to the requirement of an expert testimony in
medical negligence cases may be availed of if the following essential requisites are satisfied: (1) the accident was of a kind that
does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that caused the injury was under the
exclusive control of the person charged; and (3) the injury suffered must not have been due to any voluntary action or
contribution of the person injured.12

In its assailed Decision, the CA refused to acknowledge the application of the res ipsa loquitur doctrine on the ground that the
foregoing elements are absent. In particular, the appellate court is of the position that post-operative pain is not unusual after
surgery and that there is no proof that the molar Dr. Pangan removed is the same molar that was hit by the screw installed by
Dr. Gestuvo in Rosit's mandible. Further, a second operation was conducted within the 5-week usual healing period of the
mandibular fracture so that the second element cannot be considered present. Lastly, the CA pointed out that the X-ray
examination conducted on Rosit prior to his first surgery suggests that he had "chronic inflammatory lung disease compatible,"
implying that the injury may have been due to Rosit's peculiar condition, thus effectively negating the presence of the third
element.13

After careful consideration, this Court cannot accede to the CA's findings as it is at once apparent from the records that the
essential requisites for the application of the doctrine of res ipsa loquitur are present.

The first element was sufficiently established when Rosit proved that one of the screws installed by Dr. Gestuvo struck his
molar. It was for this issue that Dr. Gestuvo himself referred Rosit to Dr. Pangan. In fact, the affidavit of Dr. Pangan presented
by Dr. Gestuvo himself before the trial court narrated that the same molar struck with the screw installed by Dr. Gestuvo was
examined and eventually operated on by Dr. Pangan. Dr. Gestuvo cannot now go back and say that Dr. Pangan treated a
molar different from that which was affected by the first operation.

Clearly, had Dr. Gestuvo used the proper size and length of screws and placed the same in the proper locations, these would
not have struck Rosit's teeth causing him pain and requiring him to undergo a corrective surgery.

Dr. Gestuvo knew that the screws he used on Rosit were too large as, in fact, he cut the same with a saw. 14 He also stated
during trial that common sense dictated that the smallest screws available should be used. More importantly, he also knew that
these screws were available locally at the time of the operation.15 Yet, he did not avail of such items and went ahead with the
larger screws and merely sawed them off. Even assuming that the screws were already at the proper length after Dr. Gestuvo
cut the same, it is apparent that he negligently placed one of the screws in the wrong area thereby striking one of Rosit's teeth.

In any event, whether the screw hit Rosit's molar because it was too long or improperly placed, both facts are the product of Dr.
Gestuvo's negligence. An average man of common intelligence would know that striking a tooth with any foreign object much
less a screw would cause severe pain. Thus, the first essential requisite is present in this case.

Anent the second element for the res ipsa loquitur doctrine application, it is sufficient that the operation which resulted in the
screw hitting Rosit's molar was, indeed, performed by Dr. Gestuvo. No other doctor caused such fact.

The CA finds that Rosit is guilty of contributory negligence in having Dr. Pangan operate on him during the healing period of his
fractured mandible. What the CA overlooked is that it was Dr. Gestuvo himself who referred Rosit to Dr. Pangan. Nevertheless,
Dr. Pangan's participation could not have contributed to the reality that the screw that Dr. Gestuvo installed hit Rosit's molar.
Lastly, the third element that the injury suffered must not have been due to any voluntary action or contribution of the person
injured was satisfied in this case. It was not shown that Rosit's lung disease could have contributed to the pain. What is clear is
that he suffered because one of the screws that Dr. Gestuvo installed hit Rosit's molar.

Clearly then, the res ipsa loquitur doctrine finds application in the instant case and no expert testimony is required to
establish the negligence of defendant Dr. Gestuvo.

Petitioner was deprived of the opportunity to make an "informed consent"

What is more damning for Dr. Gestuvo is his failure to inform Rosit that such smaller screws were available in Manila, albeit at
a higher price.16 As testified to by Dr. Gestuvo himself:
Court This titanium materials according to you were already available in the Philippines since the time of Rosit's
Alright. accident?

Witness Yes, your Honor.

xxxx

Court Did you inform Rosit about the existence of titanium screws and plates which according to you is the screws and
plates of choice?

Witness No, your Honor.

xxxx

Witness The reason I did not inform him anymore Judge because what I thought he was already hard up with the down
payment. And if I will further introduce him this screws, the more he will not be able to afford the operation.

xxxx

Court This titanium screws and plates were available then it is up to Rosit to decide whether to use it or not because
after all the material you are using is paid by the patient himscll, is it not?
 Witness Yes, that is true.
Li v. Soliman17 made the following disquisition on the relevant Doctrine of Informed Consent in relation to medical negligence
cases, to wit:
The doctrine of informed consent within the context of physician-patient relationships goes far back into English common
law. x x x From a purely ethical norm, informed consent evolved into a general principle of law that a physician has a
duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care
would disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of
treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the
proposed treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably
balancing the probable risks against the probable benefits.

xxxx

There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed
consent: "(1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed
those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she
otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment." The gravamen in an
informed consent case requires the plaintiff to "point to significant undisclosed information relating to the treatment which would
have altered her decision to undergo it." (Emphasis supplied)
The four adverted essential elements above are present here.

First, Dr. Gestuvo clearly had the duty of disclosing to Rosit the risks of using the larger screws for the operation. This was his
obligation as the physician undertaking the operation.

Second, Dr. Gestuvo failed to disclose these risks to Rosit, deciding by himself that Rosit could not afford to get the more
expensive titanium screws.

Third, had Rosit been informed that there was a risk that the larger screws are not appropriate for the operation and that an
additional operation replacing the screws might be required to replace the same, as what happened in this case, Rosit would
not have agreed to the operation. It bears pointing out that Rosit was, in fact, able to afford the use of the smaller titanium
screws that were later used by Dr. Pangan to replace the screws that were used by Dr. Gestuvo.

Fourth, as a result of using the larger screws, Rosit experienced pain and could not heal properly because one of the screws
hit his molar. This was evident from the fact that just three (3) days after Dr. Pangan repeated the operation conducted by Dr.
Gestuvo, Rosit was pain-free and could already speak. This is compared to the one (1) month that Rosit suffered pain and
could not use his mouth after the operation conducted by Dr. Gestuvo until the operation of Dr. Pangan.

Without a doubt, Dr. Gestuvo is guilty of withholding material information which would have been vital in the decision of Rosit in
going through with the operation with the materials at hand. Thus, Dr. Gestuvo is also guilty of negligence on this ground.

Dr. Pangan's Affidavit is not admissible

The appellate court's Decision absolving Dr. Gestuvo of negligence was also anchored on a letter signed by Dr. Pangan who
stated the opinion that Dr. Gestuvo did not commit gross negligence in his emergency management of Mr. Rosit's fractured
mandible.18 Clearly, the appellate court overlooked the elementary principle against hearsay evidence.

In Dantis v. Maghinang, Jr.,19 the Court reiterated the oft-repeated rule that "an affidavit is merely hearsay evidence where its
affiant/maker did not take the witness stand." Here, Dr. Pangan never took the witness stand to affirm the contents of his
affidavit. Thus, the affidavit is inadmissible and cannot be given any weight. The CA, therefore, erred when it considered the
affidavit of Dr. Pangan, mpreso for considering the same as expert testimony.

Moreover, even if such affidavit is considered as admissible and the testimony of an expert witness, the Court is not bound by
such testimony. As ruled in Ilao-Quianay v. Mapile:20
Indeed, courts are not bound by expert testimonies. They may place whatever weight they choose upon such testimonies in
accordance with the facts of the case. The relative weight and sufficiency of expert testimony is peculiarly within the province
of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight
and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he
testifies, and any other matters which serve to illuminate his statements. The opinion of an expert should be considered by the
court in view of all the facts and circumstances of the case. The problem of the evaluation of expert testimony is left to the
discretion of the trial court whose ruling thereupon is not revicwable in the absence of an abuse of that discretion.
Thus, the belief of Dr. Pangan whether Dr. Gestuvo is guilty of negligence or not will not bind the Court. The Court must weigh
and examine such testimony and decide for itself the merits thereof.

As discussed above, Dr. Gestuvo's negligence is clearly demonstrable by the doctrines of res ipsa loquitur and informed
consent.

Damages

For the foregoing, the trial court properly awarded Rosit actual damages after he was able to prove the actual expenses that he
incurred due to the negligence of Dr. Gestuvo. In Mendoza v. Spouses Gomez,21the Court explained that a claimant is entitled
to actual damages when the damage he sustained is the natural and probable consequences of the negligent act and he
adequately proved the amount of such damage.

Rosit is also entitled to moral damages as provided under Article 2217 of the Civil Code,22 given the unnecessary physical
suffering he endured as a consequence of defendant's negligence.

To recall, from the time he was negligently operated upon by Dr. Gestuvo until three (3) days from the corrective surgery
performed by Dr. Pangan, or for a period of one (1) month, Rosit suffered pain and could not properly use his jaw to speak or
eat.

The trial court also properly awarded attorney's fees and costs of suit under Article 2208 of the Civil Code, 23 since Rosit was
compelled to litigate due to Dr. Gestuvo's refusal to pay for Rosit's damages.

As to the award of exemplary damages, the same too has to be affirmed. In Mendoza,24 the Court enumerated the requisites
for the award of exemplary damages:
Our jurisprudence sets certain conditions when exemplary damages may be awarded: First, they may be imposed by way of
example or correction only in addition, among others, to compensatory damages, and cannot be recovered as a matter of right,
their determination depending upon the amount of compensatory damages that may be awarded to the claimant. Second, the
claimant must first establish his right to moral, temperate, liquidated or compensatory damages. Third, the wrongful act must
be accompanied by bad faith, and the award would be allowed only if the guilty party acted in a wanton, fraudulent, reckless,
oppressive or malevolent manner.
The three (3) requisites are met. Dr. Gestuvo's actions are clearly negligent. Likewise, Dr. Gestuvo acted in bad faith or in a
wanton, fraudulent, reckless, oppressive manner when he was in breach of the doctrine of informed consent. Dr. Gestuvo had
the duty to fully explain to Rosit the risks of using large screws for the operation. More importantly, he concealed the correct
medical procedure of using the smaller titanium screws mainly because of his erroneous belief that Rosit cannot afford to buy
the expensive titanium screws. Such concealment is clearly a valid basis for an award of exemplary damages.

WHEREFORE, the instant petition is GRANTED. The CA Decision dated January 22, 2013 and Resolution dated November 7,
2013 in CA-G.R. CV No. 00911-MIN are hereby REVERSED and SET ASIDE. Further, the Decision dated September 14,
2004 of the Regional Trial Court, Branch 33 in Davao City in Civil Case No. 27,345-99 is
hereby REINSTATED and AFFIRMED.

SO ORDERED.chanroblesvirtuallawlibrary

G.R. No. 192123 March 10, 2014

DR. FERNANDO P. SOLIDUM, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

BERSAMIN, J.:

This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of reckless imprudence resulting in
serious physical injuries by the Regional Trial Court (RTC) and the Court of Appeals (CA). He had been part of the team of
anesthesiologists during the surgical pull-through operation conducted on a three-year old patient born with an imperforate
anus.1

The antecedents are as follows:

Gerald Albert Gercayo (Gerald) was born on June 2, 19922 with an imperforate anus. Two days after his birth, Gerald
underwent colostomy, a surgical procedure to bring one end of the large intestine out through the abdominal wall, 3 enabling
him to excrete through a colostomy bag attached to the side of his body.4

On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a pull-through operation.5Dr.
Leandro Resurreccion headed the surgical team, and was assisted by Dr. Joselito Luceo, Dr. Donatella Valea and Dr.
Joseph Tibio. The anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and petitioner Dr. Fernando Solidum (Dr.
Solidum).6 During the operation, Gerald experienced bradycardia,7 and went into a coma.8His coma lasted for two weeks,9 but
he regained consciousness only after a month.10 He could no longer see, hear or move.11

Agitated by her sons helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a complaint for reckless imprudence
resulting in serious physical injuries with the City Prosecutors Office of Manila against the attending physicians. 12

Upon a finding of probable cause, the City Prosecutors Office filed an information solely against Dr. Solidum, 13alleging:
That on or about May 17, 1995, in the City of Manila, Philippines, the said accused, being then an anesthesiologist at the
Ospital ng Maynila, Malate, this City, and as such was tasked to administer the anesthesia on three-year old baby boy
GERALD ALBERT GERCAYO, represented by his mother, MA. LUZ GERCAYO, the former having been born with an
imperforate anus [no anal opening] and was to undergo an operation for anal opening [pull through operation], did then and
there willfully, unlawfully and feloniously fail and neglect to use the care and diligence as the best of his judgment would dictate
under said circumstance, by failing to monitor and regulate properly the levels of anesthesia administered to said GERALD
ALBERT GERCAYO and using 100% halothane and other anesthetic medications, causing as a consequence of his said
carelessness and negligence, said GERALD ALBERT GERCAYO suffered a cardiac arrest and consequently a defect called
hypoxic encephalopathy meaning insufficient oxygen supply in the brain, thereby rendering said GERALD ALBERT GERCAYO
incapable of moving his body, seeing, speaking or hearing, to his damage and prejudice.

Contrary to law.14

The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred to the RTC pursuant to Section 5 of
Republic Act No. 8369 (The Family Courts Act of 1997),15 where it was docketed as Criminal Case No. 01-190889.

Judgment of the RTC

On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond reasonable doubt of reckless imprudence
resulting to serious physical injuries,16 decreeing:

WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM GUILTY beyond reasonable
doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of TWO (2) MONTHS and
ONE (1) DAY of arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH and TEN (10) DAYS of prision correccional as
maximum and to indemnify, jointly and severally with the Ospital ng Maynila, Dr. Anita So and Dr. Marichu Abella, private
complainant Luz Gercayo, the amount of 500,000.00 as moral damages and 100,000.00 as exemplary damages and to
pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby CANCELLED.

SO ORDERED.17

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary liability,18 the RTC excluded them from solidary
liability as to the damages, modifying its decision as follows:

WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty beyond reasonable doubt as
principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of two (2) months and one (1) day of
arresto mayor as minimum to one (1) year, one (1) month and ten (10) days of prision correccional as maximum and to
indemnify jointly and severally with Ospital ng Maynila, private complainant Luz Gercayo the amount of 500,000.00 as moral
damages and 100,000 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby cancelled.19

Decision of the CA

On January 20, 2010, the CA affirmed the conviction of Dr. Solidum, 20 pertinently stating and ruling:
The case appears to be a textbook example of res ipsa loquitur.

xxxx

x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major operation. As noted by the OSG, the
accused himself testified that pre-operation tests were conducted to ensure that the child could withstand the surgery. Except
for his imperforate anus, the child was healthy. The tests and other procedures failed to reveal that he was suffering from any
known ailment or disability that could turn into a significant risk. There was not a hint that the nature of the operation itself was
a causative factor in the events that finally led to hypoxia.

In short, the lower court has been left with no reasonable hypothesis except to attribute the accident to a failure in the proper
administration of anesthesia, the gravamen of the charge in this case. The High Court elucidates in Ramos vs. Court of
Appeals 321 SCRA 584

In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury
to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the
proper standard of care.

Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had
been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur
without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the
doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and
the injury sustained while under the custody and management of the defendant without need to produce expert medical
testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual
and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

The lower court has found that such a nexus exists between the act complained of and the injury sustained, and in line with the
hornbook rules on evidence, we will afford the factual findings of a trial court the respect they deserve in the absence of a
showing of arbitrariness or disregard of material facts that might affect the disposition of the case. People v. Paraiso 349 SCRA
335.

The res ipsa loquitur test has been known to be applied in criminal cases. Although it creates a presumption of negligence, it
need not offend due process, as long as the accused is afforded the opportunity to go forward with his own evidence and prove
that he has no criminal intent. It is in this light not inconsistent with the constitutional presumption of innocence of an accused.

IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed.

SO ORDERED.21

Dr. Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010. 22

Hence, this appeal.

Issues

Dr. Solidum avers that:

 I.

THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE LOWER COURT IN
UPHOLDING THE PETITIONERS CONVICTION FOR THE CRIME CHARGED BASED ON THE TRIAL COURTS
OPINION, AND NOT ON THE BASIS OF THE FACTS ESTABLISHED DURING THE TRIAL. ALSO, THERE IS A
CLEAR MISAPPREHENSION OF FACTS WHICH IF CORRECTED, WILL RESULT TO THE ACQUITTAL OF THE
PETITIONER. FURTHER, THE HONORABLE COURT ERRED IN AFFIRMING THE SAID DECISION OF THE
LOWER COURT, AS THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE PROSECUTION MUST
PROVE THE ALLEGATIONS OF THE INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON THE BASIS
OF ITS PRESUMPTIVE CONCLUSION.

II.

THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES IPSA LOQUITOR (sic)
WHEN THE DEFENSE WAS ABLE TO PROVE THAT THERE IS NO NEGLIGENCE ON THE PART OF THE
PETITIONER, AND NO OVERDOSING IN THE APPLICATION OF THE ANESTHETIC AGENT BECAUSE THERE
WAS NO 100% HALOTHANE ADMINISTERED TO THE CHILD, BUT ONLY ONE (1%) PERCENT AND THE
APPLICATION THEREOF, WAS REGULATED BY AN ANESTHESIA MACHINE. THUS, THE APPLICATION OF THE
PRINCIPLE OF RES IPSA LOQUITOR (sic) CONTRADICTED THE ESTABLISHED FACTS AND THE LAW
APPLICABLE IN THE CASE.

III.

THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED THERE BEING NO
NEGLIGENCE ON THE PART OF THE PETITIONER. ASSUMING THAT THE CHILD IS ENTITLED TO FINANCIAL
CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL ASSISTANCE, BECAUSE THERE WAS NO
NEGLIGENCE, AND NO OVERDOSING OF ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO
EXCESSIVE, AND NO FACTUAL AND LEGAL BASIS.23

To simplify, the following are the issues for resolution, namely: (a) whether or not the doctrine of res ipsa loquitur was
applicable herein; and (b) whether or not Dr. Solidum was liable for criminal negligence.

Ruling

The appeal is meritorious.

Applicability of the Doctrine of Res Ipsa Loquitur

Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself." The doctrine res ipsa loquitur means
that "where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as
in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable
evidence, in the absence of an explanation by the defendant, that the accident arose from want of care." 24 It is simply "a
recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of
occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury
in the absence of some explanation by the defendant who is charged with negligence. It is grounded in the superior logic of
ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the
mere occurrence of the accident itself.

Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge." 25

Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law, but merely a mode of proof or a mere
procedural convenience. The doctrine, when applicable to the facts and circumstances of a given case, is not meant to and
does not dispense with the requirement of proof of culpable negligence against the party charged. It merely determines and
regulates what shall be prima facie evidence thereof, and helps the plaintiff in proving a breach of the duty. The doctrine can
be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available.27

The applicability of the doctrine of res ipsa loquitur in medical negligence cases was significantly and exhaustively explained in
Ramos v. Court of Appeals,28 where the Court said

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the
circumstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the
cause of that harm. The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a
judicial function to determine whether a certain set of circumstances does, as a matter of law, permit a given inference.

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent
act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the
plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The
reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of
medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone
familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a
patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements
and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be
given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund
of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a
resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be
drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to
show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is
prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and
management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to
res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain
redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of
the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment,
removal of the wrong part of the body when another part was intended, knocking out a tooth while a patients jaw was under
anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of anesthetic,
during or following an operation for appendicitis, among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply
to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of
the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each case. It is generally restricted to situations in malpractice cases where a
layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were
not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure
to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa
loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a
scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not
correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. The real
question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the
routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if
unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward
consequence. If there was such extraneous intervention, the doctrine of res ipsa loquitur may be utilized and the defendant is
called upon to explain the matter, by evidence of exculpation, if he could.

In order to allow resort to the doctrine, therefore, the following essential requisites must first be satisfied, to wit: (1) the accident
was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that caused the
injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been due to any
voluntary action or contribution of the person injured.29

The Court considers the application here of the doctrine of res ipsa loquitur inappropriate. Although it should be conceded
without difficulty that the second and third elements were present, considering that the anesthetic agent and the instruments
were exclusively within the control of Dr. Solidum, and that the patient, being then unconscious during the operation, could not
have been guilty of contributory negligence, the first element was undeniably wanting. Luz delivered Gerald to the care,
custody and control of his physicians for a pull-through operation. Except for the imperforate anus, Gerald was then of sound
body and mind at the time of his submission to the physicians. Yet, he experienced bradycardia during the operation, causing
loss of his senses and rendering him immobile. Hypoxia, or the insufficiency of oxygen supply to the brain that caused the
slowing of the heart rate, scientifically termed as bradycardia, would not ordinarily occur in the process of a pull-through
operation, or during the administration of anesthesia to the patient, but such fact alone did not prove that the negligence of any
of his attending physicians, including the anesthesiologists, had caused the injury. In fact, the anesthesiologists attending to
him had sensed in the course of the operation that the lack of oxygen could have been triggered by the vago-vagal reflex,
prompting them to administer atropine to the patient.30

This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham, 31 relevant portions of the decision
therein being as follows:

On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for the treatment of infectious
mononucleosis. The patient's symptoms had included a swollen throat and some breathing difficulty. Early in the morning of
January 9 the patient was restless, and at 1:30 a.m. Dr. Brigham examined the patient. His inspection of the patient's air
passage revealed that it was in satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone call from the hospital,
advising him that the patient was having respiratory difficulty. The doctor ordered that oxygen be administered and he prepared
to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital called a second time to advise the doctor that the patient
was not responding. The doctor ordered that a medicine be administered, and he departed for the hospital. When he arrived,
the physician who had been on call at the hospital had begun attempts to revive the patient. Dr. Brigham joined him in the
effort, but the patient died.
The doctor who performed the autopsy concluded that the patient died between 4:25 a.m. and 4:30 a.m. of asphyxia, as a
result of a sudden, acute closing of the air passage. He also found that the air passage had been adequate to maintain life up
to 2 or 3 minutes prior to death. He did not know what caused the air passage to suddenly close.

xxxx

It is a rare occurrence when someone admitted to a hospital for the treatment of infectious mononucleosis dies of asphyxiation.
But that is not sufficient to invoke res ipsa loquitur. The fact that the injury rarely occurs does not in itself prove that the injury
was probably caused by someone's negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474 P.2d 909 (1970). Nor is a bad result
by itself enough to warrant the application of the doctrine. Nelson v. Murphy, 42 Wn.2d 737, 258 P.2d 472 (1953). See 2 S.
Speiser, The Negligence Case Res Ipsa Loquitur 24:10 (1972). The evidence presented is insufficient to establish the first
element necessary for application of res ipsa loquitur doctrine. The acute closing of the patients air passage and his resultant
asphyxiation took place over a very short period of time. Under these circumstances it would not be reasonable to infer that the
physician was negligent. There was no palpably negligent act. The common experience of mankind does not suggest that
death would not be expected without negligence. And there is no expert medical testimony to create an inference that
negligence caused the injury.

Negligence of Dr. Solidum

In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines whether the CA correctly affirmed the
conviction of Dr. Solidum for criminal negligence.

Negligence is defined as the failure to observe for the protection of the interests of another person that degree of care,
precaution, and vigilance that the circumstances justly demand, whereby such other person suffers injury.32Reckless
imprudence, on the other hand, consists of voluntarily doing or failing to do, without malice, an act from which material damage
results by reason of an inexcusable lack of precaution on the part of the person performing or failing to perform such act. 33

Dr. Solidums conviction by the RTC was primarily based on his failure to monitor and properly regulate the level of anesthetic
agent administered on Gerald by overdosing at 100% halothane. In affirming the conviction, the CA observed:

On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the findings and conclusions in his report except
for an observation which, to all intents and purposes, has become the storm center of this dispute. He wanted to correct one
piece of information regarding the dosage of the anesthetic agent administered to the child. He declared that he made a
mistake in reporting a 100% halothane and said that based on the records it should have been 100% oxygen.

The records he was relying on, as he explains, are the following:

(a) the anesthesia record A portion of the chart in the record was marked as Exhibit 1-A and 1-B to indicate the
administration at intervals of the anesthetic agent.

(b) the clinical abstract A portion of this record that reads as follows was marked Exhibit 3A. 3B Approximately 1
hour and 45 minutes through the operation, patient was noted to have bradycardia (CR = 70) and ATSO4 0.2 mg was
immediately administered. However, the bradycardia persisted, the inhalational agent was shut off, and the patient
was ventilated with 100% oxygen and another dose of ATSO4 0.2 mg was given. However, the patient did not respond
until no cardiac rate can be auscultated and the surgeons were immediately told to stop the operation. The patient was
put on a supine position and CPR was initiated. Patient was given 1 amp of epinephrine initially while continuously
 doing cardiac massage still with no cardiac rate appreciated; another ampule of epinephrine was given and after 45
secs, patients vital signs returned to normal. The entire resuscitation lasted approximately 3-5 mins. The surgeons
were then told to proceed to the closure and the childs vital signs throughout and until the end of surgery were: BP =
110/70; CR = 116/min and RR = 20-22 cycles/min (on assisted ventilation).

Dr. Vertido points to the crucial passage in the clinical abstract that the patient was ventilated with 100% oxygen and another
dose of ATSO4 when the bradycardia persisted, but for one reason or another, he read it as 100% halothane. He was asked to
read the anesthesia record on the percentage of the dosage indicated, but he could only sheepishly note I cant understand the
number. There are no clues in the clinical abstract on the quantity of the anesthetic agent used. It only contains the information
that the anesthetic plan was to put the patient under general anesthesia using a nonrebreathing system with halothane as the
sole anesthetic agent and that 1 hour and 45 minutes after the operation began, bradycardia occurred after which the
inhalational agent was shut off and the patient administered with 100% oxygen. It would be apparent that the 100% oxygen
that Dr. Vertido said should be read in lieu of 100% halothane was the pure oxygen introduced after something went amiss in
the operation and the halothane itself was reduced or shut off.

The key question remains what was the quantity of halothane used before bradycardia set in?

The implication of Dr. Vertidos admission is that there was no overdose of the anesthetic agent, and the accused Dr. Solidum
stakes his liberty and reputation on this conclusion. He made the assurance that he gave his patient the utmost medical care,
never leaving the operating room except for a few minutes to answer the call of nature but leaving behind the other members
of his team Drs. Abella and Razon to monitor the operation. He insisted that he administered only a point 1% not 100%
halothane, receiving corroboration from Dr. Abella whose initial MA in the record should be enough to show that she assisted
in the operation and was therefore conversant of the things that happened. She revealed that they were using a machine that
closely monitored the concentration of the agent during the operation.

But most compelling is Dr. Solidums interpretation of the anesthesia record itself, as he takes the bull by the horns, so to
speak. In his affidavit, he says, reading from the record, that the quantity of halothane used in the operation is one percent
(1%) delivered at time intervals of 15 minutes. He studiedly mentions the concentration of halothane as reflected in the
anesthesia record (Annex D of the complaint-affidavit) is only one percent (1%) The numbers indicated in 15 minute
increments for halothane is an indication that only 1% halothane is being delivered to the patient Gerard Gercayo for his entire
operation; The amount of halothane delivered in this case which is only one percent cannot be summated because halothane
is constantly being rapidly eliminated by the body during the entire operation.

xxxx

In finding the accused guilty, despite these explanations, the RTC argued that the volte-face of Dr. Vertido on the question of
the dosage of the anesthetic used on the child would not really validate the non-guilt of the anesthesiologist. Led to agree that
the halothane used was not 100% as initially believed, he was nonetheless unaware of the implications of the change in his
testimony. The court observed that Dr. Vertido had described the condition of the child as hypoxia which is deprivation of
oxygen, a diagnosis supported by the results of the CT Scan. All the symptoms attributed to a failing central nervous system
such as stupor, loss of consciousness, decrease in heart rate, loss of usual acuity and abnormal motor function, are
manifestations of this condition or syndrome. But why would there be deprivation of oxygen if 100% oxygen to 1% halothane
was used? Ultimately, to the court, whether oxygen or halothane was the object of mistake, the detrimental effects of the
operation are incontestable, and they can only be led to one conclusion if the application of anesthesia was really closely
monitored, the event could not have happened.34
The Prosecution did not prove the elements of reckless imprudence beyond reasonable doubt because the circumstances
cited by the CA were insufficient to establish that Dr. Solidum had been guilty of inexcusable lack of precaution in monitoring
the administration of the anesthetic agent to Gerald. The Court aptly explained in Cruz v. Court of Appeals35 that:

Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be
determined according to the standard of care observed by other members of the profession in good standing under similar
circumstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical
science. In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated that in accepting a case, a
doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the
same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least
the same level of care that any other reasonably competent doctor would use to treat a condition under the same
circumstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of
care of the profession but also that the physician's conduct in the treatment and care falls below such standard. Further,
inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge,
it has been recognized that expert testimony is usually necessary to support the conclusion as to causation.

xxxx

In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence and for a
reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a causal
connection of such breach and the resulting death of his patient. In Chan Lugay v. St Luke's Hospital, Inc., where the attending
physician was absolved of liability for the death of the complainants wife and newborn baby, this Court held that:

"In order that there may be a recovery for an injury, however, it must be shown that the injury for which recovery is sought
must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct
and natural sequence of events, unbroken by intervening efficient causes. In other words, the negligence must be the
proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a right of action unless it is the
proximate cause of the injury complained of. And the proximate cause of an injury is that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not
have occurred."

An action upon medical negligence whether criminal, civil or administrative calls for the plaintiff to prove by competent
evidence each of the following four elements, namely: (a) the duty owed by the physician to the patient, as created by the
physician-patient relationship, to act in accordance with the specific norms or standards established by his profession; (b) the
breach of the duty by the physicians failing to act in accordance with the applicable standard of care; (3) the causation, i.e.,
there must be a reasonably close and causal connection between the negligent act or omission and the resulting injury; and (4)
the damages suffered by the patient.36

In the medical profession, specific norms or standards to protect the patient against unreasonable risk, commonly referred to
as standards of care, set the duty of the physician to act in respect of the patient. Unfortunately, no clear definition of the duty
of a particular physician in a particular case exists. Because most medical malpractice cases are highly technical, witnesses
with special medical qualifications must provide guidance by giving the knowledge necessary to render a fair and just verdict.
As a result, the standard of medical care of a prudent physician must be determined from expert testimony in most cases; and
in the case of a specialist (like an anesthesiologist), the standard of care by which the specialist is judged is the care and skill
commonly possessed and exercised by similar specialists under similar circumstances. The specialty standard of care may be
higher than that required of the general practitioner.37
The standard of care is an objective standard by which the conduct of a physician sued for negligence or malpractice may be
measured, and it does not depend, therefore, on any individual physicians own knowledge either. In attempting to fix a
standard by which a court may determine whether the physician has properly performed the requisite duty toward the patient,
expert medical testimony from both plaintiff and defense experts is required. The judge, as the trier of fact, ultimately
determines the standard of care, after listening to the testimony of all medical experts.38

Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to provide guidance to the trial
court on what standard of care was applicable. It would consequently be truly difficult, if not impossible, to determine whether
the first three elements of a negligence and malpractice action were attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who served as the Chairman of the
Committee on Ethics and Malpractice of the Philippine Society of Anesthesiologists that investigated the complaint against Dr.
Solidum, his testimony mainly focused on how his Committee had conducted the investigation.39 Even then, the report of his
Committee was favorable to Dr. Solidum,40 to wit:

Presented for review by this committee is the case of a 3 year old male who underwent a pull-thru operation and was
administered general anesthesia by a team of anesthesia residents. The patient, at the time when the surgeons was
manipulating the recto-sigmoid and pulling it down in preparation for the anastomosis, had bradycardia. The anesthesiologists,
sensing that the cause thereof was the triggering of the vago-vagal reflex, administered atropine to block it but despite the
administration of the drug in two doses, cardiac arrest ensued. As the records show, prompt resuscitative measures were
administered and spontaneous cardiac function re-established in less than five (5) minutes and that oxygen was continuously
being administered throughout, unfortunately, as later become manifest, patient suffered permanent irreversible brain damage.

In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the committee find that the same
were all in accordance with the universally accepted standards of medical care and there is no evidence of any fault or
negligence on the part of the anaesthesiologists.

Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of Investigation, was also presented as a
Prosecution witness, but his testimony concentrated on the results of the physical examination he had conducted on Gerald, as
borne out by the following portions of his direct examination, to wit:

FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?

WITNESS General Anesthetic Agent is a substance used in the conduction of Anesthesia and in this case, halothane was
used as a sole anesthetic agent.

xxxx

Q Now under paragraph two of page 1 of your report you mentioned that after one hour and 45 minutes after the operation, the
patient experienced a bradycardia or slowing of heart rate, now as a doctor, would you be able to tell this Honorable Court as
to what cause of the slowing of heart rate as to Gerald Gercayo?

WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia of time because is some reason one
way or another that might caused bradycardia.

FISCAL CABARON What could be the possible reason?

A Well bradycardia can be caused by anesthetic agent itself and that is a possibility, were talking about possibility here.

Q What other possibility do you have in mind, doctor?

A Well, because it was an operation, anything can happen within that situation.

FISCAL CABARON Now, this representation would like to ask you about the slowing of heart rate, now what is the immediate
cause of the slowing of the heart rate of a person?

WITNESS Well, one of the more practical reason why there is slowing of the heart rate is when you do a vagal reflex in the
neck wherein the vagal receptors are located at the lateral part of the neck, when you press that, you produce the slowing of
the heart rate that produce bradycardia.

Q I am pro[p]ounding to you another question doctor, what about the deficiency in the supply of oxygen by the patient, would
that also cause the slowing of the heart rate?

A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a hypoxia or there is a low oxygen level in the
blood, the normal thing for the heart is to pump or to do not a bradycardia but a to counter act the Hypoxia that is being
experienced by the patient

(sic).

xxxx

Q Now, you made mention also doctor that the use of general anesthesia using 100% halothane and other anesthetic
medications probably were contributory to the production of hypoxia.

A Yes, sir in general sir.41

On cross-examination, Dr. Vertido expounded more specifically on his interpretation of the anesthesia record and the factors
that could have caused Gerald to experience bradycardia, viz:

ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read to this Honorable court your last
paragraph and if you will affirm that as if it is correct?

A "The use of General Anesthesia, that is using 100% Halothane probably will be contributory to the production of Hypoxia and
- - - -"

ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?

WITNESS Based on the records, I know the - - -

Q 100%?

A 100% based on the records.

Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you kindly look at this and tell me where is
100%, the word "one hundred" or 1-0-0, will you kindly look at this Doctor, this Xerox copy if you can show to this Honorable
Court and even to this representation the word "one hundred" or 1-0-0 and then call me.

xxxx

ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is, you just call me and even the attention
of the Presiding Judge of this Court. Okay, you read one by one.

WITNESS Well, are you only asking 100%, sir?

ATTY. COMIA Im asking you, just answer my question, did you see there 100% and 100 figures, tell me, yes or no?

WITNESS Im trying to look at the 100%, there is no 100% there sir.

ATTY. COMIA Okay, that was good, so you Honor please, may we request also temporarily, because this is just a xerox copy
presented by the fiscal, that the percentage here that the Halothane administered by Dr. Solidum to the patient is 1% only so
may we request that this portion, temporarily your Honor, we are marking this anesthesia record as our Exhibit 1 and then this
1% Halothane also be bracketed and the same be marked as our Exhibit "1-A".

xxxx

ATTY. COMIA Doctor, my attention was called also when you said that there are so many factors that contributed to Hypoxia is
that correct?

WITNESS Yes, sir.

Q I remember doctor, according to you there are so many factors that contributed to what you call hypoxia and according to
you, when this Gerald suffered hypoxia, there are other factors that might lead to this Hypoxia at the time of this operation is
that correct?

WITNESS The possibility is there, sir.

Q And according to you, it might also be the result of such other, some or it might be due to operations being conducted by the
doctor at the time when the operation is being done might also contribute to that hypoxia is that correct?

A That is a possibility also.

xxxx

ATTY. COMIA How will you classify now the operation conducted to this Gerald, Doctor?

WITNESS Well, that is a major operation sir.

Q In other words, when you say major operation conducted to this Gerald, there is a possibility that this Gerald might [be]
exposed to some risk is that correct?
A That is a possibility sir.

Q And which according to you that Gerald suffered hypoxia is that correct?

A Yes, sir.

Q And that is one of the risk of that major operation is that correct?

A That is the risk sir.42

At the continuation of his cross-examination, Dr. Vertido maintained that Geralds operation for his imperforate anus,
considered a major operation, had exposed him to the risk of suffering the same condition. 43 He then corrected his earlier
finding that 100% halothane had been administered on Gerald by saying that it should be 100% oxygen.44

Dr. Solidum was criminally charged for "failing to monitor and regulate properly the levels of anesthesia administered to said
Gerald Albert Gercayo and using 100% halothane and other anesthetic medications." 45However, the foregoing circumstances,
taken together, did not prove beyond reasonable doubt that Dr. Solidum had been recklessly imprudent in administering the
anesthetic agent to Gerald. Indeed, Dr. Vertidos findings did not preclude the probability that other factors related to Geralds
major operation, which could or could not necessarily be attributed to the administration of the anesthesia, had caused the
hypoxia and had then led Gerald to experience bradycardia. Dr. Vertido revealingly concluded in his report, instead, that
"although the anesthesiologist followed the normal routine and precautionary procedures, still hypoxia and its corresponding
side effects did occur."46

The existence of the probability about other factors causing the hypoxia has engendered in the mind of the Court a reasonable
doubt as to Dr. Solidums guilt, and moves us to acquit him of the crime of reckless imprudence resulting to serious physical
injuries. "A reasonable doubt of guilt," according to United States v. Youthsey:47

x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt; not a doubt engendered merely
by sympathy for the unfortunate position of the defendant, or a dislike to accept the responsibility of convicting a fellow man. If,
having weighed the evidence on both sides, you reach the conclusion that the defendant is guilty, to that degree of certainty as
would lead you to act on the faith of it in the most important and crucial affairs of your life, you may properly convict him. Proof
beyond reasonable doubt is not proof to a mathematical demonstration. It is not proof beyond the possibility of mistake.

We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil liability.1wphi1 But we cannot
now find and declare him civilly liable because the circumstances that have been established here do not present the factual
and legal bases for validly doing so. His acquittal did not derive only from reasonable doubt. There was really no firm and
competent showing how the injury to Gerard had been caused. That meant that the manner of administration of the anesthesia
by Dr. Solidum was not necessarily the cause of the hypoxia that caused the bradycardia experienced by Gerard.
Consequently, to adjudge Dr. Solidum civilly liable would be to speculate on the cause of the hypoxia. We are not allowed to
do so, for civil liability must not rest on speculation but on competent evidence.

Liability of Ospital ng Maynila

Although the result now reached has resolved the issue of civil liability, we have to address the unusual decree of the RTC, as
affirmed by the CA, of expressly holding Ospital ng Maynila civilly liable jointly and severally with Dr. Solidum. The decree was
flawed in logic and in law.
In criminal prosecutions, the civil action for the recovery of civil liability that is deemed instituted with the criminal action refers
only to that arising from the offense charged.48 It is puzzling, therefore, how the RTC and the CA could have adjudged Ospital
ng Maynila jointly and severally liable with Dr. Solidum for the damages despite the obvious fact that Ospital ng Maynila, being
an artificial entity, had not been charged along with Dr. Solidum. The lower courts thereby acted capriciously and whimsically,
which rendered their judgment against Ospital ng Maynila void as the product of grave abuse of discretion amounting to lack of
jurisdiction.

Not surprisingly, the flawed decree raises other material concerns that the RTC and the CA overlooked. We deem it important,
then, to express the following observations for the instruction of the Bench and Bar.

For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to be heard was not
respected from the outset. The R TC and the CA should have been alert to this fundamental defect. Verily, no person can be
prejudiced by a ruling rendered in an action or proceeding in which he was not made a party. Such a rule would enforce the
constitutional guarantee of due process of law.

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be properly enforceable pursuant
to Article 103 of the Revised Penal Code. But the subsidiary liability seems far-fetched here. The conditions for subsidiary
liability to attach to Ospital ng Maynila should first be complied with. Firstly, pursuant to Article 103 of the Revised Penal Code,
Ospital ng Maynila must be shown to be a corporation "engaged in any kind of industry." The term industry means any
department or branch of art, occupation or business, especially one that employs labor and capital, and is engaged in
industry.49 However, Ospital ng Maynila, being a public hospital, was not engaged in industry conducted for profit but purely in
charitable and humanitarian work.50 Secondly, assuming that Ospital ng Maynila was engaged in industry for profit, Dr.
Solidum must be shown to be an employee of Ospital ng Maynila acting in the discharge of his duties during the operation on
Gerald. Yet, he definitely was not such employee but a consultant of the hospital. And, thirdly, assuming that civil liability was
adjudged against Dr. Solidum as an employee (which did not happen here), the execution against him was unsatisfied due to
his being insolvent.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND SETS ASIDE the decision
promulgated on January 20, 2010; ACQUITS Dr. Fernando P. Solidum of the crime of reckless imprudence resulting to serious
physical injuries; and MAKES no pronouncement on costs of suit.

SO ORDERED.