Optima Risk Management Services

Malpractice Suits Against Nurses on the Rise

September 5, 2007 www.nurse.com

When Deborah L. Phillips, RN, CVNS, CRRN, JD, went into nursing more than 30
years ago, nurses never worried about medical malpractice lawsuits. It was
almost unheard of for a nurse to be named, says Phillips, a nurse attorney
in Pleasanton, Calif.
But these days a growing number find themselves involved in litigation,
either as part of a legal action against a facility or, increasingly, as an
individual defendant.
Nurses on the losing end of a lawsuit face losing their jobs and their
licenses, as well as personal assets, even if their mistake was inadvertent
or they thought they were simply following a physicians orders, Phillips
says. In a few recent cases, nurses have found themselves facing criminal
charges and even jail terms for medication errors that have resulted in
patient deaths.
State nursing boards and the public expect perfection in nursing practice,
even as patients get sicker and nurses take on more responsibilities,
according to Phillips. Theres no tolerance for human error, she says.
Why nurses get sued
Among healthcare providers, physicians remain the main targets of medical
malpractice lawsuits. Nurses account for about 2% of all medical malpractice
payments, according to the National Practitioner Data Bank, operated by the
U.S. Department of Health and Human Services.
But medical malpractice payments on behalf of nurses nearly doubled from 307
in 1997 to 586 in 2005. About two-thirds of these were against non-advanced
practice RNs. Most of the others were against nurse anesthetists, nurse
midwives, and nurse practitioners.
More and more nurses are being sued individually, says Rita Kae Restrepo,
RN, BS, CPAN, a legal nurse consultant and post-anesthesia care unit nurse
at San Francisco General Hospital, who teaches nurses about legal issues.
Its becoming the new trend.
Tort reforms in some states have capped the amount of money patients can
seek from physicians, nurses, or hospitals.
However, The patients attorney is going to examine the nurses conduct for
breaches in the standard of nursing care, says Laura Mahlmeister, RN, PhD,
president of Mahlmeister and Associates, a risk management and continuing
education company, and a staff nurse in the birth center at San Francisco
General Hospital. If the damages awarded to the patient exceed the limits
of the doctors malpractice policy, the additional damages may be paid by
the nurses insurer, if the nurse has been found negligent.
Nursing responsibilities have also expanded. Busy physicians who spend less
time at the bedside rely more on nurses to be their eyes and ears, which
increases pressure on the nurse to report and follow through on changes in
the patients condition, Mahlmeister says.
The biggest reasons for lawsuits against nurses include medication errors;
communication errors; failure to monitor and assess; failure to properly
advocate for the patient; working while impaired, whether by inadequate
sleep or controlled substances; and negligent or inappropriate delegation
and supervision, say nurse legal experts interviewed for this story.
They add that the best way for a nurse to avoid a lawsuit is to be aware of
the standards of nursing practice and follow them to the letter.
Ultimately, to prevent errors, you meet the standard of care, says Cheryl
Randolph, RN, MSN, CRRN, CEN, FNP, a legal nurse consultant and owner of
Paragon Education, a nursing education company in the San Francisco Bay
Area. That means being aware of your hospitals policies and procedures,
your state nursing practice act, and the professional standards of your
specialty.

Minimizing the risk

Nurse attorneys and legal nurse consultants offer the following suggestions
for nurses, whether they want to reduce the risk of being named in a lawsuit
or they seek protection if theyre involved in a lawsuit already.
Thorough documentation. Documentation may not be nurses favorite activity,
but nurses who find themselves involved in litigation who have documented
thoroughly will thank themselves later.
Charting is probably the most vital aspect of proving that nurses have met
the standard of care, Mahlmeister says. Its important to get the story
down on paper. Electronic medical records result in greater legibility, but
may limit nurses capacity to write narrative notes. Nurses should determine
if they are limited by digital templates in writing narrative notes about an
event and ask their managers how to document an adverse outcome.
But noting that you checked the patients blood pressure or gave medications
isnt enough, Mahlmeister says. She adds, Charting has to define how you
meet the patients needs. As the patients condition changes, nurses need
to change their plan of care and reflect those changes in their charting,
she says.
Mahlmeister recalls a case in which a patient did not get a drug on time and
suffered a poor outcome. The nurse testified she looked for the medication
in the dispensary, where it should have been, but couldnt find it. The
nurse then asked her supervisor for help, but got no response.
Unfortunately, the nurse did not document her actions. The supervisors
response was that she dealt with dozens of emergencies every night and
didnt recall the nurse asking for help.
I believe the nurse, Mahlmeister says. But wheres the evidence?
Follow the chain of command. One of the worst cases Restrepo has seen
involved a man in his mid-30s. Hed never had serious medical problems, but
after three days of vomiting and diarrhea, he went to a hospital emergency
department, where he received fluids, then was sent to the med/surg unit for
observation.
His blood pressure was 60/30, Restrepo says. It stayed that way for four
hours as his body slowly shut down, although he remained alert and oriented
for much of that time. Neither the nurses nor the physician took any action,
Restrepo says. The patient went into acute renal failure, dehydration, and
septic shock and died. The family sued, and the case eventually settled for
millions of dollars.
The nurse said in deposition that his blood pressure never changed,
Restrepo says. But you cant sustain a pressure of 60/30. They should know
that. I dont care if they are day one out of nurses training.
The case is a good illustration of how many nurses end up involved in legal
action, either directly against them or against the facilities where they
work, Restrepo says. She adds, The failure here is the failure to follow
the chain of command.
Even when a physician decides to take no action, if the nurse knows
something is wrong, he or she must request help from the charge nurse or the
nursing supervisor and keep asking for help until the patient receives
proper care.
Restrepo has seen many cases involving nurses who believed they had
fulfilled their responsibilities because they called a physician and got an
inappropriate order to simply continue watching the patient. They were not
using their critical-thinking skills, she says. Thats where the lawsuit
comes in.
Make the patient your partner. Sharing information with the patient can help
reduce errors, Mahlmeister says. Tell your patients or family members what
you are doing for them or giving to them and listen to their response, she
recommends. If they say something like, My doctor canceled that order, or
That dose was supposed to be increased, the nurse should double-check with
the physician and only proceed if the order appears safe.
Nurses should also pay attention to the concerns of family members, Restrepo
says. They often notice when a patients condition has changed. Family
members who are upset and angry and dont understand what happened to their
loved one or who feel they were mistreated may be more likely to take legal
action, she adds.
Recognize system flaws and report them. Increasingly, attorneys who sue
look at the bigger picture, Mahlmeister says. Juries are more likely to
support claims of negligence against the system when they are provided with
proof that the patient is in an error-prone environment. This takes the
legal focus off the individual nurse into the realm of corporate negligence.
Spurred by information about systems errors and patient safety, managers are
also starting to pay more attention to correcting system problems, she says.
Mahlmeister recommends finding out if other nurses are experiencing similar
problems and addressing them as a group. Dont be afraid to file incident or
unusual occurrence reports of system errors or work for changes, she says.
As individuals, nurses should make it clear to others that they will not
practice in a way they feel is unsafe or beyond their scope, Phillips says.
This includes turning down extra shifts if a nurse feels tired or stressed.
Consider carrying individual malpractice insurance. Many nurse legal experts
believe its good to have individual malpractice insurance, and carry it
themselves. Nurses may want to speak to an attorney about the advisability
of carrying it, especially if they have a fair number of assets.
Its a lot of comfort for a small amount of money, Randolph says.
Nurses in large healthcare systems are generally covered by their employer
and can be reasonably assured the facility will provide them with legal
counsel for acts carried out in the normal course of their employment,
Mahlmeister says. Nurses who work for an agency or in an office should make
sure they are covered, either by their employers insurance or their own. No
employer is expected to defend criminal acts, such as assault and battery of
patients, she adds. Nor will any professional liability insurance,
employer-purchased or individually purchased, provide coverage for criminal
acts or intentional torts, such as defamation or false imprisonment.
Most of the time, a facility will protect a nurse involved in a legal
action, Phillips says, but when the facility doesnt or if the nurse
faces a hearing in front of a state licensing board individual insurance
may allow the nurse to hire an attorney without worrying about legal fees.
Individual insurance can also keep nurses from losing their assets in the
unlikely but possible event of a huge judgment against them. During their
orientation, nurses should ask the risk manager whether their employers
malpractice insurance policy covers them for all aspects of their work. For
example, in one case, nurses discovered they were not covered for care
rendered while transporting a patient from their facility to a higher level
of care, Mahlmeister says.
After obtaining information from the employer about the coverage provided,
the nurse should explore the possibility of purchasing his or her own
policy. Such a decision is an individual one that each staff nurse should
make.
Individual malpractice coverage varies, so the nurse should read the
coverage and know what he or she is getting, Phillips says. For instance,
the insurance may pay $150 an hour for attorney time, and if an attorney
bills for $250 an hour, the nurse must cover the rest.
The importance of assuming control
Nothing is foolproof, nurse legal experts say. Even the most cautious nurses
sometimes make mistakes. Occasionally, even when nurses do everything right,
patients still die or dont recover properly, and they or their families may
sue.
Like most things in life, nursing carries a risk, Mahlmeister says. But
nurses can counter that risk by assuming control of their practice, she
adds.
Nurses who feel in control of their practice will call a physician
repeatedly, even when they think the physician might get angry, or tell a
supervisor they cant work a double-shift because they feel exhausted, or
wont let anyone interrupt them while they are giving medications.
Thats a big issue in preventing lawsuits, she says.
Although she is probably more aware of the risks than most nurses are,
Mahlmeister says she loves the job too much to give it up. Nurses should not
be afraid to practice, she contends, adding, The risk is absolutely
manageable.
More patients are naming nurses in
malpractice suits
By Todd Stein

Not so long ago, the distinction between nurses and physicians was pretty clear:
Physicians took care of the medicine, nurses took care of the patient. Today, as nurses
take on more of the physicians medical duties, they are increasingly exposed to a
physicians greatest fear the malpractice lawsuit.

"Clearly, there has been a marked increase" in malpractice suits naming nurses as
defendants, said William McDonough, senior vice president for health care at Boston-
based Marsh Inc., the worlds biggest insurance brokerage firm. McDonough estimates
that the number of malpractice lawsuits naming nurses as defendants has risen 10 percent
nationally since 1995.

That number may be low, especially where highly skilled nurses are concerned. A study
of nurse-malpractice lawsuits in Harvard University medical institutions found that
claims against nurse practitioners jumped 16 percent between 1984 and 1992.

Insurance experts mostly blame the increase on overzealous lawyers lured by substantial
jury awards. Lawyers blame managed care for axing hospital staffs and increasing patient
loads leading to more mistakes. But all sides agree the primary reason more nurses are
getting sued is, ironically, that they are more skilled than ever before.

"Patients expect more of nurses, so when something goes wrong theres less hesitation to
blame them," said Marc Mandell, a Norwich, Conn., lawyer who specializes in nursing
risk management.

More vulnerable

As their professional roles expand, nurses are naturally becoming more vulnerable to the
types of lawsuits that have plagued physicians for years. Malpractice is the legal term for
negligence by any licensed professional. Case law began recognizing nurses as
professionals in the mid-1970s, and has lately come to see registered nurses as "assertive,
decisive healthcare providers," according to a 1985 New York appellate court opinion.

"Unlike a generation ago, jurors are more likely to agree that if something goes wrong,
the nurse should have picked it up just like a doctor," Mandell said.

The financial cost of malpractice is covered by most employers insurance policies, and
few experts suggest nurses need their own malpractice insurance. But if malpractice is
claimed, the cost to a nurses career can be staggering. Even if the nurse is a so-called
"tag-along" defendant and not the primary focus of the lawsuit, once money is exchanged
through an out-of-court settlement or jury award, the nurses name is automatically
reported to the state Board of Nurse Examiners, to insurers and to the federal
governments National Practitioners Databank.

State nursing boards are increasingly likely to suspend or discipline nurses who are found
guilty in malpractice suits. Even if the board is lenient, employers may not be. Nurses are
required to report their involvement in a malpractice suit to each of their employers for
the rest of their professional careers.

"The patient isnt the only victim in a malpractice case," said Tom Packer, a San
Francisco lawyer who specializes in defending nurses in liability cases. "The emotional
and professional effect on nurses can be devastating because its forever on their record
that one of their patients was paid money after they alleged malpractice, even if they only
got one dollar."

Guides for protection

Not all the news is bad, though. Thankfully, there are clear guidelines for protecting
yourself from a malpractice suit.

Nursing malpractice occurs only under two conditions: You make a mistake that can be
proved to have harmed a patient, and the mistake is one that a reasonably careful nurse
wouldnt have made in a similar situation. The law doesnt require you to provide the best
or safest care humanly possible only to meet a reasonable standard.

In court, that standard is your states Nurse Practice Act. So it follows that the primary
way to prevent a malpractice lawsuit from being filed is to know the law.

"A nurse absolutely has to be familiar with the Nurse Practice Act, so if shes asked to do
something out of bounds, she knows to refuse it," said Elizabeth Higginbotham, RN, an
Austin plaintiffs lawyer and president of The American Association of Nurse Attorneys
(TAANA), Texas chapter, who leads workshops on avoiding malpractice suits for both
nurses and hospital administrators.

Many times, Higginbotham said, employers will put nurses in a catch-22 situation where
they must choose between compromising their license and keeping their job. A long-term
care facility, for instance, may have a policy that requires RNs to let unlicensed personnel
hang IVs, even if the states Nurse Practice Act requires an RN to do the job. If
something goes wrong and a lawsuit is filed, its the nurse who will be held responsible.

Similarly, a nurse who notifies a physician that a patient is in trouble is legally

responsible for that patient even if the physician makes no response.
"You cant just drop the ball," Higginbotham said. "Youve got to go over (the
physicians) head and find somebody whos going to give you orders to take care of that
patient. Otherwise, you might find yourself in my office."

Many state nursing boards make available guidelines that outline a step-by-step process
for determining which duties are outside a nurses scope of practice. Most can be printed
from the Internet free of charge.

Documentation is key

Another way to prevent malpractice suits is to scrupulously document everything from

disagreements with the physician to a patients noncompliance with medications.
"Nobodys going to protect you but yourself," attorney Mandell said. "And the best way
to protect yourself is to document everything and to do it contemporaneously, not after
the fact."

Adding to the medical record after a lawsuit has been threatened is one of the most
common and costly mistakes a nurse can make, added Monica Mooney, RN, a San
Francisco defense lawyer and president of TAANAs California chapter. "As a defense
attorney, that is one of the last things you want to see. Any time you alter the medical
record after the fact your liability is huge because it ruins your credibility and the jurys
not likely to believe anything else you say."

Ideally, chart entries should be made at the time of an assessment or intervention and no
later than shortly afterward. If you make a mistake in the record, draw a line through it,
write "mistaken entry," include the correct information, and initial the changes. Never
erase or obscure the record. Document forensics experts are commonly employed by
attorneys to uncover such glaring indicators of error.

While other prevention tactics are advisable, perhaps the best technique to prevent a
malpractice suit from being filed is the one that comes most natural to nurses. Being kind.

"Politeness is the best cure against malpractice," Mandell said. "If the patient likes you
and youve been kind to that patient you decrease your odds of being sued immensely."
Avoiding Your Day in Court

1. Know the law. Your states Nurse Practice Act is the standard by which your professional
behavior will be judged in any potential malpractice case. If it can be conclusively shown that you
acted in accordance with the law, the case will likely be dismissed before it goes to trial.

2. Document everything. It takes a written record to prove you acted in accordance with the
accepted standards of practice. Good charting is a primary defense against liability in a
malpractice suit. Include in the record your assessments; evaluations of how treatments or
interventions worked; patient noncompliance, if any; and any communication with the physician
regarding these items, especially signs of patient distress. Include witnesses to any
conversations. Never document care before you deliver it or add to the record after a significant
amount of time has passed. And especially never alter the record after the fact.

3. Refrain from making negative comments. Never enter into the medical record negative
comments about a patient (aside from clear noncompliance). For instance, avoid mentioning a
patient's weight, odor, or personality. Plaintiff's attorneys will use the comments to suggest you
disliked the patient and were more likely to provide substandard care.

4. Question authority. If a physician fails to act in the face of compelling evidence of patient
distress, take the case to your supervisor. If your supervisor also fails to act and you still believe
the patient is in danger, go over his or her head until the problem is resolved. Follow the chain of
command, but be assertive. Avoiding confrontation may be the path of least resistance but it
could cost you your license.

5. Stay educated. A lawyer is less likely to sue a nurse who has kept up with her continuing
education requirements than one who has let her training slip.

6. Manage risks. Make sure that every patient who leaves the hospital against a physicians
advice completes a detailed consent form. If this is not your job, make it your job. Never be
afraid to be a pest when you are protecting yourself.

7. Dont hurry through discharge. A patient's health is still your responsibility after the patient
leaves the facility, so don't rush through the discharge notes. Attention to detail can save you
from being accused of discharging a patient too early if problems develop after release.

8. Be discreet. Never gossip about an incident or bad patient outcome with other nurses. Avoid
casting blame. These words may come back to haunt you or other nurses in the courtroom. If
you have a complaint, go through the proper channels.

9. Use restraints wisely. Regard restraints with the same respect you do medications. A
patient can just as easily sue you for inappropriate use of restraints as for a failure to restrain. So
assess your patient carefully for risk of harm, and document everything.

10. Be kind. Be kind. If the patient likes you, he or she is less likely to sue. Don't get into
arguments with patients. If a patient complains about something you've done, correct the
problem without becoming defensive.
Yes, You Can Be Sued
Linda J. Shinn, MBA, RN, CAB

During the course of a work day, the nurse confronts hundreds of situations that
give rise to potential lawsuits. For example, a just-mopped floor is an invitation for a
patient fall; a hurried exchange between nurse and an assistant sets the stage for an
error in treatment; and a mislabeled prescription is a medication error waiting to
happen.

"Fortunately, only a small percentage of the mistakes made by nurses actually

produce injury to patients. Of this small number of injured patients, an even smaller
percentage go on to seek compensation for damages through legal action. Nevertheless,
the numbers of lawsuits filed against nurses continue to increase" (Aiken & Catalano,
1994, p. 118). "In 1994, the current statistics on a national level taken from data
reported in the National Practitioner Data Bank from 1990 to 1993 indicated that as of
1990, about five nurses in 10,000 are sued in a given year" (Kelly & Joel, 1995, p. 502).
O'Sullivan (1996) reports an increase in suits brought against nurses working in critical
care and obstetrics and against nurse practitioners.

Nursing, the Law, and Other Codes of Conduct

The legal status of nursing derives from the Nurse Practice Act of each state. The
Practice Act defines the practice of nursing and the standards to which nurses will be
held accountable and along with accompanying administrative rules and regulations
become principal sources of law that govern a nurse's practice. Other laws such as state
healthcare facilities statutes and medical and pharmacy practice acts also influence the
practice of nursing. These laws set a standard of care or duty to which the nurse is held
accountable in practice. A violation of the standard of care or duty is generally thought
of as negligence and can lead to malpractice.

Four conditions of negligence must be present for nurses to be adjudged guilty of

malpractice. Aiken and Catalano (1994) report that the plaintiff (patient) must prove
that:

the nurse owes the patient a duty,

the nurse has breached that duty or standard of care,

harm or damage has resulted and can be linked to the duty owed, and

the breached duty is the proximate cause of the harm or damage.

Members of a profession often establish standards of practice and codes of ethics

which are authoritative statements by the profession on how care should be delivered
and the kind of conduct or behavior the professional practitioner should engage in. For
example, the American Nurses Association has set forth a Code for Nurses. Hospitals
adopt policies and accrediting agencies set standards all in the interest of guiding how
care is provided. For example, the Joint Commission on Accreditation of Healthcare
Organizations prescribes a set of guidelines that healthcare organizations must meet in
order to be accredited. These professional pronouncements and policies can also be
used in determining whether or not malpractice has occurred.

The Changing Nature of Liability

Changes of epic proportion in today's healthcare system invite further litigation in

an already litigious society. The rapid expansion, of scientific knowledge and use of
technology increases patient expectations for favorable outcomes as a result of
treatment received. Shorter hospital stays mean discharging patients that are sicker and
more likely to experience adverse events at home or in another care setting. In a recent
instance, a nurse from a temporary staffing agency was sued for failing to protect a
patient in a congregate living facility from a violent resident.

Increasing reliance on technology to capture and convey patient information and

the use of assistive personnel to provide care enlarges the opportunity for errors to
occur. New or different practice sites mean unfamiliar procedures or protocols and fresh
occasions for error. Ethical dilemmas such as end of life decisions also provide a medium
for a perceived breach of duty to arise. As well, society's standards have changed giving
rise to changing norms in professional conduct. For example, sexual harassment laws
govern how professionals interact, and fraud and abuse statutes control how payment
systems are used. In one recent situation, a nursing school faculty member was sued by
a student for alleged sexual harassment.

The profession of nursing has grown, changed, and acquired a new professional
status as well. Nursing education has moved into institutions of higher learning; nurse
practice acts have been amended to recognize a number of independent nursing
practices, such as diagnoses; and many nurses are in solo practice. Nurses are no longer
absolved of poor practice as a result of following doctor's orders. Thus, nurses are held
to standards of care that are more rigorous than in days past and are held accountable
for increasing professional judgment. According to Horsley (1986)...there's always a
price to be paid for professional status. That price is expanded legal accountability."

Myers and Fergusson (1989) suggest that nurses with advanced knowledge of
pharmacology, anatomy, and physiology are held to an even higher standard of care as
their knowledge infers the ability to handle ever more complex and specialized practice.
Kelly and Joel (1995) caution that nurses who assume they are at little risk because they
don't work in a high pressure area like the emergency room make a mistake. In
reviewing a number of cases Kelly and Joel (1995) found that, in the majority of
instances where nurses were held liable, the mistakes were everyday situations where
nurses did not use good nursing judgment or common sense.

Patient falls, burns, and medication errors have historically been among the most
frequent contributors to nurses' malpractice. Today, nurses are also held accountable for
failure to communicate, failure to diagnose a patient condition and take appropriate
action, and for misapplication of therapies or misuse of devices. Lack of knowledge and
poor judgment are also major causes of litigation.

Pepper (1995) reports a case study derived from actual occurrences

demonstrating the consequences of lack of knowledge, poor judgment and inattention
to orders. A staff nurse administered 40 meq of potassium chloride by injection to an
elderly man. The order was for 40 mg of Lasix, IV push. The man expired and the family
filed suit. The board of nursing investigated the nurse, nursing supervisors and vice
president for nursing as this was the staff nurse's third medication error. The board of
nursing put the staff nurse on probation for eight months. The employer terminated the
staff nurse's employment on the advice of the hospital's risk manager.

Two recent cases demonstrate the nature of today's lawsuits against nurse
practitioners. In the first instance, a nurse practitioner failed to diagnose a myocardial
infarction even though the patient presented such classic signs and symptoms as chest
and arm pain, obesity, and a family history of heart disease. In the second example, a
nurse practitioner failed to diagnose and treat cervical cancer.

The Size of Awards

Some cases can be settled for as little as $ 1,000 and others are settled in the
millions of dollars. Northrop (1989) examined ten nursing negligence cases published
between March and August 1989 and found that three of the cases were decided for the
plaintiff. In these three cases the jury verdicts were $2,089,886.92, $ 20,000, and
$2,300,000. Northrup (1989) reports that the cases resulting in these verdicts involved
the following "poor" nursing practices:

The first jury verdict revolved around trauma suffered by an infant that
was mishandled by nursing staff.

The second verdict resulted from an incorrect sponge count by circulating

and scrub nurses which caused patient injury.

The third verdict resulted from the failure of nurses to recognize a post-
surgery emergency, failure to notify physicians in a timely manner, and an
inadequate medical record.

Student Nurses

Student nurses can be held liable for their actions and can be sued. A student
nurse is held to the same standard of care as a registered nurse when performing RN
duties. If a student nurse cannot safely function in the performance of these duties
while unsupervised, the student should not be carrying out the duties. Kelly and Joel
(1995) report the case of a first year student who administered an intramuscular
injection into a patient's sciatic nerve causing severe damage. The student was found to
be negligent because she should have known the proper procedure and taken special
precautions with the patient who was very thin. In another set of circumstances, the
instructor might have been found liable on the basis of inadequate supervision had the
instructor given the task to the student knowing the student was not capable or
competent to perform the task.

Kelly and Joel (1995) report another student case involving student and teacher
responsibility. In this case, Central Anesthesia Associates v. Worthy (1985), a senior
student nurse anesthetist was accused of causing injury to a patient by improper
administration of anesthesia. The student nurse anesthetist was under the supervision
of a physician's assistant employed by the corporation that had the nurse anesthetist
program. The court held the student liable and failing to meet the standard of a Certified
Nurse Anesthetist. The anesthesiologist teachers were held liable for not delegating
properly, and the PA was held liable for not supervising adequately.

Protection Against Suits

Nurses must continuously monitor their practice to manage away from risk.
Keeping up to date on new technologies, treatment modalities, medications, and
employer policies and procedures is a must. Current knowledge about professional
standards, codes of conduct, and accreditation criteria are also important. Familiarity
with the reasons nurses are sued is also relevant to managing risk.

A professional liability insurance policy is another risk management tool. Liability

insurance protects against the financial consequences of suits. Insurance is basically a
contract between an insured and an insurance company that upon the payment of a
premium the company will provide the insured certain financial payments when the
insured is accused of causing injury to another.

Often, nurses believe that an employer's liability insurance is all the coverage
needed. O'Sullivan (1996) points out that some hospital policies have not kept up with
the changing role of the nurse and that an employer's policy may not cover nurses off-
duty or volunteering in a community role. O'Sullivan (1996) also advises that nurses can
no longer assume the hospital will provide the best defense in lawsuits as a hospital
attorney's primary concern will be the hospital; concern for the nurse will be secondary.

There are also a number of myths about liability insurance in the nursing
profession. One myth is that a nurse runs a greater risk of being sued if the nurse has
liability insurance. "In reality, lawyers normally do not know if the nurse named in
lawsuits has extra insurance or not" (O'Sullivan, 1996). Another myth is that a nurse
who purchases liability insurance is no longer covered by an employer's policy. It is
illegal for an employer's policy to drop an employee because he/she has liability
insurance.

Summary

Nurses, like people in almost every walk of life, can be sued. Nurses are held
accountable for their practice by virtue of various laws and regulations. Standards of
conduct set by professional organizations and employing agencies also dictate norms to
which nurses can be held accountable. The changing healthcare environment and the
evolution of the nursing profession also contribute to the changing nature of liability for
today's nursing professional. An occasional review of claims brought against nurses can
help the practitioner identify actions that might lead to malpractice and guide the nurse
in managing risk in day to day practice. Liability insurance is one of the best risk
management tools for the registered nurse's risk management tool kit.

Pinoy nurse widower fights deportation in UK

Britain is deporting the Filipino husband of a nurse who died in 2004 in what was
believed to be a case of medical malpractice.

Arnel Cabrera, 38, was given until the end of February to pack his things and return
to the Philippines upon completion of the inquest proceedings on the case involving
the death of his wife, Mayra, 30.

Arnel is currently appealing to the Home Office to allow him to stay in England and
raise his three-year-old son, Zachary. He is facing deportation because his visa was
dependent on his wife working.

Mayra died shortly after giving birth to Zac on May 11, 2004 after an epidural
anaesthetic was wrongly injected into her arm during childbirth rather than into the
space of her spinal cord. The incident happened at Great Western Hospital, Swindon,
Wiltshire where she was working as a theatre nurse since moving to Britain in 2002.

Arnel was initially told by doctors that his wife died from a rare amniotic fluid
embolism. Later, he learned that she died because the drug Bupivacaine was wrongly
administered.

At the inquest into Mayras death on Monday, Arnel said they went to the United
Kingdom in 2002 to start a new life.

"The person who gave Mayra that drug robbed me of my family. I want to know how
it happened. I can't forget. I need to know whether the action was intentional or
unintentional. How can anyone make this kind of error and not be made to answer
for it? I was very angry I'd been lied to for so long about how my wife died," said
Arnel, who worked as a technician at the hospital.

Doctors should have eased her birth pains by giving her an anaesthetic in the
epidural space in the spinal cord.

Reports said UK women give birth with help of an epidural. It is a local anaesthetic
injected into the lower spine to relieve pain in labor.

But the drug was fed from a drip bag wrongly connected to a tube leading into her
right hand, the inquest at Trowbridge, Wilts, heard. The tube was intended for
another painkiller or saline solution.

The couple went to the hospital before 4 a.m. on May 11, 2004. At 8:14 a.m, a
healthy 8-pound Zachary was delivered with forceps.
But by 9 a.m., Mayra began to feel dizzy. She started to fit and frothed at the mouth
before having a heart attack.

Efforts to resuscitate her failed and she was pronounced dead at 10:47 a.m.

Hospital negligence issue nothing new

By Ramon Tulfo
Inquirer
First Posted 04:18:00 10/28/2006

Filed Under: Health, Medical staff

Published on Page A19 of the October 28, 2006 issue of the Philippine Daily Inquirer

HEALTH Secretary Francisco Duque III recently came out with the results of an
investigation of the Rizal Medical Center, saying the deaths of seven new-born infants at
the facility were not caused by the hospitals negligence and dirty equipment. The
investigation also showed the babies mothers had infection of the blood which they had
not acquired at the hospital, he added.

Although Duque said the investigation revealed some degree of negligence on the part
of the hospital, Duque said the probe team did not find a link between contaminated
equipment and the outbreak of neonatal sepsis, the cause of the infants deaths.

Were the probers dined and wined so they would come up with a decision favorable to
the government hospital? If not, were they motivated by camaraderiethe them and us
syndromesince those involved are government health people and the probers are from
the Department of Health?

A former student nurse, who did on-the-job training at the RMC three years ago, said the
hospital had dirty equipment and the staff didnt care to sterilize these. The complainant,
now a licensed nurse, said the staff didnt have any regard for the patients well-being.
Doctors and nurses were also allegedly arrogant toward mothers about to have babies.

As I said in my column dated Oct. 17, the alleged shabby treatment of patients at the
RMC delivery room was brought to my attention by the student nurse in the now defunct
Isumbong mo kay Tulfo program. This columnist, in turn, informed Dr. Winston Go,
RMC director, about the complaint.

You know what happened to the nurse? She was expelled by her school for coming to
me.

I fought for the student nurse and got the services of lawyer-friend, Vicente Chuidian,
who made representations with the university to reinstate her.
Because my attention was now focused on having the student reinstated, the complaint
on how the RMC staff handled their patients was shelved and eventually forgotten.

SC Holds Hospital, Doctor Liable for Medical Negligence

Posted: February 6, 2007
By Jay B. Rempillo

The Supreme Court has upheld the solidary liability of the owners of the Medical City General
Hospital and Dr. Miguel Ampil, a member of its surgical staff, in the amount of over PhP3 million
for medical negligence for leaving behind two pieces of gauze inside a patients body during
surgery in 1984.

In a 26-page decision penned by Justice Angelina Sandoval-Gutierrez, the Courts First Division
affirmed the Court of Appeals September 6, 1996 decision affirming with modification the March
17, 1993 decision of the Quezon City Regional Trial Court, Branch 96 and nullifying the RTCs
order dated September 21, 1993. The Court held both the Professional Services, Inc. (PSI),
owner of the Medical City Hospital, and Dr. Ampil liable for the injury sustained by Natividad
Agana.

The Court said Dr. Ampils negligence was the proximate cause of Natividads injury, which could
be traced from his act of closing the incision despite the information given by the attending
nurses that two pieces of gauze were still missing. It found that Dr. Ampil did not inform
Natividad about the two missing pieces of gauze. Worse, he even misled her that the pain she
experienced after the procedure was the ordinary consequence of her operation. Natividad died
in 1986.

To our mind, what was initially an act of negligence by Dr. Ampil has ripened into a deliberate
wrongful act of deceiving his patientThis is a clear case of medical malpractice or more
appropriately, medical negligence, the Court said.

The Court noted that it is not blind to the reality that there are times when danger to a patients
life precludes a surgeon from further searching missing sponges or foreign objects left in the
body. Such, however, does not leave him free from any obligation, the Court stressed.

Citing Ramos v. CA, the Court said that PSI was liable since an employer-employee relationship
exists between PSI and Dr. Ampil. Likewise, it added that PSIs liability is anchored upon the
agency principle of apparent authority or agency by estoppel and the doctrine of corporate
negligence which have gained acceptance in the determination of a hospitals liability for
negligent acts of health professionals. The present case serves as a perfect platform to test the
applicability of these doctrines, thus, enriching our jurisprudence, the Court said.
By accrediting Dr. Ampil and Dr. Juan Fuentes, who performed additional surgery on Natividad,
and publicly advertising their qualifications, the hospital created the impression that they were its
agents, authorized to perform medical or surgical services for its patients, it added.

The Court upheld the trial courts finding holding PSI directly liable for breach of duty based on
the doctrine of corporate negligence. It noted that Dr. Ampil and Dr. Fuentes operated on
Natividad with the assistance of Medical City Hospitals staff. As such, it is reasonable to conclude
that PSI, as the operator of the hospital, has actual or constructive knowledge of the procedures
carried out, particularly the report of the attending nurses that the two pieces of gauze were
missing.

By its failure to investigate and inform Natividad despite the attending nurses report, PSI not
only breached its duties to oversee or supervise all persons who practice medicine within its walls
but also failed to take an active step in fixing the negligence committed, the Court stressed.

The Court however said that the CA did not err in absolving Dr. Fuentes who assisted Dr. Ampil
in the operation. It stressed that Dr. Ampil was the lead surgeon during Natividads operation and
that Dr. Ampil had examined Dr. Fuentes work and finding it to be in order allowed him to leave
the operating room.

In 1984, Natividad underwent surgery for cancer of the sigmoid. The sigmoid colon joins the
rectum, which in turn joins the anus, or the opening where waste matter, or stool, passes out of
the body. Dr. Ampil, who performed the surgery, found that the cancer had spread to her left
ovary, necessitating the removal of certain portions of it through a hysterectomy by Dr. Fuentes.
After Dr. Fuentes performed the surgery, Dr. Ampil completed operation and closed the incision.
Operation records showed that the attending nurses entered among remarks, sponge count
lacking 2, and announced to surgeon searched (sic) done but to no avail continue for closure.

After her subsequent discharge from the hospital, Natividad complained of pains but were told by
Dr. Ampil and Dr. Fuentes that the pain was the natural consequence of the surgery. She later
sought further treatment in the United States and was told she was free of cancer.

In August 1984, Natividad went back to Philippines. Later, her daughter found a piece of gauze
protruding from her reproductive organ. Dr. Ampil subsequently extracted by hand a piece of
gauze and assured Natividad that the pain would vanish.

When the pain intensified, Natividad sought treatment at Polymedic General Hospital where a
doctor found another foul smelling gauze which badly infected her vaginal vault. She underwent
another surgery and subsequently filed a complaint for damages with the RTC.

On March 17, 1993, the RTC ruled in Natividads favor finding PSI, Dr. Ampil, and Dr. Fuentes
liable for negligence and malpractice.

On appeal, the CA dismissed the case against Fuentes and held both PSI and Dr. Ampil liable for
medical negligence. Dr. Ampil elevated the case to the High Court when the CA denied his
motion for reconsideration.

Concurring were Division Chair Chief Justice Reynato S. Puno and members Renato C. Corona
and Adolfo S. Azcuna. Justice Cancio C. Garcia did not take part in the deliberations. (Professional
Services, Inc v. Agana and Agana, GR No. 126297; Agana, et al. v. Fuentes, GR No. 126467;
Ampil v. Agana and Agana; GR No. 127590; January 31, 2007)
 Liability Of Hospitals Under The Doctrine of Apparent
Authority and Doctrine of Corporate Negligence

The case of Professional Services, Inc. v. Agana, G.R. No. 126297; Agana, et al. v.
Fuentes, G.R. No. 126467; Ampil v. Agana, et al., G.R. No. 127590, January 31, 2007
set the precedent for the liability of hospitals for the negligence of doctors employed by
it, or even consultants. The SC said that courts in holding a hospital liable for damages,
having undertaken one of mankinds most important and delicate endeavors, must
assume the grave responsibility of pursuing it with appropriate care. The care and
service dispensed through this high trust, however technical, complex and esoteric its
character may be, must meet standards of responsibility commensurate with the
undertaking to preserve and protect the health, and indeed, the very lives of those
placed in the hospitals keeping. (Beeck v. Tuzon General Hospital, 500 P. 2d 1153
(1972), citing Darling v. Charleston Community Memorial Hospital, 33 Ill. 2d 326, 211
N.E. 2d 253).

Dr. Ampil, assisted by the medical staff of the Medical City Hospital, performed an
anterior resection surgery on Natividad. He found that the malignancy in her sigmoid
area had spread on her left ovary, necessitating the removal of certain portions of it.
Thus, Dr. Ampil obtained the consent of Natividads husband, Enrique Agana, to permit
Dr. Juan Fuentes, to perform hysterectomy on her.

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the
operation and closed the incision.

The operation appeared to be flawed, because the attending nurse entered these
remarks:

sponge count lacking 2

announced to surgeon searched (sic) done but to no avail continue for closure.

Natividad was released from the hospital, but later on complained of excruciating pain in
her anal region. She consulted both doctors about it. They told her that the pain is the
natural consequence of the surgery. Dr. Ampil then recommended that she consult an
oncologist to examine the cancerous nodes which were not removed during the
operation.

Accompanied by her husband she went to the United States to seek further treatment.
After four months of consultations and laboratory examinations, she was told she was
free of cancer. Hence, she was advised to return to the Philippines.

After her return to the Philippines, her daughter found a piece of gauze protruding from
her vagina. Upon being informed about it, Dr. Ampil proceeded to her house where he
managed to extract by hand a piece of gauze measuring 1.5 inches in width. He then
assured her that the pains would soon vanish.

Dr. Ampils assurance did not come true. Instead, the pains intensified, prompting
Natividad to seek treatment at the Polymedic General Hospital. While confined there, Dr.
Ramon Gutierrez detected the presence of another foreign object in her vagina a foul-
smelling gauze measuring 1.5 inches in width badly infected her vaginal vault. A recto-
vaginal fistula had formed in her reproductive organs which forced stool to excrete
through the vagina. Another surgical operation was needed to remedy the damage.
Thus, in October 1984, she underwent another surgery.

The spouses filed a complaint for damages alleging that the doctors are liable for
negligence for leaving two pieces of gauze inside Natividads body and malpractice for
concealing their acts of negligence.

On February 16, 1986, pending the outcome of the above case, she died and was duly
substituted by her children.

The trial court rendered a judgment holding the doctors liable for negligence and
malpractice.

On appeal, the CA dismissed the case against Dr. Fuentes but affirmed the judgment
against Dr. Ampil and the hospital.

On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of
CA-GR CV No. 42062 and CA-GR SP No. 32198, dismissing the case against Dr. Fuentes
and holding PSI and Dr. Ampil solidarily liable.

Only Dr. Ampil filed a motion for reconsideration, but was denied.

PSI alleged in its petition that the Court of Appeals erred in holding that: (1) it is
estopped from raising the defense that Dr. Ampil is not its employee; (2) it is solidarily
liable with Dr. Ampil; and (3) it is not entitled to its counterclaim against the Aganas.
PSI contended that Dr. Ampil is not its employee, but a mere consultant or independent
contractor. As such, he alone should answer for his negligence.

The Aganas maintained that the Court of Appeals erred in finding that Dr. Fuentes is not
guilty of negligence or medical malpractice, invoking the doctrine of res ipsa loquitur.
They contended that the pieces of gauze are prima facie proofs that the operating
surgeons have been negligent.
Dr. Ampil asserted that the Court of Appeals erred in finding him liable for negligence
and malpractice sans evidence that he left the two pieces of gauze in Natividads vagina.
He pointed to other probable cause, such as: (1) it was Dr. Fuentes who used gauzes in
performing the hysterectomy; (2) the attending nurses failure to properly count the
gauzes used during surgery; and (3) the medical intervention of the American doctors
who examined Natividad in the United States of America.

The issues submitted to the court were: first, whether the Court of Appeals erred in
holding Dr. Ampil liable for negligence and malpractice; second, whether the Court of
Appeals erred in absolving Dr. Fuentes of any liability; and third, whether PSI may be
held solidarily liable for the negligence of Dr. Ampil.

Held: (1) Whether the Court of Appeals erred in holding Dr. Ampil liable for negligence
and malpractice.

Dr. Ampil argued that the Court should not discount either of the following possibilities:
first, Dr. Fuentes left the gauzes in Natividads body after performing hysterectomy;
second, the attending nurses erred in counting the gauzes; and third, the American
doctors were the ones who placed the gauzes in Natividads body.

The arguments are purely conjectural and without basis. Records show that he did not
present any evidence to prove that the American doctors were the ones who put or left
the gauzes in Natividads body. Neither did he submit evidence to rebut the correctness
of the record of operation, particularly the number of gauzes used. As to the alleged
negligence of Dr. Fuentes, Dr. Ampil examined his work and found it in order.

The glaring truth is that all the major circumstances, taken together, as specified by the
Court of Appeals, directly point to Dr. Ampil as the negligent party, thus:

First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding
of the patient during the surgical operation.

Second, immediately after the operation, the nurses who assisted in the surgery noted
in their support that the sponge count (was) lacking 2; that such anomaly was
announced to surgeon and that a search was done but to no avail prompting Dr. Ampil
to continue for closure x x x.

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

An operation requiring the placing of sponges in the incision is not complete until the
sponges are properly removed, and it is settled that the leaving of sponges or other
foreign substances in the wound after the incision has been closed is at least prima facie
negligence by the operating surgeon. (Rule v. Cheeseman, 317 P. 2d 472 (1957), citing
Russel v. Newman, 116 Kan. 268 P. 752; Bernsden v. Johnson, 174 Kan. 230, 255 P. 2d
1033). To put simply, such act is considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of authorities to the effect that such act
is negligence per se.

The SC further ruled that it is not blind to the reality that there are times when danger
to a patients life precludes a surgeon from further searching missing sponges or foreign
objects left in the body. But this does not leave him free from any obligation. Even if it
has been shown that a surgeon was required by the urgent necessities of the case to
leave a sponge in his patients abdomen, because of the dangers attendant upon delay,
still, it is his legal duty to so inform his patient within a reasonable time thereafter by
advising her of what he had been compelled to do. This is in order that she might seek
relief from the effects of the foreign object left in her body as her condition might
permit. In Smith v. Zeagler, it was ruled, thus:

The removal of all sponges used is part of a surgical operation, and when a physician
or surgeon fails to remove a sponge he has placed in his patients body that should be
removed as part of the operation, he thereby leaves his operation uncompleted and
creates a new condition which imposes upon him the legal duty of calling the new
condition to his patients attention, and endeavoring with the means he has at hand to
minimize and avoid untoward results likely to ensue therefrom. (157 So. 328 Pla.
(1934)).

Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he
even misled her that the pain she was experiencing was the ordinary consequence of
her operation. Had he been more candid, Natividad could have taken the immediate and
appropriate medical remedy to remove the gauzes from her body. What was initially an
act of negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his
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. (Garcia-Rueda v.
Pascasio, G.R. No. 118141, September 5, 1997, 278 SCRA 769). Simply put, the
elements are duty, breach, injury and proximate causation. Dr. Ampil, as the lead
surgeon, had the duty to remove all foreign objects, such as gauzes, from Natividads
body before closure of the incision. When he failed to do so, it was his duty to inform
Natividad about it. Dr. Ampil breached both duties. Such breach caused injury to
Natividad, necessitating her further examination by American doctors and another
surgery. That Dr. Ampils negligence is the proximate cause of Natividads injury could
be traced from his act of closing the incision despite the information given by the
attending nurses that two pieces of gauze were still missing. That they were later on
extracted from Natividads vagina established the causal link between Dr. Ampils
negligence and the injury. And what further aggravated such injury was his deliberate
concealment of the missing gauzes from the knowledge of Natividad and her family.

(2) Whether the Court of Appeals erred in absolving Dr. Fuentes of any liability.

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on
the ground that it is contrary to the doctrine of res ipsa loquitur. According to them, the
fact that the two pieces of gauze were left inside Natividads body is a prima facie
evidence of Dr. Fuentes negligence.

Held: The SC ruled otherwise.

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. (Ramos
v. CA, G.R. No. 124354, December 29, 1999, 321 SCRA 584). Stated differently, where
the thing which caused the injury, without the fault of the injured, is under the exclusive
control of the defendant and the injury is such that it should not have occurred if he,
having such control used proper care, it affords reasonable evidence, in the absence of
explanation that the injury arose from the defendants want of care, and the burden of
proof is shifted to him to establish that he has observed due care and diligence. (Africa
v. Caltex (Phils.) Inc., 123 Phil. 280).

From the foregoing statements of the rule, the requisites for the applicability of the
doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which
caused the injury was under the control and management of the defendant; (3) the
occurrence was such that in the ordinary course of things, would not have happened if
those who had control or management used proper care; and (4) the absence of
explanation by the defendant. Of the foregoing requisites, the most instrumental is the
control and management of the thing which cause the injury.

The element of control and management of the thing which caused the injury are
wanting in the case. Hence, the doctrine of res ipsa loquitur will not lie.
DECISION

SANDOVAL-GUTIERREZ, J.:

Hospitals, having undertaken one of mankinds most important and delicate endeavors,
must assume the grave responsibility of pursuing it with appropriate care. The care and service
dispensed through this high trust, however technical, complex and esoteric its character may be,
must meet standards of responsibility commensurate with the undertaking to preserve and
protect the health, and indeed, the very lives of those placed in the hospitals keeping.[1]

Assailed in these three consolidated petitions for review on certiorari is the Court of
Appeals Decision[2] dated September 6, 1996 in CA-G.R. CV No. 42062 and CA-G.R. SP No.
32198 affirming with modification the Decision[3] dated March 17, 1993 of the Regional Trial
Court (RTC), Branch 96, Quezon City in Civil Case No. Q-43322 and nullifying its Order dated
September 21, 1993.

The facts, as culled from the records, are:

On April 4, 1984, Natividad Agana was rushed to the Medical City General Hospital
(Medical City Hospital) because of difficulty of bowel movement and bloody anal discharge. After
a series of medical examinations, Dr. Miguel Ampil, petitioner in G.R. No. 127590, diagnosed her
to be suffering from cancer of the sigmoid.

On April 11, 1984, Dr. Ampil, assisted by the medical staff[4] of the Medical City Hospital,
performed an anterior resection surgery on Natividad. He found that the malignancy in her
sigmoid area had spread on her left ovary, necessitating the removal of certain portions of it.
Thus, Dr. Ampil obtained the consent of Natividads husband, Enrique Agana, to permit Dr. Juan
Fuentes, respondent in G.R. No. 126467, to perform hysterectomy on her.

After Dr. Fuentes had completed the hysterectomy, Dr. Ampil took over, completed the
operation and closed the incision.

However, the operation appeared to be flawed. In the corresponding Record of Operation

dated April 11, 1984, the attending nurses entered these remarks:

sponge count lacking 2

announced to surgeon searched (sic) done but to no avail continue for closure.

On April 24, 1984, Natividad was released from the hospital. Her hospital and medical
bills, including the doctors fees, amounted to P60,000.00.
 After a couple of days, Natividad complained of excruciating pain in her anal region. She
consulted both Dr. Ampil and Dr. Fuentes about it. They told her that the pain was the natural
consequence of the surgery. Dr. Ampil then recommended that she consult an oncologist to
examine the cancerous nodes which were not removed during the operation.

On May 9, 1984, Natividad, accompanied by her husband, went to the United States to
seek further treatment. After four months of consultations and laboratory examinations,
Natividad was told she was free of cancer. Hence, she was advised to return to the Philippines.

On August 31, 1984, Natividad flew back to the Philippines, still suffering from pains. Two
weeks thereafter, her daughter found a piece of gauze protruding from her vagina. Upon being
informed about it, Dr. Ampil proceeded to her house where he managed to extract by hand a
piece of gauze measuring 1.5 inches in width. He then assured her that the pains would soon
vanish.

Dr. Ampils assurance did not come true. Instead, the pains intensified, prompting
Natividad to seek treatment at the Polymedic General Hospital. While confined there, Dr. Ramon
Gutierrez detected the presence of another foreign object in her vagina -- a foul-smelling gauze
measuring 1.5 inches in width which badly infected her vaginal vault. A recto-vaginal fistula had
formed in her reproductive organs which forced stool to excrete through the vagina. Another
surgical operation was needed to remedy the damage. Thus, in October 1984, Natividad
underwent another surgery.

On November 12, 1984, Natividad and her husband filed with the RTC, Branch 96, Quezon
City a complaint for damages against the Professional Services, Inc. (PSI), owner of the Medical
City Hospital, Dr. Ampil, and Dr. Fuentes, docketed as Civil Case No. Q-43322. They
alleged that the latter are liable for negligence for leaving two pieces of gauze inside Natividads
body and malpractice for concealing their acts of negligence.

Meanwhile, Enrique Agana also filed with the Professional Regulation Commission (PRC)
an administrative complaint for gross negligence and malpractice against Dr. Ampil and Dr.
Fuentes, docketed as Administrative Case No. 1690. The PRC Board of Medicine heard the case
only with respect to Dr. Fuentes because it failed to acquire jurisdiction over Dr. Ampil who was
then in the United States.

On February 16, 1986, pending the outcome of the above cases, Natividad died and was
duly substituted by her above-named children (the Aganas).

On March 17, 1993, the RTC rendered its Decision in favor of the Aganas, finding PSI, Dr.
Ampil and Dr. Fuentes liable for negligence and malpractice, the decretal part of which reads:

WHEREFORE, judgment is hereby rendered for the plaintiffs ordering the defendants
PROFESSIONAL SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN FUENTES to pay to the
plaintiffs, jointly and severally, except in respect of the award for exemplary damages and the
interest thereon which are the liabilities of defendants Dr. Ampil and Dr. Fuentes only, as follows:

1. As actual damages, the following amounts:

a. The equivalent in Philippine Currency of the total of US$19,900.00 at the rate of P21.60-
US$1.00, as reimbursement of actual expenses incurred in the United States of America;

b. The sum of P4,800.00 as travel taxes of plaintiffs and their physician daughter;
c. The total sum of P45,802.50, representing the cost of hospitalization at Polymedic
Hospital, medical fees, and cost of the saline solution;

2. As moral damages, the sum of P2,000,000.00;

3. As exemplary damages, the sum of P300,000.00;

4. As attorneys fees, the sum of P250,000.00;

5. Legal interest on items 1 (a), (b), and (c); 2; and 3 hereinabove, from date of filing of the
complaint until full payment; and

6. Costs of suit.

SO ORDERED.

Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the Court of Appeals,
docketed as CA-G.R. CV No. 42062.

Incidentally, on April 3, 1993, the Aganas filed with the RTC a motion for a partial
execution of its Decision, which was granted in an Order dated May 11, 1993. Thereafter, the
sheriff levied upon certain properties of Dr. Ampil and sold them for P451,275.00 and delivered
the amount to the Aganas.

Following their receipt of the money, the Aganas entered into an agreement with PSI and
Dr. Fuentes to indefinitely suspend any further execution of the RTC Decision. However, not long
thereafter, the Aganas again filed a motion for an alias writ of execution against the properties of
PSI and Dr. Fuentes. On September 21, 1993, the RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a petition for
certiorari and prohibition, with prayer for preliminary injunction, docketed as CA-G.R. SP No.
32198. During its pendency, the Court of Appeals issued a Resolution[5] dated October 29, 1993
granting Dr. Fuentes prayer for injunctive relief.

On January 24, 1994, CA-G.R. SP No. 32198 was consolidated with CA-G.R. CV No. 42062.

Meanwhile, on January 23, 1995, the PRC Board of Medicine rendered its Decision[6] in
Administrative Case No. 1690 dismissing the case against Dr. Fuentes. The Board held that the
prosecution failed to show that Dr. Fuentes was the one who left the two pieces of gauze inside
Natividads body; and that he concealed such fact from Natividad.

On September 6, 1996, the Court of Appeals rendered its Decision jointly disposing of CA-
G.R. CV No. 42062 and CA-G.R. SP No. 32198, thus:

WHEREFORE, except for the modification that the case against defendant-appellant Dr.
Juan Fuentes is hereby DISMISSED, and with the pronouncement that defendant-appellant Dr.
Miguel Ampil is liable to reimburse defendant-appellant Professional Services, Inc., whatever
amount the latter will pay or had paid to the plaintiffs-appellees, the decision appealed from is
hereby AFFIRMED and the instant appeal DISMISSED.

Concomitant with the above, the petition for certiorari and prohibition filed by herein
defendant-appellant Dr. Juan Fuentes in CA-G.R. SP No. 32198 is hereby GRANTED and the
challenged order of the respondent judge dated September 21, 1993, as well as the alias writ of
execution issued pursuant thereto are hereby NULLIFIED and SET ASIDE. The bond posted by
the petitioner in connection with the writ of preliminary injunction issued by this Court on
November 29, 1993 is hereby cancelled.

Costs against defendants-appellants Dr. Miguel Ampil and Professional Services, Inc.

SO ORDERED.

Only Dr. Ampil filed a motion for reconsideration, but it was denied in a Resolution[7] dated
December 19, 1996.

Hence, the instant consolidated petitions.

In G.R. No. 126297, PSI alleged in its petition that the Court of Appeals erred in holding
that: (1) it is estopped from raising the defense that Dr. Ampil is not its employee; (2) it is
solidarily liable with Dr. Ampil; and (3) it is not entitled to its counterclaim against the Aganas.
PSI contends that Dr. Ampil is not its employee, but a mere consultant or independent
contractor. As such, he alone should answer for his negligence.

In G.R. No. 126467, the Aganas maintain that the Court of Appeals erred in finding that
Dr. Fuentes is not guilty of negligence or medical malpractice, invoking the doctrine of res ipsa
loquitur. They contend that the pieces of gauze are prima facie proofs that the operating
surgeons have been negligent.

Finally, in G.R. No. 127590, Dr. Ampil asserts that the Court of Appeals erred in finding
him liable for negligence and malpractice sans evidence that he left the two pieces of gauze in
Natividads vagina. He pointed to other probable causes, such as: (1) it was Dr. Fuentes who
used gauzes in performing the hysterectomy; (2) the attending nurses failure to properly count
the gauzes used during surgery; and (3) the medical intervention of the American doctors who
examined Natividad in the United States of America.

For our resolution are these three vital issues: first, whether the Court of Appeals erred in holding
Dr. Ampil liable for negligence and malpractice; second, whether the Court of Appeals erred in
absolving Dr. Fuentes of any liability; and third, whether PSI may be held solidarily liable for the
negligence of Dr. Ampil.

I - G.R. No. 127590

Whether the Court of Appeals Erred in Holding Dr. Ampil
Liable for Negligence and Malpractice.

Dr. Ampil, in an attempt to absolve himself, gears the Courts attention to other possible
causes of Natividads detriment. He argues that the Court should not discount either of the
following possibilities: first, Dr. Fuentes left the gauzes in Natividads body after
performing hysterectomy; second, the attending nurses erred in counting the gauzes; and third,
the American doctors were the ones who placed the gauzes in Natividads body.

Dr. Ampils arguments are purely conjectural and without basis. Records show that he did not
present any evidence to prove that the American doctors were the ones who put or left the
gauzes in Natividads body. Neither did he submit evidence to rebut the correctness of the
record of operation, particularly the number of gauzes used. As to the alleged negligence of Dr.
Fuentes, we are mindful that Dr. Ampil examined his (Dr. Fuentes) work and found it in order.
 The glaring truth is that all the major circumstances, taken together, as specified by the
Court of Appeals, directly point to Dr. Ampil as the negligent party, thus:

First, it is not disputed that the surgeons used gauzes as sponges to control the bleeding of the
patient during the surgical operation.
Second, immediately after the operation, the nurses who assisted in the surgery noted in their
report that the sponge count (was) lacking 2; that such anomaly was announced to surgeon
and that a search was done but to no avail prompting Dr. Ampil to continue for closure x x x.
Third, after the operation, two (2) gauzes were extracted from the same spot of the body of Mrs.
Agana where the surgery was performed.

An operation requiring the placing of sponges in the incision is not complete until the sponges
are properly removed, and it is settled that the leaving of sponges or other foreign substances in
the wound after the incision has been closed is at least prima facie negligence by the operating
surgeon.[8] To put it simply, such act is considered so inconsistent with due care as to raise an
inference of negligence. There are even legions of authorities to the effect that such act is
negligence per se.[9]

Of course, the Court is not blind to the reality that there are times when danger to a patients life
precludes a surgeon from further searching missing sponges or foreign objects left in the body.
But this does not leave him free from any obligation. Even if it has been shown that a surgeon
was required by the urgent necessities of the case to leave a sponge in his patients abdomen,
because of the dangers attendant upon delay, still, it is his legal duty to so inform his patient
within a reasonable time thereafter by advising her of what he had been compelled to do. This
is in order that she might seek relief from the effects of the foreign object left in her body as her
condition might permit. The ruling in Smith v. Zeagler[10] is explicit, thus:

The removal of all sponges used is part of a surgical operation, and when a physician or surgeon
fails to remove a sponge he has placed in his patients body that should be removed as part of
the operation, he thereby leaves his operation uncompleted and creates a new condition which
imposes upon him the legal duty of calling the new condition to his patients attention, and
endeavoring with the means he has at hand to minimize and avoid untoward results likely to
ensue therefrom.

Here, Dr. Ampil did not inform Natividad about the missing two pieces of gauze. Worse, he even
misled her that the pain she was experiencing was the ordinary consequence of her operation.
Had he been more candid, Natividad could have taken the immediate and appropriate medical
remedy to remove the gauzes from her body. To our mind, what was initially an act of
negligence by Dr. Ampil has ripened into a deliberate wrongful act of deceiving his patient.

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

successfully pursue this kind of case, a patient must only prove that a health care provider either
failed to do something which a reasonably prudent health care provider would have done, or that
he did something that a reasonably prudent provider would not have done; and that failure or
action caused injury to the patient.[11] Simply put, the elements are duty, breach, injury and
proximate causation. Dr, Ampil, as the lead surgeon, had the duty to remove all foreign objects,
such as gauzes, from Natividads body before closure of the incision. When he failed to do so, it
was his duty to inform Natividad about it. Dr. Ampil breached both duties. Such breach caused
injury to Natividad, necessitating her further examination by American doctors and another
surgery. That Dr. Ampils negligence is the proximate cause[12] of Natividads injury could be
traced from his act of closing the incision despite the information given by the attending nurses
that two pieces of gauze were still missing. That they were later on extracted from Natividads
vagina established the causal link between Dr. Ampils negligence and the injury. And what
further aggravated such injury was his deliberate concealment of the missing gauzes from the
knowledge of Natividad and her family.

II - G.R. No. 126467

Whether the Court of Appeals Erred in Absolving
Dr. Fuentes of any Liability

The Aganas assailed the dismissal by the trial court of the case against Dr. Fuentes on the
ground that it is contrary to the doctrine of res ipsa loquitur. According to them, the fact that the
two pieces of gauze were left inside Natividads body is a prima facie evidence of Dr. Fuentes
negligence.

We are not convinced.

Literally, res ipsa loquitur means the thing speaks for itself. It is the rule that the fact of
the occurrence of an injury, taken with the surrounding circumstances, may permit an inference
or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a
question of fact for defendant to meet with an explanation.[13] Stated differently, where the
thing which caused the injury, without the fault of the injured, is under the exclusive control of
the defendant and the injury is such that it should not have occurred if he, having such control
used proper care, it affords reasonable evidence, in the absence of explanation that the injury
arose from the defendants want of care, and the burden of proof is shifted to him to establish
that he has observed due care and diligence.[14]

From the foregoing statements of the rule, the requisites for the applicability of the
doctrine of res ipsa loquitur are: (1) the occurrence of an injury; (2) the thing which caused the
injury was under the control and management of the defendant; (3) the occurrence was such
that in the ordinary course of things, would not have happened if those who had control or
management used proper care; and (4) the absence of explanation by the defendant. Of the
foregoing requisites, the most instrumental is the control and management of the thing which
caused the injury.[15]

We find the element of control and management of the thing which caused the injury to
be wanting. Hence, the doctrine of res ipsa loquitur will not lie.

It was duly established that Dr. Ampil was the lead surgeon during the operation of
Natividad. He requested the assistance of Dr. Fuentes only to perform hysterectomy when he
(Dr. Ampil) found that the malignancy in her sigmoid area had spread to her left ovary. Dr.
Fuentes performed the surgery and thereafter reported and showed his work to Dr. Ampil. The
latter examined it and finding everything to be in order, allowed Dr. Fuentes to leave the
operating room. Dr. Ampil then resumed operating on Natividad. He was about to finish the
procedure when the attending nurses informed him that two pieces of gauze were missing. A
diligent search was conducted, but the misplaced gauzes were not found. Dr. Ampil then
directed that the incision be closed. During this entire period, Dr. Fuentes was no longer in the
operating room and had, in fact, left the hospital.

Under the Captain of the Ship rule, the operating surgeon is the person in complete
charge of the surgery room and all personnel connected with the operation. Their duty is to
obey his orders.[16] As stated before, Dr. Ampil was the lead surgeon. In other words, he
was the Captain of the Ship. That he discharged such role is evident from his following
conduct: (1) calling Dr. Fuentes to perform a hysterectomy; (2) examining the work of Dr.
Fuentes and finding it in order; (3) granting Dr. Fuentes permission to leave; and (4) ordering
the closure of the incision. To our mind, it was this act of ordering the closure of the incision
notwithstanding that two pieces of gauze remained unaccounted for, that caused injury to
Natividads body. Clearly, the control and management of the thing which caused the injury was
in the hands of Dr. Ampil, not Dr. Fuentes.

In this jurisdiction, res ipsa loquitur is not a rule of substantive law, hence, does not per
se create or constitute an independent or separate ground of liability, being a mere evidentiary
rule.[17] In other words, mere invocation and application of the doctrine does not dispense with
the requirement of proof of negligence. Here, the negligence was proven to have been
committed by Dr. Ampil and not by Dr. Fuentes.

III - G.R. No. 126297

Whether PSI Is Liable for the Negligence of Dr. Ampil

The third issue necessitates a glimpse at the historical development of hospitals and the
resulting theories concerning their liability for the negligence of physicians.

Until the mid-nineteenth century, hospitals were generally charitable institutions, providing
medical services to the lowest classes of society, without regard for a patients ability to pay.[18]
Those who could afford medical treatment were usually treated at home by their doctors.[19]
However, the days of house calls and philanthropic health care are over. The modern health
care industry continues to distance itself from its charitable past and has experienced a
significant conversion from a not-for-profit health care to for-profit hospital businesses.
Consequently, significant changes in health law have accompanied the business-related changes
in the hospital industry. One important legal change is an increase in hospital liability for medical
malpractice. Many courts now allow claims for hospital vicarious liability under the theories of
respondeat superior, apparent authority, ostensible authority, or agency by estoppel. [20]

In this jurisdiction, the statute governing liability for negligent acts is Article 2176 of the Civil
Code, which reads:

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

A derivative of this provision is Article 2180, the rule governing vicarious liability under the
doctrine of respondeat superior, thus:

ART. 2180. The obligation imposed by Article 2176 is demandable not only for ones own
acts or omissions, but also for those of persons for whom one is responsible.
x x x x x x
The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are
employed or on the occasion of their functions.

Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks even though the former are not engaged
in any business or industry.
x x x x x x
 The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to prevent
damage.

A prominent civilist commented that professionals engaged by an employer, such as

physicians, dentists, and pharmacists, are not employees under this article because the manner
in which they perform their work is not within the control of the latter (employer). In other
words, professionals are considered personally liable for the fault or negligence they commit in
the discharge of their duties, and their employer cannot be held liable for such fault or
negligence. In the context of the present case, a hospital cannot be held liable for the fault or
negligence of a physician or surgeon in the treatment or operation of patients.[21]

The foregoing view is grounded on the traditional notion that the professional status and
the very nature of the physicians calling preclude him from being classed as an agent or
employee of a hospital, whenever he acts in a professional capacity.[22] It has been said that
medical practice strictly involves highly developed and specialized knowledge,[23] such that
physicians are generally free to exercise their own skill and judgment in rendering medical
services sans interference.[24] Hence, when a doctor practices medicine in a hospital setting,
the hospital and its employees are deemed to subserve him in his ministrations to the patient and
his actions are of his own responsibility.[25]

The case of Schloendorff v. Society of New York Hospital[26] was then considered an
authority for this view. The Schloendorff doctrine regards a physician, even if employed by a
hospital, as an independent contractor because of the skill he exercises and the lack of control
exerted over his work. Under this doctrine, hospitals are exempt from the application of the
respondeat superior principle for fault or negligence committed by physicians in the discharge of
their profession.

However, the efficacy of the foregoing doctrine has weakened with the significant developments
in medical care. Courts came to realize that modern hospitals are increasingly taking active role
in supplying and regulating medical care to patients. No longer were a hospitals functions limited
to furnishing room, food, facilities for treatment and operation, and attendants for its patients.
Thus, in Bing v. Thunig,[27] the New York Court of Appeals deviated from the Schloendorff
doctrine, noting that modern hospitals actually do far more than provide facilities for treatment.
Rather, they regularly employ, on a salaried basis, a large staff of physicians, interns, nurses,
administrative and manual workers. They charge patients for medical care and treatment, even
collecting for such services through legal action, if necessary. The court then concluded that
there is no reason to exempt hospitals from the universal rule of respondeat superior.

In our shores, the nature of the relationship between the hospital and the physicians is
rendered inconsequential in view of our categorical pronouncement in Ramos v. Court of
Appeals[28] that for purposes of apportioning responsibility in medical negligence cases, an
employer-employee relationship in effect exists between hospitals and their attending and visiting
physicians. This Court held:

We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting consultants,
who are allegedly not hospital employees, presents problems in apportioning responsibility for
negligence in medical malpractice cases. However, the difficulty is more apparent than real.
In the first place, hospitals exercise significant control in the hiring and firing of consultants and
in the conduct of their work within the hospital premises. Doctors who apply for consultant slots,
visiting or attending, are required to submit proof of completion of residency, their educational
qualifications, generally, evidence of accreditation by the appropriate board (diplomate), evidence
of fellowship in most cases, and references. These requirements are carefully scrutinized by
members of the hospital administration or by a review committee set up by the hospital who
either accept or reject the application. x x x.
After a physician is accepted, either as a visiting or attending consultant, he is normally required
to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and
residents, moderate grand rounds and patient audits and perform other tasks and
responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In addition to these, the physicians performance
as a specialist is generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally politely terminated.
In other words, private hospitals, hire, fire and exercise real control over their attending and
visiting consultant staff. While consultants are not, technically employees, x x x, the control
exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of
an employer-employee relationship, with the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians.

But the Ramos pronouncement is not our only basis in sustaining PSIs liability. Its liability is also
anchored upon the agency principle of apparent authority or agency by estoppel and the doctrine
of corporate negligence which have gained acceptance in the determination of a hospitals
liability for negligent acts of health professionals. The present case serves as a perfect platform
to test the applicability of these doctrines, thus, enriching our jurisprudence.

Apparent authority, or what is sometimes referred to as the holding

out theory, or doctrine of ostensible agency or agency by estoppel,[29] has its origin from the
law of agency. It imposes liability, not as the result of the reality of a contractual relationship,
but rather because of the actions of a principal or an employer in somehow misleading the public
into believing that the relationship or the authority exists.[30] The concept is essentially one of
estoppel and has been explained in this manner:

The principal is bound by the acts of his agent with the apparent authority which he
knowingly permits the agent to assume, or which he holds the agent out to the public as
possessing. The question in every case is whether the principal has by his voluntary act placed
the agent in such a situation that a person of ordinary prudence, conversant with business
usages and the nature of the particular business, is justified in presuming that such agent has
authority to perform the particular act in question.[31]

The applicability of apparent authority in the field of hospital liability was upheld long time ago in
Irving v. Doctor Hospital of Lake Worth, Inc.[32] There, it was explicitly stated that there does
not appear to be any rational basis for excluding the concept of apparent authority from the field
of hospital liability. Thus, in cases where it can be shown that a hospital, by its actions, has
held out a particular physician as its agent and/or employee and that a patient has accepted
treatment from that physician in the reasonable belief that it is being rendered in behalf of the
hospital, then the hospital will be liable for the physicians negligence.

Our jurisdiction recognizes the concept of an agency by implication or estoppel. Article 1869 of
the Civil Code reads:
 ART. 1869. Agency may be express, or implied from the acts of the principal, from his
silence or lack of action, or his failure to repudiate the agency, knowing that another person is
acting on his behalf without authority.

In this case, PSI publicly displays in the lobby of the Medical City Hospital the names and
specializations of the physicians associated or accredited by it, including those of Dr. Ampil and
Dr. Fuentes. We concur with the Court of Appeals conclusion that it is now estopped from
passing all the blame to the physicians whose names it proudly paraded in the public directory
leading the public to believe that it vouched for their skill and competence. Indeed, PSIs act is
tantamount to holding out to the public that Medical City Hospital, through its accredited
physicians, offers quality health care services. By accrediting Dr. Ampil and Dr. Fuentes and
publicly advertising their qualifications, the hospital created the impression that they were its
agents, authorized to perform medical or surgical services for its patients. As expected, these
patients, Natividad being one of them, accepted the services on the reasonable belief that such
were being rendered by the hospital or its employees, agents, or servants. The trial court
correctly pointed out:

x x x regardless of the education and status in life of the patient, he ought not be burdened with
the defense of absence of employer-employee relationship between the hospital and the
independent physician whose name and competence are certainly certified to the general public
by the hospitals act of listing him and his specialty in its lobby directory, as in the case herein.
The high costs of todays medical and health care should at least exact on the hospital greater, if
not broader, legal responsibility for the conduct of treatment and surgery within its facility by its
accredited physician or surgeon, regardless of whether he is independent or employed.[33]

The wisdom of the foregoing ratiocination is easy to discern. Corporate entities, like PSI, are
capable of acting only through other individuals, such as physicians. If these accredited
physicians do their job well, the hospital succeeds in its mission of offering quality medical
services and thus profits financially. Logically, where negligence mars the quality of its services,
the hospital should not be allowed to escape liability for the acts of its ostensible agents.

We now proceed to the doctrine of corporate negligence or corporate responsibility.

One allegation in the complaint in Civil Case No. Q-43332 for negligence and malpractice
is that PSI as owner, operator and manager of Medical City Hospital, did not perform the
necessary supervision nor exercise diligent efforts in the supervision of Drs. Ampil and Fuentes
and its nursing staff, resident doctors, and medical interns who assisted Drs. Ampil and Fuentes
in the performance of their duties as surgeons.[34] Premised on the doctrine of corporate
negligence, the trial court held that PSI is directly liable for such breach of duty.

We agree with the trial court.

Recent years have seen the doctrine of corporate negligence as the judicial answer to the
problem of allocating hospitals liability for the negligent acts of health practitioners, absent facts
to support the application of respondeat superior or apparent authority. Its formulation proceeds
from the judiciarys acknowledgment that in these modern times, the duty of providing quality
medical service is no longer the sole prerogative and responsibility of the physician. The modern
hospitals have changed structure. Hospitals now tend to organize a highly professional medical
staff whose competence and performance need to be monitored by the hospitals commensurate
with their inherent responsibility to provide quality medical care.[35]
The doctrine has its genesis in Darling v. Charleston Community Hospital.[36] There, the
Supreme Court of Illinois held that the jury could have found a hospital negligent, inter alia, in
failing to have a sufficient number of trained nurses attending the patient; failing to require a
consultation with or examination by members of the hospital staff; and failing to review the
treatment rendered to the patient. On the basis of Darling, other jurisdictions held that a
hospitals corporate negligence extends to permitting a physician known to be incompetent to
practice at the hospital.[37] With the passage of time, more duties were expected from
hospitals, among them: (1) the use of reasonable care in the maintenance of safe and adequate
facilities and equipment; (2) the selection and retention of competent physicians; (3) the
overseeing or supervision of all persons who practice medicine within its walls; and (4) the
formulation, adoption and enforcement of adequate rules and policies that ensure quality care for
its patients.[38] Thus, in Tucson Medical Center, Inc. v. Misevich,[39] it was held that a hospital,
following the doctrine of corporate responsibility, has the duty to see that it meets the standards
of responsibilities for the care of patients. Such duty includes the proper supervision of the
members of its medical staff. And in Bost v. Riley,[40] the court concluded that a patient who
enters a hospital does so with the reasonable expectation that it will attempt to cure him. The
hospital accordingly has the duty to make a reasonable effort to monitor and oversee the
treatment prescribed and administered by the physicians practicing in its premises.

In the present case, it was duly established that PSI operates the Medical City Hospital for
the purpose and under the concept of providing comprehensive medical services to the public.
Accordingly, it has the duty to exercise reasonable care to protect from harm all patients
admitted into its facility for medical treatment. Unfortunately, PSI failed to perform such duty.
The findings of the trial court are convincing, thus:

x x x PSIs liability is traceable to its failure to conduct an investigation of the matter reported in
the nota bene of the count nurse. Such failure established PSIs part in the dark conspiracy of
silence and concealment about the gauzes. Ethical considerations, if not also legal, dictated the
holding of an immediate inquiry into the events, if not for the benefit of the patient to whom the
duty is primarily owed, then in the interest of arriving at the truth. The Court cannot accept that
the medical and the healing professions, through their members like defendant surgeons, and
their institutions like PSIs hospital facility, can callously turn their backs on and disregard even a
mere probability of mistake or negligence by refusing or failing to investigate a report of such
seriousness as the one in Natividads case.

It is worthy to note that Dr. Ampil and Dr. Fuentes operated on Natividad with the assistance of
the Medical City Hospitals staff, composed of resident doctors, nurses, and interns. As such, it
is reasonable to conclude that PSI, as the operator of the hospital, has actual or constructive
knowledge of the procedures carried out, particularly the report of the attending nurses that the
two pieces of gauze were missing. In Fridena v. Evans,[41] it was held that a corporation is
bound by the knowledge acquired by or notice given to its agents or officers within the scope of
their authority and in reference to a matter to which their authority extends. This means that the
knowledge of any of the staff of Medical City Hospital constitutes knowledge of PSI. Now, the
failure of PSI, despite the attending nurses report, to investigate and inform Natividad regarding
the missing gauzes amounts to callous negligence. Not only did PSI breach its duties to oversee
or supervise all persons who practice medicine within its walls, it also failed to take an active
step in fixing the negligence committed. This renders PSI, not only vicariously liable for the
negligence of Dr. Ampil under Article 2180 of the Civil Code, but also directly liable for its own
negligence under Article 2176. In Fridena, the Supreme Court of Arizona held:

x x x In recent years, however, the duty of care owed to the patient by the hospital has
expanded. The emerging trend is to hold the hospital responsible where the hospital has failed to
monitor and review medical services being provided within its walls. See Kahn Hospital
Malpractice Prevention, 27 De Paul . Rev. 23 (1977).
Among the cases indicative of the emerging trend is Purcell v. Zimbelman, 18 Ariz. App. 75,500
P. 2d 335 (1972). In Purcell, the hospital argued that it could not be held liable for the
malpractice of a medical practitioner because he was an independent contractor within the
hospital. The Court of Appeals pointed out that the hospital had created a professional staff
whose competence and performance was to be monitored and reviewed by the governing body
of the hospital, and the court held that a hospital would be negligent where it had knowledge or
reason to believe that a doctor using the facilities was employing a method of treatment or care
which fell below the recognized standard of care.
Subsequent to the Purcell decision, the Arizona Court of Appeals held that a hospital has certain
inherent responsibilities regarding the quality of medical care furnished to patients within its walls
and it must meet the standards of responsibility commensurate with this undertaking. Beeck v.
Tucson General Hospital, 18 Ariz. App. 165, 500 P. 2d 1153 (1972). This court has confirmed the
rulings of the Court of Appeals that a hospital has the duty of supervising the competence of the
doctors on its staff. x x x.
x x x x x x
In the amended complaint, the plaintiffs did plead that the operation was performed at the
hospital with its knowledge, aid, and assistance, and that the negligence of the defendants was
the proximate cause of the patients injuries. We find that such general allegations of negligence,
along with the evidence produced at the trial of this case, are sufficient to support the hospitals
liability based on the theory of negligent supervision.

Anent the corollary issue of whether PSI is solidarily liable with Dr. Ampil for
damages, let it be emphasized that PSI, apart from a general denial of its responsibility, failed to
adduce evidence showing that it exercised the diligence of a good father of a family in the
accreditation and supervision of the latter. In neglecting to offer such proof, PSI failed to
discharge its burden under the last paragraph of Article 2180 cited earlier, and, therefore, must
be adjudged solidarily liable with Dr. Ampil. Moreover, as we have discussed, PSI is also directly
liable to the Aganas.

One final word. Once a physician undertakes the treatment and care of a patient, the
law imposes on him certain obligations. In order to escape liability, he must possess that
reasonable degree of learning, skill and experience required by his profession. At the same
time, he must apply reasonable care and diligence in the exercise of his skill and the application
of his knowledge, and exert his best judgment.

WHEREFORE, we DENY all the petitions and AFFIRM the challenged Decision of the Court
of Appeals in CA-G.R. CV No. 42062 and CA-G.R. SP No. 32198.
Prescription for Justice
By Atty. Katrina Legarda

There is much discussion and debate on the medical practice bill that is seen not only to
affect the medical industry but every Filipino as well. Atty. Katrina Legarda gives her
take on this controversial legislation still under scrutiny by lawmakers

Recently, I was invited to speak at a special event of specialists in the broad field of
medicine, the Anesthesiologists.

I decided to touch on the present furor on the medical practice bill although I have
never even prosecuted or defended a medical doctor in a medical malpractice case. I am
sure, I told the doctors, that should the Medical Malpractice Bill be passed into law,
lawyers will make themselves experts on it, and become very rich defending those
doctors who may be charged! And, once again, the legal profession will be held in
disrepute and in contempt by society.

Should the bill pass into law, it will be the first time -- anywhere in the world -- that
doctors will be held criminally responsible for failing to prescribe Tylenol, when what
was needed pala was Decolgen. That, to me, is unconscionable. Also, unconscionable is
that we, who are not doctors, will be charged HUGE medical bills to enable doctors to
cover the costs of insurance they will be forced to obtain to cover possible suits.

Louis Nizer, an Americal lawyer, once said that "Doctors are protected by a special rule
of 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 mistakes of judgment..." Well, I must say, this holds true of lawyers
too. We cannot guarantee you will win a case in court. We cannot insure that you will
never be sued. And all of us, being human beings, will commit honest mistakes of
judgment.

A few cases have come before the Supreme Court relative to medical malpractice. The
most recent has horrified owners of hospitals as the Court has made them also
responsible for the negligence of their staff ---just like Captains of ships! I understand,
however, that on a motion for reconsideration, the Supreme Court modified this ruling.
In most cases, patients who suffer at the hands of a negligent doctor have available to
them a civil action for damages under Article 2176 of the Civil Code and, in some
instances, a criminal case, under Article 365 of the Penal Code with which the civil action
for damages is impliedly instituted.

Article 2176 of the Civil Code states:

"Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay fo 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."

Article 365 of the Revised Penal Code basically states that any person who by reckless
imprudence, shall commit any act which, had it been intentional, would constitute a
grave felony, shall suffer some kind of imprisonment and fine, depending on the gravity
of the consequences. (Dito rin bumabagsak ang mga car crashes, train crashes, etc.)

In one particular case, where the Supreme Court laid down general principles, the
doctor charged was an anesthesiologist working in a hospital in San Pablo, Laguna. The
court overturned the doctors criminal conviction by the lower courts and said that the
elements of reckless imprudence are: (1) that the offender does or fail to do an act; (2)
that the doing of the failure to do the act is voluntarily; (3) that it be without malice; (4)
that material damage results from the reckless imprudence; and (5) that there is
inexcusable lack of precaution on the part of the offender, taking into consideration his
employment or occupation, degree of intelligence, physical condition, and other
circumstances regarding persons, time and place.

The court said 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.

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 physicians conduct in
the treatment and care falls below such standard. Further, since causes of the injuries
involved in malpractice actions are determinable only in light of scientific knowledge,
expert testimony is usually necessary to support the conclusion as to causation.

Now, what is fascinating is that most malpractice cases are brought against
anesthesiologists. You may not even be aware of that. Doctors, however, are always
reluctant to testify for or against one of their colleagues. I do believe that one of the
reasons there is this pervasive negativity against doctors is that the public who have
been truly injured by those who have been truly criminally negligent in the exercise of
their profession, are unable to find expert witnesses to redress their real grievances.

This works both ways. In one case, a doctor whose specialization was OB-Gyn was held
liable for the death of a patient because his expert witness was a cardiologist! Hellow!!!
Thus, in that case, the Court believed the nurse who was taking care of the patient and
the patients husband. Imagine that.

I am against the Medical Malpractice Bill. But I am passionate about ensuring that
justice is had from the actuations of bad doctors and bad lawyers. There should be no
room for generosity and compassion in medical schools and law schools. Those students
whom professors pass today because of their pleas may one day kill a human being --
either on the surgeons table or on deathrow. We should be vigilant about those who
seek to enter the medical and legal professions. We who are in these fields must return
dignity and nobility to our professions. We should not hide behind lack of time and
pressure from our own demanding jobs. When we know one of our colleagues has done
wrong, offer to testify so as to redress that wrong. Deep in our hearts and in our
consciences, we know the difference between honest mistakes in judgment and sheer
gross ignorance and criminal negligence.

It is up to us, the Filipino professionals, to uplift the education of the people so that
when those people go out to vote they do not vote for the hysterical, the vindictive, the
ignorant, and the corrupt. You know who I mean.
November 11, 2009

What you should know about The Reproductive

Health Bill
Ana Santos

The Reproductive Health and Population Development Act of 2008 also known as the RH
Bill seeks to provide universal access to information and services to both natural and
modern family planning methods, which are medically safe and legally permissible. The
premise of the RH Bill is informed choice and the freedom to decide on a method of
family planning based on information that is comprehensive, accurate, and respectful of
ones personal convictions and religious beliefs.

Honorary Janette L. Garin, M.D. is Deputy Majority Leader and Representative of the 1st
District of Iloilo. A staunch advocate of womens rights and reproductive health,
Representative Garin talks to HerWord and highlights the important provisions of the bill
and reasons why now, more than ever, we need to have the RH Bill passed.

Why is the RH Bill relevant to every Filipina and not just those who do not
have ready access to health care?

The RH Bill is not just for the welfare of those women who have no access to affordable
reproductive health services. A number of local surveys reveal that one of the major
impediments to family planning is the lack of accurate information and education among
women and couples. Though a considerable number of women have access to and can
readily afford reproductive health and family planning services and commodities, they
still have difficulty making informed decisions and successfully planning the number of
children that they want because they either lack or are misinformed on reproductive
health and family planning.

The RH Bill seeks to break such barriers by ensuring that women and couples are
provided adequate information. Among others, the proposed policy mandates a
nationwide information and education program to develop a sexuality-education
curriculum for young Filipinos. It will also require couples applying for marriage licenses
to undergo a family planning seminar.
How will the RH Bill empower women to take control over their reproductive
health and sexuality?

Among the major reproductive health issues in the Philippines are the high maternal
deaths and the unwanted pregnancies that continue to exist. The bulk of these cases
are in the underprivileged sector of our society where accurate information and
accessible services on reproductive health care are still elusive. More often than not, it is
the poor women who die because of pregnancy-related complications and even child-
birth because they cannot afford or do not have access at all to quality health care
services. It is the poor women who have more children than they desire because they
do not use any family planning method.

If passed, the Reproductive Health Care bill will ensure that women are empowered by
providing them with relevant information on safe pregnancies and child delivery. In
addition, the proposed policy also seeks to make women knowledgeable about the
various family planning methods available in order for them to plan the spacing
[between births], the number of children they want to have, and have a healthy and
satisfying sex life.

How will the RH Bill impact national development in terms of population

management and better allocation of government resource allocation?

One of the incessant problems of our country is that limited resources are being
allocated to the delivery of social services. Besides the fact that a chunk of the national
budget is devoted to debt servicing, our scarce resources simply cannot keep up with
our rapid population growth. While the fast-growing population is not the cause of
poverty in the country, it most definitely exacerbates it, as it impedes economic
development in many ways. The rapid population growth in a country such as ours,
where poverty is wide-spread and the budget of the government already stretched,
would mean more dependents and lesser capacity of the government to absorb new
entrants to the labor force every year. The latest data from the National Statistics Office
(NSO) states that for every one productive person, there are two to three dependents
that he or she must take care of.

In the household levels, data from the National Demographic and Health Survey shows
that the poverty incidence is higher in families with larger family size. This is evidence
that the increase in family size would mean lower savings to the household, because
they simply have more mouths to feed. What should be noted in this case is that the
family size is actually bigger than what majority of Filipino couples would want. This is
seen in the consistent gap between the desired number of children and the actual
number of children a couple have.

In a macro-economic perspective, addressing our countrys rapid population growth is,

therefore, one of the sustainable interventions that the government must undertake to
ensure consistent economic development, decrease poverty and improve delivery of
social services to the people.
The RH Bill has been languishing in legislative debate for the last 20 years,
what it different now in terms of the RH Bill having a chance of being
passed?

The RH Bill has truly undergone exhaustive debates for a number of Congresses already.
It is only this Congress however, where the bill has reached plenary deliberations in the
House of Representatives. What should be different now is that more legislators are now
aware of the content and true intentions of the bill as compared before when they
perceived providing modern methods of family planning as the only purpose of the
proposed law. The heightened awareness is seen in the huge increase in the number of
legislators who signed as co-authors of the RH Bill in the 14th Congress.

With the elections coming up, is there an even more urgent need now to pass
the bill?

With the elections coming up, there is a serious threat that the RH bill might lose some
of its supporters. However, I believe that now, more than ever, is the time to pass this
policy. The debates on this issue have already been exhausted. We keep on arguing
about the same set of issues every Congress. It is time for us legislators to show where
we stand, and I sincerely hope that the Philippine Congress heeds the call of the
majority of the Filipinos and pass the Reproductive Health Care Bill.

NOTE: The 14th Congress broke for recess last October 16, 2009 without the RH Bill
being passed.

Please address some of the allegations about the RH Bill, namely:

That it promotes abortion.

The reproductive health bill does not promote abortion. In fact, one of the primary
intentions of the bill is to prevent abortions by providing information and services to
women, couples and young people to avoid unwanted pregnancies. Majority of women
who undergo abortion in the Filipinas are already married and have children. This
reflects the failure of many women and couples to plan their families or space their
pregnancies.

In addition, the provision on the MANAGEMENT OF POST-ABORTION COMPLICATIONS

does not mean that the bill espouses abortion. There are cases wherein women
experience complications from abortion, but are not admitted by hospitals when it
uncovers that they attempted abortions. The provision merely guarantees that the right
of women to health services is protected even if they commit illegal abortions. No
woman should be denied their right to life.

That it advocates sex education in schools and thus, encourages promiscuity.

Providing sexuality education does not mean that the passage of the RH bill would lead
to promiscuity among the youth. With the technology available to us today, the youth is
constantly bombarded with inaccurate information about sex from mass media. As a
result, more and more of the youth engage in early sexual initiations and other risky
sexual behaviors. This leads to the rise of teenage pregnancies. There is a serious and
urgent need to address this issue and we can only start doing so if we learn to accept
that depriving the youth of correct information on reproductive health will not stop them
from being promiscuous.

The RH bill advocates for responsible reproductive health and sexuality education that
will inculcate values, but at the same time provide the youth with correct information on
reproductive health. Doing so will empower the youth to make informed and responsible
decisions in the future.

That it is anti-life and goes against Catholic beliefs.

The RH bill is not anti-life. We even say that it is pro-quality of life because it seeks to
prevent deaths of mothers, abortion and unwanted pregnancies. In addition, the bill also
aims to slow down population growth rate in the country to enable the government to
allocate more resources for the delivery of services to the people.

I believe that it is not going against the beliefs of the Catholics, because no part of this
RH Bill says that couples and women will be coerced to use contraceptives. Filipino
couples will still be free to plan their families based on their religious convictions when
the bill is passed. The RH Bill merely promotes responsible parenthood by widening
choices and providing more information for them to come up with informed decisions.

We respect the stand of the Catholic Church on the issue of Reproductive Health.
However, it is not fair to deny Filipino couples their right to decide freely and responsibly
on the number of their children, and the right of women to be safe from deaths due to
pregnancy-related complications and child birth.

There are some men who still tend to be indifferent about reproductive
health, leaving all the child-bearing responsibilities to the women, how can
we get more men to support the RH Bill?

To effect change in the culture, we must aim for behavior change communication (BCC)
interventions targeting the male population. The lack of male participation in family
planning in the Philippines is rooted in the macho culture in the Philippines. Most men
refuse to undergo vasectomy because they fear that they would not be able to perform
in bed anymore if they do so. Some do not care about family planning at all which
leaves the women assuming the responsibility of family planning. In some cases, mens
disregard for family planning results to women giving birth to more children than their
actual desired number.

The men should be made to understand that family planning is a shared responsibility.
More importantly, the men should learn more about pregnancy; know the danger signs
that they should take note of during pregnancy and the effects of closely-spaced births
on a womans body.
The Magna Carta of Women, which has been recently passed, has a provision
that guarantees a womans right to health through proper information and
access to services, how does this impact the RH Bill?

The passage of Magna Carta of Women is another validation that we are on the right
track in pushing for the RH bill. The rights guaranteed in the Magna Carta of Women are
the very rights that the RH bill is based upon.

Though the Magna Carta of Women has already been passed, there is still a need to
enact the Reproductive Health bill and ensure that sufficient resources are allocated to
fund reproductive health services and commodities and that a strong and
comprehensive reproductive health and population development program is installed.

Jury Awards Family Of Infant With Brain Damage

$31,000,000 In Medical Malpractice Lawsuit
AT 7 JUNE, 2010, 2:52 AM

A scheduled vaginal childbirth for a pregnant woman who has previously had a C-section
ought to take into account that this places the patient at risk of a ruptured uterus. In
these cases the unborn babys essential oxygen , which is obtained via the placenta, can
be cut off. Depending on the extent and the length of time involved the child may
sustain a brain injury which exhibits serious cognitive and neurological problems. It is
therefore essential when considering a vaginal delivery for a woman with a previous C-
section (known as a VBAC) to consider this risk into consideration.

Examine a recently documented lawsuit involving an expectant mother who was

admitted to the hospital for a planned natural delivery of her baby. She underwent a C-
section in an earlier pregnancy. Still, the nurse gave her a drug commonly used to
induce labor. The use of this drug , however, should be carefully followed seeing that it
turn into a serious problem especially at greater dosages. The nurse failed to convey to
the physician that the expectant motherdeveloped an unusual pattern of contraction.
Rather, even though the contractions increased to obviously dangerous levels, she kept
administering more of the drug.

The expectant mother suffered a uterine rupture. The unborn child was in fetal distress.
The child was deprived of oxygen for 18-20 minutes as a consequence of which he
sustained a brain injury. He has severe cerebral palsy. He is unable to walk or to talk.
He is unable to hold anything in his hands. He is unable to eat without the use of a
feeding tube. He can, however, recognize members of his family and is alert. But he will
need full-time life assistance. The law firm that represented the family revealed that the
claim went to trial and the jury came back with a verdict of $31 Million. This sum
included $26,000,000 to cover future medical care.

As this case illustrates nurses and hospital staff need to determine if complications arise
during a pregnancy. They also need to know and understand the effects and danger
signs of the drugs they dispense, and let the physician in charge know of any signs that
indicate there is a difficulty happening. Whether due to a lack of training, inexperience,
overwork, or communication breakdowns, a failure in any (or as in this case all) of these
areas can lead to devastating injuries to the baby. When this happens the family (both
on their own behalf and on behalf of the baby) might be able to bring a lawsuit for
malpractice. As this matter also reveals such cases, due to the type and degree of the
injury to the child, can lead to a significant recovery.

Nursing students error leads to babys death

By Marlon Ramos
Southern Luzon Bureau
First Posted 19:47:00 03/13/2007

CAMP VICENTE LIM, Laguna, Philippines -- A one-year-old boy died last week in a hospital in
Batangas City after a nursing student inadvertently injected him with a chemical compound
meant to be infused through an intravenous drip, a hospital official said Tuesday.

Dr. Renato Dimayuga, Batangas Regional Hospital director, said victim John Jesreel Halcon died
of cardiac arrest shortly after the 22-year-old nursing student wrongfully injected him with
potassium chloride at around 5 p.m. last Thursday.

The medicine, he said, was meant to help patients suffering from dehydration.

"It was an accident. The student nurse accidentally injected the victim with the medicine. But
we're still investigating what actually happened," Dimayuga told the Philippine Daily Inquirer over
the mobile phone.

"This is really unfortunate."

Dimayuga denied reports that the hospital tried to conceal the truth about the death of the baby.
He said he had formed a team of hospital officials to look into the incident.

"This incident is already in the police blotter," he said.

He said the victim's parents brought the baby to the hospital on Wednesday afternoon. He said
the baby was then diagnosed with acute gastroenteritis and moderate dehydration.

The baby, who was admitted to the charity ward, was immediately given with dextrose.

The victim was the second child of a couple who reside in the village of Cuta, Batangas City.

Asked if student nurses were allowed to inject medicines on the patients, he said they were not.
"That's what we're trying to find out. Nursing students are not supposed to inject medicines into
the patients," he said.

He noted that the nurse assigned to look after the victim was also tasked to take care of 40 other
patients.

Dimayuga said they tried to talk with the nursing student, whom he declined to identify, to ask
him why he injected the medicine to the victim.

He said he had not spoken with the student who had been suffering emotional anguish since the
babys death. He said only the student's parents were communicating with them.

"His parents said the student had been crying since last week. Parang nag-nervous breakdown
na daw yung bata [The kid was apparently suffering from nervous breakdown]," he said.

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

for himself and on behalf of the minors,
ROGER ANTHONY, Present:
ANGELICA, NANCY, and
MICHAEL CHRISTOPHER, QUISUMBING, J.,
all surnamed NOGALES, Chairperson,
Petitioners, CARPIO,
CARPIO MORALES,
- versus - TINGA, and
VELASCO, JR., JJ.

CAPITOL MEDICAL CENTER,

DR. OSCAR ESTRADA,
DR. ELY VILLAFLOR,
DR. ROSA UY,
DR. JOEL ENRIQUEZ,
DR. PERPETUA LACSON,
DR. NOE ESPINOLA, and Promulgated:
NURSE J. DUMLAO,
Respondents. December 19, 2006
x-----------------------------------------------------------------------------------------x

DECISION

CARPIO, J.:

The Case

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

The Facts

Pregnant with her fourth child, Corazon Nogales (Corazon), who was then 37 years old,
was under the exclusive prenatal care of Dr. Oscar Estrada (Dr. Estrada) beginning on her
fourth month of pregnancy or as early as December 1975. While Corazon was on her last
trimester of pregnancy, Dr. Estrada noted an increase in her blood pressure and development of
leg edema[5] indicating preeclampsia,[6] which is a dangerous complication of pregnancy.[7]

Around midnight of 25 May 1976, Corazon started to experience mild labor pains
prompting Corazon and Rogelio Nogales (Spouses Nogales) to see Dr. Estrada at his home.
After examining Corazon, Dr. Estrada advised her immediate admission to the Capitol Medical
Center (CMC).

On 26 May 1976, Corazon was admitted at 2:30 a.m. at the CMC after the staff nurse
noted the written admission request[8] of Dr. Estrada. Upon Corazons admission at the CMC,
Rogelio Nogales (Rogelio) executed and signed the Consent on Admission and Agreement[9]
and Admission Agreement.[10] Corazon was then brought to the labor room of the CMC.

Dr. Rosa Uy (Dr. Uy), who was then a resident physician of CMC, conducted an internal
examination of Corazon. Dr. Uy then called up Dr. Estrada to notify him of her findings.

Based on the Doctors Order Sheet,[11] around 3:00 a.m., Dr. Estrada ordered for 10 mg.
of valium to be administered immediately by intramuscular injection. Dr. Estrada later ordered
the start of intravenous administration of syntocinon admixed with dextrose, 5%, in lactated
Ringers solution, at the rate of eight to ten micro-drops per minute.

According to the Nurses Observation Notes,[12] Dr. Joel Enriquez (Dr. Enriquez), an
anesthesiologist at CMC, was notified at 4:15 a.m. of Corazons admission. Subsequently, when
asked if he needed the services of an anesthesiologist, Dr. Estrada refused. Despite Dr. Estradas
refusal, Dr. Enriquez stayed to observe Corazons condition.

At 6:00 a.m., Corazon was transferred to Delivery Room No. 1 of the CMC. At 6:10 a.m.,
Corazons bag of water ruptured spontaneously. At 6:12 a.m., Corazons cervix was fully dilated.
At 6:13 a.m., Corazon started to experience convulsions.

At 6:15 a.m., Dr. Estrada ordered the injection of ten grams of magnesium sulfate.
However, Dr. Ely Villaflor (Dr. Villaflor), who was assisting Dr. Estrada, administered only 2.5
grams of magnesium sulfate.

At 6:22 a.m., Dr. Estrada, assisted by Dr. Villaflor, applied low forceps to extract Corazons
baby. In the process, a 1.0 x 2.5 cm. piece of cervical tissue was allegedly torn. The baby came
out in an apnic, cyanotic, weak and injured condition. Consequently, the baby had to be
intubated and resuscitated by Dr. Enriquez and Dr. Payumo.

At 6:27 a.m., Corazon began to manifest moderate vaginal bleeding which rapidly became
profuse. Corazons blood pressure dropped from 130/80 to 60/40 within five minutes. There was
continuous profuse vaginal bleeding. The assisting nurse administered hemacel through a gauge
19 needle as a side drip to the ongoing intravenous injection of dextrose.

At 7:45 a.m., Dr. Estrada ordered blood typing and cross matching with bottled blood. It
took approximately 30 minutes for the CMC laboratory, headed by Dr. Perpetua Lacson (Dr.
Lacson), to comply with Dr. Estradas order and deliver the blood.

At 8:00 a.m., Dr. Noe Espinola (Dr. Espinola), head of the Obstetrics-Gynecology
Department of the CMC, was apprised of Corazons condition by telephone. Upon being informed
that Corazon was bleeding profusely, Dr. Espinola ordered immediate hysterectomy. Rogelio was
made to sign a Consent to Operation.[13]

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

On 14 May 1980, petitioners filed a complaint for damages[15] with the Regional Trial
Court[16] of Manila against CMC, Dr. Estrada, Dr. Villaflor, Dr. Uy, Dr. Enriquez, Dr. Lacson, Dr.
Espinola, and a certain Nurse J. Dumlao for the death of Corazon. Petitioners mainly contended
that defendant physicians and CMC personnel were negligent in the treatment and management
of Corazons condition. Petitioners charged CMC with negligence in the selection and supervision
of defendant physicians and hospital staff.

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

After more than 11 years of trial, the trial court rendered judgment on 22 November 1993
finding Dr. Estrada solely liable for damages. The trial court ruled as follows:

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

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

On the part of Dra. Ely Villaflor, she was only taking orders from Dr. Estrada, the principal
physician of Corazon Nogales. She can only make suggestions in the manner the patient maybe
treated but she cannot impose her will as to do so would be to substitute her good judgment to
that of Dr. Estrada. If she failed to correctly diagnose the true cause of the bleeding which in
this case appears to be a cervical laceration, it cannot be safely concluded by the Court that Dra.
Villaflor had the correct diagnosis and she failed to inform Dr. Estrada. No evidence was
introduced to show that indeed Dra. Villaflor had discovered that there was laceration at the
cervical area of the patients internal organ.
 On the part of nurse Dumlao, there is no showing that when she administered the
hemacel as a side drip, she did it on her own. If the correct procedure was directly thru the
veins, it could only be because this was what was probably the orders of Dr. Estrada.

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

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

On the civil liability of Dr. Perpetua Lacson, [s]he is a hematologist and in-charge of the
blood bank of the CMC. The Court cannot accept the theory of the plaintiffs that there was delay
in delivering the blood needed by the patient. It was testified, that in order that this blood will
be made available, a laboratory test has to be conducted to determine the type of blood, cross
matching and other matters consistent with medical science so, the lapse of 30 minutes maybe
considered a reasonable time to do all of these things, and not a delay as the plaintiffs would
want the Court to believe.

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

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

WHEREFORE, premises considered, judgment is hereby rendered finding defendant Dr.

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

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

SO ORDERED.[18]

Petitioners appealed the trial courts decision. Petitioners claimed that aside from Dr.
Estrada, the remaining respondents should be held equally liable for negligence. Petitioners
pointed out the extent of each respondents alleged liability.

On 6 February 1998, the Court of Appeals affirmed the decision of the trial court.[19]
Petitioners filed a motion for reconsideration which the Court of Appeals denied in its Resolution
of 21 March 2000.[20]
Hence, this petition.

Meanwhile, petitioners filed a Manifestation dated 12 April 2002[21] stating that

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

The Court issued a Resolution dated 9 September 2002[24] dispensing with the
requirement to submit the correct and present addresses of respondents Dr. Estrada, Dr.
Enriquez, Dr. Villaflor, and Nurse Dumlao. The Court stated that with the filing of petitioners
Manifestation, it should be understood that they are claiming only against respondents CMC, Dr.
Espinola, Dr. Lacson, and Dr. Uy who have filed their respective comments. Petitioners are
foregoing further claims against respondents Dr. Estrada, Dr. Enriquez, Dr. Villaflor, and Nurse
Dumlao.

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

Petitioners filed a motion for reconsideration[25] of the Courts 9 September 2002

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

The Court of Appeals Ruling

 In its Decision of 6 February 1998, the Court of Appeals upheld the trial courts ruling.
The Court of Appeals rejected petitioners view that the doctrine in Darling v. Charleston
Community Memorial Hospital[27] applies to this case. According to the Court of Appeals, the
present case differs from the Darling case since Dr. Estrada is an independent contractor-
physician whereas the Darling case involved a physician and a nurse who were employees of the
hospital.

Citing other American cases, the Court of Appeals further held that the mere fact that a
hospital permitted a physician to practice medicine and use its facilities is not sufficient to render
the hospital liable for the physicians negligence.[28] A hospital is not responsible for the
negligence of a physician who is an independent contractor.[29]

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

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

The Court of Appeals concluded that since Rogelio engaged Dr. Estrada as the attending
physician of his wife, any liability for malpractice must be Dr. Estradas sole responsibility.

While it found the amount of damages fair and reasonable, the Court of Appeals held that no
interest could be imposed on unliquidated claims or damages.

The Issue

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

The Ruling of the Court

The petition is partly meritorious.

On the Liability of CMC

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

Petitioners maintain that CMC is vicariously liable for Dr. Estradas negligence based on
Article 2180 in relation to Article 2176 of the Civil Code. These provisions pertinently state:

Art. 2180. The obligation imposed by article 2176 is demandable not only for ones own acts or
omissions, but also for those of persons for whom one is responsible.

xxxx

Employers shall be liable for the damages caused by their employees and household
helpers acting within the scope of their assigned tasks, even though the former are not engaged
in any business or industry.

xxxx

The responsibility treated of in this article shall cease when the persons herein mentioned
prove that they observed all the diligence of a good father of a family to prevent damage.

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

Similarly, in the United States, a hospital which is the employer, master, or principal of a
physician employee, servant, or agent, may be held liable for the physicians negligence under
the doctrine of respondeat superior.[34]

In the present case, petitioners maintain that CMC, in allowing Dr. Estrada to practice and
admit patients at CMC, should be liable for Dr. Estradas malpractice. Rogelio claims that he
knew Dr. Estrada as an accredited physician of CMC, though he discovered later that Dr. Estrada
was not a salaried employee of the CMC.[35] Rogelio further claims that he was dealing with
CMC, whose primary concern was the treatment and management of his wifes condition. Dr.
Estrada just happened to be the specific person he talked to representing CMC.[36] Moreover,
the fact that CMC made Rogelio sign a Consent on Admission and Admission Agreement[37]
and a Consent to Operation printed on the letterhead of CMC indicates that CMC considered Dr.
Estrada as a member of its medical staff.

On the other hand, CMC disclaims liability by asserting that Dr. Estrada was a mere visiting
physician and that it admitted Corazon because her physical condition then was classified an
emergency obstetrics case.[38]

CMC alleges that Dr. Estrada is an independent contractor for whose actuations CMC would be a
total stranger. CMC maintains that it had no control or supervision over Dr. Estrada in the
exercise of his medical profession.
 The Court had the occasion to determine the relationship between a hospital and a
consultant or visiting physician and the liability of such hospital for that physicians negligence in
Ramos v. Court of Appeals,[39] to wit:

In the first place, hospitals exercise significant control in the hiring and firing of consultants
and in the conduct of their work within the hospital premises. Doctors who apply for consultant
slots, visiting or attending, are required to submit proof of completion of residency, their
educational qualifications; generally, evidence of accreditation by the appropriate board
(diplomate), evidence of fellowship in most cases, and references. These requirements are
carefully scrutinized by members of the hospital administration or by a review committee set up
by the hospital who either accept or reject the application. This is particularly true with
respondent hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally

required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns
and residents, moderate grand rounds and patient audits and perform other tasks and
responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In addition to these, the physicians performance
as a specialist is generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending
and visiting consultant staff. While consultants are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the patients condition, the control
exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of
an employer-employee relationship, with the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians. This being the case, the question now arises as to whether or
not respondent hospital is solidarily liable with respondent doctors for petitioners condition.

The basis for holding an employer solidarily responsible for the negligence of its
employee is found in Article 2180 of the Civil Code which considers a person accountable not only
for his own acts but also for those of others based on the formers responsibility under a
relationship of patria potestas. x x x[40] (Emphasis supplied)

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

After a thorough examination of the voluminous records of this case, the Court finds no
single evidence pointing to CMCs exercise of control over Dr. Estradas treatment and
management of Corazons condition. It is undisputed that throughout Corazons pregnancy, she
was under the exclusive prenatal care of Dr. Estrada. At the time of Corazons admission at CMC
and during her delivery, it was Dr. Estrada, assisted by Dr. Villaflor, who attended to Corazon.
There was no showing that CMC had a part in diagnosing Corazons condition. While Dr. Estrada
enjoyed staff privileges at CMC, such fact alone did not make him an employee of CMC.[42] CMC
merely allowed Dr. Estrada to use its facilities[43] when Corazon was about to give birth, which
CMC considered an emergency. Considering these circumstances, Dr. Estrada is not an employee
of CMC, but an independent contractor.
The question now is whether CMC is automatically exempt from liability considering that
Dr. Estrada is an independent contractor-physician.

In general, a hospital is not liable for the negligence of an independent contractor-

physician. There is, however, an exception to this principle. The hospital may be liable if the
physician is the ostensible agent of the hospital.[44] This exception is also known as the
doctrine of apparent authority.[45] In Gilbert v. Sycamore Municipal Hospital,[46] the Illinois
Supreme Court explained the doctrine of apparent authority in this wise:

[U]nder the doctrine of apparent authority a hospital can be held vicariously liable for the
negligent acts of a physician providing care at the hospital, regardless of whether the physician is
an independent contractor, unless the patient knows, or should have known, that the physician is
an independent contractor. The elements of the action have been set out as follows:

For a hospital to be liable under the doctrine of apparent authority, a plaintiff must show that:
(1) the hospital, or its agent, acted in a manner that would lead a reasonable person to conclude
that the individual who was alleged to be negligent was an employee or agent of the hospital;
(2) where the acts of the agent create the appearance of authority, the plaintiff must also prove
that the hospital had knowledge of and acquiesced in them; and (3) the plaintiff acted in reliance
upon the conduct of the hospital or its agent, consistent with ordinary care and prudence.

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

The element of justifiable reliance on the part of the plaintiff is satisfied if the plaintiff
relies upon the hospital to provide complete emergency room care, rather than upon a specific
physician.

The doctrine of apparent authority essentially involves two factors to determine the liability
of an independent-contractor physician.

The first factor focuses on the hospitals manifestations and is sometimes described as an
inquiry whether the hospital acted in a manner which would lead a reasonable person to
conclude that the individual who was alleged to be negligent was an employee or agent of the
hospital.[47] In this regard, the hospital need not make express representations to the patient
that the treating physician is an employee of the hospital; rather a representation may be general
and implied.[48]

The doctrine of apparent authority is a species of the doctrine of estoppel. Article 1431 of
the Civil Code provides that [t]hrough estoppel, an admission or representation is rendered
conclusive upon the person making it, and cannot be denied or disproved as against the person
relying thereon. Estoppel rests on this rule: Whenever a party has, by his own declaration, act,
or omission, intentionally and deliberately led another to believe a particular thing true, and to
act upon such belief, he cannot, in any litigation arising out of such declaration, act or omission,
be permitted to falsify it.[49]
 In the instant case, CMC impliedly held out Dr. Estrada as a member of its medical staff.
Through CMCs acts, CMC clothed Dr. Estrada with apparent authority thereby leading the
Spouses Nogales to believe that Dr. Estrada was an employee or agent of CMC. CMC cannot now
repudiate such authority.

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

Second, CMC made Rogelio sign consent forms printed on CMC letterhead. Prior to
Corazons admission and supposed hysterectomy, CMC asked Rogelio to sign release forms, the
contents of which reinforced Rogelios belief that Dr. Estrada was a member of CMCs medical
staff.[50] The Consent on Admission and Agreement explicitly provides:

KNOW ALL MEN BY THESE PRESENTS:

I, Rogelio Nogales, of legal age, a resident of 1974 M. H. Del Pilar St., Malate Mla., being
the father/mother/brother/sister/spouse/relative/ guardian/or person in custody of Ma. Corazon,
and representing his/her family, of my own volition and free will, do consent and submit said Ma.
Corazon to Dr. Oscar Estrada (hereinafter referred to as Physician) for cure, treatment,
retreatment, or emergency measures, that the Physician, personally or by and through the
Capitol Medical Center and/or its staff, may use, adapt, or employ such means, forms or methods
of cure, treatment, retreatment, or emergency measures as he may see best and most
expedient; that Ma. Corazon and I will comply with any and all rules, regulations, directions, and
instructions of the Physician, the Capitol Medical Center and/or its staff; and, that I will not hold
liable or responsible and hereby waive and forever discharge and hold free the Physician, the
Capitol Medical Center and/or its staff, from any and all claims of whatever kind of nature, arising
from directly or indirectly, or by reason of said cure, treatment, or retreatment, or emergency
measures or intervention of said physician, the Capitol Medical Center and/or its staff.

x x x x[51] (Emphasis supplied)

While the Consent to Operation pertinently reads, thus:

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

Without any indication in these consent forms that Dr. Estrada was an independent contractor-
physician, the Spouses Nogales could not have known that Dr. Estrada was an independent
contractor. Significantly, no one from CMC informed the Spouses Nogales that Dr. Estrada was an
independent contractor. On the contrary, Dr. Atencio, who was then a member of CMC Board of
Directors, testified that Dr. Estrada was part of CMCs surgical staff.[53]
 Third, Dr. Estradas referral of Corazons profuse vaginal bleeding to Dr. Espinola, who was
then the Head of the Obstetrics and Gynecology Department of CMC, gave the impression that
Dr. Estrada as a member of CMCs medical staff was collaborating with other CMC-employed
specialists in treating Corazon.

The second factor focuses on the patients reliance. It is sometimes characterized as an

inquiry on whether the plaintiff acted in reliance upon the conduct of the hospital or its agent,
consistent with ordinary care and prudence.[54]

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

Further, the Spouses Nogales looked to CMC to provide the best medical care and support
services for Corazons delivery. The Court notes that prior to Corazons fourth pregnancy, she
used to give birth inside a clinic. Considering Corazons age then, the Spouses Nogales decided to
have their fourth child delivered at CMC, which Rogelio regarded one of the best hospitals at the
time.[56] This is precisely because the Spouses Nogales feared that Corazon might experience
complications during her delivery which would be better addressed and treated in a modern and
big hospital such as CMC. Moreover, Rogelios consent in Corazons hysterectomy to be
performed by a different physician, namely Dr. Espinola, is a clear indication of Rogelios
confidence in CMCs surgical staff.

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

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

Likewise unconvincing is CMCs argument that petitioners are estopped from claiming damages
based on the Consent on Admission and Consent to Operation. Both release forms consist of two
parts. The first part gave CMC permission to administer to Corazon any form of recognized
medical treatment which the CMC medical staff deemed advisable. The second part of the
documents, which may properly be described as the releasing part, releases CMC and its
employees from any and all claims arising from or by reason of the treatment and operation.
The documents do not expressly release CMC from liability for injury to Corazon due to
negligence during her treatment or operation. Neither do the consent forms expressly exempt
CMC from liability for Corazons death due to negligence during such treatment or operation.
Such release forms, being in the nature of contracts of adhesion, are construed strictly against
hospitals. Besides, a blanket release in favor of hospitals from any and all claims, which
includes claims due to bad faith or gross negligence, would be contrary to public policy and thus
void.

Even simple negligence is not subject to blanket release in favor of establishments like hospitals
but may only mitigate liability depending on the circumstances.[58] When a person needing
urgent medical attention rushes to a hospital, he cannot bargain on equal footing with the
hospital on the terms of admission and operation. Such a person is literally at the mercy of the
hospital. There can be no clearer example of a contract of adhesion than one arising from such
a dire situation. Thus, the release forms of CMC cannot relieve CMC from liability for the
negligent medical treatment of Corazon.

On the Liability of the Other Respondents

Despite this Courts pronouncement in its 9 September 2002[59] Resolution that the filing
of petitioners Manifestation confined petitioners claim only against CMC, Dr. Espinola, Dr.
Lacson, and Dr. Uy, who have filed their comments, the Court deems it proper to resolve the
individual liability of the remaining respondents to put an end finally to this more than two-
decade old controversy.

a) Dr. Ely Villaflor

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

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

b) Dr. Rosa Uy

Dr. Rosa Uys alleged negligence consisted of her failure (1) to call the attention of Dr.
Estrada on the incorrect dosage of magnesium sulfate administered by Dr. Villaflor; (2) to take
corrective measures; and (3) to correct Nurse Dumlaos wrong method of hemacel
administration.

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

c) Dr. Joel Enriquez

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

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

d) Dr. Perpetua Lacson

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

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

e) Dr. Noe Espinola

Petitioners argue that Dr. Espinola should not have ordered immediate hysterectomy
without determining the underlying cause of Corazons bleeding. Dr. Espinola should have first
considered the possibility of cervical injury, and advised a thorough examination of the cervix,
instead of believing outright Dr. Estradas diagnosis that the cause of bleeding was uterine
atony.

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

f) Nurse J. Dumlao

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

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

On the Award of Interest on Damages

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

WHEREFORE, the Court PARTLY GRANTS the petition. The Court finds respondent Capitol
Medical Center vicariously liable for the negligence of Dr. Oscar Estrada. The amounts of
P105,000 as actual damages and P700,000 as moral damages should each earn legal interest at
the rate of six percent (6%) per annum computed from the date of the judgment of the trial
court. The Court affirms the rest of the Decision dated 6 February 1998 and Resolution dated 21
March 2000 of the Court of Appeals in CA-G.R. CV No. 45641.

Suspension of doctors, nurses sought for

operation scandal
By Jhunnex Napallacan, Carine M. Asutilla
Cebu Daily News
First Posted 14:13:00 05/07/2008

CEBU CITY, Philippines The patient who had a perfume canister removed from his rectum at
the Vicente Sotto Memorial Medical Center (VSMMC) is seeking the suspension of the medical
staff that made fun of him during the surgery.

Guiller Ceniza, lawyer of patient Danilo (real name withheld), said his client would ask the Office
of the Ombudsman in the Visayas to place the seven doctors, five nurses and two clinical
instructors under preventive suspension pending investigation.

Thats important to send a strong message, a stern warning, that what they did was not good.
But we will look at the individual participation because the others may simply have been curious
and did nothing. Its just to be fair to the others, Ceniza said.

Ceniza said they would also file a separate criminal complaint for slander by deed or libel with the
Cebu City Prosecutors Office.

He said the investigation report of the Visayas Ombudsman delved only on the issue of graft. It
did not discuss slander by deed committed by the doctors and nurses during the operation at the
Vicente Sotto Medical Memorial Center (VSMMC).
Ceniza said they were serious in their plan to file a civil suit for damages before the Regional Trial
Court.

Ceniza said it was good that they delayed the filing of civil case because now, they had the
names of the medical staff based on the evaluation report filed by the Visayas Ombudsman.

Last Monday, the Visayas Ombudsman approved the upgrading of the complaint against the
medical staff after finding reasonable ground to charge seven doctors, five nurses and two
clinical instructors, with violation of Section 3 (e) of Republic Act 3019 (Anti-graft and Corrupt
Practices Act).

The section holds a person liable for causing any undue injury to any party, including the
government, or giving any private party any unwarranted benefits, advantage or preference in
the discharge of his official administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of
offices or government corporations charged with the grant of licenses or permits or other
concessions.

Any person found guilty of an offense defined by RA 3019 faces a prison term from one to 10
years.

Except for the two clinical instructors who were not personnel of the VSMMC, the rest would face
an administrative case for grave misconduct, the Ombudsman said in its final evaluation report
on the incident.

The investigation and the filing of charges stemmed from the uploading of the rectal surgery
video to the video sharing website YouTube, which showed the doctors and nurses laughing and
making fun of Danilo as they removed a perfume canister from his rectum.

The seven doctors are surgeon-in-charge Dr. Phillips Leo Arias; Department of Surgery
consultant, Dr. Marlowe B. Parreno; assistant surgeon, Dr. Angelo Linawagan; Dr. Joseph Alfred
B. de Leon, who was assigned to handle documentation; resident anesthesiologist, Dr. Joanne
Mae M. Merilles; Department of Anesthesiology consultant Dr. Serapio T. Salazar; and Dr. Max
Joseph P. Montecillo of the Department of Surgery.

The Ombudsman identified the five nurses as operating room nurse supervisor Isabelita R.
Remulta; circulating nurse Carmenia C. Sapio; operating room nurse supervisor Consuelo B.
Tecling; nurse-on call Ida B. Sumayang; and nursing attendant Rosemarie M. Villareal.

The two clinical instructors were Mr. A. Oplado for the University of Southern Philippines and
Ramon Penley Monching M. Pandaan for the Southwestern University.

Merlo Bagano, legal counsel of Arias, said he would not comment on the Ombudsman's findings
as he had yet to receive an official copy of the report.

The evaluation report of the Visayas Ombudsman only proved that the investigation conducted
by the hospital was done to protect some people, said Ceniza.

He said the hospital only recommended the filing of administrative charges against a few people
whom it did not name in a press conference. Other personnel were given a stern warning, he
added.
Ceniza said the names eventually cropped up when Health Secretary Francisco Duque III
mentioned some of them.

Now, the Ombudsman even identified 14 people.

This means that the investigation of VSMMC cannot be trusted. It can be categorized as a
whitewash, covering up favored personalities so that they would not be hit by any liabilities,
Ceniza said.

2 Davao doctors face negligence charges

By Raquel C. Bagnol

TWO medical doctors stand accused of recklessness and negligence of duty in a case filed by the
husband of their patient who was operated on in March 2002.

The patient allegedly suffered even more as a result of the operation and "was on the brink of
death".

Charged before the Municipal Trial Court in Cities (MTCC) are Dr. James Soriano and Dr. Silvestre
Gonzales, both of the Davao Doctors Hospital (DDH).

The charges stemmed from the complaint filed by Manuel Te of A-9 Kalamansig, Barangay Pelo
in Polomolok, South Cotabato.

But DDH president Herminio Villano said Friday the Philippine Society of Neuro-Surgeons
conducted an investigation on the case and found no fault with the operations conducted by the
two respondents.

"Dr. Soriano and Dr. Gonzales did their best but it was hard to operate because the patient's
brain was swollen. It was a case of ruptured aneurysm," Villano said.

"Although hindi na-relieve ang pasyente, hindi naman nag-worsen ang condition ng pasyente
(Although the patient wasn't relieved, the condition wasn't worsened either). The complainant's
claim that his wife worsened was just natural as a result of the operation," he added. Villano
insists that the two doctors did their best.

In his complaint, Te claimed he took his wife Jane to DDH for consultation February 18 after she
complained of severe headache that was later diagnosed as "sacular aneurysm".

After the diagnosis, Te decided to have his wife airlifted to Manila for treatment, but the two
respondents allegedly told him there was no need to do so because his wife's illness was a minor
one and they could easily conduct the surgery.

Te's wife underwent two operations: in February 18 and in March 7, 2002.

But Te claimed that after the operations, his wife became comatose and her condition worsened.

Te claimed he was billed by DDH a total of P850,000 and he incurred another P500,000 for
medicine bought outside DDH.

He said he transferred his wife to San Pedro Hospital for further treatment where he was billed
P3.6 million plus an additional P520,000 for medicines.

He claimed he had to hire the services of three nurses on an eight-hour shift to take care of his
wife.

He allegedly paid P500 to each nurse everyday for eight months, or a total of P1,500 a day as
wages and P360,000 for the eight months his wife was in the care of the nurses.

Te claimed he spent a total of P5,830,000 on hospital bills and medicines.

THE CONTROVERSY BEHIND THE REPRODUCTIVE HEALTH

BILL
(Speech delivered by REP. EDCEL C. LAGMAN at the Graduate School of Nursing
Seminar, Arellano University on 20 February 2010)

To label the RH bill controversial is both an accurate assessment and an erroneous attribution.

It is a correct observation because something which is controversial is also perceived to be

divisive and problematic so much so that during public debates, our presidentiables dread
questions on whether or not they support the enactment of the RH bill or if they are for or
against family planning. Such questions are cause for concern that even the most eloquent and
straightforward among them fumbles for words and answers with uncharacteristic ambivalence.

It is accurate to brand the issue of reproductive health as controversial because it is highly

contentious and regularly strikes a discordant note with adverse partisans. In my experience
speaking in forums on the RH bill, people are either strongly supportive of the bill or rabidly
against it. Most of the time, people have strongly-held opinions on the matter. There are almost
no instances when people are merely lukewarm about the issue of family planning and
reproductive health. They are either advocates or detractors.
But it is also an erroneous attribution to describe the bill as controversial because a controversy
implies that there is something offensive and scandalous about the measure when in fact the RH
bill is a rational, health and rights-based and human development oriented policy.
The RH bill is not about sex. Neither is it about religion. It is about health, rights and sustainable
human development.

A thorough and careful reading of the bill will reveal that there is nothing extreme or radical
about it. It is based on solid evidence that a rapidly ballooning population and high unwanted
fertility are detrimental to development even as they are primary factors in restricting both
educational and employment opportunities for women and are responsible for the alarmingly high
infant and maternal mortality and morbidity rates in the country.

The ability to plan and space ones children is a basic human right. Neglecting reproductive
health would be tantamount to disregarding an indispensable aspect of overall health. Waving it
aside as insignificant will be equivalent to compromising the wellbeing of women and children.

Therefore, RH and family planning should not be considered controversial or debatable issues.
For it is beyond debate that people have the right to decide when and how often they want to
become parents. Or if they want to be parents at all.

We are in the last legs of the first decade of the 21st century and yet the Philippines still has the
dubious distinction of being the sole middle income developing country in Southeast Asia without
a clear, coherent and comprehensive policy on reproductive health and population development.

In the more progressive countries of Europe and Latin America, including traditionally Catholic
countries, political leaders, ecclesiastics and ordinary citizens do not anymore debate on the need
and efficacy of reproductive health and family planning, including contraceptive use. They leave
this matter to the jurisdiction and determination of the secular State.

Two years ago, in a forum sponsored by the Philippine General Hospital, there was a comment
from a Belgian woman that was truly enlightening. This woman was working with an NGO
providing health services to urban poor communities and was genuinely confused as to why there
were still round-table discussions on RH and family planning when everyday in her work she saw
women dying from maternal causes and babies being born without the least chance of survival.
She worked with women who had as many as twelve to fifteen children and who were not even
in their 40s meaning they had at least a decade more of childbearing years before them. These
women were practically begging for family planning information and services.

She asked why we were all still sitting around discussing the pros and cons of the bill when the
need for RH and FP services was beyond debate. Her statement was simple: people need this
bill so that they and the children they decide to have can live dignified lives.

I hope you do not get the impression that Id rather not be here discussing the merits of the RH
bill. I am always more than willing to talk about the bill especially with students of the health
sciences. The point the Belgian woman wanted to underscore was not that we shouldnt have
intelligent and enlightening discussions on RH and family planning. What she was against was
the protracted debates that veered away from the real issues and focused on false and malicious
arguments against the bill and unduly delayed its passage into law.

As nurses and health care providers, you will play a crucial role in ensuring reproductive health
and it is therefore imperative that you are informed and knowledgeable about the RH bill which I
will re-file in the coming 15th Congress.
As nurses your role in the health care system is multi-faceted. In the promotion of overall health,
you will be expected to provide care and assistance to patients and even their families; educate
patients and the public in general on the prevention of ill health; participate in rehabilitation; and
provide invaluable support to doctors and allied health care providers.

But it is precisely because the versatile role nurses play is so comprehensive that your influence
on both patients lives and the health care industry is so far-reaching and extensive. This is also
the reason why you should be well-versed when it comes to the promotion of genuine
reproductive health.

While the RH bill assures an enabling environment where women and couples have the freedom
of informed choice on the mode of family planning they want to adopt based on their needs,
personal convictions and religious beliefs, RH is certainly not merely about contraceptives and
family planning.

ELEMENTS OF RH - Family planning is only one element of reproductive health. Equally

important are the other elements of RH which include:
(1) maternal, infant and child health and nutrition;
(2) promotion of breast feeding;
(3) prevention of abortion and management of post-abortion complications;
(4) adolescent and youth health;
(5) prevention and management of reproductive tract infections, HIV/AIDS and STDs;
(6) elimination of violence against women;
(7) counseling on sexuality and reproductive health;
(8) treatment of breast and reproductive tract cancers;
(9) male involvement and participation in RH;
(10) prevention and treatment of infertility; and
(11) RH education for the youth.

It is a pity that the debate has been confined to contraceptives because the other elements of
RH, which will similarly protect and promote the right to health and reproductive self-
determination, have been largely ignored.

MIDWIVES FOR SKILLED BIRTH ATTENDANCE The bill supports safe motherhood. It
proposes that every city and municipality shall employ an adequate number of midwives and
other skilled attendants. This will help prevent maternal and infant mortality which are both
alarmingly high in the country. Currently, only 57% of Filipino women give birth with the
assistance of a trained medical professional.

EMERGENCY OBSTETRIC CARE - Each province and city shall ensure the establishment and
operation of hospitals with adequate and qualified personnel that provide emergency obstetric
care. If we are to make headway in our commitment to the Millennium Development Goals
(MDGs) to lower infant mortality and improve maternal health, it is imperative to provide
emergency obstetric care to those who need them. The miracle of life should not mean death for
11 mothers daily and the importance of facilities that can provide life saving services to pregnant
women cannot be overemphasized.

HOSPITAL-BASED FAMILY PLANNING - Family planning methods requiring hospital services

like ligation, vasectomy and IUD placement shall be available in all government hospitals.
Maternal and infant mortality and morbidity are public health concerns that government can
address if effective and long-term methods such as IUDs and permanent methods like ligation
and vasectomy are readily available in government hospitals the health facilities the poor and
marginalized regularly utilize.
CONTRACEPTIVES AS ESSENTIAL MEDICINES - Reproductive health products shall be
considered essential medicines and supplies and shall form part of the National Drug Formulary.
The classification of contraceptives as essential medicines will help the poorest of our women,
who continue to have an average of six children, avoid unplanned pregnancies and maternal
death. Both the WHO and UNFPA have declared that contraceptive use can prevent 1/3 of all
maternal deaths.

Our maternal mortality rate which is pegged at 162 deaths out of every 10,000 live births is both
alarming and insidious. Fourteen percent of all deaths in the female population can be attributed
to pregnancy and childbirth-related causes (DOH and NDHS 2003). This is unacceptable. No
woman should die giving life.

It should be underscored that modern contraceptives are included in the World Health
Organization Model List of Essential Medicines. Their inclusion in the National Drug Formulary will
enable government to purchase contraceptives and not merely rely on unpredictable donations.

REPRODUCTIVE HEALTH EDUCATION RH education in an age-appropriate manner shall be

taught by adequately trained teachers from Grade 5 up to 4th Year High School. As proposed in
the bill, core subjects include values formation; prevention and avoidance of sexual advances and
molestation from acquaintances and strangers; parts and functions of the reproductive system;
responsible parenthood; natural and modern family planning; proscription and hazards of
abortion; reproductive health and sexual rights; abstinence before marriage; and responsible
sexuality, among others.

Sexuality education seeks to assist young people in cultivating a positive view of sexuality;
provide them with information and skills about taking care of their sexual health; and help them
make sound decisions now and in the future. It has also been shown to make adolescents more
sexually responsible and adds a level of maturity to their attitudes towards sexual relations.

Formal education on RH and sexuality is necessary because of the parental default at home
where conversations on sex is traditionally taboo.

Moreover, a 2008 SWS survey shows that 76% of Filipinos approve of the teaching of family
planning to the youth. Family planning encompasses reproductive health and sexuality education.

EMPLOYERS RESPONSIBILITIES - Employers shall respect the reproductive health rights of

all their workers. Women shall not be discriminated against in the matter of hiring, regularization
of employment status or selection for retrenchment. Employers shall provide free reproductive
health services and commodities to workers, whether unionized or unorganized.

These are all restatements and improvements of existing provisions of the Labor Code and
prevailing Collective Bargaining Agreements (CBAs).

CAPABILITY BUILDING OF COMMUNITY-BASED VOLUNTEER WORKERS - Community-

based workers shall undergo additional and updated training on the delivery of reproductive
health care services and shall receive not less than 10% increase in honoraria upon successful
completion of training. This will improve the ability of our barangay health workers to deliver
relevant RH information and services.

PROHIBITED ACTS The following persons, and no one else, shall be held liable for prohibited
acts, as follows:
1. Public and private health care providers who:

(a) Knowingly (with malicious intent) withhold or impede the dissemination of information about
the programs and services provided for in this Act or intentionally give out incorrect information;

(b) Refuse to perform voluntary ligation and vasectomy and other legal and medically-safe
reproductive health care services on any person of legal age on the ground of lack of spousal
consent or authorization;

(c) Refuse to provide reproductive health care services to an abused minor and/or an abused
pregnant minor, whose condition is certified to by an authorized DSWD official or personnel, even
without parental consent which is not necessary when the parent concerned is the perpetrator;

(d) Fail to provide, either deliberately or through gross or inexcusable negligence, reproductive
health care services as mandated under this Act; and

(e) Refuse to extend reproductive health care services and information on account of the
patients civil status, gender or sexual orientation, age, religion, personal circumstances, and
nature of work: Provided, That all conscientious objections of health care service providers based
on religious grounds shall be respected: Provided, further, That the conscientious objector shall
immediately refer the person seeking such care and services to another health care service
provider within the same facility or one who is conveniently accessible: Provided, finally, That the
patient is not in an emergency or serious case as defined in RA 8344 penalizing the refusal of
hospitals and medical clinics to administer appropriate initial medical treatment and support in
emergency and serious cases.

2. Any public official who prohibits or restricts personally or through a subordinate the delivery of
legal and medically-safe reproductive health care services, including family planning (inaction is
not culpable).

3. Any employer who shall fail to comply with his obligation under Section 17 of this Act or an
employer who requires a female applicant or employee, as a condition for employment or
continued employment, to involuntarily undergo sterilization, tubal ligation or any other form of
contraceptive method.

4. Any person who shall falsify a certificate of compliance for parties to contract marriage as
required in Section 14 of this Act.

5. Any person who maliciously engages in disinformation about the intent or provisions of this
Act.

Now that I have discussed the most relevant provisions of the RH bill, I would like to clarify some
of the misconceptions about the measure.

If the RH bill is deemed controversial, it is because of the misinformation being purveyed by its
critics, most especially the Catholic hierarchy and lay organizations.

THE BILL IS NOT ANTI-LIFE. It is pro-quality life. It will ensure that children will be blessings
to their parents since their births are planned and wanted. It will empower couples with the
information and opportunity to plan and space their children. This will not only strengthen the
family as a unit, it will optimize care for fewer children who will have more opportunities to be
educated, healthy and productive.
Life is truly precious. It should not be wasted or lost because of poverty, neglect and lack of
opportunities for sustainable development. Multiplicity of family members leads to the forfeiture
of a better life.

Contrary to the claims of its oppositors, it must be underscored that the bill is not against the
birth of children. It does not advocate that women and couples stop having children. What it
aims to do is to help women and couples achieve their fertility goals and achieve effective
spacing of their children.

If they want two children, then family planning will help them have two children. If they want
three, family planning, whether natural or modern, will help ensure that they have only three. If
a couple wants eight children, they have all the right to have eight if they so desire. But without
family planning, they would more likely have nine, or 10 or 11 children, not the eight they
originally wanted. And with effective access to family planning information and services, they
might just freely abandon their desire to have many children.

THE BILL DOES NOT FAVOR MODERN FAMILY PLANNING METHODS OVER NFP. Both
natural and modern family planning techniques are contraceptive methods. Their common
purpose is to prevent unwanted pregnancies and the bill does not impose a bias for either
method. Section 3(a) of the bill unmistakably provides: In the promotion of reproductive health,
there should be no bias for either modern or natural methods of family planning.

The unfortunate bias of the government today is actually for natural family planning methods
because currently, the POPCOM is promoting only NFP even though only 27% of women
acceptors employ NFP and traditional methods compared to the 73% who use modern methods.

The bill in fact democratizes family planning because it will make available to couples all possible
family planning methods and not just NFP methods preferred by the Catholic Church.

Central to the bill is freedom of informed choice. Limiting the choice of family planning method to
either only modern or natural will negate this fundamental freedom.

THE BILL DOES NOT LEGALIZE ABORTION AND WILL NOT LEAD TO ITS
LEGALIZATION. The measure repeatedly underscores that abortion is illegal, criminal and
punishable, and is not part of the menu of legally permissible and medically safe family planning
methods.

Moreover, the use of contraceptives will not lead to the legalization of abortion. Catholic countries
like Panama, Guatemala, Brazil, Chile, Columbia, Dominican Republic, El Salvador, Honduras,
Nicaragua, Venezuela, Paraguay and Ireland all prohibit abortion as a family planning method
even as they vigorously promote contraceptive use. Muslim and Buddhist countries like Indonesia
and Laos have likewise liberalized the use of contraceptives but still continue to criminalize
abortion.

There is also an inverse correlation between contraceptive use and abortion. The regular and
correct use of contraceptives drastically reduces abortion rates since unplanned and unwanted
pregnancies are avoided. According to the Alan Guttmacher Institute, effective contraceptive use
can reduce rates of abortion by as much as 85%. Consequently, women do not have to resort to
abortion and the State will find no need to legalize abortion.

IT DOES NOT ENDORSE ABORTIFACIENTS. Hormonal contraceptives are BFAD-approved,

medically safe and legal. They do not cause a medical abortion or hidden abortion as claimed
by critics of the bill.
The primary mechanism of pills and injectables is to suppress ovulation. If no egg is released,
how can there be an abortion? They also prevent the sperm from reaching the egg. If fertilization
is avoided, how can there be a fetus to abort? Articles in peer-reviewed medical journals testify
that IUDs do not cause abortions because they avoid fertilization. A recent study revealed that
not a single fertilized egg was recovered from the fallopian tubes of women using IUDs proving
that they are amazingly successful in preventing fertilization.

The UNDP, UNFPA and WHO have submitted to the House of Representatives an expert opinion
on the mechanisms of modern contraceptives and they state that contraceptives cannot be
labeled as abortifacients as none of these methods have been shown to cause abortions.

The bill is truly anti-abortion. It will tremendously reduce the incidence of abortion in the country
which in 2002 has been recorded to be about 470,000 even as the UN has estimated that the
incidence could have escalated now to about 800,000. Data also show that it is not single women
and teenagers but poor, married, Catholic women in their 20s who most often undergo abortions
because they cannot afford another child.

CONTRACEPTIVES DO NOT HAVE LIFE THREATENING SIDE-EFFECTS. Medical and

scientific evidence show that all the possible medical risks connected with contraceptives are
infinitely lower than the risks of an actual pregnancy and everyday activities. The risk of dying
within a year of riding a car is 1 in 5,900. The risk of dying within a year of using pills is 1 in
200,000. The risk of dying from a vasectomy is 1 in 1 million and the risk of dying from using an
IUD is 1 in 10 million. The probability of dying from condom use is absolutely zero. But the risk of
dying from a pregnancy is 1 in 10,000.

Although pregnancy is not a disease, it is fraught with risks, especially for women who have too
many children or unremitting pregnancies or those who are more than 35 years old or younger
than 18 years. Persistently high maternal mortality is a violation of womens right to health and
life.

SEXUALITY EDUCATION WILL NOT PROMOTE PROMISCUITY. Age-appropriate RH

education promotes correct sexual values. It will not only instill consciousness of freedom of
choice but responsible exercise of ones rights. The UN and countries which have youth sexuality
education document its beneficial results like understanding of proper sexual values; initiation to
sexual relations is delayed; abstinence before marriage is encouraged; multiple sex partners is
avoided; and spread of sexually transmitted diseases is prevented.

Parents who do not allow their children to attend RH and sexuality education classes will not be
prosecuted and jailed. The provision on Prohibited Acts does not include parents who raise
objections.

THE BILL DOES NOT CLAIM THAT FAMILY PLANNING IS THE PANACEA TO POVERTY.
It simply recognizes the verifiable link between a huge population and poverty. Unbridled
population growth stunts socio-economic development and aggravates poverty. The connection
between population and development is well-documented and empirically established.

UN Human Development Reports show that countries with higher population growth invariably
score lower in human development. In 2007, the Philippines, as the 12th most populous country
in the world, ranked No. 90 out of 171 countries in the Human Development Index rankings
made annually by the United Nations. In 2008, we were down to No. 102. In 2009, we went
down further to rank 105. Over the years, the Philippines has consistently been the worst
performer among Southeast Asian countries.
The Asian Development Bank in 2004 also listed a large population as one of the major causes of
poverty in the country. Recent studies also show that large family size is a significant factor in
keeping families poor across generations.

However, the authors of the bill do claim that the bill will help promote sustainable human
development. The UN has stated that family planning and reproductive health are essential to
reducing poverty The UNICEF also asserts that family planning could bring more benefits to
more people at less cost than any other single technology now available to the human race.

AN RH LAW WILL NOT BE SUPERFLUOUS. It is a myopic view that since contraceptives are
available in the market, there is no need to enact a law on reproductive health and family
planning. This contention overlooks that availability does not mean access, particularly to those
who are uninformed or could not afford to buy reproductive health supplies. Availability does not
assure adequate and accurate information on family planning and reproductive health which are
basic universal human rights.

There are 12.86 million currently married women of reproductive age in the country. But we have
a contraceptive prevalence rate of only 49.3% (2006 Family Planning Survey). A little over half of
married women do not use any form of contraception, either natural or artificial.

For those who are using any form of contraception, 72% use modern methods with 53% using
supply methods like condoms, pills and IUDs and 19% using permanent methods like ligation and
vasectomy. Twenty-seven percent of women use traditional methods such as withdrawal and
calendar-rhythm and only 0.4% use modern natural family planning like Standard Days, Billings
Ovulation and Lactational Amenorrhea Methods.

Critics of the bill claim that instead of allocating billions to reproductive health and family
planning, more government funds should be appropriated to help curb heart disease, malaria,
tuberculosis and other causes of mortality among women. But if we divide the amount of P2-B,
allocated to RH and family planning in the 2008 budget among the 12 million plus women of
reproductive age in the country, it would translate to only 42 centavos per woman per day. This
is hardy extravagant.

Incidentally, the precedent setting appropriation of P2-B was never released by the Executive and
had expired untouched last December 31, 2009.

Additionally, women suffer more from maternal morbidities (illness) than any other illness. The
DOH estimates that at 400,000 cases for 2005 alone, maternal morbidities are on the very top of
the list of the ten most common causes of morbidity for women in the Philippines.

But more than half of the cases involving maternal morbidity could be prevented through
effective family planning according to the UNICEF, WHO and UNFPA.

A law that will help prevent 200,000 pregnancy and childbirth related illnesses and countless
maternal deaths is definitely not superfluous.

Moreover, proper birth spacing reduces the risk of death in infants by half. This means that
almost 8,000 infant deaths each year could be prevented through family planning.

We need to enact a law on reproductive health and population development because it will
promote and protect the right to health, the right to informed choice, the right to reproductive
self-determination, and the right to sustainable human development.
The bottom line is if women are given the chance to make responsible family planning decisions,
they almost always decide to have smaller families and their children will invariably be healthier,
better-educated and have at least a fighting chance at living full and dignified lives. Without this
ability, most women will often find it more difficult some may find it even impossible to finish
their education, find remunerative work or have a say in their own future.

RH advocates within and outside Congress are counting on you to support this measure because
it is genuinely pro-women, pro-poor and pro-life. We are counting on you because as nurses you
know for a fact that RH is essential to womens overall health and if it is neglected, primary
aspects of womens general welfare and wellbeing will be irrevocably compromised.

Nurses do not only play a central role in health care delivery, they are virtually the cornerstone of
our nations health care system. The role that nurses play has long been undervalued because no
other health care professional has a more all-encompassing role than nurses. This is why we
need you as our enduring partners in the campaign to enact an RH law.

I urge you to use your influence wisely to effect positive changes and much-needed
improvements on the health care industry and on public health.

Let us nurse together the enactment of a comprehensive, nationwide and aptly-funded RH Law in
the forthcoming 15th Congress.

For Operating Unlicensed Care Facility, Mrs. Remy

Broas, Care-Facilities Owner, Gets Jail Term, 3-Year
Probation

By Romeo P. Marquez

The writer is a member of the Investigative Reporters and Editors (IRE), Asian
American Journalists Association (AAJA) and the National Press Club of the
Philippines-USA.

SAN DIEGO A prominent Filipino care-facilities owner evaded spending a year in

prison after authorities agreed to cut her jail term to just one day.

Mrs. Remy Broas, 72, reported to the Las Colinas Detention Facility in Santee on the
morning of June 27, served her time, and was released in the afternoon of the following
day (Sunday, June 28), according to officials.

Ten days earlier on June 17, she pleaded guilty to operating an unlicensed healthcare
facility at 6377 Division St., San Diego. She was sentenced to one-year imprisonment
and three years' probation.
Authorities said Mrs. Broas already paid the investigative costs (more than $1,000)
and made a $1,000 charitable contribution to the San Diego Police Foundation. The
payment was part of the deal that substantially reduced her sentence.

According to Deputy City Attorney Danna Nicholas, Mrs. Broas "had illegally housed a
number of tenants" at the facility on Division St. and "failed to provide them with
adequate care and supervision". She was also charged with operating another
unlicensed facility at 3560 Majestic Drive, San Diego.

Another family member, Alberto Broas, was accused of maintaining a "nuisance facility"
and zoning violations at 2231 Fowler Drive. Officials said he pleaded no contest and paid
investigative costs.

The Broas family owns 18 other properties and operates numerous community care
facilities throughout San Diego county, documents show.

"This office agreed to allow Mrs. Broas to only serve one day of custody based on a
number of mitigating factors, including her: age, lack of criminal history, level of
cooperation during the course of the investigation, agreement to completely withdraw
from the residential-care (board-and-care) industry, and agreement to correct code
violations at all of her other facilities and properties she owns," said Gina Coburn,
spokeswoman for the City Attorney's Office.

Editors Note: The Broas case is just one of the several criminal cases filed by
authorities against Filipino-American operators of healthcare facilities
in Southern California. Just last week, 42 Filipino Americans and overstaying
Filipino workers were arrested in the Los Angeles County for Medicare fraud
involving unlicensed healthcare workers who possessed neither the training nor
the license to practice nursing and/or vocational-nursing assistants. The culprits
charged the Medicare with the regular rates being billed by licensed nurses or
nurse practitioners. To our limited knowledge, Mrs. Broas is the third Filipino-
American healthcare operator in Southern California who has gone to jail for
various criminal violations.

From quiet obscurity, Mrs. Broas shot to relative prominence in the Filipino community
when she lent some money to the cash-strapped Council of Philippine American
Organizations (COPAO) that was used as a down-payment for a four-room house
in National City.

The rooms are now being rented out. The property's two-car garage had been
converted into an office and is euphemistically called the 'COPAOBuilding". Currently, the
structure is considered a fire trap and needs improvement.

Because of the loan, Mrs. Broas was awarded with a citation by COPAO. "Remy Broas
has a heart of gold and she helped people in their time of need," said Mrs. Aurora S.
Cudal, a former COPAO president, who was also Broas' employee at another facility in
the City ofLemon Grove.

The charges slapped on Mrs. Broas included "causing or permitting a dependent adult to
reside in an unsupervised residential facility such that the person's health and safety
was endangered; maintaining public nuisance and various building and electrical
violations".

Mrs. Broas was not immediately available for comment. However, Mrs. Cudal, her close
friend, said Mrs. Broas was apparently contesting her conviction.

"According to Remy," Mrs. Cudal said, " they pinned her down not on her residential
care facilities which are all licensed but on her independent living facility which by law
do (sic) not need any license to operate."

In a press statement after Mrs. Broas was convicted, City Attorney Jan I. Goldsmith
said: "We must make sure those people entrusted to care for the elderly and disabled
are held accountable.

"These vulnerable members of society deserve safe and decent housing. Many care
facilities are well run but we will hold accountable those operators who fail to meet
proper standards".

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 126297 : February 2, 2010

PROFESSIONAL SERVICES, INC., Petitioner, vs. THE COURT OF APPEALS and

NATIVIDAD and ENRIQUE AGANA, Respondents.

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

G.R. No. 126467

NATIVIDAD [substituted by her children Marcelino Agana III, Enrique Agana, Jr., Emma
Agana-Andaya, Jesus Agana and Raymund Agana] and ENRIQUE AGANA, Petitioners,
vs. THE COURT OF APPEALS and JUAN FUENTES, Respondents.

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

G.R. No. 127590

MIGUEL AMPIL, Petitioner, vs. NATIVIDAD and ENRIQUE AGANA, Respondents.

RESOLUTION

CORONA, J.:

With prior leave of court,1 petitioner Professional Services, Inc. (PSI) filed a second
motion for reconsideration2 urging referral thereof to the Court en banc and seeking
modification of the decision dated January 31, 2007 and resolution dated February 11,
2008 which affirmed its vicarious and direct liability for damages to respondents Enrique
Agana and the heirs of Natividad Agana (Aganas).

Manila Medical Services, Inc. (MMSI),3 Asian Hospital, Inc. (AHI),4 and Private Hospital
Association of the Philippines (PHAP)5 all sought to intervene in these cases invoking the
common ground that, unless modified, the assailed decision and resolution will
jeopardize the financial viability of private hospitals and jack up the cost of health care.

The Special First Division of the Court granted the motions for intervention of MMSI, AHI
and PHAP (hereafter intervenors),6 and referred en consulta to the Court en banc the
motion for prior leave of court and the second motion for reconsideration of PSI.7

Due to paramount public interest, the Court en banc accepted the referral8 and heard
the parties on oral arguments on one particular issue: whether a hospital may be held
liable for the negligence of physicians-consultants allowed to practice in its premises.9

To recall the salient facts, PSI, together with Dr. Miguel Ampil (Dr. Ampil) and Dr. Juan
Fuentes (Dr. Fuentes), was impleaded by Enrique Agana and Natividad Agana (later
substituted by her heirs), in a complaint10 for damages filed in the Regional Trial Court
(RTC) of Quezon City, Branch 96, for the injuries suffered by Natividad when Dr. Ampil
and Dr. Fuentes neglected to remove from her body two gauzes11 which were used in
the surgery they performed on her on April 11, 1984 at the Medical City General
Hospital. PSI was impleaded as owner, operator and manager of the hospital.

In a decision12 dated March 17, 1993, the RTC held PSI solidarily liable with Dr. Ampil
and Dr. Fuentes for damages.13 On appeal, the Court of Appeals (CA), absolved Dr.
Fuentes but affirmed the liability of Dr. Ampil and PSI, subject to the right of PSI to
claim reimbursement from Dr. Ampil.14

On petition for review, this Court, in its January 31, 2007 decision, affirmed the CA
decision.15 PSI filed a motion for reconsideration16 but the Court denied it in a
resolution dated February 11, 2008.17

The Court premised the direct liability of PSI to the Aganas on the following facts and
law:

First, there existed between PSI and Dr. Ampil an employer-employee relationship as
contemplated in the December 29, 1999 decision in Ramos v. Court of Appeals 18 that
"for purposes of allocating responsibility in medical negligence cases, an employer-
employee relationship exists between hospitals and their consultants."19 Although the
Court in Ramos later issued a Resolution dated April 11, 200220 reversing its earlier
finding on the existence of an employment relationship between hospital and doctor, a
similar reversal was not warranted in the present case because the defense raised by
PSI consisted of a mere general denial of control or responsibility over the actions of Dr.
Ampil.21

Second, by accrediting Dr. Ampil and advertising his qualifications, PSI created the
public impression that he was its agent.22 Enrique testified that it was on account of Dr.
Ampil's accreditation with PSI that he conferred with said doctor about his wife's
(Natividad's) condition.23 After his meeting with Dr. Ampil, Enrique asked Natividad to
personally consult Dr. Ampil.24 In effect, when Enrigue and Natividad engaged the
services of Dr. Ampil, at the back of their minds was that the latter was a staff member
of a prestigious hospital. Thus, under the doctrine of apparent authority applied in
Nogales, et al. v. Capitol Medical Center, et al. ,25 PSI was liable for the negligence of
Dr. Ampil.

Finally, as owner and operator of Medical City General Hospital, PSI was bound by its
duty to provide comprehensive medical services to Natividad Agana, to exercise
reasonable care to protect her from harm,26 to oversee or supervise all persons who
practiced medicine within its walls, and to take active steps in fixing any form of
negligence committed within its premises.27 PSI committed a serious breach of its
corporate duty when it failed to conduct an immediate investigation into the reported
missing gauzes.28

PSI is now asking this Court to reconsider the foregoing rulings for these reasons:

The declaration in the 31 January 2007 Decision vis-a-vis the 11 February 2009
Resolution that the ruling in Ramos vs. Court of Appeals (G.R. No. 134354, December
29, 1999) that "an employer-employee relations exists between hospital and their
consultants" stays should be set aside for being inconsistent with or contrary to the
import of the resolution granting the hospital's motion for reconsideration in Ramos vs.
Court of Appeals (G.R. No. 134354, April 11, 2002), which is applicable to PSI since the
Aganas failed to prove an employer-employee relationship between PSI and Dr. Ampil
and PSI proved that it has no control over Dr. Ampil. In fact, the trial court has found
that there is no employer-employee relationship in this case and that the doctor's are
independent contractors.

II

Respondents Aganas engaged Dr. Miguel Ampil as their doctor and did not primarily and
specifically look to the Medical City Hospital (PSI) for medical care and support;
otherwise stated, respondents Aganas did not select Medical City Hospital (PSI) to
provide medical care because of any apparent authority of Dr. Miguel Ampil as its agent
since the latter was chosen primarily and specifically based on his qualifications and
being friend and neighbor.
III

PSI cannot be liable under doctrine of corporate negligence since the proximate cause of
Mrs. Agana's injury was the negligence of Dr. Ampil, which is an element of the principle
of corporate negligence.29

In their respective memoranda, intervenors raise parallel arguments that the Court's
ruling on the existence of an employer-employee relationship between private hospitals
and consultants will force a drastic and complex alteration in the long-established and
currently prevailing relationships among patient, physician and hospital, with
burdensome operational and financial consequences and adverse effects on all three
parties.30

The Aganas comment that the arguments of PSI need no longer be entertained for they
have all been traversed in the assailed decision and resolution.31

After gathering its thoughts on the issues, this Court holds that PSI is liable to the
Aganas, not under the principle of respondeat superior for lack of evidence of an
employment relationship with Dr. Ampil but under the principle of ostensible agency for
the negligence of Dr. Ampil and, pro hac vice, under the principle of corporate
negligence for its failure to perform its duties as a hospital.

While in theory a hospital as a juridical entity cannot practice medicine,32 in reality it

utilizes doctors, surgeons and medical practitioners in the conduct of its business of
facilitating medical and surgical treatment.33 Within that reality, three legal relationships
crisscross: (1) between the hospital and the doctor practicing within its premises; (2)
between the hospital and the patient being treated or examined within its premises and
(3) between the patient and the doctor. The exact nature of each relationship
determines the basis and extent of the liability of the hospital for the negligence of the
doctor.

Where an employment relationship exists, the hospital may be held vicariously liable
under Article 217634 in relation to Article 218035 of the Civil Code or the principle of
respondeat superior. Even when no employment relationship exists but it is shown that
the hospital holds out to the patient that the doctor is its agent, the hospital may still be
vicariously liable under Article 2176 in relation to Article 143136 and Article 186937 of
the Civil Code or the principle of apparent authority.38 Moreover, regardless of its
relationship with the doctor, the hospital may be held directly liable to the patient for its
own negligence or failure to follow established standard of conduct to which it should
conform as a corporation.39

This Court still employs the "control test" to determine the existence of an employer-
employee relationship between hospital and doctor. In Calamba Medical Center, Inc. v.
National Labor Relations Commission, et al. 40 it held:

Under the "control test", an employment relationship exists between a physician and a
hospital if the hospital controls both the means and the details of the process by which
the physician is to accomplish his task.
xxx xxx xxx

As priorly stated, private respondents maintained specific work-schedules, as

determined by petitioner through its medical director, which consisted of 24-hour shifts
totaling forty-eight hours each week and which were strictly to be observed under pain
of administrative sanctions.

That petitioner exercised control over respondents gains light from the undisputed fact
that in the emergency room, the operating room, or any department or ward for that
matter, respondents' work is monitored through its nursing supervisors, charge nurses
and orderlies. Without the approval or consent of petitioner or its medical director, no
operations can be undertaken in those areas. For control test to apply, it is not essential
for the employer to actually supervise the performance of duties of the employee, it
being enough that it has the right to wield the power. (emphasis supplied)

Even in its December 29, 1999 decision41 and April 11, 2002 resolution42 in Ramos, the
Court found the control test decisive.

In the present case, it appears to have escaped the Court's attention that both the RTC
and the CA found no employment relationship between PSI and Dr. Ampil, and that the
Aganas did not question such finding. In its March 17, 1993 decision, the RTC found
"that defendant doctors were not employees of PSI in its hospital, they being merely
consultants without any employer-employee relationship and in the capacity of
independent contractors."43 The Aganas never questioned such finding.

PSI, Dr. Ampil and Dr. Fuentes appealed44 from the RTC decision but only on the issues
of negligence, agency and corporate liability. In its September 6, 1996 decision, the CA
mistakenly referred to PSI and Dr. Ampil as employer-employee, but it was clear in its
discussion on the matter that it viewed their relationship as one of mere apparent
agency.45

The Aganas appealed from the CA decision, but only to question the exoneration of Dr.
Fuentes.46 PSI also appealed from the CA decision, and it was then that the issue of
employment, though long settled, was unwittingly resurrected.

In fine, as there was no dispute over the RTC finding that PSI and Dr. Ampil had no
employer-employee relationship, such finding became final and conclusive even to this
Court.47 There was no reason for PSI to have raised it as an issue in its petition. Thus,
whatever discussion on the matter that may have ensued was purely academic.

Nonetheless, to allay the anxiety of the intervenors, the Court holds that, in this
particular instance, the concurrent finding of the RTC and the CA that PSI was not the
employer of Dr. Ampil is correct. Control as a determinative factor in testing the
employer-employee relationship between doctor and hospital under which the hospital
could be held vicariously liable to a patient in medical negligence cases is a requisite fact
to be established by preponderance of evidence. Here, there was insufficient evidence
that PSI exercised the power of control or wielded such power over the means and the
details of the specific process by which Dr. Ampil applied his skills in the treatment of
Natividad. Consequently, PSI cannot be held vicariously liable for the negligence of Dr.
Ampil under the principle of respondeat superior.

There is, however, ample evidence that the hospital (PSI) held out to the patient
(Natividad)48 that the doctor (Dr. Ampil) was its agent. Present are the two factors that
determine apparent authority: first, the hospital's implied manifestation to the patient
which led the latter to conclude that the doctor was the hospital's agent; and second,
the patient's reliance upon the conduct of the hospital and the doctor, consistent with
ordinary care and prudence.49

Enrique testified that on April 2, 1984, he consulted Dr. Ampil regarding the condition of
his wife; that after the meeting and as advised by Dr. Ampil, he " asked [his] wife to go
to Medical City to be examined by [Dr. Ampil] "; and that the next day, April 3, he told
his daughter to take her mother to Dr. Ampil.50 This timeline indicates that it was
Enrique who actually made the decision on whom Natividad should consult and where,
and that the latter merely acceded to it. It explains the testimony of Natividad that she
consulted Dr. Ampil at the instigation of her daughter.51

Moreover, when asked what impelled him to choose Dr. Ampil, Enrique testified:

Atty. Agcaoili

On that particular occasion, April 2, 1984, what was your reason for choosing Dr. Ampil
to contact with in connection with your wife's illness?

A. First, before that, I have known him to be a specialist on that part of the body as a
surgeon, second, I have known him to be a staff memberof the Medical City which is a
prominent and knownhospital. And third, because he is a neighbor, I expect more than
the usual medical service to be given to us, than his ordinary patients.52 (emphasis
supplied)

Clearly, the decision made by Enrique for Natividad to consult Dr. Ampil was significantly
influenced by the impression that Dr. Ampil was a staff member of Medical City General
Hospital, and that said hospital was well known and prominent. Enrique looked upon Dr.
Ampil not as independent of but as integrally related to Medical City.

PSI's acts tended to confirm and reinforce, rather than negate, Enrique's view. It is of
record that PSI required a "consent for hospital care"53 to be signed preparatory to the
surgery of Natividad. The form reads:

Permission is hereby given to the medical, nursing and laboratory staff of the Medical
City General Hospital to perform such diagnostic procedures and to administer such
medications and treatments as may be deemed necessary or advisable by thephysicians
of this hospitalfor and during the confinement of xxx. (emphasis supplied)

By such statement, PSI virtually reinforced the public impression that Dr. Ampil was a
physician ofits hospital, rather than one independently practicing in it; that the
medications and treatments he prescribed were necessary and desirable; and that the
hospital staff was prepared to carry them out.

PSI pointed out in its memorandum that Dr. Ampil's hospital affiliation was not the
exclusive basis of the Aganas decision to have Natividad treated in Medical City General
Hospital, meaning that, had Dr. Ampil been affiliated with another hospital, he would
still have been chosen by the Aganas as Natividad's surgeon.54

The Court cannot speculate on what could have been behind the Aganas decision but
would rather adhere strictly to the fact that, under the circumstances at that time,
Enrique decided to consult Dr. Ampil for he believed him to be a staff member of a
prominent and known hospital. After his meeting with Dr. Ampil, Enrique advised his
wife Natividad to go to the Medical City General Hospital to be examined by said doctor,
and the hospital acted in a way that fortified Enrique's belief.

This Court must therefore maintain the ruling that PSI is vicariously liable for the
negligence of Dr. Ampil as its ostensible agent.

Moving on to the next issue, the Court notes that PSI made the following admission in
its Motion for Reconsideration:

51. Clearly, not being an agent or employee of petitioner PSI, PSI [sic] is not liable for
Dr. Ampil's acts during the operation. Considering further that Dr. Ampil was personally
engaged as a doctor by Mrs. Agana, it is incumbent upon Dr. Ampil, as "Captain of the
Ship", and as the Agana's doctor to advise her on what to do with her situation vis-a-vis
the two missing gauzes. In addition to noting the missing gauzes, regular check-ups
were made and no signs of complications were exhibited during her stay at the hospital,
which could have alerted petitioner PSI's hospital to render and provide post-operation
services to and tread on Dr. Ampil's role as the doctor of Mrs. Agana. The absence of
negligence of PSI from the patient's admission up to her discharge is borne by the
finding of facts in this case. Likewise evident therefrom is the absence of any complaint
from Mrs. Agana after her discharge from the hospital which had she brought to the
hospital's attention, could have alerted petitioner PSI to act accordingly and bring the
matter to Dr. Ampil's attention. But this was not the case. Ms. Agana complained ONLY
to Drs. Ampil and Fuentes, not the hospital. How then could PSI possibly do something
to fix the negligence committed by Dr. Ampil when it was not informed about it at all .
55 (emphasis supplied)

PSI reiterated its admission when it stated that had Natividad Agana "informed the
hospital of her discomfort and pain, the hospital would have been obliged to act on
it."56

The significance of the foregoing statements is critical.

First, they constitute judicial admission by PSI that while it had no power to control the
means or method by which Dr. Ampil conducted the surgery on Natividad Agana, it had
the power to review or cause the reviewof what may have irregularly transpired within
its walls strictly for the purpose of determining whether some form of negligence may
have attended any procedure done inside its premises, with the ultimate end of
protecting its patients.

Second, it is a judicial admission that, by virtue of the nature of its business as well as
its prominence57 in the hospital industry, it assumed a duty to "tread on" the "captain
of the ship" role of any doctor rendering services within its premises for the purpose of
ensuring the safety of the patients availing themselves of its services and facilities.

Third, by such admission, PSI defined the standards of its corporate conduct under the
circumstances of this case, specifically: (a) that it had a corporate duty to Natividad
even after her operation to ensure her safety as a patient; (b) that its corporate duty
was not limited to having its nursing staff note or record the two missing gauzes and (c)
that its corporate duty extended to determining Dr. Ampil's role in it, bringing the matter
to his attention, and correcting his negligence.

And finally, by such admission, PSI barred itself from arguing in its second motion for
reconsideration that the concept of corporate responsibility was not yet in existence at
the time Natividad underwent treatment;58 and that if it had any corporate
responsibility, the same was limited to reporting the missing gauzes and did not include
"taking an active step in fixing the negligence committed."59 An admission made in the
pleading cannot be controverted by the party making such admission and is conclusive
as to him, and all proofs submitted by him contrary thereto or inconsistent therewith
should be ignored, whether or not objection is interposed by a party.60

Given the standard of conduct that PSI defined for itself, the next relevant inquiry is
whether the hospital measured up to it.

PSI excuses itself from fulfilling its corporate duty on the ground that Dr. Ampil assumed
the personal responsibility of informing Natividad about the two missing gauzes.61 Dr.
Ricardo Jocson, who was part of the group of doctors that attended to Natividad,
testified that toward the end of the surgery, their group talked about the missing gauzes
but Dr. Ampil assured them that he would personally notify the patient about it.62
Furthermore, PSI claimed that there was no reason for it to act on the report on the two
missing gauzes because Natividad Agana showed no signs of complications. She did not
even inform the hospital about her discomfort.63

The excuses proffered by PSI are totally unacceptable.

To begin with, PSI could not simply wave off the problem and nonchalantly delegate to
Dr. Ampil the duty to review what transpired during the operation. The purpose of such
review would have been to pinpoint when, how and by whom two surgical gauzes were
mislaid so that necessary remedial measures could be taken to avert any jeopardy to
Natividad's recovery. Certainly, PSI could not have expected that purpose to be achieved
by merely hoping that the person likely to have mislaid the gauzes might be able to
retrace his own steps. By its own standard of corporate conduct, PSI's duty to initiate
the review was non-delegable.
While Dr. Ampil may have had the primary responsibility of notifying Natividad about the
missing gauzes, PSI imposed upon itself the separate and independent responsibility of
initiating the inquiry into the missing gauzes. The purpose of the first would have been
to apprise Natividad of what transpired during her surgery, while the purpose of the
second would have been to pinpoint any lapse in procedure that led to the gauze count
discrepancy, so as to prevent a recurrence thereof and to determine corrective
measures that would ensure the safety of Natividad. That Dr. Ampil negligently failed to
notify Natividad did not release PSI from its self-imposed separate responsibility.

Corollary to its non-delegable undertaking to review potential incidents of negligence

committed within its premises, PSI had the duty to take notice of medical records
prepared by its own staff and submitted to its custody, especially when these bear
earmarks of a surgery gone awry. Thus, the record taken during the operation of
Natividad which reported a gauze count discrepancy should have given PSI sufficient
reason to initiate a review. It should not have waited for Natividad to complain.

As it happened, PSI took no heed of the record of operation and consequently did not
initiate a review of what transpired during Natividad's operation. Rather, it shirked its
responsibility and passed it on to others to Dr. Ampil whom it expected to inform
Natividad, and to Natividad herself to complain before it took any meaningful step. By its
inaction, therefore, PSI failed its own standard of hospital care. It committed corporate
negligence.

It should be borne in mind that the corporate negligence ascribed to PSI is different
from the medical negligence attributed to Dr. Ampil. The duties of the hospital are
distinct from those of the doctor-consultant practicing within its premises in relation to
the patient; hence, the failure of PSI to fulfill its duties as a hospital corporation gave
rise to a direct liability tothe Aganas distinct from that of Dr. Ampil.

All this notwithstanding, we make it clear that PSI's hospital liability based on ostensible
agency and corporate negligence applies only to this case, pro hac vice. It is not
intended to set a precedent and should not serve as a basis to hold hospitals liable for
every form of negligence of their doctors-consultants under any and all circumstances.
The ruling is unique to this case, for the liability of PSI arose from an implied agency
with Dr. Ampil and an admitted corporate duty to Natividad.64

Other circumstances peculiar to this case warrant this ruling,65 not the least of which
being that the agony wrought upon the Aganas has gone on for 26 long years, with
Natividad coming to the end of her days racked in pain and agony. Such wretchedness
could have been avoided had PSI simply done what was logical: heed the report of a
guaze count discrepancy, initiate a review of what went wrong and take corrective
measures to ensure the safety of Nativad. Rather, for 26 years, PSI hemmed and hawed
at every turn, disowning any such responsibility to its patient. Meanwhile, the options
left to the Aganas have all but dwindled, for the status of Dr. Ampil can no longer be
ascertained.66
Therefore, taking all the equities of this case into consideration, this Court believes P15
million would be a fair and reasonable liability of PSI, subject to 12% p.a. interest from
the finality of this resolution to full satisfaction.

WHEREFORE, the second motion for reconsideration is DENIEDand the motions for
intervention are NOTED.

Professional Services, Inc. is ORDERED pro hac vice to pay Natividad (substituted by her
children Marcelino Agana III, Enrique Agana, Jr., Emma Agana-Andaya, Jesus Agana
and Raymund Agana) and Enrique Agana the total amount of P15 million, subject to
12% p.a. interest from the finality of this resolution to full satisfaction.

No further pleadings by any party shall be entertained in this case.

Let the long-delayed entry of judgment be made in this case upon receipt by all
concerned parties of this resolution.

SO ORDERED.

RENATO C. CORONA
Associate Justice