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husband Rogelio met for the first time Dr.

Orlino Hozaka
KINDRED TORTS / MEDICAL MALPRACTICE (should be Hosaka; see TSN, February 20, 1990, p. 3),
Applicability of Respondeat Superior one of the defendants in this case, on June 10,
1985. They agreed that their date at the operating table
ROGELIO E. RAMOS and ERLINDA RAMOS, in their at the DLSMC (another defendant), would be on June
own behalf and as natural guardians of the 17, 1985 at 9:00 A.M.. Dr. Hosaka decided that she
minors, ROMMEL RAMOS, ROY RODERICK should undergo a cholecystectomy operation after
RAMOS and RON RAYMOND examining the documents (findings from the Capitol
RAMOS, petitioners, vs. COURT OF Medical Center, FEU Hospital and DLSMC) presented to
APPEALS, DELOS SANTOS MEDICAL him. Rogelio E. Ramos, however, asked Dr. Hosaka to
CENTER, DR. ORLINO HOSAKA and DRA. look for a good anesthesiologist. Dr. Hosaka, in turn,
PERFECTA GUTIERREZ, respondents. assured Rogelio that he will get a good
anesthesiologist. Dr. Hosaka charged a fee
DECISION of P16,000.00, which was to include the
anesthesiologists fee and which was to be paid after the
KAPUNAN, J.: operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-
33; TSN, February 27, 1990, p. 13; and TSN, November
The Hippocratic Oath mandates physicians to give 9, 1989, pp. 3-4, 10, 17).
primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is A day before the scheduled date of operation, she was
made accountable for his acts. A mistake, through gross admitted at one of the rooms of the DLSMC, located
negligence or incompetence or plain human error, may along E. Rodriguez Avenue, Quezon City (TSN, October
spell the difference between life and death. In this sense, 19, 1989, p. 11).
the doctor plays God on his patients fate.[1]
In the case at bar, the Court is called upon to rule At around 7:30 A.M. of June 17, 1985 and while still in
whether a surgeon, an anesthesiologist and a hospital her room, she was prepared for the operation by the
should be made liable for the unfortunate comatose hospital staff. Her sister-in-law, Herminda Cruz, who was
condition of a patient scheduled for cholecystectomy.[2] the Dean of the College of Nursing at the Capitol
Medical Center, was also there for moral support. She
Petitioners seek the reversal of the decision[3] of the reiterated her previous request for Herminda to be with
Court of Appeals, dated 29 May 1995, which overturned her even during the operation. After praying, she was
the decision[4]of the Regional Trial Court, dated 30 given injections. Her hands were held by Herminda as
January 1992, finding private respondents liable for they went down from her room to the operating room
damages arising from negligence in the performance of (TSN, January 13, 1988, pp. 9-11). Her husband,
their professional duties towards petitioner Erlinda Rogelio, was also with her (TSN, October 19, 1989, p.
Ramos resulting in her comatose condition. 18). At the operating room, Herminda saw about two or
three nurses and Dr. Perfecta Gutierrez, the other
The antecedent facts as summarized by the trial
defendant, who was to administer anesthesia. Although
court are reproduced hereunder:
not a member of the hospital staff, Herminda introduced
herself as Dean of the College of Nursing at the Capitol
Plaintiff Erlinda Ramos was, until the afternoon of June Medical Center who was to provide moral support to the
17, 1985, a 47-year old (Exh. A) robust woman (TSN, patient, to them. Herminda was allowed to stay inside
October 19, 1989, p. 10). Except for occasional the operating room.
complaints of discomfort due to pains allegedly caused
by the presence of a stone in her gall bladder (TSN,
At around 9:30 A.M., Dr. Gutierrez reached a nearby
January 13, 1988, pp. 4-5), she was as normal as any
phone to look for Dr. Hosaka who was not yet in (TSN,
other woman. Married to Rogelio E. Ramos, an
January 13, 1988, pp. 11-12). Dr. Gutierrez thereafter
executive of Philippine Long Distance Telephone
informed Herminda Cruz about the prospect of a delay in
Company, she has three children whose names are
the arrival of Dr. Hosaka. Herminda then went back to
Rommel Ramos, Roy Roderick Ramos and Ron
the patient who asked, Mindy, wala pa ba ang
Raymond Ramos (TSN, October 19, 1989, pp. 5-6).
Doctor? The former replied, Huwag kang mag-alaala,
darating na iyon (ibid.).
Because the discomforts somehow interfered with her
normal ways, she sought professional advice. She was
Thereafter, Herminda went out of the operating room
advised to undergo an operation for the removal of a
and informed the patients husband, Rogelio, that the
stone in her gall bladder (TSN, January 13, 1988, p.
doctor was not yet around (id., p. 13). When she
5). She underwent a series of examinations which
returned to the operating room, the patient told her,
included blood and urine tests (Exhs. A and C) which
Mindy, inip na inip na ako, ikuha mo ako ng ibang
indicated she was fit for surgery.
Doctor. So, she went out again and told Rogelio about
what the patient said (id., p. 15). Thereafter, she
Through the intercession of a mutual friend, Dr. returned to the operating room.
Buenviaje (TSN, January 13, 1988, p. 7), she and her
At around 10:00 A.M., Rogelio E. Ramos was already About two days thereafter, Rogelio E. Ramos was able
dying [and] waiting for the arrival of the doctor even as to talk to Dr. Hosaka. The latter informed the former that
he did his best to find somebody who will allow him to something went wrong during the intubation. Reacting to
pull out his wife from the operating room (TSN, October what was told to him, Rogelio reminded the doctor that
19, 1989, pp. 19-20). He also thought of the feeling of the condition of his wife would not have happened, had
his wife, who was inside the operating room waiting for he (Dr. Hosaka) looked for a good anesthesiologist
the doctor to arrive (ibid.). At almost 12:00 noon, he met (TSN, October 19, 1989, p. 31).
Dr. Garcia who remarked that he (Dr. Garcia) was also
tired of waiting for Dr. Hosaka to arrive (id., p. 21). While Doctors Gutierrez and Hosaka were also asked by the
talking to Dr. Garcia at around 12:10 P.M., he came to hospital to explain what happened to the patient. The
know that Dr. Hosaka arrived as a nurse remarked, doctors explained that the patient had bronchospasm
Nandiyan na si Dr. Hosaka, dumating na raw. Upon (TSN, November 15, 1990, pp. 26-27).
hearing those words, he went down to the lobby and
waited for the operation to be completed (id., pp. 16, 29- Erlinda Ramos stayed at the ICU for a month. About four
30). months thereafter or on November 15, 1985, the patient
was released from the hospital.
At about 12:15 P.M., Herminda Cruz, who was inside the
operating room with the patient, heard somebody say
During the whole period of her confinement, she incurred
that Dr. Hosaka is already here. She then saw people hospital bills amounting to P93,542.25 which is the
inside the operating room moving, doing this and that, subject of a promissory note and affidavit of undertaking
[and] preparing the patient for the operation (TSN,
executed by Rogelio E. Ramos in favor of
January 13, 1988, p. 16). As she held the hand of
DLSMC. Since that fateful afternoon of June 17, 1985,
Erlinda Ramos, she then saw Dr. Gutierrez intubating
she has been in a comatose condition. She cannot do
the hapless patient. She thereafter heard Dr. Gutierrez
anything. She cannot move any part of her body. She
say, ang hirap ma-intubate nito, mali yata ang cannot see or hear. She is living on mechanical
pagkakapasok. O lumalaki ang tiyan (id., p.
means. She suffered brain damage as a result of the
17). Because of the remarks of Dra. Gutierrez, she
absence of oxygen in her brain for four to five minutes
focused her attention on what Dr. Gutierrez was
(TSN, November 9, 1989, pp. 21-22). After being
doing. She thereafter noticed bluish discoloration of the
discharged from the hospital, she has been staying in
nailbeds of the left hand of the hapless Erlinda even as their residence, still needing constant medical attention,
Dr. Hosaka approached her. She then heard Dr. Hosaka with her husband Rogelio incurring a monthly expense
issue an order for someone to call Dr. Calderon, another
ranging from P8,000.00 to P10,000.00 (TSN, October
anesthesiologist (id., p. 19). After Dr. Calderon arrived at
19, 1989, pp. 32-34). She was also diagnosed to be
the operating room, she saw this anesthesiologist trying
suffering from diffuse cerebral parenchymal damage
to intubate the patient. The patients nailbed became
(Exh. G; see also TSN, December 21, 1989, p. 6).[5]
bluish and the patient was placed in a trendelenburg
position - a position where the head of the patient is
placed in a position lower than her feet which is an Thus, on 8 January 1986, petitioners filed a civil
indication that there is a decrease of blood supply to the case[6] for damages with the Regional Trial Court of
patients brain (Id., pp. 19-20). Immediately thereafter, Quezon City against herein private respondents alleging
she went out of the operating room, and she told Rogelio negligence in the management and care of Erlinda
E. Ramos that something wrong was x x x happening Ramos.
(Ibid.). Dr. Calderon was then able to intubate the patient During the trial, both parties presented evidence as
(TSN, July 25, 1991, p. 9). to the possible cause of Erlindas injury. Plaintiff
presented the testimonies of Dean Herminda Cruz and
Meanwhile, Rogelio, who was outside the operating Dr. Mariano Gavino to prove that the damage sustained
room, saw a respiratory machine being rushed towards by Erlinda was due to lack of oxygen in her brain caused
the door of the operating room. He also saw several by the faulty management of her airway by private
doctors rushing towards the operating room.When respondents during the anesthesia phase. On the other
informed by Herminda Cruz that something wrong was hand, private respondents primarily relied on the expert
happening, he told her (Herminda) to be back with the testimony of Dr. Eduardo Jamora, a pulmonologist, to
patient inside the operating room (TSN, October 19, the effect that the cause of brain damage was Erlindas
1989, pp. 25-28). allergic reaction to the anesthetic agent, Thiopental
Sodium (Pentothal).
Herminda Cruz immediately rushed back, and saw that
After considering the evidence from both sides, the
the patient was still in trendelenburg position (TSN,
Regional Trial Court rendered judgment in favor of
January 13, 1988, p. 20). At almost 3:00 P.M. of that
petitioners, to wit:
fateful day, she saw the patient taken to the Intensive
Care Unit (ICU).
After evaluating the evidence as shown in the finding of
facts set forth earlier, and applying the aforecited
provisions of law and jurisprudence to the case at bar,
this Court finds and so holds that defendants are liable 2) the sum of P100,000.00 as reasonable attorney's
to plaintiffs for damages. The defendants were guilty of, fees;
at the very least, negligence in the performance of their
duty to plaintiff-patient Erlinda Ramos. 3) the sum of P800,000.00 by way of moral damages
and the further sum of P200,000.00 by way of exemplary
On the part of Dr. Perfecta Gutierrez, this Court finds damages; and,
that she omitted to exercise reasonable care in not only
intubating the patient, but also in not repeating the 4) the costs of the suit.
administration of atropine (TSN, August 20, 1991, pp. 5-
10), without due regard to the fact that the patient was
SO ORDERED.[7]
inside the operating room for almost three (3) hours. For
after she committed a mistake in intubating [the] patient,
the patient's nailbed became bluish and the patient, Private respondents seasonably interposed an
thereafter, was placed in trendelenburg position, appeal to the Court of Appeals. The appellate court
because of the decrease of blood supply to the patient's rendered a Decision, dated 29 May 1995, reversing the
brain. The evidence further shows that the hapless findings of the trial court. The decretal portion of the
patient suffered brain damage because of the absence decision of the appellate court reads:
of oxygen in her (patient's) brain for approximately four
to five minutes which, in turn, caused the patient to WHEREFORE, for the foregoing premises the appealed
become comatose. decision is hereby REVERSED, and the complaint below
against the appellants is hereby ordered
On the part of Dr. Orlino Hosaka, this Court finds that he DISMISSED. The counterclaim of appellant De Los
is liable for the acts of Dr. Perfecta Gutierrez whom he Santos Medical Center is GRANTED but only insofar as
had chosen to administer anesthesia on the patient as appellees are hereby ordered to pay the unpaid hospital
part of his obligation to provide the patient a `good bills amounting to P93,542.25, plus legal interest for
anesthesiologist', and for arriving for the scheduled justice must be tempered with mercy.
operation almost three (3) hours late.
SO ORDERED.[8]
On the part of DLSMC (the hospital), this Court finds that
it is liable for the acts of negligence of the doctors in their The decision of the Court of Appeals was received
`practice of medicine' in the operating room. Moreover, on 9 June 1995 by petitioner Rogelio Ramos who was
the hospital is liable for failing through its responsible mistakenly addressed as Atty. Rogelio Ramos. No copy
officials, to cancel the scheduled operation after Dr. of the decision, however, was sent nor received by the
Hosaka inexcusably failed to arrive on time. Coronel Law Office, then counsel on record of
petitioners. Rogelio referred the decision of the appellate
In having held thus, this Court rejects the defense raised court to a new lawyer, Atty. Ligsay, only on 20 June
by defendants that they have acted with due care and 1995, or four (4) days before the expiration of the
prudence in rendering medical services to plaintiff- reglementary period for filing a motion for
patient. For if the patient was properly intubated as reconsideration. On the same day, Atty. Ligsay, filed with
claimed by them, the patient would not have become the appellate court a motion for extension of time to file a
comatose. And, the fact that another anesthesiologist motion for reconsideration.The motion for
was called to try to intubate the patient after her (the reconsideration was submitted on 4 July 1995. However,
patient's) nailbed turned bluish, belie their the appellate court denied the motion for extension of
claim. Furthermore, the defendants should have time in its Resolution dated 25 July 1995.[9] Meanwhile
rescheduled the operation to a later date. This, they petitioners engaged the services of another counsel,
should have done, if defendants acted with due care and Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on
prudence as the patient's case was an elective, not an 7 August 1995 a motion to admit the motion for
emergency case. reconsideration contending that the period to file the
appropriate pleading on the assailed decision had not
yet commenced to run as the Division Clerk of Court of
xxx the Court of Appeals had not yet served a copy thereof
to the counsel on record. Despite this explanation, the
WHEREFORE, and in view of the foregoing, judgment is appellate court still denied the motion to admit the
rendered in favor of the plaintiffs and against the motion for reconsideration of petitioners in its Resolution,
defendants. Accordingly, the latter are ordered to pay, dated 29 March 1996, primarily on the ground that the
jointly and severally, the former the following sums of fifteen-day (15) period for filing a motion for
money, to wit: reconsideration had already expired, to wit:

1) the sum of P8,000.00 as actual monthly expenses for We said in our Resolution on July 25, 1995, that the
the plaintiff Erlinda Ramos reckoned from November 15, filing of a Motion for Reconsideration cannot be
1985 or in the total sum of P632,000.00 as of April 15, extended; precisely, the Motion for Extension (Rollo, p.
1992, subject to its being updated;
12) was denied. It is, on the other hand, admitted in the A careful review of the records reveals that the
latter Motion that plaintiffs/appellees received a copy of reason behind the delay in filing the motion for
the decision as early as June 9, 1995. Computation reconsideration is attributable to the fact that the
wise, the period to file a Motion for Reconsideration decision of the Court of Appeals was not sent to then
expired on June 24. The Motion for Reconsideration, in counsel on record of petitioners, the Coronel Law
turn, was received by the Court of Appeals already on Office. In fact, a copy of the decision of the appellate
July 4, necessarily, the 15-day period already court was instead sent to and received by petitioner
passed. For that alone, the latter should be denied. Rogelio Ramos on 9 June 1995 wherein he was
mistakenly addressed as Atty. Rogelio Ramos. Based on
Even assuming admissibility of the Motion for the other communications received by petitioner Rogelio
Reconsideration, but after considering the Ramos, the appellate court apparently mistook him for
Comment/Opposition, the former, for lack of merit, is the counsel on record. Thus, no copy of the decision of
hereby DENIED. the appellate court was furnished to the counsel on
record. Petitioner, not being a lawyer and unaware of the
SO ORDERED.[10] prescriptive period for filing a motion for reconsideration,
referred the same to a legal counsel only on 20 June
1995.
A copy of the above resolution was received by
Atty. Sillano on 11 April 1996. The next day, or on 12 It is elementary that when a party is represented by
April 1996, Atty. Sillano filed before this Court a motion counsel, all notices should be sent to the partys lawyer
for extension of time to file the present petition at his given address. With a few exceptions, notice to a
for certiorari under Rule 45. The Court granted the litigant without notice to his counsel on record is no
motion for extension of time and gave petitioners notice at all. In the present case, since a copy of the
additional thirty (30) days after the expiration of the decision of the appellate court was not sent to the
fifteen-day (15) period counted from the receipt of the counsel on record of petitioner, there can be no sufficient
resolution of the Court of Appeals within which to submit notice to speak of. Hence, the delay in the filing of the
the petition. The due date fell on 27 May 1996. The motion for reconsideration cannot be taken against
petition was filed on 9 May 1996, well within the petitioner. Moreover, since the Court of Appeals already
extended period given by the Court. issued a second Resolution, dated 29 March 1996,
which superseded the earlier resolution issued on 25
Petitioners assail the decision of the Court of July 1995, and denied the motion for reconsideration of
Appeals on the following grounds: petitioner, we believe that the receipt of the former
I should be considered in determining the timeliness of
the filing of the present petition. Based on this, the
petition before us was submitted on time.
IN PUTTING MUCH RELIANCE ON THE
TESTIMONIES OF RESPONDENTS DRA. After resolving the foregoing procedural issue, we
GUTIERREZ, DRA. CALDERON AND DR. shall now look into the merits of the case. For a more
JAMORA; logical presentation of the discussion we shall first
consider the issue on the applicability of the doctrine
II of res ipsa loquitur to the instant case. Thereafter, the
first two assigned errors shall be tackled in relation to
IN FINDING THAT THE NEGLIGENCE OF THE the res ipsa loquitur doctrine.
RESPONDENTS DID NOT CAUSE THE Res ipsa loquitur is a Latin phrase which literally
UNFORTUNATE COMATOSE CONDITION OF means the thing or the transaction speaks for itself. The
PETITIONER ERLINDA RAMOS; phrase res ipsa loquitur is a maxim for the rule that the
fact of the occurrence of an injury, taken with the
III surrounding circumstances, may permit an inference or
raise a presumption of negligence, or make out a
IN NOT APPLYING THE DOCTRINE OF RES IPSA plaintiffs prima facie case, and present a question of fact
LOQUITUR.[11] for defendant to meet with an explanation. [13] Where the
thing which caused the injury complained of is shown to
Before we discuss the merits of the case, we shall be under the management of the defendant or his
first dispose of the procedural issue on the timeliness of servants and the accident is such as in ordinary course
the petition in relation to the motion for reconsideration of things does not happen if those who have its
filed by petitioners with the Court of Appeals. In their management or control use proper care, it affords
Comment,[12] private respondents contend that the reasonable evidence, in the absence of explanation by
petition should not be given due course since the motion the defendant, that the accident arose from or was
for reconsideration of the petitioners on the decision of caused by the defendants want of care.[14]
the Court of Appeals was validly dismissed by the The doctrine of res ipsa loquitur is simply a
appellate court for having been filed beyond the recognition of the postulate that, as a matter of common
reglementary period. We do not agree. knowledge and experience, the very nature of certain
types of occurrences may justify an inference of Although generally, expert medical testimony is
negligence on the part of the person who controls the relied upon in malpractice suits to prove that a physician
instrumentality causing the injury in the absence of some has done a negligent act or that he has deviated from
explanation by the defendant who is charged with the standard medical procedure, when the doctrine
negligence.[15] It is grounded in the superior logic of of res ipsa loquitur is availed by the plaintiff, the need for
ordinary human experience and on the basis of such expert medical testimony is dispensed with because the
experience or common knowledge, negligence may be injury itself provides the proof of negligence.[27] The
deduced from the mere occurrence of the accident reason is that the general rule on the necessity of expert
itself.[16] Hence, res ipsa loquitur isapplied in conjunction testimony applies only to such matters clearly within the
with the doctrine of common knowledge. domain of medical science, and not to matters that are
within the common knowledge of mankind which may be
However, much has been said that res ipsa testified to by anyone familiar with the
loquitur is not a rule of substantive law and, as such, facts.[28] Ordinarily, only physicians and surgeons of skill
does not create or constitute an independent or separate and experience are competent to testify as to whether a
ground of liability.[17] Instead, it is considered as merely patient has been treated or operated upon with a
evidentiary or in the nature of a procedural rule.[18] It is reasonable degree of skill and care. However, testimony
regarded as a mode of proof, or a mere procedural as to the statements and acts of physicians and
convenience since it furnishes a substitute for, and surgeons, external appearances, and manifest
relieves a plaintiff of, the burden of producing specific conditions which are observable by any one may be
proof of negligence.[19] In other words, mere invocation given by non-expert witnesses.[29] Hence, in cases
and application of the doctrine does not dispense with where the res ipsa loquitur is applicable, the court is
the requirement of proof of negligence. It is simply a step permitted to find a physician negligent upon proper proof
in the process of such proof, permitting the plaintiff to of injury to the patient, without the aid of expert
present along with the proof of the accident, enough of testimony, where the court from its fund of common
the attending circumstances to invoke the doctrine, knowledge can determine the proper standard of
creating an inference or presumption of negligence, and care.[30] Where common knowledge and experience
to thereby place on the defendant the burden of going teach that a resulting injury would not have occurred to
forward with the proof.[20] Still, before resort to the the patient if due care had been exercised, an inference
doctrine may be allowed, the following requisites must of negligence may be drawn giving rise to an application
be satisfactorily shown: of the doctrine of res ipsa loquitur without medical
1. The accident is of a kind which ordinarily evidence, which is ordinarily required to show not only
does not occur in the absence of someones what occurred but how and why it occurred.[31] When the
negligence; doctrine is appropriate, all that the patient must do is
prove a nexus between the particular act or omission
2. It is caused by an instrumentality within the complained of and the injury sustained while under the
exclusive control of the defendant or custody and management of the defendant without need
defendants; and to produce expert medical testimony to establish the
standard of care. Resort to res ipsa loquitur is allowed
3. The possibility of contributing conduct which
because there is no other way, under usual and ordinary
would make the plaintiff responsible is
conditions, by which the patient can obtain redress for
eliminated.[21]
injury suffered by him.
In the above requisites, the fundamental element is
Thus, courts of other jurisdictions have applied the
the control of the instrumentality which caused the
doctrine in the following situations: leaving of a foreign
damage.[22] Such element of control must be shown to
object in the body of the patient after an
be within the dominion of the defendant. In order to have
operation,[32] injuries sustained on a healthy part of the
the benefit of the rule, a plaintiff, in addition to proving
body which was not under, or in the area, of
injury or damage, must show a situation where it is
treatment,[33] removal of the wrong part of the body when
applicable, and must establish that the essential
another part was intended,[34] knocking out a tooth while
elements of the doctrine were present in a particular
a patients jaw was under anesthetic for the removal of
incident.[23]
his tonsils,[35] and loss of an eye while the patient plaintiff
Medical malpractice[24]cases do not escape the was under the influence of anesthetic, during or following
application of this doctrine. Thus, res ipsa loquitur has an operation for appendicitis,[36] among others.
been applied when the circumstances attendant upon
Nevertheless, despite the fact that the scope of res
the harm are themselves of such a character as to justify
ipsa loquitur has been measurably enlarged, it does not
an inference of negligence as the cause of that
automatically apply to all cases of medical negligence as
harm.[25] The application of res ipsa loquitur in medical
to mechanically shift the burden of proof to the
negligence cases presents a question of law since it is a
defendant to show that he is not guilty of the ascribed
judicial function to determine whether a certain set of
negligence. Res ipsa loquitur is not a rigid or ordinary
circumstances does, as a matter of law, permit a given
doctrine to be perfunctorily used but a rule to be
inference.[26]
cautiously applied, depending upon the circumstances of
each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a Here the plaintiff could not have been guilty of
matter of common knowledge and observation, that the contributory negligence because he was under the
consequences of professional care were not as such as influence of anesthetics and unconscious, and the
would ordinarily have followed if due care had been circumstances are such that the true explanation of
exercised.[37] A distinction must be made between the event is more accessible to the defendants than to the
failure to secure results, and the occurrence of plaintiff for they had the exclusive control of the
something more unusual and not ordinarily found if the instrumentalities of anesthesia.
service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It Upon all the facts, conditions and circumstances alleged
must be conceded that the doctrine of res ipsa in Count II it is held that a cause of action is stated under
loquitur can have no application in a suit against a the doctrine of res ipsa loquitur.[44]
physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment.[38] The physician or
Indeed, the principles enunciated in the aforequoted
surgeon is not required at his peril to explain why any case apply with equal force here. In the present case,
particular diagnosis was not correct, or why any Erlinda submitted herself for cholecystectomy and
particular scientific treatment did not produce the desired
expected a routine general surgery to be performed on
result.[39] Thus, res ipsa loquitur is not available in a
her gall bladder. On that fateful day she delivered her
malpractice suit if the only showing is that the desired
person over to the care, custody and control of private
result of an operation or treatment was not
respondents who exercised complete and exclusive
accomplished.[40] The real question, therefore, is whether control over her. At the time of submission, Erlinda was
or not in the process of the operation any extraordinary neurologically sound and, except for a few minor
incident or unusual event outside of the routine
discomforts, was likewise physically fit in mind and
performance occurred which is beyond the regular scope
body. However, during the administration of anesthesia
of customary professional activity in such operations, and prior to the performance of cholecystectomy she
which, if unexplained would themselves reasonably suffered irreparable damage to her brain. Thus, without
speak to the average man as the negligent cause or undergoing surgery, she went out of the operating room
causes of the untoward consequence.[41] If there was
already decerebrate and totally incapacitated. Obviously,
such extraneous interventions, the doctrine of res ipsa
brain damage, which Erlinda sustained, is an injury
loquitur may be utilized and the defendant is called upon
which does not normally occur in the process of a gall
to explain the matter, by evidence of exculpation, if he
bladder operation. In fact, this kind of situation does not
could.[42] happen in the absence of negligence of someone in the
We find the doctrine of res ipsa loquitur appropriate administration of anesthesia and in the use of
in the case at bar. As will hereinafter be explained, the endotracheal tube. Normally, a person being put under
damage sustained by Erlinda in her brain prior to a anesthesia is not rendered decerebrate as a
scheduled gall bladder operation presents a case for the consequence of administering such anesthesia if the
application of res ipsa loquitur. proper procedure was followed. Furthermore, the
instruments used in the administration of anesthesia,
A case strikingly similar to the one before us including the endotracheal tube, were all under the
is Voss vs. Bridwell,[43] where the Kansas Supreme exclusive control of private respondents, who are the
Court in applying the res ipsa loquitur stated: physicians-in-charge. Likewise, petitioner Erlinda could
not have been guilty of contributory negligence because
The plaintiff herein submitted himself for a mastoid she was under the influence of anesthetics which
operation and delivered his person over to the care, rendered her unconscious.
custody and control of his physician who had complete
and exclusive control over him, but the operation was Considering that a sound and unaffected member
never performed. At the time of submission he was of the body (the brain) is injured or destroyed while the
neurologically sound and physically fit in mind and body, patient is unconscious and under the immediate and
but he suffered irreparable damage and injury rendering exclusive control of the physicians, we hold that a
him decerebrate and totally incapacitated. The injury practical administration of justice dictates the application
was one which does not ordinarily occur in the process of res ipsa loquitur. Upon these facts and under these
of a mastoid operation or in the absence of negligence in circumstances the Court would be able to say, as a
the administration of an anesthetic, and in the use and matter of common knowledge and observation, if
employment of an endoctracheal tube. Ordinarily a negligence attended the management and care of the
person being put under anesthesia is not rendered patient. Moreover, the liability of the physicians and the
decerebrate as a consequence of administering such hospital in this case is not predicated upon an alleged
anesthesia in the absence of negligence. Upon these failure to secure the desired results of an operation nor
facts and under these circumstances a layman would be on an alleged lack of skill in the diagnosis or treatment
able to say, as a matter of common knowledge and as in fact no operation or treatment was ever performed
observation, that the consequences of professional on Erlinda. Thus, upon all these initial determination a
treatment were not as such as would ordinarily have case is made out for the application of the doctrine of res
followed if due care had been exercised. ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is Center School of Nursing and petitioner's sister-in-law,
available to the present case we are not saying that the who was in the operating room right beside the patient
doctrine is applicable in any and all cases where injury when the tragic event occurred. Witness Cruz testified to
occurs to a patient while under anesthesia, or to any and this effect:
all anesthesia cases. Each case must be viewed in its
own light and scrutinized in order to be within the res ATTY. PAJARES:
ipsa loquitur coverage. Q: In particular, what did Dra. Perfecta Gutierrez do,
Having in mind the applicability of the res ipsa if any on the patient?
loquitur doctrine and the presumption of negligence A: In particular, I could see that she was intubating
allowed therein, the Court now comes to the issue of the patient.
whether the Court of Appeals erred in finding that private
respondents were not negligent in the care of Erlinda Q: Do you know what happened to that intubation
during the anesthesia phase of the operation and, if in process administered by Dra. Gutierrez?
the affirmative, whether the alleged negligence was the
ATTY. ALCERA:
proximate cause of Erlindas comatose
condition. Corollary thereto, we shall also determine if She will be incompetent Your Honor.
the Court of Appeals erred in relying on the testimonies
of the witnesses for the private respondents. COURT:

In sustaining the position of private respondents, Witness may answer if she knows.
the Court of Appeals relied on the testimonies of Dra. A: As I have said, I was with the patient, I was beside
Gutierrez, Dra. Calderon and Dr. Jamora. In giving the stretcher holding the left hand of the patient
weight to the testimony of Dra. Gutierrez, the Court of and all of a sudden I heard some remarks
Appeals rationalized that she was candid enough to coming from Dra. Perfecta Gutierrez
admit that she experienced some difficulty in the herself. She was saying Ang hirap ma-intubate
endotracheal intubation[45]of the patient and thus, cannot nito, mali yata ang pagkakapasok. O lumalaki
be said to be covering her negligence with ang tiyan.
falsehood. The appellate court likewise opined that
private respondents were able to show that the brain xxx
damage sustained by Erlinda was not caused by the
alleged faulty intubation but was due to the allergic ATTY. PAJARES:
reaction of the patient to the drug Thiopental Sodium Q: From whom did you hear those words lumalaki
(Pentothal), a short-acting barbiturate, as testified on by ang tiyan?
their expert witness, Dr. Jamora. On the other hand, the
appellate court rejected the testimony of Dean Herminda A: From Dra. Perfecta Gutierrez.
Cruz offered in favor of petitioners that the cause of the
xxx
brain injury was traceable to the wrongful insertion of the
tube since the latter, being a nurse, was allegedly not After hearing the phrase lumalaki ang tiyan,
knowledgeable in the process of intubation. In so what did you notice on the person of the patient?
holding, the appellate court returned a verdict in favor of
respondents physicians and hospital and absolved them A: I notice (sic) some bluish discoloration on the
of any liability towards Erlinda and her family. nailbeds of the left hand where I was at.

We disagree with the findings of the Court of Q: Where was Dr. Orlino Ho[s]aka then at that
Appeals. We hold that private respondents were unable particular time?
to disprove the presumption of negligence on their part A: I saw him approaching the patient during that time.
in the care of Erlinda and their negligence was the
proximate cause of her piteous condition. Q: When he approached the patient, what did he do,
if any?
In the instant case, the records are helpful in
furnishing not only the logical scientific evidence of the A: He made an order to call on the anesthesiologist in
pathogenesis of the injury but also in providing the Court the person of Dr. Calderon.
the legal nexus upon which liability is based. As will be
shown hereinafter, private respondents own testimonies Q: Did Dr. Calderon, upon being called, arrive inside
which are reflected in the transcript of stenographic the operating room?
notes are replete of signposts indicative of their A: Yes sir.
negligence in the care and management of Erlinda.
Q: What did [s]he do, if any?
With regard to Dra. Gutierrez, we find her negligent
in the care of Erlinda during the anesthesia phase. As A: [S]he tried to intubate the patient.
borne by the records, respondent Dra. Gutierrez failed to
Q: What happened to the patient?
properly intubate the patient. This fact was attested to by
Prof. Herminda Cruz, Dean of the Capitol Medical
A: When Dr. Calderon try (sic) to intubate the patient, At any rate, without doubt, petitioner's witness, an
after a while the patients nailbed became bluish experienced clinical nurse whose long experience and
and I saw the patient was placed in scholarship led to her appointment as Dean of the
trendelenburg position. Capitol Medical Center School of Nursing, was fully
capable of determining whether or not the intubation was
xxx a success. She had extensive clinical experience
Q: Do you know the reason why the patient was starting as a staff nurse in Chicago, Illinois; staff nurse
placed in that trendelenburg position? and clinical instructor in a teaching hospital, the FEU-
NRMF; Dean of the Laguna College of Nursing in San
A: As far as I know, when a patient is in that position, Pablo City; and then Dean of the Capitol Medical Center
there is a decrease of blood supply to the School of Nursing.[50]Reviewing witness Cruz'
brain.[46] statements, we find that the same were delivered in a
straightforward manner, with the kind of detail, clarity,
xxx
consistency and spontaneity which would have been
The appellate court, however, disbelieved Dean difficult to fabricate. With her clinical background as a
Cruz's testimony in the trial court by declaring that: nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly transpired
A perusal of the standard nursing curriculum in our on that fateful day.
country will show that intubation is not taught as part of Most of all, her testimony was affirmed by no less
nursing procedures and techniques. Indeed, we take than respondent Dra. Gutierrez who admitted that she
judicial notice of the fact that nurses do not, and cannot, experienced difficulty in inserting the tube into Erlindas
intubate. Even on the assumption that she is fully trachea, to wit:
capable of determining whether or not a patient is
properly intubated, witness Herminda Cruz, admittedly, ATTY. LIGSAY:
did not peep into the throat of the patient. (TSN, July 25,
Q: In this particular case, Doctora, while you were
1991, p. 13). More importantly, there is no evidence that
intubating at your first attempt (sic), you did not
she ever auscultated the patient or that she conducted
immediately see the trachea?
any type of examination to check if the endotracheal
tube was in its proper place, and to determine the DRA. GUTIERREZ:
condition of the heart, lungs, and other organs. Thus,
witness Cruz's categorical statements that appellant Dra. A: Yes sir.
Gutierrez failed to intubate the appellee Erlinda Ramos Q: Did you pull away the tube immediately?
and that it was Dra. Calderon who succeeded in doing
so clearly suffer from lack of sufficient factual bases.[47] A: You do not pull the ...
Q: Did you or did you not?
In other words, what the Court of Appeals is trying
to impress is that being a nurse, and considered a A: I did not pull the tube.
layman in the process of intubation, witness Cruz is not
competent to testify on whether or not the intubation was Q: When you said mahirap yata ito, what were you
a success. referring to?

We do not agree with the above reasoning of the A: Mahirap yata itong i-intubate, that was the patient.
appellate court. Although witness Cruz is not an Q: So, you found some difficulty in inserting the tube?
anesthesiologist, she can very well testify upon matters
on which she is capable of observing such as, the A: Yes, because of (sic) my first attempt, I did not see
statements and acts of the physician and surgeon, right away.[51]
external appearances, and manifest conditions which
are observable by any one.[48] This is precisely allowed Curiously in the case at bar, respondent Dra.
under the doctrine of res ipsa loquitur where the Gutierrez made the haphazard defense that she
testimony of expert witnesses is not required. It is the encountered hardship in the insertion of the tube in the
accepted rule that expert testimony is not necessary for trachea of Erlinda because it was positioned more
the proof of negligence in non-technical matters or those anteriorly (slightly deviated from the normal anatomy of a
of which an ordinary person may be expected to have person)[52] making it harder to locate and, since Erlinda
knowledge, or where the lack of skill or want of care is is obese and has a short neck and protruding teeth, it
so obvious as to render expert testimony made intubation even more difficult.
unnecessary.[49] We take judicial notice of the fact that The argument does not convince us. If this was
anesthesia procedures have become so common, that indeed observed, private respondents adduced no
even an ordinary person can tell if it was administered evidence demonstrating that they proceeded to make a
properly. As such, it would not be too difficult to tell if the thorough assessment of Erlindas airway, prior to the
tube was properly inserted. This kind of observation, we induction of anesthesia, even if this would mean
believe, does not require a medical degree to be postponing the procedure. From their testimonies, it
acceptable.
appears that the observation was made only as an relationship and gain the trust and confidence of the
afterthought, as a means of defense. patient?
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to DRA. GUTIERREZ:
lessen the possibility of anesthetic accidents. Pre-
operative evaluation and preparation for anesthesia A: As I said in my previous statement, it depends on the
begins when the anesthesiologist reviews the patients operative procedure of the anesthesiologist and in my
medical records and visits with the patient, traditionally, case, with elective cases and normal cardio-pulmonary
the day before elective surgery.[53] It includes taking the clearance like that, I usually don't do it except on
patients medical history, review of current drug therapy, emergency and on cases that have an abnormalities
physical examination and interpretation of laboratory (sic).[58]
data.[54] The physical examination performed by the
anesthesiologist is directed primarily toward the central However, the exact opposite is true. In an
nervous system, cardiovascular system, lungs and upper emergency procedure, there is hardly enough time
airway.[55] A thorough analysis of the patient's airway available for the fastidious demands of pre-operative
normally involves investigating the following: cervical procedure so that an anesthesiologist is able to see the
spine mobility, temporomandibular mobility, prominent patient only a few minutes before surgery, if at
central incisors, diseased or artificial teeth, ability to all. Elective procedures, on the other hand, are operative
visualize uvula and the thyromental distance.[56] Thus, procedures that can wait for days, weeks or even
physical characteristics of the patients upper airway that months. Hence, in these cases, the anesthesiologist
could make tracheal intubation difficult should be possesses the luxury of time to make a proper
studied.[57] Where the need arises, as when initial assessment, including the time to be at the patient's
assessment indicates possible problems (such as the bedside to do a proper interview and clinical
alleged short neck and protruding teeth of Erlinda) a evaluation. There is ample time to explain the method of
thorough examination of the patients airway would go a anesthesia, the drugs to be used, and their possible
long way towards decreasing patient morbidity and hazards for purposes of informed consent. Usually, the
mortality. pre-operative assessment is conducted at least one day
before the intended surgery, when the patient is relaxed
In the case at bar, respondent Dra. Gutierrez and cooperative.
admitted that she saw Erlinda for the first time on the
day of the operation itself, on 17 June 1985. Before this Erlindas case was elective and this was known to
date, no prior consultations with, or pre-operative respondent Dra. Gutierrez. Thus, she had all the time to
evaluation of Erlinda was done by her. Until the day of make a thorough evaluation of Erlindas case prior to the
the operation, respondent Dra. Gutierrez was unaware operation and prepare her for anesthesia.However, she
of the physiological make-up and needs of Erlinda. She never saw the patient at the bedside. She herself
was likewise not properly informed of the possible admitted that she had seen petitioner only in the
difficulties she would face during the administration of operating room, and only on the actual date of
anesthesia to Erlinda. Respondent Dra. Gutierrez act of the cholecystectomy. She negligently failed to take
seeing her patient for the first time only an hour before advantage of this important opportunity. As such, her
the scheduled operative procedure was, therefore, an attempt to exculpate herself must fail.
act of exceptional negligence and professional
irresponsibility. The measures cautioning prudence and Having established that respondent Dra. Gutierrez
vigilance in dealing with human lives lie at the core of the failed to perform pre-operative evaluation of the patient
physicians centuries-old Hippocratic Oath. Her failure to which, in turn, resulted to a wrongful intubation, we now
follow this medical procedure is, therefore, a determine if the faulty intubation is truly the proximate
clear indicia of her negligence. cause of Erlindas comatose condition.

Respondent Dra. Gutierrez, however, attempts to Private respondents repeatedly hammered the view
gloss over this omission by playing around with the trial that the cerebral anoxia which led to Erlindas coma was
court's ignorance of clinical procedure, hoping that she due to bronchospasm [59] mediated by her allergic
could get away with it. Respondent Dra. Gutierrez tried response to the drug, Thiopental Sodium, introduced into
to muddle the difference between an elective surgery her system. Towards this end, they presented Dr.
and an emergency surgery just so her failure to perform Jamora, a Fellow of the Philippine College of Physicians
the required pre-operative evaluation would escape and Diplomate of the Philippine Specialty Board of
unnoticed. In her testimony she asserted: Internal Medicine, who advanced private respondents'
theory that the oxygen deprivation which led to anoxic
encephalopathy,[60] was due to an unpredictable drug
ATTY. LIGSAY: reaction to the short-acting barbiturate. We find the
theory of private respondents unacceptable.
Q: Would you agree, Doctor, that it is good medical
practice to see the patient a day before so you can First of all, Dr. Jamora cannot be considered an
introduce yourself to establish good doctor-patient authority in the field of anesthesiology simply because
he is not an anesthesiologist. Since Dr. Jamora is a
pulmonologist, he could not have been capable of pharmacology. On the basis of the foregoing transcript,
properly enlightening the court about anesthesia practice in which the pulmonologist himself admitted that he
and procedure and their complications. Dr. Jamora is could not testify about the drug with medical authority, it
likewise not an allergologist and could not therefore is clear that the appellate court erred in giving weight to
properly advance expert opinion on allergic-mediated Dr. Jamoras testimony as an expert in the administration
processes. Moreover, he is not a pharmacologist and, as of Thiopental Sodium.
such, could not have been capable, as an expert would,
of explaining to the court the pharmacologic and toxic The provision in the rules of evidence[62]regarding
effects of the supposed culprit, Thiopental Sodium expert witnesses states:
(Pentothal). Sec. 49. Opinion of expert witness. - The
The inappropriateness and absurdity of accepting opinion of a witness on a matter requiring
Dr. Jamoras testimony as an expert witness in the special knowledge, skill, experience or training
anesthetic practice of Pentothal administration is further which he is shown to possess, may be received
supported by his own admission that he formulated his in evidence.
opinions on the drug not from the practical experience Generally, to qualify as an expert witness, one must
gained by a specialist or expert in the administration and have acquired special knowledge of the subject matter
use of Sodium Pentothal on patients, but only from about which he or she is to testify, either by the study of
reading certain references, to wit: recognized authorities on the subject or by practical
ATTY. LIGSAY: experience.[63] Clearly, Dr. Jamora does not qualify as an
expert witness based on the above standard since he
Q: In your line of expertise on pulmonology, did you lacks the necessary knowledge, skill, and training in the
have any occasion to use pentothal as a method field of anesthesiology.Oddly, apart from submitting
of management? testimony from a specialist in the wrong field, private
respondents intentionally avoided providing testimony by
DR. JAMORA: competent and independent experts in the proper areas.
A: We do it in conjunction with the anesthesiologist Moreover, private respondents theory, that
when they have to intubate our patient. Thiopental Sodium may have produced Erlinda's coma
Q: But not in particular when you practice by triggering an allergic mediated response, has no
pulmonology? support in evidence. No evidence of stridor, skin
reactions, or wheezing - some of the more common
A: No. accompanying signs of an allergic reaction - appears on
record. No laboratory data were ever presented to the
Q: In other words, your knowledge about pentothal is
court.
based only on what you have read from books
and not by your own personal application of the In any case, private respondents themselves admit
medicine pentothal? that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were
A: Based on my personal experience also on
to accept private respondents' hypothesis without
pentothal.
supporting medical proof, and against the weight of
Q: How many times have you used pentothal? available evidence, then every anesthetic accident would
be an act of God. Evidently, the Thiopental-allergy
A: They used it on me. I went into bronchospasm theory vigorously asserted by private respondents was a
during my appendectomy. mere afterthought. Such an explanation was advanced
Q: And because they have used it on you and on in order to absolve them of any and all responsibility for
account of your own personal experience you the patients condition.
feel that you can testify on pentothal here with In view of the evidence at hand, we are inclined to
medical authority? believe petitioners stand that it was the faulty intubation
A: No. That is why I used references to support my which was the proximate cause of Erlindas comatose
claims.[61] condition.

An anesthetic accident caused by a rare drug- Proximate cause has been defined as that which, in
induced bronchospasm properly falls within the fields of natural and continuous sequence, unbroken by any
anesthesia, internal medicine-allergy, and clinical efficient intervening cause, produces injury, and without
pharmacology. The resulting anoxic encephalopathy which the result would not have occurred.[64] An injury or
belongs to the field of neurology. While admittedly, many damage is proximately caused by an act or a failure to
bronchospastic-mediated pulmonary diseases are within act, whenever it appears from the evidence in the case,
the expertise of pulmonary medicine, Dr. Jamora's field, that the act or omission played a substantial part in
the anesthetic drug-induced, allergic mediated bringing about or actually causing the injury or damage;
bronchospasm alleged in this case is within the and that the injury or damage was either a direct result
disciplines of anesthesiology, allergology and or a reasonably probable consequence of the act or
omission.[65] It is the dominant, moving or producing Gutierrez failed to observe the proper pre-operative
cause. protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable care
Applying the above definition in relation to the been used in the pre-operative evaluation, respondent
evidence at hand, faulty intubation is undeniably the physician could have been much more prepared to meet
proximate cause which triggered the chain of events the contingency brought about by the perceived
leading to Erlindas brain damage and, ultimately, her anatomic variations in the patients neck and oral area,
comatosed condition. defects which would have been easily overcome by a
Private respondents themselves admitted in their prior knowledge of those variations together with a
testimony that the first intubation was a failure. This fact change in technique.[71] In other words, an experienced
was likewise observed by witness Cruz when she heard anesthesiologist, adequately alerted by a thorough pre-
respondent Dra. Gutierrez remarked, Ang hirap ma- operative evaluation, would have had little difficulty going
intubate nito, mali yata ang pagkakapasok. O lumalaki around the short neck and protruding teeth.[72] Having
ang tiyan. Thereafter, witness Cruz noticed abdominal failed to observe common medical standards in pre-
distention on the body of Erlinda. The development of operative management and intubation, respondent Dra.
abdominal distention, together with respiratory Gutierrez negligence resulted in cerebral anoxia and
embarrassment indicates that the endotracheal tube eventual coma of Erlinda.
entered the esophagus instead of the respiratory tree. In We now determine the responsibility of respondent
other words, instead of the intended endotracheal Dr. Orlino Hosaka as the head of the surgical team. As
intubation what actually took place was an esophageal the so-called captain of the ship,[73] it is the surgeons
intubation. During intubation, such distention indicates responsibility to see to it that those under him perform
that air has entered the gastrointestinal tract through the their task in the proper manner. Respondent Dr.
esophagus instead of the lungs through the Hosakas negligence can be found in his failure to
trachea. Entry into the esophagus would certainly cause exercise the proper authority (as the captain of the
some delay in oxygen delivery into the lungs as the tube operative team) in not determining if his anesthesiologist
which carries oxygen is in the wrong place. That observed proper anesthesia protocols. In fact, no
abdominal distention had been observed during the first evidence on record exists to show that respondent Dr.
intubation suggests that the length of time utilized in Hosaka verified if respondent Dra. Gutierrez properly
inserting the endotracheal tube (up to the time the tube intubated the patient.Furthermore, it does not escape us
was withdrawn for the second attempt) was fairly that respondent Dr. Hosaka had scheduled another
significant. Due to the delay in the delivery of oxygen in procedure in a different hospital at the same time as
her lungs Erlinda showed signs of cyanosis.[66] As stated Erlindas cholecystectomy, and was in fact over three
in the testimony of Dr. Hosaka, the lack of oxygen hours late for the latters operation. Because of this, he
became apparent only after he noticed that the nailbeds had little or no time to confer with his anesthesiologist
of Erlinda were already blue.[67] However, private regarding the anesthesia delivery. This indicates that he
respondents contend that a second intubation was was remiss in his professional duties towards his
executed on Erlinda and this one was successfully patient.Thus, he shares equal responsibility for the
done. We do not think so. No evidence exists on record, events which resulted in Erlindas condition.
beyond private respondents' bare claims, which supports
the contention that the second intubation was We now discuss the responsibility of the hospital in
successful. Assuming that the endotracheal tube finally this particular incident. The unique practice (among
found its way into the proper orifice of the trachea, the private hospitals) of filling up specialist staff with
same gave no guarantee of oxygen delivery, the attending and visiting consultants,[74] who are allegedly
hallmark of a successful intubation. In fact, cyanosis was not hospital employees, presents problems in
again observed immediately after the second apportioning responsibility for negligence in medical
intubation. Proceeding from this event (cyanosis), it malpractice cases. However, the difficulty is only more
could not be claimed, as private respondents insist, that apparent than real.
the second intubation was accomplished. Even granting
that the tube was successfully inserted during the In the first place, hospitals exercise significant
second attempt, it was obviously too late. As aptly control in the hiring and firing of consultants and in the
explained by the trial court, Erlinda already suffered conduct of their work within the hospital
brain damage as a result of the inadequate oxygenation premises. Doctors who apply for consultant slots, visiting
of her brain for about four to five minutes.[68] or attending, are required to submit proof of completion
of residency, their educational qualifications; generally,
The above conclusion is not without basis. Scientific evidence of accreditation by the appropriate board
studies point out that intubation problems are (diplomate), evidence of fellowship in most cases, and
responsible for one-third (1/3) of deaths and serious references. These requirements are carefully scrutinized
injuries associated with anesthesia.[69]Nevertheless, by members of the hospital administration or by a review
ninety-eight percent (98%) or the vast majority of difficult committee set up by the hospital who either accept or
intubations may be anticipated by performing a thorough reject the application.[75]This is particularly true with
evaluation of the patients airway prior to the respondent hospital.
operation.[70] As stated beforehand, respondent Dra.
After a physician is accepted, either as a visiting or Based on the foregoing, we hold that the Court of
attending consultant, he is normally required to attend Appeals erred in accepting and relying on the
clinico-pathological conferences, conduct bedside testimonies of the witnesses for the private
rounds for clerks, interns and residents, moderate grand respondents. Indeed, as shown by the above
rounds and patient audits and perform other tasks and discussions, private respondents were unable to rebut
responsibilities, for the privilege of being able to maintain the presumption of negligence. Upon these disquisitions
a clinic in the hospital, and/or for the privilege of we hold that private respondents are solidarily liable for
admitting patients into the hospital. In addition to these, damages under Article 2176[79] of the Civil Code.
the physicians performance as a specialist is generally
evaluated by a peer review committee on the basis of We now come to the amount of damages due
mortality and morbidity statistics, and feedback from petitioners. The trial court awarded a total
patients, nurses, interns and residents. A consultant of P632,000.00 pesos (should be P616,000.00) in
remiss in his duties, or a consultant who regularly falls compensatory damages to the plaintiff, subject to its
short of the minimum standards acceptable to the being updated covering the period from 15 November
hospital or its peer review committee, is normally politely 1985 up to 15 April 1992, based on monthly expenses
terminated. for the care of the patient estimated at P8,000.00.

In other words, private hospitals, hire, fire and At current levels, the P8000/monthly amount
exercise real control over their attending and visiting established by the trial court at the time of its decision
consultant staff. While consultants are not, technically would be grossly inadequate to cover the actual costs of
employees, a point which respondent hospital asserts in home-based care for a comatose individual.The
denying all responsibility for the patients condition, the calculated amount was not even arrived at by looking at
control exercised, the hiring, and the right to terminate the actual cost of proper hospice care for the
consultants all fulfill the important hallmarks of an patient. What it reflected were the actual expenses
employer-employee relationship, with the exception of incurred and proved by the petitioners after they were
the payment of wages. In assessing whether such a forced to bring home the patient to avoid mounting
relationship in fact exists, the control test is hospital bills.
determining. Accordingly, on the basis of the foregoing, And yet ideally, a comatose patient should remain
we rule that for the purpose of allocating responsibility in in a hospital or be transferred to a hospice specializing in
medical negligence cases, an employer-employee the care of the chronically ill for the purpose of providing
relationship in effect exists between hospitals and their a proper milieu adequate to meet minimum standards of
attending and visiting physicians. This being the case, care. In the instant case for instance, Erlinda has to be
the question now arises as to whether or not respondent constantly turned from side to side to prevent bedsores
hospital is solidarily liable with respondent doctors for and hypostatic pneumonia. Feeding is done by
petitioners condition.[76] nasogastric tube. Food preparation should be normally
The basis for holding an employer solidarily made by a dietitian to provide her with the correct daily
responsible for the negligence of its employee is found in caloric requirements and vitamin
Article 2180 of the Civil Code which considers a person supplements. Furthermore, she has to be seen on a
accountable not only for his own acts but also for those regular basis by a physical therapist to avoid muscle
of others based on the formers responsibility under a atrophy, and by a pulmonary therapist to prevent the
relationship of patria potestas.[77] Such responsibility accumulation of secretions which can lead to respiratory
ceases when the persons or entity concerned prove that complications.
they have observed the diligence of a good father of the Given these considerations, the amount of actual
family to prevent damage.[78] In other words, while the damages recoverable in suits arising from negligence
burden of proving negligence rests on the plaintiffs, once should at least reflect the correct minimum cost of proper
negligence is shown, the burden shifts to the care, not the cost of the care the family is usually
respondents (parent, guardian, teacher or employer) compelled to undertake at home to avoid
who should prove that they observed the diligence of a bankruptcy. However, the provisions of the Civil Code on
good father of a family to prevent damage. actual or compensatory damages present us with some
In the instant case, respondent hospital, apart from difficulties.
a general denial of its responsibility over respondent Well-settled is the rule that actual damages which
physicians, failed to adduce evidence showing that it may be claimed by the plaintiff are those suffered by him
exercised the diligence of a good father of a family in the as he has duly proved. The Civil Code provides:
hiring and supervision of the latter. It failed to adduce
evidence with regard to the degree of supervision which
Art. 2199. - Except as provided by law or by stipulation,
it exercised over its physicians. In neglecting to offer
one is entitled to an adequate compensation only for
such proof, or proof of a similar nature, respondent
such pecuniary loss suffered by him as he has duly
hospital thereby failed to discharge its burden under the
proved. Such compensation is referred to as actual or
last paragraph of Article 2180. Having failed to do this,
compensatory damages.
respondent hospital is consequently solidarily
responsible with its physicians for Erlindas condition.
Our rules on actual or compensatory damages As a result of the accident, Ma. Lourdes
generally assume that at the time of litigation, the injury Valenzuela underwent a traumatic amputation
suffered as a consequence of an act of negligence has of her left lower extremity at the distal left thigh
been completed and that the cost can be just above the knee. Because of this,
liquidated. However, these provisions neglect to take Valenzuela will forever be deprived of the full
into account those situations, as in this case, where the ambulatory functions of her left extremity, even
resulting injury might be continuing and possible future with the use of state of the art prosthetic
complications directly arising from the injury, while technology. Well beyond the period of
certain to occur, are difficult to predict. hospitalization (which was paid for by Li), she
will be required to undergo adjustments in her
In these cases, the amount of damages which prosthetic devise due to the shrinkage of the
should be awarded, if they are to adequately and stump from the process of healing.
correctly respond to the injury caused, should be one
which compensates for pecuniary loss incurred and These adjustments entail costs, prosthetic
proved, up to the time of trial; and one which would meet replacements and months of physical and
pecuniary loss certain to be suffered but which could not, occupational rehabilitation and therapy. During
from the nature of the case, be made with certainty.[80] In her lifetime, the prosthetic devise will have to be
other words, temperate damages can and should be replaced and readjusted to changes in the size
awarded on top of actual or compensatory damages in of her lower limb effected by the biological
instances where the injury is chronic and continuing. And changes of middle-age, menopause and
because of the unique nature of such cases, no aging. Assuming she reaches menopause, for
incompatibility arises when both actual and temperate example, the prosthetic will have to be adjusted
damages are provided for. The reason is that these to respond to the changes in bone resulting
damages cover two distinct phases. from a precipitate decrease in calcium levels
observed in the bones of all post-menopausal
As it would not be equitable - and certainly not in women. In other words, the damage done to
the best interests of the administration of justice - for the her would not only be permanent and lasting, it
victim in such cases to constantly come before the would also be permanently changing and
courts and invoke their aid in seeking adjustments to the adjusting to the physiologic changes which her
compensatory damages previously awarded - temperate body would normally undergo through the
damages are appropriate. The amount given as years. The replacements, changes, and
temperate damages, though to a certain extent adjustments will require corresponding
speculative, should take into account the cost of proper adjustive physical and occupational therapy. All
care. of these adjustments, it has been documented,
In the instant case, petitioners were able to provide are painful.
only home-based nursing care for a comatose patient x x x.
who has remained in that condition for over a
decade. Having premised our award for compensatory A prosthetic devise, however technologically
damages on the amount provided by petitioners at the advanced, will only allow a reasonable amount
onset of litigation, it would be now much more in step of functional restoration of the motor functions
with the interests of justice if the value awarded for of the lower limb. The sensory functions are
temperate damages would allow petitioners to provide forever lost.The resultant anxiety,
optimal care for their loved one in a facility which sleeplessness, psychological injury, mental and
generally specializes in such care. They should not be physical pain are inestimable.[83]
compelled by dire circumstances to provide substandard
care at home without the aid of professionals, for The injury suffered by Erlinda as a consequence of
anything less would be grossly inadequate. Under the private respondents negligence is certainly much more
circumstances, an award of P1,500,000.00 in temperate serious than the amputation in the Valenzuela case.
damages would therefore be reasonable.[81] Petitioner Erlinda Ramos was in her mid-forties
In Valenzuela vs. Court of Appeals,[82]
this Court when the incident occurred. She has been in a comatose
was confronted with a situation where the injury suffered state for over fourteen years now. The burden of care
by the plaintiff would have led to expenses which were has so far been heroically shouldered by her husband
difficult to estimate because while they would have been and children, who, in the intervening years have been
a direct result of the injury (amputation), and were deprived of the love of a wife and a mother.
certain to be incurred by the plaintiff, they were likely to Meanwhile, the actual physical, emotional and
arise only in the future. We awarded P1,000,000.00 in financial cost of the care of petitioner would be virtually
moral damages in that case. impossible to quantify. Even the temperate damages
Describing the nature of the injury, the Court therein herein awarded would be inadequate if petitioners
stated: condition remains unchanged for the next ten years.
We recognized, in Valenzuela that a discussion of
the victims actual injury would not even scratch the
surface of the resulting moral damage because it would ROGELIO E. RAMOS and ERLINDA RAMOS, in their
be highly speculative to estimate the amount of own behalf and as natural guardians of the
emotional and moral pain, psychological damage and minors, ROMMEL RAMOS, ROY RODERICK
injury suffered by the victim or those actually affected by RAMOS, and RON RAYMOND
the victims condition.[84] The husband and the children, RAMOS, petitioners, vs. COURT OF
all petitioners in this case, will have to live with the day to APPEALS, DE LOS SANTOS MEDICAL
day uncertainty of the patients illness, knowing any hope CENTER, DR. ORLINO HOSAKA and DR.
of recovery is close to nil. They have fashioned their PERFECTA GUTIERREZ, respondents.
daily lives around the nursing care of petitioner, altering
their long term goals to take into account their life with a RESOLUTION
comatose patient. They, not the respondents, are
charged with the moral responsibility of the care of the KAPUNAN, J.:
victim. The familys moral injury and suffering in this case
is clearly a real one. For the foregoing reasons, an Private respondents De Los Santos Medical Center,
award of P2,000,000.00 in moral damages would be Dr. Orlino Hosaka and Dr. Perfecta Gutierrez move for a
appropriate. reconsideration of the Decision, dated December 29,
1999, of this Court holding them civilly liable for
Finally, by way of example, exemplary damages in
petitioner Erlinda Ramos comatose condition after she
the amount of P100,000.00 are hereby
delivered herself to them for their professional care and
awarded. Considering the length and nature of the
management.
instant suit we are of the opinion that attorneys fees
valued at P100,000.00 are likewise proper. For better understanding of the issues raised in
private respondents respective motions, we will briefly
Our courts face unique difficulty in adjudicating
restate the facts of the case as follows:
medical negligence cases because physicians are not
insurers of life and, they rarely set out to intentionally Sometime in 1985, petitioner Erlinda Ramos, after
cause injury or death to their patients.However, intent is seeking professional medical help, was advised to
immaterial in negligence cases because where undergo an operation for the removal of a stone in her
negligence exists and is proven, the same automatically gall bladder (cholecystectomy). She was referred to Dr.
gives the injured a right to reparation for the damage Hosaka, a surgeon, who agreed to perform the operation
caused. on her. The operation was scheduled for June 17, 1985
at 9:00 in the morning at private respondent De Los
Established medical procedures and practices,
Santos Medical Center (DLSMC). Since neither
though in constant flux are devised for the purpose of
petitioner Erlinda nor her husband, petitioner Rogelio,
preventing complications. A physicians experience with
knew of any anesthesiologist, Dr. Hosaka recommended
his patients would sometimes tempt him to deviate from
to them the services of Dr. Gutierrez.
established community practices, and he may end a
distinguished career using unorthodox methods without Petitioner Erlinda was admitted to the DLSMC the
incident. However, when failure to follow established day before the scheduled operation. By 7:30 in the
procedure results in the evil precisely sought to be morning of the following day, petitioner Erlinda was
averted by observance of the procedure and a nexus is already being prepared for operation. Upon the request
made between the deviation and the injury or damage, of petitioner Erlinda, her sister-in-law, Herminda Cruz,
the physician would necessarily be called to account for who was then Dean of the College of Nursing at the
it. In the case at bar, the failure to observe pre-operative Capitol Medical Center, was allowed to accompany her
assessment protocol which would have influenced the inside the operating room.
intubation in a salutary way was fatal to private
respondents case. At around 9:30 in the morning, Dr. Hosaka had not
yet arrived so Dr. Gutierrez tried to get in touch with him
WHEREFORE, the decision and resolution of the by phone. Thereafter, Dr. Gutierrez informed Cruz that
appellate court appealed from are hereby modified so as the operation might be delayed due to the late arrival of
to award in favor of petitioners, and solidarily against Dr. Hosaka. In the meantime, the patient, petitioner
private respondents the following: 1) P1,352,000.00 as Erlinda said to Cruz, Mindy, inip na inip na ako, ikuha mo
actual damages computed as of the date of ako ng ibang Doctor.
promulgation of this decision plus a monthly payment
of P8,000.00 up to the time that petitioner Erlinda Ramos By 10:00 in the morning, when Dr. Hosaka was still
expires or miraculously survives; 2) P2,000,000.00 as not around, petitioner Rogelio already wanted to pull out
moral damages, 3) P1,500,000.00 as temperate his wife from the operating room. He met Dr. Garcia,
damages; 4) P100,000.00 each as exemplary damages who remarked that he was also tired of waiting for Dr.
and attorneys fees; and, 5) the costs of the suit. Hosaka. Dr. Hosaka finally arrived at the hospital at
around 12:10 in the afternoon, or more than three (3)
SO ORDERED. hours after the scheduled operation.
Cruz, who was then still inside the operating room,
heard about Dr. Hosakas arrival. While she held the
hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate THE HONORABLE SUPREME COURT
the patient. Cruz heard Dr. Gutierrez utter: ang hirap ma- COMMITTED REVERSIBLE ERROR WHEN
intubate nito, mali yata ang pagkakapasok. O lumalaki IT HELD RESPONDENT DR. HOSAKA
ang tiyan. Cruz noticed a bluish discoloration of Erlindas LIABLE ON THE BASIS OF THE CAPTAIN-
nailbeds on her left hand. She (Cruz) then heard Dr. OF-THE-SHIP DOCTRINE.
Hosaka instruct someone to call Dr. Calderon, another
anesthesiologist. When he arrived, Dr. Calderon II
attempted to intubate the patient. The nailbeds of the
patient remained bluish, thus, she was placed in a
THE HONORABLE SUPREME COURT
trendelenburg position a position where the head of the
ERRED IN HOLDING RESPONDENT DR.
patient is placed in a position lower than her feet. At this
HOSAKA LIABLE DESPITE THE FACT THAT
point, Cruz went out of the operating room to express
NO NEGLIGENCE CAN BE ATTRIBUTABLE
her concern to petitioner Rogelio that Erlindas operation
TO HIM.
was not going well.
Cruz quickly rushed back to the operating room and III
saw that the patient was still in trendelenburg position. At
almost 3:00 in the afternoon, she saw Erlinda being ASSUMING WITHOUT ADMITTING THAT
wheeled to the Intensive Care Unit (ICU). The doctors RESPONDENT DR. HOSAKA IS LIABLE,
explained to petitioner Rogelio that his wife had THE HONORABLE SUPREME COURT
bronchospasm. Erlinda stayed in the ICU for a month. ERRED IN AWARDING DAMAGES THAT
She was released from the hospital only four months WERE CLEARLY EXCESSIVE AND
later or on November 15, 1985.Since the ill-fated WITHOUT LEGAL BASIS.[3]
operation, Erlinda remained in comatose condition until
she died on August 3, 1999.[1]
Private respondent Dr. Gutierrez, for her part, avers
Petitioners filed with the Regional Trial Court of that:
Quezon City a civil case for damages against private
respondents. After due trial, the court a quo rendered A. THE HONORABLE SUPREME COURT
judgment in favor of petitioners. Essentially, the trial MAY HAVE INADVERTENTLY
court found that private respondents were negligent in OVERLOOKED THE FACT THAT THE
the performance of their duties to Erlinda. On appeal by COURT OF APPEALS DECISION DATED 29
private respondents, the Court of Appeals reversed the MAY 1995 HAD ALREADY BECOME FINAL
trial courts decision and directed petitioners to pay their AND EXECUTORY AS OF 25 JUNE 1995,
unpaid medical bills to private respondents. THEREBY DEPRIVING THIS HONORABLE
COURT OF JURISDICTION OVER THE
Petitioners filed with this Court a petition for review INSTANT PETITION;
on certiorari. The private respondents were then
required to submit their respective comments thereon.
On December 29, 1999, this Court promulgated the B. THE HONORABLE SUPREME COURT
decision which private respondents now seek to be MAY HAVE INADVERTENTLY
reconsidered. The dispositive portion of said Decision OVERLOOKED SEVERAL MATERIAL
states: FACTUAL CIRCUMSTANCES WHICH, IF
PROPERLY CONSIDERED, WOULD
INDUBITABLY LEAD TO NO OTHER
WHEREFORE, the decision and resolution of the CONCLUSION BUT THAT PRIVATE
appellate court appealed from are hereby modified so as RESPONDENT DOCTORS WERE NOT
to award in favor of petitioners, and solidarily against GUILTY OF ANY NEGLIGENCE IN
private respondents the following: 1) P1,352,000.00 as RESPECT OF THE INSTANT CASE;
actual damages computed as of the date of
promulgation of this decision plus a monthly payment of
P8,000.00 up to the time that petitioner Erlinda Ramos B.1 RESPONDENT DOCTOR
expires or miraculously survives; 2) P2,000,000.00 as PERFECTA GUTIERREZ HAS
moral damages, 3) P1,500,000.00 as temperate SUFFICIENTLY
damages; 4) P100,000.00 each exemplary damages and DISCHARGED THE BURDEN
attorneys fees; and 5) the costs of the suit.[2] OF EVIDENCE BY
SUBSTANTIAL PROOF OF
HER COMPLIANCE WITH
In his Motion for Reconsideration, private THE STANDARDS OF DUE
respondent Dr. Hosaka submits the following as grounds CARE EXPECTED IN HER
therefor: RESPECTIVE FIELD OF
I MEDICAL SPECIALIZATION.
B.2 RESPONDENT DOCTOR
PERFECTA GUTIERREZ HAS
SUFFICIENTLY THE HONORABLE SUPREME COURT
DISCHARGED THE BURDEN ERRED IN INCREASING THE AWARD OF
OF EVIDENCE BY DAMAGES IN FAVOR OF PETITIONERS.[5]
SUBSTANTIAL PROOF OF
HER HAVING In the Resolution of February 21, 2000, this Court
SUCCESSFULLY INTUBATED denied the motions for reconsideration of private
PATIENT ERLINDA RAMOS respondents Drs. Hosaka and Gutierrez. They then filed
their respective second motions for reconsideration. The
C. THE SUPREME COURT MAY HAVE Philippine College of Surgeons filed its Petition-in-
INADVERTENTLY PLACED TOO MUCH Intervention contending in the main that this Court erred
RELIANCE ON THE TESTIMONY OF in holding private respondent Dr. Hosaka liable under
PETITIONERS WITNESS HERMINDA CRUZ, the captain of the ship doctrine. According to the
DESPITE THE EXISTENCE OF SEVERAL intervenor, said doctrine had long been abandoned in
FACTUAL CIRCUMSTANCES WHICH the United States in recognition of the developments in
RENDERS DOUBT ON HER CREDIBILITY modern medical and hospital practice.[6] The Court noted
these pleadings in the Resolution of July 17, 2000.[7]
D. THE SUPREME COURT MAY HAVE On March 19, 2001, the Court heard the oral
INADVERTENTLY DISREGARDED THE arguments of the parties, including the intervenor. Also
EXPERT TESTIMONY OF DR. JAMORA AND present during the hearing were the amicii curiae: Dr.
DRA. CALDERON Felipe A. Estrella, Jr., Consultant of the Philippine
Charity Sweepstakes, former Director of the Philippine
E. THE HONORABLE SUPREME COURT General Hospital and former Secretary of Health; Dr.
MAY HAVE INADVERTENTLY AWARDED Iluminada T. Camagay, President of the Philippine
DAMAGES TO PETITIONERS DESPITE THE Society of Anesthesiologists, Inc. and Professor and
FACT THAT THERE WAS NO NEGLIGENCE Vice-Chair for Research, Department of Anesthesiology,
ON THE PART OF RESPONDENT College of Medicine-Philippine General Hospital,
DOCTOR.[4] University of the Philippines; and Dr. Lydia M. Egay,
Professor and Vice-Chair for Academics, Department of
Private respondent De Los Santos Medical Center Anesthesiology, College of Medicine-Philippine General
likewise moves for reconsideration on the following Hospital, University of the Philippines.
grounds:
The Court enumerated the issues to be resolved in
I this case as follows:
1. WHETHER OR NOT DR. ORLINO
THE HONORABLE COURT ERRED IN HOSAKA (SURGEON) IS LIABLE FOR
GIVING DUE COURSE TO THE INSTANT NEGLIGENCE;
PETITION AS THE DECISION OF THE
HONORABLE COURT OF APPEALS HAD 2. WHETHER OR NOT DR. PERFECTA
ALREADY BECOME FINAL AND GUTIERREZ (ANESTHESIOLOGIST) IS
EXECUTORY LIABLE FOR NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL
II (DELOS SANTOS MEDICAL CENTER) IS
LIABLE FOR ANY ACT OF NEGLIGENCE
THE HONORABLE SUPREME COURT COMMITTED BY THEIR VISITING
ERRED IN FINDING THAT AN EMPLOYER- CONSULTANT SURGEON AND
EMPLOYEE [RELATIONSHIP] EXISTS ANESTHESIOLOGIST.[8]
BETWEEN RESPONDENT DE LOS SANTOS
MEDICAL CENTER AND DRS. ORLINO We shall first resolve the issue pertaining to private
HOSAKA AND PERFECTA GUTIERREZ respondent Dr. Gutierrez. She maintains that the Court
erred in finding her negligent and in holding that it was
III the faulty intubation which was the proximate cause of
Erlindas comatose condition. The following objective
facts allegedly negate a finding of negligence on her
THE HONORABLE SUPREME COURT part: 1) That the outcome of the procedure was a
ERRED IN FINDING THAT RESPONDENT comatose patient and not a dead one; 2) That the patient
DE LOS SANTOS MEDICAL CENTER IS had a cardiac arrest; and 3) That the patient was revived
SOLIDARILY LIABLE WITH RESPONDENT from that cardiac arrest.[9] In effect, Dr. Gutierrez insists
DOCTORS that, contrary to the finding of this Court, the intubation
she performed on Erlinda was successful.
IV
Unfortunately, Dr. Gutierrez claim of lack of
negligence on her part is belied by the records of the
case. It has been sufficiently established that she failed Physical examination of the patient entails not only
to exercise the standards of care in the administration of evaluating the patients central nervous system,
anesthesia on a patient. Dr. Egay enlightened the Court cardiovascular system and lungs but also the upper
on what these standards are: airway. Examination of the upper airway would in turn
include an analysis of the patients cervical spine
x x x What are the standards of care that an mobility, temporomandibular mobility, prominent central
anesthesiologist should do before we administer incisors, deceased or artificial teeth, ability to visualize
anesthesia? The initial step is the preparation of the uvula and the thyromental distance.[13]
patient for surgery and this is a pre-operative evaluation Nonetheless, Dr. Gutierrez omitted to perform a
because the anesthesiologist is responsible for thorough preoperative evaluation on Erlinda. As she
determining the medical status of the patient, developing herself admitted, she saw Erlinda for the first time on the
the anesthesia plan and acquainting the patient or the day of the operation itself, one hour before the
responsible adult particularly if we are referring with the scheduled operation. She auscultated[14] the patients
patient or to adult patient who may not have, who may heart and lungs and checked the latters blood pressure
have some mental handicaps of the proposed plans. We to determine if Erlinda was indeed fit for
do pre-operative evaluation because this provides for an operation.[15] However, she did not proceed to examine
opportunity for us to establish identification and personal the patients airway. Had she been able to check
acquaintance with the patient. It also makes us have an petitioner Erlindas airway prior to the operation, Dr.
opportunity to alleviate anxiety, explain techniques and Gutierrez would most probably not have experienced
risks to the patient, given the patient the choice and difficulty in intubating the former, and thus the resultant
establishing consent to proceed with the plan. And lastly, injury could have been avoided. As we have stated in
once this has been agreed upon by all parties concerned our Decision:
the ordering of pre-operative medications. And following
this line at the end of the evaluation we usually come up
on writing, documentation is very important as far as In the case at bar, respondent Dra. Gutierrez admitted
when we train an anesthesiologist we always emphasize that she saw Erlinda for the first time on the day of the
this because we need records for our protection, well, operation itself, on 17 June 1985. Before this date, no
records. And it entails having brief summary of patient prior consultations with, or pre-operative evaluation of
history and physical findings pertinent to anesthesia, Erlinda was done by her. Until the day of the operation,
plan, organize as a problem list, the plan anesthesia respondent Dra. Gutierrez was unaware of the
technique, the plan post operative, pain management if physiological make-up and needs of Erlinda. She was
appropriate, special issues for this particular likewise not properly informed of the possible difficulties
patient. There are needs for special care after surgery she would face during the administration of anesthesia
and if it so it must be written down there and a request to Erlinda. Respondent Dra. Gutierrez act of seeing her
must be made known to proper authorities that such and patient for the first time only an hour before the
such care is necessary. And the request for medical scheduled operative procedure was, therefore, an act of
evaluation if there is an indication. When we ask for a exceptional negligence and professional irresponsibility.
cardio-pulmonary clearance it is not in fact to tell them if The measures cautioning prudence and vigilance in
this patient is going to be fit for anesthesia, the decision dealing with human lives lie at the core of the physicians
to give anesthesia rests on the anesthesiologist. What centuries-old Hippocratic Oath. Her failure to follow this
we ask them is actually to give us the functional capacity medical procedure is, therefore, a clear indicia of her
of certain systems which maybe affected by the negligence.[16]
anesthetic agent or the technique that we are going to
use. But the burden of responsibility in terms of selection Further, there is no cogent reason for the Court to
of agent and how to administer it rest on the reverse its finding that it was the faulty intubation on
anesthesiologist.[10] Erlinda that caused her comatose condition. There is no
question that Erlinda became comatose after Dr.
The conduct of a preanesthetic/preoperative Gutierrez performed a medical procedure on her. Even
evaluation prior to an operation, whether elective or the counsel of Dr. Gutierrez admitted to this fact during
emergency, cannot be dispensed with.[11] Such the oral arguments:
evaluation is necessary for the formulation of a plan of CHIEF JUSTICE:
anesthesia care suited to the needs of the patient
concerned. Mr. Counsel, you started your argument saying
that this involves a comatose patient?
Pre-evaluation for anesthesia involves taking the
patients medical history, reviewing his current drug ATTY. GANA:
therapy, conducting physical examination,
Yes, Your Honor.
interpreting laboratory data, and determining the
appropriate prescription of preoperative medications as CHIEF JUSTICE:
necessary to the conduct of anesthesia.[12]
How do you mean by that, a comatose, a
comatose after any other acts were done by Dr.
Gutierrez or comatose before any act was done reacts with the particular cell, the mass cell, and
by her? the mass cell secretes this histamine. In a way it
is some form of response to take away that
ATTY. GANA: which is not mine, which is not part of the
No, we meant comatose as a final outcome of body. So, histamine has multiple effects on the
the procedure. body. So, one of the effects as you will see you
will have redness, if you have an allergy you will
CHIEF JUSTICE: have tearing of the eyes, you will have swelling,
very crucial swelling sometimes of the larynges
Meaning to say, the patient became comatose
which is your voice box main airway, that
after some intervention, professional acts have
swelling may be enough to obstruct the entry of
been done by Dr. Gutierrez?
air to the trachea and you could also have
ATTY. GANA: contraction, constriction of the smaller airways
beyond the trachea, you see you have the
Yes, Your Honor. trachea this way, we brought some visual aids
CHIEF JUSTICE: but unfortunately we do not have a projector.
And then you have the smaller airways, the
In other words, the comatose status was a bronchi and then eventually into the mass of the
consequence of some acts performed by D. lungs you have the bronchus. The difference is
Gutierrez? that these tubes have also in their walls muscles
and this particular kind of muscles is smooth
ATTY. GANA: muscle so, when histamine is released they
It was a consequence of the well, (interrupted) close up like this and that phenomenon is known
as bronco spasm. However, the effects of
CHIEF JUSTICE: histamine also on blood vessels are different.
They dilate blood vessel open up and the patient
An acts performed by her, is that not correct?
or whoever has this histamine release has
ATTY. GANA: hypertension or low blood pressure to a point
that the patient may have decrease blood supply
Yes, Your Honor. to the brain and may collapse so, you may have
CHIEF JUSTICE: people who have this.[20]

Thank you.[17] These symptoms of an allergic reaction were not


shown to have been extant in Erlindas case. As we held
What is left to be determined therefore is whether in our Decision, no evidence of stridor, skin reactions, or
Erlindas hapless condition was due to any fault or wheezing some of the more common accompanying
negligence on the part of Dr. Gutierrez while she signs of an allergic reaction appears on record. No
(Erlinda) was under the latters care. Dr. Gutierrez laboratory data were ever presented to the court.[21]
maintains that the bronchospasm and cardiac arrest
resulting in the patients comatose condition was brought Dr. Gutierrez, however, insists that she successfully
about by the anaphylactic reaction of the patient to intubated Erlinda as evidenced by the fact that she was
Thiopental Sodium (pentothal).[18] In the Decision, we revived after suffering from cardiac arrest. Dr. Gutierrez
explained why we found Dr. Gutierrez theory faults the Court for giving credence to the testimony of
unacceptable. In the first place, Dr. Eduardo Jamora, the Cruz on the matter of the administration of anesthesia
witness who was presented to support her (Dr. when she (Cruz), being a nurse, was allegedly not
Gutierrez) theory, was a pulmonologist. Thus, he could qualified to testify thereon. Rather, Dr. Gutierrez invites
not be considered an authority on anesthesia practice the Courts attention to her synopsis on what transpired
and procedure and their complications.[19] during Erlindas intubation:

Secondly, there was no evidence on record to 12:15 p.m. Patient was inducted with sodium
support the theory that Erlinda developed an allergic pentothal 2.5% (250 mg) given by
reaction to pentothal. Dr. Camagay enlightened the slow IV. 02 was started by
Court as to the manifestations of an allergic reaction in mask. After pentothal injection this
this wise: was followed by IV injection of
Norcuron 4mg. After 2 minutes 02
DR. CAMAGAY: was given by positive pressure for
about one minute. Intubation with
All right, let us qualify an allergic reaction. In endotracheal tube 7.5 m in
medical terminology an allergic reaction is diameter was done with slight
something which is not usual response and it is difficulty (short neck & slightly
further qualified by the release of a hormone prominent upper teeth) chest was
called histamine and histamine has an effect on examined for breath sounds &
all the organs of the body generally release checked if equal on both
because the substance that entered the body
sides. The tube was then DR. GUTIERREZ
anchored to the mouth by plaster
& cuff inflated. Ethrane 2% with 02 Yes.
4 liters was given. Blood pressure Q There were two attempts. In the first attempt was
was checked 120/80 & heart rate the tube inserted or was the laryngoscope only
regular and normal 90/min. inserted, which was inserted?
12:25 p.m. After 10 minutes patient was A All the laryngoscope.
cyanotic. Ethrane was
discontinued & 02 given Q All the laryngoscope. But if I remember right
alone. Cyanosis somewhere in the re-direct, a certain lawyer, you
disappeared. Blood pressure and were asked that you did a first attempt and the
heart beats stable. question was did you withdraw the tube? And
you said you never withdrew the tube, is that
12:30 p.m. Cyanosis again reappeared this right?
time with sibilant and sonorous
rales all over the A Yes.
chest. D_5%_H20 & 1 ampule of
Q Yes. And so if you never withdrew the tube then
aminophyline by fast drip was
there was no, there was no insertion of the tube
started. Still the cyanosis was
during that first attempt. Now, the other thing
persistent. Patient was connected
that we have to settle here is when cyanosis
to a cardiac monitor. Another
occurred, is it recorded in the anesthesia record
ampule of of [sic] aminophyline
when the cyanosis, in your recording when did
was given and solu cortef was
the cyanosis occur?
given.
A (sic)
12:40 p.m. There was cardiac arrest. Extra
cardiac massage and intercardiac Q Is it a standard practice of anesthesia that
injection of adrenalin was given & whatever you do during that period or from the
heart beat reappeared in less than time of induction to the time that you probably
one minute. Sodium bicarbonate & get the patient out of the operating room that
another dose of solu cortef was every single action that you do is so recorded in
given by IV. Cyanosis slowly your anesthesia record?
disappeared & 02 continuously
given & assisted positive A I was not able to record everything I did not have
pressure. Laboratory exams done time anymore because I did that after the, when
(see results in chart). the patient was about to leave the operating
room. When there was second cyanosis already
Patient was transferred to ICU for further that was the (interrupted)
management.[22]
Q When was the first cyanosis?
From the foregoing, it can be allegedly seen that
there was no withdrawal (extubation) of the tube. And A The first cyanosis when I was (interrupted)
the fact that the cyanosis allegedly disappeared after Q What time, more or less?
pure oxygen was supplied through the tube proved that it
was properly placed. A I think it was 12:15 or 12:16.
The Court has reservations on giving evidentiary Q Well, if the record will show you started induction at
weight to the entries purportedly contained in Dr. 12:15?
Gutierrez synopsis. It is significant to note that the said
record prepared by Dr. Gutierrez was made only after A Yes, Your Honor.
Erlinda was taken out of the operating room. The Q And the first medication you gave was what?
standard practice in anesthesia is that every single act
that the anesthesiologist performs must be recorded. In A The first medication, no, first the patient was
Dr. Gutierrez case, she could not account for at least ten oxygenated for around one to two minutes.
(10) minutes of what happened during the administration
Q Yes, so, that is about 12:13?
of anesthesia on Erlinda. The following exchange
between Dr. Estrella, one of the amicii curiae, and Dr. A Yes, and then, I asked the resident physician to
Gutierrez is instructive: start giving the pentothal very slowly and that
was around one minute.
DR. ESTRELLA
Q So, that is about 12:13 no, 12:15, 12:17?
You mentioned that there were two (2) attempts
in the intubation period? A Yes, and then, after one minute another
oxygenation was given and after (interrupted)
Q 12:18? enlightenment. So, at what point did you ever
make that comment?
A Yes, and then after giving the oxygen we start the
menorcure which is a relaxant. After that A Which one, sir?
relaxant (interrupted)
Q The mahirap intubate ito assuming that you
Q After that relaxant, how long do you wait before (interrupted)
you do any manipulation?
A Iyon lang, that is what I only said mahirap intubate
A Usually you wait for two minutes or three minutes. (interrupted)
Q So, if our estimate of the time is accurate we are Q At what point?
now more or less 12:19, is that right?
A When the first attempt when I inserted the
A Maybe. laryngoscope for the first time.
Q 12:19. And at that time, what would have been Q So, when you claim that at the first attempt you
done to this patient? inserted the laryngoscope, right?
A After that time you examine the, if there is A Yes.
relaxation of the jaw which you push it
downwards and when I saw that the patient was Q But in one of the recordings somewhere at the,
relax because that monorcure is a relaxant, you somewhere in the transcript of records that
cannot intubate the patient or insert the when the lawyer of the other party try to inquire
laryngoscope if it is not keeping him relax. So, from you during the first attempt that was the
my first attempt when I put the laryngoscope on I time when mayroon ba kayong hinugot sa tube, I
saw the trachea was deeply interiorly. So, what I do not remember the page now, but it seems to
did ask mahirap ata ito ah. So, I removed the me it is there. So, that it was on the second
laryngoscope and oxygenated again the patient. attempt that (interrupted)

Q So, more or less you attempted to do an intubation A I was able to intubate.


after the first attempt as you claimed that it was Q And this is more or less about what time 12:21?
only the laryngoscope that was inserted.
A Maybe, I cannot remember the time, Sir.
A Yes.
Q Okay, assuming that this was done at 12:21 and
Q And in the second attempt you inserted the looking at the anesthesia records from 12:20 to
laryngoscope and now possible intubation? 12:30 there was no recording of the vital
A Yes. signs. And can we presume that at this stage
there was already some problems in handling
Q And at that point, you made a remark, what remark the patient?
did you make?
A Not yet.
A I said mahirap ata ito when the first attempt I did
not see the trachea right away. That was when I Q But why are there no recordings in the anesthesia
(interrupted) record?

Q That was the first attempt? A I did not have time.

A Yes. Q Ah, you did not have time, why did you not have
time?
Q What about the second attempt?
A Because it was so fast, I really (at this juncture the
A On the second attempt I was able to intubate right witness is laughing)
away within two to three seconds.
Q No, I am just asking. Remember I am not here not
Q At what point, for purposes of discussion without to pin point on anybody I am here just to more or
accepting it, at what point did you make the less clarify certainty more ore less on the record.
comment na mahirap ata to intubate, mali ata
ang pinasukan A Yes, Sir.

A I did not say mali ata ang pinasukan I never said Q And so it seems that there were no recording
that. during that span of ten (10) minutes. From 12:20
to 12:30, and going over your narration, it seems
Q Well, just for the information of the group here the to me that the cyanosis appeared ten (10)
remarks I am making is based on the documents minutes after induction, is that right?
that were forwarded to me by the Supreme
Court. That is why for purposes of discussion I A Yes.
am trying to clarify this for the sake of
Q And that is after induction 12:15 that is 12:25 that The injury incurred by petitioner Erlinda does not
was the first cyanosis? normally happen absent any negligence in the
administration of anesthesia and in the use of an
A Yes. endotracheal tube. As was noted in our Decision, the
Q And that the 12:25 is after the 12:20? instruments used in the administration of anesthesia,
including the endotracheal tube, were all under the
A We cannot (interrupted) exclusive control of private respondents Dr. Gutierrez
and Dr. Hosaka.[27] In Voss vs. Bridwell,[28]which involved
Q Huwag ho kayong makuwan, we are just trying to
a patient who suffered brain damage due to the wrongful
enlighten, I am just going over the record ano,
administration of anesthesia, and even before the
kung mali ito kuwan eh di ano. So, ganoon po
scheduled mastoid operation could be performed, the
ano, that it seems to me that there is no
Kansas Supreme Court applied the doctrine of res ipsa
recording from 12:20 to 12:30, so, I am just
loquitur, reasoning that the injury to the patient therein
wondering why there were no recordings during
was one which does not ordinarily take place in the
the period and then of course the second
absence of negligence in the administration of an
cyanosis, after the first cyanosis. I think that was
anesthetic, and in the use and employment of an
the time Dr. Hosaka came in?
endotracheal tube. The court went on to say that
A No, the first cyanosis (interrupted).[23] [o]rdinarily a person being put under anesthesia is not
rendered decerebrate as a consequence of
We cannot thus give full credence to Dr. Gutierrez administering such anesthesia in the absence of
synopsis in light of her admission that it does not fully negligence. Upon these facts and under these
reflect the events that transpired during the circumstances, a layman would be able to say, as a
administration of anesthesia on Erlinda. As pointed out matter of common knowledge and observation, that the
by Dr. Estrella, there was a ten-minute gap in Dr. consequences of professional treatment were not as
Gutierrez synopsis, i.e., the vital signs of Erlinda were such as would ordinarily have followed if due care had
not recorded during that time. The absence of these data been exercised.[29] Considering the application of the
is particularly significant because, as found by the trial doctrine of res ipsa loquitur, the testimony of Cruz was
court, it was the absence of oxygen supply for four (4) to properly given credence in the case at bar.
five (5) minutes that caused Erlindas comatose
condition. For his part, Dr. Hosaka mainly contends that the
Court erred in finding him negligent as a surgeon by
On the other hand, the Court has no reason to applying the Captain-of-the-Ship doctrine.[30] Dr. Hosaka
disbelieve the testimony of Cruz. As we stated in the argues that the trend in United States jurisprudence has
Decision, she is competent to testify on matters which been to reject said doctrine in light of the developments
she is capable of observing such as, the statements and in medical practice. He points out that anesthesiology
acts of the physician and surgeon, external appearances and surgery are two distinct and specialized fields in
and manifest conditions which are observable by any medicine and as a surgeon, he is not deemed to have
one.[24] Cruz, Erlindas sister-in-law, was with her inside control over the acts of Dr. Gutierrez. As
the operating room.Moreover, being a nurse and Dean anesthesiologist, Dr. Gutierrez is a specialist in her field
of the Capitol Medical Center School of Nursing at that, and has acquired skills and knowledge in the course of
she is not entirely ignorant of anesthetic procedure. Cruz her training which Dr. Hosaka, as a surgeon, does not
narrated that she heard Dr. Gutierrez remark, Ang hirap possess.[31] He states further that current American
ma-intubate nito, mali yata ang pagkakapasok. O jurisprudence on the matter recognizes that the trend
lumalaki ang tiyan. She observed that the nailbeds of towards specialization in medicine has created situations
Erlinda became bluish and thereafter Erlinda was placed where surgeons do not always have the right to control
in trendelenburg position.[25] Cruz further averred that all personnel within the operating room,[32] especially a
she noticed that the abdomen of Erlinda became fellow specialist.[33]
distended.[26]
Dr. Hosaka cites the case of Thomas v. Raleigh
The cyanosis (bluish discoloration of the skin or General Hospital,[34] which involved a suit filed by a
mucous membranes caused by lack of oxygen or patient who lost his voice due to the wrongful insertion of
abnormal hemoglobin in the blood) and enlargement of the endotracheal tube preparatory to the administration
the stomach of Erlinda indicate that the endotracheal of anesthesia in connection with the laparotomy to be
tube was improperly inserted into the esophagus instead conducted on him. The patient sued both the
of the trachea. Consequently, oxygen was delivered not anesthesiologist and the surgeon for the injury suffered
to the lungs but to the gastrointestinal tract. This by him. The Supreme Court of Appeals of West Virginia
conclusion is supported by the fact that Erlinda was held that the surgeon could not be held liable for the loss
placed in trendelenburg position. This indicates that of the patients voice, considering that the surgeon did
there was a decrease of blood supply to the patients not have a hand in the intubation of the patient. The
brain. The brain was thus temporarily deprived of oxygen court rejected the application of the Captain-of-the-Ship
supply causing Erlinda to go into coma. Doctrine, citing the fact that the field of medicine has
become specialized such that surgeons can no longer
be deemed as having control over the other personnel in
the operating room. It held that [a]n assignment of attention to the condition of the patient while the other
liability based on actual control more realistically reflects physician is performing the necessary medical
the actual relationship which exists in a modern procedures.
operating room.[35] Hence, only the anesthesiologist who
inserted the endotracheal tube into the patients throat It is equally important to point out that Dr. Hosaka
was held liable for the injury suffered by the latter. was remiss in his duty of attending to petitioner Erlinda
promptly, for he arrived more than three (3) hours late
This contention fails to persuade. for the scheduled operation. The cholecystectomy was
set for June 17, 1985 at 9:00 a.m., but he arrived at
That there is a trend in American jurisprudence to DLSMC only at around 12:10 p.m. In reckless disregard
do away with the Captain-of-the-Ship doctrine does not for his patients well being, Dr. Hosaka scheduled two
mean that this Court will ipso facto follow said trend. Due procedures on the same day, just thirty minutes apart
regard for the peculiar factual circumstances obtaining in from each other, at different hospitals. Thus, when the
this case justify the application of the Captain-of-the- first procedure (protoscopy) at the Sta. Teresita Hospital
Ship doctrine. From the facts on record it can be logically did not proceed on time, Erlinda was kept in a state of
inferred that Dr. Hosaka exercised a certain degree of, at uncertainty at the DLSMC.
the very least, supervision over the procedure then being
performed on Erlinda. The unreasonable delay in petitioner Erlindas
scheduled operation subjected her to continued
First, it was Dr. Hosaka who recommended to starvation and consequently, to the risk of acidosis,[40] or
petitioners the services of Dr. Gutierrez. In effect, he the condition of decreased alkalinity of the blood and
represented to petitioners that Dr. Gutierrez possessed tissues, marked by sickly sweet breath, headache,
the necessary competence and skills. Drs. Hosaka and nausea and vomiting, and visual disturbances.[41] The
Gutierrez had worked together since 1977. Whenever long period that Dr. Hosaka made Erlinda wait for him
Dr. Hosaka performed a surgery, he would always certainly aggravated the anxiety that she must have
engage the services of Dr. Gutierrez to administer the been feeling at the time. It could be safely said that her
anesthesia on his patient.[36] anxiety adversely affected the administration of
Second, Dr. Hosaka himself admitted that he was anesthesia on her. As explained by Dr. Camagay, the
the attending physician of Erlinda. Thus, when Erlinda patients anxiety usually causes the outpouring of
showed signs of cyanosis, it was Dr. Hosaka who gave adrenaline which in turn results in high blood pressure or
instructions to call for another anesthesiologist and disturbances in the heart rhythm:
cardiologist to help resuscitate Erlinda.[37] DR. CAMAGAY:
Third, it is conceded that in performing their x x x Pre-operative medication has three
responsibilities to the patient, Drs. Hosaka and Gutierrez main functions: One is to alleviate
worked as a team. Their work cannot be placed in anxiety. Second is to dry up the secretions and
separate watertight compartments because their duties Third is to relieve pain. Now, it is very important
intersect with each other.[38] to alleviate anxiety because anxiety is
While the professional services of Dr. Hosaka and associated with the outpouring of certain
Dr. Gutierrez were secured primarily for their substances formed in the body called
performance of acts within their respective fields of adrenalin. When a patient is anxious there is an
expertise for the treatment of petitioner Erlinda, and that outpouring of adrenalin which would have
one does not exercise control over the other, they were adverse effect on the patient. One of it is high
certainly not completely independent of each other so as blood pressure, the other is that he opens
to absolve one from the negligent acts of the other himself to disturbances in the heart rhythm,
physician. which would have adverse implications. So, we
would like to alleviate patients anxiety mainly
That they were working as a medical team is because he will not be in control of his body
evident from the fact that Dr. Hosaka was keeping an there could be adverse results to surgery and he
eye on the intubation of the patient by Dr. Gutierrez, and will be opened up; a knife is going to open up his
while doing so, he observed that the patients nails had body. x x x[42]
become dusky and had to call Dr. Gutierrezs attention
thereto. The Court also notes that the counsel for Dr. Dr. Hosaka cannot now claim that he was entirely
Hosaka admitted that in practice, the anesthesiologist blameless of what happened to Erlinda. His conduct
would also have to observe the surgeons acts during the clearly constituted a breach of his professional duties to
surgical process and calls the attention of the surgeon Erlinda:
whenever necessary[39] in the course of the CHIEF JUSTICE:
treatment. The duties of Dr. Hosaka and those of Dr.
Gutierrez in the treatment of petitioner Erlinda are Two other points. The first, Doctor, you were
therefore not as clear-cut as respondents claim them to talking about anxiety, would you consider a
be. On the contrary, it is quite apparent that they have a patient's stay on the operating table for three
common responsibility to treat the patient, which hours sufficient enough to aggravate or magnify
responsibility necessitates that they call each others his or her anxiety?
DR. CAMAGAY: doctors therefor under Article 2180 of the Civil
Code[45] since there exists an employer-employee
Yes. relationship between private respondent DLSMC
CHIEF JUSTICE: and Drs. Gutierrez and Hosaka:

In other words, I understand that in this In other words, private hospitals, hire, fire and exercise
particular case that was the case, three hours real control over their attending and visiting consultant
waiting and the patient was already on the staff. While consultants are not, technically employees, x
operating table (interrupted) x x the control exercised, the hiring and the right to
DR. CAMAGAY: terminate consultants all fulfill the important hallmarks of
an employer-employee relationship, with the exception
Yes. of the payment of wages. In assessing whether such a
relationship in fact exists, the control test is determining.
CHIEF JUSTICE:
x x x[46]
Would you therefore conclude that the surgeon
contributed to the aggravation of the anxiety of DLSMC however contends that applying the four-
the patient? fold test in determining whether such a relationship
exists between it and the respondent doctors, the
DR. CAMAGAY: inescapable conclusion is that DLSMC cannot be
That this operation did not take place as considered an employer of the respondent doctors.
scheduled is already a source of anxiety and It has been consistently held that in determining
most operating tables are very narrow and that whether an employer-employee relationship exists
patients are usually at risk of falling on the floor between the parties, the following elements must be
so there are restraints that are placed on them present: (1) selection and engagement of services; (2)
and they are never, never left alone in the payment of wages; (3) the power to hire and fire; and (4)
operating room by themselves specially if they the power to control not only the end to be achieved, but
are already pre-medicated because they may the means to be used in reaching such an end.[47]
not be aware of some of their movement that
they make which would contribute to their injury. DLSMC maintains that first, a hospital does not hire
or engage the services of a consultant, but rather,
CHIEF JUSTICE: accredits the latter and grants him or her the privilege of
In other words due diligence would require a maintaining a clinic and/or admitting patients in the
surgeon to come on time? hospital upon a showing by the consultant that he or she
possesses the necessary qualifications, such as
DR. CAMAGAY: accreditation by the appropriate board (diplomate),
evidence of fellowship and references.[48] Second, it is
I think it is not even due diligence it is courtesy.
not the hospital but the patient who pays the consultants
CHIEF JUSTICE: fee for services rendered by the latter.[49] Third, a
hospital does not dismiss a consultant; instead, the latter
Courtesy. may lose his or her accreditation or privileges granted by
DR. CAMAGAY: the hospital.[50] Lastly, DLSMC argues that when a
doctor refers a patient for admission in a hospital, it is
And care. the doctor who prescribes the treatment to be given to
said patient. The hospitals obligation is limited to
CHIEF JUSTICE: providing the patient with the preferred room
Duty as a matter of fact? accommodation, the nutritional diet and medications
prescribed by the doctor, the equipment and facilities
DR. CAMAGAY: necessary for the treatment of the patient, as well as the
services of the hospital staff who perform the ministerial
Yes, Your Honor.[43]
tasks of ensuring that the doctors orders are carried out
Dr. Hosaka's irresponsible conduct of arriving very strictly.[51]
late for the scheduled operation of petitioner Erlinda is
After a careful consideration of the arguments
violative, not only of his duty as a physician to serve the
raised by DLSMC, the Court finds that respondent
interest of his patients with the greatest solicitude, giving
hospitals position on this issue is meritorious. There is
them always his best talent and skill,[44] but also of
no employer-employee relationship between DLSMC
Article 19 of the Civil Code which requires a person, in
and Drs. Gutierrez and Hosaka which would hold
the performance of his duties, to act with justice and give
DLSMC solidarily liable for the injury suffered by
everyone his due.
petitioner Erlinda under Article 2180 of the Civil Code.
Anent private respondent DLSMCs liability for the
As explained by respondent hospital, that the
resulting injury to petitioner Erlinda, we held that
admission of a physician to membership in DLSMCs
respondent hospital is solidarily liable with respondent
medical staff as active or visiting consultant is first situations, as in this case, where the resulting injury
decided upon by the Credentials Committee thereof, might be continuing and possible future complications
which is composed of the heads of the various specialty directly arising from the injury, while certain to occur, are
departments such as the Department of Obstetrics and difficult to predict.
Gynecology, Pediatrics, Surgery with the department
head of the particular specialty applied for as In these cases, the amount of damages which should be
chairman. The Credentials Committee then recommends awarded, if they are to adequately and correctly respond
to DLSMC's Medical Director or Hospital Administrator to the injury caused, should be one which compensates
the acceptance or rejection of the applicant physician, for pecuniary loss incurred and proved, up to the time of
and said director or administrator validates the trial; and one which would meet pecuniary loss certain to
committee's recommendation.[52] Similarly, in cases be suffered but which could not, from the nature of
where a disciplinary action is lodged against a the case, be made with certainty. In other words,
consultant, the same is initiated by the department to temperate damages can and should be awarded on top
whom the consultant concerned belongs and filed with of actual or compensatory damages in instances where
the Ethics Committee consisting of the department the injury is chronic and continuing. And because of the
specialty heads. The medical director/hospital unique nature of such cases, no incompatibility
administrator merely acts as ex-officio member of said arises when both actual and temperate damages are
committee. provided for. The reason is that these damages cover
Neither is there any showing that it is DLSMC which two distinct phases.
pays any of its consultants for medical services rendered
by the latter to their respective patients. Moreover, the As it would not be equitableand certainly not in the best
contract between the consultant in respondent hospital interests of the administration of justicefor the victim in
and his patient is separate and distinct from the contract such cases to constantly come before the courts and
between respondent hospital and said patient. The first invoke their aid in seeking adjustments to the
has for its object the rendition of medical services by the compensatory damages previously awardedtemperate
consultant to the patient, while the second concerns the damages are appropriate. The amount given as
provision by the hospital of facilities and services by its temperate damages, though to a certain extent
staff such as nurses and laboratory personnel necessary speculative, should take into account the cost of proper
for the proper treatment of the patient. care.

Further, no evidence was adduced to show that the In the instant case, petitioners were able to provide only
injury suffered by petitioner Erlinda was due to a failure home-based nursing care for a comatose patient who
on the part of respondent DLSMC to provide for hospital has remained in that condition for over a decade. Having
facilities and staff necessary for her treatment. premised our award for compensatory damages on the
For these reasons, we reverse the finding of liability amount provided by petitioners at the onset of litigation,
on the part of DLSMC for the injury suffered by petitioner it would be now much more in step with the interests of
Erlinda. justice if the value awarded for temperate damages
would allow petitioners to provide optimal care for their
Finally, the Court also deems it necessary to modify loved one in a facility which generally specializes in such
the award of damages to petitioners in view of the care. They should not be compelled by dire
supervening event of petitioner Erlindas death. In the circumstances to provide substandard care at home
assailed Decision, the Court awarded actual damages of without the aid of professionals, for anything less would
One Million Three Hundred Fifty Two Thousand Pesos be grossly inadequate. Under the circumstances, an
(P1,352,000.00) to cover the expenses for petitioner award of P1,500,000.00 in temperate damages would
Erlindas treatment and care from the date of therefore be reasonable.[54]
promulgation of the Decision up to the time the patient
expires or survives.[53] In addition thereto, the Court However, subsequent to the promulgation of the
awarded temperate damages of One Million Five Decision, the Court was informed by petitioner Rogelio
Hundred Thousand Pesos (P1,500,000.00) in view of the that petitioner Erlinda died on August 3, 1999.[55] In view
chronic and continuing nature of petitioner Erlindas injury of this supervening event, the award of temperate
and the certainty of further pecuniary loss by petitioners damages in addition to the actual or compensatory
as a result of said injury, the amount of which, damages would no longer be justified since the actual
however, could not be made with certainty at the time of damages awarded in the Decision are sufficient to cover
the promulgation of the decision. The Court justified the medical expenses incurred by petitioners for the
such award in this manner: patient. Hence, only the amounts representing actual,
moral and exemplary damages, attorneys fees and costs
Our rules on actual or compensatory damages generally of suit should be awarded to petitioners.
assume that at the time of litigation, the injury suffered
as a consequence of an act of negligence has been WHEREFORE, the assailed Decision is hereby
completed and that the cost can be liquidated.However, modified as follows:
these provisions neglect to take into account those
(1) Private respondent De Los Santos Medical The petitioners appeal from the decision[5] of the
Center is hereby absolved from liability arising from the Court of Appeals of 11 May 1994 in CA-G.R. CV No.
injury suffered by petitioner Erlinda Ramos on June 17, 30851, which reversed the decision[6] of 21 December
1985; 1990 of Branch 30 of the Regional Trial Court (RTC) of
Negros Oriental in Civil Case No. 9492.
(2) Private respondents Dr. Orlino Hosaka and Dr.
Perfecta Gutierrez are hereby declared to be solidarily The facts, as found by the trial court, are as follows:
liable for the injury suffered by petitioner Erlinda on June
17, 1985 and are ordered to pay petitioners Dr. Batiquin was a Resident Physician at the Negros
Oriental Provincial Hospital, Dumaguete City from
January 9, 1978 to September 1989. Between 1987 and
(a) P1,352,000.00 as actual damages; September, 1989 she was also the Actg. Head of the
Department of Obstetrics and Gynecology at the said
(b) P2,000,000.00 as moral damages; Hospital.

(c) P100,000.00 as exemplary damages; Mrs. Villegas is a married woman who submitted to
Dr. Batiquin for prenatal care as the latter's private
patient sometime before September 21, 1988.
(d) P100,000.00 as attorneys fees; and
In the morning of September 21, 1988 Dr. Batiquin,
(e) the costs of the suit. with the assistance of Dr. Doris Teresita Sy who was
also a Resident Physician at the same Hospital, C.I. and
SO ORDERED. O.R. Nurse Arlene Diones and some student nurses
performed a simple cesarean section on Mrs. Villegas at
the Negros Oriental Provincial Hospital and after 45
minutes Mrs. Villegas delivered her first child, Rachel
Applicability of Res Ipsa Liquitor Acogido, at about 11:45 that morning. Thereafter,
DR. VICTORIA L. BATIQUIN and ALLAN Plaintiff remained confined at the Hospital until
BATIQUIN, petitioners, vs. COURT OF September 27, 1988 during which period of confinement
APPEALS, SPOUSES QUEDO D. ACOGIDO she was regularly visited by Dr. Batiquin. On September
and FLOTILDE G. VILLEGAS, respondents. 28, 1988, Mrs. Villegas checked out of the Hospital . . .
and on the same day she paid Dr. Batiquin, thru the
latter's secretary, the amount of P1,500.00 as
DECISION
"professional fee" . . . .
DAVIDE, JR., J.:
Soon after leaving the Hospital Mrs. Villegas began
to suffer abdominal pains and complained of being
Throughout history, patients have consigned their feverish. She also gradually lost her appetite, so she
fates and lives to the skill of their doctors. For a breach consulted Dr. Batiquin at the latter's polyclinic who
of this trust, men have been quick to demand prescribed for her certain medicines . . . which she had
retribution. Some 4,000 years ago, the Code of been taking up to December, 1988.
Hammurabi[1] then already provided: "If a physician
make a deep incision upon a man with his bronze lancet In the meantime, Mrs. Villegas was given a Medical
and cause the man's death, or operate on the eye Certificate by Dr. Batiquin on October 31, 1988 . . .
socket of a man with his bronze lancet and destroy the certifying to her physical fitness to return to her work on
man's eyes, they shall cut off his hand."[2] Subsequently, November 7, 1988. So, on the second week of
Hippocrates[3] wrote what was to become part of the November, 1988 Mrs. Villegas returned to her work at
healer's oath: "I will follow that method of treatment the Rural Bank of Ayungon, Negros Oriental.
which according to my ability and judgment, I consider
The abdominal pains and fever kept on recurring
for the benefit of my patients, and abstain from whatever
and bothered Mrs. Villegas no end and despite the
is deleterious and mischievous . . . . While I continue to
medications administered by Dr. Batiquin. When the
keep this oath unviolated may it be granted me to enjoy
pains become unbearable and she was rapidly losing
life and practice the art, respected by all men at all times
weight she consulted Dr. Ma. Salud Kho at the Holy
but should I trespass and violate this oath, may the
Child's Hospital in Dumaguete City on January 20, 1989.
reverse be my lot." At present, the primary objective of
the medical profession is the preservation of life and The evidence of Plaintiffs show that when Dr. Ma.
maintenance of the health of the people.[4] Salud Kho examined Mrs. Villegas at the Holy Child's
Hospital on January 20, 1989 she found Mrs. Villegas to
Needless to say then, when a physician strays from
be feverish, pale and was breathing fast. Upon
his sacred duty and endangers instead the life of his
examination she felt an abdominal mass one finger
patient, he must be made to answer therefor. Although
below the umbilicus which she suspected to be either a
society today cannot and will not tolerate the punishment
tumor of the uterus or an ovarian cyst, either of which
meted out by the ancients, neither will it and this Court,
could be cancerous. She had an x-ray taken of Mrs.
as this case would show, let the act go uncondemned.
Villegas' chest, abdomen and kidney. She also took
blood tests of Plaintiff. A blood count showed that Mrs. these two different versions serve only to weaken their
Villegas had [an] infection inside her abdominal claim against Defendant Batiquin.[19]
cavity. The result of all those examinations impelled Dr.
Kho to suggest that Mrs. Villegas submit to another All told, the trial court held in favor of the petitioners
surgery to which the latter agreed. herein.
When Dr. Kho opened the abdomen of Mrs. The Court of Appeals reviewed the entirety of Dr.
Villegas she found whitish-yellow discharge inside, an Kho's testimony and, even without admitting the private
ovarian cyst on each of the left and right ovaries which respondents' documentary evidence, deemed Dr. Kho's
gave out pus, dirt and pus behind the uterus, and a positive testimony to definitely establish that a piece of
piece of rubber materials on the right side of the uterus rubber was found near private respondent Villegas'
embedded on [sic] the ovarian cyst, 2 inches by 3/4 inch uterus. Thus, the Court of Appeals reversed the decision
in size. This piece of rubber material which Dr. Kho of the trial court, holding:
described as a "foreign body" looked like a piece of a
"rubber glove" . . . and which is [sic] also "rubber-drain
4. The fault or negligence of appellee Dr. Batiquin is
like . . . . It could have been a torn section of a surgeon's established by preponderance of evidence. The trial
gloves or could have come from other sources. And this
court itself had narrated what happened to appellant
foreign body was the cause of the infection of the
Flotilde after the cesarean operation made by appellee
ovaries and consequently of all the discomfort suffered
doctor . . . . After the second operation, appellant Flotilde
by Mrs. Villegas after her delivery on September 21,
became well and healthy. Appellant Flotilde's troubles
1988.[7] were caused by the infection due to the "rubber" that
The piece of rubber allegedly found near private was left inside her abdomen.Both appellants testified
respondent Flotilde Villegas' uterus was not presented in that after the operation made by appellee doctor, they
court, and although Dr. Ma. Salud Kho testified that she did not go to any other doctor until they finally decided to
sent it to a pathologist in Cebu City for examination,[8] it see another doctor in January, 1989 when she was not
was not mentioned in the pathologist's Surgical getting any better under the care of appellee Dr. Batiquin
Pathology Report.[9] . . . . Appellee Dr. Batiquin admitted on the witness stand
that she alone decided when to close the operating area;
Aside from Dr. Kho's testimony, the evidence which that she examined the portion she operated on before
mentioned the piece of rubber are a Medical closing the same . . . . Had she exercised due diligence,
Certificate,[10] a Progress Record,[11] an Anesthesia appellee Dr. Batiquin would have found the rubber and
Record,[12] a Nurse's Record,[13] and a Physician's removed it before closing the operating area.[20]
Discharge Summary.[14] The trial court, however,
regarded these documentary evidence as mere hearsay, The appellate court then ruled:
"there being no showing that the person or persons who
prepared them are deceased or unable to testify on the
facts therein stated . . . . Except for the Medical Appellants' evidence show[s] that they paid a total of
Certificate (Exhibit "F"), all the above documents were P17,000.00 [deposit of P7,100.00 (Exh. G-1-A) plus
allegedly prepared by persons other than Dr. Kho, and hospital and medical expenses together with doctor's
she merely affixed her signature on some of them to fees in the total amount P9,900.00 (Exhs. G and G-2)]
express her agreement thereto . . . ."[15] The trial court for the second operation that saved her life.
also refused to give weight to Dr. Kho's testimony
regarding the subject piece of rubber as Dr. Kho "may For the miseries appellants endured for more than three
not have had first-hand knowledge" thereof,[16] as could (3) months, due to the negligence of appellee Dr.
be gleaned from her statement, thus: Batiquin, they are entitled to moral damages in the
amount of P100,000.00; exemplary damages in the
A . . . I have heard somebody that [sic] says [sic] amount of P20,000.00 and attorney's fees in the amount
there is [sic] a foreign body that goes with the of P25,000.00.
tissues but unluckily I don't know where the
rubber was.[17] The fact that appellant Flotilde can no longer bear
The trial court deemed vital Dr. Victoria Batiquin's children because her uterus and ovaries were removed
testimony that when she confronted Dr. Kho regarding by Dr. Kho is not taken into consideration as it is not
the piece of rubber, "Dr. Kho answered that there was shown that the removal of said organs were the direct
rubber indeed but that she threw it away."[18] This result of the rubber left by appellee Dr. Batiquin near the
statement, the trial court noted, was never denied nor uterus. What is established is that the rubber left by
disputed by Dr. Kho, leading it to conclude: appellee cause infection, placed the life of appellant
Flotilde in jeopardy and caused appellants fear, worry
There are now two different versions on the and anxiety . . . .
whereabouts of that offending "rubber" (1) that it was
sent to the Pathologist in Cebu as testified to in Court by WHEREFORE, the appealed judgment, dismissing the
Dr. Kho and (2) that Dr. Kho threw it away as told by her complaint for damages is REVERSED and SET
to Defendant. The failure of the Plaintiffs to reconcile ASIDE. Another judgment is hereby entered ordering
defendants-appellees to pay plaintiffs-appellants the turned out . . . to have pus. And then, cleaning
amounts of P17,000.00 as and for actual damages; up the uterus, at the back of the uterus it was
P100,000.00 as and for moral damages; P20,000.00 as very dirty, it was full of pus. And there was a
and for exemplary damages; and P25,000.00 as and for [piece of] rubber, we found a [piece of] rubber
attorney's fees plus the cost of litigation. on the right side.[24]
We agree with the Court of Appeals. The phrase
SO ORDERED.[21] relied upon by the trial court does not negate the fact
that Dr. Kho saw a piece of rubber in private respondent
From the above judgment, the petitioners appealed Villegas' abdomen, and that she sent it to a laboratory
to this Court claiming that the appellate court; (1) and then to Cebu City for examination by a
committed grave abuse of discretion by resorting to pathologist.[25] Not even the Pathologist's Report,
findings of fact not supported by the evidence on record, although devoid of any mention of a piece of rubber,
and (2) exceeded its discretion, amounting to lack or could alter what Dr. Kho saw. Furthermore, Dr. Kho's
excess of jurisdiction, when it gave credence to knowledge of the piece of rubber could not be based on
testimonies punctured with contradictions and falsities. other than first hand knowledge for, as she asserted
before the trial court:
The private respondents commented that the
petition raised only questions of fact, which were not Q But you are sure you have seen [the piece of
proper for review by this Court. rubber]?
While the rule is that only questions of law may be A Oh yes. I was not the only one who saw it.[26]
raised in a petition for review on certiorari, there are
exceptions, among which are when the factual findings The petitioners emphasize that the private
of the trial court and the appellate court conflict, when respondents never reconciled Dr. Kho's testimony with
the appealed decision is clearly contradicted by the Dr. Batiquin's claim on the witness stand that when Dr.
evidence on record, or when the appellate court Batiquin confronted Dr. Kho about the foreign body, the
misapprehended the facts.[22] latter said that there was a piece of rubber but that she
threw it away. Although hearsay, Dr. Batiquin's claim
After deciphering the cryptic petition, we find that was not objected to, and hence, the same is
the focal point of the instant appeal is the appreciation of admissible[27] but it carries no probative
Dr. Kho's testimony. The petitioners contend that the value.[28] Nevertheless, assuming otherwise, Dr.
Court of Appeals misappreciated the following portion of Batiquin's statement cannot belie the fact that Dr. Kho
Dr. Kho's testimony: found a piece of rubber near private respondent Villegas'
Q What is the purpose of the examination? uterus. And even if we were to doubt Dr. Kho as to what
she did to the piece of rubber, i.e., whether she threw it
A Just in case, I was just thinking at the back of my away or sent it to Cebu City, we are not justified in
mind, just in case this would turn out to be a distrusting her as to her recovery of a piece of rubber
medico-legal case, I have heard somebody from private respondent Villegas' abdomen. On this
that [sic] says [sic] there is [sic] a foreign body score, it is perfectly reasonable to believe the testimony
that goes with the tissues but unluckily I don't of a witness with respect to some facts and disbelieve
know where the rubber was. It was not in the his testimony with respect to other facts. And it has been
Lab, it was not in Cebu.[23] (Italics supplied) aptly said that even when a witness is found to have
deliberately falsified in some material particulars, it is not
The petitioners prefer the trial court's interpretation of the required that the whole of his uncorroborated testimony
above testimony, i.e., that Dr. Kho's knowledge of the be rejected, but such portions thereof deemed worthy of
piece of rubber was based on hearsay. The Court of belief may be credited.[29]
Appeals, on the other hand, concluded that the
underscored phrase was taken out of context by the trial It is here worth nothing that the trial court paid heed
court. According to the Court of Appeals, the trial court to the following portions of Dr. Batiquin's testimony: that
should have likewise considered the other portions of Dr. no rubber drain was used in the operation,[30] and that
Kho's testimony, especially the following: there was neither any tear on Dr. Batiquin's gloves after
the operation nor blood smears on her hands upon
Q So you did actually conduct the operation on her? removing her gloves.[31] Moreover, the trial court pointed
A Yes, I did. out that the absence of a rubber drain was corroborated
by Dr. Doris Sy, Dr. Batiquin's assistant during the
Q And what was the result? operation on private respondent Villegas.[32] But the trial
court failed to recognize that the assertions of Drs.
A Opening up her abdomen, there was whitish-
Batiquin and Sy were denials or negative
yellow discharge inside the abdomen, there
testimonies. Well-settled is the rule that positive
was an ovarian cyst on the left and side and testimony is stronger than negative testimony.[33] Of
there was also an ovarian cyst on the right course, as the petitioners advocate, such positive
which, on opening up or freeing it up from the
testimony must come from a credible source, which
uterus, turned out to be pus. Both ovaries
leads us to the second assigned error.
While the petitioners claim that contradictions and The doctrine of [r]es ipsa loquitur as a rule of evidence is
falsities punctured Dr. Kho's testimony, a reading of the peculiar to the law of negligence which recognizes
said testimony reveals no such infirmity and establishes that prima facie negligence may be established without
Dr. Kho as a credible witness. Dr. Kho was frank direct proof and furnishes a substitute for specific proof
throughout her turn on the witness stand. Furthermore, of negligence. The doctrine is not a rule of substantive
no motive to state any untruth was ever imputed against law, but merely a mode of proof or a mere procedural
Dr. Kho, leaving her trustworthiness unimpaired.[34] The convenience. The rule, when applicable to the facts and
trial court's following declaration shows that while it was circumstances of a particular case, is not intended to
critical of the lack of care with which Dr. Kho handled the and does not dispense with the requirement of proof of
piece of rubber, it was not prepared to doubt Dr. Kho's culpable negligence on the party charged. It merely
credibility, thus only supporting out appraisal of Dr. Kho's determines and regulates what shall
trustworthiness: be prima facie evidence thereof and facilitates the
burden of plaintiff of proving a breach of the duty of due
This is not to say that she was less than honest when care. The doctrine can be invoked when and only when,
she testified about her findings, but it can also be said under the circumstances involved, direct evidence is
that she did not take the most appropriate precaution to absent and not readily available.[36]
preserve that "piece of rubber" as an eloquent evidence
of what she would reveal should there be a "legal In the instant case, all the requisites for recourse to
problem" which she claim[s] to have anticipated.[35] the doctrine are present. First, the entire proceedings of
the cesarean section were under the exclusive control of
Considering that we have assessed Dr. Kho to be a Dr. Batiquin. In this light, the private respondents were
credible witness, her positive testimony [that a piece of bereft of direct evidence as to the actual culprit or the
rubber was indeed found in private respondent Villegas' exact cause of the foreign object finding its way into
abdomen] prevails over the negative testimony in favor private respondent Villegas' body, which, needless to
of the petitioners. say, does not occur unless through the intervention of
As such, the rule of res ipsa loquitur comes to negligence. Second, since aside from the cesarean
fore. This Court has had occasion to delve into the section, private respondent Villegas underwent no other
nature and operation of this doctrine: operation which could have caused the offending piece
of rubber to appear in her uterus, it stands to reason that
This doctrine [res ipsa loquitur] is stated thus: such could only have been a by-product of the cesarean
"Where the thing which causes injury is shown to be section performed by Dr. Batiquin. The petitioners, in this
under the management of the defendant, and the regard, failed to overcome the presumption of
accident is such as in the ordinary course of things does negligence arising from resort to the doctrine of res ipsa
not happen if those who have the management use loquitur. Dr. Batiquin is therefore liable for negligently
proper care, it affords reasonable evidence, in the leaving behind a piece of rubber in private respondent
absence of an explanation by the defendant, that the Villegas' abdomen and for all the adverse effects
accident arose from want of care." Or as Black's Law thereof.
Dictionary puts it:
As a final word, this Court reiterates its recognition
of the vital role the medical profession plays in the lives
Res ipsa loquitur. The thing speaks for itself. Rebuttable
of the people,[37] and State's compelling interest to enact
presumption or inference that defendant was negligent,
measures to protect the public from "the potentially
which arises upon proof that [the] instrumentality causing
deadly effects of incompetence and ignorance in those
injury was in defendant's exclusive control, and that the
who would undertake to treat our bodies and minds for
accident was one which ordinary does not happen in
disease or trauma."[38] Indeed, a physician is bound to
absence of negligence. Res ipsa loquitur is [a] rule of
serve the interest of his patients "with the greatest of
evidence whereby negligence of [the] alleged wrongdoer
solicitude, giving them always his best talent and
may be inferred from [the] mere fact that [the] accident
skill."[39] Through her tortious conduct, the petitioner
happened provided [the] character of [the] accident and
endangered the life of Flotilde Villegas, in violation of her
circumstances attending it lead reasonably to belief that
profession's rigid ethical code and in contravention of the
in [the] absence of negligence it would not have
legal standards set forth for professionals, in the
occurred and that thing which caused injury is shown to
general,[40] and members of the medical profession,[41] in
have been under [the] management and control of [the]
particular.
alleged wrongdoer . . . . Under [this] doctrine . . . the
happening of an injury permits an inference of WHEREFORE, the challenged decision of 11 May
negligence where plaintiff produces substantial evidence 1994 of the Court of Appeals in CA-G.R. CV No. 30851
that [the] injury was caused by an agency or is hereby AFFIRMED in toto.
instrumentality under [the] exclusive control and
management of defendant, and that the occurrence [sic] Costs against the petitioners.
was such that in the ordinary course of things would not SO ORDERED.
happen if reasonable care had been used.

xxx xxx xxx


LEAH ALESNA REYES, ROSE NAHDJA, JOHNNY, at around 9:00 p.m. A second dose was administered on
and minors LLOYD and KRISTINE, all Jorge about three hours later just before midnight.
surnamed REYES, represented by their
mother, LEAH ALESNA At around 1:00 a.m. of January 9, 1987, Dr. Blanes
REYES, petitioners, vs. SISTERS OF MERCY was called as Jorges temperature rose to 41C. The
HOSPITAL, SISTER ROSE PALACIO, DR. patient also experienced chills and exhibited respiratory
MARVIE BLANES, and DR. MARLYN distress, nausea, vomiting, and convulsions. Dr. Blanes
RICO,respondents. put him under oxygen, used a suction machine, and
administered hydrocortisone, temporarily easing the
patients convulsions. When he regained consciousness,
DECISION the patient was asked by Dr. Blanes whether he had a
MENDOZA, J.: previous heart ailment or had suffered from chest pains
in the past. Jorge replied he did not.[5] After about 15
minutes, however, Jorge again started to vomit, showed
This is a petition for review of the decision[1] of the
restlessness, and his convulsions returned. Dr. Blanes
Court of Appeals in CA-G.R. CV No. 36551 affirming the
re-applied the emergency measures taken before and, in
decision of the Regional Trial Court, Branch IX, Cebu
addition, valium was administered. Jorge, however, did
City which dismissed a complaint for damages filed by
not respond to the treatment and slipped into cyanosis, a
petitioners against respondents.
bluish or purplish discoloration of the skin or mucous
The facts are as follows: membrane due to deficient oxygenation of the blood. At
around 2:00 a.m., Jorge died. He was forty years
Petitioner Leah Alesna Reyes is the wife of the late old. The cause of his death was Ventricular Arrythemia
Jorge Reyes. The other petitioners, namely, Rose Secondary to Hyperpyrexia and typhoid fever.
Nahdja, Johnny, Lloyd, and Kristine, all surnamed
Reyes, were their children. Five days before his death On June 3, 1987, petitioners filed before the
on January 8, 1987, Jorge had been suffering from a Regional Trial Court of Cebu City a complaint[6]for
recurring fever with chills. After he failed to get relief damages against respondents Sisters of Mercy, Sister
from some home medication he was taking, which Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico, and
consisted of analgesic, antipyretic, and antibiotics, he nurse Josephine Pagente. On September 24, 1987,
decided to see the doctor. petitioners amended their complaint to implead
respondent Mercy Community Clinic as additional
On January 8, 1987, he was taken to the Mercy defendant and to drop the name of Josephine Pagente
Community Clinic by his wife. He was attended to by as defendant since she was no longer connected with
respondent Dr. Marlyn Rico, resident physician and respondent hospital. Their principal contention was that
admitting physician on duty, who gave Jorge a physical Jorge did not die of typhoid fever.[7]Instead, his death
examination and took his medical history. She noted that was due to the wrongful administration of
at the time of his admission, Jorge was conscious, chloromycetin. They contended that had respondent
ambulatory, oriented, coherent, and with respiratory doctors exercised due care and diligence, they would not
distress.[2] Typhoid fever was then prevalent in the have recommended and rushed the performance of the
locality, as the clinic had been getting from 15 to 20 Widal Test, hastily concluded that Jorge was suffering
cases of typhoid per month.[3] Suspecting that Jorge from typhoid fever, and administered chloromycetin
could be suffering from this disease, Dr. Rico ordered a without first conducting sufficient tests on the patients
Widal Test, a standard test for typhoid fever, to be compatibility with said drug. They charged respondent
performed on Jorge. Blood count, routine urinalysis, clinic and its directress, Sister Rose Palacio, with
stool examination, and malarial smear were also negligence in failing to provide adequate facilities and in
made.[4]After about an hour, the medical technician hiring negligent doctors and nurses.[8]
submitted the results of the test from which Dr. Rico
concluded that Jorge was positive for typhoid fever. As Respondents denied the charges. During the pre-
her shift was only up to 5:00 p.m., Dr. Rico trial conference, the parties agreed to limit the issues on
indorsed Jorge to respondent Dr. Marvie Blanes. the following: (1) whether the death of Jorge Reyes was
due to or caused by the negligence, carelessness,
Dr. Marvie Blanes attended to Jorge at around six imprudence, and lack of skill or foresight on the part of
in the evening. She also took Jorges history and gave defendants; (2) whether respondent Mercy Community
him a physical examination. Like Dr. Rico, her Clinic was negligent in the hiring of its employees; and
impression was that Jorge had typhoid fever. Antibiotics (3) whether either party was entitled to damages. The
being the accepted treatment for typhoid fever, she case was then heard by the trial court during which, in
ordered that a compatibility test with the antibiotic addition to the testimonies of the parties, the testimonies
chloromycetin be done on Jorge. Said test was of doctors as expert witnesses were presented.
administered by nurse Josephine Pagente who also
gave the patient a dose of triglobe. As she did not Petitioners offered the testimony of Dr. Apolinar
observe any adverse reaction by the patient to Vacalares, Chief Pathologist at the Northern Mindanao
chloromycetin, Dr. Blanes ordered the first five hundred Training Hospital, Cagayan de Oro City. On January 9,
milligrams of said antibiotic to be administered on Jorge 1987, Dr. Vacalares performed an autopsy on Jorge
Reyes to determine the cause of his death. However, he
did not open the skull to examine the brain. His II. THE HONORABLE COURT OF APPEALS
findings[9] showed that the gastro-intestinal tract was COMMITTED REVERSIBLE ERROR
normal and without any ulceration or enlargement of the WHEN IT MADE AN UNFOUNDED
nodules. Dr. Vacalares testified that Jorge did not die of ASSUMPTION THAT THE LEVEL OF
typhoid fever. He also stated that he had not seen a MEDICAL PRACTICE IS LOWER IN
patient die of typhoid fever within five days from the ILIGAN CITY.
onset of the disease.
III. THE HONORABLE COURT OF APPEALS
For their part, respondents offered the testimonies GRAVELY ERRED WHEN IT RULED FOR
of Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. Gotiong A LESSER STANDARD OF CARE AND
is a diplomate in internal medicine whose expertise is DEGREE OF DILIGENCE FOR MEDICAL
microbiology and infectious diseases. He is also a PRACTICE IN ILIGAN CITY WHEN IT
consultant at the Cebu City Medical Center and an APPRECIATE[D] NO DOCTORS
associate professor of medicine at the South Western NEGLIGENCE IN THE TREATMENT OF
University College of Medicine in Cebu City. He had JORGE REYES.
treated over a thousand cases of typhoid
patients. According to Dr. Gotiong, the patients history Petitioners action is for medical malpractice. This is
and positive Widal Test results ratio of 1:320 would a particular form of negligence which consists in the
make him suspect that the patient had typhoid fever. As failure of a physician or surgeon to apply to his practice
to Dr. Vacalares observation regarding the absence of of medicine that degree of care and skill which is
ulceration in Jorges gastro-intestinal tract, Dr. Gotiong ordinarily employed by the profession generally, under
said that such hyperplasia in the intestines of a typhoid similar conditions, and in like surrounding
victim may be microscopic. He noted that since the toxic circumstances.[12] In order to successfully pursue such a
effect of typhoid fever may lead to meningitis, Dr. claim, a patient must prove that the physician or surgeon
Vacalares autopsy should have included an examination either failed to do something which a reasonably prudent
of the brain.[10] physician or surgeon would have done, or that he or she
did something that a reasonably prudent physician or
The other doctor presented was Dr. Ibarra Panopio, surgeon would not have done, and that the failure or
a member of the American Board of Pathology, action caused injury to the patient.[13] There are thus four
examiner of the Philippine Board of Pathology from 1978 elements involved in medical negligence cases, namely:
to 1991, fellow of the Philippine Society of Pathologist, duty, breach, injury, and proximate causation.
associate professor of the Cebu Institute of Medicine,
and chief pathologist of the Andres Soriano Jr. Memorial In the present case, there is no doubt that a
Hospital in Toledo City. Dr. Panopio stated that although physician-patient relationship existed between
he was partial to the use of the culture test for its greater respondent doctors and Jorge Reyes. Respondents
reliability in the diagnosis of typhoid fever, the Widal Test were thus duty-bound to use at least the same level of
may also be used. Like Dr. Gotiong, he agreed that the care that any reasonably competent doctor would use to
1:320 ratio in Jorges case was already the maximum by treat a condition under the same circumstances. It is
which a conclusion of typhoid fever may be made. No breach of this duty which constitutes actionable
additional information may be deduced from a higher malpractice.[14]As to this aspect of medical malpractice,
dilution.[11] He said that Dr. Vacalares autopsy on Jorge the determination of the reasonable level of care and the
was incomplete and thus inconclusive. breach thereof, expert testimony is essential. Inasmuch
as the causes of the injuries involved in malpractice
On September 12, 1991, the trial court rendered its actions are determinable only in the light of scientific
decision absolving respondents from the charges of knowledge, it has been recognized that expert testimony
negligence and dismissing petitioners action for is usually necessary to support the conclusion as to
damages. The trial court likewise dismissed respondents causation.[15]
counterclaim, holding that, in seeking damages from
respondents, petitioners were impelled by the honest
belief that Jorges death was due to the latters Res Ipsa Loquitur
negligence.
Petitioners brought the matter to the Court of
Appeals. On July 31, 1997, the Court of Appeals There is a case when expert testimony may be
affirmed the decision of the trial court. dispensed with, and that is under the doctrine of res ipsa
loquitur. As held in Ramos v. Court of Appeals:[16]
Hence this petition.
Petitioners raise the following assignment of errors: Although generally, expert medical testimony is relied
upon in malpractice suits to prove that a physician has
I. THE HONORABLE COURT OF APPEALS done a negligent act or that he has deviated from the
COMMITTED A REVERSIBLE ERROR standard medical procedure, when the doctrine of res
WHEN IT RULED THAT THE DOCTRINE ipsa loquitor is availed by the plaintiff, the need for
OF RES IPSA LOQUITUR IS NOT expert medical testimony is dispensed with because the
APPLICABLE IN THE INSTANT CASE. injury itself provides the proof of negligence. The reason
is that the general rule on the necessity of expert (3) the injury suffered must not have been due to any
testimony applies only to such matters clearly within the voluntary action or contribution of the person injured.[18]
domain of medical science, and not to matters that are
within the common knowledge of mankind which may be The contention is without merit. We agree with the
testified to by anyone familiar with the facts. Ordinarily, ruling of the Court of Appeals. In the Ramos case, the
only physicians and surgeons of skill and experience are question was whether a surgeon, an anesthesiologist,
competent to testify as to whether a patient has been and a hospital should be made liable for the comatose
treated or operated upon with a reasonable degree of condition of a patient scheduled for
skill and care. However, testimony as to the statements cholecystectomy.[19] In that case, the patient was given
and acts of physicians and surgeons, external anesthesia prior to her operation. Noting that the patient
appearances, and manifest conditions which are was neurologically sound at the time of her operation,
observable by any one may be given by non-expert the Court applied the doctrine of res ipsa loquitur as
witnesses. Hence, in cases where the res ipsa loquitur is mental brain damage does not normally occur in a
applicable, the court is permitted to find a physician gallblader operation in the absence of negligence of the
negligent upon proper proof of injury to the patient, anesthesiologist. Taking judicial notice that anesthesia
without the aid of expert testimony, where the court from procedures had become so common that even an
its fund of common knowledge can determine the proper ordinary person could tell if it was administered properly,
standard of care. Where common knowledge and we allowed the testimony of a witness who was not an
experience teach that a resulting injury would not have expert. In this case, while it is true that the patient died
occurred to the patient if due care had been exercised, just a few hours after professional medical assistance
an inference of negligence may be drawn giving rise to was rendered, there is really nothing unusual or
an application of the doctrine of res ipsa loquitur without extraordinary about his death. Prior to his admission, the
medical evidence, which is ordinarily required to show patient already had recurring fevers and chills for five
not only what occurred but how and why it days unrelieved by the analgesic, antipyretic, and
occurred. When the doctrine is appropriate, all that the antibiotics given him by his wife. This shows that he had
patient must do is prove a nexus between the particular been suffering from a serious illness and professional
act or omission complained of and the injury sustained medical help came too late for him.
while under the custody and management of the Respondents alleged failure to observe due care
defendant without need to produce expert medical was not immediately apparent to a layman so as to
testimony to establish the standard of care. Resort to res justify application of res ipsa loquitur. The question
ipsa loquitor is allowed because there is no other way, required expert opinion on the alleged breach by
under usual and ordinary conditions, by which the respondents of the standard of care required by the
patient can obtain redress for injury suffered by him. circumstances. Furthermore, on the issue of the
correctness of her diagnosis, no presumption of
Thus, courts of other jurisdictions have applied the negligence can be applied to Dr. Marlyn Rico. As held
doctrine in the following situations: leaving of a foreign in Ramos:
object in the body of the patient after an operation,
injuries sustained on a healthy part of the body which . . . . Res ipsa loquitur is not a rigid or ordinary doctrine
was not under, or in the area, of treatment, removal of to be perfunctorily used but a rule to be cautiously
the wrong part of the body when another part was applied, depending upon the circumstances of each
intended, knocking out a tooth while a patients jaw was case. It is generally restricted to situations in malpractice
under anesthetic for the removal of his tonsils, and loss cases where a layman is able to say, as a matter of
of an eye while the patient was under the influence common knowledge and observation, that the
of anesthetic, during or following an operation for consequences of professional care were not as such as
appendicitis, among others.[17] would ordinarily have followed if due care had been
exercised. A distinction must be made between the
Petitioners asserted in the Court of Appeals that the failure to secure results, and the occurrence of
doctrine of res ipsa loquitur applies to the present case something more unusual and not ordinarily found if the
because Jorge Reyes was merely experiencing fever service or treatment rendered followed the usual
and chills for five days and was fully conscious, procedure of those skilled in that particular practice. It
coherent, and ambulant when he went to the must be conceded that the doctrine of res ipsa
hospital. Yet, he died after only ten hours from the time loquitur can have no application in a suit against a
of his admission. physician or a surgeon which involves the merits of a
diagnosis or of a scientific treatment. The physician or
This contention was rejected by the appellate court. surgeon is not required at his peril to explain why any
Petitioners now contend that all requisites for the particular diagnosis was not correct, or why any
application of res ipsa loquitur were present, namely: (1) particular scientific treatment did not produce the desired
the accident was of a kind which does not ordinarily result.[20]
occur unless someone is negligent; (2) the
instrumentality or agency which caused the injury was
under the exclusive control of the person in charge; and Specific Acts of Negligence
We turn to the question whether petitioners have Q Clinically?
established specific acts of negligence allegedly
committed by respondent doctors. A Way back before my training.

Petitioners contend that: (1) Dr. Marlyn Rico hastily He is thus not qualified to prove that Dr. Marlyn Rico
and erroneously relied upon the Widal test, diagnosed erred in her diagnosis. Both lower courts were therefore
Jorges illness as typhoid fever, and immediately correct in discarding his testimony, which is really
prescribed the administration of the antibiotic inadmissible.
chloromycetin;[21] and (2) Dr. Marvie Blanes erred in In Ramos, the defendants presented the testimony
ordering the administration of the second dose of 500 of a pulmonologist to prove that brain injury was due to
milligrams of chloromycetin barely three hours after the oxygen deprivation after the patient had
first was given.[22] Petitioners presented the testimony of bronchospasms[24] triggered by her allergic response to
Dr. Apolinar Vacalares, Chief Pathologist of the Northern a drug,[25] and not due to faulty intubation by the
Mindanao Training Hospital, Cagayan de Oro City, who anesthesiologist. As the issue was whether the
performed an autopsy on the body of Jorge Reyes. Dr. intubation was properly performed by an
Vacalares testified that, based on his findings during the anesthesiologist, we rejected the opinion of the
autopsy, Jorge Reyes did not die of typhoid fever but of pulmonologist on the ground that he was not: (1) an
shock undetermined, which could be due to allergic anesthesiologist who could enlighten the court about
reaction or chloromycetin overdose. We are not anesthesia practice, procedure, and their complications;
persuaded. nor (2) an allergologist who could properly advance
First. While petitioners presented Dr. Apolinar expert opinion on allergic mediated processes; nor (3) a
Vacalares as an expert witness, we do not find him to be pharmacologist who could explain the pharmacologic
so as he is not a specialist on infectious diseases like and toxic effects of the drug allegedly responsible for the
typhoid fever.Furthermore, although he may have had bronchospasms.
extensive experience in performing autopsies, he Second. On the other hand, the two doctors
admitted that he had yet to do one on the body of a presented by respondents clearly were experts on the
typhoid victim at the time he conducted the postmortem subject. They vouched for the correctness of Dr. Marlyn
on Jorge Reyes. It is also plain from his testimony that Ricos diagnosis. Dr. Peter Gotiong, a diplomate whose
he has treated only about three cases of typhoid fever. specialization is infectious diseases and microbiology
Thus, he testified that:[23] and an associate professor at the Southwestern
ATTY. PASCUAL: University College of Medicine and the Gullas College of
Medicine, testified that he has already treated over a
Q Why? Have you not testified earlier that you have thousand cases of typhoid fever.[26] According to him,
never seen a patient who died of typhoid fever? when a case of typhoid fever is suspected, the Widal test
is normally used,[27]and if the 1:320 results of the Widal
A In autopsy. But, that was when I was a resident test on Jorge Reyes had been presented to him along
physician yet. with the patients history, his impression would also be
Q But you have not performed an autopsy of a that the patient was suffering from typhoid fever.[28] As to
patient who died of typhoid fever? the treatment of the disease, he stated that
chloromycetin was the drug of choice.[29] He also
A I have not seen one. explained that despite the measures taken by
respondent doctors and the intravenous administration
Q And you testified that you have never seen a
of two doses of chloromycetin, complications of the
patient who died of typhoid fever within five
disease could not be discounted. His testimony is as
days?
follows:[30]
A I have not seen one.
ATTY. PASCUAL:
Q How many typhoid fever cases had you seen while
Q If with that count with the test of positive for 1 is to
you were in the general practice of medicine?
320, what treatment if any would be given?
A In our case we had no widal test that time so we
A If those are the findings that would be presented to
cannot consider that the typhoid fever is like this
me, the first thing I would consider would be
and like that. And the widal test does not specify
typhoid fever.
the time of the typhoid fever.
Q And presently what are the treatments commonly
Q The question is: how many typhoid fever cases
used?
had you seen in your general practice
regardless of the cases now you practice? A Drug of choice of chloramphenical.
A I had only seen three cases. Q Doctor, if given the same patient and after you
have administered chloramphenical about 3 1/2
Q And that was way back in 1964?
hours later, the patient associated with chills,
A Way back after my training in UP.
temperature - 41oC, what could possibly come to Hospital, and the Andres Soriano Jr. Memorial Medical
your mind? Center. He stated that, as a clinical pathologist, he
recognized that the Widal test is used for typhoid
A Well, when it is change in the clinical finding, you patients, although he did not encourage its use because
have to think of complication. a single test would only give a presumption necessitating
Q And what will you consider on the complication of that the test be repeated, becoming more conclusive at
typhoid? the second and third weeks of the disease.[33] He
corroborated Dr. Gotiongs testimony that the danger with
A One must first understand that typhoid fever is typhoid fever is really the possible complications which
toximia. The problem is complications are could develop like perforation, hemorrhage, as well as
caused by toxins produced by the bacteria . . . liver and cerebral complications.[34] As regards the 1:320
whether you have suffered complications to results of the Widal test on Jorge Reyes, Dr. Panopio
think of -- heart toxic myocardities; then you can stated that no additional information could be obtained
consider a toxic meningitis and other from a higher ratio.[35] He also agreed with Dr. Gotiong
complications and perforations and bleeding in that hyperplasia in the payers patches may be
the ilium. microscopic.[36]
Q Even that 40-year old married patient who received Indeed, the standard contemplated is not what is
medication of chloromycetin of 500 milligrams actually the average merit among all known practitioners
intravenous, after the skin test, and received a from the best to the worst and from the most to the least
second dose of chloromycetin of 500 miligrams, experienced, but the reasonable average merit among
3 hours later, the patient developed chills . . . the ordinarily good physicians.[37] Here, Dr. Marlyn Rico
rise in temperature to 41oC, and then about 40 did not depart from the reasonable standard
minutes later the temperature rose to 100oF, recommended by the experts as she in fact observed the
cardiac rate of 150 per minute who appeared to due care required under the circumstances. Though the
be coherent, restless, nauseating, with Widal test is not conclusive, it remains a standard
seizures: what significance could you attach to diagnostic test for typhoid fever and, in the present case,
these clinical changes? greater accuracy through repeated testing was rendered
unobtainable by the early death of the patient. The
A I would then think of toxemia, which was toxic
results of the Widal test and the patients history of fever
meningitis and probably a toxic meningitis
with chills for five days, taken with the fact that typhoid
because of the high cardiac rate.
fever was then prevalent as indicated by the fact that the
Q Even if the same patient who, after having given clinic had been getting about 15 to 20 typhoid cases a
intramuscular valium, became conscious and month, were sufficient to give upon any doctor of
coherent about 20 minutes later, have seizure reasonable skill the impression that Jorge Reyes had
and cyanosis and rolling of eyeballs and typhoid fever.
vomitting . . . and death: what significance would
Dr. Rico was also justified in recommending the
you attach to this development?
administration of the drug chloromycetin, the drug of
A We are probably dealing with typhoid to meningitis. choice for typhoid fever. The burden of proving that
Jorge Reyes was suffering from any other illness rested
Q In such case, Doctor, what finding if any could you with the petitioners. As they failed to present expert
expect on the post-mortem examination? opinion on this, preponderant evidence to support their
A No, the finding would be more on the meninges or contention is clearly absent.
covering of the brain. Third. Petitioners contend that respondent Dr.
Q And in order to see those changes would it require Marvie Blanes, who took over from Dr. Rico, was
opening the skull? negligent in ordering the intravenous administration of
two doses of 500 milligrams of chloromycetin at an
A Yes. interval of less than three hours. Petitioners claim that
Jorge Reyes died of anaphylactic shock [38] or possibly
As regards Dr. Vacalares finding during the autopsy that from overdose as the second dose should have been
the deceaseds gastro-intestinal tract was normal, Dr. administered five to six hours after the first, per
Rico explained that, while hyperplasia[31] in the payers instruction of Dr. Marlyn Rico. As held by the Court of
patches or layers of the small intestines is present in Appeals, however:
typhoid fever, the same may not always be grossly
visible and a microscope was needed to see the texture
of the cells.[32] That chloromycetin was likewise a proper prescription is
best established by medical authority. Wilson, et. al.,
Respondents also presented the testimony of Dr. in Harrisons Principle of Internal Medicine, 12th ed. write
Ibarra T. Panopio who is a member of the Philippine and that chlorampenicol (which is the generic of
American Board of Pathology, an examiner of the chloromycetin) is the drug of choice for typhoid fever and
Philippine Board of Pathology, and chief pathologist at that no drug has yet proven better in promoting a
the MetroCebu Community Hospital, Perpetual Succor favorable clinical response. Chlorampenicol
(Chloromycetin) is specifically indicated for bacterial The standard of extraordinary diligence is peculiar
meningitis, typhoid fever, rickettsial infections, to common carriers. The Civil Code provides:
bacteriodes infections, etc. (PIMS Annual, 1994, p.
211) The dosage likewise including the first Art. 1733. Common carriers, from the nature of their
administration of five hundred milligrams (500 mg.) at business and for reasons of public policy, are bound to
around nine oclock in the evening and the second dose observe extraordinary diligence in the vigilance over the
at around 11:30 the same night was still within medically goods and for the safety of the passengers transported
acceptable limits, since the recommended dose of by them, according to the circumstances of each case. .
chloromycetin is one (1) gram every six (6) ..
hours. (cf. Pediatric Drug Handbook, 1st Ed., Philippine
Pediatric Society, Committee on Therapeutics and
The practice of medicine is a profession engaged in
Toxicology, 1996). The intravenous route is likewise
only by qualified individuals. It is a right earned through
correct. (Mansser, ONick, Pharmacology and
years of education, training, and by first obtaining a
Therapeutics) Even if the test was not administered by license from the state through professional board
the physician-on-duty, the evidence introduced that it examinations. Such license may, at any time and for
was Dra. Blanes who interpreted the results remain
cause, be revoked by the government. In addition to
uncontroverted. (Decision, pp. 16-17) Once more, this
state regulation, the conduct of doctors is also strictly
Court rejects any claim of professional negligence in this
governed by the Hippocratic Oath, an ancient code of
regard.
discipline and ethical rules which doctors have imposed
upon themselves in recognition and acceptance of their
.... great responsibility to society. Given these safeguards,
there is no need to expressly require of doctors the
As regards anaphylactic shock, the usual way of observance of extraordinary diligence. As it is now, the
guarding against it prior to the administration of a drug, practice of medicine is already conditioned upon the
is the skin test of which, however, it has been observed: highest degree of diligence. And, as we have already
Skin testing with haptenic drugs is generally not noted, the standard contemplated for doctors is simply
reliable. Certain drugs cause nonspecific histamine the reasonable average merit among ordinarily good
release, producing a weal-and-flare reaction in normal physicians. That is reasonable diligence for doctors or,
individuals. Immunologic activation of mast cells requires as the Court of Appeals called it, the reasonable skill and
a polyvalent allergen, so a negative skin test to a competence . . . that a physician in the same or similar
univalent haptenic drug does not rule out anaphylactic locality . . . should apply.
sensitivity to that drug. (Terr, Anaphylaxis and Urticaria
in Basic and Clinical Immunology, p. 349) What all this WHEREFORE, the instant petition is DENIED and
means legally is that even if the deceased suffered from the decision of the Court of Appeals is AFFIRMED.
an anaphylactic shock, this, of itself, would not yet SO ORDERED.
establish the negligence of the appellee-physicians
for all that the law requires of them is that they perform
the standard tests and perform standard procedures.
The law cannot require them to predict every possible
reaction to all drugs administered. The onus probandi PROFESSIONAL SERVICES, INC., Petitioner,
was on the appellants to establish, before the trial court, vs.
that the appellee-physicians ignored standard medical NATIVIDAD and ENRIQUE AGANA, Respondents.
procedure, prescribed and administered medication with
recklessness and exhibited an absence of the Hospitals, having undertaken one of mankind’s most
competence and skills expected of general practitioners important and delicate endeavors, must assume the
similarly situated.[39] grave responsibility of pursuing it with appropriate care.
The care and service dispensed through this high trust,
Fourth. Petitioners correctly observe that the however technical, complex and esoteric its character
medical profession is one which, like the business of a may be, must meet standards of responsibility
common carrier, is affected with public commensurate with the undertaking to preserve and
interest. Moreover, they assert that since the law protect the health, and indeed, the very lives of those
imposes upon common carriers the duty of observing placed in the hospital’s keeping.1
extraordinary diligence in the vigilance over the goods
and for the safety of the passengers,[40] physicians and Assailed in these three consolidated petitions for review
surgeons should have the same duty toward their on certiorari is the Court of Appeals’ Decision 2 dated
patients.[41] They also contend that the Court of Appeals September 6, 1996 in CA-G.R. CV No. 42062 and CA-
erred when it allegedly assumed that the level of medical G.R. SP No. 32198 affirming with modification the
practice is lower in Iligan City, thereby reducing the Decision3dated March 17, 1993 of the Regional Trial
standard of care and degree of diligence required from Court (RTC), Branch 96, Quezon City in Civil Case No.
physicians and surgeons in Iligan City. Q-43322 and nullifying its Order dated September 21,
1993.
The facts, as culled from the records, are: Dr. Ampil’s assurance did not come true. Instead, the
pains intensified, prompting Natividad to seek treatment
On April 4, 1984, Natividad Agana was rushed to the at the Polymedic General Hospital. While confined there,
Medical City General Hospital (Medical City Hospital) Dr. Ramon Gutierrez detected the presence of another
because of difficulty of bowel movement and bloody anal foreign object in her vagina -- a foul-smelling gauze
discharge. After a series of medical examinations, Dr. measuring 1.5 inches in width which badly infected her
Miguel Ampil, petitioner in G.R. No. 127590, diagnosed vaginal vault. A recto-vaginal fistula had formed in her
her to be suffering from "cancer of the sigmoid." reproductive organs which forced stool to excrete
through the vagina. Another surgical operation was
needed to remedy the damage. Thus, in October 1984,
On April 11, 1984, Dr. Ampil, assisted by the medical
Natividad underwent another surgery.
staff4 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 On November 12, 1984, Natividad and her husband filed
ovary, necessitating the removal of certain portions of it. with the RTC, Branch 96, Quezon City a complaint for
Thus, Dr. Ampil obtained the consent of Natividad’s damages against the Professional Services, Inc. (PSI),
husband, Enrique Agana, to permit Dr. Juan Fuentes, owner of the Medical City Hospital, Dr. Ampil, and Dr.
respondent in G.R. No. 126467, to perform hysterectomy Fuentes, docketed as Civil Case No. Q-43322. They
on her. alleged that the latter are liable for negligence for leaving
two pieces of gauze inside Natividad’s body and
After Dr. Fuentes had completed the hysterectomy, Dr. malpractice for concealing their acts of negligence.
Ampil took over, completed the operation and closed the
incision. Meanwhile, Enrique Agana also filed with the
Professional Regulation Commission (PRC) an
However, the operation appeared to be flawed. In the administrative complaint for gross negligence and
malpractice against Dr. Ampil and Dr. Fuentes, docketed
corresponding Record of Operation dated April 11, 1984,
as Administrative Case No. 1690. The PRC Board of
the attending nurses entered these remarks:
Medicine heard the case only with respect to Dr.
Fuentes because it failed to acquire jurisdiction over Dr.
"sponge count lacking 2 Ampil who was then in the United States.

"announced to surgeon searched (sic) done but to no On February 16, 1986, pending the outcome of the
avail continue for closure." above cases, Natividad died and was duly substituted by
her above-named children (the Aganas).
On April 24, 1984, Natividad was released from the
hospital. Her hospital and medical bills, including the On March 17, 1993, the RTC rendered its Decision in
doctors’ fees, amounted to P60,000.00. favor of the Aganas, finding PSI, Dr. Ampil and Dr.
Fuentes liable for negligence and malpractice, the
After a couple of days, Natividad complained of decretal part of which reads:
excruciating pain in her anal region. She consulted both
Dr. Ampil and Dr. Fuentes about it. They told her that the WHEREFORE, judgment is hereby rendered for the
pain was the natural consequence of the surgery. Dr. plaintiffs ordering the defendants PROFESSIONAL
Ampil then recommended that she consult an oncologist SERVICES, INC., DR. MIGUEL AMPIL and DR. JUAN
to examine the cancerous nodes which were not FUENTES to pay to the plaintiffs, jointly and severally,
removed during the operation. except in respect of the award for exemplary damages
and the interest thereon which are the liabilities of
On May 9, 1984, Natividad, accompanied by her defendants Dr. Ampil and Dr. Fuentes only, as follows:
husband, went to the United States to seek further
treatment. After four months of consultations and 1. As actual damages, the following amounts:
laboratory examinations, Natividad was told she was
free of cancer. Hence, she was advised to return to the
a. The equivalent in Philippine Currency
Philippines.
of the total of US$19,900.00 at the rate
of P21.60-US$1.00, as reimbursement
On August 31, 1984, Natividad flew back to the of actual expenses incurred in the
Philippines, still suffering from pains. Two weeks United States of America;
thereafter, her daughter found a piece of gauze
protruding from her vagina. Upon being informed about
b. The sum of P4,800.00 as travel taxes
it, Dr. Ampil proceeded to her house where he managed
of plaintiffs and their physician daughter;
to extract by hand a piece of gauze measuring 1.5
inches in width. He then assured her that the pains
would soon vanish. c. The total sum of P45,802.50,
representing the cost of hospitalization
at Polymedic Hospital, medical fees, WHEREFORE, except for the modification that the case
and cost of the saline solution; against defendant-appellant Dr. Juan Fuentes is hereby
DISMISSED, and with the pronouncement that
2. As moral damages, the sum of defendant-appellant Dr. Miguel Ampil is liable to
P2,000,000.00; reimburse defendant-appellant Professional Services,
Inc., whatever amount the latter will pay or had paid to
the plaintiffs-appellees, the decision appealed from is
3. As exemplary damages, the sum of
P300,000.00; hereby AFFIRMED and the instant appeal DISMISSED.

Concomitant with the above, the petition for certiorari


4. As attorney’s fees, the sum of P250,000.00;
and prohibition filed by herein defendant-appellant Dr.
Juan Fuentes in CA-G.R. SP No. 32198 is hereby
5. Legal interest on items 1 (a), (b), and (c); 2; GRANTED and the challenged order of the respondent
and 3 hereinabove, from date of filing of the judge dated September 21, 1993, as well as the alias
complaint until full payment; and writ of execution issued pursuant thereto are hereby
NULLIFIED and SET ASIDE. The bond posted by the
6. Costs of suit. petitioner in connection with the writ of preliminary
injunction issued by this Court on November 29, 1993 is
SO ORDERED. hereby cancelled.

Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an Costs against defendants-appellants Dr. Miguel Ampil
appeal to the Court of Appeals, docketed as CA-G.R. CV and Professional Services, Inc.
No. 42062.
SO ORDERED.
Incidentally, on April 3, 1993, the Aganas filed with the
RTC a motion for a partial execution of its Decision, Only Dr. Ampil filed a motion for reconsideration, but it
which was granted in an Order dated May 11, 1993. was denied in a Resolution7 dated December 19, 1996.
Thereafter, the sheriff levied upon certain properties of
Dr. Ampil and sold them for P451,275.00 and delivered Hence, the instant consolidated petitions.
the amount to the Aganas.
In G.R. No. 126297, PSI alleged in its petition that the
Following their receipt of the money, the Aganas entered Court of Appeals erred in holding that: (1) it is estopped
into an agreement with PSI and Dr. Fuentes to from raising the defense that Dr. Ampil is not its
indefinitely suspend any further execution of the RTC employee; (2) it is solidarily liable with Dr. Ampil; and (3)
Decision. However, not long thereafter, the Aganas it is not entitled to its counterclaim against the Aganas.
again filed a motion for an alias writ of execution against PSI contends that Dr. Ampil is not its employee, but a
the properties of PSI and Dr. Fuentes. On September mere consultant or independent contractor. As such, he
21, 1993, the RTC granted the motion and issued the alone should answer for his negligence.
corresponding writ, prompting Dr. Fuentes to file with the
Court of Appeals a petition for certiorari and prohibition,
In G.R. No. 126467, the Aganas maintain that the Court
with prayer for preliminary injunction, docketed as CA-
of Appeals erred in finding that Dr. Fuentes is not guilty
G.R. SP No. 32198. During its pendency, the Court of
Appeals issued a Resolution5 dated October 29, 1993 of negligence or medical malpractice, invoking the
granting Dr. Fuentes’ prayer for injunctive relief. doctrine of res ipsa loquitur. They contend that the
pieces of gauze are prima facie proofs that the operating
surgeons have been negligent.
On January 24, 1994, CA-G.R. SP No. 32198 was
consolidated with CA-G.R. CV No. 42062.
Finally, in G.R. No. 127590, Dr. Ampil asserts that the
Court of Appeals erred in finding him liable for
Meanwhile, on January 23, 1995, the PRC Board of negligence and malpractice sans evidence that he left
Medicine rendered its Decision6 in Administrative Case the two pieces of gauze in Natividad’s vagina. He
No. 1690 dismissing the case against Dr. Fuentes. The pointed to other probable causes, such as: (1) it was Dr.
Board held that the prosecution failed to show that Dr. Fuentes who used gauzes in performing the
Fuentes was the one who left the two pieces of gauze hysterectomy; (2) the attending nurses’ failure to
inside Natividad’s body; and that he concealed such fact properly count the gauzes used during surgery; and (3)
from Natividad. the medical intervention of the American doctors who
examined Natividad in the United States of America.
On September 6, 1996, the Court of Appeals rendered
its Decision jointly disposing of CA-G.R. CV No. 42062 For our resolution are these three vital issues: first,
and CA-G.R. SP No. 32198, thus: 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 Of course, the Court is not blind to the reality that there
any liability; and third, whether PSI may be held are times when danger to a patient’s life precludes a
solidarily liable for the negligence of Dr. Ampil. surgeon from further searching missing sponges or
foreign objects left in the body. But this does not leave
I - G.R. No. 127590 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 patient’s abdomen,
Whether the Court of Appeals Erred in Holding Dr. Ampil
because of the dangers attendant upon delay, still, it is
his legal duty to so inform his patient within a reasonable
Liable for Negligence and Malpractice. time thereafter by advising her of what he had been
compelled to do. This is in order that she might seek
Dr. Ampil, in an attempt to absolve himself, gears the relief from the effects of the foreign object left in her
Court’s attention to other possible causes of Natividad’s body as her condition might permit. The ruling in Smith
detriment. He argues that the Court should not discount v. Zeagler10 is explicit, thus:
either of the following possibilities: first, Dr. Fuentes left
the gauzes in Natividad’s body after performing The removal of all sponges used is part of a surgical
hysterectomy; second, the attending nurses erred in operation, and when a physician or surgeon fails to
counting the gauzes; and third, the American doctors remove a sponge he has placed in his patient’s body
were the ones who placed the gauzes in Natividad’s that should be removed as part of the operation, he
body. thereby leaves his operation uncompleted and creates a
new condition which imposes upon him the legal duty of
Dr. Ampil’s arguments are purely conjectural and without calling the new condition to his patient’s attention, and
basis. Records show that he did not present any endeavoring with the means he has at hand to minimize
evidence to prove that the American doctors were the and avoid untoward results likely to ensue therefrom.
ones who put or left the gauzes in Natividad’s body.
Neither did he submit evidence to rebut the correctness Here, Dr. Ampil did not inform Natividad about the
of the record of operation, particularly the number of missing two pieces of gauze. Worse, he even misled her
gauzes used. As to the alleged negligence of Dr. that the pain she was experiencing was the ordinary
Fuentes, we are mindful that Dr. Ampil examined his (Dr. consequence of her operation. Had he been more
Fuentes’) work and found it in order. candid, Natividad could have taken the immediate and
appropriate medical remedy to remove the gauzes from
The glaring truth is that all the major circumstances, her body. To our mind, what was initially an act of
taken together, as specified by the Court of Appeals, negligence by Dr. Ampil has ripened into a deliberate
directly point to Dr. Ampil as the negligent party, thus: wrongful act of deceiving his patient.

First, it is not disputed that the surgeons used This is a clear case of medical malpractice or more
gauzes as sponges to control the bleeding of the appropriately, medical negligence. To successfully
patient during the surgical operation. pursue this kind of case, a patient must only prove that a
health care provider either failed to do something which
Second, immediately after the operation, the a reasonably prudent health care provider would have
nurses who assisted in the surgery noted in their done, or that he did something that a reasonably prudent
report that the ‘sponge count (was) lacking 2’; provider would not have done; and that failure or action
that such anomaly was ‘announced to surgeon’ caused injury to the patient.11 Simply put, the elements
and that a ‘search was done but to no avail’ are duty, breach, injury and proximate causation. Dr,
prompting Dr. Ampil to ‘continue for closure’ x x Ampil, as the lead surgeon, had the duty to remove all
x. foreign objects, such as gauzes, from Natividad’s body
before closure of the incision. When he failed to do so, it
Third, after the operation, two (2) gauzes were was his duty to inform Natividad about it. Dr. Ampil
extracted from the same spot of the body of Mrs. breached both duties. Such breach caused injury to
Agana where the surgery was performed. Natividad, necessitating her further examination by
American doctors and another surgery. That Dr. Ampil’s
negligence is the proximate cause12 of Natividad’s injury
An operation requiring the placing of sponges in the
could be traced from his act of closing the incision
incision is not complete until the sponges are properly
despite the information given by the attending nurses
removed, and it is settled that the leaving of sponges or
that two pieces of gauze were still missing. That they
other foreign substances in the wound after the incision
were later on extracted from Natividad’s vagina
has been closed is at least prima facie negligence by the
established the causal link between Dr. Ampil’s
operating surgeon.8 To put it simply, such act is
negligence and the injury. And what further aggravated
considered so inconsistent with due care as to raise an
such injury was his deliberate concealment of the
inference of negligence. There are even legions of
missing gauzes from the knowledge of Natividad and her
authorities to the effect that such act is negligence per
family.
se.9
II - G.R. No. 126467 gauzes were not found. Dr. Ampil then directed that the
incision be closed. During this entire period, Dr. Fuentes
Whether the Court of Appeals Erred in Absolving was no longer in the operating room and had, in fact, left
the hospital.
Dr. Fuentes of any Liability
Under the "Captain of the Ship" rule, the operating
The Aganas assailed the dismissal by the trial court of surgeon is the person in complete charge of the surgery
the case against Dr. Fuentes on the ground that it is room and all personnel connected with the operation.
Their duty is to obey his orders.16 As stated before, Dr.
contrary to the doctrine of res ipsa loquitur. According to
Ampil was the lead surgeon. In other words, he was the
them, the fact that the two pieces of gauze were left
"Captain of the Ship." That he discharged such role is
inside Natividad’s body is a prima facie evidence of Dr.
evident from his following conduct: (1) calling Dr.
Fuentes’ negligence.
Fuentes to perform a hysterectomy; (2) examining the
work of Dr. Fuentes and finding it in order; (3) granting
We are not convinced. Dr. Fuentes’ permission to leave; and (4) ordering the
closure of the incision. To our mind, it was this act of
Literally, res ipsa loquitur means "the thing speaks for ordering the closure of the incision notwithstanding that
itself." It is the rule that the fact of the occurrence of an two pieces of gauze remained unaccounted for, that
injury, taken with the surrounding circumstances, may caused injury to Natividad’s body. Clearly, the control
permit an inference or raise a presumption of and management of the thing which caused the injury
negligence, or make out a plaintiff’s prima facie case, was in the hands of Dr. Ampil, not Dr. Fuentes.
and present a question of fact for defendant to meet with
an explanation.13 Stated differently, where the thing In this jurisdiction, res ipsa loquitur is not a rule of
which caused the injury, without the fault of the injured, substantive law, hence, does not per se create or
is under the exclusive control of the defendant and the constitute an independent or separate ground of liability,
injury is such that it should not have occurred if he, being a mere evidentiary rule.17 In other words, mere
having such control used proper care, it affords invocation and application of the doctrine does not
reasonable evidence, in the absence of explanation that dispense with the requirement of proof of negligence.
the injury arose from the defendant’s want of care, and Here, the negligence was proven to have been
the burden of proof is shifted to him to establish that he committed by Dr. Ampil and not by Dr. Fuentes.
has observed due care and diligence.14
III - G.R. No. 126297
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 Whether PSI Is Liable for the Negligence of Dr. Ampil
caused the injury was under the control and
management of the defendant; (3) the occurrence was The third issue necessitates a glimpse at the historical
such that in the ordinary course of things, would not development of hospitals and the resulting theories
have happened if those who had control or management concerning their liability for the negligence of physicians.
used proper care; and (4) the absence of explanation by
the defendant. Of the foregoing requisites, the most Until the mid-nineteenth century, hospitals were
instrumental is the "control and management of the thing generally charitable institutions, providing medical
which caused the injury."15 services to the lowest classes of society, without regard
for a patient’s ability to pay.18 Those who could afford
We find the element of "control and management of the medical treatment were usually treated at home by their
thing which caused the injury" to be wanting. Hence, the doctors.19 However, the days of house calls and
doctrine of res ipsa loquitur will not lie. philanthropic health care are over. The modern health
care industry continues to distance itself from its
charitable past and has experienced a significant
It was duly established that Dr. Ampil was the lead
surgeon during the operation of Natividad. He requested conversion from a not-for-profit health care to for-profit
hospital businesses. Consequently, significant changes
the assistance of Dr. Fuentes only to perform
in health law have accompanied the business-related
hysterectomy when he (Dr. Ampil) found that the
changes in the hospital industry. One important legal
malignancy in her sigmoid area had spread to her left
change is an increase in hospital liability for medical
ovary. Dr. Fuentes performed the surgery and thereafter
reported and showed his work to Dr. Ampil. The latter malpractice. Many courts now allow claims for hospital
examined it and finding everything to be in order, vicarious liability under the theories of respondeat
superior, apparent authority, ostensible authority, or
allowed Dr. Fuentes to leave the operating room. Dr.
agency by estoppel. 20
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 In this jurisdiction, the statute governing liability for
"diligent search" was conducted, but the misplaced negligent acts is Article 2176 of the Civil Code, which
reads:
Art. 2176. Whoever by act or omission causes damage when a doctor practices medicine in a hospital setting,
to another, there being fault or negligence, is obliged to the hospital and its employees are deemed to subserve
pay for the damage done. Such fault or negligence, if him in his ministrations to the patient and his actions are
there is no pre-existing contractual relation between the of his own responsibility.25
parties, is called a quasi-delict and is governed by the
provisions of this Chapter. The case of Schloendorff v. Society of New York
Hospital26 was then considered an authority for this view.
A derivative of this provision is Article 2180, the rule The "Schloendorff doctrine" regards a physician, even if
governing vicarious liability under the doctrine of employed by a hospital, as an independent contractor
respondeat superior, thus: because of the skill he exercises and the lack of control
exerted over his work. Under this doctrine, hospitals are
ART. 2180. The obligation imposed by Article 2176 is exempt from the application of the respondeat superior
demandable not only for one’s own acts or omissions, principle for fault or negligence committed by physicians
but also for those of persons for whom one is in the discharge of their profession.
responsible.
However, the efficacy of the foregoing doctrine has
x x x x weakened with the significant developments in medical
x x 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
The owners and managers of an establishment or
hospital’s functions limited to furnishing room, food,
enterprise are likewise responsible for damages caused
facilities for treatment and operation, and attendants for
by their employees in the service of the branches in
its patients. Thus, in Bing v. Thunig,27 the New York
which the latter are employed or on the occasion of their
functions. Court of Appeals deviated from the Schloendorff
doctrine, noting that modern hospitals actually do far
more than provide facilities for treatment. Rather, they
Employers shall be liable for the damages caused by regularly employ, on a salaried basis, a large staff of
their employees and household helpers acting within the physicians, interns, nurses, administrative and manual
scope of their assigned tasks even though the former workers. They charge patients for medical care and
are not engaged in any business or industry. treatment, even collecting for such services through
legal action, if necessary. The court then concluded that
x x x x there is no reason to exempt hospitals from the universal
x x rule of respondeat superior.

The responsibility treated of in this article shall cease In our shores, the nature of the relationship between the
when the persons herein mentioned prove that they hospital and the physicians is rendered inconsequential
observed all the diligence of a good father of a family to in view of our categorical pronouncement in Ramos v.
prevent damage. Court of Appeals28 that for purposes of apportioning
responsibility in medical negligence cases, an employer-
A prominent civilist commented that professionals employee relationship in effect exists between hospitals
engaged by an employer, such as physicians, dentists, and their attending and visiting physicians. This Court
and pharmacists, are not "employees" under this article held:
because the manner in which they perform their work is
not within the control of the latter (employer). In other "We now discuss the responsibility of the hospital in this
words, professionals are considered personally liable for particular incident. The unique practice (among private
the fault or negligence they commit in the discharge of hospitals) of filling up specialist staff with attending and
their duties, and their employer cannot be held liable for visiting "consultants," who are allegedly not hospital
such fault or negligence. In the context of the present employees, presents problems in apportioning
case, "a hospital cannot be held liable for the fault or responsibility for negligence in medical malpractice
negligence of a physician or surgeon in the treatment or cases. However, the difficulty is more apparent than real.
operation of patients."21
In the first place, hospitals exercise significant control in
The foregoing view is grounded on the traditional notion the hiring and firing of consultants and in the conduct of
that the professional status and the very nature of the their work within the hospital premises. Doctors who
physician’s calling preclude him from being classed as apply for ‘consultant’ slots, visiting or attending, are
an agent or employee of a hospital, whenever he acts in required to submit proof of completion of residency, their
a professional capacity.22 It has been said that medical educational qualifications, generally, evidence of
practice strictly involves highly developed and accreditation by the appropriate board (diplomate),
specialized knowledge,23 such that physicians are evidence of fellowship in most cases, and references.
generally free to exercise their own skill and judgment in These requirements are carefully scrutinized by
rendering medical services sans interference.24 Hence, members of the hospital administration or by a review
committee set up by the hospital who either accept or such a situation that a person of ordinary prudence,
reject the application. x x x. conversant with business usages and the nature of the
particular business, is justified in presuming that such
After a physician is accepted, either as a visiting or agent has authority to perform the particular act in
attending consultant, he is normally required to attend question.31
clinico-pathological conferences, conduct bedside
rounds for clerks, interns and residents, moderate grand The applicability of apparent authority in the field of
rounds and patient audits and perform other tasks and hospital liability was upheld long time ago in Irving v.
responsibilities, for the privilege of being able to maintain Doctor Hospital of Lake Worth, Inc.32 There, it was
a clinic in the hospital, and/or for the privilege of explicitly stated that "there does not appear to be any
admitting patients into the hospital. In addition to these, rational basis for excluding the concept of apparent
the physician’s performance as a specialist is generally authority from the field of hospital liability." Thus, in
evaluated by a peer review committee on the basis of cases where it can be shown that a hospital, by its
mortality and morbidity statistics, and feedback from actions, has held out a particular physician as its agent
patients, nurses, interns and residents. A consultant and/or employee and that a patient has accepted
remiss in his duties, or a consultant who regularly falls treatment from that physician in the reasonable belief
short of the minimum standards acceptable to the that it is being rendered in behalf of the hospital, then the
hospital or its peer review committee, is normally politely hospital will be liable for the physician’s negligence.
terminated.
Our jurisdiction recognizes the concept of an agency by
In other words, private hospitals, hire, fire and exercise implication or estoppel. Article 1869 of the Civil Code
real control over their attending and visiting ‘consultant’ reads:
staff. While ‘consultants’ are not, technically employees,
x x x, the control exercised, the hiring, and the right to ART. 1869. Agency may be express, or implied from the
terminate consultants all fulfill the important hallmarks of acts of the principal, from his silence or lack of action, or
an employer-employee relationship, with the exception his failure to repudiate the agency, knowing that another
of the payment of wages. In assessing whether such a person is acting on his behalf without authority.
relationship in fact exists, the control test is determining.
Accordingly, on the basis of the foregoing, we rule that In this case, PSI publicly displays in the lobby of the
for the purpose of allocating responsibility in medical Medical City Hospital the names and specializations of
negligence cases, an employer-employee relationship in
the physicians associated or accredited by it, including
effect exists between hospitals and their attending and
those of Dr. Ampil and Dr. Fuentes. We concur with the
visiting physicians. "
Court of Appeals’ conclusion that it "is now estopped
from passing all the blame to the physicians whose
But the Ramos pronouncement is not our only basis in names it proudly paraded in the public directory leading
sustaining PSI’s liability. Its liability is also anchored the public to believe that it vouched for their skill and
upon the agency principle of apparent authority or competence." Indeed, PSI’s act is tantamount to holding
agency by estoppel and the doctrine of corporate out to the public that Medical City Hospital, through its
negligence which have gained acceptance in the accredited physicians, offers quality health care
determination of a hospital’s liability for negligent acts of services. By accrediting Dr. Ampil and Dr. Fuentes and
health professionals. The present case serves as a publicly advertising their qualifications, the hospital
perfect platform to test the applicability of these created the impression that they were its agents,
doctrines, thus, enriching our jurisprudence. authorized to perform medical or surgical services for its
patients. As expected, these patients, Natividad being
Apparent authority, or what is sometimes referred to as one of them, accepted the services on the reasonable
the "holding belief that such were being rendered by the hospital or
its employees, agents, or servants. The trial court
out" theory, or doctrine of ostensible agency or agency correctly pointed out:
by estoppel,29 has its origin from the law of agency. It
imposes liability, not as the result of the reality of a x x x regardless of the education and status in life of the
contractual relationship, but rather because of the patient, he ought not be burdened with the defense of
actions of a principal or an employer in somehow absence of employer-employee relationship between the
misleading the public into believing that the relationship hospital and the independent physician whose name and
or the authority exists.30 The concept is essentially one competence are certainly certified to the general public
of estoppel and has been explained in this manner: by the hospital’s act of listing him and his specialty in its
lobby directory, as in the case herein. The high costs of
"The principal is bound by the acts of his agent with the today’s medical and health care should at least exact on
apparent authority which he knowingly permits the agent the hospital greater, if not broader, legal responsibility for
to assume, or which he holds the agent out to the public the conduct of treatment and surgery within its facility by
as possessing. The question in every case is whether its accredited physician or surgeon, regardless of
the principal has by his voluntary act placed the agent in whether he is independent or employed."33
The wisdom of the foregoing ratiocination is easy to Misevich,39 it was held that a hospital, following the
discern. Corporate entities, like PSI, are capable of doctrine of corporate responsibility, has the duty to see
acting only through other individuals, such as physicians. that it meets the standards of responsibilities for the care
If these accredited physicians do their job well, the of patients. Such duty includes the proper supervision of
hospital succeeds in its mission of offering quality the members of its medical staff. And in Bost v.
medical services and thus profits financially. Logically, Riley,40 the court concluded that a patient who enters a
where negligence mars the quality of its services, the hospital does so with the reasonable expectation that it
hospital should not be allowed to escape liability for the will attempt to cure him. The hospital accordingly has the
acts of its ostensible agents. duty to make a reasonable effort to monitor and oversee
the treatment prescribed and administered by the
We now proceed to the doctrine of corporate negligence physicians practicing in its premises.
or corporate responsibility.
In the present case, it was duly established that PSI
One allegation in the complaint in Civil Case No. Q- operates the Medical City Hospital for the purpose and
43332 for negligence and malpractice is that PSI as under the concept of providing comprehensive medical
owner, operator and manager of Medical City Hospital, services to the public. Accordingly, it has the duty to
"did not perform the necessary supervision nor exercise exercise reasonable care to protect from harm all
diligent efforts in the supervision of Drs. Ampil and patients admitted into its facility for medical treatment.
Fuentes and its nursing staff, resident doctors, and Unfortunately, PSI failed to perform such duty. The
medical interns who assisted Drs. Ampil and Fuentes in findings of the trial court are convincing, thus:
the performance of their duties as surgeons."34 Premised
on the doctrine of corporate negligence, the trial court x x x PSI’s liability is traceable to its failure to conduct an
held that PSI is directly liable for such breach of duty. investigation of the matter reported in the nota bene of
the count nurse. Such failure established PSI’s part in
We agree with the trial court. 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
Recent years have seen the doctrine of corporate
events, if not for the benefit of the patient to whom the
negligence as the judicial answer to the problem of
allocating hospital’s liability for the negligent acts of duty is primarily owed, then in the interest of arriving at
health practitioners, absent facts to support the the truth. The Court cannot accept that the medical and
the healing professions, through their members like
application of respondeat superior or apparent authority.
defendant surgeons, and their institutions like PSI’s
Its formulation proceeds from the judiciary’s
hospital facility, can callously turn their backs on and
acknowledgment that in these modern times, the duty of
disregard even a mere probability of mistake or
providing quality medical service is no longer the sole
prerogative and responsibility of the physician. The negligence by refusing or failing to investigate a report of
modern hospitals have changed structure. Hospitals now such seriousness as the one in Natividad’s case.
tend to organize a highly professional medical staff
whose competence and performance need to be It is worthy to note that Dr. Ampil and Dr. Fuentes
monitored by the hospitals commensurate with their operated on Natividad with the assistance of the Medical
inherent responsibility to provide quality medical care.35 City Hospital’s staff, composed of resident doctors,
nurses, and interns. As such, it is reasonable to
conclude that PSI, as the operator of the hospital, has
The doctrine has its genesis in Darling v. Charleston
actual or constructive knowledge of the procedures
Community Hospital.36 There, the Supreme Court of
carried out, particularly the report of the attending nurses
Illinois held that "the jury could have found a hospital
that the two pieces of gauze were missing. In Fridena v.
negligent, inter alia, in failing to have a sufficient number
of trained nurses attending the patient; failing to require Evans,41 it was held that a corporation is bound by the
knowledge acquired by or notice given to its agents or
a consultation with or examination by members of the
officers within the scope of their authority and in
hospital staff; and failing to review the treatment
reference to a matter to which their authority extends.
rendered to the patient." On the basis of Darling, other
This means that the knowledge of any of the staff of
jurisdictions held that a hospital’s corporate negligence
extends to permitting a physician known to be Medical City Hospital constitutes knowledge of PSI.
incompetent to practice at the hospital.37 With the Now, the failure of PSI, despite the attending nurses’
report, to investigate and inform Natividad regarding the
passage of time, more duties were expected from
missing gauzes amounts to callous negligence. Not only
hospitals, among them: (1) the use of reasonable care in
did PSI breach its duties to oversee or supervise all
the maintenance of safe and adequate facilities and
persons who practice medicine within its walls, it also
equipment; (2) the selection and retention of competent
physicians; (3) the overseeing or supervision of all failed to take an active step in fixing the negligence
persons who practice medicine within its walls; and (4) committed. This renders PSI, not only vicariously liable
for the negligence of Dr. Ampil under Article 2180 of the
the formulation, adoption and enforcement of adequate
Civil Code, but also directly liable for its own negligence
rules and policies that ensure quality care for its
patients.38 Thus, in Tucson Medical Center, Inc. v.
under Article 2176. In Fridena, the Supreme Court of certain obligations. In order to escape liability, he must
Arizona held: possess that reasonable degree of learning, skill and
experience required by his profession. At the same time,
x x x In recent years, however, the duty of care owed to he must apply reasonable care and diligence in the
the patient by the hospital has expanded. The emerging exercise of his skill and the application of his knowledge,
trend is to hold the hospital responsible where the and exert his best judgment.
hospital has failed to monitor and review medical
services being provided within its walls. See Kahn WHEREFORE, we DENY all the petitions and AFFIRM
Hospital Malpractice Prevention, 27 De Paul . Rev. 23 the challenged Decision of the Court of Appeals in CA-
(1977). G.R. CV No. 42062 and CA-G.R. SP No. 32198.

Among the cases indicative of the ‘emerging trend’ is Costs against petitioners PSI and Dr. Miguel Ampil.
Purcell v. Zimbelman, 18 Ariz. App. 75,500 P. 2d 335
(1972). In Purcell, the hospital argued that it could not be SO ORDERED.
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
patient’s 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 hospital’s
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