1.

Leonila Garcia-Rueda vs. Wilfredo Pascasio

G.R. No. 118141. September 5, 1997

FACTS:

Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent surgical

operation at the UST hospital for the removal of a stone blocking his ureter. He was
attended by Dr. Domingo Antonio, Jr. who was the surgeon, while Dr. Erlinda
Balatbat-Reyes was the anesthesiologist. Six hours after the surgery, however, Florencio
died of complications of unknown cause, according to officials of the UST Hospital.
Petitioner requested the National Bureau of Investigation (NBI) to conduct an autopsy
on her husband’s body and the NBI ruled that Florencio’s death was due to lack of care
by the attending physician in administering anesthesia and the NBI recommended that
Dr. Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged for Homicide
through Reckless Imprudence before the Office of the City Prosecutor.

The case was assigned to the nine prosecutors in succession due to various reasons and
the final prosecutors, Senior State Prosecutor Arizala, resolved to exonerate Dr. Reyes
from any wrongdoing, a resolution which was approved by both City Prosecutor
Macaraeg and City Prosecutor Guerrero. Aggrieved, petitioner filed graft charges
specifically for violation of Section 3(e) of Republic Act No. 3019 against Prosecutors
Guerrero, Macaraeg, and Arizala for manifest partiality in favor of Dr. Reyes before the
Office of the Ombudsman. However, on July 11, 1994, the Ombudsman issued the
assailed resolution dismissing the complaint for lack of evidence.

ISSUE:

Whether the Ombudsman committed grave abuse of discretion in refusing to find that
there exists probable cause to hold public respondent City Prosecutors liable for
violation of Section 3(e) of R.A. No. 3019?

HELD:

NO, petition is DISMISSED, without prejudice to the filing of an appeal by the

petitioner with the Secretary of Justice assailing the dismissal of her criminal complaint
by the respondent City Prosecutors.
As protector of the people, the Office of the Ombudsman has the power, function and
duty to act promptly on complaints filed in any form or manner against public officials
and to investigate any act or omission of any public official when such act or omission
appears to be illegal, unjust, improper or inefficient. In the instant case, no less than the
NBI pronounced after conducting an autopsy that there was indeed negligence on the
part of the attending physicians in administering the anesthesia. The fact of want of
competence or diligence is evidentiary in nature. Clearly, the City Prosecutors are not
in a competent position to pass judgment on such a technical matter, especially when
there are conflicting evidence and findings.

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

Hence, there are four elements involved in medical negligence cases: duty, breach, injury
and proximate causation. Evidently, when the victim employed the services of Dr.
Antonio and Dr. Reyes, a physician-patient relationship was created. In accepting the
case, Dr. Antonio and Dr. Reyes in effect represented that, having the needed training
and skill possessed by physicians and surgeons practicing in the same field, they will
employ such training, care and skill in the treatment of their patients. They have a duty
to use at least the same level of care that any other reasonably competent doctor would
use to treat a condition under the same circumstances. The breach of these professional
duties of skill and care, or their improper performance, by a physician surgeon whereby
the patient is injured in body or in health, constitutes actionable malpractice.
Consequently, in the event that any injury results to the patient from want of due care
or skill during the operation, the surgeons may be held answerable in damages for
negligence.

Moreover, in malpractice or negligence cases involving the administration of anesthesia,

the necessity of expert testimony and the availability of the charge of res ipsa loquitur to
the plaintiff, have been applied in actions against anesthesiologists to hold the defendant
liable for the death or injury of a patient under excessive or improper anesthesia.
Essentially, it requires two-pronged evidence: evidence as to the recognized standards
of the medical community in the particular kind of case, and a showing that the
physician in question negligently departed from this standard in his treatment.
Another element in medical negligence cases is causation which is divided into two
inquiries: whether the doctor’s actions in fact caused the harm to the patient and
whether these were the proximate cause of the patient’s injury. Indeed here, a causal
connection is discernible from the occurrence of the victim’s death after the negligent
act of the anesthesiologist in administering the anesthesia, a fact which, if confirmed,
should warrant the filing of the appropriate criminal case. To be sure, the allegation of
negligence is not entirely baseless. Moreover, the NBI deduced that the attending
surgeons did not conduct the necessary interview of the patient prior to the operation.
It appears that the cause of the death of the victim could have been averted had the
proper drug been applied to cope with the symptoms of malignant hyperthermia. Also,
we cannot ignore the fact that an antidote was readily available to counteract whatever
deleterious effect the anesthesia might produce.

To our mind, the better and more logical remedy under the circumstances would have
been to appeal the resolution of the City Prosecutors dismissing the criminal complaint
to the Secretary of Justice under the Department of Justices Order No. 223, otherwise
known as the 1993 Revised Rules on Appeals From Resolutions In Preliminary
Investigations/ Reinvestigations. In exercising his discretion under the circumstances,
the Ombudsman acted within his power and authority in dismissing the complaint
against the Prosecutors and this Court will not interfere with the same.

LEONILA GARCIA-RUEDA, petitioner, vs. WILFREDO L. PASCASIO, RAUL

R. ARNAU, ABELARDO L. APORTADERA JR., Honorable CONDRADO M.
VASQUEZ, all of the Office of the Ombudsman; JESUS F. GUERRERO,
PORFIRIO MACARAEG, and GREGORIO A. ARIZALA, all of the Office of the
City Prosecutor, Manila, respondents.

G.R. No. 118141. September 5, 1997

Facts:

Florencio V. Rueda, husband of petitioner Leonila Garcia-Rueda, underwent

surgical operation at the UST hospital for the removal of a stone blocking his ureter.
He was attended by Dr. Domingo Antonio, Jr. who was the surgeon, while Dr.
Erlinda Balatbat-Reyes was the anaesthesiologist. Six hours after the surgery,
however, Florencio died of complications of “unknown cause,” according to
officials of the UST Hospital.

Not satisfied with the findings of the hospital, petitioner requested the National
Bureau of Investigation (NBI) to conduct an autopsy on her husband’s body.
Consequently, the NBI ruled that Florencio’s death was due to lack of care by the
attending physician in administering anaesthesia. Pursuant to its findings, the NBI
recommended that Dr. Domingo Antonio and Dr. Erlinda Balatbat-Reyes be charged
for Homicide through Reckless Imprudence before the Office of the City Prosecutor.

Issue:

a. (1) Whether or not Dr. Domingo Antonio and Dr. Erlinda Balatbat-Reyes should
be charged for Homicide through Reckless Imprudence before the Office of
the City Prosecutor. 


b. (2) Whether or not a medical malpractice committed by Dr. Domingo Antonio

and Dr. Erlinda Balatbat-Reyes indeed transpired. 


Held:

(1) No. In this instant case, no less than the NBI pronounced after conducting an
autopsy that there was indeed negligence on the part of the attending physicians in
administering the anaesthesia. The fact of want of competence or diligence is
evidentiary in nature, the veracity of which can best be passed upon after a full-
blown trial for it is virtually impossible to ascertain the merits of a medical
negligence case without extensive investigation, research, evaluation and
consultations with medical experts. Clearly, the City Prosecutors are not in a
competent position to pass judgment on such a technical matter, especially when
there are conflicting evidence and findings. The bases of a party’s accusation and
defenses are better ventilated at the trial proper than at the preliminary investigation.

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

Hence, there are four elements involved in medical negligence cases: duty, breach,
injury and proximate causation.
Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a
physician-patient relationship was created. In accepting the case, Dr. Antonio and
Dr. Reyes in effect represented that, having the needed training and skill possessed
by physicians and surgeons practicing in the same field, they will employ such
training, care and skill in the treatment of their patients. They have a duty to use at
least the same level of care that any other reasonably competent doctor would use to
treat a condition under the same circumstances. The breach of these professional
duties of skill and care, or their improper performance, by a physician surgeon
whereby the patient is injured in body or in health, constitutes actionable
malpractice. Consequently, in the event that any injury results to the patient from
want of due care or skill during the operation, the surgeons may be held answerable
in damages for negligence.

Moreover, in malpractice or negligence cases involving the administration of

anesthesia, the necessity of expert testimony and the availability of the charge of res
ipsa loquitur to the plaintiff, have been applied in actions against anesthesiologists
to hold the defendant liable for the death or injury of a patient under excessive or
improper anesthesia. Essentially, it requires two-pronged evidence: evidence as to
the recognized standards of the medical community in the particular kind of case,
and a showing that the physician in question negligently departed from this standard
in his treatment.

Another element in medical negligence cases is causation which is divided into two
inquiries: whether the doctor’s actions in fact caused the harm to the patient and
whether these were the proximate cause of the patient’s injury. Indeed here, a causal
connection is discernible from the occurrence of the victim’s death after the
negligent act of the anesthesiologist in administering the anesthesia, a fact which, if
confirmed, should warrant the filing of the appropriate criminal case. To be sure, the
allegation of negligence is not entirely baseless. Moreover, the NBI deduced that the
attending surgeons did not conduct the necessary interview of the patient prior to the
operation. It appears that the cause of the death of the victim could have been averted
had the proper drug been applied to cope with the symptoms of malignant
hyperthermia. Also, we cannot ignore the fact that an antidote was readily available
to counteract whatever deleterious effect the anesthesia might produce. Why these
precautionary measures were disregarded must be sufficiently explained. Absent
otherwise, the attending medical expert should have been held liable therein.
2.

ROGELIO P. NOGALES, for himself and on behalf of the minors, ROGER

ANTHONY, ANGELICA,NANCY, and MICHAEL CHRISTOPHER, all
surnamed NOGALES, petitioners, vs. CAPITOL MEDICAL CENTER, DR.
OSCAR ESTRADA, DR. ELY VILLAFLOR, DR. ROSA UY, DR.
JOELENRIQUEZ, DR. PERPETUA LACSON, DR. NOE ESPINOLA, and
NURSE J. DUMLAO, respondents.

G.R. No. 142625 December 19, 2006

Facts:

Corazon Nogales ("Corazon"), 37 years old pregnant with her fourth child, under the
exclusive prenatal care of Dr. Oscar Estrada ("Dr. Estrada"). The Doctor noted an
increase in her blood pressure and development of leg edema indicating
preeclampsia. Corazon started to experience mild labor pains Dr. Estrada advised
her immediate admission to the Capitol Medical Center ("CMC"). The staff nurse
noted the written admission request of Dr. Estrada. Due to the "Consent on
Admission and Agreement" and "Admission Agreement" signed by Corazon’s
husband she was then brought to the labor room of the CMC. Corazon manifest
moderate vaginal bleeding which rapidly became profusely, Dr. Espinola ordered
immediate hysterectomy. Rogelio wasmade to sign. Consent to Operation."Due to
the inclement weather, Dr. Espinola arrived an hour late. He examined the patient
and ordered some resuscitative measures to be administered. Despite Dr. Espinola's
efforts, Corazon died the cause of death was "hemorrhage, post partum."Petitioners
filed a complaint for damages with the Regional Trial Court of Manila contending
that defendant physicians and CMC personnel were negligent in the treatment and
management of Corazon's condition also in the selection and supervision of
defendant physicians and hospital staff. The defendant fail to file their answer to the
complaint the trial court declared Dr. Estrada, Dr. Enriquez, and Nurse Dumlao in
default. CMC, Dr. Villaflor, Dr. Uy, Dr. Espinola, and Dr. Lacson filed their
respective answers denying and opposing the allegations in the complaint. The trial
court rendered judgment finding Dr. Estrada solely liable for damages.

Petitioners appealed the trial court's decision, The Court of Appeals affirmed the
decision of the trial court. Petitioners filed a motion for reconsideration which was
denied in its Resolution. Hence, petitioners filed a Manifestation that respondents
"need no longer be notified of the petition because they are not involved in the issue
raised before the [Court], regarding the liability of [CMC]." The Court of Appeals
concluded that since Rogelio engaged Dr.Estrada as the attending physician of his
wife, any liability for malpractice must be Dr. Estrada's sole responsibility. While it
found the amount of damages fair and reasonable, the Court of Appeals held that no
interest could be imposed on unliquidated claims or damages. Hence this petition.

Issue:
 Whether or not CMC is vicariously liable for the negligence?

Held:
 On the Liability of CMC

CMC is vicariously liable for Dr. Estrada's negligence based on Article 2180 in
relation to Article2176 of the Civil Code. Art. 2180. The obligation imposed by
article 2176 is demandable not only for one's own acts or omissions, but also for
those of persons for whom one is responsible. Employers shall be liable for the
damages caused by their employees. The records show that Rogelio testified that he
and his wife specifically chose Dr. Estrada to handle Corazon's delivery not only
because of their friend's recommendation, but more importantly because of
Dr.Estrada's "connection with a reputable hospital, to provide the best medical care
and support services for Corazon's delivery.

On the Liability of the other Respondents

There was no evidence showing that the other respondents are liable for negligent
act. The records show that all are acting with good faith.

On the Award of interest on Damages

The award of interest on damages is proper and allowed under Article 2211 of the
Civil Code, which states that in crimes and quasi-delicts, interest as a part of the
damages may, in a proper case, be adjudicated in the discretion of the court. The
Court partly grants the petition finds respondent Capitol Medical Center vicariously
liable for the negligence of Dr. Oscar Estrada. The actual damages and moral
damages should each earn legal interest at the rate of six percent (6%) per annum
computed from the date of the judgment of the trial court.

ISSUE
 Whether CMC is vicariously liable for the negligence of Dr. Estrada.

RULING

On the Liability of CMC

A hospital which is the employer, master, or principal of a physician

employee, servant, or agent, may be held liable for the physician’s negligence
under the doctrine of respondeat superior.

The Court had the occasion to determine the relationship between a hospital
and a consultant or visiting physician and the liability of such hospital for that
physician’s negligence in Ramos v. Court of Appeals, to wit:

In the first place, hospitals exercise significant control in the hiring

and firing of consultants and in the conduct of their work within the
hospital premises. Doctors who apply for “consultant” slots, visiting or
attending, are required to submit proof of completion of residency,
their educational qualifications; generally, evidence of accreditation
by the appropriate board (diplomate), evidence of fellowship in most
cases, and references. These requirements are carefully scrutinized by
members of the hospital administration or by a review committee set
up by the hospital who either accept or reject the application. This is
particularly true with respondent hospital.
After a physician is accepted, either as a visiting or attending
consultant, he is normally required to attend clinico-pathological
conferences, conduct bedside rounds for clerks, interns and residents,
moderate grand rounds and patient audits and perform other tasks
and responsibilities, for the privilege of being able to maintain a clinic
in the hospital, and/or for the privilege of admitting patients into the
hospital. In addition to these, the physician’s performance as a
specialist is generally evaluated by a peer review committee on the
 basis of mortality and morbidity statistics, and feedback from patients,
nurses, interns and residents. A consultant remiss in his duties, or a
consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally
politely terminated.
In other words, private hospitals, hire, fire and exercise real
control over their attending and visiting “consultant” staff. While
“consultants” are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the
patient’s condition, the control exercised, the hiring, and the right to
terminate consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the payment
of wages. In assessing whether such a relationship in fact exists, the
control test is determining. Accordingly, on the basis of the foregoing,
we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians. This
being the case, the question now arises as to whether or not
respondent hospital is solidarily liable with respondent doctors for
petitioner’s condition.
The basis for holding an employer solidarily responsible for the
negligence of its employee is found in Article 2180 of the Civil Code
which considers a person accountable not only for his own acts but
also for those of others based on the former’s responsibility under a
relationship of patria potestas. x x x

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

The Court finds no single evidence pointing to CMC’s exercise of control over
Dr. Estrada’s treatment and management of Corazon’s condition. Throughout
Corazon’s pregnancy, she was under the exclusive prenatal care of Dr. Estrada. At
the time of Corazon’s admission at CMC and during her delivery, it was Dr. Estrada,
assisted by Dr. Villaflor, who attended to Corazon. There was no showing that CMC
had a part in diagnosing Corazon’s condition. While Dr. Estrada enjoyed staff
privileges at CMC, such fact alone did not make him an employee of CMC. CMC
merely allowed Dr. Estrada to use its facilities when Corazon was about to give
birth, which CMC considered an emergency. Considering these circumstances, Dr.
Estrada is not an employee of CMC, but an independent contractor.

The question now is WHETHER CMC IS AUTOMATICALLY EXEMPT FROM

LIABILITY CONSIDERING THAT DR. ESTRADA IS AN INDEPENDENT CONTRACTOR-
PHYSICIAN.

General Rule: A hospital is not liable for the negligence of an independent

contractor-physician.
Exception: The hospital may be liable if the physician is the “ostensible”
agent of the
hospital.http://sc.judiciary.gov.ph/jurisprudence/2006/december2006/142625.ht
m - _ftn44

This exception is also known as the “doctrine of apparent authority.” Under

the doctrine of apparent authority a hospital can be held vicariously liable for the
negligent acts of a physician providing care at the hospital, regardless of whether
the physician is an independent contractor, unless the patient knows, or should
have known, that the physician is an independent contractor.

Elements of Doctrine of Apparent Authority

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

The element of “holding out” on the part of the hospital does

not require an express representation by the hospital that the person
alleged to be negligent is an employee. Rather, the element is satisfied
if the hospital holds itself out as a provider of emergency room care
without informing the patient that the care is provided by
independent contractors.
The element of justifiable reliance on the part of the plaintiff is
satisfied if the plaintiff relies upon the hospital to provide complete
emergency room care, rather than upon a specific physician.

Doctrine of Apparent Authority Two (2) Essential Factors To Determine The Liability
Of An Independent-Contractor Physician
1. Hospital’s manifestations. It is sometimes described as an inquiry
whether the hospital acted in a manner which would lead a reasonable
person to conclude that the individual who was alleged to be negligent
was an employee or agent of the hospital. In this regard, the hospital
need not make express representations to the patient that the treating
physician is an employee of the hospital; rather a representation may be
general and implied.
The doctrine of apparent authority is a species of the doctrine of
estoppel. Article 1431 of the Civil Code provides that “[t]hrough estoppel,
an admission or representation is rendered conclusive upon the person
making it, and cannot be denied or disproved as against the person relying
thereon.” Estoppel rests on this rule: “Whenever a party has, by his own
declaration, act, or omission, intentionally and deliberately led another to
believe a particular thing true, and to act upon such belief, he cannot, in
 any litigation arising out of such declaration, act or omission, be permitted
to falsify it.”

*In the instant case, CMC impliedly held out Dr. Estrada as a member of its
medical staff. Through CMC’s acts, CMC clothed Dr. Estrada with apparent
authority thereby leading the Spouses Nogales to believe that Dr. Estrada was an
employee or agent of CMC. CMC cannot now repudiate such authority.
First, CMC granted staff privileges to Dr. Estrada. CMC extended its medical
staff and facilities to Dr. Estrada. Upon Dr. Estrada’s request for Corazon’s
admission, CMC, through its personnel, readily accommodated Corazon and
updated Dr. Estrada of her condition.
Second, CMC made Rogelio sign consent forms printed on CMC
letterhead. Prior to Corazon’s admission and supposed hysterectomy, CMC asked
Rogelio to sign release forms, the contents of which reinforced Rogelio’s belief that
Dr. Estrada was a member of CMC’s medical staff. Without any indication in these
consent forms that Dr. Estrada was an independent contractor-physician, the
Spouses Nogales could not have known that Dr. Estrada was an independent
contractor. Significantly, no one from CMC informed the Spouses Nogales that Dr.
Estrada was an independent contractor.
Third, Dr. Estrada’s referral of Corazon’s profuse vaginal bleeding to Dr.
Espinola, who was then the Head of the Obstetrics and Gynecology Department of
CMC, gave the impression that Dr. Estrada as a member of CMC’s medical staff was
collaborating with other CMC-employed specialists in treating Corazon.

2. Patient’s reliance. It is sometimes characterized as an inquiry on whether

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

*The records show that the Spouses Nogales relied upon a perceived
employment relationship with CMC in accepting Dr. Estrada’s services. Rogelio
testified that he and his wife specifically chose Dr. Estrada to handle Corazon’s
delivery not only because of their friend’s recommendation, but more importantly
because of Dr. Estrada’s “connection with a reputable hospital, the [CMC].” In other
words, Dr. Estrada’s relationship with CMC played a significant role in the Spouses
Nogales’ decision in accepting Dr. Estrada’s services as the obstetrician-
gynecologist for Corazon’s delivery. Moreover, as earlier stated, there is no
showing that before and during Corazon’s confinement at CMC, the Spouses
Nogales knew or should have known that Dr. Estrada was not an employee of CMC.
Further, the Spouses Nogales looked to CMC to provide the best medical care
and support services for Corazon’s delivery. The Court notes that prior to Corazon’s
fourth pregnancy, she used to give birth inside a clinic. Considering Corazon’s age
then, the Spouses Nogales decided to have their fourth child delivered at CMC,
which Rogelio regarded one of the best hospitals at the time. This is precisely
because the Spouses Nogales feared that Corazon might experience complications
during her delivery which would be better addressed and treated in a modern and
big hospital such as CMC. Moreover, Rogelio’s consent in Corazon’s hysterectomy
to be performed by a different physician, namely Dr. Espinola, is a clear indication
of Rogelio’s confidence in CMC’s surgical staff.

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

“The conception that the hospital does not undertake to treat the
patient, does not undertake to act through its doctors and nurses, but
undertakes instead simply to procure them to act upon their own
responsibility, no longer reflects the fact. Present day hospitals, as
their manner of operation plainly demonstrates, do far more than
furnish facilities for treatment. They regularly employ on a salary
basis a large staff of physicians, nurses and internes [sic], as well as
administrative and manual workers, and they charge patients for
medical care and treatment, collecting for such services, if necessary,
by legal action. Certainly, the person who avails himself of ‘hospital
facilities’ expects that the hospital will attempt to cure him, not that
its nurses or other employees will act on their own
responsibility.” xxx
Likewise unconvincing is CMC’s argument that petitioners are estopped from
claiming damages based on the Consent on Admission and Consent to Operation.
Both release forms consist of two parts. The first part gave CMC permission to
administer to Corazon any form of recognized medical treatment which the CMC
medical staff deemed advisable. The second part of the documents, which may
properly be described as the releasing part, releases CMC and its employees “from
any and all claims” arising from or by reason of the treatment and operation.

The documents do not expressly release CMC from liability for injury to
Corazon due to negligence during her treatment or operation. Neither do the
consent forms expressly exempt CMC from liability for Corazon’s death due to
negligence during such treatment or operation. Such release forms, being in the
nature of contracts of adhesion, are construed strictly against hospitals. Besides, a
blanket release in favor of hospitals “from any and all claims,” which includes claims
due to bad faith or gross negligence, would be contrary to public policy and thus
void.

Even simple negligence is not subject to blanket release in favor of

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

On the Liability of the Other Respondents

Despite this Court’s pronouncement in its 9 September 2002[59] Resolution

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

a) Dr. Ely Villaflor – Not Negligent

b) Dr. Rosa Uy – Not Negligent
c) Dr. Joel Enriquez – Not Negligent
d) Dr. Perpetua Lacson – Not Negligent
e) Dr. Noe Espinola – Not Negligent
f) Nurse J. Dumlao – Not Negligent

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

3.

PROFESSIONAL SERVICES, G.R. No. 126297

INC.,
- versus -
THE COURT OF APPEALS and NATIVIDAD and
ENRIQUE
AGANA,
x-------------------x
NATIVIDAD [substituted by her G.R. No. 126467
children Marcelino Agana III,
Enrique Agana, Jr.,
Emma Agana-Andaya,
Jesus Agana and Raymund
Agana] and ENRIQUE AGANA,
- versus -
THE COURT OF APPEALS and JUAN FUENTES,
x-------------------x

MIGUEL AMPIL, G.R. No. 127590

- versus -
NATIVIDAD and ENRIQUE
AGANA,
Promulgated: February 2, 2010

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

PROFESSIONAL SERVICES, INC. VS. NATIVIDADandENRIQUEAGANA

G.R. no. 126297 January 31, 2007

NATIVIDADandENRIQUEAGANAVS JUANFUENTES

G.R. no. 127590 January 31, 2007

Facts:

Natividad Agana was rushed to the Medical City Hospital Dr. Miguel Ampil
diagnosed her to be suffering from cancer of the sigmoid . Dr. Ampil performed the
surgery and found the malignancy in her sigmoid necessitating the removal. Dr. Juan
Fuentes performs hysterectomy Dr. Ampil took over, completed the operation and
closed the incision. The attending nurse entered the remarks that the sponge count
lacking 2. Since nowhere to be found the surgeon avail to continue closure. After a
couple of days, Natividad complained of excruciating pain she consulted both the
doctors about it but they told that it was natural consequence of the surgery. Dr.
Ampil. Natividad, went to the United States after four months of consultation and
laboratory examinations, she was free of cancer. Natividad flew back to the
Philippines, still suffering from pains, her daughter found gauze protruding from her
Vagina. Then after the pain intensified, prompting Natividad to seek treatment. Dr.
Ramon Gutierez detected the presence of another foreign object in her vagina a foul-
smelling gauze which badly infected her vaginal vault. Natividad underwent another
surgery to remedy the damage.

Natividad and her husband filed with the RTC, Quezon City a complaint for damages
against the Professional Services, Inc. (PSI), owner of the Medical City Hospital,
Dr. Ampil, and Dr. Fuentes. Enrique Agana also filed with the Professional
Regulation Commission (PRC) an administrative complaint for gross negligence and
malpractice against Dr. Ampil and Dr. Fuentes. The PRC Board of Medicine heard
the case but it failed to acquire jurisdiction over Dr. Ampil who was then in the
United States. The case was pending; Natividad died and was duly substituted by
her above-named children (the Aganas). RTC rendered its Decision in favor of the
Aganas, finding PSI, Dr. Ampil and Dr. Fuentes liable for negligence and
malpractice, ordering the defendants PROFESSIONAL SERVICES, INC., Dr
Miguel Ampil and Dr. Juan Fuentes to pay to the plaintiffs, jointly and severally,
except in respect of the award for exemplary damages and the interest thereon which
are the liabilities of defendants Dr. Ampil and Dr.

Fuentes. Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an appeal to the
Court of Appeals, Aganas filed with the RTC a motion for a partial execution of its
Decision. Aganas again filed a motion for an alias writ of execution against the
properties of PSI and Dr. Fuentes. RTC granted the motion and issued the
corresponding writ, prompting Dr. Fuentes to file with the Court of Appeals a
petition for certiorari and prohibition, with prayer for preliminary injunction. During
its pendency, the Court of Appeals issued a Resolution granting Dr. Fuentes
prayer for injunctive relief. PRC Board of Medicine rendered its Decision in
Administrative Case dismissing the case against Dr. Fuentes. The prosecution failed
to show that Dr. Fuentes was the one who left the two pieces of gauze inside
Natividad’s body. The Court of Appeals rendered its Decision Dr.Miguel Ampil is
liable to reimburse defendant-appellant Professional Services, Inc., whatever
amount the latter will pay or had paid to the plaintiffs-appellees. Dr. Ampil filed a
motion for reconsideration, but it was denied in a Resolution Aganas maintain that
the Court of Appeals erred in finding that Dr. Fuentes is not guilty of negligence or
medical malpractice, invoking the doctrine of res ipsa loquitur. Dr. Ampilasserts that
the Court of Appeals erred in finding him liable for negligence and malpractice.

Issues:

(1) Whether the Court of Appeals erred in holding Dr. Ampil liable for negligence
and malpractice (2) Whether the Court of Appeals erred in absolving Dr. Fuentes of
any liability
 (3) Whether PSI may be held solidarily liable for the negligence of
Dr. Ampil.

Held:

(1) Dr. Ampil is liable for Negligence and Malpractice, an attempt to absolve
himself, gears the Court’s attention to other possible causes of Natividad’s
detriment. His arguments are purely conjectural and without basis. He did not
present any evidence to prove that the American doctors were the ones who put or
left the gauzes in Natividad’s body. Neither submit evidence to rebut the correctness
of the record of operation, particularly the number of gauzes used. As to the alleged
negligence of Dr. Fuentes, we are mindful that Dr. Ampil examined his (Dr. Fuentes)
work and found it in order.

(2) The court is not convinced, that the Court of Appeals Erred in Absolving Dr.
Fuentes of any Liability.

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

Moreover PSI is also directly liable to the Aganas. When a doctor practices
medicine in a hospital setting, the hospital and its employees are deemed to sub serve
him in his ministrations to the patient and his actions are of his own responsibility.
The nature of the relationship between the hospital and the physicians is an
employer-employee relationship the hospitals exercise significant control in the
hiring and firing of consultants and in the conduct of their work within the hospital
premises. Doctors who apply for consultant slots, are required to submit proof of
completion of residency, their educational qualifications, evidence of accreditation
by the appropriate board (diplomate), evidence of fellowship in most cases, and
references. These requirements in other words, private hospitals, hire, fire and
exercise real control over their attending and visiting consultant staff. The hiring,
and the right to terminate consultants all fulfill the important hallmarks of an
employer- employee relationship, with the exception of the payment of wages. PSI
publicly displays in the lobby of the Medical City Hospital the names and
specializations of the physicians associated or accredited by it, including those of
Dr. Ampil and Dr. Fuentes. PSI failed to discharge its burden under the last
paragraph of Article 2180 cited must be adjudged solidarily liable with Dr. Ampil.

FACTS

PSI, together with Dr. Miguel Ampil and Dr. Juan Fuentes, was impleaded
by Enrique Agana and Natividad Agana (later substituted by her heirs), in a
complaint for damages for the injuries suffered by Natividad when Dr. Ampil and
Dr. Fuentes neglected to remove from her body two gauzes which were used in the
surgery they performed on her on at the Medical City General Hospital. PSI was
impleaded as owner, operator and manager of the hospital.

RTC held PSI solidarily liable with Dr. Ampil and Dr. Fuentes for damages.
 CA absolved Dr. Fuentes but affirmed the liability of Dr. Ampil and PSI,
subject to the right of PSI to claim reimbursement from Dr. Ampil.

ISSUE

Whether a hospital may be held liable for the negligence of physicians-consultants

allowed to practice in its premises.

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

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

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

Where an employment relationship exists, the hospital may be held

vicariously liable under Article 2176 in relation to Article

2180http://sc.judiciary.gov.ph/jurisprudence/2010/february2010/126297.htm -

_ftn37 of the Civil Code or the principle of respondeat superior. Even when no

employment relationship exists but it is shown that the hospital holds out to the

patient that the doctor is its agent, the hospital may still be vicariously liable under

Article 2176 in relation to Article 1431 and Article 1869 of the Civil Code or the

principle of apparent

authority.http://sc.judiciary.gov.ph/jurisprudence/2010/february2010/126297.ht

m - _ftn40 Moreover, regardless of its relationship with the doctor, the hospital

may be held directly liable to the patient for its own negligence or failure to follow

established standard of conduct to which it should conform as a corporation.

This Court still employs the “control test” to determine the existence of an
employer-employee relationship between hospital and doctor. In Calamba Medical
Center, Inc. v. National Labor Relations Commission, et
al.http://sc.judiciary.gov.ph/jurisprudence/2010/february2010/126297.htm -
_ftn42 it held:

Under the "control test", an employment relationship exists between a

physician and a hospital if the hospital controls both the means and the
details of the process by which the physician is to accomplish his task.

xx xx xx

As priorly stated, private respondents maintained specific work-

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

That petitioner exercised control over respondents gains light

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

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

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

Nonetheless, to allay the anxiety of the intervenors, the Court holds

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

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

The decision made by Enrique for Natividad to consult Dr. Ampil was
significantly influenced by the impression that Dr. Ampil was a staff member
of Medical City General Hospital, and that said hospital was well known and
prominent. Enrique looked upon Dr. Ampil not as independent of but as integrally
related to Medical City. PSI's acts tended to confirm and reinforce, rather than
negate, Enrique's view. The consent forms signed by Enrique as required by PSI
virtually reinforced the public impression that Dr. Ampil was a physician of its
hospital, rather than one independently practicing in it; that the medications and
treatments he prescribed were necessary and desirable; and that the hospital staff
was prepared to carry them out.

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

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

Moving on to the next issue, PSI made an admission in its Motion for
Reconsideration when it stated that had Natividad Agana “informed the hospital of
her discomfort and pain, the hospital would have been obliged to act on it.”

The significance of the foregoing statements is critical.

First, they constitute judicial admission by PSI that while it had no power to
control the means or method by which Dr. Ampil conducted the surgery on
Natividad Agana, it had the power to review or cause the review of what may have
irregularly transpired within its walls strictly for the purpose of determining
whether some form of negligence may have attended any procedure done inside
its premises, with the ultimate end of protecting its patients.
Second, it is a judicial admission that, by virtue of the nature of its business
as well as its prominence in the hospital industry, it assumed a duty to “tread on”
the “captain of the ship” role of any doctor rendering services within its premises
for the purpose of ensuring the safety of the patients availing themselves of its
services and facilities.

Third, by such admission, PSI defined the standards of its corporate conduct
under the circumstances of this case, specifically: (a) that it had a corporate duty
to Natividad even after her operation to ensure her safety as a patient; (b) that its
corporate duty was not limited to having its nursing staff note or record the two
missing gauzes and (c) that its corporate duty extended to determining Dr. Ampil's
role in it, bringing the matter to his attention, and correcting his negligence.
And finally, by such admission, PSI barred itself from arguing in its second
motion for reconsideration that the concept of corporate responsibility was not yet
in existence at the time Natividad underwent treatment; and that if it had any
corporate responsibility, the same was limited to reporting the missing gauzes and
did not include “taking an active step in fixing the negligence
committed.” An admission made in the pleading cannot be controverted by the
party making such admission and is conclusive as to him, and all proofs submitted
by him contrary thereto or inconsistent therewith should be ignored, whether or
not objection is interposed by a party.

Given the standard of conduct that PSI defined for itself, the next relevant
inquiry is whether the hospital measured up to it.
 PSI could not simply wave off the problem and nonchalantly delegate to Dr.
Ampil the duty to review what transpired during the operation. The purpose of such
review would have been to pinpoint when, how and by whom two surgical gauzes
were mislaid so that necessary remedial measures could be taken to avert any
jeopardy to Natividad’s recovery. Certainly, PSI could not have expected that
purpose to be achieved by merely hoping that the person likely to have mislaid the
gauzes might be able to retrace his own steps. By its own standard of corporate
conduct, PSI's duty to initiate the review was non-delegable.

While Dr. Ampil may have had the primary responsibility of notifying
Natividad about the missing gauzes, PSI imposed upon itself the separate and
independent responsibility of initiating the inquiry into the missing gauzes. The
record taken during the operation of Natividad which reported a gauze count
discrepancy should have given PSI sufficient reason to initiate a review. It should
not have waited for Natividad to complain.

As it happened, PSI took no heed of the record of operation and

consequently did not initiate a review of what transpired during Natividad’s
operation. Rather, it shirked its responsibility and passed it on to others – to Dr.
Ampil whom it expected to inform Natividad, and to Natividad herself to complain
before it took any meaningful step. By its inaction, therefore, PSI failed its own
standard of hospital care. It committed corporate negligence.

It should be borne in mind that the corporate negligence ascribed to PSI is

different from the medical negligence attributed to Dr. Ampil. The duties of the
hospital are distinct from those of the doctor-consultant practicing within its
premises in relation to the patient; hence, the failure of PSI to fulfill its duties as a
hospital corporation gave rise to a direct liability to the Aganas distinct from that of
Dr. Ampil.
 All this notwithstanding, we make it clear that PSI’s hospital liability based
on ostensible agency and corporate negligence applies only to this case, pro hac
vice. It is not intended to set a precedent and should not serve as a basis to hold
hospitals liable for every form of negligence of their doctors-consultants under any
and all circumstances. The ruling is unique to this case, for the liability of PSI arose
from an implied agency with Dr. Ampil and an admitted corporate duty to
Natividad.

Other circumstances peculiar to this case warrant this ruling, not the least
of which being that the agony wrought upon the Aganas has gone on for 26 long
years, with Natividad coming to the end of her days racked in pain and
agony. Such wretchedness could have been avoided had PSI simply done what
was logical: heed the report of a guaze count discrepancy, initiate a review of what
went wrong and take corrective measures to ensure the safety of Nativad. Rather,
for 26 years, PSI hemmed and hawed at every turn, disowning any such
responsibility to its patient. Meanwhile, the options left to the Aganas have all but
dwindled, for the status of Dr. Ampil can no longer be ascertained.

Therefore, taking all the equities of this case into consideration, this Court
believes P15 million would be a fair and reasonable liability of PSI, subject to 12%
p.a. interest from the finality of this resolution to full satisfaction.

WHEREFORE, the second motion for reconsideration is DENIED and the

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

4.

CANTRE VS GO (GR NO. 160889 APRIL 27, 2007)

Cantre vs Go
GR No. 160889 April 27, 2007

Facts: Petitioner Dr. Milagros L. Cantre is a specialist in obstetrics and gynecology

at the Dr. Jesus Delgado memorial Hospital. She was the attending physician of
respondent Nora Go, who was admitted at the said hospital on April 19, 1992. At
1:30am of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However,
at around 3:30am Nora suffered profuse bleeding insider her womb due to some
parts of the placenta were not completely expelled from her womb after delivery
consequently, Nora suffered hypovolemic shock, resulting in a drop in her blood
pressure to 40/0. Petitioner said the assisting resident physician performed various
medical procedures to stop the bleeding and to restore Nora’s blood pressure. Her
blood pressure was frequently monitored with the use of a sphygmamometer. While
petitioner was massaging Nora’s uterus for it to contract and stop bleeding, she
ordered a drop light to warm Nora and her baby. Nora remained unconscious until
she recovered. While in the recovery room, her husband, respondent John David Z.
Go noticed a fresh gasping wound 2 1/2″ x 3 1/2″ in the inner portion of her left arm,
close to the armpit. He asked the nurses what caused the injury. He was informed, it
was a burn. An investigation was filed by Nora’s husband and found out from the
petitioner that it was caused by the blood pressure cuff, however, this was contrary
to the findings from a medico-legal report which stated that it was indeed a burn and
that a drop light when placed near a skin for about 10mins could cause such burn.
Nora was referred to a plastic surgeon from the hospital and skin grafting was done
on her and scar revision but both still left a mark on Nora’s arm compelling the
respondent spouse to file a complaint for damages against petitioner.

Issue: Whether or not petitioner is liable for the injury referred by Nora.
Held: Yes. The Hippocratic oath mandates physicians to give primordial
consideration to the well-being of their patients. If a doctor fails to live up to his
precept, he is accountable for his acts. This is notwithstanding, courts face a unique
restraint in adjudicating medical negligence cases because physicians are not
guardians of care and they never set out to intentionally cause injury to their patients.
However, intent is immaterial in negligence cases because where negligence exist
and is proven, it automatically gives the injured a right to reparation for the damage
caused.

In cases, involving medical negligence, the doctrine of res ipsa liquitor allows the
mere existence of an injury to justify a presumption of negligence on the part of the
person who controls the instrument causing the injury, provided that the following
requisites concur:

1. The accident is of a kind which ordinarily does not occur in the absence of
someone’s negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant
or defendants;
3. The possibility of contributing conduct which would make the plaintiff
responsible is eliminated.

All of these three requisites were present in the case at bar.

Under the the captain of the ship doctrine, the surgeon in charge of the operation is
liable for the negligence of his assistants during the time when those are under the
surgeons control.

5.

6.

EN BANC

DR. RUBI LI, G.R. No. 165279

 Petitioner,
Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
- versus - BERSAMIN,
DEL CASTILLO,*
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

SPOUSES REYNALDO and LINA Promulgated:

SOLIMAN, as parents/heirs of
deceased Angelica Soliman, June 7, 2011
Respondents.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

VILLARAMA, JR., J.:

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

The factual antecedents:

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

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

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

Immediate cause : a. Osteosarcoma, Status Post AKA

Antecedent cause : b. (above knee amputation)
Underlying cause : c. Status Post Chemotherapy

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

In her answer, petitioner denied having been negligent in administering the

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

Since the medical records of Angelica were not produced in court, the trial
and appellate courts had to rely on testimonial evidence, principally the
declarations of petitioner and respondents themselves. The following chronology
of events was gathered:

On July 23, 1993, petitioner saw the respondents at the hospital after
Angelica’s surgery and discussed with them Angelica’s condition. Petitioner told
respondents that Angelica should be given two to three weeks to recover from the
operation before starting chemotherapy. Respondents were apprehensive due to
financial constraints as Reynaldo earns only from P70,000.00 to P150,000.00 a year
from his jewelry and watch repairing business. Petitioner, however, assured them
not to worry about her professional fee and told them to just save up for the
medicines to be used.

Petitioner claimed that she explained to respondents that even when a

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

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

On August 18, 1993, respondents brought Angelica to SLMC for

chemotherapy, bringing with them the results of the laboratory tests requested by
petitioner: Angelica’s chest x-ray, ultrasound of the liver, creatinine and complete
liver function tests. Petitioner proceeded with the chemotherapy by first
administering hydration fluids to Angelica.

The following day, August 19, petitioner began administering three

chemotherapy drugs – Cisplatin, Doxorubicin and Cosmegen –
intravenously. Petitioner was supposedly assisted by her trainees Dr. Leo
Marbella and Dr. Grace
Arriete.http://sc.judiciary.gov.ph/jurisprudence/2011/june2011/165279.htm -
_ftn20 In his testimony, Dr. Marbella denied having any participation in
administering the said chemotherapy drugs.

On the second day of chemotherapy, August 20, respondents noticed

reddish discoloration on Angelica’s face. They asked petitioner about it, but she
merely quipped, “Wala yan. Epekto ng gamot.” Petitioner recalled noticing the
skin rashes on the nose and cheek area of Angelica. At that moment, she
entertained the possibility that Angelica also had systemic lupus and consulted Dr.
Victoria Abesamis on the matter.
 On the third day of chemotherapy, August 21, Angelica had difficulty
breathing and was thus provided with oxygen inhalation apparatus. This time, the
reddish discoloration on Angelica’s face had extended to her neck, but petitioner
dismissed it again as merely the effect of medicines. Petitioner testified that she
did not see any discoloration on Angelica’s face, nor did she notice any difficulty in
the child’s breathing. She claimed that Angelica merely complained of nausea and
was given ice chips.

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

The following day, August 23, petitioner yielded to respondents’ request to

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

However, Angelica remained in confinement because while still in the

premises of SLMC, her “convulsions” returned and she also had LBM. Angelica was
given oxygen and administration of calcium continued.

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

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

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

On August 30, Angelica continued bleeding. She was restless as

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

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

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

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

Respondents also presented as witnesses Dr. Jesusa Nieves-Vergara,

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

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

Dr. Jaime Tamayo, the orthopaedic surgeon who operated on Angelica’s

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

In dismissing the complaint, the trial court held that petitioner was not liable
for damages as she observed the best known procedures and employed her highest
skill and knowledge in the administration of chemotherapy drugs on Angelica but
despite all efforts said patient died. It cited the testimony of Dr. Tamayo who
testified that he considered petitioner one of the most proficient in the treatment
of cancer and that the patient in this case was afflicted with a very aggressive type
of cancer necessitating chemotherapy as adjuvant treatment. Using the standard
of negligence laid down in Picart v. Smith, the trial court declared that petitioner
has taken the necessary precaution against the adverse effect of chemotherapy on
the patient, adding that a wrong decision is not by itself negligence. Respondents
were ordered to pay their unpaid hospital bill in the amount ofP139,064.43.

Respondents appealed to the CA which, while concurring with the trial

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

The CA thus declared:

Plaintiffs-appellants’ child was suffering from a malignant

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

On this point therefore, [w]e find defendant-appellee Dr. Rubi

Li negligent which would entitle plaintiffs-appellants to their claim for
damages.

xxxx

WHEREFORE, the instant appeal is hereby

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

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

expenses;

2. Moral damages of P200,000.00;

 3. Exemplary damages of P50,000.00;

4. Attorney’s fee of P30,000.00.

SO ORDERED.

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

Hence, this petition.

Petitioner assails the CA in finding her guilty of negligence in not explaining

to the respondents all the possible side effects of the chemotherapy on their child,
and in holding her liable for actual, moral and exemplary damages and attorney’s
fees. Petitioner emphasized that she was not negligent in the pre-chemotherapy
procedures and in the administration of chemotherapy treatment to Angelica.

On her supposed non-disclosure of all possible side effects of chemotherapy,

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

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

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

The issue to be resolved is whether the petitioner can be held liable for failure
to fully disclose serious side effects to the parents of the child patient who died
while undergoing chemotherapy, despite the absence of finding that petitioner was
negligent in administering the said treatment.

The petition is meritorious.

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

This Court has recognized that medical negligence cases are best proved by
opinions of expert witnesses belonging in the same general neighborhood and in
the same general line of practice as defendant physician or surgeon. The deference
of courts to the expert opinion of qualified physicians stems from the former’s
realization that the latter possess unusual technical skills which laymen in most
instances are incapable of intelligently evaluating, hence the indispensability of
expert testimonies.
 In this case, both the trial and appellate courts concurred in finding that the
alleged negligence of petitioner in the administration of chemotherapy drugs to
respondents’ child was not proven considering that Drs. Vergara and Balmaceda,
not being oncologists or cancer specialists, were not qualified to give expert opinion
as to whether petitioner’s lack of skill, knowledge and professional competence in
failing to observe the standard of care in her line of practice was the proximate
cause of the patient’s death. Furthermore, respondents’ case was not at all helped
by the non-production of medical records by the hospital (only the biopsy result
and medical bills were submitted to the court). Nevertheless, the CA found
petitioner liable for her failure to inform the respondents on all possible side effects
of chemotherapy before securing their consent to the said treatment.

The doctrine of informed consent within the context of physician-patient

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

Subsequently, in Canterbury v. Spence the court observed that the duty to

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

Reiterating the foregoing considerations, Cobbs v. Grant deemed it as integral

part of physician’s overall obligation to patient, the duty of reasonable disclosure
of available choices with respect to proposed therapy and of dangers inherently
and potentially involved in each. However, the physician is not obliged to discuss
relatively minor risks inherent in common procedures when it is common
knowledge that such risks inherent in procedure of very low incidence. Cited as
exceptions to the rule that the patient should not be denied the opportunity to
weigh the risks of surgery or treatment are emergency cases where it is evident he
cannot evaluate data, and where the patient is a child or incompetent. The court
thus concluded that the patient’s right of self-decision can only be effectively
exercised if the patient possesses adequate information to enable him in making
an intelligent choice. The scope of the physician’s communications to the patient,
then must be measured by the patient’s need, and that need is whatever
information is material to the decision. The test therefore for determining whether
a potential peril must be divulged is its materiality to the patient’s decision.
 Cobbs v. Grant further reiterated the pronouncement in Canterbury v.
Spence that for liability of the physician for failure to inform patient, there must be
causal relationship between physician’s failure to inform and the injury to patient
and such connection arises only if it is established that, had revelation been made,
consent to treatment would not have been given.

There are four essential elements a plaintiff must prove in a malpractice

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

Examining the evidence on record, we hold that there was adequate

disclosure of material risks inherent in the chemotherapy procedure performed
with the consent of Angelica’s parents. Respondents could not have been
unaware in the course of initial treatment and amputation of Angelica’s lower
extremity, that her immune system was already weak on account of the malignant
tumor in her knee. When petitioner informed the respondents beforehand of the
side effects of chemotherapy which includes lowered counts of white and red blood
cells, decrease in blood platelets, possible kidney or heart damage and skin
darkening, there is reasonable expectation on the part of the doctor that the
respondents understood very well that the severity of these side effects will not be
the same for all patients undergoing the procedure. In other words, by the nature
of the disease itself, each patient’s reaction to the chemical agents even with pre-
treatment laboratory tests cannot be precisely determined by the physician. That
death can possibly result from complications of the treatment or the underlying
cancer itself, immediately or sometime after the administration of chemotherapy
drugs, is a risk that cannot be ruled out, as with most other major medical
procedures, but such conclusion can be reasonably drawn from the general side
effects of chemotherapy already disclosed.

As a physician, petitioner can reasonably expect the respondents to have

considered the variables in the recommended treatment for their daughter
afflicted with a life-threatening illness. On the other hand, it is difficult to give
credence to respondents’ claim that petitioner told them of 95% chance of
recovery for their daughter, as it was unlikely for doctors like petitioner who were
dealing with grave conditions such as cancer to have falsely assured patients of
chemotherapy’s success rate. Besides, informed consent laws in other countries
generally require only a reasonable explanation of potential harms, so specific
disclosures such as statistical data, may not be legally necessary.

The element of ethical duty to disclose material risks in the proposed medical
treatment cannot thus be reduced to one simplistic formula applicable in all
instances. Further, in a medical malpractice action based on lack of informed
consent, “the plaintiff must prove both the duty and the breach of that duty
through expert testimony. Such expert testimony must show the customary
standard of care of physicians in the same practice as that of the defendant
doctor.http://sc.judiciary.gov.ph/jurisprudence/2011/june2011/165279.htm -
_ftn68

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

As society has grappled with the juxtaposition between

personal autonomy and the medical profession's intrinsic impetus to
cure, the law defining “adequate” disclosure has undergone a dynamic
evolution. A standard once guided solely by the ruminations of
physicians is now dependent on what a reasonable person in the
patient’s position regards as significant. This change in perspective is
especially important as medical breakthroughs move practitioners to
the cutting edge of technology, ever encountering new and heretofore
unimagined treatments for currently incurable diseases or ailments.
An adaptable standard is needed to account for this constant
progression. Reasonableness analyses permeate our legal system for
the very reason that they are determined by social norms, expanding
and contracting with the ebb and flow of societal evolution.
 As we progress toward the twenty-first century, we now realize
that the legal standard of disclosure is not subject to construction as
a categorical imperative. Whatever formulae or processes we adopt
are only useful as a foundational starting point; the particular quality
or quantity of disclosure will remain inextricably bound by the facts
of each case. Nevertheless, juries that ultimately determine whether
a physician properly informed a patient are inevitably guided by what
they perceive as the common expectation of the medical consumer—
“a reasonable person in the patient’s position when deciding to accept
or reject a recommended medical procedure.”

WHEREFORE, the petition for review on certiorari is GRANTED. The

Decision dated June 15, 2004 and the Resolution dated September 1, 2004 of the
Court of Appeals in CA-G.R. CV No. 58013 are SET ASIDE.

The Decision dated September 5, 1997 of

the Regional Trial Court of Legazpi City, Branch 8, in Civil Case No. 8904
is REINSTATED and UPHELD.

No costs.

SO ORDERED.

7.

SIGNIFICANCE OF FOREIGN DECISIONS

CLARA CEREZO, plaintiff-appellant,

vs.
THE ATLANTIC GULF & PACIFIC COMPANY, defendant-appellant.
G.R. No. L-10107
February 4, 1916

Facts:

This is an action for damages against the defendant for negligently causing the
death of the plaintiff's son, Jorge Ocumen, on the 7th of July, 1913, deceased being
plaintiff's only means of support. Judgment was entered in a favor of the plaintiff
for the sum of P1,250, together with interest and costs. Defendant appealed.

The deceased was an employee of the defendant as a day laborer on the 8th of
July, 1913, assisting in laying gas pipes on Calle Herran in the city of Manila . The
digging of the trench was completed both ways from the cross-trench in Calle Paz,
and the pipes were laid therein up to that point. The men of the deceased's gang
were filling the west end, and there was no work in the progress at the east end of
the trench. Shortly after the deceased entered the trench at the east end to answer
a call of nature, the bank caved in, burying him to his neck in dirt, where he died
before he could be released. It has not been shown that the deceased had received
orders from the defendant to enter the trench at this point; nor that the trench had
been prepared by the defendant as a place to be used as a water-closet; nor that
the defendant acquiesced in the using of this place for these purposes. The trench
at the place where the accident occurred was between 3 and 4 feet deep. Nothing
remained to be done there except to refill the trench as soon as the pipes were
connected. The refilling was delayed at that place until the completion of the
connection. At the time of the accident the place where the deceased's duty of
refilling the trench required him to be was at the west end. There is no contention
that there was any danger whatever in the refilling of the trench.

Issue:

Whether or not the plaintiff’s right to recover is based on the Employer’s Liability
Act (Act No. 1874)
Held:

Act No. 1874 is essentially a copy of the Massachusetts Employers' Liability Act
(Rev. Laws. 1902, chap. 106 secs. 71-79), it having been originally enacted in that
jurisdiction in 1887. (Stat. 1887, chap. 270.) The Massachusetts statute was "copied
verbatim, with some variations of detail, from the English statute (43 & 44 Vict., c.
42).

This court is not finally concluded by the decision of any other State court or the
British court, in their construction of a similar statute, but the opinion of learned
courts upon similar questions are entitled to great weight and this is especially true
when the statute, from which ours was copied, had been construed prior to its
enactment by our legislature." ( Birmingham Ry. and Electric Co. vs. Allen, 99 Ala.
359, 371; 120 L. R. A., 457.)

The right of the master to shift responsibility for the performance of all or at least
most of these personal duties to the shoulders of a subordinate and thereby escape
liability for the injuries suffered by his workmen through his non-performance of
these duties, was, in England, definitely settled by the House of Lords in the case of
Wilson vs. Merry (L.R. 1 H.L. Sc. Appl Cas., 326; 19 Eng. Rul. Cas., 132). This was just
two years before the enactment of the Employers' Liability Act of 1880, and no
doubt the full significance of such a doctrine was one of the impelling causes which
expedited the passage of the Act, and chiefly accounts for the presence in it of
subsection 1 of section 1.

The cause of Ocumen's death was not the weight of the earth which fell upon him,
but was due to suffocation. He was sitting or squatting when the slide gave way.
Had he been even half-erect, it is highly probable that he would have escaped
suffocation or even serious injury. Hence, the accident was of a most unusual
character. Experience and common sense demonstrate that ordinarily no danger
to employees is to be anticipated from such a trench as that in question. The fact
that the walls had maintained themselves for a week, without indication of their
giving way, strongly indicates that the necessity for bracing or shoring the trench
was remote. To require the company to guard against such an accident as the one
in question would virtually compel it to shore up every foot of the miles of trenches
dug by it in the city of Manila for the gas mains. Upon a full consideration of the
evidence, we are clearly of the opinion that ordinary care did not require the
shoring of the trench walls at the place where the deceased met his death. The
event properly comes within the class of those which could not be foreseen; and,
therefore, the defendant is not liable under the Civil Code.

Effect upon the Law in this country

The act was not intended to curtail the any of the rights which an employee had
under the pre-existing law. Under the act, the defense of contributory negligence
would defeat an action for damages.

For the foregoing reasons the judgment appealed from is reversed and the
complaint dismissed, without costs. So ordered.

8.

DR. NINEVETCH CRUZ, petitioner, vs. COURT OF APPEALS and LYDIA

UMALI, respondents. G.R. No. 122445. November 18, 1997

Facts:

On March 22, 1991, prosecution witness, Rowena Umali De Ocampo, accompanied

her mother to the Perpetual Help Clinic and General Hospital situated in Balagtas
Street, San Pablo City, Laguna. They arrived at the said hospital at around 4:30 in
the afternoon of the same day. Prior to March 22, 1991, Lydia was examined by the
petitioner who found a "myoma" in her uterus, and scheduled her for a hysterectomy
operation on March 23, 1991.

According to Rowena, she noticed that the clinic was untidy and the window and the
floor were very dusty prompting her to ask the attendant for a rag to wipe the window
and the floor with. Because of the untidy state of the clinic, Rowena tried to persuade
her mother not to proceed with the operation. The following day, before her mother
was wheeled into the operating room, Rowena asked the petitioner if the operation
could be postponed. The petitioner called Lydia into her office and the two had a
conversation. Lydia then informed Rowena that the petitioner told her that she must
be operated on as scheduled. The operation nevertheless happened with these
circumstances attending:

c. The relatives of Umali were asked to buy tagamet ampules by Dr. Ercillo. 


d. They were asked to buy blood for Umali, Type “A”. 


e. When asked again to buy blood, nowhere blodd available at the Blood Bank of the
Hospital. 


f. The condition of Umali became worse that she has to be transferred to another
Hospital, San 
 Pablo District hospital. 


Upon Lydia's arrival at the San Pablo District Hospital, she was wheeled into the
operating room and the petitioner and Dr. Ercillo re-operated on her because there
was blood oozing from the abdominal incision. While petitioner was closing the
abdominal wall, the patient died. Thus, on March 24, 1991, Lydia Umali was
pronounced dead. Her death certificate states "shock" as the immediate cause of
death and "Disseminated Intravascular Coagulation (DIC)" as the antecedent cause.

In convicting the petitioner, the MTCC found her to be negligent in the performance
of the operation.

The RTC reiterated the abovementioned findings of the MTCC and upheld the
latter's declaration of "incompetency, negligence and lack of foresight and skill of
appellant (herein petitioner) in handling the subject patient before and after the
operation." And likewise affirming the petitioner's conviction, the Court of Appeals
echoed similar observations, thus:

"x x x. While we may grant that the untidiness and filthiness of the clinic may not
by itself indicate negligence, it nevertheless shows the absence of due care and
supervision over her subordinate employees. Did this unsanitary condition permeate
the operating room? Were the surgical instruments properly sterilized? Could the
conditions in the OR have contributed to the infection of the patient? Only the
petitioner could answer these, but she opted not to testify. This could only give rise
to the presumption that she has nothing good to testify on her defense. Anyway, the
alleged "unverified statement of the prosecution witness" remains unchallenged and
unrebutted.

Issue:

Whether or not a physician has committed an "inexcusable lack of precaution" in the

treatment of his patient is to be determined according to the standard of care
observed by other members of the profession in good standing under similar
circumstances bearing in mind the advanced state of the profession at the time of
treatment or the present state of medical science.

Held:

The attending physician may have committed the lack of precaution if duly proven
with concrete evidence supporting such claim. But absence of the same will lead
such allegations as mere hearsay.

In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court
stated that in accepting a case, a doctor in effect represents that, having the needed
training and skill possessed by physicians and surgeons practicing in the same field,
he will employ such training, care and skill in the treatment of his patients. He
therefore has a duty to use at least the same level of care that any other reasonably
competent doctor would use to treat a condition under the same circumstances. It is
in this aspect of medical malpractice that expert testimony is essential to establish
not only the standard of care of the profession but also that the physician's conduct
in the treatment and care falls below such standard. Further, inasmuch as the causes
of the injuries involved in malpractice actions are determinable only in the light of
scientific knowledge, it has been recognized that expert testimony is usually
necessary to support the conclusion as to causation.

Immediately apparent from a review of the records of this case is the absence of any
expert testimony on the matter of the standard of care employed by other physicians
of good standing in the conduct of similar operations. The prosecution's expert
witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the
National Bureau of Investigation (NBI) only testified as to the possible cause of
death but did not venture to illuminate the court on the matter of the standard of care
that petitioner should have exercised.

All three courts below bewail the inadequacy of the facilities of the clinic and its
untidiness; the lack of provisions such as blood, oxygen, and certain medicines; the
failure to subject the patient to a cardio- pulmonary test prior to the operation; the
omission of any form of blood typing before transfusion; and even the subsequent
transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by
the petitioner. But while it may be true that the circumstances pointed out by the
courts below seemed beyond cavil to constitute reckless imprudence on the part of
the surgeon, this conclusion is still best arrived at not through the educated surmises
nor conjectures of laymen, including judges, but by the unquestionable knowledge
of expert witnesses. For whether a physician or surgeon has exercised the requisite
degree of skill and care in the treatment of his patient is, in the generality of cases, a
matter of expert opinion. The deference of courts to the expert opinion of qualified
physicians stems from its realization that the latter possess unusual technical skills
which laymen in most instances are incapable of intelligently evaluating. Expert
testimony should have been offered to prove that the circumstances cited by the
courts below are constitutive of conduct falling below the standard of care employed
by other physicians in good standing when performing the same operation. It must
be remembered that when the qualifications of a physician are admitted, as in the
instant case, there is an inevitable presumption that in proper cases he takes the
necessary precaution and employs the best of his knowledge and skill in attending
to his clients, unless the contrary is sufficiently

established. This presumption is rebuttable by expert opinion which is so sadly

lacking in the case at bench.

Even granting arguendo that the inadequacy of the facilities and untidiness of the
clinic; the lack of provisions; the failure to conduct pre-operation tests on the patient;
and the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation
performed on her by the petitioner do indicate, even without expert testimony, that
petitioner was recklessly imprudent in the exercise of her duties as a surgeon, no
cogent proof exists that any of these circumstances caused petitioner's death. Thus,
the absence of the fourth element of reckless imprudence: that the injury to the
person or property was a consequence of the reckless imprudence.

In litigations involving medical negligence, the plaintiff has the burden of

establishing appellant's negligence and for a reasonable conclusion of negligence,
there must be proof of breach of duty on the part of the surgeon as well as a casual
connection of such breach and the resulting death of his patient. In Chan Lugay v.
St Luke's Hospital, Inc., where the attending physician was absolved of liability for
the death of the complainant's wife and newborn baby, this court held that:
"In order that there may be a recovery for an injury, however, it must be shown that
the 'injury for which recovery is sought must be the legitimate consequence of the
wrong done; the connection between the negligence and the injury must be a direct
and natural sequence of events, unbroken by intervening efficient causes.' In other
words, the negligence must be the proximate cause of the injury. For, 'negligence,
no matter in what it consists, cannot create a right of action unless it is the proximate
cause of the injury complained of.' And 'the proximate cause of an injury is that
cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred.''' (Underscoring supplied.)

The petitioner is a doctor in whose hands a patient puts his life and limb. For
insufficiency of evidence this Court was not able to render a sentence of conviction
but it is not blind to the reckless and imprudent manner in which the petitioner
carried out her duties. A precious life has been lost and the circumstances leading
thereto exacerbated the grief of those left behind. The heirs of the deceased continue
to feel the loss of their mother up to the present time and this Court is aware that no
amount of compassion and commiseration nor words of bereavement can suffice to
assuage the sorrow felt for the loss of a loved one. Certainly, the award of moral and
exemplary damages in favor of the heirs of Lydia Umali are proper in the instant
case.

Hence, petitioner DR. NINEVETCH CRUZ is hereby ACQUITTED of the crime of

reckless imprudence resulting in homicide but is ordered to pay the heirs of the
deceased Lydia Umali the amount of FIFTY THOUSAND PESOS (P50,000.00) as
civil liability, ONE HUNDRED THOUSAND PESOS (P100,000.00) as moral
damages, and FIFTY THOUSAND PESOS (P50,000.00) as exemplary damages.

10.

10. [G.R. No. 124354. April 11, 2002] (new number 10)
ROGELIO E. RAMOS and ERLINDA RAMOS vs. COURT OF APPEALS, DE LOS SANTOS
MEDICAL CENTER, DR. ORLINO HOSAKA and DR. PERFECTA GUTIERREZ

Ramos vs. CA;

GR No. 124354 ; April 11, 2001

Facts:

After seeking professional help, Erlinda Ramos was advised to undergo an operation
for the removal of a stone in her gallbladder. She was referred to Dr. Hosaka who
agreed to do the operation and was further recommended to an anaesthesiologist, Dr.
Gutierrez.

On the day of the scheduled operation at De Los Santos Medical Center, around 9:30
in the morning Dr. Hosaka had not yet arrived so Dr. Gutierres tried to get in touch
with him by phone and informed Hermina Cruz, sister-in-law of Erlina who
accompanied Erlinda to the operating room, that the operation might be delayed. Dr.
Hosaka arrived around 12:20 in the afternoon, or more than three hours after the
scheduled operation.

Cruz, who was then still inside the operation room while still holding the hand of
Erlinda saw Dr. Gutierrez trying to intubate the patient and heard Dr. Gutierrez utter
“and hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan.”
Cruz then noticed bluish discoloration of Erlinda’s nailbeds on her left hand. She
then hear Osaka instructed someone to call another anestheologist in the name of Dr.
Calderon. Dr. Calderon then attempted to intubate the patient but still the nailbeds
of the patient remained bluish thus she was placed in a trendelenburg position.

At almost 3:00 in the afternoon, Cruz saw Erlinda being wheeled to the ICU and the
doctors explained to Rogelio that Erlinda his wife had bronchospasm. Erlinda stayed
in the ICU for a month. She was then released from the hospital after four months
and since then she remained in a comatose condition and died on August 1999.

Petitioner then filed with the RTC a civil case for damages against private
respondents. After due trial, RTC rendered judgment in favor of petitioners and
found the respondent negiligent in the performance of their duties to Erlinda. On
appeal, the CA reversed the RTC’s decision and directed the petitioners to pay their
“unpaid medical bills”.

Issue:
 Whether Dr. Hosaka and Gutierrez were liable for negligence. Held:

Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled operation
of petitioner Erlinda is violative, not only of his duty as a physician "to serve the
interest of his patients with the greatest solicitude, giving them always his best talent
and skill," but also of Article 19 of the Civil Code which requires a person, in the
performance of his duties, to act with justice and give everyone his due. 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 to exercise the standards of care in the
administration of anesthesia on a patient. Dr. Gutierrez omitted to perform a
thorough preoperative evaluation on Erlinda. Further, there is no cogent reason for
the Court to reverse its finding that it was the faulty intubation on Erlinda that caused
her comatose condition. There is no question that Erlinda became comatose after Dr.
Gutierrez performed a medical procedure on her.

FACTS
Petitioner Erlinda Ramos’ was under a comatose condition after she delivered
herself to De Los Santos Medical Center, Dr. Orlino Hosaka and Dr. Perfecta
Gutierrez for their professional care and management.

Petitioner Erlinda Ramos, after seeking professional medical help, was advised
to undergo an operation for the removal of a stone in her gall bladder
(cholecystectomy). She was referred to Dr. Hosaka, a surgeon, who agreed to
perform the operation on her. The operation was scheduled in the morning at
private respondent De Los Santos Medical Center (DLSMC). Dr. Hosaka
recommended to them the services of Dr. Gutierrez.
Petitioner Erlinda was admitted to the DLSMC the day before the scheduled
operation. By 7:30 in the morning of the following day, petitioner Erlinda was
already being prepared for operation. Her sister-in-law, Herminda Cruz, who was
then Dean of the College of Nursing at the Capitol Medical Center, was allowed to
accompany her inside the operating room.
9:30 am - Dr. Hosaka had not yet arrived. Dr. Gutierrez informed Cruz that the
operation might be delayed due to the late arrival of Dr. Hosaka.
10:00 am - Dr. Hosaka still not around
12:00 pm - Dr. Hosaka arrived at the hospital or more than three (3) hours after
the scheduled operation.
Cruz was then still inside the operating room, heard about Dr. Hosaka’s arrival.
While she held the hand of Erlinda, Cruz saw Dr. Gutierrez trying to intubate the
patient. Cruz heard Dr. Gutierrez utter: “ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan.” Cruz noticed a bluish discoloration of
Erlinda’s nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct
someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr.
Calderon attempted to intubate the patient. The nailbeds of the patient remained
bluish, thus, she was placed in a trendelenburg position – a position where the head
of the patient is placed in a position lower than her feet. At this point, Cruz went
out of the operating room to express her concern to petitioner Rogelio that
Erlinda’s operation was not going well.
Cruz quickly rushed back to the operating room and saw that the patient was
still in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda
being wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner
Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She
was released from the hospital only four months later or on November 15,
1985. Since the ill-fated operation, Erlinda remained in comatose condition until
she died on August 3, 1999
Petitioners filed a civil case for damages against private respondents. After due
trial, the court a quo rendered judgment in favor of petitioners. Essentially, the trial
court found that private respondents were negligent in the performance of their
duties to Erlinda. On appeal by private respondents, the Court of Appeals reversed
the trial court’s decision and directed petitioners to pay their “unpaid medical bills”
to private respondents.

ISSUE
1. WHETHER OR NOT DR. PERFECTA GUTIERREZ (ANESTHESIOLOGIST) IS
LIABLE FOR NEGLIGENCE;
2. WHETHER OR NOT DR. ORLINO HOSAKA (SURGEON) IS LIABLE FOR
NEGLIGENCE; AND
3. WHETHER OR NOT THE HOSPITAL (DELOS SANTOS MEDICAL CENTER) IS
LIABLE FOR ANY ACT OF NEGLIGENCE COMMITTED BY THEIR VISITING
CONSULTANT SURGEON AND ANESTHESIOLOGIST.

We shall first resolve the issue pertaining to private respondent Dr.

Gutierrez. 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 to exercise the standards of care in the administration of anesthesia on a
patient. Dr. Egay enlightened the Court on what these standards are:
 x x x What are the standards of care that an anesthesiologist should
do before we administer anesthesia? The initial step is the
preparation of the patient for surgery and this is a pre-operative
evaluation because the anesthesiologist is responsible for determining
the medical status of the patient, developing the anesthesia plan and
acquainting the patient or the responsible adult particularly if we are
referring with the patient or to adult patient who may not have, who
may have some mental handicaps of the proposed plans. We do pre-
operative evaluation because this provides for an opportunity for us
to establish identification and personal acquaintance with the
patient. It also makes us have an opportunity to alleviate anxiety,
explain techniques and risks to the patient, given the patient the
choice and establishing consent to proceed with the plan. And lastly,
once this has been agreed upon by all parties concerned 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 when we train an anesthesiologist we always
emphasize this because we need records for our protection, well,
records. And it entails having brief summary of patient history and
physical findings pertinent to anesthesia, plan, organize as a problem
list, the plan anesthesia technique, the plan post operative, pain
management if appropriate, special issues for this particular
patient. There are needs for special care after surgery and if it so it
must be written down there and a request must be made known to
proper authorities that such and such care is necessary. And the
request for medical evaluation if there is an indication. When we ask
for a cardio-pulmonary clearance it is not in fact to tell them if this
patient is going to be fit for anesthesia, the decision to give anesthesia
rests on the anesthesiologist. What we ask them is actually to give us
the functional capacity of certain systems which maybe affected by
the anesthetic agent or the technique that we are going to use. But
the burden of responsibility in terms of selection of agent and how to
administer it rest on the anesthesiologist.
The conduct of a preanesthetic/preoperative evaluation prior to an operation,
whether elective or emergency, cannot be dispensed with. Such evaluation is
necessary for the formulation of a plan of anesthesia care suited to the needs of
the patient concerned.
 Pre-evaluation for anesthesia involves taking the patient’s medical history,
reviewing his current drug therapy, conducting physical examination,
interpreting laboratory data, and determining the appropriate prescription of
preoperative medications as necessary to the conduct of anesthesia.
Physical examination of the patient entails not only evaluating the patient’s
central nervous system, cardiovascular system and lungs but also the upper airway.
Examination of the upper airway would in turn include an analysis of the patient’s
cervical spine mobility, temporomandibular mobility, prominent central incisors,
deceased or artificial teeth, ability to visualize uvula and the thyromental distance.
Nonetheless, Dr. Gutierrez omitted to perform a thorough preoperative
evaluation on Erlinda. As she herself admitted, she saw Erlinda for the first time on
the day of the operation itself, one hour before the scheduled operation. She
auscultated the patient’s heart and lungs and checked the latter’s blood pressure
to determine if Erlinda was indeed fit for operation. However, she did not proceed
to examine the patient’s airway. Had she been able to check petitioner Erlinda’s
airway prior to the operation, Dr. Gutierrez would most probably not have
experienced difficulty in intubating the former, and thus the resultant injury could
have been avoided. As we have stated in our Decision:
In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for
the first time on the day of the operation itself, on 17 June 1985. Before this date,
no prior consultations with, or pre-operative evaluation of Erlinda was done by
her. Until the day of the operation, respondent Dra. Gutierrez was unaware of the
physiological make-up and needs of Erlinda. She was likewise not properly
informed of the possible difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez’ act of seeing her patient for the
first time only an hour before the scheduled operative procedure was, therefore,
an act of exceptional negligence and professional irresponsibility. The measures
cautioning prudence and vigilance in dealing with human lives lie at the core of the
physician’s centuries-old Hippocratic Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of her negligence.
Further, there is no cogent reason for the Court to reverse its finding that it was
the faulty intubation on Erlinda that caused her comatose condition. There is no
question that Erlinda became comatose after Dr. Gutierrez performed a medical
procedure on her. Even the counsel of Dr. Gutierrez admitted to this fact during
the oral arguments:
 What is left to be determined therefore is whether Erlinda’s hapless condition
was due to any fault or negligence on the part of Dr. Gutierrez while she (Erlinda)
was under the latter’s care. Dr. Gutierrez maintains that the bronchospasm and
cardiac arrest resulting in the patient’s comatose condition was brought about by
the anaphylactic reaction of the patient to Thiopental Sodium (pentothal).[18] In the
Decision, we explained why we found Dr. Gutierrez’ theory unacceptable. In the
first place, Dr. Eduardo Jamora, the witness who was presented to support her (Dr.
Gutierrez) theory, was a pulmonologist. Thus, he could not be considered an
authority on anesthesia practice and procedure and their complications.[19]
Secondly, there was no evidence on record to support the theory that Erlinda
developed an allergic reaction to pentothal. Dr. Camagay enlightened the Court as
to the manifestations of an allergic reaction in this wise:
DR. CAMAGAY:
All right, let us qualify an allergic reaction. In medical terminology an allergic
reaction is something which is not usual response and it is further qualified
by the release of a hormone called histamine and histamine has an effect on
all the organs of the body generally release because the substance that
entered the body reacts with the particular cell, the mass cell, and the mass
cell secretes this histamine. In a way it is some form of response to take
away that which is not mine, which is not part of the body. So, histamine has
multiple effects on the body. So, one of the effects as you will see you will
have redness, if you have an allergy you will have tearing of the eyes, you will
have swelling, very crucial swelling sometimes of the larynges which is your
voice box main airway, that swelling may be enough to obstruct the entry of
air to the trachea and you could also have contraction, constriction of the
smaller airways beyond the trachea, you see you have the trachea this way,
we brought some visual aids but unfortunately we do not have a projector.
And then you have the smaller airways, the bronchi and then eventually into
the mass of the lungs you have the bronchus. The difference is that these
tubes have also in their walls muscles and this particular kind of muscles is
smooth muscle so, when histamine is released they close up like this and that
phenomenon is known as bronco spasm. However, the effects of histamine
also on blood vessels are different. They dilate blood vessel open up and the
patient or whoever has this histamine release has hypertension or low blood
pressure to a point that the patient may have decrease blood supply to the
brain and may collapse so, you may have people who have this.[20]
 These symptoms of an allergic reaction were not shown to have been extant in
Erlinda’s case. As we held in our Decision, “no evidence of stridor, skin reactions,
or wheezing – some of the more common accompanying signs of an allergic
reaction – appears on record. No laboratory data were ever presented to the
court.”[21]
Dr. Gutierrez, however, insists that she successfully intubated Erlinda as
evidenced by the fact that she was revived after suffering from cardiac arrest. Dr.
Gutierrez faults the Court for giving credence to the testimony of Cruz on the
matter of the administration of anesthesia when she (Cruz), being a nurse, was
allegedly not qualified to testify thereon. Rather, Dr. Gutierrez invites the Court’s
attention to her synopsis on what transpired during Erlinda’s intubation:
Patient was transferred to ICU for further management.[22]
From the foregoing, it can be allegedly seen that there was no withdrawal
(extubation) of the tube. And the fact that the cyanosis allegedly disappeared after
pure oxygen was supplied through the tube proved that it was properly placed.
The Court has reservations on giving evidentiary weight to the entries
purportedly contained in Dr. Gutierrez’ synopsis. It is significant to note that the
said record prepared by Dr. Gutierrez was made only after Erlinda was taken out of
the operating room. The standard practice in anesthesia is that every single act
that the anesthesiologist performs must be recorded. In Dr. Gutierrez’ case, she
could not account for at least ten (10) minutes of what happened during the
administration of anesthesia on Erlinda. The following exchange between Dr.
Estrella, one of the amicii curiae, and Dr. Gutierrez is instructive:
We cannot thus give full credence to Dr. Gutierrez’ synopsis in light of her
admission that it does not fully reflect the events that transpired during the
administration of anesthesia on Erlinda. As pointed out by Dr. Estrella, there was a
ten-minute gap in Dr. Gutierrez’ synopsis, i.e., the vital signs of Erlinda were not
recorded during that time. The absence of these data is particularly significant
because, as found by the trial court, it was the absence of oxygen supply for four
(4) to five (5) minutes that caused Erlinda’s comatose condition.
On the other hand, the Court has no reason to disbelieve the testimony of
Cruz. As we stated in the Decision, she is competent to testify on matters which
she is capable of observing such as, the statements and acts of the physician and
surgeon, external appearances and manifest conditions which are observable by
any one.[24] Cruz, Erlinda’s sister-in-law, was with her inside the operating
room. Moreover, being a nurse and Dean of the Capitol Medical Center School of
Nursing at that, she is not entirely ignorant of anesthetic procedure. Cruz narrated
that she heard Dr. Gutierrez remark, “Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan.” She observed that the nailbeds of Erlinda
became bluish and thereafter Erlinda was placed in trendelenburg position.[25] Cruz
further averred that she noticed that the abdomen of Erlinda became distended.[26]
The cyanosis (bluish discoloration of the skin or mucous membranes caused by
lack of oxygen or abnormal hemoglobin in the blood) and enlargement of the
stomach of Erlinda indicate that the endotracheal tube was improperly inserted
into the esophagus instead of the trachea. Consequently, oxygen was delivered
not to the lungs but to the gastrointestinal tract. This conclusion is supported by
the fact that Erlinda was placed in trendelenburg position. This indicates that there
was a decrease of blood supply to the patient’s brain. The brain was thus
temporarily deprived of oxygen supply causing Erlinda to go into coma.
The injury incurred by petitioner Erlinda does not normally happen absent any
negligence in the administration of anesthesia and in the use of an endotracheal
tube. As was noted in our Decision, the instruments used in the administration of
anesthesia, including the endotracheal tube, were all under the exclusive control
of private respondents Dr. Gutierrez and Dr. Hosaka.[27] In Voss vs.
Bridwell,[28] which involved a patient who suffered brain damage due to the
wrongful administration of anesthesia, and even before the scheduled mastoid
operation could be performed, the Kansas Supreme Court applied the doctrine
of res ipsa loquitur, reasoning that the injury to the patient therein was one which
does not ordinarily take place in the absence of negligence in the administration of
an anesthetic, and in the use and employment of an endotracheal tube. The court
went on to say that “[o]rdinarily a person being put under anesthesia is not
rendered decerebrate as a consequence of administering such anesthesia in the
absence of negligence. Upon these facts and under these circumstances, a layman
would be able to say, as a matter of common knowledge and observation, that the
consequences of professional treatment were not as such as would ordinarily have
followed if due care had been exercised.”[29]Considering the application of the
doctrine of res ipsa loquitur, the testimony of Cruz was properly given credence in
the case at bar.
For his part, Dr. Hosaka mainly contends that the Court erred in finding him
negligent as a surgeon by applying the Captain-of-the-Ship doctrine.[30] Dr. Hosaka
argues that the trend in United States jurisprudence has been to reject said
doctrine in light of the developments in medical practice. He points out that
anesthesiology and surgery are two distinct and specialized fields in medicine and
as a surgeon, he is not deemed to have control over the acts of Dr. Gutierrez. As
anesthesiologist, Dr. Gutierrez is a specialist in her field and has acquired skills and
knowledge in the course of her training which Dr. Hosaka, as a surgeon, does not
possess.[31] He states further that current American jurisprudence on the matter
recognizes that the trend towards specialization in medicine has created situations
where surgeons do not always have the right to control all personnel within the
operating room,[32] especially a fellow specialist.[33]
Dr. Hosaka cites the case of Thomas v. Raleigh General Hospital,[34] which
involved a suit filed by a patient who lost his voice due to the wrongful insertion of
the endotracheal tube preparatory to the administration of anesthesia in
connection with the laparotomy to be conducted on him. The patient sued both
the anesthesiologist and the surgeon for the injury suffered by him. The Supreme
Court of Appeals of West Virginia held that the surgeon could not be held liable for
the loss of the patient’s voice, considering that the surgeon did not have a hand in
the intubation of the patient. The court rejected the application of the “Captain-of-
the-Ship 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 liability based on
actual control more realistically reflects the actual relationship which exists in a
modern operating room.”[35] Hence, only the anesthesiologist who inserted the
endotracheal tube into the patient’s throat was held liable for the injury suffered
by the latter.
This contention fails to persuade.
That there is a trend in American jurisprudence to do away with the Captain-
of-the-Ship doctrine does not mean that this Court will ipso facto follow said
trend. Due regard for the peculiar factual circumstances obtaining in this case
justify the application of the Captain-of-the-Ship doctrine. From the facts on
record it can be logically inferred that Dr. Hosaka exercised a certain degree of, at
the very least, supervision over the procedure then being performed on Erlinda.
First, it was Dr. Hosaka who recommended to petitioners the services of Dr.
Gutierrez. In effect, he represented to petitioners that Dr. Gutierrez possessed the
necessary competence and skills. Drs. Hosaka and Gutierrez had worked together
since 1977. Whenever Dr. Hosaka performed a surgery, he would always engage
the services of Dr. Gutierrez to administer the anesthesia on his patient.[36]
Second, Dr. Hosaka himself admitted that he was the attending physician of
Erlinda. Thus, when Erlinda showed signs of cyanosis, it was Dr. Hosaka who gave
instructions to call for another anesthesiologist and cardiologist to help resuscitate
Erlinda.[37]
Third, it is conceded that in performing their responsibilities to the patient, Drs.
Hosaka and Gutierrez worked as a team. Their work cannot be placed in separate
watertight compartments because their duties intersect with each other.[38]
While the professional services of Dr. Hosaka and Dr. Gutierrez were secured
primarily for their performance of acts within their respective fields of expertise for
the treatment of petitioner Erlinda, and that one does not exercise control over the
other, they were certainly not completely independent of each other so as to
absolve one from the negligent acts of the other physician.
That they were working as a medical team is evident from the fact that Dr.
Hosaka was keeping an eye on the intubation of the patient by Dr. Gutierrez, and
while doing so, he observed that the patient’s nails had become dusky and had to
call Dr. Gutierrez’s attention thereto. The Court also notes that the counsel for Dr.
Hosaka admitted that in practice, the anesthesiologist would also have to observe
the surgeon’s acts during the surgical process and calls the attention of the surgeon
whenever necessary[39] in the course of the treatment. The duties of Dr.
Hosaka and those of Dr. Gutierrez in the treatment of petitioner Erlinda are
therefore not as clear-cut as respondents claim them to be. On the contrary, it is
quite apparent that they have a common responsibility to treat the patient, which
responsibility necessitates that they call each other’s attention to the condition of
the patient while the other physician is performing the necessary medical
procedures.
It is equally important to point out that Dr. Hosaka was remiss in his duty of
attending to petitioner Erlinda promptly, for he arrived more than three (3) hours
late for the scheduled operation. The cholecystectomy was set for June 17, 1985
at 9:00 a.m., but he arrived at DLSMC only at around 12:10 p.m. In reckless
disregard for his patient’s well being, Dr. Hosaka scheduled two procedures on the
same day, just thirty minutes apart from each other, at different hospitals. Thus,
when the first procedure (protoscopy) at the Sta. Teresita Hospital did not proceed
on time, Erlinda was kept in a state of uncertainty at the DLSMC.
The unreasonable delay in petitioner Erlinda’s scheduled operation subjected
her to continued starvation and consequently, to the risk of acidosis,[40] or the
condition of decreased alkalinity of the blood and tissues, marked by sickly sweet
breath, headache, nausea and vomiting, and visual disturbances.[41] The long period
that Dr. Hosaka made Erlinda wait for him certainly aggravated the anxiety that she
must have been feeling at the time. It could be safely said that her anxiety
adversely affected the administration of anesthesia on her. As explained by Dr.
Camagay, the patient’s anxiety usually causes the outpouring of adrenaline which
in turn results in high blood pressure or disturbances in the heart rhythm:
DR. CAMAGAY:
x x x Pre-operative medication has three main functions: One is to
alleviate anxiety. Second is to dry up the secretions and Third is to relieve
pain. Now, it is very important to alleviate anxiety because anxiety is
associated with the outpouring of certain substances formed in the body
called adrenalin. When a patient is anxious there is an outpouring of
adrenalin which would have adverse effect on the patient. One of it is high
blood pressure, the other is that he opens himself to disturbances in the
heart rhythm, which would have adverse implications. So, we would like to
alleviate patient’s anxiety mainly because he will not be in control of his body
there could be adverse results to surgery and he will be opened up; a knife
is going to open up his body. x x x[42]
Dr. Hosaka cannot now claim that he was entirely blameless of what happened
to Erlinda. His conduct clearly constituted a breach of his professional duties to
Erlinda:
Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled
operation of petitioner Erlinda is violative, not only of his duty as a physician “to
serve the interest of his patients with the greatest solicitude, giving them always
his best talent and skill,”[44] but also of Article 19 of the Civil Code which requires a
person, in the performance of his duties, to act with justice and give everyone his
due.
Anent private respondent DLSMC’s liability for the resulting injury to petitioner
Erlinda, we held that respondent hospital is solidarily liable with respondent
doctors therefor under Article 2180 of the Civil Code[45]since there exists an
employer-employee relationship between private respondent DLSMC and Drs.
Gutierrez and Hosaka:
In other words, private hospitals, hire, fire and exercise real control over their
attending and visiting “consultant” staff. While “consultants” are not, technically
employees, x x x the control exercised, the hiring and the right to terminate
consultants all fulfill the important hallmarks of an employer-employee
relationship, with the exception of the payment of wages. In assessing whether
such a relationship in fact exists, the control test is determining. x x x[46]
 DLSMC however contends that applying the four-fold test in determining
whether such a relationship exists between it and the respondent doctors, the
inescapable conclusion is that DLSMC cannot be considered an employer of the
respondent doctors.
It has been consistently held that in determining whether an employer-
employee relationship exists between the parties, the following elements must be
present: (1) selection and engagement of services; (2) payment of wages; (3) the
power to hire and fire; and (4) the power to control not only the end to be achieved,
but the means to be used in reaching such an end.[47]
DLSMC maintains that first, a hospital does not hire or engage the services of a
consultant, but rather, accredits the latter and grants him or her the privilege of
maintaining a clinic and/or admitting patients in the hospital upon a showing by
the consultant that he or she possesses the necessary qualifications, such as
accreditation by the appropriate board (diplomate), evidence of fellowship and
references.[48] Second, it is not the hospital but the patient who pays the
consultant’s fee for services rendered by the latter.[49] Third, a hospital does not
dismiss a consultant; instead, the latter may lose his or her accreditation or
privileges granted by the hospital.[50]Lastly, DLSMC argues that when a doctor
refers a patient for admission in a hospital, it is the doctor who prescribes the
treatment to be given to said patient. The hospital’s obligation is limited to
providing the patient with the preferred room accommodation, the nutritional diet
and medications prescribed by the doctor, the equipment and facilities necessary
for the treatment of the patient, as well as the services of the hospital staff who
perform the ministerial tasks of ensuring that the doctor’s orders are carried out
strictly.[51]
After a careful consideration of the arguments raised by DLSMC, the Court
finds that respondent hospital’s position on this issue is meritorious. There is no
employer-employee relationship between DLSMC and Drs. Gutierrez and Hosaka
which would hold DLSMC solidarily liable for the injury suffered by petitioner
Erlinda under Article 2180 of the Civil Code.
As explained by respondent hospital, that the admission of a physician to
membership in DLSMC’s medical staff as active or visiting consultant is first decided
upon by the Credentials Committee thereof, which is composed of the heads of the
various specialty departments such as the Department of Obstetrics and
Gynecology, Pediatrics, Surgery with the department head of the particular
specialty applied for as chairman. The Credentials Committee then recommends
to DLSMC's Medical Director or Hospital Administrator the acceptance or rejection
of the applicant physician, and said director or administrator validates the
committee's recommendation.[52] Similarly, in cases where a disciplinary action is
lodged against a consultant, the same is initiated by the department to whom the
consultant concerned belongs and filed with the Ethics Committee consisting of
the department specialty heads. The medical director/hospital administrator
merely acts as ex-officio member of said committee.
Neither is there any showing that it is DLSMC which pays any of its consultants
for medical services rendered by the latter to their respective
patients. Moreover, the contract between the consultant in respondent hospital
and his patient is separate and distinct from the contract between respondent
hospital and said patient. The first has for its object the rendition of medical
services by the consultant to the patient, while the second concerns the provision
by the hospital of facilities and services by its staff such as nurses and laboratory
personnel necessary for the proper treatment of the patient.
Further, no evidence was adduced to show that the injury suffered by
petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide
for hospital facilities and staff necessary for her treatment.
For these reasons, we reverse the finding of liability on the part of DLSMC for
the injury suffered by petitioner Erlinda.
Finally, the Court also deems it necessary to modify the award of damages to
petitioners in view of the supervening event of petitioner Erlinda’s death. In the
assailed Decision, the Court awarded actual damages of One Million Three Hundred
Fifty Two Thousand Pesos (P1,352,000.00) to cover the expenses for petitioner
Erlinda’s treatment and care from the date of promulgation of the Decision up to
the time the patient expires or survives.[53] In addition thereto, the Court awarded
temperate damages of One Million Five Hundred Thousand Pesos (P1,500,000.00)
in view of the chronic and continuing nature of petitioner Erlinda’s injury and the
certainty of further pecuniary loss by petitioners as a result of said injury, the
amount of which, however, could not be made with certainty at the time of the
promulgation of the decision. The Court justified such award in this manner:
Our rules on actual or compensatory damages generally assume that at the time of
litigation, the injury suffered as a consequence of an act of negligence has been
completed and that the cost can be liquidated. However, these provisions neglect
to take into account those situations, as in this case, where the resulting injury
might be continuing and possible future complications directly arising from the
injury, while certain to occur, are difficult to predict.
In these cases, the amount of damages which should be awarded, if they are to
adequately and correctly respond to the injury caused, should be one which
compensates for pecuniary loss incurred and proved, up to the time of
trial; and one which would meet pecuniary loss certain to be suffered but which
could not, from the nature of the case, be made with certainty. In other words,
temperate damages can and should be awarded on top of actual or compensatory
damages in instances where the injury is chronic and continuing. And because of
the unique nature of such cases, no incompatibility arises when both actual and
temperate damages are provided for. The reason is that these damages cover two
distinct phases.
As it would not be equitable—and certainly not in the best interests of the
administration of justice—for the victim in such cases to constantly come before
the courts and invoke their aid in seeking adjustments to the compensatory
damages previously awarded—temperate damages are appropriate. The amount
given as temperate damages, though to a certain extent speculative, should take
into account the cost of proper care.
In the instant case, petitioners were able to provide only home-based nursing care
for a comatose patient who has remained in that condition for over a
decade. Having premised our award for compensatory damages on the amount
provided by petitioners at the onset of litigation, it would be now much more in
step with the interests of justice if the value awarded for temperate damages
would allow petitioners to provide optimal care for their loved one in a facility
which generally specializes in such care. They should not be compelled by dire
circumstances to provide substandard care at home without the aid of
professionals, for anything less would be grossly inadequate. Under the
circumstances, an award of P1,500,000.00 in temperate damages would therefore
be reasonable.[54]
However, subsequent to the promulgation of the Decision, the Court was
informed by petitioner Rogelio that petitioner Erlinda died on August 3, 1999.[55] In
view of this supervening event, the award of temperate damages in addition to the
actual or compensatory damages would no longer be justified since the actual
damages awarded in the Decision are sufficient to cover the medical expenses
incurred by petitioners for the patient. Hence, only the amounts representing
actual, moral and exemplary damages, attorney’s fees and costs of suit should be
awarded to petitioners.
WHEREFORE, the assailed Decision is hereby modified as follows:
(1) Private respondent De Los Santos Medical Center is hereby absolved from
liability arising from the injury suffered by petitioner Erlinda Ramos on June 17,
1985;
(2) Private respondents Dr. Orlino Hosaka and Dr. Perfecta Gutierrez are hereby
declared to be solidarily liable for the injury suffered by petitioner Erlinda on June
17, 1985 and are ordered to pay petitioners—
(a) P1,352,000.00 as actual damages;
(b) P2,000,000.00 as moral damages;
(c) P100,000.00 as exemplary damages;
(d) P100,000.00 as attorney’s fees; and
(e) the costs of the suit.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Puno, and Ynares-Santiago, JJ., concur.

13.

MARITER MENDOZA vs. ADRIANO CASUMPANG et. al

G.R. No. 197987 March 19, 2012

FACTS:

On February 13, 1993 Josephine underwent hysterectomy and

myomectomy that Dr. Mendoza performed on her at the Iloilo Doctors’
Hospital. After her operation, Josephine experienced recurring fever,
nausea, and vomiting. Three months after the operation, she noticed while
taking a bath something protruding from her genital. She tried calling Dr.
Mendoza to report it but the latter was unavailable. Josephine instead went
to see another physician, Dr. Edna Jamandre-Gumban, who extracted a foul
smelling, partially expelled rolled gauze from her cervix.

The discovery of the gauze and the illness she went through prompted
Josephine to file a damage suit against Dr. Mendoza before the RTC of Iloilo
City. Because Josephine died before trial could end, her husband and their
children substituted her in the case. She was a housewife and 40 years old
when she died.

On March 7, 2005 the RTC rendered judgment, finding Dr. Mendoza

guilty of neglect that caused Josephine’s illness and eventual death and
ordering her to pay plaintiff’s heirs actual damages of P50,000.00, moral
damages of P200,000.00, and attorney’s fees of P20,000.00 plus costs of
suit. On motion for reconsideration, however, the RTC reversed itself and
dismissed the complaint in an order dated June 23, 2005.

On appeal, the Court of Appeals (CA) rendered a decision on March 18,

2011, reinstating the RTC’s original decision. The CA held that Dr. Mendoza
committed a breach of her duty as a physician when a gauze remained in her
patient’s body after surgery. The CA denied her motion for reconsideration
on July 18, 2011, prompting her to file the present petition.

ISSUE:
Whether or not there is medical negligence on the part of the doctor.

HELD:

Petitioner claims that no gauze or surgical material was left in

Josephine’s body after her surgery as evidenced by the surgical sponge count
in the hospital record. But she raises at this Court’s level a question of fact
when parties may raise only questions of law before it in petitions for review
on certiorari from the CA. With few exceptions, the factual findings of the
latter court are generally binding. None of those exceptions applies to this
case. As the RTC pointed out, Josephine did not undergo any other surgical
operation. And it would be much unlikely for her or for any woman to inject
a roll of gauze into her cervix.

The Court notes, however, that neither the CA nor the RTC awarded
exemplary damages against Dr. Mendoza when, under Article 2229 of the
Civil Code, exemplary damages are imposed by way of example or correction
for the public good, in addition to moral damages. Exemplary damages may
also be awarded in cases of gross negligence.

A surgical operation is the responsibility of the surgeon performing it.

He must personally ascertain that the counts of instruments and materials
used before the surgery and prior to sewing the patient up have been
correctly done. To provide an example to the medical profession and to stress
the need for constant vigilance in attending to a patient’s health, the award
of exemplary damages in this case is in order.

Further, in view of Josephine’s death resulting from petitioner’s

negligence, civil indemnity under Article 2206 of the Civil Code should be
given to respondents as heirs. The amount of P50,000.00 is fixed by
prevailing jurisprudence for this kind.

WHEREFORE, the Court entirely AFFIRMS the decision of the Court

of Appeals dated March 18, 2011 with the MODIFICATION ordering
petitioner Mariter Mendoza to pay respondents Adriano, Jennifer Adriane
and John Andre, all surnamed Casumpang, an additional P50,000.00 as
exemplary damages, additional P30,000.00 as attorney’s fees and civil
indemnity arising from death in the amount of P50,000.00.

MARITER MENDOZA VS. ADRIANO CASUMPANG, JENNIFER ADRIANE

and JOHN ANDRE, all surnamed CASUMPANG
 G.R. No. 197987 | March 19,
2012 | ABAD, J.:

DOCTRINE: A surgical operation is the responsibility of the surgeon

performing it. He must personally ascertain that the counts of instruments
and materials used before the surgery and prior to sewing the patient up
have been correctly done.

FACTS: On February 13, 1993 Josephine underwent hysterectomy and

myomectomy that Dr. Mendoza performed on her at the Iloilo Doctors
Hospital. After her operation, Josephine experienced recurring fever,
nausea, and vomiting. Three months after the operation, she noticed while
taking a bath something protruding from her genital. She tried calling Dr.
Mendoza to report it but the latter was unavailable. Josephine instead went
to see another physician, Dr. Edna Jamandre-Gumban, who extracted a foul
smelling, partially expelled rolled gauze from her cervix. Josephine died
before trial could end, her husband and their children substituted her in the
case. She was a housewife and 40 years old when she died.

The RTC rendered judgment, finding Dr. Mendoza guilty of neglect that
caused the illness and eventual death of Josephine. On motion for
reconsideration, however, the RTC reversed itself and dismissed the
complaint in a subsequent order. On appeal, the Court of Appeals (CA)
rendered a decision reinstating the RTCs original decision. The CA held that
Dr. Mendoza committed a breach of her duty as a physician when a gauze
remained in her patients body after surgery.

Petitioner claims that no gauze or surgical material was left in Josephines

body after her surgery as evidenced by the surgical sponge count in the
hospital record.

ISSUE: Whether or not Dr. Mendoza committed a breach of her duty as a

physician when a gauze remained in her patients body after surgery.

RULING: Yes. A surgical operation is the responsibility of the surgeon

performing it. He must personally ascertain that the counts of instruments
and materials used before the surgery and prior to sewing the patient up
have been correctly done.

Further, as the RTC pointed out, Josephine did not undergo any other
surgical operation. And it would be much unlikely for her or for any woman
to inject a roll of gauze into her cervix. As the Court held in Professional
Services, Inc. v. Agana:

An operation requiring the placing of sponges in the incision is not complete until
the sponges are properly removed, and it is settled that the leaving of sponges or
other foreign substances in the wound after the incision has been closed is at least
prima facie negligence by the operating surgeon. To put it simply, such act is
considered so inconsistent with due care as to raise an inference of negligence. There
are even legions of authorities to the effect that such act is negligence per se.
MARITER MENDOZA v. ADRIANO CASUMPANG, JENNIFER ADRIANE
AND JOHN ANDRE, ALL SURNAMED CASUMPANG
G.R. No. 197987, March 19, 2012

An operation requiring the placing of sponges in the incision is not complete until the sponges
are properly removed, and it is settled that the leaving of sponges or other foreign substances in the wound
after the incision has been closed is at least prima facie negligence by the operating surgeon. For this
reason, exemplary damages under Article 2229 of the Civil Code should be awarded.

14.

DR. EMMANUEL JARCIA, JR.and DR. G.R. No. 187926

MARILOU BASTAN,
Petitioners, Present:

CARPIO,* J.,
PERALTA,** Acting Chairperson,
ABAD,
- versus - PEREZ,*** and
MENDOZA, JJ.

Promulgated:

PEOPLE OF THEPHILIPPINES, February 15, 2012

Respondent.

x --------------------------------------------------------------------------------------- x
DECISION

MENDOZA, J.:

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

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

THE FACTS

Belinda Santiago (Mrs. Santiago) lodged a complaint with the National

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

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

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

WHEREFORE, premises considered, the Court finds accused DR.

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

It appearing that Dr. Pamittan has not been apprehended nor

voluntarily surrendered despite warrant issued for her arrest, let
warrant be issued for her arrest and the case against her be ARCHIVED,
to be reinstated upon her apprehension.

SO ORDERED.

The RTC explained:

After a thorough and in depth evaluation of the evidence

adduced by the prosecution and the defense, this court finds that the
evidence of the prosecution is the more credible, concrete and
sufficient to create that moral certainty in the mind of the Court that
accused herein [are] criminally responsible. The Court believes that
accused are negligent when both failed to exercise the necessary and
reasonable prudence in ascertaining the extent of injury of Alfonso
Santiago, Jr.

However, the negligence exhibited by the two doctors does not

approximate negligence of a reckless nature but merely amounts to
simple imprudence. Simple imprudence consists in the lack of
precaution displayed in those cases in which the damage impending
to be caused is not the immediate nor the danger clearly
manifest. The elements of simple imprudence are as follows.

1. that there is lack of precaution on the part of the

offender; and

2. that the damage impending to be caused is not

immediate of the danger is not clearly manifest.
 Considering all the evidence on record, The Court finds the
accused guilty for simple imprudence resulting to physical
injuries. Under Article 365 of the Revised Penal Code, the penalty
provided for is arresto mayor in its minimum period.

Dissatisfied, the petitioners appealed to the CA.

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

This Court holds concurrently and finds the foregoing

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

Whether or not Dr. Jarcia and Dr. Bastan had committed an

“inexcusable lack of precaution” in the treatment of their patient is to
be determined according to the standard of care observed by other
members of the profession in good standing under
similar circumstances, bearing in mind the advanced state of the
profession at the time of treatment or the present state of medical
science. In the case of Leonila Garcia-Rueda v. Pascasio, the Supreme
Court stated that, in accepting a case, a doctor in effect represents
that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training,
care and skill in the treatment of his patients. He therefore has a duty
to use at least the same level of care that any other reasonably
competent doctor would use to treat a condition under the same
circumstances.

In litigations involving medical negligence, the plaintiff has the

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

In the case at bench, the accused-appellants questioned the

imputation against them and argued that there is no causal connection
between their failure to diagnose the fracture and the injury sustained
by Roy.

We are not convinced.

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

For a more logical presentation of the discussion, we shall first

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

The specific acts of negligence was narrated by Mrs. Santiago

who accompanied her son during the latter’s ordeal at the hospital.
She testified as follows:

Still, before resort to the doctrine may be allowed, the following

requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not

occur in the absence of someone’s negligence;
 2. It is caused by an instrumentality within the
exclusive control of the defendant or defendants; and

3. The possibility of contributing conduct which would

make the plaintiff responsible is eliminated.

In the above requisites, the fundamental element is the

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

The testimony of Mrs. Santiago was corroborated by a bone

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

Res ipsa loquitur is not a rigid or ordinary doctrine to be

perfunctorily used but a rule to be cautiously applied, depending upon
the circumstances of each case. It is generally restricted to situations
in malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences of
professional care were not as such as would ordinarily have followed
if due care had been exercised. A distinction must be made between
the failure to secure results and the occurrence of something more
unusual and not ordinarily found if the service or treatment rendered
followed the usual procedure of those skilled in that particular
practice. The latter circumstance is the primordial issue that
confronted this Court and we find application of the doctrine of res
ipsa loquitur to be in order.
 WHEREFORE, in view of the foregoing, the appeal in this case is
hereby DISMISSED and the assailed decision of the trial court finding
accused-appellants guilty beyond reasonable doubt of simple
imprudence resulting in serious physical injuries is
hereby AFFIRMED in toto.

SO ORDERED.

The petitioners filed a motion for reconsideration, but it was denied by

the CA in its May 19, 2009 Resolution.

Hence, this petition.

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

1. IN AFFIRMING ACCUSED-PETITIONERS’ CONVICTION,

THE COURT OF APPEALS ERRED IN NOT HOLDING THAT THE ACTUAL,
DIRECT, IMMEDIATE, AND PROXIMATE CAUSE OF THE PHYSICAL
INJURY OF THE PATIENT (FRACTURE OF THE LEG BONE OR TIBIA),
WHICH REQUIRED MEDICAL ATTENDANCE FOR MORE THAN THIRTY
(30) DAYS AND INCAPACITATED HIM FROM PERFORMING HIS
CUSTOMARY DUTY DURING THE SAME PERIOD OF TIME, WAS THE
VEHICULAR ACCIDENT WHERE THE PATIENT’S RIGHT LEG WAS HIT BY
A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT
THE PATIENT’S WHOLE LEG TO AN X-RAY EXAMINATION.
 2. THE COURT OF APPEALS ERRED IN DISREGARDING
ESTABLISHED FACTS CLEARLY NEGATING PETITIONERS’ ALLEGED
NEGLIGENCE OR IMPRUDENCE. SIGNIFICANTLY, THE COURT OF
APPEALS UNJUSTIFIABLY DISREGARDED THE OPINION OF THE
PROSECUTION’S EXPERT WITNESS, DR. CIRILO TACATA, THAT
PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR IMPRUDENCE
COMPLAINED OF.

3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE

FAILURE OF PETITIONERS TO SUBJECT THE PATIENT’S WHOLE LEG TO
AN X-RAY EXAMINATION PROLONGED THE PAIN AND SUFFERING OF
THE PATIENT, SUCH CONCLUSION BEING UNSUPPORTED BY, AND
EVEN CONTRARY TO, THE EVIDENCE ON RECORD.

4. ASSUMING ARGUENDO THAT THE PATIENT

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

5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT

NO PHYSICIAN-PATIENT RELATIONSHIP EXISTED BETWEEN
PETITIONERS AND PATIENT ALFONSO SANTIAGO, JR., PETITIONERS
NOT BEING THE LATTER’S ATTENDING PHYSICIAN AS THEY WERE
MERELY REQUESTED BY THE EMERGENCY ROOM (ER) NURSE TO SEE
 THE PATIENT WHILE THEY WERE PASSING BY THE ER FOR THEIR
LUNCH.

6. THE COURT OF APPEALS GRAVELY ERRED IN NOT

ACQUITTING ACCUSED-PETITIONERS OF THE CRIME CHARGED.”

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

THE COURT’S RULING

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

As to the Application of
The Doctrine of Res Ipsa Loquitur

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

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

The requisites for the application of the doctrine of res ipsa

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

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

As to Dr. Jarcia and

Dr. Bastan’s negligence

The totality of the evidence on record clearly points to the negligence of the
petitioners. At the risk of being repetitious, the Court, however, is not satisfied that
Dr. Jarcia and Dr. Bastan are criminally negligent in this case.

Negligence is defined as the failure to observe for the protection of the

interests of another person that degree of care, precaution, and vigilance which
the circumstances justly demand, whereby such other person suffers injury.[14]

Reckless imprudence consists of voluntarily doing or failing to do, without

malice, an act from which material damage results by reason of an inexcusable lack
of precautionon the part of the person performing or failing to perform such act.[15]
 The elements of simple negligence are: (1) that there is lack of precaution on
the part of the offender, and (2) that the damage impending to be caused is not
immediate or the danger is not clearly manifest.[16]

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

The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric

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

It can be gleaned from the testimony of Dr. Tacata that a thorough

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

Although the Court sympathizes with the plight of the mother and the child
in this case, the Court is bound by the dictates of justice which hold inviolable the
right of the accused to be presumed innocent until proven guilty beyond
reasonable doubt. The Court, nevertheless, finds the petitioners civilly liable for
their failure to sufficiently attend to Roy Jr.’s medical needs when the latter was
rushed to the ER, for while a criminal conviction requires proof beyond reasonable
doubt, only a preponderance of evidence is required to establish civil liability.
Taken into account also was the fact that there was no bad faith on their part.

Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit
the victim. It may be true that the actual, direct, immediate, and proximate cause
of the injury (fracture of the leg bone or tibia) of Roy Jr. was the vehicular accident
when he was hit by a taxi. The petitioners, however, cannot simply invoke such
fact alone to excuse themselves from any liability. If this would be so, doctors would
have a ready defense should they fail to do their job in attending to victims of hit-
and-run, maltreatment, and other crimes of violence in which the actual, direct,
immediate, and proximate cause of the injury is indubitably the act of the
perpetrator/s.

In failing to perform an extensive medical examination to determine the

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

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

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

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

Indubitably, a physician-patient relationship exists between the petitioners

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

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

All told, the petitioners were, indeed, negligent but only civilly, and not
criminally, liable as the facts show.

Article II, Section 1 of the Code of Medical Ethics of the Medical Profession
in the Philippines states:

A physician should attend to his patients faithfully and

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

Established medical procedures and practices, though in constant

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

As to the Award of
Damages

While no criminal negligence was found in the petitioners’ failure to

administer the necessary medical attention to Roy Jr., the Court holds them civilly
liable for the resulting damages to their patient. While it was the taxi driver who
ran over the foot or leg of Roy Jr., their negligence was doubtless contributory.

It appears undisputed that the amount of ₱3,850.00, as expenses incurred

by patient Roy Jr., was adequately supported by receipts. The Court, therefore,
finds the petitioners liable to pay this amount by way of actual damages.

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

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

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

WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of

Appeals dated August 29, 2008 is REVERSED and SET ASIDE. A new judgment is
entered ACQUITTING Dr. Emmanuel Jarcia, Jr. and Dr. Marilou Bastan of the crime
of reckless imprudence resulting to serious physical injuries but declaring them
civilly liable in the amounts of:
 (1) ₱3,850.00 as actual damages;
(2) ₱100,000.00 as moral damages;
(3) ₱50,000.00 as exemplary damages; and
(4) Costs of the suit.

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

SO ORDERED.