584 SUPREME COURT REPORTS ANNOTATED
Court of Appeals
Ramos vs. Court of Appeals
G.R. No. 124354. December 29, 1999. *
ROGELIO E. RAMOS and ERLINDA RAMOS, in their own
behalf and as natural guardians of the minors, ROMMEL
RAMOS, ROY RODERICK RAMOS and RON RAYMOND
RAMOS, petitioners, vs. COURT OF APPEALS, DELOS
SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and
DRA. PERFECTA GUTIERREZ, respondents.
Remedial Law; Pleadings and Practice; When a party is represented by
counsel, all notices should be sent to the party’s lawyer at his given
address.—It is elementary that when a party is represented by
counsel, all notices should be sent to the party’s lawyer at his given
address. With a few exceptions, notice to a litigant without notice
to his counsel on record is no notice at all. In the present case, since
a copy of the decision of the appellate court was not sent to the
counsel on record of petitioner, there can be no sufficient notice to
speak of. Hence, the delay in the filing of the motion for
reconsideration cannot be taken against petitioner.
Same; Evidence; Res Ipsa Loquitur; Doctrine of Res Ipsa Loquitur.—Res
ipsa loquitur is a Latin phrase which literally means “the thing or the
transaction speaks for itself.” The phrase “res ipsa loquitur” is a
maxim for the rule that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an inference or
raise a presumption of negligence, or make out a plaintiff’s prima
facie case, and present a question of fact for defendant to meet with
an explanation. Where the thing which caused the injury
complained of is shown to be under the management of the defen-
________________
* FIRST DIVISION.
585
VOL. 321, DECEMBER 29, 1999 585
Ramos vs.
dant or his servants and the accident is such as in ordinary course
of things does not happen if those who have its management or
control use proper care, it affords reasonable evidence, in the
absence of explanation by the defendant, that the accident arose
from or was caused by the defendant’s want of care.
Same; Same; Same; Same; Res Ipsa Loquitur is applied in conjunction with
the doctrine of common knowledge.—The doctrine of res ipsa loquitur is
simply a recognition of the postulate that, as a matter of common
knowledge and experience, the very nature of certain types of
occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the
absence of some explanation by the defendant who is charged with
negligence. It is grounded in the superior logic of ordinary human
experience and on the basis of such experience or common
knowledge, negligence may be deduced from the mere occurrence
of the accident itself. Hence, res ipsa loquitur is applied in
conjunction with the doctrine of common knowledge.
Same; Same; Same; Same; Mere invocation and application of the doctrine
does not dispense with the requirement of proof of negligence; Requisites
before resort to the doctrine may be allowed.—Much has been said that
res ipsa loquitur is not a rule of substantive law and, as such, does
not create or constitute an independent or separate ground of
liability. Instead, it is considered as merely evidentiary or in the
nature of a procedural rule. It is regarded as a mode of proof, or a
mere procedural convenience since it furnishes a substitute for, and
relieves a plaintiff of, the burden of producing specific proof of
negligence. In other words, mere invocation and application of the
doctrine does not dispense with the requirement of proof of
negligence. It is simply a step in the process of such proof,
permitting the plaintiff to present along with the proof of the
accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence, and
to thereby place on the defendant the burden of going forward with
the proof. Still, before resort to the doctrine may be allowed, the
following requisites must be satisfactorily shown: 1. The accident is
of a kind which ordinarily does not occur in the absence of
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.
586
586 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
Same; Same; Same; Same; When the doctrine of res ipsa loqui-tur is availed
by the plaintiff, the need for expert medical testimony is dispensed with
because the injury itself provides the proof of negligence.—Although
generally, expert medical testimony is relied upon in malpractice
suits to prove that a physician has done a negligent act or that he
has deviated from the standard medical procedure, when the
doctrine of res ipsa loquitur is availed by the plaintiff, the need for
expert medical testimony is dispensed with because the injury itself
provides the proof of negligence. The reason is that the general rule
on the necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to matters
that are within the common knowledge of mankind which may be
testified to by anyone familiar with the facts. Ordinarily, only
physicians and surgeons of skill and experience are competent to
testify as to whether a patient has been treated or operated upon
with a reasonable degree of skill and care. However, testimony as
to the statements and acts of physicians and surgeons, external
appearances, and manifest conditions which are observable by any
one may be given by non-expert witnesses.
Same; Same; Same; Same; Res ipsa loquitur is not a rigid or ordinary
doctrine to be perfunctorily used but a rule to be cautiously applied
depending upon the circumstances of each case.—Despite the fact that
the scope of res ipsa loquitur has been measurably enlarged, it does
not automatically apply to all cases of medical negligence as to
mechanically shift the burden of proof to the defendant to show
that he is not guilty of the ascribed negligence. Res ipsa loquitur is
not a rigid or ordinary doctrine to be perfunctorily used but a rule
to be cautiously applied, depending upon the circumstances of each
case. It is generally restricted to situations in malpractice cases
where a layman is able to say, as a matter of common knowledge
and observation, that the consequences of professional care were
not as such as would ordinarily have followed if due care had been
exercised.
Same; Same; Same; Same; Res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result of an
operation or treatment was not accomplished.—It must be conceded
that the doctrine of res ipsa loquitur can have no application in a suit
against a physician or surgeon which involves the merits of a
diagnosis or of a scientific treatment. The physician or surgeon is
not required at his peril to explain why any particular diagnosis
was not correct, or why any particular scientific treatment did not
produce
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VOL. 321, DECEMBER 29, 1999 587
Ramos vs. Court of Appeals
the desired result. Thus, res ipsa loquitur is not available in a
malpractice suit if the only showing is that the desired result of an
operation or treatment was not accomplished.
Hospitals; Damages; Proximate Cause Defined.—Proximate cause has
been defined as that which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces injury, and
without which the result would not have occurred. An injury or
damage is proximately caused by an act or a failure to act,
whenever it appears from the evidence in the case, that the act or
omission played a substantial part in bringing about or actually
causing the injury or damage; and that the injury or damage was
either a direct result or a reasonably probable consequence of the
act or omission. It is the dominant, moving or producing cause.
Same; Same; For the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists
between hospitals and their attending and visiting physicians.—Private
hospitals, hire, fire and exercise real control over their attending
and visiting “consultant” staff. While “consultants” are not,
technically employees, a point which respondent hospital asserts in
denying all responsibility for the 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.
Same; Same; The basis for holding an employer solidarily responsible for
the negligence of its employee is found in Article 2180 of the Civil Code.—
The basis for holding an employer solidarily responsible for the
negligence of its employee is found in Article 2180 of the Civil Code
which considers a person accountable not only for his own acts but
also for those of others based on the former’s responsibility under
a relationship of patria potestas. Such responsibility ceases when the
persons or entity concerned prove that they have observed the
diligence of a good father of the family to prevent damage. In other
words, while the burden of proving negligence rests
588
588 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
on the plaintiffs, once negligence is shown, the burden shifts to the
respondents (parent, guardian, teacher or employer) who should
prove that they observed the diligence of a good father of a family
to prevent damage.
Same; Same; Amount of damages awarded may be a continuing one where
the injury is chronic and continuing, as when the patient is comatose.—
In these cases, the amount of damages which should be awarded, if
they are to adequately and correctly respond to the injury caused,
should be one which compensates for pecuniary loss incurred and
proved, up to the time of trial; and one which would meet pecuniary
loss certain to be suffered but which could not, from the nature of
the case, be made with certainty. In other words, temperate
damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and
continuing. And because of the unique nature of such cases, no
incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct
phases.
PETITION for review on certiorari of a decision of the Court
of Appeals.
The facts are stated in the opinion of the Court.
Luis C.A. Sillano for petitioners.
Macarius S. Galutera for private respondent De los Santos
Medical Center.
Tanjuatco, Sta. Maria, Tanjuatco collaborating counsel for
DLSMC.
Antonio H. Abad & Associates for respondent doctors.
KAPUNAN, J.:
The Hippocratic Oath mandates physicians to give
primordial consideration to the health and welfare of their
patients. If a doctor fails to live up to this precept, he is made
accountable for his acts. A mistake, through gross negligence
or incompetence or plain human error, may spell the
difference
589
VOL. 321, DECEMBER 29, 1999 589
Ramos vs. Court of Appeals
between life and death. In this sense, the doctor plays God on
his patient’s fate.
1
In the case at bar, the Court is called upon to rule whether a
surgeon, an anesthesiologist and a hospital should be made
liable for the unfortunate comatose condition of a patient
scheduled for cholecystectomy. 2 590
Petitioners seek the reversal of the decision of the Court of
3 590
Appeals, dated 29 May 1995, which overturned the decision
of the Regional Trial Court, dated 30 January 1992, finding
private respondents liable for damages arising from
negligence in the performance of their professional duties
towards petitioner Erlinda Ramos resulting in her comatose
condition.
The antecedent facts as summarized by the trial court are
reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a
47-year old (Exh. “A”) robust woman (TSN, October 19, 1989, p. 10).
Except for occasional complaints of discomfort due to pains
allegedly caused by the presence of a stone in her gall bladder (TSN,
January 13, 1988, pp. 4-5), she was as normal as any other woman.
Married to Rogelio E. Ramos, an executive of Philippine Long
Distance Telephone Company, she has three children whose names
are
________________
1 In the United States alone, a great number of people die every year as
a result of medical mishaps. The 13 December 1999 issue of TIME
MAGAZINE featured an article on medical negligence entitled
“Doctors’ Deadly Mistakes” which is quoted in part: “It is hardly news
that medical professionals make mistakes—even dumb, deadly
mistakes. What is shocking is how often it happens. Depending on
which statistics you believe, the number of Americans killed by
medical screw-ups is somewhere between 44,000 and 98,000 every
year—the eighth leading cause of death even by the more conservative
figure, ahead of car crashes, breast cancer and AIDS. More astonishing
than the huge numbers themselves, though, is the fact that public
health officials had known about the problem for years and hadn’t
made a concerted effort to do something about it.”
2 Cholecystectomy is the surgical excision of the gall bladder.
3 CA Rollo, pp. 129-140.
4 Records, pp. 270-279.
SUPREME COURT REPORTS ANNOTATED
4 Ramos vs. Court of Appeals
Rommel Ramos, Roy Roderick Ramos and Ron Raymond Ramos
(TSN, October 19, 1989, pp. 5-6).
Because the discomforts somehow interfered with her normal
ways, she sought professional advice. She was advised to undergo
an operation for the removal of a stone in her gall bladder (TSN,
January 13, 1988, p. 5). She underwent a series of examinations
which included blood and urine tests (Exhs. “A” and “C”) which
indicated she was fit for surgery.
Through the intercession of a mutual friend, Dr. Buenviaje (TSN,
January 13, 1988, p. 7), she and her husband Rogelio met for the first
time Dr. Orlino Hozaka (should be Hosaka; see TSN, February 20,
1990, p. 3), one of the defendants in this case, on June 10, 1985. They
agreed that their date at the operating table at the DLSMC (another
defendant), would be on June 17, 1985 at 9:00 A.M. Dr. Hosaka
decided that she should undergo a “cholecystectomy” operation
after examining the documents (findings from the Capitol Medical
Center, FEU Hospital and DLSMC) presented to him. Rogelio E.
Ramos, however, asked Dr. Hosaka to look for a good
anesthesiologist. Dr. Hosaka, in turn, assured Rogelio that he will
get a good anesthesiologist. Dr. Hosaka charged a fee of P16,000.00,
which was to include the anesthesiologist’s fee and which was to
be paid after the operation (TSN, October 19, 1989, pp. 14-15, 22-23,
31-33; TSN, February 27, 1990, p. 13; and TSN, November 9, 1989,
pp. 3-4, 10, 17).
A day before the scheduled date of operation, she was admitted at
one of the rooms of the DLSMC, located along E. Rodriguez
Avenue, Quezon City (TSN, October 19, 1989, p. 11).
At around 7:30 A.M. of June 17, 1985 and while still in her room,
she was prepared for the operation by the hospital staff. Her sister-
in-law, Herminda Cruz, who was the Dean of the College of
Nursing at the Capitol Medical Center, was also there for moral
support. She reiterated her previous request for Herminda to be
with her even during the operation. After praying, she was given
injections. Her hands were held by Herminda as they went down
from her room to the operating room (TSN, January 13, 1988, pp. 9-
11). Her husband, Rogelio, was also with her (TSN, October 19,
1989, p. 18). At the operating room, Herminda saw about two or
three nurses and Dr. Perfecta Gutierrez, the other defendant, who
was to administer anesthesia. Although not a member of the
hospital staff, Herminda introduced herself as Dean of the College
of Nursing at the Capitol Medical Center who was to provide moral
591
VOL. 321, DECEMBER 29, 1999 591
Ramos vs. Court of Appeals
support to the patient, to them. Herminda was allowed to stay
inside the operating room.
At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look
for Dr. Hosaka who was not yet in (TSN, January 13, 1988, pp. 11-
12). Dr. Gutierrez thereafter informed Herminda Cruz about the
prospect of a delay in the arrival of Dr. Hosaka. Herminda then
went back to the patient who asked, “Mindy, wala pa ba ang
Doctor”? The former replied, “Huwag kang mag-alaala, darating
na iyon” (ibid.).
Thereafter, Herminda went out of the operating room and
informed the patient’s husband, Rogelio, that the doctor was not
yet around (id., p. 13). When she returned to the operating room,
the patient told her, “Mindy, inip na inip na ako, ikuha mo ako ng
ibang Doctor.” So, she went out again and told Rogelio about what
the patient said (id., p. 15). Thereafter, she returned to the operating
room.
At around 10:00 A.M., Rogelio E. Ramos was “already dying [and]
waiting for the arrival of the doctor” even as he did his best to find
somebody who will allow him to pull out his wife from the
operating room (TSN, October 19, 1989, pp. 19-20). He also thought
of the feeling of his wife, who was inside the operating room
waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met
Dr. Garcia who remarked that he (Dr. Garcia) was also tired of
waiting for Dr. Hosaka to arrive (id., p. 21). While talking to Dr.
Garcia at around 12:10 P.M., he came to know that Dr. Hosaka
arrived as a nurse remarked, “Nandiyan na si Dr. Hosaka,
dumating na raw.” Upon hearing those words, he went down to
the lobby and waited for the operation to be completed (id., pp. 16,
29-30).
At about 12:15 P.M., Herminda Cruz, who was inside the operating
room with the patient, heard somebody say that “Dr. Hosaka is
already here.” She then saw people inside the operating room
“moving, doing this and that, [and] preparing the patient for the
operation” (TSN, January 13, 1988, p. 16). As she held the hand of
Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless
patient. She thereafter heard Dr. Gutierrez say, “ang hirap
maintubate nito, mali yata ang pagkakapasok. O lumalaki ang
tiyan” (id., p. 17). Because of the remarks of Dra. Gutierrez, she
focused her attention on what Dr. Gutierrez was doing. She
thereafter noticed bluish discoloration of the nailbeds of the left
hand of the hapless Erlinda even as Dr. Hosaka approached her.
She then heard Dr. Hosaka issue an order for someone to call Dr.
Calderon, another anesthesiologist (id., p. 19). After Dr. Calderon
arrived at the oper-
592
592 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
ating room, she saw this anesthesiologist trying to intubate the
patient. The patient’s nailbed became bluish and the patient was
placed in a trendelenburg position—a position where the head of
the patient is placed in a position lower than her feet which is an
indication that there is a decrease of blood supply to the patient’s
brain (id., pp. 19-20). Immediately thereafter, she went out of the
operating room, and she told Rogelio E. Ramos “that something
wrong was x x x happening” (ibid.). Dr. Calderon was then able to
intubate the patient (TSN, July 25, 1991, p. 9).
Meanwhile, Rogelio, who was outside the operating room, saw a
respiratory machine being rushed towards the door of the
operating room. He also saw several doctors rushing towards the
operating room. When informed by Herminda Cruz that something
wrong was happening, he told her (Herminda) to be back with the
patient inside the operating room (TSN, October 19, 1989, pp. 25-
28).
Herminda Cruz immediately rushed back, and saw that the patient
was still in trendelenburg position (TSN, January 13, 1988, p. 20).
At almost 3:00 P.M. of that fateful day, she saw the patient taken to
the Intensive Care Unit (ICU).
About two days thereafter, Rogelio E. Ramos was able to talk to Dr.
Hosaka. The latter informed the former that something went wrong
during the intubation. Reacting to what was told to him, Rogelio
reminded the doctor that the condition of his wife would not have
happened, had he (Dr. Hosaka) looked for a good anesthesiologist
(TSN, October 19, 1989, p. 31).
Doctors Gutierrez and Hosaka were also asked by the hospital to
explain what happened to the patient. The doctors explained that
the patient had bronchospasm (TSN, November 15, 1990, pp. 26-
27).
Erlinda Ramos stayed at the ICU for a month. About four months
thereafter or on November 15, 1985, the patient was released from
the hospital.
During the whole period of her confinement, she incurred hospital
bills amounting to P93,542.25 which is the subject of a promissory
note and affidavit of undertaking executed by Rogelio E. Ramos in
favor of DLSMC. Since that fateful afternoon of June 17, 1985, she
has been in a comatose condition. She cannot do anything. She
cannot move any part of her body. She cannot see or hear. She is
living on mechanical means. She suffered brain damage as a result
of the absence of oxygen in her brain for four to five minutes (TSN,
November 9, 1989, pp. 21-22). After being discharged from the
hospital, she has been staying in their residence, still needing
constant
593
VOL. 321, DECEMBER 29, 1999 593
Ramos vs. Court of Appeals
medical attention, with her husband Rogelio incurring a monthly
expense ranging from P8,000.00 to P10,000.00 (TSN, October 19,
1989, pp. 32-34). She was also diagnosed to be suffering from
“diffuse cerebral parenchymal damage” (Exh. “G”; see also TSN,
December 21, 1989, p. 6).5
Thus, on 8 January 1986, petitioners filed a civil case for 6
damages with the Regional Trial Court of Quezon City
against herein private respondents alleging negligence in the
management and care of Erlinda Ramos.
During the trial, both parties presented evidence as to the
possible cause of Erlinda’s injury. Plaintiff presented the
testimonies of Dean Herminda Cruz and Dr. Mariano Gavino
to prove that the damage sustained by Erlinda was due to lack
of oxygen in her brain caused by the faulty management of
her airway by private respondents during the anesthesia
phase. On the other hand, private respondents primarily
relied on the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain damage
was Erlinda’s allergic reaction to the anesthetic agent,
Thiopental Sodium (Pentothal).
After considering the evidence from both sides, the Regional
Trial Court rendered judgment in favor of petitioners, to wit:
After evaluating the evidence as shown in the finding of facts set
forth earlier, and applying the aforecited provisions of law and
jurisprudence to the case at bar, this Court finds and so holds that
defendants are liable to plaintiffs for damages. The defendants
were guilty of, at the very least, negligence in the performance of
their duty to plaintiff-patient Erlinda Ramos.
On the part of Dr. Perfecta Gutierrez, this Court finds that she
omitted to exercise reasonable care in not only intubating the
patient, but also in not repeating the administration of atropine
(TSN, August 20, 1991, pp. 5-10), without due regard to the fact that
the patient was inside the operating room for almost three (3)
hours. For
________________
5 Id. at 270-275.
6 Docketed as Civil Case No. Q-46885.
594
594 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
after she committed a mistake in intubating [the] patient, the
patient’s nailbed became bluish and the patient, thereafter, was
placed in trendelenburg position, because of the decrease of blood
supply to the patient’s brain. The evidence further shows that the
hapless patient suffered brain damage because of the absence of
oxygen in her (patient’s) brain for approximately four to five
minutes which, in turn, caused the patient to become comatose.
On the part of Dr. Orlino Hosaka, this Court finds that he is liable
for the acts of Dr. Perfecta Gutierrez whom he had chosen to
administer anesthesia on the patient as part of his obligation to
provide the patient a ‘good anesthesiologist,’ and for arriving for
the scheduled operation almost three (3) hours late.
On the part of DLSMC (the hospital), this Court finds that it is liable
for the acts of negligence of the doctors in their ‘practice of
medicine’ in the operating room. Moreover, the hospital is liable for
failing through its responsible officials, to cancel the scheduled
operation after Dr. Hosaka inexcusably failed to arrive on time.
In having held thus, this Court rejects the defense raised by
defendants that they have acted with due care and prudence in
rendering medical services to plaintiff-patient. For if the patient
was properly intubated as claimed by them, the patient would not
have become comatose. And, the fact that another anesthesiologist
was called to try to intubate the patient after her (the patient’s)
nailbed turned bluish, belie their claim. Furthermore, the
defendants should have rescheduled the operation to a later date.
This, they should have done, if defendants acted with due care and
prudence as the patient’s case was an elective, not an emergency
case.
xxx
WHEREFORE, and in view of the foregoing, judgment is rendered
in favor of the plaintiffs and against the defendants. Accordingly,
the latter are ordered to pay, jointly and severally, the former the
following sums of money, to wit:
1 1)
the sum of P8,000.00 as actual monthly expenses for the
plaintiff Erlinda Ramos reckoned from November 15, 1985
or in the total sum of P632,000.00 as of April 15, 1992, subject
to its being updated;
2 2)
the sum of P100,000.00 as reasonable attorney’s fees;
3 3)
the sum of P800,000.00 by way of moral damages and the
further sum of P200,000.00 by way of exemplary damages;
and,
595
VOL. 321, DECEMBER 29, 1999 595
Ramos vs. Court of Appeals
4) the costs of the suit.
SO ORDERED.7
Private respondents seasonably interposed an appeal to the
Court of Appeals. The appellate court rendered a Decision,
dated 29 May 1995, reversing the findings of the trial court.
The decretal portion of the decision of the appellate court
reads:
WHEREFORE, for the foregoing premises the appealed decision is
hereby REVERSED, and the complaint below against the appellants
is hereby ordered DISMISSED. The counterclaim of appellant De
Los Santos Medical Center is GRANTED but only insofar as
appellees are hereby ordered to pay the unpaid hospital bills
amounting to P93,542.25, plus legal interest for justice must be
tempered with mercy.
SO ORDERED.8
The decision of the Court of Appeals was received on 9 June
1995 by petitioner Rogelio Ramos who was mistakenly
addressed as “Atty. Rogelio Ramos.” No copy of the decision,
however, was sent nor received by the Coronel Law Office,
then counsel on record of petitioners. Rogelio referred the
decision of the appellate court to a new lawyer, Atty. Ligsay,
only on 20 June 1995, or four (4) days before the expiration of
the reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with the
appellate court a motion for extension of time to file a motion
for reconsideration. The motion for reconsideration was
submitted on 4 July 1995. However, the appellate court
denied the motion for extension of time in its Resolution
dated 25 July 1995. Meanwhile, petitioners engaged the
9
services of another counsel, Atty. Sillano, to replace Atty.
Ligsay. Atty. Sillano filed on 7 August 1995 a motion to admit
the motion for reconsideration contending that the period to
file the appropriate plead-
________________
7 Records, pp. 276-278.
8 CA Rollo, p. 166.
9 Id. at 145.
596
596 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
ing on the assailed decision had not yet commenced to run as
the Division Clerk of Court of the Court of Appeals had not
yet served a copy thereof to the counsel on record. Despite
this explanation, the appellate court still denied the motion to
admit the motion for reconsideration of petitioners in its
Resolution, dated 29 March 1996, primarily on the ground
that the fifteen-day (15) period for filing a motion for
reconsideration had already expired, to wit:
We said in our Resolution on July 25, 1995, that the filing of a
Motion for Reconsideration cannot be extended; precisely, the
Motion for Extension (Rollo, p. 12) was denied. It is, on the other
hand, admitted in the latter Motion that plaintiffs/appellees
received a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for Reconsideration
expired on June 24. The Motion for Reconsideration, in turn, was
received by the Court of Appeals already on July 4, necessarily, the
15-day period already passed. For that alone, the latter should be
denied.
Even assuming admissibility of the Motion for Reconsideration, but
after considering the Comment/Opposition, the former, for lack of
merit, is hereby DENIED.
SO ORDERED.10
A copy of the above resolution was received by Atty. Sillano
on 11 April 1996. The next day, or on 12 April 1996, Atty.
Sillano filed before this Court a motion for extension of time
to file the present petition for certiorari under Rule 45. The
Court granted the motion for extension of time and gave
petitioners additional thirty (30) days after the expiration of
the fifteen-day (15) period counted from the receipt of the
resolution of the Court of Appeals within which to submit the
petition. The due date fell on 27 May 1996. The petition was
filed on 9 May 1996, well within the extended period given by
the Court.
Petitioners assail the decision of the Court Of Appeals on the
following grounds:
________________
10 Id. at 195.
597
VOL. 321, DECEMBER 29, 1999 597
Ramos vs. Court of Appeals
I
IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF
RESPONDENTS DRA. GUTIERREZ, DRA. CALDERON AND DR.
JAMORA;
II
IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS
DID NOT CAUSE THE UNFORTUNATE COMATOSE
CONDITION OF PETITIONER ERLINDA RAMOS;
III
IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR.11
Before we discuss the merits of the case, we shall first dispose
of the procedural issue on the timeliness of the petition in
relation to the motion for reconsideration filed by petitioners
with the Court of Appeals. In their Comment, private 12
respondents contend that the petition should not be given due
course since the motion for reconsideration of the petitioners
on the decision of the Court of Appeals was validly dismissed
by the appellate court for having been filed beyond the
reglementary period. We do not agree.
A careful review of the records reveals that the reason behind
the delay in filing the motion for reconsideration is
attributable to the fact that the decision of the Court of
Appeals was not sent to then counsel on record of petitioners,
the Coronel Law Office. In fact, a copy of the decision of the
appellate court was instead sent to and received by petitioner
Rogelio Ramos on 9 June 1995 wherein he was mistakenly
addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the
appellate court apparently mistook him for the counsel on
record. Thus, no copy of the decision of the appellate court
was fur-
________________
11 Rollo, p. 19.
12 Id. at 91-98.
598
598 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
nished to the counsel on record. Petitioner, not being a lawyer
and unaware of the prescriptive period for filing a motion for
reconsideration, referred the same to a legal counsel only on
20 June 1995.
It is elementary that when a party is represented by counsel,
all notices should be sent to the party’s lawyer at his given
address. With a few exceptions, notice to a litigant without
notice to his counsel on record is no notice at all. In the present
case, since a copy of the decision of the appellate court was
not sent to the counsel on record of petitioner, there can be no
sufficient notice to speak of. Hence, the delay in the filing of
the motion for reconsideration cannot be taken against
petitioner. Moreover, since the Court of Appeals already
issued a second Resolution, dated 29 March 1996, which
superseded the earlier resolution issued on 25 July 1995, and
denied the motion for reconsideration of petitioner, we
believe that the receipt of the former should be considered in
determining the timeliness of the filing of the present petition.
Based on this, the petition before us was submitted on time.
After resolving the foregoing procedural issue, we shall now
look into the merits of the case. For a more logical
presentation of the discussion we shall first consider the issue
on the applicability of the doctrine of res ipsa loquitur to the
instant case. Thereafter, the first two assigned errors shall be
tackled in relation to the res ipsa loquitur doctrine.
Res ipsa loquitur is a Latin phrase which literally means
“the thing or the transaction speaks for itself.” The phrase “res
ipsa loquitur” is a maxim for the rule that the fact of the
occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiff’s prima
facie case, and present a question of fact for defendant to meet
with an explanation. Where the thing which caused the
13
injury complained of is shown to be under the management
of the defendant or his servants and the accident is such as in
ordinary course of things does not happen if those who have
its man- with the proof of the accident, enough of the attending
________________ circumstances to invoke the doctrine, creating an inference or
13 57B Am Jur 2d, 493 (1989). presumption of negligence, and to thereby place on the
599
defendant the burden
________________
VOL. 321, DECEMBER 29, 1999 599
14 Africa, et al. vs. Caltex (Phil.), Inc., et al., 16 SCRA 449, 454 (1966).
Ramos vs. Court of Appeals
15 57B Am Jur 2d, supra note 13 at 499.
agement or control use proper care, it affords reasonable 16 Ibid.
evidence, in the absence of explanation by the defendant, that
17 Id. at 502.
the accident arose from or was caused by the defendant’s
18 Ibid.
want of care. 14

19 Id.
The doctrine of res ipsa loquitur is simply a recognition of the
postulate that, as a matter of common knowledge and 600
experience, the very nature of certain types of occurrences 600 SUPREME COURT REPORTS ANNOTATED
may justify an inference of negligence on the part of the Ramos vs. Court of Appeals
person who controls the instrumentality causing the injury in of going forward with the proof. Still, before resort to the
20

the absence of some explanation by the defendant who is
charged with negligence. It is grounded in the superior logic
15
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.
However, much has been said that res ipsa loquitur is not a rule
of substantive law and, as such, does not create or constitute
doctrine may be allowed, the following requisites must be
satisfactorily shown:
1 1.
The accident is of a kind which ordinarily does not occur
16
in the absence of someone’s negligence;
2 2.
It is caused by an instrumentality within the exclusive
control of the defendant or defendants; and
3 3.
The possibility of contributing conduct which would
make the plaintiff responsible is eliminated. 21

an independent or separate ground of liability. Instead, it is

17
In the above requisites, the fundamental element is the
considered as merely evidentiary or in the nature of a “control of the instrumentality” which caused the damage. 22

procedural rule. It is regarded as a mode of proof, or a mere

18
procedural convenience since it furnishes a substitute for, and
relieves a plaintiff of, the burden of producing specific proof
of negligence. In other words, mere invocation and
19
application of the doctrine does not dispense with the
requirement of proof of negligence. It is simply a step in the
Such element of control must be shown to be within the
dominion of the defendant. In order to have the benefit of the
rule, a plaintiff, in addition to proving injury or damage, must
show a situation where it is applicable, and must establish
that the essential elements of the doctrine were present in a
particular incident. 23

process of such proof, permitting the plaintiff to present along

Medical malpractice cases do not escape the application of
24
this doctrine. Thus, res ipsa loquitur has been applied when the
circumstances attendant upon the harm are themselves of
such a character as to justify an inference of negligence as the
cause of that harm. The application of res ipsa loquitur in
25
medical negligence cases presents a question of law since it is
________________
20 Id. at 503.
21Voss vs. Bridwell, 364 P2d 955, 970 (1961) citing Worden v. Union
Gas System, 182 Kan. 686, 324 P.2d 501; Lamb v. Hartford Accident and
Indemnity Co., Primm v. Kansas Power & Light Co., 173 Kan. 443, 249
P.2d 647.
22St. John’s Hospital and School of Nursing vs. Chapman, 434 P.2d 160,
166 (1967).
23 57B Am Jur 2d, supra note 13, at 513.
24 It is the type of claim which a victim has available to him or her
to redress a wrong committed by a medical professional which has
caused bodily harm. (Garcia-Rueda vs. Pascasio, 278 SCRA 769, 778
[1997]).
25 Voss vs. Bridwell, supra note 21.
601
VOL. 321, DECEMBER 29, 1999 601
Ramos vs. Court of Appeals
a judicial function to determine whether a certain set of
circumstances does, as a matter of law, permit a given
inference. 26
Although generally, expert medical testimony is relied upon
in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard
medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical testimony
is dispensed with because the injury itself provides the proof
of negligence. The reason is that the general rule on the
27
necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to
matters that are within the common knowledge of mankind
which may be testified to by anyone familiar with the facts. 28
Ordinarily, only physicians and surgeons of skill and
experience are competent to testify as to whether a patient has
been treated or operated upon with a reasonable degree of
skill and care. However, testimony as to the statements and
acts of physicians and surgeons, external appearances, and
manifest conditions which are observable by any one may be
given by non-expert witnesses. Hence, in cases where the res
29
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
30
experience teach that a resulting injury would not have
occurred to the patient if due care had been exercised, an
inference of negligence may be drawn giving rise to an
application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what
occurred but how and why it
________________
26 Turney vs. Anspaugh, 581 P.2d 1301, 1304 (1978).
27 SOLIS, MEDICAL JURISPRUDENCE, 239 (1988).
28Voss vs. Bridwell, supra note 21, at 968 citing McMillen vs.
Foncannon, 127 Kan. 573, 274 P. 237.
29Stockham vs. Hall, 65 P. 348, 349 (1937) citing Yard vs. Gibbons, 95
Kan. 802, 149 P. 422, 423.
30 SOLIS, supra note 27, at 239.
602
602 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
occurred. When the doctrine is appropriate, all that the
31
patient must do is prove a nexus between the particular act or
omission complained of and the injury sustained while under
the custody and management of the defendant without need
to produce expert medical testimony to establish the standard
of care. Resort to res ipsa loquitur is allowed because there is
no other way, under usual and ordinary conditions, by which
the patient can obtain redress for injury suffered by him.
Thus, courts of other jurisdictions have applied the doctrine
in the following situations: leaving of a foreign object in the
body of the patient after an operation, injuries sustained on
32
a healthy part of the body which was not under, or in the area,
of treatment, removal of the wrong part of the body when
33
another part was intended, knocking out a tooth while a
34
patient’s jaw was under anesthetic for the removal of his
tonsils, and loss of an eye while the patient plaintiff was
35
under the influence of anesthetic, during or following an
operation for appendicitis, among others.
36
Nevertheless, despite the fact that the scope of res ipsa loquitur
has been measurably enlarged, it does not automatically
apply to all cases of medical negligence as to mechanically
shift the burden of proof to the defendant to show that he is
not guilty of the ascribed negligence. Res ipsa loquitur is not a
rigid or ordinary doctrine to be perfunctorily used but a rule
to be cautiously applied, depending upon the circumstances
of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a matter of
common knowledge and observation, that the consequences
of professional care were not as such as would ordinarily have
followed if due care had been exercised. A distinction must
37
________________
31 Voss vs. Bridwell, supra note 21 at 970-971.
32 Armstrong vs. Wallace, 47 P. 2d 740 (1935).
33 Thomsen vs. Burgeson, 79 P. 2d 136 (1938).
34 Griffin vs. Norman, 192 NYS 322 (1922).
35 Brown vs. Shortilledge, 277 P. 134 (1929).
36 Meadows vs. Patterson, 109 S.W. 2d 417 (1937).
37 Voss vs. Bridwell, supra note 21, at 969.
603
VOL. 321, DECEMBER 29, 1999 603
Ramos vs. Court of Appeals
be made between the failure to secure results, and the
occurrence of something more unusual and not ordinarily
found if the service or treatment rendered followed the usual
procedure of those skilled in that particular practice. It must
be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which
involves the merits of a diagnosis or of a scientific treatment. 38
The physician or surgeon is not required at his peril to explain
why any particular diagnosis was not correct, or why any
particular scientific treatment did not produce the desired
result. Thus, res ipsa loquitur is not available in a malpractice
39
suit if the only showing is that the desired result of an
operation or treatment was not accomplished. The real 40
question, therefore, is whether or not in the process of the
operation any extraordinary incident or unusual event
outside of the routine performance occurred which is beyond
the regular scope of customary professional activity in such
operations, which, if unexplained would themselves
reasonably speak to the average man as the negligent cause or
causes of the untoward consequence. If there was such
41
extraneous interventions, the doctrine of res ipsa loquitur may
be utilized and the defendant is called upon to explain the
matter, by evidence of exculpation, if he could. 42
We find the doctrine of res ipsa loquitur appropriate in the case
at bar. As will hereinafter be explained, the damage sustained
by Erlinda in her brain prior to a scheduled gall bladder
operation presents a case for the application of res ipsa
loquitur.
A case strikingly similar to the one before us is Voss vs.
Bridwell, where the Kansas Supreme Court in applying the
43
res ipsa loquitur stated:
________________
38 Id. at 968.
39 Rhodes vs. De Haan, 337 P. 2d. 1043, 1047 (1959).
40 Voss vs. Bridwell, supra note 21, at 968.
41 Sanders vs. Smith, 27 So. 2d 889, 893 (1946).
42 Ibid.
43 Voss vs. Bridwell, supra note 21.
604
604 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
The plaintiff herein submitted himself for a mastoid operation and
delivered his person over to the care, custody and control of his
physician who had complete and exclusive control over him, but the
operation was never performed. At the time of submission he was
neurologically sound and physically fit in mind and body, but he
suffered irreparable damage and injury rendering him decerebrate
and totally incapacitated. The injury was one which does not
ordinarily occur in the process of a mastoid operation or in the
absence of negligence in the administration of an anesthetic, and in
the use and employment of an endoctracheal tube. Ordinarily a
person being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia in the absence of
negligence. Upon these facts and under these circumstances a
layman would be able to say, as a matter of common knowledge
and observation, that the consequences of professional treatment
were not as such as would ordinarily have followed if due care had
been exercised.
Here the plaintiff could not have been guilty of contributory
negligence because he was under the influence of anesthetics and
unconscious, and the circumstances are such that the true
explanation of event is more accessible to the defendants than to the
plaintiff for they had the exclusive control of the instrumentalities
of anesthesia.
Upon all the facts, conditions and circumstances alleged in Count
II it is held that a cause of action is stated under the doctrine of res
ipsa loquitur.44
Indeed, the principles enunciated in the aforequoted case
apply with equal force here. In the present case, Erlinda
submitted herself for cholecystectomy and expected a routine
general surgery to be performed on her gall bladder. On that
fateful day she delivered her person over to the care, custody
and control of private respondents who exercised complete
and exclusive control over her. At the time of submission,
Erlinda was neurologically sound and, except for a few minor
discomforts, was likewise physically fit in mind and body.
However, during the administration of anesthesia and prior
to the performance of cholecystectomy she suffered irreparable
damage to her brain. Thus, without undergoing surgery, she
________________
44 Id. at 971.
605
VOL. 321, DECEMBER 29, 1999 605
Ramos vs. Court of Appeals
went out of the operating room already decerebrate and
totally incapacitated. Obviously, brain damage, which
Erlinda sustained, is an injury which does not normally occur
in the process of a gall bladder operation. In fact, this kind of
situation does not happen in the absence of negligence of
someone in the administration of anesthesia and in the use of
endotracheal tube. Normally, a person being put under
anesthesia is not rendered decerebrate as a consequence of
administering such anesthesia if the proper procedure was
followed. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube,
were all under the exclusive control of private respondents,
who are the physicians-in-charge. Likewise, petitioner
Erlinda could not have been guilty of contributory negligence
because she was under the influence of anesthetics which
rendered her unconscious.
Considering that a sound and unaffected member of the body
(the brain) is injured or destroyed while the patient is
unconscious and under the immediate and exclusive control
of the physicians, we hold that a practical administration of
justice dictates the application of res ipsa loquitur. Upon these
facts and under these circumstances the Court would be able
to say, as a matter of common knowledge and observation, if
negligence attended the management and care of the patient.
Moreover, the liability of the physicians and the hospital in
this case is not predicated upon an alleged failure to secure
the desired results of an operation nor on an alleged lack of
skill in the diagnosis or treatment as in fact no operation or
treatment was ever performed on Erlinda. Thus, upon all
these initial determination a case is made out for the
application of the doctrine of res ipsa loquitur.
Nonetheless, in holding that res ipsa loquitur is available to the
present case we are not saying that the doctrine is applicable
in any and all cases where injury occurs to a patient while
under anesthesia, or to any and all anesthesia cases. Each case
must be viewed in its own light and scrutinized in order to be
within the res ipsa loquitur coverage.
Having in mind the applicability of the res ipsa loquitur
doctrine and the presumption of negligence allowed therein,
606
606 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
the Court now comes to the issue of whether the Court of
Appeals erred in finding that private respondents were not
negligent in the care of Erlinda during the anesthesia phase of
the operation and, if in the affirmative, whether the alleged
negligence was the proximate cause of Erlindas comatose
condition. Corollary thereto, we shall also determine if the
Court of Appeals erred in relying on the testimonies of the
witnesses for the private respondents.
In sustaining the position of private respondents, the Court of
Appeals relied on the testimonies of Dra. Gutierrez, Dra.
Calderon and Dr. Jamora. In giving weight to the testimony
of Dra. Gutierrez, the Court of Appeals rationalized that she
was candid enough to admit that she experienced some
difficulty in the endotracheal intubation of the patient and
45
thus, cannot be said to be covering her negligence with
falsehood. The appellate court likewise opined that private
respondents were able to show that the brain damage
sustained by Erlinda was not caused by the alleged faulty
intubation but was due to the allergic reaction of the patient
to the drug Thiopental Sodium (Pentothal), a short-acting
barbiturate, as testified on by their expert witness, Dr. Jamora.
On the other hand, the appellate court rejected the testimony
of Dean Herminda Cruz offered in favor of petitioners that
the cause of the brain injury was traceable to the wrongful
insertion of the tube since the latter, being a nurse, was
allegedly not knowledgeable in the process of intubation. In
so holding, the appellate court returned a verdict in favor of
respondents physicians
________________
45 It is the method of intubating a patient through the oral cavity.
Under this procedure, after the patient has been preoxygenated and
paralyzed and is no longer breathing on his own, the anesthetist
inserts an instrument called a laryngoscope into the patient’s oral
pharynx. The patient’s neck is hyperextended, that is, bent back as Q: In particular, what did Dra. Perfecta Gutierrez do, if
far as possible so that the anesthetist can see or “visualize” the any on the patient?
patient’s epiglottis and vocal cords. The anesthetist will then thread
A: In particular, I could see that she was intubating the
the endotracheal tube between the patient’s vocal cords into the
trachea, and then hook the tube to the breathing bag and anesthetic
patient.
machine. Q: Do you know what happened to that intubation
607 process administered by Dra. Gutierrez?
VOL. 321, DECEMBER 29, 1999 607 ATTY. ALCERA:
Ramos vs. Court of Appeals She will be incompetent Your Honor.
and hospital and absolved them of any liability towards Er- COURT:
linda and her family. Witness may answer if she knows.
We disagree with the findings of the Court of Appeals. We A: As I have said, I was with the patient, I was beside the
hold that private respondents were unable to disprove the stretcher holding the left hand of the patient and all of
presumption of negligence on their part in the care of Erlinda a sudden I heard some remarks coming from Dra.
and their negligence was the proximate cause of her piteous Perfecta
condition. 608
In the instant case, the records are helpful in furnishing not 608 SUPREME COURT REPORTS ANNOTATED
only the logical scientific evidence of the pathogenesis of the Ramos vs. Court of Appeals
injury but also in providing the Court the legal nexus upon
Gutierrez herself. She was saying “Ang hirap
which liability is based. As will be shown hereinafter, private
maintubate nito, mali yata ang pagkakapasok. O
respondents’ own testimonies which are reflected in the
lumalaki ang tiyan.”
transcript of stenographic notes are replete of signposts
indicative of their negligence in the care and management of xxx
Erlinda. ATTY. PAJARES:
With regard to Dra. Gutierrez, we find her negligent in the Q: From whom did you hear those words “lumalaki ang
care of Erlinda during the anesthesia phase. As borne by the tiyan?
records, respondent Dra. Gutierrez failed to properly intubate A: From Dra. Perfecta Gutierrez.
the patient. This fact was attested to by Prof. Herminda Cruz, xxx
Dean of the Capitol Medical Center School of Nursing and
Q. After hearing the phrase “lumalaki ang tiyan,” what
petitioner’s sister-in-law, who was in the operating room
did you notice on the person of the patient?
right beside the patient when the tragic event occurred.
Witness Cruz testified to this effect: A: I notice (sic) some bluish discoloration on the
nailbeds ofthe left hand where I was at.
ATTY. PAJARES:
 Q: Where was Dr. Orlino Ho[s]aka then at that A perusal of the standard nursing curriculum in our country will
particulartime? show that intubation is not taught as part of nursing procedures
and techniques. Indeed, we take judicial notice of the fact that
A: I saw him approaching the patient during that time.
nurses do not, and cannot, intubate. Even on the assumption that
Q: When he approached the patient, what did he do, if she is fully capable of determining whether or not a patient is
any? properly intubated, witness Herminda Cruz, admittedly, did not
A: He made an order to call on the anesthesiologist in peep into the throat of the patient. (TSN, July 25, 1991, p. 13). More
the person of Dr. Calderon. importantly, there is no evidence that she ever auscultated the
patient or that she conducted any type of examination to check if
Q: Did Dr. Calderon, upon being called, arrive inside the endotracheal tube was in its proper place, and to determine the
the operating room? condition of the heart, lungs, and other organs. Thus, witness
A: Yes sir. Cruz’s categorical statements that appellant Dra. Gutierrez failed to
Q: What did [s]he do, if any? intubate the appellee Erlinda Ramos and that it was Dra. Calderon
who succeeded in doing so clearly suffer from lack of sufficient
A: [S]he tried to intubate the patient. factual bases.47
Q: What happened to the patient? In other words, what the Court of Appeals is trying to impress
A: When Dr. Calderon try (sic) to intubate the patient, is that being a nurse, and considered a layman in the process
after a while the patient’s nailbed became bluish and of intubation, witness Cruz is not competent to testify on
I saw thepatient was placed in trendelenburg whether or not the intubation was a success.
position. We do not agree with the above reasoning of the appellate
xxx court. Although witness Cruz is not an anesthesiologist, she
Q: Do you know the reason why the patient was placed can very well testify upon matters on which she is capable of
in that trendelenburg position? observing such as, the statements and acts of the physician
A: As far as I know, when a patient is in that position, and surgeon, external appearances, and manifest conditions
there is a decrease of blood supply to the brain.
46
which are observable by any one. This is precisely allowed
48

under the doctrine of res ipsa loquitur where the testimony of

xxx
expert witnesses is not required. It is the accepted rule that
________________ expert testimony is not necessary for the proof of negligence
46 TSN, January 13, 1988, pp. 16-20. in nontechnical matters or those of which an ordinary person
609 may be expected to have knowledge, or where the lack of skill
VOL. 321, DECEMBER 29, 1999 609 or want of care is so obvious as to render expert testimony
Ramos vs. Court of Appeals ________________
47 CA Rollo, pp. 134-135.
The appellate court, however, disbelieved Dean Cruz’s
48 Stockham vs. Hall, supra note 29.
testimony in the trial court by declaring that:
610
 610 SUPREME COURT REPORTS ANNOTATED DRA. GUTIERREZ:
Ramos vs. Court of Appeals A: Yes sir.
unnecessary. We take judicial notice of the fact that
49 Q: Did you pull away the tube immediately?
anesthesia procedures have become so common, that even an A: You do not pull the . . .
ordinary person can tell if it was administered properly. As ________________
such, it would not be too difficult to tell if the tube was 49 61 Am Jur 2d, 513 (1989).
properly inserted. This kind of observation, we believe, does
50 TSN, January 13, 1988, p. 3.
not require a medical degree to be acceptable.
611
At any rate, without doubt, petitioner’s witness, an
VOL. 321, DECEMBER 29, 611
experienced clinical nurse whose long experience and
1999
scholarship led to her appointment as Dean of the Capitol
Medical Center School of Nursing, was fully capable of Ramos vs. Court of Appeals
determining whether or not the intubation was a success. She Q: Did you or did you not?
had extensive clinical experience starting as a staff nurse in A: I did not pull the tube.
Chicago, Illinois; staff nurse and clinical instructor in a
Q: When you said “mahirap
teaching hospital, the FEU-NRMF; Dean of the Laguna
yata ito, what were you
College of Nursing in San Pablo City; and then Dean of the
referring to?
Capitol Medical Center School of Nursing. Reviewing
50

witness Cruz’ statements, we find that the same were A: “Mahirap yata itong i-
delivered in a straightforward manner, with the kind of intubate,” that was the
detail, clarity, consistency and spontaneity which would have patient.
been difficult to fabricate. With her clinical background as a Q: So, you found some
nurse, the Court is satisfied that she was able to demonstrate difficulty in inserting the
through her testimony what truly transpired on that fateful tube?
day. A: Yes, because of (sic) my first
Most of all, her testimony was affirmed by no less than attempt, I did not see right
respondent Dra. Gutierrez who admitted that she away. 51

experienced difficulty in inserting the tube into Erlinda’s
trachea, to wit:
ATTY. LIGSAY:
Q: In this particular case, Doctora, while you were
intubating at your first attempt (sic), you did not
Curiously in the case at bar, respondent Dra. Gutierrez made
the haphazard defense that she encountered hardship in the
insertion of the tube in the trachea of Erlinda because it was
positioned more anteriorly (slightly deviated from the normal
anatomy of a person) making it harder to locate and, since
52

immediately see the trachea? Erlinda is obese and has a short neck and protruding teeth, it
made intubation even more difficult.
The argument does not convince us. If this was indeed
observed, private respondents adduced no evidence
demonstrating that they proceeded to make a thorough
assessment of Erlindas airway, prior to the induction of
anesthesia, even if this would mean postponing the
procedure. From their testimonies, it appears that the
observation was made only as an afterthought, as a means of
defense.
The pre-operative evaluation of a patient prior to the
administration of anesthesia is universally observed to lessen
the possibility of anesthetic accidents. Pre-operative
evaluation and preparation for anesthesia begins when the
anesthesiologist reviews the patient’s medical records and
visits with the patient, traditionally, the day before elective
surgery. It includes taking the patient’s medical history,
53
review of current drug therapy, physical examination and
interpretation of laboratory data. The physical examination
54
performed by the
________________
51 TSN, November 15, 1990, p. 11.
52 TSN, October 9, 1990, p. 13.
53 STOELTING and MILLER, BASICS OF ANESTHESIA, 103
(1994).
54 Ibid.
612
612 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
anesthesiologist is directed primarily toward the central
nervous system, cardiovascular system, lungs and upper
airway. A thorough analysis of the patient’s airway normally
55
involves investigating the following: cervical spine mobility,
temporomandibular mobility, prominent central incisors,
diseased or artificial teeth, ability to visualize uvula and the
thyromental distance. Thus, physical characteristics of the
56
patient’s upper airway that could make tracheal intubation
difficult should be studied. Where the need arises, as when
57
initial assessment indicates possible problems (such as the
alleged short neck and protruding teeth of Erlinda) a
thorough examination of the patient’s airway would go a long
way towards decreasing patient morbidity and mortality.
In the case at bar, respondent Dra. Gutierrez admitted that she
saw Erlinda for the first time on the day of the operation itself,
on 17 June 1985. Before this date, no prior consultations with,
or pre-operative evaluation of Erlinda was done by her. Until
the day of the operation, respondent Dra. Gutierrez was
unaware of the physiological make-up and needs of Erlinda.
She was likewise not properly informed of the possible
difficulties she would face during the administration of
anesthesia to Erlinda. Respondent Dra. Gutierrez’ act of
seeing her patient for the first time only an hour before the
scheduled operative procedure was, therefore, an act of
exceptional negligence and professional irresponsibility. The
measures cautioning prudence and vigilance in dealing with
human lives lie at the core of the physician’s centuries-old
Hippocratic Oath. Her failure to follow this medical
procedure is, therefore, a clear indicia of her negligence.
Respondent Dra. Gutierrez, however, attempts to gloss over
this omission by playing around with the trial court’s
ignorance of clinical procedure, hoping that she could get
away with it. Respondent Dra. Gutierrez tried to muddle the
difference between an elective surgery and an emergency
________________
55 Id. at 105 (Italics supplied).
56 Id. at 106.
57 Id.
 613
VOL. 321, DECEMBER 29, 1999 613
Ramos vs. Court of Appeals
surgery just so her failure to perform the required pre-
operative evaluation would escape unnoticed. In her
testimony she asserted:
ATTY. LIGSAY:
Q: Would you agree, Doctor, that it is good medical
practice to see the patient a day before so you can
introduce yourself to establish good doctor-patient
relationship and gainthe trust and confidence of the
patient?
DRA. GUTIERREZ:
A: As I said in my previous statement, it depends on the
operative procedure of the anesthesiologist and in my
case, with elective cases and normal cardio-
pulmonary clearance like that, I usually don’t do it
except on emergency and on cases that have an
abnormalities (sic).
58
However, the exact opposite is true. In an emergency
procedure, there is hardly enough time available for the
fastidious demands of preoperative procedure so that an
anesthesiologist is able to see the patient only a few minutes
before surgery, if at all. Elective procedures, on the other
hand, are operative procedures that can wait for days, weeks
or even months. Hence, in these cases, the anesthesiologist
possesses the luxury of time to make a proper assessment,
including the time to be at the patient’s bedside to do a proper
interview and clinical evaluation. There is ample time to
explain the method of anesthesia, the drugs to be used, and
their possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at least
one day before the intended surgery, when the patient is
relaxed and cooperative.
Erlinda’s case was elective and this was known to respondent
Dra. Gutierrez. Thus, she had all the time to make a thorough
evaluation of Erlinda’s case prior to the operation and prepare
her for anesthesia. However, she never saw the patient at the
bedside. She herself admitted that she had seen
________________
58 TSN, November 15, 1990, p. 6.
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614 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
petitioner only in the operating room, and only on the actual
date of the cholecystectomy. She negligently failed to take
advantage of this important opportunity. As such, her
attempt
to exculpate herself must fail. Having established that
respondent Dra. Gutierrez failed to perform pre-operative
evaluation of the patient which, in turn, resulted to a
wrongful intubation, we now determine if the faulty
intubation is truly the proximate cause of Erlinda’s comatose
condition.
Private respondents repeatedly hammered the view that the
cerebral anoxia which led to Erlinda’s coma was due to
bronchospasm mediated by her allergic response to the drug,
59
Thiopental Sodium, introduced into her system. Towards this
end, they presented Dr. Jamora, a Fellow of the Philippine
College of Physicians and Diplomate of the Philippine
Specialty Board of Internal Medicine, who advanced private
re-spondents’ theory that the oxygen deprivation which led
to anoxic encephalopathy, was due to an unpredictable drug
60
reaction to the short-acting barbiturate. We find the theory of
private respondents unacceptable.
First of all, Dr. Jamora cannot be considered an authority in
the field of anesthesiology simply because he is not an
anesthesiologist. Since Dr. Jamora is a pulmonologist, he
could not have been capable of properly enlightening the
court about anesthesia practice and procedure and their
complications. Dr. Jamora is likewise not an allergologist and
could not therefore properly advance expert opinion on
allergic-mediated processes. Moreover, he is not a
pharmacologist and, as such, could not have been capable, as
an expert would, of explaining to the court the pharmacologic
and toxic effects of the supposed culprit, Thiopental Sodium
(Pentothal).
The inappropriateness and absurdity of accepting Dr.
Jamora’s testimony as an expert witness in the anesthetic
________________
59 Constriction of the air passages of the lung by spasmodic
contraction of the bronchial muscles (as in asthma).
60 Permanent damage to the brain caused by inadequate
oxygenation.
615
VOL. 321, DECEMBER 29, 1999 615
Ramos vs. Court of Appeals
practice of Pentothal administration is further supported by
his own admission that he formulated his opinions on the
drug not from the practical experience gained by a specialist
or expert in the administration and use of Sodium Pentothal
on patients, but only from reading certain references, to wit:
ATTY. LIGSAY:
Q: In your line of expertise on pulmonology, did you
have any occasion to use pentothal as a method of
management?
DR. JAMORA:
A: We do it in conjunction with the anesthesiologist
when they have to intubate our patient.
Q: But not in particular when you practice pulmonology?
A: No.
Q: In other words, your knowledge about pentothal is
based only on what you have read from books and not
by your own personal application of the medicine
pentothal?
A: Based on my personal experience also on pentothal.
Q: How many times have you used pentothal?
A: They used it on me. I went into bronchospasm during
my appendectomy.
Q: And because they have used it on you and on account
of your own personal experience you feel that you can
testify on pentothal here with medical authority?
A: No. That is why I used references to support my
claims.61
An anesthetic accident caused by a rare drug-induced
bronchospasm properly falls within the fields of anesthesia,
internal medicine-allergy, and clinical pharmacology. The
resulting anoxic encephalopathy belongs to the field of
neurology. While admittedly, many bronchospastic-mediated
pulmonary diseases are within the expertise of pulmonary
medicine, Dr. Jamoras field, the anesthetic drug-induced,
allergic mediated bronchospasm alleged in this case is within
the disciplines of anesthesiology, allergology and
pharmacology. On the basis of
________________
61 TSN, February 28, 1991, pp. 10-11.
616
616 SUPREME COURT REPORTS ANNOTATED
 Ramos vs. Court of Appeals
the foregoing transcript, in which the pulmonologist himself
admitted that he could not testify about the drug with medical
authority, it is clear that the appellate court erred in giving
weight to Dr. Jamora’s testimony as an expert in the
administration of Thiopental Sodium.
The provision in the rules of evidence regarding expert
62
witnesses states:
Sec. 49. Opinion of expert witness.—The opinion of a witness on a
matter requiring special knowledge, skill, experience or training
which he is shown to possess, may be received in evidence.
Generally, to qualify as an expert witness, one must have
acquired special knowledge of the subject matter about which
he or she is to testify, either by the study of recognized
authorities on the subject or by practical experience. Clearly,
63
Dr. Jamora does not qualify as an expert witness based on the
above standard since he lacks the necessary knowledge, skill,
and training in the field of anesthesiology. Oddly, apart from
submitting testimony from a specialist in the wrong field,
private respondents’ intentionally avoided providing
testimony by competent and independent experts in the
proper areas.
Moreover, private respondents’ theory, that Thiopental
Sodium may have produced Erlinda’s coma by triggering an
allergic mediated response, has no support in evidence. 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.
In any case, private respondents themselves admit that
Thiopental induced, allergic-mediated bronchospasm
happens only very rarely. If courts were to accept private
respondents’ hypothesis without supporting medical proof,
and against the weight of available evidence, then every
anesthetic accident
________________
62 Rule 130, RULES OF COURT.
63 61 Am Jur 2d, supra note 49, 516.
617
VOL. 321, DECEMBER 29, 1999 617
Ramos vs. Court of Appeals
would be an act of God. Evidently, the Thiopentalallergy
theory vigorously asserted by private respondents was a mere
afterthought. Such an explanation was advanced in order to
absolve them of any and all responsibility for the patient’s
condition.
In view of the evidence at hand, we are inclined to believe
petitioners’ stand that it was the faulty intubation which was
the proximate cause of Erlinda’s comatose condition.
Proximate cause has been defined as that which, in natural
and continuous sequence, unbroken by any efficient
intervening cause, produces injury, and without which the
result would not have occurred. An injury or damage is
64
proximately caused by an act or a failure to act, whenever it
appears from the evidence in the case, that the act or omission
played a substantial part in bringing about or actually causing
the injury or damage; and that the injury or damage was
either a direct result or a reasonably probable consequence of
the act or omission. It is the dominant, moving or producing
65
cause.
Applying the above definition in relation to the evidence at
hand, faulty intubation is undeniably the proximate cause
which triggered the chain of events leading to Erlindas brain
damage and, ultimately, her comatosed condition.
Private respondents themselves admitted in their testimony
that the first intubation was a failure. This fact was likewise
observed by witness Cruz when she heard respondent Dra.
Gutierrez remarked, “Ang hirap ma-intubate nito, mali yata
ang pagkakapasok. O lumalaki ang tiyan.” Thereafter,
witness Cruz noticed abdominal distention on the body of
Erlinda. The development of abdominal distention, together
with respiratory embarrassment indicates that the
endotracheal tube entered the esophagus instead of the
respiratory tree. In other words, instead of the intended
endotracheal
________________
64 BLACK’S LAW DICTIONARY (FIFTH EDITION), 1103 (1979).
65 Ibid.
618
618 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
intubation what actually took place was an esophageal
intubation. During intubation, such distention indicates that
air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry into
the esophagus would certainly cause some delay in oxygen
delivery into the lungs as the tube which carries oxygen is in
the wrong place. That abdominal distention had been
observed during the first intubation suggests that the length
of time utilized in inserting the endotracheal tube (up to the
time the tube was withdrawn for the second attempt) was
fairly significant. Due to the delay in the delivery of oxygen
in her lungs Erlinda showed signs of cyanosis. As stated in
66
the testimony of Dr. Hosaka, the lack of oxygen became
apparent only after he noticed that the nailbeds of Erlinda
were already blue. However, private respondents contend
67
that a second intubation was executed on Erlinda and this one
was successfully done. We do not think so. No evidence exists
on record, beyond private respondents’ bare claims, which
supports the contention that the second intubation was
successful. Assuming that the endotracheal tube finally found
its way into the proper orifice of the trachea, the same gave no
guarantee of oxygen delivery, the hallmark of a successful
intubation. In fact, cyanosis was again observed immediately
after the second intubation. Proceeding from this event
(cyanosis), it could not be claimed, as private respondents
insist, that the second intubation was accomplished. Even
granting that the tube was successfully inserted during the
second attempt, it was obviously too late. As aptly explained
by the trial court, Erlinda already suffered brain damage as a
result of the inadequate oxygenation of her brain for about
four to five minutes. 68
The above conclusion is not without basis. Scientific studies
point out that intubation problems are responsible for one-
third (1/3) of deaths and serious injuries associated with anes-
________________
66 It is a bluish coloration of the skin or mucous membranes caused
by lack of oxygen or abnormal hemoglobin in the blood.
67 TSN, March 27, 1990, p. 22.
68 Records, p. 274.
619
VOL. 321, DECEMBER 29, 1999 619
Ramos vs. Court of Appeals
thesia. Nevertheless, ninety-eight percent (98%) or the vast
69
majority of difficult intubations may be anticipated by
performing a thorough evaluation of the patient’s airway
prior to the operation. As stated beforehand, respondent
70
Dra. Gutierrez failed to observe the proper pre-operative
protocol which could have prevented this unfortunate
incident. Had appropriate diligence and reasonable care been
used in the pre-operative evaluation, respondent physician
could have been much more prepared to meet the
contingency brought about by the perceived anatomic
variations in the patient’s neck and oral area, defects which
would have been easily overcome by a prior knowledge of
those variations together with a change in technique. In other
71
words, an experienced anesthesiologist, adequately alerted
by a thorough pre-operative evaluation, would have had little
difficulty going around the short neck and protruding teeth. 72
Having failed to observe common medical standards in pre-
operative management and intubation, respondent Dra.
Gutierrez’ negligence resulted in cerebral anoxia and
eventual coma of Erlinda.
We now determine the responsibility of respondent Dr.
Orlino Hosaka as the head of the surgical team. As the so-
called “captain of the ship,” it is the surgeon’s responsibility
73
to see to it that those under him perform their task in the
proper manner. Respondent Dr. Hosaka’s negligence can be
found in his failure to exercise the proper authority (as the
“captain” of
________________
69 FINUCAINE, AIRWAY MANAGEMENT, 82 (1990).
70 Ibid.
71Id., The book provides a thorough discussion on the management
of difficult intubations.
72 Id.
73Under this doctrine, the surgeon is likened to a ship captain who
must not only be responsible for the safety of the crew but also of
the passengers of the vessel. The head surgeon is made responsible
for everything that goes wrong within the four corners of the
operating room. It enunciates the liability of the surgeon not only
for the wrongful acts of those who are under his physical control
but also those wherein he has extension of control.
620
620 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
the operative team) in not determining if his anesthesiologist
observed proper anesthesia protocols. In fact, no evidence on
record exists to show that respondent Dr. Hosaka verified if
respondent Dra. Gutierrez properly intubated the patient.
Furthermore, it does not escape us that respondent Dr.
Hosaka had scheduled another procedure in a different
hospital at the same time as Erlindas cholecystectomy, and was
in fact over three hours late for the latter’s operation. Because
of this, he had little or no time to confer with his
anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties
towards his patient. Thus, he shares equal responsibility for
the events which resulted in Erlinda’s condition.
We now discuss the responsibility of the hospital in this
particular incident. The unique practice (among private
hospitals) of filling up specialist staff with attending and
visiting “consultants,” who are allegedly not hospital
74
employees, presents problems in apportioning responsibility
for negligence in medical malpractice cases. However, the
difficulty is only more apparent than real.
In the first place, hospitals exercise significant control in the
hiring and firing of consultants and in the conduct of their
work within the hospital premises. Doctors who apply for
“consultant” slots, visiting or attending, are required to
submit proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the
appropriate board (diplomate), evidence of fellowship in
most cases, and references. These requirements are carefully
scrutinized by members of the hospital administration or by
a review committee set up by the hospital who either accept
or reject
________________
74 The term “consultant” is loosely used by hospitals to distinguish
their attending and visiting physicians from the residents, who are
also physicians. In most hospitals abroad, the term visiting or
attending physician, not consultant, is used.
621
VOL. 321, DECEMBER 29, 1999 621
Ramos vs. Court of Appeals
the application. This is particularly true with respondent
75
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. 76
________________
75These requirements are in fact found in the standard application
forms for visiting and attending physicians of respondent hospital.
76 The hospital’s control over respondent physicians is all the more
significant when one considers the fact that it controls every-
622
622 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
The basis for holding an employer solidarily responsible for
the negligence of its employee is found in Article 2180 of the
Civil Code which considers a person accountable not only for
his own acts but also for those of others based on the former’s
responsibility under a relationship of patria potestas. Such77
responsibility ceases when the persons or entity concerned
prove that they have observed the diligence of a good father
of the family to prevent damage. In other words, while the
78
burden of proving negligence rests on the plaintiffs, once
negligence is shown, the burden shifts to the respondents
(parent, guardian, teacher or employer) who should prove
that they observed the diligence of a good father of a family
to prevent damage.
In the instant case, respondent hospital, apart from a general
denial of its responsibility over respondent physicians, failed
to adduce evidence showing that it exercised the diligence of
a good father of a family in the hiring and supervi-
________________
thing which occurs in an operating room, through its nursing
supervisors and charge nurses. No operations can be undertaken
without the hospital’s direct or indirect consent.
77 VITUG, COMPENDIUM OF CIVIL LAW AND
JURISPRUDENCE, 822 (1993).
78 Art. 2180 of the Civil Code provides: The obligation imposed by
Article 2176 is demandable not only for one’s own acts or
omissions, but also for those of persons for whom one is
responsible.
The father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who live
in their company.
Guardians are liable for damages caused by the minors or
incapacitated persons who are under their authority and live in
their company.
The owners and managers of an establishment or enterprise are
likewise responsible for damages caused by their employees in the
service of the branches in which the latter are employed or on the
occasion of their functions.
Employers shall be liable for the damages caused by their
employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or industry.
623
VOL. 321, DECEMBER 29, 1999 623
Ramos vs. Court of Appeals
sion of the latter. It failed to adduce evidence with regard to
the degree of supervision which it exercised over its
physicians. In neglecting to offer such proof, or proof of a
similar nature, respondent hospital thereby failed to
discharge its burden under the last paragraph of Article 2180.
Having failed to do this, respondent hospital is consequently
solidarily responsible with its physicians for Erlinda’s
condition.
Based on the foregoing, we hold that the Court of Appeals
erred in accepting and relying on the testimonies of the
witnesses for the private respondents. Indeed, as shown by
the above discussions, private respondents were unable to
rebut the presumption of negligence. Upon these
disquisitions we hold that private respondents are solidarily
liable for damages under Article 2176 of the Civil Code.
79
We now come to the amount of damages due petitioners. The
trial court awarded a total of P632,000.00 pesos (should be
P616,000.00) in compensatory damages to the plaintiff,
“subject to its being updated” covering the period from 15
November 1985 up to 15 April 1992, based on monthly
expenses for the care of the patient estimated at P8,000.00.
At current levels, the P8,000/monthly amount established by
the trial court at the time of its decision would be grossly
inadequate to cover the actual costs of home-based care for a
comatose individual. The calculated amount was not even
arrived at by looking at the actual cost of proper hospice care
for the patient. What it reflected were the actual expenses
incurred and proved by the petitioners after they were forced
to bring home the patient to avoid mounting hospital bills.
And yet ideally, a comatose patient should remain in a
hospital or be transferred to a hospice specializing in the care
of the chronically ill for the purpose of providing a proper
milieu adequate to meet minimum standards of care. In the
instant case for instance, Erlinda has to be constantly turned
from side to side to prevent bedsores and hypostatic
pneumonia.
________________
79Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done.
 624
624 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
Feeding is done by nasogastric tube. Food preparation should
be normally made by a dietitian to provide her with the
correct daily caloric requirements and vitamin supplements.
Furthermore, she has to be seen on a regular basis by a
physical therapist to avoid muscle atrophy, and by a
pulmonary therapist to prevent the accumulation of
secretions which can lead to respiratory complications.
Given these considerations, the amount of actual damages
recoverable in suits arising from negligence should at least
reflect the correct minimum cost of proper care, not the cost
of the care the family is usually compelled to undertake at
home to avoid bankruptcy. However, the provisions of the
Civil Code on actual or compensatory damages present us
with some difficulties.
Well-settled is the rule that actual damages which may be
claimed by the plaintiff are those suffered by him as he has
duly proved. The Civil Code provides:
Art. 2199.—Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary loss
suffered by him as he has duly proved. Such compensation is
referred to as actual or compensatory damages.
Our rules on actual or compensatory damages generally
assume that at the time of litigation, the injury suffered as a
consequence of an act of negligence has been completed and
that the cost can be liquidated. However, these provisions
neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible
future complications directly arising from the injury, while
certain to occur, are difficult to predict.
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to
the injury caused, should be one which compensates for
pecuniary loss incurred and proved, up to the time of trial;
and one which would meet pecuniary loss certain to be
suffered but which could not, from the nature of the case, be
made
625
VOL. 321, DECEMBER 29, 1999 625
Ramos vs. Court of Appeals
with certainty. In other words, temperate damages can and
80
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. 81
In Valenzuela vs. Court of Appeals, this Court was confronted
82
with a situation where the injury suffered by the plaintiff
would have led to expenses which were difficult to
________________
80 Art. 2224, CIVIL CODE.
81Should petitioner remain in the same condition for another ten
years, the amount awarded in the form of temperate damages
would in fact, be inadequate.
82 253 SCRA 303 (1996).
626
626 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
estimate because while they would have been a direct result
of the injury (amputation), and were certain to be incurred by
the plaintiff, they were likely to arise only in the future. We
awarded P1,000,000.00 in moral damages in that case.
Describing the nature of the injury, the Court therein stated:
As a result of the accident, Ma. Lourdes Valenzuela underwent a
traumatic amputation of her left lower extremity at the distal left
thigh just above the knee. Because of this, Valenzuela will forever
be deprived of the full ambulatory functions of her left extremity,
even with the use of state of the art prosthetic technology. Well
beyond the period of hospitalization (which was paid for by Li), she
will be required to undergo adjustments in her prosthetic devise
due to the shrinkage of the stump from the process of healing.
These adjustments entail costs, prosthetic replacements and
months of physical and occupational rehabilitation and therapy.
During her lifetime, the prosthetic devise will have to be replaced
and readjusted to changes in the size of her lower limb effected by
the biological changes of middle-age, menopause and aging.
Assuming she reaches menopause, for example, the prosthetic will
have to be adjusted to respond to the changes in bone resulting
from a precipitate decrease in calcium levels observed in the bones
of all postmenopausal women. In other words, the damage done to
her would not only be permanent and lasting, it would also be
permanently changing and adjusting to the physiologic changes
which her body would normally undergo through the years. The
replacements, changes, and adjustments will require
corresponding adjustive physical and occupational therapy. All of
these adjustments, it has been documented, are painful.
x x x.
A prosthetic devise, however technologically advanced, will only
allow a reasonable amount of functional restoration of the motor
functions of the lower limb. The sensory functions are forever lost.
The resultant anxiety, sleeplessness, psychological injury, mental
and physical pain are inestimable.83
________________
83 Id. at 327-328.
627
VOL. 321, DECEMBER 29, 1999 627
Ramos vs. Court of Appeals
The injury suffered by Erlinda as a consequence of private
respondents’ negligence is certainly much more serious than
the amputation in the Valenzuela case.
Petitioner Erlinda Ramos was in her mid-forties when the
incident occurred. She has been in a comatose state for over
fourteen years now. The burden of care has so far been
heroically shouldered by her husband and children, who, in
the intervening years have been deprived of the love of a wife
and a mother.
Meanwhile, the actual physical, emotional and financial cost
of the care of petitioner would be virtually impossible to
quantify. Even the temperate damages herein awarded would
be inadequate if petitioner’s condition remains unchanged for
the next ten years.
We recognized, in Valenzuela that a discussion of the victim’s
actual injury would not even scratch the surface of the
resulting moral damage because it would be highly
speculative to estimate the amount of emotional and moral
pain, psychological damage and injury suffered by the victim
or those actually affected by the victim’s condition. The 84
husband and the children, all petitioners in this case, will have
to live with the day to day uncertainty of the patient’s illness,
knowing any hope of recovery is close to nil. They have
fashioned their daily lives around the nursing care of
petitioner, altering their long term goals to take into account
their life with a comatose patient. They, not the respondents,
are charged with the moral responsibility of the care of the
victim. The family’s moral injury and suffering in this case is
clearly a real one. For the foregoing reasons, an award of
P2,000,000.00 in moral damages would be appropriate.
Finally, by way of example, exemplary damages in the
amount of P100,000.00 are hereby awarded. Considering the
length and nature of the instant suit we are of the opinion that
attorney’s fees valued at P100,000.00 are likewise proper.
________________
84 Id. at 328.
628
628 SUPREME COURT REPORTS ANNOTATED
Ramos vs. Court of Appeals
Our courts face unique difficulty in adjudicating medical
negligence cases because physicians are not insurers of life
and, they rarely set out to intentionally cause injury or death
to their patients. However, intent is immaterial in negligence
cases because where negligence exists and is proven, the same
automatically gives the injured a right to reparation for the
damage caused.
Established medical procedures and practices, though in
constant flux are devised for the purpose of preventing
complications. A physician’s experience with his patients
would sometimes tempt him to deviate from established
community practices, and he may end a distinguished career
using unorthodox methods without incident. However, when
failure to follow established procedure results in the evil
precisely sought to be averted by observance of the procedure
and a nexus is made between the deviation and the injury or
damage, the physician would necessarily be called to account
for it. In the case at bar, the failure to observe preoperative
assessment protocol which would have influenced the
intubation in a salutary way was fatal to private respondents’
case.
WHEREFORE, the decision and resolution of the
appellate court appealed from are hereby modified so as to
award in favor of petitioners, and solidarily against private
respondents the following: 1) P1,352,000.00 as actual damages
computed as of the date of promulgation of this decision plus
a monthly payment of P8,000.00 up to the time that petitioner
Erlinda Ramos expires or miraculously survives; 2)
P2,000,000.00 as moral damages; 3) P1,500,000.00 as temperate
damages; 4) P100,000.00 each as exemplary damages and
attorney’s fees; and, 5) the costs of the suit.
SO ORDERED.
Davide, Jr. (C.J., Chairman), Puno, Pardo and Ynares-
Santiago, JJ., concur.
Judgment modified.
629
VOL. 321, DECEMBER 29, 1999 629
 Land Bank of the Philippines vs. Court of Appeals
Note.—Proximate cause is determined on the facts of each
case upon mixed considerations of logic, common sense,
policy and precedent. (Philippine Bank of Commerce vs. Court of
Appeals, 269 SCRA 695 [1997])
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